State ex rel. Johnson v. Hamilton

• Decision Date: 28 April 1980
• Docket Number: No. 14704,14704
• Citation: 164 W.Va. 682,266 S.E.2d 125
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Leo JOHNSON v. The Hon. John M. HAMILTON, Judge, etc.

Page 125

266 S.E.2d 125

164 W.Va. 682

STATE ex rel. Leo JOHNSON v. The Hon. John M. HAMILTON, Judge, etc.

No. 14704.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 1980.

Decided April 28, 1980.

Syllabus by the Court

1. "In West Virginia the term 'same offence' (sic) as used in the double jeopardy provision of W.Va.Const., art. 3, § 5 shall be defined by either the 'same evidence test' which provides that offenses are the same unless one offense requires proof of a fact which the other does not, or the 'same transaction test' which provides that offenses are the same if they grow out of a single criminal act, occurrence, episode or transaction; therefore, whichever test affords the defendant the greater protection must be applied." Syl. pt. 1, State ex rel. Alan Gary Dowdy v. Dan C. Robinson, as Judge, etc., W.Va., 257 S.E.2d 167 (1979).

2. Appropriate protection against multiple trials for offenses arising from the same criminal transaction requires, in future cases, joinder for trial at the same time of all counts arising out of the same transaction either in a single indictment with multiple counts or multiple separate indictments; however, the defendant may move for severance of separate offenses and waive a future plea of double jeopardy, and if severance is granted by the Court, after defendant's showing of good cause for such severance, the defendant may be tried separately for each separate offense.

3. Although under double jeopardy principles the proper procedure is a trial of all offenses arising out of the same "criminal transaction" jointly, separate punishments may be imposed for separate offenses arising out of a single criminal transaction.

Jay Montgomery Brown, Fairmont, for relator.

Chauncey H. Browning, Atty. Gen., Thomas N. Trent, Asst. Atty. Gen., Charleston, George I. Sponaugle, Pros. Atty., George I. Sponaugle, II, Asst. Pros. Atty., Marion County, Fairmont, for respondent.

NEELY, Chief Justice:

In the case of State ex rel. Dowdy v. Robinson, W.Va., 257 S.E.2d 167 (1979) we adopted "both the 'same evidence' test and the 'same transaction' test for determining whether the 'same offense' is involved for double jeopardy purposes with an accompanying rule that whichever test affords the defendant the greater protection against potential unconstitutional double jeopardy must be applied." We explained the "same transaction" test by illustration and pointed out that if a defendant were arrested for both kidnapping and robbing a victim at the same time then, under the "same transaction" test, the two offenses would be the "same offense" for double jeopardy purposes. We qualified that statement, however, by indicating that the "same transaction" test will not mandate one prosecution for crimes growing out of different occurrences even though closely related in time, and we used the example of a person committing one murder at 6:00 p. m. and an unrelated second murder at 6:30 p. m. The Court then said:

If a person were to murder two people at the same time a closer case would be presented, and whether it were double jeopardy to have separate prosecutions would depend upon the nature of the evidence presented. For example, if the defense were self-defense on the grounds that the two victims had attacked the defendant, then it would seem unfair to try the defendant twice for essentially the same transaction, but we leave that question to a future day. (Dowdy v. Robinson, supra, W.Va., 257 S.E.2d at 170.)

We now have before us exactly the hypothetical case which was presented in our discussion in Dowdy and we are compelled to answer the question. On March 6, 1979, Leo Johnson was indicted by the Grand Jury of Pendleton County on two separate indictments for the murder of Roy Lee Huffman and Earl Huffman. On April 26, 1979 Leo Johnson was tried and found guilty of the first degree murder of Roy Lee Huffman with a recommendation of mercy. Roy Lee Huffman was the son of Earl Huffman and the shooting incident arose out of a running dispute between the defendant, Leo Johnson, and Earl Huffman over a right-of-way.

On March 3, 1979, at approximately 7:00 a. m., Earl Huffman and his two sons, Roy Lee and John were clearing brush on the disputed property, with the eldest Huffman using a chain saw. Leo Johnson approached and an argument ensued between Johnson and Earl Huffman. John Paul Huffman testified at the first trial that he saw Leo Johnson first shoot his father, Earl, shoot at him, and shoot twice at his brother, Roy Lee. According to the representations of counsel, Leo Johnson claims that he fired at Earl Huffman only in self defense when he was attacked by Earl Huffman wielding the chain saw; however, Leo Johnson did not take the witness stand to testify in his own behalf at the first trial. Relying upon the case of State ex rel. Dowdy v. Robinson, supra, the relator sought a writ of prohibition from this Court to prohibit a second trial for the murder of Earl Huffman on the grounds of double jeopardy.

