State of West Virginia ex rel. Smith, Prosecuting Attorney v. The Honorable Michael Olejasz, Judge of the Circuit Court of Ohio County

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

SEPTEMBER 2021 TERM FILED

November 19, 2021

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

No. 21-0404 OF WEST VIRGINIA

STATE OF WEST VIRGINIA, EX REL.

SCOTT R. SMITH, PROSECUTING ATTORNEY, OHIO COUNTY

Petitioner

V.

THE HONORABLE MICHAEL J. OLEJASZ,

JUDGE OF THE CIRCUIT COURT OF

OHIO COUNTY, WEST VIRGINIA, AND

CHANDIS WESLEY LINKINOGGER, DEFENDANT

Respondents

________________________________________________________

PETITION FOR WRIT OF PROHIBITION

WRIT GRANTED

_________________________________________________________

Submitted: October 26, 2021

Filed: November 19, 2021

Gail W. Kahle Gerasimos (Jerry) Sklavounakis

Assistant Prosecuting Attorney Sklavounakis Law Offices

for Ohio County, West Virginia Wheeling, West Virginia

Wheeling, West Virginia Attorney for Respondent,

Attorney for Petitioner Chandis Wesley Linkinogger

CHIEF JUSTICE JENKINS delivered the Opinion of the Court.

JUSTICE WOOTON concurs and reserves the right to file a separate opinion.

SYLLABUS BY THE COURT

1. “The State may seek a writ of prohibition in this Court in a criminal

case where the trial court has exceeded or acted outside of its jurisdiction. Where the State

claims that the trial court abused its legitimate powers, the State must demonstrate that the

court’s action was so flagrant that it was deprived of its right to prosecute the case or

deprived of a valid conviction. In any event, the prohibition proceeding must offend neither

the Double Jeopardy Clause nor the defendant’s right to a speedy trial. Furthermore, the

application for a writ of prohibition must be promptly presented.” Syllabus point 5, State

v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992), superseded by statute on other grounds

as recognized by State v. Butler, 239 W. Va. 168, 799 S.E.2d 718 (2017).

2. “A writ of prohibition will not issue to prevent a simple abuse of

discretion by a trial court. It will only issue where the trial court has no jurisdiction or

having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syllabus

point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).

3. “In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the lower

tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether

the party seeking the writ has no other adequate means, such as direct appeal, to obtain the

desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not

i

correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter

of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent

disregard for either procedural or substantive law; and (5) whether the lower tribunal’s

order raises new and important problems or issues of law of first impression. These factors

are general guidelines that serve as a useful starting point for determining whether a

discretionary writ of prohibition should issue. Although all five factors need not be

satisfied, it is clear that the third factor, the existence of clear error as a matter of law,

should be given substantial weight.” Syllabus point 4, State ex rel. Hoover v. Berger, 199

W. Va. 12, 483 S.E.2d 12 (1997).

ii

Jenkins, Chief Justice:

Petitioner Scott R. Smith, Prosecuting Attorney for Ohio County (“the

State”), invokes this Court’s original jurisdiction, and petitions this Court to issue a writ

of prohibition against the respondent, the Honorable Michael J. Olejasz, Judge of the

Circuit Court of Wood County (“circuit court”), prohibiting the circuit court from enforcing

the April 22, 2021 order dismissing two counts of the indictment in the underlying criminal

case, declaring a mistrial, and ruling that the subject matter of the dismissed counts could

not be mentioned at any future trial on the remaining counts. Below, the circuit court

granted a motion to dismiss orally raised by respondent and defendant below, Chandis

Wesley Linkinogger (“Mr. Linkinogger”), after he alleged that the State violated various

discovery orders. In granting the motion to dismiss, two counts of sexual assault in the

second degree were dismissed with prejudice.

Having considered the briefs submitted on appeal, the appendix record, the

parties’ oral arguments, and the applicable legal authority, we conclude that the circuit

court failed to properly analyze the necessary factors for sanctions against the State

pursuant to our holding in State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427

(1996). Accordingly, and for the reasons set forth below, we grant the requested writ of

prohibition and prohibit the enforcement of the April 22, 2021 order that dismissed two

counts of sexual assault in the second degree with prejudice.

1

I.

FACTUAL AND PROCEDURAL HISTORY

Mr. Linkinogger was indicted by a grand jury in January of 2021 for the

crimes of strangulation, burglary, and two counts of sexual assault in the second degree.

The indictment stated that on or about September 11, 2020, in Wheeling, West Virginia,

Mr. Linkinogger forcibly entered into the victim’s home and strangled her as he sexually

assaulted her. The victim then presented to Wheeling Hospital where a Sex Crime Kit was

collected.

At the arraignment in January of 2021, the State tendered its discovery

disclosure which contained the following: (1) identity of two treating physicians from

Wheeling Hospital as expert witnesses; (2) notes taken by the nurse during the completion

of the Sex Crime Kit; and (3) results of a urine toxicology screen (completed at Wheeling

Hospital) from the victim showing positive results for cocaine, THC, and benzodiazepines.

