State of West Virginia v. A.B. ( 2022 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2022 Term
_____________
No. 20-0744
_____________
STATE OF WEST VIRGINIA,
Plaintiff Below, Respondent,
V.
A.B.,
Defendant Below, Petitioner.
________________________________________________
Appeal from the Circuit Court of Raleigh County
The Honorable Robert A. Burnside, Jr., Judge
Criminal Action No. 16-F-429
AFFIRMED
________________________________________________
Submitted: September 14, 2022
Filed: November 17, 2022
Matthew Brummond, Esq. Patrick Morrissey, Esq.
Public Defender Services Attorney General
Appellate Advocacy Division Andrea Nease Proper, Esq.
Charleston, West Virginia Lara K. Bissett, Esq.
Attorney for the Petitioner Assistant Attorney General
Charleston, West Virginia
Attorneys for the Respondent
JUSTICE BUNN delivered the Opinion of the Court.
CHIEF JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the
right to file dissenting opinions.
SYLLABUS BY THE COURT
1. “A claim of a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963), presents mixed questions of law and fact. Consequently,
the circuit court’s factual findings should be reviewed under a clearly erroneous standard,
and questions of law are subject to a de novo review.” Syllabus point 7, State v. Black, 227
W. Va. 297, 708 S.E.2d 491 (2010).
2. “Where a constitutional right to counsel exists under W. Va. Const.
art. III, § 14, there is a correlative right to representation that is free from conflicts of
interest.” Syllabus point 2, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599 (1988).
3. “In the West Virginia courts, claims of ineffective assistance of
counsel are to be governed by the two-pronged test established in Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s performance was
deficient under an objective standard of reasonableness; and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceedings would
have been different.” Syllabus point 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114(1995).
i
4. When constitutional claims of ineffective assistance of counsel based
upon successive representation are raised, the individual claiming ineffective assistance of
counsel must demonstrate actual prejudice—that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceedings would have been
different—pursuant to Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984).
5. “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.” Syllabus point
2, State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007).
ii
Bunn, Justice:
Petitioner A.B. 1 appeals the September 22, 2020 order of the Circuit Court
of Raleigh County resentencing her, for the purpose of appeal, to an aggregate term of
incarceration of five to twenty-five years for her convictions of one count of child neglect
resulting in death and two counts of gross child neglect creating a risk of substantial injury
or death. On appeal, A.B. advances two grounds for reversal of her convictions. Her
primary contention is that the circuit court violated her Sixth Amendment right to conflict-
free counsel. A.B. next claims that the State violated Brady v. Maryland 2 and State v.
Youngblood 3 by failing to disclose certain records involving a central witness. For the
reasons set forth below, we affirm.
1
Consistent with our long-standing practice in cases involving infants or
sensitive facts, we use initials where necessary to protect the identities of those involved in
this case. See In re K.H., 235 W. Va. 254, 256 n.1, 773 S.E.2d 20, 22 n.1 (2015). See also
W. Va. R. App. P. 40(e) (restricting use of personal identifiers in cases involving children).
2
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
3
State v. Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007).
1
I.
FACTUAL AND PROCEDURAL HISTORY
This case involves a tragic incident that occurred on November 7, 2015. After
drinking heavily, A.B. fell asleep and rolled over on her five-month-old daughter, G.B.,
who died by asphyxiation. In September 2016, a Raleigh County grand jury indicted A.B.
on three counts: (1) child neglect resulting in the death of G.B. in violation of West Virginia
Code § 61-8D-4a; (2) child neglect with risk of serious bodily injury or death of D.B., age
four, in violation of West Virginia Code § 61-8D-4(c); and (3) child neglect with risk of
serious bodily injury or death of J.B., age two, in violation of West Virginia Code § 61-
8D-4(c). 4
The State agreed to provide open file discovery that “shall remain continuous
and shall occur within the time frames prescribed” by the orders and rules of the circuit
court. In October 2016, A.B. filed an omnibus discovery motion requesting, among other
items, all documents and tangible objects in the “possession, custody, and control[,] of the
State, and which are material to the preparation of his [sic] defense or are intended for use
by the State as evidence in chief at the trial, or were obtained from or belonged to the
defendant.” This request included (1) all documents relating to any criminal conviction of
any State witness; (2) any exculpatory and/or impeachment material; (3) any juvenile and
4
D.B. and J.B. are siblings of G.B.
2
criminal records of any State witness; and (4) any medical/psychiatric condition of any
State witness.
Throughout the proceedings, several attorneys represented A.B.5 On
February 10, 2020, fourteen days before her trial, A.B.’s then-current counsel, Sarah Smith,
from the Public Defender Corporation (“PDC”), filed a motion to withdraw as counsel.6 In
the one-paragraph motion, Ms. Smith asserted that she discovered only days earlier that a
State witness, K.S., had previously been the subject of a juvenile petition and had been
represented by another lawyer who worked in the same PDC office. 7
It appears from the record that A.B. was originally represented by the Public
5
Defender Corporation (“PDC”). At that time, Sarah Smith was employed with the PDC
and represented A.B. Ms. Smith eventually left the PDC to work for Robert Dunlap of
Robert Dunlap & Associates. At some point during the proceedings, in 2017, A.B. changed
her representation to Robert Dunlap & Associates with Mr. Dunlap and Ms. Smith. Ms.
