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Waco Oil and Gas Co., Inc. v. Crum

  

WACO OIL AND GAS CO., INC. v. Crum, 671 S.E.2d 464 (W. Va. 2008)

West Virginia Supreme Court

Filed: November 14th, 2008

Precedential Status: Precedential

Citations: 671 S.E.2d 464

Docket Number: 33829

Author: Larry Starcher

671 S.E.2d 464 (2008)

WACO OIL AND GAS COMPANY, INC., Appellant Below, Appellee
v.
Matthew B. CRUM, Director, Division of Mining and Reclamation, and West Virginia Department of Environmental Protection, Appellees Below, Appellants.

No. 33829.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 2008.Decided November 14, 2008.

*465 Heather A. Connolly, Esq., Thomas L. Clarke, Esq., Office of Legal Services, WV Department of Environmental Protection, Charleston, for Appellee.

Paul E. Parker, II, Esq., Leonard B. Knee, Esq., Anthony P. Tokarz, Esq., Bowles Rice McDavid Graff & Love, Charleston, for Appellant.

STARCHER, J.:[1]

In the instant case we reinstate an order of the West Virginia Surface Mine Board that upheld the denial of a quarry mine permit.

I.

Facts & Background

The appellant, the West Virginia Division of Environmental Protection ("DEP"), appeals from a March 21, 2007 order of the Circuit Court of Kanawha County. That order reversed and vacated a January 29, 2003 decision of the West Virginia Surface Mine Board ("Board") that upheld the DEP's denial of a permit to the appellee, Waco Oil and Gas Co., Inc. ("Waco"), to operate a rock quarry in Pocahontas County, West Virginia. (The full text of the Board's January 29, 2003 order is appended to this opinion at Appendix A). Because the Board's order presents a thorough recitation of the underlying facts that led to the instant appeal, we will omit restating those facts in detail.

The circuit court order at issue in the instant case did not challenge the Board's findings of fact; nor does the appellee now contend that the Board's findings were not supported by substantial evidence. In summary, the facts are that beginning in 2000, appellee Waco sought from the DEP a permit to operate a sandstone quarry in a quiet, *466 unspoiled, remote, and beautiful geographic area of Pocahontas County — an area where tourism, second homes, and outdoor recreation are a growing and now crucial part of the local economy. For purposes of the instant appeal, it is undisputed and a matter of fact that the appellee's proposed quarrying activities would have caused substantial damage to the present and future well-being of the county, and specifically to local businesses, residents, and visitors.

After an exhaustive administrative review process, the DEP denied the permit application. Appellee Waco appealed that denial to the Board. The Board, after conducting two hearings, issued an order on January 29, 2003 which concluded that the quarrying activity proposed by the appellee would impair and destroy the recreational use and aesthetic values and the future beneficial use of the area in which the quarry was proposed to be located; and found further that the appellee's submissions to the Board and DEP as to how the appellant proposed to avoid the adverse impacts of the proposed quarrying were not credible or persuasive.

The Board additionally rejected the appellee's argument that the appellee's permit application could only be denied if the Board and DEP concluded that no quarrying activity per se could ever be conducted in the area in which the appellee proposed to operate its quarry. Rather, the Board concluded that the Board and DEP could make an individual permit application determination based on the merits of an individual permit proposal. The Board refused to rule out the possibility that a quarry permit application in the area might be approved in the future, if it was determined that a proposed quarry operation would not cause unacceptable damage.

Appellee Waco then appealed to the Circuit Court of Kanawha County. In an order dated March 21, 2007, the circuit court held that the Board was wrong in this conclusion. The circuit court held that the appellee's permit application could only be denied if the Board and DEP first concluded that all quarrying activity, per se, must be banned in the area in which the appellee proposed to operate a quarry. From this conclusion, the DEP appeals to this Court.

II.

Standard of Review

The circuit court's ruling regarding the Board's action was a matter of pure law that this Court reviews de novo. Tennant v. Callaghan, 200 W.Va. 756, 490 S.E.2d 845 (1997).

III.

Discussion

The approval or denial of a quarry permit application is principally governed by two statutes, W.Va.Code, 22-4-7 [2000] and W.Va.Code, 22-4-8 [2000], which are part of the Quarry Reclamation Act, W.Va.Code, 22-4-1 to -29.

The pertinent portion of W.Va.Code, 22-4-7 [2000] states:

(a) The director [of the Division of Environmental Protection] may deny a permit application, modification or transfer for one or more of the following reasons:

(1) Any requirement of federal or state environmental law, rule or regulation would be violated by the proposed permit.

(2) The proposed quarry operation will be located in an area in the state which the director finds ineligible for a permit pursuant to section eight [of this Article].

The pertinent portions of W.Va.Code, 22-4-8 [2000] state:

The Legislature finds that there are certain areas in the state of West Virginia which are impossible to reclaim either by natural growth or by technological activity and that if quarrying is conducted in these certain areas such operations may naturally cause stream pollution, landslides, the accumulation of stagnant water, flooding, the destruction of land for agricultural purposes, the destruction of aesthetic values, the destruction of recreational areas and future use of the area and surrounding areas, thereby destroying or impairing the health and property rights of others, and in general creating hazards dangerous to life and property so as to constitute an *467 imminent and inordinate peril to the welfare of the state, and that such areas shall not be mined by the surface-mining process.

Therefore, authority is hereby vested in the director to delete certain areas from all quarrying operations.

No application for a permit shall be approved by the director if there is found on the basis of the information set forth in the application or from information available to the director and made available to the applicant that the requirements of this article or rules hereafter adopted will not be observed or that there is not probable cause to believe that the proposed method of operation, backfilling, grading or reclamation of the affected area can be carried out consistent with the purpose of this article.

If the director finds that the overburden on any part of the area of land described in the application for a permit is such that experience in the state of West Virginia with a similar type of operation upon land with similar overburden shows that one or more of the following conditions cannot feasibly be prevented: (1) Substantial deposition of sediment in stream beds; (2) landslides; or (3) acid-water pollution, the director may delete such part of the land described in the application upon which such overburden exists.

Appellee Waco argues that these statutes, read together, require that in order for the DEP to deny a quarry permit application on the grounds that an individual proposed quarrying operation would cause the destruction of aesthetic values and the future beneficial uses of the area in which the operation would be located, there must first be a determination that all quarrying, no matter how conducted, must be barred from the area — in other words, that the area in which the quarry is proposed must be "deleted" from all quarrying activity under the foregoing provisions of W.Va.Code, 22-4-8 [2000].

This Court addressed this issue in the case of Francis O. Day Co. v. Director, DEP, 191 W.Va. 134, 443 S.E.2d 602 (1994), where the DEP Director denied a quarry permit on the grounds that, inter alia, the quarry would have a detrimental effect on the aesthetics and future use of the area in which the quarry was proposed.

In the Day opinion, this Court noted that the DEP's "denial of the [quarry] permit was not based on the deletion power[.]" Id., 191 W.Va. at 139, 443 S.E.2d at 607. This Court concluded that the "Director of the DEP retains the authority to refuse to grant a limestone, sandstone or sand surface mining permit based upon any of the criteria found in [the prior enactment of W.Va.Code, 22-4-8 [2000]]."[2]Id., 191 W.Va. at 140, 443 S.E.2d at 608. Thus, in the Day case, this Court approved an individual quarry permit denial on any of the grounds listed in W.Va.Code, 22-4-8 [2000] without the prior exercise of the area deletion powers that are granted to the DEP in that same statute.

W.Va.Code, 22-4-8 [2000], quoted supra, requires that an application for a permit shall not be approved unless "the proposed method of operation, backfilling, grading or reclamation of the affected area can be carried out consistent with the purpose of [W.Va.Code, 22-4-1 et seq.]". Additionally, an individual permit application may be denied if "any" environmental law would be violated by the proposed operation. W.Va.Code, 22-4-7(a)(1) [2000]. W.Va.Code, 22-4-17 [2000] requires that an individual permit application, in order to be approved, must show that "all reasonable measures shall be taken to eliminate damages to members of the public[.]"

As previously stated, the appellee argues that if the DEP and Board, when making a decision on an individual permit application, wish to take into account the effects of the proposed quarry on such statutory criteria as the aesthetics and future use of the area surrounding the proposed quarry, these bodies must also make an "area deletion" decision, pursuant to W.Va.Code, 22-4-8 [2000], *468 and must rule that no possible future quarrying may be conducted in the area.

However, W.Va.Code, 22-4-8 [2000] also provides that an existing quarry may have its permit modified based on those same criteria, without any requirement that the area in which the quarry is located must be deleted from all possible quarrying activity. Moreover, W.Va.Code, 22-4-5(h)(3) [2000] authorizes the denial of an individual permit application for an underground quarry, if the quarry will cause "serious adverse environmental impacts [on aesthetics, future use, etc.] pursuant to [W.Va.Code, 22-4-7 or -8].".

We cannot conclude from the foregoing statutory language that the Legislature intends that in order to evaluate the suitability of an individual quarry permit for a particular site under the statutory criteria, the DEP must first take on the enormous and inevitably somewhat speculative task of determining whether all future quarrying activity in an area must be categorically banned. Rather, we conclude that a case-by-case permit approval/denial process is what the statutes call for — while reserving the "area deletion power" to the DEP, if the agency chooses to exercise it.[3] This analysis is consistent with our previous decision in the Francis O. Day Co. case, supra, which the Legislature had before it when it enacted the Quarry Reclamation Act.

IV.

Conclusion

Accordingly, we hold that under W.Va.Code, 22-4-7 [2000] and W.Va.Code, 22-4-8 [2000], the West Virginia Division of Environmental Protection and West Virginia Surface Mine Board have the authority to refuse to grant an individual quarry permit based upon any of the criteria identified in those statutes, without having to exercise the area deletion powers that are also granted therein. The circuit court's order, reversing the Board's decision, is therefore reversed.[4]

Reversed.

Justice ALBRIGHT not participating.

Senior Status Justice McHUGH, sitting by temporary assignment.

APPENDIX A

Final Order of the West Virginia Surface Mine Board

On October 28, 2002, a quorum of five (5) members of the West Virginia Surface Mine Board ("Board") met with counsel and representatives of the parties at Huntersville, West Virginia and conducted a site visit at locations agreed upon by the parties. On October 29, 2002, a quorum of six (6) members of the Board convened in Marlinton, West Virginia and conducted a hearing in this appeal. At this hearing, the appellant, Waco Oil & Gas Company, Inc. ("Waco"), was represented by Leonard Knee and Eric Calvert of Bowles, Rice, McDavid, Graff & Love and the appellee, West Virginia Department of Environmental Protection ("DEP"), was represented by Thomas Clarke and Perry D. McDaniel of the DEP's Office of Legal Services. At the beginning of the hearing, the Board ruled on Waco's Motion for Judgment on the Record and took up Waco's two motions in limine, as set forth hereinafter. Then, both parties presented opening statements, testimony from witnesses, exhibits and arguments of counsel.

I. Waco's Motion For Summary Judgment

DEP denied Waco's application for a permit for quarry mining under the authority of West Virginia Code § 22-4-8 (2000). In its Motion for Judgment on the Record which is equivalent to a Motion For Summary Judgment, Waco argues that under the language of West Virginia Code § 22-4-8, the DEP's authority to deny a quarry permit is limited to circumstances in which reclamation is impossible *469 and, based on the admissions of DEP personnel in discovery that reclamation in accordance with Waco's proposed reclamation plan is possible, it is entitled to summary judgment. In response, DEP's principal argument is that under the statutory language and case law interpreting it, it may deny a quarry permit to avoid certain harms regardless of whether reclamation is possible.

