Submitted: October 5, 1994
Filed: December 21, 1994
Robert L. Hogan
Assistant Prosecuting Attorney
Parkersburg, West Virginia
Attorney for Relator
George J. Cosenza
Cosenza & Underwood
Parkersburg, West Virginia
Attorney for Respondent Lisa Harder
JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
1. "The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented." Syllabus Point 5, State v. Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992).
2. The traditional appellate standard for determining
prejudice for discovery violations under Rule 16 of the West
Virginia Rules of Criminal Procedure involves a two-pronged
analysis: (1) did the non-disclosure surprise the defendant on a
material fact, and (2) did it hamper the preparation and
presentation of the defendant's case.
3. A circuit court may choose dismissal for egregious
and repeated violations where lesser sanctions such as a
continuance would be disruptive to the administration of justice or
where the lesser sanctions cannot provide the same degree of
assurance that the prejudice to the defendant will be dissipated.
4. In exercising discretion pursuant to Rule 16(d)(2)
of the West Virginia Rules of Criminal Procedure, a circuit court
is not required to find actual prejudice to be justified in
sanctioning a party for pretrial discovery vioations. Prejudice
may be presumed from repeated discovery violations necessitating
numerous continuances and delays.
The relator, Michele L. Rusen, Prosecuting Attorney for
Wood County, petitions this Court to issue a writ of prohibition
against the respondent, the Honorable George W. Hill, Judge of the
Circuit Court of Wood County, prohibiting him from dismissing the
indictment in the case of State of West Virginia v. Lisa Harder,
Case No. 93-F-81. Pursuant to Rule 16(d)(2) of the West Virginia
Rules of Criminal Procedure, the respondent judge dismissed, with
prejudice, an indictment charging the respondent and defendant
below, Lisa Harder, with twelve counts of embezzlement. The
dismissal was based on the State's partial noncompliance with a
prior discovery order. We find that the respondent judge's
discretion was properly exercised in this case and dismissal of the
indictment was an appropriate sanction. Therefore, the writ of
prohibition is denied.
Lisa Harder was indicted by the Wood County Grand Jury in May, 1993, and charged with twelve counts of embezzling money from her former employer, the Burger King restaurant in Vienna, West Virginia. Trial was originally set for June 22, 1993.
Defense counsel filed a motion for discovery pursuant to
Rule 16(d)(2) of the Rules of Criminal Procedure. On June 10,
1993, the State moved to dismiss the indictment, without prejudice, on the ground that the indictment did not adequately inform the
defendant of the nature of the charges against her.
A second indictment was returned by the Wood County Grand
Jury in September, 1993. Trial was then set for November 8, 1993.
On or about October 7, 1993, defense counsel filed a new motion for
discovery. On October 19, 1993, the defendant moved to continue
the trial on the ground that the State failed to respond in a
timely manner to the motion for discovery; and, as a result, the
defense counsel was unable to prepare for trial on the scheduled
date. The State filed a response on October 29, 1993. The State,
claiming the response was timely, argued that Rule 16 does not
specify a particular length of time in which the State must respond
to discovery requests.
The respondent judge granted the defendant's motion to
continue on November 1, 1993, and rescheduled trial for the
January, 1994, Term. By letter dated November 23, 1993, defense
counsel informed the State that after reviewing the discovery
materials, he wanted several additional documents. The additional
documents requested were various kinds of reports, including sales
synopses, sales reports, voids, tax reports, and a manual
explaining the operation of the computer/cash register. The
State's attorney orally agreed to provide the requested documentation.See footnote 1 When the January, 1994, Term of court began, the
defendant's trial was scheduled for March 21, 1994. As of February
4, 1994 the State had not acquired the requested documents from
On March 8, 1994, the defendant filed the following
motions: (a) a motion to compel the State to deliver the documents
listed in the February 15, 1994, order; and (b) a motion to dismiss
the indictment or, in the alternative, to continue the trial. On
March 11, 1994, a hearing was held on the defendant's motions. The
State advised the circuit court that the documentation requested
was still in the possession of Burger King. Additionally, the
State informed the circuit court that the investigating officer was
instructed to obtain the documentation, but there was a
misunderstanding and Burger King provided the same information that
was previously disclosed. The State indicated its intentions to
issue a subpoena duces tecum to procure the necessary documents.