Smith subsequently left Mr. Dunlap’s office to return to her previous employment at the
PDC. Mr. Dunlap filed a motion to withdraw as counsel and in June 2019 the circuit court
held a hearing on the motion. During the hearing, Mr. Dunlap explained that when his
office began its representation of A.B., she initially met with and established a relationship
and level of comfort with Ms. Smith and that Ms. Smith had returned to her previous
employment at the PDC. A.B. did not form the same bond with Mr. Dunlap. The circuit
court granted Mr. Dunlap’s motion to withdraw, and A.B. then returned to the PDC for
representation.
While the motion was based on two juvenile witnesses, K.S. and M.S., in
6
the proceeding below, the State did not call M.S. as a witness. A.B. does not allege any
error relating to M.S. in this appeal.
Rule 1.10 of the West Virginia Rule of Professional Conduct sets forth the
7
general rule regarding imputation of conflicts of interest and Rule 1.11 of the West Virginia
Rules of Professional Conduct describes special conflicts of interest rules for former and
current government officers and employees.
3
At a pretrial hearing on February 19, 2020, the court heard arguments on Ms.
Smith’s motion to withdraw. Ms. Smith advised the court that a few weeks prior, she
received a witness list from the State and upon cross-referencing that witness list with the
PDC’s client files, she discovered that K.S. had been a client on an unrelated matter. 8 Ms.
Smith further indicated that she reviewed K.S.’s files and gained information that she
would not have had but for K.S.’s representation by her office. 9 Without disclosing the
exact information, Ms. Smith represented to the court she would have an obligation to use
that information she learned when she cross-examined K.S. and an “adult guardian.” She
vaguely stated that the records “would call into question” K.S.’s conduct and “that sort of
thing.”
The State objected to Ms. Smith’s motion to withdraw asserting that Ms.
Smith had the full name of K.S. as a potential witness since at least 2015, including when
she returned to the PDC in April 2019, and should have recognized the potential conflict
8
It appears from the record before us that at the time Ms. Smith determined
K.S. had been a client of the PDC, the matters involving K.S. were concluded and not
currently pending. From at least September 2016 to July 2017, it appears that A.B. was
represented by the PDC. Then, A.B. hired Dunlap & Associates as her counsel from July
2017 to June 2019 when Mr. Dunlap withdrew as counsel. It was during this time that the
PDC represented K.S. in her juvenile proceeding. In particular, the proceeding was initiated
in November 2017 and was dismissed in February 2019, almost a year before Ms. Smith
filed her motion to withdraw. There was no overlap in the PDC’s representation of A.B.
and K.S.
Ms. Smith informed the court that she spoke to the Office of Disciplinary
9
Counsel and had been “advised that concurrent representation is not possible.” (Emphasis
added).
4
earlier. After hearing the respective arguments of counsel and reviewing the State’s records
regarding K.S.’s juvenile proceedings, 10 the circuit court denied Ms. Smith’s motion to
withdraw. The court conditioned its denial by stating that if Ms. Smith discovered any other
reason for her withdrawal, she would have the opportunity to supplement her motion. At
the conclusion of the pretrial hearing, the State asked the court to require Ms. Smith to
submit any intended cross-examination of K.S. to an in camera review, for confidentiality
purposes, before she questioned K.S. in the jury’s presence. The court responded that it
assumed this issue “would be taken up . . . during trial when we reach that point[.]” Ms.
Smith consented to the proposed process.
A.B.’s trial commenced on February 24, 2020. The State presented testimony
from several witnesses, including emergency responders, investigating law enforcement
officers, medical providers, medical experts, and family members who lived in the same
home as A.B. at the time of the incident. Relevant to this appeal is the following testimony.
First, K.S., who provided approximately two-and-a-half pages of testimony, stated that she
was G.B.’s cousin. K.S. and A.B. resided in the same house but on different floors. On
November 7, 2015, when she was twelve years old, K.S. walked into A.B.’s living space
and found A.B. lying on top of G.B. Because K.S. was unable to free the infant or awaken
A.B., K.S. called for her grandmother’s assistance.
10
Ms. Smith did not produce any records during the hearing, either in camera
or under seal.
5
Before Ms. Smith cross-examined K.S., the circuit court held an in camera
hearing regarding the matters Ms. Smith intended to explore during cross-examination,
including truancy, marijuana and alcohol use, and certain psychological records. Ms.
Smith, who had the records due to the PDC’s previous representation of K.S.,
acknowledged that the juvenile proceedings were initiated in 2017 and that the records did
not disclose exactly when the marijuana and alcohol use began. She indicated that this
information was relevant because if K.S. abused these substances at the time of the
incident, she may have misremembered the events. The State submitted that to establish a
foundation Ms. Smith need only ask K.S. one question in camera: “‘Were you under the
influence of alcohol or drugs at the time of [G.B.]’s death?’” The court asked Ms. Smith if
she had any objection to the “proposed limitation on the scope of cross-examination and
the use of these records” to which Ms. Smith replied that she did not. Ms. Smith asked K.S.
the following question: “[K.S.], on November 7th of 2015, had you used any alcohol or
drugs?” K.S. replied, “No.” Ms. Smith further clarified the question by asking if K.S. had
used any alcohol or drugs on the day in question or the day prior. K.S. again replied “No.”
Based on K.S.’s response, Ms. Smith stated that she did not believe K.S.’s truancy-related
issues, her psychological report, or her use of marijuana or alcohol would be admissible.
Following the conclusion of the in camera hearing, Ms. Smith confirmed, in the jury’s
presence, that she would not cross-examine K.S.
