State ex rel. Myers v. Sanders, 26425.

• Decision Date: 08 December 1999
• Docket Number: No. 26425.,26425.
• Citation: 206 W.Va. 544,526 S.E.2d 320
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Stanley M. MYERS, Petitioner, v. Honorable David H. SANDERS, Judge of the Circuit Court of Berkeley County, Respondent.

526 S.E.2d 320

206 W.Va. 544

STATE of West Virginia ex rel. Stanley M. MYERS, Petitioner, v. Honorable David H. SANDERS, Judge of the Circuit Court of Berkeley County, Respondent.

No. 26425.

Supreme Court of Appeals of West Virginia.

Submitted September 1, 1999.

Decided December 8, 1999.

Concurring Opinion of Justice Maynard, December 16, 1999.

Robert C. Stone, Jr., Esq., Martinsburg, West Virginia, Attorney for Petitioner.

Pamela Jean Games-Neely, Esq., Prosecuting Attorney, Berkeley County, Christopher C. Quasebarth, Esq., Assistant Prosecuting Attorney, Berkeley County, Martinsburg, West Virginia, Attorneys for Respondents. RISOVICH, Judge:

Petitioner, Stanley M. Myers (hereinafter "Petitioner"), filed this writ of prohibition seeking to prohibit the enforcement of an order entered on April 14, 1999, by Judge David H. Sanders of the Circuit Court of Berkeley County, regarding Petitioner's assertion of his Fifth Amendment privilege in a habeas corpus deposition. In his order, Judge Sanders states that "this Court holds that the petitioner may assert the privilege against self-incrimination; however, the Court may draw adverse inferences from the invocation of the privilege." Petitioner asserts that Judge Sanders' ruling is an abuse of discretion.¹ Respondent, the Honorable David H. Sanders, Judge (hereinafter "Respondent"), contends that the circuit court did not err by ruling Petitioner could make Fifth Amendment objections during his deposition upon an articulated basis and that adverse inferences could properly be drawn from such assertion. Because we find that the circuit court did not err in its ruling, we deny Petitioner's petition for a writ of prohibition.

I. Background Facts

This writ of prohibition arises out of a civil habeas corpus proceeding. Petitioner has been convicted by a jury of three counts of first degree sexual assault and one count of third degree sexual assault committed against four minor male victims. Petitioner became acquainted with his victims through his role as a counselor to one of the victims. Petitioner instituted a civil proceeding in habeas corpus in an effort to overturn his conviction. In his habeas petition, Petitioner alleges that he was denied a speedy trial, he was denied due process of law, that the court improperly conducted an ex parte voir dire of a sitting juror, that the trial was improperly continued without his presence, that the court failed to comply with Rule XVII of the West Virginia Trial Court Rules, that the court improperly admitted hearsay testimony and ineffective assistance of both trial and appellate counsel.

On March 3, 1999, Petitioner was deposed by assistant prosecuting attorney Christopher Quasebarth for four and one-half hours. Petitioner alleges that the prosecuting attorney substantially deviated from the facts and allegations raised in the petition for habeas corpus, that he propounded questions in an attempt to have the Petitioner waive his Fifth Amendment privilege against self-incrimination and that he delved into irrelevant issues. Accordingly, a motion to compel was filed by the respondent in the habeas proceeding and Petitioner filed a motion for a protective order. Judge Sanders did not rule on Petitioner's motion for a protective order; however, he did grant the motion to compel on April 14, 1999. In granting the motion to compel, Judge Sanders ruled that Petitioner could not refuse to answer questions on the basis of relevancy objections and that Petitioner must articulate a basis on the record for any privilege asserted. Judge Sanders also ruled that Petitioner "may assert the privilege against self-incrimination; however, the Court may draw adverse inferences from the invocation of the privilege." It is from this order that Petitioner seeks a writ of prohibition.

