State of WV v. Osakalumi
Annotate this Case
January 1995 Term
___________
No. 22614
___________
STATE OF WEST VIRGINIA,
Plaintiff Below, Appellee
v.
KANJU OSAKALUMI,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Mercer County
Honorable David W. Knight, Judge
Criminal Action No. 93-F-99
REVERSED AND REMANDED
___________________________________________________
Submitted: May 16, 1995
Filed: July 19, 1995
Darrell V. McGraw, Jr.
Attorney General
Katherine Rafter
Assistant Attorney General
Charleston, West Virginia
Attorneys for the Appellee
David C. Smith
Johnston, Holroyd & Associates
Harold B. Wolfe, III
Akers & Wolfe
Princeton, West Virginia
Attorneys for the Appellant
CHIEF JUSTICE McHUGH delivered the Opinion of the Court.
JUSTICE BROTHERTON AND JUSTICE RECHT did not participate.
JUDGE FOX and RETIRED JUSTICE MILLER sitting by temporary
assignment.
SYLLABUS BY THE COURT
1. "'The provisions of the Constitution of the State of
West Virginia may, in certain instances, require higher standards
of protection than afforded by the Federal Constitution.' Syllabus
Point 2, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979)."
Syl. pt. 1, State v. Bonham, 173 W. Va. 416, 317 S.E.2d 501 (1984).
2. When the State had or should have had evidence
requested by a criminal defendant but the evidence no longer exists
when the defendant seeks its production, a trial court must
determine (1) whether the requested material, if in the possession
of the State at the time of the defendant's request for it, would
have been subject to disclosure under either West Virginia Rule of
Criminal Procedure 16 or case law; (2) whether the State had a duty
to preserve the material; and (3) if the State did have a duty to
preserve the material, whether the duty was breached and what
consequences should flow from the breach. In determining what
consequences should flow from the State's breach of its duty to
preserve evidence, a trial court should consider (1) the degree of
negligence or bad faith involved; (2) the importance of the missing
evidence considering the probative value and reliability of
secondary or substitute evidence that remains available; and (3)
the sufficiency of the other evidence produced at the trial to
sustain the conviction.
3. "This Court will not consider an error which is not
preserved in the record nor apparent on the face of the record."
Syl. pt. 6, State v. Byers, 159 W. Va. 596, 224 S.E.2d 726 (1976).
4. "To trigger application of the 'plain error'
doctrine, there must be (1) an error; (2) that is plain; (3) that
affects substantial rights; and (4) seriously affects the fairness,
integrity, or public reputation of the judicial proceedings." Syl.
pt. 7, State v. Miller, No. 22571, ___ W. Va. ___, ___ S.E.2d ___
(May 18, 1995).
McHugh, Chief Justice:
This is an appeal from appellant Kanju Osakalumi's
January 21, 1994 conviction, by a jury, of first-degree murder.
Appellant was sentenced by the Circuit Court of Mercer County, West
Virginia to life imprisonment with the possibility of parole. This
Court has before it the petition for appeal, all matters of record
and the briefs and argument of counsel. For the reasons stated
below, the appellant's conviction is reversed and this case is
remanded for a new trial.
I.
On or about June 13, 1991, appellant and several other
residents of New York City travelled to the home of Allison
Charlton in Bluefield, West Virginia, bringing with them an
assortment of drugs and firearms. On the afternoon of June 14,
1991, one of the persons from New York City, sixteen-year old
Chandel Fleetwood, died from a single gunshot wound to the head.See footnote 1
Appellant maintains that the victim was under the
influence of marihuana when he loaded one round of ammunition into a .357 magnum revolver, spun the cylinder, put it to his own head
and shot himself. Appellant and the others who were present took
the body to a wooded area approximately one mile away. They also
disposed of the victim's revolver and a bloodied cushion from the
couch on which the victim was sitting. The following day,
appellant and his friends returned to New York City.
Subsequently, officers from the Bluefield Police
Department began hearing rumors that someone had been shot at the
Charlton home. In January of 1992, approximately seven months
after Chandel Fleetwood's death, Detectives Wilson and Miller
visited the Charlton home. Upon observing the bloodied couch,See footnote 2 the
detectives took samples from it as well as from the carpet
surrounding it. However, they left the home without seizing the
couch.
Approximately two months later, in March of 1992, police
officers returned to the Charlton home, where they had left the
bloodied couch, and, upon further inspection of the couch,
discovered a bullet hole in it. Through a tear in a couch cushion,
Detective Ted Jones inserted a writing pen into the bullet hole to
determine the trajectory of the bullet.See footnote 3 He extracted a badly deformed bullet as well as some hair and bone fragments. Once
again, the officers left without seizing the couch. However, they
returned to the Charlton home two days later, at which time they
confiscated the couch and stored it at the police department.
Shortly thereafter, when it was subsequently determined
that the bloodied couch, which apparently emitted an unpleasant
odor, was both a fire and health hazard, the police, with the
consent of the office of the Mercer County Prosecuting Attorney,
disposed of the couch at the Mercer County landfill. Prior to
discarding it, however, the police failed to measure either the
proportions of the couch, the location of the bullet hole on the
couch, or the trajectory of the bullet. The police likewise failed
to properly photograph either the couch or the bullet hole. Though
several photographs were taken, they depict only portions of the
couch and are essentially of no evidentiary value.
