*1 record, reduced to which trial that cannot be
may judge as well as affect the mind of jury opinion as forming
weight of and the character and the evidence These consider
credibility of witnesses. ignored in de
ations can and should properly
termining whether a new trial was Circuit has observed
granted. Eleventh apt principles particularly are these the motion denied.
even cases where Blu-J, Kemper Group, Inc. v. C.P.A
See Cir.1990). (11th Thus, in future
F.2d 637
cases, scope of it with this circumscribed
appellate review the review that we should
granting or denial of a new trial.
STATE RUSEN, Attorney Prosecuting
L. County, Relator,
for Wood Judge George HILL,
Honorable W. County, of Wood
Circuit Court Respondents. Harder,
Lisa 22441.
No. Appeals
Supreme Court Virginia.
West Oct.
Submitted
Decided Dec.
Dissenting Opinion of Justice 19, 1995.
Workman Jan. *3 Hogan, Atty., L. Pros. Par- Asst.
Robert kersburg, for relator. Cosenza, Underwood,
George Cosenza & J. Parkersburg, respondent Lisa Harder. CLECKLEY, gued specify particu- Justice: that Rule 16 does not length lar of time in must which State Rusen, relator, L. Michele Prosecut- respond requests. County, ing Attorney petitions Wood respondent judge granted the defen- prohibition against Court to issue a writ of on dant’s motion to continue November respondent, George the Honorable W. January, and rescheduled trial for the Hill, Judge of the Circuit Court of Wood By Term. letter dated November County, prohibiting dismissing him from 1993, defense counsel informed the Virgi- indictment in the case of State West materials, reviewing after he Harder, nia v. Lisa Case No. 93-F-81. Pur- wanted several additional documents. The suant to Rule of the West *4 requested additional documents were various Procedure, respondent Rules of Criminal the reports, including synopses, kinds of sales dismissed, judge prejudice, an indict- voids, reports, reports, sales tax manu- and a charging respondent ment the and defendant explaining operation comput- al the of the below, Harder, Lisa with twelve counts of register. attorney orally The State’s er/cash embezzlement. The dismissal was based on agreed provide requested to the documenta- partial noncompliance prior the State’s with a 1994, January, tion.1 When the Term of respon- order. We find that the began, the defendant’s trial was sched- judge’s properly dent discretion was exer- 21, 4, February uled for March 1994. As of cised in this case and dismissal of the indict- 1994, acquired request- the State had not the ment was an sanction. There- Burger King. ed documents from fore, prohibition the writ of is denied. 8, 1994, On March the defendant filed the (a) following compel motions: a motion to I. State to deliver the documents in the listed by Lisa Harder indicted was the Wood (b) 15, 1994, order; February and a motion 1993, County Jury May, in Grand and or, to dismiss the indictment the alterna- charged embezzling with twelve counts of tive, 11, to continue the trial. On March money employer, Burg- from her former 1994, hearing was held on the defendant’s Vienna, King Virginia. er restaurant West motions. The State advised the circuit court originally Trial was set for June requested that the documentation was still Defense counsel filed a motion for discov- possession Burger Additionally, King. ery pursuant to Rule of the Rules of the State informed the circuit court that the 10, 1993, Criminal Procedure. On June investigating officer was instructed to obtain indictment, State moved to dismiss the with- documentation, but there was a misun- prejudice, ground out on the that the indict- derstanding Burger King provided and adequately ment did not inform the defen- previously same information that was dis- charges against dant of the nature of the her. closed. The State indicated its intentions to tecum, subpoena procure issue a duces to A second indictment was returned necessary documents. County Jury September, Wood Grand 1993. Trial was then set for request- November The circuit court directed that the 7, 1993, 1993. On or presented about October defense ed documentation be to defense and, discovery. days; counsel filed a new motion for On counsel within ten if the informa- 19, 1993, provided, October the defendant moved to tion not was the case would be ground continue the trial on the dismissed. The was if State advised that respond timely in a provided, State failed manner to documents were the case would be and, result, discovery; the motion for May, as a continued to the Term of court. 21, 1994, prepare the defense counsel was unable to On March the State maintains that for trial on the scheduled date. The State served what it believed were all the re- response quested filed a on October 1993. The documents. The State also claims State, claiming response timely, any alleged ar- that it was not advised of defi- agreed Attorney produce 1. Later the defendant and the State executed an the documents on or Order, Agreed Prosecuting February wherein the Assistant before not client had been until counsel admitted his provided information cieneies delay, except perhaps psy- 27, 1994, April prejudiced the defendant renewed when motion, during chologically. In that The State noted her motion to dismiss. had failed alleged the State motion dis- hearing defendant that the defendant’s reports requested of the provide specified several miss which documents were had illegi- reports provided were of the number allegedly missing illegible, so State ble. respond. The circuit had been unable to motion. court denied the State’s held a May
On the circuit court hearing motion. on the defendant’s supplied a argued it had substan-
State
II.
