State v. Ewing, 58299

• Decision Date: 13 January 1975
• Docket Number: No. 58299,No. 2,58299,2
• Citation: 518 S.W.2d 643
• Parties: STATE of Missouri, Respondent, v. David Lee EWING, Appellant
• Court: Missouri Supreme Court

Page 643

518 S.W.2d 643

STATE of Missouri, Respondent, v. David Lee EWING, Appellant.

No. 58299.

Supreme Court of Missouri, Division No. 2.

Jan. 13, 1975.

Motion for Rehearing or Transfer to Court en Banc Denied

Feb. 10, 1975.

John C. Danforth, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.

Richard Boardman, Legal Aid Society of St. Louis, St. Louis, for appellant.

HOUSER, Commissioner.

David Lee Ewing, found not guilty of murder by reason of mental illness, was ordered committed to the custody of the Director of the Division of Mental Diseases and kept for care and treatment in a state mental hospital. While confined to State Hospital No. 1 at Fulton under this order Ewing was charged under § 202.435, ¹ with unlawfully and feloniously removing himself from the lawful restraint of State Hospital No. 1. Tried on this charge by the court on jury waiver, Ewing was found guilty, sentenced to three years in the department of corrections and placed on probation. This is an appeal from the judgment of conviction under § 202.435.

Appellant claims that § 202.435 denies him the equal protection of the laws by creating an arbitrary and unreasonable distinction between criminal patients committed pursuant to §§ 202.700 to 202.770 and § 552.030, RSMo 1969, V.A.M.S. and civil patients committed pursuant to other state statutes. This involves a construction of the Constitution of the United States, hence this Court's jurisdiction.

Respondent contends that the constitutional issue is not open to review for the reason that no motion for new trial preserving the point was filed, citing City of Kansas City v. Miller, 463 S.W.2d 565 (Mo.App.1971), and State v. Knight, 356 Mo. 1233, 206 S.W.2d 330 (1947). Miller is not in point because there the constitutional question was not raised in the trial court. Knight is not in point because although the constitutional question was raised in the trial court it was not preserved for review in the motion for new trial filed in that case. Here the issue was raised in the trial court by motion to dismiss, which was taken up, argued, considered, and overruled, but the point was not preserved in a motion for new trial. No motion for new trial was filed. Under Civil Rule 73.01(d), V.A.M.R., no motion for new trial is necessary for appellate review of a court-tried case. Timmerman v. Ankrom, 487 S.W.2d 567(2) (Mo.1972). See the discussion of this subject by Somerville, J. in Allright Grand, Inc. v. Kansas City, Missouri et al., 515 S.W.2d 890 (Mo.App.1974) (filed October 7, 1974). Since the rules in civil cases govern the practice and procedure in criminal cases, Rule 28.18, and since the constitutional question was raised below, we will review the question on the merits, notwithstanding defendant failed to file a motion for new trial specifically preserving it.

The facts: On May 7, 1969 appellant was acquitted of a charge of murder on the ground of mental disease or defect excluding responsibility and ordered committed to the care and custody of the Director of the Division of Mental Diseases for keeping for care and treatment in a state mental hospital under § 552.040, RSMo 1969, V.A.M.S. He was committed to State Hospital No. 1 at Fulton. On January 20, 1972 appellant was reported missing from the hospital, and was absent without leave or authority. He was picked up by law officers in Kansas City on January 22, 1972 and returned to the hospital.

There was no suggestion or intimation in the circuit court that appellant lacked the mens rea or necessary criminal intent to commit the offense of escape. The trial judge and accused's counsel were fully aware of his acquittal of the murder charge on the ground of mental disease or defect excluding responsibility, his confinement to the state hospital, and that he had not been released from that commitment when charged with escape. In the escape case the circuit judge conducted a thorough inquiry on the question whether accused's waiver of jury trial was voluntary and fully understood, during which the judge had an opportunity to observe appellant. Evidently this exposure did not give the judge 'reasonable cause to believe that the accused (had) a mental disease or defect excluding fitness to proceed,' within the meaning of § 552.020, subd. 2. Appellant, represented by counsel, did not plead mental disease or defect excluding responsibility or give written notice of such defense, under § 552.030. Appellant has not raised the question of mental defect or disease excluding responsibility on this appeal. Appellant's sole defense in the trial court and his sole point on appeal was and is that § 202.435 violates the equal protection of the laws clause of Amendment XIV, Constitution of the United States, by not applying to all persons similarly situated; specifically, that (1) the classification of the statute is arbitrary and unreasonable; (2) there is no rational relationship between a legitimate state interest and the means chosen to protect that interest, and (3) § 202.435 fails the 'strict scrutiny' test of equal protection. On accepted principles appellant's only contention on appeal must be rejected.

