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648 S.E.2d 71
No. 33171 - State of West Virginia v. Julian R. Smith.
Albright, Justice, concurring:
I fully agree with the outcome reached by the majority in this case as the
defendant was denied a fair trial due to the State's failure to disclose information which was
not only relevant to the preparation of the defense plan but is also required by the West
Virginia Rules of Criminal Procedure (See footnote 1)
and ordered by the trial court. (See footnote 2)
What is most disconcerting about this case is that the State refused to disclose three
significant pieces of information which the defense had specifically and repeatedly
requested by pretrial motion in order to adequately prepare a trial defense. As the majority
opinion makes clear, the State failed not only to disclose the rebuttal witness, it withheld
the statement the rebuttal witness had initially given to the police directly related to the
defendant's alibi defense, and it apparently lied about any type of plea agreement offered to
the witness in exchange for his rebuttal testimony. The dissent questions that manifest
necessity for a mistrial exists because it examines each of these omissions separately and
therefore dilutes the cumulative significance of the State's improper actions. It is that
cumulative effect of the State's willful or inadvertent suppression of this evidence that
establishes such necessity which demands that a new trial be had. For some reason the
dissent refuses to acknowledge that the State's actions created a less than level playing field
by withholding information that could prove beneficial to the development
of the defense.
The dissent filed in the case compounds the willingness to require the effects of the State's
intransigence by proceeding to divine what the jury might have done had the defense been
given a level playing field. That is a flight of fantasy in which we should not participate.
Our system of justice, based on the rudimentary principle that a person is
considered innocent until fairly
proven guilty, was respected and preserved by the decision
reached in the majority opinion. Accordingly, I concur.
I am authorized to state that Justice Starcher joins in this concurring opinion.
e.g. W.Va. R. Crim. P. 12.1(b) (requiring disclosure by the State of
witnesses to be relied on to rebut defendant's alibi witnesses.)
See State v. Smith, ____W.Va. ____, ____, ____ S.E.2d ____, ____, 2007
WL 1729991 * n.3 ( June 13, 2007).