O. C. Spaulding
Prosecuting Attorney of Putnam County
Winfield, West Virginia
Attorney for the Petitioner
H. F. Salsbery, Jr.
Charleston, West Virginia
Monty L. Preiser
Preiser Law Offices
Charleston, West Virginia
Attorney for the Respondents
CHIEF JUSTICE MILLER delivered the Opinion of the Court.
1. Rule 15 of the West Virginia Rules of Criminal
Procedure permits a deposition to be compelled in a criminal case
only under very limited conditions, i.e., where, due to exceptional
circumstances, the deposition is necessary, in the interest of
justice, to preserve the deponent's testimony for use at trial.
2. Rule 15 of the West Virginia Rules of Criminal
Procedure authorizes a court to order a deposition only when the
witness is unavailable for trial and the deposition is needed to
preserve the testimony for trial. It is to be read in conjunction
with W. Va. Code, 62-3-1 (1981).
3. The fact that a potential witness in a criminal
proceeding is unwilling to talk to a defendant's attorney or
investigator is not, alone, sufficient to authorize a court-ordered
deposition under Rule 15 of the West Virginia Rules of Criminal
Procedure and W. Va. Code, 62-3-1 (1981).
4. "'"A writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction exceeds its legitimate powers." Syl. pt. 1, State ex rel. UMWA International Union v. Maynard, 342 S.E.2d 96 (W. Va. 1985).' Syllabus Point 4, State ex rel. Ayers v. Cline, ___ W. Va. ___, 342 S.E.2d 89 (1985)."
Syllabus Point 3, State ex rel. Moomau v. Hamilton, ___ W. Va. ___,
400 S.E.2d 259 (1990).
Miller, Chief Justice:
In this original proceeding in prohibition, the relator,
the Prosecuting Attorney of Putnam County, seeks to prevent the
respondent judge from requiring a potential witness for the State
in a criminal prosecution to give a deposition to the defense. We
find that the court exceeded its legitimate powers in ordering the
deposition, and we grant the writ of prohibition prayed for.
The defendant below, Michael B. Pauley, was indicted in
the Circuit Court of Putnam County on a charge of first-degree
murder in connection with the August 29, 1990 death of James C.
Lewis. The defendant had previously dated the decedent's
granddaughter, Angela Lewis.
On January 17, 1991, the defendant filed a motion to
compel Ms. Lewis to give a deposition to the defense. The motion
stated that Ms. Lewis had refused to speak to defense counsel or
his private investigator and had failed to appear at the
preliminary hearing. The defense asserted that Ms. Lewis would be
similarly "unavailable" for trial and sought a deposition for
discovery purposes, apparently on the ground that the State had
failed to obtain a detailed statement from her concerning her
relationship with the defendant.
After a hearing, the circuit court, by order dated July
15, 1991, granted the motion. The prosecuting attorney
subsequently instituted these proceedings to prevent enforcement of
the circuit court's order.
Rule 15 of the West Virginia Rules of Criminal Procedure permits a deposition to be compelled in a criminal case only under very limited conditions, i.e., where, due to exceptional circumstances, the deposition is necessary, in the interest of justice, to preserve the deponent's testimony for use at trial.See footnote 1 Our rule is patterned after Rule 15 of the Federal Rules of Criminal Procedure. There is virtual unanimity in federal cases that Rule 15 authorizes a court to order a deposition only when the witness is unavailable for trial and the deposition is needed to preserve the testimony for trial. E.g., United States v. Acevedo-Ramos, 842 F.2d 5 (1st Cir. 1988); United States v. Ismaili, 828 F.2d 153 (3d Cir. 1987), cert. denied, 485 U.S. 935, 99 L. Ed. 2d
271, 108 S. Ct. 1110 (1988); United States v. Rivera, 859 F.2d 1204
(4th Cir. 1988), cert. denied, 490 U.S. 1020, 104 L. Ed. 2d 180,
109 S. Ct. 1743 (1989); United States v. Kehm, 799 F.2d 354 (7th
Cir. 1986); United States v. Sines, 761 F.2d 1434 (9th Cir. 1985);
United States v. Alvarez, 837 F.2d 1024 (11th Cir.), cert. denied,
486 U.S. 1026, 100 L. Ed. 2d 234, 108 S. Ct. 2003 (1988).
In State v. Ferrell, 174 W. Va. 697, ___, 329 S.E.2d 62,
64 (1981), we quoted from United States v. Rich, 580 F.2d 929, 934
(9th Cir.), cert. denied, 439 U.S. 935, 58 L. Ed. 2d 331, 99 S. Ct.
