Submitted: January 16, 2002
Filed: April 8, 2002
V. McGraw, Jr.
Attorney General Assistant Public Defender
Allen H. Loughry, II Public Defender Corporation
Senior Assistant Attorney General Wheeling, West Virginia
Charleston, West Virginia Attorney for Appellant
Attorneys for Appellee
The Opinion of the Court was delivered PER CURIAM.
1. A defendant has a right under the Grand Jury Clause of Section 4 of Article III of the West Virginia Constitution to be tried only on felony offenses for which a grand jury has returned an indictment. Syllabus Point 1, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).
2. The Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest. Syllabus Point 1, Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977).
3. An appellate court is obligated to see that the guarantee of a fair trial under Section 10 of Article III of the West Virginia Constitution is honored. Thus, only where there is a high probability that an error of due process proportion did not contribute to the criminal conviction will an appellate court affirm. High probability requires that an appellate court possess a sure conviction that the error did not prejudice the defendant. Syllabus Point 11, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
appeal arises from criminal proceedings in the Circuit Court of Ohio County.
On January 11, 2000, an Ohio County grand jury indicted the appellant, Robin
Barnhart, for the felony offense of malicious assault; a jury later convicted
her of the lesser included offense of battery, a misdemeanor.
Ms. Barnhart claims that the circuit court erred in not dismissing the indictment because a member of the grand jury was a police officer who played some role in the investigation of the crime for which Ms. Barnhart was indicted, and, while not voting on the indictment, nevertheless remained in the grand jury room during the prosecuting attorney's presentment and during the deliberations of the grand jury. We agree and reverse her conviction.
State ex rel. Pinson v. Maynard, 181 W. Va. 662, 383 S.E.2d 844 (1989),
this Court provided a brief history, function, and purpose of the grand jury
in West Virginia:
The institution of the grand jury is deeply rooted in Anglo-American history. For centuries in England the grand jury served both as an accuser of people suspected of criminal wrongdoing and a protector of citizens from arbitrary governmental action. The grand jury continues this dual role to the present day, balancing the determination of probable cause that an offense has been committed against the duty to protect innocent citizens from unfounded criminal prosecution. Historically, the grand jury has been the sword of the government as well as the shield of the people, and this Court has on many occasions emphasized the importance of preserving this duality. For the indictments of a grand jury to be valid, the Fifth Amendment of the United States Constitution requires they be returned by a legally constituted and unbiased grand jury.
Id., 181 W.Va. at 665, 383 S.E.2d at 847 (footnotes and internal citations omitted).
The right to a grand jury is found in West Virginia's Constitution, which states that [n]o person shall be held to answer for treason, felony or other crime, not cognizable by a justice, unless on presentment or indictment of a grand jury. W.Va. Constitution, Article III, § 4. A defendant has a right under the Grand Jury Clause of Section 4 of Article III of the West Virginia Constitution to be tried only on felony offenses for which a grand jury has returned an indictment. Syllabus Point 1, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995). In West Virginia, a valid presentment or indictment of a grand jury is a condition precedent to a conviction for a felony. State ex rel. McGilton v. Adams, 143 W.Va. 325, 329, 102 S.E.2d 145, 147 (1958). See also, Scott v. Harshbarger, 116 W.Va. 300, 301, 180 S.E. 187, 187-88 (1935) ([A] valid presentment or indictment of a grand jury is, in this state, a condition precedent to a conviction for a felony[.]); Syllabus Point 5, State v. McGraw, 140 W.Va. 547, 85 S.E.2d 849 (1955) (A valid indictment or presentment can be made only by a grand jury[.]).
As a matter of public policy, an indictment will not be dismissed automatically simply because of alleged irregularities or because a member of the grand jury is disqualified. As we stated in Syllabus Point 4 of State v. Bailey, 159 W.Va. 167, 220 S.E.2d 432 (1975) (overruled on other grounds, State ex rel. D.D.H. v. Dostert, 165 W.Va. 448, 269 S.E.2d 401 (1980)), that under the provisions of W.Va. Code, 52-2-12 , an indictment will not be quashed or abated on the ground that one member of the grand jury is disqualified. The curative provisions of this statute are based on reason and sound public policy. It would be detrimental to the public interest, if a large number of indictments should be liable to be quashed or abated because one grand juror was disqualified. State v. Bailey, 159 W.Va. at 174, 220 S.E.2d at 436 (citations omitted). However, in certain instances, fundamental fairness requires looking behind the indictment to achieve the purposes of the West Virginia Constitution's due process clause.
Our state constitution 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. W.Va. Constitution, Article III, § 17. Our Due Process Clause requires that the government must follow certain procedures before an individual of this State may be deprived of his or her liberty or property. The Due Process Clause, Article III, Section 10 of the West Virginia Constitution, requires procedural safeguards against State action which affects a liberty or property interest. Syllabus Point 1, Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977). Due process of law means the due course of legal proceedings according to those rules and forms, which have been established for the protection of private rights, securing to every person a judicial trial before he can be deprived of life, liberty or property. Syllabus Pont 8, Peerce v. Kitzmiller, 19 W. Va. 564 (1882).
