State v. Rock

State of West Virginia, Plaintiff Below, Respondent v. Timothy Rock, Defendant Below, Petitioner

No. 20-0056

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

March 23, 2021

(Harrison County 19-F-71-2)

MEMORANDUM DECISION

Petitioner Timothy Rock, by counsel Michael B. Hissam, J. Zak Ritchie, and Max C. Gottlieb, appeals the Circuit Court of Harrison County's December 16, 2019, order sentencing him to concurrent terms of not less than one nor more than ten years of incarceration for each of his seventeen falsifying accounts convictions and to not less than one nor more than five years of incarceration for his conspiracy conviction, which was ordered to be served consecutively to the other sentences. Respondent the State of West Virginia, by counsel Mary Beth Niday, filed a response. Petitioner filed a reply.

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.

On January 8, 2019, petitioner and Deputy Steven Snyder were indicted on twenty-seven counts of falsifying accounts and one count of conspiracy to commit a felony. Petitioner and Deputy Snyder were both former deputies with the Harrison County Sheriff's Office assigned to that office's Street Crimes and Drug ("SCAD") Unit. In that capacity, they utilized confidential informants ("CIs") to make controlled purchases of drugs. Petitioner primarily managed the CIs.

The charges against petitioner and Deputy Snyder concerned their falsification of vouchers documenting payments made during controlled drug buys in 2016, including payments made to CIs in exchange for their assistance in making controlled drug buys. The officers were required to complete vouchers documenting expenditures each day; however, the officers frequently failed to timely complete and submit them, which necessitated meeting to complete the vouchers in bulk for prior controlled drug buys. The officers both created new vouchers and modified existing vouchers so that the sums reflected on the vouchers corresponded to the sums obtained from the Harrison County Commission to make controlled drug buys, which allowed the deputies to obscure the fact that government funds were unaccounted for from the SCAD Unit's buy account. It was alleged that the CIs did not receive the amounts reflected on the vouchers. It was further alleged that petitioner provided the CIs heroin in exchange for their service, in lieu of money.

Petitioner's trial commenced on August 20, 2019. Various witnesses testified on the State's behalf, including other law enforcement officers and several of the CIs who worked for petitioner.¹ Due to the posture of this case on appeal and the assignments of error raised, however, an exhaustive recitation of the evidence introduced is unnecessary. Of relevance to the issues on appeal, we note that petitioner objected at trial to evidence of his provision of drugs to his CIs for their service. Petitioner argued that the evidence constituted Rule 404(b) evidence and that its "prejudice clearly outweighs any probative value" under Rule 403.² The State explained that the receipt of drugs was "exactly what made these vouchers false, . . . it's not 404(b), it's not another event, it's not a separate event, it's not a separate act." The court overruled petitioner's objection, finding that, "[w]ell, clearly it's prejudicial. But the [c]ourt believes that it is part of the Res gestae. . . . [I]t's part and parcel of the again, the falsifying accounts."³

At the conclusion of petitioner's trial, the jury found him guilty of seventeen counts of falsifying accounts and one count of conspiracy. The jury acquitted him of the remaining ten counts of falsifying accounts.

In addition to the investigation at the state level giving rise to petitioner's state charges and convictions, there was a federal investigation that culminated in a September 4, 2019, federal indictment charging petitioner with four counts of distributing heroin. Ultimately, petitioner was convicted of each of those four counts.

Petitioner filed motions for judgment of acquittal and a new trial ("post-trial motions") in the circuit court on September 9, 2019.⁴ Although petitioner raised a number of grounds in his post-trial motions in support of the relief sought, on appeal he continues to assign as error only the court's admission of the evidence that he supplied drugs to his CIs, which he maintained was in violation of Rules 403 and 404 of the West Virginia Rules of Evidence.

