State of West Virginia v. Megan Davis

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
FILED
November 5, 2015
No. 14-1162 released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA,
Respondent Below, Petitioner,
v.
MEGAN DAVIS,
Petitioner Below, Respondent.
Appeal from the Circuit Court of Cabell County
The Honorable F. Jane Hustead, Judge
Civil Action No. 14-C-579
REVERSED
Submitted: September 23, 2015
Filed: November 5, 2015
Joe M. Fincham II, Esq. A. Courtenay Craig, Esq.
Assistant Prosecuting Attorney Huntington, West Virginia
Huntington, West Virginia Attorney for Respondent
Attorney for Petitioner
JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A de novo standard of review applies to a circuit court’s decision to
grant or deny a writ of mandamus.” Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty.
Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008).
2. “Where the issue on an appeal from the circuit court is clearly a question
of law or involving an interpretation of a statute, we apply a de novo standard of review.”
Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
3. “Court rules are interpreted using the same principles and canons of
construction that govern the interpretation of statutes.” Syl. Pt. 2, Casaccio v. Curtiss, 228
W.Va. 156, 718 S.E.2d 506 (2011).
4. “‘A preliminary examination conducted pursuant to Rule 5.1 of the West
Virginia Rules of Criminal Procedure serves to determine whether there is probable cause
to believe that an offense has been committed and that the defendant committed it; the
purpose of such an examination is not to provide the defendant with discovery of the nature
of the State’s case against the defendant, although discovery may be a by-product of the
preliminary examination.’ Syl. pt. 1, Desper v. State, 173 W.Va. 494, 318 S.E.2d 437(1984).” Syl. Pt. 3, State v. Davis, 232 W.Va. 398, 752 S.E.2d 429 (2013).
i
5. “Where the State proceeds under W.Va. Code, 62-1-1, et seq., to arrest
the accused for an offense which must be brought before the grand jury, the defendant is
entitled to a preliminary hearing under W.Va. Code, 62-1-8 (1965). If, however, the State
elects to indict him without a preliminary hearing or before one can be held, the preliminary
hearing is not required.” Syl. Pt. 3, State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 268
S.E.3d 45 (1980).
6. “Statutes which relate to the same subject matter should be read and
applied together so that the Legislature’s intention can be gathered from the whole of the
enactments.” Syl. Pt. 3, Smith v. State Workmen’s Comp. Comm’r, 159 W.Va. 108, 219
S.E.2d 361 (1975).
7. Where a criminal complaint initiated pursuant to West Virginia Code
§ 62-1-1 (2014) has been dismissed, the right to a preliminary hearing arising under West
Virginia Code § 62-1-8 (2014) no longer exists.
8. “Most courts hold that as a general rule, a trial court should not grant
a motion to dismiss criminal charges unless the dismissal is consonant with the public interest
in the fair administration of justice.” Syl. Pt. 12, in part, Myers v. Frazier, 173 W.Va. 658,
319 S.E.2d 782 (1984).
ii
LOUGHRY, Justice:
The State of West Virginia appeals from the October 23, 2014, order of the
Circuit Court of Cabell County granting a petition for writ of mandamus filed by the
respondent herein, Megan Davis. At issue in this mandamus case is a separate, criminal case
against the respondent that was dismissed by Cabell County Magistrate Ron Baumgardner
upon the State’s motion prior to holding a preliminary hearing.1 Because the State indicated
that it might seek an indictment for the alleged criminal conduct, the circuit court ruled that
the respondent is entitled to a preliminary hearing. After a careful review of this matter, we
conclude that the respondent is not entitled to a preliminary hearing. Accordingly, we
reverse.
I. Factual and Procedural Background
On August 4, 2014, a City of Huntington police officer filed a criminal
complaint in magistrate court charging the respondent with conspiracy to deliver a controlled
substance, which is a felony. The complaint alleged that she arranged for a person who was
cooperating with law enforcement to sell sixteen grams of marijuana to a third party. The
respondent was arrested and arraigned on August 5, 2014. Thereafter, her bail was reduced
and, on August 15, 2014, she was released on a personal recognizance bond. On August 21,
1
Although the parties’ briefs denominated the magistrate judge as the petitioner in this
appeal, the State of West Virginia is the real party in interest. The style of this opinion has
been modified accordingly.
