State v. Blake, 46512

• Decision Date: 08 April 1972
• Docket Number: No. 46512,46512
• Citation: 209 Kan. 196,495 P.2d 905
• Parties: The STATE of Kansas, Appellee, v. Richard D. BLAKE, Appellant.
• Court: Kansas Supreme Court

Page 905

495 P.2d 905

209 Kan. 196

The STATE of Kansas, Appellee, v. Richard D. BLAKE, Appellant.

No. 46512.

Supreme Court of Kansas.

April 8, 1972.

Syllabus by the Court

1. The test of insanity of an accused precluding his being put on trial for a criminal offense is his capacity to compehend his position, understand the nature and object of the proceedings against him and to conduct his defense in a rational manner.

2. The presence of amnesia does not per se render a defendant incompetent to stand trial. It is a factor to be considered in determining whether he is able to give rational assistance to his counsel, present any reasonably available defenses, and obtain a fair trial.

3. A statement made by a defendant immediately after a homicide is not rendered inadmissible hearsay merely because, from some evidence, he may have been in a psychotic state at the time he made it or because at the time of trial, as a result of hysterical amnesic, he does not remember whether or not he made the statement.

4. Malice may be inferred from the fact that a homicide was committed with a deadly weapon.

5. The record is examined in a murder prosecution where the defense was insanity and, for reasons set forth in the opinion, it is held: The trial court's cross-examination of a defense psychiatric witness combined with its instruction on the consequences of a verdict of not guilty by reason of insanity deprived the defendant of a fair trial.

Thomas F. Richardson, of Light, Yoxall & Antrim, Liberal, argued the cause and was on brief for appellant.

Gary R. Hathaway, County Atty., argued the cause, and Vern Miller, Atty. Gen., and Richard M. Pickler, Former County Atty., were with him on brief for appellee.

FOTH, Commissioner:

This is a first degree murder case in which the defendant pleaded insanity and the jury convicted him of murder in the second degree for the fatal shooting of his two and one-half year old daughter, Kandee.

On appeal defendant presents several issues, the two major ones being (1) whether his amnesia covering the period surrounding the homicide rendered him incompetent to stand trial, and (2) whether the trial court's questioning of defendant's psychiatric expert coupled with its instructions deprived him of a fair trial on his insanity defense.

While the record is somewhat skimpy as to the shooting itself, there is no significant factual dispute. Defendant was, by all accounts a loving and devoted father, a factor which may have contributed to his divorce from Kandee's mother, Donna Blake. On March 27, 1970, at about 1:00 a. m., defendant called friends in Ulysses, Mr. and Mrs. J. T. Duncan, to announce that he was coming to see them later that day. He arrived at their trailer house around noon and with their help arranged for his former wife, Donna, to bring Kandee over for a visit.

He intended to take Kandee downtown to buy a dress, so after the visit had been arranged he went outside and started his pickup truck. He returned to the trailer house for coffee, and then again went out to his truck. He was there when Donna arrived with Kandee in a car driven by Donna's sister, Barbara Lattimore.

Donna and Kandee were promptly forced into the truck by the defendant. Just when the lethal weapon, a .22 calibre pistol, first appeared is not clear, but it was apparently fired shortly after they climbed into the truck. Barbara Lattimore, still in her car, heard shots and promptly ran it against the side of the truck.

Defendant testified that he was standing by the truck, sans pistol, and was nicked in the leg in this ramming maneuver; Barbara said he used the pistol to force Donna into the truck. In any event, at least two more shots were fired, one into Kandee's head and one a 'contact' shot into her body. Apparently Donna was also wounded.

After the fatal shots defendant went to the Duncan trailer, where the Duncans had retreated and locked the door after them, broke the glass in the door and went in.

Upon entering the trailer defendant talked to Mr. Duncan and told him, according to Mrs. Duncan, 'I've shot Candy.' He also discussed whether a doctor or an ambulance should be called first. He then sat down at a table, where officers found him some time later, gun in hand.