In West Virginia, criminal defendants are entitled to a legally constituted and unbiased grand jury. The State having once resorted to a grand jury procedure, [shall] furnish an unbiased grand jury. State v. Bailey, 159 W.Va. at 174, 220 S.E.2d at 436-437. See also, State ex rel. Pinson v. Maynard, 181 W.Va. at 665, 383 S.E.2d at 847. In State ex rel Starr v. Halbritter, 183 W.Va. 350, 395 S.E.2d 773 (1990), this Court, quoting Bank of Nova Scotia v. United States, 487 U.S. 250, 257, 108 S.Ct. 2369, 2375, 101 L.Ed.2d 228, 238 (1988) said that:
[There is] a class of cases in which indictments are dismissed, without a particular assessment of the prejudicial impact of the errors in each case, because the errors are deemed fundamental. . . . [T]hese cases are ones in which the structural protections of the grand jury have been so compromised as to render the proceedings fundamentally unfair, allowing the [irrebuttable] presumption of prejudice.
State ex rel. Starr v. Halbritter, 183 W.Va. at 353, 395 S.E.2d at 776. Flaws in grand jury procedures are included in this category of fundamental errors. See Losh v. McKenzie, 166 W.Va. 762, 769, 277 S.E.2d 606, 611 (1981) (discussing the different constitutional issues that can be raised during a habeas corpus proceeding).
The grand jury in West Virginia acts as both a sword and a shield protecting its citizens from an overreaching government. State ex rel. Miller v. Smith, 168 W.Va. 745, 752, 285 S.E.2d 500, 504 (1981). To have an investigating officer of one of the presentments that is being made to the grand jury sit on the grand jury inescapably raises the specter of unfair prejudice. As this Court stated in State v. Frazier, [i]t cannot be expected that law enforcement officials who are directly involved with the solution of a crime and the prosecution of its perpetrators will maintain an impartial role. 162 W.Va. 602, 605, 252 S.E.2d 39, 42 (1979) (discussing the impropriety of a testifying police officer remaining in the grand jury room after he has finished testifying and participating in the grand jury proceedings by questioning other grand jury witnesses).
The State argues that Ms. Barnhart was not prejudiced because Officer Wroten did not vote on the indictment or actively participate in the grand jury's deliberations. The fact that Officer Wroten did not vote or participate in the indictment returned against Ms. Barnhart is in no way dispositive. The United States Supreme Court has recognized that the fact that the alternate did not actively participate in deliberations is far from dispositive, as prejudice may arise 'either because the alternates actually participated in the deliberations, verbally or through 'body language'; or because the alternates' presence exerted a 'chilling' effect on the regular jurors. United States v. Olano, 507 U.S. 725, 739, 113 S.Ct. 1770, 1780, 123 L.Ed.2d 508, ___ (1993) (citations omitted). State v. Brown, 210 W.Va. 14, 30, 552 S.E.2d 390, 406 (2001) (McGraw, J., dissenting). There is no way for this Court to know what contact the other jurors may have had with Officer Wroten or whether he unconsciously raised an eyebrow or made a frown during deliberations. (See footnote 4) State v. Brown, 210 W.Va. at 389, 552 S.E.2d at 405 (discussing the presence of an alternate juror remaining in the room during petit jury deliberations) (Starcher, J., dissenting). Moreover, the inherent problems in trying to determine what actually occurs in a given jury room makes a bright line rule far more economical than a case-by-case analysis.
When a non-voting member of the grand jury is a police officer, the possibility of a chilling effect is necessarily heightened. In matters of constitutional significance, this Court cannot discount the potential influence that one individual juror might have on the jury as a whole. State v. Lightner, 205 W.Va. 657, 665, 520 S.E.2d 654, 662 (1999) (McGraw, J., dissenting).
Further, this Court cannot discount the possibility that the other grand jurors may have felt influenced by having an investigating police officer remain in the room while they deliberated and voted. Grand juries' inner-workings are kept secret to inspire the jurors with a confidence of security in the discharge of their responsible duties, so that they may deliberate and decide without apprehension of any detriment from an accused or any other person[.] State ex rel. Matko v. Ziegler, 154 W. Va. 872, 880, 179 S.E.2d 735, 740 (1971), overruled on other grounds, Smoot v. Dingess, 160 W.Va. 558, 236 S.E.2d 468 (1977). This confidence is compromised when a police officer, a very visible agent of the State, remains in the room during deliberations and voting. (See footnote 5) His presence alone constitutes a form of communication.
In West Virginia, [a]n appellate court is obligated to see that the guarantee of a fair trial under Section 10 of Article III of the West Virginia Constitution is honored. Thus, only where there is a high probability that an error of due process proportion did not contribute to the criminal conviction will an appellate court affirm. High probability requires that an appellate court possess a sure conviction that the error did not prejudice the defendant. Syllabus Point 11, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).
Based on the facts of the underlying case, this Court does not possess a sure conviction that Officer Wroten's presence on the grand jury did not unfairly prejudice Ms. Barnhart.
Ms. Barnhart was denied the right to have any indictment returned against her by a legally constituted and unbiased grand jury. (See footnote 6) See State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000); State v. Garrett, 195 W.Va. 630, 466 S.E.2d 481 (1995). The presence of a person other than a qualified juror for the case under consideration remaining in the grand jury room during deliberations, regardless of the participation of that unauthorized person, undermines the sanctity of the grand jury. The circuit court erred in not dismissing the indictment.