State v. Milam, 13618

CourtSupreme Court of West Virginia
Writing for the CourtBERRY
Citation159 W.Va. 691,226 S.E.2d 433
PartiesSTATE of West Virginia v. Luther A. MILAM.
Docket NumberNo. 13618,13618
Decision Date13 July 1976

Page 433

226 S.E.2d 433
159 W.Va. 691
STATE of West Virginia
Luther A. MILAM.
No. 13618.
Supreme Court of Appeals of West Virginia.
July 13, 1976.

Page 435

Syllabus by the Court

1. No person may be subjected to trial on a criminal charge when, by virtue of mental incapacity, the person is unable to consult with his attorney and to assist in the preparation of this defense with a reasonable degree of rational understanding of the nature and object of the proceedings against him.

2. Under the provisions of W.Va.Code, 27--6A--1, As amended, when a trial court has reason to believe that a defendant in a criminal case may be incompetent to stand trial and orders a mental examination of the defendant, the defendant is entitled as a matter of right to a full evidentiary hearing on the question of his competency.

3. In making any of the findings required by W.Va.Code, 27--6A--1, As amended, a trial court may not simply adopt as its own the recommendations of medical experts, but rather, based on an examination of the totality of the evidence, it should make an independent determination as to

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whether the defendant is competent to stand trial.

4. In a criminal case, the granting or denial of a motion for continuance rests in the sound discretion of the trial court and the refusal to grant such continuance constitutes reversible error only where the discretion is abused.

5. Medical records reflecting the treatment of a defendant for mental disease are material to a determination of the question of the defendant's competency to stand trial and to a defense of insanity.

[159 W.Va. 692] 6. When instructions are read as a whole and adequately advise the jury of all necessary elements for their consideration, the fact that a single instruction is incomplete or lacks a particular element will not constitute grounds for disturbing a jury verdict.

7. A criminal defendant is entitled, as a matter of right, to an instruction to the jury that he is presumed to be innocent of the crime for which he is charged and it is reversible error to refuse to give such an instruction unless the statement is contained in other instructions.

8. 'A plea of not guilty by reason of insanity is an affirmative defense, and the accused has the burden of proof on the issue of insanity which must be proved by a preponderance of the evidence.' State v. Grimm, W.Va., 195 S.E.2d 637 (1973).

9. It is not error to refuse an instruction which attempts to advise the jury as to the disposition of the defendant in the event of a finding of not guilty by reason of insanity where the instruction does not accurately specify the procedure established by law to govern such cases.

D. Grove Moler and Thomas D. Poe, Mullens, for plaintiff in error.

Chauncey H. Browning, Jr., Atty. Gen., David P. Cleek, Asst. Atty. Gen., Charleston, for defendant in error.

[159 W.Va. 693] BERRY, Chief Justice.

On June 28, 1974, Luther A. Milam shot and killed one Seaboy Gillespie in Mullens, Wyoming County, West Virginia. As a result of his actions, Milam was indicted, tried before a jury, and found guilty of first degree murder with a recommendation of mercy. The Circuit Court of Wyoming County entered a judgment on the jury verdict and Milam now appeals.

There is no material conflict in the facts surrounding the killing of Seaboy Gillespie as those facts wee developed during the trial below. The defendant, the decedent and two other elderly men lived in quarters behind the office of a local justice of the peace in Mullens. The defendant had strong religious feelings which were manifested in part by a preoccupation with cleanliness and he regularly cleaned the common areas occupied by the men. Gillespie was very closely attached to a dog which was his constant companion. An antagonism arose between Milam and Gillespie concerning the dog and the mess it made which the defendant was required to clean. Further, the defendant had strong negative feelings about the decedent's drinking habits.

Shortly before the killing, Gillespie's canine companion died of natural causes but Gillespie was convinced that the defendant had placed a curse or hex on the dog. As a result, on the day immediately preceding the killing, Gillespie obtained a gun and laid in wait for Milam. Gillespie was disarmed before he could take action against the defendant. On the following day, the justice of the peace and his secretary heard the sound of a shot from the area occupied by the men. When he opened the door to the adjoining apartment, the justice of the peace witnessed Milam fire a second shot from a pistol into the body of Illespie as Gillespie was falling forward. Medical evidence indicated that Gillespie had been shot twice with the same weapon, once in the heart and once in the head, and that either shot would have been fatal.