1
2014, the respondent’s defense counsel suggested to the assistant prosecutor that the
criminal charge was unsupportable because the respondent had been entrapped. Acting on
this information, the assistant prosecutor directed the police to investigate the entrapment
claim.
The following day, August 22, 2014, the parties appeared in magistrate court
for a preliminary hearing on the criminal charge. Before the preliminary hearing
commenced, the assistant prosecutor filed a motion with the magistrate court seeking to
dismiss the criminal complaint without prejudice. The prosecutor indicated that the case was
to be dismissed “for direct,” which signaled that the State might, in the future, present the
matter to the grand jury for possible indictment. The prosecutor asked for the dismissal
because he did not believe he was in a position to proceed with the preliminary hearing, in
part because the State had not yet completed its investigation concerning the respondent’s
allegation of entrapment. Opposing the motion, the respondent offered to waive the
preliminary hearing in exchange for an “open file policy,” allowing her access to the State’s
file on the criminal charge. The State declined this offer. Over the respondent’s objection,
the magistrate court granted the motion to dismiss the criminal complaint. As a result, no
preliminary hearing was held.
2
Later that same day, although the criminal complaint had been dismissed, the
respondent filed a petition for writ of mandamus asking the circuit court to require the
magistrate “to hold a pre-indictment preliminary hearing for the [respondent] so that [s]he
may be able to protect [her] rights[.]” The mandamus petition also sought a standing order
requiring every magistrate in the county to ensure that the right to a preliminary hearing is
observed in every criminal case.
After briefing and oral argument on the mandamus petition, the circuit court
ruled that the respondent was entitled to a preliminary hearing provided the hearing could be
held prior to the return of an indictment against her. The circuit court reasoned that the State
may move to dismiss a criminal charge “altogether,” but it has no right to seek the dismissal
of a felony charge in order to directly present the matter to a grand jury, gain a tactical
advantage over a defendant, or merely circumvent a defendant’s right to a preliminary
hearing.2 A written Final Order reflecting the circuit court’s mandamus ruling was entered
2
During the mandamus hearing, after the circuit court announced its ruling, the court
and the parties discussed how to proceed. In light of the ruling, the State indicated that it
would acquiesce to the respondent’s request for an open file policy, while the respondent
agreed that she would waive the preliminary hearing and the criminal case could remain
dismissed. Although these terms were incorporated into the circuit court’s Final Order, that
order was immediately stayed, and the record is clear that the parties acquiesced only as a
result of the circuit court’s ruling. The State asserts that the mandamus ruling constitutes
error as a matter of law impacting this and other cases.
3
on October 23, 2014. By separate order entered that same day, the circuit court stayed the
execution of its Final Order pending the outcome of this appeal.
II. Standard of Review
This appeal is from a circuit court’s order in a mandamus case. “A de novo
standard of review applies to a circuit court’s decision to grant or deny a writ of mandamus.”
Syl. Pt. 1, Harrison Cty. Comm’n v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555(2008); accord Syl. Pt. 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995) (“The
standard of appellate review of a circuit court’s order granting relief through the
extraordinary writ of mandamus is de novo.”). Similarly, our review is plenary on the issues
before us pertaining to the interpretation of state statutes and court rules. “Where the issue
on an appeal from the circuit court is clearly a question of law or involving an interpretation
of a statute, we apply a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charlie
A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). “Court rules are interpreted using the same
principles and canons of construction that govern the interpretation of statutes.” Syl. Pt. 2,
Casaccio v. Curtiss, 228 W.Va. 156, 718 S.E.2d 506 (2011). With this in mind, we consider
the parties’ arguments.
III. Discussion
4
The State argues that the respondent is not entitled to a preliminary hearing
because her criminal complaint was dismissed, and that it was error for the circuit court to
conclude that a magistrate may not dismiss a felony charge before holding a preliminary
hearing. The respondent contends that she is entitled to a pre-indictment preliminary hearing
as a matter of right under the plain language of statutory and judicial rule. This case requires
us to examine two issues of criminal procedure: an accused’s right to a preliminary hearing,
and the State’s authority to seek the dismissal of a criminal complaint. We begin our analysis
with a brief overview of the law of preliminary hearings in West Virginia.
