State v. Crews

• Decision Date: 15 December 1980
• Docket Number: No. 41161.,41161.
• Citation: 607 S.W.2d 729
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Terry CREWS, Defendant-Appellant.
• Court: Missouri Court of Appeals

607 S.W.2d 729

STATE of Missouri, Plaintiff-Respondent, v. Terry CREWS, Defendant-Appellant.

No. 41161.

Missouri Court of Appeals, Eastern District, Division Four.

September 9, 1980.

Motion for Rehearing and/or Transfer Denied October 17, 1980.

Application to Transfer Denied December 15, 1980.

Robert C. Babione, Public Defender, Mary K. Wefelmeyer, Asst. Public Defender, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 17, 1980.

SMITH, Presiding Judge.

Defendant appeals from his conviction by a jury of robbery first degree, kidnapping, and armed criminal action and resultant sentences by the court under the second offender act of 30, 10, and 30 years to be served consecutively. We affirm the convictions for robbery and kidnapping and reverse the conviction for armed criminal action.

The evidence supported a factual finding that defendant and his brother robbed the victim at gunpoint, placed her into an automobile against her will, took her into two other counties where other offenses were committed, and returned her to the City of St. Louis some two and one-half hours later. The victim was a school teacher seven months pregnant at the time. Defendant testified to an alibi and called witnesses to support that claim.

On appeal defendant raises four points, none of them relating to the sufficiency of the evidence. It is first contended that the trial court erred in allowing the defendant to represent himself and in failing to have a written waiver of counsel signed by defendant pursuant to Sec. 600.051, R.S.Mo.1978. Defendant did request that he be allowed to represent himself without counsel. This request was not granted by the court. Rather defendant was allowed to try the case with counsel available to assist and advise him. This was permitted only after extensive questioning by the Court during which the hazard of self-representation was explained thoroughly to defendant, and during which defendant demonstrated a fairly complete rudimentary understanding of legal and courtroom procedures. Defendant had available to him throughout the trial the assistance of counsel which he utilized freely and frequently. Counsel performed certain legal work such as obtaining subpoenas. In addition he approached the bench and appeared in chambers with defendant during conferences, advised the court on occasion of the legal basis for defendant's objections and contentions, conferred with defendant concerning objections and questioning of witnesses, explained to defendant the instructions which defendant could request be given, prepared and argued the motion for new trial, argued the question of the sentences to be imposed, and prepared and filed the notice of appeal. The representation accorded to defendant is frequently referred to as "hybrid." State v. Edwards, 592 S.W.2d 308 (Mo.App.1979). In essence defendant served as co-counsel with an attorney. He had the opportunity to actually try the case with the assistance throughout of counsel.

In Peterson v. State, 572 S.W.2d 475 (Mo. banc 1978), the Supreme Court held that Sec. 600.051 requires that a written waiver of the assistance of counsel be obtained and that the failure to obtain such a written waiver is prejudicial error. In State v. Burgin, 539 S.W.2d 652 (Mo.App.1976); State v. Johnson, 586 S.W.2d 437 (Mo.App.1979); and State v. Tyler, 587 S.W.2d 918 (Mo.App. 1979) the courts held that hybrid representation is not a waiver of counsel but on the contrary is the utilization of the assistance of counsel and Sec. 600.051 is not therefore applicable. Defendant here accepted the hybrid representation and the court did not err in failing to obtain a written waiver of counsel.

We need not determine whether bench warnings of the danger of self-representation are required in hybrid representation cases, or whether the same requirement of "intelligent and knowing waiver" needs to be met as that required in no-counsel cases. See State v. Edwards, supra. Suffice it to say here that the extensive warnings and questioning by the court and defendant's responses thereto establish that defendant was adequately warned and made his choice with full knowledge and understanding of what he was doing. State v. Nicolosi, 588 S.W.2d 152 (Mo.App.1979). We find no merit in defendant's first point.

Defendant's second point we set forth verbatim:

"The trial court erred in its order of September 18, 1978 wherein it found that the defendant had mental fitness to proceed with the trial. This finding was based on a psychiatric evaluation of August 28, 1978 that did not comply with the requirements of Chapter 552 of the Revised Statutes of Missouri, Supp.1971. This violated defendant's rights under the Fifth, Sixth, and Fourteenth Amendments of the United State Constitution and under Article I, Section 10 and 18(a) of the Missouri Constitution."

