State v. Anderson

• Decision Date: 12 November 1974
• Docket Number: No. 58543,58543
• Citation: 515 S.W.2d 534
• Parties: STATE of Missouri, Respondent, v. Richard Paul ANDERSON, Appellant.
• Court: Missouri Supreme Court

Page 534

515 S.W.2d 534

STATE of Missouri, Respondent, v. Richard Paul ANDERSON, Appellant.

No. 58543.

Supreme Court of Missouri, En Banc.

Nov. 12, 1974.

John C. Danforth, Atty. Gen., Mark D. Mittleman, Dan Summers, Asst. Attys. Gen., Jefferson City, for respondent.

Alan G. Kimbrell, Asst. Public Defender, Twenty-First Judicial Circuit, Clayton, for appellant.

FINCH, Judge.

Appellant was found guilty of murder in the second degree and sentenced to 60 years in the custody of the Missouri Department of Corrections. On appeal the Missiouri Court of Appeals, St. Louis District, reversed and remanded for new trial but thereafter sustained appellant's motion to transfer to this Court because of the general interest or importance of questions involved in the case (pursuant to Rule 83.02, V.A.M.R. and Art. V, § 10, Mo. Const. V.A.M.S.). We now decide the case as though here on direct appeal, but in so doing we utilize without quotation marks parts of the opinion written in the Court of Appeals by Judge Kelly. We reverse and remand.

Appellant was charged with first degree murder in killing Victoria Fisk. He pleaded both not guilty and not guilty by reason of mental disease or defect excluding responsibility pursuant to § 552.030. ¹ The trial court instructed the jury on both first and second degree murder but refused to instruct on manslaughter.

On July 15, 1967, appellant shot and killed Victoria Fisk. For some time prior thereto, appellant and Mrs. Fisk's daughter Pat had maintained an amorous relationship which was not sanctioned by Mrs. Fisk or her husband, Elbert Fisk. Appellant and Pat, although still married to others, lived together at different times, both in St. Louis County and in California. Their relationship was stormy. The record is replete with evidence that Pat was promiscuous in her amours and that appellant accused her of a lesbian relationship with one of her girl friends.

While appellant and Pat were living in California, the Fisks visited them and persuaded Pat to return with them to Missouri. Appellant thereafter urged Pat to rejoin him in California and sent her money for plane fare, but she did not return. He then came back to St. Louis County and for a few weeks lived at the Fisk home. He moved out when Pat told him she wanted to break up their relationship. Appellant became convinced that Pat's only salvation was psychiatric treatment, and he urged the Fisks to afford her such treatment but they did not.

On one occasion thereafter, appellant and a friend of his came to an apartment where Pat was visiting a girl friend and forced Pat to leave with him and go to a motel. He later let her go, but during the course of their conversation on that occasion, he told Pat that if she went to the police or had her parents press charges, he would kill her, her parents and her girl friend.

About a week later, on the morning of July 15, 1967, appellant came to the Fisk house. He was armed and ostensibly came for the purpose of conveying Patricia to a psychiatrist, by force, if necessary. Mr. Fisk went to the door when appellant knocked. Pat heard appellant's voice when he asked to see her. Mr. Fisk said, 'No, you're not going to see Pat' and told him that he wasn't welcome there. Appellant said again he wanted to see Pat, after which Pat heard a scuffling in the hall as though they were fighting. She then heard her stepfather say, 'Oh, no!', followed by a shot.

Mrs. Fisk immediately ran to the telephone. Pat called to her mother to come with her and then ran from the house to a neighbor's garage. As she was running, she heard two more shots.

The police were called to the scene. When they arrived, they found Mr. Fisk lying in the front hall of the Fisk home. A trial of blood led to a neighbor's house where Mrs. Fisk was found in the hallway. Both had been shot, and both were dead. Appellant was not located at that time but was apprehended later in Canada.

After the shooting incident, Pat authorized police officers to intercept and read her mail. They obtained four letters written to her by appellant. Each contained admissions relative to the shooting and were received in evidence. In addition, two agents of the Federal Bureau of Investigation interrogated appellant while he was in custody in a jail in Toronto, Canada and they testified as to statements which he made to them.

