WV Supreme Court Remands Cabell County Shooting Case; Defendant Denied Effective Cross-Examination of Witness

by Tony E. Rutherford, News Editor
Newsome Memorial (file photo)
Newsome Memorial (file photo)

The West Virginia Supreme Court has overturned a shooting-related conviction from Huntington’s then bar turbulence  period of 2008. Calling a cross-examination exchange between Circuit Judge Alfred Ferguson and defense attorney William Forbes “bizarre,” the state’s highest court awarded Jerel Addison Garner a new trial in the death of former Marshall University football player, Donte Newsome, which occurred outside The Fluid nightclub  on Fourth Avenue.  Newsome at the time of his death played for the Amarillo Dusters of the Arena Football League.

The July 2008 death of Newsome at 611 Fourth Avenue (a.k.a. Monkeybar) touched off  demands from  the Mayor David Felinton Administration and some council members restrict nightspots along the Old Main Corridor and restrict new bars downtown.  However, the Huntington Police Department and associated law enforcement agencies worked with bar owners to curb the gun violence by working together and passing a “nuisance” ordinance.

Garner , who himself was wounded in the gunfire that killed Newsome, maintained his response was in  self-defense. A Cabell County jury convicted him of voluntary manslaughter, wanton endangerment, and carry a concealed weapon without a permit.

At trial the state maintained the shooting stemmed from an earlier verbal confrontation inside after a patron made a pass at Garner’s girlfriend. Garner and his girl friend left the bar, then, return and parked outside.

Describing the  July 5, 2008 incident, the West Virginia Supreme Court wrote:  “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  Garner had sustained three bullet wounds. Ivan Clark, a friend of Donte Newsome, had also fired shots during the altercation.”

The State’s highest court ruled that the circuit judge’s interference in the cross examination of Ivan Clark by defense counsel , William C. Forbes, which violated the confrontation clause of both the Sixth Amendment of the U.S. and W.Va.  Constitution.

Forbes questioned Clark without prior preparation  attempting to undermine his testimony of the gun fight.

The Court (Ferguson) insisted .” have them (questions) prepared. Have him address those questions to you so that you will be expecting those answers and get them straight. “

Forbes stressed  he cross-examined witnesses at trial impromptu. “I ain’t going to be able to change I have been doing it for thirty years. This is the first time I have had this problem,” the transcript stated.

The judge told Forbes to “sharpen it up,” after which Forbes placed on the record that the “interference of my ability to cross-examine this witness” violated  his client’s right to a fair trial.

On appeal, the state contended that the trial court was simply “frustrated with defense council’s somewhat rambling cross examination.”

But the court’s five justices in an unsigned opinion ruled, “the demeanor of the witness” is a significant part of the adversarial cross-examination process.

The court explained quoting a U.S. Supreme Court case that “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.”






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