West Virginia High Court Bars Surrogate Lab Testimony, Narrows Felony Firearm Use

Status: West Virginia Supreme Court opinion in State v. Crawford, No. 24-102 (Justia; WV News).

Surrogate lab testimony barred

The court held that the Confrontation Clause of the Sixth Amendment and Article III, section 14 of the West Virginia Constitution bar introducing a laboratory report through an expert who neither performed nor observed the underlying test. Reviewer Blake Kinder introduced analyst Tiffany Neu's findings after she left the state police lab. Kinder had signed as reviewer but did not independently test the evidence; agreeing with Neu's conclusions did not make them his own opinion, the court said.

Because the drug identifications depended on Neu's report, the court ordered a new trial on two possession-with-intent-to-deliver counts. That was trial error, so double jeopardy does not bar retrial of those counts.

Felony firearm use narrowed

Separately, the court held that "use" of a firearm in connection with a felony under West Virginia Code 61-7-15a requires active employment — brandishing, displaying, firing, striking, or verbally referencing the weapon to change the circumstances of the felony — not mere passive possession or storage. A loaded gun stored with drugs in a fanny pack beneath a car seat did not qualify. That conviction became an acquittal that cannot be retried.

Jacquain Crawford's convictions for prohibited-person firearm possession and carrying a concealed firearm remain.