In Francis O. Day Co., Inc. v. Director, DEP, 191 W.Va. 134, 443 S.E.2d 602 (1994), the DEP denied an application for a permit for a limestone quarry because it found that the proposed quarry would result in some of the harms listed in the first paragraph of former W.Va.Code § 22-4-10 (1994, c. 61) (superceded in 2000), including a detrimental effect on aesthetics and future use of the area. Because the statute listed these harms following its legislative finding that there may be certain areas of the state where reclamation is impossible and because the law in effect at the time did not require any reclamation of limestone quarries, the permit applicant argued that DEP could not use these harms as reasons to deny its application. The Supreme Court of Appeals rejected this purported connection between the issue of whether reclamation is impossible and the DEP's authority to deny a permit in order to avoid the listed harms. It based its ruling on the second paragraph of W.Va. Code § 22-4-10 (1994, c. 61) which gives the DEP complete authority to prohibit mining wherever necessary to avoid the harms listed in the first paragraph.

For all purposes relevant or material to this case, the language of former W.Va.Code § 22-4-10 (1994, c. 61) is identical to that of current W.Va.Code § 22-4-8. Therefore, the Board concludes that the West Virginia Supreme Court of Appeals' interpretation of this language in Francis O. Day Co., Inc. v. Director, DEP, 191 W.Va. 134, 443 S.E.2d 602 (1994) controls this case. As held in the Day decision, the second paragraph of W.Va. Code § 22-4-8 gives the DEP authority to deny a quarry permit in order to avoid the harms listed in the first paragraph of this section, regardless of whether Waco's reclamation plan is possible to achieve. By unanimous vote of the six members of the Board present at the hearing, Waco's motion for summary judgment is denied.

II. Waco's Motions in Limine

Waco filed two motions in limine. The first of these motions seeks to prohibit the DEP from calling Daniel Terry as a witness. The DEP's pre-hearing disclosures listed Mr. Terry as a potential witness. At the hearing, the DEP informed the Board and Waco that it did not intend to call Mr. Terry, making it unnecessary for the Board to address this motion.

Waco's second motion in limine is based on a fall back position the DEP took in its response to Waco's motion for summary judgment. Although DEP's response admitted that Waco's reclamation plan was physically possible to achieve, it argued that this plan is not practically feasible and urged the Board to place a practical interpretation on the meaning of "impossible" that focused on the practical feasibility of reclamation. The DEP's response identified its engineer, Clarence Wright, as a witness. on the practical feasibility of reclamation according to Waco's plan. Waco's motion in limine on this issue claimed "eleventh hour" surprise and asked that DEP be precluded from presenting evidence on the practical feasibility of Waco's reclamation plan. In the alternative, Waco requested a continuance. Prior to the hearing, the Board denied Waco's motion insofar as it sought a continuance. At the hearing, after hearing the Board's ruling on Waco's motion for summary judgment, the DEP agreed not to present evidence on the issue of the feasibility of Waco's reclamation plan, thereby making it unnecessary for the Board to address Waco's second motion in limine.

III. Findings of Fact and Conclusions of Law

Upon consideration of the certified record the DEP supplied to the Board pursuant to W.Va.Code § 22B-I-7(e), the Board's observations during its site visit, the testimony heard, exhibits admitted and the arguments of counsel, the Board, by unanimous vote of its six members present at the heating of this matter (Michael, Nay, Cappelli, Hastings, Meadows, and Smosna), makes the following findings of fact and conclusions of law:

*470 A. Background/Permitting Process

1. On May 25, 2000, Waco submitted an application to the Philippi regional office of the DEP for a permit to conduct quarry mining operations on a 76 acre area on Browns Mountain in Pocahontas County, West Virginia. This application was assigned application number Q-201700 by the DEP.

2. Browns Mountain is part of an anticline which follows a trend from southwest to northeast. It is located just north of Route 39, between Huntersville and Minnehaha Springs, West Virginia. Waco's application seeks to mine the Tuscarora, or White Medina, layer of sandstone. On the area proposed for mining, this layer of sandstone is up to two hundred feet thick and is beneath layers of other types of rock which will have to be removed to gain access to it.

3. Waco acquired its property on Browns Mountain through the efforts of its agent, Hugh Hefner. Through his company, HEFCORP-JON, Hefner acquired an option on the Brown's mountain property in 1999. He obtained title to the property by deed dated May 19, 2000 and leased the property to Waco on May 22, 2000. Subsequently, Hefner transferred the property to Waco by deed dated June 23, 2000. According to this deed, Waco paid HEFCORP-JON $125,000 as the consideration for this property.

4. Mr. Hefner is also a consulting geologist and hydrogeologist. In this capacity, he was responsible for preparation of Waco's permit application.

5. Before it submitted its permit application to the DEP, on May 5, 2000, Waco signed an agreement with West Virginia Paving which anticipates that Waco will obtain a quarry permit on Brown's Mountain and obligates it to transfer this permit and the property associated with it to West Virginia Paving by May 5, 2003. In the event Waco fails to make this transfer, it faces a monetary loss of $1.3 million.

6. Under the same terms of the same agreement, Waco has transferred at least one other active quarry and quarrying permit to West Virginia Paving. In connection with this transfer, the agreement contains a covenant not to complete with West Virginia Paving in the quarry business. Under this covenant, Waco is contractually prohibited from operating a quarry on Browns Mountain. In effect, Waco appears to be acting as an agent for West Virginia Paving for the purpose of acquiring property and a permit for quarrying at the Brown's Mountain location.

7. The DEP received Waco's permit application two weeks before the effective date of the new Quarry Reclamation Act, which the West Virginia Legislature adopted in 2000. An important distinction between this new quarry law and the one previously in effect was that the new law added provisions for reclamation of sandstone quarries and called for the DEP to promulgate regulations on this subject. Necessarily, DEP's consideration of Waco's application was delayed until after those regulations were promulgated. Consideration of Waco's application was also delayed because of a court case over property rights, implementation of new regulations pertaining to anti-degradation under DEP's NPDES permitting program, and the need to redesign and re-designate Waco's spoil storage area. In addition to these unusual delays, the processing of Waco's permit involved the time necessary for DEP to evaluate the application and request that Waco and its consultant supply additional information DEP determined to be necessary to make the application technically complete.

8. After DEP determined the permit application to be technically complete, it was advertised for public comment. During the public comment period on the permit application in January, 2002, DEP received approximately 200 letters, which were unanimous in opposition to the permit. All of these letters were forwarded to both Waco and its consultant for response. On March 4, 2002, a public hearing was held on the permit application. Other than the representatives of Waco and the DEP who were present, all of the people who spoke at the public hearing opposed this permit. The letters protesting the permit and the comments of those who spoke at the public hearing consistently voice concerns over the proposed quarry's impact *471 on the aesthetics of the area and on property values.

9. After the public hearing, the members of the regional DEP permit team finished their evaluation of the application and prepared their facts and findings and recommendations. Every member of the permit review team: Greg Curry, geologist; Clarence Wright, engineer; Harry Travis, environmental resource specialist; Daniel Lehman, inspector, and Ron Sturm, permit supervisor, recommended denial of the permit upon one or more of the bases for permit denial under W.Va.Code § 22-4-8. Their recommendations were forwarded to the Division of Mining and Reclamation ("DMR") headquarters so a final agency decision could be made.

10. On July 16, 2002, the DEP acting through DMR Director Matthew B. Crum issued a decision denying Waco's application based upon W.Va.Code § 22-4-8. In support of this decision, Director Crum made the following two findings: (1) The location of the proposed quarry, including the noise, blasting, dust, and general unsightliness which are necessarily associated with a stone quarry, will prevent adjacent landowners from the normal use and enjoyment of their properties and will cause a decline in the value of properties adjacent to the quarry site, thereby impairing the property rights of others; (2) The foregoing impacts will result in the destruction of aesthetic values, recreational use and future use of the area and surrounding areas in this especially scenic and tourist-oriented area.

11. Within thirty days of its receipt of the DEP's July 16, 2002 decision, Waco filed an appeal with the Board.

B. Pocahontas County

12. In addition to the letters opposing the quarry and the comments in opposition to it at the public hearing, the County Commission of Pocahontas County is on record unanimously opposing Waco's permit application. Commission President, Joel Callison explained his reasons for opposing this application. His principal reason for opposing this quarry permit, as Commission President, was protection of the quality of life for the people who live in the area. A secondary reason for opposition is the effect of the quarry on the aesthetics of the area, which impacts tourism in the county. Tourism has been the only business or industry in the county that has grown and shows growth potential for the future. This is because of Pocahontas County's natural beauty and location. Mr. Callison stated that it is not easy for the County Commission to oppose something that may bring jobs to the county, but in this case, it is a question of what is good for the county for the long term versus the short term.

13. In contrast to its position on this permit application, the County Commission supported Waco's application for a new quarry permit at Linwood. Mr. Callison, who was a member of the Commission when it took its position on the Linwood application, explained the differences he saw between that application and the one in this case. The Linwood application involved a site where a quarry had already been in existence for a number of years. By comparison, Browns Mountain is a pristine area. Mr. Callison also explained he supported the DEP's decision on the permit application at the Linwood site, because this decision imposed modifications on the existing permit which placed greater limits the aesthetic impacts of that quarry operation than had existed before. There is no zoning in Pocahontas County.

14. Gail Lowery, Executive Director of the Pocahontas County Tourism Commission testified that Pocahontas County has become one of the most prominent tourist destinations in West Virginia and the eastern United States. It attracts 900,000 visitors per year. These visitors come from all over. In the winter, the largest numbers of visitors come from North Carolina, Florida, Georgia and the South. In the summer, the county's largest tourism markets are Virginia, Ohio, Maryland and West Virginia. State Division of tourism statistics indicate that overnight guests spend an average of $70 per person per night. The estimated annual economic contribution to the Pocahontas County economy from tourism is between $20 and $30 million. This is in contrast to about $1.8 million in logging related dollars paid to Pocahontas *472 County. Since 1997, tourism's economic contribution has increased by 19.5% and is projected to increase by 5% per year. As many as 1200 people are directly employed in the county in tourism-related jobs and in total it is estimated that 2000 jobs either directly or indirectly result from tourism.

15. The local tourism bureau in Pocahontas County advertises in 35 to 40 national magazines. The image projected in every one of these ads is a beautiful, pristine outdoor place where one can get away from it all. The pristine beauty of Pocahontas County is also featured in 30 to 40 magazine articles each year. Some examples of magazines which have featured Pocahontas County include; Southern Living, Blue Ridge Country, Country Discoveries, Outdoor Explorer, Birder's World, Bike Midwest, Recreation Moves, Blue Ridge Outdoors, Bike, Bicycling, Fly Fisherman, American Angler, American Motorcyclist, Rider and Canoe and Kayak. Pocahontas County has also been featured as an outdoor recreation mecca in travel articles in quite a few newspapers, including; the Washington Post, the Baltimore Sun, the Mountain Times, the Richmond Times Dispatch, and the Roanoke Times, as well as almost all of the newspapers in West Virginia.

