       IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                             January 2013 Term

                               _____________                 FILED
                                                         March 12, 2013
                                No. 11-1386               released at 3:00 p.m.
                               _____________              RORY L. PERRY II, CLERK
                                                        SUPREME COURT OF APPEALS
                                                            OF WEST VIRGINIA



                        STATE OF WEST VIRGINIA,

                            Respondent Below



                                      V.


                           MICHAEL J. McGILL,

                              Petitioner Below


  ____________________________________________________________________

               Appeal from the Circuit Court of Marshall County

                        Honorable Mark A. Karl, Judge

                        Criminal Action No. 2009-F-71


                               AFFIRMED

  ____________________________________________________________________

                         Submitted: January 16, 2013

                            Filed: March 12, 2013



Robert G. McCoid	                               Patrick Morrissey
McCamic, Sacco & McCoid	                        Attorney General
Wheeling, West Virginia	                        Robert D. Goldberg
Attorney for Petitioner	                        Assistant Attorney General
                                                Charleston, West Virginia
                                                Attorney for Respondent


JUSTICE DAVIS delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1.     The subpoena authority under W. Va. Code § 57-5-4 (1990) (Repl. Vol.

2012) requires a legal proceeding be pending in order for a subpoena duces tecum to issue.



              2.     The subpoena authority under Rule 17 of the West Virginia Rules of

Criminal Procedure requires a legal proceeding be pending in order for a subpoena duces

tecum to issue.



              3.     “Where improper evidence of a nonconstitutional nature is introduced

by the State in a criminal trial, the test to determine if the error is harmless is: (1) the

inadmissible evidence must be removed from the State’s case and a determination made as

to whether the remaining evidence is sufficient to convince impartial minds of the

defendant’s guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be

insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support

the conviction, an analysis must then be made to determine whether the error had any

prejudicial effect on the jury.” Syllabus point 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d

55 (1979).




                                               i
Davis, Justice:

              This is an appeal by Michael J. McGill (hereinafter “Mr. McGill”) from an

order of the Circuit Court of Marshall County resentencing him to one year incarceration

upon a conviction of simple battery.1 In this appeal, Mr. McGill contends that the trial court

committed reversible error by admitting his medical records into evidence during his trial.

After a careful review of the briefs and record submitted on appeal, and listening to the

arguments of the parties, we affirm.2



                                              I.


                     FACTUAL AND PROCEDURAL HISTORY


              The relevant facts of this case began at a campground on Fish Creek, in

Marshall County, West Virginia. On Friday, June 12, 2009, Mr. McGill, his wife, Becky

McGill, and their daughter went to the campground for the weekend. Also on the same day,

Mr. McGill’s cousin, Sheila McGill, traveled to the same campground to spend the weekend

at a campsite that was immediately adjacent to Mr. McGill’s campsite. Sheila McGill had

a friend with her named Mary Ratliff. At some point during the course of the day on June

              1
             Mr. McGill was resentenced for appeal purposes by an order entered
December 3, 2011.
              2
                We note that while this case was pending, Attorney General Patrick Morrissey
was sworn in and replaced former Attorney General Darrell V. McGraw, Jr. See
W. Va. R. App. P. 41(c) (“When a public officer is a party to an appeal or other proceeding
in the Supreme Court in his official capacity and during its pendency . . . ceases to hold
office, the action does not abate and his successor is automatically substituted as a party.”).

                                              1

13, 2009, a man by the name of Michael Yoho was driving an ATV near the campground.

Becky McGill recognized Mr. Yoho as he drove by and invited him over to the campsite.

Mr. Yoho accepted the invitation and was introduced to Mr. McGill, Sheila McGill, and

Mary Ratliff.



                At some point just before dusk, Mr. McGill, his wife, and Mr. Yoho decided

to go to a nearby general store/tavern to buy some beer and cigarettes. The record indicates

that the three individuals were gone from the campsite for about an hour or less. The

testimony at trial revealed that after the three individuals returned, Mr. McGill began beating

on Mr. Yoho for apparently making “a pass” at Becky McGill. Mr. McGill was seen

punching Mr. Yoho to the ground and kicking him. Sheila McGill attempted to stop Mr.

McGill, and, in the process, he knocked her to the ground. Mr. McGill eventually struck

Sheila McGill in the head with a dust mop.



                Although Mr. Yoho’s face was bloodied, he was able to leave the campsite on

his own. The next day, June 14, relatives of Mr. Yoho contacted the local sheriff to report

that he had not come home and was missing. Mr. Yoho was found dead on June 15 with his

body pinned against a tree by his ATV.3 The details are not clear in the record, but somehow

the sheriff’s office was informed that Mr. Yoho had been beaten on the previous day by Mr.


                3
                    Mr. McGill was never implicated in the death of Mr. Yoho.

                                                2

McGill. An investigation was made at the campsite on the same day that Mr. Yoho’s body

was found. It appears that, during the course of the investigation, the police learned that Mr.

