State ex rel. Games-Neely v. Yoder

Decision Date03 June 2016
Docket NumberNo. 15-1198,15-1198
Citation237 W.Va. 301,787 S.E.2d 572
CourtWest Virginia Supreme Court
PartiesState of West Virginia ex rel. Pamela Jean Games–Neely, Prosecuting Attorney, Petitioner v. The Honorable John C. Yoder, Judge of the Circuit Court of Berkeley County; and Dennis E. Streets, Respondents

237 W.Va. 301
787 S.E.2d 572

State of West Virginia ex rel. Pamela Jean Games–Neely, Prosecuting Attorney, Petitioner
v.
The Honorable John C. Yoder, Judge of the Circuit Court of Berkeley County; and Dennis E. Streets, Respondents

No. 15-1198

Supreme Court of Appeals of West Virginia.

Submitted: April 13, 2016
Filed: June 3, 2016


Christopher Quasebarth, Esq., Chief Deputy Prosecuting Attorney, Timothy D. Helman, Esq., Assistant Prosecuting Attorney, Martinsburg, West Virginia, Counsel for the Petitioner

B. Craig Manford, Esq., Martinsburg, West Virginia, Counsel for the Respondent, Dennis E. Streets

JUSTICE WORKMAN delivered the Opinion of the Court.

The petitioner Pamela Jean Games–Neely, Prosecuting Attorney for Berkeley County (also referred to as “the State”), seeks a writ of prohibition to prevent the circuit court from enforcing its November 24, 2015, order granting a new trial to the respondent, Dennis E. Streets. The State argues that the circuit court erred: 1) by granting a new trial when Mr. Streets failed to object to the alleged error during trial; 2) in determining

787 S.E.2d 575

that the State improperly attacked Mr. Streets' character, when he first placed his character in issue and invited error; and 3) by granting Mr. Streets a new trial when the alleged error was harmless. Upon consideration of the parties' briefs and arguments, the appendix record and all other matters submitted before the Court, we find sufficient grounds to grant the requested writ.

I. Factual and Procedural Background

Mr. Streets was a thirty-two-year veteran of the Berkeley County Sheriff's Department (“sheriff's department”). He was indicted on one felony count of embezzlement and one felony count of fraudulent schemes. Mr. Streets was alleged to have embezzled thirteen guns from the sheriff's department and fraudulently sold the guns to a gun dealer called Glockcop LLC. Mr. Streets was tried in April of 2015 and a jury found him not guilty of fraudulent schemes, but was hung on the embezzlement count and a mistrial was declared. The State decided to retry Mr. Streets on the embezzlement count.

Prior to the retrial, on August 4, 2015, the State filed a notice of intent to use Rule 404(b) evidence. See W. Va. R. Evid. 404(b)(2).1 The evidence at issue consisted of certified public records of six judgments against Mr. Streets, with supporting documents, from various lawsuits involving wrongful occupation and defaults on residential rental agreements, a default on a furniture installment agreement, nonpayment of medical bills, wage garnishment and home foreclosure (hereinafter referred to collectively as “the Rule 404(b) evidence”). These documents established debt owed by Mr. Streets in excess of $38,000.2 The State indicated in its notice that the evidence was offered to show motive. “More specifically, these records demonstrate that the Defendant was in deep financial trouble on or about the time of the alleged thefts, and that this financial trouble was his motive to steal guns from the Sherriff's [sic] department and sell them for personal gain.” On August 14, 2015, Mr. Streets responded to the State's notice by filing a motion to restrict the use of Rule 404(b) evidence. The circuit court held a McGinnis3 hearing on August 20, 2015, and determined that the evidence of the various judgments against Mr. Streets was admissible to show motive pursuant to Rule 404(b). Mr. Streets objected to the ruling.

