State v. Thomas, No. 20676

• Court: Supreme Court of West Virginia
• Writing for the Court: NEELY
• Citation: 421 S.E.2d 227,187 W.Va. 686
• Parties: STATE of West Virginia, Appellee, v. Marvin John THOMAS, Appellant.
• Docket Number: No. 20676
• Decision Date: 15 July 1992

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421 S.E.2d 227 187 W.Va. 686 STATE of West Virginia, Appellee,
v.
Marvin John THOMAS, Appellant. No. 20676. Supreme Court of Appeals of
West Virginia. Submitted April 28, 1992.
Decided July 15, 1992.

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[187 W.Va. 688] Syllabus by the Court

1. "When senior appellate courts have concluded that a test is generally accepted by the scientific community, a trial court may take judicial notice of a test's reliability." Syl. Pt. 2, State v. Woodall, 182 W.Va. 15, 385 S.E.2d 253 (1989).

2. There is nothing inherently unreliable in statistical evidence based on blood-typing and enzyme tests. First, blood tests themselves are reliable when properly conducted, and these tests are valuable only when their results are placed in the context of statistical probabilities.

3. "A prosecution that withholds evidence which if made available would tend to exculpate an accused by creating a reasonable doubt as to his guilt violates due process of law under Article III, Section 14 of the West Virginia Constitution." Syl. Pt. 4, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982).

4. When the government performs a complicated test on evidence that is important to the determination of guilt, and in so doing destroys the possibility of an independent replication of the test, the government must preserve as much documentation of the test as is reasonably possible to allow for a full and fair examination of the results by a defendant and his experts.

5. Reviewing courts should grant magistrates deference when reviewing warrants for probable cause. Such warrants should be judged by a "totality-of-the-circumstances" test.

6. Because probable cause cannot be reduced to an exact numerical probability, it is possible that identical facts can lead to probable cause to search the premises of or possessions of more than one person.

7. When false or unreliable information is present in an affidavit supporting a search warrant, the warrant is not invalid if, when the false or unreliable information is omitted, probable cause for granting the warrant still exists in the affidavit.

Teresa A. Tarr, Asst. Atty. Gen., Mario J. Palumbo, Atty. Gen., Charleston, for appellee.

George Cosenza, Cosenza & Underwood, Parkersburg, for appellant.

NEELY, Justice:

A jury convicted Marvin John Thomas of murder in the first degree, sexual assault in the first degree and abduction. Mr. Thomas now appeals, and we reverse and remand.

I.

On 28 November 1986, Janet Miller, the victim of the alleged crimes, appeared in Parkersburg to visit her boyfriend Jeffrey Mosier. ¹ Ms. Miller went to the Player's Club, where she found Mr. Mosier and they argued. Defendant, Marvin John Thomas, bought Ms. Miller a drink. A short time later, after further argument between Mr. Mosier and Ms. Miller, Mr. Thomas asked Ms. Miller to dance. Ms. Miller accepted, and the couple danced one slow dance and went their separate ways within the Club.

Around 11:00 p.m., Ms. Miller left the Player's Club. Defendant Thomas was seen leaving the club a little later than Ms. Miller. Mr. Mosier seemed upset but stayed a while longer, leaving at 11:45 p.m. Both Mr. Mosier and the defendant, Mr. Thomas, claimed they went straight home and went to sleep. Defendant's mother and sister testified that defendant was home by 12:30 a.m., while Mr. Mosier allegedly

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[187 W.Va. 689] made a telephone call to a friend when he arrived home.

The next morning, Mr. Mosier found the victim's car still in the parking lot of the Player's Club and left a note, saying:

I knew you would do this. It's 5:30 a.m. and I am going to work. How about you! Ha. Hope it was good and you didn't catch anything. You are a bitch, just like the rest.

Transcript at 647. Meanwhile, the police had begun to search for Janet Miller after the hotel where she had been staying reported her missing. Janet Miller was next seen on 10 December 1986 when her body was discovered at the closed Sundowner Drive-In.

The investigation of Ms. Miller's murder focused on two persons: Mr. Mosier (the victim's boyfriend) and the defendant. The Parkersburg police contacted the F.B.I. Psychological Evaluation Unit. The Parkersburg police related a description of the circumstances surrounding the disappearance and murder to the F.B.I., and the F.B.I. gave the police a psychological profile of the likely murderer. ² The police were able to fit both Mr. Thomas and Mr. Mosier into the profile. The F.B.I. examined the victim's car and found the fingerprints of Mr. Mosier, but not the fingerprints of the defendant.

