State v. Rector

• Citation: 280 S.E.2d 597,167 W.Va. 748
• Decision Date: 17 July 1981
• Docket Number: No. 14618,14618
• Court: Supreme Court of West Virginia
• Parties: STATE of West Virginia v. Jimmy RECTOR.

Page 597

280 S.E.2d 597

167 W.Va. 748

STATE of West Virginia v. Jimmy RECTOR.

No. 14618.

Supreme Court of Appeals of West Virginia.

July 17, 1981.

Syllabus by the Court

1. "Before a physical object connected with a crime may properly be admitted into evidence, it must be shown that the object is in substantially the same condition as when the crime was committed. Factors to be considered in making this determination are: (1) the nature of the article, (2) the circumstances surrounding its preservation and custody, and (3) the likelihood of intermeddlers tampering with it." Syl. pt. 1, State v. Davis, 266 S.E.2d 909 (W.Va.1980).

2. "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. pt. 5, Casto v. Martin, 230 S.E.2d 722 (W.Va.1976) citing Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).

3. It is reversible error for a trial judge to admit into evidence in a criminal trial of a defendant charged with a marihuana violation drug paraphernalia and marihuana belonging to a state witness when such drug paraphernalia and marihuana have not been associated with the defendant and have no probative value relating to the guilt of the defendant.

4. Constructive possession of a controlled substance, W.Va.Code, 60A-4-401(c), and constructive delivery or possession with intent to deliver a controlled substance, W.Va.Code, 60A-4-401(a), arise from separate offenses.

5. It is reversible error for a trial judge to instruct a jury in a criminal trial of a defendant charged with a marihuana violation that the defendant may be found guilty of "possession and delivery of a controlled substance" when such instruction considers "possession and delivery of a controlled substance" as a single offense.

6. "The exceptions permitting evidence of collateral crimes and charges to be admissible against an accused are recognized as follows: the evidence is admissible if it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the others; and (5) the identity of the person charged with the commission of the crime on trial." Syl. pt. 12, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

7. "A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan." Syl. pt. 1, State ex rel. Watson v. Ferguson, 274 S.E.2d 440 (W.Va.1980).

Jesser & Harrington and Travers R. Harrington, Jr., Fayetteville, for rector.

Chauncey H. Browning, Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for the State.

McHUGH, Justice:

This action is before this Court upon the petition of Jimmy Rector for an appeal from orders of the Circuit Court of Fayette County, West Virginia, entered upon jury verdicts in 1979, adjudging him guilty of possession and delivery of marihuana and, further, being subject to enhanced sentencing pursuant to the West Virginia habitual offender statutes, W.Va.Code, 61-11-18, et seq. Consequently, this Court has before it the petition, all matters of record, including the exhibits and transcripts of the Rector (hereinafter "defendant") marihuana and recidivist trials, and the briefs filed by counsel.

On September 12, 1978, a Fayette County grand jury returned an indictment, No. 78-F-138, charging that the defendant and Randy Feazell in July, 1978, "... did knowingly intentionally, unlawfully and feloniously possess and possess with the intent to deliver and deliver to one Marvin Griffith a controlled substance, to wit, marihuana...." ¹ Indictment No. 78-F-138, charging the defendant with a marihuana violation, was one of several indictments returned against the defendant in 1978 by the Fayette County grand jury.

The defendant was tried separately from Randy Feazell. The trial began on April 9, 1979, and on April 12, 1979, the jury found the defendant guilty of "... possession and delivery of marihuana, a controlled substance." Accordingly, by order entered April 18, 1979, the defendant was adjudged guilty by the Circuit Court upon the jury verdict.

