### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

State of West Virginia, 

### FILED Plaintiff Below, Respondent 

### May 11, 2018

EDYTHE NASH GAISER, CLERK vs) No. 17-0101 (Berkeley County 07-F-58)
SUPREME COURT OF APPEALS

OF WEST VIRGINIA Stephen R. Fielder, Defendant Below, Petitioner



### MEMORANDUM DECISION

Petitioner Stephen R. Fielder, by counsel B. Craig Manford, a ppeals his conviction in the Circuit Court of Berkeley Count y for murder in the first degr ee. Respondent State of West Virginia, by counsel Robert L. Hogan, filed a response.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal arguments are adequately presented, and the deci sional process would not be significantly aided by oral argument. Upon considerat ion of the standard of review, the Court finds no substantial question of law and no prejudicia l error. For these reasons, a memorandum decision affirming

the circuit court’s order is a ppropriate under Rule 21 of the Rules of Appellate Procedure.

On August 20, 2006, two red American Tour ister suitcases were found partially submerged in Back Creek in Berkeley County. The larger of the two suitcases was riddled with puncture holes and contained a dismembered hu man torso. The smaller suitcase contained a human head and arms, along with two “Gold’s Gym” free weights. Three weeks later, a third

American Tourister suitcase was discovered in B ack Creek; it also contai ned free weights, as well as human legs and feet. The police photogr aphed the suitcases and their contents. An autopsy conducted by the State Medical Examine r’s office revealed that all of the body parts belonged to the same person. The police traced the American Tourister luggage to Walmart, which exclusively sold that part icular type of luggage. Walmart also sold the Gold’s Gym free weights found in two of the suitcases. The police’ s search of receipts from Walmart revealed only one recent purchase of both the American Tourister l uggage and the Gold’s Gym free weights; that purchase was ma de on August 14, 2006. The police obtained the video footage of the purchase and recognized the purchase r as petitioner, a local attorney.

The police learned that petitioner had three ex -wives. They located the first and third exwives, but could not locate the second ex-wife, Debra Fielder. Petitioner married Debra Fielder (“Ms. Fielder”) in 1993, but the couple divorced in 2002. Followi ng the divorce, Ms. Fielder led a transient lifestyle, but would turn up at pe titioner’s home from time to time. The police

obtained dental records for Ms. Fi elder that were a match for th e teeth in the severed head.

On September 7, 2006, the police questioned peti tioner about Ms. Fielde r; petitioner told police that she had been at his home that summer , but had left and gone to North Carolina. The

1police covertly recorded the interview. Immediately thereafter, the police executed a search warrant on petitioner’s home. There, they found a small am ount of blood sp latter in the basement that was later identified as belonging to Ms. Fielder. The police also found petitioner’s pet prairie dog in a cage. Thereafter, petitioner was indicted for the first-degree murder of Ms. Fielder (h ereinafter, the “victim”). It was late r determined that the victim died sometime on or around August 11, 2006.

Pretrial, petitioner challenge d the admission of the photographs of the suitcases and their contents, and those taken duri ng autopsy on the ground that they were “gruesome.” Petitioner offered to stipulate at trial that the remains were those of the victim . Further, petitioner’s counsel pledged he would not cr oss-examine the State’s witnesse s on the identif ication of the

remains. The State countered that it was enti tled to show how the victim’s body parts were discovered and how they appeared at that time. The circuit court found that the State intended to use the photographs for purposes of identificatio n and for the manner of death and, therefore, denied petitioner’s motion in limine. The circu it court also found that “gruesomeness is not what it used to be. Public people are just more inured to thi ngs, movies and otherwise, more cynical and more or less shocked.” Finally, the State agreed not to elicit the fact that petitioner had practiced law for a three-year period withou t a law license. Specifically, the State agreed that the “door would not be opened” absent a diminished capacity defense. 1

At petitioner’s trial, the State called nine teen witnesses, including the following:

