Gilkerson v. Lilly

• Decision Date: 05 March 1982
• Docket Number: No. 15374,15374
• Citation: 288 S.E.2d 164,169 W.Va. 412
• Parties: Andrew Re GILKERSON v. The Honorable C. Berkley LILLY, Chief Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 164

288 S.E.2d 164

169 W.Va. 412

Andrew Re GILKERSON v. The Honorable C. Berkley LILLY, Chief Judge, etc., et al.

No. 15374.

Supreme Court of Appeals of West Virginia.

March 5, 1982.

Syllabus by the Court

1. "A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan." Syl. pt. 1, Watson v. Ferguson, 274 S.E.2d 440 (1980).

2. The same transaction test for double jeopardy purposes is a procedural rule that is not mandated by either the State or federal constitutions but is in furtherance of the general policy enunciated in the double jeopardy clauses.

3. In order for a conviction or acquittal in magistrate court for a misdemeanor to bar a subsequent prosecution in circuit court for a felony arising out of the same transaction as the misdemeanor, if the only double jeopardy bar asserted is the "same transaction test" as articulated in State ex rel. Dowdy v. Robinson, W.Va., 257 S.E.2d 167, 170 (1979), the defendant must have moved in the magistrate court that his misdemeanor charge be brought by indictment and tried together with the pending felony prosecution in the circuit court.

Lee H. Adler, Beckley, for petitioner.

Chauncey H. Browning, Atty. Gen., Laurie J. Garrigan and Silas B. Taylor, Asst. Attys. Gen., Charleston, for respondents.

NEELY, Justice:

This is an original prohibition proceeding that invites further illumination of our law on double jeopardy. On 11 August 1979 petitioner, then nineteen years old, accompanied a juvenile to the local skating rink in Raleigh County. On the way home, they walked along West Virginia Route # 16 and either one or both decided to break into the Dairy Delight dairy stand. Apparently pursuant to a preconceived plan, the petitioner assisted the smaller and thinner juvenile through a window and the juvenile handed out cigarettes and confectionery items to petitioner. Within minutes the police arrived and arrested the juvenile. Petitioner was not apprehended until 16 August 1979, at which time he waived his right to a preliminary hearing on the nighttime breaking and entering charge.

Petitioner posted bond on the nighttime breaking and entering charge and also posted bond on a companion case, charging him by warrant in magistrate court with the misdemeanor, contributing to the delinquency of a minor by:

enticing, encouraging, inviting, and soliciting the said Howard Franklin Scott to break and enter, ...

Petitioner was tried on the misdemeanor, contributing to delinquency charge in magistrate court on 20 September 1979, found guilty, fined $80 and costs, and sentenced to five days in jail. In January 1980, petitioner was indicted for the nighttime breaking and entering. He now challenges the indictment on the grounds of double jeopardy.

I

The thrust of petitioner's argument is that in State ex rel. Dowdy v. Robinson, W.Va., 257 S.E.2d 167 (1979) this Court adopted the "same transaction test" for determining whether the trial of a defendant for one offense bars his trial for another offense arising from the same criminal transaction. Petitioner argues that since his breaking and entering arose from the exact same transaction as his contributing to the delinquency of a minor, trial on the breaking and entering is now barred because he has already been convicted of an offense arising out of the same transaction, namely contributing to delinquency. Citing Dowdy, supra as his authority, petitioner admits that the State could have tried him on both charges at the same time, but asserts that having failed to join the offenses for trial at the same time the State is now precluded from putting him to the expense and strain of a second trial.

The question before us, therefore, is whether we shall apply the same transaction test as enunciated in Dowdy, supra and reaffirmed in State ex rel. Johnson v. Hamilton, W.Va., 266 S.E.2d 125 (1980) to cases where one offense is a misdemeanor which must be prosecuted of right in the magistrate court and the other is a felony pending in the circuit court. We hold that the same transaction test alone does not make a conviction or acquittal in magistrate court on a misdemeanor an automatic bar to the prosecution of a felony charge arising out of the same transaction in the circuit court.

II

The trial judge below made a prescient observation in his letter opinion in this case when he said:

3. It would appear from a triology of West Virginia cases: (1) State ex rel Dowdy Vs. Johnson 257 S.E.2d 167; (2) State ex rel Johnson Vs. Hamilton 266 S.E.2d 123 ; (3) State ex rel Watson Vs. Ferguson 274 S.E.2d 440 hold that double jeopardy must be viewed from two tests, known as the "same evidence" and the "same transaction" tests. These cases are about as clear as mud.

If the holdings of this Court on the subject of double jeopardy tend to be confusing, our sense of inadequacy is at least solaced by the total lack of illumination on the subject emanating from the United States Supreme Court. ¹ The lack of consistent holdings is undoubtedly a fair reflection of the complexity of the problem and the number of permutations of real world factual situations requiring application of double jeopardy principles. There is, however, a consistent thread that, at least implicitly, runs through our cases and that is one of policy. As this Court said in Dowdy, supra :

The policy behind the prohibition against double jeopardy is probably best stated in Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957):

The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. 355 U.S. at 187, 78 S.Ct. at 223. 257 S.E.2d at 170.

The object of our "same transaction test" is to discourage certain abuses that all of us have observed from time to time in criminal prosecutions. It is not uncommon for three or four separate felonies to arise from a single transaction and for the prosecution to obtain separate indictments and schedule separate trials on each offense. Where these crimes are neither one offense with lesser included offenses nor provable by the same evidence, separate trials are permissible under the United States Supreme Court's "same evidence test." In Johnson v. Hamilton, supra we indicated that our decision in Dowdy, supra adopting the "same transaction test" was not predicated upon an absolute state constitutional standard, but was rather a court-fashioned rule of procedural law designed to secure a fundamental state constitutional right. InJohnson v. Hamilton we said:

Our discussion in the Dowdy case concerning the rules for implementing the West Virginia Constitution's prohibition against double jeopardy indicates that our selection of the 'same transaction' test and the 'same evidence' test, depending upon which is more favorable to the defendant, is a matter of policy which goes to the appropriate procedure for securing a fundamental right.

The preeminent position of policy, as opposed to absolute constitutional mandate, was finally made clear in the case of State ex rel. Watson v. Ferguson, W.Va., 274 S.E.2d 440, 444 where the Court said:

In light of the foregoing salutary goals and under our inherent rule-making power, we conclude that a defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transactions, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan. To the extent that State ex rel. Johnson v. Hamilton, W.Va., 266 S.E.2d 125 (1980), set the rule as a constitutional holding, it is disapproved.

It is now possible to say that the policy principles behind the double jeopardy clause are effected in this jurisdiction by a procedural rule that requires the defendant to be tried at the same time for all offenses arising out of the same transaction. Nonetheless, as in Watson v. Ferguson, supra, where the Court permitted multiple trials under circumstances where four people had been murdered by the defendant using a tire tool in the course of one unlawful entry into a single house, a court may for good cause choose not to apply the procedural rule. In Watson this Court concluded that the murders were sufficiently distinct and that there was good cause for trying each one separately. The Court said:

Here there is no contention that the multiple homicides occurred as a result of a single volitive act on the part of the defendant, but rather each was killed by sequential acts of the defendant moving from one victim to another, striking them with the tire lug wrench. Thus, where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single volitive act of the defendant, they may be tried and punished separately under the double jeopardy clause of Article III, Section 5 of the West Virginia...