State v. Gullett, No. 11720.

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: MAUS
• Citation: 606 S.W.2d 796
• Docket Number: No. 11720.
• Decision Date: 16 October 1980
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael Joe GULLETT, Defendant-Appellant.

606 S.W.2d 796

STATE of Missouri, Plaintiff-Respondent,
v.
Michael Joe GULLETT, Defendant-Appellant.

No. 11720.

Missouri Court of Appeals, Southern District, Division Two.

October 16, 1980.

606 S.W.2d 797

Douglas B. Kays, Springfield, for defendant-appellant.

John Ashcroft, Atty. Gen., Edward F. Downey, Asst. Atty. Gen., Trina Pohle, (appearing under Supreme Court Rule 13), Jefferson City, for plaintiff-respondent.

MAUS, Judge.

The defendant was charged and convicted of second-degree murder and sentenced to 30 years' imprisonment. His appeal presents for consideration the defense of voluntary intoxication as applicable to that charge and conviction. Section 562.076, RSMo 1978, V.A.M.S., of The Criminal Code

606 S.W.2d 798

in part provides: A person who is in an intoxicated condition is criminally responsible for his conduct "unless such condition (1) Negatives the existence of the mental states of purpose or knowledge when such mental states are elements of the offense charged or of an included offense." As the defendant questions the sufficiency of the evidence to sustain his conviction, a summary of that evidence is required

The 23-year old defendant, with his wife and child, lived in a house owned by his parents. However, when his wife and child left about six weeks before the homicide, the defendant started living in a shed located to the rear of the house. The shed was equipped as living quarters. For some time before the homicide the defendant "had a problem of hacking paint". On June 16, 1979, the victim, Ted Lahman, was visiting the defendant. During the day they drank some Ever Clear 190 proof grain alcohol and hacked some paint. As a neighbor described it, they "horsed around in the yard". The defendant wore a green helmet and carried a vacuum cleaner metal extension tube as if it were a gun and the two played soldier marching "hup, two, three, four" around the house. About 3:30 p. m. the two, the defendant riding a bicycle and Ted walking, left. They returned about 5:00 p. m. with Ted's father and went into the shed where they drank some more. The older man left and the defendant and Ted continued their horseplay in the yard with the defendant demonstrating to Ted defensive tactics with the vacuum cleaner tube. The defendant wouldn't let Ted play with the tube and referred to it as his "protector". Late in the afternoon the two disappeared into the shed.

About 9:30 p. m. Ted went to the home of the neighbor and asked her to talk to the defendant as the defendant was "whirling out". The neighbor declined and advised Ted to leave the defendant. There was evidence the two argued and about 10:30 p. m. Ted was back to use the neighbor's phone because the defendant had gone "berserk" and Ted wanted to get some help for him. The request to use the phone was refused and again Ted was advised to leave. He didn't but returned to the shed. In a short period of time the neighbor heard three distinct thuds, "weird noises", "hollow sounds" that came from the direction of the shed. The neighbor next heard the defendant pounding on a car parked on or near the property of the defendant's parents. The car belonged to a guest of the neighbor's son. The defendant was then seen throwing things from the car. The neighbor called the police reporting the disturbance. The neighbor's husband, son and son's friend went to the car. Apparently a brief altercation ensued but abruptly ended when the friend threw the defendant over the trunk of the car. The defendant continued to protest the car being parked on his property and was doing so when the police officers arrived within a few minutes after they were called. During the discussion about the disturbance, the neighbor advised the officers they should check on Ted who had been seen in the shed. The defendant responded that Ted had left, he was gone. Nevertheless, an officer went to the shed where he found Ted's body. Ted had been brutally beaten to death with a ¾-inch iron pipe.

Concerning the defendant's mental condition, the neighbor related that for several days she had been concerned about the defendant's behavior. The defendant had been acting strangely: he threw rocks at her house and the police were called; he came to her house for plastic sacks and bags; he marched up and down the street and yard with his "protector" playing soldier; he barked at her dog and bit, "clamped on", the corner of his house; and he tried to pick a fight with her son. In referring to the defendant's condition on the night in question, she said: He was not completely out of his mind but did not really know what was going on around him; he wasn't sane; and that on June 16, he was no more intoxicated than usual, than what she had seen him during the week.

