*1 Virginia STATE of West
Paul William FERRELL.
No. 19401.
Supreme Appeals Court of Virginia.
West July 24,
Decided 1990.
Rehearing Denied 1990. Nov.
Dissenting Opinion of Justice
MILLER Dec. *3 James, James, Keyser, R. Barr &
Daniel W. for Paul Ferrell. Gen.,
Roger Tompkins, Atty. Richard W. Gen., Riffe, Atty. Atty. Gen.’s M. Sr. Asst. DiBenedetto, Office, Charleston, Dennis V. Petersburg, for State Atty., Pros. beer, selling and then left NEELY, tions before Chief Justice: alleged under- to meet with the restaurant appeals his convic- Paul Ferrell William Ford drove her Ford cover officer. Ms. kidnapping, second before a tion County, and Bronco on route 50 into Grant degree third arson.1 degree murder has at the Bismark Road. She turned off errors, assigns myriad many appellant not been seen since. obviously merit are so without fairly are not find that that we the defen- contends however, are, major four raised.2 There dant, Ferrell, Ms. Paul used fraud to entice complex and difficult assignments in this County, Virginia into Grant West case that warrant circumstantial purpose gaining a sexual concession *4 discussion. extensive her, advantage from and that Mr. or other Wednesday, morning 17 Febru- On subsequently Ferrell murdered Ms. victim, Ford, ary Catherine a resi- disposed body, burning of her ve- Maryland, received a call from a dent up hicle to cover the crime. claiming magistrate a at Mt. man be day disap- the same that Ms. Ford On Storm, County, Virginia. in Grant West peared, other women received tele- two him at The man wanted Ms. Ford to meet phone purporting to a calls from a man be day, p.m. his office at 3:00 the same man, however, magistrate. a This was not day, Later discuss some checks. time, magistrate; magis- real at the both claiming to an undercover officer man be County, Virginia, trates West Grant information concern- called Ms. Ford with nearby Maryland were females and does possible investigation family’s of her ing a magistrates. not have by liquor licensing authori- restaurant County magistrate usually A family Grant is Ms. Ford told her and the ties. employees duty to check identifica- at a satellite office in the Mt. Storm restaurant (X.) suppress appellant imprison- was sentenced to life The trial court failed to the de- 1. The eigh- mercy kidnapping, for five to statement in violation the defen- ment with fendant’s degree right years and one teen for second murder dant’s fifth amendment to remain silent. (XI.) years degree suppress third arson. All sen- three The trial court failed to consecutively. petitioner tences were to run statement taken from the as it was voluntarily given. (XII.) admitting The trial court erred in into following assignments of error 2. We dismiss hearsay testimony what the fairly as not raised: alleged prior departure victim said to her (IV.) failing The trial court erred in to dis- family from her owned restaurant. against petitioner count miss (XIII.) There was insufficient evidence of upon petitioner's motion for a directed verdict being malice an essential element of second completion the State’s case and at the at the therefore, murder, degree the verdict completion of the defendant’s case in chief be must set aside. charged defendant should have been because (XV.) properly The trial erred in not court kidnapping. abduction and not advising petitioner in accordance with the (V.) permitting court erred in F.B.I. The trial Neuman instructions. agent testify proper without William Scobie to (XVI.) admitting The circuit court erred in adequate qualifications an foundation photograph of Paul Ferrell’s automobile inas- at the al- that based the blood found Nelson, much as Kim the State's witness and leged crime scene that a violent act had to car, person identified the was shown who have occurred. impressibly suggestive photograph [sic] (VII.) admitting the The trial court erred in identification. serologist Audrey Lynch testimony of forensic (XVII.) by failing The trial court erred that the blood found was not who testified proper Bamjoman hearing. conduct a [sic] that would come from inconsistent with blood (XVIII.) by allowing The trial court erred var- alleged offspring parents of the victim, express opinion ious witnesses to added) (emphasis Cathy Ford is dead. (VIII.) refusing erred in The trial court (XIX.) sequestration The trial court’s order grant juror bias extrinsic to a new trial due to should have resulted in a was violated which process the deliberative (IX.) mistrial. admitting erred in into The trial court (XX.) insufficient evidence of ar- There was from the "crime evidence forensic evidence therefore, homicide, the verdict must properly preserved son and thus scene” which was not constituting process. be set aside. a denial of due Wednesdays. Fire Hall on Sometime be- Kim Nelson lived the trailer nearest Wednesday, driveway and 11:00 on 17 Mr. Ferrell’s trailer on the same tween 10:30 (the Road, February day disap- the victim off of the Bismark but did not