State v. Hill, No. 31676 (WV 5/27/2004)

• Decision Date: 27 May 2004
• Docket Number: No. 31676,31676
• Court: West Virginia Supreme Court
• Parties: STATE OF WEST VIRGINIA EX REL. CLYDE H. RICHEY, Petitioner, v. COLONEL HOWARD E. HILL, JR., AND MIKE CLIFFORD, PROSECUTING ATTORNEY FOR KANAWHA COUNTY, Respondents.

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STATE OF WEST VIRGINIA EX REL. CLYDE H. RICHEY, Petitioner, v. COLONEL HOWARD E. HILL, JR., AND MIKE CLIFFORD, PROSECUTING ATTORNEY FOR KANAWHA COUNTY, Respondents.

No. 31676

Supreme Court of Appeals of West Virginia, January 2004 Term.

Submitted: March 30, 2004

Filed: May 27, 2004

PETITION FOR A WRIT OF MANDAMUS WRIT DENIED.

SYLLABUS BY THE COURT

1. "`"Mandamus lies to require the discharge by a public officer of a nondiscretionary duty." Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W. Va. 479[, 153 S.E.2d 284 (1967)].' Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W. Va. 636, 171 S.E.2d 545 (1969)." Syllabus point 1, State ex rel. Williams v. Department of Military Affairs, 212 W. Va. 407, 573 S.E.2d 1 (2002).

2. "To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy." Syllabus point 2, Myers v. Bartle, 167 W. Va. 194, 279 S.E.2d 406 (1981).

3. "Petitioners in mandamus must have a clear legal right to the relief sought therein and such right cannot be established in the proceeding itself." Syllabus point 1, State ex rel. Kucera v. Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969).

4. "`"An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata." Point 1, Syllabus, Sayre's Adm'r v. Harpold, 33 W. Va. 553[, [(1890)].' Syl. Pt. 1, In re McIntosh's Estate, 144 W. Va. 583, 109 S.E.2d 153 (1959)." Syllabus point 1, State ex rel. West Virginia Department of Health & Human Resources v. Cline, 185 W. Va. 318, 406 S.E.2d 749 (1991) (per curiam).

5. "Before the prosecution of a lawsuit may be barred on the basis of res judicata, three elements must be satisfied. First, there must have been a final adjudication on the merits in the prior action by a court having jurisdiction of the proceedings. Second, the two actions must involve either the same parties or persons in privity with those same parties. Third, the cause of action identified for resolution in the subsequent proceeding either must be identical to the cause of action determined in the prior action or must be such that it could have been resolved, had it been presented, in the prior action." Syllabus point 4, Blake v. Charleston Area Medical Center, 201 W. Va. 469, 498 S.E.2d 41 (1997).

6. Before a petitioner is entitled to post-conviction DNA testing the petitioner must file a motion for post-conviction DNA testing in the circuit court that entered the judgment of conviction that the petitioner challenges. In the motion the petitioner must allege, and subsequently prove by a preponderance of the evidence, that: 1) the petitioner is incarcerated; 2) the material upon which the petitioner seeks testing exists and is available; 3) the material to be tested is in a condition that would permit DNA; 4) a sufficient chain of custody of the material to be tested exists to establish such material has not been substituted, tampered with, replaced, or altered in any material respect; 5) identity was a significant issue at trial; and, 6) a DNA test result excluding the petitioner as being the genetic donator of the tested material would be outcome determinative in proving the petitioner not guilty of the offense(s) for which the petitioner was convicted. Finally, the petitioner's theory supporting the request for post-conviction DNA testing may not be inconsistent with the trial defenses.

7. A petitioner bears the costs of post-conviction DNA testing unless the petitioner qualifies as an indigent, in which case the cost of testing shall be borne by the State.

Jacques R. Williams, Esq., Hamstead, Williams & Shook, PLLC, Morgantown, West Virginia, Attorney for the Petitioner.

Kelly D. Ambrose, Assistant Attorney General, Chief Legal Counsel South Charleston, West Virginia, Attorney for Respondent Hill.

Mike Clifford, Prosecuting Attorney, Mary Beth Kershner, Assistant Prosecuting Attorney, Robert William Schulenberg, III, Assistant Prosecuting Attorney, Charleston, West Virginia, Attorneys for Respondent Clifford.

JUSTICE DAVIS delivered the opinion of the Court.

JUSTICE STARCHER, deeming himself disqualified, did not participate in the decision of this case.

JUDGE PAUL ZAKAIB, JR., sitting by temporary assignment.

JUSTICE ALBRIGHT dissents and reserves the right to file a dissenting opinion.

CHIEF JUSTICE MAYNARD concurs and reserves the right to file a concurring opinion.

