James M. Cagle
Charleston, West Virginia
Counsel for the Appellant
Barbara H. Allen
Scott E. Johnson
Attorney General's Office
Charleston, West Virginia
Counsel for the Appellee
3. To demonstrate that preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, a defendant must introduce substantial evidence of actual prejudice which proves he was meaningfully impaired in his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was or will be likely affected. Syl. Pt. 4, State ex rel. Knotts v. Facemire, 223 W.Va. 594, 678 S.E.2d 847 (2009).
4. 'A determination of whether a defendant has been denied a trial without unreasonable delay requires consideration of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The balancing of the conduct of the defendant against the conduct of the State should be made on a case-by-case basis and no one factor is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial.' Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982). Syl. Pt. 6, State v. Jessie, 225 W.Va. 21, 689 S.E.2d 21 (2009).
5. In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a
comparison with other offenses within the same jurisdiction. Syl. Pt. 5, Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981).
Appellant Sandy Cook seeks a reversal of his conviction on sixteen counts of sex-related offenses. (See footnote 1) As grounds for the reversal, Appellant asserts due process violations stemming from both pre- and post-accusatory delay; improper application of case law; cumulative error; and disproportionate sentencing. Upon our careful consideration of the assignments of error raised by Appellant, we do not find that the trial court committed error. Accordingly, we affirm.
To maintain a claim that preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, the defendant must show actual prejudice. To the extent our prior decisions in State ex rel. Leonard v. Hey, 269 S.E.2d 394 (W.Va. 1980), Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and their progeny are inconsistent with this holding, they are expressly overruled.
223 W.Va. at 595, 678 S.E.2d at 848.
In Facemire, we also addressed the requirement imposed on a defendant under Hundley to prove that the State's delay in bringing the indictment was a deliberate device to gain an advantage over him and that it caused him actual prejudice in presenting his defense. 181 W.Va. at 380, 382 S.E.2d at 574, syl. pt. 2, in part. After considering the alternative approach employed by the Fourth Circuit Court of Appeals for analyzing preindictment delay, we determined that fundamental fairness concerns at the heart of the Due Process Clause compelled the elimination of a defendant's burden to demonstrate that the state gained an advantage through preindictment delay. See Facemire, 223 W.Va. at 603, 678 S.E.2d at 856. Adopting the balancing test used by the Fourth Circuit, we held in syllabus point three of Facemire:
In determining whether preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, the initial burden is on the defendant to show that actual prejudice has resulted from the delay. Once that showing has been made, the trial court must then balance the resulting prejudice against the reasonableness of the delay. In balancing these competing interests, the core inquiry is whether the government's decision to prosecute after substantial delay violates fundamental notions of justice or the community's sense of fair play. To the extent our prior decision in Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), and its progeny are inconsistent with this ruling, they are expressly overruled.
223 W.Va. at 595-96, 678 S.E.2d at 848-49.
Appellant argues that the trial court should be required to reconsider his motion to dismiss for preaccusation delay in light of this Court's decision in Facemire. (See footnote 10) As support for his position, Appellant relies upon our decision in Facemire to eliminate a defendant's burden of establishing that the prosecutorial delay in issue was tactical in nature as part of establishing a due process violation based on preindictment delay . 223 W.Va. at 603, 678 S.E.2d at 856. Because the trial court's ruling included a finding that there was no evidence that the state's delay in prosecuting him was purposeful, (See footnote 11) Appellant contends that he was held to a stricter standard for purposes of establishing a due process violation based on preindictment delay than what is now required under Facemire. (See footnote 12)
What Appellant overlooks in making this argument is the fact that the trial court did consider and rule on the pivotal issue of whether he had established actual prejudice. That is the key critical first component of the test we articulated in Facemire. As we held in Facemire: [T]he initial burden is on the defendant to show that actual prejudice has resulted from the delay. 223 W.Va. at 595, 678 S.E.2d at 848, syl. pt. 3, in part. Only after a defendant has established actual prejudice resulting from preindictment delay does the trial court proceed to the next step, which is to balance the resulting prejudice against the reasonableness of the delay. Id. at 595, 678 S.E.2d at 848, syl. pt. 3, in part.
