Scott E. Johnson
Assistant Attorney General
Charleston, West Virginia
Attorney for Appellee
Stephen B. Farmer
Philip J. Combs
King, Allen & Arnold
Charleston, West Virginia
Frank W. Helvey, Jr.
Charleston, West Virginia
Attorneys for Appellant
JUSTICE WORKMAN delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUDGE FOX sitting by temporary assignment.
1. "'Polygraph test results are not admissible in evidence in a criminal trial in this State.' Syl. Pt. 2, State v. Frazier, 162 W. Va. 602, 252 S.E.2d 39 (1979)." Syl. Pt. 1, State v. Chambers, No. 22336, ___ W. Va. ___, ___ S.E.2d ___ (filed March 24, 1995).
2. "In analyzing the admissibility of expert testimony under
Rule 702 of the West Virginia Rules of Evidence, the trial court's
initial inquiry must consider whether the testimony is based on an
assertion or inference derived from the scientific methodology.
Moreover, the testimony must be relevant to a fact at issue.
Further assessment should then be made in regard to the expert
testimony's reliability by considering its underlying scientific
methodology and reasoning. This includes an assessment of (a)
whether the scientific theory and its conclusion can and have been
tested; (b) whether the scientific theory has been subjected to
peer review and publication; (c) whether the scientific theory's
actual or potential rate of error is known; and (d) whether the
scientific theory is generally accepted within the scientific
community." Syl. Pt. 2, Wilt v. Buracker, 191 W. Va. 39, 443
S.E.2d 196 (1993), cert. denied, 114 S. Ct. 2137 (1994).
3. "'Ordinarily where objections to questions or evidence by
a party are sustained by the trial court during the trial and the
jury instructed not to consider such matter, it will not constitute
reversible error.' Syl. pt. 18, State v. Hamric, 151 W. Va. 1, 151
S.E.2d 252 (1966)." Syl. Pt. 1, State v. Acord, 175 W. Va. 611,
336 S.E.2d 741 (1985).
4. "Where the State is unaware until the time of trial of
material evidence which it would be required to disclose under a
Rule 16 discovery request, the State may use the evidence at trial
provided that: (1) the State discloses the information to the
defense as soon as reasonably possible; and (2) the use of the
evidence at trial would not unduly prejudice the defendant's
preparation for trial." Syllabus, State v. Hager, 176 W. Va. 313,
342 S.E.2d 281 (1986), overruled on other grounds by State v.
Woodson, 181 W. Va. 325, 382 S.E.2d 519 (1989).
5. "A delay of eleven years between the commission of a crime and the arrest or indictment of a defendant, his location and identification having been known throughout the period, is presumptively prejudicial to the defendant and violates his right to due process of law, U.S. Const. Amend. XIV, and W. Va. Const. art. 3, § 10. The presumption is rebuttable by the government. Syl. Pt. 1, State ex rel. Leonard v. Hey, ___ W. Va. ___, 269 S.E.2d 394 (1980).
6. When a previously immunized witness is prosecuted, a
hearing must be held pursuant to Kastigar v. United States, 406
U.S. 441 (1972), for the purpose of requiring the State to
demonstrate by a preponderance that all of the evidence it proposes
to use was derived from legitimate sources wholly independent of
the immunized testimony.
Jacob Beard appeals from the June 4, 1993, judgment order of
the Circuit Court of Pocahontas County finding him guilty of two
counts of first degree murder, following a jury verdict returned on
that same date. After examining the record in this case in
conjunction with the numerous assignments of error, we remand this
case for purposes of a KastigarSee footnote 1 hearing.
On June 25, 1980, Vicki Durian and Nancy Santomero, who were
hitchhiking to the annual Fourth of July gathering of the Rainbow
people in Pocahontas County, were shot and killed in a remote
section of that county known as Briery Knob. Not until April 16,
1992, were charges brought against any individual in connection
with these two murders. At that time, Appellant, along with
Johnnie Lewis, Winters "Pee Wee" Walton, Gerald Brown, Arnold
Cutlip, William McCoy, and Richard Fowler were charged with first
degree murder in connection with what had become known as the
"Rainbow murders." These charges were dismissed without prejudice
against Appellant and the other defendants pursuant to a July 17,
1992, order of the circuit court of Pocahontas County because
"issues relating to the credibility of the evidence and testimony
of certain of the State's principle (sic) witnesses as well as the
conduct of the investigation itself . . ." warranted further
Five of the seven individuals originally charged with the
Rainbow murders were indicted on January 13, 1993. The two
individuals who were not indicted--"Pee Wee" Walton and Johnnie
Lewis--were granted immunity. Of the five individuals indicted,
only Appellant was brought to trial. He was convicted of first
degree murder on June 4, 1993, and sentenced to two concurrent life
terms, both without mercy.See footnote 2
Appellant asserts the following assignments of error: (1)
trial court's refusal to admit polygraph test results; (2) trial
court's exclusion of probative evidence regarding another
individual's commission of the murders; (3) trial court's admission
of scientific evidence not disclosed to Appellant until after trial
began; (4) police misconduct; (5) trial court's failure to hold an
in camera hearing pursuant to the crime-fraud exception to the
attorney/client privilege; (6) trial court's failure to grant
Appellant's motion to dismiss for pre-indictment delay; (7) State's
improper reliance upon evidence gained through an unauthorized
grant of immunity; (8) trial court's admission of testimony tainted
because of hypnosis; and (9) the cumulative error rule. We
address each of the assignments of errorSee footnote 3 separately.