The police, unable to differentiate any further between the suspects, sought search warrants to search the cars and homes of both suspects. Detective G.A. Waybright obtained the warrant to seize Mr. Thomas' car. In his affidavit, Detective Waybright averred:

Due to the association of Marvin John Thomas with Janet S. Miller in the Player's Club, the discrepancies in his statements given to Detective Bureau personnel ... and the similarities between the personalities of Marvin John Thomas and that of the murderer indicated in the Federal Bureau of Investigations [sic] Psychological Profile, your affiant has reason to believe and does believe that Marvin John Thomas was involved in the abduction, assault and subsequent murder of Janet S. Miller. [Emphasis added]

Affidavit Supporting Search Warrant dated 12 December 1986 at 8. One factor that Det. Waybright relied upon in his affidavit to link Mr. Thomas to the psychological profile was a report that Mr. Thomas had at one time physically abused an ex-girlfriend, Jennifer Moorehead. This was a false report that Det. Waybright later attributed to a "miscommunication."

In an affidavit sworn in front of the same judge at the same time, a different officer, Detective J. M. Spellacy, sought a search warrant to seize Mr. Mosier's car. Primarily relying on the identical facts, the same F.B.I. psychological profile and a failed polygraph examination, Det. Spellacy swore in his affidavit, "[y]our affiant believes and has cause to believe that the crime of first degree murder of Janet S. Miller was committed by one Jeffrey L. Mosier. [Emphasis added]" Affidavit Supporting Search Warrant dated December 12, 1986, at 9. Despite the fact that two officers, working together and relying on the same facts, each swore that they believed that a different person committed the crime, Judge Gustke (the same judge who conducted the trial) found probable cause to issue both search warrants.

Under authority of the warrants, the cars were seized and sent to the F.B.I. crime lab. The F.B.I. thoroughly searched and examined both cars. The F.B.I. agents reported that they found nothing of significance in their search of either Mr. Mosier's or Mr. Thomas' car. Upon completion of its examination of the cars, the F.B.I. returned both cars to the Parkersburg police impound lot. The Parkersburg police then searched Mr. Thomas' car a second time. They ripped out the right back seat cover and left rear floor mat, and sent them back to the F.B.I. lab for further examination. This time, the F.B.I. found one tiny bloodstain on the bottom of the back seat cover and a solitary hair on the floor mat.

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[187 W.Va. 690] Despite the bloodstain's age, small size and unknown history, the F.B.I. performed an electrophoresis examination on the sample. Special Agent Randall Murch, who conducted the test, concluded that 1.3 percent of white people have the combination of enzymes discovered in the bloodstain and that Janet Miller was in that small group. In order to perform the electrophoresis test, however, the F.B.I. used up the entire bloodstain sample. Defendant had no opportunity to have an expert perform an independent analysis of the evidence, nor were the FBI's slides or other raw data available for independent examination by defense experts. The only evidence that could be presented to the jury was the oral testimony of the FBI expert and difficult-to-decipher lab notes.

II.

Defendant alleges several errors relating to the electrophoresis tests. Defendant asserts that: electrophoresis tests of bloodstains are inherently unreliable; the test performed in this case was performed on unreliable materials; and, the destruction of the entire bloodstain without preserving some of the material that was tested or photographs of the test results themselves for independent analysis violated Brady v. Maryland and the Sixth Amendment.

A.

In State v. Woodall, we held:

We find nothing inherently unreliable in statistical evidence based on blood-typing and enzyme tests. First, blood tests themselves are reliable when properly conducted, and these tests are valuable only when their results are placed in the context of statistical probabilities. [Emphasis added]

182 W.Va. 15, 385 S.E.2d 253, 261 (1989). Nothing in scientific research since 1989 has forced us to re-examine this holding. ³

Solely because electrophoresis testing in general is reliable, however, is no assurance that the test performed in any given circumstance, no matter how bizarre, is necessarily reliable. Indeed, most of the criticism leveled against forensic use of electrophoresis comes not from objections that the test is inaccurate per se, but rather from objections to the specific methodology employed in performing a particular test.

In her letter, The Misapplication of Genetic Analysis in Forensic Science, 29 J. Forensic Sci. 8 (1984), Dr. Diane Juricek identifies several factors in electrophoresis testing that could result in a wrong result. Dr. Juricek cites such factors as age, exposure to heat, and possible contamination that can all lead to incorrect results. Although it is possible to control for most known factors, ⁴ such control cannot be automatically

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[187 W.Va. 691] presumed in the conduct of an electrophoresis test.

In a follow-up letter, Dr. Juricek clarifies her position and describes the methods for...