16. While the ski resort at Snowshoe is what many people might associate with tourism in Pocahontas County, the county also draws many people on a year round basis who come to enjoy its scenic beauty, hiking, mountain biking, trout fishing, hunting, outdoor recreation and history. The principal attraction of Pocahontas County for those who enjoy these activities is its quiet, unspoiled atmosphere. Pocahontas County also has more state parks and forests than any other county in West Virginia. Five state parks, two state forests, a large part of the Monongahela National Forest and segments of the Allegheny Trail and the Greenbrier River Trail are in Pocahontas County. The fact that over 60% of Pocahontas County is owned by either the state or federal government has contributed to the preservation of much of the county in an unspoiled natural state.

C. The Brown's Mountain/Route 39 Area

17. The general area of Route 39 between Huntersville and Minnehaha Springs, including Browns Mountain, is a very special area which is highly valued for its aesthetic attributes. There is no heavy industry. There is no source from which dust is produced by an industrial operation. There is no source from which noise is produced with any regularity. The only disturbance of the natural landscape in the area is from logging. Generally, the places where logging has been done are near the mountain tops in the area and, for the most part, are not visible to the general public from highways in the area. Knapps Creek, which is popular with both local residents and visitors to the area for its trout fishing, flows gently through a break in the anticline at Browns Mountain, along Route 39. Because the air is so clear, many more stars can be seen in the night sky there than in more developed areas. An unusual quiet is pervasive.

18. People have long appreciated the qualities of the area. Robert E. Lee is reported to have written the following from Huntersville in August, 1861:

"The views are magnificent ... the valley is so beautiful, the scenery so peaceful. What a glorious world almighty God has given us. How thankless and ungrateful we are, and how we labor to mar his gifts."

Valley Guide, February/March 2002.

19. Appreciation of the special atmosphere of the area around Brown's Mountain continues in modern times. Route 39 has been honored with special recognition of its scenic and aesthetic attributes. Businesses whose existence is based specifically on the aesthetics and recreational value of the area have been established. Both as visitors and on a more permanent basis as home owners, people from other parts of this country and the world come to this area seeking its aesthetic qualities: qualities that are increasingly rare elsewhere.

20. The segment of Route 39 from the state boundary with Virginia through Pocahontas County to Richwood in Nicholas *473 County, West Virginia has been designated by the West Virginia Division of Highways as the Mountain Waters Scenic Byway. It has had this status since July 17, 2000. Gail Lowery of the Pocahontas County Convention and Visitors Bureau, who testified before the Board, was active in the efforts to obtain scenic byway status for Route 39 and remains active in efforts to promote the route as a scenic byway. The segment of Route 39 in Virginia, from Interstate 64 west to the state boundary with West Virginia, has had scenic byway status for a number of years. Ms Lowery and her counterparts in Nicholas Counties are seeking scenic byway status for the segment of Rt. 39 from Richwood to U.S. Route 19. An announcement of scenic byway status for this segment is anticipated to be made soon. After this designation is made, the four counties in which Route 39 will have scenic byway status, Bath and Rockbridge Counties in Virginia and Pocahontas and Nicholas Counties in West Virginia, plan to make joint efforts to promote Route 39 and to obtain federal funding for beautification projects and enhancements, such as bike paths, along its route. It is anticipated that the facts that the Mountain Waters Scenic Byway will connect two major traffic arteries and that it will be promoted by two states will help give projects along its route a higher priority in obtaining federal funding.

21. Gordon Josey and his wife own Camp Twin Creeks at Minnehaha Springs. It occupies 127 acres on Route 39, about two miles from the proposed quarry site as the crow flies. Camp Twin Creeks is a children's summer camp. Mr. Josey and his wife purchased this camp about two years ago for $900,000. Since then, they have invested nearly $500,000 in capital to upgrade the facilities at the camp and plan to continue to invest approximately $100,000 per year in the future. In addition to the capital Mr. Josey has invested, he estimates that he spends $50,000 to $60,000 per year in the local economy for materials, supplies and other expenses necessary for the operation of his camp. The Camp also employs three local people on a full-time, year-round basis and twelve additional local people between memorial day and labor day. Including employees from the local area and counselors, many of whom come from outside the area, the Camp employs ninety people at the peak of its operations in the summer.

22. Mr. Josey has experience operating and working at children's summer camps in this country and in Europe. After several years of operating camps owned by others, Mr. Josey decided to purchase his own camp. He looked at six or seven camps in Pennsylvania, upstate New York and Maine before seeing Camp Twin Creeks. When they first entered on the property at Camp Twin Creeks, he and his wife were very impressed with the beauty and unspoiled nature of the area. Mr. Josey says the area is so quiet that dogs can be heard barking at a distance and at night there is only the sound of bullfrogs to keep you awake.

23. Three hundred seventy children attended Camp Twin Creeks in the first year of its operation under Mr. Josey's ownership. Five hundred fifty children attended Camp Twin Creeks last year. Mr. Josey projects that six hundred fifty children will attend his camp in the coming summer. Most of his campers come from Washington, D.C. and Baltimore. Many campers also come from Florida, Atlanta and overseas. According to Mr. Josey, the biggest draw his camp has for campers is the area, because it is so unspoiled and pretty. Because of the Greenbrier, Snowshoe, and the Homestead nearby in Virginia, this area of West Virginia has a wonderful reputation in the metropolitan Washington, D.C. area. Parents who bring their children to Camp Twin Creeks often spend additional time in the area at local bed and breakfasts and enjoy mountain biking and hiking.

24. Jean Dunham has owned and operated the Carriage House Inn bed and breakfast on Route 39 in Huntersville for about ten years. She purchased the Carriage House Inn after she decided to move to West Virginia from California to escape the pollution, overgrowth and earthquakes there.

25. The Carriage House Inn is about a mile from the proposed quarry site. It has five rooms and a suite, each of which has its own bathroom. It is in a house that was *474 built in 1852 and which served as a makeshift hospital during the Civil War. In addition to the Inn, she also has two gift shops on the premises. Both sell crafts made by over one hundred twenty area artisans. Ms. Dunham has invested approximately $ 250,000.00 in capital in her property and business. Her bank recently valued the business at $450,000. She spends $35,000.00 per year on operating expenses, 80% of which is spent locally.

25 [sic]. Attributes which draw guests to the Carriage House Inn are the scenic beauty and aesthetics of the area. Guests enjoy sitting outside by the raised bed gardens or on the porches, enjoying the wildlife of the area and the quiet that is interrupted only by the sound of bullfrogs. According to Ms. Dunham, it sometimes so quiet that she can hear the sounds neighbors make over a mile away. Activities her guests enjoy in the area include fishing, hiking, hunting, and mountain biking.

26. Most of the guests come to the Carriage House Inn from the Washington, D.C. area, New York, the Carolinas, Florida and Colorado. Some guests come from as far away as Australia, New Zealand and Europe. About two weeks before the Board's hearing in this case, Ms. Dunham hosted a reporter from Germany who was writing about West Virginia for a travel publication in that country. According to this reporter, the area around the Carriage House was his favorite area of the state. In the past year, after the terrorist attacks on the World Trade Center and the Pentagon on September 11, 2001, Ms. Dunham has had a number of guests from those areas who sought refuge in the quiet beauty of the Huntersville area. Ms. Dunham promotes the Carriage House in magazines, newspapers and on a web site. The Carriage House has received favorable reviews in a number of travel books and articles. Ms. Dunham brought a stack of such publications that was about a foot high with her when she testified before the Board. Out of these, she identified the coverage her inn had received in National Geographic's Hidden Corners of the United States as the one of which she is most proud.

27. Don Nordstrom and his wife operate the Ambassadors For Christ Retreat near Huntersville. It is about a half mile from the site of the proposed quarry. Ambassadors For Christ Retreat is a non-profit, non-denominational Christian retreat. It has been operating for over thirty years and is capable of housing 120 persons. Its accommodations include motel-type rooms, cabins, bunkhouses, RV hookups and campsites for tents. A meeting facility is available for groups to hold programs, seminars and classes. The Retreat hosts 2,200 to 2,400 guests each year. There is an upward trend in the number of people who come to the Retreat as guests. In the first nine months of 2002, the hotel/motel tax collected on what guests pay for lodging at the Retreat exceeded what was collected for all of 2001.

29 [sic]. People are attracted to the Retreat by the peace and quiet and natural beauty of the place. As soon as they arrive, first-time guests note the natural beauty. Shortly thereafter, they notice how quiet it is. The quiet of the night, itself, is an attraction with nothing but the sound of bullfrogs, whippoorwills and the water of the creek that flows through the Retreat, bubbling by. According to Mr. Nordstrom, "with the windows open in the summer, it's better than a sleeping pill." Guests at the retreat usually schedule free time so they can get out and enjoy the outdoor recreational opportunities and activities that are available in the area.

30. The homes and property in the area closest to the proposed quarry and which, therefore, will be affected most by it are located on Browns Mountain Road and in Possum Hollow. Browns Mountain Road begins at its intersection with Route 39 and from there runs upward initially along a flank of Brown's Mountain and then on to the top of the mountain Residents of this area are a mix of people from one of two backgrounds, those who have purchased second homes or retirement homes there and those who are the current generation of families which have lived in this area for many generations. There are a total of thirteen homes on Brown's Mountain Road. Seven of these homes are owned by full time residents of Brown's Mountain and the rest of the homes *475 are second homes or retirement homes. The people who own the second homes or retirement homes are from Louisiana, Florida, Maryland, Ohio, and West Virginia.

31. Norman Wolcott and his wife have owned property on Browns Mountain Road near the top of the mountain where their second home is located. Their home is 1.2 miles from Route 39 and about three fourths of a mile from the proposed quarry. They spend approximately three to six months per year there, during all four seasons. Over the years they have owned property on Browns Mountain, the Wolcotts have invested $50,000 to $60,000 there.

32. The Wolcotts' principal residence is in Rockville, Maryland. Rockville is a congested, noisy suburb of Washington, D.C. At Brown's Mountain, they sought a place to get away from city life. Dr. Wolcott initially learned of the Brown's Mountain area and was attracted to it by the descriptions of the natural beauty there he heard from a friend of his in the military service who had flown over the area many times and described it as the most beautiful country on the eastern seaboard. The Wolcotts visited the area several times before buying their property there. What they found in the area was a place of absolute quiet, free of pollution and full of wildlife. In the clear air, many more stars can be seen than in urban areas like Rockville.

33. Possum Hollow is immediately to the east or southeast of Brown's Mountain and Brown's Mountain Road, along Route 39. The proposed quarry on the side of Browns Mountain would face the four homes in Possum Hollow. All four of these homes are owned by persons who have descended from the Howsare family, which has lived in Possum Hollow for at least four generations. One of the homes, the Howsare family home place, is owned by Margie Howsare and her husband. Ms. Howsare bought the family home place from her brother for $22,500 in 1990. She and her husband have spent approximately $60,000 in upgrades since then. According to a bank's appraisal earlier this year, this home is now valued at $95,000. The family home place faces the side of Brown's Mountain which Waco proposes to quarry.

34. Ms. Howsare has lived all of her thirty six years, except for a three to four year period, in Possum Hollow. During the time she was away from Possum Hollow, she lived in very populated areas. Until that time, she didn't realize how quiet and peaceful it is in Possum Hollow or that such an atmosphere is quite rare.

D. Waco's Application

35. The permit application meets all of the technical requirements of the Quarry Reclamation Act. Waco also made some effort in an attempt to reduce the aesthetic impact of the proposed quarry. These measures included locating the quarry on the east side of Brown's Mountain, thus limiting visibility from the west; locating the quarry in the wind shadow of Browns Mountain and the hollow created by Evans Branch to mitigate dust and noise propagation; limiting the size of the cuts to limit the amount of exposed material; and providing for contemporaneous reclamation and revegetation of the quarry site, with complete highwall elimination, to limit the amount of exposed highwall during the active mining operations at the quarry.

