State of West Virginia v. Terry Abbott ( 2016 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
State of West Virginia, June 3, 2016
Plaintiff Below, Respondent RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
vs) No. 15-0235 (Wood County 13-F-145)
Terry Abbott,
Defendant Below, Petitioner
MEMORANDUM DECISION
Petitioner Terry Abbott, by counsel Richard D. Smith, Jr., appeals the order of the Circuit
Court of Wood County, entered on January 14, 2015, resentencing him to a term of incarceration
for four to ten years upon his conviction of operating or attempting to operate a clandestine drug
laboratory, and a consecutive term of incarceration for one to five years upon his conviction of
conspiracy to commit operating or attempting to operate a clandestine drug laboratory.1
Respondent State of West Virginia appears by counsel Shannon Frederick Kiser.
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 tried, together with co-defendant Rick Brock, in December of 2013, in the
Circuit Court of Wood County on the charges specified above, and the details of petitioner’s and
his co-defendant’s activities, trial, and convictions are explained in State v. Brock, 235 W.Va.
394, 774 S.E.2d 60 (2015). In that opinion, we described trial evidence showing that Captain
Rick Woodyard of the Wood County Sheriff’s Department, while wearing plain clothes and
driving an unmarked car in the course of a drug investigation, observed the erratic operation of a
car that was ultimately determined to have been driven by Mr. Brock. Capt. Woodyard did not
stop that vehicle, but instead called for an officer in a marked car to do so. He observed West
Virginia State Police Trooper C.S. Jackson stop the vehicle, but continued on after he saw that
Tpr. Jackson had the situation in hand. Mr. Brock denied Tpr. Jackson’s request to search the
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Petitioner was represented by attorney Robin S. Bonovitch at the time the notice of
appeal and petitioner’s brief were filed. However, after the conclusion of the briefing schedule,
Mr. Smith informed the court that he had replaced Ms. Bonovitch as counsel and filed a motion
for leave to file a supplemental brief. The Court granted that motion.
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vehicle, and Tpr. Jackson requested a canine unit. Shortly thereafter, the canine indicated the
presence of drugs, and police on the scene began a search that ended with the officers concluding
that the car driven by Mr. Brock, in which petitioner was a passenger, contained a clandestine, or
“shake and bake” drug laboratory. A chemist with the West Virginia State Police Forensic
Laboratory confirmed that two items recovered from the vehicle contained methamphetamine.
Petitioner and Mr. Brock were charged as described above. At the joint trial, neither testified on
his own behalf or otherwise presented evidence in his defense. Petitioner and Mr. Brock each
were convicted of operating or attempting to operate a clandestine drug laboratory and
conspiracy to operate or attempt to operate a clandestine drug laboratory. Each defendant
appealed.
Mr. Brock’s appeal proceeded ahead of petitioner’s own, and this Court entered the
Brock opinion on May 22, 2015, addressing Mr. Brock’s five assignments of error.
Subsequently, on July 13, 2015, petitioner filed his initial brief with this Court, asserting the
following seven assignments of error, most of which are nearly identical to those earlier
advanced by Mr. Brock: (1) that his trial counsel’s “performance was deficient under an
objective standard of reasonableness[,] and there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceedings would have been different;” (2) that
“the trial court erred by allowing Agent [Douglas] Sturm [of the Parkersburg Police Department]
to testify regarding the effects of a meth lab as the probative value of his testimony was
substantially outweighed by its prejudicial effect;”2 (3) that “[t]he evidence adduced at trial,
when viewed in the light most favorable to the state, was manifestly inadequate to convince
impartial minds beyond a reasonable doubt that the defendant had knowledge of the presence of
drugs or precursors in the vehicle or that the defendant exercised dominion and control over the
drugs or precursors;”3 (4) that “[t]he trial court erred by denying . . . [p]etitioner’s motion to
dismiss the indictment for a violation of Rule 8 of the [West Virginia] Rules of Criminal
Procedure[, because e]ach count purports to charge two separate offenses, which is improper
under [m]andatory [j]oinder. . . ;”4 (5) that “[t]he trial court erred by failing to give the entirety of
co-defendant and [p]etitioner’s proposed instructions [No. 1 and No. 2] as they were accurate
statements of the law, supported by the evidence or lack thereof adduced at trial and were not
2
Compare this issue to one we addressed in Brock, after Mr. Brock argued that the trial
court erred “in allowing expert testimony concerning the dangers and explosiveness of a
methamphetamine . . . lab as the testimony was irrelevant and its probative value was
substantially outweighed by its prejudicial effect.” Brock at 399, 774 S.E.2d at 65.
3
Compare this issue to one we addressed in Brock, after Mr. Brock argued that the trial
court erred “in determining that there was sufficient evidence to uphold the convictions[.]” Brock
at 398, 774 S.E.2d at 64.
4
Compare this issue to one we addressed in Brock, after Mr. Brock argued that the trial
court erred “in denying his motion to dismiss as both counts one and two in the indictment
attempt to charge the defendant with two crimes in violation of West Virginia Rule of Criminal
Procedure 8[.]” Brock at 398, 774 S.E.2d at 64.
