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Terry v. Ward

Supreme Court of West Virginia

November 9, 2017

PHILLIP A. WARD, Petitioner Below, Respondent

          Submitted: October 4, 2017

         Appeal from the Circuit Court of Cabell County The Honorable Alfred E. Ferguson, Judge Civil Action No. 10-C-326

          Patrick Morrisey, Esq. Attorney General Scott E. Johnson, Esq. Assistant Attorney General Charleston, West Virginia Counsel for the Petitioner

          Connor Robertson, Esq. WESTON ROBERTSON Huntington, West Virginia Counsel for the Respondent


         1. "In reviewing challenges to the findings and conclusions of the circuit court in a habeas corpus action, we apply a three-prong standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard; the underlying factual findings under a clearly erroneous standard; and questions of law are subject to a de novo review." Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).

         2. "A prisoner against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence and who challenges his or her conviction based on the serology evidence is to be granted a full habeas corpus hearing on the issue of the serology evidence. The prisoner is to be represented by counsel unless he or she knowingly and intelligently waives that right. The circuit court is to review the serology evidence presented by the prisoner with searching and painstaking scrutiny. At the close of the evidence, the circuit court is to draft a comprehensive order which includes detailed findings as to the truth or falsity of the serology evidence and if the evidence is found to be false, whether the prisoner has shown the necessity of a new trial based on the five factors set forth in the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979)." Syl. Pt. 4, In re Renewed Investigation of the State Police Crime Lab., Serology Div., 219 W.Va. 408, 633 S.E.2d 762 (2006).

          3. "A circuit court that receives a petition for a writ of habeas corpus from a prisoner against whom a West Virginia State Police Crime Laboratoryserologist, other than Fred Zain, offered evidence, and whose request for relief is grounded on the serology evidence, is to hear the prisoner's challenge in as timely a manner as is reasonably possible." Syl. Pt. 5, In re Renewed Investigation of the State Police Crime Laboratory, Serology Division, 219 W.Va. 408, 633 S.E.2d 762 (2006).

         4. "A prisoner who was convicted between 1979 and 1999 and against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence may bring a petition for a writ of habeas corpus based on the serology evidence despite the fact that the prisoner brought a prior habeas corpus challenge to the same serology evidence, and the challenge was finally adjudicated." Syl. Pt. 6, In re Renewed Investigation of the State Police Crime Lab., Serology Div., 219 W.Va. 408, 633 S.E.2d 762 (2006).

         5. "'"A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that [defendant] was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side." Syllabus Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).' Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979)." Syl. Pt. 3, In re Renewed Investigation of the State Police Crime Lab., Serology Div., 219 W.Va. 408, 633 S.E.2d 762 (2006).

          Workman, Justice.

         This case is before the Court upon the appeal of Ralph Terry, Acting Warden, Mt. Olive Correctional Complex ("the State"), [1] from the circuit court's decision granting the amended petition for writ of habeas corpus filed by Respondent Phillip A. Ward ("Respondent Ward" or "the respondent"), vacating his conviction for felony murder and ordering a new trial. The focus of the circuit court's decision was serology test results on three pieces of evidence - a $20 bill, a $5 bill, and a $1 bill - which results linked the money to the victim during Respondent Ward's underlying trial. The serology evidence at issue was ordered to be retested by the circuit court in 1994, [2] and the circuit court made specific findings regarding the evidence in a prior omnibus proceeding brought by Respondent Ward. The issue now before the Court is whether the previously adjudicated 1994 DNA results concerning the serologyevidence constituted "newlydiscovered evidence" at the most recent omnibus hearing in 2015 that resulted in the circuit court granting Respondent Ward a new trial. Based upon our review of the parties' briefs and arguments, the appendix record, and all other matters before the Court, we find the circuit court erred in granting Respondent Ward a new trial based upon newly discovered evidence.[3] We reverse and remand the case for reinstatement of the 1987 conviction for felony murder for which Respondent Ward was sentenced to life without mercy.