Appellant urges this Court to adopt a new position with regard
to the admissibility of polygraph results. We recently restated
our long-standing rule that "'[p]olygraph test results are not
admissible in evidence in a criminal trial in this State.'" Syl.
Pt. 1, State v. Chambers, No. 22336, ___ W. Va. ___, ___ S.E.2d
___ (filed March 24, 1995) (quoting Syl. Pt. 2, State v. Frazier,
162 W. Va. 602, 252 S.E.2d 39 (1979)). Appellant argues that the
rationale underlying Frazier is no longer valid since the United
States Supreme Court issued its decision in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 113 S. Ct. 2786 (1993).
In Frazier, we explained that our rule regarding the
inadmissibility of polygraph test results was premised on "the
questionable scientific accuracy of the test." 162 W. Va. at 608,
252 S.E.2d at 43 (citing Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923)) (holding that expert opinion based on scientific
technique is inadmissible unless technique is generally accepted as
reliable in relevant scientific community). The Supreme Court in
Daubert concluded that Frye's "general acceptance" test was
superseded by the adoption of the Federal Rules of Evidence and
specifically, that admission of scientific evidence is governed by
Federal Rule of Evidence 702.See footnote 4 113 S. Ct. at 2794-96.
This Court, in Wilt v. Buracker, 191 W. Va. 39, 443 S.E.2d 196
(1993), cert. denied, 114 S. Ct. 2137 (1994), extended the Daubert
ruling to West Virginia by holding that the Frye "general
acceptance" test was similarly supplanted by the adoption of Rule
702 of the West Virginia Rules of Evidence. See 191 W. Va. at 46,
443 S.E.2d at 203. In syllabus point two of Wilt, we held that:
In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of evidence, the trial court's initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony's reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory's actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community.
Id. at 41, 443 S.E.2d at 198.
The State observes that Appellant leaps from the supersedence
of Frye, first in Daubert and then in Wilt, to the conclusion that
polygraph test results are now admissible under Rule 702 of the West Virginia Rules of Evidence. As the State correctly contends,
nothing in either decision would suggest such a result. One
commentator has observed, "[a]lthough Daubert requires a different
review by the trial court than Frye did, it will not necessarily
change the court's determination of admissibility." Symposium, The
Impact of Science and Technology on the Courts, 43 Emory L.J. 853,
861 (1994). Consistent with this observation, the court in United
States v. Black, 831 F. Supp. 120 (E.D.N.Y. 1993), concluded that
"nothing in Daubert would disturb the settled precedent that
polygraph evidence is neither reliable nor admissible." Id. at
123. In explaining its position, the Black court stated:
'That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'
. . . .
The Second Circuit has held that 'the results of polygraph examinations are not admissible in this Circuit'. . . . [T]he district court determined that 'it did not believe polygraph tests were sufficiently reliable to warrant the admission of results in evidence' . . . . Nothing in Daubert changes the rationale set forth in . . . [prior decisions]. The polygraph test is simply not sufficiently reliable to be admissible.
831 F. Supp at 122-23 (quoting, in part, Daubert, 113 S. Ct. at
2794-95) (emphasis supplied by Black) (citations omitted).See footnote 5
Like the court in Black, we too, reaffirm the conclusion that
"[t]he polygraph test is simply not sufficiently reliable to be
admissible." 831 F. Supp. at 123; accord 1 Franklin D. Cleckley,
Handbook on Evidence for West Virginia Lawyers § 4-12(F)(3) at 457
(3rd ed. 1994). Despite Appellant's noteworthy efforts at trying
to elevate the image of polygraph results,See footnote 6 we remain convinced that the reliability of such examinations is still suspect and not
generally accepted within the relevant scientific community.
Therefore, any speculation that our position in Frazier regarding
polygraph admissibility is in question due to the Daubert/Wilt
rulings is put to rest today.See footnote 7
Appropriate instructions cured any references made by
witnesses Lewis and Walton to the taking of polygraphs. As we
recognized in syllabus point one of State v. Acord, 175 W. Va. 611,
336 S.E.2d 741 (1985), "'[o]rdinarily where objections to questions
or evidence by a party are sustained by the trial court during the
trial and the jury instructed not to consider such matter, it will
not constitute reversible error.' Syl. pt. 18, State v. Hamric,
151 W. Va. 1, 151 S.E.2d 252 (1966)." 175 W. Va. at 612, 336
S.E.2d at 742. Upon the first reference to a polygraph test during
the cross-examination of Walton, the trial court instructed the
Now, ladies and gentlemen of the jury, you will disregard any reference or any comment about any lie detector test or polygraph test. Any such tests are not admissible in the State of West Virginia. They are not reliable, and they have not been authorized to be administered. If there was any test given or made, results are not considered by the jury and you shall disregard it.
