654 S.E.2d 104
The majority reached the correct decision in this case based upon the sparse
record it had before it. As the Court's opinion acknowledges, the absence of “the transcript
of the proceedings leading up to the trial court's declaration of a mistrial,” Majority opinion
at page 7, required the granting of the requested writ to prevent the trial court from assessing
jury costs against defense counsel, which costs the trial court levied as a sanction for defense
counsel's alleged failure to disclose the defense's witness list to the State as required by the
West Virginia Rules of Criminal Procedure. See W. Va. R. Crim. P. 16(b)(1)(D) (“If the
defendant requests disclosure under subdivision (a)(1)(F) of this rule, upon compliance with
such request by the state, the defendant, on the request of the state, shall furnish the state with
a list of the names and addresses of the witnesses the defendant intends to call in the
presentation of the case in chief[.]”).
Nevertheless, if the record before this Court had demonstrated that defense
counsel had, in fact, failed to disclose the defense's witness list to the State as found by the
trial court in its January 10, 2007, order imposing said sanction, I would have upheld the
sanction. As I admonished at length in my separate opinions in Estate of Fout-Iser ex rel.
Fout-Iser v. Hahn, ___ W. Va. ___, ___, 649 S.E.2d 246, 252 (2007) (Davis, C.J.,
dissenting), and Jenkins v. CSX Transportation, Inc., ___ W. Va. ___, ___, 649 S.E.2d 294,
305 (2007) (per curiam) (Davis, C.J., concurring), the purpose of discovery rules is to ensure
the fair and orderly administration of justice, W. Va. R. Civ. P. 1, and a party's failure to
follow such rules constitutes sanctionable conduct. See generally W. Va. R. Civ. P. 37
(permitting trial courts to impose sanctions for “[f]ailure to cooperate in discovery”); McDougal v. McCammon, 193 W. Va. 229, 455 S.E.2d 788 (1995) (according discretion to
trial courts to determine appropriateness of sanctions for discovery violations).
As was the case with the civil matters before this Court in Fout-Iser and Jenkins, criminal proceedings, such as the case sub judice, also are governed by procedural
rules to obtain “the just determination of every criminal proceeding” and to “secure
simplicity in procedure, fairness in administration, and the elimination of unjustifiable
expense and delay.” W. Va. R. Crim. P. 2. Likewise, trial courts in criminal cases may
impose sanctions for the violation of rules pertaining to discovery. See W. Va. R. Crim. P.
16(d)(2) (“If at any time during the course of the proceedings it is brought to the attention
of the court that a party has failed to comply with this rule, the court may order such party
to permit the discovery or inspection, grant a continuance, or prohibit the party from
introducing evidence not disclosed, or it may enter such other order as it deems just under
the circumstances. The court may specify the time, place and manner of making the
discovery and inspection and may prescribe such terms and conditions as are just.”); Syl. pt.
5, State v. Miller, 178 W. Va. 618, 363 S.E.2d 504 (1987) (“Rule 16(d)(2) [of the West
Virginia Rules of Criminal Procedure] enables a trial court to impose sanctions that may have
the effect of curing a late discovery problem.”). See also Syl. pt. 1, State v. Ward, 188
W. Va. 380, 424 S.E.2d 725 (1991) (“Where a trial court is presented with a defendant's
failure to disclose the identity of witnesses in compliance with West Virginia Rule of
Criminal Procedure 16, the trial court must inquire into the reasons for the defendant's failure
to comply with the discovery request. If the explanation offered indicates that the omission
of the witness' identity was willful and motivated by a desire to obtain a tactical advantage
that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal
evidence, it is consistent with the purposes of the compulsory process clause of the sixth
amendment to the United States Constitution and article II, section 14 of the West Virginia
Constitution to preclude the witness from testifying.”).
Therefore, if the record presented to the Court for its consideration in this case
had demonstrated that defense counsel failed to disclose the list of defense witnesses to the
State, the trial court's imposition of sanctions upon defense counsel, including the assessment
of approximately $2,118.98 in jury costs, would have been within the trial court's discretion.
However, because the limited record did not establish whether defense counsel had, in fact,
failed to disclose the defense's witness list to the State as required by the West Virginia
Rules of Criminal Procedure, I concur in the majority's decision to lift the sanctions imposed
by the trial court.