The discovery disclosure did not include any witness, lay or expert, identified by the State

from the West Virginia State Police Forensic Laboratory (“Forensic Lab”). The State

contends that it never needed a Forensic Lab witness because on September 11, 2020, after

being advised of his Miranda rights, Mr. Linkinogger gave an extended interview to a

detective in which he admitted to having sexual relations with the victim. However, Mr.

Linkinogger claimed that the sexual relations were consensual.

2

On February 23, 2021, Mr. Linkinogger filed a motion to compel seeking

various categories of evidence and accusing the State of running afoul of its duty to provide

exculpatory evidence in accordance with Rule 32.02(a) of the West Virginia Trial Court

Rules. 1 Among the items sought was the Forensic Lab results from its testing the materials

collected at Wheeling Hospital. On March 9, the State filed a response to the motion to

compel in which it indicated—with regard to the Forensic Lab results—that “[t]he results

of all examinations and tests performed have been provided to [Mr. Linkinogger].”

Then, on March 12, the parties came together for a hearing on the motion to

compel. First, counsel for Mr. Linkinogger argued that the State was withholding the

“results of examinations and the tests that have been performed.” In response, the State

declared that while certain examination tests were disclosed, it was unsure if the materials

of the Sex Crime Kit were ever sent to the Forensic Lab or tested because it had no intention

of using any of the results at trial:

MR. KAHLE: I don’t believe it was even sent to Charleston.

It’s probably down there. We – when this case – that was

collected, as it generally is, by a S.A.N.E. nurse at the

1

Rule 32.02(a) of the West Virginia Trial Court Rules provides:

In all criminal cases, the attorney for the State shall advise the

attorney for the defendant and provide evidence favorable to

the defendant on the issue of the defendant’s guilt or

punishment without regard to materiality, within the scope

of Brady v. Maryland, 373 U.S. 83 (1963), including the

existence and substance of any payments, promises of

immunity, leniency, preferential treatment, or other

inducements made to prospective witnesses, within the scope

of United States v. Giglio, 405 U.S. 150 (1972).

3

Wheeling Hospital. I don’t intend to – if it was sent for testing,

I don’t intend to use said results. You’ll see in the State’s

disclosure there are not lab technicians indicated or examiners.

I don’t have any results. If it – it’s been sent to Charleston.

I’ve not been on their rear-end to get it done because we aren’t

in possession – what I believe – it’s not been tested by the

Court yet, but what I believe is a pretty rock solid statement of

[Mr. Linkinogger] admitting that there was lots of sexual

contact as between the defendant and [the victim] on

September 11th.

So it’s true, there are certain examination tests which have been

disclosed, and, in particular, that’d be the hospital and

treatment records. But there is no – we don’t have it.

...

And I don’t intend to introduce it at trial.

The parties then went off the record to determine whether the Sex Crime Kit was ever sent

to the Forensic Lab and if so, whether results exist.

MR. KAHLE: It has been sent. He doesn’t know the answer

to that question. I’m going to ask him to advise the Court,

myself, and Mr. Lantz by the end of today. But I have not seen

any need for them to be – for it to be rushed. . . . I didn’t do

that in this case because of the admissions made on September

11, 2020.

Upon learning that the Sex Crime Kit was sent, the circuit court ordered that the “evidence

be rushed by the West Virginia State Police Crime Lab.” Additionally, a true copy of the

lab report, dated February 22, 2021, was obtained, and was provided to Mr. Linkinogger’s

counsel in open court. A review of the report indicates that trace amounts of male DNA

was found on the two swab samples submitted. The report also suggests that no PCR DNA

(identifying DNA) analysis had been performed. Thus, the report suggested that “DNA

testing results will be the subject of a separate report.” At the time, there were no known

4

samples of Mr. Linkinogger’s DNA or of any other person with which to compare DNA

results.

Thereafter, on March 17, at 10:29 a.m., counsel for the State received an

email containing a “Motion for Order to Rush Toxicology/Lab Reports” and a “Proposed

Order” granting the requested relief. In the motion, Mr. Linkinogger sought the toxicology

results from the Sex Crime Kit collected at Wheeling Hospital on September 11, 2020, and

submitted to the Forensic Lab. Within a half hour of receiving the email, a court assistant

emailed counsel for the State and asked if there were any objections to the proposed order.

Eighteen minutes later, at 11:18 a.m., counsel responded and stated that it could not take a

position yet—it needed to make inquiry of the Forensic Lab’s ability to comply with the

order. The State’s email to the court assistant stated:

Be advised that I have a call to the WVSP Toxicology Chief,

Erin Fisell [sic] regarding the request to get their position.

