State v. Garrett

511 S.E.2d 124, 204 W. Va. 13, 1998 W. Va. LEXIS 199
CourtWest Virginia Supreme Court
DecidedDecember 8, 1998
DocketNo. 24997
StatusPublished

This text of 511 S.E.2d 124 (State v. Garrett) 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. Garrett, 511 S.E.2d 124, 204 W. Va. 13, 1998 W. Va. LEXIS 199 (W. Va. 1998).

Opinion

PER CURIAM:

This is an appeal from the August 21,1997, final order of the Circuit Court of Cabell County sentencing the Appellant, Rufus Garrett, Jr., to a term of one to fifteen years, as well as fining the Appellant 11,00o,1 as a result his July 25, 1997, jury conviction for one count of delivering a controlled substance, specifically crack cocaine. The Appellant alleges the trial court committed the following errors: 1) admitted improper character evidence; 2) refused to allow the defense to inspect the photo albums2 used to identify the Appellant; and 3) refused to admit a transcript of the preliminary hearing in magistrate court. Having reviewed the record, the parties’ briefs and arguments, as well as all other matters submitted before this Court, we conclude that the trial court erred in refusing to allow the defense to inspect the photo albums used to identify the Appellant and, therefore, we reverse and remand the case to the lower court.3

I.

During the early morning hours of October 24, 1996, Officers Randy Wiles and Tim Go-heen of the Huntington Police Department were working in an undercover capacity making drug purchases. Officer Wiles, acting as [15]*15a passenger in a yellow cab driven by Officer Goheen, went to an area of known drug activity in Huntington, West Virginia.

A subject that Officer Goheen had previously known as Bill Walker flagged down the cab and asked if they “were looking.” Officer Wiles replied that he was looking for a “[f]ifty.”4 Next, Bill Walker motioned Officer Wiles out of the cab and told him to wait in a walkway between two buildings.

A second individual, later identified by Officer Wiles and Officer Goheen as the Appellant, came out of a nearby bar. The Appellant asked the officers in a very excited way, “[w]ho’s looking?” The Appellant was holding two pieces of a white substance in his hand. Officer Wiles handed the Appellant fifty dollars and in return, was given a substance later identified as “crack” cocaine.5 The officer then returned to the cab.

Officer Goheen also testified that he watched the Appellant come out of the bar and walked over to Officer Wiles. He stated that he then witnessed an exchange between the two from a distance of ten to twelve feet. He stated that he kept the windows of his vehicle down and kept the vehicle positioned so he could maintain visual contact with Officer Wiles.

After the drug purchase, the officers left the area in order to get more manpower to make the arrest. When the officers returned to the area to arrest the suspect, however, they could not find him. The officers took the evidence back to police headquarters and properly secured it.

The Appellant relied upon an alibi defense. It is clear from the cross-examination of the officers, that the officers’ identification of the Appellant was a critical aspect of the defense. Consequently, on cross-examination, Officer Wiles’ stated6 that he did not know the Appellant personally, but that he did recognize him immediately while looking through the photographs in the photo albums. The officer stated that there were many, many blacks contained in the photo albums, some of whom were bald like the Appellant. He stated that Officer Goheen knew the Appellant to be “Spoony’s Brother” and that Officer Goheen told him that he had had contact with the Appellant on the street about two weeks prior to the drug purchase. Specifically, Officer Wiles stated that “[h]e [Officer Goheen] had contact with Mr. Rufus Garrett, but he didn’t remember the individual.”

It was after Officer Wiles testified that the Appellant’s attorney requested that the Ap-pellee produce the photo albums. The trial court first stated for the officer to bring them over, but then changed its ruling when the prosecutor stated that “[t]hese are internal photographs used in investigations” and that “[i]t would be a terrible burden on the Police Department to have that exposed.” The trial court, again without examining the albums, found that the officer had an “independent recollection” of the defendant and that “he could have identified the defendant without looking at the photographs, maybe to tie in a name but not as far as identification of the defendant is concerned.” Finally, the trial court stated that “there is sensitive information7 in there.” Thus, the trial court ruled that the Appellee did not have to produce the photograph albums.8

[16]*16Officer Goheen then testified that he knew the Appellant and his last name “from a conversation I had previously with him and his brother9 several weeks prior to that.” The officer stated that he had gone to school with the Appellant’s brother, Spoony. The officer state that he got the Appellant’s first name from a photo album the Drug and Vice Unit keeps of “past offenders.” The officer also testified that he was “pretty sure of what his first name was and his last name,” but he wanted to confirm it. He indicated that he was eighty percent sure that the suspect was the Appellant. On cross-examination the officer testified that “I knew absolutely who he was.” He also stated that if he had not had access to the photo albums, he would have come up with the Appellant’s name on his own.

Vanessa Hughes, who was the Appellant’s girlfriend at the time of the drug transaction, testified on the Appellant’s behalf. Ms. Hughes testified that the Appellant was living with her and spent the night with her on the night the drug transaction occurred. She testified that she was working as a bartender on the night in question and the Appellant left the bar with her.

II.

The first issue is whether the trial court improperly refused to allow the Appellant to examine the photo albums used by the police to identify him. Relying on Rule 16 of the West Virginia Rules of Criminal Procedure,10 the Appellant asserts that the trial court’s refusal to allow the defense to inspect the photo albums used to identify him seriously impaired the ability of the defense to effectively present its case and was an abuse of the trial court’s discretion. In contrast, the Appellee asserts that the trial court did not abuse its discretion in its refusal to allow the Appellant to examine the albums, because the use of the photo albums by the police did not constitute a lineup. The Ap-pellee maintains that prior offender photo albums were utilized independently of the officers’ identification of the Appellant as a means to insure the accuracy of the arrest warrant. Further, the Appellee contends that the photo albums were not relevant to the Appellant’s case.

We begin our discussion of the issue presented by noting that “[sjubject to certain exceptions, pretrial discovery in a criminal case is within the sound discretion of the trial court.” Syl. Pt. 8, State v. Audia, 171 W.Va. 568, 301 S.E.2d 199, cert. denied, 464 U.S. 934, 104 S.Ct. 338, 78 L.Ed.2d 307 (1983); accord Syl. Pt. 4, State v. Bennett, 176 W.Va. 1, 339 S.E.2d 213 (1985). Consequently, we must determine whether the lower court abused its discretion by refusing to allow the Appellant to examine the photo albums used to identify him.

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Related

State v. Stacy
384 S.E.2d 347 (West Virginia Supreme Court, 1989)
State v. Bennett
339 S.E.2d 213 (West Virginia Supreme Court, 1985)
State v. Audia
301 S.E.2d 199 (West Virginia Supreme Court, 1983)
State v. Pratt
244 S.E.2d 227 (West Virginia Supreme Court, 1978)
State v. Dudick
213 S.E.2d 458 (West Virginia Supreme Court, 1975)

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Bluebook (online)
511 S.E.2d 124, 204 W. Va. 13, 1998 W. Va. LEXIS 199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garrett-wva-1998.