          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA



                                 January 2014 Term                FILED
                                    __________               February 5, 2014
                                                               released at 3:00 p.m.
                                    No. 12-1249                RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                    __________                   OF WEST VIRGINIA


                          STATE OF WEST VIRGINIA,

                           Plaintiff Below, Respondent


                                         v.

                     ORBAN HENRY SCHLATMAN, JR.,

                          Defendant Below, Petitioner

          ______________________________________________________

                   Appeal from the Circuit Court of Fayette County

                        Honorable Paul M. Blake, Jr., Judge

                             Civil Action No. 10-F-41


                               AFFIRMED

        _________________________________________________________

                             Submitted: January15, 2014

                               Filed: February 5, 2014



David S. Hart, Esq.	                          Patrick Morissey, Esq.
Hayden & Hart, PLLC	                          Attorney General
Beckley, West Virginia	                       Laura Young, Esq.
Counsel for Petitioner	                       Assistant Attorney General
                                              Charleston, West Virginia
                                              Counsel for Respondent




The Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT




              1. “An appellate court is obligated to see that the guarantee of a fair trial under

Section 10 of Article III of the West Virginia Constitution is honored. Thus, only where

there is a high probability that an error of due process proportion did not contribute to the

criminal conviction will an appellate court affirm. High probability requires that an appellate

court possess a sure conviction that the error did not prejudice the defendant.” Syl. Pt. 11,

State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).



              2. “Where a trial court is presented with a defendant’s failure to disclose the

identity of witnesses in compliance with West Virginia Rule of Criminal Procedure 16, the

trial court must inquire into the reasons for the defendant’s failure to comply with the

discovery request. If the explanation offered indicates that the omission of the witness’

identity was willful and motivated by a desire to obtain a tactical advantage that would

minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence,

it is consistent with the purposes of the compulsory process clause of the sixth amendment

to the United States Constitution and article II[I], § 14 of the West Virginia Constitution to

preclude the witness from testifying.” Syl. Pt. 1, State v. Ward, 188 W.Va. 380, 424 S.E.2d

725 (1991).




                                               i
              3. “Before any in camera inspection of statutorily protected communications

can be justified, a defendant must show both relevancy and a legitimate need for access to

the communications. This preliminary showing is not met by bald and unilluminating

allegations that the protected communications could be relevant or that the very

circumstances of the communications indicate they are likely to be relevant or material to the

case. Similarly, an assertion that inspection of the communications is needed only for a

possible attack on credibility is also rejected. On the other hand, if a defendant can establish

by credible evidence that the protected communications are likely to be useful to his defense,

the trial judge should review the communications in camera.” Syl. Pt. 3, State v. Roy, 194

W.Va. 276, 460 S.E.2d 277 (1995).




                                               ii
Per Curiam:



              Petitioner Orban Henry Schlatman, Jr., appeals from the June 28, 2010, order

of the Circuit Court of Fayette County sentencing and committing him for the offense of

sexual assault in the second degree.1 Seeking a reversal of his conviction and a new trial,

Mr. Schlatman argues that his right to a fair trial was violated through the exclusion of a

defense witness and the denial of his request to inspect the victim’s medical and

psychological records. Having carefully reviewed the submitted record in this case against

the averments of error asserted by the petitioner, we find no error and, accordingly, affirm.



                        I. Factual and Procedural Background

              Through the filing of a criminal complaint on July 16, 2009, the State charged

the petitioner with sexual assault in the second degree. Detective G. A. Chapman of the

Fayette County Sheriff’s Department received a complaint from Edie E.2 on June 24, 2009,

who claimed that her daughter, ALM, disclosed during a counseling session that she had

been sexually assaulted by Mr. Schlatman. According to ALM, the petitioner stopped by


       1
       For purposes of appeal, the petitioner was resentenced twice, first by order entered
on October 19, 2011, and then by order entered on September 13, 2012.
       2
       Consistent with our practice of protecting minor victims, we identify both the victim
and her mother through the use of initials only. See State ex rel. West Virginia Dep’t of
Human Servs. v. Cheryl M., 177 W.Va. 688, 689 n.1, 356 S.E.2d 181, 182 n.1 (1987); W.Va.
R. App. P. 40(e)(1).

                                             1

her school bus stop on the morning of April 10, 2009.3 Because it was raining, ALM

accepted Mr. Schlatman’s offer to give her a ride to school. Instead of taking her directly

to school, the petitioner drove to an area where there were abandoned Broughton milk

trailers.4 Sensing something was amiss, ALM exited the stopped vehicle and ran into one

of the trailers. Because there was no lock on the trailer door, Mr. Schlatman was able to

follow ALM into the trailer. According to ALM, the petitioner pushed her to the floor,

removed both her pants and her underwear, and proceeded to sexually assault her.