Additionally, Defendant is in possession of the toxicology

screen from Wheeling Hospital, and I will be filing a Motion

in Limine to be heard on the April 2, 2021, pre-trial to preclude

evidence of drug abuse from the trial. Thank you.

At 11:49 a.m., counsel for the State received an email from the court assistant which

contained the proposed order which had been entered by the court. The order was concise

and referred only to compelling “Toxicology and any remaining lab result.”

5

The next day, on March 18, the State conversed via email with the Forensic

Lab’s Toxicology Chief, Erin Feazell. During the conversation, the Forensic Lab noted

that it was unable to comply with the order as the only specimen submitted was urine:

Mr. Kahle, I am in receipt of a court order in case 21-F-4 MJO

from the Defendant Chandis Linkinogger’s attorney Herman

D. Lantz (see attached). The order requests expedited testing

on the Toxicology samples that were submitted to the lab. The

only specimen submitted in the case was urine. Currently our

laboratory is not performing testing on urine. With your

permission, I can terminate the testing on this case and return

the Toxicology kit to the investigation officer so you can

determine whether to send the samples to a private laboratory

for testing. Please feel free to contact me if you have any

questions.

Because of the Forensic Lab’s inability to comply with the proposed order, and in an effort

to avoid additional allegations of evidence hiding and discovery violations, the State

requested, and was granted, an emergency hearing for that same afternoon.

During the virtual hearing, it became clear that the Forensic Lab was unable

to test the urine sample, and, therefore, was unable to comply with the order “rushing lab

results.” The State acknowledged that upon learning of the Forensic Lab’s inability to

comply, it immediately acted, and sought guidance from the court on how to proceed:

MR. KAHLE: I immediately notified everybody of the fact

that the State Police could not comply with the Court’s Order.

I asked her to put that in writing. I then forwarded that e-mail

onto everybody, which started, then, a series of e-mails. I first

asked for that urine to be sent back – for it to be held onto, and

to go wherever it needed to go. Um – the response was that

they don’t do that. What they do – and this must be State Police

guidelines, Judge – will return it to the requesting police

agency. With that, Judge, I said, “Can we overnight it to the

6

requesting police agency?” Um – they’re requiring a case

closure form – and I think all the other testings been done –

they are requiring a case closure form, and they can’t get it

back here until Monday.

Given the fact that we’re running – the State Police is

potentially running afoul of the Court’s Order – I felt that

whatever – I don’t want to be caught in a “got you”, Judge. I

wanted some guidance from the Court as to where to go from

here.

After hearing testimony from both parties, the Court made a determination:

THE COURT: Very good. Then how we’ll proceed then is,

Mr. Kahle, please contact Miss Feazell, or whoever – “Fee-

zell” – request that they return Item 2, the toxicology sample

to the sending agency – the Wheeling Police Department –

because they can’t test it. And then, once the Wheeling Police

Department has it back and in their safe possession – um – if

the parties want to put a draft Order to the Court, to release it

to the defense for testing, we can do that.

If there is an issue where they will not release it, for whatever

reason, and the parties want to put another Order before the

Court, I would be happy to – I’m not going to be in tomorrow,

but I’ll be happy to stop by and review it and sign it, if it does

become a problem.

Also, Mr. Lantz, after you’ve been able to have a meaningful

conversation with your client regarding these – these issues,

please inform Mr. Kahle as to your position with regard to

possible DNA sampling from your client and – um – the Court

will, again, execute any necessary orders.

(Emphasis added). From the testimony provided, two things became ultimately clear:

(1) the Lab could not run toxicology on the urine sample, and thus it would be returned to

the Wheeling Police for testing at another lab of Mr. Linkinogger’s choosing; and (2) issues

of PCR DNA testing would be deferred pending a discussion between Mr. Linkinogger

and his counsel. Subsequent to the hearing, the urine was sent to a lab in Pennsylvania for

7

toxicology testing; however, the record does not indicate that counsel for Mr. Linkinogger

ever expressed a desire for PCR DNA testing after the March 18 emergency hearing.

On April 13, 2021, the first day of trial began by seating a jury. A jury was

seated and sworn in during the first day. The next day, during the second day of trial, the

parties met for a hearing in chambers. Counsel for Mr. Linkinogger made an oral motion

for complete dismissal of charges. In the oral motion, counsel for Mr. Linkinogger made

allegations of discovery violations and argued that the State acted in bad faith in failing to

ensure that the PCR DNA testing was completed—which he claimed might somehow

expose evidence tending to exculpate Mr. Linkinogger. He also argued that toxicology

results would have yielded results showing the level of the victim’s intoxication, thus

showing the victim’s pain threshold/lowered inhibitions which was consistent with the

defense theory of consent.

The State argued that PCR DNA testing was never requested by Mr.

