State v. Neal

• Decision Date: 22 July 1988
• Docket Number: No. 17577,17577
• Citation: 371 S.E.2d 633,179 W.Va. 705
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Larry Dean NEAL.

Page 633

371 S.E.2d 633

179 W.Va. 705

STATE of West Virginia v. Larry Dean NEAL.

No. 17577.

Supreme Court of Appeals of West Virginia.

July 22, 1988.

Syllabus by the Court

1. "When the accused's mental condition at the time of the offense is an issue, evidence of the accused's mental condition either before or after the offense is admissible so far as it is relevant to the accused's mental condition at the time of the offense." Syl. pt. 5, State v. McWilliams, 177 W.Va. 369, 352 S.E.2d 120 (1986).

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.' Syllabus Point 10, State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955)." Syl. pt. 4, State v. Ashcraft, 172 W.Va. 640, 309 S.E.2d 600 (1983).

3. " 'An indictment for a statutory offense is sufficient if, in charging the offense, it substantially follows the language of the statute, fully informs the accused of the particular offense with which he is charged and enables the court to determine the statute on which the charge is based.' Syllabus Point 3, State v. Hall, 172 W.Va. 138, 304 S.E.2d 43 (1983)." State v. Neary, 179 W.Va. 115, 365 S.E.2d 395 (1987).

4. " 'Sentences imposed by the trial court, if within statutory limits and if not based on some impermissible factor, are not subject to appellate review.' Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982)." Syl. pt. 6, State v. Bennett, 172 W.Va. 123, 304 S.E.2d 28 (1983).

Lee H. Adler, Beckley, for Larry Dean Neal.

Charles G. Brown, Atty. Gen., Charleston, for State.

PER CURIAM:

This case is before the Court upon the appeal of Larry Dean Neal from an order of the Circuit Court of Raleigh County, denying his motion to set aside his conviction of malicious wounding and attempted murder, and sentencing him to consecutive terms of two-to-ten years and one-to-five years. ¹ The jury also answered affirmatively on firearm interrogatories submitted for each count. The appellant contends that his convictions should be reversed because, among other issues: (1) the trial judge erred when he admitted certain expert testimony concerning the appellant's mental capacity; (2) the indictment for attempted murder was defective. The appellant also contends that the trial judge abused his discretion when he ordered the sentences to run consecutively.

In July of 1983, Officers Lilly and Peck cited Neal for reckless driving in Beckley, West Virginia. Both officers testified that the appellant was very cooperative and followed all instructions. Fifteen minutes after he received the ticket, Neal went to the local police department and admittedly deceived a clerk. He stated that the officers who previously cited him accidentally kept his license. The clerk summoned Lilly, who went to his cruiser to search for the allegedly missing license. Neal later followed Lilly outside, stating to the clerk that he had parked his vehicle near the cruiser.

Lilly searched the vehicle and was returning to the station when Neal fired three shots to his throat, left arm, and right side, critically injuring him. For the remainder of the incident, Lilly was unconscious.

Within seconds, Officer Sweeney appeared on the scene. Neal and Sweeney were within forty feet of one another, with the parked cruiser between them. Sweeney hunched behind one side of the cruiser, rose, drew his weapon and ordered Neal to stop. Neal, while continuing to flee, fired at Sweeney. The bullet lodged in the blue light on top of the cruiser, which was in the vicinity of Sweeney's head.

Two other officers then appeared and attended to Lilly while Officer Sweeney pursued Neal. At this point, there is conflicting testimony. Sweeney testified that the appellant fired another shot in his direction. Neal testified he attempted to commit suicide by firing at his own head, but was unsuccessful. The bullet was not recovered.

Sweeney apprehended Neal, and admitted that he threatened to kill Neal. He and another officer escorted Neal to the station. Both officers testified that following Miranda warnings, Neal asked if Officer Lilly was alive. When the officers indicated that they did not know Lilly's status, Neal alleged responded, "I should have shot the m_____ f_____ again." ² During a custodial interrogation, Neal stated that he had shot Lilly because he was very depressed and had, just prior to the shooting, been involved in an argument concerning his inability to purchase marihuana. ³

Neal was indicted on three counts: count 1, listed on the indictment as felonious assault (of Lilly); count 2, listed as attempted murder (of Lilly); count 3, listed as attempted murder (of Sweeney).

