State ex rel. Starr v. Halbritter

• Decision Date: 28 June 1990
• Docket Number: No. 19649,19649
• Citation: 395 S.E.2d 773,183 W.Va. 350
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Ricky STARR, Michael Bryant, Bobby Chafin, Tim Preece, Albert Rush Cline and Mike Holbrook v. Honorable Robert C. HALBRITTER, Duly Appointed and Acting Special Judge of the Circuit Court of Logan County, West Virginia, and Donald C. Wandling, Prosecuting Attorney of Logan County, West Virginia.

Page 773

395 S.E.2d 773

183 W.Va. 350

STATE of West Virginia ex rel. Ricky STARR, Michael Bryant, Bobby Chafin, Tim Preece, Albert Rush Cline and Mike Holbrook v. Honorable Robert C. HALBRITTER, Duly Appointed and Acting

Special Judge of the Circuit Court of Logan County, West

Virginia, and Donald C. Wandling, Prosecuting Attorney of

Logan County, West Virginia.

No. 19649.

Supreme Court of Appeals of

West Virginia.

June 28, 1990.

Syllabus by the Court

1. "A valid indictment or presentment can be made only by a grand jury; and no court [or prosecutor] can [properly] make an indictment in the first instance or alter or amend the substance of an indictment returned by a grand jury." Syl. pt. 5 State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955), as modified.

2. The failure of the grand jury as a body to vote upon the text of the indictment is a fundamental error so compromising the integrity of the grand jury proceedings as to constitute prejudice per se, and the indictment must be dismissed as void, without prejudice to the right of the state subsequently to seek a valid indictment. See W.Va. Const. art. III, § 4; W.Va.R.Crim.P. 6(f).

3. "[A]s the court to which a void indictment is returned does not have jurisdiction to try a person so indicted, prosecution of a defendant upon such void indictment will be prevented by a writ of prohibition." Syl. pt. 2, in part, State ex rel. McCormick v. Hall, 150 W.Va. 385, 146 S.E.2d 520 (1966), overruled on another point, State v. Furner, 161 W.Va. 680, 682-83, 245 S.E.2d 618, 619 (1978).

Robert B. King, Robert B. Allen, John J. Polak, King, Betts & Allen, Charleston, for Michael Bryant, Bobby Chafin, Tim Preece, Albert Cline and Mike Holbrook.

Roger W. Tompkins, Atty. Gen., Joanna Tabit, Asst. Atty. Gen., Atty. General's Office, Charleston, for Robert C. Halbritter and Donald C. Wandling.

Jeffrey M. Wakefield, Kay, Casto, Chaney, Love & Wise, Charleston, Michael Thornsbury, Williamson, for Ricky Starr.

McHUGH, Justice:

In this original proceeding the relators, Ricky Starr, Michael Bryant, Bobby Chafin, ¹ Tim Preece, Albert Rush Cline and Mike Holbrook, seek a writ of prohibition precluding their being tried on allegedly void indictments pending against them in the Circuit Court of Logan County, West Virginia. We previously issued a rule to show cause why the requested relief should not be awarded. Having reviewed the petition and the exhibits thereto and the briefs and oral argument of counsel, this Court concludes that the writ of prohibition should be awarded for the reasons set forth herein.

I

Each of the petitioners was indicted in September, 1989, by the grand jury attending the September Term of the Circuit Court of Logan County, West Virginia. The alleged offenses were incident to labor unrest in that county and involved a shooting incident and an endloader incident. Each of the petitioners was indicted for attempted murder; petitioner Starr was also indicted for malicious assault. All but two of the petitioners were also indicted for conspiracy to commit malicious assault.

The procedure utilized to obtain these indictments was as follows. The prosecuting attorney furnished grand jury memorandum forms to the grand jury. After hearing the evidence presented by the prosecutor's witnesses, the grand jury inserted on these forms the name of the victim, the nature and date of the alleged crime, the name(s) of the witness(es) and a summary of the evidence. The foreperson of the grand jury signed the grand jury memorandum forms and marked (circled) on each that the grand jury had "found" a "true bill." ² Because a "true bill" was circled on each of the memorandum forms, the prosecutor thereafter drafted formal indictments and signed and presented them to the foreperson for her to sign. The grand jury as a body did not ever see the actual indictments. ³

In this case the grand jury memorandum forms indicate that petitioner Starr was charged by the grand jury with malicious assault, and "all others" (of the petitioners named therein) were charged with attempted murder. However, the actual indictments, drafted thereafter by the prosecutor, charge petitioner Starr with malicious assault and attempted murder, and the other named petitioners were charged with attempted murder. Each of the petitioners except for Messrs. Cline and Holbrook was also charged in the indictments with conspiracy to commit malicious assault.