II. Standard of Review

Petitioner has filed a writ of prohibition seeking to prevent the enforcement of the April 14, 1999, order. Petitioner contends that the circuit court has abused its discretion in issuing the order. We have held that:

"Prohibition lies only to restrain inferior courts from proceeding in causes over which they have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate powers and may not be used as a substitute for writ of error, appeal or certiorari." Syl. pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953).

Syl. Pt. 2, Cowie v. Roberts, 173 W.Va. 64, 312 S.E.2d 35 (1984).

In syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we set forth the applicable standard for determining whether to grant a writ of prohibition in cases when a petitioner asserts that the circuit court has exceeded its legitimate powers:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Id. In addition, we have held that "[a] writ of prohibition is available to correct a clear legal error resulting from a trial court's substantial abuse of its discretion in regard to discovery orders." Syl. Pt. 1, State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W.Va. 622, 425 S.E.2d 577 (1992).

This case presents a purely legal question for review. Accordingly, the following standard of review applies: "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

III. Discussion

The sole issue before this Court is whether the circuit court erred by ordering that it could draw an adverse inference from Petitioner's Fifth Amendment objection to questions propounded to him during a deposition in his habeas corpus proceeding. Petitioner contends that the circuit court abused its discretion in ruling that it could draw an adverse inference from his assertion of his privilege against self-incrimination. Petitioner further contends that the circuit court's ruling which requires him to articulate a basis for his objection without any additional requirement that the prosecutor's questions relate directly to the allegations in his habeas corpus petition is an abuse of discretion. As explained above, the only issue before us is the Fifth Amendment question and we will not address Petitioner's relevancy arguments.

The Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution prohibit the compelling of self-incriminating testimony in criminal cases. In syllabus point one of State ex rel. Osburn v. Cole, 173 W.Va. 596, 319 S.E.2d 364 (1983) we extended this Fifth Amendment right: "The Fifth Amendment privilege against self-incrimination is not limited to the context of criminal trials but can be claimed in any proceeding, whether it is criminal or civil, administrative or judicial, investigatory or adjudicatory." The extraordinary remedy of habeas corpus is a civil, as opposed to criminal proceeding. West Virginia Code § 53-4A-1(a) (1994) provides, in part, that "[a]ll proceedings [for post-conviction habeas corpus relief] in accordance with this article shall be civil in character and shall under no circumstances be regarded as criminal proceedings or a criminal case." See also State ex rel. Harrison v. Coiner, 154 W.Va. 467, 476, 176 S.E.2d 677, 682 (1970)

("Habeas corpus proceedings are civil proceedings.").²

We recently addressed whether or not alleged assailants could be prohibited by a trial court from refusing to answer deposition questions, based on the Fifth Amendment, in a civil personal injury proceeding for damages, despite the pendency of a criminal case arising from the same assault. The assailants' concern, of course, was that their answers could be used against them in the criminal case. In syllabus point two of State ex rel. Wright v. Stucky, 205 W.Va. 171, 517 S.E.2d 36 (1999), we held that:

Neither the statutory limitation created by W.Va.Code, 57-2-3 [1965], nor a protective order under Rule 26(c) of the West Virginia Rules of Civil Procedure, provide the "use immunity" protection that permits a court to require a person to answer questions in civil discovery, over a constitutional objection based on the Fifth Amendment to the United States Constitution and Article III, Section 5 of the West Virginia Constitution, where the answers to the questions my be self-incriminating.

In Stucky, we found that the circuit court could not order the alleged assailants to give answers to deposition questions over their "bona fide assertion of the constitutional right to remain silent about information that might tend to be self-incriminating." Id. at 175-176, 517 S.E.2d at 40-41. However, in footnote seven of Stucky, we explained that "[t]he balancing of the self-incrimination right vis-a-vis other rights in civil proceedings is a complex area of jurisprudence." Id. at 176 n. 7, 517 S.E.2d at 41 n. 7. Specif...