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State v. Zuccaro

Supreme Court of West Virginia

April 26, 2017

STATE OF WEST VIRGINIA, Plaintiff Below, Respondent,
v.
ROCCO ZUCCARO, Defendant Below, Petitioner.

          Submitted: April 4, 2017

         Appeal from the Circuit Court of Brooke County Honorable Ronald E. Wilson, Judge Criminal Action No. 13-F-24

          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

         SYLLABUS

         1. "'"To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests on the defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused." Point 2, Syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946).' Syllabus Point 1, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978)." Syl. Pt. 1, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994).

         2. "One of the inquiries on a motion for a change of venue should not be whether the community remembered or heard the facts of the case, but whether the jurors had such fixed opinions that they could not judge impartially the guilt or innocence of the defendant." Syl. Pt. 3, State v. Derr, 192 W.Va.165, 451 S.E.2d 731 (1994).

         3. "Where an offer of evidence is made under Rule 404(b) of the West Virginia Rules of Evidence, the trial court, pursuant to Rule 104(a) of the West Virginia Rules of Evidence, is to determine its admissibility. Before admitting the evidence, the trial court should conduct an in camera hearing as stated in State v. Dolin, 176 W.Va. 688, 347 S.E.2d 208 (1986). After hearing the evidence and arguments of counsel, the trial court must be satisfied by a preponderance of the evidence that the acts or conduct occurred and that the defendant committed the acts. If the trial court does not find by a preponderance of the evidence that the acts or conduct was committed or that the defendant was the actor, the evidence should be excluded under Rule 404(b). If a sufficient showing has been made, the trial court must then determine the relevancy of the evidence under Rules 401 and 402 of the West Virginia Rules of Evidence and conduct the balancing required under Rule 403 of the West Virginia Rules of Evidence. If the trial court is then satisfied that the Rule 404(b) evidence is admissible, it should instruct the jury on the limited purpose for which such evidence has been admitted. A limiting instruction should be given at the time the evidence is offered, and we recommend that it be repeated in the trial court's general charge to the jury at the conclusion of the evidence." Syl. Pt. 2, State v. McGinnis, 193 W.Va. 147, 455 S.E.2d 516 (1994).

         4. "Although premeditation and deliberation are not measured by any particular period of time, there must be some period between the formation of the intent to kill and the actual killing, which indicates the killing is by prior calculation and design. This means there must be an opportunity for some reflection on the intention to kill after it is formed." Syl. Pt. 5, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

         5. "In criminal cases where the State seeks a conviction of first degree murder based on premeditation and deliberation, a trial court should instruct the jury that murder in the first degree consists of an intentional, deliberate, and premeditated killing which means that the killing is done after a period of time for prior consideration. The duration of that period cannot be arbitrarily fixed. The time in which to form a deliberate and premeditated design varies as the minds and temperaments of people differ and according to the circumstances in which they may be placed. Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction for first degree murder. To the extent that State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982), is inconsistent with our holding today, it is expressly overruled." Syl. Pt. 6, State v. Guthrie, 194 W.Va. 657, 461 S.E.2d 163 (1995).

          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 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 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 murder[6]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, 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 petitioner from introducing this evidence. After hearing testimony and argument over the course of multiple pre-trial hearings, the circuit court ruled against the admissibility of the alleged evidence.

         At the conclusion of the July 2015 trial, the jury found the petitioner guilty of first degree murder. After hearing evidence in a separate mercy phase of the trial, the jury refused to recommend mercy. Through its September 11, 2015, order, the circuit court sentenced the petitioner to life in prison without the possibility of parole. This appeal followed.

         II. Discussion

         The petitioner raises three assignments of error on appeal. He asserts that the circuit court committed reversible error in denying his motion for a change of venue, and in excluding his proffered bad acts evidence concerning the victim. In the alternative, he argues there was insufficient evidence presented at trial to prove the murder was premeditated. Each of the petitioner's assignments of error requires us to undertake a different analysis and apply a different standard of review. Accordingly, a discussion of each issue, along with the respective standard of review, is set forth below.

