Wilhelm v. Whyte

• Citation: 239 S.E.2d 735,161 W.Va. 67
• Decision Date: 20 December 1977
• Docket Number: No. 13978,13978
• Parties: Wallace H. WILHELM v. William WHYTE, Superintendent, Huttonsville Correctional Center.
• Court: Supreme Court of West Virginia

Page 735

239 S.E.2d 735

161 W.Va. 67

Wallace H. WILHELM v. William WHYTE, Superintendent, Huttonsville Correctional Center.

No. 13978.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1977.

Syllabus by the Court

1. "A prosecution that withholds evidence on the demand of an accused, which, if made available would tend to exculpate him, violates due process of law." Syllabus Point 4, State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973).

2. Where it is incumbent on the State to disclose evidence favorable to an accused, such disclosure to be effective must be made at a time when the disclosure would be of value to the accused.

3. There may be occasions when the denial of a continuance in a criminal trial is so arbitrary as to violate due process, and because of the particular wording in Article III, Section 14 of the West Virginia Constitution, that the accused "shall have the assistance of counsel, and a reasonable time to prepare for his defense", there is, independent of the Due Process Clause in our Constitution, a constitutional right to a continuance if the defendant is not accorded a reasonable time to prepare his defense.

4. "A spontaneous statement by a defendant made prior to any action by a police officer and before an accusation, arrest or any custodial interrogation is made or undertaken by the police may be admitted into evidence without the voluntariness thereof first having been determined in an in camera hearing." Syllabus Point 1, State v. Johnson, W.Va., 226 S.E.2d 442 (1976).

Lawrance S. Miller, Jr., Dailey & Miller, Kingwood, for relator.

Chauncey H. Browning, Jr., Atty. Gen., William D. Highland, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

In this original proceeding in habeas corpus, petitioner urges that several errors of a constitutional magnitude occurred in his trial which resulted in his conviction of second degree murder in the Circuit Court of Preston County. He contends that the prosecuting attorney failed to comply with the general discovery order of the court, which required the prosecutor to turn over to the defense attorneys exculpatory material in the possession of the State. ¹

At the trial of the case the State produced Clarence R. Lane, who was a member of the West Virginia Department of Public Safety working with the State Police Firearms Identification Laboratory. He testified about certain ballistic tests conducted with the murder weapon. On cross-examination, it developed that Lane had made a written report of his findings. The record is clear that this report was not delivered to the defense attorneys pursuant to the court's general order, although certain other reports in the possession of the trooper had been turned over to the defense attorneys prior to the trial.

The defense attorneys, on learning of the existence of the ballistics report, moved the court for a mistrial. At a bench conference, the court examined the prosecutor concerning the failure to turn over the report, and it was the prosecutor's position that he had only learned of the existence of the report the day before. It does not appear that at the time of the bench conference the court, the prosecutor or the trooper had the report. The court indicated at the conclusion of the bench conference that, not having seen the report, he would take the motion for mistrial under advisement. The court did order that the witness Lane ". . . will remain subject to recall but the court is going to see defense counsel is given a copy of his report prior to recall. . . . You may recall the trooper after you have been furnished with a copy of the report."

Petitioner points to two matters in the report which could be considered as exculpatory insofar as his plea of self-defense was concerned. The first was the fact that after Trooper Lane had conducted certain ballistics tests, he was able to conclude from the pellet pattern on the deceased female's shirt that the shotgun was fired at the deceased when she was less than eight feet from the muzzle. He had testified to these facts on direct examination and had been cross-examined at length about them by the defense attorneys.

The second fact which had not been disclosed by Trooper Lane in his direct testimony, but which showed in his report, was the fact that:

"The fired shot entered the front of the shirt just below and to the center of the left pocket. The shot went up into the rear (if the shirt was in an upright position), with the 42 pellets lodging in the rear of the collar."

It is this last factual conclusion on which petitioner's attorneys predicate their argument. They claim this is exculpatory evidence as it bears out their client's testimony. Petitioner testified that immediately before the fatal shooting, he had spent a considerable period of time drinking with the victim and then gone to sleep in the back of the mobile home. Several friends of the decedent had come into the mobile home and awakened him with threats and abusive language. He had picked up the shotgun to chase them out, firing several warning shots while in the hallway. Upon emerging into the kitchen, carrying the shotgun, he saw the victim coming at him with a butcher knife and shot her.

