State v. Zain
| Decision Date | 05 November 1999 |
| Docket Number | No. 26194.,26194. |
| Citation | 207 W.Va. 54,528 S.E.2d 748 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellant, v. Fred Salem ZAIN, Defendant Below, Appellee. |
James B. Lees, Jr., Special Prosecutor, Hunt & Lees, L.C., Charleston, West Virginia, Stephen G. Jory, Special Prosecutor, Jory & Smith, Elkins, West Virginia, Attorneys for the Appellant.
Arthur T. Ciccarello, Ciccarello, DelGiudice & La Fon, Charleston, West Virginia, Thomas W. Smith, Charleston, West Virginia, Attorneys for the Appellee. DAVIS, Justice:
The State of West Virginia appeals an order of the Circuit Court of Kanawha County dismissing an indictment against Fred Salem Zain. The circuit court expressed two grounds for dismissing the indictment: (1) the court concluded that the meaning of the terms "person" and "another," as used to identify victims of the crime of obtaining money and other items of value by false pretenses pursuant to W. Va.Code §§ 61-3-24(a) and (b), did not include the State of West Virginia or its political subdivisions; (2) the court concluded that the indictment was vague and therefore insufficient. We find that the State and its political subdivisions are within the meaning of the terms "person" and "another" as contemplated by W. Va. Code §§ 61-3-24(a) and (b), and that any vagueness in the indictment may be cured through the filing of a bill of particulars.
On March 11, 1998, a Kanawha County Grand Jury returned a five count indictment against Fred Salem Zain (hereinafter "Zain"), the appellee, a former serologist for the West Virginia Department of Public Safety Crime Laboratory. All five counts of the indictment alleged that Zain obtained money under false pretenses in violation of W. Va.Code §§ 61-3-24(a) and (b).1 Counts I and II involve Zain's employment with the West Virginia Department of Public Safety, and charge:
COUNT I
From in or about Spring of 1986 to on or about the 26th day of June, 1989, and prior to the date of the finding of this said indictment, in the County of Kanawha, State of West Virginia, FRED SALEM ZAIN, being then and there a member of the West Virginia Department of Public Safety (West Virginia State Police), and having given his oath to truly and faithfully uphold the Constitution and the laws of the State of West Virginia as a State Police Officer and as an employee of the West Virginia State Police Criminal Identification Bureau, Serology Section, did knowingly, unlawfully and feloniously, by false pretense, token and representation that he was truly and accurately performing the duties to which he was assigned, and with intent to defraud the State of West Virginia, obtain from the State of West Virginia the receipt of money, property and goods, to-wit: salary and benefits as an employee of the State of West Virginia; all in violation of Chapter 61, Article 3, Section 24(a), West Virginia Code, 1931, as amended, and against the peace and dignity of the State.
Count's III, IV and V involve trial testimony Zain gave as an expert witness at a time when he was no longer an employee of the West Virginia Department of Public Safety. These three counts charge:
Zain filed a motion to dismiss the indictment. After a hearing on the motion, the circuit court dismissed the indictment by order entered December 14, 1998. It is from this order that the State now appeals.
The State's right to appeal a circuit court's dismissal of an indictment is limited. Pursuant to W. Va.Code § 58-5-30 (1998) (Supp.1999), "[w]henever in any criminal case an indictment is held bad or insufficient by the judgment of a circuit court, the state, on the application of the attorney general or the prosecuting attorney, may appeal such judgment to the supreme court of appeals." While this Court has previously defined the criteria for concluding that an indictment is bad or insufficient under W. Va.Code § 58-5-30, see Syl. pt. 1, State v. Macri, 199 W.Va. 696, 487 S.E.2d 891 (1996), that statute was amended subsequent to our decision in Macri, The effect of the amendment was to modernize the statute. There is nothing in the amended version of W. Va.Code § 58-5-30 that necessitates a change in our prior holding. However, since the Macri holding references an outdated version of W. Va.Code § 58-5-30, we herein update our decision in Macri to reflect the newer version of the statute by holding that an indictment is considered bad or insufficient pursuant to West Virginia Code § 58-5-30 (1998) (Supp.1999) 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.
In the case sub judice, the circuit court found that the indictment failed to provide certain details necessary to the charge and that Zain's alleged conduct was not a crime pursuant to the statute relied upon by the state. Because these findings meet the criteria for concluding that an indictment is bad or insufficient, the State is permitted to appeal the circuit court's order dismissing the indictment. With regard to our review of such an appeal, we have held that "`[g]enerally, the sufficiency of an indictment is reviewed de novo.'" Syl. pt. 7, in part, State v. Bull, 204 W.Va. 255, 512 S.E.2d 177 (1998) (citation omitted).
In connection with this appeal, we are further asked to interpret W. Va.Code § 61-3-24. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). With due regard for these appellate standards, we proceed to address the substantive issues raised by the State.
In its order dismissing the indictment against Zain, the circuit court reasoned that the reference to "another" in W. Va.Code §§ 61-3-24(a) and (b) "can only be read to reasonably mean another person." The circuit court further noted this Court's prior holding that "the word `person' in a statute or ordinance, in the absence of an express provision contrariwise, does...
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...these duties remains subject to the ultimate authority and control of the prosecutor."), modified on other grounds by State v. Zain , 207 W. Va. 54, 528 S.E.2d 748 (1999).16 Mr. Coleman argues that, because there was no elected prosecuting attorney in Kanawha County during the final portion......
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...these duties remains subject to the ultimate authority and control of the prosecutor."), modified on other grounds by State v. Zain, 207 W. Va. 54, 528 S.E.2d 748 (1999).16 Mr. Coleman argues that, because there was no elected prosecuting attorney in Kanawha County during the final portion ......
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...170. FBI Lab Report, supra, note 163 at 28. 171. FBI Lab Report, supra, note 163 at 25-28 (Recommendation XII). 172. State v. Zain, 528 S.E.2d 748 (W.Va. 1999); Ex Zain, 940 S.W.2d 253 (Tex.App. 1997). 173. Matter of Investigation of West Virginia State Police Crime Lab., Serology Div., 438......