                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


State of West Virginia,
Plaintiff Below, Respondent                                                 FILED
                                                                        October 11, 2016
vs) No. 15-0932 (Preston County 15-F-3)                                     RORY L. PERRY II, CLERK
                                                                         SUPREME COURT OF APPEALS
                                                                              OF WEST VIRGINIA
Robert Watring,

Defendant Below, Petitioner



                              MEMORANDUM DECISION
        Petitioner Robert Watring, by counsel Jeremy B. Cooper, appeals the Circuit Court of
Preston County’s September 18, 2015, order denying his motion to vacate sentence and award a
new trial. Petitioner was convicted by a jury of two counts of wanton endangerment and one
count of malicious assault for which he was sentenced to prison for a cumulative term of twelve
to twenty-two years. Respondent, the State of West Virginia, by counsel David A. Stackpole,
filed a response and a supplemental appendix. Petitioner filed a reply. On appeal, petitioner
argues that the circuit court erred in denying his motion for a new trial based on newly
discovered evidence and violations of Brady v. Maryland, 373 U.S. 83 (1963) and the rules of
discovery under the West Virginia Rules of Criminal Procedure.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        In March of 2015, petitioner was indicted on two counts of wanton endangerment
involving a firearm and one count of malicious assault reportedly committed against his former
girlfriend (hereinafter “the victim”).1 Shortly after the indictment was returned, respondent
provided petitioner with two discovery packets containing material related to those charges. It is
undisputed that those discovery packets did not include photographs of the victim taken by a law
enforcement officer directly after the incident.

         In June of 2015, petitioner’s jury trial commenced. At trial, respondent’s witnesses
testified that petitioner arrived at the victim’s home unannounced and intoxicated in the early
morning hours of August 29, 2014. The victim and her two young children were inside the home

       1
        Petitioner was also indicted on one count of child abuse creating risk of injury and one
count of driving on a license suspended or revoked for driving under the influence. However,
those two counts were later dismissed and bear no import to the issues raised in this appeal.
                                                    1


at that time. According to the testimony at trial, petitioner entered the home, argued with the
victim, pointed a firearm at her, choked her, and told her “he was going to put [her] to sleep one
way or the other.” According to respondent’s evidence, one of the victim’s neighbors became
aware of the altercation and was let into the victim’s home by the victim’s son. The neighbor
stated that he witnessed petitioner “smacking” the victim in the face. The evidence showed that
petitioner then pointed his firearm at the neighbor before exiting the house and fleeing in his
vehicle. Following a call to authorities, Deputy W.T. McNair and other officers from the Preston
County Sheriff’s Department arrived at the victim’s home.

       In her testimony, the victim stated that her injuries included visible red marks on her
neck, which was corroborated by the responding officer and the neighbor who both saw the
victim directly after the incident. On cross-examination, petitioner’s counsel asked the victim
whether Deputy McNair had taken photographs of her injuries (hereinafter “the photographs”).
The victim answered, “Yes. . . . [o]f my neck and my glasses.”2 Thereafter, the circuit court held
a bench conference outside of the jury’s presence. The transcript of that bench conference
provides as follows (parentheticals in original):

                 Ms. Niehaus [petitioner’s trial counsel]: We have had a discovery
                 conference. I have requested discovery[,] and this is the first time I’ve
                 learned of pictures. We have never seen them.

                 Mr. Shay [prosecutor]: I don’t have the pictures, Your Honor. It was in the
                 police report.

                 Ms. Niehaus: Does Deputy McNair have them?

                 Deputy McNair: I have two. I put a note on my thing[,] and we give the
                 stuff to my secretary[,] and she sends everything over and gives us our file
                 back. Evidently, it didn’t get transferred over.

                 The Court: Where are they? You didn’t know about this?

                 Mr. Shay: No.

                 Ms. Niehaus: Are you planning on introducing them?

                 Mr. Shay: No.

                 Ms. Niehaus: I would say they are not introducible.

                 The Court: He said he is not introducing them.

                 Mr. Shay: After the lunch break, Mr. Morgan [the victim’s neighbor] was
                 not back. Can I see if he is out there? He is here.

       2
           It appears that the victim’s glasses were broken during the incident.
                                                       2


        At the conclusion of that bench conference, no more was said of the photographs at that
time. The trial continued. In his closing argument, petitioner stated that “[h]e testified, the
officer, that he observed red marks on her neck and on her face and that her glasses were bent or
crooked. We don’t have pictures.” The jury found petitioner guilty of two counts of wanton
endangerment involving a firearm and one count of malicious assault. Following the jury’s
verdict, petitioner filed a motion for a new trial in which he argued, inter alia, that the
photographs were not properly provided to him and could have influenced plea negotiations or
the jury’s verdict.