Addressing the grounds offered by Appellant in support of his motion to dismiss, the trial court considered Appellant's contention that a lengthy preindictment delay prejudicially impacts a defendant's ability to defend against the charges due to faded memories, lost evidence, and unavailable witnesses. As an initial matter, the trial court rejected Appellant's argument that a defendant necessarily loses his right to remain silent where the delay in accusation is extreme. (See footnote 13) Responding to the temporal-related impact on the defense's ability to gather evidence, the trial court observed that the state's ability to prosecute such cases is similarly hampered by those same factors. Turning to the issue of whether the State gained a tactical advantage under the then-controlling decision of Hundley by the timing of the prosecution, the trial court found that there was no delay to gain a tactical or otherwise advantage. As the trial court expounded: This is not a situation where the State knew about the charges or the allegations for 15 or 17 years and sat and did nothing about it. These are allegations that simply were not made until years and years later after the alleged acts occurred. Reaching the pivotal inquiry of actual prejudice, the trial court opined:
I do not believe in this particular case there is evidence, taking into consideration the defendant's affidavit and the arguments that have been made here, that there is such evidence which would indicate that there is at this point actual prejudice to prevent the defendant from being able to put forth his defense.
Accordingly, the trial court denied Appellant's motion to dismiss for prosecutorial delay. (See footnote 14)
The grounds upon which Appellant relied to assert prejudice as a result of the lengthy delay were set forth in his affidavit. Appellant identified four deceased individuals upon whom he would have relied for purposes of defending against the subject charges. The witnesses who were unavailable to Appellant due to death included his mother, Audrey C. Cook, (See footnote 15) Paula Farley, a girlfriend of Michael B.; Mallie Melven, the church's district overseer; and Beulah West, the clerk of the church. In addition to the deceased witnesses, Appellant averred that numerous records and materials were missing which would be useful in my defense. Appellant identified the missing documents as credit card records, checking account records, vocational school records, church records, and his mother's journals.
In reviewing the record made by Appellant on the issue of establishing actual prejudice_a showing that was required by Hundley and a showing that is still required under Facemire_it is apparent that the averments of prejudice that he relies upon amount to nothing more than dimming memories and the passage of time. Facemire, 223 W.Va. at 603, 678 S.E.2d at 856. As we explained in Facemire, 'vague assertions of lost witnesses, faded memories, or misplaced documents are insufficient to establish a due process violation from pre-indictment delay.' Id. at 603, 678 S.E.2d at 856 (quoting U.S. v. Beszborn, 21 F.3d 62, 67 (5th Cir. 1994). Vague and conclusory allegations of prejudice, as we made clear in Facemire, are simply not sufficient. Not only must the contemplated testimony of a missing or deceased witness be demonstrated with ample specificity, but the impact of that missing testimony on the defense must be shown. To rely upon presumption or inference, as Appellant does here, by representing as fact that his mother would have been able to contradict the evidence offered by the State against him while offering little in the way of specifics regarding her expected testimony is clearly insufficient under our holding in Facemire. The degree of specificity required to establish actual prejudice is that which will solidly demonstrate how a defendant has been meaningful[ly] impair[ed] in conducting his defense. Facemire, 223 at 604, 678 S.E.2d at 857. As we held in syllabus point four of Facemire,
To demonstrate that preindictment delay violates the Due Process Clause of the Fifth Amendment to the U.S. Constitution and Article III, Section 10 of the West Virginia Constitution, a defendant must introduce substantial evidence of actual prejudice which proves he was meaningfully impaired in his ability to defend against the state's charges to such an extent that the disposition of the criminal proceeding was or will be likely affected.
223 W.Va. at 596, 678 S.E.2d at 849 .
Based on our review of the record, Appellant has not demonstrated that his defense was meaningfully impaired as a result of the unavailable witnesses or evidence. Id. at 604, 678 S.E.2d at 857. What he has proffered in his attempt to demonstrate actual prejudice are simply garden variety averments based on the passage of time_the inability to fully recall events or to produce witnesses or documentation to refute the State's evidence. (See footnote 16) As far as the deceased individuals, nothing in Appellant's affidavit demonstrates that any of those witnesses could provide evidence to refute the allegations of sexual misconduct that allegedly took place in the church van. And, as to the allegations of sexual abuse that allegedly occurred in the church parsonage, the mere fact of Appellant's mother's residence in the church parsonage does very little, standing on its own, to disprove the allegations. From the affidavit, it appears that Appellant would have sought the testimony of each of the deceased witnesses (See footnote 17) for the purpose of bolstering his theory that the accusers were motivated to bring false charges against him based on the unsuccessful attempt of one of the accusers to gain control of the Shrewsbury Church of God. (See footnote 18) Not only was the jury fully apprised as to the defense's theory of the underlying motivation for the charges of sexual abuse, but the panel also heard testimony from various witnesses regarding the character of the various accusers and specifically their trustworthiness. Given that the jury heard both testimony and argument as to Appellant's theory regarding the accusers' wrongful motivation, we are not persuaded that the testimony of those now-deceased witnesses would have impacted the outcome of the trial in favor of the defense.