McGill had gone to a hospital to have his right hand and left foot examined. Immediately

after the police learned that Mr. McGill had gone to the hospital for injuries sustained in the

fight, they obtained a court order compelling the hospital to turn over Mr. McGill’s health

records.4



              On November 10, 2009, a grand jury indicted Mr. McGill on one count of

malicious assault of Mr. Yoho and on one count of third offense domestic battery against

Sheila McGill. Prior to trial, Mr. McGill filed a motion in limine to prevent the prosecutor

from introducing his medical records into evidence. Mr. McGill argued, in essence, that the

circuit court did not have authority to issue the order requiring his medical records to be

turned over. The trial court denied the motion, and the prosecutor introduced the medical

records into evidence during the trial. A jury ultimately returned a verdict finding Mr.

McGill not guilty of third offense domestic battery but found him guilty of simple battery as

a lesser included offense of malicious assault. This appeal followed.




              4
                  The prosecutor actually obtained the court order.

                                                3

                                             II.


                               STANDARD OF REVIEW


              This case presents a single issue for resolution. That issue is whether the trial

court properly denied Mr. McGill’s motion to suppress the introduction of his medical

records into evidence.5 In State v. Lilly, 194 W. Va. 595, 461 S.E.2d 101 (1995), this Court

explained the standard of review of a circuit court’s ruling on a motion to suppress is a

two-tier standard:

              [W]e first review a circuit court’s findings of fact when ruling
              on a motion to suppress evidence under the clearly erroneous
              standard. Second, we review de novo questions of law and the
              circuit court’s ultimate conclusion as to the constitutionality of
              the law enforcement action. Under the clearly erroneous
              standard, a circuit court’s decision ordinarily will be affirmed
              unless it is unsupported by substantial evidence; based on an
              erroneous interpretation of applicable law; or, in light of the
              entire record, this Court is left with a firm and definite
              conviction that a mistake has been made. When we review the
              denial of a motion to suppress, we consider the evidence in the
              light most favorable to the prosecution.

Lilly, 194 W. Va. at 600, 461 S.E.2d at 106 (internal citations and footnote omitted). This

Court further has explained:

                     When reviewing a ruling on a motion to suppress, an
              appellate court should construe all facts in the light most
              favorable to the State, as it was the prevailing party below.
              Because of the highly fact-specific nature of a motion to
              suppress, particular deference is given to the findings of the


              5
              Although Mr. McGill did not label his motion as a motion to suppress, that
was the essence of the motion.

                                              4

              circuit court because it had the opportunity to observe the
              witnesses and to hear testimony on the issues. Therefore, the
              circuit court’s factual findings are reviewed for clear error.

Syl. pt. 1, State v. Lacy, 196 W. Va. 104, 468 S.E.2d 719 (1996). With these standards in

mind, Mr. McGill’s arguments will be considered.



                                             III.


                                       DISCUSSION


              In this proceeding, Mr. McGill has set out two substantive arguments. First,

he argues that the trial court’s order requiring his medical records be turned over was an

invalid search warrant. Second, Mr. McGill contends that the order was an improperly issued

subpoena duces tecum. Insofar as the State neither argued below nor in this appeal that the

order was a search warrant, we need not address that issue.6



              Mr. McGill contends that the purported subpoena duces tecum issued by the

circuit court was not in compliance with W. Va. Code § 57-5-4 (1990) (Repl. Vol. 2012) or




              6
                It will be mentioned in passing that, under the facts of this case, the order
requiring the production of Mr. McGill’s medical records simply was not a search warrant.
As a fundamental matter, the purpose of a search warrant is to permit the police to search and
seize contraband; whereas a subpoena duces tecum requires a named person or entity to turn
over certain items for inspection. The order in this case required medical records be turned
over for inspection. See In re Subpoena Duces Tecum, 228 F.3d 341, 348 (4th Cir. 2000)
(discussing differences between search warrant and subpoena duces tecum).

                                              5

Rule 17 of the West Virginia Rules of Criminal Procedure.7 We note initially that

“interpretations of statutes and rules are subject to a de novo review.” Syl. pt. 1, in part, State

v. Head, 198 W. Va. 298, 480 S.E.2d 507 (1996). See Syl. pt. 1, Appalachian Power Co. v.

State Tax Dep’t of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a

statute or an administrative rule or regulation presents a purely legal question subject to de

novo review.”). A basic rule of statutory construction provides that “‘[w]hen a statute [or

rule] is clear and unambiguous and the [drafter’s] intent is plain, the statute [or rule] should

not be interpreted by the courts, and in such case it is the duty of the courts not to construe

but to apply the statute [or rule].’” Snider v. Fox, 218 W. Va. 663, 667, 627 S.E.2d 353, 357

(2006) (quoting Syl. pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144 W. Va.

137, 107 S.E.2d 353 (1959)). We will address the statutory and rule-based arguments

separately.




