State v. Youngblood

defendant.”). ruling against on the basis for the court’s evidence There- fore, made, though assuming the trial court did not we issue. Even statement was disqualification pose for cause issue in address the are convinced that it did not reason- claim, the extrinsic evidence possibility prejudice Daugher- the context of of to Mr. able do so because is how the issue ty.12 we will appeal in this and briefed presented

was IV. parties. argument, Assuming, for the sake of CONCLUSION jury inform the that he Mr. McBride did Daugher- circuit court’s denial of Mr. The Daugherty family, knew Mr. his ty’s for a new trial is affirmed. motion granting Mr. does not warrant statement trial. Daugherty a new The limited record Affirmed. appeal presented in this does not show that possibility posed a reasonable the statement Daugherty. Mr. prejudice

of with 12 of presented counts

against Daugherty, but convicted him of four counts. The victim this

T.J., being sexually testified to abused and Daugherty identified Mr. as the abuser. The 650 S.E.2d 119 presented psycholo- of a Virginia, of West Plaintiff STATE gist who reviewed T.J.’s mental health rec- Below, Appellee, When asked if the behavior outlined in ords. mental health records was T.J.’s consistent abuse, psy- a victim of child sexual YOUNGBLOOD, Jr., Denver A. Defendant chologist follows: answered as Below, Appellant. earlier, I children who have As testified No. 31765. sexually do been abused often exhibit cer- higher frequency

tain at a than behaviors Appeals Court of children, normal behavior that I’ve de- Virginia. West T.J.], you [regarding sexually scribed to children, April aggressiveness try- toward other Submitted: 2007. children, ing to be sexual with other May Decided: 2007. things, hunching masturbating, putting Dissenting Opinion of Justice anus, things eating in his those behav- —all Benjamin May 15, 2007. iors, think, symptoms I could be seen as Concurring Opinion behaviors caused [sic] Justice trauma of sexual abuse. Starcher June 2007. From this Court is able to ascertain what Dissenting Opinion of Justice presented appeal, from the limited record on Maynard June 2007. to sustain the four convictions beyond was sufficient a reasonable doubt. Saya,

See 247 F.3d United States

(9th Cir.2001) (“Also consequence in deter

mining the introduction of whether extrane prejudice

ous information constituted is the strength government’s

amount and evidence], Daugherty points Bryant, 12. Mr. out that Jurors courts have used an [extrinsic ob jective subjective Cox and Crookshanks that Mr. and have held that the testified test impacted impact statements their on [extrinsic evidence] McBride’s decision individual evidence, voting Daugherty. jurors inquired into convict This cannot because intrudes however, process.” Trump, cannot be considered. This Court has deliberative considering impact "[w]hen indicated that S.E.2d Stone, Jr., Martinsburg, Ap- for C. Robert pellant. County McLaughlin, Morgan

Debra M.H. Attorney, Berkeley Springs, Prosecuting Appellee.

DAVIS, C.J. appellant, Youngblood, Denver A. Jr. (hereinafter Youngblood), convicted County Morgan Court of the Circuit assault, degree degree first sexual second assault, counts exposure, indecent two brandishing weapon, endan and wanton germent a firearm. The circuit court years 26 to 60 sentenced Mr. imprisonment. The order of conviction by majority of this sentence was affirmed Youngblood, Court in State W.Va. (2005) (Davis, J. and Starch S.E.2d er, However, J., dissenting). the United granted Supreme Court certiorari Virginia, Youngblood v. West 547 U.S. (2006), 2188, 165 vacat S.Ct. L.Ed.2d 269 majоrity, and re judgment ed of the case for consideration of whether manded the evidentiary turn failure to over State’s All requirement of Pitner had returned. five individuals note violated the disclosure got Youngblood’s thereafter into Mr. car and Brady Maryland, 373 U.S. carefully home, After drove to Mr. Pitner’s which was also 10 L.Ed.2d 215 Berkeley Springs.6 located in While en route considering supplemental briefs and home, listening to Mr. appeal, Pitner’s record submitted passing by in rearguments parties, the circuit mother was her vehicle and sentencing signaled pull Young- order is for him to over. Mr. court’s conviction and approached for a mother his car and in- and this case is remanded new blood’s reversed him that on her charges.1 trial on all formed she heard CB scan- police looking ner that for three made a 911 call. women who As Mr. I. mother, spoke blood his two officers appeared. approached The officers Mr. FACTUAL AND PROCEDURAL Youngblood’s officers, car. One of the A. BACKGROUND Thomas, testified on direct and cross-exami- Youngblood prosecuted alleg- Mr. was regarding nation the encounter as follows: edly forcing perform N.2 to oral sex Katara Q. youDo know the individual was 28, July him on two occasions on or about on stopped talking Youngblood? to Mr. 2000.3 The first sexual assault occurred A. I believe it mother. Berkeley Springs, was his Youngblood’s Mr. home During Virginia. this assault three West Q. you approached the car? So home, people present in but other were Yes, A. ma'am. alleged assault. The did not witness the Q. Was there other officer with Pitner, Joe Kim- three other individuals were you night? K.,4 berly Wendy and the first S.5 When Yes, ma'am, Barney. A. Officer ended, Youngblood encounter Mr. and young The three Mr. Pitner left the home. Q. you approached And the vehicle? nearby to a women thereafter went house telephone appears call. and made a 911 Yes, A. ma'am. operator

that the told the 911 women Q. you What did do? they at an location and need- were unknown driver, I A. talked to the which is making telephone ed a ride home. After passen- Defendant. He had another male call, voluntarily returned to the three women passenger ger on the front side of the car. Youngblood’s Mr. home. in the car. Basi- There was three females they cally, I has had come from By the time the women returned to Mr. asked home, they Youngblood and Mr. that area and if the callers and Mr. were original opin her name. See State v. Steven 1. We wish to make clear that the and not disclose last assignments H., six ion filed this Court resolved 215 W.Va. 507 n. 600 S.E.2d Supreme grant error. The United States Court 1n. judgment of this ed certiorari Court vacated issues, i.e., allega as to one of the complete appear in 3. A recitation of the facts Consequently, of a violation. the res tion olution of Youngblood, 618 S.E.2d origi remaining five issues in the (2005), and an abbreviated recitation of the opinion was not disturbed and remain the nal Virginia, Youngblood of the case remand to the circuit court. facts are set out West law on County Agency v. All See Santa Barbara Water 165 L.Ed.2d 269 547 U.S. (2006). S.Ct. Pаrties, 743, 745, 3 Cal. ‍​​‌​‌‌‌​​‌​‌​​‌​​​​‌‌​​​​‌​​​‌​‌​‌‌​​​​​​​‌‌‌‌‌​‍ Persons and 53 Cal.2d ("Insofar Rptr. as the 350 P.2d 100 judgment prior opinion of this court affirmed the Kimberly years 4. was fifteen old at the time. court, passed of the trial on the several validity involved other than the issues contracts, sought given by just eighteen years Wendy review was not 5. turned old United States Court. What was said the time. ... and is these issues is the law of the case [on] reaffirmed, here.”). and need not be restated during There was evidence the trial that at point drive Mr. some Katara was allowed to years 2. Katara was old at the time of sixteen incident, Youngblood's practice we will follow our vehicle. therefore they any- going Subsequent on and if knew took a statement from her. what was investigation Youngblood Mr. indict- thing it. about ed in 2001 on sexual assault and other response Q. you know what their Do Katara, charges involving weapon was? charges involving Wendy Kimberly. A of, know, response you got I A. charges Mr. of all convicted they they the ones that called and weren’t accordingly and he was sentenced going on. didn’t know what trial court.9 sentence, Subsequent to his conviction and Q. girls in You asked the three filed a motion for a new they the ones that called the back were upon newly based discovered evidence. The help? the ones that needed question was a note that was sir, Yes, I A. did. found at the home where Mr. Pitner resided. Q. them no? And each of said The note was found owner of Yes, A. sir. home, Patricia Miles.10 The trial court held appeal- you Q. And did it that these evidentiary hearing At motion. girls hearing scarеd? Ms. Miles informed the court investigated the officer who the case it, no, Looking A. back on not that I against read the note and why thought and that is we remember away. told it her throw As discussed part occurring. of what was was not fully opinion, more in this the note contained they you Q. winking trying Were language reasonably interpret- that could be give you signals? secret showing Youngblood engaged ed as that Mr. A. I noticed. Not that in consensual sex with Katara-which was his Q. anything try signal you? Doing ultimately defense trial. The trial court that I noticed. A. Not denied the motion new trial on the upon your Q. But recollection ev- based only grounds impeachment that the note erybody appeared to fine. investigating value and that officer’s A. Yes. knowledge imputed of the note could not be prosecutor. to the Youngblood’s and Mr: The officers two appeal left the scene. Thereafter Mr. In Mr. initial mother to this Court, majority of the Court Youngblood to Mr. found drove Pitner’s home. judge denying the trial was correct in his alleged While at Mr. Pitner’s home was upon newly motion for trial new based dis- again Ka- that Mr. once forced majority opinion covered evidence. The did perform sex on him. tara to oral This en- not address the issue in the context of a by counter was also not witnessed the other Brady Subsequently, violation. the United present three the home. individuals certiorari, Supreme granted States Court va- Shortly were thereafter women driven to judgment cated the and remanded the case Maryland Hagerstown, and left therе. Brady for consideration of the issue. off, dropped After the three women were However, Wendy Katara home. went and II. Kimberly by taken to a were sheriffs office DUTY ON REMAND AND STANDARD Wendy’s Wendy Kimberly mother.7 and in- OF REVIEW police Youngblood gave formed the that Mr. gun.8 carried a

