State v. Macri

• Decision Date: 11 February 1997
• Docket Number: No. 23468,23468
• Citation: 487 S.E.2d 891,199 W.Va. 696
• Court: West Virginia Supreme Court
• Parties: , 119 Ed. Law Rep. 1236 STATE of West Virginia, Plaintiff Below, Appellant, v. Dennis MACRI, Defendant Below, Appellee, and STATE of West Virginia, Plaintiff Below, Appellant, v. Michael J. GREEN, Defendant Below, Appellee, and STATE of West Virginia, Plaintiff Below, Appellant, v. Gerold W. JAKO, Defendant Below, Appellee, and STATE of West Virginia, Plaintiff Below, Appellant, v. Curtis SMELLEY, Defendant Below, Appellee, and STATE of West Virginia, Plaintiff Below, Appellant, v. Richard A. MITCHELL, Defendant Below, Appellee.

Page 891

487 S.E.2d 891

199 W.Va. 696, 119 Ed. Law Rep. 1236

STATE of West Virginia, Plaintiff Below, Appellant, v. Dennis MACRI, Defendant Below, Appellee, and STATE of West Virginia, Plaintiff Below, Appellant, v. Michael J. GREEN, Defendant Below, Appellee, and STATE of West Virginia, Plaintiff Below, Appellant, v. Gerold W. JAKO, Defendant Below, Appellee, and STATE of West Virginia, Plaintiff Below, Appellant, v. Curtis SMELLEY, Defendant Below, Appellee, and STATE of West Virginia, Plaintiff Below, Appellant, v. Richard A. MITCHELL, Defendant Below, Appellee.

No. 23468.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 11, 1996.

Decided Dec. 19, 1996.

Rehearing Refused Feb. 11, 1997.

[199 W.Va. 697] Syllabus of the Court

1. An indictment is considered bad or insufficient pursuant to West Virginia Code § 58-5-30 (1966) when within the four corners of the indictment it: (1) fails to contain the elements of the offense to be charged and sufficiently apprise the defendant of what he or she must be prepared to meet; and (2) fails to contain sufficient accurate information to permit a plea of former acquittal or conviction.

2. "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." Syl. Pt. 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992).

3. "Among the criteria to be considered in determining whether a position is an office or a mere employment are whether the position was created by law; whether the position 4. An assistant prosecuting attorney is not a public officer under West Virginia Code § 7-7-8 (1993) for purposes of the citizenship requirement contained within Article IV, Section 4 of the West Virginia Constitution.

                [199 W.Va. 698]  was designated [as] an office;  whether the qualifications of the appointee have been prescribed;  whether the duties, tenure, salary, bond and oath have been prescribed or required;  and whether the one occupying the position has been constituted a representative of the sovereign."   Syl. Pt. 5, State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970)
                

5. "The position of assistant prosecuting attorney is a 'public officer' within the contemplation of W. Va.Code, 18-5-1a [1967], thereby rendering an individual occupying that position ineligible to serve as a member of any county board of education." Syl. Pt. 2, Carr v. Lambert, 179 W.Va. 277, 367 S.E.2d 225 (1988), as modified.

Melvin W. Kahle, Jr., Prosecuting Attorney Wheeling, for Appellant the State of West Virginia.

Stephen D. Herndon, Wheeling, for Appellee Dennis Macri.

John L. Bremer, Wheeling, for Appellee Michael J. Green.

Don A. Yannerella, Wheeling, for Appellee Curtis Smelley.

Jacob M. Robinson, Wheeling, for Appellees Gerald W. Jako and Richard A. Mitchell.

WORKMAN, Justice:

The plaintiff below and Appellant herein, the State of West Virginia (hereinafter Appellant or State), appeals ¹ the final orders of the Circuit Court of Ohio County that dismissed the indictments returned by the January 1996 Term of the Ohio County Grand Jury against the defendants below and Appellees herein, Dennis Macri, Michael J. Green, Gerold W. Jako, Curtis Smelley, and Richard A. Mitchell (hereinafter Appellees). ² At the time Appellees' alleged criminal activities were presented to the grand jury, Appellant concedes that Randy Dean Gossett, a full-time assistant prosecuting attorney for Ohio County, "was either present in the Grand Jury room or made the actual presentment of the Indictment[s] and testimony to the Grand Jury." Appellant further admits Mr. Gossett is a lifelong resident and citizen of the State of Ohio.

The circuit court dismissed the indictments against Appellees without prejudice holding that Article IV, Section 4 of the West Virginia Constitution requires assistant prosecuting attorneys to be citizens of the State of West Virginia. Consequently, the circuit court concluded Mr. Gossett was an unauthorized person to appear before the grand jury and the indictments brought against Appellees are void per se. On appeal, Appellant argues an assistant prosecuting attorney need not be a citizen of this State and requests this Court to vacate the dismissal orders and remand the cases for further prosecution. For the following reasons, we find the citizenship requirement contained within Article IV, Section 4 of our constitution does not apply to an assistant prosecuting attorney.

