State v. Surbaugh
| Decision Date | 13 April 2016 |
| Docket Number | No. 14–0890.,14–0890. |
| Citation | 786 S.E.2d 601,237 W.Va. 242 |
| Parties | STATE of West Virginia, Plaintiff Below, Respondent v. Julia SURBAUGH, Defendant Below, Petitioner. |
| Court | West Virginia Supreme Court |
Christopher G. Moffatt, Esq., Charleston, WV, for Petitioner.
Patrick Morrisey, Esq., Attorney General, Jonathan E. Porter, Esq., Assistant Attorney General, Charleston, WV, for Respondent.
The petitioner herein and defendant below, Julia Surbaugh, appeals the July 14, 2014, amended order of the Circuit Court of Webster County denying her motions for a new trial or for judgment of acquittal subsequent to her jury conviction of murder in the first degree without a recommendation of mercy.1 She asserts multiple assignments of error: the circuit court erred by admitting expert opinion testimony from a deputy medical examiner; the State failed to prove the corpus delicti of murder; the circuit court erred by refusing to dismiss the case based upon the State's destruction of evidence; the State failed to present sufficient evidence to support the conviction; the circuit court erred in instructing the jury and by using an improper verdict form; and the circuit court erred in admitting the petitioner's statements to police.2 After a thorough review of the record on appeal,3 the parties' arguments, and the relevant law, we find no reversible error and affirm.
On the morning of August 6, 2009, while inside the bedroom of his home, the victim Michael Surbaugh was shot three times in the head with a .22 caliber handgun. Two bullets entered and exited through the side of his face. Another bullet entered the other side of his head, fracturing the lateral wall of the maxillary sinus and the zygomatic arch. Bullet fragments were lodged inside the area of his sinus cavity, but none of the bullets penetrated the cranium into the brain. Two of the gunshots were fired from a distance of greater than eighteen inches, while the shot that penetrated his sinus cavity was a near-contact discharge.
At the time of the shooting, Mr. Surbaugh and his wife, the petitioner herein, were home alone.4 The petitioner immediately called 911 to report that her husband had shot himself. She then told authorities that her husband tried to shoot her while they were lying in bed together, they struggled, and the gun accidentally discharged and struck him. Later, the petitioner changed her story again to assert that although her husband tried to shoot her while they were lying in bed together, she got the gun away from him and fired two shots at him in self-defense as he approached her in a threatening manner. As to the third gunshot wound he received, the petitioner claimed her husband took the gun back and fired the third shot at his own head. The petitioner testified that she believes she was screaming during this encounter. However, a neighbor who heard the shootings did not hear any talking, screaming, or sounds of a struggle. The neighbor testified that he clearly heard a gunshot, a groan, a gunshot, a groan, and then, after a little hesitation, another gunshot.5
Although he was bleeding profusely, Mr. Surbaugh was able to walk and talk after being shot. With the assistance of another neighbor who arrived on the scene, Mr. Surbaugh went outside his home and sat in a lawn chair to await an ambulance. Using a cellular telephone, he contacted his extramarital girlfriend to tell her that he would be late for a trip they were planning to take later in the day. When emergency medical personnel arrived, Mr. Surbaugh stated “the bitch shot me,” referencing the petitioner. A short time later at a local hospital, Mr. Surbaugh told medical personnel that he had been sleeping in his bed when he was awakened by a severe pain to his head that felt like a baseball bat hitting his skull. He told a physician's assistant, While at the hospital, in a recorded statement to the investigating police officer, Mr. Surbaugh said he was asleep in bed when he “felt like somebody hit me up beside the head with a baseball bat.” Mr. Surbaugh also said he saw the petitioner with the gun, which he took away from her.