Later, when Lewis referenced a polygraph during his cross-
examination, the judge again reminded the jury "to remember my
previous admonition. Do not speculate about what any test may or may not have been. It's not admissible." Given the judge's
careful and continued admonitions to the jury regarding its duty to
disregard any references to polygraph tests, we find no error on
Prior to trial, Appellant moved to introduce the confession of
Joseph Paul Franklin, a convicted serial killer serving three life
sentences at a federal penitentiary in Marion, Illinois. On March
1, 1984, Franklin told Special Agent Ernest V. Smith of the
Wisconsin Department of Justice that he had killed two white
females in West VirginiaSee footnote 8 and provided a hand drawn map depicting
the location of the murders. He later repeated these statements to
agents with the Federal Bureau of Alcohol, Tobacco, and Firearms.
When he was interviewed by West Virginia State Police Trooper
Debbie DeFalco, he initially denied involvement in the murders but
then took responsibility for the killings.See footnote 9 Following these three
instances, however, Franklin refused to talk further about his
involvement in the murders.
Appellant sought to introduce Franklin's confession, as well
as a detailed map drawn by Franklin in the presence of Wisconsin
officials, which allegedly corroborated his confession.See footnote 10 The trial
court, applying Rule 804(b)(3) of the West Virginia Rules of
Evidence, refused to admit the confession on the grounds that it
lacked the requisite guarantees of trustworthiness. Rule 804(b)(3)
provides the following exception to the general prohibition against
Statement against Interest. --- A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
W. Va. R. Evid. 804(b)(3) (emphasis supplied).
We begin our analysis by noting that trial courts have broad
discretion in making evidentiary rulings and this Court will not
overturn those rulings unless there has been an abuse of
discretion. State v. Bell, 189 W.Va. 448, 453, 432 S.E.2d 532, 537
(1993). An appellate court should find an abuse of discretion only
when the trial court has acted arbitrarily or irrationally. State
v. McGinnis, ___ W.Va. ___, ___, 455 S.E.2d 516, 528 (1994). In
making its ruling, the trial court reasoned:
I am not going to allow his statements because I don't think they have the degree of trustworthiness from a person who is incarcerated and makes one statement today and then won't talk to you after that about it, and then changes his mind when our own officers are there conducting the statement. That it lacks credibility. And when you couple that with a four-time loserSee footnote 11 that has nothing to gain or lose with respect to what the statement is made. (footnote added)
This ruling was made consistent with the recognition in United
States v. MacDonald, 688 F.2d 224 (4th Cir. 1982), cert. denied,
459 U.S. 1103 (1983), that
[i]t is to be recalled that Rule 804(b)(3) places upon the proponent of a statement against interest a formidable burden. The declaration offered to exculpate the accused must be supported by corroborating circumstances that 'clearly indicate the trustworthiness of the statement.' . . . As the Advisory Committee's Notes on this provision instruct, the risk of fabrication in this setting is significant. Consequently, rather than permitting only the jury to decide what weight to give the evidence, the initial responsibility is vested in the . . . [trial] [c]ourt.
688 F.2d at 233 (quoting, in part, Fed. R. Evid. 804(b)(3)See footnote 12)
(emphasis supplied); see also 2 Cleckley, supra, § 8-4(B)(3) at 283
(discussing Rule 804(b)(3)'s requirement of "a finding that the
circumstances clearly indicate that the statement was not
Appellant simply did not meet the "formidable burden" imposed
by Rule 804(b)(3). MacDonald, 688 F.2d at 233. Like the circuit
court below, the trial court in MacDonald was presented with
declarations by an individual whose "pattern of remarks in
admitting and denying complicity rendered her hopelessly
unreliable." Id. Franklin's refusal to speak further with any
West Virginia authorities regarding his commission of the murders
coupled with his vacillating statements provided the circuit court
with convincing evidence of lack of trustworthiness. Quite simply,
the absence of sufficient guarantees against the fabrication of the
Franklin confession compel the conclusion that the circuit court
did not abuse its discretion in refusing to admit the substance of
Franklin's confession.See footnote 13 See MacDonald 688 F.2d at 233; Cleckley, supra, § 8-4(B)(3) at 283 (stating that standard governing the
admission of statements under Rule 804(b)(3) is abuse of
In response to discovery requests propounded to the State on
March 16, 1993, Appellant was apprised of the existence of a July
14, 1980, F.B.I. report analyzing paint chips found on Nancy
Santomero's clothing. The paint chips themselves were apparently
misplaced by the State until the end of the first day of trial.
