State v. Duell

Decision Date27 June 1985
Docket NumberNo. 16496,16496
Citation175 W.Va. 233,332 S.E.2d 246
PartiesSTATE of West Virginia v. Glenna J. DUELL.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. "When a trial court grants a pre-trial discovery motion requiring the prosecution to disclose evidence in its possession, non-disclosure by the prosecution is fatal to its case where such non-disclosure is prejudicial. The non-disclosure is prejudicial where the defense is surprised on a material issue and where the failure to make the disclosure hampers the preparation and presentation of the defendant's case." Syl. pt. 2, State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980).

2. "The action of a trial court in admitting or excluding evidence in the exercise of its discretion will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. pt. 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955).

3. "In presenting testimony in a criminal trial, an expert medical witness should be permitted to state the facts or data upon which he bases his opinion, and this includes the information available to him in the form of records or documents whose reliability has been reasonably established and which have been kept in the regular course of professional care or treatment of the defendant and are of a type reasonably relied upon by experts in the witness' particular field of expertise." Syl. pt. 1, State v. Pendry, 159 W.Va. 738, 227 S.E.2d 210 (1976), overruled on other grounds, Jones v. Warden, 161 W.Va. 168, 173, 241 S.E.2d 914, 916-17 (1978).

4. "Whether the State in a criminal proceeding may introduce further evidence after a defendant has rested his case is a matter within the sound discretion of the trial court, and the exercise of that discretion will rarely be cause for reversal." Syl. pt. 2, State v. Fitzsimmons, 137 W.Va. 585, 73 S.E.2d 136 (1952), overruled on other grounds, Syl. pt. 2, State v. Clay, 160 W.Va. 651, 236 S.E.2d 230 (1977).

5. "Evidence of a threat made by a defendant on trial for murder, against the life of the person alleged to have been murdered, coupled with a statement of the manner or means by which such threat was intended to be carried out, is admissible." Syl. pt. 3, State v. Flint, 142 W.Va. 509, 96 S.E.2d 677 (1957).

6. "Whether evidence offered is too remote to be admissible upon the trial of a case is for the trial court to decide in the exercise of a sound discretion; and its action in excluding or admitting the evidence will not be disturbed by the appellate court unless it appears that such action amounts to an abuse of discretion." Syl. pt. 5, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1945).

7. "Where instructions given clearly and fairly lay down the law of the case, it is not error to refuse other instructions on the same subject. The court need not repeat instructions already substantially given." Syl. pt. 4, State v. Bingham, 42 W.Va. 234, 24 S.E. 883 (1896), overruled on other grounds, Syl. pt. 5, Pinkerton v. Farr, 159 W.Va. 223, 220 S.E.2d 682 (1975), Syl. pt. 6, State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955).

8. "It is not reversible error to give an erroneous instruction which favors the party complaining of such instruction." Syl. pt. 14, State v. Hamric, 151 W.Va. 1, 151 S.E.2d 252 (1966).

W.T. Weber, Jr., R. Russell Stobbs, Weston, for appellant.

S. Clark Woodroe, Asst. Atty. Gen., Charleston, for appellee.

McGRAW, Justice:

The appellant, Glenna J. Duell, appeals from her conviction in the Circuit Court of Lewis County of first degree murder with a recommendation of mercy. She assigns numerous errors that she maintains warrant reversal of her conviction. Following a brief discussion of the circumstances that led to her conviction, we will address each of these assignments of error.

On March 10, 1983, the appellant entered a private club in Lewis County known as the Cardinal Lounge, walked up to her husband, Karl Duell, who was seated at the bar, ordered a drink, produced a .38 caliber pistol, and, in the presence of six witnesses, shot him once at close range in the chest. Her husband said, "You finally did it didn't you," stood up momentarily, fell to the floor, and died. The appellant placed the gun by his body, ordered another drink, and calmly waited until the police arrived.

At trial, the appellant relied on the defense of insanity. A psychiatrist and a psychologist testified on her behalf. Dr. Lee L. Neilan, a board certified psychiatrist, testified that, in her opinion, the appellant suffered from psychogenic fugue and was incapable of perceiving the nature and consequences of the actions that resulted in her husband's death. Julie Blackman Doron, Ph.D., Assistant Professor of Psychology and Women in the Department of Psychology at Barnard College in New York, testified that the appellant was a "battered woman" and that, as a result, the likelihood that she was in touch with reality, was aware of the consequences of her actions, or understood right from wrong at the time of the shooting, was minimal. The appellant further testified that, initially, she could not remember anything from the time she spoke with a customer at her place of business shortly before her departure to the Cardinal Lounge until after she was released from jail on bond the following day. She admitted, however, that after she had been placed under hypnosis by Dr. Doron, she was able to recall most of what had transpired.

The State's psychiatrist, Dr. Thomas S. Knapp, testified that, based upon his examination of the appellant, evaluation of psychological examinations administered and results obtained by psychologist Donald R. Swick, and the appellant's personal history, he believed she had the capacity to appreciate the wrongfulness of her actions and could have conformed her conduct to that required by law.

