State v. Leep
| Citation | 212 W.Va. 57,569 S.E.2d 133 |
| Decision Date | 19 June 2002 |
| Docket Number | No. 30018.,30018. |
| Court | Supreme Court of West Virginia |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Samuel Aubrey LEEP, Defendant Below, Appellant. |
Ira Mickenberg, Esq., George Castelle, Esq., Kanawha County, Public Defender Office, Charleston, for the Appellant.
Darrell V. McGraw, Jr., Esq., Attorney General, Dawn E. Warfield, Esq., Deputy Attorney General, Charleston, for the Appellee. DAVIS, Chief Justice.
The defendant below and appellant herein, Samuel Aubrey Leep [hereinafter referred to as "Mr. Leep"], appeals his convictions by a Wayne County jury of one count of first degree sexual assault,1 one count of first degree sexual abuse,2 and two counts of sexual abuse by a parent,3 which convictions resulted from an alleged encounter between Mr. Leep and his then six-year-old daughter. Following the jury trial, these convictions were memorialized in a trial order entered January 3, 2000, by the Circuit Court of Wayne County. Thereafter, the circuit court, by order entered February 6, 2001,4 sentenced Mr. Leep to 15-35 years for his sexual assault conviction, 1-5 years for his sexual abuse conviction, and two terms of 10-20 years for each of his sexual abuse by a parent convictions, with all of these sentences to run concurrently.
From the trial and sentencing orders, Mr. Leep appeals to this Court claiming that the trial court erred by (1) employing the wrong standard to determine the admissibility of EIA test results;5 (2) admitting these test results into evidence; and (3) improperly commenting to the jury as to the reliability of such scientific evidence. Upon a review of the parties' arguments, the record designated for appellate review, and the pertinent authorities, we reverse the verdict of the Wayne County jury and the resultant circuit court orders, and remand this case for further proceedings consistent with this Opinion. Although we find no error attending the trial court's admission of the State's EIA test results evidence, we conclude that the court's sua sponte comments regarding the reliability thereof, which comments immediately followed the testimony of Mr. Leep's expert who questioned such reliability, constitute reversible error.
The evidence presented to the jury suggests the following facts. Mr. Leep and his wife were married in 1990, with two children being born of the marriage: a daughter, S.L.,6 in 1991, and a son, R.L., in 1993. Thereafter, Mr. and Mrs. Leep separated and ultimately were divorced by final order entered March 18, 1997. During the ensuing custody proceedings, it was determined that Mr. Leep was the primary caretaker of the couple's children, and custody of S.L. and R.L. was awarded to him. Visitation was granted to Mrs. Leep.
Following the divorce's finalization, Mrs. Leep visited her six-year-old daughter, S.L., at school on May 6, 1997, and conversed with her for approximately one-half hour. The next day, May 7, 1997, S.L. disclosed to her teacher that she and her father were taking a nap, and "when she woke up, she was on top of him and her underwear was pulled down." S.L.'s teacher relayed this information to the school's principal who, in turn, reported the incident to the Wayne County Department of Health and Human Resources [hereinafter referred to as "D.H.H.R."].7 Child Protective Services [hereinafter referred to as "C.P.S."] then began an investigation of these charges, in late May, 1997, and interviewed S.L. in accordance therewith.
Subsequently, on June 6, 1997, during an overnight visitation between the children and Mrs. Leep, S.L. told her mother of the alleged misconduct that she reported to her teacher in early May.8 Mrs. Leep then transported S.L. to Cabell-Huntington Hospital for a medical examination. During this exam, no abrasions or lacerations consistent with sexual assault or abuse were observed, however a test9 for the sexually transmitted disease, chlamydia, returned a positive result.10 This test result, dated June 9, 1997, suggested the likelihood that penetration had occurred as that is the most likely method for the transmission of this disease. Following this positive result, a repeat test was performed on June 11, 1997, which re-test also returned a positive result.11
In July, 1998, Mr. Leep was indicted by a Wayne County grand jury on the charges of first degree sexual assault,12 first degree sexual abuse,13 and sexual abuse by a parent.14 A trial was had on these charges in January, 1999, but because the jury was unable to reach a verdict, a mistrial resulted.
A hearing was had on the motion during which both parties presented expert testimony in support of their positions.15 The trial court ruled on Mr. Leep's motion at the beginning of the second trial, on December 7, 1999, outside of the hearing of the jury, and determined that such evidence would be admissible:
A prior motion was made by the defendant to exclude any evidence from the State's expert with regard to the Chlamydia testing and results. The defense has brought in substantial evidence in his motion in limine to challenge the admissibility of the State's evidence on the basis it did not fit the national guidelines. It's my belief that both methods have been testified to by the experts from both sides of this case. We have a reasonable basis in the scientific community and both are accepted by the scientific community. The procedures and the methods used by either or both goes to the weight and credibility that should be given to the methods used in the Chlamydia testing. Therefore, I think it's a factual issue for the jury to determine and can be handled and addressed appropriately on cross examination and rebuttal with the expert that the defense has presented. Therefore, I will rule that the State's testing is admissible. It may be cross examined and challenge[d] through rebuttal of an expert witness as to its weight and credibility.
The second trial on the aforementioned charges resulted in a December 8, 1999, jury verdict of guilty, and corresponding convictions of one count of first degree sexual assault, one count of first degree sexual abuse, and two counts of sexual abuse by a parent. These convictions were memorialized in the circuit court's January 3, 2000, trial order. By sentencing order entered May 22, 2000,16 the circuit court sentenced Mr. Leep to 15-35 years for his sexual assault conviction, 1-5 years for his sexual abuse conviction, and two terms of 10-20 years for each of his convictions of sexual abuse by a parent, with all sentences to run concurrently. From these orders, Mr. Leep appeals to this Court.
The instant appeal presents numerous assignments of error for our consideration and decision. Given the diversity of issues presented, and the various standards of review applicable thereto, specific standards of review will be discussed in conjunction with the alleged errors to which they pertain. Generally, however, verdicts rendered by a jury in criminal cases are accorded great deference:
"A reviewing court should not reverse a criminal case on the facts which have been passed upon by the jury, unless the court can say that there is reasonable doubt of guilt and that the verdict must have been the result of misapprehension, or passion and prejudice." Syllabus point 3, State v. Sprigg, 103 W.Va. 404, 137 S.E. 746 (1927).
Syl. pt. 1, State v. Easton, 203 W.Va. 631, 510 S.E.2d 465 (1998). Mindful of this general standard of review, we proceed to consider the parties' arguments.
On appeal to this Court, Mr. Leep raises three assignments of error: (1) the trial court employed the wrong standard to determine the admissibility of EIA test results; (2) the trial court admitted the EIA test results into evidence; and (3) the trial court improperly commented to the jury as to the reliability of such scientific evidence. We will address each of these issues in turn.
Mr. Leep first complains that the trial court employed the wrong standard to determine the admissibility of certain scientific evidence proffered by the State. The scientific evidence in issue is EIA test results demonstrating that Mr. Leep's daughter tested positive for the sexually transmitted disease chlamydia. In this assignment of error, Mr. Leep contends that, in determining the admissibility of such test results, the trial court erroneously employed the Frye17 standard which has since been overruled by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993). The State responds that the trial court's use of the overruled Frye standard does not constitute reversible error as that prior standard is more stringent than the current admissibility criteria enumerated in Daubert, Wilt, and Rule 702 of the West...
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