State v. Johnson, No. 22954

CourtSupreme Court of West Virginia
Writing for the CourtMcHUGH
Citation476 S.E.2d 522,197 W.Va. 575
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Robert C. JOHNSON, Defendant Below, Appellant.
Decision Date21 May 1996
Docket NumberNo. 22954

Page 522

476 S.E.2d 522
197 W.Va. 575
STATE of West Virginia, Plaintiff Below, Appellee,
v.
Robert C. JOHNSON, Defendant Below, Appellant.
No. 22954.
Supreme Court of Appeals of West Virginia.
Submitted Jan. 16, 1996.
Decided May 21, 1996.

Page 524

[197 W.Va. 577] Syllabus by the Court

1. "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).

2. "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).

3. If the proof adduced at trial differs from the allegations in an indictment, it must be determined whether the difference is a variance or an actual or a constructive amendment to the indictment. If the defendant is not misled in any sense, is not subjected to any added burden of proof, and is not otherwise prejudiced, then the difference between the proof adduced at trial and the indictment is a variance which does not usurp the traditional safeguards of the grand jury. However, if the defendant is misled, is subjected to an added burden of proof, or is otherwise prejudiced, the difference between the proof at trial and the indictment is an actual or a constructive amendment of the indictment which is reversible error.

4. " 'A judgment will not be reversed for any error in the record introduced by or invited by the party seeking reversal.' Syllabus Point 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 (1966)." Syl. pt. 2, Young v. Young, 194 W.Va. 405, 460 S.E.2d 651 (1995).

Page 525

[197 W.Va. 578] 5. "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." Syl. pt. 1, Conner v. Griffith, 160 W.Va. 680, 238 S.E.2d 529 (1977).

6. "Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Syl. pt. 8, State v. Zaccagnini, 172 W.Va. 491, 308 S.E.2d 131 (1983).

George F. Fordham, Clarksburg, for Appellant.

Darrell V. McGraw, Jr., Attorney General, Scott E. Johnson, Assistant Attorney General, for Appellee.

McHUGH, Chief Justice:

The defendant, Robert C. Johnson, appeals his jury conviction in the Circuit Court of Upshur County of first offense driving under the influence of alcohol (hereinafter "DUI"). 1 The circuit court sentenced the defendant to forty days in the county jail, fined him $100.00, and assessed against him the court costs. For reasons stated below, we affirm the defendant's conviction.

I.

On May 9, 1993, a police officer saw the defendant driving his car left of the center line. Upon stopping the defendant's vehicle, the police officer noticed a strong odor of alcohol coming from the defendant. The police officer conducted a series of field sobriety tests which the defendant failed. Thus, the police officer placed the defendant under arrest and transported him to the jail in order to administer a secondary breath test.

Upon arriving at the jail, the defendant requested that he be allowed to speak to an attorney. The police officer informed the defendant that he could do so only after the secondary breath test was given. The defendant refused to submit to the secondary breath test.

Thereafter, the police officer issued a traffic citation for driving left of center. The defendant pled guilty to driving left of center and paid a fine and court costs on the night of his arrest.

Additionally, the police officer filed a criminal complaint charging the defendant with second offense DUI after a check on the defendant's driver's license revealed that he had a 1983 conviction for DUI. Subsequently, the State learned that the defendant had been convicted in 1988 of DUI in Maine. Thus, an indictment was returned charging the defendant with third offense DUI pursuant to W. Va.Code, 17C-5-2(j) [1986].

However, prior to trial the trial judge found that the defendant's previous two offenses could not be used for enhancement purposes because the 1983 DUI offense had been dismissed for failure to prosecute and because the State had failed to produce a certified copy of the 1988 DUI conviction in Maine. Thus, the case proceeded to trial on a charge of first offense DUI.

On appeal the defendant raises three issues which we will address. The first two issues concern the indictment and the third issue concerns double jeopardy principles.

II.

The first issue is whether the trial court erred in refusing to quash the indictment on the grounds that the indictment charged an offense which the State could not possibly prove. The indictment charged the defendant with third offense DUI; however, as stated above, prior to trial the trial judge found that the two underlying DUI offenses in the indictment could not be used for enhancement

Page 526

[197 W.Va. 579] purposes. The trial judge expressed his desire to redact the indictment on the day of the trial in order to reflect that the defendant was only being charged with first offense DUI.

The defendant's trial counsel objected to the indictment being redacted, and argued that the trial judge should dismiss the indictment and permit the State to re-file a misdemeanor charge for first offense DUI in magistrate court. The trial judge refused to dismiss the indictment and reiterated his willingness to redact the indictment. The defendant's trial counsel continued to object to the indictment being redacted, so the trial judge did not change the indictment. The jury verdict form, however, only allowed the jury to find the defendant guilty or not guilty of first offense DUI.