The circuit court directed that the requested
documentation be presented to defense counsel within ten days; and,
if the information was not provided, the case would be dismissed.
The State was advised that if the documents were provided, the case
would be continued to the May, 1994, Term of court. On March 21,
1994, the State maintains that it served what it believed were all the requested documents. The State also claims that it was not
advised of any alleged deficiencies in the information provided
until April 27, 1994, when the defendant renewed her motion to
dismiss. In that motion, the defendant alleged the State had
failed to provide several of the requested reports and a number of
the reports provided were illegible.
On May 4, 1994, the circuit court held a hearing on the
defendant's motion. The State argued that it had supplied a
substantial amount of the information provided and that the
defendant would not be prejudiced because the new trial date would
be set on arraignment day at the beginning of the May, 1994, Term.
The Assistant Prosecutor, Charles P. Houdyschell, attempted to
reassure the court that the State was not attempting to conceal or
mislead the defense. The circuit court was not persuaded and
stated: "[I]f they [Burger King] are not interested enough to
provide the Prosecuting Attorney with the information that the
Prosecuting Attorney demands of them, their case will be dismissed.
The State filed a motion to reconsider in response to the
Judge's order dismissing the case with prejudice. The State
asserted in the motion that: (a) much of the information requested
did not exist; (b) the remainder of the documents that were
allegedly not supplied were missing as a result of clerical errors
in the copying process; (c) had the State been provided with more particular notice of which documents were missing or illegible, the
documents could have been provided; (d) the court's sanction of
dismissing the indictment was too extreme, given the nature of the
circumstances; and (e) since the State had substantially complied
with the prior order and a new trial date had not been set, the
defendant would not be prejudiced by affording the State the
opportunity to deliver the missing documentation.
On June 3, 1994, the motion to reconsider was heard by
the circuit court. Defense counsel admitted that his client had
not been prejudiced by the delay, except perhaps psychologically.
The State noted during the hearing that the defendant's motion to
dismiss had not specified which documents were allegedly missing
and illegible, so the State had been unable to respond. The
circuit court denied the State's motion.
The State seeks a writ of prohibition contending generally that the circuit court's dismissal of the indictment was unduly harsh and, thus, constituted an abuse of discretion. The relator also contends that the State has acted throughout this ordeal in good faith and that the defendant's rights, including those to a speedy trial and double jeopardy, have not been infringed.
In support of the petition, the State advances a public
policy argument that it has been completely deprived of the right
to prosecute and represent the citizens of its jurisdiction by the
circuit court's precipitous and severe action. In conceding that
circuit courts, in appropriate cases, have authority to dismiss
criminal charges, the State vehemently argues that the circuit
court's failure to impose a less severe remedy, such as continuing
the trial or limiting the State's use of the undisclosed
information, was an usurpation of its authority. In addition to
arguing the dismissal was unduly harsh and "a flagrant abuse of the
trial court's powers," the State claims the ruling was motivated by
the circuit court's personal opinion that Burger King, as a
"corporate giant," could quickly and easily supply the requested
documents if it desired.See footnote 2
According to the relator, dismissal of an indictment is an appropriate sanction only when the State's failure to comply with a discovery request is in bad faith or where a defendant has been deprived of some specifically identified right, such as the right to a speedy trial. In dismissing the case with prejudice, the relator states that the circuit court ignored the practical difficulties involved with locating and copying hundreds of pages of different kinds of information involving business transactions over several months.
Unquestionably, this Court has original jurisdiction over
matters of prohibition and mandamus by virtue of Section 3 of
Article VIII of the West Virginia ConstitutionSee footnote 3 and W. Va. Code,
51-1-3 (1923).See footnote 4 W. Va. Code, 58-5-30 (1923), grants the State a
limited right of appeal in criminal matters.See footnote 5 By statute, the
State is allowed to appeal the dismissal of an indictment only upon the ground that the indictment is insufficient. Therefore, as
relator asserts, its only available avenue for appellate review of
the circuit court's ruling is by a writ of prohibition. State v.
