State v. Smith

• Decision Date: 09 December 1993
• Docket Number: No. 21553,21553
• Citation: 438 S.E.2d 554,190 W.Va. 374
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Johnnie Carlos SMITH, Defendant Below, Appellant.

Page 554

438 S.E.2d 554

190 W.Va. 374

STATE of West Virginia, Plaintiff Below, Appellee, v. Johnnie Carlos SMITH, Defendant Below, Appellant.

No. 21553.

Supreme Court of Appeals of

West Virginia.

Submitted Sept. 21, 1993.

Decided Dec. 9, 1993.

Syllabus by the Court

1. "A furtive gesture on the part of the occupant of a vehicle is ordinarily insufficient to constitute probable cause to search a vehicle if it is not coupled with other reliable causative facts to connect the gesture to the probable presence of contraband or incriminating evidence." Syllabus point 5, State v. Moore, 165 W.Va. 837, 272 S.E.2d 804 (1980).

2. "[S]tatements made by a defendant during a guilty plea proceeding cannot be used ... to impeach the defendant if he testifies at trial." State v. Bennett, 179 W.Va. 464, 370 S.E.2d 120 (1988).

3. "A prosecutor may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw." Syllabus point 7, State v. England, 180 W.Va. 342, 376 S.E.2d 548 (1988).

4. "Protection against unfair prejudice from evidence admitted under Rule 404(b) of the West Virginia Rules of Evidence [1985] is provided by: (1) the requirement of Rule 404(b) that the evidence be offered for a proper purpose; (2) the relevancy requirement of Rule 402--as enforced through Rule 104(b); (3) the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice; and, (4) Rule 105, which provides that the trial court shall, upon request, instruct the jury that the similar acts evidence is to be considered only for the proper purpose for which it was admitted." Syllabus point 8, TXO Production Corp. v. Alliance Resources Corp., 187 W.Va. 457, 419 S.E.2d 870 (1992).

5. "In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, where the state's evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt. The evidence is to be viewed in the light most favorable to the prosecution. To warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injustice has been done." Syllabus point 1, State v. Starkey, 161 W.Va. 517, 244 S.E.2d 219 (1978).

6. "The true test as to whether a juror is qualified to serve on the panel is whether without bias or prejudice he can render a verdict solely on the evidence under the instructions of the court." Syllabus point 1, State v. Wilson, 157 W.Va. 1036, 207 S.E.2d 174 (1974).

Jacquelyn I. Custer, Asst. Atty. Gen., Charleston, for appellee.

G. Ernest Skaggs, Skaggs & Skaggs, Fayetteville, for appellant.

PER CURIAM:

The defendant in this proceeding, Johnnie Carlos Smith, was convicted by a jury on May 24, 1991, of possession of marijuana with intent to deliver. He was later sentenced to from one to five years in the State penitentiary and fined $1,000.00. On appeal, he claims that the trial court erred in failing to suppress evidence seized during what he contends was an illegal and warrantless search. He also claims that the court erred in admitting into evidence a prior inconsistent statement which he made to a probation officer and in allowing the prosecutor to adduce evidence of prior criminal activity on his part. He further argues that the prosecuting attorney prejudiced the jury by making improper comments during closing argument and that the court erred in failing to grant him a mistrial when a juror revealed to the court after the trial was in progress that she remembered that she had heard about the case. Lastly, he claims that the trial court erred in failing to grant a new trial because the verdict was contrary to the evidence. After reviewing the evidence adduced and the questions presented, the Court cannot conclude that the trial court erred in refusing to suppress the evidence seized during the search of the defendant's vehicle. The Court, however, does find reversible error in the admission of the prior inconsistent statement, and because of that error the defendant's conviction is reversed.

On New Year's Eve, December 31, 1989, two West Virginia State Police officers, Trooper First Class Ron C. Jones and Trooper Orville L. Ayers, II, who had previously made several arrests for possession of marijuana, were on patrol in their cruiser in Hinton, West Virginia. During the patrol, at sometime after 8:00 p.m., they observed a silver car legally parked in an area which, because of prior arrests, was known as a location for drug trafficking. The troopers pulled up behind the silver car and parked their cruiser. They then set out on foot patrol.

