State v. Ward, 19797

• Decision Date: 29 July 1991
• Docket Number: No. 19797,19797
• Citation: 188 W.Va. 380,424 S.E.2d 725
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Phillip A. WARD, Defendant Below, Appellant.

Page 725

424 S.E.2d 725

188 W.Va. 380

STATE of West Virginia, Plaintiff Below, Appellee, v. Phillip A. WARD, Defendant Below, Appellant.

No. 19797.

Supreme Court of Appeals of

West Virginia.

Submitted May 15, 1991.

Decided July 29, 1991.

Syllabus by the Court

1. Where a trial court is presented with a defendant's failure to disclose the identity of witnesses in compliance with West Virginia Rule of Criminal Procedure 16, the trial court must inquire into the reasons for the defendant's failure to comply with the discovery request. If the explanation offered indicates that the omission of the witness' identity was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, it is consistent with the purposes of the compulsory process clause of the sixth amendment to the United States Constitution and article II, section 14 of the West Virginia Constitution to preclude the witness from testifying.

2. " 'Where a sequestered witness does not withdraw when ordered, or afterwards returns into the courtroom and is present during the examination of other witnesses, it is discretionary with the judge whether or not he will allow this witness to be examined.' Syllabus Point 7, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974)." Syl.Pt. 3, State v. Steele, 178 W.Va. 330, 359 S.E.2d 558 (1987).

3. The preclusion of testimony by a defense witness for violating a court's sequestration order is permissible where such violation vitiated the integrity of the evidence sought to be presented.

4. " '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.' Syllabus Point 4, State v. Hatfield, 169 W.Va. 191, 286 S.E.2d 402 (1982)." Syl.Pt. 4, State v. Fortner, 182 W.Va. 345, 387 S.E.2d 812 (1989).

5. " 'In a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused.' Syl. pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944)." Syl.Pt. 2, State v. Mayle, 178 W.Va. 26, 357 S.E.2d 219 (1987).

Teresa A. Tarr, Asst. Atty. Gen., for appellee State of W.Va.

Frank W. Helvey, Jr., Public Defender, Charleston, for appellant.

WORKMAN, Justice:

This case is before the Court upon the appeal of Phillip A. Ward from the February 25, 1988, final order of the Circuit Court of Cabell County sentencing the defendant to life imprisonment without parole based upon his October 20, 1987, jury convictions of one count of murder in the first degree without a recommendation of mercy and one count of aggravated robbery. ¹ The appellant alleges that the following errors were committed at the lower court level: 1) the trial court committed reversible error by its refusal to permit the defendant's rebuttal witness to testify; 2) the defendant was denied a fair trial because the state failed to disclose exculpatory evidence to him; and 3) the jury voir dire by the trial court, with defense counsel's acquiescence, was so deficient as to have denied the defendant a trial by an impartial jury. Upon a review of the record, the petition, the briefs and oral arguments and all other matters of record, we find no error was committed by the lower court and accordingly affirm.

On May 3, 1987, the victim, Carol Carter, was last seen alive at her place of employment, a Wendy's restaurant in Huntington, West Virginia, where she was the night manager. According to the testimony of Craig Sigler who was also an employee at Wendy's, he got off work around 8:00 p.m. on May 3. He later returned to the restaurant around 11:30 p.m. to see when the defendant, who was also an employee at Wendy's was getting off from work. ² At this time, the defendant left Wendy's with Sigler to go to Tradewell Supermarket so that Sigler could meet a girl. They returned to the restaurant approximately ten minutes later. The victim remained at Wendy's to finish some paper work.

Sigler testified that when he and the defendant returned to the restaurant, the victim let them back inside. Once inside, both Sigler and the defendant made some phone calls from the phone in the restaurant kitchen. The phone calls, according to Sigler, were placed at around 12:15 a.m. The two men then proceeded with the victim into the restaurant dining area where they proceeded to engage in conversation.

The threesome decided to leave the restaurant, and according to Sigler, they got as far as the parking lot when the victim went back inside the restaurant. Sigler testified that he got into his car and drove away. Sigler also testified that the appellant was by his car preparing to get in when he drove away. While Sigler was uncertain as to what time he left the restaurant, he did testify that he arrived at his home around 12:37 a.m. The witness stated that it takes approximately five or six minutes to drive from Wendy's to his home.