        In July of 2015, the circuit court held a sentencing hearing at which time it heard
argument on petitioner’s motion for a new trial. At that hearing, petitioner noted that he still did
not know what the photographs depicted.3 Petitioner argued that knowledge of the photographs
was imputed to the prosecutor, who failed to provide them in discovery. Petitioner maintained
that the photographs might have influenced plea negotiations or the jury’s verdict. The circuit
court denied petitioner’s motion. In so doing, the circuit court found that

       there was no request made by defense to see [the photographs]. There was no
       request for recess to allow that to occur. The Court was asked by defense to
       exclude the photographs[,] and I did that. The alleged victim testified as to the
       marks allegedly left by the defendant. The Court believes it’s speculative [the
       photographs] would have affected plea bargain negotiations. There’s no
       [c]onstitutional right to a plea bargain.

The circuit court proceeded to sentence petitioner to five years in prison for each count of
wanton endangerment involving a firearm and ten years in prison for the single count of
malicious assault. Those prison terms were ordered to run consecutive to one another.

        In September of 2015, petitioner filed a motion to vacate his sentence and a supplemental
motion for a new trial. Petitioner argued that the photographs were exculpatory evidence that
were not properly disclosed prior to trial and that they constituted newly discovered evidence
requiring a new trial.

        Soon thereafter, the circuit court held a hearing on petitioner’s motions to vacate and
receive a new trial. At that hearing, petitioner’s counsel argued that the photographs were
“potentially exculpatory” and that it did not “have to be 100 percent clear that the evidence is of
an absolutely exculpatory nature.” The circuit court asked petitioner whether the photographs
were consistent with the testimony of the victim’s injuries at trial. Petitioner’s counsel replied,
“[t]o that extent, it is consistent, Your Honor. Her glasses appear crooked in this photograph . . .
and there are indeed red marks on her neck [in the second photograph].” Respondent explained
that when the prosecutor’s office was provided with the photographs after the sentencing
hearing, it immediately provided them to defense counsel. The circuit court concluded that the
photographs were not impeachment material, exculpatory evidence, or otherwise material given

       3
        Although unclear from the record on appeal, petitioner claims that he was not provided
with the photographs until after the sentencing hearing.
                                                     3


the other evidence. Further, the circuit court noted that respondent did not seek to introduce them
and that petitioner’s counsel did not ask to examine the photographs at trial. As such, petitioner
was not entitled to a new trial because the photographs were not exculpatory. This appeal
followed.

        On appeal, petitioner argues that the circuit court erred in denying his motion for a new
trial. We have previously set forth the following standard of review:

               In reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We review the rulings of the
       circuit court concerning a new trial and its conclusion as to the existence of
       reversible error under an abuse of discretion standard, and we review the circuit
       court’s underlying factual findings under a clearly erroneous standard. Questions
       of law are subject to a de novo review.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Further, “[a] trial court’s
evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review
under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 511
S.E.2d 469 (1998).

        Petitioner first argues that the circuit court erred in denying his motion for a new trial
based on respondent’s violation of the principles of due process set forth in Brady v. Maryland,
373 U.S. 83 (1963), and its progeny. Petitioner asserts that respondent had a duty under Brady to
disclose the photographs prior to trial and that failure to do so constituted a due process
violation. Petitioner further notes that the photographs were taken by a law enforcement officer
and, therefore, knowledge of the photographs was imputed to the prosecutor.4

       With regard to Brady violations, we have held as follows:

               There are three components of a constitutional due process violation under
       Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State
       v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982): (1) the evidence at issue must
       be favorable to the defendant as exculpatory or impeachment evidence; (2) the
       evidence must have been suppressed by the State, either willfully or inadvertently;
       and (3) the evidence must have been material, i.e., it must have prejudiced the
       defense at trial.




       4
           See Syl. Pt. 1, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007):

                A police investigator’s knowledge of evidence in a criminal case is
       imputed to the prosecutor. Therefore, a prosecutor’s disclosure duty under Brady
       v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and State v.
       Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982) includes disclosure of evidence
       that is known only to a police investigator and not to the prosecutor.
                                                     4


Syl. Pt. 2, State v. Youngblood, 221 W.Va. 20, 650 S.E.2d 119 (2007). All three of the factors
listed in Youngblood must be present for petitioner’s Brady challenge to succeed.

        Following a thorough review of the record on appeal, the parties’ argument, and pertinent
legal authority, we find that petitioner fails to satisfy the first factor for a Brady violation. There
is simply no indication in the record that the photographs, which undisputedly depict injuries to
the victim’s body and property, are exculpatory or impeachment material. To the contrary, the
photographs appear to be wholly consistent with the testimony of respondent’s witnesses at trial
regarding the victim’s injuries, which were said to be redness around the throat area and broken
glasses. At the hearing on his motion for a new trial, petitioner’s counsel admitted that the
photographs and the victim’s trial testimony were consistent to the extent they both established
that the victim had redness around her throat area and broken glasses immediately following the
incident with petitioner. Petitioner’s counsel failed to indicate, at that hearing or otherwise, how
the photographs exculpate petitioner or how they demonstrate an inconsistency with
respondent’s evidence at trial such that they constitute impeachment material. Therefore, we find
that petitioner failed to satisfy the first factor to establish a Brady violation. For that reason, we
find no merit to petitioner’s first assignment of error.

