Drope v. State, 34797

Decision Date05 June 1973
Docket NumberNo. 34797,34797
Citation498 S.W.2d 838
PartiesJames Edward DROPE, Movant, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Two
CourtMissouri Court of Appeals

Bryan, Cave, McPheeters & McRoberts, Charles A. Weiss, St. Louis, for movant, appellant.

John C. Danforth, Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Julian D. Cosentino, Asst. Circuit Atty., St. Louis, for respondent.

SMITH, Judge.

James Drope appeals from a judgment of the Circuit Court denying relief on his motion filed pursuant to Rule 27.26, V.A.M.R. Specifically, he complains of the trial court's finding: (1) that he was not entitled to a psychiatric examination and hearing before, during, and after his original trial to determine his competency to be tried; (2) that he was not denied due Drope was convicted in June, 1969 of the forcible rape of his wife. That Conviction was upheld on appeal. See State v. Drope, 462 S.W.2d 677 (Mo.1971). The rape charged occurred on January 17, 1969. Drope and four of his friends entered the Drope home at approximately 1:30 a.m. and, threatening Mrs. Drope with a gun, tied her spreadeagled to the bed. They also acquired a knife from the kitchen as an additional coercive device. For approximately the next two hours they proceeded to have intercourse with her, oral and vaginal, frequently two men concurrently. Each of the four comrades of Drope had both forms of intercourse; Drope himself had oral and rectal intercourse. Drope was present throughout and apparently directed the activities, telling his friends what to do. Upon completion Mrs. Drope was left bound and gagged and, as he left, Drope advised her, '(T)his isn't the first time this is going to happen.' Mrs. Drope was released by the eldest of their five children (six years old) all located in the adjoining room, who cut the ropes with a kitchen knife. Drope was apprehended shortly thereafter when he returned home. While in police custody he admitted the activity and said it started out as a 'joke.' Following a finding of guilty by the jury the court 1 assessed punishment at life imprisonment.

process when the trial court conducted a portion of his trial in his absence; and (3) that he was not denied effective assistance of counsel.

Drope was freed on bond shortly after his arrest and was represented by counsel retained by his mother. Counsel had Drope examined in February 1969 by Dr. Joseph Shuman, a psychiatrist. Dr. Shuman prepared an extensive report after talking with Drope for approximately an hour and a half, and with Mrs. Drope, his wife.

We set out in an appendix that report in toto because of its relevance to movant's contentions. Following this report Drope, through his counsel, filed a motion for psychiatric examination which was denied bycause not in proper form. The case was set for trial, and Drope was present on the trial date. His counsel was not and explained upon his arrival that he understood the matter was not to be set until September (the trial date was June) and his client would be examined prior to trial. Counsel also professed his unreadiness to try the case. Continuance was denied and a jury selected. The next day the evidentiary portion of the trail commenced. Drope's wife testified as well as three other witnesses, two of whom were present in police headquarters when Drope made a statement admitting his participation in the rape.

The next morning Drope shot himself in the stomach with a .22 rifle. Testimony taken in connection with Drope's motion for new trial was conflicting. His testimony was that he remembered nothing about the incident except the hot pain in his stomach. His witnesses testified he was unconscious after the shooting and did not regain consciousness for some considerable time after his surgery. There was testimony, on the other hand, that Drope was conscious in the hospital and stated that he shot himself to avoid trial and to prevent being convicted for something he didn't to. Drope did have surgery and remained hospitalized for 21 days. Upon learning of the shooting the trial judge ruled that Drope's absence was voluntary and proceeded with the trial. The court's action in doing so was upheld on appeal.

Movant's motion for new trial and the hearing conducted pursuant to it devolved into the production of evidence to establish whether Drope's shooting was voluntary or involuntary. The trial court obviously found it to be voluntary. No psychiatric testimony was presented at the hearing on the motion for new trial.

Upon his hearing on his 27.26 motion, Drope produced two psychiatrists. Their testimony was uncontradicted. Both testified that they were of the opinion that there was reasonable cause to believe that a person who would attempt suicide might not be competent to understand the proceedings against him, if he was in the midst of trial. Dr. Shuman additionally testified there was a possibility that a man could voluntarily shoot himself to prevent continuance of the trial. He also stated that at the time of his earlier examination he would not have believed Drope was contemplating suicide. Both doctors opined that even if the suicide attempt was to prevent continuance of the trial, they would still desire an examination to determine whether the man was competent to stand trial.

Movant's first two points are inextricably woven together and present the question of Drope's mental state during the trial. In his first point he contends the court erred in not ordering psychiatric examination and hearing to determine his competency to stand trial.

Section 552.020, RSMo 1969 provides: '(2) Whenever any judge or magistrate has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed he shall, upon his own motion or upon motion filed by the state or by or on behalf of the accused, by order of record, appoint one or more private physicians to make a psychiatric examination of the accused . . .'