         A. Denial of Motion for Change of Venue

         Contending that pre-trial publicity created a hostile environment in Brooke County that poisoned the prospective jury pool against him, the petitioner argues the circuit court erred by denying his motion for a change of the trial venue. The petitioner asserts that, as a result of the Brooke County venue, he was denied a fair trial. "The right to a trial by an impartial, objective jury in a criminal case is a fundamental right guaranteed by the Sixth and Fourteenth Amendments of the United States Constitution and Article III, Section 14 of the West Virginia Constitution." Syl. Pt. 4, in part, State v. Derr, 192 W.Va. 165, 451 S.E.2d 731 (1994) (internal citations omitted). In response, the State maintains that the circuit court correctly denied the motion for change of venue and the petitioner received a fair trial by an impartial jury.

         On appeal, we consider this issue using an abuse of discretion standard. Syl. Pt. 2, State v. Gangwer, 169 W.Va. 177, 286 S.E.2d 389 (1982) ("Whether a change of venue is warranted rests in the sound discretion of the trial court, and its ruling thereon will not be disturbed, unless it clearly appears that such discretion has been abused."); accord Derr, 192 W.Va. at 167, 451 S.E.2d at 733, syl. pt. 1 (recognizing abuse of discretion standard of review for venue rulings). "In making our determination, we consider not only the pretrial showing but also the actual voir dire of the jury to determine whether an abuse of discretion occurred." Id. at 171, 451 S.E.2d at 737 (citation omitted). The petitioner had the burden of showing good cause for a change of venue:

"'To warrant a change of venue in a criminal case, there must be a showing of good cause therefor, the burden of which rests on the defendant, the only person who, in any such case, is entitled to a change of venue. The good cause aforesaid must exist at the time application for a change of venue is made. Whether, on the showing made, a change of venue will be ordered, rests in the sound discretion of the trial court; and its ruling thereon will not be disturbed, unless it clearly appears that the discretion aforesaid has been abused.' Point 2, Syllabus, State v. Wooldridge, 129 W.Va. 448, 40 S.E.2d 899 (1946)." Syllabus Point 1, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978).

Derr, 192 W.Va. at 167, 451 S.E.2d at 733, syl. pt. 1.

         Seeking to support his argument, the petitioner references multiple stories in the media concerning his escape from Sharpe Hospital as well as the prosecution's pre-trial motion seeking additional security measures at trial. In some of the media reports about the petitioner's escape, the Brooke County Sheriff is quoted as saying the petitioner is a "plotting" and "controlling" person. Furthermore, although the prosecutor's motion was styled "State's Motion for Heightened Security at the Trial of the Defendant, " a local newspaper headline characterized the request as "Prosecutor wants shock belt for Zuccaro." In particular, the petitioner relies on unfavorable public comments posted to internet sites, several of which expressed the commentator's belief that the petitioner was guilty.

         Downplaying the media coverage, the State contends that the coverage was not so extensive as to create a county-wide hostile sentiment. The record contains one print news article, three short articles posted on television news websites, and a Facebook post made by a television news station that, according to the State, was shared 314 times. Moreover, there is no indication from the petitioner's evidence that the people who posted comments to the online stories resided in West Virginia, much less in Brooke County, or that any of the jurors were exposed to or authored the negative internet comments.

         The petitioner also points out that answers provided in the juror questionnaires demonstrate that some of the prospective jurors had previously heard about the homicide and/or his escape from Sharpe Hospital. Noting that the circuit court excluded evidence of the escape from the trial, the petitioner argues that if it was too prejudicial for jurors to hear in sworn testimony, then the media coverage could have similarly impacted the jurors in a prejudicial fashion. In a pre-trial letter to the circuit court, the petitioner's counsel asserted that twenty-eight of the fifty-two potential jurors who returned an initial batch of questionnaires either exhibited some form of bias or saw something negative in the media. The petitioner also hired a graduate student who, using information provided by the petitioner's counsel, [8] broadly calculated that "between 36.04% and 71.65% of potential jurors" who completed questionnaires "would be biased against" the petitioner.