        Next, petitioner argues that the circuit court erred in denying his motion for a new trial
based on respondent’s failure to provide him with the photographs prior to trial in violation of
the rules of discovery under the West Virginia Rules of Criminal Procedure.5 This Court has
explained that

               “[w]hen a trial court grants a pre-trial discovery motion requiring the
       prosecution to disclose evidence in its possession, non-disclosure by the
       prosecution is fatal to its case where such non-disclosure is prejudicial. The non­
       disclosure is prejudicial where the defense is surprised on a material issue and
       where the failure to make the disclosure hampers the preparation and presentation
       of the defendant’s case.” Syllabus Point 2, State v. Grimm, 165 W.Va. 547, 270
       S.E.2d 173 (1980).

Syl. Pt. 2, State v. Miller, 178 W.Va. 618, 363 S.E.2d 504 (1987). This Court has further
explained that

              “[t]he traditional appellate standard for determining prejudice for
       discovery violations under Rule 16 of the West Virginia Rules of Criminal
       Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the
       defendant on a material fact, and (2) did it hamper the preparation and
       presentation of the defendant’s case.” Syllabus Point 2, State ex rel. Rusen v. Hill,
       193 W.Va. 133, 454 S.E.2d 427 (1994).



       5
         When referring to the photographs at trial, the prosecutor stated “[i]t was in the police
report.” While this somewhat-ambiguous statement seems to indicate that the photographs were
attached to the police report, which was provided to petitioner through discovery, it is undisputed
on appeal that petitioner did not receive copies of the photographs prior to trial.
                                                      5


Syl. Pt. 1, State v. Adkins, 223 W.Va. 838, 679 S.E.2d 670 (2009).

        In the present case, it does not appear that petitioner’s counsel filed a pre-trial discovery
motion pursuant to Rule 16. At the arraignment hearing, respondent indicated on the record that
it had provided discovery to petitioner, and two filings on the circuit court’s docketing sheet
indicate that respondent provided discovery packets to petitioner in March of 2015. However, the
record does support the assertion that petitioner’s counsel filed a motion requesting pre-trial
discovery, as required by our holding in Miller.

        That said, assuming Miller applied to this case, petitioner has failed to establish prejudice
from respondent’s non-disclosure of the photographs. As noted above, prejudice requires a
showing of surprise and a hampering of the preparation and presentation of the defendant’s case.
While it appears from the record on appeal that petitioner’s counsel was, indeed, surprised to
discover the photographs during trial, we find that petitioner’s defense was not hampered by the
non-disclosure of the photographs prior to trial. The photographs were in no way inconsistent
with the victim’s report of her injuries as contained in the police report (which was provided to
petitioner in discovery prior to trial) and as presented by respondent’s witnesses at trial.
Petitioner was aware prior to trial that the victim claimed to have suffered injuries consistent
with what the photographs depict. Therefore, petitioner would have known to prepare and
present his case in light of those alleged injuries. Because petitioner cannot prove that the non­
disclosure was prejudicial to him, we would find no merit to his second assignment of error.

       Last, petitioner claims that the photographs constituted newly discovered evidence that
required a new trial. We have long provided rules for courts to determine whether a new trial
should be granted on the basis of newly discovered evidence:

               “A new trial will not be granted on the ground of newly-discovered
       evidence unless the case comes within the following rules: (1) The evidence must
       appear to have been discovered since the trial, and, from the affidavit of the new
       witness, what such evidence will be, or its absence satisfactorily explained. (2) It
       must appear from the facts stated in his affidavit that plaintiff was diligent in
       ascertaining and securing his evidence, and that the new evidence is such that due
       diligence would not have secured it before the verdict. (3) Such evidence must be
       new and material, and not merely cumulative, and cumulative evidence is
       additional evidence of the same kind to the same point. (4) The evidence must be
       such as ought to produce an opposite result at a second trial on the merits. (5) And
       the new trial will generally be refused when the sole object of the new evidence is
       to discredit or impeach a witness on the opposite side.” Syllabus Point 1, State v.
       Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

Syl. Pt. 1, State v. William M., 225 W.Va. 256, 692 S.E.2d 299 (2010).

        Here, petitioner fails to prove that the photographs satisfy the above-listed elements for
granting a new trial based on newly discovered evidence. While petitioner did not discover the
photographs prior to trial and arguably could not have discovered them through the course of due
diligence, which would arguably satisfy the first and second elements, the photographs clearly

                                                     6


fall outside of the remaining elements necessary to receive a new trial. As to the third and fourth
elements, the photographs are the definition of cumulative evidence, and there is no indication
that the admission of the photographs would have produced a different result at trial. The
photographs merely showed what the testimony at petitioner’s trial had previously proved—that
the victim had redness around her throat area and that her glasses were broken. Therefore,
because the photographs fail to satisfy the requirements for a new trial based on newly
discovered evidence, we find no error in the circuit court’s denial of the motion for a new trial on
that ground.

       For the foregoing reasons, the circuit court’s September 18, 2015, order is hereby
affirmed.


                                                                                         Affirmed.

ISSUED: October 11, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




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