State Ex Rel. Hamstead v. Dostert

McGRAW, Justice:

In this habeas corpus proceeding, the petitioner, Braun A. Hamstead, Prosecuting Attorney of Jefferson County, challenges the authority of Judge Pierre E. Dostert, Circuit Judge of the Twenty-third Judicial Circuit, to order him sua sponte to seek a particular grand jury indictment. The petitioner also seeks to prohibit Judge Dostert from interfering further in the presentment of the case involved before the grand jury.

The circumstances surrounding the underlying criminal action are described in an affidavit and in exhibits submitted by the petitioner. Lois Yvonne Payne, lived with her mother, Adora M. Payne, and her mother’s sister, Genevieve McClain, in Jefferson County. Lois was fifty years old and had a long history of mental health problems. Genevieve was older and was also of arguable mental competency. Adora, in a statement given to police, described the altercation on August 20, 1983, between her daughter and her sister, which resulted in her sister’s death:

Mrs. McClain and my daughter were in the living room. Lois, my daughter, wanted to go to the store to get some cigarettes. Mrs. McClain then tried to lock the door to keep her (Lois) in the house. Both of them started tussling and both of them fell to the floor. I got my sister up by the hand and she walked back to the bedroom. She was conscious. She was laying on the bed bleeding and I kept wiping her head. She kept saying that she didn’t want to go to the hospital. She then went into a convulsion and I called Dr. Williams. She told me to call an ambulance. I called the ambulance and they took her to the hospital.

Lois Payne’s aunt died a few days later.

At the conclusion of a hearing on September 21, 1983, Lois Payne was sent to the Weston State Hospital for psychological examination and evaluation. At the conclusion of a subsequent hearing on November 4, 1983, Judge Dostert, based upon a psychological assessment of the defendant’s competency to stand trial, found that although she was not currently competent to stand trial, there was a substantial likelihood that she would become competent within six months. He then ordered her committed to Weston State Hospital for a period not to exceed six months.

On January 17,1984, the Jefferson County Grand Jury was set to convene and begin deliberations. On January 13, 1984, Judge Dostert learned that the petitioner was going to seek a grand jury indictment for involuntary manslaughter in the Payne case. On January 14, 1984, Judge Dostert telephoned assistant prosecuting attorney, Melody Gaidrich, indicating that the petitioner should seek a murder, and not an involuntary manslaughter, indictment in the Payne case. The petitioner was informed of Judge Dostert’s instructions by his assistant on January 16, 1984.

At approximately 9:15 a.m. on January 17, 1984, Judge Dostert telephoned the petitioner, ordering him to present a murder indictment and not to present an involuntary manslaughter indictment to the grand jury in the Payne case. The petitioner responded that, based upon the investigating officer’s report and the evidence presented at prior preliminary proceedings in the case, the grand jury should be permitted to consider returning an involuntary manslaughter indictment. The petitioner also indicated to Judge Dostert that he considered the matter to be solely within his discretion and that Judge Dostert’s attempt to influence grand jury proceedings could be seized upon by other defendants as jury tampering. Judge Dostert replied by ordering the petitioner to appear before him in his chambers at 9:30 a.m.

When the petitioner appeared before Judge Dostert in chambers, the judge reiterated his directive. The petitioner then requested a continuance (1) to permit resolution of the issue prior to presenting any testimony to the grand jury and (2) to avoid being held in contempt of Judge Dostert’s order. The request for a continuance was denied, and the judge indicated that the petitioner could do anything he wanted, because he was going to instruct the grand jury to consider only a murder indictment.

