Woodall v. Laurita
| Citation | 195 S.E.2d 717,156 W.Va. 707 |
| Decision Date | 29 May 1973 |
| Docket Number | No. 13283,13283 |
| Court | Supreme Court of West Virginia |
| Parties | Richard WOODALL v. Joseph A. LAURITA, Jr., etc., et al. |
Syllabus by the Court
1. Where petitioner alleges facts which would demonstrate such an abuse of legitimate powers by an inferior court as to justify the issuance of a writ of prohibition, and where during the pendency of the proceeding in prohibition the circumstances which justified the issuance of the rule to show cause change in such a way that it is improbable that petitioner's rights will continue to be violated, a writ of prohibition will not issue.
2. Where prohibition is sought to restrain a trial court from the abuse of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will review each case on its own particular facts to determine whether a remedy by appeal is both available and adequate, and only if the appellate court determines that the abuse of powers is so flagrant and violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition issue.
Richard E. Rowe, Clark B. Frame, Morgantown, for relator.
Chauncey H. Browning, Jr., Atty. Gen., Richard E. Hardison, Deputy Atty. Gen., E. Leslie Hoffman, III, Asst. Atty. Gen., Charleston, for respondents.
On November 29, 1972, the petitioner applied to this Court for a writ of prohibition to prohibit the Honorable Marvin R. Kiger, Judge of the Circuit Court of Monongalia County, West Virginia, and Joseph A. Laurita, Jr., Prosecuting Attorney of Monongalia County, from trying the petitioner on November 30, 1972. On November 29, 1972 this Court issued a rule to show cause and stayed all further proceedings in the case.
The petitioner was indicted on October 5, 1972 by a grand jury in Monongalia County for the alleged murder on August 5, 1972 of Johnna Lynn Benson, a three-year-old child. Petitioner filed in this Court copies of newspaper stories circulated in Monongalia County in August and November of 1972, which discussed the problem of child abuse in general, and allegedly implied that petitioner was guilty of criminally causing the death of Johnna Lynn Benson. The petitioner alleged in his petition that the avalanche of publicity which appeared in the Morgantown papers was generated by the prosecuting attorney, Joseph A. Laurita, Jr.
Before petitioner's trial in the circuit court was scheduled to begin, petitioner filed a motion in the circuit court for a change of venue because of the hostility precipitated by the unfavorable newspaper publicity. That motion was scheduled for hearing before the circuit court at 1:30 p.m., November 29, 1972, at which time the petitioner avers that he was prepared to present his evidence and argue his motion. At 4:15 p.m. on Tuesday, November 28, 1972, counsel for petitioner was notified that the prosecuting attorney and assistant prosecuting attorney could not appear at the hearing for a change of venue and that therefore the hearing would be canceled. In response to the cancellation of the argument of the motion for change of venue, the petitioner brought this action in prohibition.
The petitioner has successfully demonstrated a multiplicity of pre-trial errors which, if uncorrected, would deny the petitioner a fair trial. The criminal docket was set on November 9, 1972 when the prosecuting attorney posted a list of seventeen cases, sixteen felonies and one misdemeanor, in the courtroom and clerk's office in the courthouse in Morgantown, West Virginia. The list purported to set all seventeen cases for trial on November 13, 1972. According to the deposition of Jean Friend, Clerk of the Circuit Court of Monongalia County, chaos resulted from the posting of this docket, as the lawyers concerned were unable to subpoena witnesses in an orderly fashion. Mrs. Friend further testified that she had not been consulted by the prosecuting attorney or by the judge of the court before the docket was posted.
Chapter 56, Article 6, Section 1 of the Code of West Virginia, 1931, provides that before every term of the circuit court, the clerk shall make out a docket of the cases pending, and that he shall, under control of the court, set the cases to certain days. This statute contemplates an orderly procedure for the setting of the criminal docket, and explicitly contemplates the control of the docket by the court and not by a party litigant. It appears from Mrs. Friend's deposition that the prosecutor did not set any motions for argument; that he failed to set cases for trial in the order in which the defendants were indicted; that he did not set a day certain for each felony case in a reasonable manner; and, that he did not consult with the court and the clerk before posting the cases for trial, all of which is required by the statute.
The evidence adduced concerning the docket is relevant because of the support it gives to petitioner's allegation that the prosecuting attorney unilaternally set criminal motions for argument, canceled such dates as he had previously set for argument, and both scheduled and rescheduled arguments exclusively in accordance with his own convenience. After the rule in prohibition issued, the motion for a change of venue in this case was again set for argument, this time on December 13, 1972, at 1:30 p.m. Two days before the motion was to be heard, the prosecuting attorney changed the date to December 12, 1972 by advising the judge's secretary that he wanted it changed. Defense counsel was not consulted and the judge's secretary rescheduled the hearing. At the hearing on December 12, 1972 defendant appeared with counsel and protested the manner in which the hearing was scheduled as well as the infelicitous time chosen for the hearing. The hearing was set for 1:00 p.m., and it appears that a jury was expected to return at 1:30 p.m. on that same day thus according petitioner a half hour for the introduction of his evidence. At the time of the hearing petitioner did not attempt to argue his motion for a change of venue, and while this Court sympathizes with petitioner's counsel's sense of outrage, we believe that petitioner should have begun introducing his evidence in support of the motion.
Petitioner's most serious allegation, which would assumedly bring the case within the ambit of those instances where a remedy by appeal is inadequate and prohibition is proper, is that the trial judge summarily denied his motion to require the State to produce and allow the petitioner to inspect and copy documents, tangible objects, scientific reports, witnesses' statements, and any exculpatory evidence in the possession or within the...
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State v. Lewis
...State ex rel. Zirk v. Muntzing, 146 W.Va. 878, 122 S.E.2d 851 (1961) (double jeopardy). In Syllabus Point 2 of Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973), we sought to define the type of challenge a criminal defendant must make in order to obtain a writ of prohibition when he ......
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Kennedy v. State
...violative of petitioner's rights as to make a remedy by appeal inadequate, will a writ of prohibition issue." Syl. pt. 2, Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973). 2. "An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows t......
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State ex rel. Morrisey v. W. Va. Office of Disciplinary Counsel
...advisory opinion with which he or she disagrees.10 The writ of prohibition is not a revolving door.See Woodall v. Laurita, 156 W.Va. 707, 713, 195 S.E.2d 717, 721 (1973) (“The piecemeal challenge of discretionary rulings through writs of prohibition does not facilitate the orderly administr......
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State ex rel. Doe v. Troisi
...the subpoenas, respectively. 5 When jurisdiction is not at issue, then the issuance of a writ is discretionary. Woodall v. Laurita, 156 W.Va. 707, 195 S.E.2d 717 (1973). Thus, the exercise of our original jurisdiction is discretionary and is governed by the practical circumstances of the ca......