Lewis, 188 W. Va. 85, 422 S.E.2d 807 (1992). In Syllabus Point 5
of Lewis, supra, this Court concluded:
"The State may seek a writ of prohibition in this Court in a criminal case where the trial court has exceeded or acted outside of its jurisdiction. Where the State claims that the trial court abused its legitimate powers, the State must demonstrate that the court's action was so flagrant that it was deprived of its right to prosecute the case or deprived of a valid conviction. In any event, the prohibition proceeding must offend neither the Double Jeopardy Clause nor the defendant's right to a speedy trial. Furthermore, the application for a writ of prohibition must be promptly presented."
In Syllabus Point 1, in part, of Hinkle v. Black, 164
W. Va. 112, 262 S.E.2d 744 (1979), we stated: "[T]his Court will
use prohibition in this discretionary way to correct only
substantial, clear-cut, legal errors plainly in contravention of a
clear statutory, constitutional, or common law mandate[.]"
Although dismissing a case with prejudice obviously impairs the
prosecution's ability to prosecute, we have grave reservations over
whether this case involves the "substantial, clear-cut, legal
errors" plainly in contravention of existing law. Nevertheless, we
have decided to review this petition for purposes of establishing
clearer guidelines for the circuit courts to follow when ruling on
pretrial discovery violations.
The indictment against Lisa Harding was dismissed
pursuant to Rule 16(d)(2) of the West Virginia Rules of Criminal
ProcedureSee footnote 6 as a sanction for the State's partial noncompliance of
a discovery order. Rule 16 provides for discovery and inspection
of materials during trial, and Rule 16(d)(2) mentions the circuit
court's alternatives if a party fails to comply with a discovery
request. Under this rule, if a party fails to comply with the
discovery rules, the circuit court has general authority to enter
whatever order he deems necessary under the circumstances.
Usually, issues concerning discoverable information arise
during trial. As the relator points out, there are no reported
cases in this State involving the dismissal of an indictment prior
to trial as a sanction for partial discovery noncompliance.
General guidance is provided by several of our discovery cases
where the violation is discovered after the commencement of trial.
In Syllabus Point 2, in part, of State v. Grimm, 165 W. Va. 547, 270 S.E.2d 173 (1980), the this Court stated that "non-disclosure
by the prosecution is fatal to its case where such non-disclosure
is prejudicial." The traditional appellate standard for
determining prejudice involves a two-pronged analysis: "(1) did the
non-disclosure surprise the defendant on a material fact, and (2)
did it hamper the preparation and presentation of the defendant's
case". State v. Miller, 178 W. Va. 618, 624, 363 S.E.2d 504, 510
(1987). See also State v. Johnson, 179 W. Va. 619, 371 S.E.2d 340
(1988); State v. Bennet, 176 W. Va. 1, 339 S.E.2d 213 (1985);
State v. Grimm, supra.See footnote 7
The aforementioned cases suggest an appropriate method of
review if nondisclosed material is revealed at trial and the
defendant loses. Under these cases, denial of discovery or
nondisclosure under a discovery order is grounds for a new trial
when the nondisclosed information is material and the defendant is
surprised or prejudiced. However, as we stated above, none of these cases address the issue that is currently before this Court;
namely, what are the appropriate circumstances, in a pretrial
context, that a trial court may impose sanctions for noncompliance
with a discovery order.
We begin our analysis with some general observations.
Discovery is one of the most important tools of a criminal
defendant. The purpose of Rule 16(a), our basic discovery rule in
criminal cases, is to protect a defendant's right to a fair trial.
The degree to which that right suffers as a result of a discovery
violation cannot be determined by simply asking would the
nondisclosed information enhance or destroy the State's case. A
significant inquiry is how would the timely access of that
information have affected the success of a defendant's case.
