State v. Kee

• Citation: 510 S.W.2d 477
• Decision Date: 13 May 1974
• Docket Number: No. 58317,58317
• Parties: STATE of Missouri, Respondent, v. Joseph Senion KEE, Appellant.
• Court: United States State Supreme Court of Missouri

Page 477

510 S.W.2d 477

STATE of Missouri, Respondent, v. Joseph Senion KEE, Appellant.

No. 58317.

Supreme Court of Missouri, En Banc.

May 13, 1974.

Rehearing Denied June 10, 1974.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Richard Boardman, St. Louis, for appellant Legal Aid Society of St. Louis.

BARDGETT, Judge.

The question to be decided is whether section 552.040, RSMo 1969, ¹ which requires commitment to the director of the division of mental diseases of a defendant who is found not guilty of a criminal offense by reason of mental disease or defect excluding responsibility, is facially unconstitutional.

The defendant-appellant Joseph Senion Kee filed an application in circuit court for release from the custody of the director of the division of mental diseases pursuant to section 552.040(4). Appellant's application alleged (1) that he did not have a mental disease or defect rendering him dangerous to himself or others and that he was not unable to conform his conduct to the requirements of law, and (2) that his original commitment to the division of mental diseases, which commitment was ordered by the circuit court pursuant to section 552.040(1), violated the due process and equal protection provisions of the United States Constitution, Amend. XIV, because section 552.040(1) does not require a hearing and finding of fact that he suffered from the requisite mental disease or defect at the time of commitment. He contended that because section 552.040(1) does not provide for such a determination it is facially unconstitutional.

The circuit court held an evidentiary hearing at which appellant was present with counsel. The court found under the evidence that appellant had not recovered from the mental disease and further held section 552.040 to be constitutional. Kee has appealed and contends that section 552.040 is violative of the United States Constitution, Amend. XIV.

This court has jurisdiction, Mo.Const. 1945, Art. V, Sec. 3, V.A.M.S.

Kee previously filed a petition for writ of habeas corpus in the U.S. District Court for the Western District of Missouri which was dismissed as premature for failure to exhaust state remedies in that Kee had not appealed the previous denial of an application for release under section 552.040 to a Missouri appellate court. Kee v. Peterson, 317 F.Supp. 827 (W.D.Mo.1970). Thereafter Kee filed the instant petition.

Very few facts appear in the record on the instant motion and briefs. From the record and briefs filed in this case and the memorandum order in Kee v. Peterson, supra, it appears that the underlying factual situation is as follows. Kee had been charged by information with robbery in the first degree. On July 19, 1967, following the filing of the information, Kee was ordered by the circuit court of the City of St. Louis to the Missouri State Hospital No. 1 for psychiatric examination. Presumably that mental examination was ordered on motion of Kee. After that mental examination was completed, Kee entered a plea of not guilty by reason of mental disease or defect and filed notice that he had no other defense pursuant to section 552.030(2). Shortly thereafter, on January 23, 1968, Kee appeared in person and with counsel in circuit court. At that time the court considered the report of the mental examination, to which the state and Kee were in agreement, accepted appellant's plea of not guilty by reason of mental disease or defect excluding responsibility, entered judgment accordingly and committed appellant to the custody of the director of the division of mental diseases pursuant to sections 552.030(2) and 552.040(1).

All of the evidence at the hearing on the instant application was that Kee was still suffering from paranoid schizophrenia, that this mental condition renders him dangerous to the safety of others, and that he was still unable to conform his conduct to the requirements of law. The trial court so found.

The case is one where, at a minimum, the appellant agrees that he suffered from a mental defect excluding responsibility as of the date of the robbery he was charged with committing and does not contend on this appeal that the trial court erred in finding that he has not recovered from that mental illness or that he is dangerous to others and cannot conform his conduct to the requirements of law. In short, it appears that appellant accepts the factual determination of mental defect as of the date of the robbery and that agreement continued to the date of the trial court judgment of March 16, 1973, on the instant motion.

