Richard M. Gutmann
Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellant
Harry A. Smith, III
Jory & Smith
Elkins, West Virginia
Attorney for the Appellee
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. Ordinarily, the dismissal of an indictment on motion of the defendant does not foreclose the prosecutor from procuring a new indictment.
2. The dismissal of an indictment by a trial court does
not result in the charge being classified a not true bill.
3. West Virginia Code § 52-2-9 (1981) has no
applicability unless a grand jury returns a not true bill.
The appellant, the State of West Virginia, files this
petition for appeal, arguing that the Randolph County Circuit Court
order of July 11, 1991, was erroneous in dismissing Indictment No.
90-F-97 and in refusing to reconsider the dismissal of July 11,
1991, by order entered on November 14, 1991. The appellant also
argues that the court erred in dismissing Indictment No. 91-F-13,
by order dated October 30, 1991. We agree, and for the reasons
stated below, reverse the October 30, 1991, order of the Randolph
County Circuit Court insofar as it applies to Indictment No. 91-F-13.
Mr. Seibert, the appellee, was a teacher at the North
School in Elkins, West Virginia. This case involves the alleged
sexual assault by the appellee of a seven-year-old boy in the
appellee's learning disability class. On April 17, 1990, a
Randolph County Grand Jury indicted the appellee on one count of
first-degree sexual assault under W.Va. Code § 61-8B-3 (1984) and
one count of third-degree sexual assault pursuant to W.Va. Code
§ 61-8B-5 (1984). The grand jury initially declined to indict the
appellee, although nothing in the record indicates that a not true
bill was returned, as argued by both the appellee and the
appellant. During this same grand jury, the prosecutor brought in
the investigating State Police officer to testify, and the grand
jury then voted to return a true bill on April 17, 1990. This
indictment was assigned Indictment No. 90-F-74. However, on April
20, 1990, Judge Nuzum, upon motion filed by the appellee, under
seal, ruled that the grand jury did not return an indictment
against the appellee, despite the existence of a written indictment
identified as Indictment No. 90-F-74. The court simply ruled that
an indictment was not returned and ordered it removed from the
record by order entered May 17, 1990. The State filed a petition
for appeal of that dismissal to this Court, which was refused.
Therefore, that matter is not before us.
On September 18 and 19, 1990, the State again presented
the charges to another Randolph County grand jury, involving the
same incident of alleged sexual assault. During that grand jury
period, the grand jury indicted about thirty individuals. Thus, on
September 19, 1990, the appellee was indicted on the same charges
as contained in the April, 1990, indictment. That indictment was
assigned Indictment No. 90-F-97. On October 18, 1990, the appellee
filed a motion to dismiss Indictment No. 90-F-97. However, the
hearing on the motion to dismiss was delayed pending resolution of
the State's motion to recuse Judge Nuzum.
On January 15, 1991, the State again presented the
charges, for a third time, to another Randolph County grand jury.
The appellee was again indicted on the same charges of first-degree
sexual assault and third-degree sexual assault (Indictment No. 91-F-13), while the September, 1990, indictment (Indictment No. 90-F-97) was still pending. The appellee then filed a motion to dismiss
Indictment No. 91-F-13 pursuant to W.Va. Code § 52-2-9 (1981),
which states that "[a]lthough a bill of indictment be returned not
a true bill, another bill of indictment against the same person for
the same offense may be sent to and acted on by the same or another
On February 19, 1991, this Court granted the State's
motion to recuse Judge Nuzum and appointed Judge Craig Broadwater
to preside over this case. Thus, on May 3, 1991, a hearing was
held on the allegations raised with respect to the September, 1990,
indictment (Indictment No. 90-F-97) regarding prosecutorial
misconduct and press coverage of the proceedings witnessed by the
By order dated July 11, 1991, the trial court dismissed
Indictment No. 90-F-97. By second order entered on November 14,
1991, the trial court refused to reconsider the dismissal of
Indictment No. 90-F-97 and affirmed the July 11, 1991, order. By
order dated October 30, 1991, the court dismissed Indictment No.
91-F-13, based upon its interpretation of W.Va. Code § 52-2-9. The
State of West Virginia appeals the orders based upon W.Va. Code
§ 58-5-30 (1981), which provides the State power to appeal
"whenever . . . an indictment is held bad or insufficient by the
judgment or order of a circuit court, the State, on the application
of the . . . prosecuting attorney, may obtain a writ of error to
secure a review of such judgment or order by the supreme court of
appeals." For the reasons stated below, we agree that the trial
court erred in dismissing Indictment No. 91-F-13 and, therefore, we
reverse the October 30, 1991, order.
The basis for this appeal is the trial court's order of
October 30, 1991, based upon its interpretation of W.Va. Code § 52-2-9 (1981), which provides:
Although a bill of indictment be returned
not a true bill, another bill of indictment
against the same person for the same offense
may be sent to and acted on by the same or
another grand jury.
This provision is triggered only when a not true bill has
been returned. Here, no not true bills were involved. The first
indictment was dismissed, but no reasons were placed on the record.
The court merely stated that it found no indictment to have been
returned. However, this is patently untrue because an indictment
was returned, signed by the grand jury foreman and the prosecutors,
given a number, and is in the appellate record. The second
indictment was likewise returned by the grand jury, but was
dismissed by the court on motion of the appellee. Again, this was
a true bill.
In State v. Childers, 187 W.Va. 54, 415 S.E.2d 460
(1992), we indicated that ordinarily, the dismissal of an
indictment on motion of the defendant does not foreclose the
prosecutor from procuring a new indictment. In Childers, we found
on appeal that the State's indictment was defective, but stated in
syllabus point 3, in part: "Upon the reversal of a criminal case
on appeal, the State is generally not precluded by double jeopardy
principles from procuring a new indictment and retrying the
defendant . . . ."
Thus, it is clear that both the second and third
indictments were properly procured by the prosecutor. Since there
had been no not true bills ever returned, it is apparent that W.Va.
Code § 52-2-9 has no applicability and the trial court erred in
dismissing the third indictment on this basis.
Accordingly, we reverse the October 30, 1991, order of
the Circuit Court of Randolph County and hold that Indictment No.
91-F-13 was improperly dismissed.