State ex rel. Hamstead v. Dostert, No. 16121

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW; Judge Dostert proceeded to qualify, impanel, and instruct the grand jury generally on their duties and the procedures to be followed. In an admitted departure from past practice, however; Dostert; NEELY; Burger
Citation173 W.Va. 133,313 S.E.2d 409
PartiesSTATE ex rel. Braun A. HAMSTEAD v. The Honorable Pierre E. DOSTERT, Judge of the Circuit Court of Jefferson County and Donald R. Giardina, Sheriff of Jefferson County.
Decision Date09 March 1984
Docket NumberNo. 16121

Page 409

313 S.E.2d 409
173 W.Va. 133
STATE ex rel. Braun A. HAMSTEAD
v.
The Honorable Pierre E. DOSTERT, Judge of the Circuit Court
of Jefferson County and Donald R. Giardina,
Sheriff of Jefferson County.
No. 16121.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 31, 1984.
Decided Feb. 7, 1984.
Opinion Concurring in Part and
Dissenting in Part March 9, 1984.

Page 411

[173 W.Va. 135] Syllabus by the Court

1. With respect to the determination of whether to seek an indictment and what indictment will be sought in a particular case, the probable cause standard represents the line of demarcation between prosecutorial discretion and prosecutorial duty.

2. While a circuit court has supervisory powers over grand jury proceedings to preserve the integrity of the grand jury process and to insure the proper administration of justice, it may not prohibit grand jury consideration of offenses within any particular class of crimes.

3. Absent an abuse of discretion, judicial interference with the exercise of prosecutorial judgment as to what charge to bring in a criminal prosecution is impermissible.

4. If a circuit judge desires to intervene in the relationship between a grand jury and a prosecutor, in the absence of a proper complaint by a concerned citizen, he can do so by bringing a disqualification motion under West Virginia Code § 7-7-8 (1976 Replacement Vol.).

5. When a circuit judge is the moving party in the attempted disqualification of a prosecuting attorney under West Virginia Code § 7-7-8 (1976 Replacement Vol.), he should disqualify himself under Canon 3 C(1) of the West Virginia Judicial Code of Ethics (1982 Replacement Vol.), and follow the procedures contained in Rule XVII of the West Virginia Trial Court Rules for Courts of Record (1983 Supp.) for the appointment of another circuit judge to hear the disqualification motion.

6. "Where a court has jurisdiction to issue a particular order, the fact that such order is erroneous, irregular, or is improvidently rendered, does not justify one in disregarding or violating the order, and then citing the court's error as a defense to a charge of contempt. Where, however, the judge lacks jurisdiction, or is without power or authority to render the order, refusal to comply with such order may not be punished as contempt." Syl. Pt. 3, State ex rel. Askin v. Dostert, 295 S.E.2d 271 (W.Va.1982).

7. " 'The writ of prohibition lies as a matter of right when the inferior court ... exceeds its legitimate powers.' Syllabus Point 5, in part, State ex rel. Smith v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960)." Syl. pt. 2, State ex rel. Green v. Dostert, 304 S.E.2d 675 (W.Va.1983).

Braun A. Hamstead, Pros. Atty., Charles Town, for relator.

Pierre E. Dostert and Donald R. Giardina, pro se.

McGRAW, Justice:

In this habeas corpus proceeding, the petitioner, Braun A. Hamstead, Prosecuting Attorney of Jefferson County, challenges the authority of Judge Pierre E. Dostert, Circuit Judge of the Twenty-third Judicial Circuit, to order him sua sponte to seek a particular grand jury indictment. The petitioner also seeks to prohibit Judge Dostert from interfering further in the presentment of the case involved before the grand jury.

