State v. Clausell

• Decision Date: 18 April 2001
• Docket Number: No. 98-213.,98-213.
• Citation: 2001 MT 62,22 P.3d 1111,305 Mont. 1
• Parties: STATE of Montana, Plaintiff and Respondent, v. Amuir Sekou CLAUSELL, Defendant and Appellant.
• Court: Montana Supreme Court

22 P.3d 1111

2001 MT 62

305 Mont. 1

STATE of Montana, Plaintiff and Respondent, v. Amuir Sekou CLAUSELL, Defendant and Appellant.

No. 98-213.

Supreme Court of Montana.

Submitted on Briefs March 16, 2000.

Decided April 18, 2001.

Kevin Gillen, Billings, for Appellant.

Joseph P. Mazurek, Montana Attorney General, C. Mark Fowler, Assistant Montana Attorney General, Helena, Montana; Dennis Paxinos, Yellowstone County Attorney, Daniel Schwarz, Chief Deputy Yellowstone County Attorney, Billings, for Respondent.

JAMES C. NELSON, Justice.

¶ 1 Amuir Sekou Clausell appeals from the judgment of conviction and sentence entered by the Thirteenth Judicial District Court, Yellowstone County, on a jury verdict finding him guilty of deliberate homicide. We affirm.

¶ 2 We address the following issues on appeal:

¶ 3 1. Did the District Court err when it admitted expert testimony of Dr. Dwayne Schultz?

¶ 4 2. Did the District Court err when it denied Clausell's motion for a directed verdict of acquittal?

¶ 5 3. Did the District Court erroneously instruct the jury on the definition of "purposely?"

¶ 6 4. Did the State prejudice Clausell's right to a fair and impartial trial by commenting on facts not of record?

¶ 7 5. Did the District Court err when it admitted the testimony of police officer Steve Swanson regarding pre-Miranda statements made by Clausell?

¶ 8 6. Did the State violate Clausell's right to due process and privilege against self-incrimination by commenting on Clausell's post-Miranda silence and is this issue reviewable under the common law plain error doctrine?

BACKGROUND

¶ 9 At approximately 3:00 a.m. on March 22, 1997, Amuir Clausell arrived at the emergency room of Saint Vincent Hospital in Billings and informed hospital personnel that his girlfriend had a head injury and he needed help getting her out of his car. Emergency medical technicians who responded found Georgiana Trottier in the car, unconscious and with a single gunshot wound to the head. Trottier never regained consciousness and later died of the gunshot wound. ¶ 10 Clausell initially told medical personnel that Trottier called him from a gas station, told him she was injured and drove herself to Clausell's apartment. He said he found her outside his apartment and drove her to the hospital. Clausell stayed at the hospital while Trottier was being treated and Billings police officers eventually arrived and questioned him. Over the course of the morning and during the ensuing investigation, Clausell recounted at least eight different versions of the story to hospital personnel, police and two friends who testified at trial.

¶ 11 Clausell was ultimately arrested on the morning of March 22, and Billings police searched his apartment. Detectives found bloodstained blankets on Clausell's bed and blood on the bed, floor and wall of the bedroom as well as on the stairs and handrail leading from the bedroom to the main apartment. Blood samples taken from the apartment matched Trottier's blood. Immediately outside the back door to Clausell's apartment, wrapped in a towel inside a bucket, detectives found a .22 caliber pistol with one spent round in the chamber. In Clausell's bedroom, detectives found .22 caliber ammunition as well as a life insurance policy, held by Trottier, naming Clausell as the primary beneficiary.

¶ 12 On March 27, 1997, the State charged Clausell by information with Felony Accountability for Deliberate Homicide in violation of § 45-2-302(3), MCA, and § 45-5-102, MCA. The State amended the information on August 6, 1997, to Felony Deliberate Homicide in violation of § 45-5-102(1)(a), MCA. Clausell pled not guilty and a jury trial commenced October 20, 1997.

¶ 13 Several witnesses testified at Clausell's trial regarding the events of March 21, 1997, leading up to the shooting. Tyson Byers, a bouncer at the Lamplighter Lounge in Billings testified that Trottier and Clausell spoke at the Lamplighter on the evening of March 21, had an argument and had to be physically separated from each other. A second bouncer, James Phillip "Hawkeye" Hochmuth, testified that after the altercation, he asked Trottier to leave the bar and she left with her friend Tara Haker.

