Davis, C.J., dissenting:
The majority opinion has
chosen to interpret W. Va. Code § 50-5-13(c)(5) in a manner that precludes the authority of circuit court judges to conduct
a new trial when confronted with a totally defective magistrate court trial
record. This limitation imposed by the majority opinion is wrong. W. Va. Code
§ 50-5-13(c)(5) expressly provides that a circuit court judge has the
authority to conduct a new trial “[i]f the circuit court finds that a
record for appeal is . . . inadequately developed[.]” It is erroneous
for the majority opinion to hold that a “defective magistrate court trial
record” is not equivalent to an “inadequately developed” record
for the purposes of an appeal when both such records are so fatally flawed
as to prejudice the accused's right to a full and fair determination of his/her
guilt or innocence. An “inadequately developed”
record is one that does not permit a circuit court to determine whether a
defendant was validly convicted. Therefore, W. Va. Code § 50-5-13(c)(5)
authorizes the circuit court to conduct a new trial. Common sense also dictates
that a “defective magistrate court trial record” does not permit
a circuit court to determine whether a defendant was validly convicted. Thus,
heeding this common sense, it is obvious that “a defective magistrate
court trial record” also warrants a new trial in circuit court pursuant
to the authority of W. Va. Code § 50-5-13(c)(5).
(See footnote 2)
Bergstrom involved
a defendant who was convicted by a jury in magistrate court of making harassing
telephone calls. At the time of the defendant's conviction, magistrate court
proceedings were not required to be recorded because defendants were entitled to a jury trial on appeal to the circuit court. However, after
the defendant appealed to the circuit court, the Legislature amended the applicable
statute so as to require recordation of magistrate court jury trials. The
Legislature also amended W. Va. Code § 50-5-13 to allow specific
types of review by circuit courts. In response to the amendment
of W. Va. Code § 50-5-13, the circuit court in Bergstrom decided
to provide the defendant with a bench trial because no record of the jury
trial existed. The circuit court ultimately affirmed the defendant's conviction.
On appeal to this Court, the defendant contended that he was entitled to a
jury trial when he appealed to the circuit court. This Court disagreed with
the defendant and we approved of the procedure used by the trial court in
Bergstrom. Explaining our decision, we stated: “In the case before
us, the circuit court had no record of the magistrate court proceedings and,
therefore, conducted a trial de novo, albeit without a jury.
Such an action is expressly condoned by [W. Va. Code] § 50-5-13(c)(5).”
Bergstrom, 196 W. Va. at 659, 474 S.E.2d at 589. We further held in Bergstrom
that W. Va. Code § 50-5-13(c)(5) allows a circuit court to conduct a
bench trial when no record of a magistrate court jury trial exists.
The Bergstrom decision was not an unsound aberration; it was grounded
upon common sense that was expressed as follows:
In Kisner, the defendant
was convicted of sexual assault in the first degree. The defendant was unable
to appeal his conviction because of an error that prevented reproduction of
the trial transcript. Consequently, the circuit court decided to grant the
defendant a new trial. The defendant sought a writ of prohibition to stop
the retrial and have the charge against him dismissed. This Court denied the writ of prohibition
and approved of the circuit court's decision to grant a new trial. In so doing,
the Court held, in Syllabus point 2, that The majority opinion has
misapplied this holding in Kisner so as to require a new trial in magistrate
court. In this regard, the majority of my brethren have failed to consider
the unique problem presented when the record of a circuit court trial is forever
lost as compared with the difficulty attending an inadequate magistrate court
record. In the first described situation, it is necessary to require a new
trial in circuit court because the Supreme Court of Appeals cannot conduct
a new trial given its limited, rather than general, jurisdiction. In contrast,
circuit courts have general jurisdiction and thus are appropriate tribunals
in which to require the conduction of a new trial. The present appeal, however,
is concerned not with an absent circuit court record, but with a defective
magistrate court record. Consequently, the holding in Kisner has no
application to the faulty magistrate court record at issue in the case sub
judice because circuit courts are constitutionally empowered to conduct new trials. Accordingly, a circuit
court does not need a magistrate court trial record because it has the authority
to conduct new trials and to ensure the creation of an adequate record for
appeal to this Court. The majority's attempt to treat these two disparate
scenarios as if they were a distinction without a difference is simply wrong. Kisner is a sound
opinion. However, Kisner is limited to an appeal from a circuit court
to the Supreme Court. Applying Kisner to an appeal from a magistrate
court to a circuit court is illogical and creates uncertain ambiguities in
the previously settled law on this point. For the reasons stated,
I dissent. I am authorized to state that Justice Maynard joins me in this
dissenting opinion.