Linkinogger, and that without his own sample, the results would be irrelevant and

incomparable. The State further contended that if Mr. Linkinogger felt that such evidence

was needed for the defense, then a continuance to allow for such testing would be the

appropriate remedy. Further, the State noted that the toxicology report from Wheeling

Hospital that showed that the victim’s urine contained cocaine, THC, and benzodiazepines

had already been provided to the defense. The State also reminded the circuit court that

8

after the March 18 hearing, the urine sample had been sent to a laboratory chosen by the

defense.

During this meeting in chambers, the circuit court orally ruled that the State

and the Forensic Lab violated the March 17 order compelling test results, and the January

21 scheduling order, and thereby dismissed with prejudice, counts three and four (sexual

assault in the second degree) of the indictment. In addition, the circuit court also declared

a mistrial with regard to the strangulation and burglary counts and made a ruling that any

and all references to counts three and four were prohibited at any rescheduled trial. This

decision was memorialized in the April 22, 2021 order. This petition for writ of prohibition

followed.

II.

STANDARD FOR ISSUANCE OF WRIT

This Court has previously found that there are limited circumstances in which

the State may request a writ of prohibition in a criminal matter. We held in Syllabus point

five of State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992), superseded by statute on

other grounds as recognized by State v. Butler, 239 W. Va. 168, 799 S.E.2d 718 (2017),

that

[t]he State may seek a writ of prohibition in this Court

in a criminal case where the trial court has exceeded or acted

outside of its jurisdiction. Where the State claims that the trial

court abused its legitimate powers, the State must demonstrate

9

that the court’s action was so flagrant that it was deprived of

its right to prosecute the case or deprived of a valid conviction.

In any event, the prohibition proceeding must offend neither

the Double Jeopardy Clause nor the defendant’s right to a

speedy trial. Furthermore, the application for a writ of

prohibition must be promptly presented.

Accord State ex rel. State v. Sims, 239 W. Va. 764, 767, 806 S.E.2d 420, 423 (2017).

Furthermore, in Syllabus point 2 of State ex rel. Peacher v. Sencindiver, 160

W. Va. 314, 233 S.E.2d 425 (1977), we held that “[a] writ of prohibition will not issue to

prevent a simple abuse of discretion by a trial court. It will only issue where the trial court

has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code,

53-1-1.” This Court will grant writs of prohibition

to correct only substantial, clear-cut, legal errors plainly in

contravention of a clear statutory, constitutional, or common

law mandate which may be resolved independently of any

disputed facts and only in cases where there is a high

probability that the trial will be completely reversed if the error

is not corrected in advance.

Syl. pt. 1, in part, Hinkle v. Black, 164 W. Va. 112, 262 S.E.2d 744 (1979), superseded by

statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v. King, 233 W. Va.

564, 759 S.E.2d 795 (2014).

Moreover,

[i]n determining whether to entertain and issue the writ

of prohibition for cases not involving an absence of jurisdiction

but only where it is claimed that the lower tribunal exceeded

its legitimate powers, this Court will examine five factors:

(1) whether the party seeking the writ has no other adequate

10

means, such as direct appeal, to obtain the desired relief;

(2) whether the petitioner will be damaged or prejudiced in a

way that is not correctable on appeal; (3) whether the lower

tribunal’s order is clearly erroneous as a matter of law;

(4) whether the lower tribunal’s order is an oft repeated error

or manifests persistent disregard for either procedural or

substantive law; and (5) whether the lower tribunal’s order

raises new and important problems or issues of law of first

impression. These factors are general guidelines that serve as a

useful starting point for determining whether a discretionary

writ of prohibition should issue. Although all five factors need

not be satisfied, it is clear that the third factor, the existence of

clear error as a matter of law, should be given substantial

weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1997). With these

standards in mind, we now examine the State’s request for a writ of prohibition.

III.

DISCUSSION

At issue in the case sub judice is the ruling of the circuit court dismissing,

with prejudice, two counts of sexual assault in the second degree as a sanction for alleged

discovery violations. In ruling as such, the circuit court’s order not only dismissed two

counts of the indictment, but also declared a mistrial with regard to the other two counts:

strangulation and burglary. The State maintains that the circuit court abused its discretion

and “wrongfully deprived the State [of] its right to prosecute Mr. Linkinogger for serious

felony allegations” when it dismissed the indictment as a discovery sanction.

11

Mr. Linkinogger rebuts the arguments of the State and argues that the circuit

court properly dismissed the two sexual assaults counts because the State failed to produce

evidence crucial to the resolution of the case. Moreover, he contends that the State is not

entitled to a writ of prohibition because (1) the circuit court’s order was not so flagrant as

to deprive the State of its right to prosecute the underlying criminal case; and (2) granting

the writ of prohibition would violate his rights against double jeopardy.2

2

In his brief, Mr. Linkinogger contends that granting a writ of prohibition

would violate his rights against double jeopardy. To support this contention, Mr.

Linkinogger states that he was placed on trial on a valid indictment before a court of

competent jurisdiction, and a jury was impaneled and sworn. Therefore, because of this,

his rights against double jeopardy are at issue.

