Hindman v. State

• Decision Date: 20 March 1980
• Docket Number: No. 11662,11662
• Citation: Hindman v. State, 597 S.W.2d 264 (Mo. App. 1980)
• Parties: William R. HINDMAN, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 264

597 S.W.2d 264

William R. HINDMAN, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 11662.

Missouri Court of Appeals, Southern District, Division Four.

March 20, 1980.

Motion for Rehearing or to Transfer to Supreme Court Denied

April 10, 1980.

Application to Transfer Denied May 13, 1980.

Gregory K. Johnson, Springfield, for movant-appellant.

John D. Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.

PER CURIAM:

Movant (then defendant) was convicted in the Circuit Court of Webster County of assault with intent to kill with malice aforethought. § 559.180. ¹ The conviction was affirmed upon appeal. State v. Hindman, 543 S.W.2d 278 (Mo.App.1976). Thereafter, movant filed a Rule 27.26 motion listing 37 grounds for vacating, setting aside or correcting his conviction and 25-year sentence. After an extensive evidentiary hearing before a special judge, the court made findings of fact and conclusions of law upon the issues presented and overruled the motion. Movant appealed to the Supreme Court which, per Rule 84.04(i), granted him leave to file a brief in excess of 100 pages. His brief consisted of 141 pages. The state responded with a 65-page brief. Including subpoints, movant's brief, inter alia, contained 38 points relied on, many of which are duplicitous and repetitious. After hearing oral arguments and considering the matter (and the multitudinous points relied on) the Supreme Court under date of January 16, 1980, made the following order: "Submission set aside. Cause ordered transferred to Missouri Court of Appeals, Southern District, for lack of jurisdiction in the Supreme Court."

In reference to briefs on appeal, Rule 84.04(h) mandatorily requires: "All statements of fact and argument shall have specific page references to the transcript on appeal, or if the transcript is printed, to the printed transcript." ² (Our emphasis). We are confronted in this matter with five separate transcripts, i. e., (1) "the Appeal Transcript in this cause (TR)", (2) "the preliminary hearing transcript in the original criminal charge (Prelim TR)", (3) "the original trial transcript (Trial TR)", (4) "separate transcript testimony of Dr. Cover and Wilma Agee (Fed. TR)" and (5) "the separate transcribed testimony of Judge M. J. Huffman and Mrs. Cogdill (Stip TR)." Without counting subpoints, seven points relied on, consisting of 42% of the argument portion of movant's brief, are presented with no page references to any of the five transcripts. The remaining 58% of the argument section of the brief (concerning 16 principal points relied on) bears an average of a meager two and one-quarter page references per point. Because the argument portions of the brief contain no transcript page references and the remainder represents a near total dearth of references to the five transcripts submitted, we would be justified in summarily dispatching the appeal herein for failure to comply with the mandates of Rule 84.04(h). Stephan v. World Wide Sports, Inc., 539 S.W.2d 591, 592 (Mo.App.1976); Ward v. Johnson, 480 S.W.2d 104, 107(8) (Mo.App.1972). Cf. Overall v. State, 540 S.W.2d 637, 638 (Mo.App.1976). Nonetheless, we will consider, where warranted, the points relied on in a fashion more abbreviated than the prolix declamations of movant would suggest. For those interested in a verbatim recasting of the points relied on (without citations), they may be found in the Appendix hereto.

I.

In fine, movant's initial point relied on is that he was denied effective assistance of counsel in the criminal case because of counsel's failure to subpoena "numerous material witnesses" and that this omission deprived him of an opportunity "to convey . . . his defense to the charge." The identity of the "numerous material witnesses", what their testimony would have been and "wherein and why" their absence deprived movant of an opportunity to further his defense, whatever that may have been, is left to guess, surmise, speculation and conjecture unless we resort to the five transcripts on appeal and the argument portion of movant's brief. This is something we are not required to do because, as written, movant's point violates the mandatory requirements of Rule 84.04(d). State v. Yearwood, 510 S.W.2d 43, 44(2) (Mo.App.1974). Furthermore, we note that the argument portion of the brief under the first point relied on (consisting of 15 pages) is one of the points containing no page references to any of the five transcripts on appeal. As already noted, this is a violation of Rule 84.04(h).

