State v. Bannister

Decision Date19 December 1978
Docket NumberNo. 14152,14152
Citation250 S.E.2d 53,162 W.Va. 447
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia v. Kevin Reed BANNISTER.

Syllabus by the Court

1. Where the findings of fact and conclusions of law justifying an order transferring a juvenile proceeding to the criminal jurisdiction of the circuit court are clearly wrong or against the plain preponderance of the evidence, such findings of fact and conclusions of law must be reversed. W.Va.Code § 49-5-10(a) (1977).

2. W.Va.Code § 49-5-10 (1978), governing the transfer of juvenile proceedings to criminal jurisdiction, applies only to those juvenile cases where the alleged criminal act was committed after the effective date of the statute.

H. Truman Chafin, Williamson, for P. E.

Chauncey H. Browning, Atty. Gen., and Pamela Dawn Tarr, Asst. Atty. Gen., Charleston, for D. E.

McGRAW, Justice:

In this appeal 1 the petitioner contends the trial court erred in granting the prosecution's motion to transfer his case from the juvenile jurisdiction to the criminal jurisdiction of the circuit court, thereby permitting him to be treated as an adult instead of as a juvenile.

The principal issue presented is whether the State met its burden of proving by clear and convincing proof that there are no reasonable prospects for rehabilitating the petitioner through resources available to the juvenile court as required by W.Va.Code § 49-5-10(a) (1977). 2 We answer in the negative and reverse.

The factual background giving rise to this appeal need not be stated in detail; it suffices to say that this case concerns an adolescent, male child who at the age of sixteen years shot and killed his father and then telephoned the police to inform them of what he had just done. He had no previous juvenile or criminal record.

All the parties agreed that the juvenile law as amended in 1977 was the law applicable when the transfer hearing was held in November, 1977. After that hearing, the trial court entered an order setting forth the factual finding and legal conclusion justifying the transfer in the following language:

(I)f the defendant, in fact, was suffering from a mental disease or defect which caused him to lack the capacity either to appreciate the wrongfulness of his act or to conform his act to the requirements of the law, then he is likely again to suffer such a "psychotic episode" or other mental abberation which will cause him again to commit violent acts in the future, as testified by one of the psychiatrists in the latter's deposition introduced into evidence at said hearing and accordingly, and for such reason, that there are no reasonable prospects for rehabilitating the defendant through any resources available to this Court under Article 5, Chapter 49, of the West Virginia Code, as amended.

It is, of course, well recognized that findings of fact made by a trial court will not be reversed or set aside on appeal unless its findings are clearly wrong, syl. pt. 1, State ex rel. Postelwaite v. Bechtold, W.Va., 212 S.E.2d 69 (1975); syl. pt. 1, State ex rel. Harrison v. Coiner, 154 W.Va. 467, 176 S.E.2d 677 (1970), but "(w)hen the findings of fact of a trial court . . . are against the plain preponderance of the evidence, are not supported by the evidence, are clearly wrong, or are the result of a mistaken view of the evidence, such findings will be set aside or reversed by this Court on review." Syl. pt. 5, State ex rel. Postelwaite v. Bechtold, supra.

Whether the finding and conclusion of the trial court incorporated in the transfer order 3 is supported by the evidence requires a brief review of the evidence adduced in the transfer hearing.

The evidence relied on by the trial court was contained in the evidentiary deposition of the State's only psychiatrist who examined and evaluated petitioner in January of 1977 for the purpose of preparing a report for the use by the State. The witness testified that:

The probabilities of psychotic episodes repeating themselves are good. If one has been associated with a violent act, the likelihood, I think, exists that another psychotic episode is possible. I can't say whether another psychotic episode would be associated with a violent act or not. I can say if there has been one, there generally will be more.

Arrayed against this evidence is the testimony of three psychiatrists. The first such witness who began treating the petitioner in December of 1975 testified that the petitioner was under the influence of a psychotic episode at the time the act was committed and was not criminally responsible for his conduct. He further testified that the petitioner is not currently suffering any emotional disorder of any kind, is not a threat to or a menace to society in any way, and does not require institutionalized treatment. The expert also testified that there was no indication or evidence to suggest that petitioner will resort to violent behavior in the future, that he is continuing treatment and his prognosis is excellent.

When questioned about the prospects for rehabilitating petitioner, the expert stated:

To say define rehabilitation in this case, if we are talking about rehabilitation from the attack . . . I have not seen any evidence in the two years I have worked with (petitioner) that he has any problems in that area. I think rehabilitation has already occurred. As far as learning how to deal with the stresses and the inner conflict which brought on this horrible attack, you have to remember this is based on a relationship of sixteen years this young man with his father. I doubt that he would be involved in such a relationship again as he had with his father or that he will be presented with any circumstances that would cause such an attack to occur.

Shortly after the unfortunate event, petitioner voluntarily admitted himself to a hospital for evaluation and treatment. During the approximately four months stay, he received adolescent milieu therapy and various other modes of group therapy, including family therapy, along with intensive individual psychotherapy conducted by a psychiatrist. Upon discharge from the hospital his prognosis was good, and it was anticipated that he would be able to function normally in school and with his family.

The deposition testimony of the hospital psychiatrist was in agreement with petitioner's first expert witness. When asked if petitioner was cured, he stated:

I think that the acute psychotic process is resolved, and cure is the word for that. The underlying emotional problems that led up to the psychological process are being healed or cured. This type of process, curing, healing, process is a long term one, one that was initiated by (petitioner's) own basic healthy internal mechanisms prior to his arriving at the hospital, was I think accelerated during his hospitalization, and has continued in his outpatient treatment following his discharge here.

He also testified:

The likelihood that (petitioner) would ever have a recurrence of such a psychotic episode is practically zero. The circumstances, the intensity of feelings that were in the relationship between (petitioner) and his father could not be duplicated by any other relationship (his) life. The intensity of that relationship, the fear that (he) maintained in the relationship with his father, the fear for his own safety in life could not be reduplicated out of a relationship formed with another individual, particularly not another individual later in (his) life.

The deposition of a third psychiatrist who examined the defendant on motion of the State was introduced in evidence. This witness concluded the petitioner was suffering from a psychotic episode when the shot was fired but found no psychotic symptoms present at the time of the examination. He recommended that petitioner continue his psychiatric treatment as did the other psychiatric witnesses.

Four lay witnesses also testified on petitioner's behalf, including his high school principal, who testified that petiti...

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