Upon the re-discovery of the original paint chip samples, the State
had a second analysis performed by Sergeant Alkire of the state
police. Appellant argues that the trial court's admission of the
paint chip samples and the second analysis of the samplesSee footnote 14 violates Rule 16 of the West Virginia Rules of Criminal Procedure, that the
evidence is unreliable, and that the balancing test required by
Rule 403 of the West Virginia Rules of Evidence bars the admission
of such evidence. Additionally, Appellant claims that he was
precluded from performing any independent testing of the chips due
to the misplacement of the samples.See footnote 15
Appellant contends that the State violated the rule established in State v. Hager, 176 W. Va. 313, 342 S.E.2d 281 (1986), overruled on other grounds by State v. Woodson, 181 W. Va. 325, 382 S.E.2d 519 (1989), governing the admission of material evidence not disclosed until trial:
Where the State is unaware until the time of trial of material evidence which it would be required to disclose under a Rule 16 discovery request, the State may use the evidence at trial provided that: (1) the State discloses the information to the defense as soon as reasonably possible; and (2) the use of the evidence at trial would not unduly prejudice the defendant's preparation for trial.
Syllabus, Hager, 176 W. Va. at 313, 342 S.E.2d at 282. Appellant
argues initially that the State violated the first Hager requirement by not disclosing the paint chip evidence "as soon as
reasonably possible." Id.
The State maintains that they first re-discovered the
existence of the paint chip evidence on May 17 or 18, 1993, and
then made Appellant aware of such discovery on May 18, the day
before opening statements. Appellant does not suggest that delay
occurred at this juncture, but instead relies on Sergeant Alkire's
testimony that to the best of his knowledge, no person acting on
the State's behalf made any effort to contact the State Police
Criminal Investigation Bureau in response to Appellant's March 1993
discovery motion. Sergeant Alkire also testified, however, that he
had made unsuccessful efforts in October or November of 1992 to
locate the paint chip evidence.
The flaw in Appellant's argument is that the Hager rule
regarding disclosure pertains to sharing discovered evidence in a
diligent fashion; it does not portend the requirement implied by
Appellant--that any dilatoriness in actually discovering the
evidence should bar the admission of such evidence. Moreover, even
Appellant's counsel conceded that the State "thought they [the
paint chips] were lost" and that "no ill motive" was attributed
against the State in connection with the last minute discovery of
the paint chip samples. We conclude, therefore, that the record in
this case supports the State's conclusion that it disclosed the paint chip discovery "as soon as reasonably possible." Hager, 176
W. Va. at 313, 342 S.E.2d at 282, Syllabus.
Appellant also asserts that admission of the paint chip
evidence is barred by the second requirement of Hager that the use
of such evidence "would not unduly prejudice the defendant's
preparation for trial." Id. On this issue of prejudice, the trial
court recognized that "the defense hasn't actually disclosed its
defense yet, officially[,] . . . [b]ut if it's an alibi defense,
this can't be prejudice."See footnote 16 Moreover, the circuit court recognized
that "there is still time to undertake to rebut it [the new paint
chip report]. There is even time to have the samples analyzed if
. . . [the State] want[s] to . . . ." The record suggests that
Appellant did not request the opportunity to perform an independent
analysis of the re-discovered paint chip evidence. Our cases have
consistently expressed a preference for continuance when there has
been a discovery violation. State ex rel. Rusen v. Hill, 193 W.
Va. 133, ___, 454 S.E.2d 427, 435 (1994); Martin v. Smith, 190 W.
Va. 286, 291, 438 S.E.2d 318, 323 (1993); State v. Barker, 169 W.
Va. 620, 623, 289 S.E.2d 207, 210 (1982) ("even if this were a
'proper' case in which to claim surprise, the appellant failed to
move for a continuance, and, therefore, waived his right to one").
Accordingly, we find no abuse of discretion with regard to the trial court's conclusion that Appellant's trial preparation was not
prejudiced by the introduction of the paint chip evidence.
On the issue of reliability, Appellant maintains that the
State failed to establish a proper chain of custody sufficient to
warrant the admission of the paint chip evidence. Evidence may not
be admitted unless it is authenticated in a manner sufficient to
support a finding that the proffered object is what the proponent
of its admission claims it is. See W. Va. R. Evid. 901(a). We
recently reviewed the rules regarding chain of custody requirements
in State v. Dillon, 191 W. Va. 648, 447 S.E.2d 583 (1994), stating
that "to allow the admission of physical evidence into a criminal
trial, 'it is only necessary that the trial judge, in his
discretion, be satisfied that the evidence presented is genuine
and, in reasonable probability, has not been tampered with.'" Id.
at 662, 447 S.E.2d at 597 (quoting, in part, State v. Davis, 164 W.
