State v. Kennedy

• Decision Date: 25 May 1999
• Docket Number: No. 25367.,25367.
• Citation: 517 S.E.2d 457,205 W.Va. 224
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Appellee, v. Franklin Junior KENNEDY, Appellant.

517 S.E.2d 457

205 W.Va. 224

STATE of West Virginia, Appellee, v. Franklin Junior KENNEDY, Appellant.

No. 25367.

Supreme Court of Appeals of West Virginia.

Submitted March 25, 1999.

Decided May 25, 1999.

Darrell V. McGraw, Jr., Esq., Attorney General, Scott E. Johnson, Esq., Senior Assistant Attorney General, Charleston, West Virginia, Attorneys for Appellee.

Steven K. Mancini, Esq., Assistant Public Defender, Welch, West Virginia, Attorney for Appellant. WORKMAN, Justice:

Appellant Franklin Junior Kennedy appeals his conviction for first degree murder. He challenges his conviction on four grounds: violation of his constitutional right to confront witnesses; prosecutorial misconduct; newly-discovered evidence; and error with regard to instructions the trial court made concerning a rejected plea agreement. After examining each of these assignments, we find no reversible error. Accordingly, we affirm the decision of the lower court.

I. Factual and Procedural Background

On July 28, 1994, the body of fifteen-year-old Lashonda Viars was discovered in Bartley, West Virginia. Ms. Viars died as a result of a severe head wound. Appellant was arrested that same day and charged with murder. At the trial held on November 20 and 21, 1996, Appellant testified that his wife, Tonya Kennedy,¹ had committed the murder. The evidence presented by the State at trial included a blood sample of the victim taken from the exterior of Appellant's personal vehicle;² the autopsy of the victim; testimony placing Appellant with Ms. Viars on the night of the murder; and testimony of investigative law enforcement officers. Following a jury conviction for first degree murder with a recommendation of mercy, Appellant is serving a life sentence with parole eligibility.

Appellant has twice filed motions for a new trial, both of which have been denied by the trial court. On October 15, 1997, Appellant sought a new trial on grounds of newly-discovered evidence. Several months later, he asserted prosecutorial non-disclosure as grounds for a second new trial motion. Through this appeal, Appellant seeks a reversal of his conviction, or alternatively, a new trial.

II. Constitutional Right to Confront Witness

Appellant asserts that his constitutional right to confront witnesses that testify against him³ was violated when Dr. Sabet, a pathologist employed by the Office of the Medical Examiner, gave trial testimony concerning the pathology report which was prepared in June 1994 by Dr. Livingston. Dr. Livingston was no longer employed in the Charleston medical examiner's office at the time of trial.⁴ Appellant asserts that the State failed to demonstrate its good faith efforts to secure Dr. Livingston's presence at trial in violation of State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

In James Edward S., this Court established a two-prong standard concerning the admission of extrajudicial testimony. Adopting the rulings of the United States Supreme Court in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), we held that "[t]he two central requirements for admission of extrajudicial testimony under the Confrontation Clause contained in the Sixth Amendment to the United States Constitution are: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliability of the witness's out-of-court statement." Syl. Pt. 2, James Edward S.,184 W.Va. at 410,400 S.E.2d at 845. To demonstrate a witness's unavailability under James Edward S., a proponent of an extrajudicial statement is required to show evidence establishing a good-faith effort towards securing the witness's presence at trial. See id. at 410, 400 S.E.2d at 845, syl. pt. 3. Since the record is devoid of the State's efforts to secure Dr. Livingston's presence at trial, Appellant maintains that the State failed to meet the requirements imposed by James Edward S. for admitting an extrajudicial statement of an unavailable witness.

