Joshawa Clark v. Donnie Ames, Superintendent, Mt. Olive Correctional Complex ( 2023 )

FILED
June 13, 2023
EDYTHE NASH GAISER, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Joshawa Clark,
Petitioner Below, Petitioner
vs.) No. 21-0167 (Cabell County No. 14-C-359)
Donnie Ames, Superintendent,
Mt. Olive Correctional Complex
Respondent Below, Respondent
MEMORANDUM DECISION
Petitioner Joshawa Clark appeals the January 6, 2021, order denying his petition for post-
conviction habeas corpus relief.1 Upon our review, we determine that oral argument is unnecessary
and that a memorandum decision affirming the circuit court’s order is appropriate. See W. Va. R.
App. P. 21.
Petitioner was working at a movie theater when it was robbed by a gunman on July 13,
2009, and October 19, 2009. Phone records showed that petitioner called his friend Dustin Shaver
immediately before and after the first robbery. A few hours after the second robbery, petitioner
and Shaver were seen together. Shaver was identified as the gunman by another employee of the
movie theater. During the second robbery, the gunman obtained about $5,000. Thereafter, a search
of petitioner’s home disclosed the pink bag Shaver used during the October robbery, $4,600, and
a certificate of title for petitioner’s new motorcycle which he purchased the week after the July
robbery for $2,750 in cash. Both men were thereafter indicted on two counts of robbery and two
counts of conspiracy.
Prior to petitioner’s trial, Shaver accepted a plea agreement and agreed to testify against
petitioner. Petitioner’s counsel learned that Shaver had allegedly taken a polygraph at his lawyer’s
office, which he was said to have passed and which allegedly exculpated petitioner. At a hearing
seven weeks before petitioner’s trial, petitioner asked the trial court to require the prosecutor to
produce the exculpatory statements Shaver allegedly made to his lawyer during Shaver’s
polygraph. In support, petitioner cited to the Brady doctrine, which provides that a prosecutor must
produce any evidence in the State’s possession which would tend to exculpate an accused.
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Petitioner appears by counsel Jason T. Gain. Respondent Superintendent Donnie Ames
appears by counsel Attorney General Patrick Morrisey and Assistant Attorney General Katherine
M. Smith.
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(Emphasis added.) See Brady v. Maryland, 373 U.S. 83 (1963); see also Syl. Pt. 4, State v. Hatfield,
169 W. Va. 191, 286 S.E.2d 402 (1982) (“A prosecution that withholds evidence which if made
available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates
due process of law under Article III, Section 14 of the West Virginia Constitution.”). The
prosecutor responded that the State had no custody or control over any such statements and that
petitioner should request any such information from Shaver’s counsel.
Shaver testified against petitioner at trial. Petitioner was convicted on all four counts and
sentenced to fifty-two to sixty years in prison. Petitioner appealed and this Court affirmed the
conviction. See State v. Clark, No. 11-0643, 2012 WL 5835072 (W. Va. Nov. 16, 2012)
(memorandum decision); State v. Clark, 232 W. Va. 480, 752 S.E.2d 907 (2013).
Thereafter, petitioner filed a petition and then an amended petition for a writ of habeas
corpus alleging various claims including that the State failed to disclose Brady materials that were
exculpatory in nature (specifically, the results of the polygraph Shaver allegedly took at his
lawyer’s office). At petitioner’s omnibus evidentiary hearing, the prosecutor who tried petitioner’s
case testified that (1) she withheld no information from petitioner, (2) Shaver’s counsel provided
her with no such information, (3) any statements made by Shaver to his counsel were privileged,
and (4) no such statements were ever in the State’s possession. The habeas court denied relief on
January 6, 2021, stating that “[p]etitioner himself alleges that Shaver’s attorney, who is not an
agent of the State, conducted the polygraph. The polygraph was not conducted at the State’s
direction and therefore the [c]ourt finds this ground without merit and rules against the
[p]etitioner.”
Petitioner now appeals, arguing that the circuit court erred in failing to grant him a writ of
habeas corpus and to award him a new trial.
In reviewing challenges to the findings and conclusions of the circuit court
in a habeas corpus action, we apply a three-prong standard of review. We review
the final order and the ultimate disposition under an abuse of discretion standard;
the underlying factual findings under a clearly erroneous standard; and questions
of law are subject to a de novo review.
Syl. Pt. 1, Mathena v. Haines, 219 W. Va. 417, 633 S.E.2d 771 (2006). Specifically, petitioner
contends that the circuit court abused its discretion in the disposition of his habeas petition due to
the State’s Brady violation, i.e., its failure to obtain and turn over Shaver’s exculpatory statement.
We find no error. Petitioner was aware of the Brady issue before trial and did not pursue a
definitive ruling from the trial court. Moreover, petitioner did not raise his Brady claim in his direct
appeal. Accordingly, the issue has been waived. West Virginia Code § 53-4A-1(c) provides, in
pertinent part, that
[f]or the purpose of this article, a contention or contentions and the grounds in fact
or law relied upon in support thereof shall be deemed to have been waived when
the petitioner could have advanced, but intelligently and knowingly failed to
advance, such contention. . . and grounds before trial, at trial, or on direct appeal[.]
