CHARLESTON – Justices of the U. S. Supreme Court convinced Justices of the West Virginia Supreme Court of Appeals to grant a new trial to rape suspect Denver Youngblood Jr.

On remand from Washington, the Justices in Charleston tilted on May 10 from 3-2 against a new trial to 3-2 in favor.

They held for the first time that the West Virginia Constitution requires disclosure of evidence that could impeach prosecution witnesses.

Morgan County jurors convicted Youngblood in 2001. Circuit Judge David Sanders sentenced him to 26 to 60 years in prison.

If the state brings him to trial again, jurors will read a note that police suppressed at his first trial. Justices in Washington and Charleston held that the note cast doubt on testimony of three witnesses.

They held that it supported Youngblood's testimony. They held that prosecutors had a duty to show Youngblood the note, even if prosecutors never knew it existed.

"The state argues that the note was not material and could not have changed the outcome of the trial in any way," Chief Justice Robin Jean Davis wrote. "We disagree."

Justices Larry Starcher and Joseph Albright concurred. Last time around, Albright voted against a new trial.

Justices Spike Maynard and Brent Benjamin dissented.

Berkeley Springs police arrested Youngblood July 28, 2000. They had taken a call from a female who said she and two others didn't know where they were and needed help.

Youngblood's mother heard on citizen band radio that police were looking for three women in a car. From her car she saw her son's car. She saw his friend Joe Pitner in front and three teenage females in back.

She waved her son over. They parked and talked.

Police officers Thomas and Barney rolled up. Thomas asked each female if she made a 911 call. Each one said she did not.

Police and mother left. Youngblood drove his group to Pitner's home.

A little later, the men took the females to Hagerstown and abandoned them.

One teenager found her way home. A mother of one picked up the other two and took them to the sheriff's office.

The two said Youngblood and Pitner gave them alcohol and carried guns. Police found the third teenager and took her statement.

From their statements, it appeared that Youngblood and Pitner contributed to the delinquency of minors.

The case turned into a felony when the third teen, the one that found her way home, said Youngblood forced her into oral sex. She said she spat the evidence into a wastebasket at Pinter's home.

Trooper A. T. Peer went to Pitner's home and served a search warrant on owner Patricia Miles, Pitner's aunt. Peer found no evidence.

Two days later, Miles found a note about oral sex in her phone notebook. She called Peer and he came over. She showed him the note.

He told her to destroy it.

She hid it under a cabinet.

A grand jury indicted Youngblood on rape and weapons charges.

At trial before Sanders, the alleged victim testified that Youngblood forced her into oral sex by pointing a gun at her head.

The other teenagers testified that she didn't tell them he forced her.

Youngblood's counsel cross examined prosecution witnesses but called no defense witness, not even Youngblood.

In closing arguments Youngblood's counsel told jurors, "You have got to determine this was consensual."

Jurors disagreed. They convicted Youngblood.

Only then did Patricia Miles dig out the note under the cabinet and show it to Youngblood's counsel.

Youngblood immediately moved for a new trial.

"I actually gave it to him and he read it and he said just throw everything away," Miles said at a hearing. "My nephew, Joe Pitner, was incarcerated and I kept the note."

Her daughter, not otherwise identified in Davis's opinion, said, "I was standing there when he read it."

Peer testified that he did not remember reading the note or telling Miles to throw it away.

Youngblood asked Sanders to send the note out for handwriting analysis. Sanders denied the request.

Sanders denied the motion for new trial. He held that Youngblood intended to use it only to impeach witnesses.

Youngblood petitioned the Supreme Court of Appeals to overturn his conviction. He assigned six errors to Sanders.

The Justices affirmed Sanders in 2005, 3-2.

Youngblood then petitioned the U. S. Supreme Court to certify his conviction for review.

He did not pursue his assignments of error. For the first time he proposed to follow a pair of U. S. Supreme Court precedents, Brady and Hatfield.

The Brady and Hatfield decisions obligate prosecutors to share exculpatory evidence with defendants.

The Justices in Washington approved Youngblood's argument. They directed the Justices in Charleston to apply Brady.

At oral arguments April 17, Robert Stone Jr. of Martinsburg represented Youngblood and Morgan County prosecuting attorney Debra McLaughlin represented the state.

After arguments, Davis dusted off her dissent from two years ago and sharpened it into a majority opinion.

"We believe the circuit court's ruling is inconsistent with the due process requirements of both the federal and state constitutions," she wrote. "We are deeply troubled by the state's conduct in this matter. This issue is not a fleeting matter of possible inadvertence.

"Contrary to the state's position, neither Brady nor Hatfield yield to a claim of failed recollection."

" ... this Court has reversed several convictions on the basis of the state's failure to disclose favorable impeachment evidence."

Davis wrote that the state Supreme Court never has formally recognized the issue under the due process clause of the state Constitution.

"We do so today," she wrote. "The state argues, and the trial court so ruled, that insofar as the police had knowledge of the note, such knowledge could not be imputed to the state for disclosure purposes under Brady and Hatfield. We disagree.

"Clearly this note suggests that Katara told Kimberly or Wendy that Mr. Youngblood performed oral sex on her –- and that she was grateful for this.

"Mr. Youngblood could have used this evidence during the trial not only to impeach Kimberly or Wendy, but to also explore a variety of questioning that logically flows from the statement allegedly made by Katara to Kimberly or Wendy."

She quoted a decision of a federal appeals court that prosecutors cannot get around Brady by keeping themselves in ignorance.

The decision knocked down the weapons conviction as well as the rape conviction. Davis wrote that the charges were intertwined.

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