State v. Hall

• Decision Date: 18 April 1985
• Docket Number: Nos. 16377,16509,s. 16377
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Joey HALL. Joey HALL v. W. Joseph McCOY, Commissioner, etc.

Page 860

329 S.E.2d 860

174 W.Va. 787

STATE of West Virginia v. Joey HALL.

Joey HALL v. W. Joseph McCOY, Commissioner, etc.

Nos. 16377, 16509.

Supreme Court of Appeals of

West Virginia.

April 18, 1985.

Syllabus by the Court

1. "A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution." Syllabus Point 4, State v. Hatfield, W.Va., 286 S.E.2d 402 (1982).

2. Prior trial testimony is admissible as an exception to the hearsay rule under Rule 804(b)(1) of the West Virginia Rules of Evidence. Therefore, impeachment by reason of an inconsistent statement is available under Rule 806 of the West Virginia Rules of Evidence.

Preiser & Wilson, Barbara H. Fleisher, Charleston, for appellant Hall.

Paul R. Goode, Pros. Atty., Pineville, for appellee State.

MILLER, Justice:

We have consolidated Joey Hall's second appeal from a first degree murder conviction in the Circuit Court of Wyoming County with his petition for a writ of habeas corpus also challenging that conviction. Both involve the question of whether his conviction must be reversed as a result of the State's failure to disclose exculpatory evidence. For the reasons which follow, we find that a new trial is warranted.

On Hall's first appeal, we remanded the case to the circuit court for a determination of whether his conviction for first degree murder should be reversed because the defense was not provided information concerning the prior criminal record of Russell Howard Green, Jr., the State's chief witness and only eyewitness to the crime. ¹ State v. Hall, W.Va., 304 S.E.2d 43, 47-48 (1983).

Following a hearing on remand, the circuit court found that defense counsel had not specifically requested Green's criminal record prior to trial and that the State had not "concealed" the record, but simply did not have Green's criminal record in its file when the complete file of the case was made available to defense counsel.

The circuit court further found that the jury's verdict would not have been affected by the disclosure of the witness's "rap sheet," showing two misdemeanor convictions, because the jury knew from the evidence at trial that Green was involved in drug trafficking. The circuit court therefore affirmed his conviction.

After we agreed to hear Hall's appeal from the circuit court's decision on remand, Hall advised his appellate counsel that about two days after his murder conviction Trooper G.R. Johnson of the Department of Public Safety played for him a tape recording of an interview with Green. In this taped interview, Green stated that Hall shot the victim five times from inside a car and that the car window on the driver's side must have been broken from the inside by a shot passing through the victim's head.

Green testified at trial that Hall fired three shots inside the car, exited the car on the passenger's side, walked around to the driver's side and fired two more shots through the driver's side window.

Hall's counsel began an investigation to obtain the missing tape recording and by way of writ of habeas corpus filed in this Court developed these facts. Hall's former attorneys confirmed that Hall had mentioned hearing the tape after the trial sometime during the pendency of the original appeal. Trooper Johnson was deposed and also admitted playing a tape recording to Hall of an interview with Green shortly after his conviction in May, 1982. The grand jury testimony of Trooper Johnson and statements of the prosecutor before the grand jury indicate the prosecution may have been aware of the tape.

After oral argument had been completed in this Court, the tape recording was located by Trooper Johnson on January 25, 1985. He turned it over to Hall's counsel who promptly submitted it to our Clerk for our consideration. ² This recording stands in sharp contrast with the critically important portions of Green's trial testimony. ³

It is clear that Hall specifically requested Green's prior statements and that the taped statement was not provided to him. The question is whether the government's failure to disclose to the defense favorable information which was specifically requested amounts to a violation of due process vitiating Hall's conviction.

We begin our analysis with a brief summary of the controlling authorities. In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215, 218 (1963), the United States Supreme Court held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." The prosecutor in that case failed to disclose an accomplice's confession thereby denying the accused favorable evidence.

We applied Brady's principles in State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973), and stated in Syllabus Point 4 that: "A prosecution that withholds evidence on the demand of an accused, which, if made available would tend to exculpate him, violates due process of law."

