State v. Paynter

Decision Date10 December 1999
Docket NumberNo. 26205.,26205.
Citation206 W.Va. 521,526 S.E.2d 43
CourtWest Virginia Supreme Court
PartiesSTATE of West Virginia, Plaintiff Below, Appellee, v. Lowell Eugene PAYNTER, Defendant Below, Appellant.
Dissenting Opinion of Justice Maynard December 15, 1999.

Richard E. Holicker, Assistant Public Defender, Charleston, West Virginia, Attorney for the Appellant.

Darrell V. McGraw, Jr., Attorney General, David P. Cleek, Senior Deputy Attorney General, Charleston, West Virginia, Attorneys for the Appellee. DAVIS, Justice:

Lowell Eugene Paynter appeals his conviction for second-degree murder. Mr. Paynter first argues that the trial court erred when it failed to grant his request for a mental competency evaluation, which request was made after Mr. Paynter had already been found competent by a psychologist. In addition, Mr. Paynter contends that his due process rights were violated by the State's loss or destruction of certain, possibly exculpatory, evidence. We find that the court erred in failing to order a psychiatric evaluation of Mr. Paynter because his first competency evaluation did not comport with W. Va.Code § 27-6A-1(a) (1983) (Repl.Vol.1999). For this reason, we reverse the conviction and remand this case for a new trial. In addition, however, we conclude that a cautionary instruction given by the court was sufficient to protect Mr. Paynter's due process rights with regard to the missing evidence.


The appellant, Lowell Eugene Paynter (hereinafter "Paynter"), defendant below, a forty-six year old paraplegic who is confined to a wheelchair, spent the night of July 25, 1996, and early morning of July 26, 1996, at his home in Mingo County drinking heavily with the victim, Thea Renee Taylor (hereinafter "Ms. Taylor"), his live-in girlfriend. Sometime in the early morning hours of July 26, 1996, Ms. Taylor suffered a single, fatal, gunshot wound to the left side of her head. Thereafter, Paynter telephoned his ex-wife, who, accompanied by various others, drove to Paynter's house and then called 911 and reported that Ms. Taylor had committed suicide.

Among the several law enforcement officers responding to the scene was Deputy Barry J. Blair (hereinafter "Deputy Blair") of the Mingo County Sheriff's Department. While at the scene, Deputy Blair used a gunshot residue kit to obtain samples from Ms. Taylor's hands to be tested for gunshot residue. The samples were sent to the West Virginia State Police Forensic Laboratory for testing. However, they were not tested as the forensic chemist concluded that "[t]hey [did] not have a probative value since they originated from surfaces which were in close proximity to the discharge." Thereafter, the samples were lost or destroyed.1

On August 7, 1998, a Mingo County Grand Jury returned an indictment charging Paynter with the murder of Ms. Taylor.

Prior to Paynter's trial in the Circuit Court of Mingo County, his counsel filed a "MOTION FOR MENTAL STATUS EXAMINATION" requesting a psychiatric examination pursuant to W. Va.Code § 27-6A-1(a) (1983) (Repl.Vol.1999), to determine, inter alia, if Paynter was competent to stand trial. Thereafter, the circuit court ordered that Paynter undergo a psychological evaluation to determine, in part, Paynter's competency to stand trial. In its order, the court expressed its belief that Paynter "may be incompetent to stand trial or may not be criminally responsible by reason of mental illness, retardation or addiction, pursuant to W. Va.Code § 27-6A-1(a), as amended...."

In accordance with this order, Paynter was evaluated by Timothy S. Saar, Ph.D., a licensed psychologist. By letter dated July 23, 1998, Dr. Saar expressed his opinion that Paynter was competent to stand trial.2

Paynter's competence was not further addressed on the record until pre-trial proceedings conducted on the day his trial was to begin.3 At that time, Paynter's counsel informed the trial judge that Paynter was delusional, had heard voices, and believed that the prosecuting attorney represented him. Although Paynter's counsel did not expressly request another competency evaluation, the record clearly indicates that Paynter's competence was being raised for this reason. Furthermore, the trial judge informed Paynter's counsel that any such motion would be denied.4

At the conclusion of trial, Paynter was convicted of second-degree murder. By subsequent order, entered September 15, 1998, the Circuit Court of Mingo County sentenced Paynter to a definite term of thirty-five years. It is from this sentencing order that Paynter now appeals.5


In this appeal, we are asked to interpret W. Va.Code § 27-6A-1(a) (1983) (Repl.Vol.1999) and to determine whether Paynter's due process rights were violated due to the State's loss or destruction of certain evidence. To the extent that we are asked to interpret a statute or address a question of law, our review is de novo. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Moreover, "[i]n reviewing challenges to the findings and conclusions of the circuit court, we apply a two prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard." Syl. pt. 2, in part, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997).

