Boyer v. State, 35417

• Decision Date: 02 September 1975
• Docket Number: No. 35417,35417
• Citation: 527 S.W.2d 432
• Parties: Joseph A. BOYER, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 432

527 S.W.2d 432

Joseph A. BOYER, Appellant, v. STATE of Missouri, Respondent.

No. 35417.

Missouri Court of Appeals, St. Louis District, Division One.

Sept. 2, 1975.

Joseph S. Sanchez, Hillsboro, for appellant.

John C. Danforth, Atty. Gen., K. Preston Dean, II, Chief Counsel, Crim. Div., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Joseph Boyer appeals from denial of his Rule 27.26 motion to vacate the life sentence entered on a conviction of first degree murder under § 559.010 RSMo. ¹ Appellant contends: (1) he was entitled to and did not receive a hearing on the issue of his competency to stand trial; (2) that he did not receive effective assistance of counsel at trial or (3) on appeal; and (4) the trial court erroneously admitted oral and written confessions made by Boyer after his arrest which were involuntary and tainted by a prior unlawful statement made before the Miranda warnings were given. Our review is 'limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous' Rule 27.26(j). We affirm.

Appellant was apprehended and charged with theft of an automobile on the day of the crime. Following arrest and before his Miranda rights were explained, appellant admitted killing a gas station attendant in Pevely, Missouri, to one of the arresting officers. This confession was neither offered nor received in evidence. Warned thereafter of his 'Miranda' ² rights, appellant made three confessions of the murder, twice to police officers and once to an assistant prosecutor.

On the day following Boyer's arrest, defense counsel notified the court of his intention to rely upon the defense of insanity under § 552.030 V.A.M.S. and obtained a psychiatric evaluation of appellant at the Fulton State Hospital where he was kept under observation for 3 1/2 months. The written report of that examination, dated February 6, 1970, concluded unequivocally that appellant was sane at the time of the crime under § 552.030 and competent for trial within the meaning of § 552.020. Roland Wegmann, appointed co-counsel in March, 1970, obtained a second psychiatric examination under order of the court by a private firm, N. K. Associates. This report, secured at the expense of co-counsel, indicated Boyer was sane at the time of the killing, and in pertinent part is as follows:

'(E)ven granting that this man needed help prior to the alleged incident, and granted that he has present problems, there is no indication that he was disoriented at the time, place, situation, identity or sequence at the time of the incident.' (emphasis supplied).

The report summarized:

'It can be said that Mr. Boyer was found to be sane and knowledgeable of what he experienced.' (emphasis supplied).

'It is not beyond the realm of possibility . . . that he could have had a psychotic episode at some time or other in his life, but there is no indication that one occurred at this particular time.'

With respect to appellant's present competence, the N.K. report stated:

'(A)fter being in jail for a period, he is above average in his ability to absorb facts from the environment and in applying these facts in normal situations. He is probably at least average on school-oriented tasks such as Vocabulary and Arithmetic.'

The report from the State Hospital at Fulton, following Boyer's 3 1/2 month stay, pointed out that appellant's memory was good and he had 'no mental disorder' at the time of examination. This report contained the following findings and recommendation:

'That the accused has no mental disease or defect within the meaning of Section 552.010.

'That the accused has the capacity to understand the proceedings against him and can assist in his own defense.

'That the accused did know and appreciate the nature, quality and wrongfulness of his conduct.

'There is no supportive evidence to indicate that this patient was suffering from a mental disease or defect at the time of the crime and he should be returned to court for disposition of the charges pending against him.'

Considering these reports, counsel conferred with defendant, during the week preceding trial; and on the day of trial Boyer personally withdrew his plea of insanity, pleaded not guilty and advised the court this action was based on his independent judgment, not the result of coercion. The ensuing trial ended with the jury's verdict of murder in the first degree and sentence by the court to life imprisonment. Attorney Benson Cytron, appointed to represent defendant on appeal, considered 23 assignments of error in the motion for new trial and determined that all were insubstantial except one, which he briefed and argued. The judgment was affirmed by the Missouri Supreme Court, State v. Boyer, 476 S.W.2d 613 (Mo.1972).