know magistrate and her peared), the assistant Paul Ferrell. She testified that between using public pay p.m. February observed Mr. Ferrell 1:00 and 2:00 on 17 phone magis- banging outside of the office. The and terrified screams emanated trate told her assistant that the man talk- from Mr. Ferrell’s trailer for a min- about ute, ing gunshot on the outside was their new followed same deputy recently Paul Ferrell had A light sheriff. trailer. man then drove out in a begun working deputy as a sheriff for car. In court Ms. identified blue Nelson County. photograph Grant Mr. Ferrell then went into from a that was Paul Fer- hall, bay departing. the truck area of the fire where a car that she had rell’s observed located, later, public available to the The man drove one-half back hour afternoon, then left. again remained there a while and and drove out later in the at which time Ms. Nelson saw a side-view day, At 10:50 a.m. the same Robin Tich- February driver. On Ms. claiming nell a call from a man received burning Nelson saw the same man some- Virginia magistrate. a West al- *5 thing out in of Paul Ferrell’s rented back leged magistrate said that he was conduct- Ms. Nelson first learned the man’s trailer. knew, ing investigation an of someone she recognized name when she Paul Ferrell’s question and needed to her at the Mt. picture newspaper in the after his arrest. Storm Fire Hall sometime between 10:00 February ripped and 3:00. When she asked who or what Ferrell On Mr. concerned, investigation carpeting he would not out and burned the from the (mobile Consequently, tell her. she refused to master bedroom of his trailer him, home), responded replacing carpeting leave work to meet and he it with on new get to following day. that he would have touch with her Mr. Ferrell claimed that at a later date. he did this because of dark stains and dead However, girl- animal odor. when his strange Another woman who received a friend, Bernard, Cathy visited his trailer on day Bosley, Rose invitation that same was February any she had not noticed part-time postmistress in Gormania who carpet, stains on the master bedroom nor Saturdays. usually worked on The new strong any odors. Also Mr. Ferrell’s land- before, post opened days office had two lord had not noticed stain or odors service, yet and did not have so January trailer on 21 Bosley, regular postmistress Juanita fill in younger asked the woman to for her Paul Ferrell demonstrated concern about disappearance Cathy telephone while she made calls to various Ford. On 20 young February girlfriend, Cathy his utility companies. While the woman in, Bernard, filling telephoned asked him if he had heard about was a man Viola Knotts, Cathy disappearance, Ford’s Paul Ferrell elderly an woman who lived across office, it, that he had heard about that he post the street from the and asked said was, Bosley get Ms. Ford and that he was tell Rose to come and her knew who people might suspect that him or his car had broken down afraid mail carrier whose disappear- in her Cherry Ridge Road. of involvement Bismark and brother between route, however, afraid Ms. Ford would not ance. He was because The Gormania heading in the direction of roads. was last seen take the carrier to those Storm, defendant’s trailer was Mt. where family room in Mr. Ferrell’s From the located. located, was store which his February Ms. Ber- go Sunday, 21 people Mr. Ferrell could see come and On nard, washing office, Paul Ferrell’s post and could also see Ms. before from the clothes, pocket dealt in a a note that Mr. store was found Knotts’ residence. Ferrell’s posing young couple people as a sight the restaurant where with two also within up by using a fake setting someone Cathy and Ford worked. going road. His to a main burned without When Ms. Bernard card. identification later, he travelled road driveway the note led to a seldom Paul Ferrell about asked concerned, explained that Bronco. that the site of the burned seemed led to liquor going board logically someone inferred that jury could have trying in the area places to various around discouraged a search this Mr. Ferrell minors, liquor to them to sell get he did not the searchers area because want something do with note had that Cathy Ford’s Bronco. find that.3 February Ferrell made a On 29 Mr. Ferrell manifested obsession Paul Uniontown, Pennsylvania collect call from Perhaps Cathy disappearance. Ford’s Bernard, in which girlfriend, Cathy to his why attempt explain he was ob- in an family say call he asked her to the Ford sessed, Bernard he knew he told Ms. that alright. asked to Cathy Ford was When well, and that had been Cathy Ford testimony explain Ms. Bernard’s met Ms. year about a before he intimate claiming had her to calls she asked make Ferrell, However, David Bernard. defen- Ford, police told Cathy Paul Ferrell brother, Ms. Bernard that he told dant’s 1988, (three days February after on 20 that, if Paul nothing and that knew about disappeared), he asked Ms. Ber- Cathy Ford Ford, Ms. he would had an affair with saying nard to call someone something. known have alright, because he wanted slow Friday, February evening On investigation that his tele- down the so and two other officers Paul Ferrell might not discovered. On citizen, Moreland, private Vonda met with a 1988, Cathy parents March Ford’s received organizing a search wanted advice who postmarked Pittsburgh, letter Febru- hour a half About an Ford. *6 .