State v. Dudick

Decision Date25 March 1975
Docket NumberNo. 13486,13486
Citation158 W.Va. 629,213 S.E.2d 458
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Metro DUDICK.

Syllabus by the Court

1. Subject to certain exceptions, pretrial discovery in a criminal case is within the sound discretion of the trial court; however, after a witness has testified from notes used to refresh his recollection, the defense is absolutely entitled to inspect the notes from which the witness testified and must be given a reasonable opportunity to prepare cross-examination.

2. The constitutional guarantee under W.Va.Const., Article III, § 6 that no search warrant will issue except on probable cause goes to substance and not to form; therefore, where it is conclusively proved that a magistrate acted as a mere agent of the prosecutorial process and failed to make an independent evaluation of the circumstances surrounding a request for a warrant, the warrant will be held invalid and the search will be held illegal.

3. In West Virginia mere physical presence on premises in which a controlled substance is found does not give rise to a presumption of possession of a controlled substance, but is evidence to be considered along with other evidence demonstrating conscious dominion over the controlled substance.

4. The offense of possession of a controlled substance also includes constructive possession, but the State must prove beyond a reasonable doubt that the defendant had knowledge of the controlled substance and that it was subject to defendant's dominion and control.

5. It is error to admit testimony in the trial of a criminal case of a police officer concerning information received by him from others which led to an investigation as such testimony is hearsay because the declarant is not available for cross-examination.

Wilson Frame & Rowe, Clark B. Frame and Richard E. Rowe, Morgantown, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., Betty L. Caplan, Asst. Atty. Gen., Charleston, for defendant in error.

NEELY, Justice:

We have long been concerned in the administration of criminal law with the inevitable tension inherent in the competing goals of providing the accused with fair disclosure of evidentiary material relied upon by the State and, on the other hand, of protecting the State from illegal tampering with evidence. The great weight of authority in both the federal and state courts rejects application of the liberal rules of discovery available in civil litigation to the criminal process and this Court is in agreement with that philosophy. Therefore guidelines with regard to discovery, including the proper exercise of trial court discretion, must be developed which reconcile competing needs and are fair to both defendant and State.

The case before us provides an opportunity to examine one facet of the overall problem, namely the rules which are applicable in West Virginia with regard to a defendant's right to examine police reports and other investigative memoranda upon which state witnesses rely to refresh their recollection during the course of a trial. In addition, this case permits us to consider two other important issues in modern criminal law, namely the necessary extent of independent examination into probable cause by a magistrate before he may issue a valid search warrant, and the elements of proof required to demonstrate 'possession' of a controlled substance, as that term is used in the penal law.

The defendant, Metro Dudick, was a student at West Virginia University and paid one-third of the rent for an apartment at 487 High Street in the City of Morgantown. On February 26, 1973 a Morgantown city policeman, J. A. McCabe, appeared before a justice of the peace and presented an affidavit in support of a request for a search warrant to search the apartment on High Street. Having obtained the warrant, several officers of both the City and State Police went to 487 High Street at approximately 8:00 p.m. where they found the defendant and another young man. The officers presented the warrant and searched the premises where they uncovered and seized a quantity of marijuana. In April 1973 the defendant was indicted for possession of a controlled substance.

One mistrial was declared in June 1973 because the jury could not reach a verdict. The defendant's second trial, in which he was convicted of possession of a controlled substance, was held in October 1973, at which time the State presented two witnesses, Officer J. A. McCabe and Trooper J. G. Watson. Officer McCabe testified that in executing the search warrant at defendant's apartment, he smelled a strong odor of burning marijuana and that a cigarette was discovered burning in an ashtray. On cross-examination he stated that this cigarette was confiscated in the search, analyzed in Charleston, and determined to be marijuana. His testimony in this regard was in direct conflict with the official police report which showed that the analysis of the contents of the ashtray revealed no finding of marijuana. Defendant made a timely motion during Officer McCabe's testimony to inspect the police report, which was used by the two officers for the purpose of refreshing their recollections, but this motion was denied. Later defendant's counsel was granted informal permission to read the official police report and he discovered that, according to the report, the officer's testimony was inaccurate. Defendant's counsel appended an affidavit regarding the discrepancy to the motion for a new trial, but the motion was denied.


