WEST VIRGINIA RECORD

CHARLESTON – Julian Smith, who served 14 years of a 40-year prison sentence for a robbery at a Taco Bell in South Charleston, has won a new trial.

The state Supreme Court of Appeals decided last month that Kanawha Circuit Judge Louis Bloom committed errors that prejudiced Smith at trial in 1993.

Chief Justice Robin Davis and Justices Joseph Albright, Brent Benjamin and Larry Starcher reversed the conviction and remanded the case to Bloom. Justice Spike Maynard dissented.

Prosecutors would have a tough time convicting Smith again so long after the crime, but he may stay locked up. He pleaded guilty to first degree murder and second degree murder in a separate case.

The robbery happened before dawn Aug. 24, 1991. Two men entered with their faces covered. One held a gun. They forced all employees but shift manager Beverly Pauley into a cooler.

They told Pauley to open the safe. She did, and they took $3,088.13. Then they put her in the cooler.

Police responded to a robbery report and found Harold Lee Jones in a car near the Taco Bell.

Smith's uncle had rented the car. He told police his nephew planned to drive it to Ohio.

Police questioned Smith at 6 a.m., at his mother's house on Second Street in Charleston. He said he was sleeping there at 5 a.m.

Police went to Smith's home on Hanna Drive in Charleston. Near it, in weeds, they found a Taco Bell bag, receipts, empty money bags and clothing.

Jones told police he drank until 3 a.m. at the Warehouse nightclub with Smith and Freeman Caffee III. He said he drove Smith to his mother's house and drove Caffee to St. Albans.

He said he stopped the car near the Taco Bell because he was tired.

Next, police identified Pauley as Smith's girlfriend.

In 1992 a grand jury indicted Smith, Jones, Caffee and Pauley for aggravated robbery.

Caffee pleaded guilty to unaggravated robbery and agreed to testify against Smith.

In pretrial motions, Smith asked for a witness list, statements of witnesses, statements of other defendants and disclosure of promises the state extended to witnesses.

Prosecutors answered that they were unaware of evidence favorable to Smith. They supplied a witness list that did not name Caffee or Jones. They rejected the other requests as beyond the scope of law.

At Smith's trial Caffee testified that he and Smith robbed the Taco Bell with help from Jones and Pauley.

Smith testified in his own defense that he was sleeping at his mother's house.

Prosecutors then called Jones as a rebuttal witness and disclosed to the defense that Jones had given police a statement supporting Smith's alibi.

Jones testified, contrary to his statement, that he provided the weapon and waited in the car.

Smith moved to dismiss. His attorney argued that Smith should have seen Jones's statement before trial and that the state should have called Jones to the stand before Smith testified, not after.

A prosecutor told Bloom there was no plea agreement with Jones, but on cross examination Jones said the state offered to reduce the charge against him in exchange for testimony.

Jurors convicted Smith. In June 1993, after Smith had pleaded guilty to separate murder charges, Bloom sentenced him to 40 years.

In 2004 Smith petitioned for habeas corpus, to overturn his sentence. Bloom resentenced him to a 40 year term in 2005 and granted him leave to appeal.

Kanawha County public defenders Paula Cunningham and Wendy Campbell represented Smith. For Attorney General Darrell McGraw, Assistant AG James Wegman represented the state.

In an unsigned opinion, the Supreme Court of Appeals held that the state failed to provide notice of Jones's testimony, failed to disclose his statement supporting Smith's alibi, and failed to disclose a possible plea agreement.

The Justices quoted a 1994 decision that, "We 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."

They wrote that the state improperly called Jones as an undisclosed rebuttal witness.

"The State must have anticipated that Jones would be used at trial," they wrote.

Maynard wrote in dissent that Bloom's alleged errors were not prejudicial. He wrote that failure to disclose a rebuttal witness in an alibi case does not require reversal of a conviction.

He doubted that Jones's statement to police supported Smith's alibi, since dropping Smith off at 3 a.m. was not inconsistent with Smith committing robbery at 5 a.m.

"I am at a complete loss as to how the State's failure to disclose that Jones had been offered the possibility of entering a plea to unaggravated robbery in exchange for his testimony prejudiced the defendant," Maynard wrote.

He wrote that conviction was not due to nondisclosure but rather to substantial evidence of guilt.

Albright responded in a concurring opinion that Maynard examined Bloom's errors separately and diluted their cumulative significance. Starcher joined the opinion.

Albright wrote that Maynard tried to divine what the jury might have done if the defense had been given a level playing field.

"That is a flight of fantasy in which we should not participate," Albright wrote.