State ex rel. Rowe v. Ferguson

Decision Date08 July 1980
Docket NumberNo. 14777,14777
Citation268 S.E.2d 45,165 W.Va. 183
PartiesSTATE ex rel. William Edward ROWE and John Calvin Wolfe v. Honorable Alfred E. FERGUSON, Judge of the Circuit Court of Cabell County and Honorable John Ray Rice, Magistrate of Magistrate Court of Cabell County.
CourtWest Virginia Supreme Court
Syllabus by the Court

1. A preliminary hearing in a criminal case is not constitutionally required.

2. "Where an indictment for felony is found, the accused is not entitled to a preliminary examination before a justice before trial." Syllabus Point 1, State v. Mooney, 49 W.Va. 712, 39 S.E. 657 (1901).

3. Where the State proceeds under W.Va.Code, 62-1-1, et seq., to arrest the accused for an offense which must be brought before the grand jury, the defendant is entitled to a preliminary hearing under W.Va.Code, 62-1-8 (1965). If, however, the State elects to indict him without a preliminary hearing or before one can be held, the preliminary hearing is not required.

4. The 1965 amendments were designed to enhance the defendant's right to a preliminary hearing by creating a positive duty in W.Va.Code, 62-1-8 (1965), to conduct a reasonably prompt preliminary hearing once the defendant has been arrested on an indictable offense.

5. If a preliminary hearing has not been held within a reasonable time following the defendant's arrest on an offense which must be brought to the grand jury, he is entitled to enforce his statutory right to a preliminary hearing under W.Va.Code, 62-1-8 (1965), by a mandamus proceeding in the circuit court against the committing magistrate court.

W. Merton Prunty, W. Stanley James, Huntington, for relators.

Chauncey H. Browning, Atty. Gen., Gray Silver, III, Asst. Atty. Gen., Charleston, for respondents.

MILLER, Justice:

In this original writ of mandamus, the relators seek to compel the respondents, a circuit judge and a magistrate, to afford them a preliminary hearing. The magistrate had previously scheduled a preliminary hearing, but cancelled it when relators were indicted by a grand jury for felonious assault. The relators thus raise the question of whether, under West Virginia law, criminal defendants have a right to a post-indictment preliminary hearing. We hold that they do not.

Relators were arrested for felonious assault on October 28, 1979, pursuant to warrants issued by a Cabell County magistrate, and were released the same day on $2,500 bonds. On November 6, 1979, both appeared before the magistrate, who scheduled a preliminary hearing for November 13, 1979. Relators appeared with counsel for the preliminary hearing and were informed of their indictment by a Cabell County grand jury on November 5. 1 Over relators' objection, the preliminary hearing was cancelled. Relators then renewed their motion for a preliminary hearing before the Circuit Court, but by order and written opinion of January 2, 1980, the motion was denied.

Initially, we observe that a preliminary hearing in a criminal case is not constitutionally required. 2 Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970).

Gerstein recognized that an arrest may be effected without the necessity of a neutral and detached magistrate having found probable cause, but that once the suspect is in custody, a probable cause hearing is constitutionally mandated under the Fourth Amendment to justify further detention:

"Once the suspect is in custody, however, the reasons that justify dispensing with the magistrate's neutral judgment evaporate. There no longer is any danger that the suspect will escape or commit further crimes while the police submit their evidence to a magistrate. And, while the State's reasons for taking summary action subside, the suspect's need for a neutral determination of probable cause increases significantly. The consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect's job, interrupt his source of income, and impair his family relationships. See R. Goldfarb, Ransom 32-91 (1965); L. Katz, Justice Is the Crime 51-62 (1972). Even pretrial release may be accompanied by burdensome conditions that effect a significant restraint of liberty. . . . When the stakes are this high, the detached judgment of a neutral magistrate is essential if the Fourth Amendment is to furnish meaningful protection from unfounded interference with liberty. Accordingly, we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest." (420 U.S. at 114, 95 S.Ct. at 863, 43 L.Ed.2d at 65).

The Gerstein Court also indicated that an indictment by a grand jury was an alternative means of establishing probable cause which would authorize the arrest and detention of the defendant and satisfy Fourth Amendment standards:

"By contrast, . . . an indictment, 'fair upon its face,' and returned by a 'properly constituted grand jury,' conclusively determines the existence of probable cause and requires issuance of an arrest warrant without further inquiry. Ex parte United States, 287 U.S. 241, 250, 53 S.Ct. 129, 131, 77 L.Ed. 283 (1932). See also Giordenello v. United States, 357 U.S. 480, 487, 78 S.Ct. 1245, 1250, 2 L.Ed.2d 1503 (1958). The willingness to let a grand jury's judgment substitute for that of a neutral and detached magistrate is attributable to the grand jury's relationship to the courts and its historical role of protecting individuals from unjust prosecution. See United States v. Calandra, 414 U.S. 338, 342-346, 94 S.Ct. 613, 617-619, 38 L.Ed.2d 561 (1974)." (420 U.S. at 117 n. 19, 95 S.Ct. at 865 n. 19, 43 L.Ed.2d at 67).

