State ex rel. Watson v. Ferguson

• Citation: 274 S.E.2d 440,166 W.Va. 337
• Decision Date: 19 December 1980
• Docket Number: No. 14995,14995
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. David Wesley WATSON v. The Honorable C. W. FERGUSON, III, Judge, etc.

Page 440

274 S.E.2d 440

166 W.Va. 337

STATE ex rel. David Wesley WATSON v. The Honorable C. W. FERGUSON, III, Judge, etc.

No. 14995.

Supreme Court of Appeals of West Virginia.

Decided Dec. 19, 1980.

Syllabus by the Court

1. A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan.

2. Where multiple homicides occur even though they are in close proximity in time, if they are not the result of a single volitive act of the defendant, they may be tried and punished separately under the double jeopardy clause of Article III, Section 5 of the West Virginia Constitution.

Larry A. Bailey, David Lycan, Wayne, William L. Redd, Huntington, for relator.

Chauncey H. Browning, Atty. Gen., Richard L. Earles, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

We granted this original writ of prohibition to consider again the scope of our double jeopardy clause ¹ in light of our decisions in State ex rel. Johnson v. Hamilton, W.Va., 266 S.E.2d 125 (1980), and State ex rel. Dowdy v. Robinson, W.Va., 257 S.E.2d 167 (1979). In Syllabus Point 1 of both cases, we concluded that a defendant was entitled to assert a claim of double jeopardy under both the "same evidence" and the "same transaction" tests, and "whichever test affords the defendant the greater protection must be applied." ²

In the present case, the defendant was charged by the grand jury of Wayne County with the murder of four persons in the early morning hours of June 25, 1979. Three of the victims were killed in one bedroom, and the fourth in a nearby hallway. Each of the victims was killed by multiple blows from a metal bar wielded by the defendant. The victims were a woman and two children plus a playmate of one of the children. All were killed in their beds in the same bedroom with the exception of an eight-year-old child who was killed in the hallway outside of his bedroom. Prior to the first trial on April 7, 1980, defense counsel moved the court to try all four murder charges in the same proceeding, citing Syllabus Point 2 of State ex rel. Johnson v. Hamilton, supra, which held: ³

"Appropriate protection against multiple trials for offenses arising from the same criminal transaction requires, in future cases, joinder for trial at the same time of all counts arising out of the same transaction either in a single indictment with multiple counts or multiple separate indictments; however, the defendant may move for severance of separate offenses and waive a future plea of double jeopardy, and if severance is granted by the Court, after defendant's showing of good cause for such severance, the defendant may be tried separately for each separate offense."

The trial court declined to give a unitary trial for the four murder charges. The defendant was brought to trial on one of the charges and was convicted of first degree murder without a recommendation of mercy. Thereafter, the lower court set a trial date for the next murder trial. The defendant then sought this writ of prohibition to prevent the trial on the basis that jeopardy had attached under Johnson and, therefore, further trials were precluded.

There can be little doubt that Dowdy and Johnson made a primary change in our double jeopardy law by requiring that where the defendant committed multiple offenses arising out of the same transaction, he must be tried for these offenses in one trial. ⁴ Johnson, in effect, brought about a bifurcation in our constitutional concept of double jeopardy, since it recognized that a unitary trial could be required for multiple offenses resulting from the same transaction, but that, nevertheless, "separate punishments may be imposed." Syllabus Point 3, in part, State ex rel. Johnson v. Hamilton. ⁵

Prior to Johnson, we had considered our State double jeopardy clause to be rather coextensive with the federal concept of double jeopardy embodied in the Fifth Amendment to the United States Constitution. ⁶ In Conner v. Griffith, W.Va., 238 S.E.2d 529 (1977), we patterned Syllabus Point 1, relating to the scope of our double jeopardy clause, upon double jeopardy principles found in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Syllabus Point 1 of Conner states:

"The Double Jeopardy Clause in Article III, Section 5 of the West Virginia Constitution, provides immunity from further prosecution where a court having jurisdiction has acquitted the accused. It protects against a second prosecution for the same offense after conviction. It also prohibits multiple punishments for the same offense."

