Maxey v. Bordenkircher

• Decision Date: 03 June 1985
• Docket Number: No. 16092,16092
• Citation: Maxey v. Bordenkircher, 330 S.E.2d 859, 175 W.Va. 49 (W. Va. 1985)
• Court: West Virginia Supreme Court
• Parties: William Ray MAXEY v. Donald E. BORDENKIRCHER, Warden, West Virginia State Penitentiary.

Page 859

330 S.E.2d 859

175 W.Va. 49

William Ray MAXEY v.Donald E. BORDENKIRCHER, Warden, West Virginia State Penitentiary.

No. 16092.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1985.

Decided June 3, 1985.

Syllabus by the Court

1."Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt."Syl. pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330(1975).

2."Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction."Syl. pt. 20, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445(1974).

Richard E. Rowe and Lucinda C. Masterton, Charleston, for appellant.

Janet Frye Steele, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

The appellant, William Ray Maxey, appeals from an order of the Circuit Court of Marshall County denying his petition for writ of habeas corpus seeking retrospective application of our holding in State v. Jackson, 298 S.E.2d 866, 871(W.Va.1982), that a court-appointed psychiatrist's testimony with respect to self-incriminating statements made by an accused during the course of his or her examination violates the accused's privilege against self-incrimination.Our conclusion, however, that any error resulting from the introduction of such statements made by the appellant during the course of his court-ordered psychiatric examination was harmless beyond a reasonable doubt renders unnecessary an analysis of the issue of retroactivity.

The circumstances that led to the appellant's arrest and conviction are uncontroverted.On June 13, 1978, the appellant seized the two-year-old daughter of his girlfriend from her home, transported her to a remote area in an adjoining county, sexually molested her, and returned her near her home where she was found by her mother and grandparents.On June 15, 1978, the appellant confessed to the entire episode, but although he plead guilty to first degree sexual abuse, for which he received a one to five year prison term, he plead not guilty by reason of insanity to a charge of kidnapping.

After the appellant's plea of not guilty by reason of insanity, the trial court ordered his examination by a state psychiatrist.His motion to suppress incriminating statements made during the course of this examination was denied, and the statements recounted by the psychiatrist at trial.On February 22, 1979, the appellant was found guilty of kidnapping with a recommendation of mercy, and was sentenced to life in prison with a possibility of parole in ten years.On September 16, 1980, the appellant's petition for appeal, challenging, inter alia, the introduction of the self-incrimination statements made during the course of the court-ordered psychiatric examination, was denied.Later, on April 22, 1982, a petition for appeal from the denial of a petition for writ of habeas corpus by the Circuit Court of Monongalia County raising this issue was again denied.

On December 15, 1982, this court held in State v. Jackson, 298 S.E.2d at 871, that, "A psychiatrist can testify to the bases of his medical opinion, State v. Rhodes, W.Va., 274 S.E.2d 920(1981), but without reference to a defendant's specific statements about his criminal offense."This proposition, consistent with both Rule 12.2(c) of the Federal Rules of Criminal Procedure, in effect at the time of Jackson's conviction, and Rule 12.2(c) of the West Virginia Rules of Criminal Procedure, in effect shortly after Jackson's conviction, formed the basis for our imposition of two procedural safeguards designed to protect an accused's constitutional right to counsel and privilege against self-incrimination:

Protection of a defendant's constitutional privilege against self-incrimination and right to assistance of counsel at pre-trial court-ordered psychiatric examinations, requires that a tape-recording of the entire interview be given to his and the government's lawyer, and an in camera suppression hearing be held to guarantee that the court-ordered psychiatrist's testimony will not contain any incriminating statements.

Syl. pt. 2, State v. Jackson, supra.

Given the foregoing recognition of the fifth and sixth amendment implications of the admission of self-incriminating statements made during the course of a court-ordered psychiatric examination, any error in this regard would be of a constitutional dimension.With respect to the doctrine of harmless constitutional error, the standard is clear: "Failure to observe a constitutional right constitutes reversible error unless it can be shown that the error was harmless beyond a reasonable doubt."Syl. pt. 5, State ex rel. Grob v. Blair, 158 W.Va. 647, 214 S.E.2d 330(1975);see alsoChapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710(1967);State v. Stout, 310 S.E.2d 695, 697(W.Va.1983);Syl. pt. 3, State v. Sheppard, 310 S.E.2d 173(W.Va.1983);State v. Clawson, 270 S.E.2d 659, 671 n. 8(W.Va.1980);State v. Vance, 262 S.E.2d 423, 431(W.Va.1980);Angel v. Mohn, 162 W.Va. 795, 796, 253 S.E.2d 63, 65(1979);Thomas v. Leverette, 161 W.Va. 224, 226, 239 S.E.2d 500, 502(1977);Syl. pt. 5, State v. Boyd, 160 W.Va. 234, 233 S.E.2d 710(1977);State v. Britton, 157 W.Va. 711, 718, 203 S.E.2d 462, 467(1974).Furthermore, as this Court held in Syllabus Point 20 of State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445(1974), "Errors involving deprivation of constitutional rights will be regarded as harmless only if there is no reasonable possibility that the violation contributed to the conviction."See alsoFahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173(1963);State v. Clark, 292 S.E.2d 643, 648(W.Va.1982);State v. Key, 275 S.E.2d 924, 927(W.Va.1981);State v. Butcher, 270 S.E.2d 156, 160(W.Va.1980);State ex rel. Wilhelm v. Whyte, 267 S.E.2d 554, 556(W.Va.1980);Syl. pt. 3, State v. Bradley, 260 S.E.2d 830(W.Va.1979);Angel v. Mohn, 162 W.Va. at 797-98, 253 S.E.2d at 66;State v. Kirtley, 162 W.Va. 249, 256, 252 S.E.2d 374, 378(1978);State v. Mason, 162 W.Va. 297, 306, 249 S.E.2d 793, 799(1978);State ex rel. v. Blair, 158 W.Va. at 659, 214 S.E.2d at 337(1975);Syl. pt. 7, State v. Britton, supra.

Unquestionably, the erroneous admission of self-incrimination statements obtained from a criminal defendant in violation of his or her constitutional rights may nevertheless be rendered harmless in certain limited circumstances.For example, in Milton v. Wainwright, 407 U.S. 371, 377-78, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1, 6-7(1972), the United States Supreme Court rejected a challenge to the defendant's conviction based upon the introduction of a post-indictment, pre-trial confession made to a police officer posing as a fellow prisoner, holding that, even assuming its constitutional inadmissibility, its introduction was rendered harmless in light of the overwhelming evidence of the defendant's guilt, including no less than three full pre-indictment confessions and other damaging testimony.Later, a unanimous Court applied the doctrine of harmless constitutional error to improperly admitted confessions in Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208, 215(197...