Kennedy v. State

• Decision Date: 03 April 1986
• Docket Number: No. 16944,16944
• Citation: 176 W.Va. 284,342 S.E.2d 251
• Parties: David KENNEDY v. STATE of W. Va., Hon. Steven D. Narick, Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 251

342 S.E.2d 251

176 W.Va. 284

David KENNEDY v. STATE of W. Va., Hon. Steven D. Narick, Judge, etc., et al.

No. 16944.

Supreme Court of Appeals of

West Virginia.

April 3, 1986.

Syllabus by the Court

1. "Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both available and adequate, and only if the appellate court determines that the abuse of powers is so flagrant and violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition issue." Syl. pt. 2, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973).

2. "An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based." Syl. pt. 1, State v. Fairchild, 171 W.Va. 137, 298 S.E.2d 110 (1982).

3. A prosecutor may not instruct prosecuting witnesses not to speak with a defendant or defense counsel, or otherwise unreasonably obstruct access to such witnesses. However, a government witness who does not wish to speak to or be interviewed by the defendant or defense counsel may not, absent extraordinary and compelling circumstances, be required to do so; and private counsel or public prosecutor may properly inform a witness of this choice. A defendant's right of access is not violated as long as the final decision of the witness not to be interviewed is of his or her own volition.

Jeff C. Woods, Jackson, Kelly, Holt & O'Farrell, Charleston, for appellant.

Charlie Brown, Atty. Gen., Mary Rich Maloy, Asst. Atty. Gen., Charleston, for appellees.

McGRAW, Justice:

This is an original proceeding in prohibition in which the petitioner, David Kennedy, seeks an order directing the respondents to refrain from further proceeding upon the indictment returned against the petitioner by the grand jury assembled in Tyler County during February of 1985. This indictment charged the petitioner with two counts of obtaining money by false pretenses from the complainant below, Linda Kay Hamilton.

By written proposal submitted by the petitioner (d/b/a Kennedy Building and Roofing) on August 23, 1984, and acceptance by the complainant on September 4, 1984, these two parties entered into a contract whereby the petitioner would construct a new home for the complainant. The petitioner was to supply the labor and materials as specified in the contract, for the agreed sum of $53,200. During the progress of the construction, the complainant tendered five checks to Kennedy Building and Roofing. Specifically, it appears that the complainant delivered a total of $52,100 by the following checks: (1) September 14, 1984 ($20,000); (2) October 19, 1984 ($20,000); (3) November 16, 1984 ($6,200); (4) December 3, 1984 ($4,400); (5) December 12, 1984 ($1,500).

The criminal indictment returned on February 13, 1985 charges the petitioner with two counts of obtaining money by false pretenses from Linda Hamilton. ¹ The first count arises out of the $6,200 check given to petitioner on November 16, 1984. According to the allegations, the petitioner obtained this check from the complainant by representing that money was needed to purchase bricks for the home and to pay bricklayers. The respondents further allege an invoice in the amount of $3,255 from Belpre Transfer Company, dated November 24, 1984 evidencing the petitioner's purchase of bricks for the complainant's home has not been paid, and that the petitioner never intended to pay it. The second count arises out of the complainant's $1,500 check to the petitioner dated December 12, 1984. According to the respondents, the petitioner obtained this money by claiming that the funds were needed to purchase insulation and meet payroll obligations. The respondents further allege that the insulation was not and has not been purchased by the petitioner, and that he never intended to do so.

On July 12, 1985, a civil action was instituted in the Circuit Court of Tyler County by New Martinsville Supply Company, Inc., based upon a materialmen's lien filed against Linda Hamilton's property in February of that year due to unpaid sums owing upon materials supplied to the petitioner for the construction of Ms. Hamilton's house. Defendants in this civil action are Ms. Hamilton and the petitioner, as well as other record lienholders. In this pending civil action the petitioner has cross-claimed against Ms. Hamilton asserting entitlement to quantum meruit recovery above the contracted price due to alleged changes in the construction plan by her; and Ms. Hamilton has cross-claimed against the petitioner alleging breach of contract and fraud.

Returning to the criminal action, which is the sole subject in this proceeding, the record reveals that the petitioner filed two motions to dismiss in the circuit court below, contending: (1) that the petitioner's indictment represented an abuse of criminal process; and (2) that the indictment itself was legally insufficient for failure to state any criminal offense. On September 13, 1985, respondent Judge Narick denied the motions to dismiss and scheduled the case for trial. The petitioner then sought extraordinary relief by petition for a writ of prohibition filed with this Court. The criminal trial has been stayed pending the outcome of this proceeding.

The petition for a writ of prohibition raises three issues. The first two issues relate to the contentions presented in the motions to dismiss the indictment denied by the circuit court below. Additionally, the petitioner contends that relief from criminal prosecution should be awarded due to certain conduct of the complainant and her private counsel. The petitioner argues that this conduct has prejudicially interfered with his constitutional right to prepare an adequate defense in the criminal action.

As a necessary part of addressing the petitioner's three arguments for relief, we must place them within the context of the particular proceeding. West Virginia Constitution art. VIII § 3 provides that this Court shall have original jurisdiction in proceedings in prohibition. The general standard for an award of the relief sought herein is contained in West Virginia Code § 53-1-1 (1981 Replacement Vol.), which provides that "The writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has no jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers."

In the instant proceeding the petitioner seeks to invoke prohibition on the grounds that the circuit court abused or exceeded its legitimate powers in failing to grant the defense motions previously discussed. The scope of our review in such cases is stated in Syllabus point 2 of Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973):

Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both available and adequate, and only if the appellate court determines that the abuse of powers is so flagrant and violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition issue.

See also Syl. pt. 1, State ex rel. Williams v. Narick, 164 W.Va. 632, 264 S.E.2d 851 (1980). Elaborating further on this point, we note the primary holding in Syllabus point 1 of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), providing that "this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts...." Given this perspective, for the reasons discussed below we conclude that prohibition is not an appropriate or necessary remedy under the circumstances of this case.

In his first argument to this Court the petitioner asserts that the alleged actions involved in the counts charged in the indictment are not, as a matter of law and under the totality of circumstances, criminal in nature and, consequently, represent an abuse of the criminal process. Essentially, the assertion is that the transactions between the petitioner and the complainant involved no felonious intent on the petitioner's part and therefore, are contractual matters capable of resolution in civil proceedings. From this premise, the petitioner concludes that the complainant, vis a' vis the State, is abusing the criminal process to gain advantage in the related civil suit. ²

In State v. Moore, 166 W.Va. 97, 273 S.E.2d 821, 19 A.L.R.4th 945 (1980), this Court was reviewing, on appeal, a conviction for obtaining money under false pretenses where the defendant had been indicted after falling substantially short of his promise, upon which full payment was made, to deliver and complete a modular home upon the complaining witnesses' property. We concluded in Moore, as have a number of other jurisdictions, that the "false pretenses" of this statutory offense may be found in statements or promises relating to future acts. See generally Annot., 19 A.L.R.4th 959 (1983). We recognize that in situations involving a substantial failure to perform some promise there is justifiable concern over confusing criminal conduct with ordinary breach of contract. However, with this concern in view this Court emphasized in Moore that in order to sustain a criminal conviction "[t]he fraudulent intent at the time of the making of the false promise must be shown by 'something more than mere proof of...