Nicholas v. Sammons, No. 17919

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation178 W.Va. 631,363 S.E.2d 516
PartiesPaul NICHOLAS v. Lucien R. SAMMONS, Jr., Prosecuting Attorney for Doddridge County, and the Honorable Sam White, Judge, Third Judicial Circuit.
Docket NumberNo. 17919
Decision Date19 November 1987

Page 516

363 S.E.2d 516
178 W.Va. 631
Paul NICHOLAS
v.
Lucien R. SAMMONS, Jr., Prosecuting Attorney for Doddridge
County, and the Honorable Sam White, Judge, Third
Judicial Circuit.
No. 17919.
Supreme Court of Appeals of
West Virginia.
Nov. 19, 1987.

Page 517

Syllabus by the Court

1. Prosecutorial disqualification can be divided into two major categories. The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. A second category is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question.

2. "Under circumstances where it can reasonably be inferred that the prosecuting attorney has an interest in the outcome of a criminal prosecution beyond ordinary dedication to his duty to see that justice is done, the prosecuting attorney should be disqualified from prosecuting the case." Syllabus Point 4, in part, State v. Knight, 168 W.Va. 615, 285 S.E.2d 401 (1981).

3. It is generally held that past representations of a victim on civil matters unrelated to the criminal charges involving the defendant ordinarily will not disqualify a prosecutor.

Jerald E. Jones, Clarksburg, for plaintiff.

Silas B. Taylor, Dist. Atty. Gen., for defendants.

MILLER, Justice:

The relator in this proceeding in prohibition, Paul Nicholas, was indicted by a grand jury in Doddridge County for obtaining money by false pretenses from the First National Bank of West Union. The relator seeks to disqualify the prosecuting attorney because he had previously represented the bank in civil matters, including title and collection work, and currently has outstanding loans and is a depositor of the bank. He also prays for the appointment of a special prosecutor.

The record in this proceeding indicates that Salem Pipe, Inc., a corporation, obtained a $30,000 loan from First National Bank of West Union in May, 1984. The relator, Paul Nicholas, as President of Salem Pipe, executed a Security Agreement listing a piece of drilling equipment as security for the loan. Thereafter, the bank declared the loan in default. The prosecuting attorney indicates that when he was contacted by the bank he referred the case to the state police which conducted an investigation. Based on this investigation, the relator was indicted for obtaining money under false pretenses in January, 1987. The indictment alleged that the relator had falsely stated the drilling equipment listed as security for the loan was owned by Salem Pipe.

In the proceedings here, the relator has raised as an additional fact in support of [178 W.Va. 632] recusal, i.e., that the prosecutor represented another creditor against the relator in a civil action styled McCormick and Balog v. Paul Nicholas and Salem Pipe, Inc., No. 84-C-14. In his response to this allegation, the respondent prosecutor avers that this civil action was dismissed under the "two-year" rule in September, 1986, over four months prior to the return of the initial indictment. Furthermore, he asserts that the civil action had no relationship whatsoever to the bank or to the transaction which led to the relator's indictment.

The respondent prosecutor also represents that while he is one of several attorneys who has done collection work for the bank, he has never represented the bank in

Page 518

connection with any transaction involving the relator, nor has he ever been requested to do so. Furthermore, he also states that since the time the indictments were returned he has not performed any legal services for the bank in any capacity, nor has he performed title searches for any of the bank's customers. He also asserts that he has never been retained by the bank on a continuous basis, and to his knowledge, performed no more title and collection work than any other local attorney upon whom the bank relies for legal services. The respondent further denies any suggestion that any officer of the bank persuaded him to present the case for an indictment. He points out that he is a depositor in the only other bank in West Union and also has done title work for clients who have obtained loans from that bank.

Most courts which have considered the question of prosecutorial disqualification have articulated two general policy considerations that underlie the necessity of disqualification. One is based on the universally recognized principle that a prosecutor's duty is to obtain justice and not simply to convict. The United States Supreme Court in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935), put the prosecutor's role in the following terms:

"[He] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer."

We spoke to this point in Syllabus Point 3 of State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710 (1977):

"The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law."

State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983); State v. Kanney, 169 W.Va. 764, 289 S.E.2d 485 (1982); State v. Critzer, 167 W.Va. 655, 280 S.E.2d 288 (1981). See also, State ex rel. Moran v. Ziegler, 161 W.Va. 609, 244 S.E.2d 550 (1978).