In May of 1993, almost two years after the death of
Chandel Fleetwood, a passerby discovered the skeletal remains later
determined to be those of Fleetwood. Appellant, who had no prior
criminal record, was later arrested by the Mount Vernon (New York)
Police Department. In a videotaped statement admitted at trial,
appellant recounted Fleetwood's death by Russian Roulette and the
subsequent panic experienced by him and the others who were present, leading them to dispose of the body in a nearby wooded
area.See footnote 4
The only evidence that Chandel Fleetwood had been
murdered was the trial testimony of Dr. Irvin Sopher, medical
examiner for the State of West Virginia. Dr. Sopher testified that
in March of 1992, approximately nine months after Fleetwood's death
but approximately fourteen months before his body was found,
Detective Jones delivered to him the bullet, blood samples and bone
fragments. In addition, Detective Jones, drew, from memory, a
diagram of the couch, which obviously included no information as to
its height, width or length or the location of the bullet hole in
relation thereto.
At trial, in January of 1994, it was revealed that the
diagram of the couch drawn from memory by Detective Jones for Dr.
Sopher had been lost. Nevertheless, during direct examination, Dr.
Sopher, who had never seen the couch, drew Detective Jones' couch
diagram from memory. Dr. Sopher testified that based upon
examination of the skull and the purported right to left, straight
line trajectory of the bullet through the couch, the manner of
death of Chandel Fleetwood was homicide. Dr. Sopher testified that
he came to this conclusion when he lined up the trajectory of the
bullet through the skull with the right to left path of the bullet
through the couch, as drawn by Detective Jones. Dr. Sopher
determined that Fleetwood was held down on the couch and was shot through the head, with the bullet travelling in a straight line.See footnote 5 It is clear from Dr. Sopher's testimony that the trajectory of the
bullet through the couch was paramount to his determination that Chandel Fleetwood's death was the result of a homicide, and not
suicide.See footnote 6
Appellant introduced several experts whose testimony
directly challenged significant aspects of the State's evidence.
Ronald W. Dye, a firearms examiner and forensic scientist testified
that the trajectory of a bullet through a couch could not be
accurately determined where the couch had subsequently been sat,
slept and played upon for seven months. Mr. Dye testified that, in
light of the activity which occurred on the couch but depending on
the amount of stuffing in the couch, the bullet may have moved from
the sight where it was originally lodged. Given that the couch was
destroyed prior to trial, Mr. Dye was obviously unable to examine
it.
Furthermore, Mr. Dye indicated that is unlikely that a
bullet which passes through a body and a couch will travel in a
straight line, as Dr. Sopher testified. Mr. Dye further indicated
that a hollow point bullet, such as the one extracted from the
couch, "deforms and mushrooms" thereby changing the flight path of
the bullet from a straight line path. Finally, Mr. Dye testified
that if he were unable to see the bullet through the bullet hole in
the couch, he would have x-rayed the couch in order to locate it and then, using a scientific equation, would have been able to
accurately determine the angle of the bullet.
In addition to the expert testimony of Mr. Dye, appellant
introduced expert William Anthony Cox, a forensic pathologist. Dr.
Cox examined the skull of Chandel Fleetwood, particularly the
entrance and exit wound of the bullet, and testified that it is
impossible to determine that the bullet travelled in a straight
line, as Dr. Sopher testified. Dr. Cox concurred with Mr. Dye's
testimony that a hollow point bullet tends to easily deform when it
hits a hard object such as bone. As a result, the bullet deviates
from its straight line path.
Moreover, Dr. Cox disagreed with Dr. Sopher's conclusion
that Fleetwood's head was pressed against a couch cushion based
upon the fact that bone fragments were found in the couch. Dr. Cox
stated that when a bullet travels through a skull, it carries with
it bone and other matter. Thus, the fact that bone fragments were
found in the couch does not necessarily mean that Fleetwood's head
was held down against a cushion when the weapon was discharged.
Finally, Dr. Cox indicated that the couch diagram drawn by Dr.
Sopher had no validity.
At the close of all the evidence, the prosecutor, in
closing argument, stated: "We don't know why he was killed. I,
also, cannot tell you who pulled the trigger. We just know that it
was murder. You just can't ignore it, but we don't know everything
that happened, but we do know it was murder." Appellant was subsequently convicted of first-degree murder and sentenced to life
imprisonment with a recommendation of mercy.
II.
Appellant's primary assignment of error is that his due
process rights were violated when the trial court permitted the
State to introduce evidence from the couch which appellant was
never afforded an opportunity to examine and which was destroyed
prior to trial. As the facts indicate, the purported trajectory of
the bullet through the couch was crucial to Dr. Sopher's
determination that the manner of death of Chandel Fleetwood was
homicide, and not suicide.
A.
It is the State's contention that evidence from the couch
was properly admitted at trial because the police did not act in
bad faith when they discarded the couch considering there was no
body and no identifiable suspects. The State relies primarily upon
the United States Supreme Court's decision in Arizona v.
Youngblood, 488 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988),
in which it held that unless a criminal defendant can show bad
faith on the part of the police, failure to preserve potentially
useful evidence does not constitute a denial of due process of law
under the Fourteenth Amendment of the United States Constitution.
The United States Supreme Court's decision in Arizona
was, admittedly, a re-examination of "'what might loosely be called
the area of constitutionally guaranteed access to evidence.'"
