State v. Brizendine

• Decision Date: 14 June 1965
• Docket Number: No. 50867,No. 2,50867,2
• Citation: 391 S.W.2d 898
• Parties: STATE of Missouri, Respondent, v. William Prell BRIZENDINE, Appellant
• Court: Missouri Supreme Court

Page 898

391 S.W.2d 898

STATE of Missouri, Respondent, v. William Prell BRIZENDINE, Appellant.

No. 50867.

Supreme Court of Missouri, Division No. 2.

June 14, 1965.

Motion for Rehearing or for Transfer to Court En Banc Denied

July 12, 1965.

Norman H. Anderson Atty. Gen., Jefferson City, David G. Dempsey, Asst. Atty. Gen., Clayton, for respondent.

Robert G. Duncan, Kenneth K. Simon, Simon & Pierce, and Michael D. Konomos, Kansas City, for appellant.

PRITCHARD, Commissioner.

In this case of murder in the first degree, for which defendant's punishment was set at life imprisonment by a jury, the sole issue is whether defendant was entitled to have the jury instructed upon a defense of insanity at the time of the commission of the crime.

On the evening of October 6, 1963, defendant, referred to as 'Flapjack,' came into the Lafayette Hotel, at 1205 Troost in Kansas City, Missouri, spoke to the night clerk, Mary Anderson, and went upstairs. A few minutes later Mary heard a noise, and defendant came back down. Then Janice Clark came down and made a telephone call. Mary testified that defendant walked, did not run, and didn't appear to be drunk. He lived in the hotel, and his father lived across the hall from where deceased lived. At about 8:30 p. m., deceased, G. D. Miller, in response to a knock, opened the door of Apartment 112 in the hotel, where he lived with Janice. Janice saw a gun and testified that defendant said, 'Miller, are you my friend?' Miller said, 'Yes,' and was shot. Defendant then ran downstairs, and Janice also ran downstairs and called the police. There was testimony from Janice that deceased and defendant had an argument a week before in which defendant threatened deceased with a shotgun. Shortly before the homicide, defendant and one Larry Erickson had a conversation or argument in 'Sargent's' Cafe about a girl. Defendant then had a gun in his hand pointed at Erickson, and was asking 'Where Irene was.'

Later in the evening, defendant came running in without knocking at the abode of Claudia Cox and Clara Edmeston Powell and gave Clara a pistol. The bullet found in deceased's body was testified by William J. Myers, Supervisor of Ballistics at the Police Department, to have been fired from the pistol. At the time defendant appeared at the home of Claudia and Clara he was 'all excited.' He kept walking back and forth and was 'awfully nervous,' and was hysterical. In a statement given by Claudia to the police, brought out on her cross-examination, she said that defendant told her he 'killed G. D.' but didn't know what happened, and that the gun went off accidentally and he didn't mean to do it.

Prior to the trial, defendant by his then counsel filed a motion 'that defendant be examined by persons competent to determine his mental capacity and ability to aid counsel in his defense.' The reasons given for the motion were that defendant had been unable to comprehend the questions asked him by counsel, and that defendant was unable to understand and comprehend that he was charged with first degree murder. It was stated in the motion that, in the opinion of movant, the defendant was so mentally ill that he was unable to aid in his own defense, or to understand the gravity of the proceedings against him. The prayer was that 'in order to protect defendant in his Constitutional rights, proper psychiatrists, neurologists and/or competent physicians should examine this defendant and report to this Court their considered opinion regarding defendant's mental ability to understand the proceedings against him and to aid counsel in his defense.'

An order was made sustaining the motion, and pursuant thereto the report of the examining psychiatrist, Dr. Waraich, Acting Superintendent of State Hospital No. 2 (Division of Mental Diseases) at St. Joseph, Missouri, was filed in the trial court and was read to the jury. The parts of the report pertinent to defendant's claimed errors of the trial court in failing to instruct the jury on the defense of insanity and criminal irresponsibility are as follows: 'The physical examination is essentially negative. The neurological studies reveal no focal signs except for minimal congenital cerebral palsy due to difficulty at the time of birth (not significant). All the laboratory studies, including X-ray of the chest, are within normal range. Psychometric studies give him an I.Q. of 74 (WAIS), which means that he is functioning within the borderline range of intellectuality. Psychiatric studies reveal a rather egocentric, suspicious, wellnourished, well-developed, white man who shows no disturbances of his thinking processes. There is no evidence of any mood variation. However, he shows acting-out behavior disorder with symptoms of alcoholism, drug addiction, eccentricities, querulousness and hypochondriasis. The main disturbance is in the area of his relations with others. Here we see disturbance in his activities such as capacity for work, for enjoyment, and for sex life. His object relations are shallow and weak. Therefore, he has no consideration for others. He lacks depth of feelings. Much of his acting-out and emotional outbursts are only an attempt to break through his insensitiveness. His judgment is defective. This individual shows no evidence of psychosis or insanity. However, it may be stated that under extreme stress and frustration he may develop psychotic behavior. Diagnosis: Personality pattern disturbance, schizoid personality. Recommendations: This patient is not psychotic or insane. There is no evidence of neurosis. He shows a mild degree of mental deficiency which is not disabling. He has adequate intellectual capacity to assist his counsel in the conduct of his legal defense. Therefore, we respectfully suggest that his case be handled through the ordinary channels of criminal law.'

Defendant's points, three in number, all relate to the claimed defense of insanity or criminal irresponsibility: That the court erred, upon request, in failing to instruct the jury on said issue; that Instruction No. 1, given on behalf of the state over defendant's objection, was erroneous in that it did not cover the defense of insanity or criminal irresponsibility; and that the court erred in refusing to give Instruction 9 offered by defendant on said issue because, as contended, there was evidence to support such an instruction.

On November 12, 1963, defendant was arraigned during which he was advised of his right to counsel. The court then offered to appoint counsel for defendant, but he waived the right of counsel and the court found that he was mentally able and sufficiently informed to decide his need for counsel. Defendant then personally entered his plea of not guilty to the charge of first degree murder. The before-mentioned pre-trial motion for mental examination was filed by defendant's then counsel, Mr. Michael D. Konomos, on January 30, 1964.

On October 13, 1963, after the homicide but before the arraignment, new Chapter 552 of Criminal Procedure, entitled 'Mentally Ill Persons in Criminal Cases,' became effective. The provisions of that legislation were not utilized in this case. As counsel for defendant here states, 'It is apparent from the transcript that neither appellant, the State, nor the Court, was aware of, or at least proceeded under Chapter 552.'

Section 552.030 ¹ provides in part as follows:

'1. 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.

'2. Evidence of mental disease or...