State v. Ingram, 61847.

• Decision Date: 12 November 1980
• Docket Number: No. 61847.,61847.
• Citation: 607 S.W.2d 438
• Parties: STATE of Missouri, Respondent, v. Lorn INGRAM, Appellant.
• Court: Missouri Supreme Court

607 S.W.2d 438

STATE of Missouri, Respondent, v. Lorn INGRAM, Appellant.

No. 61847.

Supreme Court of Missouri, Division Two.

November 12, 1980.

Harry Rupert Stafford, Jr., Hartville, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Commissioner.

Lorn Ingram was charged with and found guilty of capital murder, and was sentenced to life imprisonment without possibility of parole for fifty years. He has appealed from the ensuing judgment.

On January 5, 1979, appellant and his friend Tracy Freasier were visited at their home by Joe Walter Trent and Sherry Gimarelli. The four drove to Gassville, Arkansas to pick up Freasier's pay check, and they then drove into Missouri where they made stops in several towns to run various errands, one of which was to obtain a 12 gauge shotgun "out of hock" which belonged to appellant. Considerable beer was purchased and consumed and at one place they ate pizza and played pool. They later drove to Trent's cabin, arriving there shortly after midnight. While there appellant became angry with Tracy for "butting into other people's business" and fired a shotgun near her feet. An argument also occurred between Joe Trent and Sherry Gimarelli, and as a result Sherry received a black eye, her hand was bruised, and she had a "knot on the back of her head." While en route to appellant's residence a verbal dispute between Trent and Sherry intensified and Trent turned the car around. When he did so appellant asked Trent to stop the car and let him and Tracy out, but Trent refused. According to Tracy, appellant then told Trent "to stop the car or he'd blow his brains out or kill him or something to that effect," and according to Sherry, appellant told Tracy "he'd better stop or he was going to use the gun on him." Trent replied, "Okay, you son of a bitch, if you think you can, go ahead" or "go ahead, if you've got the guts" (according to Tracy), or "go ahead, you S-O-B, if you think you can" (according to Sherry). Appellant then picked up a 16 gauge shotgun (not the 12 gauge gun that had been obtained earlier) from "between the seat * * * it was kind of on the floorboard," and shot Trent in the head.

By his first three points appellant asserts that the trial court erred (a) in overruling his motion for a mental examination pursuant to § 552.020 RSMo 1978; (b) "by failing to find reasonable cause to believe appellant had a mental disease or defect;" and (c) "in denying appellant his statutory and constitutional right of entering a plea of not guilty by reason of mental disease or defect."

Appellant was arraigned on February 7, 1979, and at that time he entered a plea of not guilty. The case was set for trial on July 16, 1979. On July 12 appellant filed a "Motion for Mental Examination." A hearing was held on that motion. It was there developed that although appellant had never been in a mental institution, in 1972, seven years earlier, he had spent sixty days in a drug rehabilitation and alcohol center. Appellant testified that "everytime I seem to get in trouble I'm always drinking or on drugs." On cross-examination appellant demonstrated a clear understanding of the proceedings and the charges against him. The sheriff testified that appellant acted normally during the two months he had been confined in the county jail. At the conclusion of the hearing the court found: "there is no reasonable cause to believe that the defendant, Lorn Joe Ingram, has a mental disease or defect excluding fitness to proceed," and he does not lack capacity to understand the proceedings against him, and he can assist, in his own defense.

Section 552.020(2) RSMo 1978, provides in pertinent part as follows:

"Whenever any judge * * * has reasonable cause to believe that the accused has a mental disease or defect excluding fitness to proceed he shall, upon his own motion or upon motion filed by the state or by or on behalf of the accused, by order of record, appoint one or more private physicians to make a psychiatric examination of the accused or shall direct the superintendent of a facility of the department of mental health diseases to have the accused so examined by one or more physicians whom the superintendent shall designate."

Section 552.010 RSMo 1978, defines the term "mental disease or defect," and it is there stated: "The terms `mental disease or defect' do not include alcoholism without psychosis or drug abuse without psychosis."

