State v. McGautha
| Citation | 617 S.W.2d 554 |
| Decision Date | 04 May 1981 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. John Curtis McGAUTHA, III, Appellant. 31369. |
| Court | Missouri Court of Appeals |
Peter N. Sterling, Acting Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Nancy Kelley Baker, Asst. Atty. Gen., Jefferson City, for respondent.
Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.
The defendant was convicted of rape and sentenced to imprisonment for five years. The appeal concerns the propriety of evidence by a psychiatrist received on the defense of mental disease or defect excluding responsibility under § 552.030 and the neglect by the trial court to limit the effect of the testimony by a concomitant oral instruction and a later formal instruction as prescribed by § 552.030.6.
The defendant was formally charged with rape by an indictment returned, and entered a plea of not guilty to the accusation. The defendant then coupled that plea with a notice of intent to rely on the defense of mental disease or defect excluding responsibility under § 552.030.2. The defendant was submitted to the Western Missouri Mental Health facility for psychiatric examination for opinion as to whether the accused, as a result of mental disease or defect, lacked capacity to understand the nature of the proceedings against him and to assist in his own defense, and opinion as to whether at the time of the alleged criminal conduct, as a result of mental disease or defect, the accused was not able to conform his conduct to the requirements of law.
The report of psychiatrist Zwerenz gave opinion that the defendant was competent to stand trial and that he was not affected by a mental disease or defect at the time of the alleged offense. The court, on the basis of the report and other evidence, made the pretrial determination that the defendant was fit to proceed. On the trial of the offense to the jury, Dr. Zwerenz was a witness for the defense. In the course of testimony, he corrected the reported opinion that the defendant "was not affected by a mental disease or defect at the time of the alleged offense" to the intended opinion: "(the examiner) was not able to formulate an opinion as to whether or not (the defendant) had a mental disease or defect at the time of the crime." 1 The psychiatrist was hindered from a definitive assessment by the inability of the defendant (per Dr. Zwerenz) "to relate to me his thoughts, feelings and actions prior to, during and after the alleged offense ...." That the defendant may have suffered from a mental disease or defect at the time of the criminal conduct alleged and that the defendant may not have suffered then from such a condition, therefore, (so Dr. Zwerenz testified) were equally consistent with the inconclusive examination of Dr. Zwerenz to exploit the indeterminate medical opinion:
Q. Do you feel that your test of this defendant was handicapped by his lack of response?
A. Yes.
Q. During your examination of him, did he ever admit that he had had intercourse with S... G... ? 2 (emphasis added)
Counsel for defendant: I'm going to object to this line of questioning and the prosecutor knows, Your Honor, that the doctor cannot testify as to the guilt or innocence of the defendant, based upon an examination.
The Court: Do you have some law to that effect?
Counsel for defendant: No. It's just that the doctor cannot testify as to anything that goes to the guilt or innocence of this defendant, and that was given to him during his psychiatric evaluation, and I think this doctor can only testify as to whether or not the defendant at that time was suffering from a disease or defect, and the prosecutor knows that.
The court noted to counsel the content of MAI-CR 2.36 3 and inquired, in the context of the objection, what sense he attributed to that instruction.
This colloquy was exchanged:
The Court: If such testimony is admissible, then there would be no purpose for the Supreme Court in formulating Instruction MAI-CR 2.36.
Counsel: (MAI-CR) 2.36 goes to the mentality, statements that were made to him, concerning his mental condition, not statements concerning the offense.
The Court: That's part of the doctor's basis for determining whether he was competent or incompetent at the time of the crime, the statements made by the defendant. (emphasis added)
Counsel: But I'm saying the doctor cannot testify in this court as to any statement made to him as his opinion concerning whether or not the defendant at any time committed this offense.
The Court: Your objection is overruled. I think the doctor has the right, and the evidence is admissible, to testify as to what the defendant told him, and specifically, told him with reference to the crime in question, in order for him to have some rational or medical basis upon which to reach a conclusion as to whether or not he was suffering from a mental disease or defect at the time of the alleged charge, and that is the reason for the instruction, is when the case is submitted to the jury to inform the jury that that testimony as to what the defendant told him concerning the crime was only admissible for the purpose of his evaluation and conclusion, and not for any evidence of his guilt. So your objection is overruled. (emphasis added)
The inquiry was allowed, therefore, on the premise that: the full basis for the expert opinion as to mental disease or defect at the time of the conduct alleged should be before the jury on that issue, and that MAI-CR 2.36 serves to dispel prejudice where that disclosure of full basis for opinion includes an admission of an element of the offense by the defendant to the examiner.
