Filed: October 11, 1996
Philip W. Morrison II Jerry Blair
Special Prosecuting Attorney Richard Vital
Winfield, West Virginia Huntington, West Virginia
Attorney for Appellee Attorney for Appellant
JUSTICE CLECKLEY delivered the Opinion of the Court.
1. "Prior trial testimony is admissible as an exception to the hearsay rule under Rule 804(b)(1) of the West Virginia Rules of Evidence. Therefore, impeachment by reason of an inconsistent statement is available under Rule 806 of the West Virginia Rules of Evidence." Syl. Pt. 2, State v. Hall, 174 W. Va. 787, 329 S.E.2d 860 (1985).
2. A statement or conduct by a declarant that is inconsistent with his or
her hearsay statement that is admitted pursuant to Rule 806 of the West Virginia Rules of
Evidence is not subject to the traditional requirement of affording the declarant an
opportunity to explain or deny the inconsistency.
3. "'An appellant or plaintiff in error will not be permitted to complain
of error in the admission of evidence which he offered or elicited, and this is true even of
a defendant in a criminal case.' Syl. pt. 2, State v. Bowman, 155 W. Va. 562, 184 S.E.2d
314 (1971)." Syl. Pt. 1, State v. Compton, 167 W. Va. 16, 277 S.E.2d 724 (1981).
4. A witness should give responsive answers to questions of counsel, and answers that are not responsive may be stricken on motion of the examining party especially if the unresponsive answer contains inadmissible evidence. Unresponsive answers, or those that are responsive but broader than the question, should not be viewed
as the responsibility of the questioner. On the other hand, a responsive answer, one that
is reasonably within the scope of the question, even though prejudicial, should not be
stricken as unresponsive.
5. "In a criminal proceeding, the defendant's absence at a critical stage
of such proceeding is not reversible error where no possibility of prejudice to the defendant
occurs." Syl. Pt. 3, State ex rel. Redman v. Hedrick, 185 W. Va. 709, 408 S.E.2d 659
6. The first inquiry under the "plain error rule" codified in Rule 52(a)
of the West Virginia Rules of Criminal Procedure is whether "error" in fact has been
committed. Deviation from a rule of law is error unless it is waived. Waiver is the
intentional relinquishment or abandonment of a known right. When there has been such
a knowing waiver, there is no error and the inquiry as to the effect of the deviation from
a rule of law need not be determined.
7. Rule 16(a)(1)(C) of the West Virginia Rules of Criminal Procedure requires that upon the request of the defendant the State shall permit the defendant to inspect tangible objects that are material to the preparation of the defendant's defense. The right of inspection under this rule includes the right to have the defendant's own expert
examine the tangible evidence that the State contends was used or possessed by the
defendant at the time of the commission of the crime.
8. A criminal defendant who desires to analyze an article or substance
in the possession or control of the State under Rule 16 of the West Virginia Rules of
Criminal Procedure should file a motion setting forth the circumstances of the proposed
analysis, the identity of the expert who will conduct such analysis, and the expert's
qualifications and scientific background. The trial court may then, in its discretion,
provide for appropriate safeguards, including, where necessary, the performance of such
tests at the State laboratory under the supervision of the State's analyst.
9. "A person convicted of a felony may not be sentenced pursuant to W. Va. Code, 61-11-18, -19 , unless a recidivist information and any or all material amendments thereto as to the person's prior conviction or convictions are filed by the prosecuting attorney with the court before expiration of the term at which such person was convicted, so that such person is confronted with the facts charged in the entire information, including any or all material amendments thereto. W. Va. Code, 61-11-19 ." Syl. Pt. 1, State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987).
The defendant below and appellant herein, James L. Crabtree, appeals his
conviction for recidivism and the underlying convictions for malicious wounding and
battery. The defendant contends the trial court committed several errors which justify
reversal of the recidivism conviction and the malicious wounding and battery convictions.
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Morrison testified at trial that the defendant was one of several people with whom she had been drinking on the evening of June 23, 1993. She further testified that the defendant's wife appeared at the boat docks several times over the course of
several hours to try to persuade the defendant to go home. At about 11:15 or 11:30 p.m.,
the others in the group left, leaving the victim and the defendant alone. Shortly thereafter,
the defendant's wife again arrived in her car and the defendant went to speak with her.
Ms. Morrison testified that she decided to leave when she heard the defendant and his wife
arguing. She testified additionally that as she walked away, she heard someone run up
behind her and then heard the defendant say: "You son-of-a-bitches ain't getting by with
this." The victim was then hit on the back of the head. According to her testimony, the
victim had no memory of anything until the next morning when a police officer asked her
who had beaten her.
The defendant's theory at trial was that he was on his way to the home his
friend, Billy Joe Workman, at the time the crime was committed. This theory was actually
the defendant's second alibi since he had originally told the police that he was at another
friend's house, but later recanted this alibi after that friend admitted that the defendant had
not been at her house on the night of the crime.