“[T]his Court has consistently recognized that a preliminary hearing is not a
federal constitutional mandate, and that there is nothing in our State Constitution which
would give an independent state constitutional right to a preliminary hearing.” Peyatt v.
Kopp, 189 W.Va. 114, 116, 428 S.E.2d 535, 537 (1993) (footnote and citations omitted);
accord Syl. Pt. 1, State ex rel. Rowe v. Ferguson, 165 W.Va. 183, 268 S.E.2d 45 (1980) (“A
preliminary hearing in a criminal case is not constitutionally required.”). Accordingly, the
parties focus upon statutory and judicial rules to support their arguments.
In article one, chapter sixty-two of the West Virginia Code, the Legislature
established a preliminary procedure to “deal with arrest[s] . . . and the attendant steps to bring
the arrested person before a magistrate to be informed of the nature of the charge, his right
5
to counsel and the arrangement for bail.” Rowe, 165 W.Va. at 189, 268 S.E.2d at 48.
Section one of this article provides for the filing of a written complaint stating the essential
facts of the crime charged,3 while sections two4 through five pertain to the issuance and
execution of an arrest warrant based upon the filing of that criminal complaint. Section six
requires that a magistrate court inform the defendant of the nature of the criminal complaint,
his or her rights, and the possibility of bail. This statute provides, inter alia, that “[t]he
[magistrate] shall in plain terms inform the defendant of the nature of the complaint against
him, of his right to counsel and, if the offense is to be presented for indictment, of his right
to have a preliminary examination.” W.Va. Code § 62-1-6 (2014). Section eight pertains to
a preliminary examination, commonly referred to as a preliminary hearing:
If the offense is to be presented for indictment, the
preliminary examination shall be conducted by a [magistrate] of
the county in which the offense was committed within a
reasonable time after the defendant is arrested, unless the
defendant waives examination. The defendant shall not be
3
West Virginia Code § 62-1-1 (2014) provides that “[t]he complaint is a written
statement of the essential facts constituting the offense charged. It shall be made upon oath
before a [magistrate].” Although the statute originally used the term “justice of the peace,”
by operation of West Virginia Code § 50-1-17 (2008), all references to that term in this and
other state statutes was replaced with “magistrate.”
4
West Virginia Code § 62-1-2 (2014) provides as follows:
If it appears from the complaint that there is probable cause to
believe that an offense has been committed and that the
defendant has committed it, a warrant for the arrest of the
defendant shall issue to any officer authorized by law to arrest
persons charged with offenses against the State. More than one
warrant may issue on the same complaint.
6
called upon to plead. Witnesses shall be examined and evidence
introduced for the State under the rules of evidence prevailing
in criminal trials generally. The defendant or his attorney may
cross-examine witnesses against him and may introduce
evidence in his own behalf. On motion of either the State or the
defendant, witnesses shall be separated and not permitted in the
hearing room except when called to testify. 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 [magistrate] 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. After concluding the proceeding the [magistrate]
shall transmit forthwith to the clerk of the court to which the
defendant is held to answer all papers in the proceeding and any
bail taken by him.
W.Va. Code § 62-1-8 (2014). Similar language is found in procedural rules promulgated by
this Court. Rule 5(c) of the West Virginia Rules of Criminal Procedure provides, in pertinent
part, that “[i]f the offense is to be presented for indictment, a defendant is entitled to a
preliminary examination, unless waived[,]” while Rule 5(e) of the Rules of Criminal
Procedure for Magistrate Courts states, “[i]f the offense is to be presented for indictment, a
defendant is entitled to a preliminary examination unless waived.”
