State v. Delorenzo, 21-0456

CourtSupreme Court of West Virginia
PartiesState of West Virginia v. Alexander Paul Delorenzo
Docket Number21-0456
Decision Date18 November 2022

State of West Virginia

Alexander Paul Delorenzo

No. 21-0456

Supreme Court of Appeals of West Virginia

November 18, 2022

WOOTON, Justice, dissenting, joined by Chief Justice Hutchison:

I primarily take issue with the majority's failure to recognize the obvious: that the circuit court's refusal to allow the petitioner's expert witness, Michael J. Marshall, Ph.D., to testify as to his Asperger's Syndrome Disorder ("ASD") gutted the petitioner's ability to advance his sole defense, lack of intent, thereby violating his constitutional right to a fair trial. I also disapprove of the majority's new syllabus point three, which was created - in the complete absence of any law to support it - simply as a means to justify the circuit court's admonishments directed at the petitioner during the course of his testimony. For these reasons, I respectfully dissent.

A fundamental component of the due process guarantees enumerated in article III, section 14 of the West Virginia Constitution is that "a trial judge may not make an evidentiary ruling which deprives a criminal defendant of certain rights, such as the right . . . to offer testimony in support of his or her defense[.]" State v. Jenkins, 195 W.Va. 620, 628, 466 S.E.2d 471, 479 (1995); see also State v. Whitt, 220 W.Va. 685, 649 S.E.2d 258 (2007), modified on other grounds by State v. Herbert, 234 W.Va. 576, 767 S.E.2d 471 (2014).[1] In Whitt, we explained that

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law

Id. at 691, 649 S.E.2d at 264 (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)).

In State v. Guthrie, 205 W.Va. 326, 518 S.E.2d 83 (1999), where certain evidence had been refused on the ground that its admission would violate the rape shield statute, W.Va. Code § 61-8B-11 (2020), we formulated the following test:[2]

The test used to determine whether a trial court's exclusion of proffered evidence under our rape shield law violated a defendant's due process right to a fair trial is (1) whether that testimony was relevant; (2) whether the probative value of the evidence outweighed its prejudicial effect; and (3) whether the State's compelling interests in excluding the evidence outweighed the defendant's right to present relevant evidence supportive of his or her defense. Under this test, we will reverse a trial court's ruling only if there has been a clear abuse of discretion

Guthrie, 205 W.Va. at 330, 518 S.E.2d at 87, Syl. Pt. 6. In the instant case, the appendix record - albeit incomplete, as the majority notes - is sufficient to demonstrate that the proposed testimony of the petitioner's expert witness, Dr. Marshall, was not only relevant but was critical to his defense;[3] that its probative value outweighed any prejudice that the State might assert;[4] and that the State had no compelling interests in excluding this evidence. Therefore, I would find that the circuit court abused its discretion and was clearly wrong[5] in excluding the expert's testimony, and that the petitioner was thereby deprived of his right to a fair trial.



The petitioner was charged with two violations of West Virginia Code section 61-8C-3(a) (2020), which provides that "[a]ny person who, knowingly and willfully, sends or causes to be sent or distributes, exhibits, possesses, electronically accesses with intent to view or displays or transports any material visually portraying a minor engaged in any sexually explicit conduct is guilty of a felony." (Emphasis added). Dr. Marshall's testimony was relevant to advance the petitioner's defense that he did not possess the requisite intent and to provide an explanation for the petitioner's behavior both inside and outside the courtroom. See text infra. Critically, the petitioner was not arguing that he was incapable of formulating intent; rather, he was asserting that he did not in fact intend to commit the charged offenses. In this regard, a review of the trial transcript demonstrates beyond question that lack of intent was not just a defense, or even a key defense; it was the petitioner's sole defense.

Further, any argument that Dr. Marshall's testimony about ASD was irrelevant to the petitioner's defense is belied by the fact that the circuit court permitted the petitioner's father and two friends to testify about his diagnosis and its manifestations. Although this lay testimony was insufficient to ameliorate the prejudice resulting from the


court's exclusion of expert testimony on the subject, see text infra, it demonstrates that any argument as to relevance is nothing more than an after-the-fact attempt to justify the exclusion of Dr. Marshall's crucial testimony.