               7
                 In Mr. McGill’s pretrial motion in limine, he also argued that his medical
records were obtained in violation of the federal Health Insurance Portability and
Accountability Act, 42 U.S.C. §§ 1320d-1320d9 (“HIPAA”). However, in this appeal, Mr.
McGill has not raised the issue of a HIPAA violation. See Mezu v. Morgan State University,
No. 11-2396, 2012 WL 4041299, at 3 (4th Cir. Sept. 14, 2012) (“HIPAA also permits release
of such records ‘in response to a subpoena, discovery request, or other lawful process.’ 45
C.F.R. § 164.512(e)(1)(ii).”). “To the extent that the issue was raised below, but not on
appeal, it is deemed waived.” Mack-Evans v. Hilltop Healthcare Ctr., Inc., 226 W. Va. 257,
264 n.12, 700 S.E.2d 317, 324 n.12 (2010). See also State v. Lockhart, 208 W. Va. 622, 627
n.4, 542 S.E.2d 443, 448 n.4 (2000) (“Assignments of error that are not briefed are deemed
waived.”).

                                                6

                  A. Issuance of subpoena under W. Va. Code § 57-5-4.

              Mr. McGill asks this Court to determine whether the prosecutor had

authority to obtain the subpoena under W. Va. Code § 57-5-4 when no legal proceeding

was pending against him.8 It is provided under W. Va. Code § 57-5-4, in relevant part,

that,

                     [w]hen it appears by affidavit or otherwise that a . . .
              document in the possession of any person not a party to the
              matter in controversy is material and proper to be produced
              before the court, . . . such court . . . may order the clerk of the
              said court to issue a subpoena duces tecum to compel such
              production at a time and place to be specified in the order.

(Emphasis added). Mr. McGill contends that the use of the phrase “not a party to the

matter in controversy” in W. Va. Code § 57-5-4 “presupposes the existence of an active

case[.]” We agree with Mr. McGill.



              To understand the application of W. Va. Code § 57-5-4, we must examine

the statute together with W. Va. Code § 57-5-3 (1923) (Repl. Vol. 2012).9 Such an

              8
                It will be noted that the State did not address the issue of the application of
W. Va. Code § 57-5-4 in its brief or supplemental brief. The State merely quoted the statute
in a footnote in its brief without any discussion. The State filed its supplemental brief at the
request of this Court.
              9
               Prior to the adoption of the Rules of Criminal Procedure in 1981, W. Va. Code
§ 57-5-3 and W. Va. Code § 57-5-4 exclusively governed the issuance of subpoenas in
criminal and civil proceedings. As a result of this Court’s constitutional rule making
authority, Rule 17 of the West Virginia Rules of Criminal Procedure is now the controlling
authority for issuance of subpoenas in criminal proceedings. However, W. Va. Code §
                                                                               (continued...)

                                               7

analysis is consistent with our recognition that “[s]tatutes which relate to the same subject

matter should be read and applied together so that the Legislature’s intention can be

gathered from the whole of the enactments.” Syl. pt. 3, Smith v. State Workmen’s

Compensation Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). This Court has held

that “statutes which relate to the same persons or things, or to the same class of persons or

things, or statutes which have a common purpose will be regarded in para materia to

assure recognition and implementation of the legislative intent.” Syl. pt. 5, in part,

Fruehauf Corp. v. Huntington Moving and Storage Co., 159 W. Va. 14, 217 S.E.2d 907

(1975).

              The relevant language set out under W. Va. Code § 57-5-3 provides as
follows:

                     In any case at law, upon a party making affidavit that a
              particular book of accounts, or other writing or paper is
              important for him to have in the trial of his cause, he may


              9
                (...continued)
57-5-4 and W. Va. Code § 57-5-3 are still valid subpoena authorities in criminal proceedings
to the extent that they are not in conflict with Rule 17. See State ex rel. Rusen v. Hill, 193
W. Va. 133, 142, 454 S.E.2d 427, 436 (1994) (observing prosecutor could have attempted
“to obtain a subpoena duces tecum pursuant to W. Va. Code, 57-5-4.”). We previously have
made clear that “[t]he West Virginia Rules of Criminal Procedure are the paramount
authority controlling criminal proceedings before the circuit courts of this jurisdiction; any
statutory or common-law procedural rule that conflicts with these Rules is presumptively
without force or effect.” Syl. pt. 5, State v. Wallace, 205 W. Va. 155, 517 S.E.2d 20 (1999).
See also State v. Davis, 178 W. Va. 87, 90, 357 S.E.2d 769, 772 (1987) (holding that W. Va.
R. Crim. P. Rule 7(c)(1) supersedes the provisions of W. Va. Code § 62-9-1, to the extent
that the statute requires the indorsement of the grand jury foreman and attestation of the
prosecutor on the reverse side of the indictment), overruled on other grounds by State ex rel.
R.L. v. Bedell, 192 W. Va. 435, 452 S.E.2d 893 (1994).

