State v. Adams, Nos. 22397

• Court: Supreme Court of West Virginia
• Writing for the Court: CLECKLEY; BROTHERTON; FOX
• Citation: 456 S.E.2d 4,193 W.Va. 277
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Samuel E. ADAMS, Defendant Below, Appellant. STATE of West Virginia ex rel. Samuel ADAMS, Petitioner, v. Delbert HARRISON, Sheriff of Putnam County, Respondent.
• Decision Date: 17 February 1995
• Docket Number: 22398,Nos. 22397

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456 S.E.2d 4 193 W.Va. 277 STATE of West Virginia, Plaintiff Below, Appellee,
v.
Samuel E. ADAMS, Defendant Below, Appellant.
STATE of West Virginia ex rel. Samuel ADAMS, Petitioner,
v.
Delbert HARRISON, Sheriff of Putnam County, Respondent. Nos. 22397, 22398. Supreme Court of Appeals of West Virginia. Submitted Jan. 17, 1995.
Decided Feb. 17, 1995.

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[193 W.Va. 279] Syllabus by the Court

1. A defendant has a right under the Grand Jury Clause of Section 4 of Article III of the West Virginia Constitution to be tried only on felony offenses for which a grand jury has returned an indictment.

2. To the extent that State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955), stands for the proposition that "any" change to an indictment, whether it be form or substance, requires resubmission to the grand jury for its approval, it is hereby expressly modified. An indictment may be amended by the circuit court, provided the amendment is not substantial, is sufficiently definite and certain, does not take the defendant by surprise, and any evidence the defendant had before the amendment is equally available after the amendment.

3. Any substantial amendment, direct or indirect, of an indictment must be resubmitted to the grand jury. An "amendment of form" which does not require resubmission of an indictment to the grand jury occurs when the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced.

Rosemary J. Humway, Asst. Atty. Gen., Charleston, for appellee in No. 22398.

Daniel Corey, Poca, for appellant.

Samuel Adams, pro se.

Rosemary J. Humway, Asst. Atty. Gen., Charleston, for respondent in No. 22397.

CLECKLEY, Justice:

The appellant and defendant below, Samuel E. Adams, was convicted in June, 1993, by a jury in the Circuit Court of Putnam County of one count of concealing stolen property and one count of transferring stolen property. ¹ On December 23, 1993, the defendant was sentenced to indeterminate consecutive terms of one to ten years on each count. On appeal, he argues that an amendment to count one of the indictment which changed the name of the owner of the stolen goods was unconstitutional. We disagree that the defendant's right under Section 4 of Article III of the West Virginia Constitution was violated, and we affirm his conviction on count one. Similarly, we find the defendant's remaining assignments of error to be without merit; and we affirm his conviction on count two. ²

I.

In the summer of 1992, the Putnam County Sheriff's Department investigated a series of breakings and enterings and grand larcenies. The police questioned Christopher Randolph and he admitted that he and Dwayne Smith were involved in approximately fifteen of those crimes. As part of their plea agreements, Mr. Randolph and Mr. Smith testified on behalf of the State at the defendant's trial.

The record reflects numerous incidents in which personal property was stolen by Mr. Randolph and Mr. Smith that they later sold to the defendant. On some occasions, the defendant sold the merchandise to Eddie Stratton, the owner of Deals on Wheels, a car lot in Putnam County. Specifically, the evidence regarding count one of the indictment shows Mr. Randolph and Mr. Smith broke into Ben's RV Center in Putnam County, a business owned by Jerry Cunningham, and stole a hand saw, a weedeater, and a lawn

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[193 W.Va. 280] mower. It was later learned that the items belonged to Edward Morgan, Mr. Cunningham's son-in-law. The men contacted the defendant to sell the merchandise. The defendant instructed the men to hide the items beside a cemetery on Poca River Road, and he led them to the area.

The evidence regarding count two of the indictment shows Mr. Randolph and Mr. Smith stole a lawn mower and a rototiller from the residence of Houston Thornton. They transported the items to a deserted field along Cow Creek Road in Putnam County. The defendant later purchased the goods from the men and stored the items at Deals on Wheels.

On count one, the grand jury returned an indictment which identified Jerry Cunningham as the owner of the stolen items. On May 28, 1993, the morning voir dire took place, the State moved to amend the indictment to identify Mr. Morgan as the owner of the goods. The circuit court allowed the amendment over the objection of defense counsel. On appeal, the defendant requests we reverse his conviction on both counts.