              Following the assault, ALM got dressed. The petitioner instructed her to get

back into his vehicle and he then drove her to school. In explanation of why she did not

report the incident on the date it occurred, ALM stated she was afraid that no one would

believe her. After the date of the sexual assault, the victim indicated that she did not see Mr.

Schlatman again.



              When Mr. Schlatman was questioned by the police, he acknowledged that he

knew ALM. Rather than an act of sexual assault, however, he claimed that the sexual act that




       3
        The victim in this case was sixteen years old at the time of the assault and the
perpetrator was forty-eight years old.
       4
        Although the trailers had been removed when the police went to investigate, law
enforcement was able to verify that the described trailers were at the reported location on the
date of the alleged assault.

                                               2

transpired on the date in question was consensual.5



                 Mr. Schlatman was indicted for second-degree sexual assault6 and the case

proceeded to trial on April 20, 2010. Following his conviction, the petitioner was sentenced

to an indeterminate term of not less than ten nor more than twenty-five years.7 It is from this

conviction and correspondent sentence that Mr. Schlatman now appeals.



                                     II. Standard of Review

                 The petitioner has asserted that he was denied his right to a fair trial in

connection with his conviction in this matter. Our review of this matter is governed by

syllabus point eleven of State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995), in which

we held:

                         An appellate court is obligated to see that the guarantee
                 of a fair trial under Section 10 of Article III of the West Virginia
                 Constitution is honored. Thus, only where there is a high
                 probability that an error of due process proportion did not
                 contribute to the criminal conviction will an appellate court


       5
        When initially questioned, Mr. Schlatman related that, on a date other than the date
of the alleged assault, the victim had voluntarily performed an act of oral sex on him in the
parking lot of a Holiday Inn. Upon being directed to the date in question, the petitioner
insisted the sexual act at issue was consensual.
       6
           The indictment was returned by the Fayette County Grand Jury on January 13, 2010.
       7
       Given the nature of his conviction, the petitioner was also sentenced to thirty years
of supervised release. See W.Va. Code § 62-12-26 (2010) (providing for extended
supervision for certain sex offenders).

                                                  3

               affirm. High probability requires that an appellate court possess
               a sure conviction that the error did not prejudice the defendant.

With this standard in mind, we proceed to determine whether the petitioner was denied a fair

trial as the result of a denial of due process.



                                        III. Discussion

               The petitioner seeks to overturn his conviction on two grounds. First, he

contends that his right to compulsory process guaranteed by the sixth amendment to the

federal constitution8 was violated because he was denied the right to compel a defense

witness to testify on his behalf. Second, he maintains that he was wrongly denied the right

to inspect the victim’s medical and psychological records. We will address each of these

assignments of error in turn.



                             A. Denial of Compulsory Process

               On the morning of trial, the State moved to exclude one of the defense

witnesses–Mr. Bryan Arrington.9 Although Mr. Arrington’s identity as a co-worker who

regularly rode to work with the petitioner was known before trial, not until 8:57 on the


       8
       The sixth amendment to the United States Constitution guarantees the accused in a
criminal trial “to have compulsory process for obtaining witnesses in his favor.” U.S. Const.
amend. VI.
       9
       At the time of the State’s motion, the jury had been impaneled but opening statements
had not been given.

                                                  4

morning of trial did the State learn that Mr. Arrington intended to testify he was with Mr.

Schlatman from 6:25 a.m. on the date of the alleged sexual assault until 7:30 a.m.10

Previously, Mr. Arrington had indicated he had no memory of the date in question. Given

that the victim exposited in her statement that she was picked up by Mr. Schlatman at

approximately 6:15 a.m., the ten-minute period between when she got into the petitioner’s

vehicle and when Mr. Arrington was purportedly picked up by Mr. Schlatman suggested that

Mr. Arrington’s testimony would be that of an alibi witness.