[159 W.Va. 694] Following his arrest, on motion of defense counsel, concurred in by the prosecuting attorney, the defendant was committed for observation and psychiatric evaluation

Page 437

at the Huntington State Hospital in Huntington, West Virginia. Thereafter, Dr. J. V. Ottaviano, the clinical director of the Huntington State Hospital reported to the Circuit Court of Wyoming County that Milam showed signs of schizophrenia, paranoia and organic brain impairment. Based on his observations, Dr. Ottaviano concluded that the defendant was 'able to assist his attorney in his defense.' Although he reached this conclusion, in describing Milam's general condition, the doctor noted that '(h)e is quite evasive and talks in generalities . . .. His memory of recent events is partially reliable but strongly coulded with his declusions. Memory of remote events is quite confused.'

Following the first mental examination and before trial, the defendant was referred to a psychiatrist at the Beckley Mental Health Center in Beckley, West Virginia for further evaluation. Based on his examination, Dr. Leslie Borbely, a psychiatrist and clinical director of the Beckley Mental Health Center, reported that Milam was suffering from schizophrenic reaction, paranoid type, mild mental definciency and organic brain damage. In concluding that the defendant was not competent to stand trial or to assist counsel, Dr. Borbely stated '(t)his man appeared to be quite disorganized and often inappropriate . . . and his throught process became disconnected and disorganized. His judgment is severely impaired.'

On the date set for trial, counsel for the defendant objected to trial and sought a hearing in accordance with the provisions of W.Va.Code, 26--6A--2, As amended, for a determination by the court of the defendant's competence to stand trial. Because the medical reports contained conflicting opinions, the court refused to conduct a haring and overruled the objection to trial.

[159 W.Va. 695] At the same time as the motion for a hearing on the defendant's competency, counsel for Milam sought a continuance to obtain information concerning a prior institutional treatment of the defendant. Counsel advised the court that on the night before trial, during a conversation with the defendant, he had discovered that the defendant psychiatric care at a facility in Buffalo, New York. Apparently this was the first discovery by counsel or any person of this treatment. Counsel sought time to obtain the records of the defendant's commitment the records of the defendant's commitment to support a proposed insanity defense. Initially, the trial court denied the motion for a continuance but thereafter suggested that a telephone call be made to the New York hospital to determine the relevant circumstances. Upon making the telephone call, the court and counsel were advised that Luther Milam was a patient at the hospital in Buffalo, New York from 1967 to 1970. However, officials at that hospital refused to provide detailed information without proper authorization. Following this exchange, the motion for continuance was overruled; the trial court stating that it would consider any information obtained from Buffalo as 'after discovered evidence' on a motion for a new trial in the event that the defendant was convicted.

During the trial, the defendant relied almost exclusively on the defense of insanity. Testifying on behalf of the defendant, Dr. Borbely stated that Milam was suffering from both mental disease and defect and that at the time of the killing of Gillespie he could not distinguish between right and wrong. Dr. Borbely further stated that the defendant did not feel any remorse about killing Gillespie and that he felt morally justified in doing what he had done. Dr. Terisito Alquizola, a psychiatrist from the Huntington State Hospital called as a rebuttal witness on behalf of the State, concurred in the diagnosis that the defendant was suffering from psychosis. Dr. Alquizola concluded that Milam knew right from wrong in a general sense but that he was suffering from a 'messianic complex' which led him to [159 W.Va. 696] believe that he has a mission to clean the world of filth and that the killing of Seaboy Gillepie was morally right.

After the evidence was concluded and the instructions read, the jury retired for approximately fifteen minutes, after which

Page 438

the foreman of the jury sought advice from the court. At the time, the following occurred:

'The Court: 'Now what is the question, Mr. Wingo?'

'Mr. Wingo: 'We was wanting to know what the...

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