                                              8

              procure from the clerk of the court in which the action is
              pending a subpoena duces tecum requiring any party to the
              action to appear before the court on a day named therein, and
              bring with him and produce before such court such book of
              accounts, or other writing or paper, as is specified in such
              process, in order that the same may be used as evidence on the
              trial of the action.

(Emphasis added). The purpose of W. Va. Code § 57-5-3 is to permit a “party” in a

litigation to issue a subpoena duces tecum against another “party” in the litigation. This

purpose is set out in the statute’s heading, which states: “Production of writings – By

party.” The heading of W. Va. Code § 57-5-4 states: “Production of writings – By person

other than party.” Reading W. Va. Code § 57-5-3 and W. Va. Code § 57-5-4 together, it

is clear that both statutes require the commencement of a legal proceeding10 in order for a

subpoena to issue. Consequently, we now hold that the subpoena authority under W. Va.

Code § 57-5-4 (1990) (Repl. Vol. 2012) requires a legal proceeding be pending in order

for a subpoena duces tecum to issue.11

              10
                 The phrase “legal proceeding” includes the commencement of a criminal or
civil action, a grand jury proceeding, or a statutorily authorized administrative proceeding.
              11
                In addition to the requirement of W. Va. Code § 57-5-4 that a legal
proceeding exist for a subpoena to issue thereunder, the Legislature has also enacted a
specific statute addressing the requirements for obtaining medical records through a
subpoena. The relevant language of W. Va. Code § 57-5-4b (1981) (Repl. Vol. 2012)
provides:

                        Except as hereinafter provided, when a subpoena duces
              tecum is served upon a custodian of records of any hospital
              . . . in an action or proceeding in which the hospital is neither a
              party nor the place where any cause of action is alleged to have
                                                                                    (continued...)

                                              9

              The question we now address is whether a recognizable legal proceeding

was pending when the prosecutor obtained Mr. McGill’s medical records. The evidence

in this case shows that the prosecutor filed a “Motion to Compel Surrender of Medical

Records” with the circuit court in order to obtain Mr. McGill’s medical records. This

motion was styled “State v. Criminal Investigation (Michael J. McGill.)” At the time this

motion was filed no criminal complaint or indictment was pending against Mr. McGill

with respect to a crime against Mr. Yoho. Further, no grand jury proceeding was pending

with allegations against Mr. McGill regarding a crime against Mr. Yoho. In fact, the

record does not disclose any lawfully recognized legal proceeding that would support the

prosecutor’s motion and the subsequent issuance of a subpoena duces tecum under

W. Va. Code § 57-5-4. Consequently, W. Va. Code § 57-5-4 could not be relied upon as

authority for issuance of the subpoena.12

              11
                (...continued)
              arisen and such subpoena requires the production of all or any
              part of the records of the hospital relating to the care or
              treatment of a patient in such hospital, it shall be sufficient
              compliance therewith if the custodian or other officer of the
              hospital shall, on or before the time specified in the subpoena
              duces tecum, file with the court clerk or the officer, body or
              tribunal conducting the hearing, a true and correct copy . . . of
              all records described in such subpoena.

(Emphasis added.) It is clear that W. Va. Code § 57-5-4b contemplates medical records being
released through a subpoena issued in a pending legal proceeding.
              12
               The prosecutor argued below, but not in this appeal, that the motion was filed
pursuant to Rule 47 of the West Virginia Rules of Criminal Procedure. Rule 47 provides:
                                                                               (continued...)

                                             10

              This Court has canvassed every statute in our Code that authorizes the

issuance of a subpoena.13 In doing so, we uncovered only one statute that a prosecutor

              12
                (...continued)
                      An application to the court for an order shall be by
              motion. A motion other than one made during a trial or hearing
              shall be in writing unless the court permits it to be made orally.
              It shall state the grounds upon which it is made and shall set
              forth the relief or order sought. It may be supported by affidavit.