         Having reviewed the appendix record, we find no abuse of discretion in the circuit court's venue ruling. The petitioner cites precedent which recognizes that "'"[a] present hostile sentiment against an accused, extending throughout the entire countyin which he is brought to trial, is good cause for removing the case to another county." Point 2, Syllabus, State v. Dandy, 151 W.Va. 547, 153 S.E.2d 507 (1967), quoting Point 1, Syllabus, State v. Siers, 103 W.Va. 30, 136 S.E. 503 (1927).' Syllabus Point 2, State v. Sette, 161 W.Va. 384, 242 S.E.2d 464 (1978)." Derr, 192 W.Va. at 167, 451 S.E.2d at 733, syl. pt. 2. Critically, however, good cause for a change of venue is not present simply because there was publicity about a crime or a criminal defendant, even if prospective jurors saw or heard that publicity. As we have explained, the focus of the inquiry "should not be whether the community remembered or heard the facts of the case, but whether the jurors had such fixed opinions that they could not judge impartially the guilt or innocence of the defendant." Id. at 1675, 451 S.E.2d at 733, syl. pt. 3, in part. Good cause to warrant a change of venue requires a finding that the defendant cannot receive a fair trial in the county where the crime was committed. "Widespread publicity, of itself, does not require change of venue, and neither does proof that prejudice exists against an accused, unless it appears that the prejudice against him is so great that he cannot get a fair trial." Gangwer, 169 W.Va. at 177, 286 S.E.2d at 391, syl. pt. 1.

         The petitioner's argument fails because he wrongly equates the existence of jury bias with exposure to information about the case. The graduate student's extremely broad calculation of the number of potentially "biased" jurors is based on the same mistaken premise. The evidence in the appendix record did not prove that the community, as a whole, had such fixed opinions as to prevent the petitioner from receiving a fair trial. Indeed, after voir dire the trial court was able to seat a jury, and each of those jurors indicated their respective ability to fairly consider the evidence. Furthermore, the petitioner does not assign error regarding the court's decision to allow any particular juror to remain on the panel. For the above reasons, we find no abuse of discretion in the circuit court's decision to hold the trial in Brooke County.

         B. Denial of the Petitioner's Rule 404(b) Motion

         Next, the petitioner argues the circuit court committed reversible error by denying his motion to present evidence of the victim's prior bad acts pursuant to Rule 404(b) of the West Virginia Rules of Evidence. For this assignment of error, the petitioner asks us to interpret the West Virginia Rules of Evidence, which we do pursuant to a plenary standard of review. "An interpretation of the West Virginia Rules of Evidence presents a question of law subject to de novo review." Syl. Pt. 1, Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995). Furthermore, with regard to the circuit court's ruling on the admissibility of the particular proffered evidence, this Court has explained as follows:

"[T]he standard of review for a trial court's admission of evidence pursuant to Rule 404(b) involves a three-step analysis. First, we review for clear error the trial court's factual determination that there is sufficient evidence to show the other acts occurred. Second, we review de novo whether the trial court correctly found the evidence was admissible for a legitimate purpose. Third, we review for an abuse of discretion the trial court's conclusion that the 'other acts' evidence is more probative than prejudicial under Rule 403." State v. Jonathan B., 230 W.Va. 229, 236, 737 S.E.2d 257, 264 (2012) (quoting State v. LaRock, 196 W.Va. 294, 310-11, 470 S.E.2d 613, 629-30 (1996)).

State v. Timothy C., 237 W.Va. 435, 443, 787 S.E.2d 888, 896 (2016). It is also well-established that "[a] trial court's evidentiary rulings, as well as its application of the Rules of Evidence, are subject to review under an abuse of discretion standard." Syl. Pt. 4, State v. ...


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