State v. Greer
| Decision Date | 21 November 2014 |
| Docket Number | No. 13-1259,13-1259 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia, Plaintiff Below, Respondent v. Bernard Lee Greer Defendant Below, Petitioner |
Petitioner Bernard Lee Greer, by counsel David E. Goddard, appeals the order of the Circuit Court of Harrison County, entered October 30, 2013, sentencing him to a term of incarceration for two to five years subsequent to his conviction, after a trial by a jury of his peers, of one count of possession with intent to deliver a controlled substance in violation of West Virginia Code § 60A-4-401(a). Respondent State of West Virginia appears by counsel Christopher S. Dodrill.
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 order of the circuit court is appropriate under Rule 21 of the Rules of Appellate Procedure.
Petitioner was indicted on one count of robbery in the first degree, one count of kidnapping, one count of assault during the commission of a felony, and one count of possession with intent to deliver a controlled substance ("Count Four"), all stemming from an incident that began with an altercation with his acquaintance Tiffany Rollins and ended with responding police officers finding him in possession of approximately three grams of illegal "bath salts[.]"1 After a jury trial, he was convicted of Count Four only and sentenced to serve a term of two to five years in the West Virginia State Penitentiary. Petitioner appealed.
On appeal, petitioner asserts four assignments of error relevant to his conviction: (1) that the circuit court erred in allowing the introduction of evidence obtained during an earlier traffic stop in which petitioner was involved pursuant to Rule 404(b) of the West Virginia Rules of Evidence;2 (2) that the circuit court violated petitioner's constitutional right to due process byfailing to remain "neutral and detached" in the trial process; (3) that the circuit court erred in allowing the State to use a property receipt because the petitioner's "admission" inherent in the receipt was "fruit of the poisonous tree" inasmuch as it was the result of an illegal custodial interrogation; and (4) that the circuit court erred when it denied petitioner's pretrial motion to sever Count Four from the remainder of the indictment, forcing petitioner to waive his Fifth Amendment rights.3
Petitioner's first assignment of error concerns the circuit court's admission of evidence pursuant to Rule 404(b) of the West Virginia Rules of Evidence, which petitioner argues was improperly permitted, subsequent to the court's having conducted a McGinnis hearing, on the basis that evidence obtained in the prior incident was seized pursuant to an unlawful custodial interrogation.4 The standard of review of a circuit court's decision regarding the admissibility of Rule 404(b) evidence has been stated as follows:
The standard of review for a trial court's admission of evidence pursuant to Rule 404(b) involves a three-step analysis. First, we review for clear error the trial court's factual determination that there is sufficient evidence to show the other acts occurred. Second, we review de novo whether the trial court correctly found the evidence was admissible for a legitimate purpose. Third, we review for an abuse of discretion the trial court's conclusion that the "other acts" evidence is more probative than prejudicial under Rule 403.
State v. LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996).
Prior to trial, the State provided notice that it intended to introduce evidence obtained during petitioner's prior arrest, only a few weeks prior to trial, when he was found to be in possession of 79 bags of bath salts contained in a locked backpack.5 The court conducted a McGinnis hearing, at which details of the proffered 404(b) evidence were set forth as follows.
Sgt. Jeff Petroski of the Harrison County Sheriff's Department testified that he was dispatched some weeks earlier to do a "welfare check" on a car parked along the road. When he arrived, the driver started to pull away and Sgt. Petroski told him to stop. The officer saw nothing unusual about the vehicle or its tags or registration. As the officer approached, he was able to see inside the vehicle, and he saw a backpack and a kitchen spoon, which he viewed as drug paraphernalia. Petitioner was in the front passenger seat, his brother sat in the driver's seat, and a female "popped up" in the back seat. Sgt. Petroski ordered the female out of the car. He described her having "herky-jerky" movements, bloodshot eyes, and slurred speech. Sgt. Petroski then asked the men to get out of the car. When the driver opened the door, he saw a bag of syringes and a marijuana "bowl[.]" Upon searching the individuals, the officer also found knives, two loaded .45 caliber clips, and a firearm. Deputy William Cunningham appeared as backup. Among the evidence that Deputy Cunningham found were the two locked backpacks, which petitioner advised belonged to him. Upon obtaining a search warrant, Deputy Cunningham discovered 79 unopened bags of a substance. He wrote petitioner a property receipt, and released petitioner pending testing of the substance. Tests concluded that the substance in the packages was, in fact, bath salts, and petitioner was arrested on a later date and charged with possession with intent to deliver.