The Court holds that the trial court's refusal to permit defense counsel to inspect the police report was reversible error, although in West Virginia there is scant authority for that proposition. In the case of State v. West, W.Va., 200 S.E.2d 859 (1973) this Court held in syllabus point 4:

'Where a witness takes lengthy notes to the witness stand from which he selects a few portions for the purpose of refreshing his recollection, it is not error for the trial court to restrict opposing counsel's inspection of the notes to those portions of the notes actually used by the witness.'

This would appear to be the converse of the proposition currently before us. In West a witness testified about a conversation he heard between the defendant and another party. The witness used notes to refresh his memory, and on cross-examination defense counsel asked to see all the notes. The State moved the court to restrict the defendant's examination of the notes to those portions actually used by the witness to refresh his memory. The court granted the State's motion to restrict the examination, although later defense counsel was permitted to read all the notes in chambers. This Court found no error in that procedure. The West case properly applied the law to the facts of that case, although it would appear that the issue of discovery was treated tangentially by this Court as the lower court decision was reversed on other grounds.

While there is conflicting precedent throughout American jurisdictions, this Court finds the better rule on the subject of examination of notes used by witnesses during trial to be articulated in a variety of federal precedent, namely, Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957); the statutory codification of the rule in Jencks, known as the Jencks Act, 18 U.S.C. § 3500; the Federal Rules of Criminal Procedure, Rule 16, 18 U.S.C.A.; and the new Federal Rules of Evidence, Public Law 93--595, 28 U.S.C.App., Rule 612. In Jencks v. United States the Government offered testimony by two F.B.I. undercover agents who stated on cross-examination that they had made regular oral or written reports to their superiors on the matters about which they had testified. Defendant moved for the production of these reports for inspection by the judge with a view to their possible use by the defendant in impeaching the agents' testimony. The United States Supreme Court held that denial of the motion for production was reversible error, and that defendant was entitled to an order directing the Government to produce for inspection after the Government's witnesses had testified, all written reports of the F.B.I. agents in the Government's possession, and also any oral reports as recorded by the F.B.I., touching the events and activities about which the agents testified at the trial. Jencks did not announce a constitutional rule, but rather created a federal procedural rule upon which Congress chose to elaborate in the Jencks Act, (1957) as amended 1970. 1 The new Federal Rules of Evidence, which will become effective July 1, 1975, recognize the Jencks Act and specifically incorporate segments of the Act in Rule 612. 2 Historically discovery in criminal cases has been largely within the discretion of the trial judge, State v. Cowan, W.Va., 197 S.E.2d 641 (1973), except with regard to any matter known to the prosecution which is obviously exculpatory in nature or which may be relevant and favorable to the defendant. brady V. maryland, 373 U.S. 83, 83 s.ct. 1194, 10 L.Ed.2d 215 (1963); Giles v. Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed.2d 737 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). In recent years this Court has tended to look with increasing favor upon the liberal use of discretion in criminal discovery while recognizing that the philosophy of full disclosure applicable to civil cases as embodied in the West Virginia Rules of Civil Procedure is inappropriate in criminal cases. 3 The primary objection to full discovery in criminal cases has been that discovery would: (1) lead to perjury and the suppression of evidence; (2) promote the intimidation of witnesses; (3) give an unfair advantage to criminal defendants since there is no reciprocal right for the prosecution;...

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  • State v. Meadows, 15601
    • United States
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    ...relevant in this case, 2 pre-trial discovery in a criminal case is within the sound discretion of the trial court. State v. Dudick, 158 W.Va. 629, 213 S.E.2d 458 (1975); State v. Petry, 166 W.Va. 153, 273 S.E.2d 346 Upon a careful analysis of the facts in this case we are of the opinion tha......
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