State v. Guinan, 36948
| Decision Date | 22 June 1976 |
| Docket Number | No. 36948,36948 |
| Citation | 538 S.W.2d 899 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Frank Joseph GUINAN, Defendant-Appellant. . Louis District, Division Three |
| Court | Missouri Court of Appeals |
Crouppen, Walther & Zwibelman, Gael T. Infande, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., William M. Frain, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Frank J. Guinan was convicted in the St. Louis Circuit Court by a jury of Robbery in the First Degree by Means of a Dangerous and Deadly Weapon, § 560.120 RSMo. 1969. He was also found by the trial court to be a Second Offender within the terms of § 556.280 RSMo. 1969, and sentenced to the custody of the Missouri Department of Corrections for a term of forty years. He appealed that conviction to this court and the conviction was affirmed. State v. Guinan, Mo.App., 506 S.W.2d 490. On May 22, 1974, he filed a Motion to Vacate Judgment and Sentence in the Circuit Court for the City of St. Louis, Rule 27.26, attacking the judgment aforesaid on the grounds that he was denied effective assistance of counsel and that the trial court erred when it sustained his motion to withdraw a previously granted motion for psychiatric examination filed by his court-appointed Public Defender. Simultaneously, movant also filed a motion and affidavit to proceed as a pauper. This latter motion was sustained and counsel was appointed to represent the movant in this proceeding.
On January 24, 1975, an evidentiary hearing was conducted with reference to movant's Motion to Vacate Judgment and Sentence, and thereafter the trial court entered its judgment, including Findings of Fact and Conclusions of Law overruling movant's Motion to Vacate Judgment and Sentence. This appeal followed.
Appellant presents one point in this court, i.e. 1
At the evidentiary hearing--conducted by a judge other than the judge who presided over the trial, because movant-appellant had filed a motion to disqualify said trial judge, only one witness, appellant, was produced in support of the Motion and his testimony was directed at the failure of his court-appointed trial counsel to locate three witnesses he had told the counsel would have furnished him with an alibi for the night of the commission of the robbery. 2
The State produced the court-appointed trial counsel who testified that while he had located two of the three witnesses neither would have supported appellant's alibi because they denied being with appellant on the night of the robbery. He was unable to locate the third witness despite efforts he made to find him.
At the conclusion of counsel's testimony the trial court referred to the court record in Cause No. 72--724--the charge on which appellant was convicted and the judgment he seeks to have vacated in this proceeding. The transcript before us, taken together with statements made by the counsel-witness in response to questions directed to him by the trial court reveal that there was no motion for a psychiatric examination to be found in the court file. In an effort to clarify this question, the witness testified that so far as he could recall he had filed one motion for all three cases then pending against the appellant. The court record contained an order of May 25, 1972, continuing the cause at appellant's request and committing him to Malcolm Bliss Mental Health Center for mental evaluation. On July 14, 1972, a record entry by another Circuit Judge changed the place of commitment from Malcolm Bliss Mental Health Center to Fulton State Hospital for mental examination and evaluation. On July 17, 1972, appellant filed, pro se, his Motion to Withdraw Petition for Psychiatric Examination wherein he alleged: that he was informed by his court-appointed counsel that a motion for psychiatric examination was filed pursuant to § 552.010 and that such plea was to be his defense; that upon being informed of this fact, he requested that all such proceedings interposing this defense be stopped or delayed; that he was never informed by counsel that his request had been carried out; that on July 14, 1972, he was called before the court for a hearing on the motion for appointment of a psychiatrist and, because he was misled or was unaware of the proceeding, he sat mute and raised no objections to the proceedings. He further alleged that he was told by his counsel to say nothing and that the court would set the motion aside; that, however, upon leaving the courtroom he was informed that the court had granted the order and a psychiatric examination would be conducted. He further alleged that he suffered from no mental disease or defect; that he did not request a defense under § 552.010 RSMo. 1969; that he has never in the past or present had any type of mental disease or defect to make a valid defense under the mental illness statute; that he did not at any time request a test under the statute; that he does not have any history of alcoholism or drug abuse, no mental abnormalities or any psychosis; that he does not and will not use the statute as a defense for the crimes charged; and that he was duped into a defense on that ground on the 'poor judgment of appointed counsel.' He requested the court to withdraw the order granting the motion and to set aside any proceedings under the statute. He also alleged that he would refuse to be removed by such court order...
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State v. Lee, 13092
...establish a bona fide doubt of the defendant's competency to stand trial. Mikel v. State, 550 S.W.2d 863 (Mo.App.1977); State v. Guinan, 538 S.W.2d 899 (Mo.App.1976). Nor does that fact require a court to sua sponte hold a hearing to determine such competency. Davis v. State, 517 S.W.2d 97 ......