At the preliminary hearing Mr. Workman testified that the defendant woke him at his home at about 11:45 on June 23, 1993, and stayed at his house for about an hour and a half. The preliminary hearing statement of Mr. Workman was read into the record at trial, as he died before the trial. During a bench conference, the prosecutor
informed the trial court and defense counsel that he would be calling Karen Spoor, the
defendant's parole officer at the time the crime was committed, to say that Mr. Workman
told her the defendant did not reach his house until 2:00 in the morning. The defendant
objected to the introduction of Mr. Workman's statement to Ms. Spoor on the grounds that
such statement was hearsay and because Mr. Workman was not available for cross-
examination. The trial court ruled the statement was admissible and that a limiting
instruction would be given to inform the jury that the testimony was offered for
impeachment purposes only.See footnote 2
Ms. Spoor testified on direct examination at trial that she spoke with Mr. Workman before his death to find out whether the defendant had visited him at his home, which would have been a violation of the defendant's parole. On cross-examination, the State elicited from Ms. Spoor that Mr. Workman told her that the defendant arrived at Mr. Workman's home between 2:00 and 2:30 the morning after the crime. On redirect, defense counsel asked Ms. Spoor if she was relying only on her memory of what Mr. Workman told her as to the time of the defendant's arrival at his home. She replied that her information had been corroborated by Paula Gardner, who was Mr. Workman's parole officer. Over defense counsel's objection, Ms. Spoor explained that Ms. Gardner told her
that Mr. Workman said he went to bed at midnight and the defendant arrived at his house
well after midnight.
During trial, defense counsel made a motion for the trial court to pay for
independent forensic testing of the stick found next to the victim. The State contended that
the stick was used as a weapon to sexually assault the victim, both anally and vaginally.
Upon being apprised that the pubic hairs found on the stick had been matched to those of
the victim by the West Virginia State Police forensic laboratory, the trial court denied the
During jury deliberations, the trial judge received the following written question from the jury: "Will you differentiate between sexual assault, sexual abuse and battery for us?" The judge asked trial counsel if there were any objections to him going into the jury room and giving the jury the three instructions requested. Neither counsel objected, but defense counsel remarked he had never seen that procedure before used. The judge responded he would have the jury return to the courtroom if defense counsel preferred, but he did not want to inconvenience the jury and planned to take the court reporter with him to the jury room and have a transcript made. Defense counsel did not object to that procedure. Later the jury sent a second message requesting the same
instructions be read to them again, to which there was again no objection. However, no
record was made of the proceedings in the jury room between the judge and the jury.
The defendant was convicted of malicious wounding and one count of battery
as a lesser included offense of one of the sexual assault counts. An information for
recidivism was filed by the State charging that the defendant had been found guilty of four
felony offenses: malicious wounding on August 31, 1994; malicious wounding on May
18, 1983; malicious wounding on April 19, 1982; and breaking and entering on June 19,
1980. The defendant moved to dismiss the information on the grounds that the convictions
charged in paragraphs 2 and 3 of the information were under the same indictment and that
paragraph 4 stated the defendant was convicted of breaking and entering when he was
actually convicted of entering without breaking. The trial judge accepted the State's
characterization of the error regarding the entering without breaking charge as a
typographical error and allowed the State to orally amend the information to state the
correct charge. The trial judge also allowed the two malicious wounding convictions
which arose from the same indictment to be listed separately.
The defendant challenges four of the trial court's rulings: (1) the admission of inadmissible hearsay as impeachment evidence; (2) the improper intrusion into the jury room; (3) the denial of the defendant's motion to have a State's exhibit forensically tested; and (4) the commission of both substantive and procedural errors in enhancing the defendant's sentence under the recidivist statute. We address these issues in turn.
The defendant contends the trial court erred in admitting into evidence the testimony of Karen Spoor for the purpose of impeaching the preliminary hearing testimony of Billy Joe Workman, a defense witness who died prior to trial. First, the defendant argues the trial court improperly admitted Ms. Spoor's statement that Mr. Workman told her the defendant arrived at his home between 2:00 and 2:30 the morning after the crime rather than the earlier time of 11:45 p.m., to which Mr. Workman testified at the preliminary hearing. The defendant contends that, because the State did not present this testimony at the preliminary hearing, it should not be allowed to do so at trial.
To the extent the trial court's admission of evidence was based upon an
interpretation of a statute or West Virginia Rule of Evidence, our standard of review is
plenary. State v. Omechiniski, ___ W. Va. ___, ___, 468 S.E.2d 173, 177 (1996); Gentry
v. Mangum, 195 W. Va. 512, 466 S.E.2d 171 (1995). Our review of a trial court's ruling
to admit or exclude evidence if premised on a permissible view of the law, however, is
only for an abuse of discretion. Id.
In Syllabus Point 2 of State v. Hall, 174 W. Va. 787, 329 S.E.2d 860
(1985), we stated:
"Prior trial testimony is admissible as an exception to the hearsay rule under Rule 804(b)(1) of the West Virginia Rules of Evidence. Therefore, impeachment by reason of an inconsistent statement is available under Rule 806 of the West Virginia Rules of Evidence."