6
Next, the grandmother to both G.B. and K.S., (“Grandmother”) 11 provided
approximately fourteen pages of direct and redirect testimony regarding how she found
G.B. in A.B.’s room, the deplorable condition of the room, and A.B.’s altered state of mind
on the day G.B. died.12 On November 7, 2015, K.S. came downstairs and told her that A.B.
“was on the baby and the baby wasn’t moving.” Grandmother “ran up[stairs] [] to see what
was going on and found [A.B.] on the baby and pulled the baby out[.]” She then brought
G.B. downstairs where Grandmother’s husband began giving the infant CPR while K.S.
called 911. Grandmother returned upstairs and found A.B. unresponsive. She described the
condition of the room as “horrible;” there was “trash and junk everywhere.” Grandmother
noticed empty alcohol bottles in the room. When the emergency responders arrived, A.B.
was not coherent and she never expressed any concern regarding the welfare of G.B.
Following Grandmother’s testimony, several law enforcement officers
testified. Corporal Timothy Hughes (“Cpl. Hughes”) testified as follows. When he arrived
at Raleigh General Hospital, Cpl. Hughes made several general observations regarding
A.B.: (1) a “strong odor of alcohol” came from A.B.’s hospital room and (2) she “seemed
incoherent and disoriented.” Continuing his investigation, Cpl. Hughes went to
Grandmother’s home to view the scene of the incident. He went upstairs and saw the
11
For clarity, we refer to her as “Grandmother” because she shares the same
initials as G.B.
12
Grandmother had allowed her daughter-in-law, A.B.; her son, A.B.’s
husband; and their three children to live in her home on and off for three years.
7
“debris and trash[.]” Corporal Hughes could not see the bottom of the floor, “[i]t was just
filled with trash and soiled clothing and rotting food and milk containers and soda cans[;]”
“[i]t was generally unlivable.” By the bed, Cpl. Hughes found “molded food and trash and
alcohol bottles and cigarette butts.”
Sergeant Morgan Bragg also investigated G.B.’s death and took
approximately 130 photographs during his investigation, many of which were admitted
into evidence during trial. These pictures captured the appalling living conditions in A.B.’s
room, including a bottle of vodka that A.B. admitted to drinking on the day G.B.
asphyxiated. He described the significant number and types of alcohol bottles recovered
from A.B.’s room.
Furthermore, several emergency response providers offered the following
testimony. Anthony Wilcox stated that upon his arrival he noticed that rigor mortis had
already set in on G.B. and that in his experience, rigor mortis generally takes several hours
after death before setting in. A second emergency provider, Richard Garten (“Mr. Garten”),
medically assessed A.B. His primary impression was “[a]lcohol abuse” and secondary
impression was “slurred speech.” Mr. Garten noticed “a lot of different sizes of different
types of alcohol [bottles].” A.B. admitted to him “that she had been drinking numerous
alcoholic beverages starting [in the] morning and even stated she had a drink just five
minutes prior to EMS arrival for her.” She did not show any signs of distress other than her
intoxication.
8
Finally, various medical professionals testified on behalf of the State. On
November 7, 2015, Hannibal Mahdi, M.D. (“Dr. Mahdi”) provided medical care and
treatment to A.B. at Raleigh General Hospital. After examining A.B., Dr. Mahdi diagnosed
A.B. with “alcoholic intoxication.” She completed a drug screen, which was negative, but
A.B.’s alcohol level was 0.289, which Dr. Mahdi described as “high.” 13 Dr. Mahdi
completed a thorough examination to rule out any other medical issue relating to A.B.’s
altered mental state. Can Metin Savasman, M.D. performed the autopsy of G.B. and stated
that her cause of death was “asphyxia due to having been overlain during sleep.”
John Patrick Fernald, M.D. (“Dr. Fernald”) offered expert testimony
regarding the dangers of an intoxicated adult sleeping in bed with an infant. He further
discussed A.B.’s living conditions and the harm that can come to a child living in those
circumstances. Specifically, Dr. Fernald stated that “[t]hese [were] the worst living
conditions for a child I have witnessed in 19 years of practicing medicine, including several
years overseas in third world countries.”
A.B.’s only witness during trial was her husband. He testified that he was not
certain if A.B. had been drinking on the day in question, but that they both had been
13
For reference, pursuant to this State’s motor vehicle laws, an “impaired
state” is defined as, among others, “hav[ing] an alcohol concentration in his or her blood
of eight hundredths of one percent or more [0.08%], by weight.” W. Va. Code § 17C-5-2.
9
drinking together the day before. Her husband indicated that A.B. was not an everyday
drinker. However, the State’s extensive cross-examination demonstrated a string of
inconsistent statements.
The jury convicted A.B. on all three counts. The circuit court held a
sentencing hearing on July 16, 2020 and sentenced A.B. to consecutive terms of not less
than three nor more than fifteen years in prison for child neglect resulting in the death of
G.B.; not less than one nor more than five years in prison for child neglect with risk of
serious bodily injury or death regarding D.B.; and not less than one nor more than five
years in prison for child neglect with risk of serious bodily injury or death regarding J.B.
On September 22, 2020, the circuit court entered an order resentencing A.B. for purposes
of appeal. This appeal followed.
On appeal, A.B. filed her brief alleging a violation of her Sixth Amendment
right to conflict-free counsel and the State responded. We heard oral arguments on January
12, 2022. Subsequently, this Court directed the parties to provide supplemental briefing to
address any potential Brady violations as defined by Syllabus point 2 of State v.
Youngblood, 221 W. Va. 20, 650 S.E.2d 119 (2007). Following the filing of the
supplemental briefs, and the presentation of supplemental oral argument, this case was
submitted for decision.
