State v. Barnhart
Decision Date | 08 April 2002 |
Docket Number | No. 29967.,29967. |
Citation | 211 W.Va. 155,563 S.E.2d 820 |
Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Robin BARNHART, Defendant Below, Appellant. |
Court | West Virginia Supreme Court |
Darrell V. McGraw, Jr., Attorney General, Allen H. Loughry, II, Senior Assistant Attorney General, Charleston, West Virginia, Attorneys for Appellee.
Jack Wood, Assistant Public Defender, Public Defender Corporation, Wheeling, West Virginia, Attorney for Appellant.
This appeal arises from criminal proceedings in the Circuit Court of Ohio County. On January 11, 2000, an Ohio County grand jury indicted the appellant, Robin Barnhart, for the felony offense of malicious assault; a jury later convicted her of the lesser included offense of battery, a misdemeanor.
Ms. Barnhart claims that the circuit court erred in not dismissing the indictment because a member of the grand jury was a police officer who played some role in the investigation of the crime for which Ms. Barnhart was indicted, and, while not voting on the indictment, nevertheless remained in the grand jury room during the prosecuting attorney's presentment and during the deliberations of the grand jury. We agree and reverse her conviction.
On November 1, 1999, a criminal complaint was filed against Ms. Barnhart and a warrant was issued for her arrest on November 15, 1999. Officer John Wroten, a member of the Wheeling police department, investigated certain aspects of the charges against Ms. Barnhart.1 Officer Wroten was also a member of the grand jury that on January 11, 2000, indicted Ms. Barnhart for malicious assault, a violation of W.Va.Code, 61-2-9(a) [1978].2
Before the beginning of Ms. Barnhart's jury trial, her counsel made a motion to dismiss the malicious wounding indictment based on Officer Wroten being a member of the grand jury. On March 22, 2000, the circuit court held a hearing to ascertain the details of Officer Wroten's participation in the presentment and deliberation of the indictment against Ms. Barnhart.
At that hearing, Officer Wroten testified that
Officer Wroten also testified that during the presentation of the case against Ms. Barnhart to the grand jury, the testifying police officer identified Officer Wroten as having investigated the underlying case. According to Officer Wroten, when the testifying police officer mentioned Officer Wroten by name, a grand juror turned and looked at him questioningly. Officer Wroten testified that he responded by telling the grand jurors that they would have to "make your own decision and pretend I am not even here." Officer Wroten also testified that he did not otherwise actively participate in the presentation or deliberation of Ms. Barnhart's case, and that he did not vote on her indictment, but that he did remain in the room while the other grand jurors deliberated and voted. At the close of Officer Wroten's testimony, the circuit court found that Officer Wroten did not intimidate or influence the other grand jurors, and denied the motion to dismiss the indictment.
Defense counsel properly preserved their objections to the indictment on the record.
Following a one-day trial, on March 23, 2000, a petit jury found Ms. Barnhart guilty of the lesser included offense of battery. See W.Va.Code, 61-2-9(c) [1978]. Ms. Barnhart now appeals her conviction and the indictment.
The grand jury has long held a central place in Anglo-American jurisprudence. In Wood v. Georgia, 370 U.S. 375, 82 S.Ct. 1364, 8 L.Ed.2d 569 (1962), Chief Justice Warren noted:
Historically, this body [the grand jury] has been regarded as a primary security to the innocent against hasty, malicious and oppressive persecution; it serves the invaluable function in our society of standing between the accuser and the accused, whether the latter be an individual, minority group, or other, to determine whether a charge is founded upon reason or was dictated by an intimidating power or by malice and personal ill will.3
Id., 370 U.S. at 390, 82 S.Ct. at 1373, 8 L.Ed.2d at 580.
In State ex rel. Pinson v. Maynard, 181 W.Va. 662, 383 S.E.2d 844 (1989), this Court provided a brief history, function, and purpose of the grand jury in West Virginia:
The institution of the grand jury is deeply rooted in Anglo-American history. For centuries in England the grand jury served both as an accuser of people suspected of criminal wrongdoing and a protector of citizens from arbitrary governmental action. The grand jury continues this dual role to the present day, balancing the determination of probable cause that an offense has been committed against the duty to protect innocent citizens from unfounded criminal prosecution. Historically, the grand jury has been the sword of the government as well as the shield of the people, and this Court has on many occasions emphasized the importance of preserving this duality. For the indictments of a grand jury to be valid, the Fifth Amendment of the United States Constitution requires they be returned by a legally constituted and unbiased grand jury.
Id., 181 W.Va. at 665, 383 S.E.2d at 847 (footnotes and internal citations omitted).
The right to a grand jury is found in West Virginia's Constitution, which states that "[n]o person shall be held to answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury." W.Va. Constitution, Article III, § 4. "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." Syllabus Point 1, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995). In West Virginia, a valid presentment or indictment of a grand jury is "a condition precedent to a conviction for a felony." State ex rel. McGilton v. Adams, 143 W.Va. 325, 329, 102 S.E.2d 145, 147 (1958). See also, Scott v. Harshbarger, 116 W.Va. 300, 301, 180 S.E. 187, 187-88 (1935) (); Syllabus Point 5, State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955) ().
As a matter of public policy, an indictment will not be dismissed automatically simply because of alleged irregularities or because a member of the grand jury is disqualified. As we stated in Syllabus Point 4 of State v. Bailey, 159 W.Va. 167, 220 S.E.2d 432 (1975) (overruled on other grounds, State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980)), that under the provisions of W. Va. Code, 52-2-12 [1923], "an indictment will not be quashed or abated on the ground that one member of the grand jury is disqualified." State v. Bailey, 159 W.Va. at 174, 220 S.E.2d at 436 (citations omitted). However, in certain instances, fundamental fairness requires looking behind the indictment to achieve the purposes of the West Virginia Constitution's due process clause.
Our state constitution guarantees that "[t]he courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay." W.Va. Constitution, Article III, § 17. Our Due Process Clause requires that the government must follow certain procedures before an individual of this State may be deprived of his or her liberty or property. "The Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest." Syllabus Point 1, Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977). Due process of law means "the due course of legal proceedings according to those rules and forms, which have been established for the protection of private rights, securing to every person a judicial trial before he can be deprived of life, liberty or property." Syllabus Pont 8, Peerce v. Kitzmiller, 19 W.Va. 564 (1882).
In West Virginia, criminal defendants are entitled to a legally constituted and unbiased grand jury. The State "having once resorted to a grand jury procedure, [shall] furnish an unbiased grand jury." State v. Bailey, 159 W.Va. at 174, 220 S.E.2d at 436-437. See also, State ex rel. Pinson v. Maynard, 181 W.Va. at 665, 383 S.E.2d at 847. In State ex rel Starr v. Halbritter, 183 W.Va. 350, 395 S.E.2d 773 (1990), this Court, quoting Bank of Nova Scotia v. United, States, 487 U.S. 250, 257, 108 S.Ct. 2369, 2375, 101 L.Ed.2d 228, 238 (1988) said that:
The grand jury in West Virginia acts as both a sword...
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