State ex rel. Smith v. Olejasz

• Decision Date: 19 November 2021
• Docket Number: 21-0404
• Court: Virginia Supreme Court
• Parties: STATE OF WEST VIRGINIA, EX REL. SCOTT R. SMITH, PROSECUTING ATTORNEY, OHIO COUNTY Petitioner v. THE HONORABLE MICHAEL J. OLEJASZ, JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA, AND CHANDIS WESLEY LINKINOGGER, DEFENDANT Respondents

STATE OF WEST VIRGINIA, EX REL. SCOTT R. SMITH, PROSECUTING ATTORNEY, OHIO COUNTY Petitioner v. THE HONORABLE MICHAEL J. OLEJASZ, JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY, WEST VIRGINIA, AND CHANDIS WESLEY LINKINOGGER, DEFENDANT Respondents

No. 21-0404

Supreme Court of Appeals of West Virginia

November 19, 2021

Submitted: October 26, 2021

PETITION FOR WRIT OF PROHIBITION

Gail W. Kahle Assistant Prosecuting Attorney for Ohio County, West Virginia

Gerasimos (Jerry) Sklavounakis Sklavounakis Law Offices Wheeling, West Virginia Attorney for Respondent

SYLLABUS BY THE COURT

1. "The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented." Syllabus point 5, State v. Lewis 188 W.Va. 85, 422 S.E.2d 807 (1992), superseded by statute on other grounds as recognized by State v. Butler, 239 W.Va. 168, 799 S.E.2d 718 (2017).

2. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code 53-1-1." Syllabus point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

3. "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

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correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight." Syllabus point 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1997).

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Jenkins, Chief Justice.

Petitioner Scott R. Smith, Prosecuting Attorney for Ohio County ("the State"), invokes this Court's original jurisdiction, and petitions this Court to issue a writ of prohibition against the respondent, the Honorable Michael J. Olejasz, Judge of the Circuit Court of Wood County ("circuit court"), prohibiting the circuit court from enforcing the April 22, 2021 order dismissing two counts of the indictment in the underlying criminal case, declaring a mistrial, and ruling that the subject matter of the dismissed counts could not be mentioned at any future trial on the remaining counts. Below, the circuit court granted a motion to dismiss orally raised by respondent and defendant below, Chandis Wesley Linkinogger ("Mr. Linkinogger"), after he alleged that the State violated various discovery orders. In granting the motion to dismiss, two counts of sexual assault in the second degree were dismissed with prejudice.

Having considered the briefs submitted on appeal, the appendix record, the parties' oral arguments, and the applicable legal authority, we conclude that the circuit court failed to properly analyze the necessary factors for sanctions against the State pursuant to our holding in State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1996). Accordingly, and for the reasons set forth below, we grant the requested writ of prohibition and prohibit the enforcement of the April 22, 2021 order that dismissed two counts of sexual assault in the second degree with prejudice.

I. FACTUAL AND PROCEDURAL HISTORY

Mr. Linkinogger was indicted by a grand jury in January of 2021 for the crimes of strangulation, burglary, and two counts of sexual assault in the second degree. The indictment stated that on or about September 11, 2020, in Wheeling, West Virginia, Mr. Linkinogger forcibly entered into the victim's home and strangled her as he sexually assaulted her. The victim then presented to Wheeling Hospital where a Sex Crime Kit was collected.

At the arraignment in January of 2021, the State tendered its discovery disclosure which contained the following: (1) identity of two treating physicians from Wheeling Hospital as expert witnesses; (2) notes taken by the nurse during the completion of the Sex Crime Kit; and (3) results of a urine toxicology screen (completed at Wheeling Hospital) from the victim showing positive results for cocaine, THC, and benzodiazepines. The discovery disclosure did not include any witness, lay or expert, identified by the State from the West Virginia State Police Forensic Laboratory ("Forensic Lab"). The State contends that it never needed a Forensic Lab witness because on September 11, 2020, after being advised of his Miranda rights, Mr. Linkinogger gave an extended interview to a detective in which he admitted to having sexual relations with the victim. However, Mr. Linkinogger claimed that the sexual relations were consensual.

On February 23, 2021, Mr. Linkinogger filed a motion to compel seeking various categories of evidence and accusing the State of running afoul of its duty to provide exculpatory evidence in accordance with Rule 32.02(a) of the West Virginia Trial Court Rules.^[1] Among the items sought was the Forensic Lab results from its testing the materials collected at Wheeling Hospital. On March 9, the State filed a response to the motion to compel in which it indicated-with regard to the Forensic Lab results-that "[t]he results of all examinations and tests performed have been provided to [Mr. Linkinogger]."

Then, on March 12, the parties came together for a hearing on the motion to compel. First, counsel for Mr. Linkinogger argued that the State was withholding the "results of examinations and the tests that have been performed." In response, the State declared that while certain examination tests were disclosed, it was unsure if the materials of the Sex Crime Kit were ever sent to the Forensic Lab or tested because it had no intention of using any of the results at trial:

MR. KAHLE: I don't believe it was even sent to Charleston. It's probably down there. We - when this case - that was collected, as it generally is, by a S.A.N.E. nurse at the Wheeling Hospital. I don't intend to - if it was sent for testing, I don't intend to use said results. You'll see in the State's disclosure there are not lab technicians indicated or examiners. I don't have any results. If it - it's been sent to Charleston. I've not been on their rear-end to get it done because we aren't in possession - what I believe - it's not been tested by the Court yet, but what I believe is a pretty rock solid statement of [Mr. Linkinogger] admitting that there was lots of sexual contact as between the defendant and [the victim] on September 11th.

So it's true, there are certain examination tests which have been disclosed, and, in particular, that'd be the hospital and treatment records. But there is no - we don't have it.

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And I don't intend to introduce it at trial.

The parties then went off the record to determine whether the Sex Crime Kit was ever sent to the Forensic Lab and if so, whether results exist.

MR. KAHLE: It has been sent. He doesn't know the answer to that question. I'm going to ask him to advise the Court, myself, and Mr. Lantz by the end of today. But I have not seen any need for them to be - for it to be rushed. . . . I didn't do that in this case because of the admissions made on September 11, 2020.

Upon learning that the Sex Crime Kit was sent, the circuit court ordered that the "evidence be rushed by the West Virginia State Police Crime Lab." Additionally, a true copy of the lab report, dated February 22, 2021, was obtained, and was provided to Mr. Linkinogger's counsel in open court. A review of the report indicates that trace amounts of male DNA was found on the two swab samples submitted. The report also suggests that no PCR DNA (identifying DNA) analysis had been performed. Thus, the report suggested that "DNA testing results will be the subject of a separate report." At the time, there were no known samples of Mr. Linkinogger's DNA or of any other person with which to compare DNA results.

Thereafter on March 17, at 10:29 a.m., counsel for the State received an email containing a "Motion for Order to Rush Toxicology/Lab Reports" and a "Proposed Order" granting the requested relief. In the motion, Mr. Linkinogger sought the toxicology results from the Sex Crime Kit collected at Wheeling Hospital on September 11, 2020, and submitted to the Forensic Lab. Within a half hour of receiving the email, a court assistant emailed counsel for the State and asked if there were any objections to the proposed order. Eighteen minutes later, at 11:18 a.m., counsel responded and stated that it could not take a position yet-it needed to make inquiry of the Forensic Lab's ability to comply with the order. ...