Peyatt v. Kopp

Decision Date12 March 1993
Docket NumberNo. 20999,20999
Citation428 S.E.2d 535,189 W.Va. 114
CourtWest Virginia Supreme Court
PartiesAndrew Keith PEYATT, Appellee, v. Donald L. KOPP, II, Magistrate, and Edmund J. Matko, Prosecuting Attorney for Harrison County, Appellants.

Syllabus by the Court

1. The magistrate has the discretion to allow hearsay evidence at a preliminary hearing under W.Va.R.Crim.P. 5.1 if three conditions are met: (1) the source of the hearsay is credible; (2) there is a factual basis for the information furnished; and (3) an unreasonable burden would be imposed on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing.

2. Prohibition does not lie against a prosecuting attorney to restrain him from presenting a case to a grand jury where the prosecuting attorney, in performing his statutory duties, has probable cause to believe that a criminal offense has been committed and that the defendant committed the offense.

Darrell V. McGraw, Jr., Atty. Gen., and Rodney L. Bean, Asst. Atty. Gen., Charleston, for appellants.

David J. Romano and Nancy Westmoreland Brown, Law Offices of David J. Romano, Clarksburg, for appellee.

McHUGH, Justice:

The State of West Virginia seeks review of an order of the Circuit Court of Harrison County which issued a writ of mandamus to compel the magistrate to reopen Andrew Keith Peyatt's preliminary hearing, and issued a writ of prohibition against the prosecuting attorney to prohibit him from presenting any evidence or testimony to the grand jury regarding the charges against Mr. Peyatt until another preliminary hearing is conducted.

I

Three arrest warrants were issued in June of 1991, charging Mr. Peyatt with three counts of first-degree sexual abuse. The incidents giving rise to the sexual abuse charges involving two female children were alleged to have occurred between September and November of 1989, at Mr. Peyatt's home. 1

A preliminary hearing on the charges against Mr. Peyatt was held in August of 1991. Counsel on behalf of Mr. Peyatt subpoenaed both of the children to testify. He also issued subpoenas duces tecum to compel Lieutenant Jim Hotsinpiller, the investigating officer, and Terry Laurita, the social worker assigned to the case, to testify and provide any documents they had prepared or recordings they had made during their interviews with the children and their families. 2

The State moved to quash the subpoenas issued to compel the children to testify on the grounds that the children were not prepared to testify and that it would be traumatic for them. The State also moved to quash the subpoenas duces tecum on the grounds that they were sought solely for discovery purposes, that they were irrelevant to the magistrate's probable cause determination, and that they were an improper matter for consideration in a preliminary hearing. Counsel on behalf of Mr. Peyatt contended that he had a right to confront his accusers, and that the magistrate needed to hear the testimony of the children in order to make a probable cause determination.

The magistrate, after hearing arguments on the State's motion to quash the subpoenas to compel the children to testify, granted the State's motion. The magistrate, however, reserved judgment on the State's motion to quash the subpoenas duces tecum in order to provide counsel on behalf of Mr. Peyatt an opportunity to demonstrate the relevance of this evidence to the probable cause determination. The magistrate ultimately granted the State's motion.

Following a three-day preliminary hearing, the magistrate found probable cause to hold Mr. Peyatt for grand jury action. Counsel on behalf of Mr. Peyatt then filed a petition seeking a writ of mandamus to compel the magistrate to conduct another preliminary hearing, and also seeking a writ of prohibition to prohibit the prosecuting attorney from presenting the matter to the grand jury. After hearing arguments on the petitions, the circuit court issued both writs.

II

The State asserts that the circuit court erred in granting the writ of mandamus compelling the magistrate to conduct another preliminary hearing to allow the admission of additional evidence. Mr. Peyatt contends that the writ of mandamus was necessary to protect his constitutional rights to due process, compulsory process and effective assistance of counsel, and that the magistrate denied him a proper preliminary hearing when he refused to admit the testimony of the minor children.

As pointed out by the State, this Court has consistently recognized that a preliminary hearing is not a federal constitutional mandate, and that there is nothing in our State Constitution which would give an independent state constitutional right to a preliminary hearing. 3 Syl. pt. 1, State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 268 S.E.2d 45 (1980); syl. pt. 1, Gibson v. McKenzie, 163 W.Va. 615, 259 S.E.2d 616 (1979). Rule 5 of the West Virginia Rules of Criminal Procedure provides, however, that a defendant is entitled to a preliminary hearing unless it is waived. W.Va.R.Crim.P. 5 further provides that the preliminary hearing shall not be held if the defendant is indicted or if an information is filed against the defendant in circuit court before the date of the preliminary hearing.

Preliminary examination of a defendant charged with a criminal offense is governed by Rule 5.1 of the West Virginia Rules of Criminal Procedure. W.Va.R.Crim.P. 5.1(a) provides:

Rule 5.1. Preliminary Examination. (a) Probable Cause of Finding. If from the evidence it appears that there is probable cause to believe that an offense has been committed and that the defendant committed it, the magistrate shall forthwith hold him to answer in circuit court. Witnesses shall be examined and evidence introduced for the state under the rules of evidence prevailing in criminal trials generally except that hearsay evidence may be received, if there is a substantial basis for believing:

(1) That the source of the hearsay is credible;

(2) That there is a factual basis for the information furnished; and

(3) That it would impose an unreasonable burden on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing.

The defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. Objections to evidence on the ground that it was acquired by unlawful means are not properly made at the preliminary examination. Motions to suppress must be made to the trial court as provided in Rule 12. On motion of either the state or the defendant, witnesses shall be separated and not permitted in the hearing room except when called to testify.

A preliminary hearing under Rule 5.1 is not a trial upon the issue of the defendant's guilt. Desper v. State, 173 W.Va. 494, 501, 318 S.E.2d 437, 445 (1984). 4 This Court discussed the primary function of a preliminary hearing in syllabus point 1 of Desper:

A preliminary examination conducted pursuant to Rule 5.1 of the West Virginia Rules of Criminal Procedure serves to determine whether there is probable cause to believe that an offense has been committed and that the defendant committed it; the purpose of such an examination is not to provide the defendant with discovery of the nature of the State's case against the defendant, although discovery may be a by-product of the preliminary examination.

We also explained the scope of the defendant's rights in challenging probable cause under Rule 5.1 in syllabus point 2 of Desper:

In challenging probable cause at a preliminary examination conducted pursuant to Rule 5.1 of the West Virginia Rules of Criminal Procedure, a defendant has a right to cross-examine witnesses for the State and to introduce evidence; the defendant is not entitled during the preliminary examination to explore testimony solely for discovery purposes. The magistrate at the preliminary examination has discretion to limit such testimony to the probable cause issue, and the magistrate may properly require the defendant to explain the relevance to probable cause of the testimony the defendant seeks to elicit.

While we recognized the magistrate's discretion, in Desper, to limit testimony to the probable cause issue and to require the defendant to explain the relevance of the testimony the defendant seeks to elicit to the probable cause issue, we did not fully discuss the discretion granted to a magistrate in determining the admissibility of hearsay evidence at the preliminary hearing. As cited above, W.Va.R.Crim.P. 5.1 allows the admissibility of hearsay evidence at a preliminary hearing provided three conditions are met: (1) the hearsay evidence must come from a credible witness; (2) there must be a factual basis for the information furnished; and (3) an unreasonable burden would be imposed on one of the parties or on a witness to require that the primary source of the evidence be produced at the hearing. See State v. Haught, 179 W.Va. 557, 371 S.E.2d 54 (1988). 5

The hearsay evidence admitted at the preliminary hearing in this case to support the allegations of the minor children who did not testify consisted of the testimony of Lieutenant J.W. Hotsinpiller, the investigating officer, and Terry Givens, a child protective service worker for the West Virginia Department of Health and Human Services who interviewed the children. 6 To begin with, Lieutenant Hotsinpiller testified that he first interviewed the minor children at the request of Ms. Givens in response to an allegation filed with her office. Lieutenant Hotsinpiller testified that he asked each of the children to tell him what had occurred and where the incidents took place. He further testified that he had visited the residence where the incidents allegedly occurred prior to interviewing the children. Lieutenant Hotsinpiller stated that he conducted follow-up interviews with both children to...

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6 cases
  • State ex rel. Repass v. Hoke
    • United States
    • Supreme Court of West Virginia
    • March 9, 2012
    ...as a matter of right (emphasis in original text) if a hearing can be held prior to the return of an indictment. See Peyott v. Kopp. 428 S.E.2d 535, 537 (W.Va. 1993). On June 10, 2003, the Court dismissed the Complaint for Writ of Prohibition with prejudice. The Court further Ordered that it......
  • Rash v. Plumley
    • United States
    • Supreme Court of West Virginia
    • March 30, 2011
    ...nothing in our State Constitution which would give an independent state constitutional right to a preliminary hearing." Peyatt v. Kopp, 189 W. Va. 114, 116, 428 S.E.2d 535, 537 (1993) (citing syl. pt. 1, State ex rel. Rowe v. Ferguson, 165 W. Va. 183, 268 S.E.2d 45 (1980); syl. pt. 1, Gibso......
  • Ward v. Clark
    • United States
    • U.S. District Court — Southern District of West Virginia
    • April 9, 2013
    ...... the defendant is indicted or if an information is filed against the defendant in circuit court before the date of the preliminary hearing." Peyatt v. Kopp, 428 S.E.2d 535, 537 (W. Va. 1993). The Rule's preliminary hearing requirement, coupled with exceptions, is consistent with the Federal and ......
  • Ward v. Clark
    • United States
    • U.S. District Court — Southern District of West Virginia
    • April 9, 2013
    ...... the defendant is indicted or if an information is filed against the defendant in circuit court before the date of the preliminary hearing." Peyatt v. Kopp, 428 S.E.2d 535, 537 (W. Va. 1993). The Rule's preliminary hearing requirement, coupled with exceptions, is consistent with the Federal and ......
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