State v. Church

• Citation: 284 S.E.2d 897,168 W.Va. 408
• Decision Date: 10 December 1981
• Docket Number: No. 14774,14774
• Parties: STATE of West Virginia v. Freddie Joe CHURCH.
• Court: Supreme Court of West Virginia

Page 897

284 S.E.2d 897

168 W.Va. 408

STATE of West Virginia v. Freddie Joe CHURCH.

No. 14774.

Supreme Court of Appeals of West Virginia.

Dec. 10, 1981.

Syllabus by the Court

1. A trial judge's failure to make a finding on the issue of a criminal defendant's competency to stand trial within five days after the filing of a report by one or more psychiatrists or a psychiatrist and a psychologist in compliance with W.Va.Code, 27-6A-1(d) [1977], will not be considered to be reversible error requiring a new trial absent prejudice to the defendant resulting from such failure.

2. Even though a trial judge does not make a finding on the issue of a criminal 3. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syl. pt. 2, State v. Atkins, W.Va., 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980); Syl. pt. 4, State v. Haverty, W.Va., 267 S.E.2d 727 (1980).

defendant's competency to stand trial within five days after the filing of a report by one or more psychiatrists or a psychiatrist and a psychologist, the defendant may request a hearing on that issue under W.Va.Code, 27-6A-1(d) [1977], at any reasonable time prior to trial.

4. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error." Syl. pt. 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

Thomas L. Butcher, Pineville, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., and S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.

McHUGH, Justice:

The appellant, Freddie Joe Church, was convicted of the crime of murder in the first degree of Robert Lee Stickler. The case is before this Court on an appeal from a final order of the Circuit Court of Wyoming County, entered on August 9, 1979, sentencing the defendant to life without mercy in the West Virginia State Penitentiary at Moundsville, and denying the defendant's motion to set aside the verdict and award him a new trial. On this appeal the defendant assigns and argues four errors relating to his mental competency, gruesome photographs, evidence relating to other crimes and ineffective assistance of counsel. ¹

I THE CRIME

The facts relating to the crime in this case are relatively undisputed. On January 30, 1979, the defendant and his wife, Nancy Church, were occupying a room at the Mountain Motel in Pineville. On that evening five young men, including Robert Lee Stickler, were eating in the motel restaurant. The defendant entered the restaurant and, displaying a .22 caliber pistol, ordered the diners to lie on the floor. The defendant's wife soon joined him in the restaurant.

The defendant ordered his hostages to tie themselves together and they complied. He released one hostage, Wayne Beam, to carry an ultimatum to the authorities. The seige was to last for nine hours through the night of January 30, 1979, and the early morning of January 31, 1979. During that time the defendant repeatedly fired his .22 caliber pistol into the walls and fixtures of the At one point in the night the lights in the restaurant went out. The defendant fired his weapon and one of the hostages was struck by the bullet. When the lights came back on, Robert Lee Stickler was bleeding from a wound in his back. The defendant refused to let him receive medical treatment for his wound.

restaurant. One of the hostages testified that whenever they moved the defendant would shoot at the floor near their heads.

The nightlong seige came to an end early on the morning of January 31, 1979, when the hostages jumped the defendant and his wife and disarmed them. Robert Lee Stickler was dead on arrival at the Wyoming County General Hospital. He had bled to death on the floor of the Mountain Motel Restaurant.

II MENTAL COMPETENCY

On February 7, 1979, the trial judge, upon his own motion, entered an order sending the defendant to the Weston State Hospital for observation and examination. The psychiatric observation of the defendant was extended by an order entered on February 29, 1979. The defendant was examined at the Weston State Hospital by a psychiatrist and a psychologist. Their reports were filed with the trial court on March 23, 1979. Both the psychiatrist and psychologist were of the opinion that the defendant was criminally responsible and competent to stand trial.

The defendant's trial began on August 6, 1979. Before impanelling a jury, the trial judge heard argument on whether the defendant was competent to stand trial. At the close of the argument the trial judge found the defendant to be competent to stand trial. The defendant argues that the procedure used in his case did not comply with the controlling statute and was error. ²

The defendant acknowledges that in his case the proper procedure was followed The defendant in this case argues that prejudice did result from the trial judge's failure to make a prompt finding on the issue of his competency to stand trial. Specifically, he argues that he was denied his right to a hearing on his competency pursuant to W.Va.Code, 27-6A-2 [1979], by the trial judge's lack of action. ³

to the time the reports of the psychiatrist and psychologist were filed with the court. The trial court, however, did not make a finding as to the competency of the defendant to stand trial within five days after the receipt of those reports. The trial judge did not make a finding of competency until the first day of the defendant's trial--August 6, 1979. A trial judge's failure to make a finding on the issue of a criminal defendant's competency to stand trial within five days after the filing of a report by one or more psychiatrists or a psychiatrist [168 W.Va. 413] and a psychologist in compliance with W.Va.Code, 27-6A-1(d) [1977], however, will not be considered to be reversible error requiring a new trial absent prejudice to the defendant resulting from such failure.

The defendant's argument is based on the premise that a preliminary finding of competency under W.Va.Code, 27-6A-1(d) [1977], is a necessary prerequisite to a request for a competency hearing. That premise is incorrect; such a finding is not a prerequisite to a request for a competency hearing. See State ex rel. Walton v. Casey, W.Va., 258 S.E.2d 114 (1979); State v. Milam, W.Va., 226 S.E.2d 433 (1976). Even though a court does not make a finding on the issue of a criminal defendant's competency to stand trial within five days of the receipt of a report by one or more psychiatrists or a psychiatrist and a psychologist, the defendant may request a hearing on that issue under W.Va.Code, 27-6A-1(d) [1977], at any reasonable time prior to trial. The defendant in this case had notice of the findings and opinions of the psychiatrist and psychologist who had examined him. He did not request a competency hearing at any time prior to trial. He was not, therefore, prejudiced by the trial judge's failure to make a finding of competency in compliance with W.Va.Code, 27-6A-1(d) [1977]. This is especially significant in light of the trial judge's finding, on August 6, 1979, that the defendant was competent to stand trial. That finding is adequately supported by the record.

III THE "GRUESOME" PHOTOGRAPH

At the defendant's trial the State offered into evidence a photograph of the victim taken during the autopsy. The defendant argues that the introduction of this photograph was error although he does admit that, even had the photograph not been introduced, he would still have been convicted. He argues that the introduction of the photograph may have improperly influenced the jury thereby leading them to withhold a recommendation of mercy.

Photographs of the victim of a crime are not, per se, inadmissible. Indeed,

even gruesome photographs may be admissible where they are of essential evidentiary value to the State's case. State v. Rowe, W.Va., 259 S.E.2d 26 (1979). We have examined the photograph introduced in this case. It is a black and white Polaroid photograph depicting the back of the victim. It shows the entry point of the bullet which caused Robert Lee Stickler to bleed to death. The photograph is not gruesome. It was not, therefore, error to admit it into evidence.

IV EVIDENCE OF OTHER CRIMES

At trial both the defendant and his wife testified. On cross-examination of the defendant's wife the prosecutor asked her if she knew that her husband had once attacked someone with a knife. On cross-examination of the defendant the State again asked about the knife incident and also asked whether he had been arrested for theft on a prior occasion. The defendant assigns that questioning as error. The State argues that the cross-examination of the defendant and his wife was proper because the defendant had put his character in issue. While we find support for this argument in the record, we do not feel that it is necessary to consider it in detail as the cross-examination, if it was error, was harmless.

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