The window on the driver's side of the silver car was at least halfway down, and as Trooper Ayers approached the silver car, he saw the defendant, who was seated in the driver's seat, drop something into a paper bag which he then placed in a purse. The purse was then handed to a girl who was sitting in the front passenger seat. Trooper First Class Jones also noticed that the defendant had handed something to the individual in the passenger seat, but he did not see what it was. As the troopers approached more closely, they noticed the distinctive odor of marijuana smoke emanating from the open car window. They then directed the occupants of the vehicle to get out. After they were out, Trooper Ayers obtained the purse. It contained two baggies containing 499.5 grams of marijuana. Scales, loose marijuana, and cigarette rolling papers were also discovered, and a quantity of cash was found in an envelope inside the purse. Additionally, a box of sandwich size baggies was recovered from the floor of the vehicle. At this point, the defendant and his girlfriend were placed under arrest. Two other individuals who had been in the rear of the car were allowed to leave.

According to Trooper Ayers, the event which triggered the search was the detection of the odor of burning marijuana. He later testified: "We conducted no search until after I approached the subject and observed the odor of burning marijuana." ¹

Following his arrest, the defendant was indicted for possessing marijuana with intent to deliver and for unlawfully, knowingly, and intentionally possessing marijuana in an amount in excess of fifteen grams.

In preparing for the defense of the defendant, defense counsel filed a pretrial motion to suppress all physical evidence which was seized from the vehicle. A suppression hearing was conducted, and at the suppression hearing Trooper Ayers and Trooper First Class Jones testified as to the circumstances surrounding the defendant's arrest and surrounding the seizure of physical evidence from the vehicle. At the conclusion of that hearing, the trial court denied the motion to suppress.

As development of the case proceeded, the defendant entered into plea discussions and a plea agreement with the prosecuting attorney. Pursuant to the plea arrangement, the defendant was interviewed by a probation officer, Mr. Chiles. During the interview, the defendant admitted that immediately before his arrest he had placed marijuana in the purse of his girlfriend.

After the defendant entered his plea, Bruce Barnett, a friend of the defendant, wrote a letter to the presiding judge indicating that the marijuana which gave rise to the charges against the defendant belonged to him, Barnett, and that he had placed it in the defendant's girlfriend's handbag without her knowledge and without the defendant's knowledge.

Following receipt of this letter, the defendant's plea was set aside.

Nonetheless, the prosecuting attorney proceeded with the prosecution of the defendant.

During the defendant's trial, the State introduced evidence relating to the arrest of the defendant and the seizure of contraband from the silver vehicle which he was occupying. The State also introduced the physical evidence seized in conjunction with the defendant's arrest.

After the State had presented its case, defense counsel called as a witness the defendant's girlfriend. The defendant's girlfriend testified that she had left her purse in the unlocked vehicle while she had gone to purchase some personal items. She claimed that she was not aware that there was marijuana in the purse until Trooper Ayers discovered the brown paper bag containing the two baggies of marijuana.

The defendant's friend and former roommate, Bruce Barnett, also testified as a defense witness. He claimed that he owned the marijuana which was discovered by the police officers. Barnett testified that he had asked the defendant if the defendant could put something in the girlfriend's pocketbook. The defendant told him that his girlfriend had gone to the store but left her purse in the car. Barnett testified that he then hid the marijuana, concealed in a brown popcorn bag, underneath the contents of the girlfriend's purse. He also indicated that he had previously placed the box of baggies in the car and testified that he could have placed the scales in the purse. He denied ownership of the cigarette papers.

The defendant himself also took the stand in his own defense. He testified that he did not know anything about the marijuana and further testified that Barnett had later admitted that he owned the marijuana, the baggies, and the scales.

In an attempt to impeach the defendant, the State asked the defendant if he remembered telling Mr. Chiles, the probation officer with whom the defendant had met in conjunction with the previous plea proceedings, that he had placed the marijuana in the bag. The court allowed this questioning although the court specifically directed the parties to restrain from communicating to the jury the fact...