State v. Fritts

Decision Date29 October 2021
Docket Number20-0937
CourtVirginia Supreme Court
PartiesState of West Virginia, Plaintiff Below, Respondent v. Sherri Lynn Fritts, Defendant Below, Petitioner

(Jefferson County CC-19-2020-F-23)

MEMORANDUM DECISION

Petitioner Sherri Ann Fritts, by counsel James T. Kratovil, appeals the Circuit Court of Jefferson County's orders granting the State's motion in limine to admit evidence of drug activity, granting the State's request to allow expert testimony from a witness, and denying petitioner's motions for judgment of acquittal or new trial. Respondent the State of West Virginia, by counsel Patrick Morrisey and Scott E. Johnson, filed a response to which petitioner submitted a reply.

This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

Petitioner was indicted for delivery of a controlled substance resulting in the death of Angelina Costello and for failure to render aid to Ms. Costello. According to petitioner's statement to police, petitioner got into an argument with her ex-husband so petitioner contacted Ms. Costello to pick her up. Ms. Costello picked petitioner up and drove her to Ms Costello's home, where they stayed for approximately forty-five minutes. When petitioner wanted to return home, Ms. Costello was not feeling well so Ms. Costello reportedly allowed petitioner to borrow her car. Petitioner claimed that she left Ms. Costello's home through the front door, locking it behind her. Petitioner then drove to two stores before returning to her ex-husband's home. Sometime later, petitioner left Ms. Costello's car at Harding's service station.

According to Trooper First Class Matthew Morgan, during the evening of December 9, 2018, he received a call to conduct a wellness check at Ms. Costello's home. When he arrived, he discovered that the doors were locked and there was no sign that anyone was home, as there was no car outside and no sign of distress. Also on that date, Ms. Costello's son, David Austin Pulse, had been unable to contact his mother so he drove from Kentucky to his mother's home, arriving at approximately 8:00 or 9:00 a.m. the following morning. He reportedly picked a lock to enter the locked home, where he found Ms. Costello dead in her bed. Mr. Pulse's girlfriend contacted law enforcement. Although Mr. Pulse denied the presence of any drug paraphernalia or cleaning anything, Jefferson County Medical Examiner Gary Viands, who is also a paramedic/firefighter, responded to the scene and observed the body before it was transported to Charleston for an autopsy. He did not observe any track marks or fentanyl patches on Ms. Costello's body. Based on his experience, he recognized the physical symptoms of a drug overdose, including fluid draining from Ms. Costello's nose and mouth.

Petitioner was arrested related to Ms. Costello's death. The State filed a motion in limine seeking to offer evidence from the trial of Richard Brooks regarding an alleged illegal drug buy between petitioner and an individual known as "Cuz." Petitioner's counsel told the circuit court that he thought Mr. Brooks's testimony was that he did not sell drugs to petitioner and never saw anyone in his home sell drugs to petitioner. The circuit court responded that petitioner's counsel was "really addressing a slightly different issue which is factually what happened versus getting into with the witness at least some effort to buy drugs." It continued by stating that the State is "asking to do that as intrinsic evidence versus having to go through a Rule 404(b) hearing on other crimes, wrongs or acts." The circuit court found that Mr. Brooks could not testify that petitioner came for the purpose of purchasing drugs from Cuz but could lay a foundation that he was not a social acquaintance with petitioner and that he let Cuz sell drugs from his home. While the State argued that it was intrinsic evidence, petitioner's counsel argued that it was 404(b) evidence and that the prejudicial effect outweighed the probative value. The circuit court took the issue under advisement.