(It ary stipulated that a 1988. was letter meeting, Paul Ferrell called Ms. after post- mailed from Uniontown would if she call and her could Moreland asked Pittsburgh.) said: marked The letter hours, search, least for 48 be- at off found the officers had some solid cause only get crime we had The here was was unable to Ms. Moreland evidence. right away. rid of the old man’s Bronco search, enough off people to call reach had to Cathy is an adult and we leave called back later in and when Paul Ferrell dangerous fast. We came into some evening to if she been able ask money here on the money. So is some search, Mr. she told Ferrell call off will will Bronco. More follow. She call do Paul had not able to so. she been you she feels it is safe do so. when Moreland, regarding Ferrell then told Ms. heading get are where I can some We following day, for the the search scheduled Cathy so you made me write work. place and except the Bismark to search worry. get away not She had would why Cherry Ridge Roads. When asked Moon, the and from restaurant certain roads, Paul they should search those not green keep money, her people. We on explained that the evidence was Ferrell bag. Tell leave us bank Moon to alone. lying Ferrell was not those roads. Mr. Williams, handwriting FBI Richard said on those the evidence was expert, that the letter and its en- testified The Ford was roads. Ford Bronco Ms. velope both Paul Ferrell’s hand- right along found driving last seen the letter was the writing. Enclosed with Di- Stony Bismark Road. River off of the twenty hundred dol- sum of two dollars Bronco, rectly across the river 1988, Paul February lar Fer- Road, bills. On running parallel to the Bismark and rell two hundred dollars had withdrawn Cherry Ridge Road. Ferrell ran the Paul savings personal from his account. spot reach the where Bronco could telephone to link Paul Ferrell to the call testimony on con- offered The was unclear the exact 3. investigation subsequent concerning liquor Cathy conver- tents of letter and of Ford a Ferrell. family's between Bernard Paul sation Cathy restaurant. testimony on this matter was Bernard’s September 8 March the Ford Bronco in On tween 28 1987 and late Novem- was last seen was found County, ber several women in Grant river, and hidden in burned brush near the Virginia nearby County, West Garrett people off the Bismark Road. The who Maryland phone received unusual found the Bronco knew to look there be- from a man who directed them to various cause heard that smoke was seen locations near Paul Ferrell’s trailer on the hanging February over the river on 17 Bayard-Wilson-Corona Road, including the Experts determined that the fire garage building trailer itself and a near the was deliberate arson. posed trailer. The caller people, as various including doctor, magistrate, police a police questioned On March officer, passing and a All motorist. of the Ferrell, obtaining Paul and after his writ- recipients were attractive women between permission, ten searched his trailer. Soon ages thirty-nine. of nineteen and search, they after the found out that Mr. replaced carpeting Ferrell had in the young A woman who testified that it was police bedroom. obtained a search her, Mr. Ferrell who had called said that he warrant, police and on 19 March a search had asked for her phone sister’s number of Mr. Ferrell’s tiny mobile home revealed phone work. Her sister’s number was la- splatters places of blood in various on ter found written cover of a walls, mirrors, ceiling and the of the bed- living quarters book in the of Mr. Ferrell dripped through room. Blood had also brother, and his above Ferrell’s Mart in crack plyboard between two sections of to Gormania, Virginia. West joist a floor underneath. Blood was also private there was a one listed in the name piece found on a of material in a waste defendant, of the he used this identify basket. The FBI was able some many make of his unusual calls. human, of the blood as type and the blood January On 21 Paul Ferrell rented inconsistent with blood of a child a mobile home off of the Bismark Road. Also, parents. cigarette victim’s From 1 February February 1988 to 17 type by butt of the smoked Ms. Ford was young several women the area cigarette found. The was smoked some- strange pur- received calls which a man type one awith blood also not inconsistent *7 porting to be someone other than Paul Fer- parents. with Ms. Ford’s rell directed them to the area near Mr. On 20 March Paul Ferrell was ar- along Ferrell’s trailer the Bismark Road. 1988, police rested. On 25 March