Arizona, 488 U.S. at 55, 109 S. Ct. at 336, 102 L. Ed. 2d at 287 (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 867
(1982)). The Arizona decision was preceded by three significant
cases which developed the area of constitutionally guaranteed
access to evidence. In Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (1963), the United States
Supreme Court held that "the suppression by the prosecution of
evidence favorable to an accused upon request violates due process
where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
Subsequently, in United States v. Agurs, 427 U.S. 97, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976), the United States Supreme
Court held that the prosecution had a duty to disclose exculpatory
evidence even though no requests were made for it. The rules set
forth in Brady and Agurs have been incorporated into the
jurisprudence of West Virginia. See syl. pt. 4, State v. Hatfield,
169 W. Va. 191, 286 S.E.2d 402 (1982) ("A prosecution that
withholds evidence which if made available would tend to exculpate
an accused by creating a reasonable doubt as to his guilt violates
due process of law under Article III, Section 14 of the West
Virginia Constitution.").See footnote 7 See also syl. pt. 4, State v. Fortner, 182 W. Va. 345, 387 S.E.2d 812 (1989); syl. pt. 1, State v. Hall,
174 W. Va. 787, 329 S.E.2d 860 (1985); State v. McArdle, 156 W. Va.
409, 194 S.E.2d 174 (1973).
In California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), two defendants, accused of drunken
driving in unrelated incidents, submitted to breath-analysis tests,
each registering a blood alcohol concentration high enough to
presume intoxication under California law. Each defendant sought
to suppress their respective test results on the ground that the
police failed to preserve their breath samples, even though it was
standard police procedure not to preserve such samples. Both
defendants maintained that had their respective breath samples been
preserved, their breath-analysis test results could have been
impeached.
The United States Supreme Court rejected the defendants'
arguments in Trombetta because, among other reasons, the police
discarded the samples "'in good faith and in accord with normal
practice.'" Trombetta, 467 U.S. at 488, 104 S. Ct. at 2533, 81 L. Ed. 2d at 422 (quoting Killian v. United States, 368 U.S. 231
(1961). The Trombetta court further determined that the chances were slim that the preserved breath samples would have exculpated
the defendants in that case and, even if the samples would have
revealed inaccuracies in the breath-analysis test, the defendants
had "alternative means of demonstrating their innocence."
Trombetta, 467 U.S. at 489-90, 104 S. Ct. at 2534, 81 L. Ed. 2d at
423. A state's constitutional duty to preserve evidence can only
be applied to "evidence that might be expected to play a
significant role in the suspect's case." Id. at 488, 107 S. Ct. at
2534, 81 L. Ed. 2d at 422 (footnote omitted). Under Trombetta, the
standard of constitutionality is met where evidence possesses "an
exculpatory value that was apparent before the evidence was
destroyed, and [was] of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available
means." Id. 467 U.S. at 489, 104 S. Ct. at 2534, 81 L. Ed. 2d at
422.
In Arizona, the police failed to preserve semen samples
from the victim's body and clothing where the defendant was
accused, inter alia, of child molestation and sexual assault. In
that the defendant's primary defense was that of mistaken identity,
his expert testified as to what might have been revealed by tests
promptly performed on the samples or by tests performed on the
samples on the victim's clothing had the clothing been properly
refrigerated. The trial court instructed the jury that "if they
found the State had destroyed or lost evidence, they might 'infer
that the true fact is against the State's interest.'" Arizona, 488 U.S. at 54, 109 S. Ct. at 335, 102 L. Ed. 2d at 287.
Though the jury found the defendant guilty as charged,
the Arizona Court of Appeals reversed, concluding that even though
there was no bad faith on the part of the police, "'"when identity
is an issue at trial and the police permit the destruction of
evidence that could eliminate the defendant as the perpetrator,
such loss is material to the defense and is a denial of due
process."'" Arizona, 488 U.S. at 54, 109 S. Ct. at 335, 102 L. Ed. 2d at 287, (quoting State v. Youngblood, 734 P.2d 592, 596 (Ariz.
Ct. App. 1986) and State v. Escalante, 734 P.2d 597, 603 (Ariz. Ct.
App. 1986)).
The United States Supreme Court in Arizona found that the
prosecution had dutifully complied with Brady and Agurs when it
disclosed relevant police and laboratory reports on the semen
samples and provided access of those samples to the defendant's
experts. Arizona, 488 U.S. at 55, 109 S. Ct. at 336, 102 L. Ed. 2d
at 288. The question then became whether the defendant would
prevail on federal constitutional grounds because of "some
constitutional duty over and above that imposed by cases such as
Brady and Agurs[,]" such as that which was set forth in Trombetta.
Arizona, 488 U.S. at 56, 109 S. Ct. at 336, 102 L. Ed. 2d at 288.
The Arizona Court concluded that, although the preserved materials
may have enabled the defendant to exonerate himself, the State did
not attempt to make any use of the materials in its own case in
chief. Id.
In Arizona, the United States Supreme Court uttered its
latest word on the loss or destruction of evidence by police and limited a defendant's right of federal due process to those
instances where the police have acted in bad faith:
The Due Process Clause of the Fourteenth
Amendment, as interpreted in Brady, makes the
good or bad faith of the State irrelevant when
the State fails to disclose to the defendant
material exculpatory evidence. But we think
the Due Process Clause requires a different
result when we deal with the failure of the
State to preserve evidentiary material of
which no more can be said than that it could
have been subjected to tests, the results of
which might have exonerated the defendant.