                 The State moved to exclude Mr. Arrington as a defense witness under Rule

12.1 of the Rules of Criminal Procedure. Under that rule, an alibi witness is required to be

disclosed to the State no later than ten days before trial. See W.Va. R. Crim. P. 12.1. Failure

to comply with the requirements of Rule 12.1 includes the possible exclusion of an alibi

witness. See id. at 12.1(d); State v. Fields, 225 W.Va. 753, 759-60, 696 S.E.2d 269, 275-76

(2010) (recognizing trial court’s authority under Rule 12.1 to impose sanction of excluding

alibi witnesses). After listening to the arguments advanced by the State11 in support of

excluding Mr. Arrington, the trial court granted the State’s motion, ruling that the “witness

       10
            Their work day began at 7:30 a.m.
       11
        The prosecutor explained that he had first learned of the defendant’s intention to call
Mr. Arrington as a witness five days prior to trial. Due to the prosecutor’s schedule,
however, the first opportunity for him to speak to Mr. Arrington was the morning of trial.
While the prosecutor was quick to absolve defense counsel of any fault with regard to the last
minute disclosure, he was adamant that Mr. Arrington’s testimony would violate the
provisions of Rule 12.1.

                                                5

will not be allowed to testify as to alibi in this matter.” At this point, defense counsel asked

to vouch the record as to what Mr. Arrington’s testimony would have been. The trial court

permitted the record to be vouched.



              As the petitioner acknowledges, the testimony that Mr. Arrington would have

given was “limited.” In vouching the record as to his expected testimony, defense counsel

submitted the written statement Mr. Arrington had given to the police on the morning of trial.

In this statement, Mr. Arrington indicated he had no specific recall of the date in question but

that “[i]f time records show both [of us were] there that day then we rode together [as] [h]e

was my only ride.” Also included in his statement was the fact that the petitioner routinely

picked Mr. Arrington up for work between 6:25 and 6:30 a.m.



              Extrapolating from this statement, the petitioner argues that “it is clear from

Mr. Arrington’s statement that his failure to remember the day of the alleged sexual assault

specifically would suggest that he didn’t notice any difference in Mr. Schlatman’s

appearance or demeanor, blood on Mr. Schlatman’s clothing or injuries to Mr. Schlatman’s

face.”12 With similar conviction, the petitioner advances that “[s]uch testimony would have

undercut the credibility of the alleged victim.”


       12
         With this explanation, the petitioner was responding to the victim’s trial testimony
that “she struck Mr. Schlatman in the face when he allegedly sexually assaulted her and that
she bled for a couple of hours after the assault.”

                                               6

                 Relying upon federal precedent, the petitioner maintains that his right to call

witnesses in his defense is grounded in the compulsory process clause of the sixth

amendment.13 See Taylor v. Illinois, 484 U.S. 400, 409 (1988) (recognizing right of criminal

defendant to present witnesses for purpose of establishing defense as fundamental element

of due process) (citing Washington v. Texas, 388 U.S. 14, 19 (1967)). The constitutional

concerns raised by the exclusion of an untimely-disclosed defense witness were addressed

by this Court in syllabus point one of State v. Ward, 188 W.Va. 380, 424 S.E.2d 725 (1991):

                         [W]here a trial court is presented with a defendant’s
                 failure to disclose the identity of witnesses in compliance with
                 West Virginia Rule of Criminal Procedure 16,14 the trial court
                 must inquire into the reasons for the defendant’s failure to
                 comply with the discovery request. If the explanation offered
                 indicates that the omission of the witness’ identity was willful
                 and motivated by a desire to obtain a tactical advantage that
                 would minimize the effectiveness of cross-examination and the
                 ability to adduce rebuttal evidence, it is consistent with the
                 purposes of the compulsory process clause of the sixth
                 amendment to the United States Constitution and article II[I], §
                 14 of the West Virginia Constitution to preclude the witness
                 from testifying.

188 W.Va. at 381, 424 S.E.2d at 726 (footnote added).



                 Applying the holding of Ward to this case, the petitioner contends that the

absence of any willfulness with regard to the timing of defense counsel’s disclosure of Mr.


       13
            See supra note 8.
       14
            Rule 16 governs discovery in criminal matters.

                                                7

Arrington as a witness militates in favor of permitting his testimony. In explanation of the

dilatory disclosure, the petitioner states that when Mr. Arrington was reinterviewed five days

before trial, he “was able to provide more detailed information that would have been helpful

to Mr. Schlatman.” When this was realized, Mr. Schlatman’s counsel immediately contacted

the State to reveal that Mr. Arrington would be called as a defense witness. Had Mr.

Arrington been permitted to testify at trial, the petitioner maintains that the jury would have

appreciated the “tight” window of time in which the alleged sexual assault could have taken

place. The petitioner advocates additionally that Mr. Arrington’s testimony “could further

have shown that there was nothing unusual about Mr. Schlatman’s work appearance on the

morning in question that would have been consistent with a violent sexual assault.”



               Responding to the petitioner’s arguments, the State questions whether Mr.

