Opinion
No. 11-0995
05-29-2012
Robert C. Shrout Petitioner Below, Petitioner v. Evelyn Seifert, Warden Respondent Below, Respondent
(Monongalia County 07-C-368)
MEMORANDUM DECISION
Petitioner Robert C. Shrout, by counsel, Karen L. Hall, appeals the Monongalia County Circuit Court order dated March 31, 2011, denying him habeas corpus relief. The State, by counsel, C. Casey Forbes, has filed its response on behalf of Warden Seifert. Petitioner has filed a reply.
This Court has considered the parties' briefs and the appendix on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the appendix presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Revised Rules of Appellate Procedure.
"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).
Petitioner herein was convicted of felony murder in 1984. During his trial, petitioner attempted to place blame on the victim's boyfriend, but numerous witnesses gave the boyfriend an alibi. Further, witnesses placed petitioner at the victim's apartment building, and a man matching petitioner's description was seen in the apartment after screams were reported from that apartment. Additionally, petitioner's brother testified that just after the murder, petitioner told him that he wanted to hitchhike out of the state and that he thought he had killed a woman. Trooper Lynn Inman of the West Virginia State Police testified as to the serology evidence, which showed that the person in the victim's apartment on the night of the murder had a "secretor" blood type from the "Lewis categories," meaning that he secretes blood in other bodily fluids. Petitioner is a secretor, while the boyfriend is not. The jury found petitioner guilty of murder in the first degree.
Petitioner filed a motion requesting DNA testing pursuant to West Virginia Code § 15-2B-14. The motion was granted and testing was performed. This testing excluded petitioner as a possible contributor on either sample of fluid from the victim's sleeping bag. However, he could not be excluded from the specimen found in the vaginal swab of the victim and the saliva on the cigarette butts found in the victim's apartment, as his DNA was consistent with the same. The boyfriend was excluded as a donor of these samples. A Zain III hearing was held pursuant to In the Matter of : Renewed Investigation of the State Police Crime Laboratory, Serology Division, 219 W.Va. 408, 633 S.E.2d 762 (2006), and the testimony shows that Fred Zain potentially performed testing on four of the cigarette butts in the case, but that it could not fully be determined whether he performed the testing or simply reviewed the testing. Petitioner's request for habeas relief was denied by the circuit court in an extensive order finding that Trooper Inman's testimony was not misleading or false, and that there were sufficient grounds for petitioner's conviction. The circuit court concluded that there were no grounds for a new trial.
Petitioner asserts two assignments of error on appeal. First, he argues that the circuit court abused its discretion by failing to rule that Trooper Inman provided false or misleading testimony at his murder trial. Petitioner argues that Trooper Inman provided misleading testimony on different facts, such as omitting that there is a third type of Lewis blood type that can be a secretor or a non- secretor. Petitioner argues that this omission led the jury to believe that the only options for who was in the victim's apartment was the victim's boyfriend, a non-secretor, and petitioner, a secretor, when a third Lewis-type individual could have been there. Petitioner argues that Trooper Inman also testified falsely when she indicated that she was the one who tested all of the evidence, when it appears that Fred Zain may have conducted some of the testing; thus, the testing must be excluded. Petitioner argues that absent the excluded evidence, the evidence is insufficient to convict him. Petitioner argues that the circuit court failed to acknowledge that petitioner's fingerprints were not found in the apartment, and that samples from a sleeping bag showed that at some point a third unknown person had been in the apartment. Petitioner acknowledges that the victim's boyfriend had a good alibi but that petitioner produced several witnesses that felt that the boyfriend or petitioner's brother had committed the crime.
The State responds, arguing that Trooper Inman did not provide false or misleading testimony because she did, in fact, conduct all of the testing on the sleeping bag; cigarette butts; blood samples from the victim, petitioner, and the victim's boyfriend; and the vaginal swab. The State notes that Trooper Inman never stated that there was no one else conducting testing on some of the other cigarette butts. Moreover, the State argues that Fred Zain's initials on an informal raw data sheet for four of the cigarette butts does not prove that he was the tester for those items. As Trooper Myers explained in his testimony, the initals could mean that Zain simply read the results. The State also argues that Trooper Inman's testimony regarding the Lewis secretor categories was not misleading or false, as she was never asked how many Lewis secretor categories exist. Finally, the State argues that even without the serological evidence, the remaining evidence is sufficient to convict petitioner beyond a reasonable doubt.
The Court has carefully considered the merits of these arguments as set forth in his petition for appeal and in the State's response, and it has reviewed the appellate record. This assignment of error was fully examined below. The Court finds no error in the denial of habeas corpus relief and fully incorporates and adopts, herein, the circuit court's detailed order dated March 31, 2011. The Clerk of Court is directed to attach a copy of the same hereto.
Petitioner argues in his second assignment of error that the circuit court erred in ruling that he is not entitled to a new trial in accordance with the standards set forth in State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979). Petitioner argues that he has met all of the factors in Frazier, and all but the fourth factor have been basically conceded by the State. Petitioner argues that DNA evidence on the sleeping bag shows the presence of an unidentified third party which creates reasonable doubt, and that his conviction cannot be sustained.
The State responds that the circuit court did not abuse its discretion in concluding that petitioner is not entitled to a new trial as none of the Frazier factors are met. The State argues that the testimony of Trooper Inman was not false or misleading, and therefore there is no newly discovered evidence. The State further argues that as to the fourth Frazier factor specifically, even if this Court finds that this is newly discovered evidence, this case does not warrant a new trial because an opposite result would not be reached if a new trial were granted given the weight of the remaining evidence against petitioner.
"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 the facts stated in his affidavit that plaintiff 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, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).Syl. Pt. 1, State v. William M., 225 W.Va. 256, 692 S.E.2d 299 (2010). In the present case, the circuit court detailed the evidence against petitioner, properly excluded the evidence that cannot be considered pursuant to Zain III, and found that evidence was sufficient to sustain petitioner's conviction. We find no error in the circuit court's conclusion that the evidence presented by petitioner does not constitute new evidence that would result in an acquittal.
For the foregoing reasons, we affirm.
Affirmed.
CONCURRED IN BY:
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Thomas E. McHugh
DISSENTING:
Chief Justice Menis E. Ketchum