The petitioners moved to dismiss the indictments for several alleged irregularities in the grand jury proceedings, including the use of the above described procedure in obtaining the indictments. The petitioners argued that such procedure is constitutionally flawed in that it does not result in indictments found by a grand jury but, instead, found by the prosecutor and the grand jury foreperson.

The trial court denied the motion to dismiss the indictments. It held, inter alia, that there was no showing of prejudice, except with respect to the conspiracy charges, which were dismissed as having been added by the prosecutor. The trial court employed a balancing test and concluded that society's interest in the effective administration of justice outweighed the petitioners' rights.

The petitioners subsequently brought this prohibition proceeding, seeking to prevent their being tried on the allegedly void indictments.

II

Article III, section 4 of the Constitution of West Virginia provides, in relevant part, that "[n]o person shall be held to answer for treason, felony or other crime, not cognizable by a justice [now called a magistrate], unless on presentment or indictment of a grand jury." ⁴ "An indictment may be found only upon the concurrence of 12 or more jurors." W.Va.R.Crim.P. 6(f), in relevant part. See also W.Va.Code, 52-2-8 [1931] (same requirement under statute prior to adoption of West Virginia Rules of Criminal Procedure ). The common law also required the concurrence of at least twelve of the grand jurors to find an indictment. 4 W. Blackstone, Commentaries

Page 306

The function of the grand jury as a body, that is, at least twelve members thereof, finding probable cause to accuse a person of a certain crime is fundamental to the integrity of the grand jury proceedings: "A valid indictment or presentment can be made only by a grand jury; and no court [or prosecutor] can [properly] make an indictment in the first instance or alter or amend the substance of an indictment returned by a grand jury." Syl. pt. 5, State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955), as modified. Accord, syl. pt. 2, State v. Pruitt, 178 W.Va. 147 , 358 S.E.2d 231 (1987). Furthermore, "a valid presentment or indictment of a grand jury is, in this [s]tate, a condition precedent to a conviction for a felony[.]" McGraw, 140 W.Va. at 558, 85 S.E.2d at 856 (quoting Scott v. Harshbarger, 116 W.Va. 300, 301, 180 S.E. 187, 187-88 (1935)). In other words, a valid indictment is a jurisdictional prerequisite to a valid conviction.

Accordingly, the irregularity in the grand jury proceedings at issue here, specifically, the failure of the grand jury to deliberate and vote upon the actual indictments, was a fundamental error which so compromised the structural protections of the grand jury as to constitute prejudice per se. This type of error was mentioned in the recent leading case of the Supreme Court of the United States on errors in grand jury proceedings, Bank of Nova Scotia v. United States, 487 U.S. 250, 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988):

To be distinguished from the cases before us are [sic] a class of cases in which indictments are dismissed, without a particular assessment of the prejudicial impact of the errors in each case, because the errors are deemed fundamental.... [T]hese cases are ones in which the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the [irrebuttable] presumption of prejudice.

Id. at 257, 108 S.Ct. at 2375, 101 L.Ed.2d at 238.

In cases not involving such fundamental errors, the rule is that dismissal of an indictment is appropriate only if it is established that the violation substantially influenced the grand jury's decision to indict or if there is grave doubt that the decision to indict was free from the substantial influence of such violations. Syl. pt. 6, State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989) (quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 256, 108 S.Ct. 2369, 2374, 101 L.Ed.2d 228, 238 (1988)). Even if we were to apply this test to the fundamental violation in the present case with respect to the lack of a vote on the actual indictments, our holding would be the same. It is clear from the face of the record that the prosecutor added all of the conspiracy charges and added the attempted murder charge to the grand jury's finding with respect to petitioner Starr. Consequently there is "grave doubt" that the indictments were free from the substantial influence of these violations.

In State ex rel. Miller v. Smith, 168 W.Va. 745, 285 S.E.2d 500 (1981), this Court observed that "historically the grand jury serves a dual function: it is intended to operate both as a sword, investigating cases to bring to trial persons accused on just grounds, and as a shield, protecting citizens against unfounded malicious or frivolous prosecutions." Id. 168 W .Va. at 751, 285 S.E.2d at 504. Here the function of the grand jury as a shield against unfounded prosecutions was eliminated by the failure to submit the actual indictments--containing the charges added by the prosecutor--to the grand jurors for their approval. This procedure is not a technical violation subject to harmless error analysis, but is, instead, a basic violation striking at the heart of the grand jury proceedings. We will not condone such a violation. See W.Va.Const. art. III, § 20 ("[T]he blessings of liberty can be preserved to any people only by a...