Appellant first contends the trial court erred in failing to conduct a hearing as to appellant's competence to stand trial in view of his two mental examinations. The requirement of a competency hearing may arise in two ways, V.A.M.S § 552.020(6): (1) the trial court may hold a hearing on the issue of competency to stand trial on its own motion, or (2) the court shall hold a hearing when the psychiatric report is contested. Defendant failed to 'contest' the 'report' or otherwise raise the issue following receipt of the written mental evaluations, effectively waiving the mandatory hearing requirement, leaving for our consideration only the question of whether the court sua sponte should have ordered a hearing.

Both motions for psychiatric examination were couched in terms of insanity at the time of the act (§ 552.030) rather than competency to stand trial (§ 552.020). These issues are distinct not only as to the proof required but also as to procedure; insanity is for the jury while competency is for the court, Franklin v. State, 455 S.W.2d 479, 484(5) (Mo.1970). The first motion cited § 552.020(4) and the report from Fulton was directed principally to that issue. The second, leading to the N. K. Associates' examinations, was also couched in terms of § 552.020. Trial counsel testified that did not intend to raise the competency issue by that motion. The effect of these pre-trial motions was to raise or explore the issue of insanity as a possible defense and 'the court is not required to conduct a competency hearing sua sponte in the absence of circumstances which render suspect the psychiatric opinion which has certified an accused fit to proceed.' Miller v. State,498 S.W.2d 79, 85(8) (Mo.App.1973). Mere granting of the motions for psychiatric examinations did not automatically establish a bona fide doubt as to appellant's competence to stand trial, Jones v. State, 505 S.W.2d 96, 98(1) (Mo.App.1974), nor require a sua sponte hearing under the mandate of Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (Mo.1966). See also Newbold v. State, 492 S.W.2d 809, 820(5) (Mo.1973), and McCormick v. State, 463 S.W.2d 789, 790 (Mo.1971). Further, the court in Jones, supra at 98, states: 'the test of competency is whether the accused has sufficient ability to consult with his lawyer with a reasonable degree of rational understanding and whether he had a rational as well as factual understanding of the proceedings against him.' Although the N.K. report raised questions as to Boyer's emotional state, it did not suggest that he was incompetent to proceed and the existence of mere 'mental problems' does not in itself raise a bona fide doubt as to competence requiring a sua sponte hearing since the accused was not hindered in understanding the proceedings and in assisting counsel. McCarthy v. State, 502 S.W.2d 397, 403(8) (Mo.App.1973); Newbold v. State, supra at 819(5) (Mo.1973); Miller v. State, 498 S.W.2d 79, 85(9) (Mo.App.1973); § 552.010. In U.S. v. Maret, 433 F.2d 1064 (8th Cir. 1970), the U.S. Court of Appeals for the Eighth Circuit commenting on a psychiatric evaluation containing reference to emotional problems and describing defendant as a 'sociopathic personality,' stated 'Some degree of mental illness does not equate with legal incompetence . . . when the report does not indicate a state of present insanity or mental incompetence, the trial court is not required to take any other action prior to trial.' Id. 1067(1).

Both psychiatric reports conclude in effect that Boyer was fit to proceed. On advice of counsel and with the benefit of the psychiatric evaluations Boyer decided to voluntarily withdraw his plea of not guilty by reason of insanity. The attorneys for the defense testified at the 27.26 hearing that they never seriously doubted Boyer's competence to proceed. The record does not show appellant incompetent; on the contrary it appears he rationally consulted with counsel and was aware of the nature of the proceedings against him. Finally, the trial court observed Boyer first-hand at the time he withdrew his plea of not guilty by reason of insanity and was able to obtain direct evidence of appellant's capacity. State v. Lowe, 442 S.W.2d 525, 530(4) (Mo.1969); State v. Sears, 501 S.W.2d 491, 493(3) (Mo.App.1973); Newbold, supra at 818. The trial court did not err in failing to hold a competency hearing sua sponte nor was finding of fitness to proceed required. Appellant's first contention is denied.

Appellant's second and third points fail to meet the requirements of Rule 84.04(d), V.A.M.R., as neither states what actions of the court are sought to be reviewed nor why they are claimed erroneous. We have no duty 'to seine the argument portion of an appellant's brief or the transcript on appeal to ascertain the whereins and whys of claimed errors presented in the points relied on as mere conclusions.' Griffith v. State, 504 S.W.2d 324, 327(3) (Mo.App.1974). They preserve nothing for appellate review. State v. Davis, 516 S.W.2d 784, 785(2) (Mo.App.1974); State v. Robbins, 455 S.W.2d 24, 25--26(1) (Mo.App.1970). However, we will examine the points for plain...