State ex rel. Richey v. Hill

• Decision Date: 27 May 2004
• Docket Number: No. 31676.,31676.
• Citation: 216 W.Va. 155,603 S.E.2d 177
• Parties: STATE of West Virginia ex rel. Clyde H. RICHEY, Petitioner, v. Colonel Howard E. HILL, Jr., and Mike Clifford, Prosecuting Attorney for Kanawha County, Respondents.
• Court: West Virginia Supreme Court

603 S.E.2d 177

216 W.Va. 155

STATE of West Virginia ex rel. Clyde H. RICHEY, Petitioner, v. Colonel Howard E. HILL, Jr., and Mike Clifford, Prosecuting Attorney for Kanawha County, Respondents.

No. 31676.

Supreme Court of Appeals of West Virginia.

Submitted March 30, 2004.

Decided May 27, 2004.

Concurring Opinion of Chief Justice Maynard July 6, 2004.

Jacques R. Williams, Hamstead, Williams & Shook, P.L.L.C., Morgantown, for the Petitioner.

Kelly D. Ambrose, Assistant Attorney General, Chief Legal Counsel, South Charleston, for Respondent Hill.

Mike Clifford, Prosecuting Attorney, Mary Beth Kershner, Assistant Prosecuting Attorney, Robert William Schulenberg, III, Assistant Prosecuting Attorney, Charleston, for Respondent Clifford.

DAVIS, J.

Clyde H. Richey (hereinafter "Mr. Richey") seeks an original jurisdiction writ of mandamus directing Colonel Howard E. Hill, Jr., Superintendent of the West Virginia State Police, and Mike Clifford, Prosecuting Attorney for Kanawha County, West Virginia (hereinafter "Colonel Hill" or "Mr. Clifford"), to either conduct DNA tests on certain evidence used in Mr. Richey's 1979 trial for third-degree sexual assault or to release such evidence so that he can arrange his own testing. Having reviewed the petition and supporting memorandum, Colonel Hill's and Mr. Clifford's responses and exhibits, and pertinent records, we find mandamus does not lie and therefore deny the petition.

I. FACTUAL AND PROCEDURAL HISTORY

A jury convicted Mr. Richey in 1979 on one count of third-degree sexual assault for having had anal intercourse with a fourteen year-old boy in a motel in Charleston, West Virginia. At the time of the assault, Mr. Richey was in the House of Delegates. His victim was a legislative page whom Mr. Richey knew through the Big Brothers program. Mr. Richey arranged for the victim to accompany him from Morgantown and to stay with him for several days in a motel room Mr. Richey was renting during the legislative session. After conviction, Mr. Richey was not incarcerated but instead received five years probation. We affirmed the conviction in State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).

At trial, the State introduced three-pairs of the victim's underwear.¹ State Police Serologist Fred Zain subjected one pair of the underwear to an unauthorized acid phosphate test (a test which determines if semen is present), but apparently obtained no test results. State Police Serologist Robert Murphy performed other testing on all three pairs of the underwear, which found semen on two of them. However, there was insufficient semen to determine the blood type of the semen.²

After conviction, Mr. Richey filed a number of habeas petitions culminating in a habeas proceeding held before Judge A. Andrew MacQueen of the Circuit Court of Kanawha County.³ This proceeding included a claim under In re West Virginia State Police Crime Laboratory, 190 W.Va. 321, 438 S.E.2d 501 (1993) (hereinafter "Zain I").⁴ Judge MacQueen dismissed the Zain I claim on April 23, 1996, and the remaining claims on December 2, 1996. We refused a petition for appeal.

After we refused Mr. Richey's habeas appeal, he filed a coram nobis petition, a W. Va. R. Civ. P. Rule 60(b) motion, and a petition for DNA testing⁵ in the Circuit Court of Kanawha County, Judge George M. Scott, sitting by temporary assignment. Judge Scott denied relief in 1998 finding "the claims of the petitioner ... are ... barred by the doctrine of res judicata." Mr. Richey never petitioned for an appeal from Judge Scott's final order.

In 2002, Mr. Richey filed with the Circuit Court of Kanawha County, Judge Louis H. Bloom, a motion for DNA testing that Judge Bloom found was "nearly identical" to the one Mr. Richey filed before Judge Scott.⁶ While this motion was pending, Mr. Richey filed an original jurisdiction habeas corpus petition in this Court seeking DNA testing, which we refused. On November 26, 2002, Judge Bloom denied the motion for DNA testing finding that it was nearly identical to the coram nobis petition Judge Scott denied and was barred by Judge Scott's decision. Mr. Richey never petitioned for appeal. Mr. Richey now asks us to order Colonel Hill and Mr. Clifford to perform DNA testing or allow him to perform such testing.