Part of the reason for the difference in
treatment is found in the observation made by
the Court in Trombetta, supra, at 486, that
'[w]henever potentially exculpatory evidence
is permanently lost, courts face the
treacherous task of divining the import of
materials whose contents are unknown and, very
often, disputed.' Part of it stems from our
unwillingness to read the 'fundamental
fairness' requirement of the Due Process
Clause, see Lisenba v. California, 314 U.S. 219, 236 (1941), as imposing on the police an
undifferentiated and absolute duty to retain
and to preserve all material that might be of
conceivable evidentiary significance in a
particular prosecution. We think that
requiring a defendant to show bad faith on the
part of the police both limits the extent of
the police's obligation to preserve evidence
to reasonable bounds and confines it to that
class of cases where the interests of justice
most clearly require it, i.e., those cases in
which the police themselves by their conduct
indicate that the evidence could form a basis
for exonerating the defendant. We therefore
hold that unless a criminal defendant can show
bad faith on the part of the police, failure
to preserve potentially useful evidence does
not constitute a denial of due process of law.
Id. 488 U.S. at 57-58, 109 S. Ct. at 337, 102 L. Ed. 2d at 289
(emphasis added).
Thus, as a matter of federal constitutional law,
appellant must show that the Bluefield Police Department acted in bad faith in discarding the couch at the local landfill shortly
after it was taken from Allison Charlton's home in March of 1992.
While there was an on-going investigation as to the origin of the
bullet hole through the couch, there were no identifiable suspects
or a victim at the time the couch was destroyed. The police
clearly acted negligently in disposing of evidence which was so
obviously a part of a pending police investigation. However, we
cannot say from the record that their actions were motivated by bad
faith. Thus, under Arizona, supra, the destruction of the couch
did not violate appellant's federal right of due process.
B.
Disposition of appellant's federal due process rights,
under Arizona v. Youngblood, does not necessarily resolve his right
of due process under West Virginia Constitution art. III, §§ 10 and
14.See footnote 8 Indeed, several jurisdictions have found the holding in Arizona to be too narrow in that it restricts due process
violations only to cases where a defendant can show bad faith, even
where evidence, negligently lost or destroyed, might fatally
prejudice a defendant. State v. Delisle, 648 A.2d 632, 643 (Vt.
1994).
Several courts have looked instead to the concurring
opinion in Arizona as an alternative means of determining a
defendant's state constitutional right of due process. See also
Trombetta, 467 U.S. at 491, 104 S. Ct. at 2535, 81 L. Ed. 2d at 424
("Rules concerning [the] preservation of evidence are generally
matters of state, not federal constitutional, law." (O'Connor, J.,
concurring) (citation omitted)). In the concurring opinion of
Arizona, Justice Stevens wrote, in relevant part: "[T]here may
well be cases in which the defendant is unable to prove that the
State acted in bad faith but in which the loss or destruction of
evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair." Id. 488 U.S. at 61, 109
S. Ct. at 339, 102 L. Ed. 2d at 291 (Stevens, J., concurring).See footnote 9
In this spirit, the Supreme Court of Delaware has
examined a state's failure to preserve evidence requested by a
criminal defendant according to the following paradigm:
'1) would find the requested material, if
extant in the possession of the State at the
time of the defense request, have been subject to disclosure under Criminal Rule 16See footnote 10 or Brady?
'2) if so, did the government have a duty to
preserve the material?
'3) if there was a duty to preserve, was the
duty breached, and what consequences should
flow from a breach?'
Hammond v. State, 569 A.2d 81, 86 (Del. 1989) (quoting Deberry v.
State, 457 A.2d 744, 750 (Del. 1983)) (footnote added). In
determining what consequences should flow from a breach of the State's duty to preserve evidence, the Hammond court employed the
following three-part analysis:
'"1) the degree of negligence or bad faith
involved,
'"2) the importance of the missing evidence
considering the probative value and
reliability of secondary or substitute
evidence that remains available, and
'"3) the sufficiency of the other evidence
produced at the trial to sustain the
conviction."'
Hammond, 569 A.2d at 86 (quoting Bailey v. State, 521 A.2d 1069,
1092 (Del. 1987) and Deberry, 457 A.2d at 752) (footnote omitted).
See State v. Delisle, 648 A.2d 632, 642-43 (Vt. 1994) (the court
conducted a "pragmatic balancing" of the state's negligence or bad
faith; the importance of the evidence lost; and other evidence of
guilt adduced at trial); Thorne v. Department of Public Safety, 774 P.2d 1326, 1331 (Alaska 1989); Commonwealth v. Henderson, 582 N.E.2d 496 (Mass. 1991).
We find the aforementioned cases to be persuasive.
Indeed, we have previously set our state constitutional
protections, in some instances, at a higher level than that
accorded by the federal constitution: " 'The provisions
of the
Constitution of
the State of
West Virginia
may, in certain
instances, require higher
standards of
protection than
afforded by the
Federal
Constitution.'
Syllabus Point
2, Pauley v.
Kelly, 162
W.Va. 672, 255 S.E.2d 859
(1979)." Syl.
pt. 1, State v.
Bonham, 173 W.
Va. 416, 317 S.E.2d 501
(1984).
As a matter of state constitutional law, we find that
fundamental fairness requires this Court to evaluate the State's
failure to preserve potentially exculpatory evidence in the context
of the entire record. Hammond, 569 A.2d at 87. See State v.
James, 186 W. Va. 173, 411 S.E.2d 692 (1991). See also State ex
rel. Peck v. Goshorn, 162 W. Va. 420, 422, 249 S.E.2d 765, 766
(1978) ("[d]ue process of law is synonymous with fundamental
fairness").