With regard to Appellant's claim that missing documentary evidence_financial records, church records, vocational school records, and journals_would be useful in my defense, this is the type of imprecise allegation that we referenced in Facemire as being insufficient to establish substantial evidence of actual prejudice. 223 W.Va. at 604, 678 S.E.2d at 857. Appellant argues that some of the allegedly irretrievable financial documents could have been used to respond to the State's contention that Appellant purchased certain items of clothing for Mr. S. (See footnote 19) and that the church and vocational records could have been relied upon to document his whereabouts on a given date. (See footnote 20) Appellant related that his mother's journals would have included mention of disagreements between the accuser [Michael] L. and me. Apart from these stated reasons, Appellant offers little else to explain how the missing documents were needed to defend against the subject charges. Accordingly, we find the need for such documents to be vague in nature and we further conclude that it is unlikely that those documents could have had a meaningful impact on the defense. Just as with the testimony of the deceased witnesses, there is nothing in the missing documents that Appellant has identified that is likely to have altered the outcome of his trial.
Upon our review of the record in this case, we do not find that the trial court committed error in refusing to grant Appellant's motion to dismiss the indictment for preindictment delay. Neither do we find merit in Appellant's argument that the trial court should reconsider its ruling on the motion to dismiss under this Court's decision in Facemire. Given Appellant's failure to establish actual prejudice--the first prong of Facemire, there would be no point in requiring the trial court to apply the second prong of Facemire, which is a balancing of the established prejudice against the state's reasons for the delay in prosecution. See Facemire, 223 W.Va. at 595-96, 678 S.E.2d at 848-49, syl. pt. 3. As the record makes clear in this case, the State promptly acted to prosecute Appellant upon its discovery of the subject allegations of sexual abuse.
A determination of whether a defendant has been denied a trial without unreasonable delay requires consideration of four factors: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his rights; and (4) prejudice to the defendant. The balancing of the conduct of the defendant against the conduct of the State should be made on a case-by-case basis and no one factor is either necessary or sufficient to support a finding that the defendant has been denied a speedy trial. Syl. Pt. 2, State v. Foddrell, 171 W.Va. 54, 297 S.E.2d 829 (1982).
225 W.Va. at 2_, 678 S.E.2d at 24, syl. pt. 6.
As support for his motion to dismiss the indictment based upon the delay between the initial accusation and the return of the indictment, (See footnote 21) Appellant cites the death of his mother during the time period between when the case was bound over to the grand jury in September 2007 and when the indictment was returned on September 19, 2008. Referencing the averments pertaining to his mother set forth in his affidavit concerning her residence in the parsonage and her personal knowledge of the accusers, (See footnote 22) Appellant contends that she was a critical defense witness whose death resulted in enormous and substantial prejudice to his ability to defend himself against the subject charges. He argues that his mother represented the best possible witness for the defense.
The reason the indictment was not returned sooner was apparently due to the fact that the investigating officer, Trooper Napier, did not present his grand jury report to the prosecutor's office until July 17, 2008. While Appellant questions the fact that this report was presented on the same date as Mrs. Cook's death, there is nothing in the record to suggest that the State intentionally delayed presentment of this matter to the grand jury. (See footnote 23) Upon our consideration of (1) the twelve month delay at issue; (2) the reason for the delay in presentment to the grand jury; (3) the Appellant's assertion of his right to a speedy trial; and (4) the prejudice sustained as a result of the delay, we do not find that the trial court committed error in determining that Appellant's Sixth Amendment right to a speedy trial was not violated under the facts of this case.
The standard by which we examine claims of disproportionate sentencing was set forth in syllabus point five of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981):
In determining whether a given sentence violates the proportionality principle found in Article III, Section 5 of the West Virginia Constitution, consideration is given to the nature of the offense, the legislative purpose behind the punishment, a comparison of the punishment with what would be inflicted in other jurisdictions, and a comparison with other offenses within the same jurisdiction.
Applying this standard, the State emphasizes the serious nature of the multiple criminal offenses at issue and the undeniable exploitation by Appellant of his position of spiritual guidance and trust with young, impressionable male victims. The State further observes that the trial court could have run all of the sentences consecutively which would have resulted in a much lengthier sentence of 56 to 180 years, rather than the 20 to 60 year sentence that he received. Given the clear legislative decision to impose stiff penalties on specified individuals who commit acts of sexual abuse on children under their care, supervision, or trust, (See footnote 30) we find no basis for determining that Appellant's sentence was constitutionally disproportionate to the grievous offenses for which he was convicted. (See footnote 31)
Having determined that the trial court did not commit error in connection with the assignments of error raised by Appellant, we affirm the decision of the Circuit Court of Kanawha County.