State v. Brigham, 14132

• Decision Date: 18 April 1986
• Docket Number: No. 14132,14132
• Citation: 709 S.W.2d 917
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Clayton Perry BRIGHAM, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 917

709 S.W.2d 917

STATE of Missouri, Plaintiff-Respondent, v. Clayton Perry BRIGHAM, Defendant-Appellant.

No. 14132.

Missouri Court of Appeals,

Southern District,

Division Two.

April 18, 1986.

Motion for Rehearing and to Transfer

Denied May 12, 1986.

Susan Lynn Hogan, Mark V. Clark, Columbia, for defendant-appellant.

William L. Webster, Atty. Gen., Mary Elise Burnett, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

The defendant was charged with having committed murder in the second degree on May 15, 1984, by stabbing to death his ex-wife, Angela Michelle Cole. § 565.004, RSMo 1978, ¹ (repealed effective October 1, 1984). During the trial, after presenting the testimony of a psychologist, the defendant withdrew his plea of not guilty by reason of mental disease or defect. The jury was instructed upon murder in the second degree and upon manslaughter. They were also instructed on diminished capacity under § 552.030.3, RSMo 1978. That subsection was deleted by Laws of Mo.1985, p. 987. The jury found the defendant guilty of murder in the second degree and assessed his punishment at imprisonment for life. He was sentenced in accordance with the verdict.

A detailed statement of the evidence is not required as the defendant does not question the sufficiency of the evidence. However, discussion of the points on appeal requires consideration of portions of the defendant's testimony. Of course, it was the prerogative of the jury to reject all or part of the testimony. State v. Wilson, 645 S.W.2d 372 (Mo.App.1983). An outline of the evidence, giving recognition to his testimony, follows.

The defendant and Angela were married October 16, 1982. They lived in Springfield. At an unspecified time and for an unstated duration, the defendant was in Italy. Their brief marriage was tempestuous. There was evidence Angela associated with other men during the marriage. There was also evidence of the defendant's unreasonable jealousy of Angela's activities. The parties separated at least twice during their marriage. They were divorced in March, 1984. After the divorce, the defendant moved to Omaha, Nebraska, to live with his sister and her husband.

The defendant frequently called a friend and former neighbor to inquire about his ex-wife. During one call he told her he had dreamed he killed Angela. He also said he was coming back to see Angela. The friend admonished him not to return and at the time, the defendant promised not to do so.

Testimony of the defendant included the following. That by a telephone call, Angela invited him to come down. He rode the bus from Omaha to Springfield. He brought no luggage and had only the clothes he was wearing. He arrived about 11:30 p.m. on May 14, 1984. He went to and was admitted to her apartment. They drank and had sex.

The next day Angela's parents picked her up about noon. The defendant remained out of sight. She returned between 3:00 and 4:00 p.m. Then, he testified, they again had sex in the bedroom. She asked him to engage in oral sex. He refused. She taunted him about his lack of sexual prowess. He dressed and went into the kitchen. She dressed and came into the kitchen. She continued to taunt him.

He seized an 8-inch butcher knife and started to stab her. She ran from the kitchen saying, "Clay, Clay." He ran after her and kept stabbing her. He said he couldn't stop. She fell on the floor in the bedroom and said, "God forgive me." Defendant surmised that she was asking God to forgive her for the life she had led. Defendant did not know why he stabbed her ten times. He had no intent to kill her before they started arguing. He said he didn't know the stabbing would be hurting her. He did not know she was dead when he left the apartment.

At 5:26 p.m. that afternoon, police officer Bledsoe was cruising in the area of the apartment. The defendant approached on foot and motioned for Bledsoe to stop. The defendant said, "Please help me, I've just killed my wife." The defendant told the officer he had been in a mental hospital. The defendant directed Bledsoe to the apartment. Another officer arrived. The defendant was placed in the second vehicle. After the apartment was entered, the defendant was arrested. While being driven to jail, the defendant asked the officer if Missouri had the death penalty. The defendant added that he deserved to die. At trial, the defendant admitted he had not been in a mental hospital.

The officers found the body of Angela rolled up in a comforter between the bed and the dresser. She had suffered five anterior stab wounds and five posterior stab wounds. One wound severed her windpipe. Two penetrated the abdominal cavity. One posterior wound was four inches deep and extended into a lung. Another severed a portion of the spinal cord, entered the lower lobe of the right lung and penetrated her liver. She had numerous "defensive" lacerations on her hands and arms. There was no explanation given for large bruises, approximately four inches by six inches, below the knee on the front of each leg.