When the State had or should have had evidence requested
by a criminal defendant but the evidence no longer exists when the
defendant seeks its production, a trial court must determine (1)
whether the requested material, if in the possession of the State
at the time of the defendant's request for it, would have been
subject to disclosure under either West Virginia Rule of Criminal
Procedure 16 or case law; (2) whether the State had a duty to
preserve the material; and (3) if the State did have a duty to
preserve the material, whether the duty was breached and what
consequences should flow from the breach. In determining what
consequences should flow from the State's breach of its duty to
preserve evidence, a trial court should consider (1) the degree of
negligence or bad faith involved; (2) the importance of the missing
evidence considering the probative value and reliability of
secondary or substitute evidence that remains available; and (3)
the sufficiency of the other evidence produced at the trial to
sustain the conviction. We shall now examine this case in
accordance with the aforementioned principles.
The evidence requested by appellant--the couch on which
Chandel Fleetwood died--would have been discoverable under Rule
16(a)(1)(C) of the West Virginia Rules of Criminal Procedure,
supra. Considering that appellant's defense was that Fleetwood
died as a result of suicide, the couch, and particularly the
trajectory of the bullet through it, would clearly have been
evidence "material to the preparation of [his] defense." W. Va. R.
Crim. P. 16(a)(1)(C).See footnote 11 Thus, if the couch had been in the
possession of the State when appellant requested it for inspection,
it would have been discoverable under W. Va. R. Crim. P.
16(a)(1)(C).See footnote 12
We must next determine whether the State had a duty to
preserve the discoverable evidence. An accused's right to a fair
trial and to fair cross-examination of witnesses against him
"require[s] that the State be prepared to provide a defendant with
a reasonable opportunity to examine adverse evidence presented by the State's experts." State v. Thomas, 187 W. Va. 686, 691-92, 421 S.E.2d 227, 233-34 (1992). To that end, we have held that
[w]hen the government performs a complicated
test on evidence that is important to the
determination of guilt, and in so doing
destroys the possibility of an independent
replication of the test, the government must
preserve as much documentation of the test as
is reasonably possible to allow for a full and
fair examination of the results by a defendant
and his experts.
Id. at syl. pt. 4. The present case did not involve the
performance of "complicated testing" on the evidence, nor did its
destruction result from such testing. Nevertheless, Detective
Jones' determination of the trajectory of the bullet through the
couch was clearly important to the determination of appellant's
guilt. The police not only destroyed the couch, but it failed to
take any measurements of it or of the bullet hole in relation
thereto. The police further failed to properly photograph it.
Thus, appellant was foreclosed from fully and fairly examining
Detective Jones' determination of the trajectory of the bullet and,
more significantly, Dr. Sopher's subsequent conclusion of homicide
based on Detective Jones' determination of the trajectory. We
find, therefore, that the State breached its duty to preserve
evidence in this case in that it destroyed the couch, failed to
take measurements of it and, further, to properly photograph it.
The final step in our analysis requires application of a
three-part analysis to determine the consequences which should flow
from the State's breach of its duty to preserve the couch. The first factor to be considered is "the degree of negligence or bad
faith involved." Appellant does not assert that the police
destroyed the couch in bad faith nor does the record so suggest in
that there was neither a body nor any identifiable suspects at the
time the couch was destroyed. However, considering that the police
found a bullet, blood, hair and bone fragments in and around the
couch, it was obviously a part of a pending police investigation.
We therefore find that the police acted negligently in disposing of
this evidence and in failing to measure or properly photograph it
before doing so.
The second factor to be considered in determining what
consequences should flow from the State's failure to preserve the
couch is "the importance of the missing evidence considering the
probative value and reliability of secondary or substitute evidence
that remains available." As the facts indicate, a diagram of the
destroyed couch was drawn, from memory, by Detective Jones for Dr.
Sopher. Dr. Sopher testified that he compared the bullet hole in
Fleetwood's skull with the bullet hole as it appeared in the
diagram and in accordance with Detective Jones' determination of
the trajectory of the bullet. However, the diagram on which Dr.
Sopher had originally based his conclusion of homicide was,
inexplicably, lost before trial. At trial, Dr. Sopher drew, from
memory, a diagram of a couch which he never personally viewed but
which was drawn for him almost two years earlier. It was from his
own diagram that Dr. Sopher testified that Chandel Fleetwood died
as a result of homicide. We seriously question the reliability of this evidence which was presented as a substitute for the destroyed
couch.See footnote 13
The final factor to be considered in determining the
consequences which should flow from the State's failure to preserve
the couch is "the sufficiency of the other evidence produced at the
trial to sustain the conviction." The other evidence produced at
trial included appellant's presence at the event of Chandel
Fleetwood's death, as well as appellant's admission that he and the
others disposed of the victim's body and revolver in the woods.
The State also introduced the testimony of Dwight Campbell, who
testified that, according to appellant, "they were playing around
with a gun and they were drinking and they were playing Russian
Roulette and [Marcel Myers] picked up the gun and there was one
bullet in it and that was what killed [Fleetwood]." We recognize
that the jury could have reasonably inferred from the remaining
evidence that appellant might somehow have been involved in
Fleetwood's death. However, the record is clear that Dr. Sopher,
whose testimony was so critical to the prosecution's case, could
not have concluded that Fleetwood's death was the result of
homicide without the evidence of the trajectory of the bullet
through the missing couch. See n. 4, supra.
The question now before us is what consequences should
flow from the State's failure to preserve the couch. Hammond, 569 A.2d at 90. Appellant had filed a motion in limine to suppress all
testimony and evidence from the destroyed couch. This motion was
denied by the trial judge without explanation. Following both the
State's case-in-chief and the guilty verdict by the jury,
appellant's counsel made motions for directed verdicts of
acquittal. Both of these motions were likewise denied, without
comment by the trial judge.
