State ex rel. Smith v. Olejasz, 21-0404

CourtSupreme Court of West Virginia
Writing for the CourtJenkins, Chief Justice
Citation865 S.E.2d 820,245 W.Va. 799
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
Docket NumberNo. 21-0404,21-0404
Decision Date19 November 2021

245 W.Va. 799
865 S.E.2d 820

STATE of West Virginia, EX REL. Scott R. SMITH, Prosecuting Attorney, Ohio County, Petitioner
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.

Submitted: October 26, 2021
Filed: November 19, 2021

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

Gerasimos (Jerry) Sklavounakis, Sklavounakis Law Offices, Wheeling, West Virginia, Attorney for Respondent, Chandis Wesley Linkinogger.

Jenkins, Chief Justice:

865 S.E.2d 823

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 (1994). 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.



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.

865 S.E.2d 824

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.


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. The State's email to the court assistant stated:

Be advised that I have a call to the WVSP Toxicology Chief, Erin Fisell [sic ] regarding the request to get their position. Additionally, Defendant is in possession of the toxicology screen from Wheeling Hospital, and I will be filing a Motion in Limine to be heard on the April 2, 2021, pre-trial to preclude evidence of drug abuse from the trial. Thank you.

At 11:49 a.m., counsel for the State received an email from the court assistant which contained the proposed order which had been entered by the court. The order was concise and referred only to compelling "Toxicology and any remaining lab result."

The next day, on March 18, the State conversed via email with the Forensic Lab's Toxicology Chief, Erin Feazell. During the conversation, the Forensic Lab noted that it was unable to comply with the order as the only specimen submitted was urine:

865 S.E.2d 825
Mr. Kahle, I am in receipt of a court order in case 21-F-4 MJO from the Defendant Chandis Linkinogger's attorney Herman D. Lantz (see attached). The order requests expedited testing on the Toxicology samples that were submitted to the lab. The only specimen submitted in the case was urine. Currently our laboratory is not performing testing on urine. With your permission, I can terminate the testing on this case and return the Toxicology kit to the investigation officer so you can determine whether to send the samples to a private laboratory for testing. Please feel free to contact me if you have any questions.

Because of the Forensic Lab's inability to comply with the proposed order, and in an effort to avoid additional allegations of evidence hiding and discovery...

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