While we need not address this issue because it has been waived, we will note as a general
matter that Rule 47 does not apply to a prosecutor’s pre-charging investigation. Rule 47 may
be invoked only when a criminal proceeding has been filed in a circuit court.
              13
                See, e.g. W. Va. Code § 3-1A-6 (2008) (Repl. Vol. 2011) (subpoena power
of Secretary of State); W. Va. Code § 4-1-5 (1996) (Repl. Vol. 2011) (subpoena power of
Legislature); W. Va. Code § 5-11-8 (1998) (Repl. Vol. 2011) (subpoena power of Human
Rights Commission); W. Va. Code § 6B-2-2 (2005) (Repl. Vol. 2010) (subpoena power of
State Ethics Commission); W.Va. Code § 11-10-5b (1986) (Repl. Vol. 2008) (subpoena
power of Tax Commissioner); W. Va. Code § 14-2-22 (1967) (Repl. Vol. 2009) (subpoena
power of Court of Claims); W. Va. Code § 17C-5A-2 (2012) (Supp. 2012) (subpoena power
of DMV Office of Administrative Hearings); W. Va. Code § 19-5A-10 (1967) (subpoena
power of Commissioner of Agriculture); W. Va. Code § 19-23-6 (2011) (Supp. 2012)
(subpoena power of Racing Commission); W. Va. Code § 21A-2-21 (1963) (Repl. Vol. 2008)
(subpoena power of the Commissioner of the Bureau of Employment Programs); W. Va.
Code § 23-5-8 (2005) (Repl. Vol. 2010) (subpoena power of Workers’ Compensation Office
of Judges); W.Va. Code § 24-2-10 (1923) (Repl. Vol. 2008) (subpoena power of Public
Service Commission); W. Va. Code § 29-3-12 (2010) (Supp. 2012) (subpoena power of State
Fire Marshal); W. Va. Code § 29-5A-2 (1976) (Repl. Vol. 2008) (subpoena power of State
Athletic Commission); W. Va. Code § 29-22-5 (2001) (Repl. Vol. 2008) (subpoena power
of State Lottery Commission); W. Va. Code § 29A-5-1 (1964) (Repl. Vol. 2012) (subpoena
power under the Administrative Procedures Act); W. Va. Code § 30-3-7 (subpoena power
of West Virginia Board of Medicine); W. Va. Code § 30-25-15 (2010) (Repl. Vol. 2012)
(subpoena power of West Virginia Nursing Home Administrators Licensing Board); W. Va.
Code § 30-27-21 (2009) (Repl. Vol. 2011) (subpoena power of Board of Barbers and
Cosmetologists); W. Va. Code § 30-30-27 (2011) (Repl. Vol. 2012) (subpoena power of
Board of Social Work); W. Va. Code § 31A-8-1 (1969) (Repl. Vol. 2009) subpoena power
of Commissioner of Banking); W. Va. Code § 33-2-4 (2003) (Repl. Vol. 2011) (subpoena
                                                                            (continued...)

                                              11

could invoke to obtain a criminal investigatory subpoena outside the context of a legal

proceeding. In 2011, the Legislature enacted Article 1G of Chapter 62 of our Code. See

W. Va. Code § 62-1G-1 et seq. Article 1G is entitled: “Subpoena Powers for Aid of

Criminal Investigation Relating to Certain Offenses Against Minors.” Under W. Va.

Code § 62-1G-1 (2011) (Supp. 2012), the Legislature declared “that it is necessary to

grant subpoena powers in aid of criminal investigations of certain crimes against minors

involving electronic communications systems or services or remote computing

services.”14 Obviously, this Article does not apply in the case sub judice because it was

              13
                (...continued)
power of Insurance Commissioner); W. Va. Code § 46A-7-104 (1974) (Repl. Vol. 2011)
(subpoena power of Attorney General under Consumer Credit and Protection Act); W. Va.
Code § 47-18-7 (1978) (Repl. Vol. 2006) (subpoena power of Attorney General under
Antitrust Act); W. Va. Code § 48-18-123 (2001) (Repl. Vol. 2009) (subpoena power of
Bureau for Child Support Enforcement); W. Va. Code § 48-27-312 (1978) (Repl. Vol. 2008)
(subpoena power in domestic violence proceeding); W. Va. Code § 50-5-4 (power of
magistrate, magistrate court clerk; magistrate court deputy clerk or magistrate assistant to
issue subpoena at the request of any party); W. Va. Code § 54-2-7b (1963) (Repl. Vol. 2008)
(subpoena authority in condemnation proceeding).
              14
               The relevant subpoena language in Article 1G is contained in W. Va. Code
§ 62-1G-2(b) (2011) (Supp. 2012):

                     When a law-enforcement agency is investigating a sexual
              offense against a minor, an offense of stalking . . . when the
              victim is a minor or an offense of child kidnapping . . . , and has
              reasonable suspicion that an electronic communications system
              or service or remote computing service has been used in the
              commission of a sexual offense against a minor . . . , an offense
              of stalking when the victim is a minor or an offense of child
              kidnapping, a magistrate or a circuit court judge may issue a
              subpoena, upon written application on a form approved by the
                                                                                    (continued...)

                                              12

not enacted at the time of the conduct in this case; nor would it apply substantively even if

it was in place when the conduct at issue in this case occurred. In the final analysis,

Article 1G supports this Court’s determination that W. Va. Code § 57-5-4 can be invoked

only in the context of a pending legal proceeding; if this was not true, Article 1G would

not be needed.



