State v. Cole

• Decision Date: 04 September 1979
• Docket Number: No. 30004,30004
• Citation: State v. Cole, 588 S.W.2d 94 (Mo. App. 1979)
• Parties: STATE of Missouri, Respondent, v. Lenwood COLE, Appellant.
• Court: Missouri Court of Appeals

Page 94

588 S.W.2d 94

STATE of Missouri, Respondent, v.Lenwood COLE, Appellant.

No. 30004.

Missouri Court of Appeals, Western District.

Sept. 4, 1979.

Rehearing Denied Oct. 1, 1979.

Allen I. Harris, St. Louis, for appellant.

John D. Ashcroft, Atty. Gen., and Philip M. Koppe, Asst. Atty. Gen., Hope E. Thurrott, Spec. Asst. Atty. Gen., Kansas City, for respondent.

Before HIGGINS, Special Judge, Presiding, SWOFFORD, C. J., and WELBORN, Special Judge.

ANDREW JACKSON HIGGINS, Special Judge.

Appeal from judgment on convictions by a jury of murder, second degree, and assault with intent to kill with malice aforethought.In question: the sufficiency of evidence to establish the requisite mental state; admission of evidence of the victims' family status, and a photograph of the crime scene; instruction on voluntary intoxication; failure to give tendered instructions on diminished responsibility, and failure to declare mistrial on the State's argument.Affirmed.

This case arose from the shooting of two police officers in defendant's home at 7434 Canton Avenue, University City, Missouri, ¹ Sunday, February 22, 1976.He was indicted on charges of capital murder, § 559.005,Laws of Missouri 1975, and felonious assault with malice aforethought, § 559.180 RSMo.He pleaded not guilty and not guilty by reason of mental disease or defect excluding responsibility.

One week prior to the shooting, defendant was treated for pneumonia at St. Louis County Hospital.He was given a shot of ampicillin and prescriptions for oral ampicillin and codeine to be taken for the ensuing week.He missed some work during the week as a result of his illness, but had returned to work on Saturday before the shooting.He worked the night shift, returned home Sunday morning and went to bed.

He arose about noon Sunday.At 2:00 p. m., he took a codeine tablet, left home and drove to a nearby bowling alley.Enroute, he drank one-half pint of bourbon whiskey.He went later to a lounge where he drank two beers and a mixed drink.

He returned home between 7:00 and 7:30 p. m., and took one tablet each of ampicillin and codeine.He went to his room and called his oldest son, age eight.He told his son he was to be the man of the house, then called his other two sons and told them they were to mind their older brother.Following this conversation with his sons, defendant asked his wife if she wanted her freedom.During this conversation, the second son brought a vase of flowers to defendant which he flung across the room, breaking the vase.Without coat or shoes, defendant went to the front door, told his wife life did not matter any more, that she would be better off without him, and that insurance would take care of her and the children.He left in his car; and, at this time, about 8:00 p.m., defendant's wife made the first of several calls to the University City Police Department.She informed the dispatcher her husband was "acting crazy" and had just left the house.She asked for help.A few minutes later, she called the police again and informed them defendant was home.Defendant had returned home and gone to bed.Two or three minutes later, Officer Didden arrived; Officer Graham arrived shortly thereafter.Defendant's wife admitted them to the living room area of the house.

Defendant heard the voices of the two officers and the squelch of their radios.He came from his bedroom to the living room and asked the officers what they were doing there.One of the officers told him they had been called by his wife for a family disturbance.Defendant said there was no disturbance and told the officers to leave.The officers insisted they would stay until the disturbance was settled.Defendant told the officers to leave several more times and took their names and badge numbers with threats to call their captain to have them removed.Defendant left the room, returned with a shotgun, and said, "I told both of you I want you out of here and I'm not telling you anymore."He then fired three blasts.Two of them hit and killed Officer Graham; the third wounded Officer Didden in the jaw and neck.Defendant's wife took the gun from defendant, after which he called the University City Police and reported, "I just killed them.I told them to get out of my house, they wouldn't get out of my house.I just killed two of them here.Didden and Graham."

One or two minutes later defendant was arrested, handcuffed and placed in a police car.He was crying, and stated a couple of times, "I shot them".Upon arrival at the police station, defendant was given a breathalyzer test and a reading of .20 was recorded.A videotape confession was also recorded.

