State ex rel. Henderson v. Hey
| Decision Date | 10 December 1992 |
| Docket Number | No. 21425,21425 |
| Citation | 424 S.E.2d 741,188 W.Va. 396 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Mark E. HENDERSON, Petitioner, v. Honorable John HEY, Judge of the Circuit Court of Kanawha County and William C. Forbes, Prosecuting Attorney for Kanawha County, Respondents. |
Syllabus by the Court
1. "The effects of less gross delays upon a defendant's due process rights must be determined by a trial court by weighing the reasons for delay against the impact of the delay upon the defendant's ability to defend himself." Syllabus Point 2, State ex rel. Leonard v. Hey, --- W.Va. ----, 269 S.E.2d 394 (1980).
2. "The general rule is that where there is a delay between the commission of the crime and the return of the indictment or the arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such delay has prejudiced his case if such delay is not prima facie excessive." Syllabus Point 1, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982).
William E. Hamb, Robert W. Kiefer, Jr., Hamb, Poffenbarger & Bailey, Charleston, for petitioner.
William C. Forbes, Pros. Atty., Kanawha County, Mary Beth Kershner, Asst. Pros. Atty., Kanawha County, Charleston, for respondent.
Mark E. Henderson seeks to prohibit the Honorable John Hey, Judge of the Circuit Court of Kanawha County, and William C. Forbes, Prosecuting Attorney for Kanawha County, from prosecuting him on a charge of malicious wounding. W.Va.Code 61-2-9 [1978]. Mr. Henderson maintains that such a trial would violate his due process rights because the State delayed twenty-three months between his arrest and indictment. Mr. Henderson maintains that the State's failure to appear in magistrate's court to prosecute him on a misdemeanor charge arising out of the same incident requires the dismissal of the malicious wounding charge. Because we find that the delay of the indictment, by itself, is not sufficient to bar the trial, we deny the writ of prohibition.
About 3:00 a.m. on May 24, 1990, Mr. Henderson, after leaving a bar in Charleston, backed his pick-up truck into an unoccupied S-10 truck owned by Danny Hall. The accident knocked Mr. Hall's truck into the middle of Washington Street. Mr. Henderson left the accident scene without finding the owner of the S-10 truck. Shortly thereafter, Mr. Hall and some others were inspecting his truck when Mr. Henderson returned and drove into Mr. Hall's truck. Mr. Hall, who was either inside or in front of the truck, was seriously injured. 1
After Mr. Henderson failed the field sobriety tests, he was arrested. Mr. Henderson registered a .14 on the intoxilyzer test. Mr. Henderson appeared before a magistrate and was charged with driving under the influence of alcohol, causing bodily injury, a misdemeanor. W.Va.Code, 17C-5-2(c) [1986]. Mr. Henderson's driving under the influence causing bodily injury charge was scheduled for trial in magistrate's court on September 13, 1990; however, because the State failed to appear for trial, the complaint was dismissed.
On April 8, 1992, Mr. Henderson was indicted by a Kanawha County grand jury and charged with the malicious wounding of Danny Hall "on the ______ day of May, 1990" in violation of W.Va.Code, 61-2-9 [1978]. After Mr. Henderson's motion to dismiss was denied by the circuit court 2, Mr. Henderson petitioned this Court for a writ of prohibition alleging the twenty-three month delay between his arrest and indictment violated his due process rights. 3
Our rule for determining when a defendant's due process rights are violated was stated in State ex rel. Leonard v. Hey, --- W.Va. ----, 269 S.E.2d 394 (1980). In Leonard we found that a delay of eleven years between arrest and indictment "is presumptively prejudicial to the defendant and violates his right to due process of law...." Syllabus Point 1, Leonard. When the delay is not presumptively prejudicial, Leonard requires that the effect of the delay be determined "by weighing the reasons for the delay against the impact of the delay upon the defendant's ability to defend himself." Syllabus Point 2, in part, Leonard; in accord Syllabus Point 1, State ex rel. Bess v. Hey, 171 W.Va. 624, 301 S.E.2d 580 (1983). When the delay is not presumptively prejudicial, the defendant has the initial burden of showing how the delay prejudiced his case. In Syllabus Point 1, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982), we said:
The general rule is that where there is a delay between the commission of the crime and the return of the indictment or the arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such delay has prejudiced his case if such delay is not prima facie excessive.
In Accord, Syllabus Point 2, Bess.
In the present case, the delay of twenty-three months between arrest and indictment is not presumptively prejudicial. See Leonard supra (); Bess supra (); State v. Simmons, 171 W.Va. 722, 301 S.E.2d 812 (1983) (); State v. Bennett, 172 W.Va. 123, 304 S.E.2d 28 (1983) (); State v. Allman, 177 W.Va. 365, 368, 352 S.E.2d 116, 119 (1986) (...
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State v. Hinchman
... ... regard to the Appellant's assertion of the claim of ineffective assistance of counsel, we explained the following standard of review in State ex rel. Daniel v. Legursky, 195 W.Va. 314, 465 S.E.2d 416 (1995), "[a]n ineffective assistance of counsel claim presents a mixed question of law and fact; ... Henderson v. Hey, 188 W.Va. 396, 424 S.E.2d 741 (1992) (holding that delay of twenty-three months was not presumptively prejudicial and defendant had not ... ...