The defendant in this case,
Chester Chanze, was convicted of petit larceny by a magistrate court jury.
Mr. Chanze appealed to the circuit court. As a result of an inadequate appellate
record, the circuit court provided Mr. Chanze with a de novo bench
trial. At the conclusion of the bench trial, the circuit court affirmed the
petit larceny conviction. On appeal to this Court, the majority opinion reversed
the circuit court's ruling and remanded the case for a new trial in magistrate
court. For the reasons set fourth below, I dissent from the majority opinion
as being inconsistent with W. Va. Code § 50-5- 13(c)(5) (1994) (Repl.
Vol. 2000) and State v. Bergstrom, 196 W. Va. 656, 474 S.E.2d 586 (1996),
and as not being supported by State ex rel Kisner v. Fox, 165 W. Va.
123, 267 S.E.2d 451 (1980).
When this case was presented
to the circuit court as an appeal, the magistrate court record was defective
in its entirety and did not allow for a meaningful review by the circuit court.
Faced with this dilemma, the circuit court judge had two options: (1) remand the case for another trial in magistrate court
(See footnote 1) or (2) conduct a bench trial
in circuit court. In this case, the circuit court judge chose to conduct a
bench trial. The authority for conducting a new trial in circuit court, because
of an insufficient magistrate court trial record, is found at W. Va.
Code § 50-5-13(c)(5) (1994) (Repl. Vol. 2000), which states:
If
the circuit court finds that a record for appeal is deficient as to matters
which might be affected by evidence not considered or inadequately developed,
the court may proceed to take such evidence and make independent findings
of fact to the extent that questions of fact and law may merge in determining
whether the evidence was such, as a matter of law, as to require a particular
finding. If the party appealing the judgment is also a party who elected to
try the action before a jury in the magistrate court, and if the circuit court
finds that the proceedings below were subject to error to the extent that
the party was effectively denied a jury trial, the circuit court may, upon
motion of the party, empanel a jury to re-examine the issues of fact, or some
part or portions thereof.
(Emphasis added).
The record in this case is quite
clear. Mr. Chanze failed to demonstrate any substantive error in his de novo
bench trial before the circuit court. In other words, Mr. Chanze is guilty of
petit larceny beyond a reasonable doubt. Nevertheless, the majority opinion
has decided to give Mr. Chanze a third bite at the apple because of a defective
magistrate court trial record. Such a decision is ludicrous because the dispositive
record, for an appeal to this Court, was the record created during the circuit
court bench trial. This basic point was made clear by the Court in State
v. Bergstrom, 196 W. Va. 656, 474 S.E.2d 586 (1996) (per curiam).
(See footnote 3)
Moreover,
any concerns raised by the lack of electronic recordation at the magistrate
court level were alleviated when the circuit court conducted a de novo bench
trial which was electronically transcribed. Further, the circuit court's action
also provided Appellant with a full record for purposes of appellate review.
Bergstrom, 196 W. Va. at 659, 474 S.E.2d at 589. Thus, the decision in
Bergstrom recognizes that, for appeals to this Court, it is the circuit
court record, not the magistrate court record, that is relevant. That is, Bergstrom
understood that a de novo bench trial in circuit court renders meaningless
the underlying magistrate court proceeding.
The majority opinion relied
upon this Court's earlier decision in State ex rel. Kisner v. Fox, 165
W. Va. 123, 267 S.E.2d 451 (1980), to reverse and remand the instant case. However,
Kisner does not support the result reached by the majority herein.
[t]he failure of the State
to provide a transcript of a criminal proceeding for the purpose of appeal,
absent extraordinary dereliction on the part of the State, will not result
in the release of the defendant; however, the defendant will have the option
of appealing on the basis of a reconstructed record or of receiving a new
trial.
165 W. Va. 123, 267 S.E.2d 451.
(4) The circuit court may
take any of the following actions which may be necessary to dispose of the
questions presented on appeal, with justice to the defendant and the state:
. . . .
(C) Remand the case for
further proceedings, with instructions to the magistrate.
because the majority opinion wanted to reach a result that was not supported by the applicable statutory law.