State v. Doonan

• Decision Date: 01 December 2006
• Docket Number: No. 33052.,33052.
• Citation: 640 S.E.2d 71
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Michael DOONAN, Defendant Below, Appellant.

640 S.E.2d 71

STATE of West Virginia, Plaintiff Below, Appellee, v. Michael DOONAN, Defendant Below, Appellant.

No. 33052.

Supreme Court of Appeals of West Virginia.

Submitted: November 1, 2006.

Decided: December 1, 2006.

Syllabus by the Court

1. "[Q]uestions of law and interpretations of statutes and rules are subject to a de novo review." Syllabus point I, in part, State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997).

2. "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syllabus point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994).

3. "This Court is not obligated to accept the State's confession of error in a criminal case. We will do so when, after a proper analysis, we believe error occurred." Syllabus point 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991).

4. "Under article eight, section three of our Constitution, the Supreme Court of Appeals shall have the power to promulgate rules for all of the courts of the State related to process, practice, and procedure, which shall have the force and effect of law." Syllabus point 1, Bennett v. Warner, 179 W.Va. 742, 372 S.E.2d 920 (1988).

5. Until an appropriate rule is adopted in the Rules of Criminal Procedure for Magistrate Courts, the provisions of Rule 16 of the West Virginia Rules of Criminal Procedure shall govern the procedures and requirements for discovery in criminal cases which are to be heard on their merits in magistrate courts.

6. "Under Rule 16(b) of the West Virginia Rules of Criminal Procedure the State's right to request discovery from a defendant is triggered only if the defendant initially seeks discovery, and is confined to the particular area in which the defendant has sought discovery. Additionally, the State must have complied with the defendant's initial discovery request before it can request discovery." Syllabus point 1, Marano v. Holland, 179 W.Va. 156, 366 S.E.2d 117 (1988).

7. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syllabus point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979).

John N. Ellem, Ellem Law Office, Parkersburg, for the Appellant.

Darrell V. McGraw, Jr., Attorney General, Barbara H. Allen, Deputy Attorney General, Colleen A. Ford, Assistant Attorney General, Charleston, for the Appellee.

DAVIS, Chief Justice.

The defendant below and appellant herein, Michael Doonan (hereinafter "Mr. Doonan"), appeals from an order entered July 8, 2005, by the Circuit Court of Wood County. By that order, the circuit court found that the errors committed by the magistrate court amounted to harmless errors, and further, that there was sufficient evidence to support the magistrate jury's finding of guilt for the charge of driving under the influence (hereinafter "DUI"). On appeal to this Court, Mr. Doonan argues that the magistrate court errors were not harmless and that there was insufficient evidence to support his conviction. Based upon the parties' arguments, the record designated for our consideration, and the pertinent authorities, we reverse the decision by the circuit court, and further, we remand the case for a new trial.

I. FACTUAL AND PROCEDURAL HISTORY

In this case, Mr. Doonan was charged with driving under the influence of alcohol. On March 21, 2004, Mr. Doonan was pulled over by a member of the Parkersburg Police Department for speeding. The officer testified that when he approached the car, he noticed an odor of alcohol on Mr. Doonan's breath, blood shot eyes, and slightly slurred speech. Mr. Doonan was then requested to perform three different field sobriety tests: walk and turn, horizontal gaze nystagmus, and the one-legged stand. After Mr. Doonan failed all three tests,¹ he was transported to the police station where his blood alcohol content was measured by breathalyzer at .134, which was over the legal limit.

Mr. Doonan was charged with first offense of driving under the influence pursuant to W. Va.Code § 17C-5-2 (2004) (Repl.Vol.2004). On November 5, 2004, Mr. Doonan was found guilty by a magistrate court jury of first offense of driving under the influence, and was sentenced to serve forty-eight hours in the North Central Regional Jail. Mr. Doonan appealed his conviction to the circuit court, arguing it was improper to exclude his expert witness and that it was error to admit an illegible copy of his DUI printout. The circuit court recognized that some errors existed in the underlying court, but found that the errors were harmless and that there was sufficient evidence to uphold Mr. Doonan's conviction. This appeal then followed.

II. STANDARD OF REVIEW

The case before this Court on appeal follows the circuit court's affirmation of a guilty conviction by a magistrate jury. The two issues for our consideration involve the nondisclosure of an expert witness and the exclusion of the attendant testimony, as well as the admissibility of an illegible copy of a certified copy of the DUI printout. Generally, we have held that "questions of law and interpretations of statutes and rules are subject to a de novo review." Syl. pt. 1, in part, State v. Duke, 200 W.Va. 356, 489 S.E.2d 738 (1997). More specifically to this case, rulings on the admissibility of evidence are properly within the discretion of the circuit court, and this Court will not overturn such rulings absent an abuse of discretion. "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds by State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994). Mindful of these guidelines, we now consider the substantive issues herein raised.

III. DISCUSSION

On appeal to this Court, Mr. Doonan sets forth three assignments of error: (1) the magistrate court's refusal to allow Mr. Doonan's expert witness testimony violated the Sixth Amendment to the United States Constitution and Article III, Section 14 of the West Virginia Constitution and constituted more than harmless error; (2) the admission into evidence of an illegible copy of a certified copy of the breathalyzer printout was more than harmless error; and (3) the evidence was insufficient to support the jury's verdict of driving under the influence. The State originally filed a written response wherein it challenged Mr. Doonan's three assignments of error. Subsequent to the State's written response and during oral argument, the State abandoned its challenges and conceded error on the issue of the preclusion of Mr. Doonan's expert witness, and admitted that such preclusion was more than harmless error and necessitated a reversal for a new trial.

We applaud and appreciate the candor of the State in admitting that it was error to preclude Mr. Doonan's expert witness. This Court has previously recognized that "[t]his Court is not obligated to accept the State's confession of error in a criminal case. We will do so when, after a proper analysis, we believe error occurred." Syl. pt. 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991). Therefore, we will conduct our own analysis of the case, which will concentrate on the preclusion of Mr. Doonan's expert witness. Because we find error and determine that this case should be reversed and remanded for a new trial, we offer some guidelines on remand by also addressing the issue of the admission of the illegible copy of the DUI printout.² This opinion will first address the exclusion of Mr. Doonan's expert witness, then will turn to the issue of the illegible copy of the DUI printout.

A. Exclusion of Expert Witness

In the present case, Mr. Doonan planned on introducing testimony by an expert, Mr. White, who was a former chemist with the West Virginia State Police. After the expert was excluded, Mr. Doonan's counsel proffered to the court that the subject of the testimony was that Mr. White would have addressed the horizontal gaze nystagmus test, and would have further addressed the issue of Mr. Doonan's alleged level of intoxication and the breathalyzer results. The State objected to the use of Mr. White as a witness because he had not been disclosed by Mr. Doonan. The magistrate court relied on W. Va.Code § 62-1B-2 (1965) (Repl.Vol.2005)³ to sustain the objection and preclude Mr. White's testimony. We find this statute wholly inapplicable as it only addresses the duties of the prosecuting attorney to disclose to the defendant and is silent on the issue of a defendant's duty of disclosure to the State. Thus, it was improper for the magistrate court to impose a duty of "reciprocal discovery" on the defendant based on this statutory provision. The circuit court found that it was error to exclude the witness, but that it was harmless error. We cannot agree and find that the exclusion of Mr. White's testimony constituted more than simply harmless error.

There is some discussion by the parties and the magistrate court as to which rules and statutes apply to criminal proceedings in magistrate court. Turning for direction to the Rules of...