Paragraph 6 requires that if the results of the examination are contested, or if the judge on his own motion orders it, a hearing shall be held to determine competency. In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966) the statutory scheme provided by Missouri was elevated to constitutional dimensions. There it was held that where at any time during the proceedings reasonable doubt of defendant's competency arose, the trial court has an obligation sua sponte to conduct a hearing on competency. The facts upon which such hearing was required in Pate were extensive and came to the trial court's attention during the trial as a result of evidence introduced to establish Robinson's insanity at the time of the offense. It included, in part, evidence that (1) Robinson was hit by a brick while a child and thereafter acted 'peculiar;' (2) he had episodes of sudden, unexplained violence toward objects and people; (3) he would have frequent dazes and unresponsive periods; (4) he was taken to a state hospital after an episode of violence and was found to be hallucinating and thought someone was after him; (5) he shot and killed his 18 month old son, then shot himself in the head, and then tried suicide by jumping in a lagoon; (6) he killed his common law wife by walking into her place of employment, stared at her for about a minute and then shot her and another man.

The test of competency to stand trial, unchanged by Pate, is stated in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) as follows: '. . . whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding--and whether he has a rational as well as a factual understanding of the proceedings against him.' (l.c. 402, 80 S.Ct. 789). See also § 552.020(1) RSMo 1969.

By Missouri statute (§ 552.010, RSMo 1969) mental disease or defect is defined as: 'congenital and traumatic mental conditions as well as disease. They do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, whether or not such abnormality may be included under mental illness, mental disease or defect in some classifications of mental abnormality or disorder. The terms 'mental disease or defect' do not include alcoholism without psychosis or drug abuse without psychosis or an abnormality manifested only by criminal sexual psychopathy as defined in § 202.700 . . .' (Emphasis supplied).

In determining whether Drope's rights under Pate and the Missouri statutes were violated we must examine whether 'reasonable cause' existed of movant's competency at three different times--before the trial, during the trial after the suicide attempt, and at the time of the motion for new trial. Prior to the trial the court had only the Shuman psychiatric evaluation upon which to have made a determination. That evaluation does not raise a reasonable doubt of Drope's fitness to proceed. The report reflects Drope did not have 'any delusions, illusions, hallucinations, obsessions, ideas of reference, compulsions or phobias at this time.' Mr. Drope was 'well oriented in all spheres.' 'He was able, without trouble, to answer questions testing judgment.' Abnormal sexual acts are a part of his 'culture' and on the basis of the report even if sexual perversion was a form of mental disease in some cases, it apparently is not in Drope's case. The conclusions are that Drope is (1) sociopathic--a synonym for anti-social which is specifically exempted as a mental disease or defect under Missouri law; (2) sexually perverted--again exempted; (3) borderline mental deficiency--but no indication it is severe enough to prevent cooperation and understanding, and the report indicates the contrary is true; (4) chronic anxiety reaction with depression--treated by the doctor with tranquilizers and again indicated as...

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8 cases
  • State v. Vansandts, 37115
    • United States
    • Missouri Court of Appeals
    • August 10, 1976
    ...was mentally retarded, Pulliam v. State, 480 S.W.2d 896, 904 (Mo.1972); (3) the fact that an accused attempted suicide, Drope v. State, 498 S.W.2d 838, 843 (Mo.App.1973), rev'd, drope v. Missouri, supra, 420 U.S. 77, 95 S.Ct. 896, 43 L.Ed.2d 32; (4) the fact that defendant was an alleged al......
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    • Missouri Court of Appeals
    • July 23, 1973
    ...is not proved by repeated criminal conduct or episodes of sexual perversion. State v. Lowe, 442 S.W.2d 525, 529(5) (Mo.1969); Drope v. State, 498 S.W.2d 838 (Mo. SLD No. 34797, June 5, 1973); § 552.010. Nor does the record of the plea proceeding disclose that appellant behaved erratically b......
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    • United States
    • U.S. Supreme Court
    • February 19, 1975
    ...to stand trial in 1969, but the State is free to retry him, assuming that at the time of such trial he is competent to be tried. P. 183. 498 S.W.2d 838, reversed and Thomas C. Walsh. St. Louis, Mo., for petitioner. Neil MacFarlane, Columbia, Mo., for respondent. Mr. Chief Justice BURGER del......
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    • Texas Court of Appeals
    • November 9, 2010
    ...his sentence in part because he alleged he should have received a competency hearing. Id. at 168-69, 95 S.Ct. 896; Drope v. State, 498 S.W.2d 838, 839 (Mo.Ct.App.1973), rev'd, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). The Missouri Court of Appeals refused to consider psychiatric te......
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