10
II.
STANDARD OF REVIEW
A.B. first claims that she was denied her Sixth Amendment right to conflict-
free counsel when the circuit court denied her counsel’s motion to withdraw due to a
conflict of interest. In State ex rel. Blake v. Hatcher, 218 W. Va. 407, 624 S.E.2d 844(2005), we stated that:
the United States Supreme Court found the trial court should
be afforded considerable latitude in making its determination
to disqualify a criminal defense attorney due to a conflict of
interest. Wheat [v. United States], 486 U.S. [153,] at 1630-64,
108 S. Ct. [1692,] at 1699-1700 [100 L.Ed.2d 140 (1988)].
Recognizing the trial court’s need for latitude, several courts
have applied an abuse of discretion standard when reviewing
decisions on disqualification motions. We agree that this is the
appropriate standard of review.
Blake, 218 W. Va. at 417-18, 624 S.E.2d at 854-55 (citations omitted). Accord State v.
Rogers, 231 W. Va. 205, 214, 744 S.E.2d 315, 324 (2013) (per curiam). Additionally, while
A.B. is challenging the circuit court’s decision denying her counsel’s motion to withdraw,
she is essentially claiming that due to the circuit court’s decision, she received ineffective
assistance of counsel due to a conflict of interest. 14 We have stated that
14
“Conflict-of-interest claims involving attorneys in criminal cases are a
species of ineffective assistance of counsel under the Sixth Amendment.” Galloway v.
State, 298 So. 3d 966, 974-75 (Miss. 2020). We have repeatedly warned that “it is the
extremely rare case when this Court will find ineffective assistance of counsel when such
a charge is raised as an assignment of error on a direct appeal. The prudent defense counsel
first develops the record regarding ineffective assistance of counsel in a habeas corpus
proceeding before the lower court, and may then appeal if such relief is denied.” Syl. pt.
10, in part, State v. Triplett, 187 W. Va. 760, 421 S.E.2d 511 (1992). However, under the
specific facts of this matter, we will review A.B.’s assignment of error. See State v. Rogers,
231 W. Va. 205, 212, 744 S.E.2d 315, 322 (2013) (per curiam) (reviewing a claim on direct
11
[a]n ineffective assistance of counsel claim presents a
mixed question of law and fact; we review the circuit court’s
findings of historical fact for clear error and its legal
conclusions de novo. This means that we review the ultimate
legal claim of ineffective assistance of counsel de novo and the
circuit court’s findings of underlying predicate facts more
deferentially.
State ex rel. Daniel v. Legursky, 195 W. Va. 314, 320, 465 S.E.2d 416, 422 (1995).
Next, A.B. asserts that the State withheld certain documents relating to a
witness in violation of Brady and Youngblood. This Court has established that “[a] claim
of a violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963),
presents mixed questions of law and fact. Consequently, the circuit court’s factual findings
should be reviewed under a clearly erroneous standard, and questions of law are subject to
a de novo review.” Syl. pt. 7, State v. Black, 227 W. Va. 297, 708 S.E.2d 491 (2010). With
these standards in mind, we now consider the parties’ arguments.
III.
DISCUSSION
We will address A.B.’s two assignments of error in turn.
appeal that a circuit court violated a petitioner’s due process rights when it refused to grant
his trial counsel’s motion to withdraw based on a conflict of interest). Accord State v. Kirk
N., 214 W. Va. 730, 736, 591 S.E.2d 288, 294 (2003).
12
A. Conflict-free Counsel
A.B. contends that the circuit court violated her Sixth Amendment right to
conflict-free counsel when her attorney was unable to both zealously advocate for her and
protect the confidences of the State’s witness, K.S. On the other hand, the State maintains
that no actual conflict existed that adversely affected Ms. Smith’s representation of A.B.
We find no error.
This Court has reiterated that “[t]he Sixth Amendment to the United States
Constitution and article III, § 14 of the West Virginia Constitution guarantee a criminal
defendant the right to the assistance of counsel.” State ex rel. Yurish v. Faircloth, 243
W. Va. 537, 543, 847 S.E.2d 810, 816 (2020). This right to counsel includes “the right to
effective assistance of counsel.” Syl. pt. 1, in part, Cole v. White, 180 W. Va. 393, 376
S.E.2d 599 (1988). See also Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,
2063, 80 L. Ed. 2d 674 (1984). We have further held that “[w]here a constitutional right to
counsel exists under W. Va. Const. art. III, § 14, there is a correlative right to representation
that is free from conflicts of interest.” Syl. pt. 2, Cole v. White, 180 W. Va. 393, 376 S.E.2d
599.
Conflict of interest claims involving attorneys in criminal matters are a type
of ineffective assistance of counsel pursuant to the Sixth Amendment. We note that federal
courts have employed different tests for Sixth Amendment violations and assessing their
prejudicial impact, depending on the type of Sixth Amendment violation alleged.
13
Ineffective assistance of counsel claims are generally analyzed under the Strickland
standard. 15 Pursuant to Strickland, a petitioner must demonstrate that counsel’s
performance was deficient, and that the deficient performance prejudiced the defense. See
generally Strickland, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674. This Court has
previously adopted the Strickland test when considering ineffective assistance of counsel
claims:
In the West Virginia courts, claims of ineffective
assistance of counsel are to be governed by the two-pronged
test established in Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s
performance was deficient under an objective standard of
reasonableness; and (2) there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceedings would have been different.