them alcohol and After Court, again This case is once before this Wendy statements were taken from Supreme as a result of the United States Kimberly, certiorari, police granting vacating judg- contacted Katara and Court Wendy Kimberly original opinion by 7. At the time that 9. went to The filed this Court indicat- office, Trooper A.T. Peer ed counts, sheriff's was indicted on seven present. pointed opinion, grand jury actually As out later m this but the returned a six Trooper investigation. against Peer took over the him. count indictment Allegations against made Mr. Pitner. 10. also Ms. Miles is Pitner's aunt. majority, Court, ment of the remanding Supreme he as had to the trial And, ease.11 mandate issued noted, United court. as jus- the dissenting Supreme States Court stated that “the case significance tices discerned the of the issue Supreme Ap- remanded to the Court of raised. If this Court is to reach the merits peals Virginia of proceed- West for further of this it would be better to have the ings opinion not inconsistent with the of this benefit of the views of the lull Supreme opinion Court.” The essence issued Appeals Court of Virginia West Supreme the United States Court is fol- We, therefore, Brady issue. grant pe- lows: certiorari, tition for judgment vacate the The trial court denied a new Court, Supreme the State and remand the trial, saying that provided only case for further proceedings not inconsis- impeachment, but exculpatory, evi- opinion. tent with this dence. The trial court did not discuss (internal Youngblood, 126 S.Ct. at 2189-2190 Brady scope, expressed or its but the view omitted). citations that the investigating trooper had attached opinion In view of the issued the United importance no and because he Court, Supreme we believe that three give had failed prosecutor it to the (1) issues must be resolved: whether the State could not failing now be faulted for prosecution’s duty Brady disclosure under to share it with Youngblood’s counsel. includes evidence that is known A majority bare of the Court of (2) investigators, whether the disclosure re Appeals affirmed, Virginia West finding quirement under includes disclosure no abuse of part discretion on the impeachment evidence, of favorable court, but examining spe- without suppressed whether the evidence violated the cific constitutional claims associated with requirement disclosure Brady. In resolv alleged suppression of favorable evi- ing these three issues we do not Davis, believe that dence. Justice dissenting in an precluded this Court is considering from also opinion joined, that Justice Starcher unam- independent the issues on biguously State constitution trooper’s characterized the in- grounds al struction to discard the under our decision in v. new evidence as a State Hatfield, 191, Brady violation. The 286 dissenters concluded S.E.2d 402 (1982). indicating particularly that that This is so in Mr. because engaged in Youngblood’s original consensual sex with Katara supplemental had brief and suppressed material, been and was both argued brief he both and State federal con because was at odds with the grounds stitutional for a new trial. See State provided by the State’s three 393, chief wit- Hershberger, 462 N.W.2d 396-397 (Katara, Kimberly, Wendy) (Minn. nesses 1990) (“It and and unnecessary to rest our entirely also because it was consistent with decision on the that [federal case the United Youngblood’s defense at trial that his sexu- Supreme States Court asked us to consider al encounters with Katara were consensu- remand,] on when the Minnesota Constitu al. provides independent tion alone an and ade

quate state constitutional basis on which to decide.”); clearly presented a Packing federal Schuyler Pelliccioni v. Co., (1976) Brady 190, constitutional 4, claim to the State N.J.Super. 140 356 A.2d 6 disposition is, Supreme This litigation, United States mate outcome of the a GVR order through believe, Court was an order that is known as a potentially appropriate. we type disposition “GVR” order. This has been Chater, Lawrence on Lawrence v. 516 Behalf of addressed as follows: 167, 163, 604, 607, U.S. 133 L.Ed.2d intervening developments, Where or recent (1996). suggested 345 It has been that “such developments that we have to believe reason indicatelsj, matter, prima order as a facie consider, fully the court below did not reveal a error, judgment below is but that the lower probability reasonable that the decision below court remains frеe to reach whatever result upon premise rests a the lower court Martin, appropriate." "Gaming feels Shaun P. reject given opportunity would if for fur- GVR,” the (internal Ariz. 36 St. L.J. 564-565 consideration, ther appears and where it omitted). quotation marks such a redetermination determine the ulti- 26 control, custody

(“[S]tate courts, possession, after a United States Su matters its remand, are free alter— preme Court requested pursuant a Rule defendant subject only jurisprudence— to the state’s Virginia Rules of Criminal 16 of the West on so prior in the case state law decisions Procedure. The record in this case discloses long decision is with as altered consistent Rule 16 Mr. invoked and ruling Court’s on the Supreme the federal i-equested permit the State turn and over remanded.”); question presented and federal books, copy papers, him “all docu- [and] Moor-Jankowski, N.Y.2d Immuno AG. v. 77 possession, ... are ments which within 251-252, N.Y.S.2d N.E.2d 567 State, custody and control of and which (1991) (“The [United States] ... preparation are material to the of his specifically Court has directed us to consider dispute in this There is no case defensef.]” light the case in of Milkovich Lorain [v. that, notwithstanding Youngblood’s dis- Co., Journal 497 U.S. S.Ct. covery request, the failed to turn over (1990)], comply L.Ed.2d 1 and we that was found at Ms. Miles’ home. direction, throughout as courts the Nation argues, done But that trial court similar' circumstances. The State and the so ignore compel does not us to our deci ruled, had knowl- that insofar arguments fully presented sion or edge knowledge such could not provide an alternative basis for remand pur- imputed State for disclosure case.”). resolving the poses Brady We under and dis- Hatfield. agree. Our review of the three issues will be deny ruling in the context of the trial court’s Brady not relevant under Hat post-trial ing motion for field, police, prosecu that the rather than trial upon Brady new based a violation of tor, knowledge of material evidence that general As matter held we have Hatfield. that to a was favorable defendant. United denying trial order a defen “[a] court’s point Supreme Court addressed dant’s motion for a new entitled to Kyles Whitley, U.S. S.Ct. appeal.” substantial deference on State v. (1995): 1555, 131 613, 616, L.Ed.2d 490 Cooper, 217 W.Va. 619 S.E.2d A claim of a violation of prosecutor duty individual has a [T]he presents questions mixed law Hatfield learn of favorable evidence known to Consequently, fact. “circuit court’s acting government’s the others be- findings factual should be reviewed under case, including police. half in the the But clearly questions and ... erroneous standard prosecutor fails whether the succeeds or in subject are de novo law to review.” State obligation, meeting prosecution’s the this Kearns, 167, 168-169, v. 210 W.Va. 556 known, responsibility failing to disclose 812, S.E.2d 813-814 Accord United (3rd rising evidence to a material favorable lev- Risha, 298, v. States 445 F.3d 303 Cir. 2006); importance el inescapable. is Jernigan, v. 451 F.3d United States (9th 1027, Cir.2006); 1030 v. United States The State of Louisiana this [in case] (5th Martin, 846, Cir.2005); 431 F.3d 850 ... rule. prefer would more lenient [a] Schlei, 944, v. 122 989 United States F.3d pleads that some of favorable evidеnce the (11th Cir.1997); Hughes, v. 33 United States in was not even to issue here disclosed (10th 1248, Cir.1994); F.3d 1251 United trial, prosecutor suggest- until after (2nd Rivalta, 596, v. F.2d States 925 598 ed ... that it should be held accounta- Cir.1991). Brady ... under for evidence known

ble only III. police investigators to and not to the prosecutor. To the State in accommodate DISCUSSION would, however, manner amount to a Knowledge A. of Evidence the Police change of the Brady course from serious Imputed is to the Prosecutor In favor it line of cases. the State’s police that no doubts that be said one proceedings In criminal State is inform obligated investigators over and other sometimes fail to a turn documents