         I. Factual and Procedural Background

         A. Underlying Trial

         In order to have a full understanding of the issue before the Court, it is necessary to begin with the underlying facts proven at the criminal trial.[4] On the night of May 3, 1987, Carol Carter, a night manager at a Wendy's restaurant in Huntington, West Virginia, was brutally murdered when she was beaten in the head with a cinder block during a robbery of the restaurant. Ward, 188 W.Va. at 382, 424 S.E.2d at 727. Respondent Ward, who was an inmate in the Huntington Work Release Center ("HWRC"), was also working at the restaurant that night, although his shift ended at 11:30 p.m. Respondent Ward and another employee, Craig Sigler, left Wendy's at the end of Respondent Ward's shift only to return to the restaurant about ten minutes later. They knocked on the window and Ms. Carter let them into the restaurant. Id. Sometime around 12:15 a.m., all three employees decided to leave Wendy's, but Ms. Carter went back inside the restaurant. Mr. Sigler testified that Respondent Ward was still leaning against his vehicle in the Wendy's parking lot when Mr. Sigler was leaving the parking lot. Id.

         Around 5:45 a.m., a Wendy's store manager discovered a bloody scene at the restaurant. The manager testified that he saw Ms. Carter's vehicle still in the parking lot when he arrived. He also noticed Ms. Carter's keys on the sidewalk just outside the restaurant's unlocked front door. The manager notified law enforcement and waited for them to arrive. When he entered the store with law enforcement, the manager found approximately $1348.09 missing from a safe in the office area of the restaurant. Ms. Carter's body was discovered behind a furniture store adjacent to the restaurant. Id.

         Also that same morning around 6:40 a.m., Karen Spoor, an employee of the West Virginia Department of Corrections who was working at the HWRC, saw Respondent Ward at an area gas station. When she asked Respondent Ward why he was not at home as required by the HWRC, he told her that he had been called back into work because his employer wanted to speak with him. Ms. Spoor testified that she had seen police vehicles at the Wendy's and directed Respondent Ward to call her as soon as he left the Wendy's. Respondent Ward failed to comply with her instructions and did not contact her until 3:55 p.m. that day. Respondent Ward was at his mother's home, with whom he was living, at the time he called Ms. Spoor. Ms. Spoor kept him on the phone while an HWRC administrator went to the home. When the administrator arrived, after some initial questioning regarding Respondent Ward's failure to obey Ms. Spoor's instructions, Respondent Ward excused himself for a moment and went upstairs in his mother's home. When Respondent Ward failed to return within a few minutes, the administrator went upstairs and discovered that he had fled the home. Respondent Ward was found about twenty minutes later two blocks from his mother's house. Id. at 383-84, 424 S.E.2d at 728-29.

         There also was evidence that Respondent Ward had financial difficulties. Prior to May 4, he and his girlfriend had no money, had the electric service disconnected at their apartment because of nonpayment of the bill, and had moved back into Respondent Ward's mother's home. Id. at 383, 424 S.E.2d at 728. Yet, on May 4, Respondent Ward and his girlfriend purchased a new car stereo with cash, paid for the stereo to be installed and paid an overdue electric bill in cash. Id.

         Regarding the evidence at issue in this case, a $20 bill obtained from the electric company's night cast deposit had a bloodstain on it. A $5 bill that had a bloodstain was found in Respondent Ward's wallet. Finally, a knapsack containing items belonging to the respondent was found in a garbage can next to a neighbor's home. Inside the knapsack was paper box containing thirty-five $1 bills, one of which had a bloodstain.[5] Id.

         The serology evidence was tested at the West Virginia State Police Crime Laboratory ("State Police Crime Lab"). Fred Zain testified at trial that Ms. Carter's blood sample showed she was Type B and that only 9 in every 10, 000 of the general population of West Virginia have Type B blood characteristics. Concerning the evidence in question in this case, Mr. Zain testified that blood stain evidence found on a $20 bill from the electric company, a $1 bill from the knapsack and the $5 bill taken from Respondent Ward's wallet all contained blood characteristics that were consistent with Ms. Carter's blood characteristics. But on cross-examination, Mr. Zain testified that he could not identify "whose [sic] blood it is for sure." Further, Mr. Zain stated that the bloodstains on the bills could have been on those bills for at least two months and could have come from anyone and anywhere in the world.

         At the close of all the evidence, Respondent Ward was convicted of felony murder and sentenced to life without mercy. This Court affirmed his conviction on direct appeal. Id. at 393, 424 S.E.2d at 738.