During the pretrial hearing, the circuit court also heard testimony related to the State's request to qualify Sergeant Steven Holz as an expert witness. Sgt. Holz was one of the investigating officers in petitioner's case; he served a search warrant on Google regarding petitioner's location data for December 8, 2018. Google responded with an Excel spreadsheet that contained various data, including a specific time and date, a latitude, a longitude, and a radius in meters of how accurate Google estimated that location to be. Sgt. Holz testified that he attended training regarding the preparation and use of the data and that when he received the raw data from Google it was difficult to interpret the location that each data entry represented. He explained that one would have to know how to map them in order to figure out where the locations were, as it would just look like numbers. According to Sgt. Holz, the location history results were sometimes inconsistent with an interview petitioner gave detailing her locations. During cross-examination, Sgt. Holz explained that the data was "not sophisticated. . . . [Y]ou get latitude, longitude. You get date and time and you get what's called a radius of basically how accurate they believe it to be based upon the way they collect the data." The State then asserted that it was

not calling Sergeant Holz as an expert into the underlying science or data or asking him to explain that to the jury. It simply designated him as an expert pursuant to Rule 702 because he possesses specialized training to interpret the data to allow it to be more easily understood by the jury. So in this case he took the raw data points[, ] which on their face don't really indicate much information[, ] and he turned it into a map that is easily understood. The [S]tate's not calling him to explain the underlying science or to explain anything else other than he took the data and put it into a map.

The State further explained that "[i]f the issue is whether or not Sergeant Holz is an expert, he doesn't need to be. You know, he can testify to plotting the points on a map. That's fine with the State." In addition, the State informed the court that "Sergeant Holz is taking data recovered from a search warrant and making it into a map so that it's easily understood." Petitioner's counsel argued that Sgt. Holz did not have the necessary training or experience to be able to go into "the science of this GPS collection." The circuit court determined that Sgt. Holz

is not qualified and is not being offered as an expert in GPS. However, it seems evident to the [c]ourt in 2020 that GPS data is ubiquitous and is regularly relied upon in everything from aircraft to the military to individuals walking down a street trying to determine which direction they're headed. And so I do find that GPS data is distinct from cell tower data is reliable and of the type that are generally relied upon by experts in the field. So in my mind I'm going to allow the GPS data and now Sergeant [Holz] has laid his qualifications to explain why it is he's qualified to interpret the raw data and to take that data, convert it to a usable format such that it appears on a map and to show times and places of or course of travel and times.

The circuit court ultimately found that it was "satisfied that Sergeant Holz is an expert in the area of GPS data mapping and he will be allowed to so testify."

With regard to the testimony of Richard Brooks, the circuit court entered an August 18, 2020, order regarding the State's motion in limine. In that order, the circuit court granted the State's motion

to admit evidence of [petitioner's] drug activity on December 8, 2018[, ] of which Mr. Richard Brooks has personal knowledge, subject to the following caveats: The State, although agreeing to limit intrinsic evidence to the events of December 8, 2018, would like to adduce testimony from Richard Brooks that [petitioner], on some earlier day(s), had purchased illegal drugs from a person named 'Cuz' at Brooks's residence. Based on the State's proffer, the [c]ourt believes it understands that Brooks may not have witnessed a drug sale to [petitioner] on December 8, 2018, but, because [petitioner] had allegedly visited Brook's [sic] residence on unknown earlier dates to buy drugs, Brooks inferred that [petitioner] was again seeking drugs from Cuz on December 8th. The State also alleges that on December 8th [petitioner] ingested fentanyl in Brook's [sic] bathroom.

However, the circuit court precluded the State from making any reference during its opening statement to Mr. Brooks's mere inference that because petitioner allegedly purchased drugs at Mr. Brooks's residence on other dates, she must have purchased fentanyl there on December 8th.

During the trial, petitioner did not testify and did not call any witnesses. At the conclusion of the trial, petitioner was found guilty of delivery of a controlled substance resulting in death and failure to render aid. The jury was polled, and each juror answered in the affirmative that the verdict read by the court was his or her own true verdict. Thereafter petitioner filed a motion for judgment of acquittal, which was denied by the circuit court by order entered on August 31, 2020. Therein, the circuit court found that based upon the...

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