II. STANDARD FOR ISSUANCE OF WRIT OF MANDAMUS

We have explained that "'"[m]andamus lies to require the discharge by a public officer of a nondiscretionary duty." Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479 [, 153 S.E.2d 284 (1967)].' Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969)." Syl. pt. 1, State ex rel. Williams v. Department of Mil. Aff., 212 W.Va. 407, 573 S.E.2d 1 (2002). "To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy." Syl. pt. 2, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981). As "the burden of proof as to all the elements necessary to obtain mandamus is upon the party seeking the relief[,]" 52 Am. Jur. 2d Mandamus § 3 at 271 (2000) (footnote omitted), a failure to meet any one of them is fatal. With these factors in mind, we turn to the parties' contentions.

III. DISCUSSION

Mr. Richey claims that DNA testing will prove his innocence. He further asserts that he has a clear legal right to exculpatory evidence and that the Respondents have a corresponding duty to provide him such evidence. He also summarily claims that "without this Honorable Court's involvement he is not likely to ever obtain what he needs."

The Respondents counter that they are not the custodians of the evidence and do not know if the evidence Mr. Richey seeks still exists. They also respond that Mr. Richey does not have a clear legal right to a mandamus because he has previously sought the same relief he now seeks before this Court and was unsuccessful. Consequently, he is barred by res judicata from proceeding in this action. We find that Mr. Richey has not shouldered his "heavy" burden of showing a right to mandamus. 52 Am. Jur. 2d Mandamus § 3 at 272 (2000) (footnote omitted).

A. DNA Testing Is Not a Clear Legal Right and a Mandamus Cannot Be Used to Create Such a Right.

"We have characterized the purpose of the writ [of mandamus] as the enforcement of an established right and the enforcement of a corresponding imperative duty created or imposed by law." State ex rel. Ball v. Cummings, 208 W.Va. 393, 398, 540 S.E.2d 917, 922 (1999). Because mandamus enforces only an established right, "[p]etitioners in mandamus must have a clear legal right to the relief sought therein and such right cannot be established in the proceeding itself." Syl. pt. 1, State ex rel. Kucera v. Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).

Mr. Richey directs us to no authority mandating the State conduct, or allow to be conducted, DNA testing when the petitioner is not incarcerated. Rather, he directs us to Zain I where we required inmates seeking relief due to Fred Zain's involvement in their trials to consent to DNA testing. 190 W.Va. at 327,438 S.E.2d at 507. Our concern in Zain I revolved around those who were still incarcerated and not those who had already been released or who had never been incarcerated. We specifically provided in Zain I, "we will direct the Clerk of this Court to prepare and cause to be distributed to the Division of Corrections an appropriate post-conviction habeas corpus form." Id. at 327, 438 S.E.2d at 507 (emphasis added). Our concern in Zain I for those still incarcerated flowed, at least in part, from the jurisdictional requirement that habeas lies only for one "convicted of a crime and incarcerated under sentence of imprisonment therefore[.]" W. Va.Code § 53-4A-1(a) (1967) (2000 Repl. Vol.).⁷ Mr. Richey's memorandum of law recognizes that habeas is unavailable to him as he is not incarcerated. Thus, he seeks to extend Zain I to include those who are not, or as here, who have never been, incarcerated.⁸ This, as we have shown above, we cannot do.⁹

B. No Clear Legal Right Because of Res Judicata

In their responses, both Colonel Hill and Mr. Clifford claim that Mr. Richey lacks a clear legal right to the relief he seeks because his claim is barred by res judicata. We have explained res judicata as follows:

"`"An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata." Point 1, Syllabus, Sayre's Adm'r v. Harpold, 33 W.Va. 553 [(1890)].' Syl. Pt. 1, In re McIntosh's Estate, 144 W.Va. 583, 109 S.E.2d 153 (1959)." Syllabus point 1, State ex rel. West Virginia Department of Health & Human Resources v. Cline, 185 W.Va. 318, 406 S.E.2d 749 (1991) (per curiam).

Syl. pt. 1, State ex rel. West Virginia Dep't of Health & Hum. Res. v. Cline, 185 W.Va. 318, 406 S.E.2d 749 (1991) (per curiam). Additionally, we have observed that

[o]ur prior cases have recognized that the principles undergirding res judicata serve "to advance several related policy goals — (1) to promote fairness by preventing vexatious litigation; (2) to conserve judicial resources; (3) to prevent inconsistent decisions; and (4) to promote finality by bringing litigation to an end."

State v. Miller, 194 W.Va. 3, 10 n. 8, 459 S.E.2d 114, 121 n. 8 (1995) (citations omitted).

Mr. Richey responds, however,...