tial amount of
information
prohibition con-
seeks a writ of
that the defendant would
tending generally that the circuit court’s dis-
would be
on
because the new trial date
set
unduly harsh
missal of the indictment was
day
beginning
arraignment
and, thus,
an abuse of discretion.
constituted
Prosecutor,
May,
Term. The Assistant
contends that the State
The relator also
Houdyschell, attempted
P.
reas-
Charles
good
throughout
this ordeal in
faith
acted
at-
the State was not
sure the court
including
rights,
the defendant’s
*5
and that
tempting to
information or mislead
conceal
jeopardy,
speedy trial
those to a
and double
per-
The circuit court was not
the defense.
infringed.
have not been
they [Burger King]
“[I]f
suaded and stated:
petition,
ad-
support
In
the State
the
enough
provide
to
are not interested
argument
has
public policy
that it
vances a
Prosecuting Attorney with the information
right
completely deprived of the
to
been
Prosecuting
of
Attorney
that
demands
the
its
represent
and
the citizens of
prosecute
them,
dismissed.
or-
their case will be
So
jurisdiction by
precipitous
the circuit court’s
dered.”
conceding
In
circuit
and
action.
that
severe
in
a
reconsider
The State filed motion to
courts,
cases,
authority
appropriate
in
have
Judge’s
dismissing the
response to
order
the
charges,
criminal
the State vehe-
to dismiss
in
prejudice. The State asserted
case with
mently argues
the circuit court’s failure
(a)
of
information
the
that:
much
the
motion
impose
remedy, such as
to
a less severe
(b)
exist;
of
requested did not
the remainder
limiting
continuing the
the State’s use
trial
sup-
allegedly
the documents
were
information,
an
the undisclosed
was
usur-
of
missing
of clerical
plied
as a result
were
authority.
argu-
to
In addition
pation of its
(c)
copying process;
had the
errors in
unduly
and “a
ing
was
harsh
the dismissal
particular
more
State been
with
powers,”
flagrant
court’s
abuse of
missing or
documents were
notice of which
by
ruling was motivated
claims the
the State
illegible,
pro-
could have been
the documents
personal opinion that
the circuit court’s
(d)
vided;
dismissing
of
the court’s sanction
Burger King,
“corporate giant,”
a
could
as
extreme, given the
the indictment was too
quickly
easily supply
requested
docu-
and
circumstances;
(e) since
of
and
nature
if it
ments
desired.2
substantially complied with the
had
State
had not been
prior
and a new trial date
order
relator,
of an
According to the
dismissal
set,
defendant would
only
is
sanction
indictment
to
affording
opportunity
by
the State
a
comply
to
with
the State’s failure
when
missing documentation.
deliver the
a
request
in
or where
is
bad faith
specifi-
of
deprived
has
some
defendant
been
motion to reconsider
On June
right
a
cally
right,
as
to
such
court. Defense
identified
by the circuit
was heard
expected
system,
they
to
so
cannot be
court’s focus
criminal
that the circuit
2. The State claims
King
inappropriate
even
Burger
perfectly
was
because
on
discov-
understand
corporations
large, well-organized
Therefore,
"do not auto-
ruling
re-
request.
below
”[t]he
appreciate the
matically
nuances
understand and
concerning
expectations
vic-
flects unrealistic
discovery process.”
purposes
of the criminal
notes there
tim the
relator also
case.”
