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State of WV v. Kerns
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1992 Term ___________ No. 20485 ___________ STATE OF WEST VIRGINIA, Plaintiff Below, Appellee v. GARY PAUL KERNS, Defendant Below, Appellant ___________________________________________________ Appeal from the Circuit Court of Nicholas County Honorable James H. Wolverton, Judge Civil Action No. 89-F-55 AFFIRMED, IN PART; REVERSED, IN PART, AND REMANDED ___________________________________________________ Submitted: January 22, 1992 Filed: July 1, 1992 Gregory W. Sproles Breckinridge, Davis, Sproles & Stollings Summersville, West Virginia Attorney for the Appellant Mario J. Palumbo Teresa A. Tarr Office of the Attorney General Charleston, West Virginia Attorneys for the Appellee CHIEF JUSTICE McHUGH delivered the Opinion of the Court. SYLLABUS BY THE COURT "A probation condition requiring repayment of costs and attorneys fees is constitutionally acceptable if it is tuned to the probationer's ability to pay without undue hardship and is subject to modification if his indigency persists or reoccurs. W. Va. Code, 62-12-9." Syl. pt. 1, Armstead v. Dale, 170 W. Va. 319, 294 S.E.2d 122 (1982). "Allowance and recovery of costs was unknown at common law, and therefore only costs specifically allowed by statute may be recovered." State v. St. Clair, 177 W. Va. 629, 631, 355 S.E.2d 418, 420 (1987). W. Va. Code, 62-12-9 [1992] does not authorize a circuit court to impose, as a condition of probation, that a convicted criminal defendant pay the fees of a special prosecutor as costs of the prosecution.

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"Under the 'in possession of' language of Rule 26.2(f) of the West Virginia Rules of Criminal Procedure, a prosecutor is required to disclose statements to which he has access even though he does not have the present physical possession of the statements." Syl. pt. 5, State v. Watson, 173 W. Va. 553, 318 S.E.2d 603 (1984). "Generally, the admissibility of demonstrative evidence is a matter within the discretion of the trial court." State v. Hardway, 182 W. Va. 1, ___, 385 S.E.2d 62, 68 (1989). "'The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome.'" State v. Fortner, 182 W. Va. 345, ___, 387 S.E.2d 812, 820 (1989), quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 3383, 87 L. Ed. 2d 481, 494 (1985). "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." Syl. pt. 3, State ex rel. Preissler v. Dostert, 163 W. Va. 719, 260 S.E.2d 279 (1979). Where a special prosecutor is appointed to try a criminal case due to a conflict, and the case is dismissed without prejudice, but the defendant is reindicted on the same charges, it is not error for a trial court to deny a motion to remove the special prosecutor if it is shown that the conflict which led to the original removal of the regular prosecutor still exists. McHugh, Chief Justice: This case is before the Court upon the appeal of Gary Paul Kerns, from a conviction of three counts of grand larceny in the Circuit Court of Nicholas County. The appellee is the State of West Virginia. Numerous errors on the part of the circuit court are assigned by the appellant. I The appellant was employed by Standard Hydraulics until May, 1984. Standard is a company that repairs hydraulic component units used in mining operations. In early 1983, while employed at Standard, the appellant formed Dynatec, a company which engaged in business similar to Standard. The appellant met with Daniel Morgan, the purchasing agent for Standard, to discuss Standard's inventory. The appellant told Morgan that he (the appellant) intended to remove from Standard's premises units which were on such premises but were not in the "Cardex" system, which is the mechanism for inventory control at Standard. The appellant told Morgan that it was his intention to use these units at Dynatec. Morgan then began compiling a list of such units, that is, those located on Standard's premises, but not in the Cardex inventory system. Nine lists were compiled by Morgan into one "master list," which was then given to the appellant. On three separate occasions during March and/or April, 1983, the appellant and Morgan went to Standard and removed these units from the company's premises. The units were taken to the garage of Thurman Kerns, the appellant's uncle. Morgan testified that the original market value of the stolen units is in excess of $100,000. In October, 1983, the appellant asked Morgan if he still had the lists used to designate the units at issue, and Morgan told the appellant that he did not have them. In May, 1984, the appellant left his employment at Standard, shortly after purchasing Craigsville Electric & Machine Co. (CEMCO). In 1985, Standard instituted a civil action against the appellant for allegedly breaching a five-year covenant not to compete which was entered into in 1972. In 1986, Standard discovered that the units were missing but had no proof of their theft until 1987, when Morgan turned over the lists to Standard.See footnote 1 The civil action between Standard and Morgan was still going on at the time that Morgan turned over the lists to Standard.See footnote 2 The appellant was arrested pursuant to a warrant sought by James Brogan, Standard's private investigator. The Nicholas County prosecutor and that entire office voluntarily recused itself due to a conflict of interest.See footnote 3 Consequently, Robert P. Martin was appointed special prosecutor and Dan Hardway, who had been retained by Standard as its private prosecutor, was appointed to assist Martin in the criminal proceedings. In August, 1988, the appellant was indicted on thirteen counts of grand larceny, embezzlement, and receiving stolen goods. However, on May 17, 1989, this Court ordered that that indictment be dismissed because Standard's

