McCarthy v. State

• Decision Date: 06 November 1973
• Docket Number: No. 34964,34964
• Citation: McCarthy v. State, 502 S.W.2d 397 (Mo. App. 1973)
• Parties: Lawrence Joseph McCARTHY, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 397

502 S.W.2d 397

Lawrence Joseph McCARTHY, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.

No. 34964.

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

Nov. 6, 1973.

Motion for Rehearing or to Transfer to Court En Banc or to

Transfer to Supreme

Court Denied Dec. 7, 1973.

S. Gerald Miller, Asst. Public Defender, Clayton, for plaintiff-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Mark D. Mittleman, Asst. Attys. Gen., Jefferson City, Gene McNary, Noel L. Robyn, Clayton, for defendant-respondent.

SIMEONE, Judge.

This is an appeal from a judgment and order of the Circuit Court of St. Louis County overruling movant-appellant's motion pursuant to Rule 27.26, V.A.M.R. to vacate a conviction and sentence for burglary in the second degree and stealing. The trial court, after a thorough examination of the previous record of the trial and after a lengthy hearing on the motion, overruled the motion. We affirm.

Movant-appellant, Lawrence Joseph McCarthy, pleaded not guilty to burglary and stealing charges and was tried before the court and jury in St. Louis County on June 24, 25, and 26, 1968. The late Honorable Michael J. Carroll presided. Sentence was imposed on December 6, 1968. McCarthy appealed that conviction which was affirmed by the Supreme Court. State v. McCarthy, 452 S.W.2d 211 (Mo.1970). Subsequently on March 31, 1971, movant filed this motion to vacate the judgment and sentence alleging that he was 'mentally incompetent during his trial, lacked the mental capacity to aid in his defense, and was incapable of having the criminal intent with which he was charged,' and that he was not afforded effective assistance of counsel. The motion was heard at intervals in February and March, 1972. The court made certain findings of fact and conclusions of law.

Several witnesses testified for the movant on the 27.26 evidentiary hearing. The thrust of their testimony was that for a long time, as early as 1963, they observed movant take paregoric, and often detected the smell of paregoric on him, and that he became sleepy and quiet afterward. Movant's brother John testified that on two occasions he took appellant to a hospital for treatment, and in June, 1968, he, too, observed movant take drugs and smelled paregoric. Movant's retained attorney asked John to try to get movant 'off paregoric,' and during the trial John saw his brother break out in a 'heavy sweat.'

Movant testified that he began using paregoric at age fifteen and was addicted to it by 1961 or 1962; that by 1967 he was taking six to ten two-ounce bottles per day and that he spoke to his attorney about his habit. He explained how he cooked down the paregoric and injected it into his veins. He went to several doctors including a Dr Wyatt in Kirkwood on the advice of a friend. By 1968, movant testified, he was consuming 'in the neighborhood of a pint (of paregoric) a day.' He testified that during the court proceedings in June, 1968, he was using the paregoric. He admitted that prior to June 24, 1968 he did not present any evidence to Judge Carroll about his drug addiction because 'I figured they might jerk my bond and I'd have to go cold turkey.' 'I am almost certain I didn't want the judge to know about it.' During the trial movant stated that he could not stay awake and was awakened on several occasions by the bailiff. No motion was filed to determine whether movant was fit to proceed, nor did the court interrupt the trial to make such a determination.

At sentencing, the trial judge indicated to movant that 'you had a problem that you were at the hospital in the City . . . that was one of the reasons for deferring sentencing . . .' And when asked if the problem was still there, movant answered negatively. He explained this by saying that he was 'scared I'd get my bond revoked for being a drug addict.'

At the time of sentencing on December 6, 1968, there were several charges pending against movant--burglary and stealing, carrying a concealed weapon, and possession of burglar tools. In February, 1969, movant was admitted to the state hospital for treatment of his drug addiction, and in May, 1969, a motion was filed by the prosecuting attorney for the appointment of a physician to examine movant to determine his fitness to proceed on one of the pending cases. On May 13, 1969, the motion for examination was denied by Judge Carroll.

On cross-examination he testified that before trial in June, 1968, began, he took enough of the drug to last during trial. He was able to recall the name of the judge, and could describe him, and he recalled the name of the prosecutor.