found a The calls were similar to those made earlier type given wristwatch to Ms. Ford young a man which had directed women father, by near a small burn area be- Bayard-Wilson-Corona to the Road. Mr. hind Ferrell’s mobile home. regular practice Paul Ferrell made a of disappearance, After Ford’s it posing calling people as someone else while young came out that several other women phone get bidding. on the to them to do his County, Virginia, in the area of West Grant phone Paul Ferrell made numerous calls to County, Maryland and also re- Garrett country, bookstores and across the libraries phone directing ceived calls them to se- posed seeking he as a doctor infor- cluded areas. There were two sets of mation on anal sex and anal stimulation. calls, phone the first set made between 28 get employee He often tried to a female to September 1987 and late November pages read to him from 177 and 178 of The February 1 and the second set between Bodies, New Our Ourselves.4 Some em- February 1988 and 17 him, ployees read some of it to and others employee not. testified September From 14 1987to 27 November would One that breathing Paul Ferrell rented home on she heard heavier as the conver- a mobile on, Bayard-Wilson-Corona Road. Be- and said was like the sation went “[i]t (New York, 1985). 4. The and Schuster Boston Women's Health Book Collective Bodies, Ourselves, Staff. The New Our Simon Kerr, (11th Cir.1985), hearing.” was a person 778 F.2d anticipation of Another conspiracy fraud and that the for mail “doctor” called testified whom the fraud, predi- missed a to commit mail based employee caller noticed when pharmacy. cate arson of a Evi- page and asked if she crime of paragraph on irregularities dispensing in the police and read it. dence of go back When would calls, drugs prove to held admissible motive Ferrell about he told was asked Mr. arson, though even made such calls from his and intent to commit them that he had implication drug living prejudicial and raised a traf- girlfriend’s residence also, ficking. quarters Merryman, He also U.S. v. above Ferrell’s Mart. See Cir.1980)(evidence (10th posed F.2d of other frequently said as a doctor that he he found it was bad acts was admissible rebut defen- during these calls because dant’s mistake or lack of knowl- very easy get the information he wanted claim of edge intent); Thomas, or 632 F.2d way. that U.S. (10th Cir.1980) (evidence that one de- growing fendant threat out made a death I. of a theft of narcotics admissible contends Mr. Ferrell that evidence drug prove a leader of the phone calls to book over 206 various conspiracy). country across stores and libraries above, As in the cases cited the State did excluded, it was have been because should phone not offer the call evidence to show probative. more prejudicial than The State likely more to commit defendant was phone contends that the evidence of the kidnapping. fact, the crime of probative calls because it established not show that calls do defendant’s motive, intent, plan and common or likely kidnap him more character made scheme, that the essen and evidence was simply prove The calls elements someone. charge of prove kidnapping. tial essentia] case, namely Court, Thomas, This intent, motive and also tend to show (1974), recog plan common or scheme. record prior nized evidence of crimes that relevant shows Ferrell made that Paul numerous motive, wrongs or is admissible to establish libraries, bookstores accident, intent, mistake or iden absence of gratifica- that he received regularly sexual tity, of a common scheme or or existence persons tion from interaction with who plan. Virginia Evi The West Rules of voluntary providers gra- sexual 404(b): in Rule provide dence now calls, when tification. These considered crimes, wrongs, other Evidence conjunction women, with the calls to local prove not admissible the char- acts is probative, prove are because tend to *8 person in order to show that he acter of a fraud to that Mr. Ferrell used entice conformity may, It acted in therewith. the area of his mobile home for the however, pur- admissible for other purpose obtaining some of sexual conces- poses, proof motive, of opportu- such as advantage. agree sion or We therefore intent, preparation, nity, plan, knowl- with circuit court that the evidence is the edge, identity, or absence mistake or of probative prejudicial; more than it tends to accident. prove enticed that Paul Ferrell Ms. Ford to pur- the his mobile home area near for the 404(b) essentially the same Rule states pose obtaining some concession or ad- Thomas, supra. pronounced rule that we vantage from her. adopted, it was to FRE When identical 404(b). 404(b) FRE has since amend- been Sette, In neutral, gender ed it is no so that but involving a case the S.E.2d 464 changes substantive were intended. by her murder a woman husband and his presented mistress, evi federal the
There have been
number of
part of an
rela
dence that as
extramarital
cases in
evidence
other bad acts
404(b).