Under Rule 806 of the Rules of Evidence, the credibility of the declarant of a hearsay statement may be attacked by any evidence which would be admissible for that purpose if the declarant had testified as a witness.See footnote 3 3 Mr. Workman's prior preliminary hearing
statement was admissible as an exception to the hearsay rule under Rule 804(b)(1).See footnote 4
Workman had testified at trial, his statement could have been attacked by extrinsic
evidence of his prior inconsistent statement under Rule 613(b) of the Rules of Evidence.
Therefore, it was proper to allow impeachment of Mr. Workman's testimony with Ms.
Spoor's testimony as to his inconsistent statement.
The defendant's argument that Ms. Spoor's statement should not have been admitted at trial because it was not presented at the preliminary hearing is without merit.
In the case of a hearsay declarant who makes an out-of-court statement that is inconsistent
with the hearsay statement that is introduced, evidence of the inconsistent statement is
admissible without regard to the usual rule that requires an opportunity for the speaker to
explain the earlier statement. As we have previously recognized, Rule 806 abolishes the
foundation requirement for impeachment of an admitted hearsay statement: "The language
of the rule makes it clear that 'a statement or conduct by the declarant at any time,
inconsistent with his hearsay statement' is not subject to the traditional requirement of
affording the declarant an opportunity to explain or deny the inconsistency." State v. Hall,
174 W. Va. at 792, 329 S.E.2d at 864-65.
The defendant next argues the trial court erred in admitting the testimony of Ms. Spoor as to Mr. Workman's corroborating statement to Paula Gardner regarding the time of the defendant's arrival at Mr. Workman's house on the night of the crime. While the defendant is correct in his assertion that neither Rule 805 nor Rule 806 allows inadmissible hearsay within hearsay for impeachment purposes, see State v. Sutphin, 195 W. Va. 551, 466 S.E.2d 402 (1995), we hold that in this instance the error was forfeited under the "invited error" doctrine. In other words, we find the hearsay evidence was either invited by or in response to questions by defense counsel. Where inadmissible evidence is introduced solely as a result of the rigorous examination of the complaining party, the error is deemed invited error. State v. Hanson, 181 W. Va. 353, 363, 382
S.E.2d 547, 557 (1989); Fluharty v. Wimbush, 172 W. Va. 134, 137, 304 S.E.2d 39, 42
"Invited error" is a cardinal rule of appellate review applied to a wide range
of conduct. It is a branch of the doctrine of waiver which prevents a party from inducing
an inappropriate or erroneous response and then later seeking to profit from that error.
The idea of invited error is not to make the evidence admissible but to protect principles
underlying notions of judicial economy and integrity by allocating appropriate
responsibility for the inducement of error. Having induced an error, a party in a normal
case may not at a later stage of the trial use the error to set aside its immediate and adverse
consequences. In Syllabus Point 1 of State v. Compton, 167 W. Va. 16, 277 S.E.2d 724
(1981), we stated: .
"'An appellant or plaintiff in error will not be permitted to complain of error in the admission of evidence which he offered or elicited, and this is true even of a defendant in a criminal case.' Syl. pt. 2, State v. Bowman, 155 W. Va. 562, 184 S.E.2d 314 (1971)."See footnote 5 5
The defendant argues the invited error doctrine applies only when the error
is caused by a defendant. He claims that inadmissible hearsay was injected into the trial
as the result of an unresponsive answer to his question. Of course, a witness should give
responsive answers to questions, and answers that are not responsive may be stricken on
motion of the examining party especially if the unresponsive answer contains inadmissible
evidence. See McCormick on Evidence § 52 at 201 (John W. Strong ed., 4th ed. 1992).
Thus, if the answer was unresponsive to the question, the defendant cannot be held
accountable for the error. "Putting a question does not always mean a party opens the door
to whatever subject the answer touches. Unresponsive answers, or those that are
responsive but broader than the question, should not be viewed as the responsibility of the
questioner." Christopher B. Mueller & Laird C. Kirkpatrick, Evidence § 1.4 at 15 (1995).
On the other hand, a responsive answer, one that is reasonably within the scope of the
question or one that does not volunteer matters that are not asked, even though prejudicial,
should not be stricken as unresponsive. See State v. Brannon, 103 W. Va. 427, 137 S.E.
649 (1927). In the case sub judice, we do not believe the answer was unresponsive. The
record indicates the following exchange between defense counsel and Ms. Spoor:
"Q. Are you absolutely certain about the times that he gave you?
"A. I am absolutely certain about the times he
"Q. Did you make a written notation at the time
he gave you those times?
"A. No, I did not.
"Q. Didn't --
"A. No. And, no, I did not.
"Q. So, you're just relying on your memory of
the conversation; is that right?
"A. Yes. I also talked with Ms. Gardner this
morning and verified some information with her.
"MR. BLAIR: Objection. Hearsay.
"THE COURT: No. you asked the question
about what she's basing this on, just her memory, and she's
answering you that it isn't just her memory, what else she did.
It's a fair answer, and I'm going to allow her to give it to the
It seems clear to us that the answer given by the witness was not only
reasonably foreseeable but was a fair response in that it gave completeness to the answer.
Nevertheless, even had the witness not assumed the initiative by giving a complete answer,
the State was free to bring this matter out in its reexamination of the witness.
