State v. Gill, WD

• Decision Date: 05 February 1991
• Docket Number: No. WD,WD
• Citation: 806 S.W.2d 48
• Parties: STATE of Missouri, Respondent, v. Michael Wayne GILL, Appellant. 43257.
• Court: Missouri Court of Appeals

Page 48

806 S.W.2d 48

STATE of Missouri, Respondent, v. Michael Wayne GILL, Appellant.

No. WD 43257.

Missouri Court of Appeals,

Western District.

Feb. 5, 1991.

Motion for Rehearing and/or Transfer to Supreme Court

Denied April 2, 1991.

Raymond L. Legg, Columbia, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty., Jefferson City, for respondent.

Before GAITAN, P.J., and TURNAGE and KENNEDY, JJ.

GAITAN, Presiding Judge.

Appellant, Michael Wayne Gill, appeals his conviction for sexual abuse in the first degree, Mo.Rev.Stat. § 566.100 (1986), for which he received a four year sentence. He alleges the trial court erred by: (1) refusing to give an instruction on diminished mental capacity; (2) permitting evidence of a statement made by appellant in violation of his Miranda rights; and (3) admitting hearsay evidence. We affirm.

Appellant's sister, Bobby Gill, babysat J.H., who was four years old on August 29, 1988. When J.H.'s mother, Robin, picked J.H. up on the night of August 30, she discovered a problem with J.H. and took her to the police station and then to the hospital.

The police went to appellant's residence stating that they wanted to talk to him about J.H. at 9:00 a.m. on August 31. Appellant was taken to the conference room library at the police station and given his Miranda warning. Jefferson City Police Officer Kathy Carew, who had known appellant and his family, was aware of appellant's limited intellectual abilities and took extra precautions to make sure that he understood his Miranda rights. Appellant signed a waiver of rights form.

At some point, Police Officer Terry Benson came into the room while Carew was interrogating appellant. When appellant stated that maybe he needed to talk to someone, Benson picked up the rights form, showed the form to appellant and told him that it was his right to talk to someone including an attorney. Benson then went over each right again using the form. Benson was also aware that appellant had limited intellectual abilities and Benson also took extra precautions in dealing with appellant to make sure that he understood all of his rights.

Appellant initially admitted that he had seen J.H. while his sister was babysitting her, but denied touching her improperly. Upon re-examination by Officer Carew, appellant changed his story. Appellant stated that he had gone downstairs to where J.H. was sleeping in a lower bedroom of the residence. He stated that he removed her shirt and pants, and that he had inserted his middle finger into her front and back private areas. When asked if he was sexually aroused when playing with J.H., appellant stated that he had had a partial erection. However, appellant stated that he did not take his penis out of his pants. According to appellant, his sister and mother were upstairs while he engaged in this conduct with the victim.

Carew spoke to J.H. out of her mother's presence at approximately 1:15 p.m. on August 31. J.H. told Officer Carew that appellant removed her shirt and pants. J.H. then said that appellant touched her in her private parts. Specifically, J.H. said that appellant had touched her where she went "poop" and that it had hurt. When asked what appellant had said to her, J.H. responded that Mike told her not to tell anyone and to quit crying.

Appellant did not testify but offered the testimony of William Robert Holcomb, the superintendent at Fulton State Hospital, as well as a Ph.D. in clinical psychology, and psychiatrist Charlotte Balcer, who had examined appellant to determine whether or not he had a mental disease or defect. Holcomb testified that while appellant did not suffer from a mental disease or defect, appellant's intellectual functioning was below average. While Holcomb testified that appellant had "diminished capacity", Holcomb testified that "this diminished capacity" which he diagnosed was not a mental disease or defect as defined by law. Balcer also testified that appellant did not suffer from a mental disease or defect but testified that appellant had "diminished capacity" because he had a difficult time controlling his impulses since he had been abused as a child and had improper role models.

I.

The term "mental disease or defect" is defined in Mo.Rev.Stat. § 552.010 (1986). Under the doctrine of diminished mental capacity, the defendant remains fully responsible for his conduct but can be found guilty of only those offenses, if any, of which he is mentally capable. State v. Shaw, 636 S.W.2d 667, 673 (Mo. banc), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188 (1982) (citing State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974)); State v. Foerstel, 674 S.W.2d 583, 592 (Mo.App.1984). Diminished mental capacity is a special negative defense. Shaw, 636 S.W.2d at 673.

