State v. Keenan, 30851.

• Decision Date: 19 June 2003
• Docket Number: No. 30851.,30851.
• Citation: 213 W.Va. 557,584 S.E.2d 191
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Charles G. KEENAN, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

584 S.E.2d 191

213 W.Va. 557

STATE of West Virginia, Plaintiff Below, Appellee, v. Charles G. KEENAN, Defendant Below, Appellant.

No. 30851.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 2003.

Decided June 19, 2003.

Darrell V. McGraw, Jr., Attorney General, Dawn E. Warfield, Deputy Attorney General, Michael J. Meleady, Rule 10 Attorney, Charleston, West Virginia, Attorneys for Appellee.

John R. Mitchell, Sr., Esq., E. Dixon Ericson, Esq., Law Office of John R. Mitchell, Sr., Charleston, West Virginia, Attorneys for Appellant.

PER CURIAM:

This is an appeal by Charles G. Keenan from an order of the Circuit Court of Fayette County sentencing him to 15 years in the State Penitentiary for voluntary manslaughter. On appeal, he claims that the State failed to respond properly to his discovery requests, and that the State's actions prejudiced the outcome of his trial. He also contends that individuals in the office of the prosecutory attorney who prosecuted him had represented him in previous criminal proceedings.¹ Lastly, he contends that the evidence in his case was unreliable, inconsistent and contradictory and that it was inadequate to sustain a verdict of guilty of voluntary manslaughter.

I. FACTS

The appellant was indicted for killing Mark Lafferty on April 19, 2000. Mr. Lafferty, who was a passenger on an all-terrain vehicle driven by Shaun Tincher, had been shot at close range at approximately 10:30 p.m. on April 19, 2000, after being involved in an altercation with the appellant. Mr. Tincher, who was present on the all-terrain vehicle with Mr. Lafferty, heard the shot, but did not see who fired it. A police search of the area where the shooting occurred produced no weapon or spent cartridges. The shooting occurred under circumstances which suggested either that Mr. Lafferty accidentally shot himself, or that the appellant shot him.

The indictment against the appellant was signed as a True Bill by Paul M. Blake, Jr., the Prosecuting Attorney of Fayette County. Mr. Blake and one of his assistants, Carl Harris, had, approximately 14 years prior to the return of the indictment, represented the appellant in 1986 on a charge of obtaining property by false pretenses, and in 1986-87 on a charge of transferring and receiving stolen property. Those charges had resulted in convictions.

After the return of the indictment, defense counsel moved to disqualify the Fayette County Prosecutor's Office from undertaking the prosecution of the appellant on the ground that a conflict existed as a result of the prosecutor and his assistant, Carl Harris, previously representing the appellant. A hearing was held on the motion, and during the hearing, defense counsel stated that he was not accusing the Prosecutor's Office of impropriety, but he argued that because of the bond created by the attorney-client relationship, the prosecutor should be barred from handling the case, and that a special prosecutor should be appointed. The State responded that the criminal matters were not the same or substantially related and argued that, under the circumstances, the Prosecutor's Office should not be precluded from prosecuting the case. The circuit court indicated that it was inclined to deny the motion, but invited the parties to submit memoranda of law in support of their positions. Memoranda were filed by both sides, and subsequently the court denied the motion for disqualification. In denying the motion, the court found first that the case being tried was in no way connected to the two earlier felonies. The court also essentially found that members of the Prosecutor's Office, other than Mr. Blake and Mr. Harris, were actually conducting the prosecution of the appellant and that Mr. Blake's only involvement was signing of the indictment returned by the grand jury. The court stated that there was no evidence that Mr. Blake or Mr. Harris had obtained any privileged information out of the prior attorney-client relationships which could be adversely used in the case at hand and, for that reason, the court denied the motion.

Defense counsel also filed a Rule 16 discovery motion.² In response to that motion, the State provided defense counsel with a report prepared by Sergeant J.R. Giacalone, a forensic chemist at the West Virginia State Police Forensic Laboratory in South Charleston, West Virginia. The initial report prepared by Sergeant Giacalone indicated that he had sought evidence of gunshot residue from the appellant's body, as well as from the body of the decedent. In the report provided by the State, which was dated June 19, 2000, Sergeant Giacalone stated that gunshot residue was identified on the hands, face and stomach of the appellant. He also stated that particles consistent with gunshot residue were found on samples from the hands of the decedent.