That defendant shot the officers was conceded.Three doctors addressed the issue of defendant's mental state at the time of the shooting.Dr. Nathan Mark Simon, believed the combination of illness, alcohol and drugs produced a "toxic psychosis" in which defendant was not responsible for what he was doing, where he could not distinguish between right and wrong, and where his actions were impulsive.

Dr. Paul A. Dewald could come to no conclusions on defendant's state of mind.His hypothesis was that defendant's generally weakened psychological and physical condition, codeine and alcohol ingestion, and other things "may very well have caused a toxic state, a delirium * * * in which an individual is subject to, at times, uncontrollable or unanticipated behavior pattern."

Dr. Joseph S. Shuman believed that defendant, at the time of the shooting, was a normal man who, perhaps because of alcohol he had consumed but probably not because of the codeine, had used poor judgment.

Lay witnesses on the issue of defendant's mental state at the time of the shootings stated he did not appear drunk and described him as reasonably alert and sober.

Appellant contends the evidence was insufficient to sustain conviction in that the psychiatric testimony on the issue of mental state and intent was such that the court should have directed verdicts for defendant on the charges against him.He argues first, that such testimony warranted directed verdicts on his defense of not guilty because of mental disease or defect, excluding responsibility under Chapter 552 RSMo; and second, that he was entitled to have reduced charges of manslaughter and assault without malice submitted to the jury on his theory of diminished responsibility negating specific elements and hence reducing the charge.

With respect to the defense of mental disease or defect, § 552.030.7 RSMo provides:

"All persons are presumed to be free of mental disease or defect * * * The issue of whether any person had a mental disease or defect excluding responsibility for his conduct is one for the jury to decide upon the introduction of substantial evidence of lack of such responsibility.* * * Upon the introduction of substantial evidence of lack of such responsibility, the presumption shall not disappear and shall alone be sufficient to take the issue to the jury."²

Defendant had the benefit of testimony from Dr. Simon and Dr. Dewald which, under the statute, entitled him to present the issue of mental disease or defect to the jury.Also present in this case was the testimony of Dr. Shuman that defendant was free of mental disease or defect excluding responsibility.Thus, he was not entitled to a directed verdict because the presumption of freedom from mental disease or defect does not disappear, and it alone is sufficient to take the issue to the jury.State v. Greenhaw, supra.The issue was properly submitted by Instruction 5 in form MAI-CR 3.70.

Appellant makes the same argument presented in State v. Anderson, 515 S.W.2d 534(Mo. banc 1974), where the concept of "diminished responsibility" was discussed and § 552.030.3(1)³ RSMo was read in conjunction with Model Penal Code (ALI) § 4.02(1).It was determined that if defendant introduced the evidence envisioned by § 552.030.3(1), the jury must be instructed on offenses which are committed in a mental state less than that required for conviction on charged offenses.Defendant Cole received both considerations.Defendant was permitted to adduce evidence on mental disease or defect, and the jury was instructed on the lesser offenses of manslaughter, Instruction 8 (MAI-CR 2.30/6.08), and assault without malice aforethought, Instruction 10 (MAI-CR 2.30/6.24), all as required by State v. Anderson, supra.

The State elicited testimony from Officer Didden that he was a married man with two children, and that Officer Graham had been a married man with children.Appellant contends the court erred in overruling his objections to such questions on the ground of irrelevance.He asserts that the family status of the officers had no relevancy, and the questions to that effect were asked "to influence the jury."

Evidence of the family status of the crime victims was not relevant to the issues, State v. Johnson, 349 Mo. 910, 163 S.W.2d 780(1942); however, prejudice must flow from such error for reversal to ensue, State v. Smith, 534 S.W.2d 604(Mo.App.1976).As previously demonstrated, the only issue of consequence was the mental state of defendant.It is not likely that the evidence in question affected the jury in resolution of that issue, and appellant makes no demonstration of prejudice beyond his assertion of its existence.To the contrary, defendant, himself, utilized the victims' family status in closing arguments.

Appellant charges the court erred in admission in evidence of Exhibit 21 in that it was "a photograph showing a lot of blood, did not add any relevant evidence * * * was at most cumulative and was highly prejudicial."

It is within the discretion of the trial court to determine whether potentially prejudicial or inflammatory evidence should be admitted, and relevance is the principal criterion.State v. Johnson, 539 S.W.2d 493(Mo.App.1976), cert. den.430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779.Relevant evidence...