While discovery has not been elevated to a constitutional
dimensionSee footnote 8, it is clear that constitutional rights of a criminal
defendant are implicated when a discovery system has been put in
place and the prosecution fails to comply with court ordered
discovery. We believe that it is necessary in most criminal cases
for the State to share its information with the defendant if a fair
trial is to result. Furthermore, we find that complete and
reasonable discovery is normally in the best interest of the public. One consequence of full and frank discovery is that it may
very well encourage plea negotiations. As Dean Pye has noted:
"Most criminal cases result in a plea of guilty. The principal role of the capable advocate in many circumstances is to advise that his client plead guilty. For this advice to be meaningful, it must be based upon knowledge of the facts and the consequences. One of these consequences is the probability of conviction if the client goes to trial. It may be impossible for counsel to make any intelligent evaluation of the alternatives if he knows only what his client has told him and what he has discovered on his own."
The Defendant's Case for More Liberal Discovery, 33 F.R.D. 82, 83 (1963).
The West Virginia Rules of Criminal Procedure provide little guidance as to what is the proper response of a circuit court to a discovery violation. While this Court frequently notes that a circuit court is given "broad latitude" in its selection of an appropriate remedy, when a circuit court has promulgated specific discovery orders and guidelines for certain discovery requests and those guidelines have been ignored or violated, reversal is usually the result if there is any fair showing of prejudice. In this case, of course, the violation occurred before trial and the circuit court granted the defendant's request for dismissal with prejudice.
The scope of appellate review must necessarily be an
abuse of discretion standard. For us to determine whether the
circuit court abused its discretion by imposing such a drastic
sanction, we must first review the range of remedies available. Rule 16(d)(2) provides that where there has been noncompliance with
legitimate discovery requests, a circuit court, in addition to
ordering immediate disclosure, granting a continuance, and
excluding evidence, "may enter such other order as it deems just
under the circumstances." This broad language justifies the adding
of several other remedies or sanctions to the list such as (a)
advising the jury to assume the existence of facts that might have
been established by the missing information, (b) holding the
violator in contempt of court, (c) granting a mistrial, and (d)
dismissing the charges. We specifically hold that one of the
permissible sanctions under Rule 16(d)(2) for a discovery violation
is a dismissal with prejudice. Under the facts of this case, we do
not think it can be said that the circuit court exceeded the broad
latitude which must be accorded it in making this decision.
Which remedy is preferable is best left to the discretion
of the circuit court. Such rulings will not be reversed unless
there is an abuse of discretion. The circuit court must have
discretion to fashion a remedy for noncompliance that encompasses
"a fair balancing of the interests of the courts, the public, and
the parties[,]" recognizing that the dismissal of cases with
prejudice is a remedy which should be used only in the most
egregious cases. People v. Taylor, 159 Mich. App. 468, 487, 406
N.W.2d 859, 869 (1987). We also believe several factors must be
weighed in determining whether the exercise of discretion in cases such as this is appropriate. Those factors include, but are not
(a) the importance and materiality of the information that was not disclosed;
(b) the ability of the party to try the case without the information or the nature of the prejudice claimed by the failure to comply with the discovery order;
(c) the extent to which a continuance or other lesser relief would delay the trial or otherwise impact adversely the administration of justice;
(d) the degree of negligence involved and the explanation of the party's failure to comply with a discovery request;
(e) the effort made by the party to comply with the discovery order;
(f) the number of times the circuit court ordered the party to comply with the discovery order; and
(g) in some cases, the severity of the offense.
Further expansion of these factors is necessary. Once a
circuit court receives a motion requesting sanctions or relief for
discovery violations, the circuit court should order to the full
extent required by the discovery rules or the court order an
immediate disclosure. The relief that is appropriate initially
will depend to a large degree on the reason disclosure was not
timely made and the prejudice resulting from the failure to provide
timely discovery. Similarly, the circuit court should review the frequency and force of the defendant's objections or motions as
opposed to attaching significant weight to a pure pro forma
protest. The preferred relief where the party responsible for the
violation has not acted in bad faith is to grant the defendant a
continuance giving him or her an opportunity to prepare for trial
once the discovery materials have been made available. Thus, where
the violation relates to discovery of potential trial evidence, the
circuit court is advised to grant a continuance sufficient in
duration to permit the defendant to obtain that evidence and to
prepare for trial.