The State has no claim of prejudice that would result from the admission of Dr. Marshall's testimony other than the vastly overused, and wholly speculative, possibility of "jury confusion." I can conceive of no reason to believe that a West Virginia jury is incapable of listening to expert testimony and then sorting out the wheat from the chaff, in consultation with one another and guided by the instructions of the court. See, e.g., Gentry v. Mangum, 195 W.Va. 512, 525-26, 466 S.E.2d 171, 184-85 (1995) ("'Conventional devices' like vigorous cross-examination, careful instructions on the burden of proof, and rebuttal evidence, may be more appropriate instead of the 'wholesale exclusion' of expert testimony under Rule 702.") (citation omitted).

Compelling interest.

The State does not argue that it has a compelling interest in excluding the testimony, as admission of Dr. Marshall's testimony would not in any way cause harm to victims or witnesses. Indeed, the only possible harm that could have resulted from the testimony was to the State's chance of obtaining a conviction. To this point, I reiterate this Court's pronouncement of "the universally recognized principle that


a prosecutor's duty is to obtain justice and not simply to convict." Nicholas v. Sammons, 178 W.Va. 631, 632, 363 S.E.2d 516, 518 (1987).[6]

Although the State argues, and the majority accepts, various rationales for the circuit court's decision to exclude Dr. Marshall's testimony, it is clear from the appendix record that the court seized on one sentence from one of the expert's reports, which stated that because of the petitioner's Asperger's Syndrome Disorder ("ASD") and Obsessive Compulsive Disorder ("OCD") he would tend to "hyper-focus on a topic he is motivated to investigate . . . with a lack of appreciating whether something is right or wrong[,]"[7] as indicating that the petitioner was attempting to mount a diminished capacity defense.[8] However, the petitioner never sought to advance a diminished capacity defense


through Dr. Marshall's testimony; indeed, he admitted that he knew right from wrong. As defense counsel explained, Dr. Marshall would testify not that the petitioner lacked capacity to form intent (to view the photos in question), but that the petitioner didn't in fact have such intent because his hyper-focused mission was to plumb the depths of the dark web, not to find and view pornographic images.

Defense counsel further explained that Dr. Marshall's testimony would give the jury a context for evaluating his character traits and credibility as well as "assessing his subjective perceptions of what he was doing when he engaged in research on the dark web." More specifically, Dr. Marshall would have testified that the petitioner suffers from several significant psychological conditions, with the primary one being a neurodevelopmental condition that falls on the autism spectrum, although the petitioner also has obsessive-compulsive disorder, depression, anxiety, and panic disorder. Dr. Marshall would have explained that someone with petitioner's autism diagnosis has difficulty with eye contact, which could be misconstrued as indicating deception or having something to hide, and lacks emotional expressiveness, which could be misinterpreted as indicating lack of remorse or insensitivity. Dr. Marshall would have further explained that such persons speak in a manner that is not fluid; tend to go off on a tangent; and repeat themselves,


causing others to think they are being difficult and/or uncooperative.[9] With respect to petitioner's research on the dark web, Dr. Marshall would have explained that persons with autism think "concretely step by step, gathering the information and missing big pieces of the social puzzle and not processing the social information in the way we [persons without autism] would, which is conceptually, by just getting stuck on individual steps and leading him into places he's not going to recognized as danger like we would."[10]

Despite defense counsel's attempts to set the record straight as to what defense he intended to put before the jury, the circuit court wouldn't budge from its interpretation of that single sentence in Dr. Marshall's report,[11] pointing out that the expert had never amended or updated his initial report to excise, or otherwise clarify or explain that "right or wrong" rubric. Thus,

[i]n this matter the trial court's analysis of the relevance of [Dr. Marshall's] expert testimony was off target from its inception.
In perceiving [Marshall's] testimony to be permissible only to establish a mental defect defense, which defendant was not asserting, the trial court employed an approach to analyzing the permissible uses of the testimony that was too

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