Burger
managers
argued
the district
of
It
King
finding
King
attempting
Burger
was
no
average person
no
than the
are
different
authority.
defy
court's
the circuit
understanding
it comes to their
when
speedy
dismissing
right
speedy
In
trial.
trial.
the ease with
nor the defendant’s
to a
prejudice,
Furthermore,
relator
the circuit
application
states that
for a
writ
ignored
practical
promptly presented.”
in-
prohibition
difficulties
must be
locating
copying
volved
hundreds
Syllabus
part,
In
Point
Hinkle
pages of
kinds of
in-
different
information
Black,
(1979),
“The State seek a of writ the West Rules of Criminal Proced tion in in a this Court criminal case where ure6 as a for the partial sanction State’s noncompliance the trial has discovery court exceeded or acted out- of 16 a order. Rule jurisdiction. side of the provides discovery inspection its Where State for and ma of trial, 16(d)(2) legiti- during claims that the trial court its abused terials and Rule men powers, mate the State must demonstrate tions the circuit if party court’s alternatives a flagrant comply that the court’s action was to discovery request. so fails with a right rule, it of deprived prosecute comply its to the this party Under if a fails to rules, deprived discovery case or of a valid In the conviction. the circuit has court any event, prohibition proceeding general authority the must to he enter whatever order offend the Jeopardy necessary neither Double Clause deems the under circumstances. pertinent portion judgment by 3. supreme The of Section of Article such 3 of or order the supreme ap- VIII appeals. is as follows: "The court of court of No such writ of error shall peals original jurisdiction proceed- shall presents petition allowed unless the State mandamus, ings corpus, prohibition in habeas supreme appeals, therefor to the court of or thereof, and judges days certiorari.” thirty of the one within entry judgment the after of such or order.” 51-1-3, reads, W.Va.Code, part: “The su- preme appeals original juris- court of shall have 6.Rule follows: reads as corpus, diction in of habeas cases mandamus Comply Request. "Failure to with a at prohibition. jurisdic- appellate and It shall have —If any during proceedings time the course the prohibition, involving tion in ... and in cases brought is to it the attention of the court a constitutionality freedom or the of a law.” rule, comply party has failed to with this W.Va.Code, 58-5-30, part, pertinent pro- may party permit court covery order such to dis- vides: continuance, inspection, grant or a or "Notwithstanding prohibit party anything introducing from evidence hereinbefore disclosed, article, may any or it enter contained in whenever in such other order just it criminal case an indictment is held bad or as deems under the circumstances. time, by judgment may specify place of a cir- insufficient or order and manner State, court, application making discovery inspection cuit on the of the of may prescribe and attorney general prosecuting attorney, or the such terms and as conditions may just.” of error a review obtain a writ to secure are
139 defen- important most tools of a criminal Usually, concerning issues discover 16(a), purpose of Rule our basic during As dant. The information arise trial. able cases, protect is out, discovery rule in reported criminal points there are no relator a fair trial. The de- a defendant’s involving the cases in this State dismissal as gree right suffers a result of to which that prior to a for an indictment trial as sanction discovery a violation cannot determined noncompliance. partial discovery General asking in- by simply the nondisclosed would guidance of our discov is several destroy the State’s enhance formation is discovered cases where violation A how significant inquiry is case. In Sylla after the commencement of trial. timely information have affect- access Grimm, v. 165 part,
bus Point State case. ed the success a defendant’s (1980), 547, 270 this Court W.Va. S.E.2d 178 prosecu stated that “non-disclosure discovery elevat has been While tion is fatal to its case where such non dimension,8 it is clear to a constitutional ed ap prejudicial.” is The traditional disclosure rights of a criminal defen that constitutional pellate determining prejudice standard discovery system implicated are when a dant “(1) analysis: two-pronged did the involves prosecution put place has been surprise defendant on a non-disclosure discovery. court ordered fails fact, (2) hamper prep material did necessary in that it is most crimi We believe presentation aration and defendant’s cases share its informa nal State Miller, v. 178 case”. State W.Va. if fair with the defendant tion (1987). See v. 363 S.E.2d 510 also State Furthermore, complete we find that result. Johnson, 340 W.Va. S.E.2d normally