tionship,
and his
has
the defendant husband
been admitted under FRE
U.S.
engaged
mistress had
in oral sex at a time
assigns
Mr. Ferrell also
as error
felony.
in camera
when to do so was a
This Court
“meaningful”
lack of a
held
ample
that because there was
hearing
phone
before evidence of the
admitted. An in camera
relationship,
of the sexual
hearing
evidence con
cerning
probative
oral sex had
phone
no
evidence such as the
value
calls involved
Dolin,
State v.
whatsoever on
required by
the issue of
here is
whether defen
plotted
dant had
with his mistress
Once appeal. compulsion it as heavy on This since uses terms such a burden bears ‘fraud’, ‘inveigle’ away’ ”. Syllabus ‘decoy’, the standard or ‘entice Court set out Id., n. Starkey, 161 180 378 at 646 point 1 of W.Va. W.Va. S.E.2d statute, (1978), general kidnapping 244 where we said: 7. Just the S.E.2d 219 W.Va.Code, [1965], not re- 61-2-14a does case, guilt a verdict of In a criminal force, require trans- quire neither does it ground set aside on the that it will not be the portation or confinement of victim.7 evidence, contrary is the where the to fraud, to evidence is sufficient convince the of state’s On element the guilt of the defen- of impartial ample minds of Ferrell’s use evidence Mr. beyond a doubt. The dant reasonable to obtain what fraudulent light desired, is viewed in the most infer reasonably evidence to be so that could prosecution. Cathy war- get favorable to the To Mr. fraud to that Ferrell used guilt rant interference with a verdict of him his On Ford to meet at or near trailer. insufficiency ground enticement, of of evi- jury’s element the deter- of dence, the court must convinced that overwhelming be mination from the manifestly inadequate Cathy the evidence was that Ford was killed Paul Ferrell’s consequent home, injustice and that has been call mobile combined with liquor Cathy concerning done. investi- Ford gation, jury reasonably could lead Thus, is with in mind that this standard that Paul Ferrell told believe assignment we must consider defendant’s something him, get her meet with of error. his actually that she went trailer be- prove beyond needed to representations. cause of fraudulent his doubt that Mr. Ferrell used reasonable lur- Evidence of Mr. Ferrell’s motive for to entice Ms. Ford to the area near fraud ing Ford to trailer from home, his comes purpose gaining his for the of mobile calls he made bookstores in the advantage” or form of “concession gratification. and libraries for Mr. If, therefore, sexual gratification. sexual there calling Ferrell had the same motive in evidence from which the was sufficient women, victim, including the young beyond could find a reasonable doubt enticing them to secluded areas near his used Ms. that the defendant fraud entice presents picture The record trailer. Ford to his mobile home the intent of regularly Mr. Ferrell as a man who ob- gaining advantage from a concession or gratification tained sexual from involun- her, his be affirmed. then conviction must words, tary partners; prosecu- in other prosecu Mr. Ferrell claims that proved system, tion motive and intent. tion failed to show that he used force on victim, victim, argues transported con Ferrell that he or also Mr. Hanna, However, kidnapping be if he is fined her. cannot convicted murder, (1989), kidnap convicted of because the W.Va. only kidnapping disappear ping would be incidental to the mur also involved Miller, said, State v. young woman, ance of a this Court der. (1985), is clear can be accom- S.E.2d this Court held that one
“[i]t
him,
ransom,
any
having
money
advantage
paid
but
or
or
inflicted
after
sort
been
any
yielded,
punishment
thing,
shall
confinement
or other
or
concession or advan-
penitentiary
any
years
any
yielded,
term
tage
paid
in the
for
sort has been
punishment
peni-
less than ten.