Because this case is a case of original jurisdiction, the State was unable to

file a reply brief. As such, during oral argument, the State addressed and provided its

rebuttal to this argument. While the State acknowledged that the jury was indeed

impaneled and sworn, it maintains that Mr. Linkinogger’s double jeopardy rights are not

triggered in this matter because double jeopardy is only triggered when the action taken is

equated to an acquittal, not whether the action is titled or characterized as an acquittal. We

agree. In State v. Adkins, this Court stated:

In the case presently before us Adkins was indicted as the “sole

perpetrator” of the crime of murdering Idona Baker, i.e., as a

principal in the first degree. The evidence, viewed in the light

most favorable to the State, however, showed only that Adkins

had aided and abetted Mooney in the commission of the crime.

Under State v. Bennet, [157 W. Va. 702, 203 S.E.2d 699

(1974)] Adkins was therefore entitled to a directed verdict of

acquittal due to a variance between pleading and proof. The

mere designation of that order as an “acquittal,” however, does

not in and of itself bar a retrial of the defendant. As noted in

footnote 15 of State ex rel. Watson v. Ferguson, [166 W. Va.

337, 274 S.E.2d 440 (1980)] “The critical question is under

what circumstances the first trial aborted and in particular

whether it was aborted by reason of prosecutorial or judicial

‘bad faith,’ including evidentiary insufficiency.” 166 W. Va. at

347, 274 S.E.2d at 445. In the case before us the “acquittal”

12

The two counts of sexual assault in the indictment against Mr. Linkinogger

were dismissed as a sanction for the State’s alleged noncompliance with two court orders:

(1) the January 21, 2021 scheduling order; and (2) the March 17, 2021 ex parte order

rushing “Toxicology and any remaining lab results in this matter.” The State first contends

that no discovery violations actually existed. To support this contention, the State avers

that its discovery disclosure was provided two weeks before the deadline and contained

“all the Rule 16 discovery that existed at that time.” The scheduling order stated that

February 4, 2021 was the State’s discovery deadline. The Forensic Lab report at issue

was not authored until February 22, 2021, and was provided to defense counsel in open

court at the March 12 hearing—a full month before the scheduled trial date. Moreover,

with regard to the March 17 order to compel, the State asserts that the order was entered

without a hearing, and without the sufficient time necessary for meaningful

communication with the Forensic Lab. It was not until after the order was entered, that

did not arise from any evidentiary insufficiency or any other

prosecutorial or judicial “bad faith.” Id. Similarly, the

“acquittal” in this case was not based upon “a resolution . . . of

some or all of the factual elements of the offense

charged.” United States v. Martin Linen Supply Co., [430 U.S.

564, 571, 97 S.Ct. 1349, 1354-1355, 51 L.Ed2d 642, 651

(1977).] We are therefore of the opinion that double jeopardy

does not bar a retrial of the defendant upon an indictment

charging him as an aider and abettor in the murder of Idona

Baker.

State v. Adkins, 170 W. Va. 46, 51, 289 S.E.2d 720, 724-25 (1982).

In the case sub judice, although the Circuit Court dismissed the two counts

of sexual assault, it cannot be equated as an acquittal. Rather, the dismissal was procedural

in nature, and therefore Mr. Linkinogger’s rights against double jeopardy are not triggered.

13

the State learned from the Toxicology Chief that the Forensic Lab did not perform

toxicology on urine samples, and therefore the urine would be returned for testing at a

private laboratory, if requested by Mr. Linkinogger. Therefore, because the State

complied in good faith with both of the orders, the State submits that no discovery

violations exist. However, even if discovery violations did exist in the present matter, the

State argues that the remedy imposed—complete dismissal of violent felonies—did not

comport with the alleged discovery violations and was an inappropriate sanction. We

agree.

To begin our analysis, we begin with some general observations. Rule

16(d)(2) of the West Virginia Rules of Criminal Procedure states that

If at any time during the course of the proceedings it is

brought to the attention of the court that a party has failed to

comply with this rule, the court may order such party to permit

the discovery or inspection, grant a continuance, or prohibit

the party from introducing evidence not disclosed, or it may

enter such other order as it deems just under the

circumstances. The court may specify the time, place and

manner of making the discovery and inspection and may

prescribe such terms and conditions as are just.

As this Court stated in State ex rel. Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994),

“[w]e believe that it is necessary in most criminal cases for the State to share its information

with the defendant if a fair trial is to result. Furthermore, we find that complete and

reasonable discovery is normally in the best interest of the public.” Id. at 139, 454 S.E.2d

at 433. Rule 16 of the West Virginia Rules of Criminal Procedure does not a provide a

14

bright-line rule for courts to use when dealing with discovery violations. While Rule 16

contains some examples of potential sanctions, the rule also includes a vague phrase giving

circuit courts broad latitude: may enter such other order as it deems just under the

circumstances.