Dr. Nabila Haikal, the First Deputy Chief Medi cal Examiner at the West Virginia Office of the Chief Medical Examiner, testified that, to a reasonable degree of scientific certainty, the cause of the victim’s death was from assaultive injuries, including sharp and blunt force trauma; and the manner of death was homicide. During the victim’s autopsy, Dr. Haikal found stab wounds, cuts, and incised wounds, as well as sign s of blunt force trauma, including bruising on the victim’s forehead and thighs, and multiple broken ribs. Dr. Haikal noted that the anterior of the victim’s neck was missing and, therefore, she was unable to determine if the victim had been strangled. Dr. Haikal admitted she had difficulty determining which of the stab wounds in the victim’s torso were inflicted pre-mortem and wh ich were inflicted post-mortem when petitioner

stabbed the suitcase that contained the torso in an apparent effort to get the suitcase to sink. Dr. Haikal testified that pre-mortem stab wounds are identified by the pres ence of blood in tissues along the track of the w ound; however, when a body is imme rsed in water for a significant period, as occurred here, blood may leach out making it difficult to make a definitive

determination as to whether a wound was inflicte d pre- or post-mortem. Dr. Haikal emphasized that many of the stab wounds appeared to have been made post-mortem, but at least two stab wounds were made “very clearly before death,” and several others were probably pre-mortem. Dr. Haikal stated that one of two clearly pre-mo rtem stab wounds went into the victim’s lung;

the other went into her abdomen. The first of th ese two pre-mortem stab wounds was five and a half inches deep and on the front of the torso; the second was seven inch es deep and on the back

1 The West Virginia State Bar suspended petitioner’s West Virginia law license in 2003 for failure to comply with mandatory cont inuing legal education reporting; petitioner’s Maryland law license be came inactive in 2001.

2of the torso. Dr. Haikal further testified that it woul d have been difficult to match the wounds in the victim’s torso to the puncture holes on th e suitcase that contained the torso, but her

recollection was that there were fewer stab holes in the suitcase than there were stab wounds on the victim’s torso. Finally, Dr. Haikal testified that an animal likely caused the postmortem injury found on the victim’s left ear.

On cross-examination, Dr. Haikal admitted that some of the bruising on the victim’s body could be consistent with acc idental injury, and that she di d not list the number of stab wounds in the suitcase in her repor t. Petitioner’s counsel then asked, “Is it s till your opinion to a reasonable degree of medical certainty that [one of the wounds] was pre-mortem?” Dr. Haikal replied “more likely pre-mortem than post-mortem.”

John Carson, D.D.S., West Virg inia’s Chief Dental Examiner, testified that he identified the victim through her dental record s. He also testified that an injury found on the victim’s left ear was, more likely than not, caused by petitioner’s prairie dog. 2

Petitioner’s first ex-wife testified that her marriage with petitioner as “fairly rocky -- pretty rough times.” She claimed that, circa 1974, petitioner slapped her and knocked her to the ground and that he attempted to punch her. She also said that petitioner grabbed her hand or arm and squeezed it very hard, leaving a bruise. Petit ioner’s third ex-wife testified that she was married to petitioner from 2003 to 2006 and that petitioner was never threatening or violent towards her. She also testified that petitioner suffered two strokes in 2003, which left him with physical limitations and problem s with mental processing.

Linda Johnson testified that she met petiti oner in 1999 and assisted him with various business affairs. She also testified that petitioner wrote her a letter in January of 2007, following his incarceration on the first-degree murder charge . In petitioner’s letter, which the State entered into evidence at trial, he admitted to striking th e victim and that she “was killed in the act of stealing from [petitioner],” as follows:

[The victim] and at least [her boyfrie nd] but others too decided to put me out of the house with a temporary family pr otective order, and then in the week to ten days it would take to have a hearing for me to get back into the house, clean me out and take everything of value.

[The victim’s] goal was to provoke an argument and then have [her boyfriend] and others perhaps put me out of the house while police were called and evidence of abuse staged. Meth affects your judgment and gives you a continuing sense of power and control or so I am told. I do not think that [the vi ctim] thought for an instant that I would resist in anyway, certainly she never imagined that I would actually strike her. In all of the

2 At a pretrial hearing, petitioner objected to the evidence that petitioner’s prairie dog likely inflicted an injury on the victim’s ear pos tmortem. The State argued that it needed the

evidence to show that the vic tim’s corpse had been in petitioner’s home. The circuit court overruled petitioner’s objection.

3troubles we had over the year s I had always restrained myself and avoided any type of violence.

