State v. Fanning

• Decision Date: 25 February 1997
• Docket Number: Nos. WD,s. WD
• Parties: STATE of Missouri, Respondent, v. John FANNING, Sr., Appellant. 50526, WD 51978.
• Court: Missouri Court of Appeals

Page 941

939 S.W.2d 941

STATE of Missouri, Respondent, v. John FANNING, Sr., Appellant.

Nos. WD 50526, WD 51978.

Missouri Court of Appeals,

Western District.

Feb. 25, 1997.

Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Breck K. Burgess, Assistant Attorney General, Jefferson City, for respondent.

Before SPINDEN, P.J., and ULRICH, C.J., P.J., and SMART, J ULRICH, Chief Judge, Presiding Judge.

John Fanning appeals his convictions for murder in the second degree, section 565.021, RSMo 1994, and armed criminal action, section 571.015, RSMo 1994. He was convicted a second time after his prior convictions for the same charges were reversed and the case was remanded for a new trial. State v. Fanning, 874 S.W.2d 401 (Mo.App. W.D.1994). He asserts that section 562.076 violated his constitutional due process rights under the United States Constitution and Article 1, sections 10 and 18(a) of the constitution of the state of Missouri by precluding his submission of evidence that he could not discern the consequences of his conduct because of his state of intoxication and his mental deficiencies at the time the victim was stabbed to death. He claims the trial court erred in using MAI-CR3rd 310.50 to instruct the jury because the instruction informed the jury that intoxication from alcohol does not relieve a defendant of responsibility for his conduct, and the instruction creates a presumption that he had the requisite mental state required by the charged offenses thereby violating his state and federal constitutional rights to due process. He also appeals the denial of his Rule 29.15 post-conviction motion without an evidentiary hearing claiming that his trial counsel breached the standard required when he failed to call Mr. Fanning as a witness at his trial and failed to compel the attendance and testimony of other witnesses. He also claims the motion court erred when it did not enter findings of fact and conclusions of law as mandated by Rule 29.15(i).

The judgment of convictions is affirmed, and the order denying the post-conviction motion is affirmed in part and reversed and remanded in part.

Relevant Facts

John Fanning was convicted of murder in the second degree and armed criminal action. The charges resulted after Mr. Fanning fatally stabbed the victim during a fight. Mr. Fanning has an IQ of seventy-five and claimed that he was intoxicated when he stabbed the victim. Mr. Fanning asserted that he was incapable, due to his IQ and his state of intoxication, of knowing that his conduct was practically certain to cause the death of the victim. The trial court instructed the jury that "an intoxicated condition from alcohol will not relieve a person of responsibility for his conduct." § 562.076, RSMo 1994; MAI-CR 3rd 310.50. Mr. Fanning was convicted of both counts of the information and sentenced to two concurrent life terms. These convictions, however, were reversed on appeal because the instruction, without more, created the likelihood that the jury would believe the defendant was guilty because he was intoxicated, whatever his state of mind. Fanning, 874 S.W.2d at 401-02 (citing State v. Erwin, 848 S.W.2d 476, 482 (Mo. banc 1993), cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993)).

Mr. Fanning was retried, and the jury was again instructed using a MAI-CR 310.50 as amended. The instruction was altered and approved after Mr. Fanning's first trial. Mr. Fanning was again convicted of murder in the second degree and armed criminal action and sentenced to concurrent terms of life imprisonment. He appeals this second conviction and the denial of his Rule 29.15 motion without a hearing.

Jury Instruction Regarding Intoxication, MAI-CR3d 310.50

¹

Mr. Fanning's first point attacks MAI-CR3d 310.50, submitted to the jury as Instruction No. 12. He contends that the instruction created the impression that he had the requisite mental state and relieved the prosecution of proving beyond a reasonable doubt that he had the necessary mental state when the victim was stabbed. The instruction stated:

The state must prove every element of the crime beyond a reasonable doubt. However, in determining the defendant's guilt or innocence, you are instructed that an intoxicated condition from alcohol will not relieve a person of responsibility for his conduct.