Judge Dostert proceeded to qualify, impanel, and instruct the grand jury generally on their duties and the procedures to be followed. In an admitted departure from past practice, however, Judge Dostert further instructed the grand jury that it could only consider murder indictments in homicide cases, and could not consider any lesser included offenses. Judge Dostert informed the grand jury that:

In West Virginia, the crime of homicide is committed when a person is killed by another human being and the killing is not accidental and it is not unjustified or it is not justified under the circumstances. You are not to consider the degrees of homicide, first degree murder, second degree murder, voluntary manslaughter, involuntary manslaughter. Your sole determination, one, was a human being killed? Second, was it or was it not accidental? Or third, this usually is in the case of a police officer, I will instruct you further if you desire, when a police officer kills a person, the question would become, was the killing justified or unjustified? It is for the petit jury to weigh the evidence in its entirety at a latter time and make the determination as to which degree, if any, of homicide has or has not been committed. (Emphasis added).¹

The grand jurors were then sent to their room. The petitioner again moved for a continuance, which was again denied, and Judge Dostert ordered the petitioner to go to the grand jury room. Upon his arrival in the grand juror’s chambers, the petitioner informed the grand jury of the potential problem, and asked the grand jurors to determine whether they desired to request a continuance from Judge Dostert. After deliberating for a period of time, the grand jury called the petitioner back into their chambers and delivered him a note to transmit to Judge Dostert, requesting that the court reporter read Judge Dostert’s instructions to the grand jury once again.

Upon receiving this note from the grand jury, Judge Dostert entered an “Order in Mandamus” directing the petitioner to show cause why he should not immediately commence presenting evidence to the grand jury. In his written response, the petitioner stated that the grand jury had not requested to hear any formal presentments, but desired to review the court’s instructions. The petitioner also reiterated his request for a continuance. Following a brief hearing on the rule to show cause, Judge Dostert ordered the petitioner to begin presenting cases to the grand jury. After the petitioner failed to respond to this order, Judge Dostert had him committed to the Jefferson County Jail at approximately 1:45 p.m. From his jail cell, the petitioner submitted a written response to Judge Dostert’s inquiry concerning whether he intended to present evidence to the grand jury, stating that he did not intend to present evidence “at this time.” Justice Dostert then entered a formal order, committing the petitioner to the Jefferson County Jail “until such time as he indicates that he is willing to state to the Court that he is prepared to obey the order of the Court as entered.”

That same day, the petitioner, while in jail, filed his petition for a writ of habeas corpus, which was granted by this Court. At approximately 5:15 p.m., the petitioner was released from jail by Judge Dostert upon his posting of fifty dollars bond on the condition that “he will appear in the Circuit Court at all times as required by said Court during the pendency of said matter.”

I.

Article IX, § 1 of the West Virginia Constitution provides: “The voters of each county shall elect ... a prosecuting attorney .... ” Article IV, § 8 of the West Virginia Constitution further provides: “The legislature ... shall prescribe, by general laws, the terms of office, powers, duties and compensation of all public officers .... ” Pursuant to this constitutional mandate, our legislature has provided:

It shall be the duty of the prosecuting attorney to attend to the criminal business of the State in the county in which he is elected and qualified, and when he has information of the violation of any penal law committed within such county, he shall institute and prosecute all necessary and proper proceedings against the offender....

West Virginia Code § 7-4-1 (1976 Replacement Vol.). (Emphasis added).

In connection with this duty to prosecute, this Court recognized in State ex rel. Skinner v. Dostert, 166 W.Va. 743, 278 S.E.2d 624, 631 (1981), that: “The duty to prosecute is qualified, however, in 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.” This discretion extends to the determination of what type of indictment will be sought in a particular case. As we stated in Skinner, 166 W.Va. at 752, 278 S.E.2d at 631: “[T]he prosecutor in his discretion may decide which of several possible charges he will bring against an accused.”

Part of the rationale behind this prosecu-torial discretion is attributable to the public prosecutor’s unique role in the criminal justice system. As is stated in Ethical Consideration 7-13 of our Code of Professional Responsibility:

The responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict. This special duty exists because: (1) the prosecutor represents the sovereign and therefore should use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute; (2) during trial the prosecutor is not only an advocate but he also may make decisions normally made by an individual client, and those affecting the public interest should be fair to all; and (3) in our system of criminal justice the accused is to be given the benefit of all reasonable doubts....

