State v. Zuccaro, 15-0976

• Court: Supreme Court of West Virginia
• Writing for the Court: LOUGHRY, Chief Justice
• Citation: 799 S.E.2d 559
• Parties: STATE of West Virginia, Plaintiff Below, Respondent, v. Rocco ZUCCARO, Defendant Below, Petitioner.
• Docket Number: No. 15-0976,15-0976
• Decision Date: 26 April 2017

799 S.E.2d 559

STATE of West Virginia, Plaintiff Below, Respondent,
v.
Rocco ZUCCARO, Defendant Below, Petitioner.

No. 15-0976

Supreme Court of Appeals of West Virginia.

Submitted: April 4, 2017
Filed: April 26, 2017

Matthew D. Brummond, Esq., Charleston, West Virginia, Counsel for Petitioner

Patrick Morrisey, Esq., Attorney General, Zachary Aaron Viglianco, Esq., Assistant Attorney General, Charleston, West Virginia, Counsel for Respondent

LOUGHRY, Chief Justice:

The petitioner, Rocco Zuccaro, appeals the September 11, 2015, order of the Circuit Court of Brooke County sentencing him to life in prison without the possibility of parole for his conviction of first degree murder. On appeal to this Court, the petitioner contends he is entitled to a new trial because the circuit court committed reversible error by denying his motion for a change of venue and by excluding alleged evidence of the victim's prior bad acts. In the alternative, the petitioner asserts that the State's evidence was insufficient to prove premeditation and this Court should reduce his conviction to second degree murder. The State of West Virginia responds that there was no error. After carefully reviewing the parties' written and oral arguments, the record on appeal, and the applicable law, we affirm the conviction.

I. Factual and Procedural Background

On the afternoon of February 19, 2013, Dolly Pratz went to the home of her adult son, Jason Pratz, in McKinleyville, Brooke County. After using a key to enter through the locked back door, she found her son dead and lying in a pool of blood. Police and forensics experts would later determine that Jason had been killed by three gunshots inflicted with a .45 caliber Glock handgun. There were droplets of blood in a hallway and continuing to the back of the home where the body was discovered, suggesting

799 S.E.2d 565

that the victim had attempted to flee from the shooter. The front door was partly ajar, and there were no signs of forced entry or a struggle. Several valuable items were left in the home, indicating that the perpetrator had not been there to commit a burglary.

Through their investigation, the police concluded that the shooting occurred sometime between 5:10 p.m. and 6:30 p.m. on February 18th, which was the evening before the body was discovered. Mrs. Pratz, who lived next door to Jason, last saw him at around 5:10 p.m. on February 18. She had called Jason on his cellular telephone at 4:55 p.m. and they spoke on the telephone as he walked to her house to carry in firewood. Jason stayed at his mother's home approximately ten minutes, then went to his own home to change clothes for a committee meeting he planned to attend at 6:30 p.m. that evening. The meeting was scheduled to plan the "Brooke Hills Spook House," a local haunted house attraction to be held in the fall. Jason was actively involved with the haunted house event and told both his mother and George Barchiesi Jr., the haunted house's co-director, that he was going to attend the meeting that evening. When Jason failed to appear at the meeting, Pamela Barchiesi, also a co-director of the haunted house, sent him a text message at 6:30 p.m. She testified that he did not respond to this text. Later that evening, George Barchiesi called Jason's cellular telephone three times but received no answer. Mrs. Pratz testified that when Jason left her home, he was wearing a blue sweatshirt. When his body was found, Jason was wearing a black "Brooke Hills Spook House" t-shirt and his cellular telephone was lying nearby.

The petitioner and the victim were acquainted, and the police investigation revealed that a man matching the petitioner's description was in the victim's neighborhood during the relevant time frame. Video surveillance footage taken by a neighbor's home security system showed a man walking up the hill toward Jason Pratz's home at 5:17 p.m. on February 18th. The man was wearing a backpack, dark pants, a white shirt, and an orange ski cap/toboggan. The video surveillance also showed the same man ten minutes later, running back down the hill with the backpack in his hand. The victim's neighbors, Aaron and Brianna McConnell, testified they saw a man wearing these clothes run down the hill to a silver Subaru car and then drive off at a high rate of speed. Mr. McConnell described the silver Subaru as having a black stripe down the side.

