Supreme Court rejects new trial for former delegate

By Kyla Asbury | Oct 26, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has rejected a new trial for former Monongalia County Delegate Clyde Richey, who was convicted of third-degree sexual assault nearly 40 years ago.

Richey was convicted of the sexual assault of a 14-year-old legislative page in 1979. He requested a new trial due to what his defense team called discovery of new evidence that was unused by the prosecution during the trial.

Richey appealed Kanawha Circuit Court’s Sept. 20, 2016, order, which denied his motion for a new trial and motion for expedited relief, according to the Oct. 20 memorandum decision.

“Petitioner, a former state legislator, was convicted following a jury trial in 1979 of third-degree sexual assault after fourteen-year-old D.B. testified that petitioner anally penetrated him in a hotel room while D.B. stayed in Charleston for service as a legislative page,” the memo states.

D.B. reported the assault to his mother when he returned home two days later. His mother took him to West Virginia University Hospital where a doctor ordered, among other testing, a cytological smear to detect the presence or absence of spermatozoa.

“Cytologists created a slide of the cytological smear, but the state did not use slide R1 at trial,” the memo states. “Trial testimony clarified that no spermatozoa was detected in testing. Petitioner initially maintained that he learned of slide R1 approximately ten years after trial; however, after filing his brief with this Court, petitioner filed an ‘addendum to correct factual inaccuracy’ informing the Court that trial counsel was, in fact, aware of slide R1.”

Richey was sentenced to five years of probation, and that sentence has been discharged; however, he is a registered sex offender.

“Petitioner appealed his conviction, and the conviction was affirmed,” the memo states. “Petitioner has sought post-conviction relief in the Circuit Court of Kanawha County or before this Court on multiple occasions…”

In 2005, Richey filed a civil action in the Magistrate Court of Monongalia County seeking to compel West Virginia University Hospital to produce slide R1, and the magistrate court inexplicably ruled in his favor.

Richey took custody of slide R1 more than a decade ago, in 2006. At some point, he obtained independent genetic testing from a Nevada-based laboratory of slide R1 using comparison material he collected himself—discarded diabetic testing strips and bloodied gauze.

“According to materials presented to us in the appendix record on appeal, that testing confirmed that no spermatozoa was present on the slide, but results indicated that petitioner ‘[could] not be excluded as a contributor’ to genetic material contained on the slide,” the memo states. “Approximately eight years after taking possession of slide R1, petitioner sought a second independent comparison (by the same provider) using new genetic samples collected by a nurse.”

Richey represents that the second test indicates that he is excluded as a contributor to any genetic material contained on slide R1, though slide R1 suggests other genetic contributors. On this basis, petitioner filed a motion to vacate his conviction and for a new trial.

The circuit court denied Richey’s motions, first noting its concerns about the chain of custody of slide R1 and the reliability of petitioner’s genetic samples.

But, the circuit court did not rest its denial on those concerns. Rather, it found that slide R1 would not be admissible because Rule 412 of the West Virginia Rules of Evidence prohibits evidence suggesting other sexual activity by the victim.

“Because the State did not introduce evidence at trial concerning the deposit of semen, the court reasoned, petitioner would be using slide R1 in an attempt to show that D.B. engaged in sexual relations with an individual who was not petitioner,” the memo states. “Further, the court explained, evidence of semen deposit of some other origin is not exculpatory because D.B. knew petitioner and testified that petitioner was his assailant. The circuit court considered the factors under which a new trial would be granted…and determined that slide R1 would not be admissible in a new trial because its purpose is solely ‘to discredit or impeach a witness on the opposite side,’ and because petitioner had not been diligent in pursuing this claim.”

Finally, the circuit court noted that it previously, in a 1998 order, found this issue barred by res judicata.

“The circuit court acted under no misapprehension of the law when denying petitioner’s motion for a new trial and, if it acted under a misapprehension of the evidence, the error was one that served petitioner,” the memo states.

The Supreme Court’s decision was unanimous.

W.Va. Supreme Court of Appeals case number: 16-0956

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