The point arises in the following context. On May 19, 1978, defendant, represented by an appointed attorney, filed a motion for psychiatric examination. That motion was denied. On July 28, 1978, defendant, now represented by retained counsel, filed a second motion for psychiatric examination. At the hearing on that day defendant's attorney stated that shortly before a previous trial setting defendant had cut himself on the arm in an attempt to commit suicide.¹ Counsel further stated he had had difficulty obtaining information from defendant although he seemed willing to cooperate; that defendant appeared to have difficulty thinking about or concentrating on the case; that defendant had difficulty remembering the evening on which the offense occurred. Counsel further indicated that he had been told that defendant had some history of glue sniffing, which counsel understood could cause brain damage. Counsel did testify that he had examined a report of mental examination, made in May 1977 in another case, which had found defendant mentally competent to stand trial. Counsel stated that defendant had not wanted that medical examination, had not cooperated in it and had not received an electroencephalogram because of his non-cooperation. On cross-examination counsel stated that the 1977 report indicated that defendant was anti-social. He also admitted that defendant had an awareness of the charges against him; that the absence of communication by defendant had been recent; that a month before the hearing defendant had been tried on another charge arising from conduct occurring at approximately the same time as the charges in this case and that in that case defendant had taken the stand and testified. Counsel also stated that defendant had made statements about hanging himself. After the hearing on August 22, 1978, the court entered the following order:

"The Court having been informed that the above-named defendant while in confinement has inflicted injury to his own person, therefore, the court, over the objections of the State, hereby sustains the defendant's motion for a second psychiatric examination and evaluation.

"Causes ordered continued at the request of the defendant.

"The Court orders that Dr. Bun Tee Co, Jr. Director of Forensic Services, Malcolm Bliss Mental Health Center or a designee of his staff proceed to the City Jail at 124 S. 14th Street, St. Louis, Mo, at a time satisfactory to Dr. Co to conduct a preliminary evaluation with the purpose of determining whether it is necessary to send the defendant to Fulton State Hospital for a second psychiatric evaluation or whether said examination and evaluation may be performed on an out-patient basis at Malcolm Bliss Mental Health Center."

On September 18, 1978 the court entered the following order:

"Pursuant to a prior Order of the Court dated August 22, 1979, (sic) a report reflecting the psychiatric evaluation of the defendant dated August 28, 1978 signed by Dr. Bun Tee Co, Jr., Director, Forensic Services, Malcolm Bliss Health Center, has heretofore been filed with the Court on September 1, 1978.

"Accordingly, based upon this report dated August 28, 1978 and the report of the psychiatric examination and evaluation performed at the Fulton State Hospital dated June 15, 1977 in a cause of action which was pending in St. Louis County and said report dated June 15, 1977 having been admitted into evidence in Cause # 77-2281-A, and the Court further taking notice of the entire record finds on the basis of the psychiatric reports dated August 28, 1978 and June 15, 1977 that the above-named defendant has mental fitness to proceed.

"Causes removed from Mental Docket and set for trial on Monday, October 23, 1978 in Division # 24."

Trial began on the case on November 13, 1978. No reference to a mental examination or to defendant's competency appears in the record after the order of September 18, 1978, until the motion for new trial.

Defendant's point relied on is inadequate in specifying in what way the trial court erred. Initially, it fails to explain in what way the psychiatric evaluation of August 28 did not comply with the requirements of Chapter 552. This becomes even more critical because appellant has not included as a part of the record before us either that report or the earlier evaluation of June 1977. Nor are we advised in what way the actions of the court violated defendant's various constitutional rights. Inasmuch as the question of competency to stand trial cannot be waived by going to trial (State v. Clark, 546 S.W.2d 455 (Mo. App.1977) 14-16) and is of fundamental constitutional import (Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)) we will attempt to address the issues which we believe are arguably before us. These appear to be two-one procedural, the other substantive.

The procedural question is whether the initial order of August 22 mandated an evaluation...