in the and reasonable (1988); Bennett, v. State W.Va. consequence public. One best interest Grimm, (1985); supra.7 S.E.2d may very of full and frank is that it plea negotiations. encourage As Dean well suggest an The aforementioned eases Pye noted: if of review nondisclosed method plea in a “Most criminal cases result material is revealed trial and defen capable principal role of the guilty. cases, denial of dant loses. Under these *7 many in is to ad- advocate circumstances discovery under discovery or nondisclosure a plead guilty. his For this vise that client a grounds order for new trial when the is meaningful, it must be based advice to be information is material and the nondisclosed knowledge upon the facts and the conse- of prejudiced. surprised is or How defendant consequences is quences. of these One ever, above, none of these cases as we stated goes if the probability of conviction client currently that is address the issue before impossible may It be for counsel to trial. Court; namely, appropriate are the cir what any intelligent evaluation of the to make cumstances, context, a pretrial in that a only if what his alternatives he knows may impose noncompli for court sanctions he told him and what has discov- client has discovery a order. ance with ered on his own.” analysis More Liberal Dis- begin our with some The Case We Defendant’s far (1963). 82, covery, F.R.D. 83 Discovery is one of 33 general observations. further, inability comply, and to cites v. Mutual and
7. The relator also Bell Inland 165, just.” are 175 W.Va. at Company, 332 such sanctions otherwise 175 W.Va. S.E.2d Insurance 172, dismissed, denied, nom, Although 127, at 134. the relator 332 S.E.2d appeal sub cert. Justice, acknowledges are different interests in civil there 474 U.S. Fire Ins. Ass'n v. Camden matters, contends, nevertheless, (1985), and criminal support in L.Ed.2d 277 106 S.Ct. 88 to is entitled have its cases heard only justified argument is its that dismissal of showing of bad faith and that in the absence a a Bell was civil when the State acts bad faith. by not been striking the defendant has pleadings and this Court held case where delay in against party the trial. rendering judgment a a default finding there been a when Bursey, 429 comply to 8. See v. U.S. has been due willful "the failure Weatherford 837, 845-46, (1977). ness, party S.Ct. 42 L.Ed.2d faith or fault of the disobedient bad egregious People Taylor, West Rules Criminal Pro- most cases. provide guidance cedure little as to Mich.App. what is 406 N.W.2d proper response of circuit court to a We also believe several factors must discovery While this violation. Court fre- weighed determining whether the exer quently circuit given notes that a court is cise of discretion cases such as this “broad selection appro- latitude” of an appropriate. include, factors Those but are priate remedy, pro- when a circuit court has not limited to: mulgated discovery specific orders and (a) importance materiality and of the guidelines discovery requests for certain and disclosed; information that was guidelines ignored those or have been violat- (b) ability party try the case ed, usually reversal is the result if there is without the information or the nature of the any showing prejudice. case, fair In this by comply claimed the failure to course, the violation occurred before trial order; discovery with the and granted the circuit court defendant’s request (c) prejudice. dismissal the extent to which a or continuance delay other lesser relief the trial scope appellate review impact adversely otherwise the administra- necessarily must an abuse of discretion justice; tion of standard. For us to determine whether the (d) degree negligence by circuit involved and impos court abused its discretion explanation party’s ing sanction, such failure to com- a drastic we must first ply discovery request; range with a review the of remedies available. Rule 16(d)(2) provides where there has been (e) by party the effort made to comply noncompliance legitimate discovery re order; discovery with the quests, court, a circuit in addition ordering (f) the number of times the circuit court disclosure, granting immediate a continu party ordered the with the discov- ance, evidence, excluding “may enter order; just such other order deems as it under the (g) cases, severity some of the of- language justi broad circumstances.” This fense. adding fies the other of several remedies or (a) advising sanctions to the as list such expansion Further of these fac jury to assume the existence of facts that necessary. tors is Once a circuit court re might missing have been established requesting ceives a motion sanctions or relief (b) information, holding the violator in con violations, the circuit court (c) court, mistrial, tempt