State v. Holmes

• Decision Date: 10 March 1969
• Docket Number: No. 53384,No. 1,53384,1
• Citation: 439 S.W.2d 518
• Parties: STATE of Missouri, Respondent, v. James HOLMES, Appellant
• Court: Missouri Supreme Court

Page 518

439 S.W.2d 518

STATE of Missouri, Respondent, v. James HOLMES, Appellant.

No. 53384.

Supreme Court of Missouri, Division No. 1.

March 10, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

April 14, 1969.

Norman H. Anderson, Atty. Gen., Jefferson City, Dallas W. Cox, Jr., Special Asst. Atty. Gen., St. Louis, for respondent.

Louis Wagner, Kansas City, for appellant.

WELBORN, Commissioner

Appeal from 15-year sentence in jury-waived trial on charge of robbery in the first degree.

The proprietor of, and a clerk at, the Troostwood Pharmacy in Kansas City identified the appellant as one of two men who entered the pharmacy shortly after it opened on August 18, 1965, produced pistols, forced the proprietor to open the safe, and took money and narcotics from the safe. Appellant was arrested two days later and subsequently charged with the offense.

The transcript on this appeal does not show fully the pre-trial proceedings in the circuit court. However, we gather from statements in argument in the trial court that appellant, in September, 1965, pled not guilty to the charge. Some six months later, he changed his plea to guilty, and a pre-sentence investigation was ordered. In September, 1966, after the pre-sentence investigation had been completed, the plea of guilty was withdrawn. For reasons not shown, the case disappeared from the criminal docket for some time. When it was returned to the docket and set for trial, a 'legislative continuance' (§ 510.120 RSMo 1959, V.A.M.S.) was obtained, and the case not appear for trial on July 18. The surety on appellant's bond had died. Appellant's on appellant's bond had died. Appellant's arrest was ordered and approximately ten days later he surrendered.

On August 15, 1967, appellant's counsel filed a motion for mental examination under § 552.020, RSMo Supp.1967, V.A.M.S., and a motion to rely on the defense of mental disability, under § 552.030, RSMo Supp.1967, V.A.M.S. A hearing on the motions was held August 21, 1967. The appellant and his mother testified in support of his motions. No evidence was offered by the state. At the conclusion of the hearing, the trial court overruled the motion for mental examination, under § 552.020, to determine the appellant's capacity to understand the proceedings against him and to assist in his own defense.

On the second motion for permission to rely upon the defense of mental incapacity, the court sustained the motion, and directed the state and defense counsel to arrange for appellant's examination within ten days. The court then ordered the case set for trial at the end of the 10-day period.

On August 22, 1967, the court reconsidered its order sustaining the motion under § 552.030, stated that it had concluded that the conditions for the examination which it had imposed did not comply with the applicable statutes, concluded that there were no reasonable grounds for mental examination to be had at that time, overruled appellant's motion, and ordered the case set for immediate trial.

At the beginning of the trial on August 28, 1967, appellant requested the waiver of a jury trial. The court interrogated appellant, who stated that he wished to waive a jury trial because he would be unable to get an unprejudiced jury because of newspaper publicity. The court consented to the waiver.

At the trial, the defense offered as a witness Dr. Vernon Jobson, a psychiatrist, who had examined appellant, at the request of defendant's counsel, at the Jackson County jail on August 26, 1967. Counsel for the state objected that the defendant had not raised the defense of mental incapacity within the time prescribed by § 552.030, subd. 2. and that the court had previously overruled the defense motion to permit the defense to be raised. The trial court stated that he thought that, despite the statute, he had some discretion in the reception of the evidence, pointed out that no jury was present and said: '* * * I think as a matter of basic equity I want to know as much as I can about this defendant's mental condition.'

The doctor testified concerning his examination of the appellant. His diagnosis was stated as follows:

'* * * passive aggressive personality passive aggressive type with recourse to narcotics, alcohol and drugs, and with resultant brain damage.'

The doctor further stated:

'In my opinion at the time of the act with which he was charged he did not know the nature or quality of that act and did not know that the act was both morally and legally wrong. It seemed as if he was acting under an irresistible impulse at that time.

'I believe that by reason of disease of the mind he was unable to choose the right and refrain from the wrong with respect to the acts charged. At the time of the criminal act he was not capable of forming the intent to commit the act.'

The trial court adopted findings of fact submitted by the state. The findings included the following:

'* * * The Court further finds that at all times material hereto on August 18, 1965 defendant knew and appreciated the nature, quality and wrongfulness of his said conduct and was fully capable of conforming his conduct to the requirements of law. The Court further finds that at all times during the trial of this cause and at the time of this conviction the defendant possessed the capacity to understand the proceedings against him and to assist in his own defense.'

Appellant's motion for new trial was overruled and he appealed.

On this appeal, the first assignment of error is based on the court's overruling of appellant's motions for mental examination under §§ 552.020 and 552.030. § 552.020 is the provision defining competency to stand trial and providing for inquiry into that question. Appellant did file a motion for hearing under that provision and a hearing was held and the motion overruled. Renewal of the motion on the day of trial was also overruled.

We have carefully examined the motion for new trial filed on behalf of appellant. We find in it no reference to error on the part of the trial court on its ruling on appellant's motion under § 552.020. All assignments of error in the motion for new trial based upon the court's rulings on the issue of appellant's mental competency relate...