State ex rel. Burdette v. Zakaib
| Citation | 685 S.E.2d 903 |
| Decision Date | 02 November 2009 |
| Docket Number | No. 34857.,34857. |
| Parties | STATE of West Virginia, ex rel. Gregory BURDETTE, Petitioner, v. The Honorable Paul ZAKAIB, Jr. Kanawha County Circuit Court Judge, Respondent. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court
2. "A writ of mandamus will not issue unless three elements coexist-(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syllabus Point 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
3. Syllabus Point 1, In the Matter of Renewed Investigation of the State Police Crime Laboratory, 219 W.Va. 408, 633 S.E.2d 762 (2006).
4. Syllabus Point 2, In the Matter of Renewed Investigation of the State Police Crime Laboratory, 219 W.Va. 408, 633 S.E.2d 762 (2006).
5. "` Syllabus Point 3, In the Matter of Renewed Investigation of the State Police Crime Laboratory, 219 W.Va. 408, 633 S.E.2d 762 (2006).
6. This Court's ruling in In the Matter of Renewed Investigation of the State Police Crime Laboratory, 219 W.Va. 408, 633 S.E.2d 762 (2006), does not afford every petitioner with alleged serology issues the right to additional DNA testing. In order to have the right to additional DNA testing, the evidence sought to be tested must likely produce an opposite result if a new trial were to occur, and the evidence cannot be such that its purpose is merely to impeach or discredit a State's witness.
7. In accordance with West Virginia Code § 15-2B-14 (2004), the West Virginia Legislature provides a defendant the absolute right to ask for DNA testing; however, it does not provide a defendant the absolute right to have DNA testing conducted.
Baron Michael Helgoe, Esq., Victor, Victor & Helgoe, Charleston, WV, for Petitioner.
Jennifer L. Dowdy Meadows, Esq., Assistant Prosecuting Attorney, Charleston, WV, for Respondent.
The petitioner, Gregory Burdette, seeks an original jurisdiction writ of mandamus directing the respondent, the Honorable Paul Zakaib, Jr., Kanawha County Circuit Court Judge, to grant his motion for post-conviction DNA Testing that he filed as a part of an underlying habeas corpus action, SER Burdette v. Haynes, Warden, Civil Action No. 07-MISC-139. The evidence the petitioner wants tested is a cigarette butt that was submitted into evidence at his April 11, 1986, trial wherein a Kanawha County jury found him guilty of six counts of forgery, six counts of uttering, one count of kidnaping, and one count of first-degree murder for felony murder based upon the underlying crime of robbery. On February 27, 2009, the circuit court denied the petitioner's motion for post-conviction DNA testing. Thereafter, pursuant to W. Va.Code § 15-2B-14(j) (2004), the petitioner filed the present writ of mandamus with this Court.1 After reviewing the facts of the case, the issues presented, and the relevant statutory and case law, this Court finds that mandamus does not lie and therefore the petitioner's request for a writ of mandamus is denied.
Vincent Tyree (hereinafter, the "victim") was a teacher and coach at Sissonville Junior High School. On November 17, 1983, he left the school around 3:00 p.m. and disappeared. On November 18, 1983, a hunter found the victim's body on a hill near a gas pipeline at Second Creek in Kanawha County, West Virginia. According to evidence presented at the petitioner's trial, the victim had been shot twice in the back of the head and his body had been dragged down a hill. The victim was shot once in the back of the head as he walked up the hill and was shot a second time while lying face down on the ground. The police recovered one .38 caliber bullet from the ground and a second one from the victim's head. They further found the victim's checkbook stuffed in a pocket of his jacket. The checkbook had a bloody fingerprint on it, later identified as that of the petitioner's left middle finger. A cigarette lighter with drywall compound on it was also found near the victim's body along with a cigarette butt with teeth marks on the filter.
Prior to his disappearance, the victim was in the process of building a three-unit apartment building in Sissonville, West Virginia. He paid for labor and materials by check and often kept his checkbook in the glove compartment of his jeep. The victim hired the petitioner to do drywall work for him at the apartment building. It was later determined that the material on the lighter that was found near the victim's body was consistent with the drywall compound used by the petitioner at the victim's apartment building.
During their initial investigation, the police spoke with the petitioner to inquire if the victim had been to the construction site on the day of his disappearance. The petitioner stated that he had not been there that day. At a later point, however, the police spoke with the petitioner again as they had ascertained that checks had been stolen from the victim and cashed by the petitioner. In fact, a handwriting expert, a fingerprint expert, and two clerks from the Big H Store connected the petitioner to some, if not all, of the forged checks.
At trial, State Police Serologist Lynn Inman testified regarding her tests of a cigarette butt found at the crime scene. This evidence is also the subject of the petitioner's current petition for a writ of mandamus in this Court. Ms. Inman explained that the cigarette butt contained the genetic marker ABO Type O. She further testified that she tested known cigarette butts from the petitioner that were retrieved from his car and house, and determined from saliva found on them that the petitioner was also ABO Type O. The petitioner did not dispute that this was his blood type. Notwithstanding such testimony, during cross-examination by the petitioner's attorney, Ms. Inman acknowledged that the cigarette butt in question may not have belonged to the petitioner, and that indeed it could have been used by almost half the people in this country, thus, reducing its believability as evidence against him. Some of her testimony is as follows:
Q. Oh, goodness, does that mean that the cigarette that was found at the scene is my client's cigarette?
A. No, sir I can only say that the blood types are consistent.
Q. Well, how many—what percentage of the population has O type blood?
A. Forty-three percent would be type O, but eighty percent are secretors, so thirty-four percent would secrete a type O, on that cigarette butt.
Q. Thirty-four percent, one-third of the people in this country have type O blood then?
A. Thirty-four percent are type O secretors.
Q. O secretors?
A. Yes, sir.
Q. And what percent are type O, forty-three percent?
A. Yes, sir.
Q. So, almost half the people in this country have type O blood?
A. Yes, sir.
Q. Now is the only genetic marker that your laboratory is capable of doing on a saliva examination is that just to determine whether a person's blood is type A, B, AB, ABO or O?
A. Yes, sir.
Q. That's all you can do?
A. Yes, sir.
Q. You can't check saliva any further than that?
A. No sir.
Q. [O]h, by the way, did you ever check Greg Burdette's blood?
A. No, sir.
Q. You don't know what his type is, do you?
A. From the known cigarette butts, yes, sir, he is an O.
Q. But you never checked his blood?
A. No, sir.
With regard to the victim's stolen checkbook, the petitioner admitted at trial that he deceptively filled out and uttered at least six checks that had been stolen from the victim. He further...
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