State ex rel. Smith v. McBride

Citation681 S.E.2d 81
Decision Date12 March 2009
Docket NumberNo. 34155.,34155.
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. Dana December SMITH, Petitioner Below, Appellant, v. Thomas McBRIDE, Warden, Mt. Olive Correctional Complex, Respondent Below, Appellee.

Syllabus by the Court

1. "In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syllabus point 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

2. Under Rule 8(d) of the Rules Governing Post-Conviction Habeas Corpus Proceedings in West Virginia, a letter, document, exhibit, or affidavit may be admitted into evidence without being authenticated, unless authentication is required by the trial court.

3. A trial judge's ruling on authenticity will not be disturbed on appeal unless there has been an abuse of discretion.

4. "`A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his [or her] affidavit that [the defendant] was diligent in ascertaining and securing [the] evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side. Syl. pt. 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).' Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979)." Syllabus point 3, In re Renewed Investigation of State Police Crime Laboratory, Serology Division, 219 W.Va. 408, 633 S.E.2d 762 (2006).

George Castelle, Kanawha County Public Defender Office, Charleston, WV, M. Timothy Koontz, Williamson, WV, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Robert D. Goldberg, Assistant Attorney General, Charleston, WV, for Appellee.

DAVIS, Justice.1

This is an appeal by Dana December Smith (hereinafter "Mr. Smith") from an order of the Circuit Court of Kanawha County that denied his petition for a writ of habeas corpus. Mr. Smith filed the habeas corpus petition seeking a new trial from his two convictions for felony murder. In this appeal, Mr. Smith argues that the circuit court erred in finding that he was not entitled to a new trial based upon newly discovered evidence, and in considering an unauthenticated letter. After a careful review of the briefs and the record submitted on appeal, and having listened to the oral arguments of the parties, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

On Monday, September 9, 1991, Robert McClain drove from his home in Ashland, Kentucky, to visit his mother, sixty-three year-old Margaret McClain, and his sister, thirty-six year-old Pamela Castaneda.2 Ms. McClain and Ms. Castaneda lived together in the town of Leewood, West Virginia. Mr. McClain arrived at the home of his mother and sister at about 5:15 p.m. Mr. McClain placed his key in the door of the home, but found that the door was not locked.3 When Mr. McClain entered the home, he found his mother and sister had been stabbed to death.4 The police were summoned. After an investigation, the police arrested Mr. Smith on September 16, 1991, and charged him with the murder of Ms. McClain and Ms. Castaneda. In 1992, a grand jury indicted Mr. Smith on two counts of murder, two counts of aggravated robbery and one count of first degree sexual assault.5

A. Underlying Trial

Mr. Smith's trial was conducted between November 23 and December 30, 1992. The following facts outline the evidence presented to the jury.

On Saturday, September 7, 1991, at around 4:30 p.m., Mr. Smith drove to the home of Steve Pritt in a four-door Dodge Aries.6 Mr. Pritt lived in the town of Leewood, West Virginia. Mr. Pritt testified that Mr. Smith was wearing camouflage pants, military boots and a baseball hat. Mr. Smith was also wearing a green military belt that had a plastic canteen attached to it,7 along with a leather sheath that contained a knife. Mr. Pritt spoke with Mr. Smith for about a half hour. During that conversation Mr. Smith asked Mr. Pritt if he had seen Robert McClain, the son of Margaret McClain. Mr. Pritt informed Mr. Smith that Robert had gone to Kentucky.

After Mr. Smith left the home of Mr. Pritt, he wrecked the car he was driving in a single vehicle roll-over accident on Cabin Creek Road, in Kanawha County, West Virginia. The accident occurred at around 5:00 p.m. Kenneth Russell, the Fire Chief of Cabin Creek, was driving along Cabin Creek Road and witnessed the accident. Mr. Russell stopped at the accident site and spoke briefly with Mr. Smith before calling for assistance on his radio. After reporting the accident, Mr. Russell left the scene briefly. After Mr. Russell left the accident scene, a man by the name of Harold Brown stopped at the accident. Mr. Brown testified that after he noticed that no one appeared to be injured, he was about to drive off when Mr. Smith tapped on the window of his vehicle and asked for a ride.8 Mr. Brown drove Mr. Smith to the outskirts of the town of Leewood and let him out.9

The State called two witnesses, Cathy Bragg and Ernest Jarrell, who lived a few houses away from the home of the murder victims. Both witnesses testified that on September 7th, they saw a man walking in the area wearing camouflage pants, military boots,10 and a military belt that had a canteen attached to it, along with a sheath that contained a knife. Neither witness was able to identify the man as being Mr. Smith.