A. Psychological Evaluation

Paynter argues that the mental status examination he underwent was insufficient as it was conducted by only a psychologist when W. Va.Code § 27-6A-1(a) requires that a mental status examination be conducted by a psychologist and a psychiatrist, or one or more psychiatrists. The State responds that defense counsel failed to object to the sufficiency of the exam.

1. Appealability of error. Before considering the substantive issue raised, we first address whether this error was preserved. The State is correct that the record contains no express objection by the defendant as to the sufficiency of his psychological competency exam. In this regard, we have frequently espoused the general rule that

"[t]he Supreme Court of Appeals is limited in its authority to resolve assignments of nonjurisdictional errors to a consideration of those matters passed upon by the court below and fairly arising upon the portions of the record designated for appellate review." Syl. Pt. 6, in part, Parker v. Knowlton Const. Co., Inc., 158 W.Va. 314, 210 S.E.2d 918 (1975).

Syl. pt. 2, Trent v. Cook, 198 W.Va. 601, 482 S.E.2d 218 (1996). Because the trial court was not asked to address the specific issue of its failure to order a psychiatric evaluation, we may only consider this question if it falls within the plain error doctrine. In describing the plain error doctrine, we have explained that:

Historically, the "plain error" doctrine "authorizes [an appellate court] to correct only `particularly egregious errors' ... that `seriously affect the fairness, integrity or public reputation of judicial proceedings[.]'" United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1, 12 (1985). (Citations omitted). Plain error warrants reversal "solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S. 152, 163 n. 14, 102 S.Ct. 1584, 1592 n. 14, 71 L.Ed.2d 816, 827 n. 14 (1982).

State v. Miller, 194 W.Va. 3, 18, 459 S.E.2d 114, 129 (1995). Moreover, we have set forth the elements required for this Court to recognize plain error by holding "[t]o trigger application of the `plain error' doctrine, there must be (1) an error; (2) that is plain; (3) that affects substantial rights; and (4) seriously affects the fairness, integrity, or public reputation of the judicial proceedings." Syl. pt. 7, Miller.

We find that the present issue may properly be addressed under the plain error doctrine. First, as we explain below in this opinion, we find the court erred in failing to follow the requirements of W. Va.Code § 27-6A-1. Second, in light of the plain language of the relevant portion of W. Va.Code § 27-6A-1 and existing case law on this topic (which is also discussed below), we find the error was plain. Third, we have previously stated that "a person cannot be tried, sentenced or punished while mentally incapacitated," and "adequate state procedures must exist to make certain that a legally incompetent accused is not convicted." State v. Demastus, 165 W.Va. 572, 582, 270 S.E.2d 649, 656 (1980) (citing State v. Harrison, 36 W.Va. 729, 15 S.E. 982 (1892), Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956),Pate v. Robinson, 383 U.S. 375, 386, 86 S.Ct. 836, 842-43, 15 L.Ed.2d 815, 822-23 (1966), and Martin v. Estelle, 492 F.2d 1120 (5th Cir.1974)). It has also been said that "it is legally impermissible for a person who is mentally incompetent to be tried, convicted or sentenced. This is a fundamental guarantee of due process." 2 Franklin D. Cleckley "Handbook on West Virginia Criminal Procedure" 11-125 (2d ed. 1993) (citing State v. Cheshire, 170 W.Va. 217, 292 S.E.2d 628 (1982),State v. Bias, 177 W.Va. 302, 352 S.E.2d 52 (1986) and State v. Arnold, 159 W.Va. 158, 219 S.E.2d 922 (1975),overruled on other grounds by State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649). A circuit court's failure to follow the proper statutory procedures to preserve this fundamental due process guarantee affects a defendant's substantial rights. Lastly, such failure creates a greater risk that mentally incompetent individuals will be improperly subjected to trials wherein they may be convicted and sentenced in violation of their due process rights, thus,...

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