On November 15, 2019, petitioner filed a "Supplemental Memorandum in Support of the Post Trial Motions of the Defendant; Reply in Support of Post Trial Motions of the Defendant; and, Motion to Continue Hearing Regarding Post Trial Motions and Sentencing" ("supplemental post-trial motions"). Petitioner asserted that he was entitled to a new trial on all counts due to the State's failure to produce exculpatory evidence that "was discovered as a result of the federal trial of the defendant ending on November 14, 2019." Petitioner asserted that the federal action "involves the same issues presented to the jury in the" instant action and that the Harrison County Sheriff's Office and the Federal Bureau of Investigation worked in tandem in investigating petitioner. Petitioner further noted that three "significant" witnesses testified in both the federal and state proceedings, namely, two CIs and Deputy Snyder. Petitioner stated that, upon information and belief, an audio recording of a conversation between the two CIs existed in which one CI advised the other that "they need to get their stories straight," that the CI "needed assurances that [the other CI] was on his team," and that Deputy Snyder had informed the CI that he and the other CI "could get millions in a lawsuit."⁵ But due to a protective order that had been entered in the federal action, petitioner's counsel did not possess, nor had he even heard, the recording.

Petitioner listed additional audio recordings, video recordings, and messages that he "believed to exist" but that were not produced. Aside from the supposed general content of the phone call between the CIs, petitioner did not describe the expected significance of any other piece of evidence he identified. In fact, petitioner acknowledged that "[b]ased upon the protective order in the federal action it is unclear the extent to which the various information . . . disclosed in the federal action [is] favorable, exculpatory or impeaching," and he was "preclude[d] . . . from articulating the materiality of each item." Nevertheless, he argued that the State was obligated to produce the evidence as impeachment or exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and State v. Hatfield, 169 W. Va. 191, 286 S.E.2d 402 (1982).⁶

The parties appeared for a hearing on post-trial motions and sentencing on November 18, 2019. Petitioner argued his post-trial motions and supplemental post-trial motions but conceded that he could not "tell the [c]ourt right now if [the identified evidence] would make a difference because we haven't had the opportunity to review it."

In addressing petitioner's claims, the court began by noting that petitioner's supplemental post-trial motions were "built upon speculation upon speculation upon speculation." It also stated that

the first hurdle that the [c]ourt would have to address is whether or not this state police officer had access to all that information that's believed to be in the possession of the federal government. There's no evidence that he did or—and withheld that deliberately or even incidentally to these proceedings. And it seems to me that given the fact that it's truly speculative at this point, the [c]ourt believes there is not sufficient evidence to justify continuing the posttrial practice at this point and then if appropriate sentencing.

Finding that Brady and Hatfield were "not violated by the State under these circumstances and in this case," the court denied petitioner's post-trial motions and supplemental post-trial motions. The court then proceeded to sentence petitioner to not less than one nor more than ten years of incarceration for each of petitioner's seventeen falsifying accounts convictions, which were to be served concurrently with one another, and to not less than one nor more than five years for petitioner's conspiracy conviction, which was ordered to be served consecutively to the other sentences. The court entered its sentencing order memorializing these rulings on December 16, 2019.⁷ It is from this order that petitioner appeals.

After filing his appeal with this Court, however, petitioner filed in the circuit court a "Motion of the Defendant, Timothy Rock, for Rehearing and Reconsideration of the Denial of the Motions [sic] Judgment of Acquittal; and for a New Trial" ("motion for reconsideration") on February 5, 2020. Petitioner explained that the federal court protective order had been modified to allow him and his counsel access to and use of the information produced in the federal criminal proceeding. Recognizing that the court had denied petitioner a new trial due, in part, to the speculative nature of his supplemental post-trial motions raising the Brady/Hatfield issue,petitioner attempted to expand upon that issue by listing twenty-seven pieces of evidence, the withholding of which he claimed violated his right to due process under Brady and Hatfield. But the items were listed without accompanying argument or other explanation as to the evidence's favorability or materiality, although he did "incorporate[] . . . the legal authority...