        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 September 2013 Term
                                                                 FILED
                                                             October 17, 2013
                                                               released at 3:00 p.m.
                                      No. 12-0439              RORY L. PERRY II, CLERK
                                                             SUPREME COURT OF APPEALS
                                                                 OF WEST VIRGINIA




                          STATE OF WEST VIRGINIA,
                           Plaintiff Below, Respondent


                                          V.


                              JEREL ADDISON GARNER,
                               Defendant Below, Petitioner



                  Appeal from the Circuit Court of Cabell County
                      Honorable Alfred E. Ferguson, Judge
                           Criminal Action No. 09-F-47
                         REVERSED AND REMANDED


                               Submitted: October 2, 2013
                                Filed: October 17, 2013


William C. Forbes                                    Patrick Morrisey,
Forbes Law Offices, PLLC                             Attorney General
Charleston, West Virginia                            Julie Warren,
Attorney for the Petitioner                          Assistant Attorney General
                                                     Charleston, West Virginia
                                                     Attorneys for Respondent


Opinion of the Court was delivered PER CURIAM.
                              SYLLABUS BY THE COURT



              1.      “‘The Confrontation Clause contained in the Sixth Amendment to the

United States Constitution provides: “In all criminal prosecutions, the accused shall . . . be

confronted with the witnesses against him.” This clause was made applicable to the states

through the Fourteenth Amendment to the United States Constitution.’ Syllabus point 1,

State v. James Edward S., 184 W. Va. 408, 400 S.E.2d 843 (1990)[, overruled in part on

other grounds by Syl. pt. 7, State v. Mechling 219 W. Va. 366, 633 S.E.2d 311 (2006)].”

Syllabus point 2, State v. Jarrell, 191 W. Va. 1, 442 S.E.2d 223 (1994).



              2.      “‘The Sixth Amendment to the United States Constitution guarantees

an accused the right to confront the witnesses against him. The Sixth Amendment right of

confrontation includes the right of cross-examination.’ Syllabus point 1, State v. Mullens,

179 W. Va. 567, 371 S.E.2d 64 (1988).” Syllabus point 3, State v. Jarrell, 191 W. Va. 1, 442

S.E.2d 223, (1994).



              3.      “‘“Failure 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).’ Syllabus point




                                               i
14, State v. Salmons, 203 W. Va. 561, 509 S.E.2d 842 (1998).” Syllabus point 5, State v.

Flippo, 212 W. Va. 560, 575 S.E.2d 170 (2002).




                                           1
Per Curiam:

               In this appeal, Jerel Addison Garner (hereinafter “Mr. Garner”), challenges his

convictions for Voluntary Manslaughter,1 Wanton Endangerment,2 and Carrying a Concealed

Weapon Without a Permit (second offense).3 He alleges numerous errors;4 however, this

case is resolved on the issue of Mr. Garner’s right to effectively cross-examine a key witness.

Having thoroughly considered the parties’ briefs, relevant portions of the appendix record,

oral argument and relevant law, we find that Mr. Garner’s Sixth Amendment right of

confrontation was denied. Accordingly, we reverse this case and remand for a new trial.5




               1
                See W. Va. Code § 61-2-4 (1994) (Repl. Vol. 2010).
               2
                See W. Va. Code § 61-7-12 (1994) (Repl. Vol. 2010).
               3
                See W. Va. Code § 61-7-3 (1989) (Repl. Vol. 2010).
               4
               In addition to claiming that the trial court denied him the right to effective
cross-examination, Mr. Garner has alleged that the trial court further erred by: (1) failing to
grant him credit for time served; (2) failing to strike a juror for cause; (3) failing to grant his
motions for acquittal and for a new trial based upon insufficiency of the evidence; (4)
refusing to provide him proper materials and/or time to prepare for jury selection; (5)
refusing to give certain jury instructions he proposed; (6) denying him the right to use a
witness’ pre-trial statement as impeachment evidence; and (7) allowing improper hearsay
evidence. Mr. Garner also contends that the State erred by: (1) failing to disclose
exculpatory evidence; and (2) making improper comments during closing argument. Finally,
Mr. Garner submits that the cumulative error doctrine requires reversal of his conviction.
Because we find reversible error based upon the denial of Mr. Garner’s right to effectively
cross-examine a key witness, we do not reach his remaining assigned errors.
               5
               While this case was pending before the Court, Patrick Morrisey was sworn
into office as Attorney General for the State of West Virginia, replacing former Attorney
General Darrell V. McGraw, Jr.

