State v. Lewis

• Citation: 422 S.E.2d 807,188 W.Va. 85
• Decision Date: 06 July 1992
• Docket Number: No. 20930,20930
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Michael LEWIS, Defendant Below, Appellant.

Page 807

422 S.E.2d 807

188 W.Va. 85

STATE of West Virginia, Plaintiff Below, Appellee, v. Michael LEWIS, Defendant Below, Appellant.

No. 20930.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 1992.

Decided July 6, 1992.

Syllabus by the Court

1. This Court will make an independent determination of whether the matters brought before it lie within its jurisdiction.

2. "The question of certifiability of decisions of a lower court to this Court is one which goes to the jurisdiction of this Court." Syllabus Point 2, State v. Brown, 159 W.Va. 438, 223 S.E.2d 193 (1976).

3. "Our law is in accord with the general rule that the State has no right of appeal in a criminal case, except as may be conferred by the Constitution or a statute." Syllabus Point 1, State v. Jones, 178 W.Va. 627, 363 S.E.2d 513 (1987).

4. W.Va.Code, 58-5-2 (1967), is designed for certifying questions in civil cases. The State's right to an appeal in a criminal case is contained in W.Va.Code, 58-5-30 (1923), and is confined to those cases where an indictment is held bad or insufficient by the judgment or order of the circuit court.

5. The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented.

James B. Lees, Jr., James A. McKowen, Hunt & Wilson, Charleston, for appellant.

Cynthia A. Gaither, Asst. Pros. Atty., Martinsburg, for appellee.

MILLER, Justice:

We granted this case to determine whether the State can obtain review in this Court of a ruling made in a circuit court in a criminal case by certified question under W.Va.Code, 58-5-2 (1967), or by writ of prohibition. For the reasons stated in Part I, infra, we find that we are without jurisdiction to entertain a certified question in a criminal case. In Part II, infra, we recognize that the State has a limited right to seek a writ of prohibition in a criminal case. However, as we point out in Part III, infra, because of an insufficient record, this matter cannot be determined on a writ of prohibition. We, therefore, dismiss this case as improvidently awarded.

I.

The Circuit Court of Greenbrier County certified two questions arising out of a first-degree murder case, which, because of a hung jury, resulted in a mistrial. The certification was made pursuant to W.Va.Code, 58-5-2, and Rule 13 of the Rules of Appellate Procedure. ¹ The first certified question asks whether the trial court properly admitted an alleged co-defendant's confession against the defendant, Michael Lewis. The co-defendant did not testify at the trial. ² The second certified question asks: If the confession was improperly admitted, is a retrial of the defendant barred because of double jeopardy? ³

Both parties consented to the certification of the two questions, and neither claims that we do not have jurisdiction. Nonetheless, we have long held that this Court will make an independent determination of whether the matters brought before it lie within its jurisdiction. Justice Haymond, writing for this Court in Delardas v. Morgantown Water Commission, 148 W.Va. 318, 321, 134 S.E.2d 889, 890 (1964), made this statement: "Though not raised by any of the parties to this controversy, the question, being jurisdictional in character, will be considered by this Court on its own motion at any time during the pendency of the controversy." (Citations omitted).

Turning to the substantive issue of whether we have jurisdiction to consider a certification in a criminal case under W.Va.Code, 58-5-2, we have touched on this question in several cases. For example, in State v. Bailey, 154 W.Va. 25, 173 S.E.2d 173 (1970), we discussed generally our appellate jurisdiction in criminal cases. There, the State sought, by way of a writ of error, to appeal the trial court's ruling that the defendant's confession was inadmissible. We began by noting that the threshold question was whether this Court had jurisdiction to consider the appeal and stated: "The principle is well established that the jurisdiction of this Court, original as well as appellate, is conferred by and is derived wholly from the Constitution and the statutes of this State enacted in pursuance of the Constitution." 154 W.Va. at 28, 173 S.E.2d at 175. (Citations omitted).

We then analyzed Article VIII, Section 3 of our Constitution, which relates to the jurisdiction of this Court, as well as W.Va.Code, 51-1-3 (1923). ⁴ We concluded that neither of these sources authorized the State to use a writ of error in a criminal appeal:

"To apply that provision to the State, as well as the defendant, would give it the clearly unintended, unauthorized and absurd effect of affording the State an appeal in every case, whether the defendant was acquitted or convicted, and would render it violative of Article VIII, Section 5 of the Constitution of this State that no person shall be twice put in jeopardy of life or liberty for the same offense." 154 W.Va. at 31, 173 S.E.2d at 176.