Va. 783, 786-87, 266 S.E.2d 909, 912 (1980)). Evidence adduced
regarding the chain of custody showed that Dr. Sopher, the State's
medical examiner, removed the paint chips at issue from Nancy
Santomero's clothing and sent such chips to the state police crime
lab. Due to the succession of officers in charge of the evidence,
it was shown through the testimony of Sergeant Giacalone that he
had received the paint chip evidence from his predecessor Corporal
Keyo who had received it from Lieutenant Barber. While the paint
chip evidence was under the control of Lieutenant Barber, it was
sent for analysis to an F.B.I. laboratory. The paint chips were returned to the state police crime lab and remained in the lab
following such return.See footnote 17 In these circumstances, the court properly
ruled that the evidence was sufficiently authenticated to permit
its admission into evidence. We find no abuse of discretion in the
court's conclusion that a proper chain of custody had been
established through the testimony of Sergeant Giacalone.
The final ground upon which Appellant alleges error concerning
the admission of the paint chip evidence is under Rule 403 of the
West Virginia Rules of Evidence.See footnote 18 Appellant argues that the
probative value of the paint chip evidence was substantially
outweighed by the danger of unfair prejudice. Specifically,
Appellant contends that the unavailability of the vanSee footnote 19 from which
the paint chips were alleged by the State to have emanatedSee footnote 20 substantially reduced the probative value of Sergeant Giacalone's
microscopic analysis of the paint chip evidence performed on May
17, 1993. The record reveals that both the unavailability of the
van and the paint chip analysis were the subject of aggressive and
Appellant's counsel conducted a vigorous cross-examination of
Sergeant Giacalone regarding the second paint chip analysis that he
performed. During this cross-examination, he admitted that it
would be helpful to have a comparison between the paint chips and
the suspect vehicle. In addition, Sergeant Giacalone admitted on
cross-examination that his paint chip analysis was not inconsistent
with the defense's theory that the paint originated from a Chevy
Nova, a vehicle in which witnesses allegedly spotted the two
hitchhikers exiting from prior to the murders. Thus, as the State
notes, "even if Fowler's van was not available for comparison, the
jury had placed before [it] all the relevant evidence designed to
discredit the probative value of the evidence."See footnote 21 We conclude that
the trial court correctly determined that the paint chip evidence
was relevant in light of the proffered testimony regarding the
removal of paint chips by Dr. Sopher from Nancy Santomero's body, the prospective testimony regarding the hitchhikers having been in
Richard Fowler's blue van, and the state's theory that the bodies
had been dragged from the van. Accordingly, we find no error in
the trial court's admission of the paint chip evidence under Rule
403, either from a probative value analysis or from a confusion of
the jury analysis. See W. Va. R. Evid. 403.
Prior to trial, Appellant moved to dismiss the indictment
against him based upon allegations of police misconduct involving
"Pee Wee" Walton and Johnnie Lewis.See footnote 22 The trial court permitted
Walton and Lewis to testify concerning the specific abuse or
intimidation that they allegedly experiencedSee footnote 23 and gave the
following instruction to the jury regarding this testimony:
you have heard evidence that the State's witness, Winters Charles Walton ["Pee Wee"] was physically beaten, threatened and intimidated by a West Virginia State Police officer before giving a statement against Mr. Beard. Likewise, you have heard evidence that the State's witness, Johnnie Washington Lewis, was threatened and intimidated by a State Police officer before giving evidence against Mr. Beard. Therefore, you should consider this evidence when weighing the credibility of these witnesses, and if you believe these threats, intimidation, and/or physical abuse by the State Police has affected the testimony of . . . these witnesses, you may disregard their testimony in its entirety, or give it such weight as you think it entitled.
See Cain v. State, 594 N.E.2d 835, 840 n.6 (Ind. Ct. App. 1992)
("The extent to which threats may have, in some degree, affected a
third party's testimony goes to the weight to be given the
testimony, not to its admissibility.").
Appellant urges this Court to find, like the New York Court of
Appeals in People v. Isaacson, 378 N.E.2d 78 (N.Y. 1978), that "the
police conduct, when tested by due process standards, was so
egregious and deprivative as to impose upon us an obligation to
dismiss." Id. at 81. The trial court in Isaacson "found as a
matter of fact" the following police conduct:
an investigator of the New York State Police struck Breniman [third party turned informant] with such force as to knock him out of a chair, then kicked him, resulting in a cutting of his mouth and forehead, and shortly thereafter threatened to shoot him. Breniman testified that his abuse was administered because he refused to answer a question, that when struck his glasses flew off, that he was kicked in the ribs when down, that a chair was thrown at him, that he was also threatened with being hurled down a flight of steps, and that one of two uniformed State troopers who witnessed these events said, 'I [Breniman] may as well forget about it. They would swear that I fell coming in the substation on the steps.'
Id. at 79.
Although Appellant argues that the instant case is factually
similar to Isaacson on the issue of police conduct, there is a
fundamental difference between the two cases. In contrast to this
case, the Isaacson trial court made specific factual findings of
police misconduct. The present case lacks any similar factual
finding of police abuse.See footnote 24 Another glaring distinction between the
two cases is that Isaacson involved the issue of entrapment.
