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State v. Haden2/27/2003
On June 25, 2001, a Randolph County Grand Jury returned a three count indictment against Mr. Haden. *fn2 The indictment charged Mr. Haden with third offense DUI, driving while revoked for DUI, and possession of a controlled substance. The indictment charged that the offenses occurred on May 2, 2000.
On July 9, 2001, the State filed a motion to amend the indictment, so as to reflect that the crimes occurred on May 2, 2001. Prior to the start of trial on August 2, 2001, the State presented its earlier filed motion to amend the indictment, which the trial court granted. Additionally, prior to trial, Mr. Haden stipulated to his prior DUI convictions. Mr. Haden also moved the court to bifurcate the trial of his third offense DUI charge from the driving while revoked for DUI charge. The trial court denied the bifurcation motion.
During trial, the State called one witness, the arresting officer, during its case-in-chief. Mr. Haden motioned the court for judgment of acquittal on all charges at the close of the State's case-in-chief. The trial court granted the motion as to the charge of possession of a controlled substance. However, the trial court denied the motion as to the other two charges.
Mr. Haden was prepared to call a subpoenaed witness during his case-in-chief. Unfortunately, the witness had not arrived by the time the State concluded its case-in-chief. The trial court gave Mr. Haden an opportunity to have the sheriff bring the missing witness to the trial. However, Mr. Haden declined the offer and called no witnesses. *fn3 A jury returned a verdict finding Mr. Haden guilty of the two charges it considered.
Mr. Haden filed a post-trial motion seeking a new trial. The trial court granted the motion as to the conviction for driving while revoked for DUI. The trial court denied the motion as to the other conviction. *fn4 This appeal followed.
II. STANDARD OF REVIEW
In this case we are asked to review the circuit court's order denying Mr. Haden's motion for a new trial. Our standard of review in this matter is as follows:
In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.Syl. pt. 3, State v. Vance, 207 W. Va. 640, 535 S.E.2d 484 (2000). We have further explained:
Although the ruling of a trial court in granting or denying a motion for a new trial is entitled to great respect and weight, the trial court's ruling will be reversed on appeal when it is clear that the trial court has acted under some misapprehension of the law or the evidence.
Syl. pt. 4, Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d 218 (1976). Accord Syl. pt. 1, Lively v. Rufus, 207 W. Va. 436, 533 S.E.2d 662 (2000).
III. DISCUSSION
A. Amending the Indictment
Mr. Haden first asserts that the trial court committed error in permitting the State to amend the indictment to reflect the correct date that the offenses were alleged to have occurred. This Court has recognized "that a defendant has a right under the Grand Jury Clause of Section 4 of Article III of the West Virginia Constitution to be tried only on felony offenses for which a grand jury has returned an indictment." State v. Adams, 193 W. Va. 277, 280, 456 S.E.2d 4, 7 (1995). However, we have also indicated that an indictment may be amended as to form without resubmission to a
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