The prosecutor put the question anew: At this juncture, the psychiatric witness Zwerenz, in apparent consternation, asked the court to clarify his duty of testimony as an examiner under § 552.030. The allusion, as the court readily understood, was to subsection 6 of that statute:
No statement made by the accused in the course of any such examination and no information received by any physician or other person in the course thereof, whether such examination was made with or without the consent of the accused or upon his motion or upon that of others, shall be admitted in evidence against the accused on the issue of whether he committed the act charged against him in any criminal proceeding then or thereafter pending in any court, state or federal. The statement or information shall be admissible in evidence for or against him only on the issue of his mental condition, whether or not it would otherwise be deemed to be a privileged communication. 4
The court ruled that the statute admits all statements made by an accused to an examiner to enable the trier of fact to evaluate the basis of the expert opinion, and that MAI-CR 2.36 confines the jury consideration of the evidence to whether or not the accused suffered from a mental disease or defect at the time of the alleged offense.
The jury was returned, and the prosecutor resumed cross-examination:
Q. All right, Doctor, I think I was asking you first whether or not, when you questioned him concerning this rape, he first stated he had no intercourse with the victim who he knew by name, isn't that right?
A. That's correct.
Q. And then after that, then he went on and admitted having intercourse with her, but he said she consented to it, isn't that right?
A. Yes.
Q. And then later on again, then he denied having any actual intercourse with her, isn't that right?
A. Yes.
Q. Did you, in questioning him, did you feel that he was evasive in his answers?
A. Yes.
Q. Do you think he was holding back information?
A. Yes.
The same inquiry was then put to the other examiner, Dr. Kramish, who responded that defendant McGautha told him "he did not commit the crime." The prosecutor pressed the inquiry: To which Dr. Kramish answered: "No." The defendant, on the liminal motion to determine fitness to proceed and then on the trial of the substantive offense, denied any sexual act with S... G... altogether.
On appeal the defendant contends, among other errors, that § 552.030.6 absolutely forbids from evidence at the trial of the substantive offense inculpatory statements made by an accused to a physician during the course of an examination to determine the formal plea that the accused suffered from a mental disease or defect at the time of the offense alleged against him. We agree, and rest conclusion on the clear intendment and distinctive purpose of Chapter 552 (Criminal Proceedings Involving Mental Illness) that a person accused of crime may defend on the contention of mental illness at the time of the conduct alleged, yet not be compelled to self-incrimination in the proof of the defense.
The enactment of mental responsibility Chapter 552 reaffirms as a matter of public policy the fundamental value of our jurisprudence that free will is the postulate of responsibility (4 Blackstone's Commentaries, Chapter 2) and the cognate principle that our collective conscience does not allow punishment where it cannot impose blame (Durham v. United States, 214 F.2d 862, 876 (D.C.Cir.1954)). See, also, A Symposium: Richardson, Reardon, Simeone, An Analysis of the Law, 19 J.Mo.B. 677, 681 (Dec.1963). Another precept of our organic law protects an accused against compulsory testimonial self-incrimination. Fifth Amendment to the United States Constitution; Mo.Const. Art. I, § 19 (1945); State v. Kaiser, 534 S.W.2d 19, 21(2) (Mo. banc 1976). The privilege against self-incrimination is personal (Rogers v. United States, 340 U.S....
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Matamoros v. State
...State v. Shamsid-Deen, 324 N.C. 437, 379 S.E.2d 842, 845, n. 1 (1989) (victims of sexual assault); and, State v. McGautha, 617 S.W.2d 554, 555, n. 2 (Mo.Ct.App.W.D.1981). See also, Wilcox v. State, 672 S.W.2d 12, 13, n. 1 (Tex.App.--Houston [14th] 1984); and, People v. Brown, 35 Cal.App.3d ......
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People v. Herrera, 01CA1511.
...right against self-incrimination. That assumes an ability for fairness to tax even the most earnest jury. State v. McGautha, 617 S.W.2d 554, 561 (Mo.Ct.App.1981)(emphasis added). But see State v. Ohmes, 675 S.W.2d 681 (Mo.Ct.App. The presumption that the jury followed the court's instructio......
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State v. Barnes
...the jury to consider the statement only on the issue of the defendant's mental condition. Defendant relies upon State v. McGautha, 617 S.W.2d 554 (Mo.App.1981), wherein our brethren in the Western District held that the admission of the statement made by an accused during a psychiatric exam......
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State v. Ohmes
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