State v. Osakalumi
| Citation | 194 W.Va. 758,461 S.E.2d 504 |
| Decision Date | 19 July 1995 |
| Docket Number | No. 22614,22614 |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Kanju OSAKALUMI, Defendant Below, Appellant. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court
1. Syl.pt. 1, State v. Bonham, 173 W.Va. 416, 317 S.E.2d 501 (1984).
2. When the State had or should have had evidence requested by a criminal defendant but the evidence no longer exists when the defendant seeks its production, a trial court must determine (1) whether the requested material, if in the possession of the State at the time of the defendant's request for it, would have been subject to disclosure under either West Virginia Rule of Criminal Procedure 16 or case law; (2) whether the State had a duty to preserve the material; and (3) if the State did have a duty to preserve the material, whether the duty was breached and what consequences should flow from the breach. In determining what consequences should flow from the State's breach of its duty to preserve evidence, a trial court should consider (1) the degree of negligence or bad faith involved; (2) the importance of the missing evidence considering the probative value and reliability of secondary or substitute evidence that remains available; and (3) the sufficiency of the other evidence produced at the trial to sustain the conviction.
3. "This Court will not consider an error which is not preserved in the record nor apparent on the face of the record." Syl. pt. 6, State v. Byers, 159 W.Va. 596, 224 S.E.2d 726 (1976).
4. "To trigger application of the 'plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. pt. 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995).
Darrell V. McGraw, Jr., Attorney General, Katherine Rafter, Assistant Attorney General, Charleston, for appellee.
David C. Smith, Johnston, Holroyd & Associates, Harold B. Wolfe, III, Akers & Wolfe, Princeton, for appellant.
This is an appeal from appellant Kanju Osakalumi's January 21, 1994 conviction, by a jury, of first-degree murder. Appellant was sentenced by the Circuit Court of Mercer County, West Virginia to life imprisonment with the possibility of parole. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. For the reasons stated below, the appellant's conviction is reversed and this case is remanded for a new trial. I.
On or about June 13, 1991, appellant and several other residents of New York City travelled to the home of Allison Charlton in Bluefield, West Virginia, bringing with them an assortment of drugs and firearms. On the afternoon of June 14, 1991, one of the persons from New York City, sixteen-year old Chandel Fleetwood, died from a single gunshot wound to the head. 1
Appellant maintains that the victim was under the influence of marihuana when he loaded one round of ammunition into a .357 magnum revolver, spun the cylinder, put it to his own head and shot himself. Appellant and the others who were present took the body to a wooded area approximately one mile away. They also disposed of the victim's revolver and a bloodied cushion from the couch on which the victim was sitting. The following day, appellant and his friends returned to New York City.
Subsequently, officers from the Bluefield Police Department began hearing rumors that someone had been shot at the Charlton home. In January of 1992, approximately seven months after Chandel Fleetwood's death, Detectives Wilson and Miller visited the Charlton home. Upon observing the bloodied couch, 2 the detectives took samples from it as well as from the carpet surrounding it. However, they left the home without seizing the couch.
Approximately two months later, in March of 1992, police officers returned to the Charlton home, where they had left the bloodied couch, and, upon further inspection of the couch, discovered a bullet hole in it. Through a tear in a couch cushion, Detective Ted Jones inserted a writing pen into the bullet hole to determine the trajectory of the bullet. 3 He extracted a badly deformed bullet as well as some hair and bone fragments. Once again, the officers left without seizing the couch. However, they returned to the Charlton home two days later, at which time they confiscated the couch and stored it at the police department.
Shortly thereafter, when it was subsequently determined that the bloodied couch, which apparently emitted an unpleasant odor, was both a fire and health hazard, the police, with the consent of the office of the Mercer County Prosecuting Attorney, disposed of the couch at the Mercer County landfill. Prior to discarding it, however, the police failed to measure either the proportions of the couch, the location of the bullet hole on the couch, or the trajectory of the bullet. The police likewise failed to properly photograph either the couch or the bullet hole. Though several photographs were taken, they depict only portions of the couch and are essentially of no evidentiary value.
In May of 1993, almost two years after the death of Chandel Fleetwood, a passerby discovered the skeletal remains later determined to be those of Fleetwood. Appellant, who had no prior criminal record, was later arrested by the Mount Vernon (New York) Police Department. In a videotaped statement admitted at trial, appellant recounted Fleetwood's death by Russian Roulette and the subsequent panic experienced by him and the others who were present, leading them to dispose of the body in a nearby wooded area. 4
The only evidence that Chandel Fleetwood had been murdered was the trial testimony of Dr. Irvin Sopher, medical examiner for the State of West Virginia. Dr. Sopher testified that in March of 1992, approximately nine months after Fleetwood's death but approximately fourteen months before his body was found, Detective Jones delivered to him the bullet, blood samples and bone fragments. In addition, Detective Jones, drew, from memory, a diagram of the couch, which obviously included no information as to its height, width or length or the location of the bullet hole in relation thereto.
