State v. Abdelhaq, 30736.

• Decision Date: 16 April 2003
• Docket Number: No. 30736.,30736.
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Yasser ABDELHAQ, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

588 S.E.2d 647

214 W.Va. 269

STATE of West Virginia, Plaintiff Below, Appellee, v. Yasser ABDELHAQ, Defendant Below, Appellant.

No. 30736.

Supreme Court of Appeals of West Virginia.

Submitted February 26, 2003.

Decided April 16, 2003.

Michael E. Hooper, Esq., John L. Bremer, Esq., Wheeling, West Virginia, Attorneys for the Appellant.

Scott R. Smith, Esq., Prosecuting Attorney of Ohio County, Martin J. Wright, Jr., Esq., Assistant Prosecuting Attorney of Ohio County, Wheeling, West Virginia, Attorneys for the Appellee.

PER CURIAM:

This case is before this Court upon the appeal of Yasser Abdelhaq from his conviction by a jury in the Circuit Court of Ohio County, West Virginia, of murder of the first degree. Appellant Abdelhaq was charged with fatally stabbing his female companion, Dana Tozer, while the two were staying at the Hampton Inn in Wheeling, West Virginia. Pursuant to the final order of the Circuit Court entered on October 25, 2000, the appellant was sentenced to the penitentiary for life, without the possibility of parole.

This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. The issue upon which the parties and this Court have focused concerns the fact that the grand jury which returned the indictment against the appellant included, as a member, a police detective who, along with other law enforcement officers, investigated this case and gathered evidence concerning the homicide. In State v. Barnhart, 211 W.Va. 155, 563 S.E.2d 820 (2002), a case involving this same grand jury, this Court held that an indictment for malicious assault should have been dismissed where this same police detective was a member of the grand jury and had investigated the charges against the defendant.

For the reasons stated below, this Court concludes that Barnhart is dispositive of this appeal and warrants the dismissal of the indictment returned against appellant Abdelhaq. Accordingly, the Circuit Court's entry of judgement upon the appellant's conviction by a jury of murder of the first degree is reversed, and this case is remanded to the Circuit Court for the entry of an order dismissing the indictment.

I. FACTS

In November 1999, appellant Abdelhaq and his female companion, Dana Tozer, were vacationing in the Wheeling, West Virginia, area. They were from Cleveland, Ohio. Ms. Tozer had been in an automobile accident in June 1995 and was paralyzed from the waist down. As subsequently brought out at trial, the appellant suffered from various mental problems, including a form of psychosis caused by long-term drug abuse. One of the drugs the appellant frequently abused was cocaine. The record does not show any history of violence between the appellant and Ms. Tozer.

On November 7, 1999, the couple checked in for two nights at the Hampton Inn in Wheeling. They were given a room on the first floor. On November 9, 1999, some two hours past the noon check-out time, the hotel staff attempted to communicate with the appellant and Ms. Tozer by knocking on their door and by calling from the front desk. There was no response. After trying to gain entry to the room with a pass-key and determining that the room had been barricaded from the inside, the hotel staff called the Wheeling Police Department.

The police were initially unsuccessful in getting a response from the room. Later, the police, and appellant Abdelhaq's brother who had arrived on the scene, heard the appellant say that he would come to the door. The appellant, who was mumbling at that time, also indicated that Ms. Tozer was going to take a shower. Earlier that morning, appellant Abdelhaq had stated to his brother, by telephone, that he was going to commit suicide. At no time during the afternoon of November 9 did Ms. Tozer respond to attempts to communicate with the couple. Nor did the appellant come to the door as promised. Finally, approximately forty-nine minutes after their arrival, the police made a forced, warrantless entry into the room. The appellant then grabbed a knife and a plate of what appeared to be cocaine. The police disarmed him and placed him in handcuffs. Soon after, the body of Dana Tozer was discovered on the floor of the bathroom. As the medical examiner later testified, Ms. Tozer was dead as the result of 233 knife wounds. Substances which appeared to be cocaine and marihuana were found at the scene. The appellant was taken into custody, transported to a local medical facility, and subsequently transferred to the Northern Regional Jail in Moundsville, West Virginia.

