State v. Scott
| Decision Date | 08 July 1999 |
| Docket Number | No. 25442.,25442. |
| Citation | 206 W.Va. 158,522 S.E.2d 626 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff below, Appellee, v. Marc SCOTT, Defendant below, Appellant. |
Darrell V. McGraw, Jr., Esq., Attorney General, Barbara H. Allen, Esq., Leah Marcia, Esq., Charleston, West Virginia, Attorneys for Appellee.
Franklin D. Cleckley, Esq., John R. Angotti, Esq., David J. Straface, Esq., Angotti & Straface, Morgantown, West Virginia, Attorneys for Appellant.
This is an appeal from a June 8, 1998, final order of the Circuit Court of Monongalia County sentencing the appellant, Marc Scott ("Scott"), to a term of 25 years as a result of his jury conviction of second degree murder. Scott argues that the circuit court erred: (1) in allowing the medical examiner to state that the victim died by homicide; and (2) by admitting evidence in violation of West Virginia Rules of Evidence Rule 404(b). Scott also argues that the evidence presented below was insufficient to establish second degree murder.1 Based upon our review of the record, the parties' arguments, and all matters submitted before this Court, we find that no error was committed by the court, and therefore, we affirm.
On the night of October 18, 1997, Scott drank alcohol beverages with his neighbor Clarence Cassidy ("Cassidy"). Scott returned home and continued to drink. The next morning Scott experienced a "hangover;" nevertheless, he decided to go squirrel hunting at approximately 7:00 a.m. Scott testified that he walked up a path behind the trailer in which he resided, up to a ridge. Scott further testified that he decided to return to his trailer when he could not find any squirrels.
According to Scott, as he was returning to his trailer he saw "glimpses of red," which Scott testified he believed to be a squirrel foraging for nuts. From approximately 50 yards away from what he believed to be a squirrel, Scott fired a .22 caliber weapon. Unfortunately, what Scott saw was not a squirrel. It was 16-year-old Brandon Rosenberger whom he shot in the head, and who died within moments of being shot.
Scott approached Rosenberger and checked his pulse, which quickly faded. Scott returned to his residence and hid his.22 caliber weapon under his trailer. Scott then returned to Cassidy's residence where he reportedly drank to intoxication.
Sometime later, two young boys discovered the body of Brandon Rosenberger and quickly informed one of the boys' father, LeRoy Wheeler. Mr. Wheeler, with his son, drove to the scene, and Mr. Wheeler checked Brandon Rosenberger for a pulse. He found none. While examining the victim, Mr. Wheeler heard two gunshots fired in his direction. The Wheelers quickly returned to their vehicle and reported the incident to the police.
Cassidy testified that he woke on the afternoon of October 19, 1997, to the sound of a gun being fired twice. After hearing the gunshots, Cassidy went to his porch where he found Scott standing, having just fired a 9mm handgun.
When the police arrived at the scene they found Brandon Rosenberger lying in the woods dead, with blood around his face, wearing jeans and a blue pullover.
The police then went to the Cassidy home where they were informed of the gunshots that Cassidy had heard, and were told that Scott had been there with a gun. The police next went to the home of Scott where they found Scott intoxicated. In Scott's trailer the police found a 9mm handgun behind the front door. They did not, at this time, find the .22 caliber weapon.
After being advised of his rights, Scott voluntarily went with a state trooper to the Morgantown state police detachment. While being transported, Scott denied firing a weapon that day. During an interview at the detachment, Scott changed his story and admitted that he fired shots from his 9mm handgun, but he denied owning a .22 caliber weapon. Scott also stated that he had heard gunshots and, after hearing the shots, he had investigated the area near his trailer and located the body of Brandon Rosenberger. Scott stated that he thought that Rosenberger was unconscious and left him alone.
On October 21, 1997, Scott changed his story, reporting to the police that he had owned a .22 caliber weapon, but had sold it 3 weeks prior to the shooting of Rosenberger. After Scott was informed that the police had evidence indicating that Scott had a .22 caliber weapon in his possession only 1 week prior to the death of Rosenberger, Scott again changed his story, admitting that he had the weapon before the shooting but had recently sold it.
Shortly thereafter, a search was conducted of the crime scene and the surrounding area. A .22 caliber weapon was located under Scott's trailer. On October 23, 1997, after the discovery of the weapon, Scott confessed to the shooting—now claiming it was a hunting accident.
Scott was subsequently charged with first degree murder and, following a trial by jury, was found guilty of second degree murder. This appeal followed.
The first issue on appeal is whether the trial court properly allowed the state medical examiner, Dr. Frost, to testify that Rosenberger's "manner of death"2 was a "homicide." Scott argues that by using the word "homicide," the testimony of Dr. Frost was an opinion on an ultimate issue at trial— whether the death of Brandon Rosenberger was due to an accident or due to murder.
Dr. Frost's testimony was not objected to during the course of the trial. However, Scott argues that although the testimony of Dr. Frost was not objected to, his testimony constitutes plain error that requires the conviction to be overturned.
We have held that "[t]o trigger application of the `plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syllabus Point 7, State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995). We have further explained this doctrine and held that:
An unpreserved error is deemed plain and affects substantial rights only if the reviewing court finds the lower court skewed the fundamental fairness or basic integrity of the proceedings in some major respect. In clear terms, the plain error rule should be exercised only to avoid a miscarriage of justice. The discretionary authority of this Court invoked by lesser errors should be exercised sparingly and should be reserved for the correction of those few errors that seriously affect the fairness, integrity, or public reputation of the judicial proceedings.
Syllabus Point 7, State v. LaRock, 196 W.Va. 294, 470 S.E.2d 613 (1996).
In a plain error analysis, we first must determine whether the testimony of Dr. Frost, standing alone, would constitute error if admitted into evidence. Dr. Frost testified in relevant part, as follows:
A. The cause of death is the injury or the disease process that causes someone's death. The manner of death is an opinion that deals with the circumstances under which death occurs. We have five manners of death; natural, accident, suicide, homicide and when you can't for all the investigation and all your determinations conclude whether it's one of the previous four, you use the category of undetermined. Which in most, many medical examiner coroners' offices is perhaps one or two percent of all your cases.
Scott contends that Dr. Frost's testimony was error in that it improperly invaded the province of the jury in that the testimony was on the ultimate issue, and was not sufficiently probative so as to assist the trier of fact to understand the evidence and determine a fact at issue. Scott contends that Dr. Frost's testimony basically instructed the jury on what conclusion to reach. Scott relies on State v. Clark, 171 W.Va. 74, 297 S.E.2d 849 (1982), for the proposition that a state medical examiner may not testify that "homicide" was the manner of death in a case where the defendant's state of mind is at issue.3
We note that Clark was decided prior to our 1985 adoption of Rule 704 of the West Virginia Rules of Evidence. Rule 704 provides that "testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Additionally, this Court stated in State v. Smith, 178 W.Va. 104, 358 S.E.2d 188 (1987), that with...
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