granting order, should full required extent (d)dismissing charges. specifically We order, or the rules hold that permissible one of the sanctions *8 immediate disclosure. The relief ap that is discovery under Rule a for violation propriate initially depend large will to a de a prejudice. is dismissal with Under the gree on timely the reason disclosure was not case, facts of not we do think it can be prejudice made resulting and the from the that said the circuit court exceeded the broad provide timely failure to discovery. Similar latitude making which must be accorded it in ly, the circuit court should review the fre this decision. quency and the objec force of defendant’s remedy preferable opposed Which is tions or attaching is motions as significant left to the weight pure best discretion the circuit pro court. to a pro forma rulings be preferred Such will not test. The party reversed unless relief where the responsible there is an abuse of discretion. The circuit for the violation has not acted court must have to fashion grant discretion a reme bad faith is to the defendant a continu dy noncompliance encompasses giving for ance “a him or her an opportunity to balancing courts, fair prepare of the interests of the for discovery trial once the materials public, parties[,]” recognizing Thus, and the have been made available. where the prejudice that the discovery dismissal of cases with is a violation potential relates to trial evidence, remedy only which be used grant should the circuit court is advised to
141
(Alas-
Lewis,
547, 549
tion.
v.
632 P.2d
permit
in duration to
a continuance sufficient
App.1981). Accordingly, the sanction of
and to
ka
to obtain that evidence
the defendant
only
sparingly
used
dismissal should be
prepare for trial.
prosecution
been derelict
when
cases and the West
Rules
Our
discovery
with
orders.
effort
implicit prefer-
an
Evidence have declared
remedy
a
of last
normally
should be
While
a
ence for a continuance when there has been
resort,
court in
place
refuse to
the circuit
we
discovery
See
violation.
W.Va.R.Evid.
only
position
can
a case
a
where it
dismiss
(“unfair
a
surprise”
ground
not listed as
is
clearly
other lesser measures
cannot
where
exclusion).
Barker, 169
for
See State v.
Rath-
provide
with a fair trial.
a defendant
(1982)
S.E.2d
W.Va.
er,
may
choose
we hold that a circuit
(“[e]ven
‘proper’ case in which
if this were a
egregious
repeated viola-
dismissal for
surprise,
appellant
to claim
failed
contin-
tions where lesser sanctions such as a
continuance, and,
therefore,
for
move
a
disruptive to the
uance would be
administra-
Smith,
one”);
waived his
Martin
justice
lesser sanctions
tion
where the
190 W.Va.
S.E.2d
degree
provide the same
of assurance
cannot
(“even
(1993)
given
Dr.
admission of
prejudice
to the defendant will be
testimony prejudiced Dr.
Adams’
Smith’s
dissipated.
ease,
prejudice
such
far from incura-
we find
easily
Dr.
have
moved for a
ble.
Smith could
necessarily compels
balancing
A
test
comparable
in order to secure a
continuance
on
approach sanctions
an ad hoc
courts to
witness”).
expert
little more than identi
basis. We
done
fy
of the factors
circuit courts
some
which
Although
a
believe that
continu
we
determining
appropri
assess in
should
preferred response
to a
ance
particular
A circuit
ateness of a
sanction.
found, the
violation where bad faith is not
on
findings
make
the record
court should
recognize
circuit court must
there are some
factors,
using
any
relevant
other
these
ap
a
situations where
continuance
not
and,
considerations,
review;
on
to facilitate
satisfactory remedy.
con
propriate or
If a
closely
appeal
to scrutinize
we will be able
great
disruption
cause
a
tinuance will
too
decision.
the circuit court’s
basis
process,
or if a continuance will
Only
way
rights
criminal
in this
can
a
by the
dissipate
prejudice caused
nondisc
State,
defendant,
public
ap
and the
losure,9
court should consider
a circuit
protected.
propriately
stronger
as dismissal. Sanc
measures such
we have dis
Applying
ef
the factors
generally should
have “adverse
tions
cussed,
significant that
parties”; a
find it
the discov
rights
dismiss
fects on the
eight
period
a
violation continued over
necessarily has
substan
al with
required
community
scheduled trials
months and twice
effect on the interest
tial
Also,
represented
we observe
party
prosecu-
to be continued.10
and the
1993—Defendant’s motion
where the late disclosure
October
9. There are situations
required
only after a
has been
comes
defendant
filed.
position that
himself to a
to commit
1993—Defendant moved to
October
information that
disclosed
inconsistent
ground
that the State
continue the trial on
been
available earlier.
should have
made
timely
respond in
manner
had failed to
*9
discovery.
motion for
following
chronology of the
is a brief
10.
