State v. Kerns
| Decision Date | 01 July 1992 |
| Docket Number | No. 20485,20485 |
| Citation | 420 S.E.2d 891,187 W.Va. 620 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Gary Paul KERNS, Defendant Below, Appellant. |
Syllabus by the Court
1. Syl. pt. 1, Armstead v. Dale, 170 W.Va. 319, 294 S.E.2d 122 (1982).
2. "Allowance and recovery of costs was unknown at common law, and therefore only costs specifically allowed by statute may be recovered." State v. St. Clair, 177 W.Va. 629, 631, 355 S.E.2d 418, 420 (1987).
3. W.Va.Code, 62-12-9 [1992] does not authorize a circuit court to impose, as a condition of probation, that a convicted criminal defendant pay the fees of a special prosecutor as costs of the prosecution.
4. "Under the 'in possession of' language of Rule 26.2[ (a) ] of the West Virginia Rules of Criminal Procedure, a prosecutor is required to disclose statements to which he has access even though he does not have the present physical possession of the statements." Syl. pt. 5, State v. Watson, 173 W.Va. 553, 318 S.E.2d 603 (1984).
5. "Generally, the admissibility of demonstrative evidence is a matter within the discretion of the trial court." State v. Hardway, 182 W.Va. 1, 7, 385 S.E.2d 62, 68 (1989).
6. " " State v. Fortner, 182 W.Va. 345, 353, 387 S.E.2d 812, 820 (1989), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985).
7. "Before a prosecuting attorney may be disqualified from acting in a particular case and relieved of the duties imposed upon him by the Constitution and by statute, the reasons for his disqualification must appear on the record, and where there is any factual question as to the propriety of the prosecutor acting in the matter, he must be afforded notice and an opportunity to be heard." Syl. pt. 3, State ex rel. Preissler v. Dostert, 163 W.Va. 719, 260 S.E.2d 279 (1979).
8. Where a special prosecutor is appointed to try a criminal case due to a conflict, and the case is dismissed without prejudice, but the defendant is reindicted on the same charges, it is not error for a trial court to deny a motion to remove the special prosecutor if it is shown that the conflict which led to the original removal of the regular prosecutor still exists.
Gregory W. Sproles, Breckinridge, Davis, Sproles & Stollings, Summersville, for appellant.
Mario J. Palumbo, Teresa A. Tarr, Office of the Atty. Gen., Charleston, for appellee.
This case is before the Court upon the appeal of Gary Paul Kerns, from a conviction of three counts of grand larceny in the Circuit Court of Nicholas County. The appellee is the State of West Virginia. Numerous errors on the part of the circuit court are assigned by the appellant.
The appellant was employed by Standard Hydraulics until May, 1984. Standard is a company that repairs hydraulic component units used in mining operations.
In early 1983, while employed at Standard, the appellant formed Dynatec, a company which engaged in business similar to Standard. The appellant met with Daniel Morgan, the purchasing agent for Standard, to discuss Standard's inventory. The appellant told Morgan that he (the appellant) intended to remove from Standard's premises units which were on such premises but were not in the "Cardex" system, which is the mechanism for inventory control at Standard. The appellant told Morgan that it was his intention to use these units at Dynatec.
Morgan then began compiling a list of such units, that is, those located on Standard's premises, but not in the Cardex inventory system. Nine lists were compiled by Morgan into one "master list," which was then given to the appellant.
On three separate occasions during March and/or April, 1983, the appellant and Morgan went to Standard and removed these units from the company's premises. The units were taken to the garage of Thurman Kerns, the appellant's uncle.
Morgan testified that the original market value of the stolen units is in excess of $100,000.
In October, 1983, the appellant asked Morgan if he still had the lists used to designate the units at issue, and Morgan told the appellant that he did not have them.
In May, 1984, the appellant left his employment at Standard, shortly after purchasing Craigsville Electric & Machine Co. (CEMCO).