When reviewing whether a circuit court erred in imposing such a severe

sanction as complete dismissal, we are guided by this Court’s prior decision in State ex rel.

Rusen v. Hill, 193 W. Va. 133, 454 S.E.2d 427 (1994). In Rusen, this Court concluded

that “[t]he scope of appellate review must necessarily be an abuse of discretion standard.”

Id. at 140, 454 S.E.2d at 434. In making this determination, the Rusen Court examined the

range of remedies found in Rule 16 of the West Virginia Rules of Criminal Procedure and

noted that circuit courts are given broad latitude. However, the Court also identified a need

for clarification and guidance:

This broad language justifies the adding of several other

remedies or sanctions to the list such as (a) advising the jury to

assume the existence of facts that might have been established

by the missing information, (b) holding the violator in

contempt of court, (c) granting a mistrial, and (d) dismissing

the charges. We specifically hold that one of the permissible

sanctions under Rule 16(d)(2) for a discovery violation is a

dismissal with prejudice.

Id. The Rusen Court continued, and found that determining

[w]hich remedy is preferable is best left to the discretion of the

circuit court. Such rulings will not be reversed unless there is

an abuse of discretion. The circuit court must have discretion

15

to fashion a remedy for noncompliance that encompasses “a

fair balancing of the interests of the courts, the public, and the

parties[,]” recognizing that the dismissal of cases with

prejudice is a remedy which should be used only in the most

egregious cases. People v. Taylor, 159 Mich.App. 468, 487,

406 N.W.2d 859, 869 (1987).

Id. Next, the Court set forth several factors that must be examined when analyzing whether

an abuse of discretion occurred. Those factors include, but are not limited to:

(a) the importance and materiality of the information that was

not disclosed;

(b) the ability of the party to try the case without the

information or the nature of the prejudice claimed by the failure

to comply with the discovery order;

(c) the extent to which a continuance or other lesser relief

would delay the trial or otherwise impact adversely the

administration of justice;

(d) the degree of negligence involved and the explanation of

the party’s failure to comply with a discovery request;

(e) the effort made by the party to comply with the discovery

order;

(f) the number of times the circuit court ordered the party to

comply with the discovery order; and

(g) in some cases, the severity of the offense.

Id. Finally, the Rusen Court concluded, and elaborated on the role of the circuit court when

utilizing the aforementioned factors:

Further expansion of these factors is necessary. Once a circuit

court receives a motion requesting sanctions or relief for

discovery violations, the circuit court should order, to the full

extent required by the discovery rules or the court order, an

immediate disclosure. The relief that is appropriate initially

will depend to a large degree on the reason disclosure was not

16

timely made and the prejudice resulting from the failure to

provide timely discovery. Similarly, the circuit court should

review the frequency and force of the defendant’s objections

or motions as opposed to attaching significant weight to a pure

pro forma protest. The preferred relief where the party

responsible for the violation has not acted in bad faith is to

grant the defendant a continuance giving him or her an

opportunity to prepare for trial once the discovery materials

have been made available. Thus, where the violation relates

to discovery of potential trial evidence, the circuit court is

advised to grant a continuance sufficient in duration to permit

the defendant to obtain that evidence and to prepare for trial.

Id. at 140-41, 454 S.E.2d at 434-35 (emphasis added).

This Court’s decision in Rusen was elaborated upon in State ex rel. Plants v.

Webster, 232 W. Va. 700, 753 S.E.2d 753 (2012) (per curiam). In Plants, this Court issued

a writ of prohibition prohibiting the enforcement of a circuit court’s order that excluded

evidence from trial as a discovery sanction. Id. at 708, 753 S.E.2d at 761. When faced

with the record before it, the Plants Court analyzed the circuit court’s ruling under the

Rusen factors and found that the State did not act in bad faith in its dealings with the subject

evidence. Id. at 707, 753 S.E.2d at 760. Rather, the Court maintained that the conduct at

issue “was unintentional, and that the State made a reasonable effort to comply with [the

respondent’s] discovery requests.” Id. Thus, in an effort to correct the abuse of discretion

below, the Plants Court granted the writ of prohibition because “[w]ithout this writ, the

State, who has no right to appeal a criminal conviction, may otherwise be without a remedy

to correct this legal error.” Id. at 708, 753 S.E.2d at 761.

17

In the case sub judice, on the second day of trial, the parties met in

chambers—away from the jury—to discuss the alleged discovery violations committed by

the State. In response to these allegations, the State once again denied that said violations

occurred, and requested that, “if this is so important to [Mr. Linkinogger], that the remedy

would be a continuance to get PCR testing done. . . . The results or the remedy should not

be a dismissal for an adverse inference, but rather a continuance to get these testing results

done.” Conversely, counsel for Mr. Linkinogger made an oral motion to dismiss the two

counts of sexual assault because of the State’s failure to comply with the court’s prior

orders. The circuit court ultimately agreed with Mr. Linkinogger and granted the motion.

