*1 827 аdjudica- if language, specific adjudicatory not contain made opinion is found in the which tory language holding ample precedent finds of the record order. This Foster, (1909) 643 in Beecher v. 66 S.E. W.Va. “ construing Tn 457: page this Court said at it be looked granting court will decree the intent to, implied. accordingly be sometimes provisions may restricted in accordance decree will be construed and to other parts reference pleаdings with the even with Ex’r, 498; Page, Cyc. record.’ 16 Walker’s 636.” Grat. respondent Judge jurisdiction find that
We juvenile matter in the parties subject and of the no abuse proceedings, and that there was find that the legitimate powers. Accordingly court’s we the writ denying circuit court was correct prohibition.
Judgment affirmed. Virginia West George Cowan R. 13205)
(No. 10, 1973. July Decided 8, 1973. May Submitted 10, 1973. July Dissenting Opinion *2 Skeen, Skeen, Larry plaintiff Kennad L. L. error. Jr., General, Chauneey Browning, H. Richard Attorney Hardison, General, Arnold, James Attorney S. Deputy E. General, Attorney Assistant for defendant in error. Sprouse, Justice: defendant, appeal George
This case involves an Cowan, R. from a final order of Circuit Court of Jackson circuit court County, by which entered judgment upon a jury finding verdict guilty of armed robbery. The defendant was sentenced to a term of years Virginia ten in the Penitentiary. West alleges
The defendant several errors were committed during case, trial оf but on final submission for review, alleged he advances two errors. One only denial relates the trial of a self-defense instruction, and the second concerns the prosecution’s use of a cross-examination letter written the defendant. the letter prosecuting attorney during obtained trial, of course and did not make it available to the counsel, a motion had been although made and granted Code, 1931, 62-1B-2, provisions under amended, for disсlosure of of defendant’s written statements.
The defendant found armed guilty robbery of Dana occurred Munday. alleged robbery August 16, 1971. Munday, age, Dana lived in a years mobile Sandyville, home in County. cleaning Jackson Sometimes Munday’s mobile home and on occasion spending night Taylor, girl, there was Freda an old uneducated to 18-year point she could not read. On the day alleged Munday together travelled robbery, Taylor Freda briefly with his Parkersburg. car tо He was to visit his son there. morning,
After in the he and Freda visiting his son Taylor City Parkesburg visited some time in up the afternoon Shortly prior ended a bar.
Munday had a old girl, met Sandra Starkey, 14-year her asked him return with for a Jackson party County. aunt, her, her While she and who with took consideration, the offer under Munday Taylor went to the bar.
Inside Munday the bar eventually approached group young young booth; men and a among woman in Cowan, them was George 21-year оld man. He asked George and the apparently young Cowan lady him to come to for a County Jackson party and, succeeding, asked if he would Cowan attend such party with Sandra Munday, Taylor and Starkey. *3 Although Cowan did at that time know either of the young girls, he agreed. finally found Sandra and Munday four the of them travelled to Sandyville. They stopped during trip; twice the purchase automobile once to wine and another beer, time to purchase Munday for paying all of the During drive, refreshments. the the young ladies places traded so riding George that Freda Taylor was Cowan and Sandra front Starkey was in the seat with Dana Munday. Taylor George Freda and Cowan struck an up relationship. amorous
There is some conflict of as to the evidence exact course of a fair home, events in the mobile summary places George evidence and Freda Taylor Cowan fairly quiсkly home; in the bedroom of mobile whereas, Munday young Starkey girl remained in the front in room. Cowan and the bedroom Taylor were for half an hour and in engaged sexual intercourse. Munday kept showed Sandra a rifle he in Starkey putHe rifle bedroom. back in the closet after showing it to her. According testimony, attempted he Starkey’s watching him join to kiss him and get her refused. requests she both of which couple,
other living re-entered defendant Cowan When victim, Munday, was still bedroom, the room from the an engage Starkey girl young to have the attempting his refusing still but she was relationship, amorous alone. girl Munday told to leave advances. Cowan said he testimony, then to his own Munday, according bedroom. for the Munday her home and started would take “Dana started testimony, According to Starkey’s gun is a hollered, there ‘George, and I bedroom out, Look he testified, yelled, “Sandra there’.” Cowan * ** I I knife and up thе gun. picked going after that shirt; him back of by the [Dana], grabbed run to Dan * * * * * * him, I told I knife his neck put the me; got and he kinda No, I are not to shoot says, you going * * * too, nervous; well, nervous, .” knife that, a kitchen holding is clear The evidence head, Starkey Cowan ordered Sandra against the victim’s then tore the He keys his car and his billfold. take home, the mobile from the wall and left telephone from taken Altogether, taking girls the two with him. cash, beer and keys, his car the victim were $30.00 rifle from the from and the refrigerator, wine bedroom. case, prior to the trial