In reaching its conclusion that the Fourth Amendment requires a probable cause hearing to support prolonged detention, the court in Gerstein traced the right to such a hearing to its common law origins 3 and then determined that an adversarial hearing on the issue of the existence of probable cause is not constitutionally required:

"Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole. . . ." (420 U.S. at 123, 95 S.Ct. at 868, 43 L.Ed.2d at 71).

Without any extended analysis, several of our opinions have concluded that a preliminary hearing is not a federal constitutional mandate. See, e. g., Lycans v. Bordenkircher, W.Va., 222 S.E.2d 14 (1975); Spaulding v. Warden, W.Va., 212 S.E.2d 619 (1975). We find nothing in our State Constitution that would give an independent State constitutional right to a preliminary hearing. Most state courts have also concluded that there is no constitutional right to a preliminary hearing. E. g., State v. Vennard, 159 Conn. 385, 270 A.2d 837 (1970), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 [165 W.Va. 188] (1971); First National Bank & Trust Co. v. State, 237 Ga. 112, 227 S.E.2d 20 (Ga.1976); Engstrom v. Naauao, 51 Haw. 318, 459 P.2d 376 (1969); People v. Petruso, 35 Ill.2d 578, 221 N.E.2d 276 (1966); Edwards v. Commonwealth, 500 S.W.2d 396 (Ky.1973); State v McCloud, 357 So.2d 1132 (La.1978); Lataille v. District Court, 366 Mass. 525, 320 N.E.2d 877 (1974); State v. Johnson, 291 Minn. 407, 192 N.W.2d 87 (1971); State v. Thomas, 529 S.W.2d 379 (Mo.1975); Smith v. O'Brien, 109 N.H. 317, 251 A.2d 323 (1969); State v. Boykin, 113 N.J.Super. 594, 274 A.2d 620 (1971); State v. Marquez, 87 N.M. 57, 529 P.2d 283 (N.M.App.1974); State v. Vaughn, 296 N.C. 167, 250 S.E.2d 210 (1978), cert. denied, 441 U.S. 935, 99 S.Ct. 2060, 60 L.Ed.2d 665 (1979); State v. Morris, 42 Ohio St.2d 307, 71 Ohio Ops.2d 294, 329 N.E.2d 85 (1975); State v. Sanford, 245 Or. 397, 421 P.2d 988 (1966); Vaughn v. State, 557 S.W.2d 64 (Tenn.1977); Bullard v. State, 533 S.W.2d 812 (Tex.Cr.1976). 4

Relators appear to concede the constitutional issue and base their principal argument on W.Va.Code, 62-1-8, our statute which provides for a preliminary hearing. It states in part:

"If the offense is to be presented for indictment, the preliminary examination shall be conducted by a justice of the county in which the offense was committed within a reasonable time after the defendant is arrested, unless the defendant waives examination."

Relators argue that this statutory language should be construed to mean that a preliminary hearing is required as to any offense which is to be presented for indictment to a grand jury. However, this interpretation would necessitate our reading W.Va.Code, 62-1-8, out of context with its related statutes, and would thus violate recognized rules of statutory construction which require us to read statutes relating to the same subject in pari materia. E. g., State ex rel. Miller v. Locke, W.Va., 253 S.E.2d 540 (1979); Snodgrass v. Sisson's Mobile Home Sales, Inc., W.Va., 244 S.E.2d 321 (1978); State v. Reel, 152 W.Va. 646, 165 S.E.2d 813 (1969).

W.Va.Code, 62-1-8, is part of a larger criminal procedure article which deals with the initiation of a criminal case beginning with the filing of a complaint for an arrest warrant. W.Va.Code, 62-1-1, et seq. This article was revised in 1965, although somewhat similar procedures existed prior to the 1931 revised Code, W.Va.Code, 62-1-1, et seq. These criminal statutes deal with arrest procedures and the attendant steps to bring the arrested person before a magistrate to be informed of the nature of the charge, his right to counsel and the arrangement for bail. W.Va.Code, 62-1-6.

A criminal proceeding is initiated by an arrest procedure under W.Va.Code, 62-1-1, et seq., but can be accomplished by a person being indicted by the grand jury. Explicit...

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