This prosecutorial discretion, however, is bounded by law. As is stated in Skinner, 166 W.Va. at 752-753, 278 S.E.2d at 631:

[Wjhile the prosecutor has discretion in the control of criminal cases, he must exercise that discretion so as to fulfill his duty to the people. W.Va. Const. art. 3, § 2. The courts of the State are open to all who seek redress of grievances. W.Va. Const. art. 3, § 17. As criminal offenses are offenses against the State which must be prosecuted in the name of the State, W.Va. Const. art. 2, §§ 6, 8; W.Va.Code § 62-9-1 (1977 Replacement Vol.); Moundsville v. Fountain, 27 W.Va. 182 (1885), the prosecutor, as the officer charged with prosecuting such offenses, has a duty to vindicate the victim’s and the public’s constitutional right of redress for a criminal invasion of rights. The “spirit of the law” has long been and it has 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. 363 (1823)_ The prosecutor, like any other executive officer, must have sound reasons for his actions.

Similarly in Syllabus Point 2 of State ex rel. Preissler v. Dostert, 163 W.Va. 719, 260 S.E.2d 279 (1979), we stated, “The prosecuting attorney is a constitutional officer who exercises the sovereign power of the State at the will of the people and he is at all times answerable to them. W.Va. Const., art. 2, § 2; art. 3, § 2; art. 9, § 1.” This Court has also recognized that, ultimately, “[fjailure of the prosecutor to perform the duties imposed by W.Va.Code § 7-4-1 would make him liable under W.Va. Const, art. 9, § 4; W.Va.Code § 6-6-7 (1979 Replacement Vol.); and W.Va.Code § 11-1-5 (1974 Replacement Vol.).” Syl. pt. 5, in part, State ex rel. Skinner v. Dostert, supra.

In West Virginia, one important limitation upon prosecutorial discretion with respect to the determination of whether to bring charges and what charges will be brought is contained in West Virginia Code § 7-4-1, which provides that when a prosecutor “has information of the violation of any penal law committed within such county, he shall institute and prosecute all necessary and proper proceedings against the offender_” (Emphasis added). As we recently stated in Syllabus Point 7 of Hodge v. Ginsberg, 172 W.Va. 12, 303 S.E.2d 245 (1983): “ ‘It is well established that the word “shall,” in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation.’ Syllabus Point 1, Nelson v. Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).” Similarly, in Syllabus Point 2 of Thomas v. Firestone Tire & Rubber Co., 164 W.Va. 763, 266 S.E.2d 905 (1980), this Court stated: “The word ‘any,’ when used in a statute, should be construed to mean any.” The only limitation upon the prosecutor’s duty to bring criminal charges when information is received that any crime has been committed in his county is the requirement that the proceedings instituted and prosecuted be “necessary and proper.”

When we speak of “prosecutorial discretion,” we are speaking of what course of conduct is “necessary and proper” given the circumstances in a particular case. With respect to the determination of whether to seek an indictment, the ultimate criterion must be whether, in the prosecutor’s professional judgment, it appears from the evidence that there is probable cause to believe that an offense has been committed and that the defendant has committed it. See West Virginia Code of Professional Responsibility DR 7-103(A) (1982 Replacement Vol.): “A public prosecutor or other government lawyer shall not institute or cause to be instituted criminal charges when he knows or it is obvious that the charges are not supported by probable cause.” It has been noted that, “A probable cause standard ... is sufficiently minimal that a prosecutor should not err in deciding whether the quantum of evidence is adequate to institute criminal proceedings.” American Bar Association Standards for Criminal Justice, Standard 3-3.9 Comment at 3-55 (1980). The utility of the “probable cause” standard in the prosecutor’s determination of whether to seek an indictment in a particular case is evidenced by its use at the preliminary hearing stage of the criminal process. See West Virginia Code § 62-1-8 (1977 Replacement Vol.). With respect to the determination of whether to seek an indictment and what indictment will be sought in a particular case, the probable cause standard represents the line of demarcation between pros-ecutorial discretion and prosecutorial duty.

