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Grove v. State ex rel. Black

Supreme Court of West Virginia

May 11, 2018

Zachary Grove, Petitioner Below, Petitioner
State ex rel. Darrell Black, Cabell County Magistrate, and the State of West Virginia, Respondents Below, Respondents

          Cabell County 14-C-136


         Petitioner Zachary Grove, by counsel A. Courtenay Craig, appeals the Circuit Court of Cabell County's December 27, 2017, order that denied his petition for a writ of prohibition in which he sought to halt criminal proceedings against him in magistrate court. Respondents Cabell County Magistrate Darrell Black and the State of West Virginia, by counsel Shannon Frederick Kiser, filed a response in support of the circuit court's order.

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner was arrested on August 25, 2010, and charged in four criminal complaints with the misdemeanor offenses of disorderly conduct, in violation of West Virginia Code § 61-6-1b; battery of a police officer, in violation of West Virginia Code § 61-2-10b(d); obstructing, in violation of West Virginia Code § 61-5-17(a); and assault of a police officer, in violation of West Virginia Code § 61-2-10b(e). The charges stemmed from law enforcement's attempt to place petitioner under arrest after reporting to a bar fight in Huntington.

         Petitioner moved for a jury trial in the Magistrate Court of Cabell County, a pretrial hearing, and discovery. Though the matter was promptly set for trial, it is undisputed that, in all, the trial was continued at least fifteen times. Petitioner requested at least seven continuances while the remaining continuances were requested either by the State or upon the parties' joint motion.

         Relevant to this appeal is the re-scheduling of the trial after petitioner requested a continuance of the July 19, 2012, trial date due to the withdrawal of his counsel. It is undisputed that no trial dates were scheduled during the next two terms of court (the September 2012 and January 2013 terms). Ultimately, Respondent Black set a trial date for May 10, 2013. However, on May 10, 2013, the parties jointly requested that the matter be "reset for trial in August[, ]" stating as grounds that "counsel have conferred and agree [the] case needs to be set for trial." The order granting the motion noted that the parties would receive "no more continuances." The matter was then reset for August 14, 2013.

         During the August 14, 2013, trial, one of the officers who reported to the bar fight, Officer Ronnie Lusk of the Huntington Police Department, testified. According to Officer Lusk, he found petitioner "yelling, cussing, [and] just carrying on" because one of the people who injured petitioner's friend in the bar fight had gotten away. Officer Lusk testified that petitioner was agitated, intoxicated, hindering their investigation, and "causing more problems than he was helping." Petitioner was arrested after he slapped Officer Lusk and another officer. According to Officer Lusk's testimony, petitioner resisted arrest and officers had to use force in order to place him in handcuffs. He further testified that, after petitioner was placed in handcuffs and taken to the police cruiser, petitioner tried to grab Officer Lusk's utility belt and continued to be combative even after they arrived at the police station.

         On cross-examination, Officer Lusk was asked why the incident report and criminal complaints did not include the claim that petitioner tried to grab the officer's utility belt. While answering defense counsel's questions, Officer Lusk referenced his field notes, which had not been provided to petitioner during discovery. In the presence of the jury, counsel for petitioner requested a mistrial on the ground that petitioner had requested discovery long ago and "we're just now getting this officer's statements. That's a clear Brady [1] violation. This is clear impeachment evidence." (Footnote added). Petitioner then made a motion to dismiss. Magistrate Black denied petitioner's motion but declared a mistrial, at which time petitioner asked that jeopardy attach due to the State's misconduct. Magistrate Black did not rule on petitioner's request.

         A new trial date was set for November 20, 2013. On November 7, 2013, petitioner filed an "Amended Motion to Dismiss-Failure to Afford Defendant Speedy Trial." See Syl. Pt. 3, State ex rel. Johnson v. Zakaib, 184 W.Va. 346, 400 S.E.2d 590 (1990) ("'The speedy trial guarantee of W.Va.Const., art. III, § 14 that provides for criminal trials "without unreasonable delay" is applicable to magistrate courts.' Syllabus Point 1, State ex rel. Stiltner v. Harshbarger, 170 W.Va. 739, 296 S.E.2d 861 (1982)."). Respondent Black denied the motion following a November 20, 2013, hearing. Petitioner thereafter filed a notice of intent to appeal the magistrate court's ruling to the Circuit Court of Cabell County. He subsequently converted the appeal into a petition for a writ of prohibition.

         A hearing on the petition was conducted on May 28, 2014. By order entered on December 27, 2016, the circuit court denied the requested relief, determined that the mistrial was improperly granted below, and remanded the matter to the magistrate court for trial. It is from this order that petitioner now appeals.

         The standard of reviewing the circuit court's order refusing petitioner's request for relief through an extraordinary writ of prohibition is de novo. See Syl. Pt. 1, State ex rel. Callahan v. Santucci, 210 W.Va. 483, 557 S.E.2d 890 (2001). Additionally, this Court has held:

In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

         In his first assignment of error, petitioner argues that the State's failure to disclose Officer Lusk's field notes before trial violated his constitutional due process rights under Brady and that, as a result, Respondent Black properly declared a mistrial. The parties agree that if the August 14, 2013, mistrial was due to the misconduct of the State, the trial delay would be attributable to the State and would result in a violation of petitioner's right to a speedy trial.[2] On the other hand, if the circuit court ...

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