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fully covered by other instructions;”5 (6) that “[t]he trial court erred by overriding defense
counsel’s objection to Officer Woodyard’s testimony that he was working as part of the ‘ACE’
team as this was contrary to the pretrial rulings of the lower court, constituted surprise to
[petitioner] at trial and the probative value of the testimony was substantially outweighed by its
prejudicial effect;” and (7) that the “[t]rial court erred by denying the motion to suppress filed by
the co-defendant . . . where the police lacked probable cause to search the vehicle in the
possession and control of the defendant.”6 Later, after having sought and been granted leave of
the Court, petitioner filed a supplemental brief asserting an eighth assignment of error, in which
he argued that “[t]he circuit court in denying the motion to suppress . . . where the [initial] stop
of the vehicle was unlawful as the police lacked reasonable suspicion to initiate a traffic stop.”
We decline to engage in a protracted analysis of petitioner’s second, third, fourth, fifth7,
or seventh assignments of error inasmuch as we gave each of those issues thorough consideration
in Brock. We are compelled to clarify that our unwillingness to further explore these issues is
intensified by petitioner’s complete lack of attempt to distinguish his situation from Brock.
(Indeed, we doubt he could have done so effectively inasmuch as the two men were tried
together and neither individually presented evidence.) Petitioner did not so much as make a
single citation to Brock in his opening brief. Moreover, when the State filed a responsive brief
charging that this Court had previously resolved the very issues about which he complained,
petitioner did not file an explanatory reply brief. We thus turn our attention to the remaining
three assignments of error that may be novel to the convictions before us.
In his first assignment of error, petitioner argues that his trial counsel was objectively
deficient and that his defense was compromised by counsel’s errors. Those errors, he asserts,
include counsel’s failure to move for dismissal of the indictment on the ground that the stop of
the vehicle was illegal and any evidence seized was “fruit of the poisonous tree,” as well as
counsel’s representation immediately prior to trial that she was prepared to proceed on the “State
v. Abbott and Abbott” case, indicating that she was not in fact ready to proceed. We have held:
5
Compare this issue to one we addressed in Brock, after Mr. Brock argued that the trial
court erred “in failing to give the entirety of . . . [p]etitioner’s proposed instruction numbered
one[.]” Brock at 398, 774 S.E.2d at 64.
6
Compare this issue to one we addressed in Brock, after Mr. Brock argued that the trial
court erred “in denying the [p]etitioner’s motion to suppress[.]” Brock at 398, 774 S.E.2d at 64­
65.
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Petitioner’s assignment of error refers to the first two instructions, and Brock addresses
only the first. There is no reference to an appendix citation to show how petitioner presented the
instructions, the proposed content of his instructions, or how the court addressed his proposals.
Nevertheless, respondent asserts that petitioner’s instructions No. 1. No. 2, and No. 3 “were
given verbatim by the circuit court.” Respondent further asserts that it was only the instruction
proposed by Mr. Brock that was given in part. Petitioner filed no reply brief disagreeing with
these assertions.
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In the West Virginia courts, claims of ineffective assistance of counsel are to be
governed by the two-pronged test established in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984): (1) Counsel’s performance was
deficient under an objective standard of reasonableness; and (2) there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceedings would have been different.
Syl. Pt. 5, State v. Miller, 194 W. Va. 3, 6, 459 S.E.2d 114, 117 (1995). However, we also have
held:
“It is the extremely rare case when this Court will find ineffective assistance of
counsel when such a charge is raised as an assignment of error on a direct appeal.
The prudent defense counsel first develops the record regarding ineffective
assistance of counsel in a habeas corpus proceeding before the lower court, and
may then appeal if such relief is denied. This Court may then have a fully
developed record on this issue upon which to more thoroughly review an
ineffective assistance of counsel claim.” Syl. pt. 10, State v. Triplett, 187 W.Va.
760, 421 S.E.2d 511 (1992).
Syl. Pt. 4, State v. Woods, 194 W.Va. 250, 460 S.E.2d 65 (1995). We find no objective
unreasonableness in counsel not having filed a motion to dismiss the indictment based on a
challenge to the evidence obtained after the stop, particularly because a motion to suppress was
filed to address the issue of the legality of the stop and the seizure. Also, the limited
representation (made without citation to the appendix record on appeal) that petitioner informed
the circuit court that she was prepared to proceed in the “Abbott and Abbott” trial, does not alone
show that counsel was unprepared for the trial of petitioner and Mr. Brock. Petitioner has offered
no reason that we should find this to be the exceptional “rare case” where the prudence of
counsel’s actions is evaluated on direct appeal, and we thus will not further consider petitioner’s
claims of ineffective assistance of counsel at this time.
We turn to petitioner’s sixth assignment of error, wherein he argues that the circuit court
erred in overruling his objection to Officer Woodyard’s testimony that he was working as part of
the “ACE” team. We consider this assertion while remaining mindful that “[a] trial court’s
evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review
under an abuse of discretion standard.” Syl. Pt. 4, State v. Rodoussakis, 204 W.Va. 58, 61, 511
S.E.2d 469, 472 (1998). Petitioner argues that the circuit court’s ruling was inconsistent with the
court’s pretrial rulings; however, the motion in limine to which petitioner appears to refer asked
the circuit court to eliminate any reference to a certain location as a “drug house,” and the trial
court’s ruling on that motion did not prohibit the State from eliciting evidence about Capt.