In Syllabus Point 3 of State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479, 153 S.E.2d 284 (1967), this Court stated the well established rule that: “Mandamus lies to require the discharge by a public officer of a non-discretionary duty.” See also State ex rel. Rose v. Fewell, 170 W.Va. 447, 294 S.E.2d 434, 437 (1982); Perry v. Barker, 169 W.Va. 531, 289 S.E.2d 423, 428 (1982); Syl. pt. 6, State ex rel. Bagley v. Blankenship, 161 W.Va. 630, 246 S.E.2d 99 (1978); Syl. pt. 6, State ex rel. Kanawha County Building Commission v. Paterno, 160 W.Va. 195, 233 S.E.2d 332 (1977); Syl. pt. 3, State ex rel. Goodwin v. Rogers, 158 W.Va. 1041, 217 S.E.2d 65 (1975); Syl. pt. 1, State ex rel. The West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969). This Court has also recognized that, “Where the right sought to be enforced is a public one, mandamus can be sought by any citizen, taxpayer or voter.” Syl. pt. 3, Myers v. Barte, 167 W.Va. 194, 279 S.E.2d 406 (1981); see also Smith v. West Virginia State Board of Education, 170 W.Va. 593, 295 S.E.2d 680, 683 (1982); Syl. pt. 1, State ex rel. Brotherton v. Moore, 159 W.Va. 934, 230 S.E.2d 638 (1976); State ex rel. Brotherton v. Blankenship, 158 W.Va. 390, 214 S.E.2d 467, 474 (1975); Delardas v. County Court of Monongalia County, 155 W.Va. 776, 779, 186 S.E.2d 847, 850 (1972); State ex rel. West Virginia State Lodge, Fraternal Order of Police v. City of Charleston, 133 W.Va. 420, 430, 56 S.E.2d 763, 768-69 (1949); Syl. pt. 3, Prichard v. DeVan, 114 W.Va. 509, 172 S.E. 711 (1934); Syl. pt. 2, State ex rel. Matheny v. County Court of Wyoming County, 47 W.Va. 672, 35 S.E. 959 (1900). As previously noted, “ ‘[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. 363 (1823).” State ex rel. Skinner v. Dostert, 166 W.Va. at 1753, 278 S.E.2d at 631.

Therefore, if a citizen believes, has reason to believe, or knows that probable cause exists to charge an individual with the commission of a particular crime, and also believes, has reason to believe, or knows that the prosecutor is failing to perform his nondiscretionary duty to act upon this probable cause, such citizen may seek by writ of mandamus to compel the prosecutor to perform his nondiscretionary duties. If a circuit judge believes, has reason to believe, or knows that probable cause exists to charge an individual with the commission of a particular crime, and also believes, has reason to believe or knows that the prosecutor is failing to perform his nondiscretionary duty to act upon this probable cause, he may complain as may any other citizen through the prosecution of a mandamus action to compel compliance by the prosecutor. Further, just as any other citizen may not preside over his own cause, so too must the complainant circuit judge follow the procedures contained in Rule XVII of the West Virginia Trial Court Rules for Courts of Record (1983 Supp.) for the appointment of another circuit judge to hear the mandamus petition.

One aspect of the probable cause limitation on a prosecutor’s discretion is a prohibition against “overcharging” a criminal defendant in order to induce a guilty plea.² Standard 3-3.9(e) of the American Bar Association Standards for Criminal Justice (1980) provides that, “The prosecutor should not bring or seek charges greater in number or degree than can reasonably be supported with evidence at trial.” Standard 3-3.9(a) of the American Bar Association Standards for Criminal Justice (1980) further provides:

It is unprofessional conduct for a prosecutor to institute, or cause to be instituted, or to permit the continued pendency of criminal charges when it is known that the charges are not supported by probable cause. A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.

