State v. Lee, 13092

• Decision Date: 13 October 1983
• Docket Number: No. 13092,13092
• Citation: 660 S.W.2d 394
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David LEE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 394

660 S.W.2d 394

STATE of Missouri, Plaintiff-Respondent, v. David LEE, Defendant-Appellant.

No. 13092.

Missouri Court of Appeals,

Southern District,

Division Two.

Oct. 13, 1983.

Motion for Rehearing or Transfer

Denied Nov. 21, 1983.

Application to Transfer Denied

Dec. 20, 1983.

Charles E. Buchanan, Larry Maples, Asst. Public Defenders, Joplin, for defendant-appellant.

John Ashcroft, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Presiding Judge.

The defendant was charged as a persistent offender with burglary in the first degree. The trial court found he was a persistent offender. A jury then found him guilty of the offense. The trial court fixed his punishment at imprisonment for 25 years. The defendant does not question the sufficiency of the evidence. The record presents overwhelming proof of his guilt. On appeal he contends two reversible errors were committed in the prosecution of the charge against him.

His first point is that the state did not introduce sufficient evidence to warrant a finding beyond a reasonable doubt that he had been convicted of two felonies committed at different times as required by §§ 558.016 and 558.021. (Emphasis added). To meet its burden, the state presented certified copies of two judgments of the Circuit Court of Willis County, Illinois. These copies were marked as exhibits, presented to the court and offered in evidence, but only inferentially admitted. The defendant makes no complaint of the absence of formal admission. The trial court found the defendant was convicted of burglary on June 27, 1979 and pled guilty to attempted burglary on July 27, 1979 in said circuit court.

The state argues it met its burden "because there was a prima facie showing by the state that appellant had two prior felony convictions, and since appellant offered no evidence to rebut this showing." It has been sagaciously observed, "[w]here, as in this case, the inference is clear that the previous crimes were committed at different times, the state should not be required to negative every possibility without some evidence by the defendant that the crimes were committed at the same time." State v. Leake, 608 S.W.2d 564, 565-566 (Mo.App.1980). The state contends this quotation supports its argument. However, the principle from Leake must not be taken out of context. It is not to be applied to hold the state has met its burden by the proof of any two prior felony convictions. It is applicable where the record, by reason of dates, geography and the nature of the offenses, in the absence of contrary evidence, supports a finding beyond a reasonable doubt the two offenses occurred at different times. It has been so applied in State v. Daniels, 655 S.W.2d 106 (Mo.App.1983); State v. Thornton, 651 S.W.2d 164 (Mo.App.1983); State v. Cullen, 646 S.W.2d 850 (Mo.App.1982); State v. Leake, supra.

The state argues the principle is applicable in this case because it is constitutionally impermissible to convict of attempted burglary and burglary upon the basis of the same incident. It cites cases dealing with double jeopardy, such as Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Nevertheless, this court cannot conclude the principle so espoused provides proof beyond a reasonable doubt the two felonies recited in the record occurred at different times. For example, even assuming the constitutional rule was applicable, the Circuit Court of Willis County could have acted in error.

However, this deficiency in proof does not require a reversal. As noted, the evidence of the defendant's guilt was overwhelming. It has been declared:

Accordingly, as in State v. Hill, 371 S.W.2d 278 (Mo.1963) 'the sentence herein is declared void, the judgment is reversed and the cause remanded with directions to the court to cause the defendant to be brought before it to hold a hearing on the issue of former conviction of defendant and if proved to pronounce sentence and judgment against defendant taking all proper procedural steps required therefor by law and the rules of this court but in the alternative if the issue of former conviction be found in favor of defendant to grant him a new trial on all issues.' State v. Harris, 547 S.W.2d 473, 476 (Mo.banc 1977).

That procedure is particularly appropriate under the present statutes and the facts of this case and is adopted. The sentence is declared void and the judgment is reversed.

