State v. Dixon

1

State of West Virginia, Plaintiff Below, Respondent v. Matthew S. Dixon, Defendant Below, Petitioner

No. 21-0678

Supreme Court of Appeals of West Virginia

September 15, 2023

Fayette County 19-F-88

MEMORANDUM DECISION

Petitioner Matthew S. Dixon appeals the July 27, 2021, order of the Circuit Court of Fayette County resentencing petitioner for purposes of appeal to an effective term of nine to thirteen years of incarceration in the penitentiary following his conviction on four offenses.^[1] Petitioner argues that his conviction should be reversed, raising issues with the legality of the stop of his vehicle by police, the continuance of his case into a second term of court, and statements made by the assistant prosecuting attorney during her closing argument. Upon our review, finding no substantial question of law and no prejudicial error, we determine that oral argument is unnecessary and that a memorandum decision affirming the circuit court's order is appropriate. See W.Va. R. App. P. 21(c).

I. FACTS AND PROCEDURAL HISTORY

Petitioner was indicted in the January 2019 term of court in Fayette County for conduct occurring on July 6, 2018.^[2] The indictment charged petitioner with one count of conspiracy (Count One) one count of possession of a controlled substance-heroin-with intent to deliver (Count Two), one count of possession of counterfeit currency with intent to utter (Count Three), and one count of driving with no operator's license (Count Four).

On February 8, 2019, petitioner filed a motion to suppress evidence. The motion asserted that on July 6, 2018, Fayette County Deputy Sheriff Christian Tomlin executed a traffic stop of a vehicle operated by petitioner because, according to the officer's narrative, he knew "from previous dealings with [petitioner] that [petitioner] d[id] not possess a WV driver's license." The motion further asserted that the officer obtained petitioner's permission to search the vehicle and that, in his search, the officer found suspected heroin; suspected methamphetamine; a bag containing a white, powdery substance; a set of digital scales; and counterfeit currency. Petitioner argued that the fruits of the search should be suppressed on the ground that the stop was illegal because the officer lacked an articulable and reasonable suspicion to stop petitioner's vehicle.

Officer Tomlin was questioned about the stop during a suppression hearing on February 26, 2019. He averred that two or three weeks before he stopped petitioner's vehicle on July 6, 2018, he stopped another vehicle in which petitioner was a passenger. Officer Tomlin testified that, during the prior stop, he obtained petitioner's name and birth date, which he then "r[a]n through [] dispatch," learning that petitioner's license had been suspended and that petitioner had multiple unpaid citations. Officer Tomlin asserted that his sole basis for stopping petitioner on July 6, 2018, was "due to the amount of fines, unpaid citations that were on [petitioner's] driver's history." Upon hearing the officer's testimony and the argument of counsel, the circuit court denied the motion to suppress, concluding that the stop was valid and that the officer had "an articulable reason and suspicion that [petitioner] was committing a violation of the law by operating that vehicle without a license." The court found "that because of previous contact with [petitioner,] the officer was aware that his license to operate a motor vehicle in the State of West Virginia had been revoked or suspended, either for unpaid fines or costs or for some traffic violation, or whatever." The court memorialized its ruling in an order entered on March 1, 2019.

During the suppression hearing, the assistant prosecuting attorney advised the court that, due to an oversight, the suspected drugs seized from petitioner's vehicle were not sent to the West Virginia State Police Forensic Laboratory ("Crime Lab") for testing until February 2019. She informed the court that testing results would not be available by the March 2019 trial date but that she was "assured they [would] be done by the end of [that] term." She requested a continuance of the trial. The court found that the State's oversight was "inexcusable," but it permitted a continuance of the trial within the January 2019 term over petitioner's objection.

