State v. Frazier

• Decision Date: 06 February 1979
• Docket Number: No. 13900,13900
• Citation: 162 W.Va. 602,252 S.E.2d 39
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Robert FRAZIER.

Page 39

252 S.E.2d 39

162 W.Va. 602

STATE of West Virginia v. Robert FRAZIER.

No. 13900.

Supreme Court of Appeals of West Virginia.

Feb. 6, 1979.

Syllabus by the Court

1. An indictment will be vitiated where a witness completes his testimony but remains in the grand jury room while other witnesses are testifying and participates in questioning such witnesses.

2. Polygraph test results are not admissible in evidence in a criminal trial in this State.

3. As a general rule, a person who possesses no special expertise is not qualified to give an opinion in a drug-related case that the substance in question is a prohibited substance.

4. The Double Jeopardy Clause of the Federal and this State's Constitutions forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.

5. In order to determine if there is evidentiary insufficiency that will bar a retrial under double jeopardy principles, such determination is made upon the entire record submitted to the jury and not upon the residual evidence remaining after the appellate court reviews the record for evidentiary error.

Valentine, Wilson & Partain, William G. Wilson and Eric H. O'Briant, Logan, for plaintiff in error.

Chauncey H. Browning, Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for defendant in error.

MILLER, Justice:

Robert Frazier, a high school teacher in Logan County, appeals his conviction of the felony of delivering marijuana to one of his students. ¹

He assigns as principal errors that the grand jury proceeding was vitiated when a State trooper was permitted to remain in the grand jury room after he testified and participated in the interrogation of other witnesses who gave evidence against the defendant; that the trial court erred in admitting the results of a lie detector test taken by the defendant; that the State failed in its proof of the crime; and that under the principles of double jeopardy, a judgment of acquittal is warranted. We agree that reversible error was committed, but decline to apply the Double Jeopardy Clause.

I UNAUTHORIZED PERSON BEFORE GRAND JURY

Prior to trial, counsel for Frazier filed a motion to quash and a plea in abatement with respect to the indictment. Both were on the ground that a State trooper, who had investigated the presence of drugs at or around the high school, was in the grand jury room when witnesses were testifying against the defendant and assisted the prosecution in interrogating these witnesses.

In the order overruling the motion and plea, the trial court found the following facts: (1) The State trooper "aided the assistant prosecuting attorney and the Grand Jurors in questioning . . . witnesses;" (2) the trooper had been "investigating alleged drug traffic in and around the . . . High School where the defendant was a teacher and the witnesses were students;" (3) the trooper had been a duly sworn witness before the grand jury; and (4) both he and the assistant prosecutor "left the Grand Jury room before the Grand Jury began its deliberations concerning the resulting indictment."

The court concluded that "while not approving of the trooper's questioning of the said witnesses," it "(could not) find that the defendant's rights were thereby violated or that there was any prejudice to the defendant."

The rule in West Virginia as to the legal effect of the appearance of an unauthorized person before a grand jury is stated in Syllabus Point 4 of State v. Wetzel, 75 W.Va. 7, 83 S.E. 68, 1918A Ann.Cas. 1074 (1914):

"It is the policy of the law to preserve inviolate the secrecy of proceedings before the grand jury, and the discussion of evidence before them, relating to an alleged crime which they are then considering, by persons not sworn to testify as witnesses, will vitiate an indictment returned by them whether they were actually influenced by such discussion or not. The law seeks to guard against even the possibility of such influence."

The grand jurors in Wetzel, who were considering among other crimes the charge of embezzlement against the defendant, adjourned to the bank where the embezzlement occurred, and there discussed some of the matter with employees of the bank. The indictment founded on such procedures was quashed. Wetzel's rule was quoted with approval in State ex rel. Matko v. Ziegler, 154 W.Va. 872, 881, 179 S.E.2d 735, 741 (1971), Overruled on other grounds, Smoot v. Dingess, W.Va., 236 S.E.2d 468, 472 (1977).

Wetzel also recognized that while the grand jury is considering the evidence, other witnesses are not permitted to be in the grand jury room and no one can be present when it is actually voting on the indictment:

"The law holds inviolate the secrecy of proceedings before the grand jury. No one is permitted to be present, when they are voting on an indictment, not even the prosecuting attorney, or the judge of the court, and no person, Not a witness sworn and sent before them to give evidence, or the prosecuting attorney for the purpose of advising them upon questions of law only, is permitted to be present at any time while they are considering evidence." (75 W.Va. at 14, 83 S.E. at 71, 1918A Ann.Cas. at ---) (Emphasis supplied) Obviously, a witness summonsed to appear before the grand jury is authorized to give evidence to it. It is equally clear under Wetzel that once he performs this task he cannot remain in the grand jury room and participate in the interrogation of other witnesses. This occurred in the present case, and at the point that the State trooper completed his testimony and embarked upon interrogation of other witnesses, he became an unauthorized person.

The basis for the Wetzel rule is not difficult to understand. It is to guard against the possibility of influencing the grand jurors. It cannot be expected that law enforcement officials who are directly involved with the solution of a crime and the prosecution of its perpetrators will maintain an impartial role.

A number of authorities are cited by Wetzel for its rule. There seems to be general agreement that while a law enforcement official may properly be a witness before the grand jury, he must limit himself to the role of witness and cannot participate in questioning witnesses. Culbreath v. State, 22 Ala.App. 143, 113 So. 465 (1927); Moseley v. State, 256 Ark. 716, 510 S.W.2d 298 (1974); Herrington v. State, 98 Miss. 410, 53 So. 783 (1910); See United States v. Carper, 116 F.Supp. 817, 13 F.R.D. 483 (D.D.C.1953); Annot., 4 A.L.R.2d 392, 423 (1949); Cf. United States v. Edgerton, 80 F. 374 (D.Mont.1897) (expert witness, who was not a policeman, held unauthorized).

Wetzel recognized, as do we, that some of its cited authority involved statutes setting the rule, but such statutes were merely "declaratory of the common law." (75 W.Va. at 15, 83 S.E. at 72)

Illustrative of the common law origin of the rule is the case of United States v. Edgerton, supra, where an expert witness, who was not a police officer, remained in the jury room questioning other witnesses:

"It is beyond question that no person, other than a witness undergoing examination, and the attorney for the government, can be present during the sessions of the grand jury. The rule is inherent in the grand jury system with all the force of a statutory enactment. . . . The case as presented is one where an expert was not only present in the grand jury room while a witness was testifying, but took part in the investigation by interrogating the witness. The court cannot inquire as to the effect of this conduct. There must not only be no improper influence or suggestion in the grand jury room, but, as suggested in Lewis v. Commissioners, 74 N.C. 194, there must be no opportunity therefor. If the presence of an unauthorized person in the grand jury room may be excused, who will set bounds to the abuse to follow such a breach of the safeguards which surround the grand jury?" (80 F. at 375)

United States v. Echols, 542 F.2d 948 (5th Cir. 1976), recognizes that the broad investigative powers lodged with a grand jury permit it to have all types of evidence, from expert testimony to physical or demonstrative evidence. Echols also recognizes the general federal rule that it is improper to permit the simultaneous presence of a testifying witness and an unauthorized person before the grand jury. The court cited its earlier case of Latham v. United States, 226 F. 420 (5th Cir. 1915), for the following principle:

"(T)he presence of an unauthorized person results in a Per se invalidity of the indictment. No showing of prejudice is required to quash an indictment secured with the presence of unauthorized persons in the grand jury room." (542 F.2d at 951)

This is essentially the same rule that we have adopted in Wetzel. The rule does not restrict any legitimate exercise of the broad investigatory powers of the grand jury. Its purpose is to prevent undue influence or intimidation from infecting the grand jurors.

In the present case, not only was the witness unauthorized when he had completed his testimony and remained in the grand jury room, but error was compounded when he questioned other witnesses who appeared before the grand jury.

We need not assess the outer limits of the Wetzel rule to speculate whether it would apply to some innocuous, accidental intrusion into the grand jury room by an unauthorized person. We hold that an indictment will be vitiated where a witness completes his testimony but remains in the grand jury room while other witnesses are testifying and participates in questioning such witnesses.

II ADMISSIBILITY OF POLYGRAPH TEST

The defendant Frazier submitted to a polygraph test prior to trial pursuant to a written stipulation signed by him, his counsel, and the prosecutor. Its material terms were as follows: "(T)hat a member of the West Virginia Department of Public Safety (would) conduct a polograph (Sic ) test or...