Without more evidence than presented by the record in this case, we
cannot conclude, as the Isaacson court ruled, that a dismissal is
warranted on due process grounds. See 378 N.E.2d at 81.
While we are not unmindful of the possibility that police
officers may choose to protect each other when it comes to
allegations of misconduct, we are also cognizant of the fact, as
acknowledged in Isaacson that '"[c]riminal activity is such that
stealth and strategy are necessary weapons in the arsenal of the
police officer."' Id. at 85 (quoting Sherman v. United States, 356
U.S. 369, 372 (1958)). The Isaacson court identified four factorsSee footnote 25 to be considered in determining whether a due process violation had
occurred as a result of police action and cautioned that "[n]o one
of these submitted factors is in itself determinative but each
should be viewed in combination with all pertinent aspects and in
the context of proper law enforcement objectives--the prevention of
crime and the apprehension of violators, rather than the
encouragement of and participation in sheer lawlessness." 378
N.E.2d at 83. While the Isaacson case presents an excellent
discussion of due process analysis in the context of police
misconduct, extension of the Isaacson holding is unwarranted given
the absence of a trial court finding of police abuse and the
additional missing element of entrapment.
V. Crime-Fraud Exception
Appellant cites error in the trial court's refusal to hold an in camera hearing concerning the applicability of the crime-fraud exception to the attorney/client privilege arising from lawyer Marilyn Thompson's representation of Johnnie Lewis. The predicate for this assignment was the fact that while in Ms. Thompson' presence, Lewis stated at least five different times that he was not present when the Rainbow victims were killed and that he knew nothing about the murders. Then in September 1992, when Ms. Thompson was not present he changed his story to implicate Appellant.See footnote 26 Upon becoming aware of her client's altered statements, Ms. Thompson sought and was granted permission to withdraw as Lewis' counsel.
The purpose of the crime-fraud exception to the
attorney/client privilege was explained in United States v. Zolin,
491 U.S. 554 (1989), as seeking "to assure that the 'seal of
secrecy,' between lawyer and client does not extend to
communications 'made for the purpose of getting advice for the
commission of a fraud' or crime." Id. at 563 (quoting Clark v.
United States, 289 U.S. 1, 15 (1933) and O'Rourke v. Darbishire,
 A.C. 581, 604 (P.C)). The Supreme Court in Zolin announced
the following standard for determining whether to hold an in camera
hearing relevant to the crime/fraud exception:
Before engaging in in camera review to determine the applicability of the crime-fraud exception, 'the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person,' that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.
Once that showing has been made, the decision whether to engage in in camera review rests in the sound discretion of the district court. The court should make that decision in light of the facts and circumstances of the particular case, including, among other things, the volume of materials the district court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply.
491 U.S. at 572 (emphasis supplied).
Appellant contends that he met the Zolin threshold requirement
of establishing a sufficient showing to invoke the crime-fraud
exception. We disagree. The evidence relied upon by Appellant to
meet the Zolin burdenSee footnote 27 does not suggest that Lewis and his counsel
had "communications . . . in furtherance of a future crime or
fraud." Id. at 563. At most, it suggests that Lewis was subject
to suggestion or that he was intimidated by the police and changed
his story when not protected by counsel. Appellant's evidence does
not, however, suggest that Appellant conferred with Ms. Thompson
with the objective of committing a prospective fraud upon the
court. The trial court did not abuse its discretion in refusing to
hold an in camera hearing since Appellant failed to make a sufficient showing regarding the applicability of the crime-fraud
Appellant maintains that the thirteen-year delay between
the murders and his indictment constitute a violation of his due
process rights. In support of his argument, he claims to have been
severely prejudiced by the lengthy time span between the commission
of the murders and the indictment due to the death of several
witnesses; the destruction of his employer's work records; the
occurrence of a natural disaster which destroyed evidence in the
State's possession; significant changes to the crime scene; his
inability to challenge the credibility of the State's witnesses by
investigating their activities on the date of the murder; and the
destruction of Richie Fowler's van in 1987 for scrap value.
Appellant relies on State ex rel. Leonard v. Hey, ___ W. Va.
___, 269 S.E.2d 394 (1980), in which this Court held that
[a] delay of eleven years between the commission of a crime and the arrest or indictment of a defendant, his location and identification having been known throughout the period, is presumptively prejudicial to the defendant and violates his right to due process of law, U.S. Const. Amend. XIV, and W. Va. Const. art. 3, § 10. The presumption is rebuttable by the government.