Mr. Fanning admits that Instruction No. 12 followed the format of approved criminal instructions as mandated by MAI-CR. The essence of Mr. Fanning's claim is that the instruction failed to remedy the constitutional flaw identified in the earlier approved instruction pertaining to voluntary intoxication. In State v. Erwin, 848 S.W.2d 476 (Mo. banc 1993), cert. denied, 510 U.S. 826, 114 S.Ct. 88, 126 L.Ed.2d 56 (1993), the Missouri Supreme Court found that the then existing version of the voluntary intoxication instruction implicitly relieved the state of its burden of proving intent beyond a reasonable doubt and was, therefore, unconstitutional. Id. at 483. The present MAI-CR3d 310.50 became effective on October 1, 1994, after the Supreme Court decision of Erwin. The instruction remedied the flaw identified in the earlier version. Unlike the earlier version which appeared to "stand by itself," the present version reminds the jury that the state's burden to prove every element of the charged crime beyond a reasonable doubt is not abated.

The Court of Appeals lacks authority to declare an instruction erroneous if the instruction complies with pattern instructions approved by the Missouri Supreme Court. State v. Bell, 906 S.W.2d 737, 739 (Mo.App. E.D.1995). Instruction No. 12 comported with MAI-CR3d 310.50. Point one is denied.

Exclusion of Testimony Regarding the Effect of Intoxication

on Mr. Fanning

Mr. Fanning claims the trial court erred in precluding the testimony of his proffered expert that his level of intoxication, in combination with his claimed brain damage, would have impaired his ability to appreciate the nature, quality, and wrongfulness of his conduct. Mr. Fanning pleaded not guilty by reason of mental disease or defect. ²

Mr. Fanning sought to present evidence through expert testimony that any consumption of alcohol, in combination with his claimed degree of brain damage, would have impaired his ability to appreciate the nature, quality, and wrongfulness of his conduct. The trial court excluded evidence of Mr. Fanning's intoxication as it related to his mental state. The court's stated reason for exclusion was section 562.076, RSMo 1994, as interpreted by State v. Erwin. Mr. Fanning concedes that section 562.076, RSMo 1994, mandates giving MAI-CR 3d 310.50. Section 562.076 states:

1. A person who is in an intoxicated or drugged condition, whether from alcohol, drugs or other substance, is criminally responsible for conduct unless such condition is involuntarily produced and deprived him of the capacity to know or appreciate the nature, quality or wrongfulness of his conduct.

2. The defendant shall have the burden of injecting the issue of intoxicated or drugged condition.

3. Evidence that a person was in a voluntarily intoxicated or drugged condition may be admissible when otherwise relevant on issues of conduct but in no event shall it be admissible for the purpose of negating a mental state which is an element of the offense. In a trial by jury, the jury shall be so instructed when evidence that a person was in a voluntarily intoxicated or drugged condition has been received into evidence.

The effect of the exclusion of the proffered evidence, claims Mr. Fanning, relieved the state of its burden to prove all the elements beyond a reasonable doubt and also denied him, in violation of federal and state constitutionally mandated due process, the ability to present to the jury all relevant evidence to rebut the state's evidence on the mens rea element of the offenses.

The U.S. Supreme Court in Montana v. Egelhoff, --- U.S. ----, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996), recently addressed this issue. The Court upheld as constitutional a similar Montana statute that excludes evidence relating to intoxication where the intoxication was voluntary. ³ The Court held that it is the "respondent who must show that the principle of procedure violated by the rule (and allegedly required by due process) is 'so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " Egelhoff, --- U.S. at ----, 116 S.Ct. at 2019 [citations omitted]. Justice Scalia, writing for the majority stated:

The people of Montana have decided to resurrect the rule of an earlier era, disallowing consideration of voluntary intoxication when a defendant's state of mind is at issue. Nothing in the Due Process Clause prevents them from doing so.

Id. at ----, 116 S.Ct. at 2024.

Missouri has a long history of rejecting voluntarily induced intoxication as negation of the required mental state constituting an element of the charged offense. ⁴ Defining the parameters of the mental state that comprises the mens rea element of crimes is within the providence of the General Assembly. Missouri's courts have traditionally "decline[d] to consider overturning a rule which goes back to 1855 and the case of State v. Harlow, 21 Mo. 446, and which has been reaffirmed many times since." State v. Richardson, 495 S.W.2d 435, 440 (Mo.1973). ⁵ As Justice Scalia noted in Egelhoff, the Missouri Supreme Court stated in 1858 that:

To look for deliberation and forethought in a man maddened by intoxication is vain, for drunkenness has deprived him of the deliberating faculties to a greater or less extent; and if this deprivation is to relieve him of all responsibility or to diminish it, the great majority of crimes committed will go unpunished. This however is not the doctrine of the common law; and to its maxims, based as they obviously are upon true wisdom and sound policy, we must adhere. ⁶

The State of Missouri...