12/29/06 (WV):
Supreme Court of Appeals of WV Rules Expert Wrongly Excluded
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The Justices on Dec. 1 reversed the drunken driving conviction of Michael Doonan, finding that Magistrate Emily Bradley improperly excluded Doonan's expert witness.
Chief Justice Robin Davis and Justices Larry Starcher, Brent Benjamin and Joseph Albright granted Doonan a new trial. Davis wrote the opinion, telling magistrates to follow the same rule of discovery and inspection that circuit judges follow in trials over more serious crimes.
State law requires no legal training for magistrates. In criminal cases, they possess power to sentence defendants up to a year. Justice Spike Maynard dissented, but not on the side of police and prosecutors. He pressed an even stronger point on behalf of defendants, in that he believes anyone found guilty in magistrate court should have an automatic right to take the case to a circuit judge for a whole new trial.
Attorney General Darrell McGraw at first agreed with the prosecution. He argued that exclusion of Doonan's witness amounted to harmless error. But in oral arguments, McGraw's assistants abandoned that position and confessed that the error necessitated reversal.
A police officer pulled Doonan over in 2004 for speeding. The officer took Doonan to the police station for a breath test. Police charged Doonan with driving under the influence, a misdemeanor charge as a first offense. Public defender John Ellem took the case with scant prospects of success.The arresting officer would testify that Doonan failed three field sobriety tests. A prosecutor would introduce evidence of a .134 breath test - above the legal limit. Doonan, however, insisted on his innocence and questioned the quality of the evidence. The Defense asked for trial by jury & sent prosecutors a request to discover evidence. An expert witness was sought to cast doubt on the evidence. Public defenders as a rule lack resources to hire experts in misdemeanor cases, but this time Ellem made it happen.
A week before trial a retired state police chemist agreed to testify for Doonan. At trial the prosecution objected, arguing that Doonan failed to disclose the witness. The prosecution argued that under West Virginia court rules, Doonan's discovery request triggered a reciprocal right of discovery for the state. Magistrate Bradley agreed that Doonan's discovery request triggered reciprocal discovery for the prosecution. He excluded the witness.
Furthermore, the arresting officer had told jurors he noticed alcohol on Doonan's breath, blood shot eyes and slight slurring of speech. He testified that Doonan failed a walk and turn test, a horizontal gaze test and a one-legged stand test. The prosecution introduced a copy of a breath test. Ellem objected that it was not a certified copy and that it was illegible, but Bradley allowed it.
The Defense introduced evidence of Doonan's sobriety and disputed the results of the field tests, but without his expert the jurors could not be swayed. In the end, he asked Bradley for a finding that there was not enough evidence to warrant conviction. Bradley denied it. Jurors found Doonan guilty, and Bradley sentenced him to 48 hours in jail.
Doonan asked for a circuit court hearing.
The Defense argued to Circuit Judge George Hill that Bradley had committed errors in excluding the witness, allowing the printout, and declaring the evidence sufficient. Last year Hill upheld the conviction. He wrote that Bradley committed errors, but he declared the errors "harmless".
The Defense then sought reversal from the Supreme Court of Appeals.
In oral argument, prosecuting assistants Barbara Allen and Colleen Ford conceded Doonan's point that exclusion of his witness was reversible error. The case then boiled down to deciding which laws and rules should apply to criminal proceedings in magistrate court.
Chief Justice Davis left no room for confusion, answering in two words: Rule 16: discovery and inspection in criminal procedure. It provides that if a defendant requests disclosure and the state complies, a defendant must disclose to the state a summary of testimony it intends to use.
Davis wrote, "Prosecutors can discover a defendant's expert witnesses only when triggered first by a defense request. Even then, the rule is not automatically reciprocal and applies only when the State makes a specific request."
She wrote, "When a request is not made regarding an expert witness, then there is no basis to exclude the proposed expert."
She wrote the state's failure to respond to Doonan's discovery request precluded a reciprocal request.
The majority also detected errors in the illegible printout. Davis called the error "harmless" but cautioned against bringing the printout to Doonan's new trial.
© X-Pro 2007
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