State v. Rodoussakis

• Decision Date: 10 December 1998
• Docket Number: No. 25170.,25170.
• Parties: STATE of West Virginia, Appellee, v. Johnny RODOUSSAKIS, Appellant.
• Court: West Virginia Supreme Court

511 S.E.2d 469

204 W.Va. 58

STATE of West Virginia, Appellee, v. Johnny RODOUSSAKIS, Appellant.

No. 25170.

Supreme Court of Appeals of West Virginia.

Submitted November 12, 1998.

Decided December 10, 1998.

W. Mark Burnette, Esq., Special Prosecuting Attorney, Lewisburg, West Virginia, Attorney for the State, and Fred J. Giggenbach, Law Student Assistant.

Barry L. Bruce, Esq., Barry L. Bruce & Associates, Lewisburg, West Virginia, and Franklin D. Cleckley, Esq., Morgantown, West Virginia, Attorneys for the Appellant.

MAYNARD, Justice:

The defendant below, appellant, Johnny Rodoussakis, was charged with felony murder in violation of W.Va.Code § 61-2-1 (1991) in the June 22, 1996 death of Randall Burge. Following a jury trial July 28, 1997 through July 31, 1997 in the Circuit Court of Raleigh County, West Virginia, the defendant was found guilty with no recommendation of mercy. Consequently, the defendant was sentenced to life in prison without the opportunity for parole. On appeal to this Court, the defendant assigns three errors seeking reversal of his conviction. For the reasons that follow, we affirm.

I. FACTS

In the late morning hours of June 22, 1996, Randall Burge, a twenty-nine year old Greenbrier County resident, was found dead in the Lewisburg apartment of a friend. The police investigation of Burge's death resulted in the indictment of the defendant, Johnny Rodoussakis, for the felony murder of Burge.¹ Specifically, the State alleged that Burge died as a result of morphine that was delivered to him by the defendant a few hours prior to Burge's death. The defendant filed a change of venue motion which was granted by the trial court. The defendant's trial, therefore, was held in the Circuit Court of Raleigh County.²

At the defendant's July 1997 trial, the State offered eighteen witnesses. These witnesses included Dr. Zia Sabet, the State's acting Chief Medical Examiner, who performed the autopsy on Burge pursuant to determining the cause of death, and Dr. Donell K. Cash, Chief Toxicologist for the Office of Chief Medical Examiner. Their testimony revealed that Burge's system contained a blood alcohol level of .09; .05 milligrams of total morphine, characterized as a lethal dose; and benzoyl ecgonine or "cocaine extract." Dr. Sabet testified that death was the result of multiple drug intoxication, and he stated that the first effective drug was morphine, the second alcohol, and the third cocaine. Dr. Sabet concluded that if the morphine were taken out of Burge's system, he would not have died when he did. The testimony of Dr. Elizabeth Scharman, Director of the West Virginia Poison Center, and Dr. Irvin M. Sopher, retired Chief Medical Examiner of the State concurred with this opinion.

Two other witnesses were Curtis Lee Cassey and Lawrence Graham. Cassey testified that he sold two or three bottles of morphine to Lawrence Graham on two or three separate occasions. In addition, he testified that after Burge's death, the defendant warned him, "I got some of your morphine and the morphine killed some guy. Keep your mouth shut. I'm not going down for you or anyone else." Finally, Cassey stated that the defendant attempted to purchase morphine from him indirectly through Graham. Lawrence Graham testified that he agreed to sell morphine for Cassey, and that he sold a total of six vials of morphine to the defendant on three separate occasions in June 1996. He stated, also, that after Burge's death, the defendant warned him to keep his mouth shut. Steven Hutsenpiller testified that days before Burge's death, the defendant persuaded Hutsenpiller to purchase morphine at ten dollars an injection. According to Hutsenpiller, the defendant gave him morphine orally and injected him twice in the arm. Hutsenpiller stated that he became violently ill, thought that death was imminent, and begged to be taken to the hospital. The defendant refused Hutsenpiller's frantic pleas, however, and instead repeatedly requested that Hutsenpiller pay him for the morphine injections. Hutsenpiller admitted that there was a third offense DUI charge pending against him but asserted that the prosecution had made no promises to him concerning that charge in exchange for his testimony.