II.

The defendant's first assignment of error is that his conviction on count one under the amended indictment was unconstitutional. It is well settled law that a defendant has a right under the Grand Jury Clause of Section 4 of Article III of the West Virginia Constitution to be tried only on felony offenses for which a grand jury has returned an indictment. In unbroken precedent, this Court has stated: " 'A valid indictment or presentment can be made only by a grand jury; and no court can make an indictment in the first instance or alter or amend the substance of an indictment returned by a grand jury.' Syllabus Point 5, State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955)." Syllabus Point 2, State v. Pruitt, 178 W.Va. 147, 358 S.E.2d 231 (1987). Similarly, the United States Supreme Court in Ex parte Bain, 121 U.S. 1, 10, 7 S.Ct. 781, 786, 30 L.Ed. 849, 852 (1887), states the reason for this rule:

"If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner's trial for a crime, and without which the Constitution says 'no person shall be held to answer,' may be frittered away until its value is almost destroyed." ³

"This aspect of Bain has been reaffirmed in a number of subsequent cases. See, e.g., United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424[, 425], 74 L.Ed. 1076[, 1077] (1930) (citing Bain for the rule that 'nothing can be added to an indictment without the concurrence of the grand jury by which the bill was found')." United States v. Miller, 471 U.S. 130, 143, 105 S.Ct. 1811, 1818, 85 L.Ed.2d 99, 109 (1985). ⁴

The State defends its pretrial amendment by suggesting: (1) there was no invasion of the defendant's constitutional right as a result of the amendment permitted by the circuit court; (2) the amendment did not change the nature of the offense; (3) the amendment merely corrected the victim's name; (4) the amendment related to a matter of form and not of substance; and (5) any error committed by the amendment was harmless only.

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[193 W.Va. 281] In State v. McGraw, supra, we addressed the very question raised by the defense. ⁵ We held that changing the name of the owner of stolen property "rendered the indictment invalid, and deprived that court of the power to try the accused on the indictment as amended." 140 W.Va. at 559, 85 S.E.2d at 857. Syllabus Point 4 of McGraw states:

"An amendment of an indictment which charges a separate and distinct offense from that charged in the indictment in its original form may not be made or permitted by a court; and such amendment, whether it relates to matters of form or matters of surplusage, invalidates the indictment and deprives the court of the power to proceed under the amended indictment."

Realizing that the holding in McGraw would be dispositive, the State essentially asks us to reconsider the wisdom of McGraw and to overrule it. We agree that McGraw must be reconsidered, and we believe it should be modified. ⁶ To the extent that State v. McGraw stands for the proposition that "any" change to an indictment, whether it be form or substance, requires resubmission to the grand jury for its approval, it is hereby expressly modified. Our decision today comports with those of the vast majority of other jurisdictions that have recently addressed this issue. The contemporary rule and the rule we adopt is that an indictment may be amended by the circuit court, provided the amendment is not substantial, is sufficiently definite and certain, does not take the defendant by surprise, and any evidence the defendant had before the amendment is equally available after the amendment. ⁷

We start our analysis with the basic rule of law that any substantial amendment, direct, indirect or constructive, of an indictment must be resubmitted to the grand jury. An "amendment of form" which does not require resubmission of an indictment to the grand jury occurs when the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced.

The recent decision of the United States Supreme Court in United States v. Miller, supra, deals with variance between the charge and proof at trial, which is somewhat more problematic than a pretrial amendment of an indictment. Miller permits a "narrowing" of the charge, but not an alteration or enlargement. The latter, of course, would interfere with the notice, double jeopardy, and screening functions of a grand jury indictment. See Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). ⁸ Where there is a pretrial

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[193 W.Va. 282] amendment to an indictment, as there was in this case, the notice and double jeopardy functions are not necessarily implicated, although the screening function of the grand jury may be--would the grand jury have indicted the defendant if the grand jurors knew that the stolen property actually belonged to Edward Morgan rather than James Cunningham, who was originally named as owner in the indictment? The answer to this question must be decided on a case-by-case basis. Considering the specific facts of this case, the answer seems to be "yes," but this might not always be the case where the identity of the victim is changed. For example,...