         B. Habeas Proceedings

         On December 1, 1993, following Zain I, [6] Respondent Ward filed a petition for habeas relief in this Court seeking to have DNA testing of "any forensic evidence" still available in his case due to "the involvement in my prosecution of former West Virginia State Police serologist Fred Zain." By order entered December 8, 1993, this Court remanded the matter to the circuit court for proceedings consistent with Zain I.

         Following the Court's directive, on April 22, 1994, the circuit court ordered the re-testing of any of the evidence in the criminal trial being disputed under Zain I.[7] The DNA testing was performed by Roche Biomedical Laboratories ("Roche"), which issued a report dated December 1, 1994.[8] On or after September 15, 1995, Respondent Ward began arguing for a new trial based upon the DNA test results. First, Respondent Ward filed a document entitled "Motion and memorandum[, ]" which was one paragraph requesting "a new trial in view of newly discovered evidence[.]" Respondent Ward also filed a document entitled "Newly Discovered Evidence: DNA Test Results are Inconsistent with and are Contradictory of the State's Evidence and Argument at Trial" wherein he argued that "[t]he findings of Dr. Bing are incongruent with those of Zain and if they had been put before a jury at trial, in view of the professional qualifications of Dr. Bing, would, in . . . [Respondent Ward's] view, have raised sufficient reasonable doubt to have resulted in an acquittal." Finally, Respondent Ward filed a document entitled "Memorandum" in which he argues that Fred Zain lied, entitling him to a new trial and that there was a "'legitimate possibility' that some or all of the 'evidence' offered by the prosecution in the Ward case was actually never tested by Fred Zain."

         The State filed its opposition arguing that the DNA results[9] from the testing done by Roche were "consistent with the original findings in the case." According to the State, the Roche report did not eliminate Ms. Carter as a possible source on the $20 bill, there was just not enough of the 2 allele[10] present to be reported. Further, the DNA testing by Roche found that Ms. Carter's DNA type was found on the $1 bill. Also, unlike the serology testing, the DNA testing in the Roche report also indicated that Respondent Ward's DNA type was present on both the $20 and $1 bills. As the State argued, "all of the test results obtained by Roche corroborate the earlier work of the State Police lab and the testimony at trial." Finally, the State argued that even if the serology testing was excluded, there was still sufficient evidence to convict.

         On March 28, 1996, the circuit court conducted an omnibus hearing. At the beginning of the hearing, counsel for Respondent Ward noted that there had been an agreement reached between counsel to allow affidavits from three technical experts, including Ted Smith, who were involved in the DNA testing "to submit questionnaires that had to do with their reports[.]" And the circuit court considered the questionnaires submitted by Dr. Bing, then-Sgt. Ted Smith and Marcia Eisenberg in deciding the habeas petition before it. Further, the State argued that when Respondent Ward's own expert, Dr. Bing, was asked whether the DNA results were inconsistent with the findings that Zain reflected in his testimony, Dr. Bing responded in the negative. Also, Sgt. Smith indicated in regard to the serology testing performed on the evidence: "The work is right. The numbers are right. Zain didn't do it [referring to the serology testing]. He just testified about it." Finally, the State argued at the hearing: "Both Ted Smith and Marcia Eisenberg say that the DNA testing - the PCR DNA testing and the results obtained therefrom do not differ in any way or contradict any of the matters to which Sergeant Zain testified."

         By order entered June 13, 1996, the circuit court denied habeas relief.[11] Of particular importance to the instant appeal, the circuit court found:

1) The opinion by Judge Holliday which gave rise to the Supreme Court opinion indicates the main issue of concern in these cases is testing done by Sergeant Zain at the lab as opposed to cases where he testified about testing done by others, at least where his testimony is consistent with the test results found by others.
2) In this case all or virtually all of the serology testing performed on the items of money in issue was done by either Sergeant Ted Smith or Trooper Brent Myers and Sergeant Zain's testimony at trial was consistent with those test results.
3) Sergeant Smith has reviewed the testimony of Sergeant Zain regarding the items of money in issue and has affirmed that his testimony was accurate in this case based on the tests he (Smith) performed on said money.
4)The work performed and analyzed by the experts from both the State's lab and petitioner's lab do not exclude and therefore include both the victim and petitioner as possible donor's of the DNA found on the items of money in this case.
5) The affidavits of all the experts in this case, reflected by their answers to the questionnaires presented to them in lieu of courtroom testimony, make it clear that DNA results can never conclusively establish the guilt of a defendant, as the most such testing can ever do is include or ...

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