Our cases and the West Virginia Rules of Evidence have
declared an implicit preference for a continuance when there has been a discovery violation. See W.Va.R.Evid. 403 ("unfair surprise" is not listed as a ground for exclusion). See State v. Barker, 169 W. Va. 620, 623, 289 S.E.2d 207, 210 (1982) ("[e]ven if this were a 'proper' case in which to claim surprise, the appellant failed to move for a continuance, and, therefore, waived his right to one"); Martin v. Smith, 190 W. Va. 286, 291, 438 S.E.2d 318, 323 (1993) ("even given that the admission of Dr. Adams' testimony prejudiced Dr. Smith's case, we find such prejudice far from incurable. Dr. Smith could have easily moved for a continuance in order to secure a comparable expert witness").
Although we believe that a continuance is the preferred
response to a discovery violation where bad faith is not found, the circuit court must recognize there are some situations where a
continuance is not an appropriate or satisfactory remedy. If a
continuance will cause too great a disruption in the trial process,
or if a continuance will not dissipate the prejudice caused by the
nondisclosure,See footnote 9 a circuit court should consider stronger measures
such as dismissal. Sanctions generally should not have "adverse
effects on the rights of the parties"; a dismissal with prejudice
necessarily has a substantial effect on the interest of the
community, the party represented by the prosecution. State v.
Lewis, 632 P.2d 547, 549 (Alaska App. 1981). Accordingly, the
sanction of dismissal should be used sparingly and only when the
prosecution has been derelict in its effort to comply with
discovery orders. While it normally should be a remedy of last
resort, we refuse to place the circuit court in a position where it
can dismiss a case only where other lesser measures clearly cannot
provide a defendant with a fair trial. Rather, we hold that a
circuit court may choose dismissal for egregious and repeated
violations where lesser sanctions such as a continuance would be
disruptive to the administration of justice or where the lesser
sanctions cannot provide the same degree of assurance that the
prejudice to the defendant will be dissipated.
A balancing test necessarily compels courts to approach
sanctions on an ad hoc basis. We have done little more than
identify some of the factors which circuit courts should assess in
determining the appropriateness of a particular sanction. A
circuit court should make findings on the record using these
factors, with any other relevant considerations, to facilitate
review; and, on appeal we will be able to scrutinize closely the
basis for the circuit court's decision. Only in this way can the
rights of a criminal defendant, the State, and the public be
Applying the factors we have discussed, we find it
significant that the discovery violation continued over a period of
eight months and twice required scheduled trials to be continued.See footnote 10 Also, we observe that during this period of eight months the State
at no time sought to avail itself of the protections provided under
Rule 16(d)(1) nor did the State upon realizing that Burger King was
not cooperating make any attempt to obtain a subpoena duces tecum
pursuant to W. Va. Code, 57-5-4 (1990). If moral or friendly
persuasion is insufficient to acquire documentary evidence needed
for trial, a subpoena duces tecum is always available. Moreover,
a Rule 16(d)(1) request for a protective order is the appropriate
vehicle for bringing these concerns to the circuit court. Instead,
the State committed to the court and to the defendant that it would
provide these documents and did not attempt to retract that
commitment until the end. Thus, the State's agreement to comply
with the defense discovery request lessens the impact of its claim
that it did not have all the requested documents in its
possession.See footnote 11 It seems a bit late for the relator to argue that the
materials were too voluminous, not in its possession, or did not
have to be produced at all. The circuit court found otherwise, and
we have no legal or factual basis for upsetting those findings.