In his charge to the jury, the trial judge included the
following instruction regarding the missing evidence:
The Court instructs the jury that the
State has introduced evidence gleaned from a
couch which no longer exists. The reason this
couch no longer exists is because the officers
of the Bluefield City Police Department
destroyed it after conferring with the
Prosecuting Attorney's Office.
In considering this evidence, you should
scrutinize it with great care and caution.
This destruction of evidence occurred before
the defendant could examine it. This
destruction of the couch may very well have
deprived the defendant of evidence crucial to
his defense and which may in fact have
exculpated him.
We find that this instruction, under the circumstances of this
case, was not sufficient to protect appellant's right of due
process under W. Va. Const. art. III, §§ 10 and 14. We hold that
appellant's trial was so fundamentally unfair as a result of the
admission of evidence regarding the destroyed couch that appellant
is entitled to a new trial. Appellant's conviction of first degree murder is therefore reversed and this case is remanded for a new
trial.See footnote 14
III.
Appellant's second assignment of error is that the trial
court committed reversible error when it permitted testimony given
by the victim's mother at the trial of a co-defendant to be read to
the jury. Appellant maintains that the admission of this testimony
violated his right to confront witnesses against him, under the
Sixth Amendment of the United States Constitution.See footnote 15
The record reveals that during pre-trial motions, the
State indicated that Peggy Brown, the victim's mother, would not be
available to testify at appellant's trial. The State then requested that it be permitted to read the testimony elicited from
Ms. Brown several months earlier at the trial of co-defendant
Marcel Myers. Appellant's counsel's sole response to the State's
motion was as follows: "Your Honor, the only problem I have with
the motion is that Marcel Myers['] name appears throughout the
transcript, but other than that I don't have any real problem with
the motion."
Subsequently, when the State introduced Ms. Brown's
testimony during its case-in-chief, appellant's counsel made a
general objection.See footnote 16 Presumably, appellant's objection was in
reference to his pre-trial objection regarding the appearance of
Marcel Myers' name throughout the transcript. We thus find no
merit in appellant's contention on appeal that the trial court
improperly foreclosed his right to confront and cross-examine Ms.
Brown.
As we have previously held, "[t]his Court will not
consider an error which is not preserved in the record nor apparent
on the face of the record." Syl. pt. 6, State v. Byers, 159 W. Va.
596, 224 S.E.2d 726 (1976). See 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 1-7(C)(2) p.77 (3d ed.
1994) ("where the objection to the admission of testimony is based
upon some specified ground, the objection is then limited to that
precise ground and error cannot be predicated upon the overruling
of the objection, and the admission of the testimony on some other
ground, since specifying a certain ground of objection is
considered a waiver of other grounds not specified." quoting
Leftwich v. Inter-Ocean Cas. Co., 123 W. Va. 577, 17 S.E.2d 209
(1941)).See footnote 17 Accordingly, we find that the admission of Ms. Brown's
testimony from a previous trial was not error.
IV.
Appellant's third assignment of error is that the
prosecutor's cross-examination of defense experts as to the fees
they expected to receive for their work and testimony constitutes
a denial of appellant's right of due process. However, the record
reveals that appellant's counsel failed to object to this line of
questioning. Therefore, the admission of this testimony must
invoke the plain error doctrine before this Court will reverse
appellant's conviction on this basis.See footnote 18
In syllabus point 7 of State v. Miller, No. 22571,
___ W. Va. ___, ____S.E.2d ____ (May 18, 1995), this Court
held:
To trigger application of the 'plain error'
doctrine, there must be (1) an error; (2) that
is plain; (3) that affects substantial rights;
and (4) seriously affects the fairness,
integrity, or public reputation of the
judicial proceedings.
See also syl. pt. 4, in relevant part, State v. England, 180 W. Va.
342, 376 S.E.2d 548 (1988) (The plain error "doctrine is to be used
sparingly and only in those circumstances where substantial rights
are affected, or the truth-finding process is substantially
impaired, or a miscarriage of justice would otherwise result.")
Upon review of the record, we find that the prosecutor's
cross-examination of appellant's experts regarding their fee
arrangements affected neither appellant's substantial rights nor
the fairness, integrity or public reputation of his criminal
trial.See footnote 19
V.
For reasons discussed herein, the judgment of conviction
rendered in the Circuit Court of Mercer County is hereby reversed
and this case is remanded for a new trial.
Reversed and remanded.
Footnote: 1
In a videotaped statement introduced at trial,
appellant stated that he and the others were involved in the drug
trade. Appellant was apparently the "enforcer" for the group
and, according to the preliminary hearing testimony of Detective
Jones, would travel to Bluefield to straighten out the group's
"money affairs." However, significantly, the evidence of drugs
and money was not pursued at appellant's trial. During an in
camera proceeding just prior to the commencement of trial, the
prosecutor stated: "Your Honor, the [appellant's] role in this
ring, was the enforcer. We had certain evidence of that, but I
do not feel that we could tie it in with the actual murder
itself. . . . I think [appellant] mentions in his statement
about coming down here for the purpose of selling drugs, but we
didn't bring the people in the area who knew what they sold."Footnote: 2
Allison Charlton, at whose residence and on whose
couch Chandel Fleetwood was shot, testified that the couch was
sat, slept and played upon during the seven months following the
shooting.Footnote: 3
At the preliminary hearing, Detective Jones described
his observation of the direction of the bullet through the couch:
[The] bullet hole was in the back of the
couch, on the top cushion on the back, and it
went down. If you're facing the couch and
the seat part is in front of you, it went
down from a left to right angle.Footnote: 4
According to appellant's statement, the following day,
he and one of the others, Marcel Myers, moved Fleetwood's body
approximately five to ten feet further into the woods.Footnote: 5
The following pertinent inquiry and exchange with Dr.
