Burton v. State

• Decision Date: 09 November 1982
• Docket Number: No. 63458,63458
• Citation: 641 S.W.2d 95
• Parties: Michael Laverne BURTON, Appellant, v. STATE of Missouri, Respondent. STATE of Missouri, Respondent, v. Michael Laverne BURTON, Appellant.
• Court: Missouri Supreme Court

Page 95

641 S.W.2d 95

Michael Laverne BURTON, Appellant, v. STATE of Missouri, Respondent.

STATE of Missouri, Respondent, v. Michael Laverne BURTON, Appellant.

No. 63458.

Supreme Court of Missouri,

En Banc.

Nov. 9, 1982.

Alan G. Kimbrell, St. Louis, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Appellant Michael Laverne Burton appeals from a trial court decision overruling his Rule 27.26 motion for release from confinement and seeks withdrawal of the court of appeals' mandate in State v. Burton, 544 S.W.2d 60 (Mo.App.1976), which affirmed his conviction for rape. The appeal from the denial of the Rule 27.26 motion was consolidated with the motion to withdraw the mandate by an expanded panel of the Missouri Court of Appeals, Western District, which affirmed the ruling of the trial court and overruled the motion. The case was transferred to this Court by the dissent from the court of appeals opinion, see Rule 83.01, and we review as if on original appeal, Rule 83.09. We affirm.

This case involves what appellant argues are unjustifiably inconsistent results in separate prosecutions for crimes that occurred little more than one month apart. On June 17, 1974, appellant kidnapped a woman in Holt County. Thirty-eight days later, on July 25, 1974, he raped another woman in Buchanan County. In January 1975 appellant pleaded not guilty of the kidnapping because of mental disease or defect excluding responsibility. The state accepted that plea, and the Circuit Court of Holt County, after an evidentiary hearing, committed appellant to the state hospital in Fulton under § 552.020(2), RSMo 1969. ¹ Appellant also pleaded not guilty of the rape because of mental disease or defect excluding responsibility and disclaimed any other defense, but the Buchanan County prosecutor refused to accept the plea. At the rape trial in April 1975, appellant produced the testimony of a number of witnesses, both lay and professional, on the issue of his sanity. He also sought to enter into evidence the Holt County judgment that thirty-eight days before the rape he suffered from mental disease or defect. The Buchanan County Circuit Court refused to admit that evidence on the ground that it was irrelevant to the determination whether appellant was suffering from mental disease or defect at the time of the rape. The jury convicted appellant of rape, and he was sentenced to twenty years in prison. On appeal appellant assigned as one error the trial court's refusal to admit evidence of the Holt County judgment. The court of appeals rejected his contention, holding that

[t]he State's acceptance in Holt County of defendant's plea of not guilty by reason of mental disease or defect for the offense alleged to have been committed on June 17, 1974, did not establish that defendant was suffering from mental disease or defect on that date. Under the statute [§ 552.030(2) ], such acceptance simply mandated that the court order the defendant committed to the Director of the Division of Mental Diseases for further proceedings. It did not constitute an adjudication of defendant's mental condition on June 17, 1974, as characterized by appellant; and it had no bearing on his mental condition on July 25, 1974, when he committed rape in Buchanan County.

State v. Burton, 544 S.W.2d at 66-67 (emphasis added).

Appellant argues that under this Court's decision in State v. Kee, 510 S.W.2d 477 (Mo.banc 1974), the Holt County judgment was in fact an adjudication of mental disease or defect raising a "presumption of continuing insanity" and that evidence of that adjudication thus was relevant and should have been admitted in the rape prosecution. He contends that he was denied effective assistance of counsel both at trial and on appeal ² because his attorney failed to cite Kee, which was decided eleven months before the trial and two and one-half years before the court of appeals decision. Appellant also makes several other arguments. He contends on his Rule 27.26 motion (1) that the state's acceptance of the plea of mental disease or defect constitutes a judicial admission that appellant suffered from mental disease or defect at the time of the kidnapping, that the Holt County determination is res judicata on that issue, and that because of this "presumption of continuing insanity" the refusal to admit evidence of the Holt County judgment denied him due process of law; (2) that because of this "presumption of continuing insanity" he was denied due process of law when the state was not estopped from prosecuting him for rape after accepting his plea of mental disease or defect in the kidnapping prosecution; and (3) that the state inflicted cruel and unusual punishment by subjecting him to both institutionalization and imprisonment. Finally, appellant impliedly argues in his motion that the court of appeals should have withdrawn its mandate because its decision was incorrect in light of Kee.

