No. 33314 State of West Virginia v. David Farris
Benjamin, Justice, dissenting:
Assumed facts not in the record should not trigger the ordering by this Court
of a new trial. Unfortunately, as in this Court's recent majority decision in State v.
, _ W. Va. _, 650 S.E.2d 119 (2007), I believe the majority has again leapt to
factual conclusions not borne out by the record before us and, relying on such
presuppositions, has prematurely, and perhaps erroneously, ordered a new trial below.
Accordingly, I dissent.
To reach its conclusion, the majority must assume that there was a joint
investigation by Kentucky and West Virginia authorities herein, thereby permitting an
imputation of knowledge of Kentucky authorities to West Virginia authorities. (See footnote 1)
For only if
there was a joint investigation is there the potential that the knowledge of information
contained in the file of a Kentucky forensic psychologist may be imputed to a West Virginia
prosecutor under Youngblood
. (See footnote 2)
However, no evidentiary hearing was held below to
determine whether there was such a joint investigation. The trial court made no factual
finding that West Virginia officials were ever engaged in a joint investigation with Kentucky
authorities on the allegations against Mr. Farris. Furthermore, there is no factual finding by
the trial court that Robin Brozowski, a forensic psychologist with the Child Advocacy
Center in Pikeville, Kentucky, was a police investigator or part of the investigative team in
this matter. To reach an analysis under Brady v. Maryland
, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed. 215 (1963), the majority simply assumes
that there was a joint investigation into the
allegations against Mr. Farris by West Virginia and Kentucky authorities, and further
assumes Ms. Brozowski's role therein.
This assumption by the majority that there was a joint investigation and Ms.
Brozowski's role therein is critical to the majority's decision herein because without this
assumption a Brady
analysis is not triggered. I would instead remand this matter to the trial
court to conduct an evidentiary hearing and make factual findings on whether there indeed
was a such a joint investigation and, if so, Ms. Brozowski's role in such an investigation. (See footnote 3)
Only if the trial court were to make the requisite factual findings that there was such a joint
investigation and that Ms. Brozowski was a part of such an investigation would the issue
of a new trial be triggered.
By remanding this case, the trial court would have the opportunity to conduct
the initial Brady
analysis, an analysis which is often fact-intensive and therefore not
conducive to an appellate determination. (See footnote 4)
Our role on appeal should be one of review, not
determination in the first instance. In addition to determining whether a joint investigation
between both jurisdictions took place, other facts could be determined by the trial court,
such as Ms. Brozowski's actual
role in the investigation, Mr. Farris' ability to obtain the
report other than through the Mingo County prosecutor's office, and the significance of the
report to the defense. The trial court, having already sat through two trials in this matter, is
in the best position to determine the significance of the report to the defense and should have
been afforded the opportunity to make the requisite factual findings and conduct the initial
Before this Court should jump to the conclusion that a trial court got it wrong,
we should ensure that the record actually establishes that the trial court did get it wrong.
Here, that is not the case. Unless the majority, as a matter of law, proposes to impute
knowledge of an independent criminal investigation by a foreign jurisdiction to West
Virginia authorities, we should not vacate a criminal conviction absent some certainty of
actual error below. (See footnote 5)
By prematurely accepting as fact something which is clearly not a fact,
as it also did in Youngblood
, the majority has improvidently ordered a new trial herein based
upon supposition, not on facts within the evidentiary record. Accordingly, I dissent.
I am authorized to state that Justice Maynard joins in this dissent.
One is left to ponder whether the knowledge of federal authorities developed in a
separate investigation may now be imputed to West Virginia prosecutors simply because the
same issues may have been present in both federal and state investigations of a given
defendant. It is my hope that this Court will, in the future, practice some what more restraint
when determining matters with important factually-intensive issues and under-developed