Sopher occurred on direct examination:
A: If I just have this skull without any
other information, I cannot, on that basis
alone, determine this victim died as a result
of a homicide, or an accidental weapon
discharging, or a possible suicide. But,
that would not be a very likely possibility
because of the angle of the gunshot. I
cannot on those basis, alone, determine
whether this case is a homicide, or very
likely a suicide, unless we find out more
about the circumstances surrounding the
death. . . . Maybe it was an accidental
shooting, but with that type of a path,
certainly a homicide would be the main
consideration, but without other information
from the law enforcement a manner of death to
any degree of certainty cannot be
established. . . . That's why I gather the
information from the police investigation of
the circumstances of the death and in
conjunction with the medical finding and the
body and we come to a conclusion. . . . A
lot of questions cannot be answered by the
body alone, so we look to the investigation
to correlate with the body findings to arrive
at the manner of death. The medical findings
and the police investigation establishes,
well, is this a homicide or an accident or a
suicide.
. . . .
Q: Now, in March [of 1992], you had no way
of knowing where the bullet had entered and
exited because it could have been in any part
of the body, you just had the bone fragments
and the blood and the bullet?
A: That's correct.
Q: But, did the officers, when they talked
to you in March of '92 -well, did Detective
Jones ever make a diagram for you that was
helpful to you in reaching your conclusion as
to the cause of death?
A: That's correct.
Q: Would you step down here to the
blackboard. Approximately a year prior to
finding the skeletal remains of Chandel
Fleetwood, would you show the jury the
drawing that Detective Jones did for you that
played an important part in your results and
conclusions.
A: At the time, of course, that I was shown
the stuffing and the bone fragments and the
bullet, keeping in mind this was in March of
'92 and the skeleton was found 14 months
later. (Witness demonstrating.) The drawing
presented to me was a 3 cushion couch, with
this being the seat back and this is the
bottom pillow, which you sit upon. This is
the bottom of the couch and the legs. There
was like an armrest on each side. So, this
is the couch when you face the couch. It was
sitting against a far wall and on the
righthand seat back cushion was the defect in
the top portion of the couch, roughly over
like so (demonstrating) and the destructive
path of this bullet.
. . . .
Q: Of course, you didn't examine this couch?
A: No, this was told to me by law enforcemnt
people.
. . . .
Q: What is your opinion, Doctor, as to
manner of this death?
A: In my opinion it is a homicide, based
upon the alignment of the bullet and the
skull on the couch.
(emphasis added).Footnote: 6
The State also introduced the testimony of witness
Dwight Campbell, who had been in police custody on miscellaneous
drug and firearm charges. Mr. Campbell, an acquaintance of
appellant, testified that on the day following appellant's
release from jail on the murder charge, appellant said that "they
were playing around with a gun and they were drinking and they
were playing Russian Roulette and [Marcel Myers] picked up the
gun and there was one bullet in it and that was what killed his
friend." Footnote: 7
In Hatfield, we reiterated the United States Supreme
Court's standard of evaluating whether the prosecution's failure
to disclose evidence is of constitutional proportions requiring
the prosecutor to disclose it absent a request to do so:
[I]f the omitted evidence creates a reasonable doubt
that did not otherwise exist, constitutional error has
been committed. This means that the omission must be
evaluated in the context of the entire record. If
there is no reasonable doubt about guilt whether or not
the additional evidence is considered, there is no
justification for a new trial. On the other hand, if
the verdict is already of questionable validity,
additional evidence of relatively minor importance
might be sufficient to create a reasonable doubt.
Hatfield, 169 W. Va. at 205, 286 S.E.2d at 111 (quoting Agurs,
427 U.S. at 112-13, 96 S. Ct. at 2402, 49 L. Ed. 2d at 355
(footnote omitted)).Footnote: 8
This Court has recognized that both West Virginia
Constitution art. III, §§ 10 and 14 protect a criminal
defendant's right of due process of law.
W. Va. Const. art. III, § 10 provides: "No person
shall be deprived of life, liberty, or property, without due
process of law, and the judgment of his peers." See State v.
Neuman, 179 W. Va. 580, 371 S.E.2d 77 (1988).
In State v. Hatfield, supra and State v. Thomas, 187 W.
Va. 686, 421 S.E.2d 227 (1992), we specifically recognized that
due process requires prosecutors to reveal to a criminal
defendant all potentially exculpatory evidence, pursuant to W.
Va. Const. art. III, § 14.
W. Va. Const. art. III, § 14 provides:
Trials of crimes, and misdemeanors, unless
herein otherwise provided, shall be by a jury
of twelve men, public, without unreasonable
delay, and in the county where the alleged
offence was committed, unless upon petition
of the accused, and for good cause shown, it
is removed to some other county. In all such
trials, the accused shall be fully and
plainly informed of the character and cause
of the accusation, and be confronted with the
witness against him, and shall have the
assistance of counsel, and a reasonable time
to prepare for his defence; and there shall
be awarded to him compulsory process for
obtaining witnesses in his favor.
Footnote: 9
See, e.g., Ex parte Gingo, 605 So. 2d 1237, 1241 (Ala.