Although the circuit court may have harbored some antipathy towards big business in general and Burger King specifically, the record does not support the relator's allegation that the circuit court acted in a prejudicial or unduly harsh fashion solely because a corporation was the victim. Nor do these allegations negate our holding that it is within the circuit court's discretion to dismiss an indictment under Rule 16(d)(2) under appropriate circumstances. We do not find it persuasive that there are no other cases where the sanction of dismissal was ordered for pretrial discovery violations. Obviously, the drafters of the West Virginia Rules of Criminal Procedure contemplated and generally provided for appropriate sanctions when dealing with recalcitrant litigants.
Clearly, the extent and scope of pretrial discovery is
within the circuit court's discretion, and we will not disturb a
circuit court's ruling unless there is a clear abuse of discretion.
State v. Johnson, supra; State v. Lassiter, 177 W. Va. 499, 354
S.E.2d 595 (1987); State v. Bennett, supra; State v. Audia, 171
W. Va. 568, 301 S.E.2d 199, cert. denied, 464 U.S. 934, 104 S. Ct.
338, 78 L.Ed.2d 307 (1983). As we stated previously, "[w]here the
State claims the trial court abused its legitimate powers, the
State must demonstrate that the court's action was so flagrant that
it was deprived of its right to prosecute the case or deprived of
a valid conviction" before the State's motion for a writ of
prohibition will be granted. See Syllabus Point 5, in part, State v. Lewis, supra. The relator has failed in its burden in this
case. A few unfortunate comments by the circuit court tied to a
sanction that is clearly within its discretion is not enough to
show an abuse of discretion. The State failed to prove that the
dismissal, although stringent, was unwarranted.
It is irrelevant that the State did not expect the
circuit court to issue such a harsh sanction. Subjective
expectations of the State are simply insignificant in determining
whether the circuit court abused it discretion. Concededly, the
dismissal of an indictment is a severe sanction that should be used
sparingly,See footnote 12 but we find it is a sanction that is within the circuit
court's arsenal, and appropriately so, for it ensures that circuit
courts have power to regulate congested trial dockets in many of
the circuits in this State.
Not only did these discovery violations affect the
defendant, but there were also other interests at stake than just
the parties. As the relator astutely recognizes in its brief, the
interests of the people of West Virginia are also implicated in any criminal proceeding.See footnote 13 Numerous delays, unnecessary continuances,
and additional hearings to address noncompliance of discovery rules
contribute to the cost and the length of these criminal
proceedings. Here, the trial court was confronted not simply with
the interests of the defendant, the prosecution, but with the
competing interest of judicial economy and other institutional
concerns. In this context, courts have an independent interest in
ensuring that criminal trials are conducted expeditiously and that
these legal proceedings appear fair to all who observe.
The prosecution has noted emphatically that the defendant
was not prejudiced by the delay or the repeated and continuous
discovery violations. We disagree.See footnote 14 Unfortunately, circuit courts must rule on the issue of what sanction is appropriate for pretrial
discovery violations "not with the wisdom of hindsight after the
trial has taken place, but in the murkier pretrial context when
[the development and the outcome of the trial]... are seen through
a glass, darkly." Wheat v. United States, 486 U.S. 153, 162, 108
S.Ct. 1692, 1699, 100 L.Ed.2d 140, 151 (1988). In a criminal
trial, the stakes are ordinarily much higher than in a civil case
where the loss of money or property is the worse that can be
inflicted. In a criminal case, a defendant's liberty, and
sometimes his life, depends on the outcome. Prejudice should be
assessed in the light that the discovery rules were designed to
protect.See footnote 15 Undoubtedly, the defendant did not have the information
that the circuit court thought important enough to order delivered
within ten days or risk the sanction of dismissal. Untimely
compliance with discovery requests limits the possibility that a
defendant will be prepared. Of course, this factor is the most
serious "because the inability of a defendant adequately to prepare
his case skews the fairness of the entire system." Barker v.
Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 2193, 33 L.Ed.2d 101, 118
(1972). Continuance or delay "compromises the reliability of a
trial in ways that neither party can prove or, for that matter, identify." Doggett v. United States, ___ U.S. ___, ___, 112 S.Ct.