After initially positing that Appellant failed to preserve an objection on Confrontation Clause grounds,⁵ the State argues that the law upon which this Court relied in making its rulings in James Edward S.⁶ was modified on two separate occasions and no longer supports the holding reached in that decision. The United States Supreme Court first modified its Roberts decision by stating in United States v. Inadi, 475 U.S. 387, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), that "Roberts cannot be fairly read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable." Inadi, 475 U.S. at 394,106 S.Ct. 1121. The Court unabashedly explained in Inadi that the Roberts decision was expressly limited to its facts—the admission at trial of the transcript of a probable cause hearing where a witness failed to appear despite being subpoenaed. Id. Later, in White v. Illinois, 502 U.S. 346, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), the United States Supreme Court reemphasized that "Roberts stands for the proposition that the unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding."⁷White, 502 U.S. at 354, 112 S.Ct. 736. Based on the limitations imposed by the United States Supreme Court to the Roberts decision, the State convincingly argues that James Edward S. is no longer valid precedent with regard to Appellant's contention regarding unavailability. We agree. Accordingly, we modify our holding in James Edward S. to comply with the United States Supreme Court's subsequent pronouncements regarding the application of its decision in Roberts, to hold that the unavailability prong of the Confrontation Clause inquiry required by syllabus point one of James Edward S. is only invoked when the challenged extrajudicial statements were made in a prior judicial proceeding.⁸See White, 502 U.S. at 354,

112 S.Ct. 736. Given the fact that the extrajudicial statement in this case—the autopsy report—does not involve statements given in a prior judicial proceeding, we conclude that the unavailability analysis pertinent to the Confrontation Clause inquiry under James Edward S. is not applicable.

The State persuasively reasons that even without the high court's modifications to Roberts, Appellant's constitutional right to confront witnesses against him was not invoked by virtue of the admission of the autopsy report. This is because Roberts and James Edward S. both made clear that hearsay evidence that falls under a firmly rooted exception to the hearsay rule or alternatively, when such evidence is accompanied by particularized guarantees of trustworthiness, is admissible without any affront to the Confrontation Clause. See Roberts, 448 U.S. at 66,

100 S.Ct. 2531 (stating that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception"),⁹

accord James Edward S.,

184 W.Va. at 410,

400 S.E.2d at 845, syl. pt. 5 (holding that "[r]eliability can usually be inferred where the evidence falls within a firmly rooted hearsay exception").

While Appellant states that he was unable to find a well-rooted hearsay exception which governs the admission of Dr. Livingston's autopsy report, the State argues that the autopsy report falls squarely within the hearsay exception for public records. See W.Va. Rules of Evid. 803(8)(B). That rule provides that the "following are not excluded by the hearsay rule, even though the declarant is available as a witness":

Public records and reports.—Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel....

W.Va.R.Evid. 803(8)(B). The State posits that since the office of the medical examiner is under a legal duty pursuant to the statutory provisions of West Virginia Code §§ 61-12-10 and 61-12-13 (1997)¹⁰ to perform autopsies and record the results, an autopsy report necessarily falls within the ambit of the public records hearsay exception. And, as the United States Supreme Court announced in Roberts, where the extrajudicial evidence falls within a recognized hearsay exception, the concerns inherent to the Confrontation Clause are clearly avoided. See Roberts, 448 U.S. at 66,

100 S.Ct. 2531; James Edward S.,

184 W.Va. at 410,

400 S.E.2d at 845, syl. pt. 5; accord White, 502 U.S. at 356-57,

112 S.Ct. 736 (stating "where proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied" and observing "a statement that qualifies for admission under a `firmly rooted' hearsay exception is so trustworthy that adversarial testing can be expected to add little to its reliability") (citing Idaho v. Wright, 497 U.S. 805, 820-21, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)); see also United States v. McHan, 101 F.3d 1027 (4th Cir.1996) (upholding use of deceased co-conspirator's grand jury testimony at trial after finding numerous guarantees of trustworthiness), cert. denied, 520 U.S. 1281, 117 S.Ct. 2468, 138 L.Ed.2d 223 (1997).

Numerous courts have recognized the fact that the public records exception is a firmly established exception which satisfies the Confrontation Clause. See e.g., Felzcerek v. I.N.S., 75 F.3d 112, 116 (2d Cir.1996)

; U.S. v. Wilkinson, 804 F.Supp. 263, 268 n. 6 (D.Utah 1992); State v. Powdrill, 684 So.2d 350, 358 (La.1996); People v. Stacy, 193 Mich.App. 19, 484 N.W.2d 675, 683 (1992). The United States Supreme Court recognized in Roberts that, "[p]roperly administered the ... public records exception would seem to be among the safest of the hearsay exceptions." 448 U .S. at 66 n. 8,

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