Nevertheless, and in excess of duty, we cursorily examine the point. Movant asserts that his defense was "diminished capacity" or "diminished or partial responsibility" and that the failure of defense counsel in the criminal trial to call certain medical personnel made it impossible to prove that defense. In State v. Anderson, 515 S.W.2d 534, 539(5, 6) (Mo. banc 1974), it was recognized that § 552.030(3)(1) "was intended to make admissible evidence to prove the absence (due to mental disease or defect) of some element or elements of the offense charged and to accord to that evidence the same effect as other evidence (not based on mental disease or defect) which might be offered for that purpose." Just what element or elements of § 559.180 (the offense for which movant was convicted) the unoffered medical evidence was supposed to negate, we do not know, except that it purportedly would have shown "diminished capacity" due either to the sometimes fact that Valium, Percodan and alcohol intake potentiate one another or that movant, when the crime was committed, "was suffering from a psychiatric illness."

In the Rule 27.26 hearing movant, who had "the burden of establishing his grounds for relief by a preponderance of the evidence" (Rule 27.26(f)), had only the testimony of treating physician William C. Kubitschek, D.O., Thomas N. Cofer, M.D., and the evidence of four medical prescriptions by Robert L. Sample, M.D., for "10 mgs. Valium 2-3 per day for pain; Percodan 1 every 4 hours as needed for pain. Sorbitrate 1 tablet as needed for pain, no limit per day; Panwarfin 1 tablet daily." Dr. Cofer, who only saw movant one time, and Dr. Kubitschek, related, in effect, that Valium and Percodan may, depending on the individual, "potentiate one another" and, when mixed with alcohol, would "in most cases" affect a person's judgment. Although Dr. Kubitschek opined the intake of Valium, Percodan and alcohol "can potentiate one another" and "may" cause confusion, depression or rage or an elevation of mood or disorientation, he stated that the combination of the drugs, sans alcohol, did not upset movant or make him "wild." Albeit Dr. Kubitschek concluded that movant, immediately before commission of the crime in question, "was suffering from a psychiatric illness," he was never asked what that illness purported to be or whether it would or could have the effect of diminishing or partially diminishing movant's responsibility regarding any element or elements of the crime for which movant was convicted.

The crime in question occurred between midnight October 26 and 1 a. m. October 27, 1973. On the 26th, near noon, movant obtained the above noted prescriptions from Dr. Sample and had them filled. In the 12-hour-period after obtaining the medication and before the crime, movant should have taken no more than one or two Valium and three Percodan pills. However, at the criminal trial movant testified that on the afternoon of the 26th he took "three of each of the pills" prescribed and at "about 8:00 o'clock" that night he took four more Valium and four more Percodan tablets. In addition, so movant-then-defendant testified, near 8:30 p. m. he consumed three or four double-shot drinks of whisky.

Had all of the medical evidence adduced on the Rule 27.26 motion been presented at the trial of the criminal charge, movant would not have established his "partial or diminished responsibility." There was no evidence that the unknown "psychiatric illness" caused a diminution of responsibility for the crime committed. The only other evidence that could relate to diminished responsibility was that the claimed partial or diminished responsibility was induced by movant's self-overindulgence in drugs and whisky which produced voluntary intoxication. The terms "mental disease or defect" do not include alcoholism or drug abuse without psychosis (§ 552.010), and self-induced intoxication, whether via voluntary intake of alcohol, drugs or both, is not an acceptable defense in a criminal case. State v. Hegwood, 558 S.W.2d 378, 381(4) (Mo.App.1977); State v. Hindman, supra, 543 S.W.2d at 286(21). Movant's first point relied on has no merit.

II.

Movant's second point relied on, insofar as the requirements of Rule 84.04(d) are concerned, fares no better than the first. In one segment of argument under this point movant claims inattention of trial counsel to a purported inconsistency between the trial testimony of State Highway Patrol Sergeant Crafton and the prosecutor's statement at the preliminary hearing "suggesting" that Crafton had not participated in the investigation of the crime. To say the least, this purported inconsistency represents a desperate grasping at straws. At the preliminary hearing in a colloquy between court and counsel, the prosecutor stated that certain persons (not including Crafton) had found live rounds and expended shells on the courthouse lawn where movant (then defendant) had allegedly fired several shots from his rifle. At trial Sergeant Crafton acknowledged that persons other than he had actually discovered the shells and casings. He testified that after the shells were found, he marked where they were located and thereafter collected and marked them for identification. If defendant's lawyer, in failing to pursue this tenuous difference, was guilty of ineffective assistance of counsel, we fail to perceive it.

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