1992); Hammond v. State, 569 A.2d 81, 87 (Del. 1989); State v.
Matafeo, 787 P.2d 671, 673 (Hawaii 1990); Commonwealth v.
Henderson, 582 N.E.2d 496, 497 (Mass. 1991).Footnote: 10
Rule 16(a)(1)(C) of the Superior Court Criminal Rules
of Delaware, the applicable rule in Hammond, is virtually
identical to Rule 16(a)(1)(C) of the West Virginia Rules of
Criminal Procedure, which states:
(a) Disclosure of Evidence by the State.
(1) Information Subject to Disclosure.
(C) Documents and Tangible Objects. -- Upon
request of the defendant, the state shall
permit the defendant to inspect and copy or
photograph books, papers, documents,
photographs, tangible objects, buildings or
places, or copies or portions thereof, which
are within the possession, custody and
control of the state, and which are material
to the preparation of his defense or are
intended for use by the state as evidence in
chief at the trial, or where obtained from or
belonging to the defendant.
See generally, State ex rel. Rusen v. Hill, ___ W. Va. ___, 454 S.E.2d 427, 433 (1994) ("Discovery is one of the most important
tools of a criminal defendant. The purpose of Rule 16(a), 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 a defendant's case.")Footnote: 11
In his pre-trial motion to suppress any and all
testimony concerning the seized couch, as well as any and all
physical evidence gleaned therefrom, appellant maintained, inter
alia, that "[t]he investigating officer testified at the
preliminary hearing that the bullet path through the couch
precluded [appellant's] suicide defense. [Appellant] argues that
the placement of the bullet holes [sic] in this couch is
exculpatory and would substantiate his suicide defense,
particularly after being examined by a defense expert."Footnote: 12
Determining whether the couch would have been
discoverable under Brady, supra, or Agurs, supra, would be an
"'artificial exercise, since it is no longer available for
examination or testing.'" Hammond, 569 A.2d at 88 (citing
Deberry, 457 A.2d at 751 n. 5). See Brady, supra; Agurs, supra;
Hatfield, supra.Footnote: 13
Moreover, photographs taken of the couch prior to its
destruction showed only portions of the couch and the blood found
on it. As we previously indicated, these photographs were of no
probative evidentiary value.Footnote: 14
We note, however, that reversal of conviction will
not always be the appropriate consequence which should flow from
the State's breach of its duty to preserve evidence. In his
concurring opinion in Arizona, Justice Stevens found significant
the fact that the trial court instructed the jury that if they
found that the State had "'allowed to be destroyed or lost any
evidence whose content or quality are in issue, you may infer
that the true fact is against the State's interest.' As a
result, the uncertainty as to what the evidence might have proved
was turned to the defendant's advantage." Arizona, 488 U.S. at
59-60, 109 S. Ct. at 338, 102 L. Ed. 2d at 290 (emphasis added).
See Hammond, 569 A.2d at 90 n. 22. In the present case, even if
such an instruction were given, it would not have sufficiently
protected appellant's due process rights.Footnote: 15
See State v. Eye, 177 W. Va. 671, 673, 355 S.E.2d 921, 923 (1987) ("The confrontation clause of the Sixth Amendment
to the United States Constitution, coupled with the Fourteenth
Amendment, guarantees the right of an accused in a criminal
prosecution to confront the witnesses against him. See State ex
rel. Hawks v. Lazaro, 157 W. Va. 417, 440, 202 S.E.2d 109, 124
(1974); W. Va. Const. Art. III § 14. This right of confrontation
means more than simply being allowed to physically confront the
witness. See Davis v. Alaska, 415 U.S. 308, 315, 94 S. Ct. 1105,
1109, 39 L. Ed. 2d 347 (1974). Indeed, the main purpose of the
confrontation is to secure for the defendant the opportunity of
cross-examination. 415 U.S. at 315-16, 94 S. Ct. at 1109-10.")Footnote: 16
See W. Va. Evid. 103 (a)(1), which provides:
(a) Effect of Erroneous Ruling.--Error
may not be predicated upon a ruling which
admits or excludes evidence unless a
substantial right of the party is affected,
and (1) Objection.--In case the ruling is one
admitting evidence, a timely objection or
motion to strike appears of record, stating
the specific ground of objection, if the
specific ground was not apparent from the
context[.]Footnote: 17
On retrial of this case, we direct the parties'
attention to this Court's decision in State v. James Edward S.,
184 W. Va. 408, 400 S.E.2d 843 (1990) wherein we set forth, in
detail, when a prior statement by a witness may be admitted at
trial, in lieu of the witness' direct testimony, without
violating the Confrontation Clause of the Sixth Amendment to the
United States Constitution.Footnote: 18
In syllabus point 2 of State v. Stewart, 187 W. Va.
422, 419 S.E.2d 683 (1992), we held: "'"Error in the admission
of testimony to which no objection was made will not be
considered by this Court on appeal or writ of error, but will be
treated as waived." Syl. pt. 4, State v. Michael, 141 W. Va. 1,
87 S.E.2d 595 (1955).' Syllabus point 7, State v. Davis, 176
W. Va. 454, 345 S.E.2d 549 (1986)." However, W. Va. R. Evid.
103(d) states that "[n]othing in this rule precludes taking
notice of plain errors affecting substantial rights although they
were not brought to the attention of the court."Footnote: 19
In that this case is reversed based upon appellant's
contention that evidence from the missing couch was improperly
admitted at trial, it is not necessary that we address his final
assignment of error that the jury's verdict was contrary to the
law and evidence.
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