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private prosecutor, Hardway, had appeared before the grand jury in the case. Kerns v. Wolverton, 181 W. Va. 143, 381 S.E.2d 258 (1989).See footnote 4 The appellant was again indicted in September, 1989, this time on only three counts of grand larceny. A petit jury found the appellant guilty on all three counts in December, 1990.See footnote 5 The appellant was sentenced to: three concurrent one-year prison terms in the Nicholas County Jail; court costs, including those of the special prosecutor, which amounted to $40,842.90; and restitution to Standard over a period of five years, which amounted to $100,374.06. The circuit court then suspended imposition of incarceration and placed the appellant on probation for five years. II As stated previously, the appellant raises several assignments of error. We primarily address the one contention of the appellant that we believe merits reversal and remand of this case. As discussed later herein, however, the appellant's conviction is affirmed with respect to the other assignments of error raised. III The appellant contends that the circuit court committed error by ordering that he pay the fees of the special prosecutor. Under the circumstances of this case, we agree with the appellant's contention. W. Va. Code, 62-12-9 [1992] provides that a circuit court may impose, as a condition of probation, that a convicted criminal defendant pay the costs of the criminal proceedings. Specifically, that section provides, in part: In addition [to other conditions of probation], the court may impose, subject to modification at any time, any other conditions which it may deem advisable, including, but not limited to, any of the following: .... (2) That [the probationer] shall pay any fine assessed and the costs of the proceeding in such installments as the court may direct. In Armstead v. Dale, 170 W. Va. 319, 294 S.E.2d 122 (1982), which involved the rendering of legal services to an indigent criminal defendant, we recognized that this statutory provision permits a trial court to impose payment of attorney's fees if it will not cause the probationer undue hardship. "A probation condition requiring repayment of costs and attorneys fees is constitutionally acceptable if it is tuned to the probationer's ability to pay without undue hardship and is subject to modification if his indigency persists or reoccurs. W. Va. Code, 62-12-9." Id., syl. pt. 1. The State, on the other hand, while recognizing that this is a matter of first impression by this Court, maintains that the circuit court did not commit error by ordering the appellant to pay the fees of the special prosecutor. The State asserts that W. Va. Code, 62-12-9 [1992] would also apply to the situation at hand, where a special prosecutor is involved. We do not agree. In Armstead, we were addressing a statutory provision under the Public Legal Services Act, the precursor to the current Public Defender Services Act, W. Va. Code, 29-21-1, et seq.See footnote 6 Accordingly, syllabus point 1 to Armstead applies to defense attorneys who are appointed due to indigency on the part of the criminal defendant. It would have no application under the circumstances of this case, where the fees at issue are those of a special prosecutor. In State v. St. Clair, 177 W. Va. 629, 355 S.E.2d 418 (1987), we pointed out that "[a]llowance and recovery of costs was unknown at common law, and therefore only costs specifically allowed by statute may be recovered." Id. at 631, 355 S.E.2d at 420. Accordingly, whether a defendant may be ordered to pay the fees of a special prosecutor would depend on the existence of a statute providing for such. Because there is no such statute, the defendant may not be ordered by a circuit court to pay those fees. Our research of the authority of a court to impose fees of a special prosecutor as a condition of probation reveals that few courts have addressed the issue with a focus on the inherent inequities that may result from such an imposition. For example, in State v. Welkos, 109 N.W.2d 889 (Wis. 1961), the Supreme Court of Wisconsin held that the trial court could impose the special prosecutor's fees as a condition of probation because there existed no statutory bar to doing such, but rather, a statute did exist allowing the general imposition of "the costs of prosecution." However, the specific probation statute allowing imposition of "the costs of prosecution" was repealed, and in State v.