              14
                (...continued)
              West Virginia Supreme Court of Appeals, to the electronic
              communications system or service or remote computing service
              provider that owns or controls the internet protocol address,
              websites, electronic mail address or service to a specific
              telephone number, requiring the production of the following
              information, if available, upon providing in the subpoena the
              internet protocol address, electronic mail address, telephone
              number or other identifier, and the dates and times the address,
              telephone number or other identifier suspected of being used in
              the commission of the offense:

                     (1) Names;

                     (2) Addresses;

                     (3) Local and long distance telephone connections;

                     (4) Records of session times and durations;

                     (5) Length of service, including the start date and types
              of service utilized;

                     (6) Telephone or other instrument subscriber numbers or
              other subscriber identifiers, including any temporarily assigned
              network address; and
                     (7) Means and sources of payment for the service,
              including any credit card or bank account numbers.

                                             13

                        B. Issuance of subpoena under Rule 17.

              Mr. McGill also contends that the prosecutor did not have authority under

Rule 17 of the West Virginia Rules of Criminal Procedure to obtain a subpoena duces

tecum when no legal proceeding was pending against him. The prosecutor argued below,

but not in this appeal, “that the Motion and Order in this matter can also be viewed as the

functional equivalent of a subpoena duces tecum pursuant to [Rule] 17(a) and (c).” The

relevant provisions of Rule 17 provide as follows:

                       (a) A subpoena shall be issued by the clerk under the
              seal of the court. It shall state the name of the court and the
              title, if any, of the proceeding. . . . The clerk shall issue a
              subpoena, signed and sealed but otherwise in blank, to a party
              requesting it, who shall fill in the blanks before it is served.

                     ....

                     (c) A subpoena may also command the person to
              whom it is directed to produce the books, papers, documents
              or other objects designated therein. . . . The court may direct
              that books, papers, documents or objects designated in the
              subpoena be produced before the court at a time prior to trial
              or prior to the time when they are to be offered in evidence
              and may upon their production permit the books, papers,
              documents or objects or portions thereof to be inspected by
              the parties and their attorneys.




                                             14

(Emphasis added). Mr. McGill contends that the use of the phrase “party” in Rule 17(a)

“presupposes the existence of an active case, not a mere investigation.” We agree with

Mr. McGill to the extent that an investigation is not being conducted by a grand jury.15



              The trial court’s reliance on Rule 17 fails for the same reasons cited under

the discussion of W. Va. Code § 57-5-4. In other words, and we so hold, the subpoena

authority under Rule 17 of the West Virginia Rules of Criminal Procedure requires a legal

proceeding be pending in order for a subpoena duces tecum to issue. Consequently, if

this Court gave the prosecutor’s “motion a liberal reading, access might be had to the

documents sought by considering the motion as a request for issuance of a subpoena

duces tecum under Rule [17], if a proceeding were pending.” Sullivan v. Dickson, 283

F.2d 725, 727 (9th Cir. 1960). However, in no legal proceeding was pending in the

instant matter to support the application of Rule 17. Therefore, the motion filed by the


              15
                While it is true Rule 17(a) provides that a subpoena may issue in a legal
proceeding that does not have a “title”, this language does not support the issuance of the
subpoena duces tecum in this case. This language has been explained as being applicable to
a grand jury proceeding:

                     It is obvious that no title can be affixed to a
              pre-indictment grand jury investigation. Common sense and
              simple logic compel the conclusion that grand jury subpoenas,
              similar to those presently in issue before the Court, are not
              invalid merely because they lack a designation of “the title . . .
              of the proceedings”.

In re Patriarca, 396 F. Supp. 859, 870 (D.C.R.I. 1975).

                                             15

prosecutor could not support issuance of a subpoena duces tecum under Rule 17. See

Application of Royal Bank of Canada, 33 F.R.D. 296 (S.D.N.Y. 1963) (quashing a civil

subpoena duces tecum because no action had commenced); State v. Williams, 392 S.E.2d

181, 182 (S.C. 1990) (“State concedes that, as no action was pending against Williams,

the subpoena duces tecum was clearly defective.”); State v. Popenhagen, 749 N.W.2d

611, 616 (Wis. 2008) (“The subpoenas did not require the banks, in the words of either

statute, to attend an ‘action, matter or proceeding pending or to be examined into before’

the circuit court. . . . [T]hese subpoenas do not satisfy Wis. Stat. §§ 885.01 or 805.07,

namely because no proceeding is pending.”).



              Our determination that the subpoena duces tecum issued in this case cannot

be supported by Rule 17 or W. Va. Code § 57-5-4 is consistent with this Court’s

longstanding policy to “guard[] the power of subpoena jealously.” Huntington Human

Relations Comm’n ex rel. James v. Realco, Inc., 175 W. Va. 24, 26 n.1, 330 S.E.2d 682,

685 n.1 (1985).16 This jealousy is rooted in the right of every citizen to be free of


              16
                Although neither party raised the issue, we are cognizant that a trial court
“possesses the inherent power under the common law to issue a subpoena duces tecum ...
where the interests of justice so require[].” Matter of Computer Tech. Corp., 337 S.E.2d 165,
167 (N.C. Ct. App. 1985). See also Central Soya Co. v. Henderson, 208 A.2d 110, 115 (R.I.
1965) (“The power to issue a subpoena duces tecum is inherent in the court, its purpose being
to promote the prompt administration of justice[] and . . . statutory grants of similar authority
that require the production of documents are only declaratory of the common law.”).
However, a trial “court has no authority to . . . issue a subpoena where there is no proceeding
                                                                                   (continued...)