Part of the State's theory rested upon the fact that immediately following the shooting, third parties found the victim seated in a chair near the kitchen table. Consequently, this suggested she had been shot while seated in the chair. The direction of travel of the pellets therefore was of some exculpatory value to the defendant as indicating the direction of firing on the victim was upward and not downward.

This Court recognized in State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174, 178-179 (1973), that the prosecutor's failure to disclose after demand evidence favorable to the accused violates the due process constitutional guarantee. There can be little doubt that the reference was to the Due Process Clause, Article III, Section 14 of the West Virginia Constitution.

State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641, 644-48 (1973), dealt extensively with an analogous question of the prosecutor's failure to comply with court-ordered discovery and the use of such non-produced material at trial to surprise the defendant. Since the material in Cowan was not exculpatory, the Court noted that Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny were not directly applicable.

The Court in Cowan utilized our criminal discovery statute, W.Va.Code, 62-1B-2, to set the standard that where a discovery motion is granted and the prosecutor fails to comply, prejudicial error may result. In determining whether the error is prejudicial, we must determine whether "the defense is surprised on a material issue" or if the non-disclosed material "hampers the preparation and presentation of the defendant's case." Syllabus, State v. Cowan, supra.

At issue in Cowan was the prosecutor's failure to turn over prior to trial an incriminating letter that the defendant had written. A discovery motion granted by the trial court required the furnishing of any oral or written statements made by the defendant. The letter was turned over to the defendant's attorney only after the prosecutor had used it to impeach the defendant. The court emphasized that the harm was the surprise to the defense, as it raised inferences as to his guilt and injected possible admissions of unrelated crimes.

Here, we are not confronted by a Cowan -type situation, where the non-disclosed material had an immediate and direct adverse impact on the defendant's case. Nor do we have the typical Brady situation where there is suppression of exculpatory material until some time after the trial.

What is involved is the late disclosure of exculpatory material. The United States Court of Appeals for the Fourth Circuit has discussed this problem in several cases. In Hamric v. Bailey, 386 F.2d 390 (4th Cir. 1967), the court granted a habeas corpus petition to a West Virginia murder conviction on the basis that the State had withheld exculpatory evidence until after the jury retired. The court concluded:

"Finally, on the issue of suppression, we conclude that disclosure of the undisclosed evidence after the jury had retired was too late to overcome the requirements of Brady. If it is incumbent on the State to disclose evidence favorable to an accused, manifestly, that disclosure to be effective must be made at a time when the disclosure would be of value to the accused. . . . Brady, to be given vitality, must be interpreted to require disclosure, at least, before the taking of the accused's evidence is complete." (386 F.2d at 393)

In United States v. Elmore, 423 F.2d 775, 779 (4th Cir. 1970), cert. denied, 400 U.S. 825, 91 S.Ct. 49, 27 L.Ed.2d 54, the court followed the Hamric rule and found no error where the exculpatory statement was furnished prior to the conclusion of the government's case.

In United States v. Anderson, 481 F.2d 685, 690 (4th Cir. 1973), aff'd, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), the court in note 2 further refined the test as to the time when exculpatory material must be produced to avoid error by stating:

"As suggested in Hamric, it may well be that in a more complicated situation, where there is exculpatory evidence having 'a material bearing on defense preparation', the Government should provide the defense with the exculpatory material prior to trial, otherwise the defense would not be able to 'capitalize' on it. Cf., United States v. Ahmad (D.C.Pa.1971) 53 F.R.D. 186, 193-194; United States v. Cobb (D.C.N.Y.1967) 271 F.Supp. 159, 163, aff'd, 2nd Cir., 396 F.2d 158; United States v. Gleason (D.C.N.Y.1967) 265 F.Supp. 880, 884-885. . . . "

We believe the Hamric principle as further defined in Anderson is a reasonable standard and adopt it into our law, as a guide for determining when the failure to timely furnish exculpatory material will constitute a...