State v. Barnhart
In State v. Barnhart, 211 W.Va. 155, 211 W. Va. 155, 563 S.E.2d 820 (2002), the defendant was indicted for malicious assault. The members of the grand jury included Police Detective Wroten who had investigated the incident.
Although Detective Wroten did not actually vote on the indictment, he remained in the grand jury room during the prosecuting attorney's presentment and during grand jury deliberations.
The defendant was subsequently convicted of the lesser included offense of battery. Upon appeal, this Court reversed the conviction and stated as follows:
"By permitting an investigating police officer to sit as a member of the grand jury that indicted Robin Barnhart, and by allowing the officer to remain in the grand jury room during the presentment of the indictment and during deliberations, Ms. Barnhart's due process rights were violated in such a way that the indictment should have been dismissed." 211 W.Va. at 160, 563 S.E.2d at 825.
In so holding, the Court, in Barnhart, recognized the provisions of W.Va. Code, 52-2-12 (1923), which state that "no presentment or indictment shall be quashed or abated on account of the incompetency or disqualification of any one or more of the grand jurors who found the same."