In May, 1969, a petition for involuntary hospitalization was filed in the probate court, and on July 18, 1969, the court found that movant 'is a habitual user of narcotic drugs, to-wit, paregoric, to such an extent as to become what is commonly or known as an . . . 'addict. " The court ordered movant to be committed to the Missouri Department of Mental Diseases for such confinement and treatment as may be necessary.

The bailiff, at the trial in June, 1968, testified that in the morning movant appeared 'very alert' but that on several occasions he would awaken the appellant--sometimes at the court's direction. He estimated that the total of the times movant was asleep was four, and the 'total amount of time would accumulate to about twenty or twenty-five minutes.' The bailiff stated that at the time the verdict was read, movant did not act substantially any different than any of the other fifteen to twenty defendants who were tried while he served as bailiff.

A physician, Dr. Lois Wyatt, testified that she treated movant once when he came to her, in 1969. She gave him two injections, one for nausea and vomiting and the other for 'shakiness', and prescribed medication for nausea and diarrhea. She admitted that a person who is addicted to opium derivatives frequently has nausea and diarrhea and that she was 'fairly sure' he was addicted to paregoric. She stated that a person under the influence of any drug would not be able to function at his full potential in society and answered in the negative the question '(J)ust because a person is addicted doesn't mean he's mentally incompetent in your opinion, does it?'

A clerk in the Medical Record Library of the St. Louis State Hospital produced the medical records pertaining to movant's treatment in spring of 1969. The records indicated that he gave a history of alcohol addiction together with paregoric addiction. The prognosis indicated 'Personality disorder: 316.3 dyssocial behavior, 300.4 neurosis depressive, 303.2 Alcoholism, alcohol addiction. Drug dependence, 304.0 (paregoric).' The mental status examination, made February 17, 1969, found 'Anxiety was markedly present. . . . Suicidal thoughts were markedly present.' 'Clouding of consciousness and inability to concentrate and short attention span due to acute effects of alcoholism were also moderately present.' The diagnostic staffing note indicated 'personality disorder, drug dependence.' His psychiatric evaluation indicated his chief complaint was to 'kick the habit' and that he has 'had treatment for organic complaints but not for previous psychiatric disorders.'

The official court reporter at the trial in June, 1968 testified. She read parts of the transcript of a proceeding on February 6, 1969 concerning three pending charges after movant was sentenced on the conviction which is the subject of this motion. At that time the movant's attorney, who also represented him in the June, 1968 trial, informed the Judge that the 'defendant is incapable of cooperating with counsel in his defense due to the fact that he is suffering under the effects of narcotic drugs. . . . He is subject to being confined in the State Hospital on Arsenal Street . . .' On February 7, on the basis of communications from two physicians that the movant was presently addicted and needed hospitalization, the court did not compel the defendant to go to trial on the pending charges and stated that '(t)he Court, having had an opportunity to observe the defendant, is of the opinion that--this is a lay observation--that he appears not to be normal.' A continuance was granted and the cause returned to the assignment division.

On October 5, 1972, the trial court, on this motion, made extensive findings of fact and conclusions of law ¹ and overruled the motion.

Appellant raises six points on this appeal. In essence, he contends (1) that certain of the findings of fact ² are clearly erroneous and misconstrue the appellant's burden of proof to establish a 'bona fide' doubt as to his competency to stand trial and assist in his own defense so that an examination and hearing were required under § 552.020, RSMo., 1969, (2) that the court's conclusions of law that there was no evidence of mental incompetency by reason of falling asleep or addiction to paregoric misconstrued the burden on movant to show only that a reasonable doubt existed to competency to stand trial; that the court's conclusions of law, that nothing occurred prior to or during trial which would raise a bona fide doubt as to competency and that movant was competent to stand trial, were clearly erroneous, and (3) that the court's conclusion that movant's counsel was competent was clearly erroneous since counsel had knowledge of his addiction prior to, during and after trial and because he failed to inform the court of the addiction and to request a hearing to determine the competency to stand trial and assist in his defense.

The appellant argues that 'it is clear' from the court's findings of fact that the court was requiring appellant to prove by a preponderance of evidence that he was in fact mentally incompetent and unable to assist in his own defense whereas the proper standard is that if there is any substantial evidence which raises a bona fide doubt as to the defendant's competence to stand trial, the judge...