Syl. pt. 5, State v. Miller, 194 W. Va. 3, 459 S.E.2d 114 (1995).
But when a petitioner alleges ineffective assistance based on a conflict of
interest, a less demanding standard may apply, making it easier to show ineffective
assistance of counsel. The United States Supreme Court has carved out at least two
15
The United States Supreme Court has stated that “breach of an ethical
standard does not necessarily make out a denial of the Sixth Amendment guarantee of
assistance to counsel.” Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 993, 89
L. Ed. 2d 123 (1986). On appeal, A.B. asserts that the circuit court forced her trial counsel,
Ms. Smith, to violate Rules 1.7 (Conflict of Interest; Current Clients), 1.9 (Duties to Former
Clients), and 1.10 (Imputation of Conflicts of Interest: General Rule) of the West Virginia
Rules of Professional Conduct when it denied Ms. Smith’s motion to withdraw as counsel.
For the reasons stated herein, we need not reach a conclusion as to whether any of these
Rules were violated.
14
exceptions to Strickland. First, in Holloway v. Arkansas, 435 U.S. 475, 98 S. Ct. 1173, 55
L. Ed. 2d 426 (1978), the Supreme Court established a very narrow exception that
“whenever a trial court improperly requires joint representation over timely objection
reversal is automatic.” 435 U.S. at 488, 98 S. Ct. at 1181 (emphasis added).
Two years later, the Supreme Court created another limited exception to the
general Strickland standard for ineffective assistance of counsel claims in Cuyler v.
Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L. Ed. 2d 333 (1980). In Sullivan, the Supreme
Court distinguished Holloway and found that “[u]nless the trial court knows or reasonably
should know that a particular conflict exists, the court need not initiate an inquiry [to
determine if a conflict of interest exists].” Id. at 347, 100 S. Ct. at 1717. Furthermore,
Sullivan found that prejudice will not be presumed, and the automatic reversal rule will not
apply; rather, “[i]n order to establish a violation of the Sixth Amendment, a defendant who
raised no objection at trial must demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance.” Id. at 348, 100 S. Ct. at 1718. Importantly, although
Sullivan did not involve jointly represented co-defendants, it did include multiple
concurrent representation of a single attorney of co-defendants in separate trials. Id. at 340,
100 S. Ct. at 1713-14. As the United States Court of Appeals for the Tenth Circuit
explained,
[r]ead together, these cases establish a bifurcated standard for
addressing conflict of interest claims in the multiple
representation context. First, if the defendant objects to the
alleged conflict prior to trial, prejudice is presumed if the trial
court failed to inquire into the nature and scope of the conflict
15
and required the defendant to proceed with the same attorney.
In such instances, reversal is automatic. . . . But if the defendant
does not object to the alleged conflict at trial, he must
demonstrate on appeal that an actual conflict adversely affected
his representation. Only if the defendant’s demonstration is
sufficient is prejudice presumed. . . . If the defendant’s
demonstration is insufficient, then traditional Strickland review
will apply[.]
United States v. Williamson, 859 F.3d 843, 853 (emphasis added). The import from both
Holloway and Sullivan is that both involve joint or multiple concurrent representation and
were concerned with the potential inherent dangers of such representation and the difficulty
in determining prejudice in those circumstances.
Following Sullivan, the Supreme Court elaborated on its previous exceptions
to the general Strickland standard in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct. 1237, 152
L. Ed. 2d 291 (2002). In Mickens, the question presented was “what a defendant must show
in order to demonstrate a Sixth Amendment violation where the trial court fails to inquire
into a potential conflict of interest about which it knew or reasonably should have known.”
Mickens, 535 U.S. at 164, 122 S. Ct. at 1239. Even though the case involved successive
representation, 16 the parties “presented and argued [to the Supreme Court] on the
assumption that (absent some exception for failure to inquire) Sullivan would be
16
Mr. Mickens’ counsel had been representing the victim in the matter on
assault and concealed weapons charges at the time of the murder. Mickens v. Taylor, 535
U.S. 162, 164, 122 S. Ct. 1237, 1240, 152 L. Ed. 2d 291 (2002). Upon the victims’ murder,
the pending charges against him were dismissed. Id. at 164-65, 122 S. Ct. at 1240. Days
later, the same counsel was appointed to Mr. Mickens. Id. at 165, 122 S. Ct. at 1240.
16
applicable—requiring a showing of defective performance, but not requiring in addition
(as Strickland does in other ineffectiveness-of-counsel cases), a showing of probable effect
upon the outcome of trial.” Id. at 174, 122 S. Ct. at 1245. The Supreme Court stated that
this “assumption was not unreasonable in light of the holdings of Courts of Appeals, which
have applied Sullivan unblinkingly to all kinds of alleged attorney ethical conflicts[.]” Id.
at 174-75, 122 S. Ct. at 1245 (quotations and citations omitted). The types of conflicts that
the lower courts had “unblinkingly” applied Sullivan to included not only alleged
obligations to former clients, but also circumstances where the “representation of the
defendant somehow implicates counsel’s personal or financial interests . . . or fear of
antagonizing the trial judge[.]” Id. at 174-75, 122 S. Ct. at 1245 (internal quotations and
citations omitted).
In Mickens, the Supreme Court cautioned “[i]t must be said, however, that
the language of Sullivan itself does not clearly establish, or indeed even support, such
expansive application.” Id. at 175, 122 S. Ct. at 1245 (emphasis added). Significantly,
[b]oth Sullivan itself, . . . and Holloway, . . . stressed the high
probability of prejudice arising from multiple concurrent
representation, and the difficulty of proving that prejudice. . . .