36. Waco complains that they were not aware that the DEP was going to use impact on aesthetics as a basis for permit denial, and that they were therefore not given an opportunity to address DEP's concerns with aesthetics prior to permit denial. However, Waco was given an opportunity to address these concerns during the de novo hearing before the Surface Mine Board.

37. The proposed quarry operation would significantly impair the aesthetic values of the Brown's Mountain area, The haul road from the quarry will enter Rt. 39 almost directly across Knapps Creek from the Devils Backbone, a well known geologic feature, and adjacent to a popular trout fishing hole in Knapps Creek. The highwall created during the active mining will be plainly visible to west bound travelers on Rt. 39. The scenic values of this stretch of Rt. 39 and Knapps Creek are substantial and would be difficult to overstate. The development of a quarry in this area will destroy these values, which *476 form the basis of the tourist industry in Pocahontas County.

E. Conclusion

38. Part of the DEP's basis for denying Waco's application is its finding that the quarry would cause "destruction of aesthetic values, recreational use and future use of the area and surrounding areas". July 16, 2002 denial letter. The Board upholds DEP's decision to deny the application on this basis. The Board does not uphold DEP's denial decision on the basis of decrease in property values.

39. The Board was very impressed by the testimony of County Commission President Joel Callison and Gail Lowery of the Pocahontas County Convention and Visitors Bureau. Tourism is an industry that has been developed in this area. It is a big industry. It is based upon the recreational values of this area. It is based upon the aesthetic values, specifically, of the Brown's Mountain area. This is supported by the testimony regarding the scenic byway, as well as other evidence before the Board. The Board concludes that the area where the permit is proposed by Waco's application is a very special area. Because the Board believes that this is such a special area, it is clear that the impact of this quarry, as proposed and presented, will be sufficient to impair and destroy the recreational use and the future use of the area, as well as the aesthetic values of the area.

40. The Board finds, as a general matter, that the testimony of Waco's permitting consultant, Mr. Hefner, was not wholly credible. Certainly, the Board finds that his testimony was not credible on the noise issue. Also, his testimony about the contemporaneous regrading of highwalls was not credible, as pointed out in the testimony of Clarence Wright.

41. The Board heard contradictory evidence about the extent of the noise, blasting, dust, traffic and general unsightliness that will result from the quarry Waco proposes. Because the Board believes that it is sufficiently clear that the quarry as proposed and presented will, in any event, impair and destroy the recreational use and the future use of the area as well as aesthetic values, the Board does not believe it is necessary to make specific findings and conclusions as to the precise extent of noise, blasting, dust, traffic and general unsightliness in terms of decibels of noise, numbers of blasts, number of disturbed acres, or traffic count.

42. As in the case of the testimony of Mr. Hefner, the Board finds that the testimony of the real estate appraiser, Mr. Pratt, was not wholly credible. Specifically, his opinion that the value of the improvements to real estate in the area of the quarry would decrease to zero over a period often years was simply unbelievable.

43. The statute, West Virginia Code § 22-4-8, specifically allows denial of a permit if there is an impairment of property rights of others. However; in no way does the Board base this decision on decrease in property values. It recognizes that there may be a decrease in the property values of some of the neighbors of this quarry if it is allowed to operate, but that is going to be true in the case of every quarry permit anywhere in the state. The Board does not think that is sufficient reason to deny this permit or any permit. There has to be a broader impact on property values than just the effect on the neighboring properties or those in the backyard of the quarry.

44. The Board heard argument, and some evidence, about the role of public sentiment in this permit decision. The Board's decision is not based in any way on public sentiment. The Board did consider the testimony from the citizens in terms of the substantive comments they made or points they made. It believes Director Crum analyzed this issue properly: you don't count the number of people to make a decision, but you do listen to what they are saying and consider whether there is any basis for their comments.

45. One other thing the Board wants to be clear about is that it is not in any way saying there can't be a quarry in Pocahontas County, nor is it saying there can't be a quarry in this general area. The Board is not even saying there can't be a quarry on Brown's Mountain. The Board is just saying that the quarry, as proposed, will have too *477 great of an impact on the tourism industry and the aesthetic values of the area. Therefore, this permit should be denied.

46. The decision of the Board is without prejudice. The company has the right to reapply for a quarry permit at that location if it feels that there is some way to address the concerns specified by DEP and also by this Board in its decision. By this decision, the Board does not intend to delete this area from all consideration as a quarry site.

47. Waco has made much of the fact that after its application became technically complete, DEP did not advise it that a decision to deny the permit might be made, based on concerns raised by the citizens' comments and protests. Under such circumstances, and whenever possible, the Board encourages the DEP to let a permit applicant know that permit denial is a possibility so that either: the applicant can address the possible reasons for denial; or, the applicant will not spend money uselessly responding to requests for permit corrections when the permit will be denied in any event.

IV. Motion to Reconsider

48. After the Board announced its decision at the hearing in this matter, the Appellant filed a Motion to Reconsider and for Specific Relief. The DEP filed a Response to this Motion, and the Appellant filed a Reply to the Response. The Motion to Reconsider was considered by Board members Michael, Nay, Hastings and Cappelli on January 22, 2003. Members Meadows and Smosna were contacted by phone by the Chairman of the Board on January 27, 2003.

49. The Motion argues that the decision of the Board violates the new Quarry Reclamation Act, because that Act only allows denial of a permit for three reasons, none of which encompass the Board's rationale in this case.

50. The Board concludes that the second reason for permit denial, as set forth in the new law at § 22-4-7, authorizes the denial of the permit in this case. That section allows denial of a permit if "the proposed quarry operation will be located in an area in the state which the director finds ineligible for a permit pursuant to section eight (22-4-8)."

51. The Board agrees with the DEP that § 22-4-8 allows an individual permit to be denied for any of the reasons in that section, even if the area is not permanently declared off limits to quarrying. In this particular case, the Waco application was denied not only because the proposed quarry is located in a special area, but also because this specific application proposes a quarrying method which will substantially impair the aesthetic values and future recreational uses of the area. A future application for quarrying in this area could conceivably propose a method of quarrying which does not cause these negative impacts.

52. The Board's interpretation of the meaning of § 22-4-8 is consistent with the way in which the former § 22-4-10 (which is essentially identical) was interpreted by the West Virginia Supreme Court of Appeals in the Day case, discussed above. That is, the DEP has the authority to deny an individual quarry permit for any of the criteria contained in § 22-4-8. As in the Day case itself, this authority can be exercised to deny a particular permit, without deleting the area from all future quarrying.

53. The Board will presume that the Legislature was aware of the Day case, and the Supreme Court's interpretation of the former § 22-4-10, when it reenacted this section as the new § 22-4-8. "(I)t being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same". Hudok v. Board of Educ. of Randolph County, 187 W.Va. 93, 415 S.E.2d 897, 899-900 (1992). The Board does not believe that the language in the current § 22-4-7 implicitly overrules the Day case.

54. Accordingly, by unanimous vote of the six members who considered it, the Motion to Reconsider is Denied.

WHEREFORE, the Board, by unanimous vote of six of its members present at the hearing of this matter, (Michael, Nay, Cappelli, Hastings, Meadows and Smosna), AFFIRMS *478 the DEP's decision to deny Waco's permit application.

ENTERED this 29th day of January, 2003

NOTES

[1] Pursuant to an administrative order entered on September 11, 2008, the Honorable Thomas E. McHugh, Senior Status Justice, was assigned to sit as a member of the Supreme Court of Appeals of West Virginia commencing September 12, 2008 and continuing until the Chief Justice determines that assistance is no longer necessary, in light of the illness of Justice Joseph P. Albright.

[2] The 2000 enactment of the Quarry Reclamation Act, W.Va.Code, 22-4-1 to -29, created a separate statutory section governing quarries, but included language from earlier statutes that governed quarries and other mining activities.

[3] The briefs do not indicate that this power has ever been exercised.

[4] The circuit court also held that the Board was implicitly required to tell the appellant how the appellee could modify its permit application to make it acceptable to the Board. We see no authority for such a requirement, implicit or explicit.

Rainbow Supreme Court Case

 461 S.E.2d 486 (1995)

194 W.Va. 740

STATE of West Virginia, Plaintiff Below, Appellee,
v.
Jacob W. BEARD, Defendant Below, Appellant.

No. 22504.

Supreme Court of Appeals of West Virginia.

Submitted May 16, 1995.Decided July 19, 1995.

*490 Scott E. Johnson, Assistant Attorney General, Charleston, for appellee.

Stephen B. Farmer, Philip J. Combs, King, Allen & Arnold, Charleston, Frank W. Helvey, Jr., Public Defender, Charleston, for appellant. *487 *488

*489 WORKMAN, Justice:

Jacob Beard appeals from the June 4, 1993, judgment order of the Circuit Court of Pocahontas County finding him guilty of two counts of first degree murder, following a jury verdict returned on that same date. After examining the record in this case in conjunction with the numerous assignments *491 of error, we remand this case for purposes of a Kastigar[1] hearing.

On June 25, 1980, Vicki Durian and Nancy Santomero, who were hitchhiking to the annual Fourth of July gathering of the Rainbow people in Pocahontas County, were shot and killed in a remote section of that county known as Briery Knob. Not until April 16, 1992, were charges brought against any individual in connection with these two murders. At that time, Appellant, along with Johnnie Lewis, Winters "Pee Wee" Walton, Gerald Brown, Arnold Cutlip, William McCoy, and Richard Fowler were charged with first degree murder in connection with what had become known as the "Rainbow murders." These charges were dismissed without prejudice against Appellant and the other defendants pursuant to a July 17, 1992, order of the circuit court of Pocahontas County because "issues relating to the credibility of the evidence and testimony of certain of the State's principle (sic) witnesses as well as the conduct of the investigation itself ..." warranted further investigation.

Five of the seven individuals originally charged with the Rainbow murders were indicted on January 13, 1993. The two individuals who were not indicted—"Pee Wee" Walton and Johnnie Lewis—were granted immunity. Of the five individuals indicted, only Appellant was brought to trial. He was convicted of first degree murder on June 4, 1993, and sentenced to two concurrent life terms, both without mercy.[2]

Appellant asserts the following assignments of error: (1) trial court's refusal to admit polygraph test results; (2) trial court's exclusion of probative evidence regarding another individual's commission of the murders; (3) trial court's admission of scientific evidence not disclosed to Appellant until after trial began; (4) police misconduct; (5) trial court's failure to hold an in camera hearing pursuant to the crime-fraud exception to the attorney/client privilege; (6) trial court's failure to grant Appellant's motion to dismiss for pre-indictment delay; (7) State's improper reliance upon evidence gained through an unauthorized grant of immunity; (8) trial court's admission of testimony tainted because of hypnosis; and (9) the cumulative error rule. We address each of the assignments of error[3] separately.

I. Polygraph Results

Appellant urges this Court to adopt a new position with regard to the admissibility of polygraph results. We recently restated our long-standing rule that "`[p]olygraph test results are not admissible in evidence in a criminal trial in this State.'" Syl. Pt. 1, State v. Chambers, 194 W.Va. 1, 459 S.E.2d 112 (1995) (quoting Syl. Pt. 2. State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39 (1979)). Appellant argues that the rationale underlying Frazier is no longer valid since the United States Supreme Court issued its decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., ___ U.S. ___, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993).

