State v. Beard

• Decision Date: 19 July 1995
• Docket Number: No. 22504,22504
• Citation: 194 W.Va. 740,461 S.E.2d 486
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Jacob W. BEARD, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 486

461 S.E.2d 486

194 W.Va. 740

STATE of West Virginia, Plaintiff Below, Appellee, v. Jacob W. BEARD, Defendant Below, Appellant.

No. 22504.

Supreme Court of Appeals of

West Virginia.

Submitted May 16, 1995.

Decided July 19, 1995.

Syllabus by the Court

1. " 'Polygraph test results are not admissible in evidence in a criminal trial in this State.' Syl. Pt. 2, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979)." Syl. Pt. 1, State v. Chambers, 194 W.Va. 1, 459 S.E.2d 112 (1995).

2. "In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of Evidence, the trial court's initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony's reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory's actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community." Syl. Pt. 2, Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994).

3. " 'Ordinarily where objections to questions or evidence by a party are sustained by the trial court during the trial and the jury instructed not to consider such matter, it will not constitute reversible error.' Syl. pt. 18, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966)." Syl. Pt. 1, State v. Acord, 175 W.Va. 611, 336 S.E.2d 741 (1985).

4. "Where the State is unaware until the time of trial of material evidence which it would be required to disclose under a Rule 16 discovery request, the State may use the evidence at trial provided that: (1) the State discloses the information to the defense as soon as reasonably possible; and (2) the use of the evidence at trial would not unduly prejudice the defendant's preparation for trial." Syllabus, State v. Hager, 176 W.Va. 313, 342 S.E.2d 281 (1986), overruled on other grounds by State v. Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989).

5. "A delay of eleven years between the commission of a crime and the arrest or indictment of a defendant, his location and identification having been known throughout the period, is presumptively prejudicial to the defendant and violates his right to due process of law, U.S. Const. Amend. XIV, and W.Va. Const. art. 3, § 10. The presumption is rebuttable by the government." Syl. Pt. 1, State ex rel. Leonard v. Hey, 269 S.E.2d 394 (1980).

6. When a previously immunized witness is prosecuted, a hearing must be held pursuant to Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), for the purpose of requiring the State to demonstrate by a preponderance that all of the evidence it proposes to use was derived from legitimate sources wholly independent of the immunized testimony.

Scott E. Johnson, Assistant Attorney General, Charleston, for appellee.

Stephen B. Farmer, Philip J. Combs, King, Allen & Arnold, Charleston, Frank W. Helvey, Jr., Public Defender, Charleston, for appellant.

WORKMAN, Justice:

Jacob Beard appeals from the June 4, 1993, judgment order of the Circuit Court of Pocahontas County finding him guilty of two counts of first degree murder, following a jury verdict returned on that same date. After examining the record in this case in conjunction with the numerous assignments of error, we remand this case for purposes of a Kastigar ¹ hearing.

On June 25, 1980, Vicki Durian and Nancy Santomero, who were hitchhiking to the annual Fourth of July gathering of the Rainbow people in Pocahontas County, were shot and killed in a remote section of that county known as Briery Knob. Not until April 16, 1992, were charges brought against any individual in connection with these two murders. At that time, Appellant, along with Johnnie Lewis, Winters "Pee Wee" Walton, Gerald Brown, Arnold Cutlip, William McCoy, and Richard Fowler were charged with first degree murder in connection with what had become known as the "Rainbow murders." These charges were dismissed without prejudice against Appellant and the other defendants pursuant to a July 17, 1992, order of the circuit court of Pocahontas County because "issues relating to the credibility of the evidence and testimony of certain of the State's principle (sic) witnesses as well as the conduct of the investigation itself ..." warranted further investigation.

Five of the seven individuals originally charged with the Rainbow murders were indicted on January 13, 1993. The two individuals who were not indicted--"Pee Wee" Walton and Johnnie Lewis--were granted immunity. Of the five individuals indicted, only Appellant was brought to trial. He was convicted of first degree murder on June 4, 1993, and sentenced to two concurrent life terms, both without mercy. ²

Appellant asserts the following assignments of error: (1) trial court's refusal to admit polygraph test results; (2) trial court's exclusion of probative evidence regarding another individual's commission of the murders; (3) trial court's admission of scientific evidence not disclosed to Appellant until after trial began; (4) police misconduct; (5) trial court's failure to hold an in camera hearing pursuant to the crime-fraud exception to the attorney/client privilege; (6) trial court's failure to grant Appellant's motion to dismiss for pre-indictment delay; (7) State's improper reliance upon evidence gained through an unauthorized grant of immunity; (8) trial court's admission of testimony tainted because of hypnosis; and (9) the cumulative error rule. We address each of the assignments of error ³ separately.

I. Polygraph Results

Appellant urges this Court to adopt a new position with regard to the admissibility of polygraph results. We recently restated our long-standing rule that " '[p]olygraph test results are not admissible in evidence in a criminal trial in this State.' " Syl. Pt. 1, State v. Chambers, 194 W.Va. 1, 459 S.E.2d 112 (1995) (quoting Syl. Pt. 2, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979)). Appellant argues that the rationale underlying Frazier is no longer valid since the United States Supreme Court issued its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

In Frazier, we explained that our rule regarding the inadmissibility of polygraph test results was premised on "the questionable scientific accuracy of the test." 162 W.Va. at 608, 252 S.E.2d at 43 (citing Frye v. United States, 293 F. 1013 (D.C.Cir.1923)) (holding that expert opinion based on scientific technique is inadmissible unless technique is generally accepted as reliable in relevant scientific community). The Supreme Court in Daubert concluded that Frye's "general acceptance" test was superseded by the adoption of the Federal Rules of Evidence and specifically, that admission of scientific evidence is governed by Federal Rule of Evidence 702. ⁴ 509 U.S. at ---- - ----, 113 S.Ct. at 2794-96. This Court, in Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), cert. denied, 511 U.S. 1129, 114 S.Ct. 2137, 128 L.Ed.2d 867 (1994), extended the Daubert ruling to West Virginia by holding that the Frye "general acceptance" test was similarly supplanted by the adoption of Rule 702 of the West Virginia Rules of Evidence. See 191 W.Va. at 46, 443 S.E.2d at 203. In syllabus point two of Wilt, we held that:

In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of evidence, the trial court's initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony's reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory's actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community.

Id. at 41, 443 S.E.2d at 198.

The State observes that Appellant leaps from the supersedence of Frye, first in Daubert and then in Wilt, to the conclusion that polygraph test results are now admissible under Rule 702 of the West Virginia Rules of Evidence. As the State correctly contends, nothing in either decision would suggest such a result. One commentator has observed, "[a]lthough Daubert requires a different review by the trial court than Frye did, it will not necessarily change the court's determination of admissibility." Symposium, The Impact of Science and Technology on the Courts, 43 Emory L.J. 853, 861 (1994). Consistent with this observation, the court in United States v. Black, 831 F.Supp. 120 (E.D.N.Y.1993), concluded that "nothing in Daubert would disturb the settled precedent that polygraph evidence is neither reliable nor admissible." Id. at 123. In explaining its position, the Black court stated:

'That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'

....

The Second Circuit has held that 'the results of polygraph...