Barr v. State, 50359
| Decision Date | 31 May 1978 |
| Docket Number | No. 50359,50359 |
| Citation | 359 So.2d 334 |
| Parties | Terry Lewis BARR v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Buchanan, Haltom & Saucier, Ben L. Saucier, Indianola, for appellant.
A. F. Summer, Atty. Gen. by Henry T. Wingate, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROBERTSON, LEE and BOWLING, JJ.
Appellant was indicted, tried and convicted for the crime of murder in the Circuit Court of Sunflower County, Mississippi. He received a sentence of life under the control of the Department of Corrections.
Five assignments of error are alleged by the appellant:
1. The trial court's refusal to submit the question of present insanity of appellant preliminarily to a jury was an abusal of discretion and consequently caused a flagrant injustice to appellant;
2. The trial court erred in allowing evidence introduced on behalf of the State pertaining to the opinions of the medical experts which were partially based on tests and opinions performed by unknown persons, thus depriving appellant of his constitutional right to confront and cross-examine that witness against him;
3. The trial court erred in refusing to give instruction D-1 requested by appellant;
4. The trial court erred in refusing to give instruction D-2 requested by appellant;
5. Appellant was entitled to have his motion for a new trial sustained in that This Court is compelled to reverse the cause under the first assignment of error. There is no need, therefore, to discuss the facts of this tragic occurrence.
the verdict of the jury was contrary to the overwhelming weight of the competent and credible evidence adduced in this cause.
As set out above, the first propounded assignment of error contends that the lower court should have impanelled a jury to consider preliminarily the present insanity, if any, of appellant (at the time of trial). The cases previously decided by this Court are clear on this assignment of error. Therefore, we shall discuss the cause as presented to the lower court in connection with the applicable law set out long before this cause accrued.
The incidents leading to appellant's indictment for murder occurred during the early morning hours of September 7, 1976. Appellant was arrested and incarcerated in the Sunflower County jail on the same date. On September 8, 1976, appellant, through his attorneys, filed a motion stating that they, as his attorneys, believed that a complete psychiatric examination was necessary in their representation of him, and requested an order of the court transferring appellant to a detention center in Hinds County for psychiatric and other related tests. No specific request was made in the motion as to the experts to perform these examinations. The motion was not contested by the State. On the same date the lower court issued its order directing that appellant be transferred at the earliest possible date to the custody of the sheriff or other proper person in Hinds County where he would be incarcerated and examined by "Dr. R. M. Ritter and/or consulting psychiatrists or physicians"; that the examinations were to be conducted either in the detention center or in a hospital. Pursuant to this order, appellant was transported to Jackson where he stayed approximately two weeks while being examined by Dr. Ritter and a psychologist, Dr. Billy Fox.
Upon appellant being returned to Sunflower County, the State, through the district attorney, filed a motion requesting an order of the court for an examination of appellant at the Mississippi State Hospital at Whitfield. This motion was not contested by appellant's attorneys and an order was entered on September 27, 1976, directing that appellant be transported to the Mississippi State Hospital at Whitfield for an examination by the psychiatric staff at that institution. Appellant was confined at the hospital in the maximum security unit for several weeks, during which time he was examined by staff physicians, principally Dr. Donald C. Guild. At the conclusion of the examinations, four members of the staff interviewed appellant and each staff member gave his opinion as to appellant's mental condition. This was released to the circuit judge by letter dated December 15, 1976.
The case was set for trial on February 16, 1977. On February 11, 1977, appellant's attorneys filed an instrument styled "Suggestion of Present Insanity," alleging that appellant was then incompetent and incapable of conducting a rational defense and incapable of entering a plea. The motion referred to the examination of Dr. R. M. Ritter as previously ordered by the court and to lay testimony that would be offered on the question. This motion was renewed on February 15, 1977, and a request was made for the court to impanel a special jury solely for the purpose of receiving testimony and evidence and deciding the question of the present mental ability of the defendant to make a rational defense.
At the time both motions were filed, appellant's file included two instruments: An affidavit of February 13, 1977, from Dr. Robert M. Ritter, and the letter of December 15, 1976, from Dr. Donald C. Guild, Director of Forensic Psychiatry at Mississippi State Hospital. Both of these instruments were directed to the court as a result of orders by the court for each of those persons specifically to examine appellant. Dr. Ritter's affidavit was as follows:
AFFIDAVIT
I, DR. ROBERT M. RITTER, M. D., have evaluated the mental condition of TERRY LEWIS BARR and find him to be presently insane in so much as he is presently unable to distinguish the difference between right and wrong.
WITNESS this is my signature, this the 13th day of February, A. D., 1977
/s/ Robert M. Ritter, M. D.
DR. ROBERT M. RITTER, M. D.
Sworn to and subscribed before me, this the 13th day of February, A. D., 1977
/s/ John T. Haltom
NOTARY PUBLIC
My commission expires:
May 25, 1978
The letter from Dr. Guild was as follows:
Court House
Indianola, Mississippi
Re: Terry L. Barr
Dear Judge Clark:
Mr. Terry Barr is a twenty-eight year old white male who was admitted to the maximum security unit of the Mississippi State Hospital on 9/28/76 for psychiatric observation and evaluation.
Mr. Barr has undergone extensive psychiatric observation and evaluation as well as psychological testing and has been presented to the full staff.
It was the unanimous decision of the forensic staff that Mr. Barr was both competent and responsible but there was considerable disagreement among the staff as to the exact diagnostic label that should be placed on Mr. Barr. Four members of the staff felt that Mr. Barr represented a Paranoid Personality and was non-psychotic. Another member of the staff felt that Mr. Barr represented Schizophrenia, Latent Type, and was currently non-psychotic but a borderline state. Another member of the staff, who has been at the hospital some time and is quite a knowledgable psychiatrist, agreed with Dr. Ritter that Mr. Barr represented a Paranoid state.
This is obviously a case where competent psychiatrists could have legitimate disagreements. We did, however, unanimously agree from what we are told, that he is both competent and responsible although there are significant emotional, psychological, psychiatric considerations which should be taken into account.
We did have opportunity to interview Mr. Barr's wife and his brother and this was considerably helpful. The attorneys in Mr. Barr's case were initially quite co-operative and helpful to us but towards the end apparently decided that it would not be wise to release Dr. Ritter's report and did not make available to us Mr. Barr's very close friend who might have been a deciding factor. The attorneys for Mr. Barr did state that his friend could be available on the weekend but we felt that if his attorneys considered it that critical they could have made Mr. Barr's friend available to us during the regular working week since the other Barrs had been interviewed on a weekend which is not usual State Hospital policy.
We hope that we have in no way offended the attorneys for Mr. Barr and that they do not feel that we are in anyway prejudiced or acting in anybody's behalf. I look forward to and hope to work well with both prosecution and defense since I consider our role at the State Hospital to act as a friend of the court.
If I can be of any further assistance to you, please do not hesitate to contact me.
Sincerely,
/s/ Donald C. Guild, M. D.
On February 15, 1977, the lower court entered its order as follows:
This cause coming on this day to be heard upon the Motion of the Defendant, by and through his attorneys requesting the Court to impanel a jury solely for the purpose of receiving testimony and evidence as to his ability to make a rational defense and whether or not he is competent to stand trial, and the Court upon hearing the same, is of the opinion that said Motion is not well taken and should be denied.
THEREFORE, IT IS, HEREBY ORDERED AND ADJUDGED that said motion for special jury is hereby denied.
ORDERED AND ADJUDGED, this the 15th day of February, A. D. 1977.
/s/ Arthur B....
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