Police Detective John Wroten of the Wheeling Police Department was one of the officers who secured the scene and collected evidence concerning Ms. Tozer's death. Specifically, the record indicates that Detective Wroten: (1) helped move the handcuffed appellant from the room to a group of paramedics who were waiting in the hotel corridor, (2) located several items in the room which were taken as evidence, including a brass pipe used for smoking and a baggie containing what appeared to be marihuana and (3) completed a number of written "evidence forms" which constituted part of the chain of custody with regard to the items found. In addition, Detective Wroten, the following day, participated in the search of the vehicle which had been driven by appellant Abdelhaq and Ms. Tozer to the Hampton Inn. One of the items seized from the vehicle was a disposable camera. In a written report to the Wheeling Police Department, Detective Wroten stated that the camera "may shed some light on the activities of the suspect and victim" prior to the homicide.

II. THE PROCEEDINGS BELOW

On January 11, 2000, an Ohio County grand jury returned an indictment against appellant Abdelhaq charging him with the murder of Dana Tozer. W.Va.Code, 61-2-1 (1991). It is undisputed that Police Detective Wroten was a member of that grand jury.

Following the return of the indictment, the appellant gave notice that he would rely upon the defense of insanity. W.Va. R.Crim. P. 12.2. Also during this period of time, the Circuit Court denied the appellant's motion to suppress the evidence seized during the forced, warrantless entry of the Hampton Inn room on November 9, 1999. The Circuit Court concluded, inter alia, that the police acted reasonably under the circumstances in entering the room, based upon the "emergency doctrine" exception to the warrant requirement. See, State v. Cecil, 173 W.Va. 27, 311 S.E.2d 144 (1983),

applying the "emergency doctrine" where the police were attempting to locate an injured or deceased child in a mobile home. Here, the Circuit Court found that, at the time of the warrantless entry, the officers of the Wheeling Police Department were primarily concerned for the safety of the appellant and Ms. Tozer.

Trial began in Circuit Court on August 25, 2000. The State called a number of witnesses during its case-in-chief concerning the events of November 9, 1999. One such witness was Police Detective Wroten who indicated to the jury that he went to the scene at the Hampton Inn and was among the officers who collected evidence concerning the homicide.

During his testimony, Detective Wroten stated that, in his 15 years of service as a police officer, he had never previously seen a case involving in excess of 200 knife wounds. Moreover, Detective Wroten stated that the amount of blood observed in the bathroom, where the body of Ms. Tozer was found, seemed less than expected in view of those wounds. On the latter point, Detective Wroten indicated that much of the blood could have been cleaned up or that Ms. Tozer could have been killed in the bathtub.

Appellant Abdelhaq did not testify at trial and did not dispute the State's evidence tending to establish that he killed Ms. Tozer. Instead, he called a number of witnesses in support of his defense of insanity and in support of his additional defense of diminished capacity. Specifically, Dr. Charles Hewitt, a psychologist, and Dr. Robert Wettstein, a psychiatrist, indicated that, at the time of the homicide, appellant Abdelhaq was suffering from a form of psychosis caused by long-term drug abuse and from paranoia with hallucinations. Therefore, the appellant was not criminally responsible for the death of Ms. Tozer even if he had also ingested illegal substances at the time of the homicide. Moreover, according to Dr. Hewitt and Dr. Wettstein, the appellant's psychosis and paranoia, plus his probable ingestion of illegal substances immediately before the homicide, rendered the appellant incapable of forming an intent to kill Ms. Tozer.

The State, on the other hand, called Dr. Fred Krieg, a psychologist, and Dr. Patricia Williams, a psychiatrist, who testified that, his pre-existing mental problems notwithstanding, the appellant was capable of knowing right from wrong; yet he killed Ms. Tozer after voluntarily becoming intoxicated upon illegal substances. In any event, according to the State, the evidence at trial concerning insanity and diminished capacity was sufficiently in conflict to allow those issues to be submitted to the jury.

At the conclusion of the trial, the jury found appellant Abdelhaq guilty of murder of the first degree, without a recommendation of mercy. Thereafter, the Circuit Court denied the appellant's post-trial motions, entered judgment upon the jury's verdict and sentenced the appellant to life imprisonment, without the possibility of parole.

III. DISCUSSION

As stated above, State v. Barnhart, 211 W.Va. 155, 563 S.E.2d 820 (2002), involved the same grand jury and the same police officer as in this case. In Barnhart, the defendant was indicted for malicious assault. The members of the grand jury included Police Detective Wroten who had investigated the incident. Although Detective Wroten did not actually vote on the indictment, he remained in the grand jury room during the prosecuting attorney's presentment and during grand jury deliberations. The...