                                                2
                                              I.

                      FACTUAL AND PROCEDURAL HISTORY

               The events that lead to Mr. Garner’s convictions occurred in the early morning

hours of July 5, 2008, outside a nightclub in Huntington, West Virginia. Mr. Garner was in

his car outside of the nightclub when it closed.6



               As patrons were leaving the nightclub, Curtis Keyes pounded on the side of

Mr. Garner’s car and shouted at him. Thereafter, gun shots were exchanged between Mr.

Garner and one or more others at the scene. When the conflict was over, Donte Newsome

had been shot and killed, Curtis Keyes had been shot once, and Mr. Garner had sustained

three bullet wounds. Ivan Clark, a friend of Donte Newsome, had also fired shots during the

altercation.



               As a result of the above-described events, Mr. Garner was charged with First-

Degree Murder, Attempted First-Degree Murder, Voluntary Manslaughter, Wanton

Endangerment, and Carrying a Concealed Weapon Without a Permit.



               At trial, the State contended that Mr. Garner had been the aggressor in this


               6
               Mr. Gamer apparently had earlier engaged in a verbal confrontation with
several people inside the nightclub after another patron had allegedly made a pass at Mr.
Garner’s girlfriend. Following the confrontation, Mr. Garner and his girlfriend departed, but
then subsequently returned and parked outside of the nightclub.

                                              3
dispute. The State presented evidence that, after Curtis Keyes pounded on the side of Mr.

Garner’s car, Mr. Garner exited the car, began shooting, and ultimately killed an unarmed

Donte Newsome and wounded an unarmed Curtis Keyes. After Mr. Garner began shooting,

according to the State’s evidence, Ivan Clark retrieved a gun from the trunk of his car to

defend himself and his friends. Ivan Clark shot at Mr. Garner wounding him three times.



              Mr. Garner’s defense theory was that he was attacked. He asserted that Curtis

Keyes was, in fact, armed with a gun. Mr. Garner, through his counsel,7 attempted to

establish that he acted in self-defense and sustained the three gunshot wounds while being

shot at by multiple individuals.



              Following a six day jury trial, Mr. Garner was convicted of Voluntary

Manslaughter in violation of W. Va. Code § 61-2-4 (1994) (Repl. Vol. 2010), Wanton

Endangerment in violation of W. Va. Code § 61-7-12 (1994) (Repl. Vol. 2010), and

Carrying a Concealed Weapon Without a Permit in violation of W. Va. Code § 61-7-3

(1989) (Repl. Vol. 2010).8 The circuit court imposed consecutive sentences of fifteen years

for Voluntary Manslaughter, five years for Wanton Endangerment, and one to five years for

Second Offense Carrying a Concealed Weapon Without a Permit. The Circuit Court of


              7
               Mr. Garner exercised his right to remain silent during his trial.
              8
              Mr. Garner was acquitted of the charges of First-Degree Murder and
Attempted First-Degree Murder.

                                              4
Cabell County subsequently entered an order on February 22, 2012, re-sentencing Mr.

Garner for purposes of appeal.9 This appeal followed.



                                              II.

                               STANDARD OF REVIEW

              The dispositive issue raised in this appeal alleges the circuit court’s improper

interference with Mr. Garner’s cross-examination of a key witness.