On May 20, 1970, after his preliminary hearing, defendant was referred to the security state hospital at Larned pursuant to K.S.A. 62-1531 to determine whether he was competent to stand trial. On June 24, 1970, that institution reported to the court by letter:

'It is our considered opinion that Mr. Blake is capable of understanding the nature and object of the proceedings now pending against him, charging him with murder in the first degree of one Kandee Blake.

'Whether he rightly comprehends his own condition with reference to such proceedings is questionable because of his complete lack of conscious recall of the specific crime in question. Further it is our opinion that he is not able to conduct his defense in a competent, rational manner because of his lack of motivation and a lack of self concern at this time.'

On October 16, 1970, the hospital made a further report in which the doctors concluded that 'the patient is competent to stand trial and assist in his own defense.' Enclosed was a report of their latest interview with defendant, reciting that, 'we have come to the decision that he is competent to stand trial as he is aware of his charges and is in a position to assist his own attorney in his defense, although he is still having the hysterical amnesia over part of the incident of the shooting one Kandy Blake.'

The record discloses no specific finding by the trial court on the issue of competency, although one is implicit in the setting of the matter for trial and the overruling of defendant's motions for continuance, made before trial and after the testimony of Mrs. Duncan. Both motions were based on the unrefuted evidence that defendant suffered from hysterical amnesia resulting in an inability to remember any of the events between the time Barbara's car hit the truck and when the officers took him into custody at the Duncans' table. The state makes no contention that defendant's amnesia is a sham. On the other side of the coin, there was nothing to indicate that the defendant was not fully aware of his position and the charges against him, or that he was not perfectly competent to consult with counsel-except regarding those events he was unable to remember.

We are thus squarely faced with the question of whether amnesia, standing alone, renders a defendant incompetent to stand trial. Examination of this question must start with the applicable statute, former K.S.A. 62-1531, making the test of incompetency to stand trial whether the defendant was 'insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense.' These stark and archaic words have been judicially construed to mean that:

'The test of insanity of an accused precluding his being put on trial for a criminal offense is his capacity to comprehend his position, understand the nature and object of the proceedings against him and to conduct his defense in a rational manner.' (State v. Severns, 184 Kan. 213, 336 P.2d 447, Syl. 2. Emphasis added.)

The foregoing is a restatement of the rule at it had evolved in many prior cases, and has been followed since. E. g., State v. Swinney, 200 Kan. 404, 436 P.2d 876. It is in accord with the standard approved in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824, that the "test must be whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him."

Our only case dealing with amnesia, however, is State v. Severns, supra. We there noted the paucity of decided cases, and found not controlling those few which were cited 'in which memory loss, standing alone, has been relied on as precluding trial of the accused in a criminal action.' (Id., 184 Kan., at 220, 336 P.2d, at 453.)

In Severns the defendant had been tried once at a time when his memory was presumably unimpaired, and had testified in his own behalf. His memory loss occurred while awaiting a retrial after his first conviction was reversed on appeal. There was available a complete transcript of the first trial, including his own testimony. Amnesia was recognized as a mental condition which might render him so 'insane' as to make him statutorily incompetent to stand trial. However, while not putting it in just those terms, we looked to the fundamental fairness of the situation and in effect rejected the proposition that amnesia per se amounts to incompetency, saying:

'. . . the all-important question . . . must be determined in the light of the facts before the trial court at the time it reached its conclusion his loss of memory between the first and the second trial was not sufficient in and of itself to prevent him from again proceeding to trial for the crime of murder.' (Id., at 221, 336 P.2d, at 453.)

We then proceeded to examine the facts and circumstances before the trial court, and concluded, 'that tribunal did not abuse sound judicial discretion in holding that his loss of memory between the first and second trials was not sufficient, in and of itself, to prevent him from proceeding to trial.' (Id., at 223, 336 P.2d, at 454.)

One recent case exemplifies some alternative approaches. In Wilson v. United States, 129 U.S.App.D.C. 107, 391 F.2d 460 (1968) the defendant in a robbery case ran his car into a tree during a high speed chase. The result was an organic memory loss, almost certainly permanent, as to the events surrounding the alleged robberies. (In our case the amnesia is 'hysterical,' or emotional, in origin, and may be dispelled by time and treatment.) The trial court nevertheless put him on trial on the assumption that defense counsel...