[The victim] was killed in the act of stealing from me and people who were trusting in me. The result was perhap s harsher than it might have been if I had time to reflect upon it, or if I had control of my em otions, or if I had been unimpaired by my strokes. But the reality of things is that I was being robbed and I defended myself.

Petitioner called five witne sses during his case-in-chief, including the following:

Two character witnesses claimed they had ne ver known petitioner to be violent. One of

the character witnesses testified that she last saw the victim in July of 2006 and that she had the impression the victim was doing heavy drugs.

Petitioner testified as follows: The victim was his second ex-wife. They met and married in 1993. During the couple’s marriage, the victim worked in his law office and learned about domestic violence petitions. They divorced in 2002 when petitioner learned the victim had spent all of the family’s money and his law office’s es crow account, allegedly to support her drinking and gambling habits. The couple had periodic co ntact following their divorce and, occasionally, petitioner would let the victim st ay with him or give her money. He had two strokes in 2003 that limited his law practice to eight to ten simple bankruptcy petitions a month. The victim did not have her own residence and occasionally listed petitioner’s address as her own. On the day of her death, the victim had been staying with petiti oner, but he told her she had to leave that day. The victim’s death was an accident; she fell as she tried to lock petitioner out of his house. Specifically, as he attempted to block the victim from locking him out, he accidentally struck

her on her shoulder and head with his partially disabled arm. As a result, the victim lost her

balance and fell down several basement stairs. Sh e landed head first on a concrete pad and died

soon after. He was in shock when the victim died and thought no one would believe it was an accident. He did not call the police because he be lieved that if the police arrested him, his bankruptcy clients would be out in the cold with no one to re present them. He resolved not to do

that to his clients. Because he was physically unable to move the victim’s body, he pulled it down the remaining basement stairs and dismem bered it. He intended to bury the body parts at Sleepy Creek State Park, but had car trouble. Ther efore, he placed the su itcases in Back Creek instead. When the largest suitcase would not sink, he used a three and a half to four inch-long pocketknife to puncture holes in the suitcase so it would fill with water and sink. Petitioner

claimed that all the stab w ounds on the victim’s body were t hus inflicted post-mortem.

On cross-examination, petitioner admitted he lied to the police during the September 7, 2006, interview when he told them that the victim had left for North Carolina weeks before. He also admitted that the victim’s boyfriend called him within minutes after the victim fell down the stairs, but he did not tell the boyfriend that the victim fell or needed an ambulance because she was already dead. The State then asked peti tioner if he was concer ned about his clients “when [he] didn’t have a license to practice anymore?” Petitioner’ s counsel objected and moved for a mistrial on the ground that the State agreed pr etrial not to raise the issue that petitioner had been practicing law without a license. The St ate argued petitioner’s counsel opened the door

4when petitioner said he did not call the police after the victim fell because he did not want to

abandon his clients. The State furt her argued that the question we nt to petitioner’s credibility, i.e., that he had not told his cl ients that he was practicing law without a law license. The circuit court ruled that petitioner opened the door and denied the motion for a mistrial. Petitioner then admitted that the State had suspended his law license because he had not complied with his mandatory continuing legal education reporting. He also admitted he did not tell his clients he was practicing law without a license. Petitioner fu rther admitted that, in his letter to Linda Johnson, he did not say that the victim accidentally fell down the basement steps. Finally, petitioner admitted he did not call an ambulan ce when the victim fell down the steps, he dismembered the victim a day or two after she died, he cleaned up hi s basement to avoid detection, and he disposed of the hack saw he used to cut up the victim’s body.

Petitioner then called Dr. Bernard Lewis, a forensic psychologist, who testified that petitioner’s stroke caused a decline in his inte llectual functioning, a lo ss of memory, and made him prone to making poor judgments. Dr. Lewis also said that testing showed petitioner was a “helper” type and that he did not have a violent personality.

Following a five-day trial, the jury found peti tioner guilty of the first-degree murder of the victim and did not recommend mercy. By order entered December 18, 2007, the circuit court denied petitioner’s post-trial motions and se ntenced him to life without the possibility of parole. The circuit court rese ntenced petitioner on January 3, 2017, to allow this appeal.