Id. at ___, 269 S.E.2d at 394, Syl. Pt. 1. As the State points
out, however, the facts in Hey differ substantially from those present in this case. In Hey, the State "had all the evidence upon
which to proceed" during that eleven-year span, whereas in the
instant case the State maintains that not until April of 1992 did
Lewis and Walton provide information implicating Appellant. Id. at
___, 269 S.E.2d at 395.
In Hundley v. Ashworth, 181 W. Va. 379, 382 S.E.2d 573 (1989),
we refused to apply the burden-shifting mechanism announced in Hey "because the prosecutor was not shown to have knowledge of the identity and location of the defendant." Id. at 382, 382 S.E.2d at 576; accord State v. Carrico, 189 W. Va. 40, 427 S.E.2d 474 (1993) (holding that two-year pre-indictment delay did not violate defendant's due process rights since government promptly sought indictment upon securing sufficient evidence). As was the case in Hundley, there is no need to engage in a Hey burden-shifting analysis because there is no evidence that the State had knowledge prior to April 1992 connecting Appellant with the Rainbow murders.
In essence, Appellant's pre-indictment delay argument is truly
a complaint that the State's investigation of the Rainbow murders
spanned more than a decade. Yet, Appellant does not charge that
the State failed to use reasonable diligence in securing an
indictment upon "'discovering sufficient facts to justify
indictment.'" Syl. Pt. 1, in part, Carrico, 189 W. Va. at 42, 427
S.E.2d at 476 (quoting Hey, ___ W. Va. at ___, 269 S.E.2d at 398).
We find no reversible error on the issue of pre-indictment delay as the State was investigating the crimes during the thirteen-year
post-crime delay and promptly charged Appellant once it had the
necessary grounds to secure an indictment.
Prior to trial, Appellant sought a hearing for the purpose of
requiring the State to demonstrate that its case rested entirely on
evidence obtained independent of the State's grant of immunity to
Appellant. This proceeding, known as a Kastigar hearing, places
the burden on the State to affirmatively demonstrate that the
evidence upon which it intends to rely "was derived from legitimate
independent sources" and not from the immunized testimony. See
Kastigar v. United States, 406 U.S. 441, 461-62 (1972). The trial
court refused to hold the requested Kastigar hearing, and ruled
that only statements given by Appellant to police subsequent to the
grant of immunity were not to be admitted at trial without first
holding an in camera hearing on their admissibility.
On February 3, 1983, the State granted Appellant immunity in
exchange for his cooperation with the investigation of the Rainbow
murders. The agreement, signed by the Pocahontas County
Prosecuting Attorney and Appellant,See footnote 28 provided that:
The State of West Virginia agrees not to bring charges or to prosecute the said Jacob Beard for any involvement he may had in the 'Rainbow Murders' as an accessory after the fact, but it is herein expressly understood and agreed that there shall be no immunity granted . . . for any direct involvement in the said murders as a principal, or as an accessory before the fact. If the State . . . deems the testimony of Jacob Beard to be useless to . . . [it], he will nonetheless be granted use immunity for any statements he makes to the said State of West Virginia, its agents or officers pursuant to this agreement.
Appellant contends that during the course of the
investigation, in specific reliance on this grant of immunity, he
provided statements regarding his knowledge of the Rainbow murders.
He further maintains that the State made both direct and indirect
use of information provided pursuant to the agreement. See
Braswell v. United States, 487 U.S. 99, 117 (1988) ("Testimony
obtained pursuant to a grant of statutory use immunity may be used
neither directly nor derivatively."). As an illustration of direct
use, Appellant cites the State's reading to the grand jury a
statement he made upon his arrest to Florida authorities.See footnote 29
The mandatory nature of a Kastigar hearing was recently discussed by the Fourth Circuit Court of Appeals in United States v. Harris, 973 F.2d 333 (4th Cir. 1992):
When the government decides to prosecute a previously use-immunized witness, the district court must hold a so-called Kastigar hearing to allow the government the opportunity to demonstrate that all of its evidence came from sources independent of the compelled testimony. The government bears 'the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.' Courts have interpreted this passage to require the government to make its proof by a preponderance of the evidence. It is not legitimate for the government to alter its investigatory strategy as a result of the immunized statement. As the Court stated in Kastigar, 'This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an 'investigatory lead,' and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.'
973 F.2d at 336-37 (citations omitted).
The State maintains that Appellant's conviction was obtained
solely through the testimony of Lewis and Walton and with no
reliance on any immunized statements made by Appellant. However,
as the court in Harris recognized, the State's representations that
no immunity violation occurred do not take the place of a Kastigar
hearing. See Harris, 973 F.2d at 337 ("government's mere
representations to this effect standing alone are generally
insufficient to carry its burden"). Moreover, the State, like the
trial court, focuses solely on statements made by Appellant, when it is clear from Harris that investigatory leads obtained from
immunized testimony are also covered by the requirements of
Kastigar.See footnote 30 See 973 F.2d at 336-37.See footnote 31
The State argues that "the failure to grant a Kastigar hearing
is harmless where it is otherwise evident that any immunized
evidence admitted at trial did not prejudice the accused." This
statement, however, amounts to an erroneous statement of the
harmless error rule as it relates to the Kastigar hearing
requirement. After the Kastigar hearing has been held,
"[d]ismissal of the indictment or vacation of the conviction is not
necessary where the use is found to be harmless beyond a reasonable
doubt." United States v. North, 910 F.2d 843, 854, opinion
withdrawn and superceded in part on other grounds, 920 F.2d 940
(1990), cert. denied, 500 U.S. 941 (1991) (citing, inter alia,
United States v. Gregory, 730 F.2d 692 (11th Cir. 1984)). Thus,
any determination of harmless error can only be found after a
Kastigar proceeding has been held. See North, 910 F.2d at 854. Accordingly, the State's arguments regarding harmless error are
premature at this juncture.