At trial, in January of 1994, it was revealed that the diagram of the couch drawn from memory by Detective Jones for Dr. Sopher had been lost. Nevertheless, during direct examination, Dr. Sopher, who had never seen the couch, drew Detective Jones' couch diagram from memory. Dr. Sopher testified that based upon examination of the skull and the purported right to left, straight line trajectory of the bullet through the couch, the manner of death of Chandel Fleetwood was homicide. Dr. Sopher testified that he came to this conclusion when he lined up the trajectory of the bullet through the skull with the right to left path of the bullet through the couch, as drawn by Detective Jones. Dr. Sopher determined that Fleetwood was held down on the couch and was shot through the head, with the bullet travelling in a straight line. 5 It is clear from Dr. Sopher's testimony that the trajectory of the bullet through the couch was paramount to his determination that Chandel Fleetwood's death was the result of a homicide, and not suicide. 6
Appellant introduced several experts whose testimony directly challenged significant aspects of the State's evidence. Ronald W. Dye, a firearms examiner and forensic scientist testified that the trajectory of a bullet through a couch could not be accurately determined where the couch had subsequently been sat, slept and played upon for seven months. Mr. Dye testified that, in light of the activity which occurred on the couch but depending on the amount of stuffing in the couch, the bullet may have moved from the sight where it was originally lodged. Given that the couch was destroyed prior to trial, Mr. Dye was obviously unable to examine it.
Furthermore, Mr. Dye indicated that is unlikely that a bullet which passes through a body and a couch will travel in a straight line, as Dr. Sopher testified. Mr. Dye further indicated that a hollow point bullet, such as the one extracted from the couch, "deforms and mushrooms" thereby changing the flight path of the bullet from a straight line path. Finally, Mr. Dye testified that if he were unable to see the bullet through the bullet hole in the couch, he would have x-rayed the couch in order to locate it and then, using a scientific equation, would have been able to accurately determine the angle of the bullet.
In addition to the expert testimony of Mr. Dye, appellant introduced expert William Anthony Cox, a forensic pathologist. Dr. Cox examined the skull of Chandel Fleetwood, particularly the entrance and exit wound of the bullet, and testified that it is impossible to determine that the bullet travelled in a straight line, as Dr. Sopher testified. Dr. Cox concurred with Mr. Dye's testimony that a hollow point bullet tends to easily deform when it hits a hard object such as bone. As a result, the bullet deviates from its straight line path.
Moreover, Dr. Cox disagreed with Dr. Sopher's conclusion that Fleetwood's head was pressed against a couch cushion based upon the fact that bone fragments were found in the couch. Dr. Cox stated that when a bullet travels through a skull, it carries with it bone and other matter. Thus, the fact that bone fragments were found in the couch does not necessarily mean that Fleetwood's head was held down against a cushion when the weapon was discharged. Finally, Dr. Cox indicated that the couch diagram drawn by Dr. Sopher had no validity.
At the...
To continue reading
Request your trial
-
State v. Miller
...also United States v. Olano, 507 U.S. 725, 732-37, 113 S.Ct. 1770, 1776-79, 123 L.Ed.2d 508, 518-21 (1993); Syl. Pt. 4, State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995). In Miller, we explained "[t]he 'plain error' doctrine grants appellate courts, in the interest of justice, the au......
-
State v. Dennis
...raised before the trial court so that a proper examination could be undertaken either in the court below or here. State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995). The final error alleged involved remarks made during the closing argument by the prosecutor. The record shows that the ......
-
Pena v. State
...State v. Ferguson, 2 S.W.3d 912, 917 (Tenn.1999); State v. Delisle, 162 Vt. 293, 648 A.2d 632, 642-43 (1994); State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504, 511-12 (1995). The various balancing tests employed by the other seven states which have rejected the Youngblood standard are subs......
-
State v. Youngblood
...281 (1988). The facts in the instant case do not implicate the facts underpinning Arizona v. Youngblood. See Syl. pt. 2, State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995) ("When the State had or should have had evidence requested by a criminal defendant but the evidence no longer exi......
-
Discovery
...unfair.” See also, State v. Morales (1995) 232 Conn 707, State v. Ferguson (Tenn. 1999) 2 S.W.3d 912, State v. Osakalumi (1995) 194 W.Va. 758, State v. Delisle (1994) 162 Vt. 293, Ex Parte Gingo (Ala. 1992) 605 So.2d 1237, Commonwealth v. Henderson (1991) 411 Mass. 309, State v. Matafeo 199......
-
Other grounds for suppressing confessions
...• Utah State v. Tiedemann , 162 P.3d 1126 (2007) • Vermont State v. Delisle , 648 A.2d 632 (1994) • West Virginia State v. Osakalumi , 461 S.E.2d 504 (1994) Even if your state has adhered to Youngblood in previous rulings, argue that position should be reviewed in light of the fact that Mr.......
-
Other grounds for suppressing confessions
... Utah State v. Tiedemann , 162 P.3d 1126 (2007) Vermont State v. Delisle , 648 A.2d 632 (1994) West Virginia State v. Osakalumi , 461 S.E.2d 504 (1994) Even if your state has adhered to Youngblood in previous rulings, argue that position should be reviewed in light of the fact that Mr.......
-
Other Grounds for Suppressing Confessions
... Utah State v. Tiedemann , 162 P.3d 1126 (2007) Vermont State v. Delisle , 648 A.2d 632 (1994) West Virginia State v. Osakalumi , 461 S.E.2d 504 (1994) Even if your state has adhered to Youngblood in previous rulings, argue that position should be reviewed in light of the fact that Mr.......