Mario J. Palumbo, Attorney General
Michael J. Basile, Assistant Attorney General
Charleston, West Virginia
Attorney for the Appellant
Thomas R. Michael
Michael & Kupec
Clarksburg, West Virginia
Attorney for the Appellee
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "Prosecutorial disqualification can be divided into
two major categories. The first is where the prosecutor has had
some attorney-client relationship with the parties involved whereby
he obtained privileged information that may be adverse to the
defendant's interest in regard to the pending criminal charges. A
second category is where the prosecutor has some direct personal
interest arising from animosity, a financial interest, kinship, or
close friendship such that his objectivity and impartiality are
called into question." Syllabus point 1, Nicholas v. Sammons, 178
W.Va. 631, 363 S.E.2d 516 (1987).
2. "As the primary responsibility of a prosecuting
attorney is to seek justice, his affirmative duty to an accused is
fairness." Syllabus point 2, State v. Britton, 157 W.Va. 711, 203
S.E.2d 462 (1974).
3. No evidence that is acquired from a parent or any
other person having custody of a child, as a result of medical or
mental examinations performed in the course of civil abuse and
neglect proceedings, may be used in any subsequent criminal
proceedings against such person. W.Va. Code § 49-6-4(a) (1992).
In an order dated November 6, 1991, the Circuit Court of
Harrison County disqualified the Prosecuting Attorney of Harrison
County and his assistants from pursuing sexual abuse charges
against the appellee. The basis for this decision was the
prosecution's representation of the State of West Virginia in a
civil abuse and neglect case which arose from the same facts and
circumstances. The appellant, the State of West Virginia, now
appeals from this order.
A child abuse and neglect petition was initially filed
against the appellee, James R., and his wife, Cindy R., in the
Juvenile Court of Harrison County on March 4, 1991. The petition
alleged that the appellee sexually abused his three children and
also forced his wife to engage in sexual relations with their
oldest son, who was twelve years of age.
On April 11, 1991, the appellee moved for an improvement
period which is provided by W.Va. Code § 49-6-2(b).See footnote 1 The circuit
court granted the appellee's motion on April 29, 1991, and set
forth various terms and conditions of the improvement period, one
of which was the requirement that the appellee undergo a
The appellee subsequently filed a motion seeking a grant
of immunity that would serve to suppress any inculpatory evidence
revealed in the course of his psychological treatment. The
appellee also sought to disqualify the prosecuting attorney and his
assistants from pursuing criminal charges against him because of
their involvement in the civil abuse and neglect case.
A hearing was held on this motion on August 13, 1991.
The appellee argued that the prosecuting attorney would obtain
privileged information as a result of his involvement in the abuse
and neglect proceeding, and he should therefore be disqualified and
precluded from pursuing any criminal charges against the appellee
that would arise from these proceedings. The State pointed out
that W.Va. Code § 49-6-4(a) specifically prohibits the use of such
evidence in subsequent criminal proceedings. Nonetheless, the
circuit court found in favor of the appellee and disqualification,
but did not enter an order at this time.
On September 9, 1991, a Harrison County grand jury
returned a nine-count indictment against the appellee, alleging
that he had committed various sexual offenses against his own
children as well as other children who lived in his home.See footnote 2
On September 25, 1991, a hearing was held on the
appellee's motion to dismiss the indictment and his motion to have
the court enter an order reflecting its decision regarding
prosecutorial disqualification. First, the lower court dismissed
the indictment, and then on November 6, 1991, an order was entered
disqualifying the prosecutor's office from pursuing criminal
charges against the appellee.
On appeal, the State of West Virginia now argues that the
circuit court erred in disqualifying the prosecutor. The State
contends that the prosecutor's office has not represented
conflicting interests in the case. Furthermore, the State points
out that "[a] prosecutor's duty as a public officer is to serve the
interest of the State in securing convictions of those who violate
the laws of this organized society." State v. Britton, 157 W.Va.
711, 715, 203 S.E.2d 462, 466 (1974).
In this instance, the prosecution maintains that its first duty as counsel for the State in the abuse and neglect proceeding was "to assure the safety and well-being of the abused children." However, "once the prosecutor had reason to believe the appellee sexually abused his children and others, there was a statutory duty incumbent upon him to prosecute criminal charges against the appellee." It is the State's position that "[c]learly, these interests are not conflicting." We agree.
In Nicholas v. Sammons, 178 W.Va. 631, 363 S.E.2d 516
(1987), at syllabus point 1, we recognized two major categories of
The first is where the prosecutor has had some attorney-client relationship with the parties involved whereby he obtained privileged information that may be adverse to the defendant's interest in regard to the pending criminal charges. A second category is where the prosecutor has some direct personal interest arising from animosity, a financial interest, kinship, or close friendship such that his objectivity and impartiality are called into question.
Neither category is applicable to the facts of this case. There
was never an attorney-client relationship between the prosecutor
and the appellee herein,See footnote 3 nor was there even a hint of a direct
personal interest of any kind. Instead, at all times the
prosecution has represented only the interests of the State of West
Virginia against those of the defendant, first in the civil
proceedings and then when initiating criminal charges. However, a
prosecutor does not represent conflicting interests by representing
the State first in a civil abuse and neglect proceeding and then in
subsequent criminal proceedings against the same person.See footnote 4 "As the
primary responsibility of a prosecuting attorney is to seek
justice, his affirmative duty to an accused is fairness." Syl. pt.
2, State v. Britton, 157 W.Va. 711, 203 S.E.2d 462 (1990).
More significant for purposes of our decision is the fact
that the Legislature has already anticipated and addressed the
situation with which we are now confronted. In W.Va. Code § 49-6-4(a) (1992), the Legislature dealt specifically with medical and
mental examinations of parties to abuse and neglect proceedings and
provided that, "[n]o evidence acquired as a result of any such
examination of the parent or any other person having custody of the
child may be used against such person in any subsequent criminal
proceedings against such person."
We find this statutory provision to be dispositive of the
issue which is now before us. Therefore, we reverse the November
6, 1991, order of the Circuit Court of Harrison County which
disqualified the prosecuting
attorney and his assistants from pursuing criminal charges against
Footnote: 1West Virginia Code § 49-6-2(b) (1992) states that:
(b) In any proceeding under this article, the parents or custodians may, prior to final hearing, move to be allowed an improvement period of three to twelve months in order to remedy the circumstances or alleged circumstances upon which the proceeding is based. The court shall allow one such improvement period unless it finds compelling
circumstances to justify a denial thereof, but may require temporary custody in the state department or other agency during the improvement period. An order granting such improvement period shall require the department to prepare and submit to the court a family case plan in accordance with the provisions of section three [§ 49-6D-3], article six-d of this chapter.
Footnote: 2The R.'s apparently lived in an "open" marriage with another couple who shared their home.
Footnote: 3In State v. Riser, 170 W.Va. 473, 294 S.E.2d 461 (1982), we pointed out that "there is a considerable distinction between the propriety of a private prosecutor acting against a man with whom he had previously spoken about defending him; and the propriety of allowing a private prosecutor to act in a criminal case and also in a civil case against a defendant." Id. at 465 (emphasis added).
Footnote: 4See also State v. King, 183 W.Va. 440, 396 S.E.2d 402, 411 (1990), in which we found no appearance of impropriety where an assistant prosecutor represented a different party against the defendant in two separate instances. Before becoming an assistant prosecutor, the attorney was in private practice and was appointed guardian ad litem for the appellant's three daughters in a child abuse and neglect proceeding. As assistant prosecutor, the attorney subsequently represented the interests of the State in the appellant's criminal prosecution.