A second policy position is based on the fact that public confidence in the criminal justice system is maintained by assuring that it operates in a fair and impartial manner. Consequently, if a prosecutor has a conflict or personal interest in a criminal case that he is handling, this can erode the public confidence as to the impartiality of the system. E.g., State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972) (En Banc); People v. Superior Court (Greer), 19 Cal.3d 255, 137 Cal.Rptr. 476, 561 P.2d 1164 (1977); Burkett v. State, 131 Ga.App. 662, 206 S.E.2d 848 (1974); People v. Rhymer, 32 Ill.App.3d 431, 336 N.E.2d 203 (1975); State v. Tippecanoe County Court, 432 N.E.2d 1377 (Ind.1982); People v. Doyle, 159 Mich.App. 632, 406 N.W.2d 893 (1987); State v. Croka, 646 S.W.2d 389 (Mo.App.1983); State v. Chambers, 86 N.M. 383, 524 P.2d 999 (1974); State v. Cooper, 63 [178 W.Va. 633] Ohio Misc. 1, 409 N.E.2d 1070 (1980); Ex parte Spain, 589 S.W.2d 132 (Tex.Cr.App.1979) (En Banc); Annot., 31 A.L.R.3d 953 (1970).

Prosecutorial disqualification can be divided into two major categories. The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. The most obvious situation is where the prosecutor in the past had represented the defendant on the same or a related charge and...

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19 practice notes
  • State v. Hottle, No. 23094
    • United States
    • Supreme Court of West Virginia
    • July 17, 1996
    ...kinship, or close friendship such that his objectivity and impartiality are called into question." Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 Dennis V. DiBenedetto, Prosecuting Attorney for Grant County, Petersburg, for Appellee. Timothy M. Sirk, Keyser, for Appell......
  • Games-Neely v. Real Property, No. 29999.
    • United States
    • Supreme Court of West Virginia
    • February 22, 2002
    ..."public confidence in the criminal justice system ... by assuring that it operates in a fair and impartial manner." Nicholas v. Sammons, 178 W.Va. 631, 632, 363 S.E.2d 516, 518 (1987). The State cannot, should not, rely upon procedural technicalities such as the default provisions of the Fo......
  • State v. Ladd, No. 28853.
    • United States
    • Supreme Court of West Virginia
    • December 11, 2001
    ...kinship, or close friendship such that his objectivity and impartiality are called into question. Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 (1987). The claim in the instant case concerns the second major category of disqualification, i.e., that due to the assistan......
  • State ex rel. McClanahan v. Hamilton, No. 21523
    • United States
    • Supreme Court of West Virginia
    • April 23, 1993
    ...kinship, or close friendship such that his objectivity and impartiality are called into question." Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 2. Rule 1.9(a) of the Rules of Professional Conduct, precludes an attorney who has formerly represented a client in a matte......
  • Request a trial to view additional results
20 cases
  • State v. Hottle, No. 23094
    • United States
    • Supreme Court of West Virginia
    • July 17, 1996
    ...kinship, or close friendship such that his objectivity and impartiality are called into question." Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 Dennis V. DiBenedetto, Prosecuting Attorney for Grant County, Petersburg, for Appellee. Timothy M. Sirk, Keyser, for Appell......
  • Games-Neely v. Real Property, No. 29999.
    • United States
    • Supreme Court of West Virginia
    • February 22, 2002
    ..."public confidence in the criminal justice system ... by assuring that it operates in a fair and impartial manner." Nicholas v. Sammons, 178 W.Va. 631, 632, 363 S.E.2d 516, 518 (1987). The State cannot, should not, rely upon procedural technicalities such as the default provisions of the Fo......
  • State v. Ladd, No. 28853.
    • United States
    • Supreme Court of West Virginia
    • December 11, 2001
    ...kinship, or close friendship such that his objectivity and impartiality are called into question. Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 (1987). The claim in the instant case concerns the second major category of disqualification, i.e., that due to the assistan......
  • State ex rel. McClanahan v. Hamilton, No. 21523
    • United States
    • Supreme Court of West Virginia
    • April 23, 1993
    ...kinship, or close friendship such that his objectivity and impartiality are called into question." Syllabus Point 1, Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516 2. Rule 1.9(a) of the Rules of Professional Conduct, precludes an attorney who has formerly represented a client in a matte......
  • Request a trial to view additional results

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