On appeal, petitioner raises seven assignments of error, most of which attack the circuit court’s evidentiary rulings at trial. “A trial court’s evidentiary rulings, as well as its application of the Rules of Evidence, are subj ect to review under an abuse of discretion standard.” Syl. Pt. 4,

State v. Rodoussakis , 204 W.Va. 58, 511 S.E.2d 469 (1998). Fo r example, in petitioner’s first assignment of error, he argues that the circuit court abused its discretion in allowing John Carson, West Virginia’s Chief Dental Examiner, to testify that an inju ry found on the victim’s ear was, more likely than not, a bite wound caused by petitioner’s prairie dog. Petitioner claims

this evidence was not relevant under Rule 401 of the West Virginia Rules of Evidence because it was not probative of the victim’s identity, wh ich the police establishe d through her dental

records. Petitioner admits the prairie dog evidence may have had some slight probative value with regard to impeaching his statement to poli ce during which he said the victim had gone to North Carolina; however, he argues that there was far superior probative evidence, such as the blood splatter that contained the vi ctim’s DNA in his basement. Petit ioner also claims the prairie dog evidence was prejudicial under Rule 403 of the West Virginia Rules of Evidence because it was unnecessary to the State’s case -in-chief. Finally, petitioner ar gues that the State entered the prairie dog evidence simply to enrage the jury.

We disagree and find the circuit court did not abuse its discretion in denying petitioner’s motion to preclude the prairie dog evidence becaus e that evidence was relevant for the purposes of establishing venue and jurisdiction. See Syl. Pt. 5, State v. Burton , 163 W.Va. 40, 254 S.E.2d 129 (1979) (The state must prove venue of the crime by a pre ponderance of the evidence.) Moreover, “[t]he judge and jury share responsibili ty for the ultimate determ ination of territorial jurisdiction in a criminal case i nvolving controverted jurisdictiona l facts.” Syl. Pt, 4, in part,

State v. Dennis , 216 W.Va. 331, 607 S.E.2d 437 (2004). Here , the State faced a challenge in

5finding evidence of the murder in petitioner’s home given that si gnificant time elapsed between the murder and the search of the home, and the fact that petitioner had cleaned up the scene, including painting his basement and burning evidence. Further, because the victim spent considerable time in petitioner’s home, the small amount of blood sp latter found in the basement

that contained the victim’s D NA could have been explained aw ay as resulting from a prior injury. Therefore, the prairie dog evidence was plai nly relevant to establishing that the murder occurred in petitioner’s home. Accordingly, we find no error.

Petitioner next argues that the circuit cour t erred in allowing the State to admit into evidence at trial photographs taken during the victim’s autopsy. Petitioner claims the photographs were graphic, gruesome, and unnecessary to the State’s case-in-chief given that the State presented dental, forensic , and anthropological evidence to prove the victim’s identity. Petitioner also claims the autopsy photographs did not aid the testimony of the Medical

Examiner.

We first note that petitioner objected ge nerally to the introduc tion of the autopsy photographs prior to and at trial. Likewise, on ap peal, petitioner does not address any particular photograph by exhibit number and, instead, makes the generali zed objection that the trial photographs were “graphic, gruesome, and unnecessary.” 3 “The general rule is that pictures or photographs that are relevant to an y issue in a case are admissible.” Roberts v. Stevens Clinic Hosp., Inc. , 176 W.Va. 492, 497, 345 S.E.2d 791, 796 (1986). Here, although the photos admitted at petitioner’s trial were graphic, they we re relevant because the State’s forensic experts used them to explain how the victim was iden tified and the cause and manner of her death. Further, petitioner fails to demonstrate that the probative value of any one photograph was substantially outweighed by th e risk of unfair prejudice. See Rule 403 of the West Virginia Rules of Evidence. Thus, we find the circuit court did no t abuse its discretion in allowing the admission of the photographs at trial.