Mr. Streets' retrial on the embezzlement count occurred on August 25, 26 and 27, 2015.4 The State presented evidence from

787 S.E.2d 576

multiple witnesses, as well as Glockcop LLC's business records, including pages from its Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives firearm acquisitions logs, and business records from the sheriff's department showing that guns from the evidence room and from the special response team had been sold for cash at the Glockcop LLC by Mr. Streets. Further, Sheriff Lemaster testified that Mr. Streets was the sole officer in charge of the evidence room of the sheriff's department at the time of the embezzlement charge. Sheriff Lemaster testified that Mr. Streets was also the only person in charge of the program of trading guns for store credit at local gun shops. Sheriff Lemaster stated that excess firearms from the evidence room could be destroyed or there was a procedure by which those firearms could be converted to credit so that service weapons or ammunition could be obtained. The sheriff testified that only store credit could be obtained for the weapons traded under this program, not cash. Despite the store credit only policy, Cliff Vinson, the owner of Glockcop LLC, testified to various cash transactions between his store and Mr. Streets involving the firearms at issue, which came from the evidence room of the sheriff's department and the special response team. Finally, the State introduced the Rule 404(b) evidence described above in the case. This evidence came in during Sgt. Brendan Hall's testimony.5

Mr. Streets, in his defense, called four witnesses. Mr. Streets also testified. He admitted selling some of the guns that had come from the sheriff's department. Mr. Streets claimed that he had sold the guns by mistake. As he explained, his father had been a gun collector and had recently passed away, leaving him numerous firearms. Mr. Streets said that he decided to sell these firearms because he was having financial difficulties. Mr. Streets testified that he had taken some of the guns from his father's collection to the sheriff's department to run background checks on the serial numbers in order to make sure that none of the weapons had been stolen. Mr. Streets stated that he accidently commingled his firearms with those from the sheriff's department and took them to Glockcop LLC for sale.

Significant to the issue now before this Court, Mr. Streets was questioned during both direct and cross-examination about the Rule 404(b) evidence. During Mr. Streets' direct examination, he chose to offer explanations for several of the judgments and the foreclosure on a house he owned. When questioned about the house that they (referring to Mr. Streets and his wife) had lost to foreclosure, Mr. Streets' counsel asked him what had happened. Mr. Streets testified: “We didn't really lose—well we gave up the house.” Mr. Streets further explained that “I had a lot of trouble in the neighborhood. There was a house directly across the street from us that was a drug house and had been raided actually twice by the task force.... [T]here was [sic] a lot of problems going on in my neighborhood. I couldn't take it any more.” Mr. Streets proceeded to testify that they had made arrangements through a realtor to build a house, but then his wife had to leave work and “[d]ue to the problems in the neighborhood we wanted out of there. There was no other way of doing it. Just could not take living there any longer.” He said that then the housing market crashed and that they were unable to sell their house. So, according to Mr. Streets, “[w]e moved and just let the bank have the house back because of the stress of living there just wasn't worth staying there.” As to one of the default judgments against him, Mr. Streets testified that he did not answer because he knew that he owed the money and he did not have the money to pay it. As to another of the judgments that was in favor of David Pittsnogle, Mr. Streets testified, “[t]hat money is owed. For lack of a better term I considered that to be a slumlord. There was [sic] a lot of problems with the house.” Mr. Streets stated that the home “wasn't habitable” so they moved out, but they were behind in rent for four or five months when they moved. Regarding a $26,000 judgment against him, Mr. Streets stated that they signed a two-year lease for $1400 a month on a home because it was the only place that would allow them to have pets. He stated

787 S.E.2d 577

that they tried to negotiate a lesser amount, but “[t]hey would not budge on the two-year lease so we signed it anyway hoping that finances would change and [we would] find some way of getting more money and be able to pay it.”

During cross-examination,6 Mr. Streets confirmed that he just gave up the house that was subject to foreclosure because “[t]here was a drug house directly across the street from where I lived.” When asked if he was having trouble making the house payments, Mr. Streets responded: “No, I don't believe I was having trouble making house payments. I was approved for a loan for a new house while we were still living there.” According to Mr. Streets, he just “decided to walk away from it[,]” and “just quit making payments on it.” Mr. Streets explained that they had placed the house on the market, when the market crashed. When asked why they moved to another house, rather than staying in the house, Mr. Streets stated that “[t]o do it the right way, ... we should have.” Instead, Mr. Streets and his wife rented another home, but then walked away from that home, because they could “[b]arely” make the monthly rental payments. As for the next home, Mr. Streets decided to walk away from that obligation too as he claimed the owner was a slumlord.

As part of the closing argument before the jury, the State, based upon Mr. Street's testimony during trial,...

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