State v. Erwin
| Decision Date | 23 February 1993 |
| Docket Number | No. 74887,74887 |
| Citation | 848 S.W.2d 476 |
| Parties | STATE of Missouri, Respondent, v. Samuel Levi ERWIN, Appellant. |
| Court | Missouri Supreme Court |
Patrick J. Berrigan, Asst. Public Defender, David S. Durbin, Appellate Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., John M. Morris, Millie Aulbur, Asst. Attys. Gen., Jefferson City, for respondent.
Defendant was charged with first degree murder, § 565.020, 1 but was convicted upon jury trial of second degree murder, § 565.021, and sentenced to life imprisonment. In addition, he was charged and convicted of armed criminal action, § 571.015, with a sentence of fifty years' imprisonment. The sentences were to be served consecutively. Following opinion, the case was transferred to this Court. Mo. Const. art. V, § 10. The issue motivating transfer is whether defendant's due process rights are violated because he could not rely on intoxication as a defense and because the approved instruction on intoxication relieves the state of its burden of proof as to the accused's mental state. While we adhere to the rule that voluntary intoxication is not a defense, the judgment is reversed.
Defendant Levi Erwin killed Aaron Cochran with a shotgun blast to the head as Aaron lay sleeping on his bed at 3:30 or 4:00 o'clock on a Saturday morning, August 20, 1988. Aaron was 17 years old. Levi, also 17, was an overnight guest in Aaron's house. The evidence shows nothing of any motive for the killing. Levi and Aaron were friends. Levi said, in a later videotaped statement made to sheriff's deputies, "[W]e were just like brothers."
The only account of the events surrounding the killing comes from Levi's own statements to the sheriff's deputies, made later in the day of the killing and on the day following. A videotape of his statement made to the officers on the second day after the killing was shown to the jury at the trial, and the jury members were furnished with transcripts thereof.
Aaron lived with his parents and two brothers in their rural home. The parents and the brothers were absent from home on this night, and Levi's overnight stay was prearranged between himself and Aaron. The two youths were not together during Friday evening, but each was engaged in other activities with other friends. Levi was driven by a friend to the Cochran house and dropped off there at about 12:35 a.m. Aaron had not yet arrived home. He got home about 1:00 a.m.
Aaron had brought home with him a small keg of "Matilda Bay," which the evidence describes as a wine cooler, and a six-pack of beer. After Aaron got home, the two boys watched "The Three Stooges" on television, then watched a videotaped Vietnam Aaron and Levi drank the Matilda Bay and five cans of the beer--the sixth had been broken--as they watched the movie. Levi himself drank three glasses of Matilda Bay, but he did not say how much beer. At about 3:15 a.m., Aaron went upstairs to bed. He had difficulty climbing the stairs. After his death, his blood alcohol content was found to be .05 percent. One tenth of one percent (.10 percent) blood alcohol content would indicate intoxication.
movie, "Purple Hearts." Levi later told the police officers that the movie excited him. Both Levi and Aaron were involved in a paramilitary group called "Atherton Defense Group."
After Aaron had gone to bed, Levi went to the basement of the house to get a gun to take with him on a nocturnal quadrunner ride "because I thought maybe I would see a wolf or something out there." In the basement he shot off some rounds with a 12-gauge pump action shotgun. Levi then apparently took the shotgun upstairs and shot Aaron, who was asleep on his bed. From the massive head wound and other evidence, witnesses concluded there was a second shot. In his later statement Levi said, "I don't really know, but I'm not saying it for a fact, but I can picture myself shooting Aaron in his room." Asked if he considered this person that was lying on the bed to be Aaron, he answered, "No. I never thought about it until afterwards." He estimated the time of the shooting at 3:30 or 4:00 o'clock in the morning.
Levi, after the shooting, dropped the shotgun and ran outside. He drove across a plowed field in a station wagon and got the station wagon stuck. He returned to the Cochran house and fell asleep in the cab of a grain truck. When he awakened in the morning, he vaguely remembered shooting in the basement. He went into the house. He went upstairs and realized he had shot Aaron. He got the shotgun from Aaron's room. He returned a second time to Aaron's room. "I remember looking at Aaron's body again to hope that it was a nightmare or something, and it wasn't."
