State v. Nuckolls
| Decision Date | 19 December 1980 |
| Docket Number | No. 14701,14701 |
| Citation | 166 W.Va. 259,273 S.E.2d 87 |
| Parties | STATE of West Virginia v. Lucille S. NUCKOLLS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "It is prejudicial error in a criminal case for the prosecutor to make statements in final argument amounting to a comment on the failure of the defendant to testify." Syl. pt. 3, State v. Noe, W.Va., 230 S.E.2d 826 (1976).
2. 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; however, when the court gives an instruction on this subject which correctly states the law and to which the defendant does not object, the defendant may not later assign such instruction as error.
Preiser & Wilson, Franklin S. Fragale, Jr., and John W. Swisher, Charleston, for plaintiff in error.
Chauncey H. Browning, Atty. Gen., S. Clark Woodroe, Asst. Atty. Gen., Charleston, for defendant in error.
Lucille S. Nuckolls appeals from her conviction for the murder of her husband, Robert E. Nuckolls, and her sentence to life imprisonment without mercy in the Circuit Court of Mercer County. The appellant assigns numerous errors; 1 however, our disposition of the two primary assignments make it unnecessary to address the others. We award appellant a new trial primarily because the prosecutor made statements that amounted to a comment on her failure to testify. However, we have also found confusion about the propriety of an instruction offered by the defense which would have informed the jury about what would happen if the defendant were found not guilty by reason of insanity. We also take this opportunity to address that issue.
The essential facts on the evening of the homicide are not in controversy. Kevin Nuckolls, defendant's fifteen-year-old son, testified that on the evening of the shooting, 30 September 1977, he went to bed upstairs, and his mother went to sleep downstairs at about 10 or 10:30 P.M. on a "day bed," as had been her custom for several years. Kevin testified that later that evening he was suddenly awakened by an argument between his parents. He, along with his seventeen-year-old sister, Christi, who had come in and gone to sleep after Kevin, went to the top of the stairs and yelled at their parents to keep quiet. After returning to their rooms, they both subsequently heard the sound of gun shots. The two then went downstairs and found their father lying on the floor and their mother holding a pistol. Kevin and Christi tried to take the weapon from their mother, but in the ensuing struggle both children were shot and wounded. Their father, Robert Nuckolls, was killed by three gunshot wounds.
The defendant did not testify but eight witnesses testified that she had a reputation for being a law-abiding citizen. The defendant's brother and the victim's sister-in-law also testified that they had seen the victim physically abuse the defendant. In addition to this testimony, the defendant introduced testimony of two psychiatrists and a psychologist, each of whom concluded that the defendant suffered from a form of schizophrenia and that she had been legally insane at the time of the shooting.
The State introduced testimony of various members of the community, all of whom testified that the Nuckolls appeared to have a good marital relationship. Dr. Weston, a psychiatric consultant hired by the State, testified that the defendant was not, in his opinion, insane at the time of the shooting. While the doctors for the defense based their conclusions on independent examinations and tests of the defendant, Doctor Weston relied on testimony presented during the trial and the reports of the doctors for the defense.
We have always scrupulously protected the defendant's right not to take the stand under the Fifth Amendment to the Constitution of the United States and Article III, Section 5 of the Constitution of West Virginia. 2 In addition, under W.Va.Code, 57-3-6 (1923) the failure of a criminal defendant to testify cannot be the subject of comment before the court or jury by anyone. 3 As our Court has long recognized "the law, having brought the prisoner into court against his will, (does) not permit his silence to be treated or used as evidence against him." State v. Taylor, 57 W.Va. 228, 235, 50 S.E. 247, 249 (1905).
During his closing argument the prosecuting attorney made the following statement:
If Lucille Nuckolls hadn't killed her husband that night we wouldn't be here. I haven't seen her, you haven't seen her, nobody in the Court Room has seen her. She is a person of mystery. No one has seen her. Did any one of the psychiatrists tell you this was catatonic schizophrenia? Catatonic is when you sit and stare with no expression at all. Don't say anything, you don't do anything, and it is also a way to snow people. It is a way to get in here and act and behave so that you say, It is what the psychiatrists told you when she took her examination didn't they? I want to know what was in Lucille Nuckolls' mind when she killed her husband ...
The question before us is whether that statement amounted to a comment on the failure of the defendant to testify, State v. Noe, W.Va., 230 S.E.2d 826 (1976). 4 Our Court has allowed prosecutorial statements that did not specifically refer to the defendant's failure to testify, State v. Simon, 132 W.Va. 322, 52 S.E.2d 725 (1949); however, the Simon exception has been limited to instances in which the prosecutor stated that the evidence was uncontroverted. Here the references to the defendant's failure to take the stand were not subtle; they were repeated accusations. While the comments were ostensibly directed at the defendant's insanity defense, they clearly amounted to a comment upon the failure of the defendant to testify.
In short, while "(w)e are aware that the intensity of the moment may be productive of language which is intemperate or overdrawn," State v. Noe, W.Va., 230 S.E.2d 826 (1976), "the State should studiously avoid even the slightest hint as to the defendant's failure to testify." State v. Lindsey, W.Va., 233 S.E.2d 734, 740 (1977).
Our decision to award a new trial is reinforced by the prosecutor's prejudicial and inflammatory conduct during the trial. In State v. Boyd, W.Va., 233 S.E.2d 710 (1977), we stated in syllabus point three that a prosecutor must occupy a quasi-judicial role in the trial of a criminal case and that "he is required to avoid the role of a partisan, eager to convict, and must deal fairly with the accused as well as the other participants in the trial." Yet in his closing argument, despite the fact that ABA Code DR 7-106(C)(4) requires that a lawyer not "(a)ssert his personal opinion as to the justness of a cause, as to the credibility of a witness ... or as to the guilt or innocence of the accused," the prosecutor said, "(i)f Lucille Nuckolls doesn't have to pay under the law, I would be the first one, as chief law enforcement officer of this county, to tell you she didn't have to."
Trial counsel for the defendant offered a brief instruction about the applicable procedure if the appellant were found not guilty by reason of insanity, 5 but the court refused the instruction on the grounds that it did not set out the proper procedure pursuant to W.Va.Code, 27-5-1 et seq. (1979) and W.Va.Code, 27-6A-3 (1974), which provide for hospitalization of defendants found not guilty by reason of mental illness. Counsel then submitted a seven page instruction which outlined the proper procedure, but the court refused the instruction because it was too long, too involved, and too complicated. After the court indicated that it would refuse the instruction, appellant's counsel withdrew the instruction since he apparently thought it confusing. In refusing the instruction the court relied on State v. Milam, W.Va., 226 S.E.2d 433 (1976); however, in Milam, we held that an...
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