29,
response
8.
1993—State filed a
October
in
action:
believe are relevant
this
events we
timely
claiming
response was
because W.Va.
its
May,
indict-
1.
1993 Term—the date
first
responses.
specific
16 sets no
time for
R.Crim.P.
charging
counts
the defendant with twelve
ment
1,
granted
1993—Circuit court
9. November
embezzling money
employer.
from her former
to continue and resched-
the defendant's motion
22,
Original trial date.
2. June
1993—
1994,
trial,
10,
January,
Term.
days
uled
case for the
1993—Twelve
before
3. June
23,
letter,
By
with-
the defen-
to dismiss the indictment
10.
moved
November
1993—
claiming
it
insufficient.
was
out
the State its
dant’s counsel informed
September,
second indictment
4.
1993—A
responses were
Additional documents
deficient.
returned.
reports
requested were
kinds of
includ-
various
8,
trial scheduled
5. November
1993—Second
voids,
ing
synopsis,
reports,
tax
sales
re-
sales
this
date.
during
period
eight
this
months the State
in the circuit court’s discretion to dismiss an
sought
protec-
at no time
to avail
16(d)(2)
itself of the
indictment
appro-
under Rule
under
tions
under Rule
nor did
priate
per-
circumstances. We do not find it
upon realizing
Burger King
the State
suasive that there are no other cases where
cooperating
any attempt
was not
make
the sanction of dismissal was ordered for
subpoena
pursuant
obtain a
duces tecum
pretrial discovery
Obviously,
violations.
(1990).
W.Va.Code, 67-6-4
If moral or
drafters of the West
Rules of Crimi-
friendly persuasion
acquire
is insufficient to
contemplated
nal Procedure
generally
documentary
trial,
evidence needed for
a provided
appropriate
sanctions when
subpoena
always
duces tecum is
available.
dealing
litigants.
with recalcitrant
Moreover,
16(d)(1) request
a Rule
pro-
for a
tective
order is the
vehicle for
Clearly,
scope
pre
the extent and
bringing these concerns to the circuit court.
is within the circuit court’s
Instead,
the State committed to the court
discretion, and we will not disturb a circuit
and to
provide
the defendant that it would
ruling
court’s
unless there is a clear
abuse
attempt
these documents and did not
to re-
Johnson,
discretion.
supra;
State v.
State v.
Thus,
tract that commitment until the end.
Lassiter,
499,
177 W.Va.
whether the
rule
tunately,
courts must
on the issue
circuit
of
Concededly, the dismissal
an indictment is
pretrial
appropriate
of
sanction
what
spar-
used
a severe sanction that should be
discovery
with the wisdom of
violations “not
ingly,12
we
it is a sanction that is
but
find
hindsight
place,
has taken
but
after the trial
arsenal,
appro-
and
within the circuit court’s
pretrial
[the
the murkier
context when
in
so,
circuit courts
priately
ensures that
development
trial]
the outcome of the
and
power
regulate congested trial dock-
have
to
darkly.”
glass,
through
...
are
a
seen
in
many
in
of the circuits
this State.
ets
States,
153, 162,
v.
United
U.S.