I

The appellant's first assignment of error is the State's nondisclosure of psychological examinations and results relied upon by Dr. Knapp during his rebuttal testimony on the issue of insanity. On November 7, 1983, pursuant to W.Va.R.Cr.P. 16(a)(1)(D), the appellant requested the opportunity to inspect, copy, or photograph "any results or reports of physical or mental examinations, and of scientific tests and experiments ... which are material to the preparation of the defense or are intended for use by the State as evidence in chief at trial." Specifically, the appellant requested access to "(a) Report of Dr. Knapp of the mental examination performed at the request of the State; (b) a copy of the tape of the interview conducted by Dr. Knapp of the Defendant; (c) A copy of the psychological tests performed under the direction of Dr. Knapp; (d) The results of the psychological tests performed under the direction of Dr. Knapp...." On November 14, 1983, Dr. Knapp reported that, "As a result of the mental status examination, review of the history and evaluation of the psychological tests ... it is my opinion that Glenna JoAnn Duell is and was mentally responsible for her actions." Although his report mentioned "extensive psychological tests," including the Minnesota Multiphasic Personality Inventory [MMPI] and the Wechsler Adult Intelligence Scale-Revised, he failed to include a copy of any of the psychological tests administered or the results of all of the tests performed.

On November 30, 1983, the appellant filed her second request for discovery seeking "a copy of the psychological tests performed under the direction of Dr. Knapp, performed by Donald R. Swick, Clinical Psychologist, upon the Defendant...." This request was again ignored by the prosecution. On December 5, 1983, the first day of trial, the appellant filed her third request for discovery of the psychological tests administered and results obtained under the direction of Dr. Knapp. Although this motion for discovery was granted, the only test disclosed by the prosecution was the MMPI. The appellant did not receive nor was she permitted to inspect any of the other psychological tests administered, including the Wechsler Adult Intelligence Test which had been relied upon in Dr. Knapp's earlier report.

At trial, Dr. Knapp stated that the bases of his opinion concerning the issue of the appellant's sanity was "my evaluation of the personality along with the assistance of indepth psychological tests." He testified that, "Psychological tests were performed upon her. There were a number of them including the Minnesota Multiphasic, Wechsler's Adult Intelligence Test, The Thematic Apperception Test, the Raw Shock [sic] Test, the Bender-Gestalt Test. In other words, a complete battery of tests to test and examine all facets of her mental functioning." Dr. Knapp further described his utilization of these five tests, "The psychological test is my laboratory. I take the results of the psychological tests just as a surgeon or an internal medicine specialist might utilize the x-ray." Despite this rather heavy reliance upon the five psychological tests administered, the appellant was given only the Wechsler Adult Intelligence Test results and the MMPI test and results.

The mandate of Rule 16(a)(1)(D) of the West Virginia Rules of Criminal Procedure is abundantly clear:

Upon request of the defendant, the state shall permit the defendant to inspect and copy or photograph any results or reports of physical or mental examinations, and of scientific tests or experiments, or copies thereof, which are within the possession, custody or control of the state, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the state, and which are material to the preparation of the defense or are intended for use by the state as evidence in chief at trial.

Unquestionably, the failure of the State to comply with this rule, as well as with the trial court's discovery order, was erroneous. The...

To continue reading

Request your trial
16 cases
  • State v. Stewart
    • United States
    • West Virginia Supreme Court
    • November 28, 2011
    ... ... State v. Hardin, 91 W.Va. 149, 112 S.E. 401 (1922); See generally, 6 Pepperdine L.Rev. The Battered Wife Syndrome: A Potential Defense to a Homicide Charge 213219 (1978). Id., 163 W.Va. at 197198, 255 S.E.2d at 555. We again took up Battered Woman's Syndrome in State v. Duell, 175 W.Va. 233, 332 S.E.2d 246 (1985), 9 where the trial court prohibited Duell's expert from giving a full explanation of indices of the [defendant's] mental status, id., 175 W.Va. at 240, 332 S.E.2d at 253, including Duell's inconsistent ability to recall the events surrounding her husband's ... ...
  • Bechtel v. State
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma
    • September 2, 1992
    ... ... Ciskie, 110 Wash.2d 263, 751 P.2d 1165 (1988); State v. Hanson, 58 Wash.App. 504, 793 P.2d 1001 (1990); State v. Dozier, 163 W.Va. 192, 255 S.E.2d 552 (1979); State v. Lambert, 173 W.Va. 60, 312 S.E.2d 31 (1984); State v. Steele, 178 W.Va. 330, 359 S.E.2d 558 (1987); State v. Duell, 175 W.Va. 233, 332 S.E.2d 246 (1985); State v. Felton, 110 Wis.2d 485, 329 N.W.2d 161 (1983) ... 6 Fultz v. State, 439 N.E.2d 659 (Ind.1982); State v. Dannels, 226 Mont. 80, 734 P.2d 188 (1987); Larson v. State, 104 Nev. 691, 766 P.2d 261 (1988); State v. Moore, 72 Or.App. 454, 695 P.2d ... ...
  • State v. McIntosh
    • United States
    • West Virginia Supreme Court
    • July 12, 2000
    ... ...         128 W.Va. at 300, 36 S.E.2d at 411, Syl. Pt. 5. See State v. Duell, 175 W.Va. 233, 332 S.E.2d 246 (1985) ... Questions concerning remoteness of evidence are left to the sound discretion of the trial court and are subject to challenge only for clear abuse of discretion. Goodman v. State, 601 P.2d 178, 184 (Wyo. 1979) ...         In syllabus point six ... ...
  • State v. Miller
    • United States
    • West Virginia Supreme Court
    • November 19, 1987
    ... ... The defendant contends the nondisclosure was prejudicial ...         The State's brief does not address the issue of whether the prosecution violated Rule 16. Rather, it relies on cases such as State v. Lassiter, 177 W.Va. 499, 354 S.E.2d 595 (1987), and State v. Duell, 175 W.Va. 233, 332 S.E.2d 246 (1985), where we discussed whether nondisclosure was prejudicial under Syllabus Point 2 of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980): ...         "When a trial court grants a pre-trial discovery motion requiring the prosecution to disclose ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT