State v. Frazier

• Decision Date: 20 November 2012
• Docket Number: No. 11–0691.,11–0691.
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Robert FRAZIER, Defendant Below, Petitioner.
• Court: West Virginia Supreme Court

229 W.Va. 724

735 S.E.2d 727

STATE of West Virginia, Plaintiff Below, Respondent

v.Robert FRAZIER, Defendant Below, Petitioner.

No. 11–0691.

Supreme Court of Appeals of

West Virginia.

Submitted Oct. 17, 2012.

Decided Nov. 20, 2012.

Syllabus by the Court

1. “Pursuant to Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution bars the admission of a testimonial statement by a witness who does not appear at trial, unless the witness is unavailable to testify and the accused had a prior opportunity to cross-examine the witness.” Syllabus Point 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

2. “Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction.” Syllabus Point 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

3. In a criminal case, the burden is upon the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

Crystal L. Walden, Esq., Deputy Public Defender, Office of the Public Defender, Charleston, WV, for Petitioner.

Darrel V. McGraw, Jr., Attorney General, Thomas W. Rodd, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

KETCHUM, Chief Justice:

The defendant, Robert Frazier, appeals his conviction of the second degree murder of his former girlfriend, Kathy Smith. In support of his appeal the defendant has submitted several assignments of error. The State has conceded error with regard to two of those assignments; however, it argues that the errors are harmless.

The Conceded Errors

The first error conceded by the State involves the defendant's fundamental constitutional right to confront the witnesses against him. The prosecution entered into evidence an autopsy report without testimony by the forensic pathologist who performed the autopsy.

The second error which the State concedes is the prosecution's failure to give the defendant exculpatory evidence before trial. The prosecution is constitutionally required to timely disclose all exculpatory information in its possession.

The State concedes these errors occurred, but contends they were harmless. The United States Supreme Court has repeatedly held that errors affecting rights guaranteed to a defendant by the United States Constitution are harmless only if the prosecution can prove, beyond a reasonable doubt, that there is no reasonable possibility that the errors committed by the prosecution contributed to the defendant's conviction. The State has failed to prove that the constitutional errors the prosecution created were harmless beyond a reasonable doubt. Accordingly, we reverse the defendant's conviction and remand this matter for a new trial.

I. Background

On August 25, 2008, Cabell County Metro 911 received a call reporting a shooting at the defendant's house. Arriving at the scene, emergency responders discovered the body of the defendant's girlfriend, Kathy Smith, lying on a bedroom floor. The defendant was not in the house when the emergency responders arrived.

Within hours of the shooting, law enforcement investigators obtained a statement from the defendant. In his initial statement the defendant accused another person of shooting Miss Smith during an argument over drugs. When investigators told the defendant they did not believe him, the defendant changed his story. In his amended statement the defendant said that he and Miss Smith had been arguing. During the argument Miss Smith walked away from the defendant and went into her bedroom. The defendant said he followed her into the bedroom after a few minutes, and that when he entered Miss Smith pulled a “loaded and cocked” shotgun on him. The defendant stated that he acted in self-defense and tried to get the gun from her, but as they struggled the gun accidently discharged and Miss Smith was killed. There were no eyewitnesses to the events that transpired in the bedroom.

Miss Smith's body was sent to the Office of the State Medical Examiner where Dr. Richard Belding, a Deputy Assistant Medical Examiner, conducted a forensic investigation into the circumstances of her death. During the course of his investigation Dr. Belding spoke with law enforcement officers concerning information known to them regarding the circumstances of Miss Smith's death. Dr. Belding also created notes and drafted a “Clinical Summary” during the course of his investigation. The typewritten Clinical Summary, which contains handwritten edits (as noted in italics), states

Kathryn Gail Smith was a 53 year old white woman who, after threatening to throughthrow her boyfriend out of the trailer, walked into a bedroom and seized a single barrel shotgun. The boyfriend took the shotgun from her and shot her in the face. The boyfriend was subsequently arrested and reportedlyhas confessed. There was a witness.