Schlatman preserved error on this issue. While defense counsel sought permission to and did

vouch the record as to the testimony of Mr. Arrington, no actual objection was made to the

trial court’s exclusion of Mr. Arrington as a defense witness. Consequently, the State argues

that the petitioner has waived his right to assert this error. See State v. Miller, 194 W.Va. 3,

17, 459 S.E.2d 114, 128 (1995) (recognizing that “‘the failure of a litigant to assert a right

in the trial court likely will result’ in the imposition of a procedural bar to an appeal of that

issue”) (quoting U.S. v. Calverly, 37 F.3d 160, 162 (5th Cir. 1994)). The State further

maintains that the issue fails to rise to the level of plain error. See generally Syl. Pt. 4, State


                                                8

v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988); see also Syl. Pt. 7, State v. LaRock, 196

W.Va. 294, 470 S.E.2d 613 (1996).



               Even assuming that error was preserved, the State contends that the petitioner

failed to comply with the provisions of Rule 12.1 for the disclosure of alibi witnesses.

Acting within its discretion, the trial court properly excluded Mr. Arrington as an alibi

witness. See W.Va. R. Crim. P. 12.1(d). Looking to the substance of Mr. Arrington’s

testimony, the State observes that his testimony would have been of limited value to the

petitioner. Due to the fact that Mr. Arrington remembered nothing about the date of the

alleged sexual assault, including whether he even worked that day,15 his testimony would

have been speculative. Based on his inability to recall the date in question, the State asserts

that Mr. Arrington’s testimony could not have served to undermine the victim’s credibility.

Because ALM did not testify that the petitioner had any noticeable physical effects such as

scratches or blood stains to his person as a result of the assault,16 the State further argues that

Mr. Arrington’s purported failure to notice such effects is of no moment.



               Upon our review of this issue, we find no abuse of discretion with regard to the

       15
         While the plant comptroller testified as to Mr. Schlatman being at work on the
subject date, she did not offer testimony as to Mr. Arrington’s presence at work on that date.
       16
       According to the petitioner, Mr. Arrington’s testimony would have discredited
ALM’s statement that she bled for several hours after the assault and that she struck Mr.
Schlatman in the face.

                                                9

trial court’s decision to apply the sanction expressly provided in Rule 12.1 of the Criminal

Rules of Procedure for the non-timely disclosure of an alibi witness. Mr. Arrington’s only

value as a witness, given his total lack of recall of the date in question, was to suggest that

the petitioner could not have had time to commit the alleged sexual assault between when he

picked ALM up from the school bus stop and when he later picked up Mr. Arrington. The

failure of the petitioner to prove that Mr. Arrington was at work on the date of the alleged

sexual assault17 combined with the petitioner’s seemingly unfounded representation that Mr.

Arrington, upon his requestioning by defense counsel just days before trial, “was able to

provide more detailed information,”18 convinces this Court that the trial court did not commit

error in excluding Mr. Arrington as a witness. And, as the provisions of Rule 12.1(d) make

clear, the exclusion of an alibi witness for non-compliance does not “limit the right of the

defendant to testify.” W.Va. R. Crim. P. 12.1(d). Had Mr. Schlatman chosen to testify as

to the impossibly short window of time during which the assault could have occurred, he

could have taken the stand to so testify.




       17
        While two illegible time cards were submitted as part of the record, there was no
testimony adduced at trial that Mr. Arrington reported for work on the date in question. See
supra note 15.
       18
        Given that the proffer of Mr. Arrington’s testimony was consistent with his original
statement that he had no specific recall of the date of the alleged assault, no additional details
appear to have surfaced during the pre-trial questioning.

                                               10

                                 B. Inspection of Victim’s Records

                  As an alternative ground for appeal, the petitioner asserts that he was wrongly

denied access to ALM’s medical and psychological records. During discovery of this case,

the petitioner filed a motion to compel discovery of exculpatory evidence pursuant to Brady

v. Maryland.19 Through this motion, Mr. Schlatman sought disclosure of records pertaining

to the victim’s purported hospitalization for psychiatric treatment as well as records related

to test results for sexually transmitted diseases.



                    After hearing argument on pending pre-trial motions on March 1, 2010, which

included the motion to compel exculpatory evidence, the trial court made the following

ruling:

                    1. The State has acknowledged their obligation to provide
                    exculpatory evidence which may be contained in the alleged
                    victim’s psychiatric, psychological and medical records and
                    toward that end have obtained the necessary releases to gather
                    those documents.