                     “‘The extent of the cross-examination of a witness is a
              matter within the sound discretion of the trial court; and in the
              exercise of such discretion, in excluding or permitting questions
              on cross-examination, its action is not reviewable except in the
              case of manifest abuse or injustice.’ Syl. pt. 4, State v. Carduff,
              142 W. Va. 18, 93 S.E.2d 502 (1956).” Syllabus, State v. Wood,
              167 W. Va. 700, 280 S.E.2d 309 (1981).

Syl. pt. 12, State v. McIntosh, 207 W. Va. 561, 534 S.E.2d 757 (2000). With due regard for

this standard for our review, we proceed to our discussion of this issue.



                                             III.

                                       DISCUSSION

              This case turns on the issue of defense counsel’s cross-examination of Ivan

Clark (hereinafter “Clark”), who was a key witness in the trial. Defense counsel was

questioning Clark about specifics of the gun fight in an apparent attempt to undermine the


              9
                The circuit judge who issued the re-sentencing order for purposes of this
appeal is not the judge who presided over Mr. Garner’s trial.

                                              5
State’s theory that Mr. Garner had fired the first shots. During the course of defense

counsel’s cross-examination, the circuit court interrupted and directed counsel to meet with

prosecutors and the witness to prepare questions for the continuation of defense counsel’s

cross-examination of Clark. Following is the relevant excerpt from the cross-examination

of Clark, a portion of which occurred in the presence of the jury:

                     THE COURT: I am going to take a five, ten minute
              recess and ask you to prepare questions for your witness.

                     MR. WILLIAM FORBES: Your Honor, I –

                     THE COURT: No, just a moment. Have them prepared.
              Have him address those questions to you so that you will be
              expecting those answers and get them straight.

                     MR. WILLIAM FORBES:             Your Honor, I am
              cross-examining the witness. I don’t have any idea what he is
              going to say.

                     THE COURT: Well, I am going to help you. We are
              going to take a ten minute recess, and you – and counsel for the
              State can be present – and get them straight. This is a ten
              minute recess.

                     MR. WILLIAM FORBES: Thank you, Your Honor.

                           WHEREUPON the jury retired into the jury
              room, and the following proceedings were had out of the
              presence and hearing of the jury:

                    THE COURT: One of you will go with Mr. Forbes.
              Give him use of one of the rooms and -- the adjacent rooms.
              Quit messing around. You have got ten minutes.

                     MR. WILLIAM FORBES: Your Honor, this is the way
              I cross-examine people. I ain’t going to be able to change. I
              have been doing it for thirty years. This is the first time I have

                                              6
had this problem.

       The Court: Well, maybe you better sharpen it up.

      MR. WILLIAM FORBES: I would like to make a
motion that I think my client’s rights for a fair trial are being
denied by interference of my ability to cross-examine this
witness, and I want that on the record.

       THE COURT: It may be on the record.

     MR. CHILES: May we go back in Judge Ferguson’s
chambers?

       THE COURT: Yes, wherever, just get it done.

             WHEREUPON at 2:36 p.m. a recess was had
until 2:45 p.m., after which the trial continued, there being
present the same parties as heretofore noted, including the
Defendant and his counsel.

       THE COURT: Bring the jury out.

             WHEREUPON the jury returned into the
courtroom and the proceedings were resumed within the
presence and hearing of the jury, as follows:

       ....

       MR. WILLIAM FORBES: If I may in all due respect to
the Court in the humblest manner possible, when we broke I
ended up with two Prosecutors, their witness, and myself and I
believe the direction was to go over his future testimony with
him.

       THE COURT: I recall the directions of the Court.

       MR. WILLIAM FORBES: All right.

      THE COURT: And I remember them well, and you may
put your objections on the record later. Proceed.

                               7
              Mr. Garner argues that the circuit court’s actions were highly improper, highly

prejudicial, and an unconstitutional abuse of discretion that restricted Mr. Garner’s

fundamental right to cross-examination. The State responds that the circuit court was simply

frustrated with defense counsel’s somewhat rambling cross-examination of Clark. Mr.