(1) On the propriety of the classification: There is no question that '(c) lassification of the subjects of legislation is not prohibited by the equal protection of the laws clauses of the United States and State constitutions 'if all within the same class are included and treated alike,' Brawner v. Brawner, Mo.Sup. en banc, 327 S.W.2d 808, 815(15); Hammett v. Kansas City, 351 Mo. 192, 173 S.W.2d 70, 72(1), and cases cited; 'if all persons in the same class are treated with equality,' King v. Swenson, Mo.Sup. en banc, 423 S.W.2d 699, 705(9). The general purpose of these constitutional provisions is to prevent invidious discrimination. King v. Swenson, supra. Discrimination is arbitrary and unconstitutional if the classification rests upon a ground wholly irrelevant to the achievement of the state's objective, Gen Stores, Inc. v. O'Brien, Mo.Sup. en banc, 374 S.W.2d 109, 117; or which is not based upon differences reasonably related to the purposes of the legislation. Petitt v. Field, Mo.Sup., 341 S.W.2d 106, 109. The selection must be not merely possibly, but must be clearly and actually, arbitrary and unreasonable. Ballentine v. Nester, 350 Mo. 58, 164 S.W.2d 378. The question is whether the principle of classification adopted rests upon some real difference, bearing a reasonable and just relation to the act with respect to which the classification is proposed. State ex inf. McKittrick ex rel. Ham v. Kirby, 349 Mo. 988, 163 S.W.2d 990.' Kansas City v. Webb, 484 S.W.2d 817 (Mo. banc 1972), cert. den., 409 U.S. 851, 93 S.Ct. 62, 34 L.Ed.2d 93.

In an effort to demonstrate that the classification in § 202.435 is arbitrary and unreasonable appellant cites numerous sections of the statutes ² authorizing confinement voluntary or involuntary, of various classes of persons in facilities of the Division of Mental Health or public hospitals; persons claimed by appellant to share the characteristics of mental illness, dangerousness, lack of insight, and procedural status with the two classes named in § 202.435.

Appellant urges that there is nothing unique about the two classes affected by § 202.435; that they are not all insane; not all subject to criminal process, and not uniquely dangerous to themselves or others 'since persons who are committed under sections 202.800, 202.803, or section 475.355 are similarly classified as 'dangerous"; that there is no rational basis for distinguishing between the affected and the unaffected subclasses of all committed persons under the jurisdiction of the Division of Mental Health; in other words, that the classes affected by § 202.435 are 'under-inclusive.' Appellant argues that a number of persons committed to the hospital under these various sections could commit the identical act (leaving the hospital grounds without permission) and those in the two subclasses named in § 202.435 would be subject to prosecution, while others committing the same offense but falling in different subclasses would be exempt from prosecution. In support of the contention that an under-inclusive statute may constitute invidious discrimination appellant cites Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942), and Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).

Section 202.435 does not violate the equal protection of the laws clause on the ground that the classification is arbitrary and unreasonable. Section 202.435 makes amenable to felony prosecution any criminal sexual psychopath committed under §§ 202.700--202.770 and any accused in a criminal proceeding awaiting trial, or defendant in a criminal case who has been acquitted on the ground of mental disease or defect excluding responsibility, etc. committed under §§ 552.010--552.080, who unlawfully removes himself from the legal restraint placed upon him under these sections. It is true that the failure of § 202.435 to mention any of the persons listed in footnote 2 makes it possible for them to remove themselves from the restraint imposed by the Division of Mental Health, without criminal penalty. Thus § 202.435 is under-inclusive--it does not cover the entire field of persons under legal restraint by a facility of the Division of Health. The vitally important fact, however, is that § 202.435 includes all within the two subclasses mentioned. All persons within those two subclasses are treated alike and with equality. The classification rests upon a ground relevant to the state's objective; rests upon a real difference which bears a reasonable and just relation to the act of unlawful removal from legal restraint. All persons 'similarly circumstanced (are) treated alike.' Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971). The justification for treating the two...