State v. Kanney, 15165

• Decision Date: 26 March 1982
• Docket Number: No. 15165,15165
• Citation: 169 W.Va. 764,289 S.E.2d 485
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Alfred Winfred KANNEY.

Page 485

289 S.E.2d 485

169 W.Va. 764

STATE of West Virginia v. Alfred Winfred KANNEY.

No. 15165.

Supreme Court of Appeals of West Virginia.

March 26, 1982.

Syllabus by the Court

"The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position, he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law." Syl. pt. 3, State v. Boyd, W.Va., 233 S.E.2d 710 (1977).

Askin & Burke and Steven M. Askin, Martinsburg, for appellant.

Chauncey H. Browning, Atty. Gen., and Jon Anthony Reed, Deputy Atty. Gen., Charleston, for appellee.

PER CURIAM:

Alfred Winfred Kanney appeals from a conviction of obtaining money by false pretenses in violation of W.Va.Code, 61-3-24. The principal assignment of error relied on for reversal is that the prosecuting attorney's statements during closing argument were so fundamentally improper that they constitute reversible error. We agree and reverse.

Kanney was jointly indicted for obtaining money by false pretenses but was tried separately in the Circuit Court of Pendleton County. The conviction of Kanney's co-indictee was reversed because of prosecutorial misconduct in closing argument in State v. Critzer, W.Va., 280 S.E.2d 288 (1981). Most of the facts surrounding the offense are set out in that opinion and need not be repeated here. Kanney presented an alibi defense at trial and presented evidence for the purpose of showing he had been misidentified as the person who had been given the money by the victims.

The closing argument in this case is remarkedly similar to the closing argument found to constitute reversible error in Critzer. There, as here, the prosecutor failed to set a tone of fairness and impartiality and assumed the role of a partisan. Every prosecuting attorney should know and heed what we said in syllabus point 3 of State v. Boyd, W.Va., 233 S.E.2d 710 (1977):

"The prosecuting attorney occupies a quasi-judicial position in the trial of a criminal case. In keeping with this position he is required to avoid the role of partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial. It is the prosecutor's duty to set a tone of fairness and impartiality, and while he may and should vigorously pursue the State's case, in so doing he must not abandon the quasi-judicial role with which he is cloaked under the law."

Rather than affording Kanney his right to a fair trial, the prosecutor here expressed his personal opinion as to the guilt of the accused, asserted his personal belief in the honesty, sincerity, truthfulness, and good motives of his witnesses, while attacking the honesty and veracity of the defendant's witnesses. For example, Kanney called a former employee of the FBI and CIA to testify in support of his alibi defense. The prosecutor in closing argument indicated that if all people who worked for the CIA and the FBI were like Kanney's...