Woodyard’s police duties.
Moreover, in the brief three-sentence argument that petitioner offers in support of this,
the sixth assignment of error, petitioner fails to include a citation to the appendix record on
appeal. We will not go rummage about in the record hoping to stumble upon offensive testimony
for which petitioner neglected to search. As we often find ourselves reminding litigants, Rule
10(c)(7) of the West Virginia Rules of Appellate Procedure requires that petitioner’s brief
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contain an argument exhibiting clearly the points of fact and law presented. That rule also
requires that such argument “contain appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal.” In an Administrative Order entered on December 10, 2012, Re:
Filings That Do Not Comply With the Rules of Appellate Procedure, Chief Justice Ketchum
specifically noted in paragraph 7 that “[b]riefs with arguments that do not contain a citation to
legal authority to support the argument presented and do not ‘contain appropriate and specific
citations to the record on appeal, including citations that pinpoint when and how the issues in the
assignments of error were presented to the lower tribunal’ as required by rule 10(c)(7)” are not in
compliance with this Court’s rules. We find no error in the circuit court’s ruling.
Finally, we address petitioner’s eighth assignment of error, wherein he argues that the
circuit court erred in denying his motion to suppress evidence on the basis that the stop of the
automobile was illegal. We attach the following standard of review to our evaluation of this
issue:
“On appeal, legal conclusions made with regard to suppression
determinations are reviewed de novo. Factual determinations upon which these
legal conclusions are based are reviewed under the clearly erroneous standard. In
addition, factual findings based, at least in part, on determinations of witness
credibility are accorded great deference.” Syl. Pt. 3, State v. Stuart, 192 W.Va.
428, 452 S.E.2d 886 (1994).
Syl. Pt. 1, State v. Dunbar, 229 W.Va. 293, 294, 728 S.E.2d 539, 540 (2012). Though we
considered the suppression issue in the context of the search in Brock, petitioner accurately
observes that we did not specifically address the issue of whether officers had a reasonable
suspicion to effect the initial stop, a point that Mr. Brock’s counsel conceded during oral
argument before this Court. Brock at 403 n. 8, 774 S.E.2d at 69 n. 8. “Police officers may stop a
vehicle to investigate if they have an articulable reasonable suspicion that the vehicle is subject
to seizure or a person in the vehicle has committed, is committing, or is about to commit a
crime.” Syl. Pt. 1, in part, State v. Stuart, 192 W.Va. 428, 429, 452 S.E.2d 886, 887 (1994).
Petitioner’s argument rests on his assertion that there was no testimony that the car stopped by
the officers was being driven erratically, and further on his accusation—without any citation to
the record—that it was, in fact, Capt. Woodyard who drove dangerously. In parcel of these
arguments, petitioner emphasizes that “[t]he trial court heard no testimony of who drove the
vehicle erratically” and that “no officer ever testified to and the trial court did not hear testimony
regarding who performed the erratic driving of the vehicle.” We first firmly reject the
implication that an officer must be familiar with a driver’s identity to form a reasonable,
articulable suspicion that a person in the vehicle has committed, is committing, or is about to
commit a crime. Next, we note that the only testimony concerning erratic driving offered at the
suppression hearing, was that of Capt. Woodyard, who testified:
. . . As the vehicle approached the 1000 block . . . it went left of center. It also
went left of center on a couple of other occasions between the 1000 block and the
stoplight at E Street, Pike and Camden. . . . It proceeded through the light on to
the E Street Bridge where once again it went across the yellow line. They also
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kept applying their brakes repeatedly. As I would get close, and I was following
from several car-lengths away, they would tap their brakes. . . . As they went
through the viaduct at E Street underneath the train trestle they went right of the
fog line. At that point I was calling for a marked cruiser to intercept the vehicle to
do a traffic stop.
We have explained:
“. . . The Fourth Amendment requires ‘some minimal level of objective
justification’ for making the stop.” [United States v. Sokolow,] 490 U.S. [1] at 7,
109 S.Ct. [1581] at 1585, 104 L.Ed.2d [1] at 10 [(1989)]. (Citations omitted). The
criteria for reasonable suspicion to stop a vehicle are very similar to a street stop
under Terry [v. State of Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)].
Factors such as erratic or evasive driving, the appearance of the vehicle or its
occupants, the area where the erratic or evasive driving takes place, and the
experience of the police officers are significant in determining reasonable
suspicion.
State v. Stuart, 192 W. Va. 428, 433 n. 10, 452 S.E.2d 886, 891 n. 10 (1994). We find Capt.
Woodyard’s testimony describing erratic driving sufficient under these standards to establish his
reasonable, articulable suspicion for the stop. We therefore find no error in the circuit court’s
denial of the motion to suppress.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: June 3, 2016
CONCURRED IN BY:
Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II
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