2. When the government performs a complicated test on evidence that is important to the determination of guilt, and in so doing destroys the possibility of an independent replication of the test, the government must preserve as much documentation of the test as is reasonably possible to allow for a full and fair examination of the results by a defendant and his experts. Syllabus Point 4, State v. Thomas, 187 W.Va. 686, 421 S.E.2d 227 (1992).
3. When the State had or should have had evidence requested by a criminal defendant but the evidence no longer exists when the defendant seeks its production, a trial court must determine (1) whether the requested material, if in the possession of the State at the time of the defendant's request for it, would have been subject to disclosure under either West Virginia Rule of Criminal Procedure 16 or case law; (2) whether the State had a duty to preserve the material; and (3) if the State did have a duty to preserve the material, whether the duty was breached and what consequences should flow from the breach. In determining what consequences should flow from the State's breach of its duty to preserve evidence, a trial court should consider (1) the degree of negligence or bad faith involved; (2) the importance of the missing evidence considering the probative value and reliability of secondary or substitute evidence that remains available; and (3) the sufficiency of the other evidence produced at the trial to sustain the conviction. Syllabus Point 2, State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995).
This case is before the Court upon the appeal of the appellant, Brusie Don Lanham. The appellant appeals the Circuit Court of Ritchie County's July 21, 2005, order denying his motion for a new trial following his conviction of felony-murder, burglary, (See footnote 1) and unlawful assault. The appellant was sentenced to life in prison without the possibility of parole for the felony-murder conviction and received a consecutive sentence of one-to-five- years in prison for the unlawful assault conviction.
In this appeal, the appellant raises legal challenges with regard to the State's alleged destruction of potentially exculpatory evidence. Based upon the parties' briefs and arguments in this proceeding, as well as the relevant statutory and case law, we are of the opinion that the circuit court did not commit reversible error and accordingly, affirm the decision below.
A prosecution that withholds evidence which if made
available would tend to exculpate an accused by creating a
reasonable doubt as to his guilt violates due process of law
under Article III, Section 14 of the West Virginia Constitution.
Syl. Pt. 4, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402
Syllabus Point 4 states:
When the government performs a complicated test on
evidence that is important to the determination of guilt, and in
so doing destroys the possibility of an independent replication
of the test, the government must preserve as much
documentation of the test as is reasonably possible to allow for
a full and fair examination of the results by a defendant and his
In Syllabus Point 2 of Osakalumi, we further discussed the State's role in preserving evidence in a criminal case. We explained:
When the State had or should have had evidence
requested by a criminal defendant but the evidence no longer
exists when the defendant seeks its production, a trial court must
determine (1) whether the requested material, if in the
possession of the State at the time of the defendant's request for
it, would have been subject to disclosure under either West
Virginia Rule of Criminal Procedure 16 or case law; (2) whether
the State had a duty to preserve the material; and (3) if the State
did have a duty to preserve the material, whether the duty was
breached and what consequences should flow from the breach.
In determining what consequences should flow from the State's
breach of its duty to preserve evidence, a trial court should
consider (1) the degree of negligence or bad faith involved; (2)
the importance of the missing evidence considering the
probative value and reliability of secondary or substitute
evidence that remains available; and (3) the sufficiency of the
other evidence produced at the trial to sustain the conviction.
In both Thomas and Osakalumi, the defendants were found guilty largely due to the highly questionable scientific evidence that implicated them. In addition, the physical evidence used in the questionable scientific studies in those cases had been destroyed which precluded any opportunity for evaluation by the defense or for adequate cross-examination.
For example, in Osakalumi, the issue in the case was whether a sixteen-year-
old boy shot himself in the head or whether he was murdered. The critical piece of evidence
was a couch where a bullet hole was discovered two months after the shooting had occurred.
Even after discovering the bullet hole, police officers left the bloodied couch at the crime
scene. A few days later the couch was taken to the police department for storage, but
subsequently disposed of at the Mercer County landfill due to an unpleasant odor.
The couch was a critical piece of evidence given the testimony by Dr. Sopher, the medical examiner for the State of West Virginia. Dr. Sopher's testimony, which focused on the trajectory of the bullet through the couch, was paramount to the prosecution's contention that the death was a result of a homicide and not a suicide. In fact, it was the only evidence of murder presented at trial. The problem, however, was that prior to disposing of the couch, the police failed to measure either the proportions of the couch, the location of the bullet hole on the couch, or the trajectory of the bullet. The police likewise failed to properly photograph either the couch or the bullet hole. Then, two years after the disposal of the couch, Dr. Sopher, who had never actually seen the couch, testified at trial about the trajectory of the bullet based upon a detective's drawing of the couch. Moreover, the detective had put together the drawing of the couch from his memory after the couch had already been destroyed. Given those facts, this Court found that the State breached its duty to preserve evidence because the defendant was foreclosed from fully and fairly examining Dr. Sopher's testimony.
