State ex rel. Miller v. Smith, 15225

• Citation: 168 W.Va. 745,285 S.E.2d 500
• Decision Date: 18 December 1981
• Docket Number: No. 15225,15225
• Parties: STATE of West Virginia ex rel. Clarence Thomas MILLER v. Hunter Paul SMITH, Jr., Prosecuting Attorney of Clay County, West Virginia.
• Court: Supreme Court of West Virginia

Page 500

285 S.E.2d 500

168 W.Va. 745

STATE of West Virginia ex rel. Clarence Thomas MILLER v. Hunter Paul SMITH, Jr., Prosecuting Attorney of Clay County West Virginia.

No. 15225.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1981.

Syllabus by the Court

1. By application to the circuit judge, whose duty is to insure access to the grand jury, any person may go to the grand jury to present a complaint to it. W.Va.Const. art. 3, § 17.

2. A prosecuting attorney can only appear before the grand jury to present by sworn witnesses evidence of alleged criminal offenses, and to render court supervised instructions, W.Va.Code § 7-4-1 (1976 Replacement Vol.); he is not permitted to influence the grand jury in reaching a decision, nor can he provide unsworn testimonial evidence.

3. A prosecuting attorney who attempts to influence a grand jury by means other than the presentation of evidence or the giving of court supervised instructions, exceeds his lawful jurisdiction and usurps the judicial power of the circuit court and of the grand jury. Consequently, prohibition will lie to prevent such usurpation of judicial power.

James Wilson Douglas, Clay, for relator.

Chauncey H. Browning, Atty. Gen. and Thomas N. Trent, Asst. Atty. Gen., Charleston, for respondent.

McGRAW, Justice:

This case comes before us on a writ of prohibition seeking to restrain the respondent, the Prosecuting Attorney of Clay County, from attempting to dissuade or discourage the grand jury from hearing the petitioner or any evidence he might have regarding a complaint which he seeks to lay before it. The petitioner contends that the use of persuasion by the prosecuting attorney to influence the decision of the grand jury whether or not to entertain the petitioner is an exercise of power beyond his jurisdiction. We find merit in this contention and grant a moulded writ.

The petitioner claims he was the victim of a malicious wounding perpetuated by two policemen on October 17, 1980. The petitioner prosecuted two criminal warrants against the accused perpetrators of the deed, which were dismissed by C. Velt King, a Clay County Magistrate. Subsequently, the petitioner submitted his evidence of the incident to the prosecuting attorney. According to the prosecuting attorney, his investigation of the incident revealed that late in 1980 the petitioner was stopped by a city patrolman and a deputy sheriff for driving under the influence. The prosecuting attorney contends, that when stopped by the officers, the petitioner resisted arrest, crawled under his car, kicked at the arresting officer and would not come out from under the car. The State admits in its brief that the incident which the petitioner describes as a malicious wounding occurred when the officers used chemical mace on the petitioner. ¹ Based upon the results of his investigation, the prosecuting attorney determined not to present the matter before the grand jury attending the March 1981 term of the Circuit Court of Clay County.

Notwithstanding this decision, the petitioner advised the prosecuting attorney that he would be present on the day the grand jury was scheduled to convene, in order to petition the foreman for permission to appear and to submit evidence of the alleged offense. The respondent replied that he would invoke the powers of his office as prosecuting attorney to instruct the Sheriff of Clay County to prevent the petitioner from so petitioning the foreman of the grand jury, or from appearing before that, or any future, grand jury for the purpose of presenting evidence regarding this particular complaint.

Undaunted by the prosecuting attorney's warning, the petitioner and a corroborating witness appeared at the Clay County Courthouse on the day the grand jury was to meet. At that time the issue of his appearance before the grand jury was referred to the Honorable Albert L. Sommerville, Jr., Chief Judge of the Fourteenth Judicial Circuit. However, upon being made aware of the facts and issues involved, Judge Sommerville declined to intervene.

Although maintaining his earlier position, the respondent advised the petitioner that he would inform the grand jury that the petitioner was present and wished to appear before them to submit evidence of an alleged criminal offense. The prosecuting attorney, however, further advised the petitioner that he would also attempt to discourage and dissuade the grand jury from entertaining the petitioner or from hearing any evidence he might have to offer regarding his complaint. Following the respondent's presentation, the grand jury deliberated and voted not to hear evidence from the petitioner.

