State v. Ferrell, 16284

• Decision Date: 23 January 1985
• Docket Number: No. 16284,16284
• Citation: 329 S.E.2d 62,174 W.Va. 697
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Angela FERRELL.

Page 62

329 S.E.2d 62

174 W.Va. 697

STATE of West Virginia v. Angela FERRELL.

No. 16284.

Supreme Court of Appeals of West Virginia.

Jan. 23, 1985.

Decided April 11, 1985.

Syllabus by the Court

1. "If any witness for the accused be a nonresident of the State, or absent therefrom in any service or employment, so that service of a subpoena cannot be had upon him in this State, or is aged or infirm so that he cannot attend upon the court at the trial, the accused may present to the court in which the case is pending, or to the judge thereof in vacation, an affidavit showing such facts, and stating therein what he expects to prove by any such witness, his name, residence, or place of service or employment; and if such court or judge be of the opinion that the evidence of any such witness, as stated in such affidavit, is necessary and material to the defense of the accused on his trial, an order may be made by such court or judge for the taking of the deposition of any such witness upon such notice to the prosecuting attorney, of the time and place of taking the same, as the court or judge may prescribe; and in such order the court or judge may authorize the employment of counsel, practicing at or near the place where the deposition is to be taken, to cross-examine the witness on behalf of the State, the reasonable expense whereof shall be paid out of the treasury of the State, upon certificate of the court wherein the case is pending ..." W.Va.Code 62-3-1 [1981].

2. The mere fact that a witness is an out-of-state resident does not, standing alone, constitute an "exceptional circumstance" that justifies the taking of a deposition at public expense under W.Va.R.Crim.P. 15(c).

3. W.Va.Code 62-3-1 [1981] must be read in pari materia with W.Va.R.Crim.P. 15, but the ultimate decision to order the taking of an out-of-state deposition at public expense rests in the sound discretion of the trial judge.

Charles M. Kincaid, Huntington, for appellant.

George P. Stanton, Asst. Atty. Gen., Charleston, for appellee.

NEELY, Chief Justice:

This is an appeal by Angela Ferrell from a misdemeanor battery conviction under W.Va.Code 61-2-9(c) [1978] in the Circuit Court of Cabell County. On 13 September 1983 the appellant was sentenced to six months in jail and fined $100; she was then granted bail pending appeal. Miss Ferrell asserts here that the circuit court erred in refusing her request to depose an out-of-state witness. We affirm the circuit court.

On the evening of 21 December 1982, two emergency medical technicians, Brett Payne and Jeff Kingery, were dispatched to the home of the appellant, Angela Ferrell, in response to a call that the appellant was suffering from chest pains and shortness of breath. Shortly after the medical technicians arrived at appellant's home, Technician Brett Payne took appellant's pulse and respiration, both of which, in his judgment, were normal for someone of her age. Mr. Payne explained to appellant that medicine could be prescribed only at a hospital and offered to transport her there.

When appellant refused to be driven to the hospital, Mr. Payne told her that she would have to sign a release form stating that she did not want to go to the hospital. This is standard procedure, the purpose of which is to protect emergency medical technicians from liability for failing to treat patients who refuse treatment.

At this point appellant became agitated and protested that she would not sign any "f--king release form." Technician Jeff Kingery testified that while Technician Payne was going out the door to get a release form from their ambulance, the appellant hopped off the couch and rammed her right shoulder into him. He then managed to pin her down on the couch until she appeared to have calmed down. When Mr. Payne stepped aside, she again assaulted him and kicked him in the groin. This time he pinned her to the floor. Appellant stated that Technician Kingery had verbally abused her, grabbed her arms, pushed her backward and shoved her to the floor.

On 13 May 1983 appellant, by counsel, moved the Circuit Court of Cabell County to order the taking of a deposition of Margaret Jones, appellant's former roommate, who had since moved to Ocala, Florida. The circuit court denied that motion and denied the same motion once again on 13 September 1983, the opening day of trial. These denials form the basis of the present appeal.

Rule 15(c) of W.Va.R.Crim.P. permits a defendant to take a deposition at state expense, under "exceptional circumstances" as stated in subsection (a) of that rule. Other courts, operating under similar rules, have defined "exceptional circumstances" very narrowly. In United States v. Rich, 580 F.2d 929, cert. denied, 439 U.S. 935, 99 S.Ct. 330, 58 L.Ed.2d 331 (1978) the ninth circuit strictly limited "exceptional circumstances" to criminal cases where the defendant's witness is unable to attend trial and stated that "the rule contemplates a party taking the deposition of only his own witness, a requirement that comports with the purpose of preserving testimony." 580 F.2d at 934. [Footnote omitted]

The cases cited by the appellant do not support her claim for relief due to "exceptional circumstances." These cases illustrate that the "exceptional circumstances" test is met only when the prospective witness is abroad and hence practically "unable" to attend trial. United States v. Tamura, 694 F.2d 591 (9th Cir.1982) (witness in Canada); United States v. Sun Myung Moon, 93 F.R.D. 558 (1982) (witness in Japan); or when the witnesses are ill to the point of incapacitation. United States v. LaFatch, 382 F.Supp. 630 (1974); United States v. Hagedorn, 253 F.Supp. 969 (1966); or when the whereabouts of the witnesses is unknown, United States v. Egorov, 34 F.R.D. 130 (1963) (witnesses are foreign...