Petitioner’s third assignment of error is that the circuit court erred in precluding petitioner from entering into evidence at trial the recording of the police interview of the victim’s boyfriend, Paul Bronner. 4 After Mr. Bronner gave this statem ent, he left the State of West Virginia and, apparently, did not return. Pretrial, petiti oner sought leave from the circuit court to

admit Mr. Bronner’s recorded stat ement into evidence at trial under West Virginia Rules of

3 Petitioner initially supplied the Court with a disc containing 123 images that did not contain any reference to a tria l exhibit number. However, on July 19, 2017, the Court granted petitioner’s motion to file a supplemental appendix record that included 11 of the 123 photographic exhibits entered at trial; each of these photographs, take n during the victim’s autopsy, contained an exhibit number. Specificall y, the photographs show various views of the victim’s head, torso, shoulder, arms, finge rs, and legs, and the injuries thereto.

4 Petitioner did not include a transcript of Mr . Bronner’s statement to the police with his initial appendix record. Howe ver, as noted above, on July 19, 2017, the Court granted petitioner’s motion to file a supp lemental appendix record that contains a transcript of Mr. Bronner’s statement to the police.

6Evidence 803(24) and 804(5)(b)(S) (the residual evidence rule now found at Rule of Evidence 807). Petitioner summarized the content of Mr . Bronner’s statement as demonstrating that,

[Mr. Bronner] had known the Petitioner and [the victim] for 7 to 8 years and had spent a considerable amount of time with [t he victim]; that he was aware of [the victim’s] illegal drug (methamphetaruine) use and that she was an alcoholic (Bronner was a recovering alcoholic himself) ; that [the victim] was homeless, had no job or money (Bronner could have also confirmed at trial [the victim] would often sleep in her car, at hi s house or with strangers she met in bars); that [the victim] had no fixed address so the Pe titioner allowed her to use his mailing address to renew her driver’s license; that on the night of [the victim’s] disappearance he had phoned the Petitioner to see how he and [the victim] were doing and to inquire if [the victim] had been successful in getting into a drug rehab; that [the victim] was difficult to deal with; that she would not leave Petitioner alone, constantly ask[ed] hi m for money and help; and that the

Petitioner was a man of good character.

The circuit court found the fo llowing with regard to Mr. Bronner’s statement:

[It] appears to be largely comprised of h earsay in that it is [sic] statements and attitudes attributable to [petitioner] on the part of [Mr. Bronner]. It appears to be

some sort of character evidence. Some of it is hearsay upon hearsay. . . . [S]ince [petitioner] has stated already that he plans to testify, it appears that [petitioner] himself would be a witness on these same points.

The State claims that it and the circuit cour t had concerns regarding the applicability of Crawford v. Washington , 541 U.S. 36 (2004) and State v. Mechling , 219 W.Va. 366, 633 S.E.2d 311 (2006), to Mr. Bron ner’s statement.

Petitioner first argues that, because he was attempting to move the admission of the statement, there was no confrontation clause issue and, therefore, neither Crawford , nor Mechling applied. Petitioner claims that the only rele vant factors were those enumerated in Rules 803 and 804 of the West Virginia Rules of Evid ence regarding hearsay, and that Mr. Bronner’s

statement satisfied those rules. Petitioner next argues that Mr. Bronner’s statement was trustworthy and contained evidence of peti tioner’s reputation for good character in the community, which is a hearsay rule exception found in Rule 803(20). Moreover, petitioner asserts he offered to redact those portions of the statement the State fo und to be “self-serving” and “hearsay.” Third, petitioner avers the statemen t would have been offered to prove a material fact—petitioner’s good char acter—which was material to a determination of mercy. Fourth, petitioner claims the statement was more probative on the issue of his good character than any other possible evidence, as Mr. Bronner was a close friend of both petitioner and the victim. Fifth, petitioner argues the admission of the statem ent comported with the general purpose of the Rules of Evidence, i.e., inclusion rather than exclus ion in the interest of justice. Sixth, petitioner contends that the State had adequate notice of Mr. Bronner’s statement. Fi nally, petitioner asserts

that he demonstrated Mr. Bronne r was truly unavailable. Thus, petitioner concludes that the circuit court abused its discretion by not a llowing admission of Mr. Bronner’s statement or

7affording petitioner a continuance to obtain an out-of-state subpoena to secure Mr. Bronner’s appearance at trial.

