State v. Swiger, 16539

• Decision Date: 01 November 1985
• Docket Number: No. 16539,16539
• Citation: 175 W.Va. 578,336 S.E.2d 541
• Parties: STATE of West Virginia v. Bobby Gene SWIGER, Jr.
• Court: West Virginia Supreme Court

Page 541

336 S.E.2d 541 175 W.Va. 578 STATE of West Virginia
v.
Bobby Gene SWIGER, Jr. No. 16539. Supreme Court of Appeals of
West Virginia. Nov. 1, 1985.

Page 542

[175 W.Va. 579] Syllabus by the Court

1. "In the determination of a claim that an accused was prejudiced by ineffective assistance of counsel violative of Article III, Section 14 of the West Virginia Constitution and the Sixth Amendment to the United States Constitution, courts should measure and compare the questioned counsel's performance by whether he exhibited the normal and customary degree of skill possessed by attorneys who are reasonably knowledgeable of criminal law, except that proved counsel error which does not affect the outcome of the case, will be regarded as harmless error." Syl.

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pt. 19, State v. Thomas, 157 W.Va. 640, 203 S.E.2d 445 (1974).

2. "An accused person, although he may have been sane at the time of the acts charged, cannot be tried, sentenced or punished while mentally incapacitated." Syl. pt. 1, State v. Arnold, 159 W.Va. 158, 219 S.E.2d 922 (1975), overruled upon other grounds in syl. pt. 4, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980).

[175 W.Va. 580] 3. "To be competent to stand trial, a defendant must exhibit a sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational, as well as factual, understanding of the proceedings against him." Syl. pt. 2, State v. Arnold, 159 W.Va. 158, 219 S.E.2d 922 (1975), overruled upon other grounds in syl. pt. 4, State v. Demastus, 165 W.Va. 572, 270 S.E.2d 649 (1980).

4. A circuit court committed reversible error in finding a criminal defendant mentally competent to stand trial, where the sole witnesses who testified at the hearing to determine the defendant's competency were a psychologist and a psychiatrist, and the record clearly revealed that, (1) the testimony of the psychologist that the defendant was competent to stand trial was equivocal and subject to a previous indication by that psychologist that a psychiatric evaluation should be conducted to "support or deny" the psychologist's opinion concerning the defendant's competency, and (2) the psychiatrist, who examined the defendant upon two occasions, consistently maintained that the defendant was incompetent to stand trial. W.Va. Code, 27-6A-1 [1983]; W.Va. Code, 27-6A-2 [1979].

5. Where a defendant in a felony case, found by a court of record to be incompetent to stand trial, is civilly committed to a mental health facility pursuant to W.Va. Code, 27-6A-2(d) [1979], and W.Va. Code, 27-5-1 et seq. [1979], the defendant's competency to stand trial shall, pursuant to W.Va. Code, 27-6A-2(d) [1979], thereafter be periodically reviewed.

Pamela J. Eliopulos and John E. Shank, Asst. Pros. Attys., Wood County Courthouse, Parkersburg, for appellant.

Charles R. Carten, Donna H. Peters-Humphreys, Charleston, for appellee.

McHUGH, Justice:

This case is before this Court upon the appeal of Bobby Gene Swiger, Jr., from the final order of the Circuit Court of Wood County, West Virginia. The appellant was convicted in 1984 in circuit court of sexual assault in the first degree, W.Va. Code, 61-8B-3 [1976], and assault during the commission of or attempt to commit a felony, W.Va. Code, 61-2-10 [1931]. ¹ Pursuant to those convictions, the appellant was sentenced to two concurrent penitentiary terms. ²

The appellant contended that he was not guilty "by reason of insanity" of the offenses charged in the indictment. He further contended that he was not competent to stand trial. Upon granting the appeal in this case, we granted the appellant's motion for leave to move to reverse. W.Va. Code, 58-5-25 [1931]. In March, 1985, we ordered that the appellant be transferred from the Wood County Correctional Facility to Spencer Hospital (Roane County) pending appeal. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel. Assisting in the preparation of

