Lonnie C. Simmons
DiTrapano, Barrett & DiPiero, PLLC Attorney General
Charleston, West Virginia Jon R. Blevins
Attorney for the Appellant Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
The Opinion of the Court was delivered PER CURIAM.
1. 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. Syl. Pt. 1, State ex rel. Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975).
2. Although it is a violation of due process for the State to convict a defendant based on false evidence, such conviction will not be set aside unless it is shown that the false evidence had a material effect on the jury verdict. Syl. Pt. 2, In Re Investigation of the W.Va. State Police Crime Lab. Serology Div., 190 W.Va. 321, 438 S.E.2d 501 (1993).
3. 'Where improper evidence of a non-constitutional
nature is introduced by the State in a criminal trial, the test to determine
if the error is harmless is: (1) the inadmissible evidence must be removed
from the State's case and a determination made as to whether the remaining
evidence is sufficient to convince impartial minds of the defendant's guilt
beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient,
the error is not harmless; (3) if the remaining evidence is sufficient to
support the conviction, an analysis must then be made to determine whether
the error had any prejudicial effect on the jury.' Syllabus Point 2, State v. Atkins, 163
W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct.
1081, 63 L.Ed.2d 320 (1980). Syl. Pt. 3, In Re Investigation of
the W. Va. State Police Crime Lab., 190 W.Va. 321, 438 S.E.2d 501 (1993).
John Moss III appeals the January 30, 2003, order of the Circuit Court of Kanawha County, denying his petition for a writ of habeas corpus in connection with his April 24, 1990, conviction for three counts of first degree murder. As the basis for his appeal, Appellant argues that the lower court wrongly concluded that this Court's ruling in Zain I (See footnote 1) did not afford him habeas corpus relief. Upon our full review of this matter, we reach the same conclusion that the circuit court did with regard to the unavailability of relief based on this Court's ruling in Zain I. Having found no error with regard to the trial court's rulings, we affirm.
The Honorable Andrew MacQueen, by decision entered
on September 10, 1998, ruled that Appellant was not entitled to relief under Zain I
because Mr. Zain was not the chief serologist at this time and his work was
being supervised; Appellant's confession provided sufficient evidence upon
which to base his conviction; and specific details pertinent to that confession
were corroborated by the location of physical evidence. Despite these rulings,
Judge MacQueen later determined that it was necessary to consider whether
Mr. Zain's testimony had a prejudicial effect on the jury. Upon consideration
of this issue by the Honorable Louis Bloom, (See
footnote 3) the trial court refused the habeas petition,
ruling that the introduction of Zain-related evidence and testimony
at Moss's trial did not prejudice the jury and that Appellant had not introduced any new evidence on the
issue of the voluntariness of his confession. Appellant seeks a reversal
of the ruling denying his entitlement to habeas corpus relief.
In reviewing challenges to the
findings and conclusions of the circuit court, we apply a two-prong deferential
standard of review. We review the final order and the ultimate disposition under
an abuse of discretion standard, and we review the circuit court's underlying
factual findings under a clearly erroneous standard. Questions of law are subject
to a de novo review.
Id. at 661, 458 S.E.2d at 331 (citing Burnside v. Burnside, 194 W.Va. 263, 460 S.E.2d 264 (1995)).
With these standards in mind, we proceed to review the trial court's rulings on the issue of habeas corpus relief to determine if any error was committed.
The circuit court could then appoint counsel to represent
the [habeas corpus] petitioner to ascertain (1) whether Zain was involved in
the petitioner's prosecution; (2) whether Zain rendered an inculpatory report
or offered inculpatory testimony; and (3) whether, excluding the serological
evidence, the other evidence adduced at trial would have been sufficient to sustain
a conviction beyond a reasonable doubt.
