648 S.E.2d 71
| Paula M. Cunningham, Esq.|
Deputy Public Defender
Wendy A. Campbell, Esq.
Assistant Public Defender
Office of the Public Defender
Charleston, West Virginia
Attorneys for the Appellant
| Darrell V. McGraw, Jr., Esq.
James W. Wegman, Esq.
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
JUSTICE STARCHER concurs.
This case is before this Court upon the appeal of Julian R. Smith from the June 4, 1993, order of the Circuit Court of Kanawha County. This order sentenced Smith to a term of forty years in the penitentiary upon his conviction of the offense of aggravated robbery. Pursuant to an intervening proceeding in habeas corpus, the Circuit Court entered an order on July 18, 2005, reimposing the forty year term and restoring Smith's right to appeal to this Court. The appeal was granted in September 2006 and concerns Smith's alleged participation with three others in the robbery of a Taco Bell restaurant in South Charleston, West Virginia.
Smith contends that the Circuit Court abused its discretion in not dismissing the case upon the appearance at trial of an undisclosed rebuttal witness called by the State. The witness, disclosed after Smith testified before the jury, recanted his pretrial statement, also undisclosed, which supported Smith's defense of alibi, and, instead, gave testimony incriminating Smith in the robbery. Asserting extreme prejudice, Smith argues that the Circuit Court should have declared a mistrial.
This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. Upon careful examination, this Court finds merit in Smith's assignment of error. As discussed below, manifest necessity for a mistrial is demonstrated in the record in the following respects: (1) the State failed to provide notice of the rebuttal witness whose testimony was elicited to contradict Smith's alibi defense; (2) the State advised Smith that it was unaware of any evidence favorable to Smith and, further, failed to disclose to Smith the pretrial statement of the rebuttal witness which initially had supported Smith's alibi defense; and (3) although stating to the Circuit Court that no formal plea agreement had been made with the rebuttal witness, the State failed to disclose that the witness had been offered the possibility of entering a plea to unaggravated robbery in exchange for his truthful testimony at trial. For these reasons, Smith's conviction is reversed, and the case is remanded to the Circuit Court for a new trial.
The State replied by stating that it was unaware of any evidence favorable to
the defendant. Moreover, the State's witness list filed in the Circuit Court included neither
Caffee nor Jones, although Smith was provided with their rap sheets. The State replied to
the motion for statements of witnesses and the motion for the disclosure of impeaching
information by asserting that the requests were beyond the scope of the law.
In January 1993, Smith was tried separately from his co-defendants. Caffee, who had already entered a plea to unaggravated robbery in the case, was among those called by the State in its case-in-chief. Caffee testified that he had not been driven to his home in St. Albans prior to the robbery. Rather, he stated that he and Smith robbed the Taco Bell with the assistance of Pauley who opened the safe and Jones who waited in the car. After the State rested its case, Smith took the stand as the sole witness for the defense, insisting that he was sleeping at his mother's house in Charleston at the time of the robbery.
Therefore, the State called Harold Lee Jones to the stand as a rebuttal witness and disclosed to the defense, for the first time, Jones' pretrial statement supporting Smith's alibi defense. (See footnote 3) Jones testified, contrary to the statement, that he provided the revolver and remained in the car during the period in question after Caffee and Smith exited the vehicle in the area of the restaurant. Following Jones' direct testimony, Smith moved that the case be dismissed, suggesting extreme prejudice based upon the untimely disclosure of exculpatory evidence in the form of Jones' pretrial statement. (See footnote 4) In addition, Smith argued that Jones should have been called during the State's case-in-chief. During the ensuing argument, the State told the Circuit Court that there was no plea agreement between the State and Jones. The Circuit Court refused to dismiss the case, and, on cross-examination, Jones' pretrial statement was used in an effort to impeach his inculpatory testimony. During cross- examination, Jones stated that the State had offered him the possibility of entering a plea to unaggravated robbery in exchange for his truthful testimony at trial.
The jury found appellant Smith guilty of aggravated robbery, and on June 4, 1993, he was sentenced to a term of forty years in the penitentiary. As stated above, he was resentenced on July 18, 2005, for purposes of appeal to this Court. (See footnote 5)
More specifically, Rule 16(e). states that the discovery of alibi witnesses is
governed by Rule 12.1. The latter Rule, in subsection (b), provides that, upon notice of an
alibi defense, the State shall disclose the names and addresses of the witnesses upon whom
the State intends to rely to establish the defendant's presence at the scene of the alleged
offense and any other witness to be relied on to rebut testimony of any of the defendant's
Nevertheless, the failure of the State to disclose rebuttal witnesses before they take the stand, and even such witnesses in alibi cases, has not required the reversal of a criminal conviction. In State v. Roy, 194 W. Va. 276, 460 S.E.2d 277 (1995), this Court rejected the defendant's assertion that the appearance at trial of an undisclosed rebuttal witness required the setting aside of the defendant's sexual assault conviction. The witness, called by the State, testified that the defendant had a reputation for untruthfulness. This Court, in Roy, held that, inasmuch as the defendant failed to request a recess or a continuance in order to prepare a challenge to the witness' testimony, the nondisclosure did not warrant disturbing the conviction. In so ruling, however, this Court noted that even rebuttal witnesses should be disclosed when the State has a reasonable anticipation that they will be used during trial. 194 W. Va. at 286-87, 460 S.E.2d at 287-88.
