Ralph Terry, Acting Warden v. Phillip A. Ward, 807 S.E.2d 311

Background

In 1987 Phillip A. Ward was convicted of felony murder after evidence (bloodstained $20, $5, and $1 bills) tested at the West Virginia State Police Crime Lab linked the victim’s blood type to those bills; Fred Zain testified at trial about the serology results. Ward was sentenced to life without mercy.
Following revelations about Zain, Ward obtained court-ordered DNA testing of the physical evidence in 1994 (Roche report); that testing and subsequent litigation were litigated in a 1996 omnibus habeas proceeding. The circuit court then denied relief, finding the DNA results did not contradict the serology and that sufficient non-serology evidence supported the conviction; federal courts affirmed.
In 2006–2007 this Court’s Zain III decision established procedures allowing renewed habeas review for defendants whose convictions relied on serology by State Police serologists (other than Zain), including a searching habeas hearing and application of the Frazier newly-discovered-evidence test for new-trial relief.
Ward repeatedly litigated Zain-related claims; in 2010 he filed another habeas petition relying on the 1994 DNA results and Zain III. At a full omnibus hearing in 2015 the circuit court (with a different judge) found the 1994 DNA testing proved Zain’s serology testimony false as to the $20 and $1 bills, deemed that DNA "newly discovered evidence," and granted a new trial in 2016.
The Supreme Court of Appeals reversed, holding (1) the 1994 Roche DNA results were not newly discovered because they had been previously tested and litigated in 1996, and (2) Ward failed to prove the serology evidence was false or that the Frazier factors for a new trial were met; prior rulings that excluding serology would not change the verdict were controlling.

Issues

Issue	Ward's Argument	State's Argument	Held
Whether 1994 DNA results were "newly discovered evidence" under Frazier	1994 DNA tests were discovered after trial and Zain III permits renewed review; thus they are newly discovered and may warrant a new trial	DNA results were produced and litigated in 1996; not newly discovered and res judicata/prior rulings control	Not newly discovered; Ward failed Frazier first-factor and prior litigation controls (reversed grant of new trial)
Whether serology evidence (and Zain’s testimony) was proved false by DNA	DNA excludes victim from $20 and $1 or otherwise contradicts serology, so serology is false	DNA results corroborated or did not exclude victim/defendant; DNA more sensitive than serology and may show additional contributors but does not prove serology false	Ward did not prove serology false; circuit court clearly erred in finding serology false
Whether, even if serology excluded, remaining evidence would warrant conviction	Exclusion of serology would create reasonable doubt—DNA showing third-party contributors undermines guilt	Prior state and federal findings show abundant non-serology evidence supporting conviction; exclusion would not likely change result	Prior findings stand: even without serology, evidence suffices; Frazier factor requiring evidence likely to produce opposite result not met
Proper application of Zain III procedures and effect of prior habeas adjudications	Zain III allows renewed review regardless of prior petitions; therefore prior adjudications aren’t dispositive	Zain III permits review but does not make previously litigated DNA newly discovered; courts must still apply Frazier and respect prior final determinations	Zain III does not override final prior adjudications; circuit court erred by re-litigating the same 1994 DNA evidence as newly discovered

Key Cases Cited

Mathena v. Haines, 219 W. Va. 417 (2006) (three-prong standard of review in habeas appeals)
In re Renewed Investigation of the State Police Crime Lab., Serology Div., 219 W. Va. 408 (2006) (Zain III: procedures for habeas review of serology evidence and application of Frazier)
State v. Frazier, 162 W. Va. 935 (1979) (five-factor test for newly discovered evidence warranting a new trial)
Halstead v. Horton, 38 W. Va. 727 (1894) (original articulation of newly-discovered-evidence rules adopted in Frazier)
State v. Ward, 188 W. Va. 380 (1991) (opinion recounting trial facts and conviction)
In the Matter of an Investigation of the West Virginia State Police Crime Lab., Serology Div., 190 W. Va. 321 (1993) (Zain I: court-ordered investigation and DNA testing directive)
Anstey v. Ballard, 237 W. Va. 411 (2016) (all five Frazier factors must be shown before awarding new trial)