State v. Simmons

• Decision Date: 14 November 1983
• Docket Number: No. 15859,15859
• Citation: 172 W.Va. 590,309 S.E.2d 89
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Betty Jean Dowd SIMMONS.

Page 89

309 S.E.2d 89

172 W.Va. 590

STATE of West Virginia v. Betty Jean Dowd SIMMONS.

No. 15859.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1983.

Syllabus by the Court

1. W.Va.Code, 27-3-1(a), provides for confidentiality of communications and information obtained in the course of treatment and evaluation of persons who may have mental or emotional conditions or disorders, subject to the exceptions set out in W.Va.Code, 27-3-1(b).

2. W.Va.Code, 27-3-1(b), specifies five situations where information otherwise deemed confidential may be disclosed. One of the exceptions is for proceedings under W.Va.Code, 27-6A-1, which relates to court-ordered mental examinations. This exception would permit disclosure of the results of such an examination by the examining professional.

3. Access to records held by a third party can be obtained under W.Va.Code, 27-3-1(b)(3), which permits a court to order production of such material if it finds "that said information is sufficiently relevant to a proceeding before the court to outweigh the importance of maintaining the confidentiality established by this section."

4. "Proffered instructions which do not correctly state the law, which are at variance with the charge in the indictment, which are not supported by the evidence, or which are abstract, are erroneous and should be refused." Syllabus Point 3, State v. Starr, 158 W.Va. 905, 216 S.E.2d 242 (1975).

5. "Where a person who has been accused of committing a crime makes a voluntary statement that is inadmissible as evidence in the State's case in chief because the statement was made after the accused had requested a lawyer, the statement may be admissible solely for impeachment purposes when the accused takes the stand at his trial and offers testimony contradicting the prior voluntary statement knowing that such prior voluntary statement is inadmissible as evidence in the State's case in chief." Syllabus Point 4, State v. Goodmon, 170 W.Va. 123, 290 S.E.2d 260 (1981).

6. "We have generally defined hearsay as where a witness testifies in court with regard to out-of-court statements of another for the purpose of proving the truth of the matter asserted." Syllabus Point 9, State v. Richey, 171 W.Va. 342, 298 S.E.2d 879 (1982) .

Haranzo & McGuane and Michael W. McGuane, Riley & Broadwater and W. Craig Broadwater, Wheeling, for appellant.

Chauncey H. Browning, Atty. Gen., Silas B. Taylor and Ann Ewart, Asst. Attys. Gen., Charleston, for appellee.

MILLER, Justice:

Betty Jean Dowd Simmons appeals from her conviction by a jury in the Circuit Court of Ohio County of second-degree murder, for which she was sentenced to serve an indeterminate period of five to eighteen years. In her petition, the defendant argues that the trial court erred: in appointing the State's psychiatrist, Dr. David Smith, and in admitting his testimony into evidence; in refusing to grant her instruction relating to the effect of her mental condition upon the elements of the crime; in allowing a tape-recorded confession of the defendant to be played before the jury; in refusing to allow a witness to testify as to a remark made by the deceased; in restricting the scope of voir dire; and, in denying her motion for judgment of acquittal. After a thorough review of the record and a full consideration of the arguments presented, we conclude that the trial court did not commit reversible error and affirm the conviction.

At trial the defendant testified that in the early evening of April 10, 1981, she received a telephone call from her stepson Arthur Simmons, Jr., who was calling from a telephone booth outside of the Playmate bar in Wheeling, West Virginia. He related that he had just seen Jackie Rudolph (also known as Jacqueline Rae Rudolph West) take money out of his father's pockets.

The defendant also testified that prior to the homicide, her relationship with the victim, Ms. Rudolph, was strained because Ms. Rudolph claimed to be having an affair with the defendant's husband. The defendant stated that Ms. Rudolph constantly harassed her over the telephone about the alleged extramarital relationship and publicly swore at the defendant on a few occasions.

After receiving the telephone call, the defendant went upstairs to get dressed and in the process picked up a handgun that she and her husband kept in their bedroom. At trial, she testified that her memory of the subsequent events was incomplete. She remembered walking to the Playmate bar, which was near her home. She stated that she saw Ms. Rudolph outside the bar, slapped her and then went home, but she could not remember shooting her.

