State v. Delorenzo
Decision Date | 18 November 2022 |
Docket Number | 21-0456 |
Parties | State of West Virginia v. Alexander Paul Delorenzo |
Court | West Virginia Supreme Court |
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.
Id. at 691, 649 S.E.2d at 264 (quoting Washington v. Texas, 388 U.S. 14, 19 (1967)).
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.
Relevance.
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.
Prejudice.
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) () (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.
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