Wheat
140,
100 L.Ed.2d
only
Not
did these
violations af- 108 S.Ct.
trial,
defendant,
In a criminal
the stakes are
fect the
but there were also other
higher
in
just
ordinarily
than
a civil case
parties. As
much
interests at stake than
the
brief,
money
property is
recognizes in its
the loss of
or
the
astutely
the
where
relator
In
that can be inflicted.
a criminal
people
of West
worse
interests
case,
liberty, and
any
proceed-
a
sometimes his
implicated in
criminal
defendant’s
are also
Prejudice
life, depends
delays, unnecessary
on the outcome.
ing.13
contin-
Numerous
uances,
light
to
should be
dis
hearings
additional
address
assessed
and
protect.15
covery
designed to
Un
rules
rules were
noncompliance
contribute
doubtedly,
did
have the
length
criminal
the defendant
and the
of these
cost
thought
Here,
the circuit court
proceedings.
the trial court was con-
information
within
important enough to order delivered
simply
the interests of the
fronted not
defendant,
days
of dismissal.
prosecution,
ten
or risk
sanction
but with the com-
discovery requests
economy
Untimely compliance
judicial
and other
peting interest
context,
possibility that a defendant will be
limits the
concerns.
In this
institutional
course,
factor is the most
prepared.
Of
this
independent
courts
interest
ensur-
inability of
a defendant
ing
expedi-
serious “because
that criminal trials are conducted
37(b)(2)(C)
prosecution
Virgi-
prejudice
prove
acted in
that the
Rule
of the the West
12. Under
Procedure,
adoption
per
dismissal is an
nia
of Civil
believe
of a
se
Rules
bad faith. We
obey
party’s
a
failure to
sanction for
inappropriate because dismissals
rule would be
However,
discovery.
we have also
court ordered
legitimate
purpose State
some
could serve a
cases,
recognized
rule,
general
a
"[a]s
in a
context that
civil
prosecution’s
a
and
violation of discov
a
rendering
judgment
a
default as
egregious as
be so
to warrant the
order could
37(b) [(2)(C)] should be
sanction under Rule
prejudice.
stringent
of dismissal with
sanction
only
sparingly
situations.”
used
and
extreme
clear,
9, supra. To
we do not mean
note
See
Bell,
at
W.Va.
332 S.E.2d
right
suggest
has a
to fabri
a defendant
defense,
strongly
but
note that our
a
cate
argued
that the trial
brief
Procedure have
a
Rules
Criminal
as if
defendant’s criminal case
court acted
discovery,
correspondingly,
right
right
parties.
actually a
case
two
was
civil
between
strategy
and trial
on the basis
to devise defense
Further,
was
the State contends the defendant
prosecution.
the evidence disclosed
against
peace
digni-
"a crime
accused of
ty
Noe,
(11th
adequately prepare majority his case skews The sets forth several factors to weighed system.” determining fairness of the entire whether a Barker v. circuit 514, Wingo, 2182, 2193, court’s exercise of discretion is 407 U.S. 92 S.Ct. (1972). given then, helpful, case. It is to consider L.Ed.2d Continuance or conjunction those factors in
delay record “compromises reliability of a trial First, in this case. we are instructed to look ways or, party that neither prove can for at importance materiality “the matter, identify.” Doggett v. United information that was not disclosed.” ex States, 647, 655, 505 U.S. 112 S.Ct. Hill, rel. Rusen v. W.Va. (1992). 120 L.Ed.2d There- emphasized S.E.2d at 434 It must be fore, exercising pursuant discretion that nowhere in the Respon- record did the Rule of the West Rules of give any good dent ever indication of how Procedure, Criminal a circuit court is not requested relevant, information was even required prejudice justi- to find actual to be important much less and material. Aside sanctioning party pretrial fied in for discov- conclusory from a statement at the March 11 Prejudice may presumed violations. hearing'that “essential,” the documents were repeated discovery from violations necessi- appear there any does to be suitable tating delays. numerous continuances and concluding basis the record for Although agree the sanction of important documents are either or material. sparingly, dismissal should be used we find Second, we ability must consider “the that the circuit court did not abuse its discre- party try the case without the informa- tion against when it dismissed the indictment tion or the nature of the claimed reasons, Lisa forgoing Harder. For the comply the failure to with the or- writ is denied. Again, Respondent’s der.” Id. ability Writ denied. try the requested case without the informa- tion up speculation. is left The record is WORKMAN, J., dissents and reserves the any devoid óf missing hint as to how the dissenting to file a opinion. documents would Respondent assist