In Frazier, we explained that our rule regarding the inadmissibility of polygraph test results was premised on "the questionable scientific accuracy of the test." 162 W.Va. at 608, 252 S.E.2d at 43 (citing Frye v. United States, 293 F. 1013 (D.C.Cir.1923)) (holding that expert opinion based on scientific technique is inadmissible unless technique is generally accepted as reliable in relevant scientific community). The Supreme Court in Daubert concluded that Frye's "general acceptance" test was superseded by the adoption of the Federal Rules of Evidence and specifically, that admission of scientific evidence is governed by Federal Rule of Evidence 702.[4] ___ U.S. at ___-___, 113 S.Ct. at 2794-96.

*492 This Court, in Wilt v. Buracker, 191 W.Va. 39, 443 S.E .2d 196 (1993), cert. denied, ___ U.S. ___, 114 S. Ct. 2137, 128 L. Ed. 2d 867 (1994), extended the Daubert ruling to West Virginia by holding that the Frye "general acceptance" test was similarly supplanted by the adoption of Rule 702 of the West Virginia Rules of Evidence. See 191 W.Va. at 46, 443 S.E .2d at 203. In syllabus point two of Wilt, we held that:

In analyzing the admissibility of expert testimony under Rule 702 of the West Virginia Rules of evidence, the trial court's initial inquiry must consider whether the testimony is based on an assertion or inference derived from the scientific methodology. Moreover, the testimony must be relevant to a fact at issue. Further assessment should then be made in regard to the expert testimony's reliability by considering its underlying scientific methodology and reasoning. This includes an assessment of (a) whether the scientific theory and its conclusion can and have been tested; (b) whether the scientific theory has been subjected to peer review and publication; (c) whether the scientific theory's actual or potential rate of error is known; and (d) whether the scientific theory is generally accepted within the scientific community.

Id. at 41, 443 S.E.2d at 198.

The State observes that Appellant leaps from the supersedence of Frye, first in Daubert and then in Wilt, to the conclusion that polygraph test results are now admissible under Rule 702 of the West Virginia Rules of Evidence. As the State correctly contends, nothing in either decision would suggest such a result. One commentator has observed, "[a]lthough Daubert requires a different review by the trial court than Frye did, it will not necessarily change the court's determination of admissibility." Symposium, The Impact of Science and Technology on the Courts, 43 Emory L.J. 853, 861 (1994). Consistent with this observation, the court in United States v. Black, 831 F. Supp. 120 (E.D.N.Y.1993), concluded that "nothing in Daubert would disturb the settled precedent that polygraph evidence is neither reliable nor admissible." Id. at 123. In explaining its position, the Black court stated:

"That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence. Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.'

....

The Second Circuit has held that `the results of polygraph examinations are not admissible in this Circuit'.... [T]he district court determined that `it did not believe polygraph tests were sufficiently reliable to warrant the admission of results in evidence'.... Nothing in Daubert changes the rationale set forth in ... [prior decisions]. The polygraph test is simply not sufficiently reliable to be admissible.

831 F.Supp. at 122-23 (quoting, in part, Daubert., ___ U.S. at ___ - ___, 113 S.Ct. at 2794-95) (emphasis supplied by Black) (citations omitted).[5]

*493 Like the court in Black, we too, reaffirm the conclusion that "[t]he polygraph test is simply not sufficiently reliable to be admissible." 831 F. Supp. at 123; accord 1 Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 4-12(F)(3) at 457 (3rd ed. 1994). Despite Appellant's noteworthy efforts at trying to elevate the image of polygraph results,[6] we remain convinced that the reliability of such examinations is still suspect and not generally accepted within the relevant scientific community. Therefore, any speculation that our position in Frazier regarding polygraph admissibility is in question due to the Daubert/Wilt rulings is put to rest today.[7]

Appropriate instructions cured any references made by witnesses Lewis and Walton to the taking of polygraphs. As we recognized in syllabus point one of State v. Acord, 175 W.Va. 611, 336 S.E.2d 741 (1985), "`[o]rdinarily where objections to questions or evidence by a party are sustained by the trial court during the trial and the jury instructed not to consider such matter, it will not constitute reversible error.' Syl. pt. 18, State v. Hamric, 151 W.Va. 1, 151 S.E .2d 252 (1966)." 175 W.Va. at 612, 336 S.E.2d at 742. Upon the first reference to a polygraph test during the cross-examination of Walton, the trial court instructed the jury:

Now, ladies and gentlemen of the jury, you will disregard any reference or any comment about any lie detector test or polygraph test. Any such tests are not admissible in the State of West Virginia. They are not reliable, and they have not been authorized to be administered. If there was any test given or made, results are not considered by the jury and you shall disregard it.

Later, when Lewis referenced a polygraph during his cross-examination, the judge again *494 reminded the jury "to remember my previous admonition. Do not speculate about what any test may or may not have been. It's not admissible." Given the judge's careful and continued admonitions to the jury regarding its duty to disregard any references to polygraph tests, we find no error on this issue.

II. Exclusion of Franklin Statements

Prior to trial, Appellant moved to introduce the confession of Joseph Paul Franklin, a convicted serial killer serving three life sentences at a federal penitentiary in Marion, Illinois. On March 1, 1984, Franklin told Special Agent Ernest V. Smith of the Wisconsin Department of Justice that he had killed two white females in West Virginia[8] and provided a hand drawn map depicting the location of the murders. He later repeated these statements to agents with the Federal Bureau of Alcohol, Tobacco, and Firearms. When he was interviewed by West Virginia State Police Trooper Debbie DeFalco, he initially denied involvement in the murders but then took responsibility for the killings.[9] Following these three instances, however, Franklin refused to talk further about his involvement in the murders.

Appellant sought to introduce Franklin's confession, as well as a detailed map drawn by Franklin in the presence of Wisconsin officials, which allegedly corroborated his confession.[10] The trial court, applying Rule 804(b)(3) of the West Virginia Rules of Evidence, refused to admit the confession on the grounds that it lacked the requisite guarantees of trustworthiness. Rule 804(b)(3) provides the following exception to the general prohibition against hearsay:

Statement against Interest. ___ A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless he or she believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

W.Va.R.Evid. 804(b)(3) (emphasis supplied).

We begin our analysis by noting that trial courts have broad discretion in making evidentiary rulings and this Court will not overturn those rulings unless there has been an abuse of discretion. State v. Bell, 189 W.Va. 448, 453, 432 S.E.2d 532, 537 (1993). An appellate court should find an abuse of discretion only when the trial court has acted arbitrarily or irrationally. State v. McGinnis, 193 W.Va. 147, 159, 455 S.E.2d 516, 528 (1994). In making its ruling, the trial court reasoned:

I am not going to allow his statements because I don't think they have the degree of trustworthiness from a person who is incarcerated and makes one statement today and then won't talk to you after that about it, and then changes his mind when our own officers are there conducting the statement. That it lacks credibility. And *495 when you couple that with and four-time loser[11] that has nothing to gain or lose with respect to what the statement is made. (footnote added)

This ruling was made consistent with the recognition in United States v. MacDonald, 688 F.2d 224 (4th Cir.1982), cert. denied, 459 U.S. 1103, 103 S. Ct. 726, 74 L. Ed. 2d 951 (1983), that

[i]t is to be recalled that Rule 804(b)(3) places upon the proponent of a statement against interest a formidable burden. The declaration offered to exculpate the accused must be supported by corroborating circumstances that `clearly indicate the trustworthiness of the statement.'... As the Advisory Committee's Notes on this provision instruct, the risk of fabrication in this setting is significant. Consequently, rather than permitting only the jury to decide what weight to give the evidence, the initial responsibility is vested in the... [trial] [c]ourt.

688 F.2d at 233 (quoting, in part, Fed.R.Evid. 804(b)(3)[12]) (emphasis supplied); see also 2 Cleckley, supra, § 8-4(B)(3) at 283 (discussing Rule 804(b)(3)'s requirement of "a finding that the circumstances clearly indicate that the statement was not fabricated").

Appellant simply did not meet the "formidable burden" imposed by Rule 804(b)(3). MacDonald, 688 F.2d at 233. Like the circuit court below, the trial court in MacDonald was presented with declarations by an individual whose "pattern of remarks in admitting and denying complicity rendered her hopelessly unreliable." Id. Franklin's refusal to speak further with any West Virginia authorities regarding his commission of the murders coupled with his vacillating statements provided the circuit court with convincing evidence of lack of trustworthiness. Quite simply, the absence of sufficient guarantees against the fabrication of the Franklin confession compel the conclusion that the circuit court did not abuse its discretion in refusing to admit the substance of Franklin's confession.[13]See MacDonald 688 F.2d at 233; Cleckley, supra, § 8-4(B)(3) at 283 (stating that standard governing the admission of statements under Rule 804(b)(3) is abuse of discretion).

III. Paint Chip Evidence

In response to discovery requests propounded to the State on March 16, 1993, Appellant was apprised of the existence of a July 14, 1980, F.B.I. report analyzing paint chips found on Nancy Santomero's clothing. The paint chips themselves were apparently misplaced by the State until the end of the first day of trial. Upon the re-discovery of the original paint chip samples, the State had a second analysis performed by Sergeant Alkire of the state police. Appellant argues that the trial court's admission of the paint chip samples and the second analysis of the samples[14] violates Rule 16 of the West Virginia *496 Rules of Criminal Procedure, that the evidence is unreliable, and that the balancing test required by Rule 403 of the West Virginia Rules of Evidence bars the admission of such evidence. Additionally, Appellant claims that he was precluded from performing any independent testing of the chips due to the misplacement of the samples.[15]

Appellant contends that the State violated the rule established in State v. Hager, 176 W.Va. 313, 342 S.E.2d 281 (1986), overruled on other grounds by State v. Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989), governing the admission of material evidence not disclosed until trial:

Where the State is unaware until the time of trial of material evidence which it would be required to disclose under a Rule 16 discovery request, the State may use the evidence at trial provided that: (1) the State discloses the information to the defense as soon as reasonably possible; and (2) the use of the evidence at trial would not unduly prejudice the defendant's preparation for trial.

Syllabus, Hager, 176 W.Va. at 313, 342 S.E.2d at 282. Appellant argues initially that the State violated the first Hager requirement by not disclosing the paint chip evidence "as soon as reasonably possible." Id.

The State maintains that they first rediscovered the existence of the paint chip evidence on May 17 or 18, 1993, and then made Appellant aware of such discovery on May 18, the day before opening statements. Appellant does not suggest that delay occurred at this juncture, but instead relies on Sergeant Alkire's testimony that to the best of his knowledge, no person acting on the State's behalf made any effort to contact the State Police Criminal Investigation Bureau in response to Appellant's March 1993 discovery motion. Sergeant Alkire also testified, however, that he had made unsuccessful efforts in October or November of 1992 to locate the paint chip evidence.

The flaw in Appellant's argument is that the Hager rule regarding disclosure pertains to sharing discovered evidence in a diligent fashion; it does not portend the requirement implied by Appellant—that any dilatoriness in actually discovering the evidence should bar the admission of such evidence. Moreover, even Appellant's counsel conceded that the State "thought they [the paint chips] were lost[]" and that "no ill motive" was attributed against the State in connection with the last minute discovery of the paint chip samples. We conclude, therefore, that the record in this case supports the State's conclusion that it disclosed the paint chip discovery "as soon as reasonably possible." Hager, 176 W.Va. at 313, 342 S.E.2d at 282, Syllabus.