The above discussion, however, does not end our appellate analysis. Deviation from the doctrine of invited error is permissible when application of the rule would result in a manifest injustice. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct.
2868, 2877, 49 L.Ed.2d 826, 837 (1976); Hormel v. Helvering, 312 U.S. 552, 558, 61
S. Ct. 719, 722, 85 L.Ed. 1037, 1042 (1941). As the Fourth Circuit Court of Appeals
said in Wilson v. Lindler, 995 F.2d 1256, 1262 (4th Cir. 1993):
"However, the doctrine is not without exception. A court is required to reverse a conviction, despite the 'invited error' in 'exceptional circumstances.' United States v. Schaff, 948 F.2d 501, 506 (9th Cir. 1991). To demonstrate exceptional circumstances, the party inviting the error must demonstrate that reversal 'is necessary to preserve the integrity of the judicial process or to prevent a miscarriage of justice.'" (Citations omitted).
In the appellate context, whether the circumstances of a particular case justify
deviation from the normal rule is left largely to the discretion of the appellate court.
However, we find no compelling reason to apply the exception. The circumstances of this
case do not indicate that its application "is necessary to preserve the integrity of the
judicial process or to prevent a miscarriage of justice." The weight of the evidence against
the defendant was heavy. There was overwhelming identification evidence of the
defendant by the victim and such evidence reduced the likelihood that this hearsay evidence
substantially influenced the verdict.
Right of Accused to be Present at Critical Stages
from the jury room, he related to counsel what had transpired between him and the jury.See footnote 7 7
Later the jury requested the same instructions be read to them again, and the judge again,
without objection, entered the jury room to read the requested instructions. No record was
made of the proceeding.See footnote 8
The issue presented here is under what circumstances may a trial judge communicate with a deliberating jury without the defendant being present. Because this issue involves constitutional and rule analyses, we review this issue of law de novo.
Section 14 of Article III of the West Virginia Constitution, as well as the Fifth and Sixth
Amendments to the United States Constitution, establishes a criminal defendant's right to
be present at all critical stages of a trial. In Syllabus Point 1 of State ex rel. Redman v.
Hedrick, 185 W. Va. 709, 408 S.E.2d 659 (1991), we stated:
"'The defendant has a right under Article III, Section 14 of the West Virginia Constitution to be present at all critical stages in the criminal proceeding; and when he is not, the State is required to prove beyond a reasonable doubt that what transpired in his absence was harmless.' Syl. pt. 6, State v. Boyd, 160 W. Va. 234, 233 S.E.2d 710 (1977)."
See also Illinois v. Allen, 397 U.S. 337, 338, 90 S. Ct. 1057, 1058, 25 L.Ed.2d 353, 356
(1970) (Sixth Amendment); Snyder v. Massachusetts, 291 U.S. 97, 106-08, 54 S. Ct. 330,
332-33, 78 L.Ed. 674, 678-79 (1934) (Fifth Amendment). This right to be present,
however, is not absolute and can be waived by the voluntary action of the defendant.
Taylor v. United States, 414 U.S. 17, 19-20, 94 S. Ct. 194, 195-96, 38 L.Ed.2d 174, 177-
78 (1973) (per curiam). Similarly, Rule 43 of the West Virginia Rules of Criminal
Procedure provides a defendant with a parallel right to be personally present at every
stage of the trial. However, we have held repeatedly that Rule 43 violations can constitute
harmless error. In Syllabus Point 3 of State ex rel. Redman v. Hedrick, supra, we held:
"In a criminal proceeding, the defendant's absence at a critical stage of such proceeding
is not reversible error where no possibility of prejudice to the defendant occurs."
The State concedes that the above constitutional and rule-based rights extend
to the portion of the proceedings from which the defendant was personally absent.
However, the State contends these rights were effectively waived by the defendant by his
acquiescence in the trial court's ex parte communications with the jury. We conclude that
the asserted violation of the defendant's right to be present was waived and that, even in
the absence of a waiver, the error is harmless. We will first discuss why the error is
Our cases identify two sources of prejudice to a criminal defendant when a
defendant is absent from a critical stage of a criminal trial: (a) the jury might draw an
adverse inference from the defendant's absence, and (b) the defendant might have
information necessary to the effective advocacy of his or her case. See State v. Allen, 193
W. Va. 172, 455 S.E.2d 541 (1994). We find no reasonable possibility that either type
of prejudice existed here and, in the unlikely event the trial court erred, we find that error
to be harmless. Regarding the possibility that the jury might have drawn an adverse
inference, we note that neither party was present at the time the trial judge spoke alone to
the jury. If there was prejudice to the defendant, it was offset by the absence of the
prosecutor. Given this fact, it is difficult to believe the jury even considered the
defendant's absence, much less drew an adverse inference therefrom.
Regarding the second possible source of prejudice, we are not told of nor do
we perceive any possibility that the defendant could have aided the trial judge in reading
the jury instructions, which apparently was done twice.See footnote 9
We realize the State's burden of
proving harmlessness in such circumstances is an onerous one, and we are especially wary
of labeling such an error harmless when the absence at issue involves ex parte
communications with a deliberating jury. Nevertheless, our cases establish that no per se
rule requires us to reverse,See footnote 10
and our review of the record convinces us that no reasonable
possibility exists that the defendant's absence contributed in any way to the jury's verdict.
