William E. Hamb, Esq.
Robert W. Kiefer, Jr., Esq.
Hamb, Poffenbarger & Bailey
Charleston, West Virginia
Attorneys for the Petitioner
William C. Forbes, Esq.
Prosecuting Attorney, Kanawha County
Mary Beth Kershner, Esq.
Assistant Prosecuting Attorney, Kanawha County
Charleston, West Virginia
Attorneys for the Respondent
The Opinion of the Court was delivered PER CURIAM.
1. "The effects of less gross delays upon a defendant's
due process rights must be determined by a trial court by weighing
the reasons for delay against the impact of the delay upon the
defendant's ability to defend himself." Syllabus Point 2, State ex
rel. Leonard v. Hey, ___ W. Va. ___, 269 S.E.2d 394 (1980).
2. "The general rule is that where there is a delay
between the commission of the crime and the return of the
indictment or the arrest of the defendant, the burden rests
initially upon the defendant to demonstrate how such delay has
prejudiced his case if such delay is not prima facie excessive."
Syllabus Point 1, State v. Richey, 171 W. Va. 342, 298 S.E.2d 879
Mark E. Henderson seeks to prohibit the Honorable John
Hey, Judge of the Circuit Court of Kanawha County, and William C.
Forbes, Prosecuting Attorney for Kanawha County, from prosecuting
him on a charge of malicious wounding. W. Va. Code 61-2-9 .
Mr. Henderson maintains that such a trial would violate his due
process rights because the State delayed twenty-three months
between his arrest and indictment. Mr. Henderson maintains that
the State's failure to appear in magistrate's court to prosecute
him on a misdemeanor charge arising out of the same incident
requires the dismissal of the malicious wounding charge. Because
we find that the delay of the indictment, by itself, is not
sufficient to bar the trial, we deny the writ of prohibition.
About 3:00 a.m. on May 24, 1990, Mr. Henderson, after
leaving a bar in Charleston, backed his pick-up truck into an
unoccupied S-10 truck owned by Danny Hall. The accident knocked
Mr. Hall's truck into the middle of Washington Street. Mr.
Henderson left the accident scene without finding the owner of the
S-10 truck. Shortly thereafter, Mr. Hall and some others were
inspecting his truck when Mr. Henderson returned and drove into Mr.
Hall's truck. Mr. Hall, who was either inside or in front of the
truck, was seriously injured.See footnote 1
After Mr. Henderson failed the field sobriety tests, he
was arrested. Mr. Henderson registered a .14 on the intoxilyzer
test. Mr. Henderson appeared before a magistrate and was charged
with driving under the influence of alcohol, causing bodily injury,
a misdemeanor. W. Va. Code, 17C-5-2(c) . Mr. Henderson's
driving under the influence causing bodily injury charge was
scheduled for trial in magistrate's court on September 13, 1990;
however, because the State failed to appear for trial, the
complaint was dismissed.
On April 8, 1992, Mr. Henderson was indicted by a Kanawha
County grand jury and charged with the malicious wounding of Danny
Hall "on the ______ day of May, 1990" in violation of W. Va. Code,
61-2-9 . After Mr. Henderson's motion to dismiss was denied
by the circuit courtSee footnote 2, Mr. Henderson petitioned this Court for a
writ of prohibition alleging the twenty-three month delay between
his arrest and indictment violated his due process rights.See footnote 3
Our rule for determining when a defendant's due process
rights are violated was stated in State ex rel. Leonard v. Hey, ___
W. Va. ___, 269 S.E.2d 394 (1980). In Leonard we found that a
delay of eleven years between arrest and indictment "is
presumptively prejudicial to the defendant and violates his right
to due process of law. . . ." Syllabus Point 1, Leonard. When the
delay is not presumptively prejudicial, Leonard requires that the
effect of the delay be determined "by weighing the reasons for the
delay against the impact of the delay upon the defendant's ability
to defend himself." Syllabus Point 2, in part, Leonard; in accord
Syllabus Point 1, State ex rel. Bess v. Hey, 171 W. Va. 624, 301
S.E.2d 580 (1983). When the delay is not presumptively
prejudicial, the defendant has the initial burden of showing how
the delay prejudiced his case. In Syllabus Point 1, State v.