Several months Code, 1931, under the by counsel, provisions moved amended, copy 62-1B-2, examine to. made by recorded statements including any written motion and granted trial court the defendant. The *4 counsel, reasonable defendant’s within ordered: “That witnesses, of all list time, complete be furnished statements, either oral addresses, and any their including intended to be used written, by made County, Attorney Jackson West Prosecuting Prosecuting said be Virginia, subpoenaed or to in trial under the Attorney against defendant (Italics supplied.) indictment.” above 3, 1971, The trial was November and the State presented morning. During its evidence recess, noon came prosecuting attorney into possession of a letter to written the defendant Cowan Starkey, Sandra respective while both were their cells county recess, Aftеr noon called jail. the State four additional and The prosecution witnesses rested. defense then called the defendant as the first witness. examination, After the direct
immediately inquired cross-examination as to whether the defendant had in question, reading written the letter it in its in the entirety presence jury. letter,
admitted that he had written the which reads as follows: I put “This is in my what statement. leftWe
the laundrymat whiskey to store. went Dana Monday got a for Fredia I pint wine went across the get cigarettes street to some pop. I told them cigarettes for were me are you because under OK? I age. When come back you were in the and Fredia front seat was the back I where setting. was We left there and went to Sandyville. joint We at beer stopped and Dana gave me to beer. then money get We I went to his trailer. I I Larry told Ken and that took Fredia into the bedroom and her. screwed tоld them that Dana came while we were screwing. you to Now is what remember! When we come of the bedroom out Dana trying get you. to to him you let screw You wasn’t I told going let Dana to let him. you would back up alone. said for or he He me to shut me. I go shot turn around and started to I setting to the kitchen table where was (watch you going get said George out he is I gun!) in the chair. grabbed a made him sit down knife and I keys. told car you get his you rest he know! OK. say Just remember going to shoot me and be everything will I’m into alright. this mess. out of really sorry getting you I guess you getting good laugh are that, I no but mean it. There is really now, I you it did crying use know that about want I any cigarettes I’m don’t have sorry! somehow, even you, get to send but will some *5 832 them. get to here rob someone over if have to remember Hey, for awhile. in there hang
Just you me, you. didn’t why write you said would never did. you from waiting I Dana to hear kept hospital. be in the supposed Monday оut.” taken his stomach to have going He is to the objection general made a The counsel defense and, the conclusion at use of the statement the basis a for mistrial testimony, moved defendant’s letter not furnished the attorney prosecuting that the this was contended The defense to him to its prior use. requiring pre-trial in of court’s violation evidence, including to furnish The at the trial. be used intended to written statements completed, motion; case overruled jury. of returned guilty verdict situation given factual is not inconceivable in a While it of self-defense could be proper there robbery, possibility such prosecution for armed of no interpretation Under imagination. strains the robbery armed hand can the the case at of self-defense. theory Dana Munday justified be denying properly acted certainly The trial court theory. instruction based on such we must The then deal only contention relating prosecuting attorney is that use having letter without first George Cowan’s handwritten defense counsel. its existence contents to revealed issue, State, appellant presenting and the both prosecutorial argue suppression the doctrine of has from numerous evidence. This doctrine evolved Brady Maryland, 373 decisions, but from principally 83; Maryland, 66; States v. U.S. United U.S. Giles v. 386 Keogh, (2d Cir.), 138 on remand F. Supp. 391 F.2d 289 (2d Cir.); (D.C.N.Y.), 265 F.2d 885 and numerous aff'd Smith, including state deсisions State v. W. Va. 193S.E.2d Brady not failure line of decisions does relate prosecutor evidence later used at trial by reveal for the a defendant. purpose convicting decisions evidence the existence
These deal with which had been to the defendant and not revealed used at make it trial. The rules involved these cases mandatory prosecution advise constitutionally *6 might in possession defense of evidence its which be or defendant. decisions exculpatory to the These favorable gone further, however, no a required have than revelation of evidence might exculpate which the defendant.
Disclosure is in required even the absence of discovery motions. The most articulated standard is one announced in the Keogh case where the defined categories three suppres- unconstitutional prosecutorial (1) sion: Deliberate faith bad for the suppression very purpose defense, or obstructing the the intentional failure to disclose high probative evidence whose value to the escaped defense could prosecutor’s not have attention; (2) deliberate refusal to honor a for request evidence which is material or guilt punishment irrespective of the good or bad faith of refusing (3) request; suppression which is not deliberate request madе, and where no was where hindsight discloses that such evidence could been put significant use.