Davis, J.:

Clyde H. Richey (hereinafter "Mr. Richey") seeks an original jurisdiction writ of mandamus directing Colonel Howard E. Hill, Jr., Superintendent of the West Virginia State Police, and Mike Clifford, Prosecuting Attorney for Kanawha County, West Virginia (hereinafter "Colonel Hill" or "Mr. Clifford"), to either conduct DNA tests on certain evidence used in Mr. Richey's 1979 trial for third-degree sexual assault or to release such evidence so that he can arrange his own testing. Having reviewed the petition and supporting memorandum, Colonel Hill's and Mr. Clifford's responses and exhibits, and pertinent records, we find mandamus does not lie and therefore deny the petition.

I. FACTUAL AND PROCEDURAL HISTORY

A jury convicted Mr. Richey in 1979 on one count of third-degree sexual assault for having had anal intercourse with a fourteen year-old boy in a motel in Charleston, West Virginia. At the time of the assault, Mr. Richey was in the House of Delegates. His victim was a legislative page whom Mr. Richey knew through the Big Brothers program. Mr. Richey arranged for the victim to accompany him from Morgantown and to stay with him for several days in a motel room Mr. Richey was renting during the legislative session. After conviction, Mr. Richey was not incarcerated but instead received five years probation. We affirmed the conviction in State v. Richey, 171 W. Va. 342, 298 S.E.2d 879 (1982).

At trial, the State introduced three-pairs of the victim's underwear.¹ State Police Serologist Fred Zain subjected one pair of the underwear to an unauthorized acid phosphate test (a test which determines if semen is present), but apparently obtained no test results. State Police Serologist Robert Murphy performed other testing on all three pairs of the underwear, which found semen on two of them. However, there was insufficient semen to determine the blood type of the semen.²

After conviction, Mr. Richey filed a number of habeas petitions culminating in a habeas proceeding held before Judge A. Andrew MacQueen of the Circuit Court of Kanawha County.³ This proceeding included a claim under In re West Virginia State Police Crime Laboratory, 190 W. Va. 321, 438 S.E.2d 501 (1993) (hereinafter "Zain I").⁴ Judge MacQueen dismissed the Zain I claim on April 23, 1996, and the remaining claims on December 2, 1996. We refused a petition for appeal.

After we refused Mr. Richey's habeas appeal, he filed a coram nobis petition, a W. Va. R. Civ. P. Rule 60(b) motion, and a petition for DNA testing⁵ in the Circuit Court of Kanawha County, Judge George M. Scott, sitting by temporary assignment. Judge Scott denied relief in 1998 finding "the claims of the petitioner . . . are . . . barred by the doctrine of res judicata." Mr. Richey never petitioned for an appeal from Judge Scott's final order.

In 2002, Mr. Richey filed with the Circuit Court of Kanawha County, Judge Louis H. Bloom, a motion for DNA testing that Judge Bloom found was "nearly identical" to the one Mr. Richey filed before Judge Scott.⁶ While this motion was pending, Mr. Richey filed an original jurisdiction habeas corpus petition in this Court seeking DNA testing, which we refused. On November 26, 2002, Judge Bloom denied the motion for DNA testing finding that it was nearly identical to the coram nobis petition Judge Scott denied and was barred by Judge Scott's decision. Mr. Richey never petitioned for appeal. Mr. Richey now asks us to order Colonel Hill and Mr. Clifford to perform DNA testing or allow him to perform such testing.

II. STANDARD FOR ISSUANCE OF WRIT OF MANDAMUS

We have explained that "`"[m]andamus lies to require the discharge by a public officer of a nondiscretionary duty." Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W. Va. 479[, 153 S.E.2d 284 (1967)].' Syllabus point 1, State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W. Va. 636, 171 S.E.2d 545 (1969)." Syl. pt. 1, State ex rel. Williams v. Department of Mil. Aff., 212 W. Va. 407, 573 S.E.2d 1 (2002). "To invoke mandamus the relator must show (1) a clear right to the relief sought; (2) a legal duty on the part of the respondent to do the thing relator seeks; and (3) the absence of another adequate remedy." Syl. pt. 2, Myers v. Bartle, 167 W. Va. 194, 279 S.E.2d 406 (1981). As "the burden of proof as to all the elements necessary to obtain mandamus is upon the party seeking the relief[,]" 52 Am. Jur. 2d Mandamus § 3 at 271 (2000) (footnote omitted), a failure to meet any one of them is fatal. With these factors in mind, we turn to the parties' contentions.

III. DISCUSSION

Mr. Richey claims that DNA testing will prove his innocence. He further asserts that he has a clear legal right to exculpatory evidence and that the Respondents have a corresponding duty to provide him such evidence. He also summarily...