shall be confinement
tentiary
years
term of
not less than
Weaver,
twenty:
provided
And
That
in all
In State v.
further.
person against
"kidnapping
this court noted
cases where
whom
*10
returned,
defined,
broadly
virtually any
permit-
is committed is
or is
was so
movement
offense
return, alive,
during
bodily
person
hav-
detention of a
commission
ted to
without
harm
or
him,
kidnapping
ing
fell
stat-
been
but without ran-
of another crime
within
inflicted
Id.,
som, money
at
thing,
ute.”
W.Va. at
382 S.E.2d
or other
or
concession
after,
during,
placed on
before and
but not
limit that must be
the broad
observed
that,
is
he
scope
kidnapping
polygraph
of
statute
“a
a
test that
administered
interview,
kidnapping
committed
part
has not been
Ferrell.8
Mr.
As
Syllabus
is incidental to another crime.”
Agent
presented the defendant with
Curtis
point
The court then laid
Id.
out the
two Paul
a scenario which there were
test,
deciding
whether
acts that
Ferrells,
calm,
indi-
one that
rational
“[i]n
was
kidnapping
inci-
technically constitute
vidual,
emotionally,
and
acted
another who
crime,
dental to another
courts examine
anger
struck out in
Ford.
and
at
length
time the victim was held or
of
Agent Curtis
that as he was ver-
testified
moved, the distance the victim was forced
scenario,
bally presenting
Mr. Ferrell
move,
and environment of
the location
nodding. However, Agent
was
Curtis went
detained,
place
and the
the victim
stating
than
Mr. Ferrell
simply
further
that
exposure
to an
of the victim
increased risk
nodded,
that,
opined
upon his
and
based
Miller, the
of harm.”
In
facts showed
Id.
language,
expertise
interpreting body
forced the
that
the defendant
victim to
of
nodding
Mr. Ferrell’s
was an admission
distance,
inconsequential
travel a not
con- guilt.
gate
fined her
a locked
for a sub-
behind
agree
We
defendant
that
it was
with
threat of
period
physical
stantial
under
improper
Agent
give expert
Curtis
harm,
committing
separate
before
of-
testimony to the effect
that Mr. Ferrell
Id.,
fense of
sexual assault.
W.Va. at
guilt
nodding
Agent Cur-
by
admitted
while
622, 336
at 916.
entirely
speaking
tis was
to him.
It is
There
where an
are situations
offense
possible
simply
that
nod-
Mr. Ferrell was
technically
kidnap-
that
constitute
would
listening,
ding to show
he was
and
ping
broadly worded
can-
under our
statute
Agent
way agreed
no
what
Curtis was
with
separate
not be
For
considered
offense.
telling
Indeed,
point
him.
this
was strenu-
example,
prisoners briefly
where
confined ously pointed
by
out
defense counsel in
prison guards
escape,
in the course of an
competent
jury
cross-examination. The
is
any guards
hostages
and did
not use
everyday
meaning
determine the
of such
shields,
kidnapping
this
held that
Court
communication,
Agent
Cur-
non-verbal
escape.
was incidental to
not
to add an
tis should
have been allowed
Brumfield,
My review of
law of other
admissible,
evidence,
in-
if
establishes an
tions reveals no case which evidence
was,
any
voluntary
by hanging
example,
these
activities
no evidence of
terminated
2. There
Moreover,
telephone
up
by advising
calls made to libraries.
caller that it was not
or
only
majority’s
assume that the
refer-
one can
customary
telephone.
over the
to read books
grati-
"[in]voluntary providers of sexual
ence to
salesper-
intended to describe the
fication” is
Indeed,
closing argument,
telephone
took the
calls at the book-
sons who
stated that the
calls demonstrated that
instance,
salesperson
stores.