The defendant's first point has the following background. He initially entered a plea of not guilty and a plea of not guilty by reason of mental disease or defect. As his fourth witness, the defendant presented a clinical psychologist he had employed. The psychologist stated his qualifications, explained his interview with the defendant and tests administered to the defendant in order to evaluate him.

This psychologist concluded the defendant was not "mentally ill." But, he had a "borderline personality disorder", which the psychologist classified as a mental defect. It was said to be a condition between neurotic and psychotic. The psychologist concluded, among other things, the following. The defendant could form an intent to do a physical act. He was aware that he had picked up the knife. He was aware he was stabbing Angela. But, he was not aware of the consequences of his actions.

After the testimony of this witness, during a conference, the court informed the defendant that an instruction patterned on MAI-CR 2d 3.74, Mental Responsibility: Diminished Mental Capacity, would be given at the defendant's request, whether or not the defendant withdrew his plea of not guilty by reason of mental disease or defect. Defense counsel stated the purpose of the latter plea had been to inject into the case sufficient evidence for an instruction on diminished mental capacity. The admissibility of evidence of diminished capacity in the absence of such a plea is discussed in State v. Alexander, 693 S.W.2d 216 (Mo.App.1985). After making that statement, the defendant withdrew his plea of not guilty by reason of mental disease or defect.

The defendant then called John C. McWay, Jr., Ph.D., a clinical psychologist. Dr. McWay had examined and evaluated the defendant under the provisions of § 552.030.4, RSMo 1978.

Upon direct examination, Dr. McWay testified that the defendant had a borderline personality defect. He added that the defendant would have difficulty in controlling his impulses.

The defendant's first point arises from the cross-examination of Dr. McWay. That first point is that the trial court erred during such cross-examination in admitting Dr. McWay's testimony that defendant was capable of forming the intent to kill the victim,

because this was not a proper subject for expert witness testimony and covered an ultimate issue for the jury to decide in that Dr. McWay had no special scientific or other knowledge which would assist the jury in understanding the evidence in that intent is a (fundamental) [sic] question which only the jury may determine based on non-conclusory evidence properly placed in evidence before it.

Even after resorting to the defendant's argument, his basis for that point is not clear. The defendant had established the extensive qualifications of Dr. McWay. The state developed the fact that he was licensed by the state to evaluate persons under § 552.030. See Annot., Qualification of Non-medical Psychologist to Testify as to Mental Condition or Competency, 78 A.L.R.2d 919 (1961).

The state did not ask Dr. McWay to speculate concerning the defendant's actual intent or what the defendant actually realized. The propriety of such testimony is not before the court. The defendant had introduced evidence that he suffered a mental disease or defect. The state then elicited the opinion of Dr. McWay that the defendant had no mental disease or defect and was capable of forming an intent to kill. The mental status of the defendant was a proper subject for expert testimony. Annot., Criminal Law--Mental Condition, 22 A.L.R.3d 1228 (1968). The subject of his expert opinion was not common knowledge and it was not barred because it invaded the province of the jury. State v. Taylor, 663 S.W.2d 235 (Mo. banc 1984); Housman v. Fiddyment, 421 S.W.2d 284 (Mo. banc 1967).

Whether or not an expert opinion that a defendant had a mental disease or defect which prevented him from forming a specific intent is admissible, in the absence of statute, is not before the court. See State v. Edwards, 486 S.W.2d 224 (Mo.1972); State v. Thompson, 695 S.W.2d 154 (Mo.App.1985); Annot., Expert Testimony--Criminal Intent, 16 A.L.R.4th 666 (1982). At the time of the offense and at the time of trial, it was provided in § 552.030.3, RSMo 1978, as follows: "Evidence that the defendant did or did not suffer from a mental disease or defect shall be admissible (1) To prove that the defendant did or did not have a state of mind which is an element of the offense; ...." Under that sub-section, the opinion of Dr. McWay that the defendant was capable of forming the intent to kill was admissible. Cf. State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974). Also see State v. Cason, 596 S.W.2d 436 (Mo.1980), cert. denied, 449 U.S. 982, 101 S.Ct. 397, 66 L.Ed.2d 243 (1980).

Consideration of the defendant's second point requires a preliminary statement of the...