This Court recently discussed whether a trial judge has authority to redact an indictment in State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995). We recognized in Adams, 193 W.Va. at 280, 456 S.E.2d at 7, that " ' "[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)." 2 However, in some situations resubmitting the indictment to the grand jury in order to make nonsubstantive changes would serve no other purpose than to waste time, money and energy. Id. at 283 n. 12, 456 S.E.2d at 10 n. 12. Thus, this Court held in Adams that a trial judge has authority under certain circumstances to redact the 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.

Syl. pts. 2 and 3, Adams, supra.

Adams does not change or undermine the function of the grand jury in any way. Adams simply recognizes that when the amendment or alteration to the indictment is one of "form" rather than "substance," then judicial economy is better served by allowing the trial judge to make the amendment or alteration rather than having the grand jury reconvene. We further stated in Adams that the "decision whether the change is merely as to form as opposed to a new offense is best left to the discretion of the circuit court." Id. at 283, 456 S.E.2d at 10.

In the case before us, the trial judge wanted to redact the indictment prior to trial by changing the charge from third offense DUI to first offense DUI in order to reflect the proof that would be adduced at trial. Clearly, this would be a change in form rather than substance because the defendant would not be misled in any sense, would not be subjected to any added burden of proof, and would not be otherwise prejudiced.

The factual allegations which supported the defendant's conviction for first offense DUI were set forth in the indictment. The trial judge, wishing to narrow the charge, offered to strike the factual allegations relating to the two prior DUIs. In other words, he did not want to create a new charge. This action would not have interfered with the notice, double jeopardy, and screening functions of the grand jury indictment. Thus,

Page 527

[197 W.Va. 580] based upon the principles set forth in Adams,...

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34 practice notes
  • State v. McGilton, No. 11–0410.
    • United States
    • Supreme Court of West Virginia
    • 19 Junio 2012
    ...this Court's past pronouncements regarding the exclusivity of such analysis. The State cites our recent admonition in State v. Johnson, 197 W.Va. 575, 585, 476 S.E.2d 522, 532 (1996), where we stated “that Blockburger is the only test to be used when determining whether multiple prosecution......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • 17 Noviembre 2011
    ...offered at trial indicated that he used silver revolver).223 W.Va. at 580–581, 678 S.E.2d at 313–314. Moreover, in State v. Johnson, 197 W.Va. 575, 581–582, 476 S.E.2d 522, 528–529 (1996), this Court explained that “[w]hether the difference between the indictment and proof adduced at trial ......
  • State v. McIntosh, No. 26849.
    • United States
    • Supreme Court of West Virginia
    • 12 Julio 2000
    ...S.E.2d 42, 57 (1961); see State ex rel. State v. Reed, 204 W.Va. 520, 514 S.E.2d 171 (1999). In syllabus point three of State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996), this Court If the proof adduced at trial differs from the allegations in an indictment, it must be determined wheth......
  • State v. Mann, No. 25767.
    • United States
    • Supreme Court of West Virginia
    • 11 Junio 1999
    ...will not be reversed for any error in the record introduced by or invited by the party seeking reversal.'" Syl. pt. 4, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996) (quoting Syl. pt. 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 D. Prosecutorial Misconduct The fourth assignment......
  • Request a trial to view additional results
34 cases
  • State v. McGilton, No. 11–0410.
    • United States
    • Supreme Court of West Virginia
    • 19 Junio 2012
    ...this Court's past pronouncements regarding the exclusivity of such analysis. The State cites our recent admonition in State v. Johnson, 197 W.Va. 575, 585, 476 S.E.2d 522, 532 (1996), where we stated “that Blockburger is the only test to be used when determining whether multiple prosecution......
  • State v. McCartney, No. 101457.
    • United States
    • Supreme Court of West Virginia
    • 17 Noviembre 2011
    ...offered at trial indicated that he used silver revolver).223 W.Va. at 580–581, 678 S.E.2d at 313–314. Moreover, in State v. Johnson, 197 W.Va. 575, 581–582, 476 S.E.2d 522, 528–529 (1996), this Court explained that “[w]hether the difference between the indictment and proof adduced at trial ......
  • State v. McIntosh, No. 26849.
    • United States
    • Supreme Court of West Virginia
    • 12 Julio 2000
    ...S.E.2d 42, 57 (1961); see State ex rel. State v. Reed, 204 W.Va. 520, 514 S.E.2d 171 (1999). In syllabus point three of State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996), this Court If the proof adduced at trial differs from the allegations in an indictment, it must be determined wheth......
  • State v. Mann, No. 25767.
    • United States
    • Supreme Court of West Virginia
    • 11 Junio 1999
    ...not be reversed for any error in the record introduced by or invited by the party seeking reversal.'" Syl. pt. 4, State v. Johnson, 197 W.Va. 575, 476 S.E.2d 522 (1996) (quoting Syl. pt. 21, State v. Riley, 151 W.Va. 364, 151 S.E.2d 308 D. Prosecutorial Misconduct The fourth assignment......
  • Request a trial to view additional results

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