Missouri cases make it clear that a claim of diminished capacity must rest upon substantial evidence of a mental disease or defect as defined in Mo.Rev.Stat. § 552.010 (1986). See State v. Fisher, 773 S.W.2d 178, 181 (Mo.App.1989); 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). Further, the Notes on Use accompanying the diminished capacity instruction submitted by the appellant state that the instruction should only be given "if supported by evidence of mental disease or defect relevant to the existence of a required culpable mental state." MAI-Cr3d 308.03 (1987).

Both experts in this case testified that appellant did not suffer a mental disease or defect. Instead, both experts testified that appellant's IQ of 80 indicated that appellant's intellectual functioning was below average. Both experts testified that because appellant was sexually abused as a child, appellant was unable to socially judge what normally would be considered right or wrong. According to both experts, while appellant could understand the difference between right and wrong, he had not observed role models behaving correctly and, therefore, appellant's judgment was lessened. According to Dr. Balcer, while appellant might know that behavior is wrong, it would be hard for him to believe that it was wrong because he had been a victim. While Dr. Holcomb testified that appellant suffered from diminished capacity, he admitted that the diminished capacity he diagnosed did not result from a mental disease or defect as defined by law. Balcer concurred with Holcomb on this subject.

The evidence presented at trial fell short of being substantial evidence of a mental disease or defect validating submission of an instruction concerning diminished capacity. See State v. Shaw, 636 S.W.2d at 673. Therefore, the trial court did not err in refusing to submit the tendered instruction placing the issue of diminished capacity before the jury.

Relying on State v. Kinnard, 671 S.W.2d 336 (Mo.App.1984), appellant attempts to argue that the experts' testimony that appellant did not suffer from a mental disease or defect did not foreclose the issue of diminished capacity. In other words, that it is proper to instruct the jury on diminished capacity even if there is no substantial evidence of mental disease or defect. This argument is counter to both Fisher and Weatherspoon, the Notes on Use following the tendered instruction, and the language of Kinnard.

In Kinnard, while the defendant's psychiatrist testified that the defendant was without mental disease or defect, the same witness raised questions as to whether the defendant possessed the state of mind for capital murder or murder in the second degree. Id. at 338. "Such evidence raised the issue of whether the defendant had a mental disease or defect...." Id. Thus, the court in Kinnard did not, as appellant contends, remove the requirement of substantial evidence of a mental disease or defect to support a claim of diminished capacity. Indeed, the court looked for, and found, such evidence in the expert's testimony. Further, Kinnard is factually distinguishable from this case. There is no showing of a lack of emotional stability or any impairment of appellant's reasoning ability. Id. He knew his conduct was not right. That is why he tried to hide it. Accordingly, contrary to appellant's argument, Kinnard is not persuasive authority in this case.

In this case, there was no substantial evidence that appellant suffered from a mental disease or defect, as defined in Mo.Rev.Stat. § 552.010 (1986), "negating a culpable mental state." Notes on Use, MAI-Cr3d 308.03 (1987). Accordingly, the court properly denied appellant's proffered instruction A.

II.

Appellant next asserts that the trial court erred in admitting evidence of his statements to members of the Jefferson City Police Department because appellant states that he made an equivocal request for counsel by saying "maybe I should talk to someone." Initially, it should be noted that appellant's claim is not preserved for appellate review because appellant failed to object to the admission of the statements when the evidence was introduced at trial. State v. Rayford, 611 S.W.2d 377, 378 (Mo.App.1981). However, we shall examine this issue ex gratia.

The state bears the burden of proving the voluntariness of a confession by a preponderance of the evidence. State v. Lytle, 715 S.W.2d 910, 915 (Mo. banc 1986). On appeal, this Court must determine whether the evidence was sufficient to sustain the trial court's finding that the statement was voluntarily given. Id. Conflicts in the evidence are for the trial court to resolve and this Court must defer to the trial court's ability to determine credibility. Id.

The Fifth Amendment prohibition against compelled self-incrimination provides an accused with the right to have counsel present during custodial interrogations. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). ¹ An accused person in custody who has expressed his desire to deal with the police only through counsel is not subject to further...