More recently in State v. Hatfield, W.Va., 286 S.E.2d 402, 409-11 (1982), we reviewed our decisions discussing a prosecutor's constitutionally mandated duty to disclose exculpatory evidence and held that under our Constitution disclosure of such evidence is required, even in the absence of a specific request. In Syllabus Point 4, we stated:

"A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution."

Our holding in Hatfield was based, in part, on United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). ⁴

We emphasized in Hall's first appeal that Green's credibility was the most important issue in the case, that his testimony carried many indicia of unreliability, and that a reasonable doubt "might well have been created by even insubstantial additional impeachment" of Green. 304 S.E.2d at 48. ⁵ Viewing the record as a whole, we conclude that the jury's verdict might have been different had the jury been allowed to hear Green's prior inconsistent statement. In other words, a reasonable doubt might well have been created.

Although the prosecution argues that he had an open file policy, this policy does not excuse his failure to disclose the tape recording. Even if the prosecution was unaware of the tape's existence, which seems quite unlikely considering all the circumstances, what Trooper Johnson knew must be imputed to the prosecution. He was a part of the prosecution. It is not enough for the prosecution to simply say that he provided the defense all evidence he chose to put in the file. As we discussed at some length in State v. Watson, W.Va., 318 S.E.2d 603, 609 (1984), "a prosecutor is required to disclose statements to which he has access even though he does not have the present physical possession of the statements." ⁶

Since the initial trial, Green has died. This does not, of course, foreclose the State from retrying Hall. As we pointed out in Angel v. Mohn, 162 W.Va. 795, 799-80, 253 S.E.2d 63, 66 (1979), the State can introduce Green's trial testimony, a practice sanctioned under Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972); Mattox v. United States, 156 U.S. 237, 39 L.Ed. 409, 15 S.Ct. 337 (1895). See also State v. Dawson, 129 W.Va. 279, 40 S.E.2d 306 (1946); West Virginia Rules of Evidence, Rule 804(b)(1).

The more interesting question is the defendant's right to use the inconsistent tape which was discovered after the first trial. Impeachment of a witness can occur by several methods. One is through cross-examination on a prior inconsistent statement. Addair v. Bryant, W.Va., 284 S.E.2d 374 (1981); State v. Daggett, W.Va., 280 S.E.2d 545 (1981); F. Cleckley, Handbook on Evidence § 21B (1977). Another technique is to offer a witness whose testimony is inconsistent with the first witness's. See State v. Atkins, 163 W.Va. 502, 518-19, 261 S.E.2d 55, 63 (1979); State v. Ramey, 158 W.Va. 541, 552, 212 S.E.2d 737, 745 (1975), overruled on other grounds, State v. McAboy, 160 W.Va. 497, 236 S.E.2d 431 (1977); F. Cleckley, supra at § 21A(1)(a). Obviously, cross-examination of Green as to the inconsistent statement is unavailing. Officer Johnson who took the taped statement of Green is available.

It appears to be generally recognized that where a deceased witness's testimony is introduced at trial through his prior trial testimony or by way of deposition, then such testimony may also be impeached through that witness's prior inconsistent statement, as pointed out in State v. Fredette,462 A.2d 17, 26 (Me.1983): "As a general principle, an absentee witness whose testimony is admitted in the form of prior testimony, may be impeached in the same manner as if the witness were present and testifying. See 3A.J. Wigmore, [Evidence] § 888, at 652 [ (Chadbourn rev. 1924) ]."

One of the leading cases in this area is People v. Collup, 27 Cal.2d 829, 167 P.2d 714 (1946), where a State's witness's testimony taken at a preliminary hearing was read at trial. It was held error to exclude evidence of a subsequent inconsistent statement of that witness. See also People v. Redston, 139 Cal.App.2d 485, 293 P.2d 880 (1956); State v. Yingst, 651 S.W.2d 641 (Mo.Ct.App.1983); State v. Kline, 11 Ohio App.3d 208, 464 N.E.2d 159 (1983); McCormick on Evidence 73 (3d ed. 1972). We have dealt with a related question in State v. Young, W.Va., 273 S.E.2d 592, 602 (1980), where we indicated in note 7 that a person's dying declaration introduced at trial could be impeached. F. Cleckley, supra, § 63.

This area is now more developed in this State as a result of our adoption of Rule 806 of the...