Scot S. Dieringer, Esq.
Clarksburg, West Virginia
Attorney for the Petitioner
Steven R. Bratke, Pro Se
Court-Appointed Special Prosecutor
for the State of West Virginia
McNeer, Highland & McMunn
Clarksburg, West Virginia
JUSTICE NEELY delivered the Opinion of the Court.
CHIEF JUSTICE BROTHERTON did not participate.
RETIRED JUSTICE MILLER sitting by temporary assignment.
JUSTICE CLECKLEY concurs, and reserves the right to file a concurring opinion.
1. "By application to the circuit judge, whose duty is
to insure access to the grand jury, any person may go to the grand
jury to present a complaint to it. W.Va.Const. art. 3, § 17."
Syllabus Point 1, State ex rel. Miller v. Smith, 168 W. Va. 745,
285 S.E.2d 500 (1981).
2. In cases where a grand jury returns an indictment based on a citizen's complaint and presentation, the attestation of the prosecuting attorney to the grand jury foreperson's signature is not required and the lack of such attestation, standing alone, is insufficient grounds for dismissal of an otherwise authentic indictment. The attestation requirement of W. Va. Code 62-9-1  does not apply in cases where the prosecuting attorney did not present the complaint to the grand jury. To the extent that our holding in this case contradicts our holdings in State v. Davis, 178 W. Va. 87, 357 S.E.2d 769 (1987), State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541 (1955), State v. DeBoard, 119 W. Va. 396, 194 S.E. 349 (1937), and State v. Burnette, 118 W. Va. 501, 190 S.E. 905 (1937), they are overruled.
R.L. seeks to prohibit his further prosecution under an
indictment issued by the Harrison County Grand Jury during its May
1993 term because the indictment, although signed by the grand jury
foreperson, did not contain the attestation of the Prosecuting
Attorney of Harrison County to the signature of the grand jury
foreperson as required by W. Va. Code 62-9-1 . The
indictment against R.L. was sought, not by the prosecuting attorney
but, by S.D.W.See footnote 1, a private citizen who alleges that approximately
seventeen years ago, when she was five years old, R.L. sexually
assaulted her.See footnote 2 Because the proceedings in this matter resulted
from a private citizen's presentation to the grand jury and no
other irregularities appear, we find the prosecuting attorney's
attestation of the grand jury foreperson's signature is not
required when the indictment was sought from the grand jury by a
private citizen if the indictment is otherwise attested to by the
foreperson of the grand jury. To the extent our holding in this case contradicts our holdings in State v. Davis, 178 W. Va. 87, 357
S.E.2d 769 (1987), State v. Huffman, 141 W. Va. 55, 87 S.E.2d 541
(1955), State v. DeBoard, 119 W. Va. 396, 194 S.E. 349 (1937), and
State v. Burnette, 118 W. Va. 501, 190 S.E. 905 (1937), they are
In 1992, S.D.W. told a boy friend that she had been
sexually abused as a child by R.L., the former husband of her now
deceased sister. The boy friend told a relative of S.D.W. who, in
turn, requested the police investigate the allegations. According
to Sergeant Walker, the investigating officer who testified before
the grand jury, and S.D.W., the alleged abuse occurred in the
Spring/Summer of 1976 during family visits when S.D.W., who was
then five years old, was left alone with R.L., her brother-in-law.
Allegedly in several separate incidents, R.L. kissed and rubbed
S.D.W. on the mouth, neck, chest and stomach. S.D.W. also alleges
that on several occasions while both were wearing clothes, R.L.
touched her with his penis and pressed himself against her vaginal
Except for S.D.W. and R.L., there were no other witnesses. When S.D.W. matured, she told her boy friends about the incidents to explain her aversion to being touched. At the request of the prosecuting attorney's office, S.D.W. went to a therapist who found that S.D.W. exhibits symptoms similar to those of a sexually abused person. S.D.W.'s description of the alleged abuse has remained constant.