More importantly, we find any asserted constitutional and rule-based violations have been waived. Rule 43(a) requires trial courts to disclose communications with jurors and provide the defendant with an opportunity to be heard prior to responding
to the communications. Rogers v. United States, 422 U.S. 35, 39, 95 S. Ct. 2091, 2095,
45 L.Ed.2d 1, 6 (1975). At the time the trial court informed the parties of the
communication and advised them of his plan to communicate with the jury alone, the
defendant failed to raise an objection, but specifically said he had no objection to the
procedure. Nevertheless the defendant now insists the error should be corrected under our
plain error doctrine. Our consideration of this issue is controlled by State v. Miller, 194
W. Va. 3, 459 S.E.2d 114 (1995). Under Miller, plain error is only available to correct
error if the error was not waived. Thus, we must first determine whether the error was
waived or forfeited.
In adopting the United States Supreme Court's definition of "plain error" as
set forth in United States v. Olano, 507 U.S. 725, 113 S. Ct. 1770, 123 L.Ed. 2d 508
(1993), Miller, 194 W. Va. at 18, 459 S.E.2d at 129, makes clear the demarcating line
between "waiver" and "forfeiture" and the legal significance of each:
"[T]he first inquiry under [Rule 52(b) of the West Virginia Rules of Criminal Procedure] is whether there has in fact been error at all. . . . [D]eviation from a rule of law is error unless there is a waiver. Waiver . . . is the '"intentional relinquishment or abandonment of a known right."' . . . [W]hen there has been such a knowing waiver, there is no error and the inquiry as to the effect of the deviation from a rule of law need not be determined."
Thus, under Miller, this Court does not proceed to determine the impact of the asserted
error until there is a determination of waiver. On the other hand, only if this Court finds
that a "forfeiture" has occurred, is plain error analysis applicable. Recently, in United
States v. Tipton, 90 F.3d 861, 873 (4th Cir. 1996), the Fourth Circuit Court of Appeals
elaborated on the distinction:
"But even where a right has not been waived, any entitlement to have error in its denial or abridgement corrected on appellate review may be forfeited by the 'failure to make timely assertion of [the] right' at trial. Such a forfeiture does not, as does waiver, extinguish the error, but it does impose stringent limitations, embodied in Rule 52(b), on the power of appellate courts to correct the error."
When a right is waived, it is not reviewable even for plain error. By contrast, the simple
failure to assert a right by not objecting--forfeiture--is distinct from an intentional
relinquishment--waiver. Only a forfeiture is reviewable under plain error. See United
States v. David, 83 F.3d 638, 641 n.5 (4th Cir. 1996) ("[t]he important distinction
between forfeiture and waiver is that if a defendant waives a right (which is waivable), he
cannot later raise an objection on the grounds that the failure to provide him with the
waived right is error").
Any reasonable application of Miller clearly shows that we are dealing with a waiver. The defendant voluntarily relinquished any right he had regarding his presence
at the time the trial judge communicated with the jury. The defendant affirmatively
approved the trial judge's request that he be permitted to engage in discussions with the
jury without the defendant being present. We believe this is a perfect case of waiver and,
under our analysis in Miller, we need go no further.
Forensic Testing of Weapon
"MR. BLAIR [counsel for the defendant]: . . . I would like some residue testing of that stick for mucous and epithelial tissue, things of that nature, have somebody from a forensics lab look at it. I have spoken with counsel about that and he intends to oppose that motion.
"MR. MORRISON [Special Prosecutor]: I do, Your Honor. If I recall correctly, there have been a number of medical reports submitted to the defense through the process
of discovery, and I was checking with my officer, and it's our
collective memory that the blood identified on all items,
clothes, stick, everything, matched up serologically with the
victim's blood. And there's never been an allegation that any
of Mr. Crabtree's bodily fluids would be on this stick. I fail
to see how -- why this motion should be granted. It's going to
put the Court to a great amount of suspense [sic]. It's not
going to do anything for the trial of the matter.
"MR. BLAIR: Well, Your Honor, I think if
they're -- she's not going to be able to testify that a stick was
used on her. The only thing we have is, we have a wooden
splinter that supposedly caused a blister -- not a blister, a --
what's the term? I'm sorry. But that's the only evidence that
the stick actually penetrated this woman's body, is that the
splinter caused an abscess -- that's the work -- an abscess to
form. We don't know that it was this stick. We don't know
that it actually happened. I'm not sure that an abscess can
form between the time that she was supposedly assaulted and
the time that she went to the emergency room. I'm not sure an
abscess can form in that amount of time. We feel like showing
this large stick to the jury would be extremely prejudicial
unless there's some kind of hookup between the victim, since
she can't testify to it, and the stick.
"THE COURT: Mr. Morrison, you-all have the
advantage on me. I really don't know what the evidence is
here. So, you're going to have to tell me what is your
evidence that's going to connect this stick to this crime.