                                               16

unauthorized governmental intrusion into the affairs of his or her life. The right of

individual privacy is too fundamental to grant the government unchecked authority to

seek subpoenas “for purposes of harassment or to commence a ‘fishing expedition.’”

Juniata Cnty. Childcare & Dev. Servs., Inc. v. Unemployment Comp. Bd. of Review, 6

A.3d 1037, 1046 (Pa. Commw. Ct. 2010). See also Rutland Herald v. Vermont State

Police, 49 A.3d 91, 109 (Vt. 2012) (Dooley, J., concurring in part and dissenting in part)

(“[T]he issuance of an investigatory subpoena is . . . an intrusion into the basic rights of

citizens. It is one of the greatest powers of the judiciary and, because of the invasion of

citizens’ privacy interests, a power that must be carefully regulated to ensure it is not

misused.”).



              The “motion” that was filed in this case to obtain Mr. McGill’s medical

records is a prime example of the type of abuse that can occur when the government seeks

private information without legal authorization. The motion submitted by the prosecutor

set out the following:

                    Now comes Jeffrey D. Cramer, Prosecuting Attorney
              for Marshall County, West Virginia, or his Assistant as so
              designated, who avers and alleges the following:



              16
               (...continued)
or action before it[.]” In re Blake’s Estate, 272 N.Y.S.2d 597, 599 (1966). Insofar as we
have determined that no legal proceeding was pending when the prosecutor sought the
subpoena, the trial court could not exercise its inherent authority to issue the subpoena.

                                              17

                     1. That Michael J. McGill, DOB: 11/28/1961 was
              involved in an incident requiring medical care and that the
              Marshall County Sheriff’s Department is conducting an
              investigation of that incident.

                     2. That Michael J. McGill was treated at Reynolds
              Memorial Hospital on date somewhere between June 12th,
              2009 and June 14th, 2009 and the records generated by that
              treatment are important to the investigation of the incident in
              which those injuries were sustained.

                     THEREFORE, in order to complete the police
              investigation, the State of West Virginia moves the Honorable
              Court to enter an ORDER requiring the release of those
              medical records from Reynolds Memorial Hospital to the
              custody of the Prosecuting Attorney or a member of the
              Marshall County Sheriff’s department.

The summary and vague statements in this motion did not meet the standard articulated

by this Court for issuance of a subpoena duces tecum. We have held that

                     [a] subpoena duces tecum is available against third
              parties in both civil and criminal cases upon an adequate
              description of the material sought. Furthermore, it is
              necessary to show that the material is relevant to an issue in
              the case and that its proof is not otherwise practicably
              available.

Syl. pt. 4, State v. Harman, 165 W. Va. 494, 270 S.E.2d 146 (1980). It is clear that the

above motion does not inform the trial court of the criminal issue the medical records

were needed to establish. The motion speaks of an “incident” being investigated. Does

the “incident” involve murder, rape, assault, child abuse, a terrorist plot, or any other

criminal offense? The motion is silent on the most fundamental requirement. This



                                              18

fugitive motion explains why we “jealously guard” the subpoena and will not sustain its

issuance without legal authority.



              In determining that neither Rule 17 nor W. Va. Code § 57-5-4 may be

invoked by a prosecutor outside the context of a legal proceeding, we are mindful that the

investigative subpoena power of a prosecutor is reposed in the grand jury. Justice

Cleckley addressed the investigatory and subpoena power of the grand jury in State ex rel.

Doe v. Troisi, 194 W. Va. 28, 459 S.E.2d 139 (1995):

                      The grand jury was originally created to carry out a
              vital and unique function in our criminal justice system. It is
              charged with the duty to investigate the possibility of criminal
              behavior. . . . A grand jury’s quest for information ends once
              an offense is identified or a determination made that no crime
              was committed.

                     ....

                      A grand jury’s powers are so vast that many of the
              usual trial court procedures are suspended for grand jury
              proceedings. For example, a putative defendant in a grand
              jury proceeding does not have the right to have counsel
              present, unlike a defendant’s constitutional right to counsel
              after indictment. . . .

                      However, a grand jury’s powers are not limitless and a
              circuit court not only has the power, but has an obligation to
              curb a grand jury’s overreaching. . . .

                     ....




                                             19

                     As with other powers of the grand jury, the subpoena
              power is broad. Indeed, a grand jury’s subpoena duces tecum
              carries with it a presumption of validity. . . .