Just before the September 1992 grand jury term, Sergeant
Walker reported the results of his investigation to the prosecuting
attorney's office. Because of the workload of the prosecuting
attorney's office, the prosecuting attorney decided that there was
insufficient time to study and consider the report and, therefore,
he did not present this matter during the September 1992 grand jury
term. Before the May 1993 grand jury term, S.D.W., at the
prosecuting attorney's request, began seeing a therapist; however,
by the May 1993 grand jury term, the prosecuting attorney had not
received any information from the therapist. When S.D.W. presented
the matter to the May 1993 Grand Jury, the prosecuting attorney
maintained that he "has never refused to act" and "that this matter
will be presented after we get the information to proceed, which
should have already been provided."
Because the prosecuting attorney did not plan to present
this matter during the May 1993 grand jury term, S.D.W. appeared
before the grand jury and presented her complaint.See footnote 3 The grand jury returned an indictment charging R.L. with sexual abuse in the first
degree. The indictment was signed by the grand jury foreperson,
and on the reverse side thereof, the Clerk of the Circuit Court of
Harrison County certified that the indictment was "a true copy of
the indictment entered in the above-styled action on the 6th day of
May, 1993." However, the prosecuting attorney did not attest to
grand jury foreperson's signature.
On 7 June 1993, the prosecuting attorney moved to recuse
his office from prosecuting this case and requested the appointment
of a special prosecutor. On 28 June 1993, the circuit court
granted the recusal motion and appointed Steven Bratke as special
prosecutor. On 12 July 1994, R.L. filed a motion to quash or
dismiss the indictment because the indictment lacked the
attestation of the prosecuting attorney. After the circuit court
on 8 August 1994 denied R.L.'s motion to dismiss the indictment,
R.L. petitioned this Court to prohibit further prosection of the
underlying case against him.
We have long recognized the right of every person to seek redress through the courts. The W. Va. Constitution, art. 3, § 17 guarantees that "[t]he courts of this State shall be open, and every person, for an injury done to him, in his person, property or reputation, shall have remedy by due course of law; and justice shall be administered without sale, denial or delay." In State ex rel. Skinner v. Dostert, 166 W. Va. 743, 753, 278 S.E.2d 624, 631 (1981), we noted that "[t]he 'spirit of the law' has long been and it has been long held that '[t]he public has rights as well as the accused, and one of the first of these is that of redressing or punishing their wrongs'. Ex parte Santee 2 Va.Cas. 364 (1823)." Skinner also recognized that "the prosecuting attorney is vested with discretion in the control of criminal causes, which is committed to him for the public good and for the vindication of the public interest. [Citations omitted.]" Skinner, 166 W. Va. at 752, 278 S.E.2d at 631.
Vesting discretion in the prosecuting attorney does not
foreclose a citizen's right to seek redress through the courts for
personal wrongs. Indeed, "the grand jury must be open to the
public for the independent presentation of evidence before it."
State ex rel. Miller v. Smith, 168 W. Va. 745, 753, 285 S.E.2d 500,
504 (1981)(prosecuting attorney should not attempt to influence the
grand jury by means other than presentation of evidence or giving
court supervised instructions). In order to insure the accessibility of the grand jury to citizens, in Syl. pt. 1, Miller,
By application to the circuit judge, whose duty is to insure access to the grand jury, any person may go to the grand jury to present a complaint to it. W.Va.Const. art. 3, § 17.
See Myers v. Frazier, 173, W. Va. 658, 679, 319 S.E.2d 782, 804 (1984); Powers v. Goodwin, 170 W.Va. 151, 158, 291 S.E.2d 466, 473 (1982); Cogar v. Strickler, 570 F.Supp. 34, 35-36 (S.D.W.Va. 1983).
Recently in Harman v. Frye, 188 W. Va. 611, 621, 425
S.E.2d 566, 576 (1992)(citizens must bring their complaints first
to the prosecuting attorney or the appropriate law enforcement
agency), we reaffirmed our holding in Syl. pt. 1 of Miller and
stated that "the grand jury must be open to the public as a matter
of constitutional right." In Harman, we ordered the appointment of
a special prosecutor in order to avoid a potential conflict of
interest in criminal cases involving cross-warrants and thus
allowed the prosecuting attorney to fulfill "the duty of
prosecuting all crimes, including misdemeanors." Harman, 188 W.
Va. at 621, 425 S.E.2d at 576.