Appellant also asserts that admission of the paint chip evidence is barred by the second requirement of Hager that the use of such evidence "would not unduly prejudice the defendant's preparation for trial." Id. On this issue of prejudice, the trial court recognized that "the defense hasn't actually disclosed its defense yet, officially[,] ... [b]ut if it's an alibi defense, this can't be prejudice."[16] Moreover, the circuit court recognized that "there is still time to undertake to rebut it [the new paint chip report]. There is even time to have the samples analyzed if... [the State] want[s] to...." The record suggests that Appellant did not request the opportunity to perform an independent analysis of the re-discovered paint chip evidence. Our cases have consistently expressed a preference for continuance when there has been a discovery violation. State ex rel. Rusen v. Hill, 193 W.Va. 133, 141, 454 S.E.2d 427, 435 (1994); Martin v. Smith, 190 W.Va. 286, 291, 438 S.E.2d 318, 323 (1993); State v. Barker, 169 W.Va. 620, 623, 289 S.E.2d 207, 210 (1982) ("even 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"). Accordingly, we find no abuse of discretion with regard to the *497 trial court's conclusion that Appellant's trial preparation was not prejudiced by the introduction of the paint chip evidence.

On the issue of reliability, Appellant maintains that the State failed to establish a proper chain of custody sufficient to warrant the admission of the paint chip evidence. Evidence may not be admitted unless it is authenticated in a manner sufficient to support a finding that the proffered object is what the proponent of its admission claims it is. See W.Va.R.Evid. 901(a). We recently reviewed the rules regarding chain of custody requirements in State v. Dillon, 191 W.Va. 648, 447 S.E.2d 583 (1994), stating that "to allow the admission of physical evidence into a criminal trial, `it is only necessary that the trial judge, in his discretion, be satisfied that the evidence presented is genuine and, in reasonable probability, has not been tampered with.'" Id. at 662, 447 S.E .2d at 597 (quoting, in part, State v. Davis, 164 W.Va. 783, 786-87, 266 S.E.2d 909, 912 (1980)). Evidence adduced regarding the chain of custody showed that Dr. Sopher, the State's medical examiner, removed the paint chips at issue from Nancy Santomero's clothing and sent such chips to the state police crime lab. Due to the succession of officers in charge of the evidence, it was shown through the testimony of Sergeant Giacalone that he had received the paint chip evidence from his predecessor Corporal Keyo who had received it from Lieutenant Barber. While the paint chip evidence was under the control of Lieutenant Barber, it was sent for analysis to an F.B.I. laboratory. The paint chips were returned to the state police crime lab and remained in the lab following such return.[17] In these circumstances, the court properly ruled that the evidence was sufficiently authenticated to permit its admission into evidence. We find no abuse of discretion in the court's conclusion that a proper chain of custody had been established through the testimony of Sergeant Giacalone.

The final ground upon which Appellant alleges error concerning the admission of the paint chip evidence is under Rule 403 of the West Virginia Rules of Evidence.[18] Appellant argues that the probative value of the paint chip evidence was substantially outweighed by the danger of unfair prejudice. Specifically, Appellant contends that the unavailability of the van[19] from which the paint chips were alleged by the State to have emanated[20] substantially reduced the probative value of Sergeant Giacalone's microscopic analysis of the paint chip evidence performed on May 17, 1993. The record reveals that both the unavailability of the van and the paint chip analysis were the subject of aggressive and extensive cross-examination.

Appellant's counsel conducted a vigorous cross-examination of Sergeant Giacalone regarding the second paint chip analysis that he performed. During this cross-examination, he admitted that it would be helpful to have a comparison between the paint chips and the suspect vehicle. In addition, Sergeant Giacalone admitted on cross-examination that his paint chip analysis was not inconsistent with the defense's theory that the paint originated from a Chevy Nova, a vehicle in which witnesses allegedly spotted *498 the two hitchhikers exiting from prior to the murders. Thus, as the State notes, "even if Fowler's van was not available for comparison, the jury had placed before [it] all the relevant evidence designed to discredit the probative value of the evidence."[21] We conclude that the trial court correctly determined that the paint chip evidence was relevant in light of the proffered testimony regarding the removal of paint chips by Dr. Sopher from Nancy Santomero's body, the prospective testimony regarding the hitchhikers having been in Richard Fowler's blue van, and the state's theory that the bodies had been dragged from the van. Accordingly, we find no error in the trial court's admission of the paint chip evidence under Rule 403, either from a probative value analysis or from a confusion of the jury analysis. See W.Va.R.Evid. 403.

IV. Police Misconduct

Prior to trial, Appellant moved to dismiss the indictment against him based upon allegations of police misconduct involving "Pee Wee" Walton and Johnnie Lewis.[22] The trial court permitted Walton and Lewis to testify concerning the specific abuse or intimidation that they allegedly experienced[23] and gave the following instruction to the jury regarding this testimony:

you have heard evidence that the State's witness, Winters Charles Walton ["Pee Wee"] was physically beaten, threatened and intimidated by a West Virginia State Police officer before giving a statement against Mr. Beard. Likewise, you have heard evidence that the State's witness, Johnnie Washington Lewis, was threatened and intimidated by a State Police officer before giving evidence against Mr. Beard. Therefore, you should consider this evidence when weighing the credibility of these witnesses, and if you believe these threats, intimidation, and/or physical abuse by the State Police has affected the testimony of ... these witnesses, you may disregard their testimony in its entirety, or give it such weight as you think it entitled.

See Cain v. State, 594 N.E.2d 835, 840 n. 6 (Ind.Ct.App.1992) ("The extent to which threats may have, in some degree, affected a third party's testimony goes to the weight to be given the testimony, not to its admissibility.").

Appellant urges this Court to find, like the New York Court of Appeals in People v. Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714, 378 N.E.2d 78 (1978), that "the police conduct, when tested by due process standards, was so egregious and deprivative as to impose upon us an obligation to dismiss." Id. at 717, 378 N.E.2d at 81. The trial court in Isaacson "found as a matter of fact" the following police conduct:

an investigator of the New York State Police struck Breniman [third party turned informant] with such force as to knock him out of a chair, then kicked him, resulting in a cutting of his mouth and forehead, and shortly thereafter threatened to shoot him. Breniman testified that his abuse was administered because he refused to answer a question, that when struck his glasses flew off, that he was kicked in the ribs when down, that a chair was thrown at him, that he was also threatened with being hurled down a flight of steps, and that one of two uniformed State troopers who witnessed these events said, `I [Breniman] may as well forget about it. They would swear that I fell coming in the substation on the steps.'

Id. at 715, 378 N.E.2d at 79.

Although Appellant argues that the instant case is factually similar to Isaacson on the issue of police conduct, there is a fundamental difference between the two cases. In *499 contrast to this case, the Isaacson trial court made specific factual findings of police misconduct. The present case lacks any similar factual finding of police abuse.[24] Another glaring distinction between the two cases is that Isaacson involved the issue of entrapment. Without more evidence than presented by the record in this case, we cannot conclude, as the Isaacson court ruled, that a dismissal is warranted on due process grounds. See 406 N.Y.S.2d at 717, 378 N.E.2d at 81.

While we are not unmindful of the possibility that police officers may choose to protect each other when it comes to allegations of misconduct, we are also cognizant of the fact, as acknowledged in Isaacson that `"[c]riminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer."` Id. at 721, 378 N.E.2d at 85 (quoting Sherman v. United States, 356 U.S. 369, 372, 78 S. Ct. 819, 820-21, 2 L. Ed. 2d 848 (1958)). The Isaacson court identified four factors[25] to be considered in determining whether a due process violation had occurred as a result of police action and cautioned that "[n]o one of these submitted factors is in itself determinative but each should be viewed in combination with all pertinent aspects and in the context of proper law enforcement objectives—the prevention of crime and the apprehension of violators, rather than the encouragement of and participation in sheer lawlessness." 406 N.Y.S.2d at 719, 378 N.E.2d at 83. While the Isaacson case presents an excellent discussion of due process analysis in the context of police misconduct, extension of the Isaacson holding is unwarranted given the absence of a trial court finding of police abuse and the additional missing element of entrapment.

V. Crime-Fraud Exception

Appellant cites error in the trial court's refusal to hold an in camera hearing concerning the applicability of the crime-fraud exception to the attorney/client privilege arising from lawyer Marilyn Thompson's representation of Johnnie Lewis. The predicate for this assignment was the fact that while in Ms. Thompson's presence, Lewis stated at least five different times that he was not present when the Rainbow victims were killed and that he knew nothing about the murders. Then in September 1992, when Ms. Thompson was not present he changed his story to implicate Appellant.[26] Upon becoming aware of her client's altered statements, Ms. Thompson sought and was granted permission to withdraw as Lewis' counsel.

The purpose of the crime-fraud exception to the attorney/client privilege was explained in United States v. Zolin, 491 U.S. 554, 109 S. Ct. 2619, 105 L. Ed. 2d 469 (1989), as seeking "to assure that the `seal of secrecy,' between lawyer and client does not extend to communications `made for the purpose of getting advice for the commission of a fraud' or crime." Id. at 563, 109 S. Ct. at 2626 (quoting Clark v. United States, 289 U.S. 1, 15, 53 S. Ct. 465, 469, 77 L. Ed. 993 (1933) and O'Rourke v. Darbishire, [1920] A.C. 581, 604 (P.C.)). The Supreme Court in Zolin announced the following standard for determining whether to hold an in camera hearing relevant to the crime/fraud exception:

Before engaging in in camera review to determine the applicability of the crime-fraud *500 exception, `the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person,' that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies.

Once that showing has been made, the decision whether to engage in in camera review rests in the sound discretion of the district court. The court should make that decision in light of the facts and circumstances of the particular case, including, among other things, the volume of materials the district court has been asked to review, the relative importance to the case of the alleged privileged information, and the likelihood that the evidence produced through in camera review, together with other available evidence then before the court, will establish that the crime-fraud exception does apply.

491 U.S. at 572, 109 S. Ct. at 2630-31 (emphasis supplied).

Appellant contends that he met the Zolin threshold requirement of establishing a sufficient showing to invoke the crime-fraud exception. We disagree. The evidence relied upon by Appellant to meet the Zolin burden[27] does not suggest that Lewis and his counsel had "communications ... in furtherance of a future crime or fraud." Id. at 563, 109 S. Ct. at 2626. At most, it suggests that Lewis was subject to suggestion or that he was intimidated by the police and changed his story when not protected by counsel. Appellant's evidence does not, however, suggest that Appellant conferred with Ms. Thompson with the objective of committing a prospective fraud upon the court. The trial court did not abuse its discretion in refusing to hold an in camera hearing since Appellant failed to make a sufficient showing regarding the applicability of the crime-fraud exception.

VI. Pre-indictment Delay

Appellant maintains that the thirteen-year delay between the murders and his indictment constitutes a violation of his due process rights. In support of his argument, he claims to have been severely prejudiced by the lengthy time span between the commission of the murders and the indictment due to the death of several witnesses; the destruction of his employer's work records; the occurrence of a natural disaster which destroyed evidence in the State's possession; significant changes to the crime scene; his inability to challenge the credibility of the State's witnesses by investigating their activities on the date of the murder; and the destruction of Richie Fowler's van in 1987 for scrap value.