The well-settled purpose of a preliminary hearing is to determine whether there
is probable cause to hold a defendant to answer for the alleged offenses set forth in the
criminal complaint. This purpose is made clear in West Virginia Code § 62-1-8: “[I]f, after
hearing, it appears from the evidence that there is probable cause to believe that an offense
7
has been committed and that the defendant has committed it, the [magistrate] shall forthwith
hold him to answer in the court having jurisdiction to try criminal cases.” However, “[i]f the
evidence does not establish probable cause, the defendant shall be discharged.” Id. This
same principle was incorporated into identically-worded provisions of Rule 5.1(a) of our
Rules of Criminal Procedure and Rule 5.1(a) of our Rules of Criminal Procedure for
Magistrate Courts: “If from the evidence it appears that there is probable cause to believe
that an offense has been committed and that the defendant committed it, the magistrate shall
forthwith hold the defendant to answer in circuit court.” Separate subsections of these same
rules provide that if the evidence at the preliminary hearing does not present probable cause,
then “the magistrate shall dismiss the complaint and discharge the defendant. The discharge
of the defendant shall not preclude the state from instituting a subsequent prosecution for the
same offense.” W.Va. R. Crim. P. 5.1(b), W.Va. R. Crim. P. Mag. Ct. 5.1(b).
It has long been the law in this state that a preliminary hearing is not conducted
for the purpose of allowing a criminal defendant to perform discovery:
“A preliminary examination conducted pursuant to Rule
5.1 of the West Virginia Rules of Criminal Procedure serves to
determine whether there is probable cause to believe that an
offense has been committed and that the defendant committed
it; the purpose of such an examination is not to provide the
defendant with discovery of the nature of the State’s case
against the defendant, although discovery may be a by-product
of the preliminary examination.” Syl. pt. 1, Desper v. State, 173
W.Va. 494, 318 S.E.2d 437 (1984).
8
Syl. Pt. 3, State v. Davis, 232 W.Va. 398, 752 S.E.2d 429 (2013). Moreover, a preliminary
hearing is not required if the state elects to proceed directly to a grand jury without arresting
the accused, or if the accused is arrested but indicted before the date set for the preliminary
examination:
Where the State proceeds under W.Va. Code, 62-1-1, et
seq., to arrest the accused for an offense which must be brought
before the grand jury, the defendant is entitled to a preliminary
hearing under W.Va. Code, 62-1-8 (1965). If, however, the
State elects to indict him without a preliminary hearing or before
one can be held, the preliminary hearing is not required.
Rowe, 165 W.Va. at 183, 268 S.E.2d at 45, syl. pt. 3; accord W.Va. R. Crim. P. Rule 5(c),
W.Va. R. Crim. P. Mag. Ct. Rule 5(e). Because the grand jury makes the probable cause
determination necessary for holding the defendant over for trial, the magistrate no longer
needs to address that issue.
The State contends that pursuant to the aforementioned law, there is no reason
to hold a preliminary hearing because the criminal complaint against the respondent was
dismissed. Conversely, the respondent asserts that because there is a possibility her matter
may be reviewed by a grand jury, a preliminary hearing is mandatory pursuant to the
following language in West Virginia Code § 62-1-8: “If the offense is to be presented for
indictment, the preliminary examination shall be conducted . . . unless the defendant waives
examination.” See also W.Va. R. Crim. P. 5(c), W.Va. R. Crim. P. Mag. Ct. 5(e). The
respondent asserts that she did not waive this right when she was before the magistrate.
9
Although the circuit court agreed with the respondent’s assertion, we do not find it
convincing or persuasive.
First, the circuit court’s ruling reflects a misapprehension of the reason for
holding a preliminary hearing. A magistrate is tasked with determining whether there is
probable cause that a defendant committed a crime so as to justify continuing to hold the
defendant to answer in court. As indicated above, “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 [magistrate] 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.” W.Va. Code § 62-1-8, in part (emphasis added);
accord W.Va. R. Crim. P. 5.1, W.Va. R. Crim. P. Mag. Ct. 5.1.