After returning home, the defendant testified that she took five or six valium pills. During the course of the evening, prior to the shooting, the defendant testified that she had consumed an unspecified amount of alcohol, marijuana, and quaaludes while playing cards with friends. Three witnesses testified to seeing the defendant shoot and kill Ms. Rudolph, who died from a gunshot wound to her head.

I.

A.

The first assignment of error involves the court-ordered psychiatric examination of the defendant. This examination was made upon the request of the State and was conducted by a Dr. David Smith, who subsequently testified at trial. The defendant contends that the trial court erred in allowing Dr. Smith to testify for several reasons. First, the State's motion to have the defendant examined by Dr. Smith was untimely and prejudiced the defendant's trial preparation. Second, Dr. Smith violated the defendant's physician-patient privilege with Dr. David Hill, her treating psychiatrist, when he reviewed Dr. Hill's medical records. Third, Dr. Smith violated W.Va.Code, 27-3-1, when he examined the defendant's medical records.

In order to better understand the defendant's arguments surrounding the court-ordered psychiatric examination, some additional facts are necessary. On October 8, 1981, the defendant's original attorneys filed a motion for discovery, pursuant to Rule 16 of the West Virginia Rules of Criminal Procedure ¹ (hereinafter cited as W.V.R.Cr.P.). The discovery motion requested, among other things, a list of the witnesses and copies of all reports, scientific tests, and experiments that the State intended to use in its case. On November 24, 1981, the State substantially complied with the defendant's request. The State also filed with its answers a motion requesting disclosure of evidence from the defendant, pursuant to Rule 16(b)(1)(A), (B) and (C), including a request for a list of the defendant's witnesses, reports of any mental or physical examinations and copies of documents.

On June 3, 1982, new trial counsel were appointed to represent the defendant and they filed a motion on that same date giving the State notice, pursuant to Rule 12.2(a) of the W.V.R.Cr.P., ² that they intended to present a defense based upon insanity. The trial court initially denied the defendant's motion, but at a subsequent hearing ruled that the defendant could present an insanity defense.

On July 26, 1982, two days before the trial was scheduled to begin, the State moved, pursuant to W.Va.Code, 27-6A-1(a), ³ and Rule 12.2(c) and (d) ⁴ of the W.V.R.Cr.P to have the defendant examined by a psychiatrist, Dr. David Smith. The State's motion for psychiatric examination was discussed at a pretrial hearing held before the trial court on July 26, 1982. The prosecuting attorney indicated that he had not received any written reports from the defense psychiatrist and that he had recently learned that the defendant had been hospitalized in May, 1981, for some mental condition.

The defendant objected to the State's motion on the ground that it was filed two days prior to trial, which would not allow the defendant enough time to properly prepare to meet the State's psychiatric testimony. The trial court granted the motion, ruling that the defendant had opened the door to the use of psychiatric evidence by raising the insanity defense and also holding that in the interest of fairness, the State needed the opportunity to have the defendant examined by its psychiatrist.

The defendant argues that the prosecution's late request for psychiatric examination should be determined to be prejudicial under Syllabus Point 2 of State v. Grimm, 165 W.Va. 547, 270 S.E.2d 173 (1980), ⁵ which dealt with nondisclosure of evidence which the State was ordered to produce as a result of the defendant's pretrial discovery motions. Here, the issue is a late request by the State for a psychiatric examination which to some extent differs from our cases involving nondisclosure or late disclosure of evidence previously ordered produced by the court. E.g., State v. Schrader, 172 W.Va. 1, 302 S.E.2d 70 (1982); State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256 (1981); State v. Ward, 168 W.Va. 385, 284 S.E.2d 881 (1981); State v. Grimm, supra; Wilhelm v. Whyte, 161 W.Va. 67, 239 S.E.2d 735 (1977). The chief difference is that a State's request for a psychiatric examination is usually triggered by the use of an insanity defense by the defendant. Therefore, the element of surprise is considerably less since the defendant is already aware of the insanity issue. We believe that in this case, the Grimm test for prejudice can be used by analogy in determining whether the defendant was surprised on a material issue which hampered the preparation and presentation of her case.

The chief argument advanced by defense counsel is that the late examination was upsetting to the defendant and that defense counsel did not have an adequate opportunity to prepare for cross-examination or to secure another psychiatric witness to rebut Dr. Smith.

We note initially that defense counsel made no motion to continue the trial for a few days when the State's motion for psychiatric examination was made before the court. We believe that the failure to move for a continuance may have a material bearing on whether the...