State v. Watson
| Decision Date | 18 June 1984 |
| Docket Number | No. 16057,16057 |
| Citation | 173 W.Va. 553,318 S.E.2d 603 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia v. David Glen WATSON. |
1. "When a trial judge is made aware of a possible problem with defendant's competency, it is abuse of discretion to deny a motion for psychiatric examination. To the extent State v. Arnold, 159 W.Va. 158, 219 S.E.2d 922 (1975), differs from this 2. Genuine attempts at suicide constitute evidence of irrational behavior. When these acts are brought to the attention of a trial judge, he should order a psychiatric examination of a defendant.
rule, it is overruled." Syllabus Point 4, State v. Demastus, W.Va., 270 S.E.2d 649 (1980)
3. The term "statement" is defined in Rule 26.2(f) of the West Virginia Rules of Criminal Procedure and includes a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.
4. Even though the grand jury proceedings which involve a witness's statement have not been typed, this does not exempt the statement from the requirements of Rule 26.2 of the West Virginia Rules of Criminal Procedure.
5. Under the "in the possession of" language of Rule 26.2(f) of the West Virginia Rules of Criminal Procedure, a prosecutor is required to disclose statements to which he has access even though he does not have the present physical possession of the statements.
6. "A pretrial identification by photograph will be set aside if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Syllabus Point 4, State v. Harless, W.Va., 285 S.E.2d 461 (1981).
7. Syllabus Point 6, State v. Harless, W.Va., 285 S.E.2d 461 (1981).
8. A photographic array will not be deemed unduly suggestive merely because the defendant's photograph is of a different color than the others in the array. However, such an array will be closely scrutinized for other objectionable discrepancies, and such discrepancies, if found, will render the array unduly suggestive.
9. "The question of the competency of a child as a witness in any case is always addressed to the sound discretion of the trial judge, and if it appears that a careful and full examination as to the age, intelligence, capacity and moral accountability has been made by the judge and counsel and the trial judge has concluded that he is competent, the appellate court will not reverse the ruling which permits the evidence to be introduced unless it is apparent that it was flagrantly wrong." Syllabus Point 6, State v. Daggett, W.Va., 280 S.E.2d 545 (1981).
10. An instruction which permits a jury to infer, but states they need not so infer, a certain conclusion from an established set of facts does not create an impermissible burden-shifting presumption.
Michael & Kupec, Thomas R. Michael, Atty., Clarksburg, for appellant.
J. Bradley Russell, Asst. Atty. Gen., Charleston, for appellee.
The defendant, David Glen Watson, was convicted of breaking and entering the home of Albert Merandi. He claims that the circuit court erred in failing to order a pretrial mental examination upon his written motion. He asserts that the court failed to follow the provisions of Rule 26.2 of the Rules of Criminal Procedure by denying him the right to obtain a witness's statement. Additionally, he argues that the trial court erred in submitting his photograph to the jury and that it was placed in an unduly suggestive photographic array. Further error rests on the contention that an eleven-year-old witness was too young to testify and that there were erroneous jury instructions. We conclude that the defendant was entitled to a mental examination and that the trial court failed to follow Rule 26.2. We, therefore, reverse the judgment of the Circuit Court of Harrison County.
On November 18, 1982, the home of Albert Merandi was broken into and a stereo receiver was stolen. Merandi's eleven-year-old daughter, Miranda Merandi, was home at the time. She heard a crash and saw someone at the bottom of a set of stairs. She telephoned her father who drove home from work. As he approached his home, Mr. Merandi saw a person whom he later identified as the defendant in an alley behind his house.
Based upon information received from the Merandis, the police officers who investigated the crime prepared a photographic display consisting of five photographs. Those photographs were shown to Miranda Merandi who identified the photograph of the defendant as that of the person who was in her house. Her father also identified the defendant's photograph. This photographic array is challenged by the defendant on several grounds.
While awaiting trial, the defendant, on three occasions, allegedly attempted to commit suicide. Because of these attempts, defense counsel moved for a pretrial mental examination to determine the defendant's competency to stand trial. After conducting a short, untranscribed hearing, the trial court denied the motion. 1 The denial of the mental examination is the defendant's first ground of appeal.
In State v. Echard, W.Va., 280 S.E.2d 724 (1981), we addressed the question of whether an attempt at suicide sufficiently raises the question of mental competency to require a trial court to order the psychiatric examination of a defendant pursuant to the provisions of W.Va.Code, 27-6A-1. After considering Syllabus Point 4 of State v. Demastus, W.Va., 270 S.E.2d 649 (1980), we concluded in Echard, 280 S.E.2d at 725:
In Syllabus Point 4 of Demastus, we said:
In reaching this conclusion, we stated:
"A judge may be made aware of a possible problem with defendant's competency by such factors as: a lawyer's representation concerning the competence of his client; a history of mental illness or behavioral abnormalities; previous confinement for mental disturbance; documented proof of mental disturbance; evidence of irrational behavior; demeanor observed by the judge; and, psychiatric and lay testimony about competency. State v. Arnold, supra 219 We believe, as we indicated in Echard, that genuine attempts at suicide constitute evidence of irrational behavior. When these acts are brought to the attention of a trial judge, he should order a psychiatric examination of a defendant. Under the circumstances of this case, the trial judge abused his discretion in failing to order a psychiatric examination of the defendant.
S.E.2d, at 926, citing: Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966). These factors are restated in State v. Milam, 159 W.Va. 691, 226 S.E.2d 433 (1976)." 270 S.E.2d at 656, n. 9.
The defendant assigns as error the fact that the trial court refused to allow him to examine a witness's pretrial statement. This assignment raises several questions regarding Rule 26.2 of the Rules of Criminal Procedure relating to production of statements of witnesses.
During trial, at an in camera suppression hearing on the pretrial photographic identification, a police officer testified concerning the photographic array identification procedure. Additionally, he testified about Miranda Merandi's description of the person she saw in her house. At the conclusion of the testimony, defense counsel requested, under Rule 26.2, that he be provided with a copy of any statement made by the witness.
The prosecutor responded that the witness had made no written statement. Defense counsel stated the rule was not limited to written statements, but included statements made to the grand jury which are recorded or otherwise transcribed. The court responded that it was unreasonable to delay the trial while the court reporter located and transcribed the applicable grand jury minutes and consequently overruled defense counsel's request. 2 The State argues that Rule 26.2(a) refers to statements "in their possession" and that the grand jury minutes were not in the possession of the prosecuting attorney. 3 We disagree.
Our Rule 26.2 is patterned after Rule 26.2 of the Federal Rules of Criminal Procedure, which rule has only recently been incorporated into the federal rules of criminal procedure. 4 The advisory committee's note to Federal Rule 26.2 reflects that the rule developed from two sources. 8A J. Moore, Moore's Federal Practice p 26.2.01 (1983). The first was the Jencks Act, 18 U.S.C. § 3500, which provided a rather detailed procedure requiring the government to produce written statements of witnesses who testified at trial. The defendant had to request production of the written statement once the witness completed his direct examination. 5
The second source was the case of United States v. Nobles, 422 U.S. 225, 95 S.Ct.
2160, 45 L.Ed.2d 141 (1975), where the United States Supreme Court recognized under certain circumstances that the prosecutor could...
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