Most significant, in granting the motion to dismiss the two counts of sexual assault in the

indictment with prejudice, the circuit court cited no legal authority and gave no reasoning

for its action beyond stating that “the State violated two Court Orders by not producing

evidence crucial to the resolution of this case.”

The circuit court’s order granting Mr. Linkinogger’s motion to dismiss the

sexual assault counts from the indictment does not contain any analysis of Rule 16 or the

Rusen factors—a “necessary analysis.” See, e.g., Plants, 232 W. Va. 700, 706, 753 S.E.2d

753, 759 (“The lower court’s order granting [respondent’s] motion to suppress the shell

casings and other evidence does not contain this “necessary analysis.”). Because of this

omission, we are then left to analyze the circuit court’s ruling using the Rusen factors as

our guide, based on the limited record before us.

18

The transcript from the March 12 hearing shows that during a recess, it was

confirmed that the Sex Crime Kit was sent to the Forensic Lab. During that same hearing,

a copy of the lab report was provided to Mr. Linkinogger’s counsel in open court. While

the report showed evidence of male DNA on various parts of the victim’s body, the report

was clear that no PCR DNA analysis was completed—“DNA testing results will be the

subject of a separate report.” A few days later, on March 17, the State received an email

with an attached proposed order compelling lab and toxicology results. Within minutes,

the State acted and contacted the Forensic Lab to see if toxicology tests were ever

performed on the urine sample. Before the Forensic Lab could respond, the circuit court

entered the order. The next day, the Forensic Lab notified the State that it does not perform

testing on urine. As such, the Forensic Lab offered to return the urine so that further testing

could be completed at a private lab if Mr. Linkinogger so requested.

Within hours of learning that it could not comply with the entered order, and

in a clear effort to avoid any hint of impropriety, the State asked for an emergency hearing.

The transcript of this hearing—the March 18 virtual hearing—indicates that Mr.

Linkinogger’s counsel was “more interested in the toxicology results than . . . those DNA

results.” Counsel for Mr. Linkinogger indicated that he wanted toxicology on the urine

sample because it could show the victim’s level of impairment, which would assist in the

defense’s theory of consent. Counsel also confirmed that he was aware that he needed to

verify whether Mr. Linkinogger wished to have PCR DNA testing performed: “I need to

discuss with Mr. Linkinogger whether or not he desires to have the remaining testing done.

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. . . That’s a conversation that I need to have with him.” This also needed to be confirmed,

so that Mr. Linkinogger could provide a sample of his own DNA for comparison and

analysis. From our review of the record, there is nothing to suggest that Mr. Linkinogger

ever requested the PCR DNA testing after the March 18 hearing.

More troubling, are defense counsel’s apparent misrepresentations to the

circuit court during the second day of trial on April 13, 2021. On March 22, 2021, Erin

Feazell of the Forensic Lab sent an email to defense counsel in which she answered various

inquiries and documented questions that they had discussed earlier that day:

Would someone be able to testify to impairment based on

levels of drugs found in the urine? If we tested the sample, we

would not be able to testify to impairment. I am unsure

whether or not a toxicologist from a private lab would be able

to do this. Typically toxicologists can’t testify to impairment

just based on a number from a lab result. Generally, additional

information needs to be provided in order to form these types

of opinions. You would have to contact the lab directly to see

if they would be able to provide this type of testimony.

However, despite receiving this response from the Forensic Lab—which clearly establishes

that it cannot testify to impairment, defense counsel represented to the court on April 13,

that had the Forensic Lab done toxicology testing on the urine, there would have been

evidence to “determine what was happening at the time [of the alleged assault], [the

victim’s] inhibitions and willingness to engage in activity that she may not otherwise be

willing to engage in.”

20

From the appendix record, it does not appear that the State negligently or in

bad faith violated the orders of the circuit court regarding the testing of evidence. Rather,

the record illustrates the diligent steps taken by the State to ensure its compliance with the

orders of the court (i.e. requesting an emergency hearing for guidance, continued

communication with the Forensic Lab, etc.). Additionally, we would be remiss to ignore

the behavior of defense counsel—which from the record—appears to have taken some

aspects of this matter out of context in an effort to confuse or obfuscate the facts in this

case. Based on our review of the appendix record as a whole, and keeping the Rusen

factors in mind, multiple details have become clear: (1) the State made it known early on

that it did not intend to call any witness from the Forensic Lab; (2) Mr. Linkinogger

admitted to police that he had lots of sexual interactions with the victim the night of the

attack; (3) because of Mr. Linkinogger’s admission, the State would not need DNA

evidence to prove that Mr. Linkinogger was the individual who had sexual relations with

the victim; (4) within hours of the March 17 order to compel being entered, the State took

precautionary action to avoid running afoul of the circuit court’s order when it asked for

an emergency hearing on March 18; (5) the Forensic Lab does not run toxicology tests on

urine; (6) all parties knew, or became aware that the Forensic Lab did not test the urine by

the March 18 emergency hearing and the parties agreed to send the urine to a laboratory

chosen by the defense for further testing; (7) on March 18, Mr. Linkinogger knew that if

he wanted PCR DNA testing completed, he needed to make his wishes known so that

evidence could be sent to a private laboratory; (8) by the time trial began on April 12,

defense counsel knew that toxicology results on the urine would not indicate the victim’s

