State v. Jackson

• Decision Date: 15 December 1982
• Docket Number: No. 15419,15419
• Citation: 171 W.Va. 329,298 S.E.2d 866
• Parties: STATE of West Virginia v. Benjamin Franklin JACKSON.
• Court: West Virginia Supreme Court

Page 866

298 S.E.2d 866

171 W.Va. 329

STATE of West Virginia v. Benjamin Franklin JACKSON.

No. 15419.

Supreme Court of Appeals of

West Virginia.

Dec. 15, 1982.

Syllabus by the Court

1. " 'Confessions elicited by law enforcement authorities from persons suspected of crimes who because of mental condition cannot knowledgeably and intelligently waive their right to counsel are inadmissible.' Syllabus Point 1, State v. Hamrick, 160 W.Va. 673, 236 S. E.2d 247 (1977)." Syllabus Point 5, State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545 (1981).

2. 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.

3. A defendant cannot waive his state and federal constitutional privileges against self-incrimination and rights to assistance of counsel at court-ordered pre-trial psychiatric examinations except upon advice of counsel.

4. "In any case where the defendant relies upon the defense of insanity, the defendant is entitled to any instruction which advises the jury about the further disposition of the defendant in the event of a finding of not guilty by reason of insanity which correctly states the law ...." Syllabus Point 2, State v. Nuckolls, 166 W.Va. 259, 273 S.E.2d 87 (1980).

5. Any physician qualified as an expert may give an opinion about physical and medical cause of injury or death. This opinion may be based in part on an autopsy report.

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

Andrew J. Goodwin, F. Christian Gall, Jr., Charleston, for appellant.

HARSHBARGER, Justice:

Benjamin Franklin Jackson was convicted in Kanawha County for the first-degree murder of Stephen Michael Weems, despite his insanity defense; but the jury recommended mercy. He claims these errors: admission of his tape-recorded confession, the medical examiner's testimony, the state psychiatrist's testimony on rebuttal, and the trial judge's failure to present "not guilty by reason of insanity" as a possible verdict and to instruct about what happens to a defendant adjudged criminally insane.

Jackson and Weems had been friends for years. On the morning of the shooting in August, 1978, Jackson bought a handgun and went to Weems' home. They drank and smoked marijuana in Jackson's car, with Weems in the driver's seat. Weems' brother saw Weems leave the car and run, and Jackson also alight, hold his gun in both hands, aim, and shoot Weems. The fatal bullet entered Weems' right arm, travelled through his chest and lodged in his left nipple, and another bullet went through his buttocks.

Jackson hid on a nearby hillside, but as local, county and state police searched for him he descended and surrendered, two to three hours after the killing. Police took him to their station, advised him of his constitutional rights, he waived counsel and gave them a tape-recorded statement. They took him back to the scene where he retrieved the gun he had hidden there.

He was put in Kanawha County Jail, and his lawyer immediately moved that he be examined for mental illness. He was treated, examined, treated and examined, et seq., until November, 1980.

I.

Jackson's confession is highly suspect because only a few days after the homicide, which happened on the same day he gave the statement, he was ordered to Weston State Hospital and was there determined incompetent to go to trial. He remained incompetent for one and a half years.

Three state hospital psychiatrists testified that he suffered from chronic undifferentiated schizophrenia and that he was mentally ill at the time of the offense, and another psychiatrist agreed. The only psychiatrist who believed he was responsible for his conduct was Dr. Knapp, who had been appointed by the court and was used by the state for rebuttal. He did not testify at the suppression hearing.

Of course, if Jackson was insane on the day he killed Weems, being the same day his recorded statement was taken, he would be incompetent to waive counsel or to make a statement. The State must prove admissibility of a confession by a preponderance of the evidence. Syllabus Point 2, State v. Woods, 169 W.Va. 767, 289 S.E.2d 500 (1982); State v. Wilcox, 169 W.Va. 142, 286 S.E.2d 257 (1982); State v. Wimer, 168 W.Va. 417, 284 S.E.2d 890 (1981). The state's burden is heavy. State v. Boyd, 167 W.Va. 385, 280 S.E.2d 669, 682 (1981).

