Pubdate: Thu, 10 May 2001
Source: Record, The (CA)
Copyright: 2001 The Record
Contact:  http://www.recordnet.com/
Details: http://www.mapinc.org/media/428
Author: Francis P. Garland, Lode Bureau Chief

MINISTERS' POT TRIAL DELAYED

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."
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