See also West Virginia Code of Professional Responsibility DR 7-103(A) (1982 Replacement Vol.); Commonwealth v. St. Pierre, 377 Mass. 650, 387 N.E.2d 1135 (1979).

One structural restraint on a prosecutor’s ability to overcharge is found in West Virginia Code § 62-1-8 (1977 Replacement Vol.), which provides:

If the offense is to be presented for indictment, the preliminary examination shall be conducted by a justice of the county in which the offense was committed within a reasonable time after the defendant is arrested, unless the defendant waives examination_ If the defendant waives preliminary examination or if, after hearing, it appears from the evidence that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the justice shall forthwith hold him to answer in the court having jurisdiction to try criminal cases. If the evidence does not establish probable cause, the defendant shall be discharged....

Professionalism on the part of the prosecutor, however, through the good faith exercise of his discretionary powers, presents the most efficient mechanism for preventing overcharging in criminal cases.

In the present action, the petitioner sought to utilize self-restraint in seeking a grand jury indictment for involuntary manslaughter where all the information available to him indicated an absence of premeditation, malice, or intent. The respondent judge, however, interfered with the exercise of this self-restraint by prohibiting the grand jury from considering anything but a murder indictment in homicide cases.

In State ex rel. Miller v. Smith, 168 W.Va. 745, 285 S.E.2d 500, 506 (1981), we stated, “The grand jury is an integral part of the judicial system and enjoys a special relationship with the court by which it is convened. See State ex rel. Casey v. Wood, [156 W.Va. 329, 193 S.E.2d 143 (1972)]. Because of this special relationship the court has a particular responsibility to insure the fairness of grand jury proceedings.” The primary means by which a trial court fulfills its responsibility to insure fairness in grand jury proceedings is through its instructions to grand jurors on their purpose, function, and the procedures to be followed governing their deliberations and determinations.³ In this regard, West Virginia Code § 52-2-6 (1981 Replacement Vol.), provides: “The grand jurors, after being sworn, shall be charged by the judge, and shall then be sent to their room.”

The Fifth Amendment to the United States Constitution provides, in part, that: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury .... ” Similarly, article III, § 4 of the West Virginia Constitution provides that: “No 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.” Our legislature has mandated that “[a]t least twelve of the grand jurors must concur in finding or making an indictment or presentment....” West Virginia Code § 52-2-8 (1981 Replacement Vol.); see also W.Va.R.Crim.P. 6(f). In the present case, Judge Dostert attempted to usurp the power of the grand jury by substituting his view on the proper indictment returnable for that of the required twelve members. In doing so, Judge Dostert ventured beyond the trial judge’s traditional role of supervision of grand jury proceedings into the role of participation. While a circuit court has supervisory powers over grand jury proceedings to preserve the integrity of the grand jury process and to ensure the proper administration of justice, it may not prohibit grand jury consideration of offenses within any particular class of crimes.

In addition to Judge Dostert’s improper interference with grand jury prerogative, his actions also unreasonably infringed upon the petitioner’s discretion in determining what type of indictment would be sought in the Payne case. As previously noted, “[T]he prosecutor in his discretion may decide which of several possible charges he will bring against an accused.” State ex rel. Skinner v. Dostert, 166 W.Va. at 752, 278 S.E.2d at 631. Absent an abuse of discretion, judicial interference with the exercise of prosecutorial judgment as to what charge to bring in a criminal prosecution is impermissible. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978); State v. Freeland, 295 Or. 367, 667 P.2d 509 (1983); People v. Thomas, 118 Mich.App. 667, 325 N.W.2d 536 (1982); State v. Haskins, 188 Conn. 432, 450 A.2d 828 (1982); State v. McMahon, 183 N.J.Super. 97, 443 A.2d 258 (1981); State v. Bartlett, 210 Neb. 886, 317 N.W.2d 102 (1982); State v. Herme, 298 N.W.2d 454 (Minn.1980); Commonwealth v. Eisemann, 276 Pa.Super. 543, 419 A.2d 591 (1980); People v. Lewis, 73 Ill.App.3d 361, 25 Ill.Dec. 436, 386 N.E.2d 910 (1979); Commonwealth v. McKinney, 594 S.W.2d 884 (Ky.App.1979); People v. Evans, 94 Mich.App. 4, 287 N.W.2d 608 (1979); State v. Karpinski, 92 Wis.2d 599, 285 N.W.2d 729 (1979); State v. Worthey, 19 Wash.App. 283, 576 P.2d 896 (1978); Commonwealth v. United Food Corp., 374 Mass. 765, 374 N.E.2d 1331 (1978); State v. Goodwin, 116 N.H. 37, 351 A.2d 59 (1976); State v. Murphy, 113 Ariz. 416, 555 P.2d 1110 (1976); State v. Pruett, 213 Kan. 41, 515 P.2d 1051 (1973). No abuse of discretion on the part of the petitioner appears from the record in this case. In fact, given the circumstances in this case, a clear abuse of discretion might have indeed resulted if the petitioner had complied with Judge Dos-tert’s order to present only a murder indictment.