2686, 2693, 120 L.Ed.2d 520, 531 (1992). Therefore, in exercising
discretion pursuant to Rule 16(d)(2) of the West Virginia Rules of
Criminal Procedure, a circuit court is not required to find actual
prejudice to be justified in sanctioning a party for pretrial
discovery vioations. Prejudice may be presumed from repeated
discovery violations necessitating numerous continuances and
Although we agree that the sanction of dismissal should be
used sparingly, we find that the circuit court did not abuse its
discretion when it dismissed the indictment against Lisa Harder.
For the forgoing reasons, the writ is denied.
Footnote: 1 Later the defendant and the State executed an Agreed Order, wherein the Assistant Prosecuting Attorney agreed to produce the documents on or before February 28, 1994.
Footnote: 2 The State claims that the circuit court's focus on Burger King was inappropriate because even large, well-organized corporations "do not automatically understand and appreciate the nuances and purposes of the criminal discovery process." It is argued that the district managers of Burger King are no different than the average person when it comes to their understanding of the criminal system, so they cannot be expected to perfectly understand and comply with a discovery request. Therefore, "[t]he ruling below reflects unrealistic expectations concerning the victim in the case." The relator also notes there was no finding that Burger King was attempting to defy the circuit court's authority.
Footnote: 3 The pertinent portion of Section 3 of Article VIII is as follows: "The supreme court of appeals shall have original jurisdiction of proceedings in habeas corpus, mandamus, prohibition and certiorari."
Footnote: 4 W. Va. Code, 51-1-3, reads, in part: "The supreme court of appeals shall have original jurisdiction in cases of habeas corpus, mandamus and prohibition. It shall have appellate jurisdiction in . . . prohibition, and in cases involving freedom or the constitutionality of a law."
Footnote: 5 W. Va. Code, 58-5-30, in pertinent part, provides:
"Notwithstanding anything hereinbefore contained in this article, whenever in any criminal case an indictment is held bad or insufficient by the judgment or order of a circuit court, the State, on the application of the attorney general or the prosecuting attorney, may obtain a writ of error to secure a review of such judgment or order by the supreme court of appeals. No such writ of error shall be allowed unless the State presents its petition therefor to the supreme court of appeals, or one of the judges thereof, within thirty days after the entry of such judgment or order."
Footnote: 6 Rule 16(d)(2) reads as follows:
"Failure to Comply with a Request. -- If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit the discovery or inspection, grant a continuance, or prohibit the party from introducing evidence not disclosed, or it may enter such other order as it deems just under the circumstances. The court may specify the time, place and manner of making the discovery and inspection and may prescribe such terms and conditions as are just."
Footnote: 7 The relator also cites Bell v. Inland Mutual Insurance Company, 175 W. Va. 165, 332 S.E.2d 127, appeal dismissed, cert. denied, sub nom, Camden Fire Ins. Ass'n v. Justice, 474 U.S. 936, 106 S. Ct. 299, 88 L.Ed.2d 277 (1985), in support of its argument that dismissal is only justified when the State acts in bad faith. Bell was a civil case where this Court held striking pleadings and rendering a default judgment against a party is appropriate when there has been a finding that "the failure to comply has been due to willfulness, bad faith or fault of the disobedient party and not the inability to comply, and further, that such sanctions are otherwise just." 175 W. Va. at 172, 322 S.E.2d at 134. Although the relator acknowledges there are different interests in civil and criminal matters, it contends, nevertheless, that the State is entitled to have its cases heard in the absence of a showing of bad faith and that the defendant has not been prejudiced by the delay in the trial.
Footnote: 8 See Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 845-46, 51 L.Ed.2d 30, 42 (1977).
Footnote: 9 There are situations where the late disclosure comes only after a defendant has been required to commit himself to a position that would be inconsistent with disclosed information that should have been made available earlier.
Footnote: 10 The following is a brief chronology of the events we believe are relevant in this action:
1. May, 1993 Term - the date of first indictment charging the defendant with twelve counts of embezzling money from her former employer.
