State v. Garner

750 S.E.2d 123, 232 W. Va. 8, 2013 WL 5814112, 2013 W. Va. LEXIS 1084
CourtWest Virginia Supreme Court
DecidedOctober 17, 2013
DocketNo. 12-0439
StatusPublished
Cited by1 cases

This text of 750 S.E.2d 123 (State v. Garner) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Garner, 750 S.E.2d 123, 232 W. Va. 8, 2013 WL 5814112, 2013 W. Va. LEXIS 1084 (W. Va. 2013).

Opinion

PER CURIAM:

In this appeal, Jerel Addison Garner (hereinafter “Mr. Garner”), challenges his convictions for Voluntary Manslaughter,1 Wanton Endangerment,2 and Carrying a Concealed Weapon Without a Permit (second offense).3 He alleges numerous errors;4 however, this case is resolved on the issue of Mr. Garner’s right to effectively cross-examine a key witness. Having thoroughly considered the parties’ briefs, relevant portions of the appendix record, oral argument and relevant law, we find that Mr. Garner’s Sixth Amendment right of confrontation was denied. Accordingly, we reverse this ease and remand for a new trial.5

[10]*10I.

FACTUAL AND PROCEDURAL HISTORY

The events that lead to Mr. Garner’s convictions occurred in the early morning hours of July 5, 2008, outside a nightclub in Huntington, West Virginia. Mr. Garner was in his car outside of the nightclub when it closed.6

As patrons were leaving the nightclub, Curtis Keyes pounded on the side of Mr. Garner’s car and shouted at him. Thereafter, gun shots were exchanged between Mr. Garner and one or more others at the scene. When the conflict was over, Donte Newsome had been shot and killed, Curtis Keyes had been shot once, and Mr. Garner had sustained three bullet wounds. Ivan Clark, a friend of Donte Newsome, had also fired shots during the altercation.

As a result of the above-described events, Mr. Garner was charged with First-Degree Murder, Attempted FirsWDegree Murder, Voluntary Manslaughter, Wanton Endangerment, and Carrying a Concealed Weapon Without a Permit.

At trial, the State contended that Mr. Garner had been the aggressor in this dispute. The State presented evidence that, after Curtis Keyes pounded on the side of Mr. Garner’s car, Mr. Garner exited the car, began shooting, and ultimately killed an unarmed Donte Newsome and wounded an unarmed Curtis Keyes. After Mr. Garner began shooting, according to the State’s evidence, Ivan Clark retrieved a gun from the trunk of his car to defend himself and his friends. Ivan Clark shot at Mr. Garner wounding him three times.

Mr. Garner’s defense theory was that he was attacked. He asserted that Curtis Keyes was, in fact, armed with a gun. Mr. Garner, through his counsel,7 attempted to establish that he acted in self-defense and sustained the three gunshot wounds while being shot at by multiple individuals.

Following a six day jury trial, Mr. Garner was convicted of Voluntary Manslaughter in violation of W. Va.Code § 61-2-4 (1994) (Repl.Vol.2010), Wanton Endangerment in violation of W. Va.Code § 61-7-12 (1994) (Repl.Vol.2010), and Carrying a Concealed Weapon Without a Permit in violation of W. Va.Code § 61-7-3 (1989) (Repl. Vol.2010).8 The circuit court imposed consecutive sentences of fifteen years for Voluntary Manslaughter, five years for Wanton Endangerment, and one to five years for Second Offense Carrying a Concealed Weapon Without a Permit. The Circuit Court of Cabell County subsequently entered an order on February 22, 2012, re-sentencing Mr. Garner for purposes of appeal.9 This appeal followed.

II.

STANDARD OF REVIEW

The dispositive issue raised in this appeal alleges the circuit court’s improper interference with Mr. Garner’s cross-examination of a key witness.

“ ‘The extent of the cross-examination of a witness is a matter within the sound discretion of the trial court; and in the exercise of such discretion, in excluding or permitting questions on cross-examination, its action is not reviewable except in the ease of manifest abuse or injustice.’ Syl. pt. 4, State v. Carduff, 142 W.Va. 18, 93 S.E.2d 502 (1956).” Syllabus, State v. Wood, 167 W.Va. 700, 280 S.E.2d 309 (1981).

Syl. pt. 12, State v. McIntosh, 207 W.Va. 561, 534 S.E.2d 757 (2000). With due regard for [11]*11this standard for our review, we proceed to our discussion of this issue.

III.

DISCUSSION

This ease turns on the issue of defense counsel’s cross-examination of Ivan Clark (hereinafter “Clark”), who was a key witness in the trial. Defense counsel was questioning Clark about specifies of the gun fight in an apparent attempt to undermine the State’s theory that Mr. Garner had fired the first shots. During the course of defense counsel’s cross-examination, the circuit court interrupted and directed counsel to meet with prosecutors and the witness to prepare questions for the continuation of defense counsel’s cross-examination of Clark. Following is the relevant excerpt from the cross-examination of Clark, a portion of which occurred in the presence of the jury:

THE COURT: I am going to take a five, ten minute recess and ask you to prepare questions for your witness.
MR. WILLIAM FORBES: Your Honor, I—
THE COURT: No, just a moment. Have them prepared. Have him address those questions to you so that you will be expecting those answers and get them straight.
MR. WILLIAM FORBES: Your Honor, I am cross-examining the witness. I don’t have any idea what he is going to say.
THE COURT: Well, I am going to help you. We are going to take a ten minute recess, and you — and counsel for the State can be present — and get them straight. This is a ten minute recess.
MR. WILLIAM FORBES: Thank you, Your Honor.
WHEREUPON the jury retired into the jury room, and the following proceedings were had out of the presence and hearing of the jury:
THE COURT: One of you will go with Mr. Forbes. Give him use of one of the rooms and — the adjacent rooms. Quit messing around. You have got ten minutes.
MR. WILLIAM FORBES: Your Honor, this is the way I cross-examine people. I ain’t going to be able to change. I have been doing it for thirty years. This is the first time I have had this problem.
The Court: Well, maybe you better sharpen it up.
MR. WILLIAM FORBES: I would like to make a motion that I think my client’s rights for a fair trial are being denied by interference of my ability to cross-examine this witness, and I want that on the record.
THE COURT: It may be on the record.
MR. CHILES: May we go back in Judge Ferguson’s chambers?
THE COURT: Yes, wherever, just get it done.
WHEREUPON at 2:36 p.m. a recess was had until 2:45 p.m., after which the trial continued, there being present the same parties as heretofore noted, including the Defendant and his counsel.
THE COURT: Bring the jury out.
WHEREUPON the jury returned into the courtroom and the proceedings were resumed within the presence and hearing of the jury, as follows:
MR.

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Cite This Page — Counsel Stack

Bluebook (online)
750 S.E.2d 123, 232 W. Va. 8, 2013 WL 5814112, 2013 W. Va. LEXIS 1084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garner-wva-2013.