In each
“perverse
the defendant had a
or somewhat ab-
passages
to locate and to read certain
asked
"depraved
normal attitude” and that he was
telephone.
apparent
that at
over the
point
It is
heart and mind.”
along
way
salesperson could have
kidnapping.
for the
he was
sexually
tent or motive
We
attracted
victim.
recognized
proof of a
record, however,
have
motive or
nothing
There is
in the
intent is an essential element
the crime
permit the
infer
that defendant
Hanna,
kidnapping. E.g.,
su-
injure
physically
intended to
the victim
or
Fortner,
pra. See State v.
rape
Or.App.
her.” 99
sodomize
(1989);
Miller,
fering
money
to enter
vehicle to
II.
dog.
prose-
him
lost
The
help
search for a
majority
that it was error
agrees
for
that the
cution offered evidence
defendant
Agent
elicit from F.B.I.
rape
previously
been convicted
opinion
his
that
the defendant’s
Curtis
thirteen-year-old
sodomy
of another
guilt
body language demonstrated his
girl
approached
whom had
the same
of its
charged. Typical
the crimes
well-
reversing the
for
manner.
conviction
no
opinion, majority offers
rea-
crafted
assault,
attempted
the court stated:
sexual
Certainly,
this
son for
conclusion.
as a
that,
persist-
“It is
from defendant’s
true
beginning point,
majority
minimum
efforts,
spite
ent
of the victim’s refus-
might
opinion
cited his recent
writer
have
al,
her into his truck
look
entice
Woodall,
182 W.Va.
dog,
could con-
nonexistent
the threshold rule
where
intended to inter-
clude that defendant
expert testimony in
admissibility
for the
liberty
substantially with her
and to
fere
in Sylla-
outlined
such circumstances was
place
take her
one
to another....
from
Point 1:
bus
from
could also conclude
defen-
W.Va.R.Evid., Rule
ex-
“Under
remarks
the vic-
dant’s behavior and
concerning generally
pert testimony
rec-
police
that
tim’s mother and the
officer
presumptively
determining
admissible
whether the identified error
ognized tests is
harmless, including
excluding
testi-
should
deemed
the burden of
such
principle
basically
that
the case “is
mony
seeking
is
the side
exclusion.
where
case,
is
However,
a test
or not
circumstantial evidence
...
there
is novel
probability
accepted,
that circumstance
increased
that the error will
generally
prejudicial.”
be deemed
at
requirement
meets the threshold
alone
presumption
harmless error rule
502,
Atkins,
admitting
court
Point 2 of
163 W.Va.
whether the trial
erred
State v.
(1979),
denied,
testimony
serologist
of the F.B.I.
as to
The evidence revealed by Cathy Ford in a corner of smoked found proximately twenty samples ap- of what living tested. the defendant’s room was peared to be bloodstains taken Traces of saliva found the filter demon- home and Ford’s defendant’s from AType that the smoker strated had been analyzed. Agent Au- vehicle were F.B.I. testing previ- A DNA had expert secretor. serologist, a forensic testified drey Lynch, Q his ously analysis testified that of exhibit analysis samples demon- that her these come 134 had revealed that the blood protein, one strated that contained human a female. from containing but could not be confirmed as blood, could not five contained blood which sample There was no known blood from human, remainder be confirmed and the Cathy Ford could used for com- human contained blood. parison. therefore, giv- Agent Lynch, samples en Ford’s blood from extremely stains were minute These parents. testing genet- After for the same con- quantity only three found to markers, Agent Lynch ic that the testified genetic recognized markers. How- tain analyzed in bloodstains the course of ever, quantity of the small avail- because police from investigation could have come (Q purposes, only one exhibit able for test offspring of the Fords.7 134) than one was found contain more *16 genetic testing process also marker.6 Thereafter, Agent Lynch was asked samples, destroyed leaving the the defen- population compute percentage the of the opportunity the test no to have dant with carry genetic all of mark- which would the impor- Finally, most samples results verified. and analyzed found in the the ers expert ultimately DNA admitted tantly, investigation. the State’s criminal She con- they approxi- the the sam- of smallness of cluded that would occur that because way mately percent population.8 .75 of the ple, was no determine wheth- there percentage population "Q. joist the has 6. taken from a floor of What of the A bloodstain presence of type bedroom showed the defendant’s phosphoglucomutase, A and are a blood secretors? (PGM enzyme a blood Approximately thirty-two percent of "A. +). paper towel type 2 A bloodstain on a 1 population. + the living a trash bin in the defendant’s taken from percent population "Q. of has What the protein exhibited the serum room or kitchen haptoglobin genetic of PGM 2 marker 1 + +? 