On May 4, 1987, the store manager, Danny O'Brien, arrived at Wendy's before 5:45 a.m. He testified that upon his arrival, he saw the victim's car still on the parking lot. Upon closer inspection, O'Brien also noticed the victim's keys and contact lens case lying on the sidewalk just outside the restaurant's unlocked front entrance. O'Brien then notified the Cabell County Sheriff's Department. When a deputy arrived at the scene, both he and O'Brien went into the store following a path of blood which led to the kitchen. The two men also went into the office area where, according to O'Brien's testimony, approximately $1,348.09 was missing.

Shortly thereafter, other deputies who had arrived at the scene discovered Carter's partially clad body behind an adjacent furniture store. The medical examiner, Dr. Irvin M. Sopher, testified that the cause of the victim's death was multiple blows to the head resulting from a cinderblock which was found near the crime scene. Dr. Sopher also testified that the victim's death occurred between midnight and 2:00 a.m. on May 4, 1987.

Further evidence offered at trial revealed that the defendant was an inmate ³ at the Huntington Work Release Center ⁴ (hereinafter referred to as HWRC), and had worked at Wendy's for about a year. In September 1986, the Department of Corrections had authorized him to live at his mother's home in Huntington, subject to reporting and curfew restrictions. According to the testimony of Andrea Hefner, the defendant's girlfriend, both she and the defendant moved out of the defendant's mother's home in late February 1987, without notifying the HWRC. However, at the time of Carter's death, Hefner testified that the two were again staying at the defendant's mother's home, because electric service had been disconnected at their apartment on May 1, 1987, due to nonpayment of the electric bill.

No one was able to testify as to what time the defendant arrived back at his mother's home after he got off from work on May 4, 1987. Although Hefner did testify that while she went to sleep around 11:30 p.m. the previous night and did not know when the defendant arrived at home, she did see his car parked out in front of the house when she looked out the window sometime between 2:00 a.m. and 3:00 a.m. in the morning. She indicated that she did not see the defendant until 9:00 a.m. when he awakened her and told her that he had just returned home after having earlier that morning been called back to work.

The evidence revealed that prior to May 4, 1987, the defendant and his girlfriend had no money, yet on that day not only did the defendant's girlfriend have $200.67 ⁵ to pay the overdue electric bill, but also the defendant had $271.00 with which to purchase and have installed a new car stereo at the Pied Piper in Huntington. ⁶ Further, the police obtained Appalachian Power Company's night cash deposit and examined the currency therein only to discover a bloodstained $20.00 bill. The evidence at trial revealed that the bloodstains discovered on the bill had the same characteristics as the victim's blood. The state's expert in serology testified that the victim's ABO blood type and blood characteristics were consistent with a bloodstain found on a five dollar bill retrieved from the defendant's wallet upon his arrest and with a bloodstain on a one dollar bill which was in a knapsack found in the defendant's neighbor's water-filled trash barrel. ⁷ There were no bloodstains found on the Pied Piper money. Moreover, the expert testified that only .09 percent of West Virginia's general population had the same blood characteristics as the victim.

Finally, the state offered evidence of the defendant's flight. At approximately 6:40 a.m. on the morning of May 4, HWRC Deputy Administrator Karen Spoor saw the defendant at a gas station in Huntington. She testified that she questioned the defendant as to why he was not at home. The defendant told Spoor that he had been called back to work. Spoor's testimony indicated that she told the defendant that she had noticed crime scene tape and police cars at Wendy's. She then directed the defendant to contact the HWRC as soon as he finished at work. The defendant, however, did not contact the HWRC until about 3:55 p.m. Spoor testified that she took his phone call and kept him on the line while Administrator Linda Hawkins went to his mother's home, where the defendant was located when he called.

Hawkins testified that upon her arrival, she spoke with the defendant for a short while about his failure to obey Spoor's instructions. During a break in their conversation, she testified that the defendant excused himself to go upstairs to the bathroom. After a few minutes, she learned that he had fled the house on foot through a second story window. Spoor testified that corrections...