27 they possess But knowledge all know. neither cution does not or have prosecutor of evidence, any procedures prosecutor doubt that there serious because the individual carry regulations duty any can be established has a to learn of favorable evidence prosecutor’s] burden and to insure acting govern- [the known to the others on the of all relevant information communication including po- ment’s behalf every lawyer lice.”); State, on each case to who deals 348, v. 131 P.3d Thomas Since, then, prosecutor (“We it. has with (Wyo.2006) applied Brady to hold discharge government’s the means to duty exculpatory to disclose evi- will, any Brady responsibility argu- if he encompasses only ... known dence evidence excusing prosecutor ment for from dis- police investigators prose- and not to the closing happen what he does not to know cution.”); analysis, prose- In the final “[t]he plea about boils down to to substitute the get keeping cutor cannot around prosecutor, police for the and even for the ignorance.” States v. [him]/herself United themselves, the final arbiters of courts (7th Hamilton, Cir.1997); 107 F.3d government’s obligation to ensure fair foregoing In view we hold that a trials. police investigator’s knowledge of evidence 437-38, 115 Kyles, 514 U.S. 419 S.Ct. imputed prosecutor. a criminal case is (internal 1567-68, quota 131 L.Ed.2d 490 Therefore, prosecutor’s duty disclosure un omitted).12 The tions and citations decision Brady Maryland, v. 373 U.S. der proposition Kyles stands for the that “it is (1963), 10 L.Ed.2d 215 and State v. proper impute prosecutor’s to the office Hatfield, S.E.2d police that are to the and other facts known (1982), includes disclosure investigation members of the team.” United only police investigator known to a and not to (7th Wilson, 237 F.3d prosecutor. To the extent that the trial Cir.2001). States, See also Powell v. United investigating court found that the offi (D.C.2005) (“The govern 880 A.2d knowledge of the note could not cer’s prosecutor’s also lack ment concedes imputed prosecutor, ruling to the such knowledge, any of actual and therefore bad error. faith, Brady analysis. is not relevant to the Duty B. The to Disclose State’s brief, government points out in its As Impeachment Favorable part govern FBI MPD and the Evidence knowledge imputed ment team and their State, prosecutors.”). Archer v. post-trial During (Fla.2006) (“To 1187, 1203 comply So.2d trial, hearing for a new the circuit court Brady, prosecutor duty the individual has ruled that failure to disclose to learn of favorable evidence known to harmless, it had im because acting government’s behalf in others words, peachment In other the circuit value. the case and to disclose that evidence if it is position pos court took the that if the State material.”); State, Harrington 659 N.W.2d material evidence which could be used sesses 2003) (Iowa (“This 509, 522 test does by only impeachment pur for the defendant mean, however, that evidence unknown to obligation poses, the under no to State is prosecutor the individual is not considered believe cir turn over the evidence. We suppressed Regardless ... of whether the ruling with the due cuit court’s is inconsistent actually prosecutor learns of the favorable process requirements of both the federal and evidence, prosecution responsi bears the state constitutions. Jones, disclosure.”); bility v. for its State 891 (“[T]he 760, begin, Supreme To the United States ‍​​‌​‌‌‌​​‌​‌​​‌​​​​‌‌​​​​‌​​​‌​‌​‌‌​​​​​​​‌‌‌‌‌​‍(La.Ct.App.2004) So.2d 775 State necessarily Brady suppression by “the responsibili Court held in that is not absolved its an Brady simply prose- prosecution of evidence favorable to ties under because investigators prosecutor; Cleckley, to an [the] 1 Franklin D. Handbook on West and not See (2d duty prosecutor any Virginia Supp. to learn of Criminal Procedure 302 ed. individual has 2006) (“A duty acting prosecutor’s Brady to others ... favorable evidence known disclosure behalf.”) government’s includes material that known to 28 upon request process impeaсhing; violates due

accused evidence must have been State, guilt to suppressed willfully is material either where the evidence either irrespective good punishment, or to inadvertently; prejudice and must have prosecution.” faith or faith of the 373 bad ensued. 87, 83 S.Ct. 1196-97.13 The re- U.S. Greene, 263, 281-282, v. 527 Strickler U.S. Brady that quirement under evidence must (1999). 1936, 1948, 119 S.Ct. 144 L.Ed.2d 286 requested a defendant was later modi- incorporated “This Court has into West 97, Agurs, fied in States v. 427 U.S. United jurisprudence Virginia principles set (1976), 2392, L.Ed.2d 342 it 96 S.Ct. 49 where Brady Agurs." forth in State v. Salm that “there are situations in which was said ons, 561, 572, 842, 203 W.Va. 509 S.E.2d 853 obviously of such substantial val- evidence is (1998). initially adopted Brady part We as elementary ue to the defense fairness process in of our State constitutional due requires it to be disclosed even without a McArdle, syllabus point 4 of State v. 156 110, Agurs, specific request.” 427 U.S. at 96 (1973), 409, W.Va. 194 S.E.2d 174 where it S.Ct. at 2401. prosecution held withholds “[a] Although “Brady only exculpa addressed accused, which, demand an evidence on the evidence, tory doctrine been expand has exculpate if made available would tend to impeachment ed to include evidence as well him, process violates due of law.” McArdle exculpatory Thompson evidence.” as v. Hatfield, modified in v. 169 State W.Va. (5th Cir.1998). Cain, 802, 161 F.3d 806 191, (1982), response 286 S.E.2d 402 expressly United States Court has Agurs, purpose removing for the the re exculpa “disavowed difference between quirement exculpatory that material tory impeachment Brady evidence for syllabus requested. had to be was said purposes[.]” Kyles Whitley, v. 514 U.S. point prosecution 4 of “[a] Hatfield 1565, 131 115 S.Ct. L.Ed.2d 490 if withholds evidence which made available (1995). Bagley, See v. also United States 473 exculpate tend to would accused creat 667, 676, 3375, 3380, U.S. 105 S.Ct. ing a guilt reasonable doubt as to his violates (1985) (“Impeachment evidence, L.Ed.2d 481 III, process due of law under Article Section however, evidence, exculpatory as well Virginia 14 of the West Constitution.” Brady falls within the rule. Such evidence is accused,’ As to the im that, issue disclosure of favorable to an ‘evidence so evidence, peachment effectively, may this Court has disclosed and used make reversed acquit between difference conviction several convictions the basis of the State’s tal.”). sum, In impeachment essential elements of a failure to disclose favorable evi Kearns, violation have been stated as follows: dence. See State v. 210 W.Va. (2001); Yeager 556 S.E.2d 812 State ex rel. v. components are

There three of a true Trent, (1998); Brady violation: The 510 S.E.2d 790 evidence at issue Hoard, accused, v. must be favorable to the either State W.Va. 375 S.E.2d (1988); Hall, exculpatory, because because it is W.Va. it, showing necessary request subject 13. A “bad faith" when a dant’s would have been Brady violation involves “the failure of the State Virginia law; disclosure under either West Rule of preserve evidentiary material of which no (2) Criminal Procedure 16 or case whether more can be said than that it could have been material; duty preserve the State had a tests, subjected might of which results duty preserve if the State did have a have exonerated the defendant.” Arizona material, duty whether the was breached and 51, 57, 333, 337, Youngblood,488 U.S. consequences what should flow from the breach. L.Ed.2d The facts in the instant determining consequences In what should flow implicate underpinning case do not the facts duty preserve from the State’s breach of evidence, to its 2, Youngblood. Syl. pt. v. See v. State Arizona (1) a trial court should consider the Osakalumi, 758, 194 W.Va. 461 S.E.2d 504 involved; (2) degree negligence of or bad faith (1995) (“When the State had or should have had importance missing the of the evidence consider- requested by evidence a criminal defendant but ing probative reliability the value and of second- longer the evidence no exists when the defendant available; ary evidence or substitute that remains production, seeks its a trial court must determine (3) sufficiency and the of the other evidence (he (1) material, requested whether the if in conviction.”). produced at the trial to sustain the possession of the Slate at the time of the dcfen-

