State v. Milam
Decision Date | 20 November 1979 |
Docket Number | No. 14060,14060 |
Citation | 260 S.E.2d 295,163 W.Va. 752 |
Court | West Virginia Supreme Court |
Parties | STATE of West Virginia v. Luther MILAM. |
Syllabus by the Court
1. It is error to deprive the defendant of an opportunity to produce psychiatric testimony at an In camera hearing to show that his confession was not voluntary because he was probably insane at the time he gave it.
2. There exists in the trial of an accused a presumption of sanity. However, should the accused offer evidence that he was insane, the presumption of sanity disappears and the burden is on the prosecution to prove beyond a reasonable doubt that the defendant was sane at the time of the offense.
3. "The Double Jeopardy Clause of the Federal and this State's Constitutions forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding." Syllabus Point 4, State v. Frazier, W.Va., 252 S.E.2d 39 (1979).
D. Grove Moler, Mullens, for plaintiff in error.
Chauncey Browning, Atty. Gen., Gregory W. Bailey, Asst. Atty. Gen., Charleston, for defendant in error.
The defendant, Luther A. Milam, was convicted of second degree murder in the Circuit Court of Wyoming County. The conviction was obtained upon a retrial following this Court's reversal of his previous conviction on the same charge, State v. Milam, W.Va., 226 S.E.2d 433 (1976).
This appeal rests principally on three grounds. The first raises a claim of surprise resulting from the introduction of a written confession and the further assertion that it was involuntary. The confession was not introduced in the first trial and was not disclosed to the defense attorney until after the commencement of the second trial. The second ground challenges the trial court's ruling regarding the jury instruction on the defense of insanity. The third ground relates to the sufficiency of the State's proof of the defendant's sanity.
The factual events surrounding the death of the victim are for the most part undisputed, and are set forth in the earlier opinion of this Court upon appeal from the first trial of the defendant, State v. Milam, supra. The defendant his a history of organic brain injury and psychiatric hospitalization. He lived in the same apartment building as the victim, with whom he had a hostile relationship. A day or so prior to his death, the victim was seen armed and apparently lying in wait for the defendant. On the day of the homicide, the victim was shot twice by the defendant in the hallway of their apartment building following a brief argument. At the first and second trials, the principal defense was insanity.
The prosecution introduced a written confession given by the defendant to the State Police on the day of the shooting. No confession had been produced at the first trial and its existence was unknown to the defendant's attorney. The current prosecuting attorney, having not participated in the first trial, asserted that he first discovered the confession while searching his files at midnight on the day preceding the trial. He notified the defendant's counsel of its existence following the noon recess and after opening statements were presented, but before any witnesses had been called.
The court then held an In camera hearing in which the police officers who had taken the confession testified to its voluntariness. The defendant's attorney objected to the introduction of the confession on the ground of surprise. He stated the defendant had never told him that he had given a statement to the police and that it was not introduced at the first trial. He further objected on the basis that, since the chief defense in the case was the insanity of the defendant at the time of the homicide, the voluntariness of the confession could not be ascertained without psychiatric testimony. 1 The court overruled defense counsel's objection and the confession was admitted in the State's case-in-chief. 2
In our jurisdiction the obligation of the prosecution to disclose relevant evidence prior to trial varies with the nature of the evidence and the impact that nondisclosure would have on the trial preparation by the defense. In State v. Dudick, W.Va., 213 S.E.2d 458 (1975), we stated:
In State v. Cowan, 156 W.Va. 827, 197 S.E.2d 641 (1973), the defendant wrote an incriminating letter while he was in jail. It came into the possession of the prosecutor during the trial, but was not made known to the defendant's attorney until the prosecutor used it to impeach the defendant on cross-examination. Cowan held the impeachment to be error, and discussed various aspects of discovery in a criminal case:
(156 W.Va. at 833, 197 S.E.2d at 645)
Cowan also placed a great deal of reliance on our early case of State v. Price, 100 W.Va. 699, 131 S.E. 710 (1926), which involved a retrial of a murder case. Prior to the retrial the defense had requested a bill of particulars as to the evidence on which the State expected to rely. The prosecutor responded informally that he would rely on the evidence introduced at the first trial. However, at the retrial there was a material change in the evidence submitted by the State. Cowan quoted the following statement from Price :
"Where a party or his counsel are taken by surprise, whether by fraud or accident, on a material point or circumstance which could not reasonably have been anticipated, and when want of skill, care or attention cannot be justly imputed and injustice has been done, a new trial will be granted." (156 W.Va. at 837, 197 S.E.2d at 647, Quoting 100 W.Va. at 702, 131 S.E. at 712)
As noted in Cowan, "State v. Price, supra, dealt neither with the right of a defendant for pre-trial discovery nor with the question of whether a prosecutor complied with an order for pre-trial discovery . . . ." (156 W.Va. at 837, 197 S.E.2d at 647). Price's linchpin was "(s)urprise, whether by fraud or accident, on a material point or circumstance which could not reasonably have been anticipated . . . and (where) injustice has been done . . . ." (100 W.Va. at 702, 131 S.E. at 712)
Here, the sudden emergence of the confession after the opening statements were made involved more than surprise. 3 Because insanity was the chief defense relied upon at the first and second trials, this issue played an important role in the factual determination of whether the confession was voluntary. Defense counsel objected to the introduction of the confession in the State's case so that he could have an opportunity to show through psychiatric testimony that the defendant was probably not sane at the time he gave the confession. The court overruled the objection and permitted the confession to be admitted in the State's case.
At least since Blackburn v. Alabama, 361 U.S. 199, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960), the United States Supreme Court has recognized that due process considerations will vitiate a confession where it is shown that the defendant was probably insane at the time he gave it:
"In the case at bar, the evidence indisputably establishes the strongest probability that Blackburn was insane and incompetent at the time he allegedly confessed. Surely in the present stage of our civilization a most basic sense of justice is affronted by the spectacle of incarcerating a human being upon the basis of a statement he made while insane; and this judgment can without difficulty be articulated in terms of the unreliability of the confession, the lack of rational choice of the accused, or simply a strong conviction that our system of law enforcement should not operate so as to take advantage of a person in this fashion. . . .
(361 U.S. at...
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