                    2. However, this Court is concerned that irrelevant confidential
                    information concerning the alleged victim could be provided
                    through discovery to the defense, shared with the defendant, and
                    broadcast to the public at large.

                    3. Therefore, the State shall review all gathered documentation
                    and disclose only that information which clearly falls under the
                    holdings of Brady v. Maryland, then, as an officer of the Court,
                    counsel for the defendant will review the remaining information


          19
               373 U.S. 83 (1963).

                                                  11

              and if she believes that any of the remaining information is
              relevant and necessary to properly defend her client, and the
              State disagrees, then this Court will review such documents, in
              camera.

              4. Unless formally disclosed by the State, or Ordered disclosed
              by this Court, the substance of such psychiatric, psychological
              and/or medical records of the alleged victim will not be
              disclosed to any person not an attorney involved in this case.



              Following the issuance of this ruling, the State provided the trial court with

records from Appalachian Psychiatric Services for review.20 By order entered on March 10,

2010, the trial court found that the submitted records did not contain any “exculpatory

evidence or impeachment evidence” and, consequently, would not be disclosed to the

petitioner.



              While acknowledging he had never inspected the subject records, the petitioner

nevertheless contends that “the disclosure of these records would have assisted [him] in his

defense” and that “the records are clearly relevant to [his] guilt or innocence.” Essentially,

Mr. Schlatman complains that without these records, the content of which is unknown to him,

he had no way to attack the victim’s claim that the petitioner stole her innocence. Based on

speculation only, he argues that this denied opportunity to inspect the victim’s treatment



       20
         In the enclosure letter dated March 4, 2010, counsel for the State indicated to the
trial court that he did not believe the records contained any exculpatory information.

                                             12

records necessarily violated his right to a fair trial.



               This Court has previously addressed the concerns that disclosure of a victim’s

medical and psychological records presents. When the defendant sought access to a victim’s

medical records in State v. Roy, 194 W.Va. 276, 460 S.E.2d 277 (1995), for the purpose of

discrediting the victim’s testimony concerning prior sexual activity, we stated the following:

                       Before any in camera inspection of statutorily protected
               communications can be justified, a defendant must show both
               relevancy and a legitimate need for access to the
               communications. This preliminary showing is not met by bald
               and unilluminating allegations that the protected
               communications could be relevant or that the very circumstances
               of the communications indicate they are likely to be relevant or
               material to the case. Similarly, an assertion that inspection of
               the communications is needed only for a possible attack on
               credibility is also rejected. On the other hand, if a defendant can
               establish by credible evidence that the protected
               communications are likely to be useful to his defense, the trial
               judge should review the communications in camera.

Id. at 279, 460 S.E.2d at 280, syl. pt. 3.



               In an attempt to distinguish his need for access to ALM’s confidential records

from our denial of access to such records in Roy, the petitioner argues that the records are

clearly relevant to his guilt or innocence. In making the affirmative statement that the subject

records would have allowed him to impeach the victim, Mr. Schlatman offers nothing more

than what we cautioned against in Roy: bold-faced intimations concerning the existence of


                                                13

relevant information. Given the obligation to uphold the law imposed on both the prosecutor

as an officer of the Court as well as on the trial court in conducting its independent review

of the subject records, we are left with the firm conviction that the documents at issue did not

contain information that would have assisted the petitioner in the defense of his case.



              Moreover, we agree with the State that the trial court adhered to the procedures

established in Roy for examining whether the privileged medical and psychological records

of a victim should be subject to disclosure. See also Syl. Pt. 3, Nelson v. Ferguson, 184

W.Va. 198, 399 S.E.2d 909 (1990).21 In this case, the records turned over to the trial court

in response to the State’s obligation to comply with Brady were determined to be devoid of

exculpatory content or impeachment value. Consequently, there was no obligation to

disclose these confidential treatment records to the petitioner.




       21
         “When the mental health records of a prospective witness are sought for the purpose
of impeaching the witness’ credibility, the circuit court should first examine the records ex
parte to determine if the request is frivolous. If the court finds probable cause to believe that
the mental health records contain material relevant to the credibility issue, counsel should
be allowed to examine the records, after which an in camera hearing should be held in
which the requesting party’s counsel designates the parts of the records he believes relevant,
and both sides present arguments on the relevancy of those parts.”

                                               14

                                     IV. Conclusion

              Upon our careful review of the record in this matter, we do not find evidence

of a denial of either due process or a fair trial. Accordingly, the June 28, 2010, sentencing

order of the Circuit Court of Fayette County is affirmed.

                                                                                Affirmed.




                                             15