On April 18, 1979, the State filed in the Circuit Court of Fayette County, West Virginia, an information alleging essentially that the defendant had been convicted of a felony prior to his April, 1979, conviction of possession and delivery of marihuana. This information was filed pursuant to the West Virginia habitual offender statutes, W.Va.Code, 61-11-18, et seq. A jury trial was held on May 28, 1979, wherein the jury found that the defendant, Jimmy Rector, was the same person who was convicted in 1974 in the United States District Court for the Northern District of Georgia of the Consequently, the defendant was sentenced to the West Virginia Penitentiary for an indeterminate term of not less than one nor more than ten years. The Court stated that this sentence was based upon a one to five year sentence for the defendant's conviction of possession and delivery of marihuana, plus an additional five year sentence pursuant to the West Virginia habitual offender statutes.

interstate transportation of a stolen motor vehicle and, further, was the same person who was convicted in April, 1979, in the Circuit Court of Fayette County, West Virginia, of possession and delivery of marihuana. By order entered June 1, 1979, the Circuit Court of Fayette County adopted the jury's findings.

In his petition for appeal to this Court, the defendant asserts that several errors were committed by the Circuit Court of Fayette County with respect to his trial upon the marihuana charge and his recidivist trial. These errors include inter alia issues concerning (1) chain of custody, (2) the admission of drug paraphernalia, (3) the question of constructive possession and delivery of marihuana, (4) introduction of evidence of multiple offenses at trial and (5) the appropriateness of the recidivist trial.

Factual Background

During the summer of 1978, the period in question, the defendant lived in Oak Hill, Fayette County, West Virginia. Randy Feazell, during part of this time, lived with the defendant while the defendant was separated from his wife. The record indicates that prior to June, 1978, Randy Feazell and Marvin E. Griffith were involved in the sale of marihuana.

On August 2, 1978, Marvin Griffith sold a quantity of marihuana to a police officer. At that time, Griffith was arrested, and a search pursuant to warrant was conducted of the Griffith home. As a result of this search, police officers seized marihuana and drug paraphernalia.

At the trial of the defendant beginning April 9, 1979, Marvin Griffith, the State's principal witness, identified the defendant as the person Griffith dealt with in obtaining much of the marihuana confiscated from the Griffith home on August 2, 1978.

The testimony of Griffith at the trial of the defendant is somewhat confusing and contradictory. Essentially, Griffith testified that in June and July, 1978, he received marihuana from third parties acting on behalf of the defendant. Griffith further testified that he paid the defendant directly for this marihuana.

The defendant asserted the defense of alibi, testifying that during part of July, 1978, he was in Kansas and Tennessee.

Specifically, Griffith testified on direct examination that in June, 1978, he gave Randy Feazell approximately $1,000 for some marihuana and, further, that he saw Feazell hand the money to the defendant. A few days later, Griffith, at the defendant's direction, received marihuana from a third party.

Griffith testified that at the end of June he paid the defendant $1500 for marihuana. This $1500 payment and a $500 payment made subsequently, were made directly from Griffith to the defendant.

Griffith testified that in July at the defendant's direction he received marihuana from a third party at the Fiesta Club. Griffith further testified that at the defendant's direction he received marihuana from a third party in a motor vehicle parked at the defendant's home. Finally, Griffith testified that in July, 1978, he paid the defendant $2000 for marihuana and that this payment was made by Griffith directly to the defendant.

At the defendant's trial beginning April 9, 1979, forty-six exhibits were marked for identification by the State. Almost all of these exhibits were admitted into evidence and they fall into two categories. The first category of exhibits was drug paraphernalia owned by Griffith and marihuana grown by Griffith. The trial judge instructed the jury that these exhibits were admitted only upon the question of whether Griffith was a dealer in marihuana. The second category of exhibits was marihuana and bags to contain

                marihuana.  This category was admitted upon the question of the guilt or innocence of the defendant.  2 at the conclusion of the trial, the jury found the defendant guilty of possession and delivery of marihuana
                

I CHAIN OF CUSTODY

On August 2, 1978, police officers, pursuant to a search warrant, conducted a search of the home of Marvin E. Griffith in Fayette County, West Virginia. At that time, marihuana and drug paraphernalia were seized. Deputy Lawrence Boley of the Fayette County Sheriff's Office took possession of the seized items.

After the seizure, Deputy Boley took the seized items to Fayetteville where a field test was performed upon the marihuana. This test indicated that the substance was in fact marihuana. Boley then placed the items in a safe in the Fayette County Sheriff's Office. At the trial of the...