Belknap v. Cline
| Decision Date | 15 December 1993 |
| Docket Number | No. 21758,21758 |
| Citation | 190 W.Va. 590,439 S.E.2d 455 |
| Court | West Virginia Supreme Court |
| Parties | Russell B. BELKNAP, Defendant Below, Appellant v. Jane L. CLINE, Commissioner of the West Virginia Department of Motor Vehicles of The State of West Virginia, Plaintiff Below, Appellee. |
Syllabus by the Court
"When it is shown that an original writing containing facts relevant to the issues in a case is lost or destroyed secondary evidence of its contents is admissible." Syl.Pt. 1, State ex rel. Alderson v. Holbert, 137 W.Va. 883, 74 S.E.2d 772 (1953).
John J. Cowan, Charleston, for appellant.
Paul E. Jordan, Sr. Asst. Atty. Gen., Charleston, for appellee.
Russell B. Belknap appeals a January 8, 1993, decision of the Circuit Court of Kanawha County affirming a decision of the Commissioner of Motor Vehicles (the "Commissioner") revoking the Appellant's driver's license for driving under the influence of alcohol. The Appellant contends that the circuit court erred in affirming the decision of the Commissioner and requests this Court to reverse that decision. We reverse the decision of the Circuit Court of Kanawha County and remand this matter to the Commissioner for further proceedings consistent with this order. I.
On April 21, 1989, at approximately 11:55 p.m., the Appellant was driving his 1986 Chevrolet truck on State Route 4 near Sutton, West Virginia. Trooper M.G. DeBord and Sergeant J.K. Riffle of the West Virginia State Police were travelling north on State Route 4. Sergeant Riffle testified that he noticed the Appellant's truck weaving on the road and crossing the center line several times. He further testified that he followed the vehicle for approximately one-half to three-quarters of a mile. Trooper DeBord also testified that he noticed the truck crossing the center line.
Upon the initial stop of the vehicle, the driver was identified as Russell B. Belknap, the Appellant in this matter. Sergeant Riffle and Trooper DeBord both testified that they noticed a strong odor of alcohol on the Appellant's breath. Furthermore, the Appellant apparently had bloodshot eyes and appeared to have difficulty standing. Trooper DeBord performed the field sobriety tests on the Appellant, first administering the walk-and-turn test. The Appellant had difficulty keeping his balance while listening to instructions, did not touch his heel to his toe on every step, used his arms for balance, and lost his balance while turning. On that basis, Trooper DeBord concluded that the Appellant had failed the walk-and-turn test.
Trooper DeBord then administered the one-leg-stand test, and the Appellant was unable to count to thirty as requested and had to put his foot down more than three times. A horizontal gaze nystagmus test was also given. Trooper DeBord testified that the Appellant was unable to follow an object smoothly with either of his eyes. On the basis of these three sobriety tests, Trooper DeBord arrested the Appellant for driving under the influence of alcohol and transported him to the Braxton County Annex Building ("Annex Building") where a secondary chemical test of the breath was administered. Upon arriving at the Annex Building, Miranda warnings and an implied consent form were given to the Appellant. Trooper DeBord videotaped the procedures at the Annex Building, including the administration of the breathalyzer test. 1 The procedures designed to test the Appellant's sobriety at the scene were not videotaped.
A hearing before the Department of Motor Vehicles was held on May 5, 1990. During that hearing, the troopers testified regarding the arrest of the Appellant, the administration of the sobriety tests, and the videotaping of the activities conducted at the Annex Building. Trooper DeBord moved the videotape into evidence and asked that the hearing examiner hold the record open so that the video might be considered. 2 The Appellant, unrepresented by counsel, was asked if he objected to the introduction of the video. He responded that he "would like for it to be reviewed...." The hearing examiner then gave the trooper thirty days to produce a copy of the video, designated it as Exhibit Number Four, and explained that "it will be made part of the record and the Commissioner will review that carefully." The Appellant further stated that "the events on the tape I think will be helpful to me and, and what he said about, I'd like to see that, I'd like to have, you know, of course, I guess they will be the one to examine it...." Once again, the Appellant was assured by the hearing examiner that the video would be reviewed carefully.
For reasons unknown or undisclosed, the video was never submitted. On January 30, 1991, the Commissioner stated that the record was to remain open for an additional thirty days for the submission of the video. Again, no video was received.
On May 28, 1991, the Commissioner ordered that the Appellant's license be suspended. The Commissioner noted that the license was suspended based upon the testimony of the officers and in accordance with Albrecht v. State, 173 W.Va. 268, 314 S.E.2d 859 (1984). 3
On June 13, 1991, the Appellant appealed this matter to the Circuit Court of Kanawha County. The Appellant contended that the failure to submit the video constituted failure to prosecute, that the Commissioner erred in failing to require submission of the video since it was the best evidence of what the officers allegedly observed, that the video would have demonstrated that the Appellant was not intoxicated, and that failure to place the video into evidence required dismissal of the proceedings. The decision of the Commissioner was affirmed, without hearing or oral argument, on January 8, 1993. The circuit court apparently reasoned that because the Commissioner did not rely on the results of the breathalyzer test, the video depicting the administration of such test was neither relevant nor necessary to the determination. The circuit court noted that "[t]he absent tape about which the appellant complains relates to the administration of the secondary chemical test that was not even considered by the Commissioner in reaching his decision."
On appeal, the Appellant contends that the lower court erred by concluding that the video was not relevant to the testimony of the officers regarding the Appellant's condition and demeanor. The Appellant also contends that the lower court erred in refusing to apply a principle similar to that expressed in syllabus point 3 of McGlone v. Superior Trucking Co., 178 W.Va. 659, 363 S.E.2d 736 (1987), providing that the unjustified failure to call an available witness may, if the trier of fact so finds, give rise to an inference that the witness would have been adverse to the party failing to call such witness. 4
II.
Initially, we emphasize that we do not mean to suggest that the video, simply because it existed, had to be introduced into evidence. The crucial issue here is not the existence of the video but the fact that it was offered into evidence by the police, was thereafter also requested by the Appellant, and was indeed ordered by the hearing examiner. The officer raised the issue of the video and moved it into evidence. The Appellant then approved of the introduction, and the hearing examiner ordered the video to be produced within thirty days. Once this sequence of events occurred, the issue was no longer one of whether to introduce the video or whether it was necessary to the proceedings. The issue then focused more centrally on the Appellant's right to have that evidence introduced as promised by the hearing examiner. If the police had not initially offered the video as evidence, the remaining evidence against the Appellant may indeed have been sufficient to justify suspension of the Appellant's license. 5
However, the...
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