No. 33171 - State of West Virginia v. Julian R. Smith
Maynard, Justice, dissenting:
In this case, the majority bootstraps a few arguable disclosure violations into
cause for a mistrial based on manifest necessity.
The majority finds that manifest necessity for a mistrial is appropriate because
the State failed to provide notice of a rebuttal witness; the State failed to disclose Jones's
pretrial statement which the majority deems to be exculpatory; and the State failed to
disclose that Jones had been offered the possibility of entering a plea to unaggravated
robbery in exchange for his testimony. This Court has held that [b]efore a manifest
necessity exists which would warrant the declaring of a mistrial and the discharging of the
jury and ordering a new trial, the circumstances must be prejudicial, or appear to be
prejudicial, to the accused or the state. Syllabus Point 3, State ex rel. Brooks v. Worrell,
156 W.Va. 8, 190 S.E.2d 474 (1972). It is clear that the alleged errors cited by the majority
were not prejudicial to the defendant.
First, the majority readily acknowledges that the failure of the State to disclose
a rebuttal witness in an alibi case before the witness testifies does not require the reversal
of a criminal conviction. As noted by the majority, in State v. Roy,
194 W.Va. 276, 460
S.E.2d 277 (1995), we held that the nondisclosure did not necessitate reversing the
conviction because the defendant did not request a recess or a continuance in order to
prepare a challenge to the witness's testimony. Also, in State v. Miller,
195 W.Va. 656, 466
S.E.2d 507 (1995), this Court affirmed the conviction where an undisclosed rebuttal witness
gave testimony contrary to the defendant's alibi defense because, inter alia,
failed to request a recess or a continuance of the proceedings. In the instant case, the
defendant did not move for a recess or a continuance when Jones was called to testify.
Therefore, application of our precedent in Roy
mandates that no reversible error
occurred and likewise no manifest necessity for a mistrial.
Second, I do not believe the defendant was prejudiced by the State's failure
to disclose Jones's pretrial statement. Significantly, it is questionable whether the statement
is exculpatory. At trial, the defendant testified that he was sleeping at his mother's house
in Charleston at the time of the robbery at approximately 5:00 a.m. Jones indicated in his
pretrial statement that he dropped the defendant off at the house in Charleston at 3:00 a.m.
Thus, even if the jury had believed Jones's pretrial statement, the statement is not
inconsistent with the fact that the defendant robbed the Taco Bell two hours later at 5:00
a.m. In addition, I fail to see, and the majority does not explain, how the State's failure to
disclose the statement hampered the defendant's preparation of his case. Finally, I do not
believe, in light of the strong circumstantial and physical evidence of the defendant's guilt,
that disclosure of Jones's pretrial statement would likely have changed the outcome of the
trial. Therefore, any error in the State's failure to disclose Jones's pretrial statement was
harmless and certainly did not necessitate a mistrial based on manifest necessity.
Finally, I am at a complete loss as to how the State's failure to disclose that
Jones had been offered the possibility of entering a plea to unaggravated robbery in
exchange for his testimony prejudiced the defendant. Jones testified at trial that he was
offered the possibility of a plea. Because the jury heard this evidence, how could the
nondisclosure of the plea offer prior to trial amount to prejudicial error?
In sum, there simply was no basis in this case for the grant of a mistrial based
on manifest necessity. When one considers the totality of the evidence at trial, it is clear that
the defendant had a fair opportunity to prepare and present his defense. Any surprise to the
defendant arising from the State's nondisclosure could easily have been dealt with simply
by moving for a recess or continuance to prepare to challenge Jones's testimony. That the
defendant was unsuccessful in his defense is not due to any nondisclosure on the part of the
State but rather to the substantial evidence of guilt. The bottom line is that the defendant
was properly tried, and the jury, which heard all of the relevant evidence, found the
defendant guilty of aggravated robbery. There simply is no sound legal reason why this
conviction should not stand.
Accordingly, I dissent.