Tuggle v. Com.

• Decision Date: 06 September 1985
• Docket Number: No. 840486,840486
• Citation: 334 S.E.2d 838,230 Va. 99
• Parties: Lem Davis TUGGLE, Jr. v. COMMONWEALTH of Virginia. Record
• Court: Virginia Supreme Court

Page 838

334 S.E.2d 838

230 Va. 99

Lem Davis TUGGLE, Jr. v. COMMONWEALTH of Virginia.

Record No. 840486.

Supreme Court of Virginia.

Sept. 6, 1985.

Jeffrey M. Gleason, Charlottesville (Martin & Martin, Charlottesville, on brief), for appellant.

Todd E. LePage, Asst. Atty. Gen. (Gerald L. Baliles, Atty. Gen., on briefs), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

This case is before us again, having been remanded from the Supreme Court of the United States. In the guilt phase of a bifurcated jury trial, Lem Davis Tuggle, Jr., was convicted of capital murder for the willful, deliberate, and premeditated murder of Jessie Geneva Havens during the commission of, or subsequent to, rape. Code § 18.2-31(e). In the penalty phase, the jury returned a verdict fixing Tuggle's punishment at death. By so doing, the jury found that the Commonwealth had proved both the "dangerousness" and "vileness" predicates beyond a reasonable doubt. The trial court confirmed the jury's verdict and sentenced Tuggle to death. We affirmed his conviction and sentence. Tuggle v. Commonwealth, 228 Va. 493, 323 S.E.2d 539 (1984).

Tuggle petitioned the Supreme Court of the United States for a writ of certiorari, and on May 13, 1985, in a summary disposition When we decided Tuggle, a state was not required to furnish a criminal defendant an independent psychiatrist. The Constitution required only that an accused's sanity be evaluated by a neutral examiner. United States v. Baldi, 344 U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1953). In Ake, however, the Supreme Court recognized for the first time that, in certain circumstances, a state is constitutionally required to provide an indigent defendant with the assistance of a psychiatrist.

the Supreme Court granted certiorari, vacated the judgment, and remanded the case to us "for further consideration in light of Ake v. Oklahoma, 470 U.S. 68 [105 S.Ct. 1087, 84 L.Ed.2d 53] (1985)." Tuggle v. Virginia, 471 U.S. ----, 105 S.Ct. 2315, 85 L.Ed.2d 835 (1985). Thereafter, we directed counsel to brief and argue the question of Ake 's impact on Tuggle's conviction and sentence.

More specifically, the Court held that "when a defendant has made a preliminary showing that his sanity at the time of the offense is likely to be a significant factor at trial, the Constitution requires that a State provide access to a psychiatrist's assistance on this issue, if the defendant cannot otherwise afford one." 470 U.S. at ----, 105 S.Ct. at 1092. Additionally, the Court held that when "future dangerousness [is] a significant factor at the sentencing phase" of a capital murder case, due process requires that an indigent defendant be entitled to psychiatric assistance on that issue. 470 U.S. at ----, 105 S.Ct. at 1099. Thus, our task is to determine the effect of the Ake holdings upon Tuggle's conviction and sentence.

I

The facts relevant to the present inquiry are undisputed. Initially, Tuggle filed a motion in the Smyth County General District Court requesting two mental evaluations. One evaluation, pursuant to Code § 19.2-169.1, would determine Tuggle's "capacity to understand the proceedings against him or to assist his attorney in his own defense." The other evaluation, pursuant to Code § 19.2-169.5, would determine whether Tuggle was sane at the time of the offense. The motion alleged that Tuggle had been in the Commonwealth's penal system for a number of years, that he was the subject of a number of psychological evaluations and tests during his confinement, and that, in approximately 1971, he was evaluated at Southwestern State Hospital for mental defects or disorders and had not been informed of the results. The general district court judge denied the motion, finding no probable cause to believe that Tuggle was incompetent to stand trial or insane at the time of the offense.

Shortly after Tuggle was indicted, he moved the trial court for an examination pursuant to Code §§ 19.2-169.1 and -169.5, relying upon the reasons previously stated. The Commonwealth's Attorney neither concurred in nor opposed the motion. Although no evidence was presented to the court in support of the motion, the court granted it solely because "this is a capital murder case."

