State v. Pennington
| Decision Date | 18 December 1987 |
| Docket Number | No. 17437,17437 |
| Citation | 365 S.E.2d 803,179 W.Va. 139 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. Rodney K. PENNINGTON. |
1. "Factors to be considered in determining whether there has been extraordinary dereliction are: the clarity and diligence with which the relator has moved to 2. "Most courts have held that in the absence of some express constitutional or statutory provision, a prosecutor has no inherent authority to grant immunity against prosecution." Syl. pt. 16, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d 782 (1984).
assert his right of appeal; the length of time that has been served on the underlying sentence measured against the time remaining to be served; whether prior writs have been filed or granted involving the right of appeal; and the related question of whether resentencing has occurred in order to extend the appeal period. While extraordinary dereliction on the part of the State does not require a showing of malice or ill will, certainly if such is shown it would be a significant factor." Syl. pt. 6, Rhodes v. Leverette, 160 W.Va. 781, 239 S.E.2d 136 (1977)
3. A prosecution witness who has purportedly been afforded immunity from prosecution pursuant to W.Va.Code, 57-5-2 [1931], and who testifies against a defendant in a criminal proceeding is the only person who may assert the protection of that statute in regard to that grant of immunity. The defendant, however, in that criminal proceeding may not assert irregularities in regard to the granting of that immunity from prosecution.
4. "Under circumstances where it can reasonably be inferred that the prosecuting attorney has an interest in the outcome of a criminal prosecution beyond ordinary dedication to his duty to see that justice is done, the prosecuting attorney should be disqualified from prosecuting the case...." Syl. pt. 4, in part, State v. Knight, 168 W.Va. 615, 285 S.E.2d 401 (1981).
5. Where a prosecutor, while involved in his election campaign, made pretrial statements regarding the status of a criminal case and also by newspaper advertisements responded to his opponent's newspaper advertisements which questioned acts of the prosecutor in the conduct of that case, absent evidence that the defendant was prejudiced by the prosecutor's conduct, that conduct alone may not necessarily disqualify the prosecutor in that case.
6. "Where, in a criminal case, the defendant moves for a mistrial on the basis of reversible error not arising from evidentiary insufficiency or prosecutorial or judicial overreach and the mistrial is granted, jeopardy does not ordinarily bar a retrial, because the mistrial motion is functionally equivalent to an appeal based on the same trial error." Syl. pt. 1, State ex rel. Betts v. Scott, 165 W.Va. 73, 267 S.E.2d 173 (1980).
7. Where a defendant moves for a mistrial and fails to withdraw that motion before the motion is granted by the trial court, the trial court's declaration of the mistrial cannot be characterized as sua sponte, when the record does not disclose an objection by the defendant to the trial court's action. Thus, further prosecution of the defendant under the above circumstances does not offend jeopardy principles embodied in the federal and state constitutions. U.S. Const. amend. V; W.Va. Const. art. III, § 5.
8. When a mistrial is granted on motion of the defendant, unless the defendant was provoked into moving for the mistrial because of prosecutorial or judicial conduct, a retrial may not be barred on the basis of jeopardy principles. Oregon v. Kennedy, 456 U.S. 667, 679, 102 S.Ct. 2083, 2091, 72 L.Ed.2d 416, 427 (1982).
Charlie Brown, Atty. Gen., for the state.
Dan L. Hardway, Charleston, for Pennington.
This case is before this Court upon the appeal of Rodney Pennington from his conviction by a jury of first degree murder pursuant to W.Va.Code, 61-2-1 [1987]. It arises from an order of the Circuit Court of Mercer County which denied the appellant's motion for a new trial and sentenced him to life imprisonment with mercy. 1 This The principal assignments of error are as follows: (1) that the appellant is entitled to a new trial or acquittal due to the State's extraordinary dereliction of duty in producing a transcript of his trial; (2) that the principal prosecution witness' testimony was obtained illegally under an improper grant of immunity by the prosecutor, thereby invalidating the witness' testimony and depriving the appellant of due process of law; (3) that the trial court erred in denying the appellant's motion to disqualify the Fayette County Prosecutor from prosecuting the case and in denying the appellant's motion to set aside the verdict based on prosecutorial overreaching and abuse during the course of the trial; (4) that the trial court erred in granting the appellant's second trial (see note 1 supra ) on the grounds that the second trial violated the appellant's right not to be placed twice in jeopardy for the same offense. 2
[179 W.Va. 142] Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.
