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State v. Goard

Supreme Court of West Virginia

June 15, 2018

State of West Virginia, Plaintiff Below, Respondent
v.
Jordan Goard, Defendant Below, Petitioner

          Fayette County 17-F-17

          MEMORANDUM DECISION

         Petitioner Jordan Goard, by counsel Joseph M. Mosko, appeals the Circuit Court of Fayette County's July 31, 2017, order denying his motion for a new trial. Respondent State of West Virginia, by counsel Gordon L. Mowen, II, filed a response. Petitioner filed a supplemental appendix and reply. On appeal, petitioner contends that the circuit court erred in admitting surveillance footage without a sufficient foundation having been laid, disallowing cross-examination of a certain witness regarding overheard statements, and overruling an objection to an inflammatory remark during the State's closing argument.

         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.

         Petitioner was indicted in January of 2017 for one count of conspiracy to commit a felony, one count of first-degree robbery, and one count of grand larceny.[1] These charges arose from a controlled drug buy initiated by a confidential informant from petitioner at Plateau Oaks Apartments ("Plateau Oaks").

         At petitioner's trial, which began on April 20, 2017, Mason Hines, a crime scene investigator, fingerprint examiner, and mobile device analyst with the City of Oak Hill Police Department, testified that Plateau Oaks maintains surveillance cameras, and he has accessed the footage captured by these cameras on multiple prior occasions. In obtaining surveillance footage from Plateau Oaks in the course of the investigation following the controlled drug buy, Mr. Hines detailed that he

pulled up the video, [searched] for the time and witnessed - saw on the video an event that Sergeant Young requested that I make a copy of. You put a thumb drive into the DVR, set your parameters, - when you want it to start, when you want it to stop, - and you make a copy of that part of the video onto the thumb drive.

         Mr. Hines stated that he did not tamper with or alter the video in any way, and that it was in the same condition as when he retrieved it from Plateau Oaks the day following the controlled drug buy. Petitioner objected to the admission of the video on the ground that "Mr. Hines went and got a copy of this video footage, but there's no one from the apartment complex that regularly maintains or manages that footage." The circuit court overruled the objection and admitted the footage.

         Bryanna Cummings, the confidential informant who purchased drugs from petitioner, also testified at his trial. She testified that the police provided her with money to purchase and a purse with a camera in it to record the transaction. After purchasing the drugs at Plateau Oaks, Ms. Cummings began walking away through the parking lot, but petitioner followed her, intent on taking the purse. Ms. Cummings tried to get away from petitioner, but he picked her up, carried her closer to the apartments, and "slammed [her] down on the curb and then tried to jerk the purse off." Petitioner's codefendant, Robert Lee, walked outside the apartment complex and asked petitioner what was going on.[2] Ms. Cummings testified that petitioner informed Mr. Lee, "She's wearing a wire. She has a wire." Ms. Cummings stated that Mr. Lee then pointed a handgun at her and instructed her to give petitioner the purse or he would shoot her. Petitioner struck the back of Ms. Cummings's head, and Ms. Cummings then "gave up fighting" with petitioner as he jerked the purse loose from her body.

         The State moved to publish the surveillance video, which captured the altercation, during Ms. Cummings's testimony. Petitioner again objected because the State had not produced anyone who testified that the "videos are kept in the regular course of business, and I believe the State would be required to establish a foundation." The State reminded the circuit court that the video had already been admitted, thus arguing that the objection was moot. The circuit court found that the video was demonstrative and that Mr. Hines "testified that he obtained it from Plateau Oaks where this supposedly occurred and it hadn't been altered in any respect." It then overruled the objection, again admitted the video, and granted the State's motion to publish it to the jury.

         Shante Maddox testified at trial on behalf of Mr. Lee. Ms. Maddox identified petitioner as the individual who fought with Ms. Cummings outside of the apartment complex. During the course of her testimony, she also identified Ms. Cummings by her first name. Accordingly, Ms. Maddox was asked whether she knew Ms. Cummings. Ms. Maddox responded, "No. I just heard somebody else out there say her name." Ms. Maddox clarified that she heard someone outside the courtroom "speaking on her about his case and - ." The parties approached the bench at this point and indicated a "need to put something on the record for it." During the discussion about what Ms. Maddox overheard, however, the court reporter's equipment malfunctioned and the proceedings were not recorded. Petitioner's counsel represents that Ms. Maddox said that she overheard another woman discussing Ms. Cummings's "reputation for engaging in various and sundry drug[-]related activities." Counsel further represents that he requested to cross-examine Ms. Maddox before the jury about what she overheard, but the circuit court denied the request.

         At the close of petitioner's two-day trial, the jury found him guilty of conspiracy and first-degree robbery. On June 16, 2017, the parties appeared for sentencing, and the circuit court sentenced petitioner to an indeterminate term of one year to five years of incarceration for his conspiracy conviction and a determinate term of sixty years of incarceration for his first-degree robbery conviction. Petitioner moved for a new trial on May 1, 2017, which the circuit court denied by order entered on July 31, 2017. It is from this order that petitioner appeals.

         We apply the following standard of review to a circuit court's denial of a motion for a new trial:

In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 1, State v. Jenner, 236 W.Va. 406, 780 S.E.2d 762 (2015) (citation omitted).

         Petitioner raises three assignments of error on appeal. First, petitioner argues that the circuit court erred in admitting the surveillance footage from Plateau Oaks without a sufficient foundation. Petitioner notes that Mr. Hines was not an employee of Plateau Oaks and possessed no knowledge of the apartment complex's surveillance system or of surveillance systems generally. Petitioner also highlights that Mr. Hines did not testify to the accuracy, completeness, or reliability of the surveillance footage. Petitioner argues that, under this Court's decision in State v. Boyd, 238 W.Va. 420, 796 S.E.2d 207 (2017), additional testimony was necessary to authenticate the video footage. Petitioner, therefore, contends that the circuit court abused its discretion by not requiring the State to "put forth a more thorough showing of the absolute authenticity and completeness of the surveillance footage."

         Rule 901(a) of the West Virginia Rules of Evidence provides that "[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." This standard of admissibility "is rather slight, i.e., is the evidence sufficient 'to support a finding' that the object is authentic." Boyd, 238 W.Va. at 443, 796 S.E.2d at 230 (citation omitted). Further, "[a] trial court is afforded wide discretion in determining the admissibility of videotapes and motion pictures[, ]" Syl. Pt. 1, Roberts v. Stevens Clinic Hosp., Inc., 176 W.Va. 492, 345 S.E.2d 791 (1986), and ...


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