Pursuant to the court's order, Tuggle was admitted to Central State Hospital for evaluation on November 22, 1983. Tuggle's psychiatric evaluation was conducted by Miller M. Ryans, M.D., a forensic psychiatrist, and Arthur Centor, Ph.D., a licensed clinical psychologist. On December 1, 1983, Doctors Ryans and Centor reported to the court that Tuggle was competent to stand trial and that he was sane at the time of the offense. The doctors also stated that they had formed an opinion respecting Tuggle's probability of future dangerousness, but did not report their opinion because it had not been requested.

The report reads in pertinent part:

On the basis of psychiatric interview, psychiatric evaluation, psychological interview, psychological testing, psychological evaluation, neurological examination, encephalographic examination (EEG), reports of ward behavior, and other available information, we are of the opinion that [Tuggle] is competent to plead and stand trial in that he does not lack substantial capacity to understand the proceedings We are also of the opinion that [Tuggle] was competent at the time of the alleged crime or crimes in that he was not suffering from a defect of reason due to disease of the mind or defect of the mind and knew the nature, character and consequences of his acts and the difference between right and wrong. Furthermore, we are of the opinion that [Tuggle] was not suffering from a loss of volition due to disease of the mind or defect of the mind at the time of the alleged crime or crimes; he was not suffering from an irresistible impulse.

against him or to assist in his own defense.

Because [Tuggle] is charged with a capital crime, we advised him of his Miranda Rights to have counsel present as well as the other Miranda Rights relative to the substance of our interviews being used at a hearing if he is convicted of capital murder. [Tuggle] waived his Miranda Rights and signed such a waiver. We have formed an opinion as to the issue of the probability of future dangerousness but we are not reporting it to the Court at this time because we were not requested to do so.

On December 27, 1983, Tuggle's counsel moved for an examination by C. Robert Showalter, M.D., a forensic psychiatrist, to determine Tuggle's sanity at the time of the offense and his competency to stand trial. Counsel based the motion on the belief that Tuggle was "entitled to be examined by a psychiatrist or group of psychiatrists chosen by counsel for the Defendant because of the seriousness of the charges heretofore lodged against the Defendant." (Emphasis added.) Following argument on January 3, 1984, the trial court denied the motion. The court observed that Tuggle previously had been evaluated at his own request, that the trial date was close at hand (14 days), and that logistical problems would cause a further evaluation to be cursory at best. The trial judge stated that he had previously "granted the motion for an evaluation because of the seriousness of the case." (Emphasis added.)

We affirmed this ruling, noting that Tuggle did not premise his request for a private psychiatrist upon a need to rebut evidence of future dangerousness. 228 Va. at 503, 323 S.E.2d at 544-45. Additionally, we held that whether a second evaluation was warranted was "a matter resting within the sound discretion of the trial court," and that no abuse of discretion had been shown. Id. at 503, 323 S.E.2d at 545.

Neither party presented psychiatric evidence at the guilt phase of Tuggle's trial. At the penalty phase, however, Dr. Centor testified that Tuggle "shows a high probability of future dangerousness." Tuggle objected to this testimony solely on the ground that he was examined without the benefit of counsel. We rejected this contention, concluding that Tuggle voluntarily, knowingly, and intelligently waived his right to counsel. 228 Va. at 515, 323 S.E.2d at 552.

II

First, we consider the effect of Ake on the guilt phase of Tuggle's trial. As previously noted, the Supreme Court held that a state must assure an indigent defendant "access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense" when the defendant "demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial." 470 U.S. at ----, 105 S.Ct. at 1097. Thus, before an indigent defendant is entitled to such psychiatric assistance, he must make a "threshold showing to the trial court that his sanity is likely to be a significant factor in his defense." Id.

These are the facts in Ake: Ake was charged with murdering a couple and wounding their two children. During pre-arraignment confinement and at arraignment, which was just four months after the offenses, Ake's behavior was so bizarre that the trial judge sua sponte ordered him to undergo a psychiatric examination. A psychiatrist diagnosed Ake as a probable Thereupon, Ake was committed to an Oklahoma state hospital for an examination respecting his competency to stand trial. The chief forensic psychiatrist at the hospital advised the court that Ake was not competent to stand trial. The court then conducted a competency hearing, at which a psychiatrist testified:

paranoid schizophrenic and recommended an extensive psychiatric evaluation to ascertain whether Ake was competent to stand trial. The psychiatrist reported: "At times [Ake] appears to be frankly delusional.... He claims to be the 'sword of vengeance' of the Lord and that he will sit at the left hand of God in heaven."

[Ake] is a psychotic ... his psychiatric diagnosis was that of paranoid schizophrenia--chronic, with exacerbation, that is...