"MR. MORRISON: Dr. Thomas, Your Honor, at the St. Mary's Hospital, the doctor that was on call at the emergency room, indicated to me by letter, which I have given to counsel and on the phone, that there was a lesion on the anal verge of the victim, which he originally thought might be a hemorrhoid, but because it subsequently spontaneously drained, as he put it, purulent fluid, it could not have been a hemorrhoid. And it was his opinion that it was caused by this weapon, blunt force trauma to the anal verge.
"COURT: But I mean, how do you tie that to this particular stick?
"MR. MORRISON: This stick has one of the
victim's pubic hairs attached to the end of it.
"THE COURT: That explains it, then.
"MR. MORRISON: Along with a lot of her
blood, Your Honor.
"COURT: I'm going to deny your motion for
further testing as of this time.
The State contends the proposed forensic examination of the stick would not
have revealed anything of a probative nature for the defendant and the stick was used by
the State only for the limited purpose of connecting the stick with the victim through her
pubic hairs. Although we agree with the State as to the limited use of the stick, the record
is not adequate for us to conclude the stick would have revealed nothing exculpatory.
Rule 16(a)(1)(C) of the West Virginia Rules of Criminal Procedure requires: "Upon request of the defendant, the state shall permit the defendant to inspect . . . tangible objects . . . which are material to the preparation of the defense[.]" In United States v. Armstrong, ___ U.S. ___, ___, 116 S. Ct. 1480, 1485, 134 L.Ed.2d 687, 697 (1996), the Supreme Court suggested: "'[T]he defendant's defense' means the defendant's response to the [State's] case-in-chief." Moreover, a plethora of cases suggest the right of inspection includes the right to have the defendant's own expert examine the State's
tangible evidence. See, e.g., United States v. Vaughn, 736 F.2d 665, 666 (11th Cir.
1984), cert. denied, 490 U.S. 1065, 109 S. Ct. 2064, 104 L.Ed.2d 629 (1989); United
States v. Gaultney, 606 F.2d 540, 545 (5th Cir. 1979), rev'd on other grounds sub nom;
Steagald v. United States, 451 U.S. 204, 101 S. Ct. 1642, 68 L.Ed.2d 38 (1981); United
States v. Sullivan, 578 F.2d 121, 124 (5th Cir. 1978). In Gaultney, 606 F.2d at 545, the
"'Fundamental fairness is violated when a criminal defendant on trial for his liberty is denied the opportunity to have an expert of his choosing, bound by appropriate safeguards imposed by the Court, examine a piece of critical evidence whose nature is subject to varying expert opinion.'" Quoting Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir. 1975).
In the seminal article on the subject of the right to test, Professor Giannelli states:
"Discovery should include the right to test and retest evidence previously analyzed by prosecution experts. This right is recognized explicitly in the discovery rules of some jurisdictions. In other jurisdictions, the right to retest is implied from discovery rules that permit the inspection of tangible evidence, such as Rule 16." Paul C. Giannelli, Criminal Discovery, Scientific Evidence, and DNA, 44 Vand. L. Rev. 791, 816 (1991). (Footnotes omitted).
We find the reasoning of the above authorities compelling and, therefore, hold that a concomitant part of the examination or inspection under Rule 16 of the Rules of Criminal Procedure includes the right of the defendant to have an independent forensic analysis
performed on evidence the State contends was used or possessed by the defendant at the
time of the commission of the crime.
Earlier West Virginia cases are in general agreement. Beginning with the
case of State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972), and followed by State v.
Harr, 156 W. Va. 492, 194 S.E.2d 652 (1973), and State v. Adkins, 167 W. Va. 626, 280
S.E.2d 293 (1981), we succinctly have held that a criminal defendant is entitled to examine
evidence that is to be introduced by the State. Specifically, Syllabus Point 3 of Smith
states: "A person charged with possession of an illegal drug should be permitted to
examine the alleged illegal drug under proper supervision and control." Of course, the
right to expert examination can and should be controlled by the trial court. We believe the
appropriate procedure for such testing was adequately spelled out in State v. Faraone, 425
A.2d 523, 526.(R.I. 1981):
"A defendant who desires to analyze an article or substance should file a motion setting forth the circumstances of the proposed analysis, the identity of the expert who will conduct such analysis, [the expert's] qualifications, and scientific background. The court may then, in its discretion, provide for appropriate safeguards, including, where necessary, the performance of such tests at the state laboratory under the supervision of the state's analyst."
Although we do not recognize an absolute right to analyze evidence, a motion in compliance with the above prerequisites should be denied only in cases where the trial
court is satisfied that the motion is not timely made or is made in bad faith. The
opportunity to examine and analyze evidence "should not be conditioned on a preliminary
showing that a [test or] retest is critical or will be favorable." Criminal Discovery,
Scientific Evidence, and DNA, 44 Vand. L. Rev. 791, 818 (1991). Obviously, the
defense cannot know whether the results will be favorable until the examination is
We believe the trial court was wrong initially in denying the motion without
giving the defendant a further opportunity to develop the record; however, the error was
cured by the trial court's subsequent reconsideration of the motion. During a pretrial
hearing held on August 4, 1994, counsel for the defendant again raised the issue of
forensic testing of the State's Exhibit 12. After hearing full arguments on the issue and
over the objection of the State, the following transpired:
"MR. SPURLOCK: May we, Your Honor, be permitted to hire a forensic expert?