The issue in Kee was the constitutionality of § 552.040, which requires the trial court to order the commitment of defendants acquitted on the ground of mental disease or defect excluding responsibility. Kee was charged with first degree robbery. He pleaded not guilty by reason of mental disease or defect excluding responsibility and filed a written notice that he had no other defense. The state agreed with the report of the mental examination and accepted the plea. The trial court entered judgment accordingly, § 552.030(2), and committed Kee to the custody of the director of the Division of Mental Diseases, § 552.040(1). Kee challenged § 552.040 because it did not require the trial court to find that he suffered from mental disease or defect at the time of the commitment as well as the time of the crime. This Court rejected that challenge. In the course of its opinion the Court distinguished Bolton v. Harris, 395 F.2d 642 (D.C.Cir.1969), which, in construing a similar District of Columbia statute, had held that the equal protection clause requires that criminals be given a hearing on the issue of sanity prior to commitment. This Court explained that

[i]n Bolton v. Harris, ... Bolton was found not guilty by reason of insanity and committed to a mental institution pursuant to D.C.Code section 24-301(d) which requires such a commitment when a defendant is acquitted on the ground of insanity. The court held that the trial of Bolton determined only that there was a reasonable doubt as to his sanity at the time the offense was committed. However, section 552.030(7, 8) requires an affirmative finding that the defendant suffered from a mental disease or defect excluding responsibility whenever an acquittal is based on that defense. Thus there has been a determination that the defendant had a mental defect and the acquittal is not merely premised on a reasonable doubt concerning the defendant's sanity.

Kee, 510 S.W.2d at 482-83 (emphasis added). The Court went on to hold that immediate commitment of a defendant found not guilty by reason of mental disease or defect excluding responsibility is constitutionally justified by the need to protect both the public and the defendant himself. Id. at 483-84.

Kee makes it clear that the entry of judgment pursuant to the state's acceptance of the plea of not guilty by reason of mental disease or defect excluding responsibility constitutes an adjudication concerning the defendant's mental condition at the time of the offense. Evidence of a previous adjudication of insanity is relevant in a subsequent prosecution "as a circumstance bearing upon defendant's mental condition at the time of" the crime for which the defendant is on trial. State v. St. Clair, 262 S.W.2d 25, 28 (Mo.1953). As such it is admissible. State v. Lora, 305 S.W.2d 452, 456 (Mo.1957); St. Clair, 262 S.W.2d at 28; State v. Whitener, 329 Mo. 838, 842-43, 46 S.W.2d 579, 581 (1932).

Evidence of a previous adjudication of mental disease or defect does not, however, reach the level of relevance that appellant ascribes to such evidence. Appellant contends that once a person is adjudged afflicted with a mental disease or defect, "the law presumes that this condition continues until the contrary is shown." Although our older cases recognized a presumption of continuing insanity in some factual situations, ³ such a presumption can no longer arise under our statutory scheme. Section 552.030(7), which was enacted in 1963, see S.B. 143, § 3(5), 72d Gen.Assem., Reg.Sess., 1963 Mo.Laws 674, 677-78, provides in relevant part that

[a]ll persons are presumed to be free of mental disease or defect excluding responsibility for their conduct, whether or not previously adjudicated in this or any other state to be or to have been insane, drunkards, drug addicts, sexual or social psychopaths, or otherwise mentally ill, incompetent, deranged or impaired. The issue of whether any person had a mental disease or defect excluding responsibility for his conduct is one for the jury to decide upon the introduction of substantial evidence of lack of such responsibility. But in the absence of such evidence the presumption shall be conclusive. Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take that issue to the jury.

§ 552.030(7) (emphasis added). ⁴ The statute distinguishes this case from those involving testamentary capacity, e.g., Detrich v. Mercantile Trust Co., 292 S.W.2d 300, 303 (Mo.1956); Byrne v. Fulkerson, 254 Mo. 97, 123, 162 S.W. 171, 179 (1913), and those cited by appellant involving the competency of witnesses to testify, State v. Herring, 268 Mo. 514, 529-35, 188 S.W. 169, 172-75 (1916); State v. Burnfin, 560 S.W.2d 283, 295 (Mo.App.1977), vacated and remanded on other grounds sub nom. Lee v. Missouri, 439 U.S. 461, 99 S.Ct. 710, 58 L.Ed.2d 736 (1979). Because there is no presumption of continuing insanity, ...