We conclude that when a previously immunized witness is
prosecuted, a hearing must be held pursuant to Kastigar for the
purpose of requiring the State to demonstrate by a preponderance
that all of the evidence it proposes to use was derived from
legitimate sources wholly independent of the immunized testimony.
See 406 U.S. at 460. While such a hearing should usually be held
at the pretrial stage, it may, under the facts of the case, be
properly held post-trial or mid-trial or at some combination of
these trial stages, as pertinent evidence is offered. See North,
910 F.2d at 854.
Based on the trial court's failure to hold a Kastigar hearing,
remand is necessary for the limited purpose of allowing the State
the opportunity to prove that the evidence used to indict and
convict Appellant was derived from legitimate sources wholly
independent of his immunized testimony. If the State meets its
burden, then Appellant's conviction stands. Upon the failure of
the State to make such a showing, however, the indictment must
either be dismissed or a new trial awarded, unless the error is
determined to be harmless beyond a reasonable doubt. See United
States v. Poindexter, 951 F.2d 369, 377 (D.C. Cir. 1991), cert.
denied, 113 S.Ct. 656 (1992); North, 910 F.2d at 854; Gregory, 730
F.2d at 698.
The licensed psychologist who attempted to induce hypnosis on
Walton testified that, at best, he "was able to put him in . . .
[a] mild or low-level trance." He explained further that, "every
time that I would put him into a trance, as soon as I would get to
anything that would be, I think, related to the offense, as far as
meeting people or talking to people, . . . he would come out of the
trance . . . ." The trial court concluded that Walton's memories
were not induced by hypnosis. As the court in United States v.
Bourgeois, 950 F.2d 980 (5th Cir. 1992), recognized in upholding
the trial court's refusal to limit testimony based on the taint of
The district court's rulings were based on its factual finding that . . . [the witness] was not hypnotized during her session with the hypnotist. In light of the evidence presented at the pretrial hearing, we cannot say that this factfinding is clearly erroneous. . . . [C]ertain procedural protections [are required] when the court admits hypnotically enhanced testimony, but only when it is established that the witness was hypnotized.
Id. at 985 (emphasis supplied). We find no error in the trial
court's refusal to exclude Walton's testimony on the same grounds
elicited in Bourgeois. Furthermore, we decline to adopt a per se
ruling that all hypnotically refreshed testimony must be excluded.
Appellant's assertion of the cumulative error rule, as
announced in State v. Smith, 156 W. Va. 385, 193 S.E.2d 550 (1972),See footnote 34 is ungrounded. Since the only error that occurred was the
lack of a Kastigar hearing, the cumulative error rule has no
application to this case.
Based on the foregoing, the decision of the Circuit Court of
Pocahontas County is hereby remanded for a Kastigar hearing.
Following such hearing, an order to uphold Appellant's conviction,
to dismiss the indictment against him, or to award a new trial
shall be entered consistent with this opinion.
the evidence was not offered at trial before a
jury, but in a pretrial hearing before the
district court judge. A district court judge
is much less likely than a lay jury to be
intimidated by claims of scientific validity
into assigning an inappropriate evidentiary
value to polygraph evidence. We have
consistently held that the rules of evidence
are relaxed in pretrial suppression hearings.
Slip op. at 7.
We agree with the Fifth Circuit as to the function of Rule 403 in nonjury hearings. See In re Carlita B., 185 W.Va. 613, 633, 408
S.E.2d 365, 385 (1991) (Miller, J., concurring); Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir. 1994) ("we hold that in the context of a bench trial, evidence should not be excluded under 403 on the ground that it is unfairly prejudicial"). However, the case sub judice is different as the polygraph evidence was proffered for the jury's consideration, and, in addition to what we have said in the text of this opinion, the evidence could have been excluded under Rule 403. Even giving the Appellant the benefit of the most favorable language in Posado, we find no abuse of discretion in excluding the polygraph evidence.
I have permitted this much of the evidence and
testimony about the witness Franklin. That
these officers went. They had interviews --
or some officers did. . . . That statements
were made, that statements were changed, and
that the witness would not talk to them any
What the witness said is hearsay. And
the contents of his statements and testimony
the Court is not going to allow except to the
extent that it is admitted so that you know
what these officers did in following up these
leads. You may consider it for that purpose.
Otherwise, it is inadmissible.
378 N.E.2d at 83 (citations omitted).