The Supreme Court
in Giles
declined to
specifically
consider whether
suppression
the unconstitutional
rule
extends to all evidence
might
some fashion be
useful to the defense.
v. Maryland,
Giles
In State v. supra, this Court based its decision However, in part Brady. in requiring prosecuting attorney to make available for inspection defendant’s parts of marijuana plant marijuana in a prosecution, the Court was dealing with the solely type i.e., that could defendant; have exculpated the examina- tion the plant from the might confiscated defendant have reflected that it only marijuana was plant which not illegal possess. law,
At common there was pre-trial no discovery right defendant a criminal Abdell trial. 834 2d 293;
Commonwealth, 23 Am. 458, 173 Va. 2 S.E.2d Jur. 307, Even Discovery, 712. Depositions page Section however, law, developed at common the rule require power trial court inherent and discretion 2d, pre-trial Depositions discovery. Am. Jur. 308, Discovery, there is at page Although Section 713. State, (see 254 So. exception Cunningham least one (Fla.) ), 2d of the modern courts all practically writing pre-trial the issue hold that the denial of discovery in does involve a favor the defendant constitutional rather controlled statute question, 2d, Depositions discretion of the court. Am. Jur. Discovery, rule has page Section 721. Whatever the been controlled in this State past, issue is now Code, 1931,62-1B-2, Legislature our enacted provides: This section of a “Upon may motion the court permit *7 photograph defendant to examine and or copy (1) or relevant written or recorded statements by copies confessions made thereof, attorney control of the the or are known the by which оr custody to be within the possession, State, or of (2) reports results examinations, and physical or mental of scientific or tests made in connection with experiments case, thereof, particular or are copies the which to prosecuting attorney known the be within by State, of possession, or control custody books, be- (3) papers, tangible objects to or defendant which
longing are within seized from the be prosecuting attоrney to by known possession, custody or of the control State.” language, appears Under this the trial discovery pre-trial discretion of concerning granting rule under similar statutes general motions and this is the 8, Annot., 77-88. Cases of other 7 A.L.R.3d states. See of letters inspection right pre-trial dealing with of little utility are or notes written of here. The courts that issue as determining presented variously such cases jurisdictions other have decided reach differеnt on depending the facts sometimes Annot., factual circumstances. conclusions on similar 8, A.L.R.3d therein. The issue and cases cited prosecutorial pre-trial discovery non-compliance with not, order therefore, should be determined the basis type prosecution. of evidence withheld Whether non-compliance failure disclose is fatal with pre-trial order effect on depends prejudicial its preparation аnd of the presentation defendant’s case. In this connection, it appears has been held and it to be sound rule that the value of evidence the defendant has requested inspect decide, is not for the but rather is a question for judgment under proper exercise of discretion by the court. People Allen, 47 Ill. 2d 264N.E.2d 184.
A defense motion for examination of any relevant Code, 1931, 62-1B-2, evidence under amended, be must granted if it is the type exculpatory nature and meeting one the requirements Keogh. Evidence intended for use the prosecuting at trial for the purpose of proving guilt is also available for inspection by the defense discretion of the court and upon motion under the provisions Code, 1931, 62-1B-2, as amended.
