662 S.E.2d 515
Per Curiam:
This is an appeal by Dreu Ferguson, Jr., defendant below (hereinafter “Mr.
Ferguson”), from his criminal conviction for voluntary manslaughter related to the shooting
death of his neighbor, Mr. William Freas (hereinafter “Mr. Freas”). Mr. Ferguson claims that
the Circuit Court of Mason County erred by striking the testimony of Dr. Timothy Saar,
which was offered to establish Mr. Ferguson's defense of diminished capacity. The State
confesses error and does not oppose Mr. Ferguson's request for a new trial. Having
thoroughly reviewed the parties' briefs, the record submitted on appeal, and the relevant law,
we agree. Accordingly, we reverse Mr. Ferguson's conviction and remand this case for a
new trial.
Q: Could it affect his judgement at the time of this crime?
A: Yes and I believe this is because when we talked about
coping skills when Mr. Ferguson is under stress, based on the
testing, both mine and Dr. Smith's, there's a drastic
deterioration to see options. Where we have a stressful
situation[] we see A, B, C, D, he had a tendency to see C.
Hindsight [sic] we think that was a bad choice. At the time it
seemed like the best alternative. Do you want me to go into why
I thought he felt he might have thought it was the best?
Q: Yes.
A.: There was a number of things going on. Mr. Ferguson
was under significant stress at the time this occurred.
Apparently [sic] had been a robbery where some of the stuff was
stolen out of the home, he believed the victim [sic] taken the
stuff and felt that nothing was being done about this. We know
his faith in the police system because of some of his delusions
was minimal at best. He didn't see the police as an option for
help. He also was having some marital difficulty along these
times and so he's sitting there that day of the shooting and sees
the individual across the way, he's under a significant amount of
stress, he's unable to get his property, he feels he doesn't have
the option to call the police to come get the stuff or to help him.
He knows he also can't get in trouble, he can't go out and
confront the individual, cause a fist fight or something along
those lines because he runs the risk of not seeing his children
again or causing him difficulties so his thinking at the time my
belief is I'll present myself with significant force or to avoid
conflict and that's not as unusual as it sounds. Certainly law
enforcement officers when you go to apprehend a criminal tend
to go in mass or discourage the individual for [sic] acting out in
a violent way so at that time Mr. Ferguson grabbed a gun with
the idea of getting the suff back and confronting the individual
and also trying to avoid physical altercation and we know that
that didn't work out because events changed through the course
of time.
He fired a shot over the individual and the individual
continued to come at him and he may have viewed that as a
threat and obviously unfortunately for the individual at that time
he then put the gun down . . . . I don't believe based on this
information that I have . . . that he had the intent to kill this
individual.
I think that he wanted his stuff back and felt the need to
protect his family and confront this individual. Given the fact
the stress level continued to increase and [sic] continued to
engage in more bizarre thinking he felt this was the best option.
We know that obviously was not the case, but his thinking at
this time was this is a way to avoid conflict and deal with this
situation.
Q. Would this affect an intent, a specific intent like intent to
kill?
A. Yeah, I don't think he had any intent to kill. It goes back
to what I talked about, his idea was to go out there he hasn't
seen the police as an option or physical altercation, he felt like
going out there in force to almost kind of scare the person into
admitting where the stuff was or getting the stuff back so yes, I
think his thinking was impaired at the time and that would
drastically affect his intent. I don't think he had the intent to
kill. I think he had intent to go find out what happened to his
stuff.
Q. Does a person with this disorder do reckless things?
A. They can when influenced by the stuff we talked about,
that is delusions of grandeur, which is thinking you have more
skills than you do, paranoid delusions, you may think someone
else is out to get you or if they suffered from mania you tend to
have excessive amount of energy, rapid thought. Combining the
schizo affective with the intense anxiety that the psychological
testing showed, yes, it would impair his judgement at the time
with regards to intent.
(Emphasis added).
No objections were made during or immediately following Dr. Saar's
testimony. After offering the testimony of a few more witnesses, the defense rested. The
following day, during preparation of the jury charge, the State objected to an instruction on
diminished capacity and asked that the testimony of Dr. Saar be stricken based upon its
failure to establish the level of diminished capacity required under West Virginia law “in that
he did not state that the defendant suffered from a mental illness and that mental illness
presented [sic] the defendant from having the capacity to form intent.” The circuit court
granted the State's motion to strike Dr. Saar's testimony. Defense counsel objected and
moved to strike the State's medical experts as their testimony had been offered in rebuttal to
Dr. Saar's testimony. Defense counsel also objected to the timeliness of the State's motion
to strike, and requested that the case be reopened to receive additional clarifying testimony
from Dr. Saar. The circuit court ultimately struck all the psychological testimony, that
offered by the defense as well as that of the State's expert rebuttal witnesses. In addition, the
circuit court effectively denied the motion to reopen the case. The circuit court then
instructed the jury, in relevant part, as follows:
You have heard the testimony of a witness, Janis Blake, who worked at an office with Dr. Timothy Saar, a psychologist. You have heard the testimony of Timothy Saar and certain opinions that he expressed. You have heard the testimony of Dr. Ralph Smith and certain opinions that he has expressed and you heard the testimony of, limited as it was, of Mr. Ferguson's mother, Janet Springstedah, relating to an issue as to whether Dr. Smith had ever seen Mr. Ferguson.
