State v. Dillon

• Decision Date: 20 July 1994
• Docket Number: No. 21807,21807
• Citation: State v. Dillon, 191 W.Va. 648, 447 S.E.2d 583 (W. Va. 1994)
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff, Below, Appellee, v. Ronald DILLON, Defendant Below, Appellant.

Page 583

447 S.E.2d 583

191 W.Va. 648

STATE of West Virginia, Plaintiff, Below, Appellee, v. Ronald DILLON, Defendant Below, Appellant.

No. 21807.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1994.

Decided July 20, 1994.

[191 W.Va. 651] Syllabus by the Court

1. Proof of consent for purposes of electronic intercept set forth in West Virginia Code §§ 62-1D-3 (1992) and 62-1D-6 (1992) need not be proven solely by the consenting individual's testimony, but can be proven through other evidence, such as the testimony of the person to whom the consent was given, that the consenting individual actually consented to the electronic intercept.

2. "Generally, out-of-court statements made by someone other than the declarant while testifying are not admissible unless: 1) the statement is not being offered for the truth of the matter asserted, but for some other purpose such as motive, intent, state-of-mind, identification or reasonableness of the party's action; 2) the statement is not hearsay under the rules; or 3) the statement is hearsay but falls within an exception provided for in the rules." Syl. Pt. 1, State v. Maynard, 183 W.Va. 1, 393 S.E.2d 221 (1990).

3. " 'The language of Rule 804(b)(5) of the West Virginia Rules of Evidence and its counterpart in Rule 803(24) requires that five general factors must be met in order for hearsay evidence to be admissible under the rules. First and most important is the trustworthiness of the statement, which must be equivalent to the trustworthiness underlying the specific exceptions to the hearsay rule. Second, the statement must be offered to prove a material fact. Third, the statement must be shown to be more probative on the issue for which it is offered than any other evidence the proponent can reasonably procure. Fourth, the statement must comport with the general purpose of the rules of evidence and the interest of justice. Fifth, adequate notice of the statement must be afforded the other party to provide that party a fair opportunity to meet the evidence.' Syl. Pt. 5, State v. Smith, W.Va. , 358 S.E.2d 188 (1987)." Syl. Pt. 1, State v. Bailey, 179 W.Va. 1, 365 S.E.2d 46 (1987).

4. "The two central requirements for admission of extrajudicial testimony under the Confrontation Clause contained in the Sixth Amendment to the United States Constitution are: (1) demonstrating the unavailability of the witness to testify; and (2) proving the reliability of the witness's out-of-court statement." Syl. Pt. 2, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

5. "In order to satisfy its burden of showing that the witness is unavailable, the State must prove that it has made a good-faith effort to obtain the witness's attendance at trial. This showing necessarily requires substantial diligence." Syl. Pt. 3, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

6. "Under the requirements of the Confrontation Clause contained in the Sixth Amendment to the United States Constitution, evidence offered under the residual hearsay exceptions contained in Rule 803(24) and Rule 804(b)(5) of the West Virginia Rules of Evidence is presumptively unreliable because it does not fall within any firmly rooted hearsay exception, and, therefore, such evidence is not admissible. If, however, the State can make a specific showing of particularized guarantees of trustworthiness, the statements may be admissible. In this regard, corroborating evidence may not be considered, and it must be found that the declarant's truthfulness is so clear that cross-examination would be of marginal utility." Syl. Pt. 6, State v. James Edward S., 184 W.Va. 408, 400 S.E.2d 843 (1990).

Michele Rusen, Pros. Atty. of Wood County, Parkersburg, for appellee.

Joseph W. McFarland, Jr., Hague & McFarland, Parkersburg, for appellant.

WORKMAN, Justice:

This case is before the Court upon the appeal of Ronald Dillon ("Appellant") from the November 9, 1992, final order of the Circuit Court of Wood County, sentencing the Appellant to two consecutive one to five year terms in the state penitentiary, based upon his September 30, 1992, jury conviction for two counts of delivery of a controlled substance (marijuana). The Appellant alleges the following assignments of error: 1) the trial court erred in failing to grant the Appellant's motion for a new trial; 2) the investigation leading to the Appellant's arrest was so outrageous that it violated the fundamental concept of due process and fairness; 3) the evidence was insufficient to support the jury verdict; 4) the Appellant was denied an opportunity to call witnesses; and 5) the Appellant was denied a fair and impartial trial. Based upon a review of the parties' briefs and arguments, the record, and all other matters submitted before this Court, we find that no error was committed by the circuit court and accordingly, we affirm the Appellant's convictions.