The petitioner's neighbor, Amy Lemmon, saw the petitioner wearing a backpack, dark pants, a white shirt, and an orange toboggan on February 18th, and the petitioner's cousin testified the petitioner "always" wore orange toboggans. On February 21st, the police stopped the petitioner while he was driving a silver Subaru with a black stripe matching the description given by Mr. McConnell. A backpack, which contained a white shirt and orange toboggan, was found in the car. Both the clothing in the backpack and the vehicle's steering wheel tested positive for gunshot residue.

When interviewed by police on February 21st, the petitioner denied that he had been in West Virginia on February 18th; rather, he claimed to have been in a particular Starbucks' coffee shop in Pittsburgh, Pennsylvania, the entirety of that afternoon and evening. Based on security camera footage the police later obtained from the Starbucks, the petitioner's alibi was disproven. During the police interview, the petitioner initially denied owning a gun. Later, however, he told police that while he had owned a .45 caliber Glock pistol, it was stolen from him.¹ His story about the theft was contradicted by two witnesses to whom the petitioner showed his Glock pistol on February 15th—just three days before Jason Pratz was killed. One of these witnesses, the petitioner's friend Shauna-Lea Leger, testified she observed the petitioner place the handgun in the backpack that he always carried with him. Further, the petitioner's father saw the petitioner with a gun on February 21st, which was after the

799 S.E.2d 566

victim's death.² In addition, Ms. Leger went to the petitioner's house on the evening of February 18th, but his car was not parked outside and she saw no signs of him when she entered the home.³

At trial, the petitioner's counsel sought to show that no gunshots were fired during the time frame on February 18th when the man with the backpack was seen on the victim's street.⁴ None of the neighbors reported hearing gunshots that evening, including Mrs. Pratz who lived next door. One neighbor, Kathy Stewart, reported hearing three gunshots, but it was her recollection that the shots occurred between 1:00 p.m. and 3:00 p.m. on either February 17th or 18th.⁵ At trial, the petitioner presented the testimony of an acoustics expert, Julie Wiebusch, who inspected the construction of homes in the area, took measurements with acoustic equipment, and used a mathematical model to estimate sound levels from various points in the neighborhood. In Ms. Wiebusch's opinion, if someone had fired a .45 caliber Glock on February 18th at around 5:18 to 5:27 p.m., people in the neighborhood would have heard it.

The State presented evidence from police officers who conducted a bullet trap test inside the victim's home. One officer fired a gun multiple times into a barrel placed inside the victim's home, while the other officer went to various locations in the neighborhood to determine whether he could hear the gunfire. The officers determined that gunshots could not be heard from inside two area homes when the front doors of those homes, and the front door of the victim's home, were closed. Similarly, Mrs. Pratz, who was inside her own home next door, with her doors and windows closed, did not hear any shots fired during the bullet trap test. According to Mrs. Pratz's recollection, the windows in Jason's home were shut on the day of the February murder.

The Brooke County Grand Jury indicted the petitioner for first degree murder⁶ in April 2013. His trial was delayed, however, due to mental health issues which caused the petitioner to be deemed incompetent, but restorable, to stand trial. He was temporarily committed to Sharpe Hospital, a psychiatric facility. On March 23, 2015, the petitioner escaped from Sharpe Hospital by scaling a twenty-foot wall and running away. After conducting a multi-county search, law enforcement officials apprehended him. Subsequently, after receiving treatment, the petitioner was deemed competent and a jury trial was scheduled for July 2015.

Before trial, the petitioner filed a motion for a change of venue due to publicity surrounding the homicide, his escape from Sharpe Hospital, and the prosecution's pre-trial motion asking that extra security measures be taken at trial. The circuit court held a hearing and considered evidence that the petitioner claimed was proof of a hostile environment throughout Brooke County, including news and social media items, but deferred its ruling on venue until jury voir dire could be conducted. Subsequently, after prospective jurors completed lengthy questionnaires about themselves and their knowledge of the case, the petitioner submitted additional evidence and argument to the trial court in support of his motion for a change of venue. Ultimately, after conducting jury voir dire, the circuit court allowed the trial to remain in Brooke County. Although some of the jurors had previously heard about the case, they, and all of the other jurors who served,

799 S.E.2d 567

indicated they could fairly judge the matter upon the evidence presented.

Included in the petitioner's pre-trial filings was a notice of intent to use Rule 404(b)⁷ evidence concerning alleged prior bad acts of the victim. The petitioner indicated his intention to assert at trial that an unknown third party was the killer. To further that argument, he sought to offer evidence that the victim sold drugs and firearms that could have exposed him to dangerous people who might have killed him. The State filed a motion in limine to preclude the...