The Court has made a determination that the testimony of Dr. Saar does not rise to the level recognized under our law for him to express opinions relating to his evaluation of Mr. Ferguson. Ms. Blake works at his office and conducted some tests to aid him in his evaluation. Dr. Ralph Smith was called by the State in rebuttal in response to Dr. Saar's testimony and Janet Springstedah was called in what we call surrebuttal in response to an examination of Dr. Ralph Smith.
For the reasons that the opinion expressed by Mr. [sic] Saar does not rise to the level recognized by the West Virginia Supreme Court of Appeals to be permitted to go to the jury for jury consideration, you shall disregard and put out of your mind testimony of Janis Blake, Dr. Timothy Saar, Dr. Ralph Smith and Janet Springstedah. No psychological issues are not [sic] an issue in this case.
Defense counsel then moved for a mistrial. The motion was denied, and the case was
submitted to the jury. The verdict was returned finding Mr. Ferguson guilty of voluntary
manslaughter. Thereafter, by order entered on December 7, 2006, the circuit court denied
Mr. Ferguson's motion for a new trial and sentenced him to a definite term of fifteen years.
Mr. Ferguson petitioned this Court for an appeal of his conviction. We granted the petition.
According to Rule 33 of the West Virginia Rules of Criminal Procedure [(1995)], “[t]he court on motion of a defendant may grant a new trial to [that defendant] if required in the interest of justice.” “The question of whether a new trial should be granted is within the discretion of the trial court and is reviewable only in the case of abuse.” State v. Crouch, 191 W. Va. 272, 275, 445 S.E.2d 213, 216 (1994) (citation omitted).
State v. Helmick, 201 W. Va. 163, 167, 495 S.E.2d 262, 266 (1997) (footnote omitted). However, in determining the propriety of the circuit court's ruling on Mr. Ferguson's motion for a new trial, we are further asked to review the lower court's ruling with respect to the admissibility of expert testimony. Our standard for considering this issue is clear error:
“'The admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong.' Syllabus Point 6, Helmick v. Potomac Edison Co., 185 W. Va. 269, 406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908, 112 S. Ct. 301, 116 L. Ed.2d 244 (1991).” Syllabus point 1, West Virginia Division of Highways v. Butler, 205 W .Va. 146, 516 S.E.2d 769 (1999).
Syl. pt. 1, Watson v. Inco Alloys Int'l, Inc., 209 W. Va. 234, 545 S.E.2d 294 (2001). With
these guidelines in mind, we proceed to address the issues raised in this appeal.
The State observes that all of the assignments of error raised in this appeal stem
from the circuit court's exclusion of the testimony of Dr. Saar. The State agrees that Dr. Saar
did testify that Mr. Ferguson manifested a diminished capacity to form an intent to kill the
victim due to various psychological conditions from which he suffered. The State observes
that Dr. Saar's testimony is similar to that of the expert testimony that was approved by this
Court in State v. Joseph. Thus, the State concedes that the testimony should not have been
stricken. Therefore, the State does not oppose granting Mr. Ferguson a new trial.
While “[w]e commend the State's candor on this issue. . . . [C]onfessions of
error do not automatically entitle a party to a reversal[;] reversal is required when it can be
ascertained that the errors confessed are supported by law.” State v. Berrill, 196 W. Va. 578,
587, 474 S.E.2d 508, 517 (1996) (internal quotations and citations omitted). In other words,
“[t]his Court is not obligated to accept the State's confession of error in a criminal case. We
will do so when, after a proper analysis, we believe error occurred.” Syl. pt. 8, State v.
Julius, 185 W. Va. 422, 408 S.E.2d 1 (1991). See also Syl., State v. Goff, 159 W. Va. 348,
221 S.E.2d 891 (1976) (“In a criminal case where the state confesses error, urges that the
judgment be reversed and that the defendant be granted a new trial, this Court, upon
ascertaining that the errors confessed are reversible and do in fact constitute cause for the
reversal of the judgment of conviction, will reverse the judgment and grant the defendant a
new trial.”). Thus, notwithstanding the State's confession of error, we must nevertheless
give our own consideration to Dr. Saar's testimony in light of our prior holding in State v.