Upon completing the investigation, Dr. Belding prepared an autopsy report which concluded that Miss Smith's death was a homicide.

The defendant was indicted for first degree murder. Prior to trial, the defendant's lawyers filed discovery motions requesting that the prosecution disclose the names of all witnesses that it intended to call at the defendant's trial, and that the defendant be provided with all witness statements. Defense counsel filed a separate motion seeking to require the prosecution to provide “any and all exculpatory and impeachment materials favorable to the [defendant] which negate or tend to negate guilt for the offenses alleged or which may mitigate punishment.”

After significant delays, and two status conferences, the prosecution responded to the defendant's discovery requests by providing defense counsel with a copy of Dr. Belding's autopsy report, and notifying the defendant that it would call Dr. Belding as an expert witness. However, the prosecution did not provide Dr. Belding's notes or his Clinical Summary.

On July 7, 2010, the defendant's trial began. The prosecution did not call Dr. Belding as a witness, but instead called Dr. James Kaplan, the Chief Medical Examiner for the State of West Virginia. Defendant's counsel immediately objected, arguing that they were “never informed that Dr. Kaplan was a witness,” and that the prosecution had only identified Dr. Belding as the witness it would call from the Medical Examiner's Office. The defense argued that allowing Dr. Kaplan to testify as to Dr. Belding's findings and the autopsy report would violate the defendant's right to confront witnesses against him. In support of this argument defense counsel stated that Dr. Kaplan did not perform the autopsy, did not talk to the officers who provided information to Dr. Belding, and that Dr. Kaplan did not observe Dr. Belding perform the autopsy. Defense counsel argued that it could not “cross-examine Dr. Kaplan about what Dr. Belding did. He didn't see anything. He didn't speak to all these officers that Dr. Belding was relying on when he was doing his examination.”

The prosecution argued that Dr. Kaplan was the supervising Medical Examiner, that he signs off on all autopsy reports, and that he could testify as an expert witness. The trial court asked the prosecution whether Dr. Kaplan was “going to testify for the other doctor that did the autopsy.” The prosecution responded that the “other doctor [Dr. Belding] did the autopsy, but [Dr. Kaplan] is going to testify to the report.”

The trial court overruled the defense's objection, finding that Dr. Kaplan could “testify from the report” because it was prepared in the ordinary course of business.

During the course of Dr. Kaplan's testimony the defendant first learned that Dr. Belding had created notes and a Clinical Summary. At this point copies were given to the defendant's lawyers. After reviewing these documents defense counsel renewed the objection to Dr. Kaplan's testimony on confrontation grounds. The defense also moved to dismiss the charges against the defendant for the prosecution's failure to disclose Dr. Belding's notes and Clinical Summary. The defense argued that Dr. Belding's notes were exculpatory because one of them listed the circumstances of Miss Smith's death as “possible accidental.” The Clinical Summary was exculpatory, the defense argued, because it stated that it was Miss Smith who threatened the defendant and brandished the shotgun. This statement was consistent with the defendant's explanation that Miss Smith was the aggressor and pulled the gun on him, and it was contrary to the prosecutor's theory of the case that the defendant was the aggressor and pulled the gun on Miss Smith.

In response to the motion to dismiss the prosecutor explained that it had “just received” the exculpatory materials that day and that it “[d]idn't know it existed” before Dr. Kaplan mentioned it in his testimony. The prosecutor argued that this “goes to show that we did not have any intent to withhold exculpatory evidence” and, therefore, that the prosecution “did not create any prosecutorial misconduct.” During further argument on the issue, the prosecutor revealed that it learned of Dr. Belding's termination approximately two months prior to the beginning of the defendant's trial.

The trial court denied the motion to dismiss, finding that the Medical Examiner's failure to disclose the additional evidence could not be blamed on the prosecution.

On July 12, 2010, a jury found the defendant guilty of the lesser offense of second degree murder. The trial court later sentenced the defendant to forty years imprisonment. It is from this conviction and sentence that he now appeals.

II. Discussion

The defendant first argues that Dr. Belding's autopsy report was “testimonial” in nature because it was used by the prosecution to show ...