Troisi, 194 W. Va. at 34-35, 459 S.E.2d at 145-46. See United States v. Williams, 504

U.S. 36, 46-48, 112 S. Ct. 1735, 1742, 118 L. Ed. 2d 352 (1992) (“[T]he whole theory of

the [grand jury’s] function is that it belongs to no branch of the institutional government,

serving as a kind of buffer or referee between the Government and the people.”). Insofar

as a grand jury is available for a prosecutor to seek issuance of a subpoena duces tecum,

there is no impediment to prosecutors seeking the type of records unlawfully obtained in

the instant case.



                                    C. Harmless error.

              Although we have determined that the trial court should have granted Mr.

McGill’s motion to suppress the medical records because they were unlawfully obtained,

it does not automatically follow that he is entitled to a new trial. The State has asked that

this Court find harmless error in the event the medical records were deemed to be

obtained unlawfully. We have set forth the harmless error test to determine whether the

introduction of improper evidence in some instances constitutes reversible error or was

harmless:

                      Where improper evidence of a nonconstitutional nature
              is introduced by the State in a criminal trial, the test to
              determine if the error is harmless is: (1) the inadmissible
              evidence must be removed from the State’s case and a

                                             20

              determination made as to whether the remaining evidence is
              sufficient to convince impartial minds of the defendant’s guilt
              beyond a reasonable doubt; (2) if the remaining evidence is
              found to be insufficient, the error is not harmless; (3) if the
              remaining evidence is sufficient to support the conviction, an
              analysis must then be made to determine whether the error
              had any prejudicial effect on the jury.

Syl. pt. 2, State v. Atkins, 163 W. Va. 502, 261 S.E.2d 55 (1979). Accord State v. Day,

225 W. Va. 794, 803, 696 S.E.2d 310, 319 (2010).



              Under the facts of the instant case, we have no doubt that, after removing

the improperly obtained medical records, the evidence was sufficient for the jury to find

Mr. McGill guilty beyond a reasonable doubt of simple battery against Mr. Yoho. The

prosecutor presented the following eyewitness testimony by Mary Ratliff that Mr. McGill

punched and kicked Mr. Yoho:

                     Q. And what’s the first thing you saw when you got
              outside and could see the front yard from your vantage point
              on the front porch?

                     A. That Mike Yoho, that we just met that afternoon,
              was out on the flat yard facing the camp. He was on his knees
              and he was slumped down over.

                    Q. So he was not on all fours? He was slumped
              forward and ­

                     A. Slumped over and Mike [McGill] was yelling.

                     Q. Okay. What did you see then?



                                            21

                     A. After I yelled and told Mike [McGill] to get away
              from that man, he just picked him up by the hair of the head
              and just come right down on top of him, his face this way
              (indicating).

                      Q. With his fist?

                    A. Yes. And then he dropped – let go of the man’s
              head and the man went down on the ground again, and Mike
              [McGill] went to the right side and kicked him and –

                      Q. How many times did he kick him?

                      A. I seen him kick him once and hit him once. That was it.

This testimony was corroborated by physical evidence of blood and tufts of bloody hair

photographed at the crime scene and introduced into evidence. The prosecutor also

introduced a photograph of Mr. Yoho’s head and face, which showed injuries consistent

with Mary Ratliff’s testimony.17 Additionally, there was admissible testimony by Mary

Ratliff and Sheila McGill that Mr. McGill stated that he injured his hand and foot while

beating Mr. Yoho. Mary Ratliff testified to this issue as follows:

                    Q. Did you have any conversations with the defendant
              on Sunday morning?

                      A. Yes.

                      Q. Tell the jury what that conversation was.




              17
                Mr. McGill testified during the trial that he was attacked by Mr. Yoho and
that he struck Mr. Yoho in self-defense. The jury’s verdict indicates that it rejected the self-
defense argument.

                                              22

                     A. He said that he had to leave camp because he
              thought his hand was broken and his toe was messed up, and
              he was going to go to the hospital and that if anybody asked
              us, we would tell them that he had a four-wheeler – that he
              wrecked on a four-wheeler.

Sheila McGill testified to this matter as follows:

                     Q. Did you have a conversation with your cousin [Mr.
              McGill] about his injuries that he – strike that. Was your
              cousin complaining about any injuries to his body?

                     A. Yes.

                     Q. Where and what?

                     A. He had hurt his hand and his toe.

                     Q. Did he tell you how he thought he had hurt them?

                     A. I know he had told me that he hit him
                     probably about four to six times.

                     Q. Did he tell you how he thought he injured his toe?

                     A. From kicking him.

In light of this evidence, the jury could find beyond a reasonable doubt that Mr. McGill

committed simple battery against Mr. Yoho.




                                             23

                                            IV.


                                    CONCLUSION


             In view of the foregoing, we find that it was error for the trial court to allow

the prosecutor to introduce evidence of Mr. McGill’s medical records. However, this

error was harmless beyond a reasonable doubt. Consequently, Mr. McGill’s conviction

and sentence are affirmed.

                                                                                  Affirmed.




                                            24

