State ex rel. Nelson v. Frye

• Decision Date: 08 November 2007
• Docket Number: No. 33499.,33499.
• Citation: 655 S.E.2d 137
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Lynn A. NELSON, Prosecuting Attorney of Mineral County, West Virginia, Petitioner, v. The Honorable Andrew N. FRYE, Jr., Judge, 21st Judicial Circuit, Respondent.

655 S.E.2d 137

STATE of West Virginia ex rel. Lynn A. NELSON, Prosecuting Attorney of Mineral County, West Virginia, Petitioner, v. The Honorable Andrew N. FRYE, Jr., Judge, 21st Judicial Circuit, Respondent.

No. 33499.

Supreme Court of Appeals of West Virginia.

Submitted October 23, 2007.

Decided November 8, 2007.

Syllabus by the Court

1. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va. Code 53-1-1." Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

2. "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." Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

3. "In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance." Syl. Pt. 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

4. "Our negligent homicide statute, W.Va.Code, 17C-5-1, requires the driving of `[a] vehicle in reckless disregard of the safety of others,' and this means that more than negligence is required. It is compatible with the involuntary manslaughter standard set in State v. Lawson, 128 W.Va. 136, 36 S.E.2d 26 (1945)." Syl. Pt 2, State v. Vollmer, 163 W.Va. 711, 259 S.E.2d 837 (1979).

5. "A conviction for negligent homicide must not be premised solely upon the violation of a traffic statute unless the underlying act which constitutes the violation or accompanying circumstances evidence a reckless disregard for the safety of others, characterized by negligence so gross, wanton, and culpable as to show a reckless disregard for human life." Syl. Pt. 5, State v. Green, 220 W.Va. 300, 647 S.E.2d 736 (2007).

Lynn A. Nelson, Prosecuting Attorney, Keyser, WV, pro se.

Andrew N. Frye, Jr., Judge, Keyser, WV, pro se.

Chad B.Cissel, Barr Sites & Cissel, Keyser, WV, for the Defendant, James W. Butler, Jr.

The Opinion of the Court was delivered PER CURIAM.

The State seeks a writ of prohibition to prevent The Honorable Andrew Frye of Mineral County from dismissing a charge of negligent homicide brought by the State against the defendant, James Butler (hereinafter "Mr. Butler"). The State alleges that the trial court exceeded its legitimate powers by dismissing the charge prior to the presentation of evidence to a jury. Subsequent to thorough review of the briefs, arguments of counsel, and applicable precedent, this Court denies the requested writ of prohibition.

I. Factual and Procedural History

On March 31, 2006, Mr. Butler was operating a tractor trailer carrying a load of pine logs in Mineral County, West Virginia. As the vehicle rounded a sharp curve, the trailer rolled and ejected the load of logs, striking a passenger vehicle and fatally injuring its driver, Ms. Melissa Ann Pennington. Mr. Butler was indicted by the Grand Jury of Mineral County in January 2007 for one count of negligent homicide. In response, Mr. Butler filed a motion to dismiss based upon this Court's decision in State v. Green, 220 W.Va. 300, 647 S.E.2d 736 (2007). The lower court found that the facts alleged by the State were insufficient as a matter of law to sustain a conviction for negligent homicide, and the case was dismissed. The State now seeks a writ of prohibition to prevent the dismissal.

The State's evidence in the present case consisted of a Sheriffs Department investigation which included an interview with a witness who stated that he observed Mr. Butler's vehicle traveling 70 to 75 miles per hour prior to the time at which Mr. Butler began to navigate the turn in which the accident occurred. The posted speed limit was 55 miles per hour, and the curve had a posted advisory speed of 25 miles per hour.

Mr. Butler indicated to the investigating officer that he was traveling 35 to 40 miles per hour, and the traffic reconstruction report concluded that the drag factor of the roadway and the average pull force indicated that Mr. Butler was traveling between 32-41 miles per hour, at a minimum. The officer completing the reconstruction report indicated his opinion "that Mr. Butler was operating his vehicle in an unsafe manner by exceeding the advisory speed limit. Due to the size and weight of Mr. Butler's vehicle, Mr. Butler should have operated the vehicle within the advisory speed limit."

The State also asserts that the load of logs may have been improperly loaded; yet, the State presents no evidence indicating that its hypothesis might be correct. The State was provided with ample opportunity during oral argument to reference any evidence it could produce to a jury. The State was unable to present any evidence in addition to that referenced above.

II. Standard of Review

This Court has addressed the standard of review applicable to a writ of prohibition, explaining that "[a] writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code 53-1-1." Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977). "The writ [of prohibition] lies as a matter of right whenever the inferior court (a) has not jurisdiction or (b) has jurisdiction but exceeds its legitimate powers and it matters not if the aggrieved party has some other remedy adequate or inadequate." State ex rel. Valley Distributors, Inc. v. Oakley, 153 W.Va. 94, 99, 168 S.E.2d 532, 535 (1969).¹

Moreover, in syllabus point four of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), this Court explained:

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.

"In determining the third factor, the existence of clear error as a matter of law, we will employ a de novo standard of review, as in matters in which purely legal issues are at issue." State ex rel Gessler v. Mazzone, 212 W.Va. 368, 372, 572 S.E.2d 891, 895 (2002). This Court also explained as follows in syllabus point one of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979):

In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in ...