Anderson v. State

• Citation: 493 S.W.2d 681
• Decision Date: 04 April 1973
• Docket Number: Nos. 9242 and 9286,s. 9242 and 9286
• Parties: Dale Dewayne ANDERSON, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Court of Appeal of Missouri (US)

Page 681

493 S.W.2d 681

Dale Dewayne ANDERSON, Movant-Appellant, v. STATE of Missouri, Respondent.

Nos. 9242 and 9286.

Missouri Court of Appeals, Springfield District,

April 4, 1973.

C. H. Parsons, Jr., Dexter, for movant-appellant.

John C. Danforth, Atty. Gen., Charles B. Blackmar, Sp., Asst. Atty. Gen., Jefferson City, for respondent.

TITUS, Chief Judge.

Dale Dewayne Anderson has appealed from the judgment of the Circuit Court of Stoddard County denying his Rule 27.26 V.A.M.R., motion to vacate a sentence of seven years for stealing property of a value of at least fifty dollars. §§ 560.156, 560.161, subd. 1(2), RSMo 1969, V.A.M.S. Movant pleaded guilty to the charge on October 9, 1970, following a hearing which equaled, if not exceeded, the procedure recommended in Flood v. State, 476 S.W.2d 529, 535--337 (Mo.1972). Sentence was deferred until November 2, 1970, awaiting a report on an ordered pre-sentence investigation. Appellant was represented by appointed counsel when he pleaded guilty and by different appointed counsel at the evidentiary hearing on the motion.

A motion filed under Rule 27.26 is an independent civil action which is governed, insofar as applicable, by the Rules of Civil Procedure. Rule 27.26(a). 'The prisoner has the burden of establishing his grounds for relief by a preponderance of the evidence' (Rule 27.26(f); State v. Davis, 438 S.W.2d 232, 234(2) (Mo.1969)), and, upon appellate review, we are 'limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.' Rule 27.26(j); Jones v. State, 471 S.W.2d 223, 226(1) (Mo.1971). If they are not, the judgment must be affirmed. Cheek v. State, 490 S.W.2d 75, 76--77 (Mo.1973).

Appellant's first point relied on is that his constitutional rights and privileges were violated when the trial court accepted his plea of guilty before the written report relative to his responsibility for criminal conduct by reason of mental disease or defect was filed in the cause. This point was not raised in the motion when filed but was added are tenus by the court's indulgence at the evidentiary hearing. Rule 27.26(h). Nevertheless, the point, as written, and the argument portion of appellant's brief neglects to inform us 'why' it is alleged that such action prejudiced movant or violated any of his rights or privileges. Rule 84.04(d). The record reveals counsel for movant on the stealing charge learned by interviewing Anderson that the client had a history of receiving examinations at mental institutions in New Mexico, Arkansas, Missouri and Illinois, and having been confined in an Illinois hospital for three years. This history was associated with the then 22-year-old defendant's record of frequent and repeated encounters with the law from the time he was eight years of age. Noting at the motion hearing 'the sanity thing was not (Anderson's) idea,' appointed counsel filed notice of defendant's purpose to rely upon the defense of 'not guilty by reason of mental disease or defect excluding responsibility' (§ 552.030, subd. 2, RSMo 1969, V.A.M.S.) and requested that Anderson be given a psychiatric examination. § 552.020, subd. 2, RSMo 1969, V.A.M.S. The request was granted and movant was sent to State Hospital No. 1. Anderson was returned from the hospital October 2, 1970 and the written report was filed October 10, 1970. As the trial judge observed in his fact findings, the formal report, in substance, stated that Anderson had no mental defect or disease as defined in Ch. 552, RMSo 1969, V.A.M.S., that he had the cpacity and ability to understand the proceedings against him and to assist in his own defense, and that he did know and appreciate the nature, quality and wrongfulness of his conduct and could conduct himself according to the requirements of the law. At the evidentiary hearing conducted on the Rule 27.26 motion, movant denied he was aware of the contends of the report when he pleaded guilty on October 9, 1970, the day before the report was formally filed. On the other hand, the attorney representing Anderson on the stealing charge testified that when he came to court on October, 9, 'I was not coming up on his charge . . . when I walked in . . . I was notified (Anderson) wanted to talk to me . . . and he told me that he wanted to enter a plea of guilty. . . . I didn't (urge him to plead guilty). In fact, that specific morning the report from the hospital was not back yet, and I urged him against pleading guilty until that report came back, and he told me that he knew what the result of that report was going to be, and he wanted to go ahead and plead guilty . . . that they did not find that he had any defect.' The transcript of the proceedings conducted at the time Anderson pleaded guilty (an exhibit at the evidentiary hearing on the motion) discloses movant was specifically informed that he had 'the right to wait until that report comes back and to see the contents of that report before going further with this case.' Anderson acknowledged his awareness of such a right but, nonetheless, desired 'to go ahead and enter (a) plea in spite of that.'

Movant's apparent complaints regarding his first point are that he was denied the 'right to a private examination' as provided in § 552.020, subd. 4, RSMo 1969, V.A.M.S.; that he was entitled to an evidentiary hearing to determine his competency, § 552.020, subd. 6, RSMo 1969, V.A.M.S.; and that the trial court erred in accepting his plea of guilty on the day before the written psychiatric report was filed. Some of the difficulty with movant's position is he did not contest the report of the psychiatric opinion nor request an order for a private examination, although he had ample opportunity to do so between the time the report was filed on October 10, 1970, and sentence was imposed on November 2, 1970. A judicial competency hearing was not required in the absence of defendant's objection to the report or other circumstances which rendered the report substantially suspect (McCormick v. State, 463 S.W.2d 789, 790 (Mo.1971)), and when the pre-sentence psychiatric report did not indicate a state of mental disease or defect sufficient to exclude responsibility, the trial court was not required sua sponte to take any further action. United States v. Maret, 433 F.2d 1064, 1067 (8th Cir. 1970), cert. denied 402 U.S. 989, 91 S.Ct. 1678, 29 L.Ed.2d 155; Gregg v. Missouri Department of Corrections, 335 F.Supp. 344, 346 (W.D.Mo.1971). Movant relies on Brizendine v. Swenson, 302 F.Supp. 1011, 1919(5) (W.D.Mo. 1969) which holds that if the trial court orders a psychiatric examination, a bona fide or substantial doubt as to defendant's competency is judicially established. But as pointed out in Gregg, supra, Brizendine was issued prior to United States v. Maret, 793 (N.D.Cal.1959), aff'd, Scherck v. authority for the proposition that a negative psychiatric report, sans exception thereto or circumstances rendering it suspect, will serve to vitiate any previous doubt as to a defendant's competency. In a Rule 27.26 hearing, the trial court has the right and duty to pass upon the credibility of the witnesses (State v. Shields, 441 S.W.2d 719(2) (Mo.1969)) and it was under no obligation to accept as true movant's denial that he knew the conclusions of the psychiatric report before entering his plea. State v. Hamel, 420 S.W.2d 264, 267 (Mo.1967). Instead, the trial court, as it specifically found, possessed the right to believe '(m)ovant had advised his attorney what the report was going to be and as a transcript of the guilty plea reveals Movant was questioned . . . about (his) desire to proceed without waiting for the formal report to be received.' If, as counsel testified and the trial court found, movant was in fact aware of the results of the examination, filing of the report would be a mere technicality that...