State ex rel. Forbes v. Canady
| Decision Date | 13 June 1996 |
| Docket Number | No. 23242,23242 |
| Citation | 197 W.Va. 37,475 S.E.2d 37 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. William C. FORBES, Prosecuting Attorney for Kanawha County, Petitioner, v. Honorable Herman G. CANADY, Jr., Judge of the Circuit Court of Kanawha County, and Matthew R. Hensley, Respondents. |
2. Syllabus Point 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992).
3. Rule 8(a) of the West Virginia Rules of Criminal Procedure compels the prosecuting attorney to charge in the same charging document all offenses based on the same act or transaction, or on two or more acts or transactions, connected together or constituting parts of a common scheme or plan, whether felonies, misdemeanors or both, provided that the offenses occurred in the same jurisdiction, and the prosecuting attorney knew or should have known of all the offenses, or had an opportunity to present all offenses prior to the time that jeopardy attaches in any one of the offenses.
4. Pursuant to Rule 8(a) of the West Virginia Rules of Criminal Procedure, the burden of joining multiple offenses arising out of the same act or transaction, or constituting parts of a common scheme or plan, occurring within the same jurisdiction, and which are known or should have been known to the prosecuting attorney, or which the prosecuting attorney had an opportunity to attend the proceeding where the first offense is presented, which is prior to the time that jeopardy attaches in any one of the offenses, is upon the State not on the defendant.
5. In the event that the State fails to comply with the mandatory provisions of Rule 8(a), and all of the elements requiring mandatory joinder are extant, then the charging document addressing any subsequent offenses must be dismissed.
Mary Beth Kershner, Assistant Prosecuting Attorney, Charleston, for Petitioner.
Gregory J. Campbell, Campbell & Turkaly, Charleston, for Respondent Hensley.
In this original prohibition proceeding, the Prosecuting Attorney for Kanawha County ("petitioner"), seeks to prohibit the respondent judge, the Honorable Herman Canady, Judge of the Circuit Court of Kanawha County ("respondent judge"), from entering an order dismissing an indictment charging Matthew Hensley ("defendant") with the crime of malicious assault under W. Va.Code 61-2-9(a) (1978). 1
The respondent judge has decided that the malicious assault charge in the indictment was an outgrowth of the same transaction as offenses for which the defendant was previously acquitted, and therefore should be dismissed for failure to join all offenses in the same indictment as required by the mandatory language of Rule 8(a) of West Virginia Rules of Criminal Procedure. 2
The petitioner disagrees and is requesting this Court prohibit the respondent judge from entering the order implementing this decision. Because, as will be discussed below, the record in the Circuit Court of Kanawha County fails to contain critical factual findings as to the extent of the petitioner's knowledge of all of the offenses which should have been charged in a single indictment, we remand this matter to the Circuit Court of Kanawha County with specific directions targeted at a more expanded factual development and corresponding findings of fact and conclusions of law.
The defendant was involved in a bar fight in Kanawha County on November 16, 1991. Ambulances arrived at the scene and several people were taken from the bar to a Charleston area hospital. The defendant, along with four other people, was arrested at the scene and immediately charged in magistrate court with public intoxication and destruction of property, both misdemeanors. We understand from the record that on November 21, 1991, one of the victims of the fight, Barbara Lane, provided a statement to a detective with the Kanawha County Sheriff's Department regarding injuries she suffered during the fight. The record before us does not contain the statement and we have the representations by the defendant's lawyer, during the course of the hearing on the motion to dismiss, to the extent that the victim told the detective that the defendant allegedly threw a cue ball hitting her in her left eye, causing bone fractures and resulting in plastic and reconstructive surgery. No additional charges were brought against the defendant prior to his trial in magistrate court on March 13, 1992. The defendant was acquitted of both misdemeanors following the trial in magistrate court.
Ms. Lane's statement regarding the nature of her injuries was in the possession of the Kanawha County Sheriff's Department but was not communicated to the prosecuting attorney of Kanawha County until January, 1994, over two years after the bar fight and nearly two years after the trial in magistrate court on the charges of public intoxication and destruction of property. 3 The defendant was indicted by the grand jury for malicious assault, a felony, during the September 1994 term and trial was scheduled for August 7, 1995.
The defendant moved to dismiss the indictment under Rule 8(a) of the West Virginia Rules of Criminal Procedure based on the failure of the State of West Virginia to join the felony charge with the misdemeanor charges prior to the trial in magistrate court in March, 1992. On the day scheduled for trial on the malicious assault charge, the trial court announced that the failure to join all offenses growing out of the same transaction was fatal to the malicious assault charge; however, before the trial court could enter an order dismissing the indictment, this writ of prohibition was sought and a rule to show cause was issued returnable the sixth day of February, 1996.
Because knowledge of the prosecutor is an essential element of the application of Rule 8(a), we must remand this case in order to give the circuit court the opportunity to be informed as to whether or not the prosecuting attorney of Kanawha County knew or should have known of the information related to the Kanawha County Sheriff's Department by Ms. Lane on November 21, 1991, upon which additional charges could have been brought against the defendant prior to his
[197 W.Va. 41] trial on the misdemeanor charges in magistrate court in March 1992.
The defendant resists any effort by the petitioner to obtain review of the respondent judge's decision to dismiss the indictment charging him with malicious assault by contending that the State's only right of review of a trial court's decision is limited to appealing a decision to dismiss an indictment, as being either bad or insufficient, pursuant to W. Va.Code 58-5-30 (1923). 4 The defendant's contention is correct if, indeed, the justification for the dismissal of the indictment is that the indictment is either bad or insufficient.
We have recognized that the State has a narrow opportunity to request review of an action of a trial court in a criminal proceeding. The State's right of review is best expressed as being limited to: (1) where the right of appeal is conferred by constitution or statute (Syllabus Point 1, State v. Jones, 178 W.Va. 627, 363 S.E.2d 513 (1987) ()); and (2) where the trial court has acted outside its jurisdiction (Syllabus Point 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992)).
The sense of the defendant's argument is that W. Va.Code 58-5-30 confers the right upon the State to appeal 5 a decision holding an indictment bad or insufficient, and because the trial court's decision to dismiss the indictment was not grounded upon the sufficiency of the indictment, there can be no appellate review of that decision. We agree that the trial court's announced decision to dismiss the indictment had nothing to do with whether the indictment was bad or insufficient, therefore if the State was attempting to review that decision as provided by W. Va.Code 58-5-30, any review by direct appeal would fail.
There was no challenge by the defendant as to the legal soundness or sufficiency of the indictment that charged the crime of malicious assault. The defendant's quarrel with the indictment is permitting the Prosecuting Attorney of Kanawha County to proceed forward with the prosecution arguing that the prosecutor forfeited that opportunity when he chose not to join the offense of malicious assault with the charges of public intoxication and destruction of property which proceeded to trial in magistrate court on March 13, 1992.
An indictment is bad or insufficient for purposes of analysis under W. Va.Code 58-5-30 when within the four corners of the indictment it: (1) fails to contain the elements of the offense to be charged and sufficiently apprise the defendant of what he or she must be prepared to meet; and (2) fails to contain sufficient accurate information to permit a plea of former acquittal or conviction....
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