The trial court in the instant granted case the defense motion for pre-trial inspection. shortly thereafter complied court’s making order by available tо the defense the information then in the possession of the prosecuting attorney. Not to have complied with of the court would have been *8 prejudicial error. Cunningham State, v. supra; Lowell v. State, 253 (Fla.). So. 2d 448 Cunningham case, In the the prosecutor, responding motion, to a discovery made available evidence in possession. its included, Not however, a pair was of sunglasses. The defendant who had been accused of rape was said to have been wearing sunglasses, and this was a crucial element identification. trial, At the introduced the sunglasses of them to possession having without disclosed appellant. The court said: « * * * It nondisclosure may weu be that such oversight, or inadvertence, the result of error
was officers on the of the law enforcement remains, however, prosecuting that the evidence so withheld was The attorney. fact critical item case, reception into proof and its had no evidence effect other than to conduct of his defense and which the trial could during in the surprise defendant a factual issue present Cunningham he was meet.” unprepared State, 254 So. 2d at 1931,62-1B-2, statute, Code, In a case our preexisting amended, area, this in this predating most decisions which bears Court reached similar conclusion—one Price, 100 heavily on the decision case. W.Va. Price convicted of second S.E. 710. degree murder. and the previously He had been tried trial, case counsel for the set aside. Prior to the second furnish attorney to requested prosecuting rely particulars expects bill of “on state the prosecution of this case”. The did formal bill told provide particulars, not introduced rely defense counsel he the evidence would first case the first evidence in the Important case. on his effect burns powder that the deceased had body. contrary at prosecution proved exactly trial, they second six witnesses showing by and saw no body powder examined of the deceased ground burns. This Court reversed conviction there unfairly surprised. the defense was Court 701, 131 stated W.Va. at S.E. at 711]: [100 “ * * * In misleading the absence of any at testimony surprise statements as to the ground for new trial. generally Hazlett, supra. Henderson v. a party But where beеn surprised has been or has misled unfairly party, to his disadvantage prevailing * * * granted. a new trial should be facts When rules, foregoing this case are tested *9 we find is plea surprise defendant’s stages His all justified. counsel at diligent were ascertain They the second trial. attempted state upon evidence which the beforehand would in moving and were rely, prompt were testimony exclude by they * * * surprised. upon It was not incumbent the prosecuting attоrney to a bill of- provide particulars, merely request by made upon Neither can we former counsel. consider the record in this such of particulars court as a bill as our practice the inference contemplates. But intended statement by, inference drawn from of the prosecuting attorney, was that the evidence of upon the state the second trial would conform in of the general a way * * * upon (Italics state the first .” trial. supplied.) The Court concluded citing early English an rule by W.Va. at at S.E. [100 712]: “Where party by a or his taken counsel are surprise, accident, whether fraud on a by or material or point circumstance which could not reasonably have been anticipated, when skill, want imputed or justly care attention cannot be done, and injustice has trial been new be granted.” will Price, Although State v. supra, dealt neither with the right of defendant for pre-trial nor with the discovery question whether an prosecutor complied for pre-trial discovery, principle announced there by Court is just applicable to this case there where was such motion and such an order.
Upon proper motions, court in the trial Jackson County ordered the prosecuting attorney to furnish “ * * * statements, defense counsel with either any oral written, made intended to be used by the Prosecuting Attorney County, Jackson West * * * in Virginia, trial under above any indictment”. (Italics supplied.) prosecutor response to the statements, court order answered: “As to oral or any written, made * * * The defense such statement
possession answer. upon prosecution’s right fully every rely throughout the trial. extended right This of reliance the letter written received *10 that of the trial. After noon recess during defendant the and rested. He time, he four more witnesses called state to the make statement available ample time to the conclusion of the State’s Coming defense. after the most of the defense’s evidence and at the beginning counsel it obvious important testimony, is letter surprised. obviously The was completely an apparently represented defense. It prejudicial to the of defendant to have Sandra attempt part on the the witness, her This could testimony. tailor Starkey, key guilty. jury be considered the to be an admission by addition, In nonrelated made in the such statements letter as, “I any cigarettes you, to send but will didn’t have get some even if I to rob someone here to somehow have them”, indicated get easily jury could to the part criminal nature on the of the defendant and could extrajudicial have influenced their deliberations. Those presented the by questions written assertions defendant jury to the had no bearing which issue should have beеn minds prejudice excluded calculated to Co., 526, v. Deitz Prov. Ins. jury. Wash. W.Va. 11 S.E. surprise only The of the letter not use prejudiced trial, the defendant’s for could preparation well have prejudiced jury denied the of a fair and assurance trial. impartial
For the reasons cited in opinion, judgment this the Circuit Court of is County Jackson reversed and case is to the remanded circuit court with the direction that the defendant be awarded a trial. new
Rеversed remanded. Justice, BerRY, Chief dissenting: I respectfully opinion dissent from the majority the reason appear any there does not to have been error trial of case. during reversible committed The ground only upon the case was reversed letter by voluntary written the defendant. act It was of the defendant him before the trial known his counsel soon after became it first known came to the attention of the State.
The prosecuting attorney did not
order of
violate
not delivering the
before
trial
letter
did
because he
not obtain the letter until
trial.
during the
defendant, but,
letter was not
from the
withheld
to the
he
contrary,
apprised
letter
and it was
turned over
his counsel
trial.
during the
letter
does not come
purview
within the
of the principle
Smith,
contained
cases of
156 W.Va.
550;
193 S.E.2d
United States v. Keogh,
It clearly within the in the case Hamric ruling Bailey, 390, F.2d relied brief, on in the defendant’s because was it known and disclosed before the defendant’s evidence was completed and the letter was used the examination of the witness called to for the testify defendant.
For reasons, above would affirm the judgment the Circuit Court of Jackson County.
Ross G. Childress Velma June Childress
(No. 13150) 10, Submitted October 1972. 29, Decided 1973. May Rehearing Denied July