Naum v. Halbritter

• Decision Date: 14 November 1983
• Docket Number: No. 15942,15942
• Citation: 309 S.E.2d 109,172 W.Va. 610
• Court: West Virginia Supreme Court
• Parties: Dennis M. NAUM v. Honorable Robert C. HALBRITTER, Spec. Judge, etc.

Page 109

309 S.E.2d 109

172 W.Va. 610

Dennis M. NAUM v. Honorable Robert C. HALBRITTER, Spec. Judge, etc.

No. 15942.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1983.

Syllabus by the Court

1. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, 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 and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." syl. pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

2. "Hearsay evidence which is against the penal interest of the extra-judicial declarant is admissible even though it does not fall within a recognized West Virginia exception to the hearsay rule if it possesses sufficient indicia of reliability to satisfy the court that it is trustworthy in accordance with the following rule: A statement has circumstantial guarantees of trustworthiness if the court determines that (A) the statement is offered in evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purpose of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant." syl. pt. 2, State v. Williams, 162 W.Va. 348, 249 S.E.2d 752 (1978).

3. In deciding whether to admit a hearsay statement that is against the penal interests of the extra-judicial declarant, "The court should consider any possible self-interest for the declarant to make the statement, the trustworthiness of the witness testifying as to the statement, the presence of any evidence tending to corroborate the truth of the statement, and any other factors bearing on the reliability of the evidence proferred." State v. Williams, 162 W.Va. 348, 249 S.E.2d 752, 757 (1978).

James A. Byrum and James A. Byrum, Jr., Bailey, Byrum & Vieweg, Wheeling, for petitioner.

Mark A. Karl, Moundsville, for respondent.

NEELY, Justice.

On 24 May 1982, petitioner Dennis Naum, prosecuting attorney of Ohio County, was called to testify before a grand jury. Mr. Naum testified that his only knowledge of Anita Kay McLaughlin was that she was a waitress at a bar he occasionally visited. On 6 April 1983, the petitioner was indicted by that grand jury for false swearing.

Ms. McLaughlin is now dead, an apparent victim of homicide. In rebutting petitioner's claim that he had only passing knowledge of Ms. McLaughlin the special prosecutor relied upon statements allegedly made by Ms. McLaughlin to friends and family. The prosecution claimed those statements indicated that the petitioner had had intimate relations with the deceased, a prostitute, on at least one and perhaps more than one occasion.

At the time this evidence was offered, petitioner made a motion in limine to foreclose use of such out-of-court statements as inadmissible hearsay. Respondent ruled that those out-of-court statements were admissible as declarations made against penal interests. Petitioner then came here seeking a writ of prohibition. We grant that writ.

I

The threshold inquiry in this case is whether a writ of prohibition is an available remedy for petitioner. This Court articulated the necessary circumstances for granting such a writ in Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979). That case involved a writ of prohibition brought to challenge a trial court's transfer of a civil personal injury case. Although we held that the transfer was not an abuse of discretion, we took that occasion to outline the circumstances in which a writ of prohibition was appropriate. First, other remedies such as appeal must be inadequate. Second, the writ should not unduly interfere with efficient judicial administration. Third, the writ must be sought in good faith. Finally, it should be addressed to a clear legal issue.

The case sub judice meets all of these criteria. Petitioner is not adequately protected by the remedy of appeal because under W.Va.Code 61-5-3 [1927], a person convicted of false swearing is barred from public office and W.Va.Code 6-6-9 [1931] fixes the time for such forfeiture as when judgment is entered upon conviction. Thus, by operation of law he would be substantially harmed during the period when his appeal was maturing for consideration. As to judicial economy, although we are generally reluctant to reverse an interlocutory evidentiary ruling by a trial judge, this situation requires such action. Because the state offers no corroborating evidence for its charge, an ultimate ruling by this court that the evidence is inadmissible will necessarily lead to reversal of any conviction. Therefore, allowing the trial to go through to its conclusion would be an exercise in futility, wasting both the trial court's time and the state's resources.

Petitioner seeks the writ in good faith. He certainly has a colorable legal argument. Furthermore, it is difficult to imagine what benefit there is in obstruction for a public official whose reputation is incrementally tainted by every day's delay in the resolution of his case. Finally, this issue appears ripe for appellate consideration since it involves a clear legal question. There is no further need for development of a factual record. The sole issue is whether the evidence which the State proffers in support of its case has sufficient indicia of reliability to overcome the general legal principle that hearsay is not admissible. A definitive ruling on that question from this court may provide guidance not only for this case but for trial courts throughout the state. For all of these reasons, treating petitioner's request at this time rather than after the trial is completed is both necessary and desirable.

II

Respondent relied upon the exception to the hearsay rule which allows out-of-court statements made against penal interests to be admitted in court. This exception has limited application in West Virginia. In fact until State v. Williams, 162 W.Va. 348, 249 S.E.2d 752 (1978), this State did not recognize that common law exception. See, e.g., State v. Poe, 69 W.Va. 260, 71 S.E. 177 (1911).

It is worth noting at the outset that federal courts are in accord with our view that the exception to the hearsay rule for statements made against penal interest should be applied only when other factors make those statements appear credible. As the Ninth Circuit noted in United States v. Harris, 501 F.2d 1, 7 (9th Cir.1974), "[A] statement is not admissible as an exception to the hearsay rule solely because it is against the penal interest of the declarant." In Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Supreme Court condoned the admission of hearsay statements made against penal interest only because "[T]he hearsay statements involved in this case were originally made and subsequently offered at trial under circumstances that provided considerable assurance of their reliability." Thus, out-of-court statements against penal interest are admitted into evidence in federal courts only when it is reasonable to believe that the out-of-court declarant was making a credible statement.

In Williams, supra, we carved out a limited exception to the hearsay rule for statements against penal interest in a criminal case where the statement against penal interest was offered by the defendant to corroborate his own exculpatory story. This court made clear in that case that the exception for statements adverse to penal interests was merely an application of the general principle that hearsay evidence is admissible only when it is accompanied by sufficient indicia of reliability. In that case we established the following substantial qualification on the admission of an out-of-court statement against penal interest:

The court should consider any possible self-interest for the declarant to make the statement, the trustworthiness of the witness testifying as to the statement, the presence of any evidence tending to corroborate the truth of the statement, and any other factors bearing on the reliability of the evidence proferred.

Id. 162 W.Va. at 356-357, 249 S.E.2d at 757. Certainly our holding in Williams that under certain limited circumstances admissions against penal interests may be introduced did not create a per se exception to the general hearsay rule. Because we do not find sufficient indicia of reliability present in this case and because we are reluctant to extend the exception to cases in which the prosecution relies exclusively on hearsay to establish guilt, we hold that the out-of-court statements made by the deceased are inadmissible.

III

Ms. McLaughlin's "statements against penal interests" had to do with acts of prostitution. The remarks were made to intimate friends and members of her family. Those individuals were presumably already well aware of the deceased's chosen occupation. Regardless of whether they approved of her activities, her revelations as to one particular act were hardly likely...