After Sergeant Giacalone's report was produced, the appellant informed his attorney that he had accompanied his daughter while she was target shooting her revolver on the day before the death of the decedent, and he essentially took the position that the residue found upon his body resulted from that activity. In view of this, defense counsel surmised that the residue on the hands of the decedent, together with evidence that the shooting had been a contact wound, supported the hypothesis that the decedent had been armed with a pistol on the evening of the shooting and had attempted to defend himself or retaliate during, or immediately after, the altercation with the appellant and that the pistol had accidentally discharged as he had attempted to extract it from his jacket pocket.

Subsequently, defense counsel filed an additional discovery motion and requested any notes generated by Sergeant Giacalone while tests were being performed and certain other items. As a result of the renewed motion, the State produced three additional pages, including a worksheet and a fax cover sheet dealing with chain of custody of the residue samples. These documents were consistent with Sergeant Giacalone's initial report.

According to the appellant, when trial commenced on December 15, 2000, he was prepared to advance the defense that the victim had died as a result of an accidental, selfinflicted gunshot wound. However, after trial commenced, the State provided defense counsel with a "corrected" forensic report prepared by Sergeant Giacalone. Sergeant Giacalone later testified that this report was prepared on December 15, 2000, when after reviewing his report and notes, he concluded that his original prior report had mixed and misstated the actual test results. The revised, or corrected forensic report, showed that the tests of the decedent's clothing were positive for gunshot residue, but that he, Sergeant Giacalone, had not actually tested swabs from the decedent's hands. The implication of the corrected report was that there was no evidence of gunshot residue on the decedent's hands. The appellant asserts that the effect of the corrected report was to destroy his proposed defense that the decedent had actually shot himself.

In light of the lateness of the production of the corrected forensic report, the appellant moved to suppress the gunshot evidence and prohibit Sergeant Giacalone's testimony. The court denied that motion, and Sergeant Giacalone was permitted to testify. Later, during cross-examination, Sergeant Giacalone produced an extensive file consisting of several dozen pages of computer printout sheets, handwritten notes, graphs with notations and other documents prepared in conjunction with his forensic examination. Shortly thereafter, the State conceded that it was aware of these documents from pretrial conversations with Sergeant Giacalone, but had failed to produce them in response to the appellant's discovery requests. As a consequence of this admission, the trial court concluded that the State had improperly responded to the defense's discovery requests and ruled that the testimony of Sergeant Giacalone was inadmissible. The court also instructed the jury to disregard the testimony of Sergeant Giacalone.

The other evidence regarding what actually occurred during the shooting was somewhat contradictory and inconclusive. The shooting had occurred at night; the decedent and the appellant had been involved in an altercation; but Mr. Tincher, who was present, could not conclusively state who had fired the shot which killed the decedent.

At the conclusion of the trial, the jury found the appellant guilty of voluntary manslaughter, and the court sentenced him to 15 years in the penitentiary.

As has previously been stated, the appellant claims that the State's failure to respond properly to his discovery requests prejudiced the outcome of his trial, and he also claims that the prosecuting attorney's office should have been disqualified from trying him. Lastly, he contends that the evidence in the case was inadequate to support the verdict ultimately returned by the jury.

II. STANDARD OF REVIEW

In Syllabus Point 2 of State ex rel. Rusen v. Hill, 193 W.Va. 133, 454 S.E.2d 427 (1994), this Court held that:

The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case.

See also, Syllabus Point 1, State v. Johnson, 179 W.Va. 619, 371 S.E.2d 340 (1988).

The Court has also indicated that whether a trial court should disqualify a prosecutor, or his office, from prosecuting a criminal defendant is reviewed under an abuse of discretion standard. See, e.g., State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1974)

.

Lastly, the Court has recognized that the denial of a motion for acquittal on the ground that the conviction is not supported by the evidence or that the verdict is contrary to the weight...