Appellant relies on State ex rel. Leonard v. Hey, 269 S.E.2d 394 (1980), in which this Court held that

[a] delay of eleven years between the commission of a crime and the arrest or indictment of a defendant, his location and identification having been known throughout the period, is presumptively prejudicial to the defendant and violates his right to due process of law, U.S. Const. Amend. XIV, and W.Va. Const. art. 3, § 10. The presumption is rebuttable by the government.

269 S.E.2d at 394, Syl. Pt. 1. As the State points out, however, the facts in Hey differ substantially from those present in this case. In Hey, the State "had all the evidence upon which to proceed[]" during that eleven-year span, whereas in the instant case the State maintains that not until April of 1992 did Lewis and Walton provide information implicating Appellant. 269 S.E.2d at 395.

In Hundley v. Ashworth, 181 W.Va. 379, 382 S.E.2d 573 (1989), we refused to apply the burden-shifting mechanism announced in Hey "because the prosecutor was not shown to have knowledge of the identity and location of the defendant." Id. at 382, 382 *501 S.E.2d at 576; accord State v. Carrico, 189 W.Va. 40, 427 S.E.2d 474 (1993) (holding that two-year pre-indictment delay did not violate defendant's due process rights since government promptly sought indictment upon securing sufficient evidence). As was the case in Hundley, there is no need to engage in a Hey burden-shifting analysis because there is no evidence that the State had knowledge prior to April 1992 connecting Appellant with the Rainbow murders.

In essence, Appellant's pre-indictment delay argument is truly a complaint that the State's investigation of the Rainbow murders spanned more than a decade. Yet, Appellant does not charge that the State failed to use reasonable diligence in securing an indictment upon "`discovering sufficient facts to justify indictment.'" Syl. Pt. 1, in part, Carrico, 189 W.Va. at 42, 427 S.E.2d at 476 (quoting Hey, 269 S.E.2d at 398). We find no reversible error on the issue of pre-indictment delay as the State was investigating the crimes during the thirteen-year post-crime delay and promptly charged Appellant once it had the necessary grounds to secure an indictment.

VII. Kastigar Hearing

Prior to trial, Appellant sought a hearing for the purpose of requiring the State to demonstrate that its case rested entirely on evidence obtained independent of the State's grant of immunity to Appellant. This proceeding, known as a Kastigar hearing, places the burden on the State to affirmatively demonstrate that the evidence upon which it intends to rely "was derived from legitimate independent sources" and not from the immunized testimony. See Kastigar v. United States, 406 U.S. 441, 461-62, 92 S. Ct. 1653, 1665-66, 32 L. Ed. 2d 212 (1972). The trial court refused to hold the requested Kastigar hearing, and ruled that only statements given by Appellant to police subsequent to the grant of immunity were not to be admitted at trial without first holding an in camera hearing on their admissibility.

On February 3, 1983, the State granted Appellant immunity in exchange for his cooperation with the investigation of the Rainbow murders. The agreement, signed by the Pocahontas County Prosecuting Attorney and Appellant,[28] provided that:

The State of West Virginia agrees not to bring charges or to prosecute the said Jacob Beard for any involvement he may have had in the `Rainbow Murders' as an accessory after the fact, but it is herein expressly understood and agreed that there shall be no immunity granted ... for any direct involvement in the said murders as a principal, or as an accessory before the fact. If the State ... deems the testimony of Jacob Beard to be useless to ... [it], he will nonetheless be granted use immunity for any statements he makes to the said State of West Virginia, its agents or officers pursuant to this agreement.

Appellant contends that during the course of the investigation, in specific reliance on this grant of immunity, he provided statements regarding his knowledge of the Rainbow murders. He further maintains that the State made both direct and indirect use of information provided pursuant to the agreement. See Braswell v. United States, 487 U.S. 99, 117, 108 S. Ct. 2284, 2294-95, 101 L. Ed. 2d 98 (1988) ("Testimony obtained pursuant to a grant of statutory use immunity may be used neither directly nor derivatively."). As an illustration of direct use, Appellant cites the State's reading to the grand jury a statement he made upon his arrest to Florida authorities.[29]

The mandatory nature of a Kastigar hearing was recently discussed by the Fourth *502 Circuit Court of Appeals in United States v. Harris, 973 F.2d 333 (4th Cir.1992):

When the government decides to prosecute a previously use-immunized witness, the district court must hold a so-called Kastigar hearing to allow the government the opportunity to demonstrate that all of its evidence came from sources independent of the compelled testimony. The government bears `the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.' Courts have interpreted this passage to require the government to make its proof by a preponderance of the evidence. It is not legitimate for the government to alter its investigatory strategy as a result of the immunized statement. As the Court stated in Kastigar, `This total prohibition on use provides a comprehensive safeguard, barring the use of compelled testimony as an `investigatory lead,' and also barring the use of any evidence obtained by focusing investigation on a witness as a result of his compelled disclosures.'

973 F.2d at 336-37 (citations omitted).

The State maintains that Appellant's conviction was obtained solely through the testimony of Lewis and Walton and with no reliance on any immunized statements made by Appellant. However, as the court in Harris recognized, the State's representations that no immunity violation occurred do not take the place of a Kastigar hearing. See Harris, 973 F.2d at 337 ("government's mere representations to this effect standing alone are generally insufficient to carry its burden"). Moreover, the State, like the trial court, focuses solely on statements made by Appellant, when it is clear from Harris that investigatory leads obtained from immunized testimony are also covered by the requirements of Kastigar.[30]See 973 F.2d at 336-37.[31]

The State argues that "the failure to grant a Kastigar hearing is harmless where it is otherwise evident that any immunized evidence admitted at trial did not prejudice the accused." This statement, however, amounts to an erroneous statement of the harmless error rule as it relates to the Kastigar hearing requirement. After the Kastigar hearing has been held, "[d]ismissal of the indictment or vacation of the conviction is not necessary where the use is found to be harmless beyond a reasonable doubt." United States v. North, 910 F.2d 843, 854, opinion withdrawn, and superceded in part on other grounds, 920 F.2d 940 (D.C.Cir. 1990), cert. denied, 500 U.S. 941, 111 S. Ct. 2235, 114 L. Ed. 2d 477 (1991) (citing, inter alia, United States v. Gregory, 730 F.2d 692 (11th Cir.1984)). Thus, any determination of harmless error can only be found after a Kastigar proceeding has been held. See North, 910 F.2d at 854. Accordingly, the State's arguments regarding harmless error are premature at this juncture.

We conclude that when a previously immunized `witness is prosecuted, a hearing must be held pursuant to Kastigar for the purpose of requiring the State to demonstrate by a preponderance that all of the evidence it proposes to use was derived from legitimate sources wholly independent of the immunized testimony. See 406 U.S. at 460, 92 S. Ct. at 1664-65. While such a hearing should usually be held at the pretrial stage, it may, under the facts of the case, be properly held post-trial or mid-trial or at some combination of these trial stages, as pertinent evidence is offered. See North, 910 F.2d at 854.

Based on the trial court's failure to hold a Kastigar hearing, remand is necessary for the limited purpose of allowing the State the opportunity to prove that the evidence used to indict and convict Appellant was derived *503 from legitimate sources wholly independent of his immunized testimony. If the State meets its burden, then Appellant's conviction stands. Upon the failure of the State to make such a showing, however, the indictment must either be dismissed or a new trial awarded, unless the error is determined to be harmless beyond a reasonable doubt. See United States v. Poindexter, 951 F.2d 369, 377 (D.C.Cir.1991), cert. denied, ___ U.S. ___, 113 S. Ct. 656, 121 L. Ed. 2d 583 (1992); North, 910 F.2d at 854; Gregory, 730 F.2d at 698.

VIII. Hypnotically Tainted Evidence

Appellant moved during trial to exclude the testimony of "Pee Wee" Walton and Pamela Wilson on the grounds that such testimony had been tainted by hypnotic refreshment.[32] The trial court denied the motion as to Walton's testimony, but partially granted the request in connection with Wilson's testimony.[33] Appellant seeks a per se ruling that all hypnotically refreshed testimony must be excluded. Because the trial court only permitted the State to use the pre-hypnosis statement given by Wilson to Sergeant Alkire, Appellant lacks any basis for complaining about the taint of hypnosis with regard to this witness. The trial court's ruling is in accord with the prevailing view on this issue, which is to bar post-hypnotic, but to allow pre-hypnotic recollection. See, e.g., State v. Baker, 338 N.C. 526, 451 S.E.2d 574, 590-91 (1994); State v. Cook, 65 Ohio St. 3d 516, 605 N.E.2d 70, 77-78 (1992); Hopkins v. Commonwealth, 230 Va. 280, 337 S.E.2d 264, 270-71 (1985), cert. denied sub nom. Hopkins v. Virginia, 475 U.S. 1098, 106 S. Ct. 1498, 89 L. Ed. 2d 898 (1986).

The licensed psychologist who attempted to induce hypnosis on Walton testified that, at best, he "was able to put him in ... [a] mild or low-level trance." He explained further that, "every time that I would put him into a trance, as soon as I would get to anything that would be, I think, related to the offense, as far as meeting people or talking to people, ... he would come out of the trance...." The trial court concluded that Walton's memories were not induced by hypnosis. As the court in United States v. Bourgeois, 950 F.2d 980 (5th Cir.1992), recognized in upholding the trial court's refusal to limit testimony based on the taint of hypnosis,

The district court's rulings were based on its factual finding that ... [the witness] was not hypnotized during her session with the hypnotist. In light of the evidence presented at the pretrial hearing, we cannot say that this factfinding is clearly erroneous.... [C]ertain procedural protections [are required] when the court admits hypnotically enhanced testimony, but only when it is established that the witness was hypnotized.

Id. at 985 (emphasis supplied). We find no error in the trial court's refusal to exclude Walton's testimony on the same grounds elicited in Bourgeois. Furthermore, we decline to adopt a per se ruling that all hypnotically refreshed testimony must be excluded.

IX. Cumulative Error

Appellant's assertion of the cumulative error rule, as announced in State v. Smith, 156 W.Va. 385, 193 S.E .2d 550 (1972),[34] is ungrounded. Since the only error that occurred was the lack of a Kastigar hearing, the cumulative error rule has no application to this case.

Based on the foregoing, the decision of the Circuit Court of Pocahontas County is hereby *504 remanded for a Kastigar hearing. Following such hearing, an order to uphold Appellant's conviction, to dismiss the indictment against him, or to award a new trial shall be entered consistent with this opinion.

Remanded.

BROTHERTON and RECHT, JJ., did not participate.

MILLER, Retired J., sitting by temporary assignment.

FOX, Judge, sitting by temporary assignment.

NOTES

[1] See Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653," 32 L. Ed. 2d 212 (1972).

[2] Shortly after Appellant's conviction, all charges against his co-defendants were dismissed. The record does not disclose the basis for these dismissals.

[3] Appellant alleges two additional assignments of error: (1) the incompetency of two witnesses; and (2) insufficiency of the evidence. Finding no merit to these assignments, we decline to address them in full.

[4] Federal Rule of Evidence 702 provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Our state corollary to Rule 702 of the Federal Rules of Evidence, parallels in exact fashion the language of the federal rule. See W.Va.R.Evid. 702.