I. FACTS

According to Appellant, Mr. Gossett lives in Flushing, Ohio, which is twenty-five miles from Wheeling, West Virginia, the Ohio County seat. Mr. Gossett is licensed to practice

[199 W.Va. 699] law in both Ohio and West Virginia, but he has never practiced law anywhere other than Wheeling. Appellant asserts Mr. Gossett began working in Wheeling in May of 1984, became licensed to practice law in West Virginia in October of 1984, and has remained a member of the West Virginia State Bar since that time. Having taken the oath of office on March 31, 1994, Mr. Gossett began working as a part-time assistant prosecuting attorney on April 1, 1994, and he became the first full-time assistant prosecuting attorney for Ohio County the following year.

II. ARGUMENT

A. State's Ability to Appeal Dismissal of Indictments

On August 16, 1996, Appellees filed a motion to dismiss Appellant's petition for appeal pursuant to Rule 18(a) of our Rules of Appellate Procedure. ³ We denied this motion on September 5, 1996. Nevertheless, to make the reasons for our denial clear, we now find it necessary to address the issues raised therein by Appellees.

We recently discussed the State's limited ability in a criminal case to obtain review of a circuit court's action in State ex rel. Forbes v. Canady, 197 W.Va. 37, 475 S.E.2d 37 (1996). Specifically, we said appellate review of a criminal case is limited to: (1) those situations covered by either constitution or statute; and (2) those situations in which the circuit court acted beyond its jurisdiction. Id. at 41, 475 S.E.2d at 41 (citing Syl. Pt. 1, State v. Jones, 178 W.Va. 627, 363 S.E.2d 513 (1987); Syl. Pt. 5, State v. Lewis, 188 W.Va. 85, 422 S.E.2d 807 (1992)). ⁴ In their motion, Appellees assert the dismissal of the indictments against them do not fall within either of these categories because (1) the indictments were not challenged as being bad or insufficient as required under the relevant statute and (2) the circuit court's action did not deprive Appellant of its prosecutorial rights as the indictments were dismissed without prejudice and new indictments may be brought in each case. Therefore, Appellees claim Appellant has no right to a direct appeal, nor a right to seek a writ of prohibition from this Court. To resolve the issues raised by Appellees, we turn to the relevant statute and Forbes for a more complete explanation of Appellant's right to seek review of the circuit court's decision.

West Virginia Code § 58-5-30 (1966) provides the statutory authority for the State to seek review of a dismissal of an indictment in limited situations. This statute states, in part:

Notwithstanding anything hereinbefore contained in this article, whenever in any criminal case an indictment is held bad or insufficient by the judgment or order of a circuit court, the State, on the application of the attorney general or the prosecuting attorney, may obtain a writ of error to secure a review of such judgment or order by the supreme court of appeals....

W. Va.Code § 58-5-30. As is evident by the language contained therein, this statute only applies when an indictment is found to be either bad or insufficient. In Forbes, we explained that an indictment is considered bad or insufficient

"when within the four corners of the indictment it: (1) fails to contain the elements of the offense to be charged and sufficiently apprise the defendant of what he or she must be prepared to meet; and (2) fails to contain sufficient accurate information to permit a plea of former acquittal or conviction."

Id. (citing Russell v. United States, 369 U.S. 749, 763-64, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240, 250-51 (1962)).

The defendant in Forbes asserted the State had no statutory authority to appeal the circuit court's dismissal of an indictment against him because the indictment was not challenged on the grounds it was either bad or insufficient under West Virginia Code § 58-5-30. Rather, the defendant's challenge to the indictment was based upon the fact that the State violated the mandatory joinder of offenses requirement contained within Rule 8(a) of the West Virginia Rules of Criminal Procedure (hereinafter Rule 8(a)). Id. at 41-42, 475 S.E.2d at 41-42 Upon review of the record, we agreed with the defendant that the evidence demonstrated that the circuit court dismissed the indictment for no reason other than the defendant's challenge under Rule 8(a). In addition, we determined such a dismissal did not render the indictment either bad or insufficient as contemplated by West Virginia Code § 58-5-30. Id. Accordingly, we concluded the State had no authority to appeal the circuit court's decision under this statute. Id. at 42, 475 S.E.2d at 42.

Nevertheless, we found the State possessed the right to have appellate review of the circuit court's decision by seeking a writ of prohibition. Id. We set forth the criteria necessary for the State to be awarded a writ of prohibition in a criminal case in syllabus point five of Lewis which provides:

The State may seek a...