Given the magistrate court’s dismissal of the criminal complaint, there are no
pending criminal charges against the respondent. She is neither incarcerated nor released on
any type of bond. The magistrate court did not simply cancel the preliminary hearing; rather,
it dismissed the criminal complaint. Because the respondent is not being “held” to answer
for a criminal charge, there is no reason for the magistrate to make a probable cause
determination and no basis to conduct a preliminary hearing. Although the respondent may
wish to obtain information from the State for purposes of defending against a possible future
10
indictment, pre-trial discovery is not the purpose of a preliminary hearing. See e.g., Desper,
173 W.Va. at 495, 318 S.E.2d at 438-39, syl. pt. 1.
Second, the manner in which the respondent and the circuit court interpret the
phrase “[i]f the offense is to be presented for indictment, the preliminary examination shall
be conducted[,]” is incongruous with the remainder of West Virginia Code § 62-1-8 and
other statutes in article one, chapter sixty-two. West Virginia Code § 62-1-8 is “part of a
larger criminal procedure article [that] deals with the initiation of a criminal case beginning
with the filing of a complaint for an arrest warrant.” Rowe, 165 W.Va. at 189, 268 S.E.2d
at 48. As such, it must be read in pari materia with its related statutes. Id. “Statutes which
relate to the same subject matter should be read and applied together so that the Legislature’s
intention can be gathered from the whole of the enactments.” Syl. Pt. 3, Smith v. State
Workmen’s Comp. Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975); see also Syl. Pt. 5, in
part, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907(1975) (“Statutes which relate to the same persons or things, or to the same class of persons
or things, or statutes which have a common purpose will be regarded in pari materia to
assure recognition and implementation of the legislative intent.”).
Reading West Virginia Code § 62-1-8 in context with the rest of article one
makes clear that there must be a pending criminal complaint before an accused is entitled to
11
a preliminary hearing. West Virginia Code § 62-1-1 explains that “[t]he complaint is a
written statement of the essential facts constituting the offense charged.” Id. (emphasis
added.) West Virginia Code § 62-1-2 provides for the issuance of an arrest warrant if it
appears from the complaint that there is probable cause to believe that an offense has been
committed and that the defendant has committed it. West Virginia Code § 62-1-6 directs the
magistrate to inform the defendant “of the nature of the complaint against him, of his right
to counsel and, if the offense is to be presented for indictment, of his right to have a
preliminary examination.” Id. (emphasis added). West Virginia Code § 62-1-8 requires the
magistrate to make a probable cause determination in order to “hold” the accused for the
court having criminal jurisdiction over the matter. All of these provisions presuppose there
is a pending criminal complaint for which the defendant is subject to arrest; was arrested and
incarcerated; or was arrested and released on bail or personal recognizance–in other words,
the defendant is in some manner being held to answer for a particular charge. In short, these
statutes and the corresponding court rules clearly demonstrate that a preliminary hearing is
only required when there is a pending criminal complaint. Because the criminal complaint
against the respondent was dismissed in its entirety, the preliminary procedures specified in
West Virginia Code §§ 62-1-1 through 62-1-12 for the handling of that criminal complaint
are wholly inapplicable.
12
As this Court has previously recognized, West Virginia Code § 62-1-8 provides
only a conditional right to a preliminary hearing. In Rowe, the relators argued they were
entitled to a preliminary hearing after they were indicted by a grand jury. 165 W.Va. 183,
268 S.E.2d 45. The magistrate had scheduled a preliminary hearing on the criminal
complaint, but the hearing was cancelled upon the issuance of the indictment. We
determined that if the Legislature had intended an absolute right to a preliminary hearing
following indictment, it would have expressly provided for such hearing. Id. at 191-92, 268
S.E.2d at 49. Instead, if “the State elects to indict [an accused] without a preliminary hearing
or before one can be held, the preliminary hearing is not required.” Id. at 183, 268 S.E.2d
at 45, syl. pt. 3, in part.
Examining the meaning of the phrase, “[i]f the offense is to be presented for
indictment, the preliminary examination shall be conducted[,]” that appears in West Virginia
Code § 62-1-8, the Rowe Court recognized “two basic principles. First, [the phrase]
demonstrates a recognition that all offenses need not be presented for indictment. Second,
the wording [of the phrase] conditions the right to a preliminary hearing on a future event .
. . that is, the offense will be presented to the grand jury.” Rowe, 165 W.Va. at 191, 268
S.E.2d at 49. Notably, our analysis in Rowe did not address or even contemplate the prior
13
dismissal of the criminal complaint about which the preliminary hearing would pertain.5
When viewed in this context, it is clear West Virginia Code § 62-1-8 sets forth an additional
principle underlying the conditional right to a preliminary hearing: The subject “offense”
must be charged in a pending criminal complaint.