Joseph. We begin with a review of Joseph.
The defendant in Joseph was “charged with first-degree murder . . . [and]
sought to assert the defense of diminished capacity resulting from [a] brain injury sustained
in his motorcycle accident of 1989.” 214 W. Va. 525, 528, 590 S.E.2d 718, 721. In support
of this defense, the defendant sought to offer the expert witness testimony of Dr. Solomon.
214 W. Va. at 532, 590 S.E.2d at 725. The circuit court in Joseph conducted an in camera hearing and thereafter excluded the testimony of Dr. Solomon as failing “to establish that Mr.
Joseph suffered from a diminished capacity.” Id. On appeal, this Court observed that “[a]
review of West Virginia case law reveals that this Court has all but expressly recognized the
use of evidence of a diminished capacity resulting from a mental disease or defect to negate
the mental state of the crime charged.” Id. at 531, 590 S.E.2d at 724. Based upon this
history, and a review of other authorities, the Court held that
[t]he diminished capacity defense is available in West
Virginia to permit a defendant to introduce expert testimony
regarding a mental disease or defect that rendered the defendant
incapable, at the time the crime was committed, of forming a
mental state that is an element of the crime charged. This
defense is asserted ordinarily when the offense charged is a
crime for which there is a lesser included offense. This is so
because the successful use of this defense renders the defendant
not guilty of the particular crime charged, but does not preclude
a conviction for a lesser included offense.
Syl. pt. 3, id.
Applying the newly-announced syllabus point to the testimony of Dr. Solomon, this Court noted, in the context of first-degree murder, that “'[a] defendant who raises a diminished capacity defense . . . challenges his capacity to premeditate and deliberate at the time of the criminal act.'” Joseph at 533, 590 S.E.2d at 726 (quoting Commonwealth v. Brown, 396 Pa. Super. 171, 181-82, 578 A.2d 461, 466 (1990)). The Court then determined that Dr. Solomon's testimony was sufficient to support the defendant's claim of diminished capacity in that
Dr. Solomon's testimony was addressed directly to Mr. Joseph's mental capacity at the time of his criminal offense and Dr. Solomon opined that Mr. Joseph was, due to his mental defect, unable “to formulate intent or malice or to premeditate under these circumstances.” Thus, in the instant case, there plainly was sufficient evidence to allow Dr. Solomon to testify before the jury. Accordingly, the circuit court was clearly wrong in excluding this evidence and prohibiting Mr. Joseph from presenting his defense attacking the State's case in chief.
214 W. Va. at 534, 590 S.E.2d at 727 (footnote omitted). (See footnote 5) Comparing Dr. Solomon's
testimony in Joseph to that of Dr. Saar in the instant case, we believe that Dr. Saar's
testimony, taken as a whole, was adequate to support Mr. Ferguson's challenge to his
capacity to form the intent to kill. (See footnote 6) In his testimony, Dr. Saar plainly expressed his belief that
Mr. Ferguson suffered from a mental condition that impaired his ability to form the intent to
kill at the time he shot Mr. Freas. For example, when asked “[w]ould this [meaning his
schizo affective disorder] affect an intent, a specific intent like intent to kill,” Dr. Saar
responded,
A. Yea, I don't think he had any intent to kill. It goes back
to what I talked about, his idea was to go out there he hasn't
seen the police as an option or physical altercation, he felt like
going out there in force to almost kind of scare the person into
admitting where the stuff was or getting the stuff back so yes, I
think his thinking was impaired at the time and that would
drastically affect his intent. I don't think he had the intent to
kill. I think he had intent to go find out what happened to his
stuff.(Emphasis added). Dr. Saar also stated “I don't believe based on this information that I
have . . . that he had the intent to kill this individual.” Finally, Dr. Saar stated that
“[c]ombining the schizo affective with the intense anxiety that the psychological testing
showed, yes, it would impair his judgement at the time with regards to intent.” As with Dr.
Solomon's testimony in Joseph, Dr. Saar's testimony was “adressed directly” to Mr.
Ferguson's “mental capacity at the time of his criminal offense.” Joseph, 214 W. Va. at 534,
590 S.E.2d at 727. Dr. Saar plainly opined that, due to Mr. Ferguson's schizo affective
disorder in combination with “the intense anxiety that the psychological testing showed,” “his
thinking was impaired at the time and that would drastically affect his intent. I don't think
he had the intent to kill. I think he had [the] intent to go find out what happened to his stuff.”
Accordingly, we find that the circuit court was clearly wrong in striking the testimony of Dr.
Saar, and as a consequence, the circuit court abused it's discretion in failing to grant Mr.
Ferguson a new trial.