Chisholm v. State

365 So.3d 229

William Thomas CHISHOLM

v.STATE of Mississippi

NO. 2021-KA-01254-SCT

Supreme Court of Mississippi.

June 8, 2023

ATTORNEY FOR APPELLANT: MARK ANDREW CLIETT, West Point

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DANIELLE LOVE BURKS, LAUREN GABRIELLE CANTRELL

BEFORE RANDOLPH, C.J., MAXWELL AND BEAM, JJ.

MAXWELL, JUSTICE, FOR THE COURT:

¶1. William Thomas Chisholm killed his former girlfriend, Dr. Shauna Witt, by shooting her to death. Dr. Witt had broken up with Chisholm and recently obtained a restraining order against him. She was examining a patient at her optometry office in Starkville when Chisholm barged in. He opened the office's front door, walked through the hall to an interior exam room, and overpowered Dr. Witt, forcing his way into the exam room. He then pulled out a pistol. Dr. Witt was able to squirm past Chisholm and out of the examination room into the hall. But as she ran for her life, Chisholm opened fire—shooting her in the back and in the back of her head. Dr. Witt collapsed against the foyer wall, dying near the office's front door.

¶2. Eyewitnesses saw the shooting. And surveillance video footage captured the audio of shots being fired. It also showed Chisholm pacing between the optometry office and Wal-Mart Vision Center—with pistol still in hand—immediately after he killed Dr. Witt. Police apprehended Chisholm in his car in the Wal-Mart parking lot and recovered the pistol. A jury convicted Chisholm of capital murder. He was sentenced to life imprisonment.

¶3. On appeal, Chisholm's main argument centers on how the State charged and proved burglary—the underlying felony pled in his capital murder charge. Specifically, the State charged that Chisholm committed capital murder by killing Dr. Witt in the commission of a burglary. The State based the predicate burglary on Chisholm's breaking and entering the office building, intending to commit "an assault" therein. Contrary to Chisholm's assertions, the State adequately pled a burglary-based capital murder. Our precedent makes clear the State was not required to plead each and every element of the assault underlying the burglary or to allege the assault was "aggravated"—since both statutory and notice requirements were met.

¶4. Chisholm also argues because the building, which included Dr. Witt's office, was open to the public, he could not have committed the predicate burglary by entering the building, intending to commit assault. We disagree. The required breaking for burglary "can be actual or constructive." Templeton v. State , 725 So. 2d 764, 766 (Miss. 1998). "[C]onstructive breaking is present where the invitation [to enter the home or business] is gained by deceit, pretense, or fraud." Id. at 767. In such cases, we have held that the invitation is "irrelevant." Id. In Templeton , this Court concluded that "an owner would not knowingly grant someone permission to enter his house with the intent to commit the crime of burglary, much less the crime of murder." Id. The same is true for business owners—the invitation to enter the premises clearly does not extend to those who intend to commit crimes. See, e.g. , Fulgham v. State , 12 So. 3d 558, 561 (Miss. Ct. App. 2009).

¶5. Dr. Witt saw patients by appointment at her private optometry practice. Not only was Chisholm not a patient, but Dr. Witt had recently obtained a restraining order against him. She had also directed her employees to call 911 if Chisholm ever showed up at her office—which they did. So he was clearly not a typical business guest; in fact, he was not welcome. Further, in his quest to kill Dr. Witt, Chisholm not only entered the optometry office door, but he also overpowered Dr. Witt, breaking into an interior examination room where she was treating a patient—somewhere he unquestionably lacked permission to be. So burglary was sufficiently proved.

¶6. We also find no merit to Chisholm's additional challenges to several of the judge's discretionary evidentiary rulings. We thus affirm his conviction and sentence.

Facts and Procedural History

I. Murder of Dr. Witt

¶7. Chisholm and Dr. Witt became romantically involved around 2012. When Dr. Witt ended the relationship in 2017, Chisholm became angry, allegedly burning her belongings she kept at his home. Dr. Witt sought a protective order against Chisholm, which a judge entered around December 12, 2017. The order expired December 30, 2017.