See also State v. Holland, 149 W.Va. 731, 143 S.E.2d 148 (1965); State ex rel. Zirk v. Muntzing, 146 W.Va. 878, 122 S.E.2d 851 (1961); State v. Kiger, 103 W.Va. 55, 136 S.E. 607 (1927); Ex parte Bornee, 76 W.Va. 360, 85 S.E. 529 (1915).

The United States Supreme Court has never considered that for double jeopardy purposes, there should be a difference between multiple trials and multiple punishments for the same offense. As stated in Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 2226, 53 L.Ed.2d 187, 194-95 (1977):

"If two offenses are the same under this test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions. See In re Nielsen, 131 U.S. 176, 187-188, 9 S.Ct. 672, 675-676, 33 L.Ed. 118 (1889); cf. Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489 (1911). Where the judge is forbidden to impose cumulative punishment for two crimes at the end of a single proceeding, the prosecutor is forbidden to strive for the same result in successive proceedings...."

The reason advanced in Johnson for such a separation was the necessity of protecting the defendant against the time and expense of defending against multiple trials. Johnson echoed earlier remarks contained in Dowdy, 257 S.E.2d at 170, where the Court quoted from Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223, 2 L.Ed.2d 199, 204 (1957):

"(R)epeated attempts to convict an individual for an alleged offense (is) thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

The key language from Green, however, is the "repeated attempts to convict an individual for an alleged offense " (emphasis added), under which multiple punishments would seem to be as impermissible as multiple trials. The historical question in this area of double jeopardy is as we stated in Note 5 of State ex rel. Betts v. Scott, W.Va., 267 S.E.2d 173, 176 (1980):

"Double jeopardy in the traditional sense is concerned with the defendant being retried for the same offense after he had earlier been convicted or acquitted on the offense. The focus in this area has been how to define 'the same offense' and whether lesser included offenses are covered. See Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Iannelli v. United States, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1975); Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958)."

We also pointed out in Betts that while the concerns expressed in Green v. United States, supra, as to the anxiety, insecurity, embarrassment and expense of multiple trials may be legitimate considerations, they do not ultimately resolve all the complex issues arising in double jeopardy cases: ⁷

"These beguiling labels tend to obscure the fact that the Double Jeopardy Clause has never been thought to mean that a defendant may never be subjected to more than one trial no matter how complete the first trial, or regardless of the terms upon which it was terminated, and irrespective of whether it was reversed on appeal." 267 S.E.2d at 178.

Moreover, there is a certain legal sophistry in constructing a double jeopardy system that requires a single trial for multiple offenses arising out of the same transaction but permits multiple punishments for those offenses if convictions occur in the unitary trial. It is small comfort to the accused to be spared the anxiety and expense of multiple trials only to learn that he can receive multiple punishments arising out of convictions for the multiple offenses being tried in a single trial.

A more workable approach is to permit from a procedural standpoint the prosecution of multiple offenses by way of a single trial as is permitted by Rule 8(a) of the Federal Rules of Criminal Procedure. ⁸ This approach would enable the defendant to be tried on all offenses of the same or similar character or arising from the same transaction. Many states have adopted this type of procedural rule by statute. State v. Jones, 120 Ariz. 556, 587 P.2d 742 (1978); State v. Piland, 217 Kan. 689, 538 P.2d 666 (1975); State v. Baker, 524 S.W.2d 122 (Mo.1975); State v. Gotfrey, 598 P.2d 1325 (Utah 1979); State v. Smith, 74 Wash.2d 744, 446 P.2d 571 (1968), vacated on other grounds, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972). We have evolved a somewhat analogous joinder rule through case law and by virtue of certain statutes. E. g., W.Va.Code, 61-3-12; W.Va.Code, 62-2-5; W.Va.Code, 62-2-24; State v. Cutlip, 131 W.Va. 141, 46 S.E.2d 454 (1948); State v. Masters, 106 W.Va. 46, 144 S.E. 718 (1928).

Several courts have concluded that the problem of multiple trials can be solved to a large degree by a joinder rule that requires multiple offenses to be tried together unless the defendant moves for a severance. In State v. Gregory, 66 N.J. 510, 333 A.2d 257 (1975), after an extensive review of its prior double jeopardy cases, the court...