State v. Collier, 42445

• Decision Date: 28 July 1981
• Docket Number: No. 42445,42445
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Clarence COLLIER, Jr., Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 30

624 S.W.2d 30

STATE of Missouri, Plaintiff-Respondent, v. Clarence COLLIER, Jr., Defendant-Appellant.

No. 42445.

Missouri Court of Appeals, Eastern District, Division Two.

July 28, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 16, 1981.

Joseph V. Neill, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Lew A. Kollias, Kristie Green, Asst. Attys. Gen., Jefferson City, George A. Peach, Cir. Atty., St. Louis, for plaintiff-respondent.

WEIER, Judge.

Defendant Clarence Collier was convicted of the crime of forcible rape under § 559.260, RSMo Supp. 1975, and was sentenced to twenty-five years imprisonment. From this judgment and sentence he appeals setting out seven trial errors which he contends entitle him to a new trial. We affirm the judgment.

Defendant first complains of the trial court action in allowing the circuit attorney to proceed under a substitute information in lieu of indictment because the circuit attorney never sent or delivered a copy of the substitute information to counsel for defendant. The information set out the same charge of forcible rape contained in the indictment. In addition, however, the information alleged a prior conviction in order to authorize sentencing by the judge under the Second Offender Act. From the record it appears that the assistant circuit attorney orally notified defense counsel the prosecutor's intention to amend the information in order to invoke the Second Offender Act five days prior to the trial. The copy that was to be mailed to the defendant apparently was never mailed but was found in the court's file. This copy and the original information were filed five days prior to the trial. When defense counsel saw the copy on the day of trial, no request for continuance was made. He did not raise this in his motion for new trial nor has he specified in what respect his client was prejudiced other than that it changed his trial strategy. There is no showing as to what change had to be made nor can this court conceive of any at this time.

Rule 24.02 in effect at the time the information was amended (now incorporated in Rule 23.08) permitted an information to be amended or substituted for an indictment at any time before verdict if no additional or different defense was charged and if substantial rights of the defendant were not prejudiced. An amendment which invoked the Second Offender Act does not charge a different offense. State v. Collins, 383 S.W.2d 747, 750 (Mo.1964). Even when no notice is given as to the filing of an amended information, it is not error to deny a request for continuance where there is no showing that any defense under the charges originally made would not have been equally available under the amended charge. State v. Lockhart, 501 S.W.2d 163, 165 (Mo.1973). We find defendant's first contention to be without merit.

For his second point relied on, defendant contends that the court erred when it ordered defendant to undergo a second psychiatric examination pursuant to §§ 552.020 and 552.030, RSMo 1978, after defendant had previously been examined by a court-appointed psychiatrist because the State's request for the second examination did not comply with the requirements of § 552.020 and for the further reason that the State did not contest the findings in accordance with the terms of the statute. This arose out of the following circumstances.

A motion was filed on behalf of the defendant on January 30, 1979, seeking a psychiatric examination. The motion alleged that defendant suffered from a mental disease such that he did not know or appreciate the nature of his conduct at the time of the commission of the crime on May 5, 1978, and further that this same disease or defect resulted in a lack of capacity on his part to understand the proceedings against him and thus made him unable to assist in his own defense. The court ordered the examination and two days after the filing of the psychiatric report the State objected to it and requested a second examination. The court denied this motion noting that the psychiatric report indicated defendant was suffering from a mental disease that caused him to be incapable of understanding the nature and wrongfulness of the alleged crime. It further found, however, he was capable of understanding the charges against him and could assist his attorney in his own defense. On April 12, 1979, the court denied the State's request for a second examination because the memorandum contained no basis for the objection and no request was made for a hearing to contest the findings of the first report. Thereafter on April 18, 1979, the assistant circuit attorney filed an amended request for second examination. This amended request was attacked by defendant on the basis that it was not filed within five days after the filing of the official psychiatric report as required by statute. Section 552.020, RSMo 1978, provides for examination and a hearing with respect to the mental capacity of an accused to assist in his own defense. Section 552.030, RSMo 1978, provides for an examination and a judicial hearing to determine whether a defendant who has pleaded a mental disease or defect excluding responsibility for his action giving rise to the charge had such defect or disease at the time of the commission of the crime. Section 552.020.4 (now subsection 5, RSMo Supp. 1980) provides that within five days after the filing of the report both the accused and the State shall be entitled, upon written request, to an order granting them an examination of the accused by a doctor of the movant's own choosing at movant's expense. The same provision is found in § 552.030.4 except that the five days commences upon receipt of a copy of the report rather than upon the filing of the report as set out in § 552.020. From the use of the word "shall" in each section, we take it that if such a request is made within five days, by either the accused or the State, then it is mandatory that the court grant such an examination at the expense of the party requesting it. Here the State objected to the first report and requested a second examination two days after the filing of the medical report. Although the report found the defendant was capable of assisting his counsel in the trial of the case, it concluded defendant was suffering from a disease at the time of the alleged commission of the crime and hence was free of responsibility under the criminal code. The court in denying the request made by the State within the five-day period was in error because the State was entitled to the second examination if requested within that time. If the request had been made thereafter, then granting of the examination would be within the discretionary power of the court. The court here was correcting its mistake with no prejudice to defendant.

We are supported in this conclusion by State v. Bacon, 501 S.W.2d 499, 501 (3) (Mo.App.1973) which recognizes that there is an absolute right to a second examination at the expense of the party requesting same after a timely motion. It further recognizes the trial court's broad discretion to grant or deny a motion made out of time.

We find defendant's second point relied on is without merit.

For his third contention of trial court error, defendant complains of the trial court's action in overruling an objection to questioning by the court of the State's rebuttal witness, a psychiatrist. A court has an inherent power to interrogate witnesses. Questions by the court are proper where the purpose is to develop more fully the truth and to clarify testimony that has already been given. In so doing, the judge must maintain a neutral attitude and should avoid any demonstrated hostility which might impair the atmosphere of impartiality. State v. Cain, 485 S.W.2d 60, 62 (3, 4) (Mo.1972); State v. Farmer, 536 S.W.2d 748, 751 (4-6) (Mo.App.1976); State v. Clark, 522 S.W.2d 332, 334 (3, 4) (Mo.App.1975).

The first psychiatrist who examined the defendant determined that he was suffering from paranoid schizophrenia but that it was in remission. This doctor also found that defendant indulged in amphetamines which produced an exacerbation in symptoms so that he was out of contact with reality and that at the time of the commission of the crime he was incapable of understanding the wrongfulness of his conduct. He concluded he was able to assist in the defense of the charge brought against him. The second psychiatrist also found defendant capable of assisting in his defense but arrived at a different conclusion as to his condition at the time of the commission of the crime. From the defendant's past history he also was of the opinion that he had a mental disease, but in...