State v. Barnes
| Decision Date | 20 October 1987 |
| Docket Number | No. 51742,51742 |
| Citation | 740 S.W.2d 340 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Thomas BARNES, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Henry B. Robertson, Asst. Public Defender, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant, Thomas Ray Barnes, was convicted after a jury trial of murder in the first degree, in violation of § 565.020, RSMo.1986, and robbery in the first degree, in violation of § 569.020, RSMo.1986. He was sentenced to concurrent terms of twenty-five years and life imprisonment without parole. Defendant appeals, claiming: 1) the trial court erred by permitting two psychologists to testify that mild mental retardation is not a mental disease or defect under Missouri law; 2) the trial court erred by allowing the state's rebuttal witness, a psychologist, to read inculpatory statements defendant made during a court-ordered psychiatric examination; 3) the trial court erred by denying verdict directors on second degree murder and manslaughter that would have included a paragraph on sudden passion arising from adequate provocation; (4) the trial court erred by overruling defendant's motion for judgment of acquittal for lack of evidence to find defendant deliberated or had the cool state of mind required for a conviction of first degree murder; and 5) the trial court erred by denying a motion for judgment of acquittal for insufficient evidence upon which to convict defendant of robbery in the first degree. We affirm.
The evidence established that the victim, Richard Smith, did not show up on June 3, 1985, for work at the restaurant where he had been employed for eighteen years. On June 6, his employer and his landlord forced open Smith's apartment door and discovered his body lying face down and naked in the bedroom. An assailant had crossed Smith's hands behind his back, and tied them with a cord looped around Smith's neck. Three lacerations caused by a blunt object covered the victim's scalp. One of the blows resulted in a depressed fracture which subsequently caused a fatal brain hemorrhage. Several other lacerations appeared about Smith's face and head.
On June 7, the Reynolds County police arrested defendant at a drive-in theater after he was seen speeding in a van along Highway 21. Defendant told police the van belonged to his friend, Richard, in St. Louis. A check on the van's license plate linked it to the homicide. Defendant then remarked, "You mean my friend, Richard, is dead," even though the police had not informed him of the victim's name.
Defendant was delivered into St. Louis Police custody on June 8 and was advised of his Miranda rights. He eventually confessed to killing Smith on June 2. In a videotaped statement, defendant described an evening of drinking beer and engaging in sexual relations in Smith's apartment. According to defendant, once Smith was satisfied sexually, he reneged on a promise to lend defendant his van so that the latter could visit his family in Southern Missouri. Smith struck defendant and threatened to kill him with a metal statuette that Smith had picked up in the living room. Defendant wrested the object away from Smith, hitting him repeatedly about the head. After tying Smith up with a cord, defendant showered the victim's blood off. With Smith groaning in the bedroom, defendant wrapped his bloody tee-shirt and the lethal object in a towel and departed with the van keys and $32 from Smith's wallet. Defendant dropped the towel and its contents in the Meramec River on his way south to visit his family.
At trial, the defense sought to show defendant suffered from a mental disease or defect excluding responsibility for the crimes he allegedly committed. Daniel S. Cuneo, a clinical psychologist and defense witness, testified defendant initially feigned symptoms of insanity during a court-ordered competency examination. Cuneo classified defendant as mildly retarded with an I.Q. of 70, but competent to stand trial and sane at the time of the offense. The psychologist believed defendant would not have thought about the force that he used under stress, but merely would have reacted because mildly mentally retarded persons generally exhibit poor impulse control. Cuneo also stated defendant had a diminished ability to tell right from wrong and conform his conduct to the requirements of the law.
In rebuttal, Jonathan Rosenboom, a psychologist with the Missouri Department of Mental Health, testified defendant was not mildly mentally retarded. Rosenboom, who conducted the first competency examination requested by defendant, also stated that the Department did not recognize mild mental retardation as a mental disease or defect. Rosenboom was permitted to read extensively from a narrative of his interview with defendant, ostensibly to show defendant's malingering about his mental condition. Dr. Michael Armour, Rosenboom's supervisor, testified that he agreed with Rosenboom's opinions. The jury returned verdicts of guilty against defendant for murder and robbery in the first degree.
In his first point relied on, defendant argues that the court should not have allowed Dr. Rosenboom and Armour to testify that mild mental retardation is not a mental disease or defect under Missouri law. Defendant contends that such conclusions by these expert witnesses invaded the province of the court to declare what the law is and precluded the jury from considering the defense of diminished capacity.
Considering the challenged testimony in the context of the entire record, we find no support for defendant's contention. Defendant's witness, Dr. Cuneo, a psychologist licensed in Missouri and Illinois and employed by the Illinois Department of Mental Health, expressed his opinion that defendant suffered from mild mental retardation and that this condition diminished, but did not exclude, his ability to conform his conduct to the requirements of the law. Although he claimed to be "somewhat familiar" with the forensic guidelines of the Missouri Department of Mental Health, when asked upon cross-examination whether that department recognized mild mental retardation as a mental disease or defect, he replied "no, I can only guess at it again." Later he conceded that he had been told the Missouri Department of Mental Health did not recognize mild mental retardation as a mental disease or defect. In rebuttal the state called Drs. Rosenboom and Armour, employees of the Missouri Department of Health. They disagreed with Dr. Cuneo's conclusion that defendant suffered from mild mental retardation. They were permitted to testify, over defendant's objection, that in clinical training sessions and guidelines promulgated by the Division of Forensic Services of the Missouri Department of Mental Health, mild mental retardation was not recognized as a mental disease or defect. Defendant objected to this line of testimony on the ground that it called for a legal conclusion. In overruling the objection, the court stated When examined in the framework of the record as a whole, and particularly in light of the trial court's ruling, it is clear that the witnesses were not expressing a conclusion regarding the law but merely the policy of the Department of Mental Health. The effect of mild mental retardation upon the defendant's mental capacity, once having been introduced by defendant, became a proper subject for expert testimony. State v. Thompson, 695 S.W.2d 154, 158 (Mo.App.1985). The admission of the evidence regarding the policy of the Missouri Department of Health followed the testimony of defendant's expert witness, an employee of the Illinois Department of Mental Health, who expressed an opinion contrary to this policy. Nothing about the admission of the challenged testimony "effectively precluded the jury from considering appellant's defense of diminished capacity" as argued by defendant. On the contrary, and especially in light of the trial court's admonition that the department's policy was not the law, a reasonable juror could only conclude that he was to resolve the differences of opinion under the evidence presented to him and the instructions given by the court. Under the facts and circumstances of this case, we find no error warranting reversal. Point denied.
Defendant's second point on appeal charges that the trial court erred in permitting Dr. Rosenboom...
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