West Virginia Code § 7-7-8 (1976 Replacement Vol.), provides, in part, that: “If, in any case, the prosecuting attorney and his assistants are unable to act, or if in the opinion of the court it would be improper for him or his assistants to act, the court shall appoint some competent practicing attorney to act in that case.” With regard to the application of this disqualification statute, we held in Syllabus Point 3 of State ex rel. Preissler v. Dostert, supra:

Before a prosecuting attorney may be disqualified from acting in a particular case and relieved of the duties imposed upon him by the Constitution and by statute, the reasons for his disqualification must appear on the record, and where there is any factual question as to the propriety of the prosecutor acting in the matter, he must be afforded notice and an opportunity to be heard.

This Court has recognized that circuit courts have “a particular responsibility to insure the fairness of grand jury proceedings.” State ex rel. Miller v. Smith, 168 W.Va. at 756, 285 S.E.2d at 506.

This Court further recognizes that circuit courts may become aware of potential abuses of prosecutorial discretion which could undermine the fairness of grand jury proceedings. If a circuit judge desires to intervene in the relationship between a grand jury and a prosecutor, in the absence of a proper complaint by a concerned citizen, he can do so by bringing a disqualification motion under West Virginia Code 7-7-8 (1976 Replacement Vol.).⁴ When a circuit judge is the'moving party in the attempted disqualification of a prosecuting attorney under West Virginia Code 7-7-8 (1976 Replacement Vol.), he should disqualify himself under Canon 3C(1) of the West Virginia Judicial Code of Ethics (1982 Replacement Vol.), and follow the procedures contained in Rule XVII of the West Virginia Trial Court Rules for Courts of Record (1983 Supp.) for the appointment of another circuit judge to hear the disqualification motion.⁵

II.

We now consider whether the petitioner’s refusal to obey Judge Dostert’s order requiring the presentment of a murder indictment in the Payne case constituted a basis for a citation of criminal contempt. In addressing a similar abuse of Judge Dostert’s contempt power, this Court stated in Syllabus Point 3 of State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982):

Where a court has jurisdiction to issue a particular order, the fact that such order is erroneous, irregular, or is improvidently rendered, does not justify one in disregarding or violating the order, and then citing the court’s error as a defense to a charge of contempt. Where, however, the judge lacks jurisdiction, or is without power or authority to render the order, refusal to comply with such order may not be punished as contempt.

Judge Dostert had no sua sponte power or authority to order the petitioner to present only a murder indictment to the grand jury in the Payne case. Therefore, the petitioner’s refusal to comply could not be punished as contempt.

III.

