Mouse v. State

• Decision Date: 04 October 2002
• Docket Number: No. 24700.,24700.
• Citation: 90 S.W.3d 145
• Parties: Nicholas MOUSE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

90 S.W.3d 145

Nicholas MOUSE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 24700.

Missouri Court of Appeals, Southern District, Division Two.

October 4, 2002.

Petition for Rehearing and Transfer Denied October 25, 2002.

Application for Transfer Denied December 24, 2002.

James R. Wyrsch, Charles M. Rogers, David A. Kelly, Wyrsch, Hobbs & Mirakian, P.C., Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Asst. Atty. Gen., Jefferson City, for respondent.

JAMES K. PREWITT, Presiding Judge.

Nicholas Mouse ("Movant") appeals the denial of his Rule 29.15 motion following an evidentiary hearing on the matter. Movant was charged by information with the class A felony of assault in the first degree, § 565.050, RSMo Supp.1995. His first trial resulted in a mistrial.

At the second jury trial, the State filed, and the trial court sustained, a motion in limine to exclude expert testimony regarding Movant's alleged substance-induced psychosis, which Movant attempted to introduce to ameliorate the required mens ma for the crime of assault. Movant presented an offer of proof in the form of an excerpt from the transcript of the offer of proof from the first trial, where Dr. Tim McCarty, a psychologist, testified that Movant suffered from a "mental disease of substance[-]induced psychotic disorder [that] prevented [Movant] from knowing and appreciating the nature, quality and wrongfulness of his conduct" and prevented Movant "from acting with a conscious object to kill or cause physical injury." The trial court rejected Movant's offer of proof.

As determined on the direct appeal, the evidence at trial showed that Movant voluntarily induced amphetamines prior to the commission of the assault. See State v. Mouse, 989 S.W.2d 185, 189 (Mo.App. 1999). There was also sufficient evidence presented through which the jury could have determined that, during the commission of the crime, Movant was in an intoxicated condition from alcohol. Id.

Movant was convicted and sentenced to thirty years' imprisonment, and the conviction and sentence were affirmed on direct appeal. Id. at 192. Thereafter, Movant filed an Amended Motion to Vacate, Set Aside or Correct the Judgment or Sentence, alleging ineffective assistance of counsel. The motion was denied. This appeal followed.

Movant presents three points relied on, all relating to claims of ineffective assistance of counsel. Appellate review of the denial of a post-conviction motion is limited to the determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). To prevail on a claim of ineffective assistance of counsel, Movant must show that counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and that Movant was prejudiced as a result thereof. Sneed v. State, 756 S.W.2d 618, 618 (Mo. App.1988). Movant "must overcome the strong presumption that counsel made all significant decisions in the exercise of his [or her] reasonable professional judgment." Robinson v. State, 752 S.W.2d 373, 374 (Mo.App.1988).

In our review, we need not consider both the performance and prejudice prong, if we find that Movant failed on one of them. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). It is also not necessary to consider the performance prong first and then prejudice; if the claim may be resolved based on lack of prejudice, we may stop our review there. Id.

In his first point, Movant contends that counsel was ineffective because he did not cite State v. Shipman, 568 S.W.2d 947 (Mo.App.1978), to the trial and appellate courts. Movant argues that Shipman would have supported the attempt at trial to include expert testimony showing Movant lacked the requisite mental intent to commit the crime because of a substance-induced psychosis. Movant maintains that the failure of counsel to cite Shipman prejudiced him because counsel was thereby unable to effectively argue Movant's position before the trial and appellate courts.

In support of his point, Movant asserts that Shipman recognized that chronic substance abuse can lead to an independent psychosis that can be relied upon as a mental defense for the crime charged. Movant is correct that the Shipman court stated, "If a psychosis exists by reason of defendant's inability to tell right from wrong or inability to know or appreciate the nature, quality or wrongfulness of his conduct or incapacity to conform his conduct to the requirements of law ..., how or why the mental disease or defect arose should be of no moment." Id. at 951.