"THE COURT: Sure.
"MR. SPURLOCK: And get back to the Court
with the costs of same?
"THE COURT: The trial is August the 29th.
"MR. SPURLOCK: I understand.
"THE COURT: You're [sic] defendant is
insisting in a trial this term of court.
"MR. SPURLOCK: I understand.
"MR. MORRISON: Your Honor, if they would,
I would appreciate knowing the name and location of the
"THE COURT: That's legitimate."
The record does not reflect what was later done by way of forensic testing; however, no
further issue on the subject was preserved for appellate review. To be clear, we would not
hesitate to reverse and remand for further proceedings had the trial court's initial ruling
stood without change. We do not believe, however, under the circumstances of this case
and the record presented to us on this appeal that it is necessary to reverse the conviction.
Rather, consistent with our earlier cases, we find any error in this case has been cured and
the defendant has failed to demonstrate any further error regarding this assignment.
The Recidivist Proceedings
assignment of error need not detain us long. We find the amendment to the recidivist
information was not an abuse of the trial court's discretion and the error in allowing the
jury to consider two separate felonies arising from one indictment was harmless.
The defendant contends that amending "breaking and entering" to "entering
without breaking" is a material change and therefore only could be made in the same term
as the last felony conviction relied upon for the information. The defendant relies on
Syllabus Point 1 of State v. Cain, 178 W. Va. 353, 359 S.E.2d 581 (1987):
"A person convicted of a felony may not be sentenced pursuant to W. Va. Code, 61-11-18, -19 , unless a recidivist information and any or all material amendments thereto as to the person's prior conviction or convictions are filed by the prosecuting attorney with the court before expiration of the term at which such person was convicted, so that such person is confronted with the facts charged in the entire information, including any or all material amendments thereto. W. Va. Code, 61-11-19 ."
In Cain, the amendment charged the defendant with an additional offense with which he had not been confronted during the term of court at which he was convicted. The Court found that to hold that a prosecuting attorney may file amendments to the information subsequent to the term at which the defendant was convicted would deprive the defendant of his right to confront all the charges against him, particularly when the sole reason for the amendment is to add another offense. In this case, there was no new offense
added, but the listed offense of "breaking and entering" was merely changed to reflect the
correct conviction of the lesser offense of "entering without breaking." The prosecutor
stated the mistake was a typographical error, and the trial judge accepted that explanation,
finding it was not a material change.
In addition, the trial judge found that copies of the convictions were attached
to the information provided to the defendant and, therefore, the defendant had notice that
it was a typographical error. Thus, there was no element of surprise to the defendant when
the error was corrected and the defendant was not prejudiced by the change.
The defendant argues the trial court erred by allowing him to be convicted
of recidivism under an information alleging two separate felonies that arose from the same
indictment. In paragraph 2 of the information, the defendant is charged with having been
convicted of malicious wounding in Count I of Felony Case No. 82-C-37 and in paragraph
3 he is charged with having been convicted of the same charge in Count II of the same
case. The defendant is correct that these convictions cannot be counted separately in order
to impose a recidivist sentence upon him. In the Syllabus of State v. McMannis, 161
W. Va. 437, 242 S.E.2d 571 (1978), we stated:
"Where a prisoner being proceeded against under the habitual criminal statute remains silent or says he is not the same person who was previously convicted and sentenced to
the penitentiary offense or offenses alleged in the information,
a circuit court has no jurisdiction to impose an enhanced
sentence under the statute where the State fails to prove
beyond a reasonable doubt that each penitentiary offense,
including the principal penitentiary offense, was committed
subsequent to each preceding conviction and sentence. W. Va.
Code §§ 61-11-18, 19."
As we noted in McMannis, the public policy of deterrence underlying the recidivist statute requires the alleged convictions (except the first) be for offenses committed after each preceding conviction and sentence. In the current case, it is impossible for the conviction in paragraph 3 to have been committed after the conviction and sentence in paragraph 2 since each charge was brought under the same indictment. Therefore, it would have been improper to base a recidivist sentence on those two charges as separate convictions. However, the information included four separate convictions, including the two in paragraphs 2 and 3. Even if the malicious wounding charges in paragraphs 2 and 3 were counted as one conviction, there would have been the necessary three felony convictions in the information on which the jury based its recidivist conviction. Therefore any error was harmless.See footnote 11 11
Footnote: 1 1 The indictment included two unrelated charges of uttering, which were severed from the charges leading to the convictions in this case.
Footnote: 2 2 The trial judge offered a limiting instruction immediately prior to closing arguments.
Footnote: 3 3 Rule 806 of the West Virginia Rules of Evidence states:
"When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E) has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a
witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with his or her hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination."
Footnote: 4 4 Rule 804(b)(1) of the Rules of Evidence states:
"Hearsay exceptions.--The following are not
excluded by the hearsay rule if the declarant is unavailable as
"(1) Former testimony.--Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."