Appellant's contention on appeal is that his confinement is unconstitutional because on January 23, 1968--the date his plea was accepted and he was committed--there was no hearing or finding of fact that he was on that date still suffering from the mental condition that he was suffering from on the date of the offense.

Section 552.040(1) does not require that such a hearing be held or that the court find that, on the date of commitment, the defendant is then and there still suffering from the mental defect that he had at the time of the offense and upon which his plea of not guilty by reason of mental disease or defect was founded.

It is the absence from section 552.040(1) of a requirement that the circuit court hold a hearing and make a finding of present mental defect that constitutes the basis for appellant's claim that the statute is facially unconstitutional under the U.S. Constitution, Amend. XIV.

Before proceeding to a resolution of appellant's points, there are certain observations that should be made in order that the issue will remain in focus. This case does not involve those sections of chapter 552 which are concerned with the mental fitness of a defendant to understand the nature of the proceedings or assist in his own defense. Sec. 552.020. Nor does it question the validity of the provision by which it is determined that a defendant had a mental defect excluding responsibility for the offense, whether that determination be made on a plea of not guilty by reason of mental defect where other defenses are waived and the plea is accepted by the state, or by judge or jury, where the issue is contested. Sec. 552.030.

It is appellant's position that the due process provisions require that the court make a finding of present mental defect existing at the date of commitment before he can be validly committed to and confined in a state institution--deprived of his liberty. His equal protection claim is that section 552.040 imposes an unreasonable, arbitrary, and invidious distinction between 'civil' and 'criminal' commitments in Missouri.

Commitment proceedings, whether civil or criminal, are subject to both the equal protection and due process clauses of the Fourteenth Amendment. Specht v. Patterson, 386 U.S. 605, 608, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Baxstrom v. Herold, 383 U.S. 107, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); State ex rel. Hoover v. Bloom, 461 S.W.2d 841, 843 (Mo. banc 1971).

' Criminal commitment' proceedings as used herein mean those proceedings under which a person, who has been charged with a criminal offense and who asserts he is not liable to criminal punishment because, at the time of the offense, he suffered from a mental disease or defect excluding responsibility, and who, after being acquitted upon that ground, is committed to the division of mental diseases. In Missouri these proceedings are governed generally by chapter 552 and in particular sections 552.030 and 552.040. 'Civil commitment' proceedings are governed generally by sections 202.783 through 202.875 and are different from the provisions applicable to criminal commitments.

The point of difference stressed here is that under the civil involuntary commitment, pursuant to section 202.807, the subject is afforded a hearing and the court must make a finding that he is mentally ill and in need of custody, care or treatment in a mental facility. Section 202.010(12) defines mental illness for the purpose of chapter 202 as follows: "Mental illness' is a state of impaired mental function and includes alcoholism or other drug abuse to such extent that a person so afflicted requires care and treatment for his own welfare, or the welfare of others, and without regard to whether or not such person has been adjudicated legally incompetent; . . ..'

Civil commitment under section 202.807 does not presuppose that the person has committed an act which, if done by a mentally sound person, would be a crime and authorize criminal punishment.

A criminal commitment under sections 552.030 and 552.040 cannot be had unless the person (1) has been charged with a criminal offense, (2) has initiated the affirmative defense of mental disease or defect excluding responsibility, and (3) has been acquitted by a judge or jury upon the specific affirmative finding of mental disease or defect excluding responsibility, or where the defendant waives all other defenses and seeks acquittal on mental disease or defect and the state accepts the plea.

As a prerequisite to a criminal commitment being ordered under sections 552.030 and 552.040, it is essential that the defendant have committed a criminal act. In this case the act was first-degree robbery. Society does not condone robbery or any other criminal act whether committed by a sane or insane person but does relieve the insane of criminal punishment. When this type of conduct is engaged in as a consequence of a mental defect, it is reasonable to believe that it may be repeated until the defendant is cured. This is so because it is the essence of the defense of mental defect that the defendant did not appreciate that what he did was wrong or, if he did know it was wrong, he was incapable of conforming to the requirements of law.

Thus the difference between civil and criminal commitments in Missouri is principally based upon the fact that in the...