29 (1985).14 However, Hatfield, 860 nev- S.E.2d we have and it is clear that the trial court formally recognized er this issue under the committed error finding failure to process due clause our State of constitution. disclose the note was irrelevant because it today so We do and hold there are three merely impeachment value. components process of a constitutional due Application Brady C. of and Hatfield Brady Maryland, v. under U.S. violation 373 83, 1194, (1963), S.Ct. 83 10 L.Ed.2d 215 and stage analysis At of our we will Hatfield, 191, W.Va. 169 286 S.E.2d Brady apply now each of the elements of and (1982):(1) 402 the be evidence issue must to facts to of-this case determine Hatfield exculpatory favorable the defendant as whether Mr. is entitled to a new (2) evidence; impeachment evidence trial.16 State, have suppressed must been willfully inadvertently; either and (1). impeach- The evidence was favorable i.e., material, must evidence have been it ment evidence.17 The element first under prejudiced have must defense at trial.15 Brady and must we consider is Hatfield Having provided determined im- whether favorable favorable im- Brady peachment component peachment evidence of is evidence Youngblood.18 for Mr. Salmons, 573, newly impeachment 14. See also 203 W.Va. at 509 discovered evidence cannot ("In trial). S.E.2d 854 a third landmark United form of a the basis new 667, 3375, Bagley, States 473 105 87 U.S. S.Ct. (1985), L.Ed.2d 481 United analysis impeachment 16. Our of the evidence is Court held dial was no there difference between charges in the of context the sexual assault and exculpatory impeachment However, and Bra weapon charges. evidence for not the related be purposes.”); dy Cleckley, Virginia charges 1 factually West Crimi cause of the all inter ("In purely Brady nal Procedure 756 addition to excul twined our resolution of the and Hatfield evidence, entitled, patory upon impacts disposition defendant issue of all of the request, might charges. ion, original majority opin As noted in disclosure of information that witnesses.”). impeach government be used to the circuit court denied pretrial charges motion to sever because the charges all court "viewed as interrelated point original opin We should that in the out parts picture and as of the whole of the case.” majority incorrectly applied ion this case the 7, Youngblood,217 W.Va. at n. 618 542 S.E.2d at principle concerning nonsuppressed of law new 551 n. 7. ly principle discovered That evidence. lawof generally states that a "new will be refused analysis impeach 17. We our limit to the issue of object the sole when of new evidence is to evidence, opposed exculpatory ment as evi impeach opposite discredit or witness on the dence, because that was the basis for the trial Crouch, 1, 272, Syl. pt. side.” State v. 191 W.Va. However, ruling. recognized court’s "[w]e (1994). S.E.2d 213 445 Crouch standard reflecting credibility key that evidence of a application no has in the context of the constitu prosecution witness be so material to the tionally required Brady under disclosure guilt qualify exculpatory issue of as to as matter Frazier, 935, See State v. 162 W.Va. Hatfield. prosecution constitutionally which the re (1979) ("The n. 942 253 S.E.2d 538 n. 5 quired to disclose under State v. Fort Flatfield." newly discovered evidence rule contained ner, 345, 354, S.E.2d 821 387 apply ] will where [Crouch not the State has (1989). material."). suppressed exculpatory "We have repeatedly recognized ... be distinction Cleckley 18. Professor has noted that there is a evidence, tween the ... disclosure of which is split authority among courts federal as to constitutionally undеr its mandated whether or evidence must be admissible to progeny, production pursu and the of evidence requirements Brady: come under implementing discovery.” to a court ant order Fortner, [Sjome prosecu- State v. W.Va. 353 n. courts have that the held words, duty S.E.2d 820 n. In other tor’s disclose is limited to information newly impeachment discovered evidence which would be evidence. admissible as Other suppressed meaning Brady question within the courts have held that the crucial trial; likely can form basis of a new whether material would to lead Flatfield so, newly impeachment end-product; whereas evi discovered admissible suppressed prosecutor duty dence that was not within the mean has a to disclose. ing Brady generally Cleckley, Virginia cannot form Stewart, West Criminal Procedure Flatfield the basis of a new trial. See State v. 757. Under this Court’s case law the note (1977) (carving purposes impeaching W.Va. S.E.2d out admissible its exception general nonsuppressed “[pjrior rule that have held author. We inconsistent eating Bolling, said Thanks her 4, v. 162 W.Va. Katara Syl. pt. State See for * * * (1978) (“Before Youngblood] p* Denver 103, prosecu [Mr. 246 S.E.2d under the of can occur doctrine torial error pictures Hope you love the evidence, it must be shown of suppression the microwave Clean suppressed would be rele that the evidence * yall’s my I a* all of tooth Brushed with trial.”). at the criminal We to an issue vant Brushes! it does. believe my it has the ice because Don’t eat cream * * * that Mr. During the Katara testified triаl p* all it! smell perform to oral sex Youngblood forced her * me ever talk sh* about because Don’t no There was him on occasions. * on two * a *!!! pay backs are b* performed Youngblood that Mr. evidence * * *! my boogers B* You smoked During testimony act on Katara. added). (Emphasis Wendy they Kimberly both stated of that Katara told Clearly suggests this note informed them of that Katara never Wendy Kimberly or that Mr. Young- occurring between Mr. sexual act that she performed oral sex her-and was found and herself. The that was blood grateful Mr. could for this. Miles’ home was inconsistent with at Ms. only during the trial not to used this evidence Kimberly Wendy.19 testimony of or either Kimberly Wendy, impeach or but also Pitner, Mr. stated the addressed to variety questioning logically explore a of following: allegedly made from the statement flows Only! is for Joe! This Kimberly Wendy.20 or Conse- Katara IMPORTANT quently, impeachment the note was favorable you You can read it want! Youngblood. to Mr. See United evidence (11th Arnold, 1308, States v. F.3d you your do like we did to How what (“An Cir.1997) analysis taped conver- of house! provides favorable evidence sations got just played! You defense, of impeachment in terms Run, long you got In one who testimony of contradictions of * * * f* *! witness.”). key the government’s away your everything medicine Throw (2) suppressed by The evidence was cabinet! already determined that State. We have body good Milk does with TIDE! knowledge imput evidentiary ** you F* a* *holes!!!H facts Consequently, ed to the State. clearly sup- show the State hope they you out this case I lack [Kimberly given by prosecution witnesses in a criminal the statements statements confirm, WendyJ yes, it indeed impeachment purposes so we can their are for case admissible handwriting.” The denied the re- lay any particular trial court the need to foundation without 5, Sette, quest. Syl. pt. for their admission." 161 W.Va. 242 S.E.2d 464 See also Hall, course, State v. 329 S.E.2d that the im Of it is no moment (1985) ("Impeachment of can a witness peachment may two be of one of the wit through cross- occur several methods. One The United Court has nesses. examination on a inconsistent statement. impeachment made clear that "the effective technique Another is to offer witness whose eyewitness new trial can call for a even one directly with wit- is inconsistent the first though the attack does not extend ness's.”). Kyles, 514 U.S. at S.Ct. at others[.]” Illinois, Napue 360 U.S. 1571. See also 1173, 1177, writing suppressed by 19. Because this 3 L.Ed.2d State, ("The opportuni- has not had jury's an and reli estimate the truthfulness determine, ty through handwriting expert given ability well be determina of a witness admission, innocence, During girl guilt upon wrote the it is which note. tive of such hearing possible post-trial for ihe interest of the wit counsel factors as subtle falsely testifying get a defendant's life or asked "leave of Court to a hand- blood ness may depend.”). writing expert analyze conjunction liberty this in by abandoning way paper, it and at- threw the pressed the note notebook with this I destroyed.21 put my tempting to it it underneath cabinet. have testimony Trooper Ms. Miles’ about Peer’s During investigation charges into the of the note review and instructions to throw Trooper against Youngblood, Mr. A.T. Peer away daughter, it were corroborated her Trooper to the home of Ms. Miles. went present ‍​​‌​‌‌‌​​‌​‌​​‌​​​​‌‌​​​​‌​​​‌​‌​‌‌​​​​​​​‌‌‌‌‌​‍who was at the time: and informed Ms. Peer had search warrant Q. you Do idea whether or Miles that he needed to search her house for Trooper not Peer read that note? pertaining charges against to the evidence Youngblood.22 Trooper Yes, After con- Mr. Peer A. I do. cluded his search he left the home. Two Q. You know? days later Ms. Miles that some of discovered standing A. I was there when he read

her food and household items had been tam- it. pered during that time that Q. Okay. He read it out loud? blood and the others were her home. Ms. No, didn’t, A. he he read it to himself. in Miles stated that she also found the note telephone her notebook. After Miles Ms. Q. Was there discussion about throw- Trooper read the note she called Sub- Peer. ing things away throwing away? or articles sequently Trooper Peer came back to Ms. just go A. He told her ahead and gave following home. Miles’ Ms. Miles away the milk throw the note- throw testimony regarding Trooper Peer and the away. book note: Q. you hearing Do recall that? Q. you presented Is that A. Yes. your Trooper Peer when he came to

house? During Trooper post-trial testimony Peer’s deny reading note, he not did nor in- Yes,

