Billotti v. Dodrill

• Decision Date: 09 March 1990
• Docket Number: No. 18534,18534
• Court: West Virginia Supreme Court
• Parties: Frank BILLOTTI v. A.V. DODRILL, Jr., Commissioner of the West Virginia Department of Corrections, and Jerry C. Hedrick, Warden.

Page 32

394 S.E.2d 32

183 W.Va. 48

Frank BILLOTTI v. A.V. DODRILL, Jr., Commissioner of the West Virginia Department of Corrections, and Jerry C. Hedrick, Warden.

No. 18534.

Supreme Court of Appeals of West Virginia.

March 9, 1990.

Syllabus by the Court

1. "One convicted of a crime is entitled to the right to appeal that conviction and where he is denied his right to appeal such denial constitutes a violation of the due process clauses of the state and federal constitutions and renders any sentence imposed by reason of the conviction void and unenforceable." Syllabus, State ex rel. Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972).

2. "In the enactment of a statute, the Legislature is presumed not to enact a statute which is violative of any of the provisions of the Constitution of the United States or the Constitution of West Virginia." Syllabus point 2, Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957).

3. Through the interpretation of Article III, § 10 and Article III, § 17 of the Constitution of West Virginia, this Court has recognized a constitutional right to petition for appeal in criminal cases and has also "constitutionalized" the criminal defendant's right to receive a free transcript, appointed counsel, and the effective assistance of counsel in appellate proceedings.

4. West Virginia does not grant a criminal defendant a first appeal of right, either statutorily or constitutionally. However, our discretionary procedure of either granting or denying a final full appellate review of a conviction does not violate a criminal defendant's guarantee of due process and equal protection of the law.

5. "A habeas corpus proceeding is not a substitute for a writ of error in that ordinary trial error not involving constitutional violations will not be reviewed." Syllabus point 4, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979).

Barbara H. Fleisher, H.F. Salsbery, James A. McKowen, Hunt and Wilson, Charleston, for Frank Billotti.

Roger W. Tompkins, Atty. Gen., Thomas J. Gillooly, Deputy Atty. Gen., Attorney General's Office, Charleston, for appellees.

BROTHERTON, Justice:

On December 21, 1983, a Monongalia County Circuit Court jury found the defendant, Frank Billotti, guilty of three counts of first-degree murder in connection with the October 8, 1982, shooting deaths of his wife and two teenaged daughters. Billotti was sentenced to life in prison with no possibility of parole ¹ on January 17, 1984.

Evidence presented at trial indicated that the defendant's wife, Carolyn, and daughters, Andrea, age 16, and Francie, age 14, were shot to death with a 12-gauge shotgun. The shootings occurred in the upstairs hallway of the family home sometime between 10:00 p.m. and 2:00 a.m. on the night of October 8, 1982. Carolyn and Andrea were backed up against the hallway wall opposite the master bedroom door when they were shot. Francie was shot from behind and apparently fell down face forward in the hallway.

After shooting his wife and two children, the defendant shot himself in the head. However, he awoke the following morning and called his mother, Rose Billotti, whom he asked for help. Rose Billotti then called the defendant's cousin, Samuel James "Jim" Billotti, for assistance. When Jim arrived at the defendant's home, Rose met him at the gate and told him that the defendant had shot and killed his family. Rather than call an ambulance, they agreed to take the defendant to Monongalia General Hospital. While Rose went inside to locate medical personnel to assist her son, Jim and the defendant remained outside, where the defendant told Jim, "I have worried all my life that somebody was going to come up there and shoot us all. With my own hands I have did a bum job on myself. I have ruined my life. I have lost everything."

The defendant made a similar statement to Dominic Carpini, a paramedic who transported him from Monongalia General Hospital to West Virginia University Medical Center. The defendant stated, "I think I killed them all. You had better send somebody out there right away. I think they are all dead." When the paramedic asked the defendant whom he had killed, he responded, "My wife and daughters ... I killed them. You had better send somebody out there. They are all dead." Health care professionals treating the defendant found him to be alert and responsive. Although the defendant survived, he lost his right eye as a result of the gunshot wound.

