State v. Kennedy

• Decision Date: 21 November 2012
• Docket Number: No. 11–0223.,11–0223.
• Citation: 735 S.E.2d 905,229 W.Va. 756
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Respondent v. Franklin Junior KENNEDY, Defendant Below, Petitioner.

229 W.Va. 756
735 S.E.2d 905

STATE of West Virginia, Plaintiff Below, Respondent
v.
Franklin Junior KENNEDY, Defendant Below, Petitioner.

No. 11–0223.

Supreme Court of Appeals of
West Virginia.

Submitted Oct. 16, 2012.
Decided Nov. 21, 2012.

Held Unconstitutional
West's Ann.W.Va.Code, 61–12–13.

[735 S.E.2d 908]

Syllabus by the Court

1. “In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.” Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

2. “The Confrontation Clause contained in the Sixth Amendment to the United States Constitution provides: ‘In all criminal prosecutions, the accused shall ... be confronted with the witnesses against him.’ This clause was made applicable to the states through the Fourteenth Amendment to the United States Constitution.” Syl. Pt. 1, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), overruled on other grounds by, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

3. “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.” Syl. Pt. 6, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

4. “To the extent that State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990), State v. Mason, 194 W.Va. 221, 460 S.E.2d 36 (1995), and State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999), rely upon Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) ( overruled by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004)) and permit the admission of a testimonial statement by a witness who does not appear at trial, regardless of the witness's unavailability for trial and regardless of whether the accused had a prior opportunity to cross-examine the witness, those cases are overruled.” Syl. Pt. 7, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

5. “Under the Confrontation Clause contained within the Sixth Amendment to the United States Constitution and Section 14 of Article III of the West Virginia Constitution,

[735 S.E.2d 909]

a testimonial statement is, generally, a statement that is made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Syl. Pt. 8, State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006).

6. To the extent that W. Va.Code § 61–12–13 (Repl.Vol.2010) compels the mandatory admission of an autopsy report or other testimonial document, in a criminal action, where the performing pathologist or analyst does not appear at trial and the State fails to establish that the pathologist or analyst is unavailable and that the accused has had a prior opportunity to cross-examine the witness, it is unconstitutional and unenforceable.

7. “Any physician qualified as an expert may give an opinion about physical and medical cause of injury or death. This opinion may be based in part on an autopsy report.” Syl. Pt. 5, State v. Jackson, 171 W.Va. 329, 298 S.E.2d 866 (1982).

8. “An expert witness may testify about facts he/she reasonably relied upon to form his/her opinion even though such facts would otherwise be inadmissible as hearsay if the trial court determines that the probative value of allowing such testimony to aid the jury's evaluation of the expert's opinion substantially outweighs its prejudicial effect. If a trial court admits such testimony, the jury should be instructed that the otherwise inadmissible factual evidence is not being admitted to establish the truth thereof but solely for the limited purpose of informing the jury of the basis for the expert's opinion.” Syl. Pt. 3, Doe v. Wal–Mart Stores, Inc., 210 W.Va. 664, 558 S.E.2d 663 (2001).

9. “The criteria to be used in deciding the retroactivity of new constitutional rules of criminal procedure are: (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. Thus, a judicial decision in a criminal case is to be given prospective application only if: (a) It established a new principle of law; (b) its retroactive application would retard its operation; and (c) its retroactive application would produce inequitable results.” Syl. Pt. 5, State v. Blake, 197 W.Va. 700, 478 S.E.2d 550 (1996).

10. “In determining whether to extend full retroactivity, the following factors are to be considered: First, the nature of the substantive issue overruled must be determined. If the issue involves a traditionally settled area of law, such as contracts or property as distinguished from torts, and the new rule was not clearly foreshadowed, then retroactivity is less justified. Second, where the overruled decision deals with procedural law rather than substantive, retroactivity ordinarily will be more readily accorded. Third, common law decisions, when overruled, may result in the overruling decision being given retroactive effect, since the substantive issue usually has a narrower impact and is likely to involve fewer parties. Fourth, where, on the other hand, substantial public issues are involved, arising from statutory or constitutional interpretations that represent a clear departure from prior precedent, prospective application will ordinarily be favored. Fifth, the more radically the new decision departs from previous substantive law, the greater then need for limiting retroactivity. Finally, this Court will also look to the precedent of other courts which have determined the retroactive/prospective question in the same area of the law in their overruling decisions.” Syl. Pt. 5, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979).

11. State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006) stated a new rule of criminal procedure that is non-retroactive and is to be given prospective application only.

Steven K. Mancini, Esq., Beckley, WV, for Petitioner.

Darrell V. McGraw, Jr., Esq., Attorney General, Barbara H. Allen, Esq., Assistant Attorney General, Charleston, WV, for Respondent.

WORKMAN, Justice:

Petitioner Franklin Junior Kennedy (hereinafter “Kennedy”) appeals the Circuit Court of McDowell County's September 23, 2010,

[735 S.E.2d 910]

order denying his motion for a new trial. Kennedy was convicted in 1996 of the first degree murder of Lashonda Viars and sentenced to life in prison with mercy. This is Kennedy's second appeal of that conviction; his conviction was first upheld on direct appeal to this Court in 1999 in State v. Kennedy, 205 W.Va. 224, 517 S.E.2d 457 (1999), overruled by State v. Mechling, 219 W.Va. 366, 633 S.E.2d 311 (2006) (hereinafter “Kennedy I ”). In his initial appeal, among other assignments of error, Kennedy asserted that admission of an autopsy report without the accompanying testimony of the authoring pathologist violated the Confrontation Clause of the United States and West Virginia Constitutions. As a result of our decision in Mechling (which overruled Kennedy I as to our holding on the Confrontation Clause issue), Kennedy filed another motion for a new trial. The circuit court denied the motion; this appeal followed. Although we agree that admission of the autopsy report and testimony reiterating its contents violated the Confrontation Clause under our current caselaw, for the reasons that follow, this Court affirms the circuit court's denial of Kennedy's motion for new trial.

I. FACTS AND PROCEDURAL HISTORY

On July 28, 1994, the body of fifteen-year-old Lashonda Viars was found in Bartley, West Virginia; she died as the result of a head wound. Kennedy was arrested the same day and charged with murder. At Kennedy's trial, the State introduced a blood sample of the victim found on the exterior of Kennedy's vehicle, testimony that Viars was spotted arguing with Kennedy on the night of the murder, an eyewitness placing Kennedy's vehicle at the location where the body was discovered, a separate eyewitness who saw Kennedy on the night of the murder with blood on his arm, and forensic testimony regarding cause of death.

To provide the forensic testimony, the State called Dr. Zia Sabet, a pathologist with the State Medical Examiner's office. During Dr. Sabet's testimony, the State also introduced the autopsy report which had been prepared by Dr. Samuel Livingston, a pathologist formerly with the Medical Examiner's Office, and photographs from the autopsy. Dr. Livingston had moved to Syracuse, New York at the time of trial and did not testify. The autopsy report, over objection of defense counsel,¹ was admitted into evidence; the defense did not object to the autopsy photographs. The autopsy report contained a description of the body, the wounds, the results of microscopic examination, as well as Dr. Livingston's “diagnoses” and “opinion.” ²

Dr. Sabet offered testimony regarding the general methodology of performing autopsies and utilized the autopsy photographs to illustrate various types of injuries found on the victim. He then testified that the cause of death was “multiple blunt force trauma to the head.” Dr. Sabet also offered testimony about observations he made during his review of the autopsy photographs and the victim's clothing; in particular, he noted non-fatal...