In 1985, Standard instituted a civil action against the appellant for allegedly breaching a five-year covenant not to compete which was entered into in 1972. In 1986, Standard discovered that the units were missing but had no proof of their theft until 1987, when Morgan turned over the lists to Standard. 1 The civil action between Standard and Morgan was still going on at the time that Morgan turned over the lists to Standard. 2
The appellant was arrested pursuant to a warrant sought by James Brogan, Standard's private investigator. The Nicholas County prosecutor and that entire office voluntarily recused itself due to a conflict of interest. 3 Consequently, Robert P. Martin was appointed special prosecutor and Dan Hardway, who had been retained by Standard as its private prosecutor, was appointed to assist Martin in the criminal proceedings.
In August, 1988, the appellant was indicted on thirteen counts of grand larceny, embezzlement, and receiving stolen goods. However, on May 17, 1989, this Court ordered that that indictment be dismissed because Standard's private prosecutor, Hardway, had appeared before the grand jury in the case. Kerns v. Wolverton, 181 W.Va. 143, 381 S.E.2d 258 (1989). 4
The appellant was again indicted in September, 1989, this time on only three counts of grand larceny. A petit jury found the appellant guilty on all three counts in December, 1990. 5 The appellant was sentenced to: three concurrent one-year prison terms in the Nicholas County Jail; court costs, including those of the special prosecutor, which amounted to $40,842.90; and restitution to Standard over a period of five years, which amounted to $100,374.06. The circuit court then suspended imposition of incarceration and placed the appellant on probation for five years.
As stated previously, the appellant raises several assignments of error. We primarily address the one contention of the appellant that we believe merits reversal and remand of this case. As discussed later herein, however, the appellant's conviction is affirmed with respect to the other assignments of error raised.
The appellant contends that the circuit court committed error by ordering that he pay the fees of the special prosecutor. Under the circumstances of this case, we agree with the appellant's contention. W.Va.Code, 62-12-9 [1992] provides that a circuit court may impose, as a condition of probation, that a convicted criminal defendant pay the costs of the criminal proceedings. Specifically, that section provides, in part:
In addition [to other conditions of probation], the court may impose, subject to modification at any time, any other conditions which it may deem advisable, including, but not limited to, any of the following:
....
(2) That [the probationer] shall pay any fine assessed and the costs of the proceeding in such installments as the court may direct.
In Armstead v. Dale, 170 W.Va. 319, 294 S.E.2d 122 (1982), which involved the rendering of legal services to an indigent criminal defendant, we recognized that this statutory provision permits a trial court to impose payment of attorney's fees if it will not cause the probationer undue hardship. Id., syl. pt. 1.
The State, on the other hand, while recognizing that this is a matter of first impression by this Court, maintains that the circuit court did not commit error by ordering the appellant to pay the fees of the special prosecutor. The State asserts that W.Va.Code, 62-12-9 [1992] would also apply to the situation at hand, where a special prosecutor is involved. We do not agree.
In Armstead, we were addressing a statutory provision under the Public Legal Services Act, the precursor to the current Public Defender Services Act, W.Va.Code, 29-21-1, et seq. 6 Accordingly, syllabus point 1 to Armstead applies to defense attorneys who are appointed due to indigency on the part of the criminal defendant. It would have no application under the circumstances of this case, where the fees at issue are those of a special prosecutor.
In State v. St. Clair, 177 W.Va. 629, 355 S.E.2d 418 (1987), we pointed out that "[a]llowance and recovery of costs was unknown at common law, and therefore only costs specifically allowed by statute may be recovered." Id., 177 W.Va. at 631, 355 S.E.2d at 420. Accordingly, whether a defendant may be ordered to pay the fees of a special prosecutor would depend on the existence of a statute providing for such. Because there is no such statute, the defendant may not be ordered by a circuit court to pay those fees.
Our research of the authority of a court to impose fees of a special prosecutor as a condition of probation reveals that few courts have addressed the issue with a focus on the inherent inequities that may result from such an imposition. For example, in State v. Welkos, 14 Wis.2d 186, 109...
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