State v. Haines

• Decision Date: 12 October 2007
• Docket Number: No. 33304.,33304.
• Citation: 221 W.Va. 235,654 S.E.2d 359
• Parties: STATE of West Virginia, Plaintiff Below, Appellee v. Richard Allen HAINES, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

654 S.E.2d 359

221 W.Va. 235

STATE of West Virginia, Plaintiff Below, Appellee v. Richard Allen HAINES, Defendant Below, Appellant.

No. 33304.

Supreme Court of Appeals of West Virginia.

Submitted September 12, 2007.

Decided October 12, 2007.

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." Syl. Pt. 1, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4(1995).

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." Syl. Pt. 2, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).

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." Syl. Pt. 3, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).

4. "Rule 12(b)(2) of the West Virginia Rules of Criminal Procedure requires that a defendant must raise any objection to an indictment prior to trial. Although a challenge to a defective indictment is never waived, this Court literally will construe an indictment in favor of validity where a defendant fails timely to challenge its sufficiency. Without objection, the indictment should be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense under West Virginia law or for which the defendant was convicted." Syl. Pt. 1, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

5. "An indictment is sufficient under Article III, § 14 of the West Virginia Constitution and W. Va. R.Crim. P. 7(c)(1) if it (1) states the elements of the offense charged; (2) puts a defendant on fair notice of the charge against which he or she must defend; and (3) enables a defendant to assert an acquittal or conviction in order to prevent being placed twice in jeopardy." Syl. Pt. 6, State v. Wallace, 205 W.Va. 155, 517 S.E.2d 20 (1999).

Christopher A. Davis, Davis Law Offices, Clarksburg, for Appellant.

Darrell V. McGraw, Jr. Attorney General, James W. Wegman, Assistant Attorney General, Charleston, for Appellee.

PER CURIAM:

Appellant Richard Allen Haines seeks a reversal of his conviction for one count of felony delivery of a Schedule II controlled substance. As grounds for his appeal, he argues that the trial court erred in amending the indictment under which he was charged to alter the type of controlled substance at issue from one that falls within Schedule I to more accurately reflect that the substance at issue is set forth in Schedule II. Arguing that only the grand jury has the power to amend an indictment, Appellant maintains that the trial court had no authority to alter the indictment. Having fully reviewed the assignment of error presented, we determine that the trial court did not commit error and, accordingly, affirm.

I. Factual and Procedural Background

On May 9, 2005, a Hampshire County Grand Jury returned an indictment against Appellant for delivery of methamphetamine, a Schedule I controlled substance, in violation of West Virginia Code § 60A-4-401(a)(ii) (2005). After opening statements were made in the trial of this matter, the State moved to amend the indictment¹ to reflect that methamphetamine is a Schedule II controlled substance and not a Schedule I controlled substance as alleged in the original indictment. Appellant's counsel objected to the motion, but the trial court granted the State's motion to amend the indictment.

During the instructional phase of the trial, the circuit court apprised the jury that the State was required to prove that Mr. Haines had delivered a Schedule II controlled substance to Katrina Hartman in Hampshire County, West Virginia. On October 12, 2005, the jury found Appellant guilty of committing the offense of delivery of a Schedule II controlled substance. By order entered on March 23, 2006, Appellant was sentenced to an indeterminate term of one to five years in the state penitentiary.

As grounds for this appeal, Appellant asserts that only the grand jury has the authority to amend an indictment. Consequently, he contends the trial court committed error by amending the indictment after the jury had been seated and opening statements had been given.

II. Standard of Review

Because this case implicates the grand jury clause of section four of article III of the state constitution, our review of the issue raised in this case is plenary. See Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995) ("Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review."); accord Phillip Leon M. v. Greenbrier County Bd. of Educ., 199 W.Va. 400, 404, 484 S.E.2d 909, 913 (1996) (observing that "interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law"). In addition, we have recognized that de novo review is applied when the sufficiency of an indictment is raised. See Syl. Pt. 2, State v. Miller, 197 W.Va. 588, 476 S.E.2d 535 (1996).

With these standards in mind, we proceed to determine whether the lower court committed an error of constitutional magnitude by amending the indictment returned by the grand jury.

III. Discussion

In syllabus point one of State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995), we recognized 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." At issue in Adams was the previously "unbroken precedent," which held that "no court can make an indictment in the first instance or alter or amend the substance of an indictment returned by a grand jury." 193 W.Va. at 280, 456 S.E.2d at 7; Syl. Pt. 5, in part, State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955).

When asked to reconsider the long-standing approach of requiring that a grand jury be reconvened to approve each and every amendment to an indictment, this Court decided to modify its position by adopting the "contemporary rule." Adams, 193 W.Va. at 281, 456 S.E.2d at 8. Consequently, we held in syllabus point two of Adams:

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.

193 W.Va. at 279, 456 S.E.2d at 6.

In modernizing our approach to the amendment of indictments in Adams, we adopted the following standard for determining which amendments would have to be made by a grand jury versus those that could be accomplished by the trial court.

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.

193 W.Va. at 279, 456 S.E.2d at 6, syl. pt. 3.

The parties to this appeal disagree as to whether the amendment performed by the trial court was "substantial" within the meaning of our standard adopted in Adams or whether it was merely one of form that could properly be executed by the trial court. When we adopted the new standard in Adams, we designated the type of amendment that a trial court is permitted to make. Those cases which do not require resubmission to the grand jury because the change at issue properly qualifies as form in nature "occur[] when the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced." 193 W.Va. at 281, 456 S.E.2d at 8.

Applying the test announced in Adams for determining if the amendment was merely one of form, the State argues Appellant was not misled as to the charge initially filed against him. The original indictment stated that Appellant was charged with delivery of a "controlled substance, namely methamphetamine." In addition, the original indictment placed Appellant on notice that he was charged with committing a felony offense for delivery of a controlled substance in violation of West Virginia Code § 60A-4-401(a)(ii). That statute provides that one who delivers "[a]ny other controlled substance classified in Schedule I, II or III is guilty of a felony and, upon conviction, may be imprisoned in the state correctional facility for not less than one year nor more than five years." W.Va. Code § 60A-4-401(a)(ii). As the State correctly notes, because the penalty for delivery of a Schedule II substance is the same as that for a Schedule I substance, Appellant was not subjected to any additional burden of proof by the amendment of the indictment. Moreover, the original indictment expressly identified the specific controlled substance with which Appellant was charged to have...