190 W.Va. at 340, 438 S.E.2d at 520.
In conducting his review of Appellant's habeas corpus claims, Judge MacQueen initially recognized the unique posture that this case presented. Compared to the prototypical criminal case involving allegations of Mr. Zane's malfeasance, Appellant's case is distinguishable for several reasons, as Judge MacQueen observed. First, unlike the multitude of Zain cases, this was an early case in which Mr. Zain was not yet the supervisor (See footnote 4) of the State Police Crime Laboratory and, consequently, his work was being supervised by another serologist, Trooper Robert Murphy. With regard to the blood test reports relied upon in this case, Judge MacQueen found that it is clear that both Zain and Murphy conducted analyses of some of the blood. Another significant distinction with regard to this case was the fact that Zain and Murphy had discovered genetic markers in blood samples from the Reggettz [victims'] residence that excluded Paul Reggettz [original suspect] and would ultimately incriminate John Moss, long before a sample of Moss's blood was obtained and analyzed. (See footnote 5) Finally, with regard to the forensic evidence under scrutiny, the expert witness employed by Appellant, Dr. David H. Bing, did not take direct issue with either of the conclusions presented against Appellant at trial based on this evidence. As Judge MacQueen explained,
The forensic evidence presented against the petitioner [Appellant] at trial consisted of two essential conclusions. First, blood stains sampled at the scene contained genetic markers that were not donated by any of the victims or by Paul Reggettz, but matched the known blood sample from John Moss. Second, the combination of markers in the samples from the scene that matched the petitioner's blood occurred in one-tenth of one percent (.1%) and three-hundredths of one percent (.03%) of the general population.
After relating portions of Dr. Bing's testimony, Judge MacQueen concluded:
It can hardly be said that Dr. Bing characterized Murphy and Zain's scientific conclusions and Zain's testimony as false, inaccurate or invalid. To the contrary, based on the information available to him, he confirmed the scientific validity of the conclusions. At best, it seems that Dr. Bing suggested that Zain should have explained to the jury that only a limited number of genetic markers distinguished the petitioner's blood from that of the victims. From the evidence presented at trial, the jury could not have failed to appreciate this fact.
Upon consideration of these distinguishing factors and the record as developed, Judge MacQueen concluded that the rule (See footnote 6) announced in Zain I and II (See footnote 7) should not operate to nullify the serology evidence offered during the petitioner's trial and [t]hat in the absence of specific evidence that the blood test results were falsified or were substantially incorrect, there is no basis to set aside the verdicts against the petitioner. After making this ruling, the trial court proceeded to the third-prong of the analysis suggested by Judge Holliday to consider whether even if the serological evidence is completely disregarded, there remains sufficient evidence to sustain the conviction. Following his summary of the evidence presented at trial against Appellant, (See footnote 8) Judge MacQueen ruled that petitioner's incriminating statements, the statement's harmony with the physical evidence and related corroboration were certainly sufficiently persuasive to convince twelve reasonable persons [of] his guilt beyond a reasonable doubt.
Notwithstanding Judge MacQueen's denial of relief to Appellant in September 1998, his counsel ultimately convinced the trial court to examine the additional issue of whether the introduction of Mr. Zain's testimony had a prejudicial effect on the jury under this Court's holdings in syllabus points two and three of Zain I. In syllabus point two, we held that [a]lthough it is a violation of due process for the State to convict a defendant based on false evidence, such conviction will not be set aside unless it is shown that the false evidence had a material effect on the jury verdict. 190 W.Va. at 322, 438 S.E.2d at 502. Upon a demonstration of false evidence used to sustain a conviction, we reasoned: The only inquiry that remains is to analyze the other evidence in the case under the Atkins rule (See footnote 9) to determine if there is sufficient evidence to uphold the conviction. Id. at 326, 438 S.E.2d at 506 (footnote added). Accordingly, in syllabus point three of Zain I we restated the test for evidentiary error:
'Where improper evidence of a non-constitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury.' Syllabus Point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).
190 W.Va. at 322, 438 S.E.2d at 502.
The crux of Appellant's appeal is that the trial court, in applying the Atkins test, wrongly concluded that Mr. Zain's testimony did not have a prejudicial effect on the jury. Emphasizing the personal and extensive involvement of Mr. Zain in his prosecution, Appellant states that Mr. Zain collected blood samples at the scene; performed testing on critical pieces of evidence; testified in both of Appellant's trials; and presented key evidence that enabled the jury to decide which of two confessions to believe. (See footnote 10) Downplaying the significance of Mr. Murphy's involvement in the case, Appellant argues that Mr. Zain's testimony was the key testimony based upon which the jury made its decision regarding which of the two confessions was credible.
In response to these arguments, the State identifies a number of inaccurate statements made by Appellant. As opposed to the scenario described by Appellant with Mr. Zain improperly and overzealously going to the Reggettz' home to collect blood samples, Mr. Zain only went to the scene of the crimes to collect those samples upon being called by Trooper Williams for that express purpose. Moreover, at least one critical piece of evidence _ the pajama top of Bernadette Reggettz _ was collected by Trooper Williams and submitted for testing at a later date in time. The testing on this top, which Dr. Bing testified to as constituting a complete match with the blood typing of Appellant, (See footnote 11) was performed by Trooper Murphy. Mr. Zain's only involvement with this critical piece of evidence was his reading of the report with the blood typing results to the jury.