Appellant called as witnesses Dr. Robert Thomas, a clinical psychologist, and Dr. Nathan Blackman, a psychiatrist. They testified that the appellant had a severe depression which was characterized as a mental disease or defect; that, as a result, he was unable to premeditate; and that in their opinion there was no premeditation in what appellant did. It is appellant's position that this evidence was admissible to show that he did not have a state of mind which is an element of the offense of murder in the second degree, namely, premeditation, and that such evidence would have justified the jury in finding that appellant intentionally killed Mrs. Fisk but that the killing was not premeditated.

It is apparent that the jury by its verdict rejected appellant's defense of not guilty by reason of mental disease or defect excluding responsibility. They also found lack of deliberation since they found appellant guilty of murder in the second degree rather than murder in the first degree. Since they were not instructed on manslaughter, they were not permitted to consider what effect, if any, should be accorded to appellant's evidence that by reason of mental disease or defect he was unable to and did not premeditate the killing--an element of the offense of murder in the second degree without which the offense would be reduced to manslaughter.

Appellant makes no contention that the evidence was sufficient to support a conviction of murder in the second degree. He asserts, however, that the evidence also entitled him to an instruction on manslaughter and that the refusal thereof by the trial court constituted reversible error.

The General Assembly has defined by statute what constitutes the offenses of murder in the first degree (§ 559.010), murder in the second degree (§ 559.020) and manslaughter (§ 559.070). The latter section defines manslaughter thus: 'Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.'

This court has recognized that under the foregoing statutes, the elements in murder in the first degree are deliberation, premeditation and malice; that the elements of murder in the second degree are premeditation and malice but without deliberation; and that manslaughter is any other killing (not justifiable or excusable), which necessarily is without premeditation or malice. State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971); State v. Williams, 442 S.W.2d 61 (Mo. banc 1968).

It is the duty of a trial court to instruct the jury in writing upon all questions of law arising in the case which are necessary for their information in arriving at a verdict. Sec. 546.070(4); Rule 26.02, V.A.M.R. If, as a matter of law, the court can declare that there is an entire absence of evidence upon which to support a verdict of guilty of a particular offense (whether it be murder in the first degree, murder in the second degree, or manslaughter), the court should not instruct thereon. Conversely, it is the duty of the court to instruct on such of these offenses as the evidence will support. State v. Ayers, supra. Hence, whether appellant was entitled to an instruction on manslaughter depends on whether from the evidence introduced the jury could have found that he unjustifiably and inexcusably killed deceased without premeditation or malice.

Historically, Missouri has rejected the so-called 'partial responsibility' doctrine. That doctrine permits introduction of evidence of mental disease or defect to prove the absence of particular mental elements of a crime as a basis for convicting defendant of a lesser degree of the crime (instead of being acquitted on the basis of mental disease or defect). Typical of the cases rejecting the 'partial responsibility' doctrine was State v. Holloway, 156 Mo. 222, 56 S.W. 734 (1900). In that case defendant charged with murder in the first degree, pleaded insanity as a defense. He asked for an instruction that defendant might be of sufficient mind to intend the murder of the deceased but not of such understanding and control of his mind and mental powers as to coolly deliberate said murder and that, if the jury so found, it should convict the defendant of murder in the second degree. This instruction was refused and that action was affirmed on appeal, the court saying, 56 S.W. l.c. 737:

'* * * If sane, defendant was indubitably guilty of murder in the first degree; if insane, of nothing. No half-way house exists, in a case of this sort, between murder in the first and any minor degree of that crime. Defendant, if sane, 'could coolly deliberate said murder'- ; if insane, he could neither deliberate nor premeditate, and consequently was guiltless of the crime charged, and of any degree of that crime.'

In 1963 Missouri adopted an entirely new act dealing with criminal proceedings involving mental illness (Chapter 552). In § 552.030(1) thereof, the statute provided that 'A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he 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.' Other subsections specified how and when the defense should be asserted, the notice to be given, the procedure to be followed and what would occur if the jury by its verdict should acquit defendant on the ground of mental disease or defect excluding responsibility.

After having provided in the above section for the defense of not...