Levi attempted to call his parents but found the phone was dead. Officers later discovered the phone wire had been severed by one of the shotgun blasts in the basement of the house. He walked to the nearby house of one Carl Martin. There was no one home. He took a truck and drove to his own home in Independence, a distance, we surmise, of 10 or 12 miles, where he lived with his mother and father. He gave his mother and father a confused and hysterical account of the events described above. The father called the sheriff's office. Sheriff's deputies repaired to the Cochran house. There they found the gruesome scene, which can be imagined from what had transpired there.
Defendant raises two interrelated points regarding evidence of his intoxication. The first is that the trial court erred in excluding expert testimony by Dr. Eric Jolly that, when the murder was committed, defendant was suffering from an alcoholic blackout because such evidence negates the "knowing element of second degree murder." See § 565.021.1(1). The other point is a claim of error in giving MAI-CR3d 310.50. In both points, defendant claims the trial court's action had the effect of denying him due process.
The claim regarding the refusal of Dr. Jolly's testimony makes three assumptions. The first is that the rejected testimony was admissible as expert testimony. The second is that Dr. Jolly's testimony established that defendant was suffering from alcoholic blackout at the time of the crime. The third is that the issue of mental incapacity was properly before the trial court. None of the assumptions is correct.
Prior to calling Dr. Jolly, defense counsel disavowed his intent to advance the defense of diminished responsibility or mental Defense counsel requested the opportunity to make an offer of proof. His offer of proof went beyond merely obtaining an answer to that particular question and included a long colloquy on alcoholic blackout, which concluded with Dr. Jolly saying that one "in the midst of alcoholic blackout cannot perform knowingly." He was then asked specifically whether he had an opinion as to whether defendant was experiencing blackout at the time of the crime, to which Dr. Jolly responded, "Given a tremendous amount of skepticism as to his state of mind, it's my professional opinion he was in a state of blackout." (Emphasis added). The trial judge then reiterated his ruling that the testimony was irrelevant and added, "[S]uch expert testimony would not aid the jury in determining issues before the Court."
disease or defect. Defense counsel asserted that his purpose in calling Dr. Jolly was "no different from any testimony we might put on ... by other lay witnesses concerning what the state of mind or frame of mind was of defendant at the time." Dr. Jolly was thereafter allowed to testify concerning his study, as a psychologist, of memory and the effect of drugs and alcohol on one's ability to remember. The questioning was permitted to continue until defense counsel asked, "What type of behaviors are people in that particular state, alcoholic blackout, capable of performing?" The question evoked an objection to its relevancy, which was sustained
At no point in Dr. Jolly's testimony did he testify that his theories on blackout were accepted in the psychological or scientific community. Admission of an expert's opinion concerning scientific evidence depends upon wide acceptance in the relevant scientific community of its reliability. State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984). Defendant's failure to show widespread acceptance in the scientific community establishes that the trial court did not err in finding such testimony to be irrelevant.
Dr. Jolly never explained what he meant by the phrase "Given a tremendous amount of skepticism as to [defendant's] state of mind," which was the qualification of his opinion that defendant was in a state of blackout. Such skepticism indicates that Dr. Jolly had doubts that he could reach any reliable conclusion as to defendant's mental state. Such comments firmly establish that Dr. Jolly's opinion was not based on the degree of scientific certainty necessary to qualify as an expert opinion.
Even assuming Dr. Jolly's opinions were based upon widely accepted scientific evidence, the essence of Dr. Jolly's testimony was not that defendant would have difficulty knowing and appreciating the consequences of his conduct. Dr. Jolly's testimony was that defendant was incapable of knowing the nature and consequences of his conduct. A defense of diminished capacity because the accused is incapable of forming the mental element necessary to commit a crime is necessarily based on evidence of a mental disease or defect as defined in § 552.010. State v. Gill, 806 S.W.2d 48, 50 (Mo.App.1991); State v. Weatherspoon, 716 S.W.2d 379, 384 (Mo.App.1986), cert. denied, 479 U.S. 1095, 107 S.Ct. 1313, 94 L.Ed.2d 167 (1987). Evidence of a mental disease or defect is not...
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