In Syllabus Point 5 of State v. Smith , 178 W.Va. 104, 358 S.E.2d 188 (1987), the Court

determined the standard of re view for the admission of evidence under the residual exception

rule:

The language of Rule 804(b)(5) of the West Virginia Rules of Evidence and its counterpart in Rule 803(24) requires that five general factors must be met in order for hearsay evidence to be admissible under the rules. First and most important is the trustworthiness of the statement, which must be equivalent to the trustworthiness underlying the specific exceptions to the hearsay rule. Second, the

statement must be offered to prove a material fact. Third, the statement must be shown to be more probative on the issue for which it is offered than any other evidence the proponent can reasonably procure. Fourth, admission of the statement must comport with the general purpose of the rules of evidence and the interest of justice. Fifth, adequate notice of the statement must be afforded the other party to provide th at party a fair opportunity to meet the evidence.

The circuit court’s refusal to admit Mr. Bronne r’s statement was a proper exercise of its discretion because petitioner failed to satisfy Smith by demonstrating the trustworthiness, materiality, and probative value of the statement. With regarding to “trustworthiness,” the circuit court correctly found Mr. Bonner’s statement contained hearsay and was not corroborated by any other witness or by contemporane ous, corroborative evidence.

Here, the jury heard direct testimony from petitioner and ot her witnesses that the victim used drugs, consumed alcohol, and lived a transien t lifestyle. Petitioner al so testified regarding the financial and other aid he provided the victim. Further, petitioner ca lled two fact witnesses

who testified about their interac tions with petitioner and their observations of his character. Thus, it is not evident that Mr. Bronner’s statement was more probative on the issue of petitioner’s character that of these other witnesse s. Finally, some of the State’s witnesses were acquainted with both petitioner and the victim. Therefore, pe titioner could have solicited character testimony from one or more of them on cross-examination. Finally, Mr. Bronner’s statement to the police was not taken under oath or subject to cross-exam ination. Thus, we find

that the circuit court did not a buse its discretion in excluding Mr. Bronner’s statement at trial.

Petitioner’s fourth assignment of error is th at the circuit court prejudiced him and denied

him a fair trial when it allowe d the State to inquire about petitioner’s su spended law license despite the fact that the State agreed pretrial not to make such an inquiry during its case-in-chief. Petitioner argues that the eviden ce regarding his suspended law license was, in effect, Rule 404(b) evidence for which there was no McGinnis 5 hearing. Petitioner also argues that he did not “open the door” regarding his law license merely by testifying that he did not report the victim’s

death because he did not want to be arrested and thereby l eave his clients without legal representation.

5 See Syl. Pt. 2, State v. McGinnis , 193 W.Va. 147, 455 S.E.2d 516 (1994).

8We find petitioner’s arguments to be without merit. Pretrial, the State agreed not to raise petitioner’s lapsed law license du ring its case-in-chief unless pe titioner opened the door, such as through a diminished capacity defense. In accordance with this agreement, the State did not raise petitioner’s lapsed license during its case-in-chief. However, during petitioner’s case-in-chief, he

testified that he hid the victim’s death because he did not want to leave his bankruptcy clients without legal representation. Thereafter, on cros s-examination, the State challenged petitioner’s law practice testimony on credibil ity grounds. Consequently, we fi nd that the circuit court did not err in allowing the State to inquire about petitioner’s lapsed law license because the State did so on cross-examination after petitioner opened th e door. We also reject petitioner’s claim that the evidence regarding his lapsed law li cense was Rule 404(b) evidence without a McGinnis hearing. Here, both parties disc ussed the evidence prior to trial, there was no dispute that petitioner’s law license had lapsed, the evid ence was made relevant by petitioner’s own testimony, and petitioner was allowed to explai n why his law license had lapsed. Thus, the probative value of the State’s cross-examinati on was not substantially outweighed by any danger of unfair prejudice. Hence, we fi nd the circuit court did not abus e its discretion in allowing the State to cross-examine petiti oner in this regard.

Petitioner’s fifth assignment of error is that the circuit court erred in allowing Dr. Haikal to testify beyond the opinions and conclusions c ontained in her autopsy report to petitioner’s prejudice and surprise. Petitioner argues that under Rule 52(b) of the Rules of Criminal Procedure, it was plain error for the circuit court to allow the me dical examiner to testify beyond the opinions and conclusions contained in her aut opsy report. Specifically, petitioner cites to the medical examiner’s testimony that two of the stab wounds on the victim’s body were pre-mortem and that there were more stab wounds on the body than puncture holes to the suitcase. Petitioner claims the testimony surprised him because t hose two findings were not contained in Dr. Haikal’s autopsy report, and that the report prejud iced him because he had not retained an expert to challenge those findings. Petitioner admits hi s counsel did not object to the two new findings, but argues the circuit court had a duty to correct this plain erro r by declaring a mistrial or by directing the jury to disregard this test imony and giving a cautionary instruction.