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“Any ground that a habeas petitioner could have raised on direct appeal but did not is presumed
waived.” Grant v. Mirandy, No. 15-0003, 2015 WL 5555586, at *10 (W. Va. Sept. 21, 2015)
(memorandum decision). “It is well established that the burden rests upon petitioner to rebut the
presumption that any ground which could have been asserted on direct appeal, but was not, was
knowingly and intelligently waived.” Parks v. Ames, No. 19-0458, 2020 WL 4355274, at *5 n.4
(W. Va. July 30, 2020) (memorandum decision).
That said, even if petitioner had not waived his Brady claim, the habeas court did not abuse
its discretion in denying petitioner relief. We assess Brady issues 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.
Syl. Pt. 2, State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007). “This test is applied in a
conjunctive manner, meaning that all three elements must be satisfied[.]” State ex rel. Hubley v.
Pszczolkowski, No. 19-0211, 2020 WL 7214158, at *10 (W. Va. Dec. 7, 2020) (memorandum
decision). The burden of proving all three prongs rests with the petitioner. Here, petitioner failed
to prove the second element: that the evidence of the Shaver polygraph was suppressed by the
State.
First, it is a general rule that there is no suppression of evidence under Brady when a
defendant is aware of the alleged exculpatory evidence before trial. “The rule of Brady . . . involves
the discovery after trial of information which had been known to the prosecution but unknown to
the defense.” United States v. Agurs, 427 U.S. 97, 103 (1976) (holding modified on other grounds
by United States v. Bagley, 473 U.S. 667 (1985)). In the context of Brady, “any allegation of
suppression boils down to an assessment of what the State knows at trial in comparison to the
knowledge held by the defense.” Giles v. Maryland, 386 U.S. 66, 96 (1967) (White, J., concurring).
Thus, “[i]f the defense knows of material before trial, no Brady violation is possible[.]” United
States v. Smith, 31 F. App’x 158 (5th Cir. 2001). Here, petitioner knew of the alleged Shaver
polygraph and statements at least seven weeks before trial and made a motion seeking their
production. Consequently, petitioner cannot argue that the State “suppressed” the evidence.
Second, there is no evidence showing the State, or any of the agents acting on its behalf,
possessed the Shaver polygraph or statements. Hence, it had no duty to seek them out for
production. Brady does not oblige the State to disclose materials that are not in its possession or
control. Petitioner asserts that the State had a duty to obtain the materials from Shaver’s lawyer,
and claims that Shaver was an agent of the State by virtue of his status as a cooperating witness.
As authority for this proposition, petitioner cites Kyles v. Whitley, 514 U.S. 419, 437 (1995), where
the court stated that a “prosecutor has a duty to learn of any favorable evidence known to the others
acting on the government’s behalf in the case, including the police.” However, we noted that the
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decision in Kyles stands only for the proposition that “it is proper to impute to the prosecutor’s
office facts that are known to the police and other members of the investigation team.”
Youngblood, 221 W. Va. at 27, 650 S.E.2d at 126 (quoting United States v. Wilson, 237 F.3d 827,
832 (7th Cir. 2001)). West Virginia, like other courts, has “confined prosecutors’ sleuthing duties
to material information possessed by members of the prosecution team.” Sutton v. Carpenter, 617
App’x 434, 441 (6th Cir. 2015). Petitioner cites to no authority extending Kyles and Brady to
statements taken by the attorneys for co-defendants who become cooperating witnesses for the
State. To the contrary, other courts that have considered this question have determined that where
a witness cooperating with the prosecution fails to disclose records, evidence, or prior statements,
the prosecution cannot be said to have suppressed those records because they were never in the
government’s possession. See, e.g., United States v. Graham, 484 F.3d 413, 417 (6th Cir. 2007)
(cooperating witness was not “acting on the government’s behalf,” and government could not be
said to have suppressed fifteen boxes of documents produced by witness in middle of trial); United
States v. Munchak, No. 3:CR-10-75, 2014 WL 3557176, at *13 (M.D. Pa. July 17, 2014) (citing
cases for proposition that “[c]ourts that have considered this issue . . . have concluded that a
cooperating witness is not, in fact, a member of the prosecution team”); United States v.
Salahuddin, No. 10-104 (FLW), 2012 WL 2952436, at *24 (D.N.J. July 19, 2012) (rejecting
defendant’s claim that Government was charged with knowledge of its cooperating witness and
stating that defendant failed to “offer any support that the Government can be charged with all
knowledge possessed by a cooperating witness”). Thus, the petitioner has failed to establish that
the State suppressed any statements made by Shaver.
Accordingly, we affirm the circuit court’s decision refusing the petition for habeas corpus.
Affirmed.
ISSUED: June 13, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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