State ex rel. Rusen v. Hill

• Citation: 193 W.Va. 133,454 S.E.2d 427
• Decision Date: 19 January 1995
• Docket Number: No. 22441,22441
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia ex rel. Michele L. RUSEN, Prosecuting Attorney for Wood County, Relator, v. Honorable George W. HILL, Judge of the Circuit Court of Wood County, and Lisa Harder, Respondents.

Page 427

454 S.E.2d 427

193 W.Va. 133

STATE of West Virginia ex rel. Michele L. RUSEN, Prosecuting Attorney for Wood County, Relator, v. Honorable George W. HILL, Judge of the Circuit Court of Wood County, and Lisa Harder, Respondents.

No. 22441.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 5, 1994.

Decided Dec. 21, 1994.

Dissenting Opinion of Justice Workman Jan. 19, 1995.

Syllabus by the Court

1. "The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented." Syllabus Point 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992).

2. The traditional appellate standard for determining prejudice for discovery violations under Rule 16 of the West Virginia Rules of Criminal Procedure involves a two-pronged analysis: (1) did the non-disclosure surprise the defendant on a material fact, and (2) did it hamper the preparation and presentation of the defendant's case.

3. A circuit court may choose dismissal for egregious and repeated violations where lesser sanctions such as a continuance would be disruptive to the administration of justice or where the lesser sanctions cannot provide the same degree of assurance that the prejudice to the defendant will be dissipated.

4. In exercising discretion pursuant to Rule 16(d)(2) of the West Virginia Rules of Criminal Procedure, a circuit court is not required to find actual prejudice to be justified in sanctioning a party for pretrial discovery violations. Prejudice may be presumed from repeated discovery violations necessitating numerous continuances and delays.

Robert L. Hogan, Asst. Pros. Atty., Parkersburg, for relator.

George J. Cosenza, Cosenza & Underwood, Parkersburg, for respondent Lisa Harder.

CLECKLEY, Justice:

The relator, Michele L. Rusen, Prosecuting Attorney for Wood County, petitions this Court to issue a writ of prohibition against the respondent, the Honorable George W. Hill, Judge of the Circuit Court of Wood County, prohibiting him from dismissing the indictment in the case of State of West Virginia v. Lisa Harder, Case No. 93-F-81. Pursuant to Rule 16(d)(2) of the West Virginia Rules of Criminal Procedure, the respondent judge dismissed, with prejudice, an indictment charging the respondent and defendant below, Lisa Harder, with twelve counts of embezzlement. The dismissal was based on the State's partial noncompliance with a prior discovery order. We find that the respondent judge's discretion was properly exercised in this case and dismissal of the indictment was an appropriate sanction. Therefore, the writ of prohibition is denied.

I.

Lisa Harder was indicted by the Wood County Grand Jury in May, 1993, and charged with twelve counts of embezzling money from her former employer, the Burger King restaurant in Vienna, West Virginia. Trial was originally set for June 22, 1993.

Defense counsel filed a motion for discovery pursuant to Rule 16(d)(2) of the Rules of Criminal Procedure. On June 10, 1993, the State moved to dismiss the indictment, without prejudice, on the ground that the indictment did not adequately inform the defendant of the nature of the charges against her.

A second indictment was returned by the Wood County Grand Jury in September, 1993. Trial was then set for November 8, 1993. On or about October 7, 1993, defense counsel filed a new motion for discovery. On October 19, 1993, the defendant moved to continue the trial on the ground that the State failed to respond in a timely manner to the motion for discovery; and, as a result, the defense counsel was unable to prepare for trial on the scheduled date. The State filed a response on October 29, 1993. The State, claiming the response was timely, argued that Rule 16 does not specify a particular length of time in which the State must respond to discovery requests.

