State v. Tanner

• Decision Date: 03 July 1985
• Docket Number: No. 16141,16141
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Dale TANNER.

Page 277

332 S.E.2d 277

175 W.Va. 264

STATE of West Virginia v. Dale TANNER.

No. 16141.

Supreme Court of Appeals of

West Virginia.

Submitted April 24, 1985.

Decided July 3, 1985.

Syllabus by the Court

1. "After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the State or the defendant and his attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession that relates to the subject matter concerning which the witness has testified." Rule 26.2, West Virginia Rules of Criminal Procedure.

2. "Great latitude is allowed counsel in argument of cases, but counsel must keep within the evidence, not make statements calculated to inflame, prejudice or mislead the jury, nor permit or encourage witnesses to make remarks which would have a tendency to inflame, prejudice or mislead the jury." Syl. pt. 2, State v. Kennedy, 162 W.Va. 244, 249 S.E.2d 188 (1978).

3. " 'Where a presentence report has been prepared and presented the court shall, upon request, permit the defendant, or his counsel if he is so represented, prior to imposition of sentence, to read the report exclusive of any recommendation as to sentence, but not to the extent that in the opinion of the court the report contains diagnostic opinion which might seriously disrupt a program of rehabilitation, sources of information obtained upon a promise of confidentiality or any other information which, if disclosed, might result in harm, physical or otherwise, to the defendant or other persons and the court shall afford the defendant or his counsel an opportunity to comment on the report, and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in the presentence report.' Syl. pt. 1, State v. Byrd, 163 W.Va. 248, 256 S.E.2d 323 (1979)." Syl. pt. 1, State v. Godfrey, 170 W.Va. 25, 289 S.E.2d 660 (1981).

J.C. Powell, Hardman & Powell, Parkersburg, for appellant.

Dennis R. Lewis, Asst. Pros. Atty., Parkersburg, for appellee.

PER CURIAM:

The defendant, Dale Tanner, was convicted of delivering marijuana and was sentenced to from one to five years in the State penitentiary. On appeal he makes three assignments of error: (1) that the trial court erred in refusing to allow defense counsel an opportunity to inspect an investigation report prepared by the State's principal witness; (2) that the court indicated prejudice against the defendant's case during closing argument; and (3) that the trial judge improperly denied him probation on the basis of an incomplete investigation report and improperly refused to make that report a part of the record. After reviewing the record, we conclude that the trial court erred in failing to require the production of the investigation report. For that reason we reverse the judgment of the Circuit Court of Wood County. We also conclude that the trial court should have afforded defense counsel an opportunity to inspect the probation report and that it should have been made a part of the record.

I.

During the trial of this case the State introduced evidence showing that on July 29, 1982, the defendant sold a baggie of marijuana to an undercover police officer, Damon Slone. The sale occurred at an apartment located at 1709 Lynn Street in Parkersburg, West Virginia. At the time of the sale at least five adults were present: the defendant, a police officer, Damon Slone, a police informant, Donald Venatter, David Souder, and Brenda McDonald. The testimony of both police operatives, Slone and Venatter, clearly indicated that the defendant was the person who sold marijuana to Officer Slone. The testimony of the defendant and of Brenda McDonald suggested that David Souder had been the party who conducted the sale. David Souder was called as a witness, but invoked the Fifth Amendment protection against self-incrimination.

After the defendant had introduced evidence contradicting the State's witnesses and indicating that Mr. Souder had been the party who had made the sale, the State recalled Officer Slone as a rebuttal witness. After rebutting the testimony of the defendant's witnesses, Slone indicated that he had prepared a report after purchasing the marijuana at the Lynn Street apartment. Defense counsel moved to inspect that report pursuant to Rule 26.2 of the West Virginia Rules of Criminal Procedure. The trial court denied the motion, and defense counsel took exception to the court's ruling. The defendant's first assertion on appeal is that he was entitled to inspect the report under Rule 26.2.

The portion of Rule 26.2 of the West Virginia Rules of Criminal Procedure relevant to the case at hand states:

(a) Motion for Production --After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the State or the defendant and his attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession that relates to the subject matter concerning which the witness has testified.

This Rule is patterned after Rule 26.2 of the Federal Rules of Criminal Procedure, and in applying it the Court has looked to Federal precedents for guidance. State v. Watson, 173 W.Va. 553, 318 S.E.2d 603 (1984).

In State v. Watson, this Court recognized that the refusal of a circuit court to order disclosure proper under Rule 26.2 is error. However, there is substantial Federal authority which indicates the failure to allow inspection does not always constitute prejudicial or reversible error. United States v. Bruton, 647 F.2d 818 (C.A. 8th Cir.1981); United States v. American Radiator & Standard Sanitary Corp., 433 F.2d 174 (3d Cir.1970), cert. denied, 401 U.S. 948, 91 S.Ct. 928, 28 L.Ed.2d 231 (1971); United States v. Graves, 428 F.2d 196 (5th Cir.1970), cert. denied, 400 U.S. 960, 91 S.Ct. 360, 27 L.Ed.2d 269 (1970), 2 C. Wright, Federal Practice & Procedure § 439 (1982). The question of whether the error was harmless or prejudicial hinges upon whether there was a substantial discrepancy between the contents of the prior statement or report and the witness' testimony during trial. United States v. Sink, 586 F.2d 1041 (5th Cir.1978), cert. denied, 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876 (1979); see, United States v. Tashjian, 660 F.2d 829 (1st Cir.1981); United States v. Robinson, 585 F.2d 274 (7th Cir.1978), cert. denied, 441 U.S. 947, 99 S.Ct. 2171, 60 L.Ed.2d 1051 (1979).

In the case presently before the Court, Officer Slone's investigation report is not in the record, and it is, therefore, impossible to determine whether his testimony during trial varied substantially from the contents of the report. The Court is, therefore, unable to state whether the refusal of the trial court to require the production of the report constituted reversible error.

In such situations it has been deemed appropriate to remand the case with directions that the trial court require the production of the report in accordance with the Rules of Criminal Procedure and that it make a determination of whether the report varied from the testimony adduced during trial and whether the defendant was prejudiced by the non-production. United States v. Sink, 575 F.2d 485 (5th Cir.1978). The Court is of the opinion that this should be the disposition of the case presently being considered.

II.

In the course of closing argument defense counsel stated "When you return, your verdict will be cast in stone. There will be no way that this decision can be appealed." The prosecutor objected to the statement on the ground that it constituted a misstatement of the law. Later during closing...