The State introduced a videotaped deposition of Dora Back, a neighbor whose house was right next door to the victims' house.11 Ms. Back testified that she had talked with the victims during the course of the day on September 7th. Ms. Back indicated that when she left her home at 5:00 p.m. to visit one of her daughters, both victims were still alive. Further, Ms. Back testified that when she left home, the victims' white Ford Taurus station wagon was in the driveway.12 The State also called Rachel Britton, one of Ms. Back's daughters. Ms. Britton, who lived with her mother, stated that she came home at 6:00 p.m. on September 7th and noticed that the victims' car was gone. Dr. Irvin M. Sopher, the State Chief Medical Examiner, testified that it was possible that the victims died on September 7th, between 5:00 p.m. and 6:00 p.m.

At about 6:45 p.m., on September 7th, Mr. Smith drove to the home of a friend, Anita McKinney. Ms. McKinney testified that Mr. Smith was driving a muddy, light-colored car. According to Ms. McKinney, Mr Smith did not get out of the car, and they talked for a few minutes before he left.

Between 7:30 p.m. and 8:00 p.m., on September 7th, Mr. Smith drove to the home of another friend, Jeanette Laws. Ms. Laws testified that Mr. Smith drove to her house in a white Ford Taurus station wagon. Mr. Smith told Ms. Laws that the car belonged to his stepfather. According to Ms. Laws, Mr. Smith was wearing a T-shirt with a teddy bear emblem on it. Ms. Laws stated that, after Mr. Smith entered her home, he took off the teddy bear T-shirt and dropped it on the floor.13 According to Ms. Laws, the teddy bear T-shirt had blood on it. Ms. Laws testified further that Mr. Smith appeared nervous and could not sit still. Mr. Smith left Ms. Laws' home after about twenty minutes. Mr. Smith left the teddy bear T-shirt at Ms. Laws' home. Patricia Lee, the daughter of Ms. McClain and sister of Ms. Castaneda, testified that the teddy bear T-shirt belonged to Ms. Castaneda. Ms. Lee's brother, Robert McClain, also testified that the teddy bear T-shirt belonged to Ms. Castaneda. L.C. Harrison, of the Federal Bureau of Investigation, testified that DNA testing14 was performed on the bloodstains found on the teddy bear T-shirt and blood samples from the victims and Mr. Smith. Ms. Harrison indicated that DNA from the bloodstains on the teddy bear T-shirt matched the DNA profiles of Mr. Smith and Ms. Castaneda.

After Mr. Smith left the home of Ms. Laws, he went back to the home of Ms. McKinney. Ms. McKinney testified that Mr. Smith entered her home on his second visit. While at the home, Ms. McKinney also treated the cuts that were on Mr. Smith's body. Ms. McKinney stated that Mr. Smith informed her that he had received the cuts after he fell into a briar patch. Mr. Smith also told Ms. McKinney that the car he was driving belonged to his mother. Ms. McKinney testified that she allowed Mr. Smith to spend the night at her home. Mr. Smith left the home at about 10:00 a.m. on Sunday, September 8th. Ms. McKinney testified further that Mr. Smith returned to her house later in the evening of September 8th. During that visit, Mr. Smith gave Ms. McKinney's daughter a Pizza Hut noid doll. Mr. Smith left the home after several hours.15 Detective J.W. Johnson, of the Kanawha County Sheriff's Department, testified that the Pizza Hut noid doll was later determined to be missing from the victims' car.16

On Sunday, September 8th, at around 11:30 a.m., Mr. Smith drove to the home of Denise Morgan. Ms. Morgan testified that Mr. Smith was driving a white Ford Taurus station wagon. Ms. Morgan stated that Mr. Smith gave her a VCR, CB radio and a Walkman radio headset and asked her to keep them for him. Mr. Smith...

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