[T]he Federal Rules of Criminal Procedure treat concurrent
representation and prior representation differently, requiring a
trial court to inquire into the likelihood of conflict whenever
jointly charged defendants are represented by a single attorney
(Rule 44(c)), but not when counsel previously represented
another defendant in a substantially related matter, even where
the trial court is aware of the prior representation.
17
Id. (internal citations omitted) (emphasis added). The Mickens Court left open the question
of whether Holloway or Sullivan would apply to instances of successive representation as
follows:
This is not to suggest that one ethical duty is more or
less important than another. The purpose of our Holloway and
Sullivan exceptions from the ordinary requirements of
Strickland, however, is not to enforce the Canons of Legal
Ethics, but to apply needed prophylaxis in situations where
Strickland itself is evidently inadequate to assure vindication
of the defendant’s Sixth Amendment right to counsel. . . . In
resolving this case on the grounds on which it was presented
to us, we do not rule upon the need for the Sullivan prophylaxis
in cases of successive representation. Whether Sullivan should
be extended to such cases remains, as far as the jurisprudence
of this Court is concerned, an open question.
Id. at 176, 122 S. Ct. at 1246 (emphasis added) (citations omitted).
In the case sub judice, while both parties apply the Sullivan test,17 we find
that this analysis is not appropriate under the facts of this case which involve successive,
rather than joint or multiple concurrent representation. 18 A.B. and K.S. were not jointly
17
We recognize that like the matter before us, despite the representation
being successive rather than concurrent, the parties and the Supreme Court in Mickens
utilized the Sullivan framework. We decline to follow suit here as it is important to clarify
our law following Mickens.
18
The United States Court of Appeals for the Sixth Circuit explained the
difference between joint and multiple representation in McFarland v. Yukins, 356 F.3d 688(6th Cir. 2004). The court defined “joint and dual representation” as “simultaneous
representation occurring in the same proceeding, while multiple representation refers to
simultaneous representation in separate proceedings.” Id. at 701. The Sixth Circuit further
defined successive representation in Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011)
as a situation “where defense counsel has previously represented a co-defendant or trial
18
represented by the PDC (or the same attorney) in the same proceeding nor does the record
demonstrate that the PDC represented A.B. and K.S. at the same time in separate
proceedings; rather Ms. Smith represented A.B. during this criminal proceeding, and a
different attorney from the PDC represented K.S. in an earlier, unrelated juvenile
proceeding. 19 Consequently, this matter involves successive representation.
As discussed above, the Supreme Court has not definitively held that the
Holloway or Sullivan test is applicable to instances of successive representation. Further,
while we have addressed ineffective assistance of counsel claims in the context of a conflict
of interest, we have not directly addressed how Mickens affects our law. 20 As such, we
examine other jurisdictions and lower federal courts for guidance post-Mickens.
witness,” while concurrent representation “occurs where a single attorney simultaneously
represents two or more codefendants.” Id. at 315.
19
See, supra, note 8 for a discussion of the relevant timeframes.
20
Shortly after Sullivan was decided we acknowledged it and held that “[i]n
a case of joint representation, once an actual conflict is found which affects the adequacy
of representation, ineffective assistance of counsel is deemed to occur and the defendant
need not demonstrate prejudice.” Syl. pt. 4, Cole v. White, 180 W. Va. 393, 376 S.E.2d 599(1988) (emphasis added). As Cole concerned matters of joint representation, it is not
applicable to the case before us, and nothing in this opinion should be construed as
modifying Cole.
Subsequently, in State ex rel. Blake v. Hatcher, 218 W. Va. 407, 413-14, 624
S.E.2d 844, 850-51 (2005), this Court explained that “[w]here representation is affected by
an actual conflict of interest, the defendant can not be said to have received effective
assistance of counsel as required by the Sixth Amendment.” Importantly, while this Court
created several syllabus points in Blake, this principle was not one. See Syl. pt. 1, State v.
McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014) (“Signed opinions containing original
syllabus points have the highest precedential value because the Court uses original syllabus
19
The Supreme Court of Kentucky reviews successive conflicts of interest
under the Strickland standard. See Steward v. Commonwealth, 397 S.W.3d 881, 883 (Ky.
2012). See also Jones v. Commonwealth, 641 S.W.3d 162, 167 (Ky. 2022) (“We review
successive conflicts of interest under the Strickland standard.”). The Steward Court
explained that while the United States Supreme Court in Mickens “recogniz[ed] the high
probability of prejudice arising from joint representation cases, [it] acknowledged that not
all attorney conflicts present comparable difficulties.” Steward, 397 S.W.3d at 883 n.4
(internal quotations and citations omitted). The court went on to state that “whether
Sullivan, as opposed to Strickland, should be applied to successive representation cases
remains, as far as the jurisprudence of the Supreme Court is concerned, an open
question. . . . However, . . . the Sixth Circuit has stated that the rule pronounced in Sullivan
is inapplicable to cases of successive representations.” Id. (internal quotations and citations
points to announce new points of law or to change established patterns of practice by the
Court.”). Moreover, the central issue in Blake was whether the State has standing to move
to disqualify criminal defense counsel due to a conflict of interest arising from counsel’s
present or former representation of a State witness. Id. at 417-18, 624 S.E.2d at 854-55.