The State's key witness was Lana Poole who testified that on two occasions she chauffeured the defendant to meet with unknown persons for the purpose of purchasing morphine. She testified further that she witnessed the defendant inject Burge with morphine three times just hours before Burge died. According to Poole, Burge became ill after the second injection. Her attempt to prevent the defendant from injecting Burge the third time, however, was met with a harsh and profanity-laced rebuke from the defendant. On cross-examination, when asked whether she had phoned the defendant's mother and requested money in order to leave town before testifying, Poole asserted that the defendant's mother had phoned her and offered money for that purpose.

In addition, there was testimony that Burge was a happy and lighthearted person who occasionally indulged in a little beer and marijuana but who was never known to use morphine. Witnesses who had seen Burge the night before his death and prior to his encounter with the defendant testified that he appeared to be sober. Still other witnesses testified of experiences similar to those recounted by Hutsenpiller in which the defendant attempted to sell them injections of morphine.

The defense responded with sixteen witnesses of its own. The defendant's medical expert witnesses consisted of Dr. Anne Hooper, a physician who specializes in pathology; Dr. Stuart Boghema, a forensic toxicologist; and Dr. Kim Collins, Deputy Chief Medical Examiner of South Carolina. Dr. Hooper testified that Burge died of an acute overdose of cocaine. Dr. Boghema opined that it is "less than likely" that Burge died of a morphine overdose. According to Dr. Collins, Burge died of an acute heart attack possibly related to cocaine use.

The testimony of several defense witnesses differed significantly from the accounts of Hutsenpiller and Poole. Several witnesses testified that Hutsenpiller and Poole have a reputation in their communities for untruthfulness. There was testimony that on the night preceding his fateful meeting with the defendant, Burge was attempting to sell cocaine in Anderson's Bar in Ronceverte. April Kirk testified that Burge was "hooked on crack." Robin Stone declared that she ran into Burge at Anderson's Bar the night before he died. Burge was sweating profusely, and he explained that he had been "partying all day." According to Stone, Burge offered her morphine and she declined. Prior to leaving, however, she witnessed Burge inject himself with morphine. Finally, Jean Rodoussakis, the defendant's mother, testified that Poole called her and requested three to four thousand dollars to get out of town because she did not want to testify. According to Ms. Rodoussakis, Poole stated, "it will buy your son's freedom. He will walk. Without my testimony, they can't do a thing."

After his conviction of first degree murder, the defendant moved for a new trial pursuant to Rule 33 of the West Virginia Rules of Criminal Procedure. The defendant based this motion on insufficient evidence that morphine caused Burge's death. Also, the defendant argued that the trial court erred in not allowing the testimony of J. Michael Anderson, a lawyer, to impeach Hutsenpiller's claim that the State had offered no inducement for Hutsenpiller's testimony. At the same time, the defendant moved for a judgment of acquittal on the basis of insufficiency of the evidence. By order of September 8, 1997, the trial court denied both of these motions.

II. DISCUSSION

In his appeal, the defendant raises several assignments of error: (1) the trial court erred in not granting a judgment of acquittal; (2) the trial court committed reversible error by excluding substantive and impeachment evidence; and (3) the trial court erred in refusing to give the defendant's requested instruction stating that Lawrence Graham and Curtis Lee Cassey were accessories before the fact.

1.

Insufficiency of the Evidence

A. Applicability of the Felony Murder Statute

The defendant raises two separate arguments regarding the failure of the State to prove its case against the defendant beyond a reasonable doubt. First, the defendant contends that the State's evidence was insufficient to trigger application of the felony murder statute. Specifically, the defendant asserts that the felony murder statute does not apply in drug overdose cases.

After carefully reviewing the record, we find that the defendant failed to raise this specific issue below. As noted above, the defendant's specific argument here is that the felony murder statute is not applicable to the facts of this case. At the end of the State's evidence, the defendant's counsel made a motion for acquittal based on the insufficiency of the evidence. Specifically, counsel stated:

Defense would move—make a motion for acquittal, that the defense states that the State has not carried its burden in this case. And the key elements of this offense as alleged is that the State must prove beyond a reasonable doubt that Randall Burge died of morphine poisoning as delivered by Johnny Rodoussakis.

The State has failed to meet its burden of proving that Randall Burge died of morphine, and that their expert witness, the pathologist who was the only person who is licensed and able to determine cause of death, clearly stated in his cross-examination that the cause of death was multiple intoxication as indicated by his—multiple drug intoxication as indicated by his report that he had filed. And therefore the State has not met its burden and we ask that this matter be acquitted.

The defendant also made a written post-trial motion for judgment of acquittal which was, again, based on insufficiency of the evidence. Specifically, the...