Garner’s argument implicates the Confrontation Clause:

                     “The Confrontation Clause contained in the Sixth
              Amendment to the United States Constitution provides: ‘In all
              criminal prosecutions, the accused shall . . . be confronted with
              the witnesses against him.’ This clause was made applicable to
              the states through the Fourteenth Amendment to the United
              States Constitution.” Syllabus point 1, State v. James Edward
              S., 184 W. Va. 408, 400 S.E.2d 843 (1990)[, overruled in part
              on other grounds by Syl. pt. 7, State v. Mechling 219 W. Va.
              366, 633 S.E.2d 311 (2006)].


Syl. pt. 2, State v. Jarrell, 191 W. Va. 1, 442 S.E.2d 223 (1994). This Court has recognized

that “‘[t]he Sixth Amendment to the United States Constitution guarantees an accused the

right to confront the witnesses against him. The Sixth Amendment right of confrontation

includes the right of cross-examination.’ Syllabus point 1, State v. Mullens, 179 W. Va. 567,

371 S.E.2d 64 (1988).” Syl. pt. 3, State v. Jarrell, 191 W. Va. 1, 442 S.E.2d 223. See also

Syl. pt. 2, State v. Bohon, 211 W. Va. 277, 565 S.E.2d 399 (2002) (“‘The fundamental right

to confront one’s accusers, which contemplates the opportunity of meaningful

cross-examination, is guaranteed by Article III, Section 14 of the West Virginia

Constitution.’ Syllabus Point 1, State ex rel. Grob v. Blair, 158 W. Va. 647, 214 S.E.2d 330

(1975).”).


                                             8
              In this case, the circuit court’s bizarre demand, that defense counsel meet

privately with two prosecutors and the State’s witness in order to prepare the witness for

questions that would be asked when cross-examination resumed, deprived Mr. Garner of his

right to effectively cross-examine a key witness for the State. Cross-examination is an

adversarial undertaking. An important part of an adversarial cross-examination is the

demeanor of the witness. An uncooperative witness may be viewed by the jury as less than

honest. Similarly, a spontaneous reaction by the witness to an unexpected question could be

quite revealing as to the veracity of the witness’ answer. See California v. Green, 399 U.S.

149, 158, 90 S. Ct. 1930, 1935, 26 L. Ed. 2d 489 (1970) (commenting that

“[c]onfrontation: . . . permits the jury that is to decide the defendant’s fate to observe the

demeanor of the witness in making his statement, thus aiding the jury in assessing his

credibility.”]. Indeed, this Court recently observed that cross-examination is “the greatest

legal engine ever invented for the discovery of truth[.]” Multiplex, Inc. v. Clay, No. 12-0418,

___ W. Va. ___, ___, ___ S.E.2d ___, ___, slip op. at 20 (October __, 2013) (quoting

California v. Green, 399 U.S. at 158, 90 S. Ct. at 1935, 26 L. Ed. 2d 489) (internal quotations

and additional citation omitted).



              It is well established 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).”
              Syllabus point 14, State v. Salmons, 203 W. Va. 561, 509 S.E.2d

                                                9
              842 (1998).

Syl. pt. 5, State v. Flippo, 212 W. Va. 560, 575 S.E.2d 170 (2002). By requiring defense

counsel to prepare Clark in advance for the continuation of cross examination, the circuit

court eliminated the purpose of cross-examination and rendered it utterly ineffective. This

conduct by the circuit court, without question, deprived Mr. Garner of his constitutional right

to an effective cross-examination of a key witness. Accordingly, Mr. Garner’s convictions

must be reversed and this case remanded for a new trial.



                                             IV.

                                      CONCLUSION

              Based upon the foregoing analysis, we reverse this case and remanded for a

new trial consistent with this opinion.



                                                                    Reversed and Remanded.




                                              10