¶8. Dr. Witt contracted with Wal-Mart for office space for her optometry office, which was located on the front side of the department store. Her office was accessed separately from Wal-Mart. While the general public entered Wal-Mart through doors at the front of the store, Dr. Witt's optometry patients did not. Her optometry patients entered her office through a separate door located on the front side of the Wal-Mart building, just off the department store's parking lot.¹

¶9. On January 13, 2018, Dr. Witt was seeing patients at her optometry office. Heather Ashley—who worked for Dr. Witt and the Vision Center—and Kaylace Dorman, Dr. Witt's optometrist assistant, were both working that day. Between 9:20 and 9:35 a.m., Chisholm entered Dr. Witt's optometry office through the exterior door from the parking lot. When Ashley saw Chisholm in the office, she immediately called 911.

¶10. Chisholm walked toward the eye examination room where Dr. Witt was examining patient Amberley McCarter. The door was closed. So he began knocking on the door. According to her patient, Dr. Witt opened the door and told Chisholm to leave. She then closed and locked the door. But Chisholm did not leave. He instead continued to knock. When Dr. Witt eventually opened the door again, Chisholm began "barging" in. The patient remembered Chisholm "was pushing in" and Dr. Witt "was pushing out. They was [sic] fighting over the door." And he eventually "overpowered her and got into the room." Chisholm then began reaching into his pocket and pulled out a gun. Dr. Witt begged him to "stop," pleading "no, Tommy, stop[.]" She tried to keep him from drawing the gun, but he managed to pull out the pistol. According to the optometrist assistant, Dorman, Dr. Witt saw the gun, and was able to slip under Chisholm's arm. When Dr. Witt took off running for the office exit, Chisholm opened fire. She fell into the wall by the exit door and died. An autopsy report showed she died from two gunshot wounds—one to the back and another to the back of her head.

¶11. Chisholm left the optometrist office through the inner corridor leading into the Vision Center. Surveillance video shows him holding his pistol, walking back and forth between the optometrist office and Vision Center. Soon after, he returned to his car in the parking lot. Officers arrived and instructed Chisholm to get out of his vehicle. When he exited the car, officers directed him to get down on the asphalt. He began telling the officers to "kill [him]." Chisholm was placed in a patrol car. When the officers walked off, he kicked out the rear passenger window.

¶12. Investigators processed the scene and recovered eight shell casings. They found the casings "in almost a trail" from the exam room to the door where Dr. Witt had collapsed. They also located four rounds stuck in the wall. Officers recovered Chisholm's Springfield Armory 9mm pistol from his passenger seat, along with a loaded magazine and holster.

II. Capital Murder Charge

¶13. A grand jury charged Chisholm with capital murder with the underlying felony of burglary and one count of aggravated assault. Chisholm filed a motion to quash the indictment. He argued it "fail[ed] to state the underlying offense of the alleged [b]urglary." The State confessed the motion and reindicted Chisholm for capital murder in the commission of a burglary—this time pleading that Chisholm intended to commit an assault inside the building. Chisholm pled not guilty.

¶14. On July 15, 2021, Chisholm notified the State of his intent to pursue an insanity² defense and forwarded a report by his retained expert, Dr. Jennifer Carroll.

III. Trial

¶15. At trial, the State called multiple eyewitnesses to the shooting, along with investigators and medical personnel. Video surveillance from the Wal-Mart Vision Center, a recording of Ashley's 911 call, law enforcement body and car camera footage, and crime scene photos were admitted and presented to the jury. So were shell casings and rounds recovered from the scene.

¶16. When the State rested, Chisholm tried to call his purported expert forensic psychologist, Carroll. Carroll told the jury that she had received a bachelor of science in psychology, a master's degree in counseling psychology, and a Ph.D. in general psychology. In 2005, she became a licensed professional counselor. As part of her training, she was "exposed" to forensic psychology while interning at the Mississippi State Hospital at Whitfield, where she learned about various testing methods. After detailing her experience working in mental health facilities, Carroll represented that she had been qualified and accepted by "[c]ourt[s] as an expert in either forensic or clinical psychology "[a]pproximately 30 maybe [times]." Chisholm tendered Carroll as an expert witness in forensic and clinical psychology.

¶17. The State then questioned Carroll about her qualifications. Right out of the gate, Carroll admitted she was not a licensed psychologist. And the reason she was not a licensed psychologist was because she was not qualified. The university from which she received her Ph.D. in psychology was not accredited by the American Psychology Association (APA). Further, because her Ph.D. was primarily online, she never completed the minimum one year of continuous full-time residency at her doctoral university, as required for licensure. Neither did she complete the required pre-doctoral internship nor post-doctoral supervision.

¶18. Under cross-examination by the State, Carroll conceded she did not "qualify on any level to hold [her]self out...