the ei- (1) (2) proving ther in her innocence or BROTHERTON, J., participate. did not Further, affirmative defense. appears MILLER, Justice, Retired sitting by some of the requested by documents temporary assignment. Respondent after the Relator’s March 21 dis- covery response may duplicative have been BROTHERTON, J., participate. did not Respondent materials the already had re- MILLER, Justice, sitting by Retired ceived. See Relator’s Pet. at 12. temporary assignment. any prejudice As for suffered from the WORKMAN, Justice, dissenting: Relator’s failure to with the circuit order, Respondent court’s necessarily disagree I do not with the ma- question answered the for us. following jority’s recitation of applicable the law to this exchange occurred at a hearing June difficulty majority’s case. with the ap- on the Relator’s motion to reconsider the however, proach, is that it square crams a dismissal order: peg into a round hole. The facts and circum- JUDGE HILL: Tell me how defen- simply justify stances of this case do not dant has been delay, harsh and ultimate sanction of dismissal with psychologically? other than short, prejudice. In I would hold that the Well, MR. COSENZA: psy- other than circuit court abused its discretion in this Honor, chologically, Your probably not. instance and that the adequately Relator has added).1 (emphasis Relator’s Exhib. 5 at 7 required demonstrated the standard granting prohibition. Accordingly, Next, a writ of the Court looks to “the extent to respectfully I dissent. which a continuance or other lesser relief interesting though Respondent It is to note that even prejudice, admitted a lack of *12 if the circuit impact have been better served delay the trial or otherwise would court, sanction, justice.” employed a less severe such adversely the administration using from prohibiting as the Relator 140, 454 at 434. Op., 193 W.Va. at S.E.2d requested material at trial. At least then majority impressive num- The sets forth on the this matter would have been decided ber of less serious alternatives to a dismissal procedural than on a mere merits rather Further, majority prejudice. *13 counts of embezzle- no less than twelve with infor- amount of a voluminous occasioned perhaps as serious as ment. While not months and spans that over several mation crime, costly, per- employee theft is a violent perhaps thousands consists of hundreds and immensely problem that serious vasive and likely have ob- pages. The Relator could Zellner, Wendy grow. See continues but, in an effort to jected request to the Retail, Through Rifling Sticky Fingers Are along, simply tried her best to speed things Week, (stating Mar. at Business totality of these circumstances comply. “[cjustomer ‘in- employee theft are clearly impacted on the circuit should fairly dramatically’ [re- creasing across court. ”). industry cannot be ... Such offenses tail] Indeed, they vigorously ignored. must be Next, consider “the effort made we must deterred. comply party with large- preceding discussion Id. The order.” applicable factors An of the examination dealing ly applies here as well. We are clearly circuit court ex- illustrates that the outright comply, but rather refusal to flagrant its discretion and ceeded faith, compliance.4 good substantial deprived Relator and the citizens actions prosecute right to of this State5 of their Sixth, of times the look to “the number largely agree ma- Respondent. I 'While party ordered the circuit court law, jority’s the facts do recitation discovery order.” Id. After exam- with the grant I the writ. warrant dismissal. would majority’s chronolo- ining record and the there no more than gy, appears were this Court
perhaps two such orders. While of circuit not take wilful disobedience
does hap- lightly, that is not what
court orders Again, it must be remembered
pened here. complied in substantially the Relator by the the result mandated
good faith with Nevertheless, court meted
circuit court. ultimate sanction.
out the
gauge
interesting
the reactions
majority's
to the Relator's
indeed
reference
4. As for
subpoena
they
tecum for the
to secure a
duces
failure
of this State when
are told that
the citizens
documents,
judge suggested
circuit
at the
charged with numerous serious
an individual
hearing
a measure was un-
March 11
that such
away unscathed because the
felonies will walk
necessary. See Relator's Ex. 3 at 5.
complex
difficulty
to a
dis-
responding
State had
holding
covery request.
this case
I doubt the
majority opinion purports
"the
to consider
5. The
Id.,
"appear
to all who observe.”
at
will
fair
Virginia.” Op.
people
of West
interests of
143,