The circumstances surrounding the underlying criminal action are described in an affidavit and in exhibits submitted by the petitioner. Lois Yvonne Payne, lived with her mother, Adora M. Payne, and her mother's sister, Genevieve McClain, in Jefferson

Page 412

County. Lois was fifty years old and had a long history of mental health problems. Genevieve was older and was also of arguable mental competency. Adora, in a statement given to police, described the altercation on August 20, 1983, between her daughter and her sister, which resulted in her sister's death:

Mrs. McClain and my daughter were in the living room. Lois, my daughter, wanted to go to the store to get some cigarettes. Mrs. McClain then tried to lock the door to keep her (Lois) in the house. Both of them started tussling and both of them fell to the floor. I got my sister up by the hand and she walked [173 W.Va. 136] back to the bedroom. She was conscious. She was laying on the bed bleeding and I kept wiping her head. She kept saying that she didn't want to go to the hospital. She then went into a convulsion and I called Dr. Williams. She told me to call an ambulance. I called the ambulance and they took her to the hospital.

Lois Payne's aunt died a few days later.

At the conclusion of a hearing on September 21, 1983, Lois Payne was sent to the Weston State Hospital for psychological examination and evaluation. At the conclusion of a subsequent hearing on November 4, 1983, Judge Dostert, based upon a psychological assessment of the defendant's competency to stand trial, found that although she was not currently competent to stand trial, there was a substantial likelihood that she would become competent within six months. He then ordered her committed to Weston State Hospital for a period not to exceed six months.

On January 17, 1984, the Jefferson County Grand Jury was set to convene and begin deliberations. On January 13, 1984, Judge Dostert learned that the petitioner was going to seek a grand jury indictment for involuntary manslaughter in the Payne case. On January 14, 1984, Judge Dostert telephoned assistant prosecuting attorney, Melody Gaidrich, indicating that the petitioner should seek a murder, and not an involuntary manslaughter, indictment in the Payne case. The petitioner was informed of Judge Dostert's instructions by his assistant on January 16, 1984.

At approximately 9:15 a.m. on January 17, 1984, Judge Dostert telephoned the petitioner, ordering him to present a murder indictment and not to present an involuntary manslaughter indictment to the grand jury in the Payne case. The petitioner responded that, based upon the investigating officer's report and the evidence presented at prior preliminary proceedings in the case, the grand jury should be permitted to consider returning an involuntary manslaughter indictment. The petitioner also indicated to Judge Dostert that he considered the matter to be solely within his discretion and that Judge Dostert's attempt to influence grand jury proceedings could be seized upon by other defendants as jury tampering. Judge Dostert replied by ordering the petitioner to appear before him in his chambers at 9:30 a.m.

When the petitioner appeared before Judge Dostert in chambers, the judge reiterated his directive. The petitioner then requested a continuance (1) to permit resolution of the issue prior to presenting any testimony to the grand jury and (2) to avoid being held in contempt of Judge Dostert's order. The request for a continuance was denied, and the judge indicated that the petitioner could do anything he wanted, because he was going to instruct the grand jury to consider only a murder indictment.

Judge Dostert proceeded to qualify, impanel, and instruct the grand jury generally on their duties and the procedures to be followed. In an admitted departure from past practice, however, Judge Dostert further instructed the grand jury that it could only consider murder indictments in homicide cases, and could not consider any lesser included offenses. Judge Dostert informed the grand jury that:

In West Virginia, the crime of homicide is committed when a person is killed by another human being and the killing is not accidental and it is not unjustified or it is not justified under the circumstances. You are not to consider the degrees

Page 413

of homicide, first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter. Your sole determination, one, was a human being killed? Second, was it or was it not accidental? Or third, this usually is in the case of a police officer, I will instruct you further if you desire, when a police officer kills a person, the question would become, was the killing justified or unjustified? It is for the petit jury to weigh the evidence in its entirety at a latter time and make the determination as to which degree, if any, of homicide has or has not been [173 W.Va. 137] committed. (Emphasis added). 1

The grand jurors were then sent to their room. The petitioner again moved for a continuance, which was again denied, and Judge Dostert ordered the petitioner to go to the grand jury room. Upon his arrival in the grand juror's chambers, the petitioner informed the grand jury of the potential problem, and asked the grand jurors to determine whether they desired to request a continuance from Judge Dostert. After deliberating for a period of time, the grand jury called the petitioner back into their chambers and delivered him a note to transmit to Judge Dostert, requesting that the court reporter read Judge Dostert's instructions to the grand jury once again.