Similarly, in State v. Miller, 195 W. Va. 656, 466 S.E.2d 507 (1995), the
defendant challenged his sexual assault convictions by asserting, inter alia, that he was
prejudiced at trial by an undisclosed rebuttal witness who gave testimony contrary to the
defendant's alibi defense. Although the defendant maintained that he moved out of the
county prior to the assaults, the testimony of the rebuttal witness concerning the school
records of the defendant's children suggested that the defendant may have been in the area
during the period in question. This Court, in Miller, affirmed the convictions because: (1)
the testimony of the rebuttal witness was limited to the issue of the defendant's residence,
an issue the defendant raised, and (2) the defendant, upon the appearance of the witness,
failed to request a recess or continuance of the proceedings.
Significant guidance in this area of the law is found in syllabus point 2 of State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994), in which this Court observed: The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case. Syl. pt. 1, State v. Keenan, 213 W. Va. 557, 584 S.E.2d 191 (2003). In Rusen, this Court upheld the dismissal of an indictment because of the State's failure to obtain and disclose corporate records in an embezzlement case. As this Court stated:
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. One consequence of full and frank discovery is that it may very
well encourage plea negotiations. As Dean Pye has noted: . . . It may be
impossible for counsel to make any intelligent evaluation of the alternatives if
he knows only what his client has told him and what he has discovered on his
own. [33 F.R.D. 82, 83]
193 W. Va. at 139, 454 S.E.2d at 433. As the Rusen opinion concluded: [W]e do not mean to suggest that a defendant has a right to fabricate a defense, but we strongly note that our Rules of Criminal Procedure have provided a right to discovery, and correspondingly, a right to devise a defense and trial strategy on the basis of the evidence disclosed by the prosecution. 193 W. Va. at 143 n. 14, 454 S.E.2d at 437 n. 14.
When an undisclosed rebuttal witness in an alibi case is called by the State and the defendant objects on the basis of surprise, prejudice and an alleged violation of the discovery rules, the Circuit Court is faced with the difficult task of having to consider an appropriate sanction at a moment in the case when pretiral matters, evidentiary matters before the jury and the probable outcome of the trial are, as quoted in Rusen, seen through a glass, darkly. 193 W. Va. at 143, 454 S.E.2d at 437. In the case before us, however, the Circuit Court's consideration should have been less difficult because, when Jones was called as a rebuttal witness, his August 27, 1991, statement supportive of appellant Smith's alibi was only then revealed for the first time, after the State had represented during the discovery process that it was unaware of any evidence favorable to Smith. In addition, Jones testified that he was offered the possibility of entering a plea to unaggravated robbery, after the State, though literally correct, had represented to the Circuit Court, and Smith, that no plea agreement with Jones had been made. As stated above, Smith moved prior to trial for: (1) a list of the State's witnesses, including those to be called on rebuttal, (2) statements of co- defendants, (3) information relating to promises extended to State witnesses, (4) information beneficial to the preparation of a defense and (5) exculpatory material. (See footnote 9)
Although no motion was made for a recess or a continuance when Jones was called to testify, his pretrial statement was not properly revealed in violation of Smith's request and was only disclosed just prior to him taking the stand. This failure to disclose during the discovery in the case created clear prejudice to Smith's ability to prepare his defense. Furthermore, the State's dilatory disclosure, apparently precipitated by the trial court's requirement that witness' statements be disclosed prior to a witness taking the stand, does nothing to minimize this prejudice. We conclude that Smith is correct in his assessment that Jones could have been included in the State's case-in-chief. Beyond contradicting Smith's assertion that he was at his mother's residence at the time of the robbery, Jones testified that before he, Smith and Caffee drove to the Taco Bell, they went to Jones' house where he got a .357 Magnum revolver and gave it to Smith. Thus, the State must have anticipated that Jones would be used at trial. Roy, supra. See, 1, F. D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 6-11(D)(3)(b) (4th ed. 2000) (indicating that rebuttal is not proper if it could have been presented in the case-in-chief).
Accordingly, this Court is of the opinion that, viewing the record in its entirety, the calling of Harold Lee Jones, an undisclosed rebuttal witness, whose pretrial statement and pending plea agreement were also undisclosed, denied Smith a fair trial and constituted grounds for a mistrial based upon manifest necessity. The transgressions which occurred were prejudicial both to Smith's preparation of a defense and at trial. A reversal and remand for new trial is, thus, appropriate because this case includes additional factors which plainly distinguish it from the circumstances found in Roy and Miller, supra, in which the convictions were affirmed.