[5] The first and universal requirement for the admissibility of scientific evidence is that the evidence must be both "reliable" and "relevant." Under Daubert/Wilt, the reliability requirement is met only by a finding by the trial court under Rule 104(a) that the scientific or technical theory which is the basis for the test results is indeed "scientific, technical, or ... specialized knowledge." The trial court's determination regarding whether the scientific evidence is properly the subject of "scientific, technical, or other specialized knowledge" is a question of law that we review de novo. An example of that sort of legal determination by the trial court is detailed in Daubert, in which the Court explained that part of a trial court's "gatekeeping" function under Rule 702 when, for example, scientific testimony is offered, is the determination whether "the reasoning or methodology underlying the testimony is scientifically valid." ___ U.S. at ___, 113 S.Ct. at 2796. On the other hand, the relevancy requirement compels the trial judge to determine, under Rule 104(a), that the scientific evidence "will assist the trier of fact to understand the evidence or to determine a fact in issue." W.Va.R.Evid. 702. Appellate review of the trial court's rulings under the relevancy requirement are reviewed under an abuse of discretion standard.

[6] Appellant suggests that the error rate for polygraph examinations is lower than that for handwriting analyses and eyewitness identifications. See J. Widacki and F. Horvath, An Experimental Investigation of the Relative Validity and Utility of the Polygraph Technique and Three Other Common Methods of Criminal Identification, 23 J. Forensic Sci. 596 (1978). Appellant further posits that the empirical validity of polygraphs is far more easily tested than evidence of "Rape Trauma Syndrome," "Battered Spouse Syndrome," and "Cultural and Subcultural Difference." We note, however, that the nature of this type of evidence significantly differs from a polygraph test result, which forms "a separate testimonial basis of the facts relating to the crime." Frazier, 162 W.Va. at 619, 252 S.E.2d at 49.

[7] The Appellant calls our attention to a recent Fifth Circuit case, United States v. Posada, 57 F.3d 428 (5th Cir.1995), where that court held that the trial court committed error by adhering to a per se exclusionary rule regarding the admissibility of polygraph tests results. We believe that Appellant's reliance on Posado is misplaced. Initially, it is necessary to put Posado in its proper procedural context. The sole issue was whether polygraph evidence was admissible for purposes of bolstering the defendant's testimony that he did not consent to a search during a pretrial hearing of a motion to suppress. Without taking a position as to its admissibility, the Fifth Circuit stated that Daubert precludes per se exclusionary rules when dealing with scientific evidence. Rather, the court stated the trial court was required to go through the analysis announced in that opinion. What cannot be overlooked, however, is the court's statement that "[a]ssuming that polygraph evidence satisfies the requirements of Rule 702 does not end the inquiry. Other evidentiary rules, such as Rule 403, may still operate to exclude the evidence." 57 F.3d at 435. Because it was a nonjury hearing, the court felt that Rule 403 was not significant:

the evidence was not offered at trial before a jury, but in a pretrial hearing before the district court judge. A district court judge is much less likely than a lay jury to be intimidated by claims of scientific validity into assigning an inappropriate evidentiary value to polygraph evidence. We have consistently held that the rules of evidence are relaxed in pretrial suppression hearings.

57 F.3d at 435.

We agree with the Fifth Circuit as to the function of Rule 403 in nonjury hearings. See In re Carlita B., 185 W.Va. 613, 633, 408 S.E.2d 365, 385 (1991) (Miller, J., concurring); Schultz v. Butcher, 24 F.3d 626, 632 (4th Cir.1994) ("we hold that in the context of a bench trial, evidence should not be excluded under 403 on the ground that it is unfairly prejudicial"). However, the case sub judice is different as the polygraph evidence was proffered for the jury's consideration, and, in addition to what we have said in the text of this opinion, the evidence could have been excluded under Rule 403. Even giving the Appellant the benefit of the most favorable language in Posado, we find no abuse of discretion in excluding the polygraph evidence.

[8] Franklin offered this information in connection with questioning by Agent Smith concerning the May 2, 1980, murder of a white female in Wisconsin.

[9] Only Franklin's denial of any involvement in the murders is on the tape recording of the interview of Franklin by West Virginia State Police Officer DeFalco. Later, when Franklin purportedly changed his story and admitted involvement, a recording device was apparently not being utilized.

[10] Appellant contends that the map corroborates Franklin's confession by showing: (1) his route of travel from a bank robbery he committed in North Carolina to the West Virginia murder scene; (2) the location in West Virginia where he picked up the hitchhiking Rainbow victims; (3) the store where he purchased gasoline shortly before the murders; (4) the location of the encampment for the Rainbow gathering; (5) a winding dirt road and the smaller dirt road leading to the isolated area where he killed the victims; and (6) the parallel position of the bodies, laying as they were discovered. The State argued that the map lacked sufficient indicia of reliability as it lacked any route numbers or towns to "indicate with any certainty that ... [the map refers to] this area." The State also relied on the fact that Franklin claimed he committed the murders in Beckley County.

[11] Appellant's counsel corrected the judge by injecting that Franklin had only been convicted three times.

[12] The text of Federal Rule of Evidence 804(b)(3) and West Virginia Rule of Evidence 804(b)(3) are identical.

[13] The circuit court did permit the jury to be apprised through the testimony of West Virginia State Police Corporal Michael Jordan of the following limited facts regarding the Franklin confession: (1) that Franklin said he committed the murders; (2) that when interviewed by West Virginia police officers, he gave conflicting statements; and (3) that he currently refuses to talk to West Virginia authorities about the murders. During the course of Corporal Jordan's testimony regarding these matters, the trial court offered this instruction to the jury:

I have permitted this much of the evidence and testimony about the witness Franklin. That these officers went. They had interviews—or some officers did.... That statements were made, that statements were changed, and that the witness would not talk to them any further.

What the witness said is hearsay. And the contents of his statements and testimony the Court is not going to allow except to the extent that it is admitted so that you know what these officers did in following up these leads. You may consider it for that purpose. Otherwise, it is inadmissible.

[14] Instead of the two layers of paint previously indicated in the 1980 F.B.I. report, Sergeant Giacalone's report included a finding of four layers of paint. The 1980 F.B.I. report indicated that the paint chips particles consisted of a gray primer covered by a blue-green metallic lacquer. The 1993 analysis, performed by Sergeant Giacalone, concluded that there were four layers: black primer covered by gray primer covered by light blue metallic acrylic lacquer covered by a black overcoat.

[15] The record reveals, however, that the circuit court even suggested that Appellant had time to have a separate analysis performed on the newly discovered paint chip evidence, but Appellant failed to move the trial court for such testing.

[16] The defense relied upon by Appellant at trial was one of alibi. He was supposedly attending a school board meeting during the relevant time period.

[17] Sergeant Giacalone testified that he discovered the paint chip evidence within a manila coin envelope in his locker inside of a box on May 17, 1993.

[18] Rule 403 of the West Virginia Rules of Evidence provides: "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

[19] Neither the State nor Appellant had access to the actual van for comparison purposes, as it had already been scrapped.

[20] The State's theory was that the paint chips came from the van of Richard Fowler, originally a co-defendant of Appellant. The State's theory included the postulation that the two victims had been in Fowler's van partying prior to the murder and that the murders had resulted following the victims' denial of sexual favors to Appellant and his prior co-defendants. Through the testimony of Jerome F. Davis, the immediate owner of Fowler's van prior to Fowler's purchase of the vehicle, the State attempted to connect the paint chips taken from Ms. Santomero to Fowler's van. Davis testified that in 1976 he had painted the van a light metallic blue and further, that at some point, he had put black enamel on the bottom of the van.

[21] Furthermore, since Appellant claimed not to have been in the van, the analysis did not inculpate him under his theory of the case.

[22] Appellant did not object to the testimony of these individuals at trial on grounds of alleged police misconduct.

[23] Walton testified that Sergeant Estep bent, but did not break, his glasses and that the sergeant placed his foot on the back of Walton's neck when Walton was in a prone position. Walton also testified that Sergeant Estep threatened to strike his testicles and referred to the type of sexual abuse Walton might incur if he went to prison. The only abuse Lewis testified to was handcuffs being swung at him, but not touching him.

[24] Sergeant Estep denied making any threats or inflicting any of the abuse claimed by Walton. Corporal J.S. Tincher, who was present at the time of the alleged abuses against Walton, corroborated Sergeant Estep's denial.

[25] Those factors are:

(1) whether the police manufactured a crime which otherwise would not likely have occurred, or merely involved themselves in an ongoing criminal activity; (2) whether the police themselves engaged in criminal o[r] improper conduct repugnant to a sense of justice; (3) whether the defendant's reluctance to commit the crime is overcome by appeals to humanitarian instincts such as sympathy or past friendship, by temptation of exorbitant gain, or by persistent solicitation in the face of unwillingness; and (4) whether the record reveals simply a desire to obtain a conviction with no reading that the police motive is to prevent further crime or protect the populace.

406 N.Y.S.2d at 719, 378 N.E.2d at 83 (citations omitted).

[26] Previously, on April 16, 1992, after allegedly being threatened and intimidated by Sergeant Estep, Lewis implicated Appellant. Subsequent to this statement though, Lewis denied any knowledge of the murders on five separate occasions while in the presence of his counsel, Ms. Thompson.

[27] The essence of the evidence that Appellant contends meets the threshold burden test of Zolin is that: Lewis initially denied any knowledge of the Rainbow murders; after alleged police intimidation he implicated Appellant; while in the presence of his counsel, Ms. Thompson, he denied five times any knowledge of the murders; Lewis again reimplicated Appellant when with police officers out of the presence of his counsel; and Lewis' counsel withdrew upon learning of his altered statement.

[28] Although the prosecutor failed to obtain court approval of the immunity agreement, as required by West Virginia Code § 57-5-2 (1966), we explained in State v. Hanson, 181 W.Va. 353, 382 S.E.2d 547 (1989), that the State is nonetheless prohibited from using evidence that was secured or induced through a grant of immunity. See id. at 358-61, 382 S.E.2d at 553-55. Accordingly, the lack of court approval does not negate the obligation of the State to refrain from relying upon evidence secured through Appellant's grant of immunity.

[29] Apparently, the special prosecutor and the lead investigator, Sergeant Alkire, were unaware of the immunity agreement until after Appellant's statements to the Florida authorities had been read to the grand jury.

[30] Sergeant Alkire testified that it was possible that Appellant supplied investigative leads regarding Christina Cook, Palmer Atkinson, and Bill McCoy. In further support of the possibility that the State relied on his statements to obtain investigatory leads, Appellant notes that on the same day he signed the immunity agreement, he was subjected to two polygraph tests by state investigators.

[31] Appellant argues that alibi information contained in his statement to the Florida authorities upon his arrest was wrongly used to indict and to convict him. We do not address whether such statement would be outside the parameters of the immunity agreement.

[32] They were hypnotized by a psychologist retained by the state police.

[33] In response to Appellant's motion to exclude Wilson's testimony on grounds that her testimony was affected by hypnosis and further, based on the lack of record made by the hypnotist, the trial court limited the State in its case in chief to evidence and testimony in Wilson's statement that was given prior to hypnosis. In addition, the trial court gave Appellant the right to bring in any inconsistent statements made as a result of the hypnosis and to question Wilson regarding the same.

[34] The cumulative error rule provides that; "[w]here the record of a criminal trial shows that the cumulative effect of numerous errors committed during the trial prevented the defendant from receiving a fair trial, his conviction should be set aside, even though any one of such errors standing alone would be harmless error." Syl. Pt. 5, Smith, 156 W.Va. at 385, 193 S.E.2d at 551-52.