We further recognized in Bailey the State's limited right of appeal conferred by W.Va.Code, 58-5-30 (1923), but found it unavailing:

"It is equally clear that the provisions of Section 30, Article 5, Chapter 58, Code, 1931, relate only to a writ of error upon application of the State by the attorney general or the prosecuting attorney to secure a review of a judgment or an order of a circuit court by which an indictment or a warrant in a criminal case has been held to be bad or insufficient and that they do not apply to an order of a circuit court suppressing evidence sought to be introduced upon the trial of an indictment in a criminal case." 154 W.Va. at 31-32, 173 S.E.2d at 177.

More directly on point is State v. De Spain, 139 W.Va. 854, 81 S.E.2d 914 (1954), where the circuit court certified a question under W.Va.Code, 58-5-2, asking whether it had ruled correctly in refusing to quash a search warrant. We rejected the certification on the basis that this Code section was inapplicable, stating in the Syllabus:

"The action of a trial court in overruling a motion to quash a search warrant cannot be certified to this Court under the provisions of Code, 58-5-2, inasmuch as a search warrant is not a summons, return of service, or pleading within the meaning of that section."

Another certification under W.Va.Code, 58-5-2, was involved in State v. Brown, 159 W.Va. 438, 223 S.E.2d 193 (1976), where the circuit court dismissed an indictment for third offense driving under the influence. In refusing to address the certification under this provision, we stated that "[t]he proper method to challenge the action of a trial court in dismissing an indictment for insufficiency is to appeal such actions under the provisions of Code 58-5-30." ⁵ 159 W.Va. at 441, 223 S.E.2d at 194. (Citation omitted). We then established this principle in Syllabus Point 2 of Brown:

"The question of certifiability of decisions of a lower court to this Court is one which goes to the jurisdiction of this Court." ⁶

Many of these same principles were acknowledged in State v. Jones, 178 W.Va. 627, 363 S.E.2d 513 (1987), where we discussed the State's limited right to appeal in criminal cases under W.Va.Code, 58-5-30, and concluded in Syllabus Point 1:

"Our law is in accord with the general rule that the State has no right of appeal in a criminal case, except as may be conferred by the Constitution or a statute."

We also pointed out in Jones that even where a statute extends to the State the right to appeal, it is still "subject to scrutiny under constitutional double jeopardy principles." 178 W.Va. at 629, 363 S.E.2d at 514. See United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975). The appeal in Jones was dismissed because the State failed to petition for review within the thirty-day time limit contained in W.Va.Code, 58-5-30.

W.Va.Code, 58-5-30, was again discussed in State v. Adkins, 182 W.Va. 443, 388 S.E.2d 316 (1989), where the State attempted to challenge the trial court's final order dismissing the indictments because the defendant was not tried within three terms of court. See W.Va.Code, 62-3-21 (1959). We rejected this attempt, stating in Syllabus Point 2 of Adkins:

"Given its plain and ordinary meaning, the phrase 'bad or insufficient,' as set forth in W.Va.Code § 58-5-30 (1966), cannot be enlarged to encompass a situation in which the trial court ruled that the prosecution failed to prosecute within the three term rule pursuant to W.Va.Code § 62-3-21 (1989)."

More recently, in State v. Walters, 186 W.Va. 169, 411 S.E.2d 688 (1991), we held that the State could not appeal the circuit court's dismissal of a criminal complaint issued by the magistrate court. We pointed out that appeals "under W.Va.Code, 58-5-30 [1931], are restricted to cases involving purportedly 'bad or insufficient indictments' not criminal complaints." 186 W.Va. at 172, 411 S.E.2d at 691.

From these cases, several principles emerge. First, W.Va.Code, 58-5-2, is designed for certifying questions in civil cases. Second, the State's right to an appeal in a criminal case is contained in W.Va.Code, 58-5-30, and is confined to those cases where "an indictment is held bad or insufficient by the judgment or order of the circuit court[.]" Finally, the jurisdiction of this Court, original as well as appellate, is conferred by and is derived wholly from the Constitution and the statutes of this state enacted in pursuance of the Constitution.

II.

We next determine whether the State may bring this...