A. it is. structing away. Ms. it In- Miles throw Q. On the second time? stead, Trooper alleged Peer that he had no Yes, A. it is. Contrary recollection of the incident.23 Q. you position, actually give Brady Did it to him or let the State’s neither nor Hat- yield him look? claim of failed recollection. field The uncontradicted recollection of events gave I A. him the notebook. It was daughter provide type Ms. Miles and her notebook, this, it wasn’t like inwas testimony must Hatfield actually gave notebook. I him it to yield to. just and he read it and he said throw said, everything away. just every- testimony daugh I throw Ms. Miles her Pitner, thing away. My nephew, Joe ter. inform this Court that the State was kept possession incarcerated and I I never of the note and ordered that it be sup- attempted 21. We will note that evidence is considered 23.The State has to characterize pressed when “the existence of the Trooper investiga- Peer's second visit as a new known, known, reasonably should have been regarding complaint tion of vandalism. We do government, the evidence was not other- interpret indicating Ms. Miles’ through wise available to the defendant the exer- Trooper report she called Peer to a vandalism diligence, government of reasonable and the cise testimony clearly Ms. incident. Miles' indicates willfully inadvertently n either the evi- withheld Trooper that she was not moved to call Peer until dence until it was too late for the defense to after she discovered the note. Insofar as Knight, make use of it.” United States v. it, nephew’s note also had her name on Mr. (7th Cir.2003). Under the F.3d facts Pitner, being she was concerned about that, through this case we do not believe charges pending against relevant to that were diligence, exercise of reasonable fact, testifying Mr. Pitner. In as to what she would have uncovered the note to trial. Trooper did with the note alter Peer told her to it, destroy put that "I under- Ms. Miles stated Trooper specifically searching Peer was cupboard my nephew spat neath the to show when he semen that Katara stated she out a trash got jail[.”] can at the residence. out of “showing that the favorable deeply by required is a troubled destroyed. We are reasonably put be taken to matter. This issue is evidence could in this conduct State’s light possible inadver case in such a different as fleeting matter the whole not a at in this case shows that confidence in the verdict.” Id. record undermine tence. 435, Finally, sup- obtained the search at Trooper personally Peer 115 S.Ct. 1566. warrant, seeking evidence of the in the specifically pressed evidence “must evaluated The record also Agurs, assault. of the entire record.” alleged sexual context Trooper ob that when Peer clearly shows at 2402. U.S. at 96 S.Ct. the name he knew the search warrant tained that Mr. In this case the record shows witness, Katara, and the complaining of the pas- Youngblood drove Katara and the other Thus, defendant, Youngblood. when Mr. sengers At the to two different residences. to Ms. Miles’ home returned Trooper Peer residence, home, Youngblood’s Mr. Ka- first containing the first name note read the and perform alleged tara that hе forced her to Youngblood, and a refer Mr. of Katara and Immediately him. after this inci- oral sex on two, between the we conduct ence to sexual Youngblood dent Mr. and Mr. Pitner left any must, rebuttable evi in the absence Although Mr. residence. dence, that he knew the note was presume gone, allegedly Pitner Katara did Mr. investigation.24 his involved with Wendy Kimberly that she was not inform sup believe the evidence Consequently, we engage in conduct Mr. forced to suppressed the ports finding that the State Further, Youngblood. all three left women keep ordering by failing to its note nearby to a house the residence went destruction. getting and called 911 seek assistance (3) material. Our fi- The evidence was home. No mention was made to the suppressed or not the inquiry nal is whether home, operator, that nor owner Youngblood’s Mr. de- note material to was perform forced to act on Katara was sex is, prejudiced the defense fense.25 That was Youngblood. All returned Mr. three women note. The State

by failure to disclose the Youngblood’s to Mr. home. Thereafter Mr. material and argues the note was not Youngblood Mr. all Pitner returned and changed the outcome of the could not have together five individuals drove off en route to way. disagree. any trial in We driving Pitner’s home. While to Mr. Mr. home, recognized, along Mr. mother has Pitner’s This Court Court, stopped engaged him and a brief conversa- with the United “ during if there tion. At no time this incident did material evidence is ‘[t]he that, evidence Katara state that she was the victim sexu- probability reasonable defense, Further, police officers ar- the result of al assault. two been disclosed to the response different. A on the scene in to the 911 call. proceeding would have been rived probability is a suffi Katara and the other two women denied probability’ ‘reasonable having importantly, called 911. More Katara confidence in the out cient to undermine ” Fortner, police informed the forced never she was come.’ State v. (quoting engage in a sexual act with Mr. 387 S.E.2d 667, 682, Eventually Bagley, 473 U.S. blood. all five individuals ended United Staten (1985)). up L.Ed.2d 481 at Mr. Pitner’s at the resi- home. While 105 S.Ct. showing Youngblood again allegedly Mr. forced Additionally, been said that “a dence it has perform him. materiality require Katara to oral sex on Subse- does not demonstration quently, the women were taken to and aban- that disclosure of the preponderance Hagerstown. Immediately ul after would have resulted doned suppressed evidence being dropped Hagerstown, at Katara left timately acquittal.” Kyles, off the defendant’s Wendy Kimberly telling All that is that she 1565. without 514 U.S. Miles, testify did not at trial nor did who was not a 25. Il is obvious Ms. officer, presented sig- police he call witnesses. He his defense believed the note was trained through investigation called did not cross examination of witnesses nificant to the and therefore Trooper away Peer. State. throw it as ordered her, i.e., performed the victim of a sex sexual assault. The oral Wendy’s police became involved after mother sexual conduct was Insofar consensual.28 Kimberly her and to sheriffs office to took suppressed, was never complain gave the two credibility able to assess the of each of the gun. alcohol and that he had a women Inso- witnesses, key through State’s three effective as Katara far was also with the women dur- questioning naturally that would have flowed incident, ing contacted her. through from the introduction of the note its during investigation complaint the was This particularly author. is crucial because contributing delinquency of to the of a minor weak, light the State’s case in was of evi that Katara first mentioned that she was the showing dence that an opportuni Katara had of a victim sexual assault. ty to protect flee and after herself the first along above facts must be considered alleged sexual when she assault went to a following key the points. house, with Mr. nearby police and when two officers charges blood’s defense to the sexual assault stopped and spoke with her. In view of all engaged that he and Katara in consensu- case, the evidence in we the believe that al sex.26 Katara at trial testified that Mr. that, is there a probability reasonable perform forced her to oral sex defense, the note been disclosed the testify him twice. Katara on failed that result of proceeding this would have been performed oral sex was on her. Katara testi- Kearns, different.29 See State v. 210 W.Va. Wendy fied that she did not inform nor Kim- (“In 167, 169, (2001) 812, 814 556 S.E.2d view berly Wendy about the Both forced sex. contradictory clear nature of the non- Kimberly testified that Katara did not inform potential disclosed statement and im [the] sexually them she was assaulted. pact jury ... its revelation to credibility assessment of the of the [victim’s] purposes opinion, For the of this testimony, this Court believes that pieces note contains three critical of evidence withholding State’s of the statement did vio First, jury that the did not hear.27 the note appellant’s rights[.]”); late constitutional clearly suggests that Katara informed either Hall, State v. Wendy S.E.2d Kimberly engaged that she (“Viewing the record aas Youngblood, conduct sexual with Mr. which whole, jury’s we conclude that verdict Wendy would be inconsistent or Kim with berly’s might testimony have been had the and the of Ka different been Second, allowed to contrary tara. hear Green’s inconsistent Katara’s testimo statement.”). ny, Therefore, suggests the note Mr. we find that performed Finally, oral sex the note State’s to turn over note violated her. failure suggests Thus, pleased Brady that Katara was the trial court Hatfield.30 During Youngblood’s improper 26. Mr. initial interview would be this Court to set for out having any with the he laundry ways denied potential in which list of However, purposes contact with Katara. for may be used. trial, his defense was that the sexual conduct was consensual. Mr. counsel in- 29. has been held "that once error is jury during closing arguments formed the that: material, found to be further harmless error re got You have Ellis, determine this consen- unnecessary[.]” view is United States v. uрon sual. You need to determine based Ka- (4th 1997). 121 F.3d Cir. See also Salm actions, night, lara['s] behaved ons, how she 203 W.Va. at 509 S.E.2d at 854 friends, described her herself and as to reviewing applying [Brady court has CTOJnce whether or not this seemed to be someone found constitutional error there is no need for exhibiting signs subject being to this act of review.”). further harmless-error gun pointed forced oral sex with a at her headf.j 30. We wish to make clear that our standard Brady. higher under is, than That Hatfield import any validity 27. We do not intend to Youngblood's] ”[d]isposition federal [Mr. note, contents of the issue that must be \, process rights, [Brady due under does not nec litigated during the retrial. essarily process right of due resolve his under Osakalumi, |.” Although pointed we have out three State v. W.Va. [Hatfield 765, issues note, (1995). Therefore, ways that flow from the there are other 461 S.E.2d However, Supreme grant which this note been could have used. should the United Court States N., undisputed Katara it is Youngblood’s motion denying erred assaults, is not Youngblood’s sexual victim of