Richey, 171 W. Va. 342, 298 S.E.2d 879 (1982), we said:
The general rule is that where there is a delay between the commission of the crime and the return of the indictment or the arrest of the defendant, the burden rests initially upon the defendant to demonstrate how such delay has prejudiced his case if such delay is not prima facie excessive.
In Accord, Syllabus Point 2, Bess.
In the present case, the delay of twenty-three months
between arrest and indictment is not presumptively prejudicial.
See Leonard supra (holding a delay of eleven years is presumptively
prejudicial); Bess supra (holding a delay of twenty months did not,
by itself, require dismissal); State v. Simmons, 171 W. Va. 722,
301 S.E.2d 812 (1983)(holding a delay of seventeen months did not,
by itself, require dismissal); State v. Bennett, 172 W. Va. 123,
304 S.E.2d 28 (1983) (holding a delay of seven months did not, by
itself, require dismissal); State v. Allman, 177 W. Va. 365, 368,
352 S.E.2d 116, 119 (1986)(holding a delay of eleven months "was
not so long as to be prima facie excessive"); State v. Petrice, 183
W. Va. 695, 700, 398 S.E.2d 521, 526 (1990) (refusing to dismiss
the indictment because although the delay of two and one-half years
is prima facie excessive, the State showed that the delay was not
"a deliberate device to gain an advantage over" the defendant).
Mr. Henderson argues that his case is prejudiced by the
State's failure to prosecute the misdemeanor charge of driving
under the influence causing bodily injury. By itself, the State's
decision to prosecute Mr. Henderson for malicious wounding, a
felony, rather than the misdemeanor, does not show an impairment of
Mr. Henderson's ability to defend himself. Although Mr. Henderson
may be correct in his assertion that the present charge is the
State's attempt to compensate for its failure to appear and
prosecute the driving under the influence charge, the assertion
does not satisfy Mr. Henderson's burden of demonstrating "the
impact of the delay upon the defendant's ability to defend
himself." Syllabus Point 2, Leonard supra. See Syllabus Point 2,
Hundley v. Ashworth, 181 W. Va. 379, 382 S.E.2d 573 (1989)
(requiring the dismissal of the indictment "if the defendant can
prove that the State's delay in bringing the indictment was a
deliberate device to gain an advantage over him and that it caused
him actual prejudice in presenting his defense" (emphasis added)).
Because Mr. Henderson has not shown any impairment in his
ability to defend himself, we find that the circuit court was
correct in refusing to dismiss the charge against Mr. Henderson for
Footnote: 1Because there is no record, the factual information is based on the parties' briefs. It is undisputed that two collisions occurred and that Mr. Hall was injured in the second collision.
Footnote: 2 Although Judge Hey is scheduled to preside at Mr. Henderson's trial, Mr. Henderson's motion to dismiss was heard and rejected by Judge Paul Zakaib.
Footnote: 3The parties agree that the prohibition against double jeopardy does not apply because the driving under the influence case was dismissed before "the magistrate. . . beg[a]n to hear evidence." Syllabus Point 4, in part, Manning v. Inge, 169 W. Va. 430, 288 S.E.2d 178 (1982).
The parties also agree that the delay between arrest and indictment did not violate Mr. Henderson's right to a speedy trial. The provisions of W. Va. Code 62-3-21 , the "three term rule," do not apply because the delay occurred before Mr.
Henderson's indictment and Mr. Henderson did not request an evidentiary hearing to present evidence on the factors outlined in Barker v. Wingo, 407 U. S. 514 (1972).