In this case, R. L. maintains that the indictment issued
by the May 1993 grand jury is defective and should be dismissed
because the prosecuting attorney did not attest to the grand jury
foreperson's signature. In support of his contention R. L. notes that W. Va. Code 62-9-1  uses the word "shall" to indicate
the necessity of the prosecuting attorney's attestation. W. Va.
Code 62-9-1 , which prescribes the general form for
indictments, states, in pertinent part:
All indictments in this State, if procured, found and returned in all other respects as provided by law, shall be sufficient if in the following form:
[A generalized or skeleton form is provided.]
Found upon the testimony of _________, duly sworn in open court to testify the truth and sent before the grand jury this the _____ day of _________, 19__.
Said indictment shall have legibly indorsed on the reverse side thereof the words "State of West Virginia versus _________ Indictment for a _____ (Felony or Misdemeanor, as the case may be).
___________________Foreman of the Grand Jury.
Attest: ______________, Prosecuting Attorney of _____, county, West Virginia." [Emphasis added.]
The first lines of W. Va. Code 62-9-1  indicate that prescribed outlined indictment form is not indispensable and that an indictment "adopting different phraseology will be good if essential elements are properly set forth." State v. Burnette, supra, 118 W. Va. at 504, 190 S.E. at 906. However, because of the legislature used the word "shall" in connection with the signature of the grand jury foreperson and the attestation of the prosecuting attorney, State v. Burnette, 118 W. Va. at 504, 190 S.E. at 907, concluded "an indictment. . . not carrying on its back the indorsement of the prosecuting attorney, is fatally defective on motion to quash." See also Syl. pt. 2, State v. Davis, supra ("the endorsement [of the grand jury foreperson] and attestation [of the prosecutor] are sufficient if they appear on the face of the indictment"); State v. Huffman, supra, 141 W. Va. at 71, 87 S.E.2d at 551 (purpose of the requirement "is to identify and authenticate the indictment and to prevent the substitution or the use of" a non-authentic indictment); Syl. pt. 7, State v. DeBoard, supra.
In this case, R.L. seeks to use a procedural safeguard,
namely, the prosecuting attorney's attestation, to defeat a true
indictment returned by the grand jury. In the underlying case, the
prosecuting attorney did not present the charges against R.L. to
the grand jury; rather, S.D.W., a private citizen, presented her
complaint to the grand jury. After the indictment was returned by
the grand jury, the prosecuting attorney's office recused itself
and a special prosecutor was appointed. Although the attestation
of the prosecuting attorney helps to prevent the use of a non-
authentic indictment, this attestation requirement cannot be used
to trump a citizen's constitutional right to go to the grand jury
and present a complaint to it. Therefore, we hold that in cases
where a grand jury returns an indictment based on a citizen's
complaint and presentation, the attestation of the prosecuting
attorney to the grand jury foreperson's signature is not required
and the lack of such attestation, standing alone, is insufficient grounds for dismissal of an otherwise authentic indictment. The
attestation requirement of W. Va. Code 62-9-1  does not apply
in cases where the prosecuting attorney does not present the
complaint to the grand jury. To the extent that our holding in
this case contradicts our holdings in State v. Davis, supra, State
v. Huffman, supra, State v. Burnette, supra, and State v. DeBoard,
supra, they are overruled.
For the above stated reasons, the writ of prohibition
requesting dismissal of the indictment against R.L. is denied.
Footnote: 1 Consistent with our practice in cases involving sensitive matters, we use initials rather than full names. See Matter of Scottie D., 185 W. Va. 191, 406 S.E.2d 214 (1991); David M. v. Margaret M., 182 W. Va. 57, 385 S.E.2d 912 (1989).
Footnote: 2 The indictment charged: "That . . .[R.L.], on the _____day of _____, 1976, in the said County of Harrison, did unlawfully, feloniously, wilfully and intentionally subject one . . . [S.D.W.] to sexual contact, by forcible compulsion and without her consent, in violation of West Virginia Code 61-8B-6, against the peace and dignity of the State."
Footnote: 3 On 19 April 1993, the Circuit Court of Harrison County issued
an administrative order outlining the procedures to be followed by a person wishing to appear before a Harrison County Grand Jury. The petition does not allege any irregularities concerning these procedures.