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State v. Abdelhaq4/16/2003
bject-matter and the necessities of the situation." Here, as in Barnhart, the presence of an investigating police officer as a member of the grand jury undermined the validity of the trial and the appellant's conviction.
In so concluding, this Court in no way suggests that Police Detective Wroten did anything improper before the grand jury to influence the return of the indictment. Nor does this opinion constitute any limitation on the right of law enforcement officers to participate as citizens in our democratic institutions, including service in court-related matters. Police officers are indispensable to the maintenance of our free society and should be able to enjoy the benefits thereof. In this particular case, however, Detective Wroten should have been excused from grand jury service.
IV. CONCLUSION
Upon all of the above, the entry of judgment by the Circuit Court of Ohio County upon the appellant's conviction of murder of the first degree is reversed, and this case is remanded to the Circuit Court for the entry of an order dismissing the indictment.
Although the result herein is mandated by principles of constitutional law, appellant Abdelhaq will, no doubt, be reindicted in Ohio County concerning the death of Ms. Tozer. In that regard, this Court notes the language of State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774 (1954), stating that a plea of former jeopardy is insufficient "where based on a former trial under a fatally defective indictment." 140 W.Va. at 449, 84 S.E.2d at 780. See also, State v. Gibson, 181 W.Va. 747, 750, 384 S.E.2d 358, 361 (1989), and Brooks v. Boles, 151 W.Va. 576, 583, 153 S.E.2d 526, 530 (1967), indicating that one of the requirements for the attachment of jeopardy is that the accused be placed on trial upon a "valid" indictment.
Reversed and remanded.
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