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Marijuana Tactics 101: Never Let Prosecutors Get Past the Prelim!



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Stockton Record Thursday, May 10, 2001 MINISTERS’ POT TRIAL DELAYE
D By Francis P. Garland, Lode Bureau Chief SAN ANDREAS — 

Attorneys for two Wallace ministers charged with cultivating marijuana said they
 will ask a state appeals court to review a county judge’s denial of a motion to
 dismiss the case. Ricky Dewayne Garner, 43, and Sue Melinda Garner, 40, were
 scheduled to go to trial Wednesday in Calaveras County Superior Court on a
 marijuana-cultivation charge.


 But assigned Judge Robert Martin granted the Garners a two-week continuance, during which their attorneys plan to file a writ with the 3rd District Court of Appeal in Sacramento. If the appeals court hears the writ — a sort of appeal — the Garners’ trial could be postponed until the higher court renders a decision. The Garners, ministers of the Northern Lights Church, had their Southworth Road property raided by Calaveras County sheriff’s deputies in August. Deputies found 290 marijuana plants and seized weapons, smoking pipes, growing equipment, church documents and doctors’ recommendations for medicinal marijuana use. 


The Garners were not hiding their marijuana-growing operation and said they were cultivating it for their own medicinal use as well as for 16 other people who had a legal right to the drug. Several of those people lived in Bakersfield. Under Proposition 215, people suffering from certain medical conditions may use marijuana if they have a doctor’s recommendation or approval. The 1996 law also states that marijuana cultivation and possession laws do not apply to legitimate patients or their primary caregivers. The latter is defined as the person who has "consistently assumed responsibility for the housing, health or safety" of a patient. The Garners maintained they were assuming the role of caregivers. After a preliminary hearing in December, a judge ruled there was enough evidence to hold the Garners for trial. However, attorneys Adam G. Gasner, who represents Ricky Garner, and J. David Nick, who represents Sue Garner, say there was not enough evidence presented at that hearing to warrant the holding order. Last week, they asked Judge John Martin to dismiss the case. Robert Martin and John Martin are not related. Nick said in court documents that the prosecution never introduced any evidence to refute the Garners’ claim that they were consistently providing for the health needs of the 16 people for whom they held medical marijuana recommendations. 

Seth Matthews, a deputy district attorney prosecuting the case, said in court documents that assigned Judge Nels Fransen, who presided over the preliminary hearing, was justified in holding the Garners for trial, because Fransen questioned whether the Garners could act as legitimate primary caregivers for people in Bakersfield. John Martin, who issued his denial motion last week after hearing arguments, wrote that there is some evidence that the amount of marijuana grown at the Southworth Road property "was in excess of the acceptable amount for medical use." Nick countered Wednesday that there are no distance parameters that pertain to caregiver status, nor has anyone determined what is a reasonable amount of marijuana for patients to have. Nick said John Martin concluded the 290 plants were excessive "because he couldn’t consider throwing a case out of court that involved 290 marijuana plants." "He had the attitude that it’s just not legal," Nick said. "But it is legal." *