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level of impairment, yet counsel represented to the circuit court that he needed those results

to support his theory of consent and the victim’s inhibitions; and (9) there was no bad faith

or intentional action on the part of the State.

When deciding what sanctions to impose for discovery violations, “our

preference remains for trial courts to grant continuances in most cases.” Plants, 232 W.

Va. 700, 707, 753 S.E.2d 753, 760.

The relief that is appropriate initially will depend to a

large degree on the reason disclosure was not timely made and

the prejudice resulting from the failure to provide timely

discovery. Similarly, the circuit court should review the

frequency and force of the defendants’ objections or motions

as opposed to attaching significant weight to a pure pro

forma protest. The preferred relief where the party responsible

for the violation has not acted in bad faith is to grant the

defendant a continuance giving him or her an opportunity to

prepare for trial once the discovery materials have been made

available. Thus, where the violation relates to discovery of

potential trial evidence, the circuit court is advised to grant a

continuance sufficient in duration to permit the defendant to

obtain that evidence and to prepare for trial.

Our cases and the West Virginia Rules of Evidence have

declared an implicit preference for a continuance when there

has been a discovery violation. See W. Va. R. Evid. 403

(“unfair surprise” is not listed as a ground for

exclusion). See State v. Barker, 169 W. Va. 620, 623, 289

S.E.2d 207, 210 (1982) (“[e]ven if this were a ‘proper’ case in

which to claim surprise, the appellant failed to move for a

continuance, and, therefore, waived his right to one”); Martin

v. Smith, 190 W. Va. 286, 291, 438 S.E.2d 318, 323 (1993)

(“even given that the admission of Dr. Adams’ testimony

prejudiced Dr. Smith’s case, we find such prejudice far from

22

incurable. Dr. Smith could have easily moved for a

continuance in order to secure a comparable expert witness”).

Rusen, 193 W. Va. 133, 140-41, 454 S.E.2d 427, 434-35. However, we also recognize that

there are some circumstances where a continuance is not appropriate.

If a continuance will cause too great a disruption in the trial

process, or if a continuance will not dissipate the prejudice

caused by the nondisclosure, a circuit court should consider

stronger measures such as dismissal. Sanctions generally

should not have “adverse effects on the rights of the parties”; a

dismissal with prejudice necessarily has a substantial effect on

the interest of the community and the party represented by the

prosecution.

Id. at 141, 454 S.E.2d 427 at 435. As such, “the sanction of dismissal should be used

sparingly and only when the prosecution has been derelict in its effort to comply with

discovery orders.” Id.

Applying the factors that we have discussed to the instant case, we conclude

that the circuit court abused its discretion when it dismissed the two counts of sexual assault

with prejudice as a sanction for alleged discovery violations on behalf of the State. We

find that the State acted in good faith in its dealings with the forensic evidence in this matter

and took proper, appropriate precautions to ensure that it abided by the discovery orders

imposed by the court. The State put forth the effort to comply with the orders at issue,

which is evidenced by the email communications with the Forensic Lab, and the timely

request for the emergency hearing. Any alleged discovery violation or delay that may have

occurred was unintentional, and there is nothing to indicate that a continuance—instead of

23

a dismissal—would have disrupted or prejudiced Mr. Linkinogger’s case. At the time of

the dismissal, there had been no continuances, and the record failed to show that the

presence of PCR DNA analysis or urine toxicology would have had a significant impact

on the case. As such, this examination illustrates that the circuit court exceeded its

discretion in issuing such a severe sanction, and we find that the State has sufficiently

demonstrated “that the court’s action was so flagrant that it was deprived of its right to

prosecute the case.”

IV.

CONCLUSION

For the reasons set forth above, we conclude that the Circuit Court of Ohio

County abused its discretion and committed clear legal error in dismissing the two counts

of sexual assault in the second degree as a discovery sanction. As such, we find that the

State is entitled to a writ of prohibition prohibiting the circuit court from enforcing the

April 22, 2021 order dismissing two counts of the indictment in the underlying criminal

case, declaring a mistrial, and ruling that the subject matter of the dismissed counts could

not be mentioned at any future trial on the remaining counts. We vacate the April 22,

2021 ruling of the Circuit Court of Ohio County and we further direct that the mandate of

this Court be issued forthwith.

Writ granted.

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