The respondent judge granted the defendant's motion to continue on November 1, 1993, and rescheduled trial for the January, 1994, Term. By letter dated November 23, 1993, defense counsel informed the State that after reviewing the discovery materials, he wanted several additional documents. The additional documents requested were various kinds of reports, including sales synopses, sales reports, voids, tax reports, and a manual explaining the operation of the computer/cash register. The State's attorney orally agreed to provide the requested documentation. ¹ When the January, 1994, Term of court began, the defendant's trial was scheduled for March 21, 1994. As of February 4, 1994, the State had not acquired the requested documents from Burger King.

On March 8, 1994, the defendant filed the following motions: (a) a motion to compel the State to deliver the documents listed in the February 15, 1994, order; and (b) a motion to dismiss the indictment or, in the alternative, to continue the trial. On March 11, 1994, a hearing was held on the defendant's motions. The State advised the circuit court that the documentation requested was still in the possession of Burger King. Additionally, the State informed the circuit court that the investigating officer was instructed to obtain the documentation, but there was a misunderstanding and Burger King provided the same information that was previously disclosed. The State indicated its intentions to issue a subpoena duces tecum to procure the necessary documents.

The circuit court directed that the requested documentation be presented to defense counsel within ten days; and, if the information was not provided, the case would be dismissed. The State was advised that if the documents were provided, the case would be continued to the May, 1994, Term of court. On March 21, 1994, the State maintains that it served what it believed were all the requested documents. The State also claims that it was not advised of any alleged deficiencies in the information provided until April 27, 1994, when the defendant renewed her motion to dismiss. In that motion, the defendant alleged the State had failed to provide several of the requested reports and a number of the reports provided were illegible.

On May 4, 1994, the circuit court held a hearing on the defendant's motion. The State argued that it had supplied a substantial amount of the information provided and that the defendant would not be prejudiced because the new trial date would be set on arraignment day at the beginning of the May, 1994, Term. The Assistant Prosecutor, Charles P. Houdyschell, attempted to reassure the court that the State was not attempting to conceal information or mislead the defense. The circuit court was not persuaded and stated: "[I]f they [Burger King] are not interested enough to provide the Prosecuting Attorney with the information that the Prosecuting Attorney demands of them, their case will be dismissed. So ordered."

The State filed a motion to reconsider in response to the Judge's order dismissing the case with prejudice. The State asserted in the motion that: (a) much of the information requested did not exist; (b) the remainder of the documents that were allegedly not supplied were missing as a result of clerical errors in the copying process; (c) had the State been provided with more particular notice of which documents were missing or illegible, the documents could have been provided; (d) the court's sanction of dismissing the indictment was too extreme, given the nature of the circumstances; and (e) since the State had substantially complied with the prior order and a new trial date had not been set, the defendant would not be prejudiced by affording the State the opportunity to deliver the missing documentation.

On June 3, 1994, the motion to reconsider was heard by the circuit court. Defense counsel admitted that his client had not been prejudiced by the delay, except perhaps psychologically. The State noted during the hearing that the defendant's motion to dismiss had not specified which documents were allegedly missing and illegible, so the State had been unable to respond. The circuit court denied the State's motion.

II.

The State seeks a writ of prohibition contending generally that the circuit court's dismissal of the indictment was unduly harsh and, thus, constituted an abuse of discretion. The relator also contends that the State has acted throughout this ordeal in good faith and that the defendant's rights, including those to a speedy trial and double jeopardy, have not been infringed.

In support of the petition, the State advances a public policy argument that it has been completely deprived of the right to prosecute and represent the citizens of its jurisdiction by the circuit court's precipitous and severe action. In conceding that circuit courts, in appropriate cases, have authority to dismiss criminal charges, the State vehemently argues that the circuit court's failure to impose a less severe remedy, such as continuing the trial or limiting the State's use of the undisclosed information, was an usurpation of its authority. In addition to arguing the dismissal was unduly harsh and "a flagrant abuse of the trial court's powers," the State claims the ruling was motivated by the circuit court's personal opinion that Burger King, as a "corporate giant," could quickly and easily supply the requested documents if it desired. ²

According to the relator, dismissal of an indictment is an appropriate sanction only when the State's failure to comply with a discovery request is in bad faith or where a defendant has been deprived of some...