While we have addressed conflict of interest matters subsequent to Blake,
and on occasion have utilized the Sullivan standard for successive representation, a full
Mickens analysis was not conducted. See, e.g., Daniel C. v. Ames, No. 20-0754, 2022 WL
123711, at *2-4 (W. Va. Jan. 12, 2022) (memorandum decision) (finding that the petitioner
failed to satisfy either prong of the Sullivan test in a successive representation conflict of
interest case); Bennett v. Ballard, No. 16-0535, 2017 WL 3821805, at *7-8 (W. Va. Sept.
1, 2017) (memorandum decision) (same); Rogers, 231 W. Va. 205, 744 S.E.2d 315 (finding
no actual conflict existed when a public defender represented the petitioner in a criminal
proceeding and another public defender from the same office had previously represented a
State witness in the petitioner’s current criminal proceeding).
20
omitted). Finding the guidance of the Sixth Circuit to be persuasive, the Steward Court
applied Strickland to the successive representation issue. Id.Several other courts have also applied Strickland to successive representation
matters. See, e.g., Weaver v. Wingard, 163 F. App’x 399, 401 (6th Cir. 2006)) (“[W]e must
determine whether this case is one of concurrent representation and thus the Sullivan
standard controls or whether it is one of successive representation and the Strickland
standard applies. . . . [The] representations . . . were successive representations and the
appropriate standard to review these relationships is the Strickland standard.”); Montoya v.
Lytle, 53 F. App’x 496, 498 (10th Cir. 2002) (“The Supreme Court, however, has never
extended the [Sullivan] standard to cases involving successive, rather than multiple,
representation. . . . There is, therefore, no ‘clearly established federal law, as determined
by the Supreme Court of the United States’ mandating reversal of a conviction on a mere
showing of a conflict of interest involving successive representation that adversely affected
the attorney’s representation of his client. . . . Instead, Montoya must show a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different.” (internal quotations and citations omitted)”); State v. Alvarado, 481
P.3d 737, 748-49 (Idaho 2021) (“An attorney actively representing conflicting interests in
concurrent representations poses such a circumstance where ineffective assistance is so
likely that prejudice may be presumed. However, the same cannot be said for successive
representation, especially where the interests involved are unrelated to the former client’s
case. While successive representation, like in the case at bar, may suggest an apparent
21
conflict of interest, at most it amounts to a cosmetic crack in the exterior of the trial
proceedings; the overall foundation—and our confidence in the outcome—remains firm
nonetheless. For these reasons, we hold that claims of conflict of interest relating to
successive representation require a showing of actual prejudice.” (citation omitted)). 21
We are persuaded by the warning given in Mickens regarding the application
of Holloway or Sullivan in cases of successive representation and the cases that heeded the
warning. As the Supreme Court cautioned, “[b]oth Sullivan itself, . . . and Holloway,
. . . stressed the high probability of prejudice arising from multiple concurrent
representation, and the difficulty of proving that prejudice.” Mickens, 535 U.S. at 175, 122
S. Ct. at 1245 (emphasis added) (citations omitted). In cases of joint or multiple concurrent
representation, requiring a showing of prejudice creates a significant danger to a defendant
because the “evil is in what the attorney finds himself compelled to refrain from doing, not
only at trial, but also as to possible pretrial plea negotiations and in the sentencing process.
Accordingly, it would be difficult, if not impossible, to determine the prejudicial impact on
21
We acknowledge that courts have approached the issue of successive
representation following Mickens in various ways. See e.g., Galloway, 298 So. 3d at 974-
75 (“Conflict-of-interest claims . . . are evaluated under one of two separate standards: the
Strickland standard or the standard from Cuyler [v. Sullivan], 446 U.S. 335, 100 S. Ct. 1708[64 L.Ed.2d 333 (1980)]. . . .”); State v. Phillips, 711 S.E.2d 122, 137 (N.C. 2011) (“When
issues involving successive or simultaneous representation of clients in related matters
have arisen before this Court, we have applied the Sullivan analysis rather than the
Strickland framework to resolve resulting claims of ineffective assistance of counsel.”).
However, for the reasons stated herein, we are persuaded by the Supreme Court’s
cautionary language in Mickens.
22
the defendant in such cases.” Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005). This
danger of speculating prejudice is not as inherent in successive representation matters. 22
Without deciding whether Holloway or Sullivan applies exclusively to joint
or multiple concurrent representation conflicts, we hold that when constitutional claims of
ineffective assistance of counsel based upon successive representation are raised, the
individual claiming ineffective assistance of counsel must demonstrate actual prejudice—
that there is a reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceedings would have been different—pursuant to Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
22
Similar to its federal counterpart discussed in Mickens, 535 U.S. at 175,
122 S. Ct. at 1245, Rule 44(c) of the West Virginia Rules of Criminal Procedure provides
extra protection to defendants regarding the potential dangers of joint representation by
requiring the lower court to specifically address each defendant about such representation:
(c) Joint Representation.—Whenever two or more defendants
have been jointly charged pursuant to Rule 8(b) or have been
joined for trial pursuant to Rule 13, and are represented by the
same retained or assigned counsel or by retained or assigned
counsel who are associated in the practice of law, the court
shall promptly inquire with respect to such joint representation
and shall personally advise each defendant of the right to
effective assistance of counsel, including separate
representation. Unless it appears that there is good cause to
believe no conflict of interest is likely to arise, the court shall
take such measures as may be appropriate to protect each
defendant’s right to counsel.