While Appellant strenuously argues that absent the testimony of Mr. Zain the jury had no basis from which to choose between the two confessions, the State explains why this contention is specious. In making his argument, Appellant chose to ignore various items of evidentiary significance that the jury was presented with that may have affected their decision regarding the truthfulness of the two confessions. Mr. Reggettz testified at trial and explained the circumstances surrounding the giving of his confession (See footnote 12) and fully repudiated that confession. Dr. Irving Sopher, the Chief Medical Examiner, testified both to specific marks on the victims' bodies and the contents of their stomachs with regard to the time of their last meal. The details of Dr. Sopher's testimony suggested the veracity of Appellant's confession, as opposed to that given by Mr. Reggettz.
Perhaps the most convincing corroborative evidence that the jury heard on the issue of confessions, however, was testimony describing the recovery of various items taken from the Reggettz' home. (See footnote 13) During his confession, Appellant related that he had taken a camera and what he described as some dishes from the Reggettz' home. He further indicated that he had given the camera to his father and the dishes to a Ms. Arbutus Pomeroy, his best friend's mother. The camera that was taken from the Reggettz' home was discovered in Appellant's father's car in Cleveland, Ohio, and Ms. Arbutus Pomeroy testified that Appellant had given her silverware, which was identified as having been taken from the Reggettz' home, as a Christmas present, shortly after the time when the murders occurred.
Setting aside the Zain evidence, the confession given by Appellant was powerfully incriminating evidence, as Judge Bloom recognized in ruling on the habeas corpus petition:
Moss's own confession is a key piece of evidence that
stands independently of any Zain-related evidence. Further, the confession is
corroborated in a number of significant ways, which the Court has described as indices of reliability. In
focusing on Zain, Moss ignores the power of his own well- corroborated confession.
The State convincingly argues that there was sufficient testimony offered through individuals other than Mr. Zain from which the jury could have based its decision to believe Appellant's confession. Given the abundance of evidence that the jury was presented with that supported Appellant's confession to having committed the subject murders, (See footnote 14) we simply cannot accept Appellant's argument that Mr. Zain's testimony was per se prejudicial. Accordingly, we find no error with the trial court's conclusion that the introduction of testimony or evidence by Mr. Zain did not have a prejudicial effect on the jury. See Syl. Pt. 2, Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).
Although Appellant sought to raise, according to the State for the fourth time, the issue of the voluntariness of his confession, the trial court found that he failed to present any new evidence on the voluntariness of his confession. The trial court further opined:
[H]e seems to argue that the fact that Mr. Reggettz
had, at one point, given a confession somehow invalidates Moss's own confession.
The existence of the Reggettz confession does not have the devastating effect
that Moss desires because the Reggettz confession does not impugn the voluntariness
of Moss's confession. At most, it provided fodder for defense theories at
As the State correctly posits, events that took place outside the presence of Appellant's confession (i.e. any malfeasance committed by Mr. Zain) have no bearing on the determination of the voluntariness of that confession. See State v. Hager, 204 W.Va. 28, 38, 511 S.E.2d 139, 149 (1998) (citing Moran v. Burbine, 475 U.S. 412, 422 (1986)).
Having closely examined the arguments presented against the record of this case, we find no merit in the assignments of error raised by Appellant. (See footnote 15) Accordingly, the order of the Circuit Court of Kanawha County is hereby affirmed.
The petitioner gave statements in which he confessed to the killings and provided detail that gave particular credence to the confession. . . . [T]he confession and the evidence derived from it provided particular indices of reliability beyond the fact of a confession alone. For example, petitioner's confession was largely consistent with the physical evidence. He said that he went to the Reggettz residence to steal money and that he had taken a camera and what he recalled were dishes. He told investigators that he had taken the camera to his parents [sic] home in Cleveland, Ohio, and that he had given the dishes to a Ms. Arbutus Johnson. A camera was obtained from the petitioner's father's car and was subsequently identified by Paul Reggettz during the trial. Ms. Johnson said that Moss had given her a set of silverware as a Christmas gift sometime during December, 1979. Ms. Johnson also stated that Moss was scratched when she saw him. Significantly, before he returned to his home in Cleveland, the petitioner lived with his grandfather at his grandfather's home which was immediately behind the Reggettz residence. The State has identified other, similar portions of the petitioner's confession which reinforced its reliability.