I. FACTS

The Appellant's conviction was based upon two separate drug transactions which occurred on January 8 and January 11, 1991, respectively, and which were electronically recorded. ¹ At the time these transactions occurred, the Appellant was a cab driver for C & H Taxi ("C & H") in Parkersburg, West Virginia. C & H was under investigation by the Parkersburg Narcotics Task Force ("Task Force") ² because of an anonymous tip that the Task Force received in January 1991, indicating that drivers for C & H were selling illegal drugs from their cabs. Task Force Officer Donald Dougherty testified that in order to investigate the anonymous tip, the Task Force sought undercover individuals to help expose the illegal activities. One such individual used by the Task Force was Sharon Godbey, who had been arrested for prostitution in November 1990 by the Parkersburg Police Department. ³ Officer Dougherty stated that during Ms. Godbey's initial interview with the Task Force, she identified the Appellant as a low-level drug dealer.

On January 8, 1991, Ms. Godbey informed Officer Dougherty that she had been in contact with the Appellant and that he had agreed to help her obtain marijuana. Officer Dougherty testified that Ms. Godbey also stated that she needed $320 for the deal; $260 for one ounce of marijuana and $40 for the Appellant brokering the deal. ⁴ According to Officer Dougherty, Ms. Godbey consented to wear an electronic surveillance device, commonly referred to as a body wire, to record the transaction. Officer Dougherty also stated that before fitting Ms. Godbey with the body wire, she was searched for drugs. After Ms. Godbey put on the harness containing the wire, Task Force agents gave her $320 and took Ms. Godbey to an area near Seventh Street in Parkersburg to make the buy.

Later that same night at 10:11 p.m., Officer Dougherty recorded a conversation between Ms. Godbey and the Appellant which occurred while Ms. Godbey and the Appellant were in the Appellant's cab. During this conversation, the Appellant confirmed the terms of the drug deal exactly as Ms. Godbey had previously related to the Task Force. Officer Dougherty testified that after exiting the Appellant's cab, Ms. Godbey met with him, as well as Task Force Officer E.G. Board, and told them that the Appellant left to retrieve the marijuana and he would meet with her later that night to make the delivery. Meanwhile, surveillance units followed the Appellant to Crestview Manor, an apartment complex on Parkersburg's south side. Officer Dougherty testified that at approximately 10:45 p.m., the Appellant returned to the Seventh Street location. At 10:50 p.m., Officer Dougherty recorded another conversation between Ms. Godbey and the Appellant concerning the drug transaction, but no drugs were exchanged at this time. Officer Dougherty stated that after this conversation ended, Ms. Godbey exited the cab and the Task Force surveillance team watched the Appellant drive away but, fearing discovery, did not follow him.

Officer Dougherty next observed the Appellant at 12:45 a.m., parking his cab in front of a bar on Mary's Street in Parkersburg. At this time, both Officer Dougherty and Task Force Officer Bruce Schuck testified that they saw Ms. Godbey walk over to the Appellant's car and observed the Appellant pass some item to Ms. Godbey out of the window of his cab. ⁵ At 12:48 a.m., Ms. Godbey met with Officer Dougherty and gave him a plastic bag containing a green leafy substance, later identified by Officer Terry Montgomery of the Department of Public Safety forensics lab ("forensics lab") as marijuana.

The next drug transaction occurred on January 11, 1991. Officer Dougherty testified that Ms. Godbey came to the Task Force office with another prospective drug buy involving the Appellant. She told Officer Dougherty, as well as other agents present, that she had been in contact with the Appellant, and he had agreed to get more marijuana for her. Officer Dougherty told Ms. Godbey to call C & H and ask the Appellant to call her back at a number connected to the Task Force office. The Appellant called Ms. Godbey at that number at 5:40 p.m., and the two engaged in a conversation which was recorded. During the telephone conversation, the Appellant agreed to obtain another ounce of marijuana for $330; $280 for the drugs and $50 for the Appellant for brokering the deal. The Appellant asked for the money up front, agreeing to meet Ms. Godbey on Seventh Street that evening to get the money. Officer Dougherty testified that before the arranged meeting, he wired Ms. Godbey, searched her for drugs, gave her money for the buy and took her to Seventh Street.

On the same day, Officer Dougherty stated that since the Task Force had failed to see any sign of the Appellant by approximately 8:45 p.m., they directed Ms. Godbey to call the C & H dispatcher and request that the Appellant meet her at the Seventh Street location. At 8:55 p.m., Officers Dougherty and Schuck both testified that they saw the Appellant and another person arrive...