The defendant testified he had been high most of the week preceding the homicide. Concerning his hacking paint, he said "that was my own doing ... as I enjoyed it". He

606 S.W.2d 799

related that being high on paint was different than being intoxicated on liquor. He heard weird things, he had seen the devil and at first thought that was funny, but later became scared; he had had no sleep for three or four nights because he was scared someone would get him. He testified that he remembered the helmet, but did not remember acting like a soldier; he did not remember barking at the dog or biting the house. Concerning the homicide, he remembered he and Ted argued and Ted left but came back. After hearing the evidence, he did say he killed Ted and believed he hit him with the pipe. He did not specifically remember killing Ted, he had no motive to kill him and did not intend to kill him. When asked if he remembered hitting Ted he replied "no, I can't say that I do". He did remember standing in the room and realizing Ted was "hurt pretty bad". After sitting down for 10 or 15 minutes to figure out what happened, he went toward the neighbor's house, but saw the car and went over and started beating on it with his fists. He did remember a formal statement that he gave the next morning and the fact that he was not intoxicated at that time

A clinical psychologist examined the defendant on July 12, 1979. He testified that hacking paint can cause rage. As a result of the examination, he found the defendant had an extremely mild disfunction of the brain in connection with the formation of entireties, which disfunction could have been caused from hacking paint. He was also of the opinion the defendant "faked" the personality portion of his test in an attempt to put himself in a bad light. The psychologist found no indication of mental illness.

An officer who arrived at the scene within minutes after the call testified that the defendant was shouting about the car and kept interrupting the officer's conversation with the neighbor. He observed the defendant was intoxicated, he swayed as he stood, his eyes were bloodshot and he spoke excitedly. However, he said the defendant was coherent and was readily understood. Without objection, the officer testified the defendant understood what was going on around him. The defendant did not respond to his question concerning the source of the blood on the defendant's socks. After the body was discovered, and the defendant was arrested, the defendant no longer argued about the car. The other officers who saw the defendant at that time or shortly thereafter described the defendant as "extremely high", "slightly high" and "intoxicated". They all testified the defendant was coherent, responsible, understandable and knew what was going on around him.

The defendant's basic point is that his conviction must be reversed because the state did not prove beyond a reasonable doubt that he was not so intoxicated he could not form a specific intent to kill. His argument is based upon § 562.076 of The Criminal Code, effective January 1, 1979, dealing with the defense of an intoxicated or drugged condition.¹ This section has not yet been construed by an appellate court of this state. However, it is apparent our courts will be confronted with this statute in an increasing number of cases. Therefore, even though it is not essential to the disposition of this issue, it is appropriate for this court to consider in depth the construction of this section.

Before the effectiveness of The Criminal Code in Missouri, voluntary intoxication was "not a defense to a criminal charge and that the rule does not even allow a jury to consider such intoxication on the issue of specific intent." State v. Richardson, 495 S.W.2d 435, 440 (Mo. banc 1973). That was the rule of the early common law. State v.

606 S.W.2d 800

Stasio, 78 N.J. 467, 396 A.2d 1129 (1979). However, in the majority of jurisdictions exceptions to that rule developed. This development was probably triggered because of the severity of punishment for certain offenses. This is demonstrated by the fact the death penalty was frequently imposed for premeditated, deliberated murder and the early exceptions were based upon the proposition voluntary intoxication could prevent a defendant from forming that intent. State v. Stasio, supra. As a more lenient attitude toward crime and punishment emerged and less emphasis was placed upon individual responsibility, the availability of voluntary intoxication as a defense was expanded by decision and by statute. This expansion was based upon the asserted inability of an intoxicated defendant to form a required intent which was an element of a crime. Apparently to justify making such a defense available to those who committed otherwise criminal acts, often acts of atrocity, decisions were frequently premised upon statements disclaiming voluntary intoxication as a defense or mitigating factor. "To follow this approach would be tantamount to accepting intoxication as a mitigating factor. This, however, is far different from attempting to ascertain the presence of a state of mind required by the crime." Commonwealth v. Graves, 461 Pa....