330 (1978), where the court held that the exceptional circumstances
which justify a court-ordered deposition were limited to criminal
cases where the witness is unable to attend trial and stated that
"'the rule contemplates a party taking the deposition of only his
own witness, a requirement that comports with the purpose of
preserving testimony.'" We have made similar statements about Rule
15 in other cases. E.g., State v. Judy, ___ W. Va. ___, ___, 372
S.E.2d 796, 801 (1988) ("Rule 15 . . . is not designed as a
discovery rule[.]"); State v. Lassiter, ___ W. Va. ___, ___, 354
S.E.2d 595, 603 (1987) ("Rule 15 allows depositions to be taken
. . . in order to preserve testimony for use at trial." (Emphasis
In Ferrell, we also recognized that Rule 15 must be
considered in the light of W. Va. Code, 62-3-1 (1981).See footnote 2 The
purpose of this provision, which lists some of the reasons for a
court-ordered deposition, such as where a witness is aged or infirm
or absent from the state, is to preserve testimony which the court
has found to be "necessary and material" at trial.See footnote 3
In this case, the circuit court did not elaborate upon
its reasons for ordering Ms. Lewis to submit to the defense
deposition. There is, however, no showing that Ms. Lewis will be
unavailable for trial. The fact that she was unwilling to talk to
the defendant's attorney or investigator is not, alone, sufficient
to authorize a court-ordered deposition under Rule 15 and W. Va.
Code, 62-3-1. Moreover, it appears that the State had turned over
to the defendant's attorney two written statements it had obtained
from Ms. Lewis and that she had been interviewed by a private
psychiatrist retained by the defendant. In light of these facts,
we find no justification for the circuit court's order compelling
Ms. Lewis to submit to the deposition.
The rule in prohibition proceedings was most recently
stated in Syllabus Point 3 of State ex rel. Moomau v. Hamilton, ___
W. Va. ___, 400 S.E.2d 259 (1990):
"'"A writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction exceeds its legitimate powers." Syl. pt. 1, State ex rel. UMWA International Union v. Maynard, 342 S.E.2d 96 (W. Va. 1985).' Syllabus Point 4, State ex rel. Ayers v. Cline, ___ W. Va. ___, 342 S.E.2d 89 (1985)."
We conclude that the circuit court here exceeded its legitimate
authority in ordering Ms. Lewis to be deposed in this case.
For the reasons stated above, the writ of prohibition
prayed for is granted.
Footnote: 1The relevant portion of Rule 15 is:
"(a) . . . Whenever due to
exceptional circumstances of the case it is
in the interest of justice that the testimony
of a prospective witness of a party be taken
and preserved for use at trial, the court may
upon motion of such party and notice to the
parties order that testimony of such witness
be taken by deposition[.]"
We note that Rule 804(b)(1) of the West Virginia Rules of Evidence specifically provides that a deposition is not excluded from evidence by the hearsay rule where there has been the right to develop the testimony by direct, cross, or redirect examination.
Footnote: 2In Syllabus Point 3 of Ferrell, we stated: "W. Va. Code 62-3-1  must be read in pari materia with W.Va.R.Crim.P. 15, but the ultimate decision to order the taking of an out-of-state deposition at public expense rests in the sound discretion of the trial judge."
Footnote: 3The relevant portion of W. Va. Code, 62-3-1, states:
"If any witness for the accused be a
nonresident of the State, or absent therefrom
in any service or employment, so that service
of a subpoena cannot be had upon him in this
State, or is aged or infirm so that he cannot
attend upon the court at the trial, the
accused may present to the court in which the
case is pending, or to the judge thereof in
vacation, an affidavit showing such facts,
and stating therein what he expects to prove
by any such witness, his name, residence, or
place of service or employment; and if such
court or judge be of the opinion that the
evidence of any such witness, as stated in
such affidavit, is necessary and material to
the defense of the accused on his trial, an
order may be made by such court or judge for
the taking of the deposition of any such
This section authorizes court-ordered depositions of defense witnesses only. A similar situation existed in Rule 15 of the Federal Rules of Criminal Procedure until 1975 when it was changed to permit a deposition of a Government witness. The 1975 Committee Note to Rule 15 suggests that the original refusal to permit the Government the right to compel a deposition might have been based on concern over the Sixth Amendment right of confrontation and notes that such doubts seem to have been resolved by California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930 (1970). See 8 Moore's Federal Practice: Criminal § 15-7 & -8 (1991).