"Confessions elicited by law enforcement authorities from persons suspected of crimes who because of mental condition cannot knowledgeably and intelligently waive their right to counsel are inadmissible." Syllabus Point 1, State v. Hamrick, 160 W.Va. 673, 236 S.E.2d 247 (1977).

Syllabus Point 5, State v. Daggett, 167 W.Va. 411, 280 S.E.2d 545 (1981).

See also State v. Adkins, 170 W.Va. 46, 289 S.E.2d 720, 727-728 (1982).

However, a trial judge's determination that a confession is admissible will not be disturbed unless he was plainly wrong. State v. Gwinn, 169 W.Va. 456, 288 S.E.2d 533 (1982); Syllabus Point 3, State v. Vance, 162 W.Va. 467, 250 S.E.2d 146 (1978).

This case is reversed on other grounds, but we would expect that on remand defendant's competency to knowingly and intelligently waive his right to counsel and his capacity to make a statement, be carefully studied before a decision is made that his statement is admissible. Further evidence may be elicited. Accord State v. Adkins, supra.

II.

Jackson argues that his incriminating statements to the court-appointed psychiatrist, Dr. Knapp, should have been inadmissible because they were part of a custodial interrogation and were not prefaced by Miranda warnings, and because he did not have his lawyer with him.

Miranda warnings were devised to make sure a criminal defendant understands his Fifth Amendment privilege against self-incrimination and his Sixth Amendment right to counsel. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966). They are appropriate at "custodial interrogations" and protect a defendant from involuntarily incriminating himself, but are not the only means of guaranteeing a defendant freedom from involuntary self-incrimination. Chief Justice Warren wrote for the Miranda majority:

Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.

* * *

To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required [reading of Miranda warnings].

* * *

We have already pointed out that the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it. In any event, however, the issues presented are of constitutional dimensions and must be determined by the courts.

Id., 384 U.S. at 458, 478, 490, 86 S.Ct. at 1619, 1630, 1636, 16 L.Ed.2d at 714, 726, 732, 10 A.L.R.3d at 1001, 1014, 1020. (Emphasis supplied.)

The United States Supreme Court has declared that both Fifth and Sixth Amendment rights are implicated in court-ordered pre-trial psychiatric inquiries. Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981). Smith required that a defendant be given Miranda-type warnings before being asked to undergo a court-ordered psychiatric examination for competency.

There are significant differences between Smith's case and Jackson's. Smith was a criminal defendant in a Texas death penalty case. His trial had been bifurcated and the guilty verdict resulted from the first phase. He did not plead insanity or ask for a psychiatric evaluation, or attempt to introduce psychiatric evidence. Nonetheless, the state in the sentencing phase introduced psychiatric testimony about the probability that he was dangerous. The evidence came from a pre-trial psychiatric interview ordered by the court to determine his competence to stand trial, not his responsibility for criminal activity. The court found the stage of the bifurcated trial irrelevant, but emphasized defendant's decision not to proffer any psychiatric testimony. Use of evidence from a pre-trial competency psychiatric examination at a different part of the trial for a wholly different reason required that Smith be advised of his right to remain silent and be assisted by a lawyer. If he had chosen to remain silent, he could have been ordered to undergo the competency examination without voluntary consent, but the result could only be applied to evaluate his competency. Id., 451 U.S. at 468, 101 S.Ct. at 1876, 68 L.Ed.2d at 372.

Jackson was ordered for psychiatric examination about his competence to stand trial and his criminal responsibility. He introduced a great deal of psychiatric testimony to prove that he was insane. The state, then, in rebuttal, used Knapp's testimony from an April, 1979 examination to prove he was sane; and Knapp also revealed statements by Jackson about events leading up to the crime.

The Smith court consciously...