William J. Sadler, Esq.
R. Linkous, Esquire
Prosecuting Attorney Princeton, West Virginia
Princeton, West Virginia Attorney for Appellee
Attorney for Appellant
The Opinion of the Court was delivered PER CURIAM.
Findings of fact made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or reversed on appeal by this Court unless such findings are clearly wrong. Syllabus Point 1, State ex rel. Postelwaite v. Bechtold, 158 W. Va. 479, 212 S.E.2d 69 (1975), cert. denied 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976).
This is an appeal by the State
of West Virginia from a habeas corpus order of the Circuit Court of Mercer County
awarding a new trial to the relator, Timothy Dwayne Justice, who previously
had been convicted of first degree murder, aggravated robbery and conspiracy.
The court ordered the new trial because the State had failed to produce certain
blood test results pursuant to a defense discovery order. On appeal, the State
claims that the relator waived his right to challenge the non-production of
the test results by failing to raise the issue in his direct appeal. The State
also claims that the test results were not important to the defense.
Prior to the relator's trial,
his attorney filed a discovery motion under Rule 16(d) of the West Virginia
Rules of Criminal Procedure to examine the results of all scientific tests conducted
by the State. The court granted the motion. The office of the Prosecuting Attorney
of Mercer County, which was pursuing the case, maintained an open- file policy
and, pursuant to that policy, the Prosecuting Attorney, to satisfy the discovery
order, allowed the relator's attorney to examine the file in the case. At the
time, neither set of t-shirt examination results was in the file.
After the relator's attorney
examined the file in the case, the Prosecuting Attorney's office received the
first blood test report, and it appears that the relator's attorney was informed
that the report had been received and that it indicated that human blood, which
could not be identified as DNA type, had been found on the relator's t-shirt.
The report, however, was not provided to the relator's attorney.
After the second report was received, which indicated that the sample of blood on the shirt was insufficient to identify the blood even as human blood, the State failed to notify the relator's attorney that the new test results had been received.
During the relator's actual trial, his attorney, who apparently wanted to inquire about the relator's pants, inadvertently asked whether blood stains had been found on the relator's clothing. The trooper being questioned properly responded that a blood stain was found on the relator's shirt.
At the conclusion of the trial,
the relator was found guilty by jury, and subsequently sentenced to life in
the penitentiary, with a recommendation of mercy.
The relator appealed his conviction
to this Court in November 1995. In that appeal, he did not raise or assign as
error the fact that the State had failed to provide him with the laboratory
examination reports. This Court, after considering the relator's petition, on
February 8, 1996, refused to grant the appeal which he sought.
Later, the relator instituted
the present habeas corpus proceeding. In his habeas corpus petition, he raised
many issues relating to his trial, including the fact that the State had not
timely produced the laboratory examination reports. The Circuit Court of Mercer
County granted the petition and conducted an omnibus habeas corpus hearing.
During the hearing, the State did not assert that the relator had waived any
error arising out of the failure to produce the examination reports. Instead,
it argued that the failure to produce the reports was not prejudicial. At the
conclusion of the hearing, the circuit court held that all of the relator's claims were without merit except his claim relating to the non-disclosure
of the blood test results.
With regard to the failure
of the State to produce the blood test reports, the circuit court found that
the State had a duty to produce the reports prior to trial and that the failure
to produce violated not only the discovery ruling in the case, but also violated
the open-file policy maintained by the Prosecuting Attorney's Office.
The court further concluded
that although the blood test evidence was not exculpatory, relator's counsel
did not have an opportunity to have the clothing independently tested or evaluated
and suggested that further testing or evaluation might disclose blood type or
DNA which the court inferred might be exculpatory.
After the court announced
its decision, the State moved for reconsideration and for the first time argued
that by failing to raise the non-production issue on direct appeal, relator
had waived any error relating to the issue.
On reconsideration, the circuit
court found that the second report dated May 15, 1995, showed that no human
DNA was identifiable from the t-shirt and that this showing, in effect, contradicted
the inference raised by the investigating officer's testimony at trial that human blood had been found on the relator's shirt. The court, therefore, again
concluded that the non-disclosure was significant and the relator was entitled
to a new trial.
On appeal, the State argues
that the relator waived the non-disclosure issue by failing to raise it on direct
appeal. The State also claims that the nondisclosure has not been shown to be
prejudicial, and that under the circumstances, the circuit court erred in awarding
the relator a new trial.
In Syllabus Point 1 of State
ex rel. Postelwaite v. Bechtold, 158 W. Va. 479, 212 S.E.2d 69 (1975),
cert. denied 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1976), the
Court held that: Findings of fact made by a trial court in a post-conviction
habeas corpus proceeding will not be set aside or reversed on appeal by this
Court unless such findings are clearly wrong. The Court has also indicated
that a circuit court's final order and ultimate disposition are reviewed under
the abuse of discretion standard, and that conclusions of law are reviewed de
novo. State ex rel. Hechler v. Christian Action Network, 201 W. Va.
71, 491 S.E.2d 618 (1997).
Recently, in State v. Crabtree,
198 W. Va. 620, 482 S.E.2d 605 (1996), this Court discussed waiver
in the criminal context and indicated that a waiver occurs where there is an
intentional relinquishment or abandonment of a known right. The Court has also
indicated that a waiver may be presumed in a criminal context where a defendant
intelligently and knowingly waives, or, in effect, abandons and relinquishes,
any contention or ground for relief which he could have advanced on direct appeal.
This presumption is, however, rebuttable. Ford v. Coiner, 156 W. Va.
362, 196 S.E.2d 91 (1972).
As has been previously stated, the relator's attorney was aware of the first examination report prior to the relator's trial, even though he was not provided with a copy of it and even though he was not afforded an opportunity to examine it. There is, however, no evidence that the relator's counsel was provided the second examination report or results at the time of trial. Further, the record does not show that that second report was available to the defense at the time of the relator's appeal.
According to State v. Crabtree, supra, for a waiver to occur, a defendant must knowingly relinquish or abandon a contention or ground for relief which he could have advanced on appeal.
In this Court's opinion, for
the relinquishment or abandonment of a contention or ground for relief to be
made knowingly, that is, for a waiver to occur, the relinquishment
or abandonment must be made with a full understanding or knowledge of the circumstances
implicated in the contention or ground of relief involved.
In the present case, the Court
believes that the fact that the relator or his attorney did not receive the
second examination report potentially deprived him of an understanding of the
overall facts of the case, and potentially affected his ability to assert a
claim of error on appeal. In effect, there was a sufficient basis for the trial
court to conclude that the relator did not have enough knowledge to waive his
contention relating to the non- production of the test results by not raising
it on appeal.
The second position asserted
by the State of West Virginia is that the withholding of the examination reports
was not significant and did not affect the fairness of the relator's trial.
In State ex rel. Rusen v. Hill,
193 W. Va. 133, 454 S.E.2d 427 (1994), the Court stated:
While discovery has not been elevated to a constitutional dimension, it is clear that constitutional rights of a criminal defendant are implicated when a discovery system has been put in place and the prosecution fails to comply with court ordered discovery. We believe that it is necessary in most criminal cases for the State to share its information with the defendant if a fair trial is to result. Furthermore, we find that complete and reasonable discovery is normally in the best interest of the public.
193 W. Va. at 139, 454 S.E.2d at 433. The Court also said:
The purpose of Rule 16(a)
[of the West Virginia Rules of Criminal Procedure], our basic discovery rule
in criminal cases, is to protect a defendant's right to a fair trial. The degree
to which that right suffers as a result of a discovery violation cannot be determined
by simply asking would the nondisclosed information enhance or destroy the State's
case. A significant inquiry is how would the timely access of that information
have affected the success of the defendant's case.
193 W. Va. at 139, 454 S.E.2d at 433.
Finally, in State ex rel.
Rusen v. Hill, id., the Court indicated that whether prejudice results from
the failure of the State to comply with a discovery order is determined by asking
whether the non-disclosure results in a surprise and whether it hampers the
preparation and presentation of the defendant's case.
The relator in the present case
was accused of committing a murder under circumstances which potentially produced
human blood. The State in investigating the case initially ascertained through
the first blood examination that there was human blood on a t- shirt possibly
worn by the relator at the time of the crime charged. While this evidence standing
alone may have been insufficient to support the conviction of the relator, the
Court believes that it did potentially have some inculpatory affect in that it
suggested that the relator had been exposed to human blood, possibly the blood
of the victim, at the time of the crime charged. During trial, the fact that human
blood was found upon the t-shirt was brought to the attention of the jury and
potentially provided the jury with an inculpatory link connecting the relator
with the victim of the crime charged.
As has previously been stated,
the second examination of the t-shirt indicated that it was impossible to identify
human blood on the t-shirt. This result on its face contradicts the first result
and, in this Court's view, if the report of the result had been available, the
relator's attorney possibly, by bringing it to the attention of the jury, could
have destroyed the potential inculpatory link established by the first report
result. Additionally, the circuit court believed that the failure of the State
to produce the reports potentially dampened any initiative by the relator's
attorney to have an independent examination of the clothing conducted.
Rather obviously the relator's
attorney did not have the second examination report at the time of trial, and
its ultimate production was a surprise. Further, it potentially could have assisted
defense counsel in the preparation of the relator's case.
In view of this, this Court
believes that the proper production of the test results might have affected
the success of the relator's trial, and that under the rules set forth in State
ex rel. Rusen v. Hill, supra, it was within the discretion of the Circuit
Court of Mercer County to grant the relator a new trial.
The judgment of the Circuit
Court of Mercer County is, therefore, affirmed.