The court held another hearing on April 2, 2019, to address outstanding motions. During the hearing, the assistant prosecuting attorney informed the court that the Crime Lab's evaluation of the suspected drugs seized from petitioner's vehicle would be completed in early May and asked that the trial be "set as soon . . . in the next term as we can[.]" Petitioner objected to continuing the trial into the next term of court. The circuit court decided to continue the trial until the next term of court because defense "counsel was just recently appointed; I think counsel has you have [sic] an opportunity to get familiar with this case[.^[3] . . . In addition, the lab results are not in hand. The defendant is entitled to have those lab results in hand before this matter proceeds to trial." The court memorialized its decision and findings in an order entered on April 8, 2019. The order included the additional finding that the Crime Lab's testing results "may be exculpatory."

Petitioner was charged in a superseding indictment in May 2019. The charges against petitioner in the superseding indictment were identical to those in the original indictment except that Count Two of the superseding indictment alleged that petitioner possessed, with the intent to deliver, methamphetamine rather than heroin.

Petitioner's case proceeded to a one-day jury trial on March 5, 2020, on the four charges in the superseding indictment. Petitioner's defense, as argued during opening statements, was that he was merely a drug user, not a drug dealer. His counsel also asserted, "I'm not going to hide from you the fact that our county is plagued by drugs -- our state is plagued by drugs."

The State presented the testimony of four witnesses, including Officer Tomlin and Carrie Kirkpatrick, the section supervisor of the drug identification section of the Crime Lab. Officer Tomlin testified about his stop and search of the vehicle, describing the items that were seized from petitioner's vehicle, which included scales, hundreds of dollars of counterfeit currency, and several "stamps."^[4] Officer Tomlin explained that "[s]cales are commonly used in the distribution of [sic] sale and manufacturing, and so on, of narcotics," and he indicated that narcotics are commonly sold in small amounts. He further testified that, based on his prior experience with counterfeit currency, he identified the currency in petitioner's wallet as counterfeit. He testified, "[I]t is very common in the drug game for people to use counterfeit money and counterfeit narcotics or what they tr[y] to play off as narcotics." Officer Tomlin also asserted that "a stamp is $20 common on the street" and that the possession of several stamps "shows that you['re] possibly selling narcotics." Officer Tomlin noted that there was a passenger in petitioner's vehicle, that petitioner had claimed that the passenger was selling counterfeit drugs, and that the passenger had also been charged with conspiracy. Ms. Kirkpatrick testified that approximately 4/10 of a gram of the substances submitted to the Crime Lab for testing contained methamphetamine. The remainder of the substances submitted did not contain an identifiable controlled substance. Petitioner did not call any witnesses in his case-in-chief.

During closing arguments, the assistant prosecuting attorney repeatedly referenced the "drug problem" in Fayette County, asserting that the "problem is killing our citizens." She said, "[W]e are all fighting together to try to make this situation better . . . . All we can do is take little . . . pieces out of the pie; hopefully one day being able to make sure that that pie is gone forever. . . . We have to take little . . . battles to fight this war . . . ." Petitioner's counsel addressed the same "war," in his closing argument stating, "We're talking less than half of [a Sweet'n-Low pack]; that's the drugs that my regular Al Capone client and his codefendant are going out and selling in this drug war."

Ultimately, the jury found petitioner guilty on all four counts in the superseding indictment. The circuit court entered a conviction order on March 25, 2020, and an amended sentencing order on August 3, 2020, directing that petitioner serve an effective sentence of nine to thirteen years of incarceration in the penitentiary and pay a total fine of $1,000. The circuit court entered an order on July 27, 2021, resentencing petitioner for purposes of appeal.

II. DISCUSSION

Petitioner appeals his conviction on three grounds. First, he argues that the stop of his vehicle was illegal and that the circuit court erred by failing to exclude the evidence seized during the stop. Second, petitioner contends that the circuit court erred by continuing the case into a second term of court. Third, petitioner argues that the circuit court committed plain error by permitting the assistant prosecuting attorney to make prejudicial statements during the State's closing argument. We address each issue in turn.

A. Legality of the Stop

Petitioner argues that Officer Tomlin did not have a reasonable and articulable suspicion that petitioner was engaging in illegal activity-driving without a valid license-such that it would have been legal for the officer to stop petitioner's vehicle. According to petitioner, the officer "could have easily confirmed or dispelled his hunch by simply using the communication equipment provided in his vehicle [to] ascert...