State v. Brizendine

• Decision Date: 12 November 1968
• Docket Number: No. 53078,53078
• Parties: STATE of Missouri, Respondent, v. William Prell BRIZENDINE, Appellant.
• Court: Missouri Supreme Court

Page 321

433 S.W.2d 321

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

No. 53078.

Supreme Court of Missouri, En Banc.

Nov. 12, 1968.

Norman H. Anderson, Atty. Gen., John C. Klaffenbach, Gerald L. Birnbaum, Asst. Attys. Gen., Jefferson City, for respondent.

J. Arnot Hill, J. Whitfield Moody, The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.

WELBORN, Commissioner.

This is an appeal from a denial of relief in a Rule 27.26 post-conviction proceeding.

By information filed November 12, 1963, in the Jackson County Circuit Court, William Prell Brizendine was charged with murder in the first degree in the death, on October 6, 1963, of George Dave Miller. On March 31, 1964, on the second day of trial, a jury found Brizendine guilty of murder in the first degree and fixed his punishment at life imprisonment. On appeal, the conviction was affirmed. State v. Brizendine, Mo.Sup., 391 S.W.2d 898.

Without prior resort to Criminal Rule 27.26, V.A.M.R., Brizendine filed an application for habeas corpus in the United States District Court for the Western District of Missouri. The court dismissed the petition 'without prejudice to file a motion to vacate and set aside his sentence pursuant to Missouri Rule 27.26.' Brizendine v. Swenson, D.C., 261 F.Supp. 68, 77.

A pro se motion under Criminal Rule 27.26, V.A.M.R., was filed by Brizendine in the Jackson County Circuit Court on November 12, 1966. The Legal Aid and Defender Society of Kansas City was appointed to represent the petitioner. A hearing on the petition was held in the Jackson County Circuit Court, with the petitioner present and represented by a member of the Legal Aid and Defender staff. The trial court made findings of fact and conclusions of law and entered judgment against the petitioner. This appeal followed.

The circumstances of the offense involved are set out in State v. Brizendine, supra. Briefly stated, Brizendine had previously quarreled with and threatened the victim. According to an eyewitness, Brizendine knocked on the victim's hotel room door. When the victim came to the door, Brizendine said, 'Miller, are you my friend?' The victim replied, 'Yes,' and Brizendine shot him. Brizendine left the hotel immediately, took the weapon involved to the home of a woman acquaintance and told her that he thought he had 'killed G.D.' Brizendine left the weapon with the woman who called police. Brizendine was arrested within an hour or so.

Brizendine's sister employed Michael Konomos, an experienced Kansas City criminal lawyer, to defend her brother. At the arraignment, on November 12, 1963, defendant was asked whether he had an attorney. When he stated that Konomos represented him, a plea of not guilty was entered by the court. (The transcript of the proceedings upon the arraignment are set out in Brizendine v. Swenson, supra, at 261 F.Supp. 71 and 72. The record of the proceedings does not bear out the minute entry, found in the transcript on appeal, upon which the statement in State v. Brizendine, supra, 391 S.W.2d 901, relating to the proceedings at arraignment, was based. The trial court concluded that the transcript of the proceedings correctly set out what transpired and we accept that finding.) The case was set for January 13, 1964. On that date it was reset for January 27, and on January 23, for February 3.

On January 30, 1964, Konomos filed a motion to have the defendant's 'mental capacity and ability to aid counsel in his defense' determined. The motion stated that the defendant's counsel had endeavored in numerous conferences with the defendant to discuss the charge against him but 'that during each of said conferences, defendant has been unable to comprehend the questions asked him; that he is unable to understand and comprehend that he is charged in this Court with first degree murder.' The motion stated that, in the opinion of counsel, 'defendant is so mentally ill that he is unable to aid in his own defense or to understand the gravity of the proceedings against him' and asked that defendant be examined 'regarding (his) mental ability to understand the proceedings against him and to aid counsel in his defense.'