2. June 22, 1993 - Original trial date.
3. June 10, 1993 - Twelve days before trial, the State
moved to dismiss the indictment without prejudice claiming it was
4. September, 1993 - A second indictment was returned.
5. November 8, 1993 - Second trial scheduled for this
6. October 7, 1993 - Defendant's motion for discovery
7. October 19, 1993 - Defendant moved to continue the
trial on the ground that the State had failed to respond in a
timely manner to the motion for discovery.
8. October 29, 1993 - State filed a response claiming
its response was timely because W.Va.R.Crim.P. 16 sets no
specific time for responses.
9. November 1, 1993 - Circuit court granted the
defendant's motion to continue and rescheduled the case for the
January, 1994, Term.
10. November 23, 1993 - By letter, the defendant's
counsel informed the State its discovery responses were
deficient. Additional documents requested were various kinds of
reports including sales synopsis, sales reports, voids, tax
reports, and a manual explaining the operation of the
11. November/December, 1993- Prosecuting attorney,
rather than objecting or asking for a protective order, orally
agreed to provide the requested documentation.
12. March 21, 1994 - Third trial scheduled on this date
for the January, 1994, Term.
13. February 4, 1994 - State had not acquired the
requested documents from Burger King nor did the State file a
request for extension or for a protective order.
14. March 8, 1994 - Defendant filed motion to dismiss
the indictment; or, in the alternative, to continue the trial.
15. March 11, 1994 - Hearing on the defendant's
motions; State still had not obtained requested information and
did not request a protective order. State committed to circuit
court it would subpoena duces tecum records. State was informed
it had ten days to deliver documents to counsel or case would be
dismissed. Trial was continued to May, 1994, Term.
16. March 21, 1994 - State maintains it served what it
believed were all the requested documents.
17. April 27, 1994 - Defendant renewed its motion to
dismiss alleging the State failed to provide several of the
requested reports and a number of the reports provided were
18. May 4, 1994 - Circuit court held a hearing on the defendant's motion. State argued it had supplied a substantial amount of the information requested and the defendant would not be prejudiced because a new trial date would be set on arraignment day at the beginning of the May, 1994, Term. Circuit court dismissed the indictment.
Footnote: 11 At the March 11, 1994, hearing, the State admitted it was "not sure if they [Burger King] was (sic) being recalcitrant or they just don't understand".
Footnote: 12 Under Rule 37(b)(2)(C) of the the West Virginia Rules of Civil Procedure, dismissal is an appropriate sanction for a party's failure to obey court ordered discovery. However, we have also recognized in a civil context that "[a]s a general rule, the rendering of judgment by default as a sanction under Rule 37(b)[(2)(C)] should be used sparingly and only in extreme situations." Bell, 175 W. Va. at 172, 332 S.E.2d at 134.
Footnote: 13 The State argued in its brief that the trial court acted as if the defendant's criminal case was actually a civil case between two parties. Further, the State contends the defendant was accused of "a crime against the peace and dignity of the State of West Virginia" and not just because the money stolen was from Burger King. In addition, the petitioner contended that the record reflects that the trial judge became impatient with the delay in the trial and decided to punish the "big" company (Burger King) without taking into consideration the interests of the people of West Virginia.
Footnote: 14 The State's position seems to be that this Court should erect a per se rule against dismissals with prejudice unless a defendant can show prejudice or prove that the prosecution acted in bad faith. We believe the adoption of a per se rule would be inappropriate because dismissals could serve a legitimate State purpose in some cases, and a prosecution's violation of a discovery order could be so egregious as to warrant the stringent sanction of dismissal with prejudice. See note 9, supra. To be clear, we do not mean to suggest that a defendant has a right to fabricate a defense, but we strongly note that our Rules of Criminal Procedure have provided a right to discovery, and correspondingly, a right to devise a defense and trial strategy on the basis of the evidence disclosed by the prosecution.
United States v. Noe, 821 F.2d 604 (11th Cir. 1987).
Footnote: 15 See generally Barker v. Wingo, 407 U.S. 514, 532, 92 S. Ct. 2182, 2193, 33 L.Ed.2d 101, 118 (1972) ("Prejudice, of course, should be assessed in the light of the interests of the defendants which the speedy trial right was designed to protect").