W. Va. R. Crim. P. 44.
23
We now apply the analysis under Strickland’s second prong to determine
whether A.B. has demonstrated that she was prejudiced or that the outcome of her trial
would have been different but for the trial court’s refusal to relieve Ms. Smith from her
representation. A.B. effectively contends that K.S.’s testimony would have been nullified
if her counsel had been allowed to conduct a thorough cross-examination of K.S. Thus,
under Strickland, there is no prejudice if there was sufficient evidence for the jury to
convict A.B. without K.S.’s testimony.
K.S.’s testimony consisted of a mere two-and-a-half pages. While K.S.
testified that she was the individual who first found the infant G.B. under A.B. and could
not wake A.B., the State presented copious other evidence to support the jury’s verdict.
The State’s witnesses provided testimony amounting to almost 200 pages of additional
direct and redirect testimony that included Grandmother also finding G.B. under A.B.
shortly after K.S., as well as, the testimony of Grandmother, emergency responders, and
medical professionals regarding the mental status and intoxication of A.B. and the living
conditions to which A.B. had subjected her children, including the numerous empty alcohol
bottles. Simply put, there was overwhelming evidence, other than K.S.’s brief testimony,
that demonstrated A.B.’s guilt to all three counts. See State ex rel. Shelton v. Painter, 221
W. Va. 578, 586, 655 S.E.2d 794, 802 (2007) (per curiam) (“Insofar as the guilty phase of
the trial is concerned, we agree with the trial court’s finding that ‘. . . even if counsel’s
performance was deficient, then counsel’s deficient performance DID NOT adversely
affect the outcome of the trial as there was overwhelming evidence of the Petitioner’s
24
[appellant’s] guilt.’” (alteration in original)). Given that A.B. cannot demonstrate that the
outcome of the case would have changed, we find no error.
B. Exculpatory Brady Evidence
In her supplemental brief, A.B. asserted that the State failed to turn over
certain juvenile records of K.S. in violation of Brady. The State disputes that it failed to
turn over any such material. We find no merit in A.B.’s contention that a Brady violation
occurred.
As a general matter, “‘[a] Brady violation occurs when the government fails
to disclose evidence materially favorable to the accused.’” State v. Morris, 227 W. Va. 76,
84, 705 S.E.2d 583, 591 (2010) (per curiam) (quoting Youngblood v. West Virginia, 547
U.S. 867, 869-70, 126 S. Ct. 2188, 2190, 165 L. Ed. 2d 269 (2006)). We have explained
the requirements that must be satisfied for establishing a Brady violation 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)
25
(memorandum decision). See also Skinner v. Switzer, 562 U.S. 521, 536, 131 S. Ct. 1289,
1300, 179 L. Ed. 2d 233 (2011) (“To establish that a Brady violation undermines a
conviction, a convicted defendant must make each of three showings[.]”).
We need not determine whether the first two components are satisfied
because A.B. cannot meet the third requirement regarding materiality of the evidence at
issue. 23 The evidence at issue—juvenile records of K.S.— were not a material element of
the evidence, the absence of which prejudiced A.B. Regarding the third component, this
Court previously observed in Youngblood,
that “‘[t]he evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.
A [“]reasonable probability[”] is a probability sufficient to
undermine the confidence in the outcome.’” State v. Fortner,
182 W. Va. 345, 353, 387 S.E.2d 812, 820 (1989) (quoting
United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375,
3383, 87 L. Ed. 2d 481 (1985)).
221 W. Va. at 32, 650 S.E.2d at 131. The petitioner must show that the “favorable evidence
could reasonably be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1558, 131
L. Ed. 2d 490 (1995); see also Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763,
23
To be clear, this Court is not making a finding that the first two
Brady/Youngblood factors were met. The State disputes that it failed to turn over any such
material. In fact, during the trial, there was a discussion concerning the psychology records
that defense counsel already possessed and then the State indicated that it had never seen
those records.
26
766, 31 L. Ed. 2d 104 (1972) (holding that reversal is not required where undisclosed
evidence was possibly useful to the defense but not likely to have changed the verdict).
Additionally, the withheld evidence “must be evaluated in the context of the entire record.”
United States v. Agurs, 427 U.S. 97, 112, 96 S. Ct. 2392, 2402, 49 L. Ed. 2d 342 (1976).
Again, the State presented extensive evidence during the trial from several
witnesses regarding all three counts. The witnesses described the circumstances
surrounding G.B. being found, suffocated, under A.B. and A.B.’s intoxication. K.S.’s
grandmother, who lived in the same house, provided similar testimony in even greater
detail. Five witnesses testified as to A.B.’s intoxication on November 7, 2015, including
the emergency room doctor who treated A.B. and found her blood alcohol content was
.289. Moreover, witnesses described the deplorable living conditions in the home and the
harm that can come to a child living in those circumstances.
Examining K.S.’s juvenile records within the totality of the evidence, 24 we
do not find that the result of A.B.’s trial would have been different if the records had been
disclosed to the defense. Even if A.B. had the records to cross-examine K.S., and that cross-
examination caused the jury to the doubt the reliability of K.S.’s testimony, such doubt
would not have affected the jury’s verdict because of the overwhelming evidence of A.B.’s
24
K.S.’s alleged juvenile records at issue were at least two years after G.B.’s
death.
27
guilt as to all three counts. Given the evidence supporting A.B.’s guilt from witnesses other
than K.S., the juvenile records would not have been sufficient to place the whole case in
“such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435,
115 S. Ct. at 1558. Consequently, we find that the third component of the
Brady/Youngblood analysis has not been satisfied and that the decision of the lower court
should be affirmed.
IV.
CONCLUSION
For the reasons set forth above, we affirm.
Affirmed.
28