for a new trial. impeachment even this subject since of the United Court Court IV. year old victim agree that this sixteen CONCLUSION Since neither the note’s author. was not convicting and order dispositive The circuit court’s are in this Brady nor Hatfield Youngblood is sentencing reversed Majority’s characteriza- and since on all new trial this case remanded as one of constitutional tion of this issue serve, charges. magnitude under federal cannot legal law, to imbue note with state Reversed and Remanded. have, I dis- significance simply does relating af- ordinary sent. The standard Justice, BENJAMIN, dissenting: applicable ter-acquired evidence instead 2007) (Filed 15, May court, case, having heard circuit this and the opinion attempts to sanitize Majority The testimony, appropriately. acted the weapon provide his and Youngblood, hide compelling. factual The State’s case was script with a to follow for cross-examina- him easily enough jury to have for the newly-awarded upon the tion at his trial —all was regard- Youngblood for crimes his misguided premise that the of Mor- convicted citizens respect note. With to the sexual County jury below less of the gan who served on the estab- charges, the State’s case was Youngblood innocent of assault might found year assaults, by victim’s testi- exposure, the sixteen old indecent lished two sexual mony completely with endangerment was consistent brandishing with which and wanton physical at the scene to a the evidence recovered handgun a if the defense had access not Youngblood While did provenance accuracy of crime. note the and of which is trial, voluntary gave he testify statement highly questionable.1 authorship This of this at ob- note, investigators without Majority impor- to was introduced which the contends evidence, jection. devastating to statement was impeachment is not known. This tant Young- Majority in that it apparently Youngblood believes established And while the by affirmatively investigators to about subject impeachment lied to blood someone is today findings of fact. It cаnnot be said again find that the to dis lo enter certiorari and failure forgeiy law that not a Brady, as a matter the note is ihe did not we wish to close note violate of witnesses, complaining unequivocally created to discredit clear we find that Hat make during especially not found since was ... has "This Court held been violated. has field analysis Without a definitive initial search. provisions of the Constitution of the '[t'Jhe one, it instances, some to obtain of the note or at least effort Virginia may, in State of West certain goes Majority far in apparent too require higher protection of than af standards vacating multiple impulsively precipitously and v. Federal Constitution.’ " State forded speculation, upon its own surmise 188, verdicts Mullens, 70, 90, 169, 650 221 W.Va. S.E.2d conjecture. 28, (No. February WL 33073 2006 2007) 4099850 2, Pauley Kelly, (quoting Syl. pt. 162 Kimberly Suppose K. a witness in is called as 672, (1979)). W.Va. 859 is to 255 S.E.2d This during her upcoming course of " Virginia protec say adopt free 'that to West any knowledge testimony of the denies own, long Virginia of as West does tions its so multiple acts of included admission to which ” rights.’ Flippo, federal State v. not diminish Next, Wendy the Pitner vandalism of residence? 560, 25, 170, n. n. 575 S.E.2d during her S. is called to stand and Carrico, 40, (2002) (quoting W.Va. State v. any knowledge the note. That denies also (1993)). 427 S.E.2d Majority. possibility addressed is not Majority suggests, Perhaps, the admissi- as the Perhaps, rushing upon bility set aside which instead the note is not condition obligation In blood’s on a document which is evaluated. convictions disclose Stale's authentication, however, case, evidentiary be connect- fail this Court should cannot approach adopted anyone the more no made as have instead sensible ed determination written, impeach- directing provision- is no then there the circuit court to order a when it it, exculpatory or oth- analysis whatsoever al or of the note to determine ment value interim and, hearing, following a the author or authors erwise. material, prosecution, night regarding proof to the is not happened that what purposes, of, him performed of the act “unless the information consists the scene to, throughout directly gun and about the he used or would lead evidence admissible impeach commission of his criminal at trial for either substantive acts— gun, had a purposes.” contended while he Phillip, ment States v. United (6th “just Cir.1991); plastic one”! 948 F.2d United Kennedy, 890 F.2d 1059-60 regard evidence of the State (9th Cir.1989), denied, cert. 494 U.S. against the first sexual assault committed 108 L.E.2d 484 Inad placed Katara N. was that is, definition, missible evidence its against per- revolver her head and made her Brady purposes material for because it never him. form oral sex on later would have reached the and therefore pointed the at his friend and accom- revolver could not have affected the trial’s outcome. Pitner, plice, Joseph prevent Pitner from Ranney, 1183, 1190 States v. 719 F.2d United Thereafter, Youngblood leaving the scene. (1st Cir.1983). determining In evi whether in the at the waived revolver vehicle prosecutor dence does not that the disclose women, 18, thereby agеs three 15 and could be defendant which used to committing brandishing two acts and one impeach prosecution witness is material to endangerment. act of wanton The wanton job the defendant’s it is the endangerment specifi- with the revolver was appellate court to determine what evidence Later, cally Wendy S. the revolv- directed admissible, technically be would what Youngblood sexually sight er was in when portion of that evidence the trial court would Katara N. a It assaulted second time.2 granted allow the under discretion the in Majority’s indeed unfortunate that the trial court under our rules of evidence deal trial, gift Youngblood rush to a new it with admissibility ing spe with the of evidence of ignores compelling nature of the the State’s impeachment pur cific acts of a witness for physical Katara ac- confirmation of N.’s (7th Veras, poses. v. 51 F.3d U.S. devastating count and the effect which 608(b) Cir.1995); see also Rule of the West attempt Youngblood’s affirmative to mislead Virginia Rules of Evidence. investigators jury’s had on the ver- reasoned guilt. dict of Sadly, Majority attempts the no such de- by vacating guilty to its provided Information withheld or not termination Majority prosecution, the even if at the time verdicts below.4 Rather the seems unknown may opinion Majority’s perhaps in filed in 4.The to reverse be As indicated the the rush based, required Youngblood part, to wear a at least in on its mistaken belief that circuit court stun was, during Supreme process, part, the United Court's remand belt cause, the voir dire in be- instead, hеrein, By charges the terms of a reversal. It was not. in addition to the itself, commonly facing felony charge the order what is referred to as murder in blood was order, simply a "GVR” this case was remanded another case. Youngblood's review of for the benefit of our Brady, claim: this Court is to reach the merits “If Youngblood’s sperm 3. Law enforcement located have the benefit of this it would be better to exactly can at where in a trash Pitner's residence Appeals Supreme of the views of the full Court of the Katara N. stated that evidence of sexual Young Virginia West issue.” According the rec- assault would be found. - -, Virginia, U.S. blood West 2188, 2190, ord, Trooper Peer that when he asked testified (2006) (emphasis 165 L.Ed.2d 269 anyway your sperm there [sic] “is added). ac The United States Court's Joe’s?”, Youngblood in can could be a trash simply language tual in the remand order does accuracy Youngblood’s responded, "no." This belief, Majority’s apparent comport with the investigators untruthful statement was con- opinion, that the as reflected in footnote of its Youngblood's written which firmed in statement may prima "a GVR order instead have been facie objection trial was introduced without at his judgment that the below is in [determination] and which evidence in the below Martin, GVR,” "Gaming Citing error.” Youngblood’s account of what tran- record of (2004) (internal quota Ariz.St.LJ. 564-5 goes spired. saying without that this sexual omitted). tions and citations act, evidence, by physical verified is not the same misunderstanding appears involving Young- Majority's type purportedly The of sexual act misapprehension of how the GVR Katara N. which was referenced in the stem from its blood and Chater, actually applied order was in Lawrence note at issue. blindly plunge ques- into note ply forward not credible on its face. The makes content to act to no mention whatsoever to the sexual by relying conjec- legal channels on tionable testified, N. which which Katara guess- supposition founded on ture based (which available denied his statement was attempt made to ascertain work. No jury), physically veri- to the which was note or to determine its provenance of the by objective evidence of the investi- fied authenticity supposedly found note—a admitted into the record. gation which was family control of members of and within the hearsay for impermissibly if offered as Even accomplice, Pitner. In antici- asserted, refer- the truth therein trial, Majority states pation of the new purported act ences a different sexual out, might brought this time in be which there is no other mention whatsoever note, conjunction the unidentified Thus, proper record of this case. ability N. to flee after the Katara had the complete surrounding circumstances the ac- or to speak first assault unconvincing tual evidence at and the they containing approached the vehicle when question support nature of the note do not assumption simply the three women. This potential import of the which the ignores physical support at the scene Majority attempts suggest.5 Katara account the crime which verifies N.’s Brady. The State did not violate Youngblood to have lied about and shows credible, even would not have made ignores Youngblood’s events. It also state- because, in the difference trial’s result while weapon perpetrate ment about the he used to argued that the note could have that, his crimes. It must be remembered (which impeached its author not Katara assault, point of the second sexual N.), it could not have come in for substantive evidence indicated that had al- consideration because it was ready by placing used the revolver twice: Furthermore, hearsay. inadmissible during it to Katara N.’s head the first sexual accuracy fully powerfully un note’s (2) by preventing Pitner from assault (in by Youngblood’s dermined own statement According leaving the scene. to the State’s which he admitted to no sexual act Katara evidence, Youngblood unrefuted threat- also affirmatively N. whatsoever and which he ened all three women with the revolver and objective investigators) physi lied to and the sight during in had it the second sexual by investigators cal evidence found at the assault. of the crime Ka- scene which substantiated Furthermore, respect Youngblood’s happened.6 with tara N.’s account of what The N., simply of Katara sim- note was not material.7 sexual assault the note is Moreover, Majority opinion incorrectly 133 L.Ed.2d 5. the 516 U.S. (1996), compared states that the residences of to this case. Justice Scalia's Pitner, proves noteworthy illuminating where the sexual were said to dissent above assaults Therein, place, Berkeley Springs. have taken were in Majority's As the error. Justice Scalia ob- original opinion, in indicated this Court’s howev- serves that the GVR in the order instant case near, er, Youngblood and Pitner lived or in the does not fall within of the Court’s GVR of, Berkeley Springs, Wendy and when area S. cases: call, made the 911 she stated that she and the Supreme] [United The Court not does other two women were at unknown an location. flabby adopted invoke the standard in even Lawrence, namely a whether there is “reason- probability Youngblood's sought throughout able that the decision below rests 6. counsel Ka- upon premise credibility. testimony a that the lower court would tara N.’s to attack her Ob- given viously, jury agree reject opportunity the did all for further con- not considered together compelled of the evidence which them U.S. at sideration.” 516 S.Ct. guilty equally return a verdict. It is obvious L.Ed.2d at credibility - U.S. -, 2191-92, Katara that the trusted N. 126 S.Ct. at 165 L.Ed.2d Youngblood present Thus, more so tiran the account of (Scalia, J., dissenting). at -- con voluntary given investigators in statement conclusion, his trary Majority’s to the the remand objec- admitted into evidence which was without thinly herein is not a veiled direction to alter our tion. Rather, recognizes an order that course. Brady pertinent that the in decision this case. requires regarding Youngblood’s this Court to determine whether we 7. A comment contention anything Brady upon appro- believe a different demands that he relied a defense of consent is Majority accepts question Nothing priate. result. That is all. more. The without stated, Simply prosecution’s failure to sexual assaults. The note did not fall within may a note that disclose served as category impeachment evidence con- possible impeachment for a material corrobo- exculpatory sidered to be so the out- prosecution rating credibility, witness’s did come have been different. a since constitute violation Finally, Majority sets forth a misstate- fails to blood show that the would have introductory ment of the law its discussion. put light the whole case in such a different as remanding In for a upon case new trial to undermine confidence in the verdict. Nei- charges, Majority, citing all a case involv- Kimberly Wendy princi- ther K. nor S. were ing law, ‍​​‌​‌‌‌​​‌​‌​​‌​​​​‌‌​​​​‌​​​‌​‌​‌‌​​​​​​​‌‌‌‌‌​‍that, contract except states for the pal against Youngblood witnesses on the sex- Brady issue, the “resolution” of the remain- charges, ual nor their assault ing issues remain the law the case on glue prosecution’s “the that held the case remand to the circuit court. That is incor- Schriro, together.” Schad F.Supp.2d point, At rect. this the law of upon the case (D.Ariz.2006), quoting Horton v. 404(b) remand is not that Rule Cir.2005). (9th Mayle, 408 F.3d be will admitted or that will Majority post-trial also revisits the necessarily wear stun belt. Those issues concerning hearing quotes the note and testi- among are matters to determined anew mony therefrom disregarding while the con- upon evidentiary proffers at a future trial. reached Finding clusion the circuit court. aside, The sexual assault convictions the Ma- type that the note was not the of evidence jority even holds that longer no trial, justifying a new court circuit stated exposure, stands convicted of indecent brand- that, although might have been used ishing endangerment and wanton impeachment: revolver.8 looking the Court would however Youngblood’s convictions should have been gratitude note not see it an as act or Accordingly, affirmed. I dissent. receipt thankfulness for of sexual attention spiteful but it as rather a sees vindictive irony get-back STARCHER,