The petitioner also seeks to prohibit Judge Dostert from interfering further in the presentment of the case involved before the grand jury. Recently, in Syllabus Point 2 of State ex rel. Green v. Dostert, 172 W.Va. 222, 304 S.E.2d 675 (1983), this Court stated the general rule that: “ ‘The writ of prohibition lies as a matter of right when the inferior court ... exceeds its legitimate powers.’ Syllabus Point 5, in part, State ex rel. Smith v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960).” See also West Virginia Code § 53-1-1 (1981 Replacement Vol.); State ex rel. Miller v. Smith, supra; State ex rel. McCartney v. Nuzum, 161 W.Va. 740, 248 S.E.2d 318 (1978); State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977); State ex rel. Carson v. Wood, 154 W.Va. 397, 175 S.E.2d 482 (1970); Rakes v. Ferguson, 147 W.Va. 660, 130 S.E.2d 102 (1963); White Sulphur Springs, Inc. v. Jarrett, 124 W.Va. 486, 20 S.E.2d 794 (1942); Norfolk & Western Ry. v. Pinnacle Coal. Co., 44 W.Va. 547, 30 S.E. 196 (1898); Wood County Court v. Boreman, 34 W.Va. 362, 12 S.E. 490 (1890). Because precluding the grand jury from considering lesser included offenses in homicide cases exceeds the legitimate powers of a circuit court, the petitioner is entitled to a writ prohibiting Judge Dostert from interfering further in the presentment of the Payne case before the grand jury.

For the foregoing reasons, the petitioner’s requests for writs of habeas corpus and prohibition are granted.

Writs granted.

1 . It should be noted that this excerpted portion of Judge Dostert’s charge to the grand jury is not a proper statement of the law of homicide in this jurisdiction.

2 . At the other end of the spectrum, a prosecutor may abuse his or her discretion by an unreasonable failure to prosecute. See State ex rel. Skinner v. Dostert, 166 W.Va. at 753, 278 S.E.2d at 631.

3 . Section 204(1) of the American Bar Association Model Grand Jury Act (1982) provides:

Upon impanelment of each grand jury, the court shall properly instruct or charge the grand jury, and shall inform the grand jury inter alia of the following:

(a)its duty to inquire into offenses against the criminal laws alleged to have been committed within the jurisdiction;

(b) its independent right to call and interrogate witnesses;

(c) its right to request the production of documents or other evidence, including exculpatory evidence;

(d) the necessity of finding credible evidence of each material element of the crime or crimes charged before returning a true bill;

(e) its right to have the prosecutor present it with draft indictments for less serious charges than those originally requested by the prosecutor;

(f) the obligation of secrecy;

(g) such other duties and rights as the court deems advisable.

4 . We also note that when a circuit judge believes that a prosecutor’s actions constitute a violation of the Code of Professional Responsibility, he has a duty to report such misconduct under Canon 3B(3) of the Judicial Code of Ethics (1982 Replacement Vol.) to the West Virginia State Bar Committee on Legal Ethics. See State ex rel. Preissler v. Dostert, 163 W.Va. at 728 n. 8, 260 S.E.2d at 285 n. 8.

5 . This Court discussed the importance of a hearing on the record in the disqualification of a prosecutor in State ex rel. Preissler v. Dostert, 163 W.Va. at 732-733, 260 S.E.2d at 287:

Even where a prosecutor voluntarily recuses himself from a case, he can be discharged from his constitutional obligations [only] when it appears on the record that his reasons for disqualification are not frivolous or improper .... the prosecuting attorney is elected by the people of the county to represent them in prosecutions against criminal offenders. Consequently, the public has a right to know why the attorney they have selected to represent them and whose salary they pay with their taxes, is unfit to prosecute a given case. The prosecuting attorney is a constitutional officer who exercises the sovereign power of the State at the will of the people and he is at all times answerable to them. W.Va. Const, art. 2, § 2; art. 3, § 2, art. 9, § 1. In other words, for the purposes of this issue, the prosecuting attorney is the trustee and servant of the people and at all times amenable to them. W.Va. Const, art. 3, § 2. The court must provide every safeguard to insure the public that the business of the State is being properly conducted. A hearing on the record provides the public with an accurate record of the actions of their elected officials, upon which they may evaluate his performance.