State v. Dietz

• Decision Date: 08 March 1990
• Docket Number: No. 18909,18909
• Citation: 390 S.E.2d 15,182 W.Va. 544
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Karl DIETZ.

Page 15

390 S.E.2d 15

182 W.Va. 544

STATE of West Virginia v. Karl DIETZ.

No. 18909.

Supreme Court of Appeals of West Virginia.

March 8, 1990.

Syllabus by the Court

1. "The admissibility of evidence as rebuttal is within the sound discretion of the trial court, and the exercise of such discretion does not constitute ground for reversal unless it is prejudicial to the defendant." Syl.pt. 4, State v. Blankenship, 137 W.Va. 1, 69 S.E.2d 398 (1952), overruled on another point, State v. McAboy, 160 W.Va. 497, 498 n. 1, 236 S.E.2d 431, 432 n. 1 (1977).

2. Where a criminal defendant's witness on direct examination raises a material matter, and on cross-examination testifies adversely to the prosecution, it is proper for the trial court to allow the prosecution to present rebuttal evidence as to such matter.

3. "Whether a witness is qualified to state an opinion is a matter which rests within the discretion of the trial court and its ruling on that point will not ordinarily be disturbed unless it clearly appears that its discretion has been abused." Syl.pt. 5, Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598 (1960).

4. In a homicide case a medical examiner may be qualified to state an opinion as to whether the homicide was of a psychosexual type. Such qualification should be based upon the medical examiner's: post-mortem examination or a review of the report thereof; knowledge of psychosexual types of homicide; and experience in post-mortem examinations upon similarly situated victims. Whether a medical examiner is qualified in this regard is a determination to be made by the trial court, and, unless the trial court has abused its discretion, this Court will not disturb the trial court's ruling.

5. "Rule 404(a)(2) of the West Virginia Rules of Evidence essentially codifies the common[-]law rules on the admission of character evidence of the victim of a crime. In particular, under our traditional rule, a defendant in a homicide, malicious wounding, or assault case, who relies on self-defense or provocation, may introduce evidence concerning the violent or turbulent character of the victim, including prior threats or attacks on the defendant. This is reflected by Syllabus Point 2 of State v. Louk, 171 W.Va. 639, 301 S.E.2d 596 (1983): 'In a prosecution for murder, where self-defense is relied upon to excuse the homicide, and there is evidence showing, or tending to show, that the deceased was at the time of the killing, making a murderous attack upon the defendant, it is competent for the defense to prove the character or reputation of the deceased as a dangerous and quarrelsome man, and also to prove prior attacks made by the deceased upon him, as well as threats made to other parties against him; and, if the defendant has knowledge of specific acts of violence by the deceased against other parties, he should be allowed to give evidence thereof.' (Citations omitted)." Syl.pt. 2, State v. Woodson, 181 W.Va. 325, 382 S.E.2d 519 (1989).

6. It is proper for a trial court to exclude testimony relating to the reputation for aggressiveness and character for violence of the victim in a homicide case where the defendant claims reasonable apprehension of danger, but where the defendant had no prior knowledge of such reputation at the time of the homicide.

7. " 'Rulings on the admissibility of evidence are largely within a trial court's sound discretion and should not be disturbed unless there has been an abuse of discretion.' " Syl.pt. 2, State v. Peyatt, 173 W.Va. 317, 315 S.E.2d 574 (1983) (quoting State v. Louk, 171 W.Va. 639, 643, 301 S.E.2d 596, 599 (1983)).

8. "This Court will not consider an error which is not preserved in the record nor apparent on the face of the record." Syl.pt. 6, State v. Byers, 159 W.Va. 596, 224 S.E.2d 726 (1976).

9. "In a criminal case, the inquiry made of a jury on its voir dire is within the sound discretion of the trial court and not subject to review, except when the discretion is clearly abused." Syl.pt. 2, State v. Beacraft, 126 W.Va. 895, 30 S.E.2d 541 (1944), overruled on another point, syl. pt. 8, State v. Dolin, 176 W.Va. 188, 347 S.E.2d 208 (1986).

10. In a criminal case the trial court's conduct of the voir dire is not reversible error if it is conducted in a manner which safeguards the right of a defendant to be tried by a jury free of bias and prejudice. Accordingly, it is not reversible error in a criminal case for a trial court to refuse to ask questions submitted for voir dire by the defendant if such questions are substantially covered by other questions asked by the trial court.