act Justice, this rather bitter concurring. appears for an offense is what the note (Filed 12, 2007) June read. join I majority opinion sepa- and write Contrary opinion Majority, rately points. to address several this call for court the circuit to make First, following evidentiary hearing, opinion characterize written giving “gift” Court should have been to set a Justice of this as reluctant aside Court to a convictions, defendant, does, particularly the criminal dissent legally distinguishable jurist convictions from mistaken. responsible the No will reverse Youngblood by contending pened, might that defended himself it have been consensual—and this any that sexual encounter was consensual. A by jury inconsistency of realization the the enlightening. of the review record is No where Youngblood’s positions initial and ultimate no opening Youngblood's in the statement of coun- Youngblood, doubt was not beneficial to as evi- any Youngblood sel there is indication that in- jury's denced the verdict. to use a tended defense of consent. No where in Youngblood's case is there an indication that Majority opinion: As the later states in the Katara N.’s oral sex on was consen- "[Bjecause charges factually all of the were in- Youngblood's No where in sual. case was of tertwined our resolution the and Hat- question evidence introduced to the statements disposition impacts issue of all the of the field investigators, made to which were However, charges." although ques- the events in record, part amade of the evidence for such that "complete part story” tion of a or continu- activity place would be at the not found of ing episode, not mean that does that all of the once, activity. Only closing, the did convictions, differing legal each with elements respect blood's counsel reference consent violations, weapon such as the should be set being the of Katara N. issue forced to have oral Rather, intertwining aside. the nature of the presence gun. sex on in the of a The appropriately events more related jury certainly cognizant to the basis for of this shift from 404(b) admitting Youngblood’s position the evidence in initial Rule the first in his statement and that, attorney's suggestion hap- place. later if his

38 10 373 L.Ed.2d there fide U.S. unless bona verdict (1963). legal has oc- unfairness that serious belief “gift” fair trial is not a And a curred. (cid:127) note, no idea who wrote the We have —it every defendant. right of written, when it where was writ- ten, why it was written. or even Second, simple legal reason- facts and (cid:127) authentic, note, hearsay-if even by the underlying the result reached ing hearsay-and clearly not would double case were instant majority opinion during a re-trial. not admissible be by the United States Su- clearly discerned (cid:127) it sent case back to preme Court when credible evidence that State There is no saw, read, touched, officer a docu- A obtained Trooper Court. Peer this Police question veracity of alleged into exculpatory that called ment or even heard of this witnesses; prosecution major evidentiary hearing more three one or note until the likely pow- been a years allegedly would the document after the note was writ- tool the defen- erful cross-examination ten and found co-defendant’s dant; should have been the document aunt. Be- by the State defendant. disclosed (cid:127) simply no credible evidence There is disclosed, newa the document was cause the destruction of Trooper Peer ordered simple. required. It is

trial is any note. (cid:127) very the fact that the I am troubled briefly Third, the issue address I want has majority this Court allowed the requirement court’s the circuit aunt, more than word of a co-defendant’s during a “stun belt” his trial. defendant wear alleged discovery years after the three exceptionally coer fearful Stun belts are credibility of a of the to tarnish only in the should be used cive devices Police officer. well-qualified State extraordinary situations. I beliеve most the use leading cases on (cid:127) of stun belts very setting dangerous This Court is during a are still U.S. defendants attributing precedent by knowledge to a Durham, People v. F.3d 1297 years Trooper three after the fact 1201, 124 Mar, Cal.Rptr.2d Cal.4th a co- solely upon based (2002). that this Court I also believe P.3d 95 relative, and then attribut- defendant’s reasoning these cases. should follow knowledge to ing alleged prose- courts, prosecutors, circuit behoove would cution. to cleave to these cases’ counsel and defense required This the Court determine case possible belt use teachings if the issue stun whether Mr. conviction should apply standard also a strict arises. I would potential due to a violation of reversed both harm and reversible presume and would Brady Maryland, 373 U.S. S.Ct. a stun a circuit use of belt —if error from the considering In L.Ed.2d thorough pre-use proce not follow court does majority’s decision this as indi- necessity dures, a stun belt’s to determine earlier, disturbing that Court cated it is non. propriety vel of a has the word co-defendant’s allowed relative, years I concur. Accordingly, than three after the more occurred,

