State v. Garner, No. 17-0100

• Court: Supreme Court of West Virginia
• Writing for the Court: Chief Justice Margaret L. Workman Justice Robin Jean Davis Justice Menis E. Ketchum Justice Allen H. Loughry II Justice Elizabeth D. Walker
• Docket Number: No. 17-0100
• Parties: State of West Virginia, Plaintiff Below, Respondent v. Allen R. Garner Jr., Defendant Below, Petitioner
• Decision Date: 09 April 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Allen R. Garner Jr., Defendant Below, Petitioner

No. 17-0100

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

April 9, 2018

(Webster County 16-F-8)

MEMORANDUM DECISION

Petitioner Allen R. Garner Jr., by counsel Timothy V. Gentilozzi, appeals the Circuit Court of Webster County's January 3, 2017, order denying his post-trial motions for judgment of acquittal and a new trial and sentencing him following his convictions for operating or attempting to operate a clandestine drug laboratory and conspiracy. Respondent State of West Virginia, by counsel Mary M. Downey, filed a response. On appeal, petitioner contends that there was insufficient evidence to sustain his convictions, that the circuit court erred in admitting evidence of a "scuffle" between him and an officer at the scene, that the State improperly introduced a statement made by him without disclosing the statement, and that the circuit court erred in denying his motion to sever.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

On January 12, 2016, petitioner was indicted on one count of operating or attempting to operate a clandestine drug laboratory and one count of conspiracy. The indictment also charged Virginia Lee Davis, Billy W. Green, and Rodney R. Carpenter with these same crimes.¹ Mr. Green, who is Ms. Davis's son, entered into a plea agreement with the State prior to trial. Also prior to trial, petitioner moved to sever his trial from his codefendants' trial. Finding that petitioner failed to demonstrate any prejudice by a unitary trial, the circuit court denied this motion. The charges against petitioner, Ms. Davis, and Mr. Carpenter proceeded to a jury trial on September 14, 2016.

The evidence at trial showed that, on August 6, 2015, Deputies Vandevender and Cogar of the Webster County Sheriff's Department were dispatched to Ms. Davis's home following a

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report that Mr. Carpenter was there causing a disturbance. As Deputy Vandevender was walking to Ms. Davis's front door, he noted a strong chemical odor consistent with the operation of a methamphetamine laboratory, specifically, that of Coleman fuel, and he saw a bottle being thrown "off the back porch, and [it] flew across and hit the outbuilding [beside the house]." Deputy Vandevender observed liquid coming out of the bottle, and, once he got closer to it, noticed a white, granular substance in it. At this point, additional law enforcement was called to the scene, including Trooper Baier and Trooper Hebb of the West Virginia State Police. Trooper Baier obtained consent from Ms. Davis to search her property.

During the search of Ms. Davis's home and property, the officers obtained and photographed additional evidence. The photographs, which were shown to the jury, depicted a partially-burned Zephrin-D pack; lithium battery pack; a bottle cut in half with a still-wet filter in it; a bag with liquid in it; tin foil, salt, and coffee filters on the kitchen countertop; pieces of ripped tin foil in a kitchen drawer; Liquid Fire; a metal "snort straw," which had been concealed over a doorway; a sweatshirt found in Mr. Green's room with a coffee filter in the front pocket; a gun rack from Mr. Green's room containing drug paraphernalia; a container from Ms. Davis's room containing lithium batteries; tubing from Ms. Davis's bedroom; Coleman fuel; and a filter commonly used in smoking devices. Deputy Vandevender testified that the items depicted in the photographs were commonly used for manufacturing, smoking, or snorting methamphetamine.

Deputy Vandevender also testified that two individuals seen at the scene were not arrested "[b]ecause we saw them walking through the yard towards [Ms. Davis's] residence and it was their statement and the statement of all the [d]efendants that they had just arrived there. They hadn't been there any time." Petitioner's counsel objected on the ground that this testimony suggested that petitioner gave a statement. The circuit court overruled this objection. During petitioner's counsel's cross-examination of Deputy Vandevender, counsel returned to the issue of these two individuals:

Q: Well, what is your testimony of why you let them go?

A: That we saw them walking to the house. They advised that they'd just got there. All the [d]efendants, at some point, said that they had nothing to do there, they had just arrived.

[Petitioner's counsel]: Judge, I'm going to object again.

THE COURT: Objection's overruled. You asked the question.

Petitioner's counsel continued:

Q: As far as my client, he never told you anything about [these two individuals], correct?

A: Yes, he did. There was no official statement taken from him, but he told us -

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[Petitioner's counsel]: Objection. I'm going to object to the -

THE COURT: The objection's overruled. You[r] exceptions are noted.

Trooper Baier testified regarding his involvement in the investigation. Upon arriving to the scene, Deputy Vandevender informed him of the steps taken so far in the investigation and that "he had some type of a physical altercation with one of the - Bam, Allen Garner." Petitioner's counsel objected, but the circuit court overruled the objection and Trooper Baier continued with his testimony concerning the investigation at Ms. Davis's home.

Rebecca Harrison, a forensic analyst in the drug identification section of the West Virginia State Police Forensic Laboratory, testified that the evidence obtained, based upon its condition, suggested that the methamphetamine-making process was "toward the end." Trooper E.E. Bostic, who is certified in sampling and testing methamphetamine labs, also testified that the condition of the evidence obtained suggested that the methamphetamine-making process was nearly complete.

Mr. Green testified at trial for the defense. Mr. Green claimed responsibility for the methamphetamine operation and attempted to exonerate his codefendants. Mr. Green testified that he was operating the methamphetamine laboratory outside, behind the house, alone when petitioner and another codefendant arrived at Ms. Davis's house. Mr. Green testified that petitioner was not near him while he was making methamphetamine.

At the conclusion of the two-day trial, the jury found petitioner and his codefendants guilty of operating or attempting to operate a clandestine drug laboratory and conspiracy. On September 27, 2016, petitioner moved for judgment of acquittal arguing that there was insufficient evidence to convict him. On this same date, petitioner also moved for a new trial on the grounds that evidence of his altercation with an officer at the scene was improperly admitted, the State violated discovery rules in failing to provide his statement to defense counsel, and his trial should have been severed from his codefendants' trials.

On November 7, 2016, the parties appeared for a hearing on post-trial motions and sentencing. Upon finding that sufficient evidence was presented to convict petitioner, the circuit court denied...