Subsequently the petitioner sought this writ of prohibition alleging that the actions of the prosecuting attorney with regard to the grand jury constitute an exercise of power beyond his jurisdiction.

This case presents three issues which are before this Court for the first time: (1) does a person have a lawful right to personally complain of a criminal offense to a grand jury, over the objection of the prosecuting attorney; (2) may a prosecuting attorney render unsworn testimony before a grand jury; and (3) does prohibition lie against a prosecuting attorney who attempts to stop a grand jury from hearing independent evidence.

These three issues concern the fundamental nature and purpose of the grand jury in our system of criminal justice. Therefore before addressing the issues raised by the petitioner we shall attempt a brief exposition of the history of the grand jury in order to illustrate the roles of the judge, the prosecutor and the citizen-complainant with regard to the grand jury.

The grand jury is an integral part of our judicial system with ancient origins. It appears to have derived from the Frankish custom of requiring folks to appear before the king with information of immediate concern to the administration of justice in the kingdom. W. Holdsworth, A History of English Law 312 (1903). When the Franks were conquered by the Normans the custom survived, and thus was brought to England by William the Conqueror in 1066. The records after the Norman conquest show an increased use of the sworn inquests of neighbors as a part of the system of royal justice. In fact, the great fiscal record, the Domesday Book, was compiled from the verdicts of these inquests. 1 F. Pollock and F. Maitland, History of English Law, 144 (2d ed. 1968).

During the reign of Henry II, a judicial device similar to that of our present day petit jury was used for the purpose of civil litigation with respect to land. The Grand Assize, the possessory assizes and the assize ultram each used this procedure to settle questions of ownership and possession of land. During Henry's reign the accusing jury also became a part of the judicial mechanism and developed a protective, in addition to its original investigative, function Henry insisted, first for Normandy in the year 1159, and then for England in the year 1164, that the ecclesiastical courts ought to make use of this institution. Laymen ought not to be put to answer in those courts upon a mere unsworn suggestion of ill fame. Either someone should stand forth and commit himself to a definite accusation, or else the ill fame should be sworn to by twelve lawful men of the neighborhood summoned for that purpose by the sheriff: in other words, the ecclesiastical judge ought not proceed ex officio upon private suggestions. 1 F. Pollock and F. Maitland, supra at 151.

By the time of the Assize of Clarendon in 1166 the accusing jury had become a rather prominent institution. In every county, twelve men out of every "hundred" (a political subdivision of the shire) were called to appear before the itinerant judge appointed by the king. The judge presented a list of crimes and offenses and asked the jurors whether they knew of anyone in the hundred who had committed the offenses enumerated. The jurors replied on the basis of their personal knowledge, and, based on their replies, the judge made a decision whether the accusations were well founded. Petition of McNair, 324 Pa. 48, 187 A. 498 (1936).

By the fifteenth century the grand jury system had become an established institution in the English judicial system and enjoyed a great popularity. This popularity was subsequently shared by the colonials in America. At the time of the American Revolution, the grand jury was perceived by most Americans as a highly esteemed institution, a perception enhanced by the spirit of independence and resistence to imperial government displayed by some of the colonial grand juries. Francis Hopkinson, a pamphleteer of the revolutionary period, reflected the popular attitude when he described the grand jury as "a body of truth and power inferior to none but the legislature itself." R. Younger, The People's Panel: The Grand Jury in the United States (1631-1941), 41 (1963). Our founding fathers also shared in this sentiment. Thomas Jefferson, for example, referred to the grand jury as both the "true tribunal of the people" and as the "sacred palladium of liberty." S. Padover, The Complete Jefferson at 128 (1943).

Along with the resistance of the colonial grand juries to the British monarchy, one widely publicized English case enhanced immensely the prestige of the grand jury in America. The case involved Lord Ashley, Earl of Shaftsbury, who was implicated in a plot to assassinate the king and "[bring] this kingdom of England to a commonwealth without a king ...." Earl of Shaftsbury's Case, 8 St.Tr. 759, 778 (1681). He was charged with high treason by the royal prosecutor, who presented the case to a grand jury in London. The grand jury refused to indict, and the popular Lord Ashley went free. This statement against absolute monarchial power has been cited for years as an example of the grand jury as a barrier against both the despotism of the Crown and prosecution based on "partisan passion or private enmity." In re Russo, 53...