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Glasgow police shooting suspect ruled not competent

CHARLESTON, W.Va. -- A man who allegedly shot Glasgow police officer Steven Smith with a sawed-off shotgun at point-blank range last year may not be competent to stand trial.

Kanawha Circuit Judge Carrie Webster made a preliminary ruling Monday that Nickey Don Smith II was not competent to stand trial for the shooting of Steven Smith after two psychologists filed reports questioning the suspect's competence. Webster scheduled a hearing for Jan. 24 for lawyers to argue over whether Nickey Don Smith, 37, has the mental capacity to help in his own defense.

Meanwhile, assistant prosecutor Kenneth Starcher asked for a third evaluation of Nickey Smith's mental state.

In December 2011, Nickey Smith allegedly shot Steven Smith in the arm and chest with a sawed-off shotgun when the officer went to Nickey Smith's Glass Fire Lane home to help investigate a burglary report. The two men are not related.

The blast shattered the officer's right arm and peppered his lung and liver with shotgun pellets. Smith has had three complex surgeries to rebuild his arm, and is still picking pellets, pieces of glass and bits of wood out of his body.

Officer Smith does not know if his wounds will ever heal enough for him to go back into police work. "I want to come back" to the police department, Steven Smith said after Monday's hearing. "I don't want them to win."

Nickey Don Smith was to have stood trial Monday on a charge of malicious wounding in connection with Steven Smith's shooting, but Webster was forced to postpone the trial in light of new information about the suspect's mental state. Richard Holicker, Nickey Don Smith's lawyer, said two psychologists interviewed the suspect and determined he was not competent to stand trial.

In June, Nickey Don Smith pleaded guilty in U.S. District Court to federal charges of being a felon in possession of a firearm in connection with the shooting. Prior to the plea agreement, Holicker said Nickey Smith's federal defense attorney asked for a psychological evaluation of the suspect.

That evaluation found that Nickey Smith would not be able to adequately take part in his own defense because of a "delusional disorder," but defense attorneys apparently didn't get a copy of the report until Nickey Smith had already pleaded guilty. Based on that evaluation, Holicker asked for a second psychological evaluation, which also found Nickey Smith incompetent to stand trial.

Under state law, Webster had no choice but to declare Nickey Smith incompetent until a hearing can be held to determine whether he can take part in his own defense.

If found not competent, state law says Nickey Smith would be sent to a state hospital facility for treatment until he is able to take part in his defense. At least one of the psychologists who evaluated the suspect wrote that he thought Nickey Smith would be competent to stand trial if given the proper medications.

But Webster, prosecutors and defense lawyers don't yet know if they can transfer Nickey Smith to a hospital while he's in federal custody. Webster asked Holicker and Starcher to contact federal officials to answer that question before January's hearing.

Nickey Smith's sentencing on the federal gun charge is scheduled for Wednesday. Federal prosecutors intend to proceed with the sentencing.

Steven Smith said he was not surprised that Holicker is arguing that Nickey Smith is incapable of standing trial. Although frustrated, the officer said Nickey Smith "has a right to be properly defended."

"This is how it works," he said.

But Steven Smith believes the suspect is mentally competent.

"He did what he did, and I honestly believe he knew what he was doing," he said. "I'd rather just go to trial and get on with my life."

Reach Rusty Marks at rustymarks@wvgazette.com or 304-348-1215.


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