Similarly, in Thomas, the State did not preserve the critical bloodstain sample
for independent testing by the defendant nor did the State preserve the results of the test it
performed. The State did not photograph any of the electrophoresis results leading to the
deprivation of the defendant's right to a full and fair cross-examination of the expert who
performed the electrophoresis test. Again, we found that the State deprived the defendant
of his right to a fair trial.
In the case at hand, however, there was no scientific test that implicated the appellant. Moreover, the State did not rely on a missing piece of evidence, like the blood sample in Thomas, or the couch in Osakalumi, to convict the appellant. Instead, the State relied on eyewitness testimony that clearly indicated that the appellant was at the crime scene acting in a belligerent and threatening manner. The evidence also showed that the appellant approached the front door and began pounding on it. Although the evidence is somewhat vague on the precise order of what occurred next, it is clear that the appellant unlawfully gained entry into a house where he was not welcome, armed with a firearm, and with felonious intent. A gunfight thereafter ensued causing Buck Moore to be injured and Jon Broadwater to be killed.
During the trial, the appellant was able to cross-examine every witness who implicated him in the burglary of the Moore trailer in order to reveal any facts that may have exonerated him. In addition, the appellant offered his own expert witness who testified about proper crime scene procedure. The jury heard all the evidence and convicted the appellant of burglary and felony-murder due to the fact that a homicide occurred during the burglary. See West Virginia Code § 61-2-1. (See footnote 2)
Unlike traditional first degree murder, felony-murder does not require proof of the elements of malice, premeditation, or specific intent to kill. It is deemed sufficient if the homicide occurs accidently during the commission of, or the attempt to commit, one of the enumerated felonies. Syllabus Point 7, in part, State v. Simms, 162 W.Va. 212, 248 S.E.2d 834 (1978). Thus, the State was required to prove (1) the commission of, or attempt to commit, one or more of the enumerated felonies; (2) the defendant's participation in such commission or attempt; and (3) the death of the victim as a result of injuries received during the course of such commission or attempt. State v. Williams, 172 W.Va. 295, 311, 305 S.E.2d 251, 267 (1983) (citing State v. Beale, 104 W.Va. 617, 141 S.E. 7 (1927)).
As previously discussed, the State offered evidence that the appellant committed the felony of burglary by breaking and entering the Moore trailer with the intent to commit a crime. (See footnote 3) The State further presented evidence that as a result of the commission of the burglary, Mr. Broadwater was killed. Thus, the State proved all of the necessary elements of felony-murder.
Moreover, we find no merit to the appellant's contention that the Moore's trailer should have been detained for a longer period of time by the State. Given the specific facts of this case, the trailer was properly returned to the Moore family once the investigation was completed and all necessary evidentiary samples were collected and preserved. This is not a case where the preservation of a bloody shirt, a semen sample, or even a firearm is at issue. In this case, we are dealing with the dwelling house of people of obviously limited means where two families were living at the time of the brutal homicide. It is more than likely that these individuals simply would not have been able to rent a hotel for a year, two years, or for whatever length of time would have elapsed before the appellant's trial and all of his subsequent appeals were exhausted. We cannot imagine many families who are able to afford to buy a new home at the spur of the moment. The Moores needed to get back to their home and pick up the pieces of their lives after this brutal murder and it simply would not have been reasonable to have excluded them from their home indefinitely nor is that the law of this State. It is clear to us that even when the State has a duty to preserve evidence, that duty normally does not result in the need to preserve such evidence for an indefinite and unreasonable period of time.
You simply cannot exclude a victim from his or her home forever. Likewise, you cannot tell a coal miner that he cannot use his truck to get to work for the next year because his vehicle was the subject of a crime. We are dealing with people's livelihoods and we must always approach situations like the one at hand with common sense and reasonableness. We cannot allow for a governmental bureaucracy to allow innocent victims to continue to be victimized.
We do, however, recognize that some crime scenes must be preserved for lengthy periods of time based upon the specific circumstances of a particular crime and the ability to adequately preserve a specific piece of evidence. This is not such a case. As we have discussed, the investigators conducted a full and complete investigation and preserved the necessary evidence in numerous ways including photographs. Upon completing their investigation there simply was no reason to further exclude these victims from returning to their home.
In summary, upon careful review of the record, we find no evidence to conclude that the State withheld or destroyed any exculpatory evidence from the defense. The evidence of the burglary was provided by eyewitness testimony at trial that the appellant broke into the trailer. Additional evidence was provided by Ms. Ahouse's call to 911 for help wherein she declared that the appellant was at the front door trying to get in. This was followed by Ms. Ahouse telling the 911 operator that the appellant just broke the glass of the front door. The State played the 911 tape to the jury at trial. It is clear to us that the primary evidence in this case was eyewitness testimony. The prosecution did not rely on physical evidence at the scene that was lost or was needed by the appellant to reproduce tests. Likewise, there was no missing exculpatory evidence and the State did not fail to photograph the crime scene. In fact, the State gave the appellant approximately 100 photographs of the crime scene. We see no evidence or indication that any exculpatory evidence was withheld or destroyed by the State. It is for these reasons we find that the appellant's conviction should be affirmed.