The defendant was arrested on October 14, 1982, and was subsequently indicted on three counts of first-degree murder on January 6, 1983. When the defendant was brought to trial in the Circuit Court of Monongalia County in December, 1983, his sole defense was insanity. Three psychiatrists testified that, in their opinion, the defendant did not appreciate the wrongfulness of his acts at the time of the shootings. However, all three doctors disagreed on a diagnosis of the defendant's condition and differed as well as to the effect the defendant's drug use may have had on this condition. Apparently, the doctors each developed rather divergent accounts of what actually happened on the night of the shootings, as a result of the inconsistent accounts of the events of that evening related by the defendant.

Dr. Melinda Mullins, who practices both internal medicine and psychiatry, was assigned to the psychiatric consultation service at West Virginia University Medical Center, and she was the first of the three doctors who testified at trial to actually examine the defendant. Dr. Mullins interviewed the defendant while he was recuperating from surgery, and it was her responsibility to assess the defendant for suicidal thought or intent prior to his discharge from the hospital. The defendant did not recall the entire shooting incident with this doctor. Although she did not diagnose him at the time, Dr. Mullins raised several diagnostic possibilities at trial, including atypical paranoid disorder, schizoaffective disorder, and, because the defendant claimed that he had used drugs for diet purposes, organic delusional syndrome.

Dr. Joel Allen, a psychiatrist at West Virginia University Medical Center, saw the defendant for a total of sixteen hours over a nine-month period, beginning in December, 1982. He diagnosed the defendant as a paranoid schizophrenic, finding him to be delusional and to suffer from pervasive paranoia. According to Dr. Allen, the defendant suffered from amnesia induced by the injury to the brain, which prevented him from remembering the night of the shooting. Dr. Allen also stated that it was common for people to forget bad things, even "monstrous" things. Dr. Allen testified that the defendant remembered details of the shootings only after eight sessions with him.

Dr. Wilbur Sine, who had a psychiatric and family practice in Morgantown, West Virginia, examined the defendant at the request of the State, meeting with the defendant on five occasions for a total of five and one-half hours. Dr. Sine opined that, "At the time he shot his wife and two daughters, I felt that he was in an acute psychotic state." Dr. Sine stated that he believed the defendant's paranoia began as many as four days before the shootings and was induced by his use of drugs. When asked on cross-examination about what could trigger an acute psychotic state in a person with a personality disorder, Dr. Sine responded that it could have been the defendant's use of crystalline amphetamines. Dr. Sine stated that he didn't "believe you can make the diagnosis of paranoid schizophrenia in the face of drug usage." When the State attempted to summarize Dr. Sine's opinion by stating, "... we have a person who has a little personality disorder, is going through life managing to cope with things, and, in effect, he got high on amphetamines and lost his temper?", Dr. Sine agreed, "That's a good summary of it, basically, yes."

In addition to the expert psychiatric testimony, several lay witnesses for the State testified to the defendant's seeming normalcy in the hours and days before the shooting. Jeff Nichols delivered a load of firewood to the defendant's home the morning before the shootings, and he testified to the defendant's normal behavior at that time. Janet Hertig, an employee at Nature's Garden, a greenhouse owned by the defendant, said she thought the defendant was in a bad mood when he didn't say "hello" when he came to pick his wife up from work the evening of the shootings. Beth Ann Finley, who rented part of a house from the defendant, testified for the defense and stated that she had not noticed any different or strange behavior on the part of the defendant in the days before the shootings. As a rebuttal witness, the State called Betty Maditz, who had known the Billottis for twelve years and described herself as their best friend. Ms. Maditz had gone shopping with the Billotti family for several hours on October 2, 1982. Ms. Maditz said that she did not remember the defendant saying anything that day which was indicative of paranoid characteristics. On cross-examination, in response to the question of whether she knew the defendant was paranoid, Ms. Maditz stated, "I would say at some times he might have been."

In his own testimony, the defendant admitted to smoking marijuana daily and taking amphetamines prescribed for weight loss. The defendant related how he had been awake for three days and three nights prior to the shootings and plagued by a persistent sense of paranoia during this time. After returning home on the evening of the incident, the defendant stated that he and his wife shared some marijuana, ² and then "the intensity of my feelings intensified." The defendant described his nervous and paranoid behavior and how "a great light about the size of a flame ... came shimmering down off the wall and lit right on our hands and sat there." When his wife suggested that they go out on an upstairs deck to get some air, the...