On April 8, 1981, the victim, Amma Matthews, was found shot to death in the kitchen of her home in Oak Hill, Fayette County. Police summoned to the crime scene could find no evidence of forced entry. The medical reports revealed that Mrs. Matthews had been shot twice: the fatal wound resulted from a bullet to the back of her head.
As the murder investigation continued, the police theorized that the murder weapon might have been one of several guns stolen in a seemingly unrelated burglary approximately a week before the murder. 3
[179 W.Va. 143] The investigation into the burglary culminated in the arrest of Robert Michael Honaker, a friend of the appellant's.
While in jail on the burglary charge, Honaker confessed to stealing the guns and to the murder of Amma Matthews. He then revealed that the appellant had repeatedly asked him to kill Mrs. Matthews for $1,000 so that Mrs. Matthews could not interfere with the appellant's inheritance from his grandfather's estate. In exchange for this incriminating testimony against the appellant at trial, the Fayette County Prosecuting Attorney promised immunity to Honaker for the first degree murder charge. No order approved by a court was entered granting immunity.
At trial, Honaker described in detail the events that had transpired on the night of Amma Matthews' murder. The witness described how the appellant drove him to the appellant's home to obtain the loaded gun from the appellant's wife. Honaker stated that the pair then drove to the victim's house, where the appellant advised Honaker as to what to say in order to assure that the victim would allow him to enter her home. Honaker testified that the appellant waited in his car while he went to the victim's kitchen door and committed the murder. Subsequently, the witness said that he and the appellant drove around, disposed of the murder weapon and then proceeded to meet some friends at a nightclub.
The appellant's description of the events on the night of the murder was consistent with Honaker's testimony except that the appellant denied that he had asked Honaker to murder the victim and denied knowing that Honaker had intended to commit the murder that evening. The appellant testified that he and Honaker were in the neighborhood so that Honaker could borrow money from his brother-in-law, a neighbor of Mrs. Matthews. The appellant admitted that he had heard the gunshots, but noted that when Honaker returned to his car and stated that he had murdered Mrs. Matthews, he was confused about what to do and was not sure if he should believe him. Nevertheless, the appellant failed to notify the authorities of what had occurred.
At the conclusion of the trial, the jury returned a verdict of guilty of first degree murder with a recommendation of mercy.
The first issue before us in this case is whether the State was extraordinarily derelict in producing the appellant's trial transcript, thereby entitling the appellant to acquittal of his first degree murder charge, or, in the alternative, a new trial.
The appellant contends that he has been denied his right to an appeal and due process of law because the trial transcript of his second trial was not completed until approximately two years after the completion of his trial. He contends that this delay in the production of his trial transcript is tantamount to a complete denial of the transcript.
The State, on the other hand, maintains that the appellant has failed to provide the necessary record to determine the appellant's allegations of extraordinary dereliction. The State further asserts that this claim would be more appropriately raised in a habeas corpus proceeding.
It is fundamental that due process requires the State to afford a defendant a Factors to be considered in determining whether there has been extraordinary dereliction are: the clarity and diligence with which the relator has moved to assert his right of appeal; the length of time that has been served on the underlying sentence measured against the time remaining to be served; whether prior writs have been filed or granted involving the right of appeal; and the related question of whether resentencing has occurred in order to extend the appeal period. While extraordinary dereliction on the part of the State does not require a showing of malice or ill will, certainly if such is shown it would be a significant factor.
trial transcript upon timely request. See, e.g., State ex rel. Johnson v. McKenzie, 159 W.Va. 795, 800, 226 S.E.2d 721, 724 (1976). The standard which this Court has adopted to determine if a defendant has been denied due process with respect to his right regarding appeal is whether there has been "extraordinary...To continue reading
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