Approximately four and one-half hours after the shooting, while he was being loaded onto a helicopter for emergency transit to a hospital with trauma facilities, Mr. Surbaugh went into cardiac arrest and died. After performing an autopsy, Deputy Medical Examiner Hamada Mahmoud concluded that the cause of death was the three gunshots to the head. Dr. Mahmoud also opined that the specific mechanism that led to the cardiac arrest was possibly an air embolism due to air entering the bloodstream through the damaged sinus cavity. At trial, the petitioner presented her own experts, Dr. Cyril Wecht and Dr. David Henchman, who opined that the cardiac arrest was caused by pulmonary edema resulting from the emergency medical personnel administering too much intravenous fluid while treating Mr. Surbaugh for the gunshot wounds. The petitioner's experts denied there was any evidence of an air embolism.
After her husband's death, the petitioner told a police officer that It is undisputed that the petitioner knew of her husband's extramarital affair, knew that he planned to leave that same day for a trip with his girlfriend, and knew that he was planning to leave the marital home to move in with his girlfriend. The petitioner testified that in the event of a marital separation, she was “terrified” her husband would get unsupervised visitation with their children.6 Moreover, she testified that the night before the shooting, her husband had threatened—for the first time—that he and his girlfriend would take the children away from her. According to the petitioner's testimony, her husband had never before threatened to fight her for custody or unsupervised visitation.
The State asserted at trial that the petitioner committed intentional, premeditated murder. In defense of that charge, the petitioner asserted that she fired two of the gunshots in self-defense and that her husband self-inflicted the third shot. She further asserted that medical negligence was the cause of her husband's death, not the gunshot wounds. At the conclusion of the twelve-day trial held in February and March of 2014, the jury found the petitioner guilty of first degree murder and did not recommend mercy. The petitioner filed a post-trial motion for new trial or judgment of acquittal, which the circuit court denied by amended order entered on July 14, 2014. This appeal followed.
The petitioner appeals the circuit court's order denying her post-trial motions for a new trial or a judgment of acquittal. We apply the following standard when reviewing a circuit court's decision to deny a motion for new trial:
In reviewing challenges to findings and rulings made by a circuit court, we apply a two-pronged deferential standard of review. We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.
Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Furthermore, “[t]he Court applies a de novo standard of review to the denial of a motion for judgment of acquittal based upon the sufficiency of the evidence.” State v. Juntilla, 227 W.Va. 492, 497, 711 S.E.2d 562, 567 (2011) (citing State v. LaRock, 196 W.Va. 294, 304, 470 S.E.2d 613, 623 (1996) ). Where more particularized standards of review apply to specific assignments of error, they are set forth below. With this in mind, we consider whether the petitioner is entitled to the reversal of her conviction.
The petitioner contends that the circuit court erred by denying her motions in limine to prohibit the deputy medical examiner from testifying that Mr. Surbaugh may have suffered an air embolism. Noting that Dr. Mahmoud offered this particular opinion as a possibility, and that this opinion was contradicted by her own experts, she argues it was mere speculation which the trial court should have excluded as unreliable. In response, the State argues that Dr. Mahmoud was a qualified expert and all of his opinions were properly admitted into evidence at trial. The State further asserts that when considering Dr. Mahmoud's use of the word “possible” in context with his entire testimony, it is clear the doctor intended to communicate that an air embolism was “probably” the specific mechanism of death.
Rule 702 of the West Virginia Rules of Evidence permits an expert witness to provide opinion testimony if it will assist the trier of fact.7 Following the United States Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), we held in Wilt v. Buracker, 191 W.Va. 39, 443 S.E.2d 196 (1993), that a trial court has a gatekeeper obligation to screen scientific expert opinions for admissibility. In Wilt, and later in Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995), “we explained that circuit courts must conduct a two-part inquiry under Rule 702 and ask: (1) is the witness [qualified as] an expert; and, if so, (2) is the expert's testimony relevant and reliable?”
San Francisco v. Wendy's Int'l, Inc., 221 W.Va. 734, 741, 656 S.E.2d 485, 492 (2007).8
In this case, we can quickly dispose of the issues of qualification and relevance. The test for determining a witness's qualification to serve as an expert is set forth in Gentry:
In determining who is an expert, a circuit court should conduct a two-step inquiry. First, a circuit court...
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