11. In a criminal case it is not reversible error for a trial court to allow a document, such as a transcript, a written statement, or a tape recording, any of which contains a confession or incriminating statement, and which has already been admitted into evidence, to be taken into the jury room for the jury's use during deliberations.

Victor A. Barone, Charleston, for Karl Dietz.

Roger W. Thompkins, Atty. Gen., C. Terry Owen, Sr. Asst. Atty. Gen., Charleston, for the State.

McHUGH, Justice:

This case is before the Court upon the appeal of Karl Dietz. The appellant was convicted of first degree murder by a jury in the Circuit Court of Cabell County and was sentenced to life imprisonment, with a recommendation of mercy. This Court has reviewed the petition for appeal, all matters of record, and briefs of the parties. We are of the opinion that the appellant's conviction should be affirmed.

I. FACTS

The victim in this case was Sandra J. Chapman. On March 31, 1987, the appellant met the victim at a tavern in Huntington, at approximately 1:00 a.m. After engaging in a conversation at the tavern, the appellant and the victim went to the appellant's apartment.

There were no witnesses to the homicide. The appellant contends that the following transpired at his apartment: The victim wanted to engage in sexual intercourse, but the appellant declined. Both the victim and the appellant were intoxicated at the time. The victim then went to use the appellant's bathroom. The appellant was sitting on his bed. The victim then went into the appellant's kitchen, and the appellant "heard something clank around." The victim then returned to the appellant's bedroom, naked, except for her stockings, and holding a knife behind her back. The victim pulled the knife from around her back and advanced toward the appellant, pressing him against the bed, and saying "I could kill you right here if I wanted to." The appellant managed to reach for and grab the cord from his bathrobe, which was near the victim and appellant. The appellant wrapped it around the victim's neck and pulled on it tightly. The victim fell back and struck the floor. The appellant realized that the victim was dead, and became fearful and panic-stricken. The appellant then took the victim's body and dumped it in a secluded area in Wayne County. ¹

Later that day, March 31, 1987, the appellant saw a local television newscast which reported the discovery of the victim's body. The appellant called the state police to report that he had information concerning the body. A Huntington police officer then went to the appellant's apartment and took the appellant to the police station. The appellant was advised of his Miranda rights. The appellant informed the Huntington police officer as to what the appellant contended happened. The appellant was questioned further after arriving at the police station. A tape-recorded confession was obtained from the appellant.

A post-mortem examination was performed on the victim on April 1, 1987, by Dr. Irvin M. Sopher, the state's chief medical examiner. This examination revealed that the victim's death was caused by "ligature strangulation," which is strangulation by the placing of an object around the neck. The examination also revealed an earring in the victim's vagina, although there was no evidence that sexual activity had taken place. The victim's blood alcohol level was .24 percent.

The appellant did not testify in this case.

II. THE EARRING ISSUE

The primary issue in this case concerns testimony offered at trial dealing with the earring found in the victim. The appellant contends that the circuit court committed reversible error by allowing Dr. Sopher, a witness for the State, to testify as to the appellant's psychosexual motivation to kill the victim, based upon the finding of the earring, as well as its location in the victim.

During a pretrial deposition, Dr. Sopher stated that he was in no position to comment on the appellant's motive in regard to the significance, if any, of the earring. However, during that pretrial deposition, Dr. Sopher stated that "a sexual motive or sex-related death is something that has to be strongly considered" in this case, due to the earring's location in the victim. During the trial, as part of the State's case-in-chief, Dr. Sopher testified, based upon his post-mortem examination, that the cause of death was ligature strangulation. Dr. Sopher also testified that the post-mortem examination revealed the earring in the victim's vagina. However, during the State's case-in-chief, no testimony was elicited regarding whether this case involved a psychosexual homicide.

As part of the appellant's case-in-chief, Dr. Cyril Wecht, an expert in forensic pathology, was called to testify as to the appellant's theory of the cause of the victim's death. Dr. Wecht testified that the victim's death was caused by asphyxiation and inadequate blood supply to the brain. The direct examination of Dr. Wecht revealed that Dr. Wecht had reviewed the post-mortem report, based upon the autopsy performed by Dr. Sopher. While Dr. Wecht, on direct examination, did not specifically refer to the earring or its location, he did testify, in a sudden shift in the line of inquiry, that there were no findings that would lead him to believe that "sexual activity" was involved in this case.

On...