Footnote: 5 5 State v. Harding, 188 W. Va. 52, 55, 422 S.E.2d 619, 622 (1992); State v. Harshbarger, 170 W. Va. 401, 294 S.E.2d 254 (1982); State v. Richey, 171 W. Va. 342, 298 S.E.2d 879 (1982); State v. McCormick, 168 W. Va. 445, 290 S.E.2d 894 (1981); Jennings v. Smith, 165 W. Va. 791, 272 S.E.2d 229 (1980); State v. McGee, 160 W. Va. 1, 230 S.E.2d 832 (1976); Chambers v. Smith, 157 W. Va. 77, 198 S.E.2d 806 (1973).
Footnote: 6 6 The following in camera colloquy took place before the judge entered the jury room the first time.
"THE COURT: I received a written question
from the jury that says, 'Will you differentiate between sexual
assault, sexual abuse and battery for us?' And I'm going to
have this marked as Court's Exhibit 2 and placed in the
permanent record. My sense is that without further ado, I
should go in there and give them the three instructions
regarding sexual assault, sexual abuse and battery that I gave
earlier. Is there any objection [to] my doing that?
"MR. MORRISON: I don't remember the
defense numbers, but that's State's No. 10, I think. And for
the record, there's no objection from the State.
"THE COURT: Do you have any thoughts on that?
"MR. SPURLOCK: Your Honor, I've always before -- we don't have any objection, but I've never seen the procedure done that way.
"THE COURT: Do you want them brought back
out here and have it read out here, rather than me walk in
there? I just didn't want to inconvenience them. I don't care.
I'll bring them out here and read it to them again. It doesn't
make any difference to me. They're all sitting in there. I just
thought I would take the court reporter in there and read them.
"MR. SPURLOCK: Oh, that's fine, Your
Honor. The court reporter is there --
"THE COURT: There will be a transcript of it.
"MR. SPURLOCK: Thank you. Thank you,
"THE COURT: If you want me to bring them
out here, I will.
"MR. SPURLOCK: No, that's fine."
Footnote: 7 7 The following in camera proceeding took place when the judge emerged from the jury room:
"THE COURT: When I went into the jury room to read them the three instructions, the one on sexual assault, the one on sexual abuse and the one on battery, they indicated to me that they did not need to hear the one on sexual assault again. What they needed was for me to read them the sexual abuse and the battery so they could determine the difference between those two things. So, I used my discretion and didn't read them. I asked them again at the end if they wanted the
sexual assault, and they said they did not want to have that
read to them again, but they did want sexual abuse and battery
read, so I read the two defendant's instructions.
"MR. SPURLOCK: Thank you, Your Honor.
"MR. MORRISON: So, it was apparent from
your conversation that they at least had some idea or
understood about the first instruction? They just wanted to
hear the others?
"THE COURT: Correct.
"MR. MORRISON: Thank you, Your Honor.
"THE COURT: That's what they said. And he only question they had about it was they asked me if I could define the word 'contact,' and I told them that contact had a common meaning, that contact meant contact. I couldn't tell them any more than that."
Footnote: 8 8 It is unclear from the record when the defendant was made aware that the proceedings between the judge and jury in the jury room were not recorded.
Footnote: 9 9 The instructions read to the jury were only those relating to the lesser included offenses of sexual abuse and battery under the second degree sexual assault counts. The defendant was found not guilty of one count of sexual assault and guilty of misdemeanor battery on the other. Neither of these relates to the malicious wounding verdict upon which the recidivist case was predicated. Without any allegation by the defendant that something else happened in the jury room which affected the outcome of the case, we must hold the trial judge's unilateral discussions with the jury were not reversible error.
Footnote: 10 10 Unquestionably, the trial judge acts at his or her peril when he or she conducts ex parte communications with a deliberating jury. To be certain there may be circumstances where this type of communication would create a presumption of prejudice. But not every ex parte communication will have that effect and, as the circumstances of this case demonstrate, some violations simply are not prejudicial.
Footnote: 11 11 In a hearing after the trial to address the defendant's motion to request the trial court to reconsider its previous rulings or to grant a new trial or a judgment of
innocence notwithstanding the jury's verdict of guilty, the trial court ruled as follows:
"The prosecuting attorney must show that he had two prior separate felonies prior to the commission of this felony in order to invoke the full effect of the recidivist statute, because
the jury could have found that Mr. Crabtree was the person on
one of those indictments and was not the person on the other,
the prosecutor had the right to present both of those.
"I indicated to you that in the event that they
found him not guilty on the one that was not related to that,
that is that he was not that person, and that he was the person
on both of these, that I would count that as only one felony for
purpose of the recidivist statute, but I do believe the prosecutor
has the right to present all prior felonies in the event that they
would have found him to have been the person on one of those
and not been the person on the other, but that I was going to
treat them as you correctly, I think, interpret the recidivist
statute, as simply one felony. That is the prosecutor will only
be allowed to count one of the two.
"In this case, the jury found him on two of those, but I am only considering it as one prior felony because of the logic that you bring up. I think you're exactly right about that."