The discussion in Shipman is based on § 552.010, which defines "mental disease or defect" in the same manner today as it did in 1978, when Shipman was decided.

The terms "mental disease or defect" include congenital and traumatic mental conditions as well as disease. They do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, whether or not such abnormality may be included under mental illness, mental disease or defect in some classifications of mental abnormality or disorder. The terms "mental disease or defect" do not include alcoholism without psychosis or drug abuse without psychosis....

Another statute of interest in this appeal is § 562.076, which is quite different today than it was at the time of Shipman. Section 562.076, RSMo 1978, is set forth below:

1. A person who is in an intoxicated or drugged condition whether from alcohol, drugs or other substance, is criminally responsible for conduct unless such condition

(1) Negatives the existence of the mental states of purpose or knowledge when such mental states are elements of the offense charged or of an included offense; or

(2) Is involuntarily produced and deprived him of the capacity to know or appreciate the nature, quality or wrongfulness of his conduct or to conform his conduct to the requirements of law.

2. The defendant shall have the burden of injecting the issue of intoxicated or drugged condition.

Presently, § 562.076 provides as follows:

1. A person who is in an intoxicated or drugged condition, whether from alcohol, drugs or other substance, is criminally responsible for conduct unless such condition is involuntarily produced and deprived him of the capacity to know or appreciate the nature, quality or wrongfulness of his conduct.

2. The defendant shall have the burden of injecting the issue of intoxicated or drugged condition.

3. Evidence that a person was in a voluntarily intoxicated or drugged condition may be admissible when otherwise relevant on issues of conduct but in no event shall it be admissible for the purpose of negating a mental state which is an element of the offense. In a trial by jury, the jury shall be so instructed when evidence that a person as in a voluntarily intoxicated or drugged condition has been received into evidence.

Revisions between the two are indicated in bold print.

Shipman did not address § 562.076, under which defendant might have been able to use voluntary intoxication as a defense had it negated the requisite mental state of the crime of which he was accused. However, from the testimony and evidence that can be gleaned from the opinion, it does not appear that Shipman was intoxicated at the time of the attempted burglary. Id. at 947-48.

The focus of the appeal in Shipman was the testimony defendant attempted to elicit from his mother that, according to defendant, would have shown that his drug abuse had resulted in psychosis. Id. at 951. The court rejected defendant's argument and determined that the trial court had not abused its discretion in excluding the mother's testimony because her opinion would have simply recast "defendant's unconventional conduct when he was under the influence of drugs," which would not have "warrant[ed] a lay conclusion that defendant's drug abuse had resulted in psychosis." Id. at 951. The court further determined that defendant's mother had, at best, limited experience in such diagnosis, and would not have qualified as an expert in determining mental capacity related to criminal responsibility. Id.

Prior to reaching the above holding in the case, the Shipman court presents a lengthy discussion analyzing § 552.010 in which it makes several statements to which Movant attaches significance. The court states that the statute is written to make "psychosis the determinative factor in deciding whether drug abuse is a defense vel non." Id. at 950. It focuses the discussion on the premise that determining a defendant's legal responsibility is based on "whether the defendant, at the time of the crime and as the result of drug-induced psychosis, did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law." Id. It concludes the analysis by stating:

While it must be recognized that drug addiction without psychosis is not a defense [citations omitted], a mental disease or defect which results in insanity or the inability to distinguish right from wrong is still a defense although the disease or defect had its origin and was nurtured into legal irresponsibility through drug abuse or addiction. Stated differently: If a psychosis exists by reason of defendant's inability to tell right from wrong or inability to know or appreciate the nature, quality or wrongfulness of his conduct or incapacity to conform his conduct to the requirements of law (§ 552.030), how or why the mental disease or defect arose should be of no moment.

Id.

We do not necessarily disagree with the language as stated in Shipman. However, there are two distinctions that are important to the case at bar, which show why Movant fails on the ineffective assistance of counsel claim made in this point.

First, the issue before the Shipman court was whether the trial court abused its discretion by excluding the...