Petitioner argues that Sgt. Petroski had no reasonable articulable suspicion to stop the vehicle from driving away, thereby creating an illegal search and seizure, and any evidence gleaned during the stop is inadmissible "fruit of the poisonous tree."6 Respondent contends thatthe stop was sufficiently grounded in the driver's pulling away, in an area known for drug activity, when Sgt. Petroski approached, but urges that any error in the admission of the evidence was harmless. When the alleged error involves the infringement of a petitioner's constitutional rights, the burden in a harmless error analysis is on the State to show that the error is harmless beyond a reasonable doubt:
We have stated that the "[f]ailure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt." Syllabus Point 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330 (1975). In accord, Syllabus Point 14, State v. Salmons, 203 W.Va. 561, 509 S.E.2d 842 (1998). "An error in admitting plainly relevant evidence which possibly influenced the jury [or a trial judge] adversely to a litigant cannot . . . be conceived of as harmless." Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). "'Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction.'" State v. Jenkins, 195 W.Va. 620, 629, 466 S.E.2d 471, 480 (1995) (quoting, Syllabus Point 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974)). Moreover, once an error of constitutional dimensions is shown, the burden is upon "the beneficiary of a constitutional error"—usually the State—"to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman, 386 U.S. at 24, 87 S.Ct. 824.
State v. Mechling, 219 W.Va. 366, 371, 633 S.E.2d 311, 316 (2006).
We agree that the error, if any, was harmless beyond a reasonable doubt because a jury could reasonably conclude based on the testimony presented at trial, even in the absence of the proffered 404(b) evidence described above, that petitioner was guilty of the crime of possession with intent to deliver "bath salts[.]" See Syl. Pt. 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979). Trial testimony in this case shows that the events leading to the indictment occurred when police received a 911 call informing them that petitioner had been beating Tiffany Rollins in a parking lot in Clarksburg. At trial, Ms. Rollins testified that she and petitioner sold bath salts together. Ms. Rollins stayed at the home of an acquaintance the night prior to the events relevant to the indictment, after returning from an out-of-town trip with petitioner to retrieve bath salts that they transported in a backpack. The following morning, petitioner appeared at the residence and began beating Ms. Rollins, according to her testimony, then took at least forty dollars from her purse, dragged her to a car, forced her inside, then continued to beat and cut her. Ms. Rollins was pulled from the car by passersby, at which time petitioner got out of the car and walked away. Shortly afterward, petitioner was stopped by an officer and asked to empty his pockets. Petitioner produced six pre-packaged bags, each containing approximately one-half of a gram of bath salts. At trial, petitioner testified that the packages were for his personal use. Inasmuch asthe trial evidence showed that petitioner admitted to the possession of several packages of bath salts—after Ms. Rollins testified that the two had a history of selling bath salts—we find that the evidence taken from petitioner's prior arrest was wholly unnecessary to the jury's finding of guilt. Even if the 404(b) evidence was admitted in error, the error was harmless beyond a reasonable doubt, and we will not set aside the jury verdict on this ground.
In his second assignment of error, petitioner argues that the circuit court demonstrated a lack of neutrality by advising the assisting prosecuting attorney in a bench conference that the State had failed to connect petitioner to the 404(b) evidence, and then...
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