State v. Grant
| Decision Date | 27 December 1977 |
| Docket Number | No. 38165,38165 |
| Citation | 560 S.W.2d 384 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Oscar James GRANT, Defendant-Appellant. . Louis District, Special Division |
| Court | Missouri Court of Appeals |
Robert C. Babione, Public Defender, Sara T. Harmon, Asst. Public Defender, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Walter O. Theiss, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.
Defendant-appellant, Oscar James Grant, appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis on May 21, 1976. The jury found Grant guilty of murder in the second degree, § 559.020, RSMo.1969, and assessed his punishment at ten years. The court imposed a sentence of ten years imprisonment in the Department of Corrections.
This appeal involves alleged errors in the trial court's application of § 552.020, RSMo.1969. Section 552.020 provides procedure and guidelines to be followed in determining whether an accused lacks capacity to understand the proceedings against him or to assist in his own defense as a result of a mental disease or defect. Specifically at issue on this appeal are (1) the right of an accused to a second psychiatric examination at state expense and (2) the circumstances under which a court must order a hearing on an accused's competency to stand trial.
The evidence at the trial clearly established that appellant and his cousin, Sanders Johnson, Jr., the deceased, spent most of May 23, 1975 drinking with friends. Appellant and the deceased got into an argument. The deceased struck appellant and pulled a knife on him. Appellant wrested the knife from the deceased and started chasing him. Appellant chased deceased into a store and deceased jumped at him. In the struggle that followed the deceased was fatally slashed and stabbed.
Appellant's counsel filed a pretrial motion for a psychiatric examination of appellant. The motion stated that on May 23, 1975, and continuing thereafter, appellant had a mental disease or defect within the meaning of § 552.010, RSMo.1969. The trial court granted the motion and the psychiatric examination was performed at Fulton State Hospital in Fulton, Missouri. The confidential medical report resulting from the psychiatric examination showed that appellant was not suffering from a mental disease or defect within the meaning of § 552.010, RSMo.1969 and had the capacity to understand the proceedings and to assist in his own defense. This report was filed with the Circuit Court on September 9, 1975.
On September 10, 1975, after receiving a copy of the psychiatric report, appellant's counsel filed "Objections To Findings of Psychiatrist" which stated:
The trial court, on October 16, 1975, found that the findings of the psychiatric report were not contested by the State, nor the accused, nor his counsel. Thereupon the court found that the defendant had mental fitness to proceed based upon said psychiatric report. The cause was ordered removed from the mental examination docket and set for trial.
Appellant's first contention is that the trial court erred in refusing to grant him a second psychiatric examination because § 552.020, subsection 4, RSMo.1969, requires the court to order that a defendant be examined by a second court appointed psychiatrist, upon timely written request, even though he is without funds to pay for the examination.
The pertinent portion of subsection 4, § 552.020 provides that:
"Within five days after the filing of the (initial psychiatric) report, both the accused and the state shall, upon written request, be entitled to an order granting them an examination of the accused by a physician of their own choosing and at their own expense."
The court did not violate the provisions of subsection 4, § 552.020 in denying appellant's motion that the court appoint a second psychiatrist to examine appellant at no expense to him. Subsection 4 makes no mention of, nor does it provide for, the appointment of a psychiatrist by the court as does subsection 2, § 552.020. Subsection 4 explicitly provides that the second examination is to be made by a physician, chosen and paid by the party making the request. That a defendant cannot obtain a second examination without cost to him has been definitely settled in this state. State v. Mullen, 532 S.W.2d 794, 799 (Mo.App.1975). The record does not indicate that a motion for an order granting appellant a second examination by a physician of appellant's own choosing and at appellant's own expense was ever presented to the trial court. Appellant does not cite any authority for construing subsection 4 as he urges. The only authority he does cite, Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975) is not in point to appellant's contention of error.
Appellant's second contention is that even if the trial court acted properly under the statute in denying a second psychiatric examination, there was error because the statute is unconstitutional under the Fourteenth Amendment to the United States Constitution and Article I, Sections Two and Ten of the Missouri Constitution. Appellant contends that § 552.020, subsection 4, creates an invidious classification based upon wealth that denies an indigent defendant an equal opportunity to a second psychiatric examination to effectively contest the findings of the first psychiatric examination.
The Supreme Court of the United States has ruled that the equal protection clause does not require absolute equality or precisely equal advantages, nor does it require the State to equalize economic conditions. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974). See also, San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16, reh. den., 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418 (1973).
Section 552.020 has withstood similar constitutional challenges as ruled by the Missouri courts. The appellant in State v. Terry, 472 S.W.2d 426 (Mo. banc 1971) claimed that § 552.020, subsection 4, denied him equal protection under the law because he, as an indigent person, could not have an examination by his own private physician whereas defendants with money could have the benefit of the testimony of a private physician. The court, citing the case of State ex rel. Hoover v. Bloom, 461 S.W.2d 841 (Mo. banc 1971), ruled on this constitutional issue as follows:
Accord, State v. Sturdivan, 497 S.W.2d 139, 144 (Mo.1973); State v....
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Johnson v. State
...U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1952); U.S. v. Pennsylvania, 452 F.2d 557 (3rd Cir.1971); Aldisert, C.J., p. 563; State v. Grant, 560 S.W.2d 384 (Mo.App.1977); Graham v. State, 547 S.W.2d 531 (Tenn.1977); and State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 "As aptly stated in Oregon ......
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Johnson v. State
...U.S. 561, 73 S.Ct. 391, 97 L.Ed. 549 (1952); U.S. v. Pennsylvania, 452 F.2d 557 (3rd Cir.1971); Aldisert, C.J., p. 563; State v. Grant, 560 S.W.2d 384 (Mo.App.1977); Graham v. State, 547 S.W.2d 531 (Tenn.1977); and State v. Montgomery, 291 N.C. 91, 229 S.E.2d 572 As aptly stated in Oregon v......
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...v. Medeiros, 354 Mass. 193, 236 N.E.2d 642, 646, cert. denied, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699 (1969); State v. Grant, 560 S.W.2d 384 (Mo.App.1977); State v. Osborne, 119 N.H. 427, 402 A.2d 493, 496-97 (1979); State v. Patterson, 288 N.C. 553, 220 S.E.2d 600, 612-13 (1975); Stat......
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...not entitled to a second psychiatric examination at state expense. State v. Williams, 603 S.W.2d 562, 565 (Mo.1980); State v. Grant, 560 S.W.2d 384, 386 (Mo.App.1977). Appellant cites Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), a case that is inapposite because it de......