The motion was presented to Honorable Harry Hall, Judge of Criminal Division A of the Jackson County Circuit Court on January 30, 1964. In presenting the motion, Konomos stated:

'Well, sir, first of all, I have seen him, since I became his attorney about two months ago, at least twelve to sixteen times. I did not know the man, but the minute that I was called by some friends of his, why, everybody told me that he was using 'goofballs,' that he's crazy. I talked to him; I couldn't get him to understand this is a serious matter, this is a Frist Degree Murder that may involve his life, and he would laugh, just shake it off like it was nothing. Then he would sit down and write me letters telling me how to try the case and what alibi to put up. Of course, a lot of them do that. I went back and said, 'Will you sit down and talk to me? I want to know how it happened. You can trust me; I want to know.' He started laughing, changed the subject, telling me he was a bad boy, he was discharged from the Marines, a dishonorable discharge, because he was mentally sick. He didn't use the word 'mentally,' because he was sick. I said, 'Tell me when you joined, when you were discharged.' I couldn't ascertain the time, if he was in the Marine Corps or if he was discharged.

'I went back and talked to him again, and from his actions, appearance and speech, and refusal to cooperate with me, I have come to the conclusion, in my opinion, that the man needs mental examination to see whether he can properly defend this charge.'

The assistant prosecuting attorney added:

'Strictly for the Court's edification, and just based upon what I know about the man, he has been, as far as I know, if not on hard narcotics, has been on 'goofballs' for I don't know how long; in fact, was convicted of it. The conviction was set aside because of error in the instructions. He had been convicted at the time he was called to testify as a witness for George Lawrence Watson, whom I was trying, and so I saw 'Flapjack,' as we call him, in the courtroom, on the stand. I mean this doesn't--I don't say the man is mentally unstable, but based upon what I know of him, he is goofy. If that is mentally unstable, I don't know.'

Upon this presentation, the court ordered defendant sent to the State Hospital at St. Joseph for a period of thirty days 'to be examined as to his mental condition.'

On February 28, 1964, the acting superintendent of the hospital addressed a letter to Judge Hall. The essential portions of the letter are set out in State v. Brizendine, supra, 391 S.W.2d 900. The letter stated in part:

'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:

'1) 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.

'2) He has adequate intellectual capacity to assist his counsel in the conduct of his legal defense.

'3) Therefore, we respectfully suggest that his case be handled through the ordinary channels of criminal law.'

No record of the receipt of this letter appears in the transcript of the proceedings in State v. Brizendine, supra, but Mr. Konomos made use of it at the trial, which began March 30, 1964, before Honorable Richard C. Jensen. The state produced some thirteen witnesses. Mr. Konomos cross-examined them, except for one or two who testified as to largely formal matters. He cross-examined witnesses who saw Brizendine near the time of the shooting as to whether the defendant was drunk. None said that he was. No cross-examination otherwise appeared to have been intended to produce information relative to the defendant's mental state.

Upon the conclusion of the state's case, defendant's counsel's motion for a directed verdict, which stated that the state had failed to prove beyond a reasonable doubt 'that defendant knew right from wrong,' was overruled. Thereupon, Konomos stated, for his opening statement: 'Well, gentlemen, what we propose to prove is this, that this man is incompetent. This man did not know right from wrong at the time the crime was committed, and we propose to prove that through the Super-intendent of Hospital No. 2 at St. Joseph.' With the acquiescence of the prosecuting attorney, Konomos then read Doctor Waraich's letter to the jury. Upon the reading of the letter, the defense rested.

The defense offered three instructions which were rejected by the trial court. All would have submitted the theory that the defendant should be acquitted if he did not, at the time of the offense, know right from wrong. The transcript of the trial contains no comments by the court on the offered instructions. No instruction on mental capacity was given by the court.

In his closing argument, Konomos again read Doctor Waraich's letter to the jury, interspersing comments, some of which related to whether the defendant knew right from wrong. In the closing portion of the argument, Konomos stated:

'The defense maintains this: That this is a sick man, that this man had no intent to kill, that he is on the borderline of insanity. The doctor so speaks. The question for you folks to think is this, either on the First Degree Murder or Second Degree Murder: Did the State prove that this man knew the difference between right or wrong? In other words, what was his state of mind at the time that he shot and killed Mr. Miller.

'That is all I can tell you. I presented no evidence because this man can not cooperate with me. One time he tells me how to run the trial, the other time he tells me, 'Well, I don't--'

'MR. SEARS: Just a minute. Judge,...