The respondent relies upon Peyatt v. Kopp, wherein this Court stated that “Rule
5 of the West Virginia Rules of Criminal Procedure provides . . . that a defendant is entitled
to a preliminary hearing unless it is waived.” Peyatt, 189 W.Va. at 116, 428 S.E.2d at 537.
However, we did not consider in Peyatt whether a person is entitled to a preliminary hearing
after the criminal complaint is dismissed. Moreover, in Peyatt this Court recognized
limitations on the right to a preliminary hearing, including that no such hearing is required
after an indictment has issued,6 that a preliminary hearing is not for the purpose of providing
the defendant with discovery of the nature of the State’s case,7 and that evidence introduced
at a preliminary hearing may be limited to the question of probable cause.8 Thus, Peyatt does
not support the respondent’s position.
5
One possible reason why Rowe did not contemplate the prior dismissal of the criminal
complaint is that most defendants are not likely to object to the dismissal of their criminal
charges.
6
189 W.Va. at 116, 428 S.E.2d at 537.
7
189 W.Va. at 117, 428 S.E.2d at 538.
8
189 W.Va. at 117, 428 S.E.2d at 538.
14
Based on the above, we conclude, and now hold, that where a criminal
complaint initiated pursuant to West Virginia Code § 62-1-1 has been dismissed, the right
to a preliminary hearing arising under West Virginia Code § 62-1-8 no longer exists.
We also reject the circuit court’s conclusion that if the state might seek an
indictment in the future, a magistrate court cannot dismiss a criminal complaint without
holding a preliminary hearing.9 As discussed above, a preliminary hearing is not a
prerequisite for a grand jury indictment. See Rowe, 165 W.Va. at 183, 268 S.E.2d at 45, syl.
pt. 3, in part (“If, however, the State elects to indict him without a preliminary hearing . . .
the preliminary hearing is not required.”); accord Syl. Pt. 6, in part, State v. Hutcheson, 177
W.Va. 391, 352 S.E.2d 143 (1986); (“The . . . failure to hold a preliminary hearing will not
vitiate an indictment.”); W.Va. R. Crim. P. Rule 5(c) (“[T]he preliminary examination shall
not be held if the defendant is indicted[.]”); W.Va. R. Crim. P. Mag. Ct. Rule 5(e) (same).
The Legislature has directed that,
[p]rosecutions for offenses against the State, unless otherwise
provided, shall be by presentment or indictment. The trial of a
person on a charge of felony shall always be by indictment; and
indictment may be found in the first instance, whether the
accused has been examined or committed by a [magistrate] or
not.
W.Va. Code § 62-2-1 (2014) (emphasis added).
9
The circuit court even indicated during the mandamus hearing that the criminal
charges should be re-filed just to afford the respondent a preliminary hearing.
15
In the instant matter, the State moved to dismiss the criminal complaint
pursuant to Rule 16(a) of the Rules of Criminal Procedure for Magistrate Courts, which
provides that “[t]he attorney for the state may move to dismiss a complaint, and if the
magistrate grants the motion the prosecution shall thereupon terminate. Such a dismissal
shall not be granted during the trial without the consent of the defendant.” Nearly identical
language is found in Rule 48(a) of the Rules of Criminal Procedure: “The attorney for the
state may by leave of court file a dismissal of an indictment, information or complaint, and
the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial
without the consent of the defendant.” These procedural rules restrict a prosecutor by
requiring leave of court for a dismissal. State v. McWilliams, 177 W.Va. 369, 373, 352
S.E.2d 120, 125 (1986) (“A prosecutor cannot dismiss criminal charges without the prior
approval of the court.”) Furthermore, when making a motion to dismiss, the prosecutor must
provide the court with reasons for the dismissal. State v. Robert Scott R., Jr., 233 W.Va. 12,
27, 754 S.E.2d 588, 603 (2014); Syl. Pt. 11, Myers v. Frazier, 173 W.Va. 658, 319 S.E.2d
782 (1984); State ex rel. Skinner v. Dostert, 166 W.Va. 743, 753, 278 S.E.2d 624, 632
(1981). Importantly, the court should not grant the motion “unless the dismissal is consonant
with the public interest in the fair administration of justice.” Myers, 173 W.Va. at 662, 319
S.E.2d at 786, syl. pt. 12, in part. Finally, the rules dictate that the defendant’s consent to
dismissal is only required if the motion is made during trial. W.Va. R. Crim. P. 48(a); W.Va.