Page 544

the appellant's brief was counsel for the West Virginia Advocates for the Developmentally Disabled. I THE FACTS

On June 2, 1982, the appellant, 19 years old, attended a party at the home of Howard and Darlene Hutson in Wood County. Several adults and children were present. Late that evening, while the children were sleeping in various rooms of the house, [175 W.Va. 581] Darlene Hutson discovered the appellant in the kitchen area pulling up his pants. The appellant walked past Mrs. Hutson and out of the house. Mrs. Hutson then saw her five-year-old niece, L.H., lying seriously injured upon the kitchen floor. L.H. was taken to a hospital where it was determined that she had been sexually assaulted. She had also received injuries to her neck from choking or strangulation.

Following his arrest and preliminary hearing, the appellant in July, 1982 was indicted in Wood County upon charges of (1) sexual assault in the first degree, (2) sexual abuse in the first degree, (3) assault during the commission of a felony, (4) assault during the attempt to commit a felony and (5) attempted murder. The appellant entered a plea of not guilty "by reason of insanity." He also brought into question his competency to stand trial.

II

EXAMINATIONS AND HOSPITALIZATIONS

In June and July, 1982, the appellant was examined in Wood County by B.M. Hirani, a psychiatrist, and Alan D. Sturdevant, a psychologist. W.Va. Code, 27-6A-1(a) [1977]. Although Hirani and Sturdevant were unable to reach an opinion as to whether the appellant had the capacity to be criminally responsible for the alleged assault upon L.H., they concluded that the appellant suffered from mental retardation and that he was incompetent to stand trial. The appellant was then transferred to Spencer Hospital for further examination. W.Va. Code, 27-6A-1(b) [1977].

In August 1982 at Spencer, the appellant was examined by John R. Atkinson, Jr., a psychologist, who concluded that the appellant suffered from no condition "which would diminish [the appellant's] responsibility" for the alleged assault upon L.H. However, Atkinson also concluded that the appellant suffered from mental retardation and was incompetent to stand trial. In addition, as reflected by medical reports completed in August, 1982 and March, 1983, Danis Soylu, a medical doctor at Spencer Hospital, confirmed the appellant's mental retardation and incompetency to stand trial. ³

Subsequent to the appellant's hospitalization at Spencer, the circuit court found that the appellant was incompetent to stand trial and dismissed the July, 1982 indictment. Thereafter, the circuit court committed the appellant to Weston Hospital (Lewis County) with the authority to transfer the appellant to the Greenbrier Center medical facility (Greenbrier County).

Arthur N. Ward, a staff physician at Weston Hospital, indicated that the appellant suffered from mental retardation.

In May, 1983, the appellant was transferred to the Greenbrier Center, and, in October, 1983, the circuit court was informed that the staff at Greenbrier had reached a consensus that the appellant's mental condition had improved and that he was competent to stand trial. As indicated in the record, the opinions of the Greenbrier staff were reflected in the written report of Alonzo L. Brown, a staff psychologist at Greenbrier. However, although Brown wrote that he considered the appellant competent

Page 545

to stand trial, Brown had indicated previously that a psychiatric evaluation would be necessary to "support or deny the Greenbrier Center staff opinion" that the appellant was competent to stand trial.

Finally, in early November, 1983 the appellant was again examined by Dr. Hirani in Wood County. As indicated above, Dr. Hirani had examined the appellant in 1982. Dr. Hirani again found the appellant incompetent to stand trial. His November, 1983 report stated as follows:

The patient was found to be fairly cooperative, respectful, compliant and he followed simple orders quite well. However,[175 W.Va. 582] his speech was marked by 'don't know' responses, and it was not possible to gather any kind of meaningful information. It was the impression of the examiner that the patient was not putting on an act and that he was incapable of giving any definite and meaningful information.

....

When he was questioned about the charges, he had no idea at all. Also, he had no idea at all about the various officials that are present in a courtroom and their functions.

....

Competency assessment revealed that he had total disability in several areas which would render him quite incompetent to stand trial.

....

He is at present unable to consult with his attorney and to assist his attorney in...