Count 2 was dismissed during the trial. The jury convicted the accused of count 1, felonious assault (of Lilly) and count 3, attempted first degree murder (of Sweeney) and affirmatively answered interrogatories regarding the use of a firearm for each count. The jury was also instructed as to the insanity defense and the lesser-included misdemeanor offenses of battery for count 1 and attempted second degree murder for count 3.

Neal's primary defense to both charges was that he was incompetent at the time of the shooting.

Prior to trial, the Court ordered an examination of Neal by a psychiatrist, Dr. Thomas Knapp, and testing by a psychologist, Donald Swick "for the purpose of determining the Defendant's criminal responsibility for the crimes he stands charged."

The accused's experts were psychiatrist, Dr. John MacCallum, and psychologist Hall, who performed tests pursuant to Dr. MacCallum's request. Of the four experts, only Dr. MacCallum testified on Neal's behalf. The other three were the State's witnesses.

All four experts agreed that the tests performed by the two psychologists do not reflect that the accused has any type of severe mental disease or defect. All four experts agreed that Neal suffers from depression. Their differences were merely in a matter of degree of depression and the effect of depression on one's ability to render rational responses.

Dr. MacCallum, the accused's only expert, testified that the appellant had suffered from a major depressive disorder of some seven years duration. As a result of this depression, Dr. MacCallum testified that the accused was unable to conform his behavior to the requirements of the law. Dr. MacCallum explained:

[T]he severity and the intensity of his depression left him so much without self-esteem and inner emotional control that when all of this happened, he was unable to think about anything else except the expression of the anger and under those circumstances he did not think about the consequences of his behavior. He may have been able to appreciate the directiveness of his behavior, but that was only because his goal was to express the anger.

Dr. MacCallum admitted that the accused's test results did not reveal such problems; however, his diagnosis was largely based on interviews with the accused which revealed a history of personal failures culminating on the night of the shooting. ⁴

Psychologist Hall, who performed the psychological tests for Dr. MacCallum, was called as a witness for the State and testified that his test results did reveal a major depressive disorder. However, he opined that major depressive disorders do not render one incapable of appreciating the wrongfulness of his acts or conforming his acts to the requirements of the law.

State psychiatrist Knapp testified that based on an interview with Neal and the testing performed by the State's psychologist, Swick, the accused suffers from a mild to chronic depressive disorder, common to most persons, which does not render one incapable of making rational responses. Psychologist Swick testified that his test results confirmed Dr. Knapp's findings.

Neal testified and admitted to entering the station with a gun and lying about the license. He denied firing at Officer Sweeney twice, but admitted firing once. In explaining his behavior, Neal stated he "just snapped."

I

The appellant makes several assignments of error concerning trial court rulings on the distinction between competency to stand trial and criminal responsibility at the time of the shooting. These assignments amount to essentially two arguments. First, he contends that the psychologists and Dr. Knapp should have been precluded from rendering opinions concerning Neal's mental state at the time of the shooting since they examined Neal for the purpose of determining competency to stand trial. ⁵ Second, the accused contends that the trial judge erred when he permitted the prosecutor in his closing statement to make reference to the accused's mental status at the time of trial, since his defense was lack of criminal responsibility at the time the crime was committed.

This Court has specifically chosen not to address the parameters of psychiatric testimony in criminal cases where the insanity defense has been utilized. State v. McFarland, 175 W.Va. 205, 220, 332 S.E.2d 217, 232 (1987). However, as the appellant notes, we have distinguished between competency to stand trial and criminal responsibility at the time of the crime's commission. State ex rel. Smith v. Scott, 167 W.Va. 231, 280 S.E.2d 811 (1981).

In Smith, while we noted that these are two distinct issues, evidence or data collected for the purposes of establishing one may be relevant for the other:

We repeat for emphasis, and lest we be misunderstood, that evidence as to insanity at any time--the present as well as any other--may be admitted insofar as it is relevant to the mental condition of the accused at the time of the offense; that is where it is used by a witness as part of the data upon which he bases a conclusion as to the mental condition at the time of the offense.

State ex rel. Smith v. Scott, 167 W.Va. 231, 235, 280 S.E.2d 811, 814 (198...