alleged discovery credibility hardworking tarnish the Justice, MAYNARD, dissenting. well-qualified officer. State Police 2007) (Filed June majority opinion The states: “The testimo- This first out- strongly I dissent. dissent ny daughter and her inform this Ms. Miles all of the reasons for points lines with bullet possession in of the Court that the State was dissent, and then focuses in more detail destroyed. note that it be We and ordered importance. specific on a arеas few by State’s in deeply are conduct troubled (cid:127) exculpatory. note is not The majority opinion goes on The matter.” (cid:127) sup- that the “State specifically in to conclude majority ruling of stands by failing keep to it and pressed Brady Maryland,

stark contrast ordering strongly Q. its destruction.” These You were complaining about that unfairly worded conclusions in the ma- him? jority wholly by opinion unsupported are Right. A. considering record before this Court. After Q. You complaining to him below, about testimony

all of the it is inconceivable vandalism that your had in majority occurred me how the could conclude that home? Trooper destroy Peer “ordered” Ms. Miles to

the note. A. That is correct. fully explain problems In order to Q. Is that a fair why you assessment of majority opinion, explore we must some had called him out there? underlying glossed facts either over or ignored completely by First, why A. majority. That is I called him out there to milk, why my let you us be clear about smell officer was at could smell sham- day. poo up Ms. Miles’ home that He in it and showed all lands of stuff. I there, Ms. following Miles’ home a call from called him out her I him wanted Katara, stating Kimberly, Wendy see himself [for] and smell him- [for self], many had vandalized of her household I items when found the note. milk, including cream, medicines, ice and her Peer, Trooper hand, explained other family’s According tooth brushes. to Ms. and testified under oath that he had not seen Miles, that was when she showed the officer the note and did not instruct Ms. Miles to supposedly the note and thаt he her to told away. did, however, throw He recall the away damaged throw it with the items of conversation with Ms. Miles wherein she told regal'd food. Her in that was as him that some of her household items had follows: tampered with, upon been which he instruct- Q. you explain Could what simply ed her to throw those items happened? Questioning Trooper trash. Peer days A. Two after [the collected prosecution aswas follows: home,] my other evidence from I Q. you Do recall concerning the events shampoo my found milk and all complaint Ms. Miles’ about her milk or things happened my kinds of food. items in her house? keep phone I my phone book phone in that going- book when I was A. Yes. through get out, my bills I seen a Q. Okay. you Tell us what recall about I note. called Officer Peer back two that? days up later and he came and he at it. A. I can’t. I going looked I told him about don’t recall out there. shampoo my thought milk I she phone and all he told to had made a call everything away, me was to to the office and told me that throw there everything throw something placed out. been milk her shampoo something. I don’t Q. Now, apparently your been, house had remember the exact conversation but guess, I trashed? probably I just dispose did tell her to my stuff, A. yes. Vandalized food and of it. During prosecu- cross examination Q. Okay. why you And would have told tion, following exchange occurred with dispose her to of it? Ms. Miles. Q. youDo know who wrote note? milk, A. If something there was in her I mean, I No, ma'am, wouldn’t have A. I wanted to drink sure dоn’t. it neither. Q. Trooper you When Peer told to throw talking your the stuff out he was about Q. any You didn’t deem it to be criminal shampoo? milk and point violation that in time on based Well, A. I assumed that. going what was on? mean, No, working I A. was Correct.

A. I didn’t see where some- assault Q. Again, just a vandalism com- placed any- in milk had thing being shampoo? milk and plaint about some that. thing to do with A. Yes. any seeing you have recollection Q. Do subsequent During recross-examination a note? counsel, Youngblood’s Trooper Mr. Peer re- No, I A. don’t. that he mained steadfast in the fact did not you copy Q. prior to this I showed note. see the note], cor- Defendant’s Exhibit [The Q. days So within a few after inci- rect? dent, you doing presume since I Yes. A. just things other than other provided me from Q. That was to defense mean, I correct? that counsel, you any recollection do have A. Yes. having seen that? Q. possible you may not It is that have your No, copy A. I don’t. I looked if you realized had been shown the this, I you had to don’t that note or the note had been described to seeing this. recall you you presented you, or your understanding Ms. Q. And of Miles’ significance have realized the vandalism? complaint had to do with or in the note at note what was least A. Correct. point at that in time since it investigation? commencement of Q. Complaint nothing had to do with sex- assault? ual seeing I don’t A. remember note. A. Correct. Q. you having But we at least recall know Ms. al- conversation with Miles Trooper During cross examination of Peer you though recall the notе? don’t counsel, Youngblood’s following exchange occurred. A. Yes. you you Q. And indicate that do acknowl- you Q. general gist And agree you do edge or recall a discussion with consistent conversation was with being van- Ms. Miles about her house testimony? her dalized? A. Yes. shampoo something, milk or A. About clearly Trooper testimony Peer’s shows yes. posses- that he did not the note into his take you Q. you recall do recall her And that he sion and was never shown note. any any making note or reference unwavering unequivocal His explained what had document that Nevertheless, majority fact. on that ac- findings were con- occurred her cepts story Miles’ that more than three Ms. with sistent the note? home, Trooper her years after Peer came to No, I A. don’t. conviction, and after Ms. Trooper questioning, Peer During further suddenly Miles the note in a re-discovered specifically explained that he did not recollect during can a discussion with trash investi- day. actually going to Ms. Miles’ home gator Youngblood. majority for Mr. The However, alleged discussing the he did recall appears Trooper Peer believe telephone Ms. Miles. vandalism rogue cop who Ms. Miles to ordered throw mind, following questioning With away potentially evidence that was beneficial Trooper prosecutor Peer occurred. jail. nephew majority to her who was you appears Troop- Miles over

Q. go out there also believe Ms. Even did your testimony today despite that Ms. Miles is it er Peer the fact had house lie, Trooper fact that had you having no of ever motive and the recollection none, ignores the fact that if he that note? Peer seen destruction, he wanted to ensure note’s 650 S.E.2d 140 simply could have taken the note with him BARBINA, Individually John destroyed himself rather than order A.B., Infant, Parent as majority’s Ms. Miles to do it. The convolut- Below, Appellant, Plaintiff analysis just any ed does not make sense. readily recognize Brady Maryland, I that in

sup ra, there was a case of a clear state violating process. to right a citizen’s due CURRY; Curry; Kelley A. Charles prosecution in Brady withheld a written Department Virginia West of Health clearly confession that was material to Resources; Glover; and Human Lori however, Brady, defense of that defendant. Sinclair, Taylor Clark as Sheriff of monumentally in distinguishable from the County, Valley Virginia; West Com stant regard Youngblood, case. With prehensive Community Mental Health there is insufficient credible both Center, Inc., Below, Appel Defendants support alleged exculpatory the existence of lees. evidence or that the State had knowl edge No. 33102. Trooper of it. If did not Peer see note, not, and he under said oath he did Appeals Court of knowledge then imput the note cannot be Virginia. West Also, prosecutor. ed to the if Trooper Peer obviously did not see he could not Submitted: Jan. 2007. it, destroyed, have withheld ordered suppressed any way. it in Decided: Feb. discrepancies

There are obvious in Ms.

Miles’ evaluation of between

time she discussed her tainted milk ice Trooper

cream with Peer and the time ‍​​‌​‌‌‌​​‌​‌​​‌​​​​‌‌​​​​‌​​​‌​‌​‌‌​​​​​​​‌‌‌‌‌​‍she Youngblood’s investigator

met with Mr. three

years Perhaps equally troubling, later. earlier,

discussed is the fact this Court

siding with a co-defendant’s relative with gain, testimony

much over expe- of an public nothing

rienced servant who

gain by lying about the note. The true fact origin

is that we not even do know specifically

note as far as who wrote it Moreover,

even when it was written.

believe that the State withheld evidence you

this everything ease have to believe

Ms. nothing Troop- Miles has stated and says. simple.

er Peer is that I believe setting very dangerous Court is prece- by attributing knowledge

dent years

Trooper three after the fact based

solely upon of co-defendant’s

relative, attributing alleged and then

knowledge prosecutor.

Therefore, above, for the set forth reasons respectfully

I dissent.

Case Details

Case Name: State v. Youngblood

Court Name: West Virginia Supreme Court

Date Published: Jun 27, 2007

Citation: 650 S.E.2d 119

Docket Number: 31765

Court Abbreviation: W. Va.