R. Crim. P. Mag. Ct. 16(a).
16
In the case at bar, the State did seek leave of court to dismiss the criminal
complaint, and the magistrate court granted the motion. Moreover, in the mandamus case
the circuit court recognized that the State’s motion to dismiss was made, at least in part,
because the police had not completed the investigation of the respondent’s entrapment claim.
The suggestion of entrapment had been raised just one day earlier. In light of this, there was
no basis upon which the circuit court could conclude that the dismissal of the respondent’s
criminal complaint was contrary to the fair administration of justice.
Rule 16(a) of the Rules of Criminal Procedure for Magistrate Courts and Rule
48(a) of the Rules of Criminal Procedure do not state that the dismissal of a pre-indictment
felony criminal complaint must be with prejudice or, as the circuit court coined it, be
“dismissed altogether.” Indeed, given the procedural circumstances of the respondent’s case,
such a conclusion would be illogical in view of additional court rules. Even if the State had
gone forward with the preliminary hearing and the magistrate court had dismissed the
complaint against the respondent for a lack of probable cause, the State still could have
sought an indictment against her. When discussing preliminary hearings, both Rule 5.1(b)
of the Rules of Criminal Procedure and Rule 5.1(b) of the Rules of Criminal Procedure for
Magistrate Courts provide as follows:
Discharge of defendant. – If from the evidence it appears
that there is no probable cause to believe that an offense has
been committed or that the defendant committed it, the
magistrate shall dismiss the complaint and discharge the
17
defendant. The discharge of the defendant shall not preclude
the state from instituting a subsequent prosecution for the same
offense.
Id. (emphasis added). If an offense alleged in a pre-indictment complaint that is dismissed
for a lack of probable cause may thereafter be presented to a grand jury, it would be illogical
to conclude that an offense alleged in a pre-indictment complaint dismissed in the interest
of the “fair administration of justice” could not also be considered by a grand jury. See
Myers, 173 W.Va. at 662, 319 S.E.2d at 786, syl. pt. 12, in part. Under our state constitution,
the decision on whether to indict a person rests with the grand jury. W.Va. Const. art. III,
§ 4; see Syl. Pt. 1, State v. Adams, 193 W.Va. 277, 456 S.E.2d 4 (1995).
The circuit court’s mandamus order expresses the concern that a prosecutor
might seek the dismissal of a criminal complaint in order to gain an improper tactical
advantage over a defendant. While this is a legitimate consideration, the solution is not to
provide a preliminary hearing to a person who is no longer facing a pending criminal charge,
or delay the dismissal of a complaint simply to hold a preliminary hearing. Instead, the
remedy lies with the magistrate court’s responsibility to ensure that the dismissal is consonant
with the public interest in the fair administration of justice. If a magistrate finds that an
18
improper motive lies behind a prosecutor’s motion to dismiss, the magistrate should deny the
motion.10
The legal standard for granting mandamus relief is well-settled:
A writ of mandamus will not issue unless three elements
coexist–(1) a clear legal right in the petitioner to the relief
sought; (2) a legal duty on the part of respondent to do the thing
which the petitioner seeks to compel; and (3) the absence of
another adequate remedy.
Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538, 170 S.E.2d 367 (1969).
For the reasons set forth above, and under the facts presented herein, the respondent does not
have a clear legal right to a preliminary hearing and the magistrate has no legal duty to
provide such a hearing. As such, mandamus does not lie.
IV. Conclusion
The October 23, 2014, Final Order of the Circuit Court of Cabell County is
reversed.
Reversed.
10
In addition, if there is cause to believe a person was subjected to false arrest or
wrongful prosecution, that individual may pursue remedies in tort.
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