There was no evidence or indication that appellant was psychotic, and there was no showing that appellant was incompetent; on the contrary it affirmatively appears that he rationally consulted and advised with counsel, and that he was aware of and understood the proceedings against him. Therefore the court did not err in overruling appellant's motion for a psychiatric evaluation pursuant to § 552.020 RSMo 1978. See State v. Fulsom, 557 S.W.2d 671 (Mo.App.1977); State v. Sears, 501 S.W.2d 491 (Mo.App.1973); and State v. Harris, 477 S.W.2d 42 (Mo.1972).

On the day the case was set for trial, July 16, 1979, appellant announced that he was "filing a response to request for disclosure" which had been served on his counsel on June 25, 1979. Appellant's counsel stated orally that in response to question number four, whether appellant intended to rely on the defense of mental disease or defect excluding responsibility, that he did intend to rely on that defense. After extended discussion and after appellant was afforded the opportunity to present evidence, the trial court refused appellant's request to rely on the defense of mental disease or defect excluding responsibility. Appellant now assigns this as error.

Section 552.030(1) RSMo 1978, provides that a person "is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law." But in paragraph (2) of that section it is further provided that "Evidence of mental disease or defect excluding responsibility shall not be admissible at trial * * * unless the defendant at the time of entering his plea to the charge pleads not guilty by reason of mental disease or defect excluding responsibility, or unless within ten days after a plea of not guilty or at such later date as the court may for good cause permit, he files a written notice of his purpose to rely on such defense."

The notice of intention to rely on the defense in this case was not in writing and the notice as given was five months after arraignment. The notice clearly was untimely. State v. Sears, supra. Therefore, the issue presented is whether the trial court abused its "considerable discretion," State v. Holmes, 439 S.W.2d 518, 520 (Mo. App.1969), in holding that appellant failed to show "good cause" for accepting the untimely plea.

The court asked appellant's counsel if he desired to produce "additional testimony," other than that presented in support of the motion pursuant to § 552.020, and he replied, "Your Honor, I will stand on the testimony that I have submitted to the Court," and he later added that "the only new thing that has come to my attention is appellant's past history with drugs and drug-related problems."

As previously noted evidence of alcoholism or drug abuse, absent some additional evidence of psychosis, does not constitute mental disease or defect within the meaning of § 552.010 RSMo 1978. See Boyer v. State, 527 S.W.2d 432, 437 (Mo.App. 1975). As stated in State v. Crowley, 571 S.W.2d 460, 462 (Mo.App.1978), "to establish good cause to permit an untimely notice of the defense of mental disease or defect excluding responsibility where the motion does not support itself, the accused should offer evidence either supporting the merits of the motion or establishing good cause for the late filing of the motion." There was no evidence presented which indicates, or from which an inference could be drawn, that appellant was psychotic, or that he could have been suffering from a mental disease or defect excluding responsibility within the meaning of § 552.010. Therefore, the court properly denied the untimely attempt to interpose the defense. See State v. Sears, supra.

By his fourth point appellant asserts the court erred in admitting into evidence State's Exhibit No. 8, a 16 gauge shotgun "when the State failed to establish the identity of the shotgun or to establish a reliable chain of custody regarding said exhibit."

Appellant's contention is without merit for two reasons. First, a chain of custody was established. We need not detail the evidence. It is sufficient to state that the record shows the custody and control of Exhibit No. 8 from the time the sheriff of Baxter County, Arkansas, took possession of it two days after the homicide until it was identified in court as Exhibit No. 8. Second, chain of custody is an irrelevant issue where the exhibit is positively identified. State v. Foster, 600 S.W.2d 207, 209 (Mo.App.1980); State v. Hanson, 587 S.W.2d 895, 902 (Mo.App.1979); State v. Holman, 556 S.W.2d 499, 504 (Mo.App.1977). In State v. Granberry, 484 S.W.2d 295, 300-301 (Mo.banc 1972), it was stated that "Chain of control, as such, is only a relevant issue where the exhibit itself is not susceptible to positive identification in a singular sense," and in State v. Davis, 572 S.W.2d 243, 247 (Mo.App.1978), that court stated: "`When, as here, an exhibit is susceptible of positive identification and is sufficiently identified to warrant its admission in evidence, the importance that might otherwise attach to its chain of custody fades into obscurity."

When the sheriff of Baxter County, Arkansas, viewed Exhibit No. 8, he testified: "This is the gun that we took" from appellant at the time of his arrest. Mr. August Nilges, Jr., a forensic analyst for the Missouri Highway...