¶ 14 Haker testified that she had been with Trottier at the Lamplighter that evening, that the two had eventually returned to Haker's house and that Trottier left for her own home between 2:00 and 2:30 a.m. Rather than go home, however, Trottier drove to Clausell's apartment. Toni Devous, one of Clausell's neighbors, testified that she awoke to Trottier yelling and banging on Clausell's door at 2:30 a.m. Devous testified that she told Trottier to leave Clausell alone or at least to go somewhere and call him. Trottier exchanged words with Devous and then left. Devous testified that she heard Trottier return a short while later and enter the apartment and that she heard some brief yelling and then silence.

¶ 15 Testifying on his own behalf, Clausell admitted he and Trottier had an intimate relationship but asserted it was not as serious as she wanted it to be. He testified that they fought at the Lamplighter on the evening of March 21, and that she came to his apartment later that night asking if she could stay with him but he refused. According to the account Clausell gave at trial, Trottier then went upstairs demanding some of her belongings and he went downstairs to get a glass of water; when he returned to his bedroom, Trottier was lying face down on his bed again asking if she could stay. Clausell testified he grabbed her by her wrists and arms and attempted to pull her off the bed when the gun, which he ordinarily kept by his bed, discharged. Clausell testified that Trottier was holding the gun but he never saw it due to the poor light and the fact he was not wearing his glasses. According to Clausell, he then put his clothes on and carried her outside, dropping the gun in the bucket on the way out, found her keys in her car and drove her to the hospital.

¶ 16 Dr. Dwayne Schultz, a pathologist at Saint Vincent Hospital, testified that Trottier died as a result of a bullet wound to the back of her head. Dr. Schultz testified that he found soot and powder from the bullet inside Trottier's skull and brain, indicating the gun had been discharged at close range. Dr. Schultz also explained that the bullet entered at a complex angle beginning two inches behind the left ear and one inch below the top of the ear, a fact which Dr. Schultz opined would have made it difficult for Trottier to have inflicted the wound herself. Finally, Dr. Schultz testified that the bullet essentially exploded Trottier's cerebellum, precluding any further voluntary motor functions after she was shot.

¶ 17 After a four-day trial, the jury convicted Clausell of deliberate homicide. On January 7, 1998, the District Court entered judgment on the verdict and sentenced Clausell to 100 years in the Montana State Prison plus an additional 2 years, running consecutively, for the use of a weapon. Clausell appeals.

DISCUSSION

¶ 18 1. Did the District Court err when it admitted expert testimony of Dr. Dwayne Schultz?

¶ 19 During its case-in-chief, the State offered the expert testimony of Dr. Dwayne Schultz. In seeking to establish his qualifications as an expert, Dr. Schultz testified that he was board certified in Pathology and that he had conducted over four hundred autopsies, approximately forty of which involved gunshot wounds. In response to voir dire by defense counsel, Dr. Schultz admitted he was not board certified in Forensic Pathology. Clausell's attorney then asserted the following objection: "I would object to this Doctor's testimony regarding Forensic Pathology which would include discussions about homicide cases ...." The District Court overruled the objection and Dr. Schultz testified, among other things, as to the cause of Trottier's death, the presence of soot and powder burns in her skull and brain, the trajectory of the bullet through her skull and brain, and the probable orientation of the gun when it was fired in order for the bullet to achieve its trajectory. Clausell did not object further to any of Dr. Schultz's testimony.

¶ 20 On appeal, Clausell contends "only a forensic pathologist should be considered a qualified expert to testify concerning the cause of death where there is a suspicious circumstance surrounding the death as presented in this trial for deliberate homicide." Thus, Clausell appears to argue the District Court erred in accepting the qualifications of Dr. Schultz as an expert witness. Clausell also argues the District Court erred specifically in allowing Schultz to testify regarding the forensic aspects of Trottier's death—the presence of soot and powder burns in the bullet wound, the trajectory and angle of the bullet and the likely orientation of the gun when it was fired. We address both arguments in turn.

¶ 21 Rule 702, M.R.Evid., sets forth the criteria for the admissibility of expert testimony:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

The determination of the qualification and competency of an expert witness rests within the sound discretion of the trial court and will not be disturbed absent a showing of abuse of discretion. State v. Maier, 1999 MT 51, ¶ 88, 293 Mont. 403, ¶ 88, 977 P.2d 298, ¶ 88 (citation omitted). Moreover, "[t]he degree of a witness' qualifications affects the weight of the expert's testimony, not its admissibility." State v. Martin (1987), 226 Mont. 463, 466, 736 P.2d 477, 479 (citing State v. Berg (1985), 215 Mont. 431, 434, 697 P.2d 1365, 1367).

¶ 22 Clausell relies on In re K.H., 1999 MT 128, 294 Mont. 466, 981 P.2d 1190, in urging us to distinguish between Clinical and...