The defendant's second point is that the court erroneously overruled the defendant's motion for a continuance to permit the filing of a written report of a mental examination previously ordered under the provisions of § 552.020. That point has the following factual background. On November 22, 1982, the court sustained the defendant's motion under § 552.020 for a mental examination to determine his competency to stand trial. Trial was set for December 2, 1982. The report of the examination was not filed by that date. The trial was continued to December 7, 1982. Between the two dates the prosecuting attorney and the public defender talked with the examining physician. They were orally, summarily advised the defendant was competent to stand trial and had no mental disease or defect. Nevertheless, on December 7, 1982, the public defender sought a continuance because the report had not yet been filed. He stated that he did not doubt the competency of the defendant to stand trial, but needed the report to determine whether or not to enter a plea of not guilty by reason of mental disease or defect. Based upon his observation of the defendant and the oral reports, the trial court found the defendant competent to proceed and overruled the motion.

On appeal the defendant continues to argue the action of the trial court was improper because he could not determine whether or not to enter a plea of not guilty by reason of mental disease or defect. He also contends he was prejudiced because he could not contest the written report of the previously ordered mental examination as provided in § 552.020.5. The state counters that the defendant cannot complain because he did not plead not guilty by reason of mental disease or defect. To support that argument it cites the following:

A motion for a mental examination, under the provisions of the statute is insufficient to give rise to a mandatory duty of the court to order a mental examination to procure evidence of mental disease or defect excluding responsibility unless it is preceded by a plea of that matter or by a written notice of purpose to reply on such defense. State v. Sears, 501 S.W.2d 491, 493 (Mo.App.1973).

Each party misconceives the relationship of a mental examination under § 552.020, to such an examination and plea of not guilty under § 552.030. It is true a report under § 552.020 is to contain a finding in respect to whether or not the accused had a mental disease or defect excluding responsibility. However, the two facets of mental competency are distinct. The relationship between the two examinations is clearly expressed in State v. Strubberg, 616 S.W.2d 809 (Mo.banc 1981). Also see State v. Pennington, 618 S.W.2d 614 (Mo.1981). The fact an examination has been ordered under § 552.020 does not automatically 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 (Mo.1974); Jones v. State, 505 S.W.2d 96 (Mo.App.1974). Further, a plea of not guilty by reason of mental disease or defect does not per se demand a hearing to determine competency to stand trial. State v. Broderick, 625 S.W.2d 912 (Mo.App.1981). The absence of a report of the mental examination under § 552.020 did not relieve the defendant from the necessity of entering an appropriate plea to be entitled to rely upon the defense of mental disease or defect.

However, the terms of the statute are clear. "Within five days after the filing of the report ... the accused ... upon written request ... shall be entitled to an order" granting him an examination by a physician of his own choosing, at his own expense. § 552.020.5. Had the defendant, after the filing of the report, filed a timely request or contest thereof, a hearing to determine his competency to stand trial was mandatory. § 552.020.7; State v. Carroll, 543 S.W.2d 48 (Mo.App.1976). Failure to accord a defendant the right to that hearing is error. Although, such failure is not necessarily prejudicial error demanding a new trial. State v. Carroll, supra.

In one sense, the issue of competency to stand trial cannot be waived by going to trial. State v. Crews, 607 S.W.2d 729 (Mo.App.1980), affirmed after remand, 619 S.W.2d 76 (Mo.1981). However, "the rights available under § 552.020 are personal to the accused who may waive them." State v. Anderson, 493 S.W.2d 681, 684 (Mo.App.1973). Obviously, such a waiver may be established by the informed personal express waiver of the accused. State v. Anderson, supra. Also see State v. Stein, 504 S.W.2d 1 (Mo.1974). The right to a mandatory competency hearing to proceed is likewise waived by failure to file a timely contest of the initial report. Griggs v. State, 479 S.W.2d 478 (Mo.1972); State v. Crews, supra.

In this case there are two factors indicative of the defendant's waiver of the filing of and right to contest the report of the mental examination under § 552.020. First, as noted, the public defender said he had no doubt of the defendant's competency to proceed. This is true even though counsel was speculating upon entering a defense of mental disease or defect. State v. Holt, 603 S.W.2d 698 (Mo.App.1980). Second, the report was filed after trial but before sentencing and the defendant...