134, 1). (Hp type Q Exhibit twenty-two percent Approximately of “A the ran bottom of brace which wooden population. ground, was found to trailer defendant’s percent population "Q of has a What type 1 as well the PGM 2 marker contain + + Haptoglobin of 1? enzyme, erythrocyte phosphatase an acid as Approximately percent. "A 16.5 BA). (EAP type percent population "Q of has a What BA, 1 or EAP fa- of PGM 2 demonstrated that Ford’s combination 7. The tests + + following Type blood and had O carried ther of BA? +; type type genetic BA; PGM 1 2 EAP Approximately percent. markers: nine "A + Type Hp type had 1. Ford’s mother popu- Agent Lynch, percent "Q what of the following genetic markers: BA, A blood with +, of 1 2 an EAP of lation has a PGM + +; BA; Agent type Hp type type 1 EAP PGM 1? and an HP of offspring these two Lynch that the testified percent. Approximately 1.5 "A carry Hp type mark- people would have test were not incon- that the other results er and “Q that would include both male So might be with the characteristics that sistent female? offspring. in the blood of such found "A Correct.” figure divid- percent was arrived at .75 testimony at trial was as follows: 8. The the DNA ing in half to reflect the final number percentage population has "Q. What on expert’s the bloodstain determination type A? a blood Q come a female. 134 had from exhibit forty percent of the Approximately "A. population. Evidence, (1987).” 496-99 challenge the to the Law does not The defendant 23, and saliva at 261. of the bloodstain 385 S.E.2d basis scientific Instead, testing. DNA analyses or of the I underlies the believe a similar flaw challenges the conclusions defendant testimony Agent Lynch in this case. asserting error to that was Agent Lynch, problem is that the three The most obvious effect, testify, her to allow used to obtain samples blood which were trailer at the defendant’s found bloodstains genetic could not be identified markers Cathy Ford on come from based could have Yet, this coming person. the same from parents’ blood analysis of the victim’s the State very premise on which analysis as to the offer statistical and to parents’ blood was ana- its case. The built the same population with percentage they markers as if lyzed for the same analysis. by the genetic markers revealed I know of no come from a common source. that the re recognized This Court has ap- court has sanctioned such generally properly conducted sults of proach. are admissible at recognized tests blood in the sta- The same distortion occurred to some issue. they if are relevant trial probability questions which are set tistical 328 S.E.2d Wyant, 8, supra. questions When the out note (1985); Kopa, 173 W.Va. genetic markers to elicit small- combine the v. Clem See State answers, probability er the fundamental ents, cert. 175 W.Va. premise is that the markers came from denied, 106 S.Ct. 474 U.S. previously point- As common blood source. Woodall, (1985). In L.Ed.2d 137 out, ed this is not the fact. proposition general supra, we stated is ad- probability evidence that statistical permit I it was error to believe analysis evi- respect to blood missible with expert testify regard State’s blood dence.9 genetic markers as relate to the however, Woodall, recognized we also proba- to the statistical parents’ blood and of statisti- dangers inherent in the use combined. bilities when tests where cal evidence based blood *17 evidence rests is premise on which such I am authorized to state Justice faulty: me in this dissent. joins McHUGH People case
“In the celebrated Col-
lins, Cal.Rptr. 68 Cal.2d were an
P.2d 33 the defendants couple. A described
inter-racial witness and a the robbers as white woman S.E.2d 851 yellow in a man who left the scene black Virginia STATE of West conjectured that 1 car. 1,000 yellow, and that 1 in in 10 cars is W. GILBERT. John couples inter-racial. Thus the 10,000 19449. figure to 1 odds the No. given the guilty. were defendants Supreme Appeals Court Collins, underlying “In statistics Virginia. West Fearing wholly conjectural.... July 1990. 1 in on the jury might have seized convict, 10,000 figure to the California court. the trial
Supreme Court reversed Lilly, An Introduction generally G.
See
(1987)
23-24,
Woodall,
Evidence
at 499-504
496]
[
].
the Law