Upon receiving this note from the grand jury, Judge Dostert entered an "Order in Mandamus" directing the petitioner to show cause why he should not immediately commence presenting evidence to the grand jury. In his written response, the petitioner stated that the grand jury had not requested to hear any formal presentments, but desired to review the court's instructions. The petitioner also reiterated his request for a continuance. Following a brief hearing on the rule to show cause, Judge Dostert ordered the petitioner to begin presenting cases to the grand jury. After the petitioner failed to respond to this order, Judge Dostert had him committed to the Jefferson County Jail at approximately 1:45 p.m. From his jail cell, the petitioner submitted a written response to Judge Dostert's inquiry concerning whether he intended to present evidence to the grand jury, stating that he did not intend to present evidence "at this time." Justice Dostert then entered a formal order, committing the petitioner to the Jefferson County Jail "until such time as he indicates that he is willing to state to the...

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39 practice notes
  • Myers v. Frazier, Nos. 16114
    • United States
    • Supreme Court of West Virginia
    • June 27, 1984
    ...merely to convict. State v. Britton, [157 W.Va. 711, 203 S.E.2d 462 (1974) ]." More recently in State ex rel. Hamstead v. Dostert, W.Va., 313 S.E.2d 409 (1984), we refined the critical distinction between prosecutorial discretion and duty in Syllabus Point 1: "With respect to the determinat......
  • Duncil v. Kaufman, No. 19360
    • United States
    • Supreme Court of West Virginia
    • June 12, 1990
    ...Point 4, State ex rel. Ayers v. Cline, 176 W.Va. 123 , 342 S.E.2d 89 (1985); Syllabus Point 7, State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 313 S.E.2d 409 For the reasons stated herein, a writ of prohibition is granted prohibiting the respondent judge from resentencing the defendant. W......
  • State ex rel. Doe v. Troisi, No. 22817
    • United States
    • Supreme Court of West Virginia
    • May 18, 1995
    ...are "not subject to the judicial writ of prohibition" when performing their executive duties. See also State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 313 S.E.2d 409 (1984). Issuing a subpoena is part of a prosecutor's executive function. Therefore, a writ of prohibition is generally inap......
  • State v. Rollins, No. 13–0099.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2014
    ...a cause or, having commenced a prosecution, may move the dismissal of a cause, ...”); see also State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 313 S.E.2d 409 (1984) (discussing prosecutorial discretion). Thus, whether Ms. Bailes would be indicted was within the prosecutor's sole purview. ......
  • Request a trial to view additional results
39 cases
  • Myers v. Frazier, Nos. 16114
    • United States
    • Supreme Court of West Virginia
    • June 27, 1984
    ...merely to convict. State v. Britton, [157 W.Va. 711, 203 S.E.2d 462 (1974) ]." More recently in State ex rel. Hamstead v. Dostert, W.Va., 313 S.E.2d 409 (1984), we refined the critical distinction between prosecutorial discretion and duty in Syllabus Point 1: "With respect to the determinat......
  • Duncil v. Kaufman, No. 19360
    • United States
    • Supreme Court of West Virginia
    • June 12, 1990
    ...Point 4, State ex rel. Ayers v. Cline, 176 W.Va. 123 , 342 S.E.2d 89 (1985); Syllabus Point 7, State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 313 S.E.2d 409 For the reasons stated herein, a writ of prohibition is granted prohibiting the respondent judge from resentencing the defendant. W......
  • State ex rel. Doe v. Troisi, No. 22817
    • United States
    • Supreme Court of West Virginia
    • May 18, 1995
    ...are "not subject to the judicial writ of prohibition" when performing their executive duties. See also State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 313 S.E.2d 409 (1984). Issuing a subpoena is part of a prosecutor's executive function. Therefore, a writ of prohibition is generally inap......
  • State v. Rollins, No. 13–0099.
    • United States
    • Supreme Court of West Virginia
    • June 17, 2014
    ...a cause or, having commenced a prosecution, may move the dismissal of a cause, ...”); see also State ex rel. Hamstead v. Dostert, 173 W.Va. 133, 313 S.E.2d 409 (1984) (discussing prosecutorial discretion). Thus, whether Ms. Bailes would be indicted was within the prosecutor's sole purview. ......
  • Request a trial to view additional results

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