I

Initially it is important to point out that the first trial for the killing of Roy Lee Huffman occurred two months before our opinion in Dowdy v. Robinson was handed down. Furthermore, counsel in this Court stipulated that the relator did not move for a joint trial on the two separate indictments but merely requested from the prosecutor an indication as to which indictment would be tried first. The Court infers from the arguments of counsel and the stipulation in open court that it was assumed that under prior practice the State had a right to try the defendant for each separate alleged murder and, prior to Dowdy, supra, such a procedure would have been perfectly acceptable under West Virginia law. State v. Daniel, 144 W.Va. 551, 109 S.E.2d 32 (1959); Lawrence v. Commonwealth, 181 Va. 582, 26 S.E.2d 54 (1943); cf. State v. Houchins, 102 W.Va. 169, 134 S.E. 740 (1926).

Our discussion in the Dowdy case concerning proper rules for implementing the W.Va.Const.'s prohibition against double jeopardy indicates that our selection of the "same transaction" test and "same evidence" test, depending upon which is more favorable to the defendant, is a matter of policy which goes to the appropriate procedure for securing a fundamental right. We even implied that the Dowdy case was not to be given retroactive application when we said in syllabus point one: "In West Virginia the term 'same offence' (sic) as used in the double jeopardy provision of W.Va.Const., art. 3, § 5 shall be defined . . ." Dowdy v. Robinson, supra, 257 S.E.2d at 168. (emphasis supplied by Court). While we have frequently disparaged distinctions between procedural law and substantive law when the former is used to achieve results which are forbidden by the latter, Pnakovich v. State Workmen's Compensation Comm'r, W.Va., 259 S.E.2d 127 (1979), nonetheless, there are occasions when the distinction is justified.

Dowdy v. Robinson, supra was intended to establish an orderly, prospective procedure for avoiding multiple prosecutions for successive criminal acts arising out of the same general criminal transaction. Both because Dowdy v. Robinson had not been decided at the time the first prosecution now under consideration occurred and because there was no motion by the defendant to have the two cases tried together, we conclude that to make Dowdy retroactive in the case before us would have the effect of charging the State with knowledge of a procedural change in the law which they could not have foreseen.

In determining whether to apply a change in the decisional law retroactively, the fundamental principle to which we have looked is reliance. Pnakovich v. State Workmen's Compensation Comm'r, W.Va., 259 S.E.2d 127 (1979); Bradley v. Appalachian Power Co., W.Va., 256 S.E.2d 879 (1979). Since a person or the State should be able to plan the course of civil or criminal litigation with reasonable reliance on current procedural rules, the reliance of the prosecution is an important element in considering whether to apply today's rule retroactively. Therefore since there is no substantial impairment of the truth finding function, Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), we conclude that this is not a change in decisional law requiring retroactive application. In this particular instance the defendant must be tried for the other murder. A defendant tried before Dowdy cannot be relieved by fortune of punishment for each separate offense. Consequently, notwithstanding the opportunity which this case affords the Court to determine the proper prospective procedure for handling a case in which two people are killed at the same time, the writ of prohibition prayed for in this case is denied.

II

The Dowdy case itself may have given rise to legitimate confusion because it was not sufficiently explicit in its analysis of double jeopardy. The constitutional prohibition in W.Va.Const., art. III, sec. 5 against double jeopardy has two elements: first, a protection against multiple trials for the "same offense" Ex Parte Bornee, 76 W.Va. 360, 85 S.E. 529 (1915); second, protection against multiple punishments for the "same offense." Conner v. Griffith, W.Va., 238 S.E.2d 529 (1977); and, State v. Kiger, 103 W.Va. 55, 136 S.E. 607 (1927). It is important to distinguish which principle of double jeopardy protection is involved when a defendant makes a general plea of double jeopardy. The "same transaction" test which we adopted in Dowdy, supra goes to the issue of multiple trials for the "same offense" but it does not preclude separate punishments for separate crimes.

In the Dowdy case we discussed a hypothetical case in which an individual committed armed robbery and kidnapping at the same time, but we did not say, nor did we imply, that both robbery and kidnapping could not be punished as separate, distinct crimes. We did say, however, that if both offenses arose out of the "same...