State v. Broderick, 12194

• Decision Date: 08 December 1981
• Docket Number: No. 12194,12194
• Citation: State v. Broderick, 625 S.W.2d 912 (Mo. App. 1981)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Richard Lee BRODERICK, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 912

625 S.W.2d 912

STATE of Missouri, Plaintiff-Respondent, v.Richard Lee BRODERICK, Defendant-Appellant.

No. 12194.

Missouri Court of Appeals, Southern District, Division Two.

Dec. 8, 1981.

John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

W. Price Harned, Martin & Harned, Gainesville, for defendant-appellant.

PREWITT, Presiding Judge.

Defendant was convicted after a jury trial of stealing a motor vehicle, a class C felony, § 570.030.2(3)(a), RSMo 1978, and was sentenced to seven years imprisonment as a persistent offender, § 558.016, RSMoSupp.1980.He contends that the trial court erred: (1) when it denied his motion for a psychiatric examination prior to trial, and (2) when it "misconstrued" his plea of not guilty by reason of mental disease or defect as a lack of mental capacity to understand the nature of the proceedings and to assist in the defense.

On the morning that the matter was set for trial defendant filed two written pleadings, "NOTICE OF PURPOSE TO RELY ON DEFENSE OF NOT GUILTY BECAUSE OF MENTAL DISEASE OR DEFECT" and "MOTION FOR PSYCHIATRIC EXAMINATION."Defendant had entered a general plea of not guilty forty days before.The trial court allowed the filing of the notice pleading not guilty by reason of mental disease or defect excluding responsibility but after hearing refused to order a psychiatric examination.

We first consider defendant's contention that the court erred when it denied his motion for a psychiatric examination prior to trial.As defendant did not give any reason for the late filing of the notice, it would not have been error if the court had refused to allow the notice to be effective and had excluded all testimony regarding defendant's mental condition.SeeState v. Holmes, 439 S.W.2d 518, 520-521(Mo.1969);State v. Fulsom, 557 S.W.2d 671, 674(Mo.App.1977).See alsoState v. McIntosh, 492 S.W.2d 843, 844(Mo.1973);State v. Crowley, 571 S.W.2d 460, 462(Mo.App.1978).However, once the court allowed the late filing, defendant contends that it became mandatory for the court to order a psychiatric examination.

Section 552.030.4, RSMo 1978, provides that when the defendant has pleaded mental disease or defect excluding responsibility and the defense has not been accepted by the state, the judge "shall, after notice and upon motion" appoint a private physician or direct the superintendent of the department of mental health to have defendant examined.Defendant's motion did not state whether it was for a psychiatric examination under § 552.030.4 or under § 552.020, RSMo 1978, or both.The entire body of the motion was as follows:

"Comes now defendant, Richard Lee Broderick, and moves this Court to appoint one or more private physicians to make a psychiatric examination of the defendant or to direct the superintendent of a facility of the Missouri Division of Mental Diseases to have the defendant so examined by one or more physicians whom the superintendent shall designate."

The trial judge apparently considered this motion as a request under § 552.020 for an examination to determine if defendant had the mental capacity to proceed to trial.He inquired of defendant's counsel whether defendant wished to have an evidentiary hearing on the motion before commencing the trial.When informed that he did, the judge said, "You may proceed on your motion for psychiatric examination as set out in Rule-or state statute552.020, subsection 2: whenever any judge or magistrate has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed, etcetera."There was evidence presented...