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Amato, 376 N.W.2d 75 (Wis. Ct. App. 1985), the Court of Appeals of Wisconsin held that the general statute enumerating the costs allowed to be imposed "and no others," prohibited the imposition of special prosecutors' fees. Furthermore, the Amato court held that the probation statute allowing the trial court to impose "reasonable and appropriate" conditions of probation, did not allow the imposition of such fees. The point to be made about these cases is that they were decided solely on statutory construction grounds, with an apparent indifference to the potential inequities of assessing the "reasonable" fees of a special prosecutor. Based upon the above, we hold that W. Va. Code, 62-12-9 [1992] does not authorize a circuit court to impose, as a condition of probation, that a convicted criminal defendant pay the fees of a special prosecutor as costs of the prosecution. Accordingly, the judgment of the circuit court in this respect is reversed, and this case is remanded so that the circuit court may reimpose the conditions of probation consistent with this opinion.See footnote 7 IV We now turn to other assignments of error raised by the appellant. A. Failure to Produce Witness Statement The appellant contends that the circuit court committed reversible error in failing to grant the appellant's motion for production of a written statement pursuant to W. Va. R. Crim. P. 26.2. At the beginning of the cross-examination of Morgan, the State's primary witness, counsel for the appellant inquired as to a reference made by Morgan during direct examination. Specifically, Morgan had stated on direct examination that the Slevin family (owners of Standard) had hired a private investigator, Brogan, with respect to the covenant not to compete issue.See footnote 8 Morgan testified that he had disclosed the situation of the stolen units to the investigator Brogan. On cross-examination, Morgan testified that the investigator Brogan had made a written statement of what Morgan had told him and that Morgan had signed it. The appellant immediately made a motion to produce the written statement pursuant to W. Va. R. Crim. P. 26.2. A discussion ensued out of the jury's presence as to whether the investigator Brogan worked for Standard, in a private capacity, or for the State, as an agent of the prosecutor in this case. The State maintains that, during the trial, it never had access to the statement taken by Brogan, and therefore, it was not required to provide it to the defendant. Moreover, the State contends that Brogan, at the time he took Morgan's statement, was employed by Standard, in a private capacity, and not by the State. The appellant points out that the responses to a pre-trial motion for disclosure of information in connection with grand jury proceedings clearly indicate that Brogan, the investigator, was working for the State. W. Va. R. Crim. P. 26.2 provides, in relevant part: Rule 26.2 Production of Statements of Witnesses. (a) Motion for Production. After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney for the state or the defendant and his attorney, as the case may be, to produce for the examination and use of the moving party any statement of the witness that is in their possession that relates to the subject matter concerning which the witness has testified. .... (e) Sanction for Failure to Produce Statement. If the other party elects not to comply with an order to deliver a statement to the moving party, the court shall order that the testimony of the witness be stricken from the record and that the trial proceed, or if it is the attorney for the state who elects not to comply shall declare a mistrial if required by the interest of justice. (f) Definition. As used in this rule, a 'statement' of a witness means: adopted or approved by him; (1) A written statement made by the witness that is signed or otherwise adopted or approved by him; (2) A substantially verbatim recital of an oral statement made by the witness that is recorded contemporaneously with the making of the oral statement and that is contained in a stenographic, mechanical, electrical
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or other recording or a transcription thereof; (3) A statement, however taken or recorded or a transcription thereof, made by the witness to a grand jury. In State v. Watson, 173 W. Va. 553, 318 S.E.2d 603 (1984), this Court held that under W. Va. R. Crim. P. 26.2 a prosecutor is required to disclose statements to which he or she has access, even though not in possession. "Under the 'in possession of' language of Rule 26.2(f) of the West Virginia Rules of Criminal Procedure, a prosecutor is required to disclose statements to which he has access even though he does not have the present physical possession of the statements." Watson, syl. pt. 5. At issue in Watson was the production of grand jury transcripts. There is authority, as the State correctly points out, that the failure to follow the mandate of this rule is subject to a harmless error analysis. As we have pointed out, "there is substantial Federal authority which indicates the failure to allow inspection does not always constitute prejudicial or reversible error." State v. Tanner, 175 W. Va. 264, 266, 332 S.E.2d 277, 279 (1985).See footnote 9 In determining reversible error, we stated: "The question of whether the error was harmless or prejudicial hinges upon whether there was a substantial discrepancy between the contents of the prior statement or report and the witness' testimony during trial." Id. Normally, in making this determination, because the statement is not part of the record, this Court will remand the case so that the lower court may "require the production of the report in accordance with the Rules of Criminal Procedure and" then, "make a determination of whether the report varied from the testimony adduced during trial and whether the defendant was prejudiced by the nonproduction." Id. at 266, 332 S.E.2d at 279-80. We also issued remands for further development of the record on this very issue in State v. Gale, 177 W. Va. 337, 352 S.E.2d 87 (1986), and State v. Miller, 184 W. Va. 492, 401 S.E.2d 237 (1990). However, in this case, we need not determine whether prejudicial error occurred, nor does the circuit court need to review any discrepancy in testimony, because it is clear that the statement taken by Brogan was done so during the private investigation of the covenant not to compete matter. This was done prior to the initiation of the criminal proceeding. Although Brogan was eventually hired by the special prosecutor in the ensuing criminal proceeding, the direct examination of Morgan on the statement elicited testimony that related to Brogan's private investigation. It is clear that the State did not have access to this statement at the time of the criminal trial.See footnote 10 Consequently, the statement at issue was not in the possession of the State, nor did the State have access to it. See syl. pt. 5, Watson. Therefore, the State was not required to turn this over to the appellant under W. Va. R. Crim. P. 26.2. "Whether, in a particular case, the production of such a statement will be ordered is a question for the trial court in its discretion to resolve." Charles E. Torcia, Wharton's Criminal Procedure

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