Because petitioner’s counsel di d not object to the evidence of which petitioner complains, we conduct a plain error an alysis. “To trigger application of the ‘plain error’ doctrine, there must be (1) an error; (2) that is plain; (3) that aff ects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Syl. Pt. 7, State v. Miller

, 194 W.Va. 3, 459 S.E.2d 114 (1995). Here, Dr. Haikal’s report expressly provides that “[s]everal of the stab wounds may have been received postmortem in associ ation with suit case perforation by sharp implement(s).” Thus, it is clear that Dr. Haikal believed that some of the stab wounds occurred prior to the victim’s death. Further, at a pre-trial conference, petitioner’s counsel stated

the he intended at trial to elicit testimony that all of the st abs were made post-mortem. Therefore, petitioner’s counsel was aware that the timing of the wounds would be an issue at trial. Accordingly, petitioner could have retained his own expert to a ddress the issue of the timing of the victim’s wounds, but opted not to do so. Moreover, Dr. Haikal’s report contains a detailed description of the stab wounds , including the number of wounds on the victim’s body and the location of those wounds. Thus, the total numbe r of stab wounds found by Dr. Haikal was available in her report. Similarl y, the suitcase that contained th e victim’s torso was undoubtedly

9available for inspection. Thus, petitioner’s counsel could have counted the number of punctures

in that suitcase as a means of countering the State’s evidence. Th e difference in the number of wounds identified by Dr. Haikal and the number of punctures on the suitcase is a matter of simple arithmetic. Consequently, we find that Dr . Haikal’s testimony regarding the nature and number of stab wounds found on the victim’s body wa s consistent with, and within the scope of, her report. Accordingly, we find that petitioner’ s claim of prejudicial surprise lacks merit and

does not rise to the le vel of plain error.

Petitioner’s sixth assignment of error is that the circuit cour t erred in failing to direct a verdict for petitioner, or in failing to find that th e jury’s verdict was contrary to the evidence.

We have held,

“‘In a criminal case, a verdict of guilt will not be set aside on the ground that it is contrary to the evidence, wh ere the state’s evidence is sufficient to convince impartial minds of the guilt of the defendant beyond a reasonable doubt.

The evidence is to be viewed in the li ght most favorable to the prosecution. To

warrant interference with a verdict of guilt on the ground of insufficiency of evidence, the court must be convinced that the evidence was manifestly inadequate and that consequent injus tice has been done.’ Syllabus Point 1, State v. Starkey , 161 W.Va. 517, 244 S.E.2d 219 (1978).” Syllabus Point 10, State v. Gill

, 187 W.Va. 136, 416 S.E.2d 253 (1992).

Syl. Pt. 13, State v. George W.H. , 190 W. Va. 558, 561–62, 439 S.E.2d 423, 426–27 (1993). Here, viewing the evidence in the light most favora ble to the State, we do not find it manifestly inadequate or having caused an inju stice. In fact, the evidence of petitioner’s guilt at trial on the sole count of first-degree murder was more th an sufficient to support a guilty verdict after the State concluded its case-in-chief. Therefore, we conclude that the circuit court did not err in refusing to direct a verdict for petitioner or in finding that the evidence supported the verdict.

Petitioner’s seventh and final cl aim is that the cumulative error at trial deprived petitioner

of a fair trial. See State v. George W.H. , 190 W.Va. 558, 439 S.E.2d 423 (1993). Having found no error, we reject petitioner’s claim.

Accordingly, for the foregoing reasons, we affirm.

Affirmed.

ISSUED: May 11, 2018

CONCURRED IN BY: Chief Justice Margaret L. Workman

Justice Robin Jean Davis

Justice Men is E. Ketchum Justice Allen H. Loughry II

Justice Elizabeth D. Walker

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