State v. Meeks

• Decision Date: 23 June 1981
• Docket Number: No. WD,WD
• Citation: 619 S.W.2d 830
• Parties: STATE of Missouri, Respondent, v. Bernard MEEKS, Appellant. 31739.
• Court: Missouri Court of Appeals

Page 830

619 S.W.2d 830

STATE of Missouri, Respondent, v. Bernard MEEKS, Appellant.

No. WD 31739.

Missouri Court of Appeals, Western District.

June 23, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Aug. 4, 1981.

Application to Transfer Denied Sept. 8, 1981.

Howard L. McFadden, Richard J. Fredrick, Jefferson City, for appellant.

John Ashcroft, Atty. Gen., Jay D. Haden, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P. J., and SHANGLER and SOMERVILLE, JJ.

KENNEDY, Presiding Judge.

Defendant Bernard Meeks after a jury trial was convicted of an escape from the Missouri State Penitentiary on June 2, 1978. As a persistent offender he was sentenced by the court to three years' imprisonment. Defendant has appealed to this court upon several allegations of error. We reverse for the court's failure to instruct upon defendant's proffered defense of mental disease or defect and remand for a new trial.

The alleged error has not been preserved for review for the reason that the motion for a new trial was filed out of time, and hence was a nullity. Rule 29.11(b); State v. Howard, 476 S.W.2d 587, 588 (Mo.1972); State v. Kenton, 298 S.W.2d 433, 434(1) (Mo.1957). Nor has it been preserved by defendant's brief, which cites no authority for the proposition except Rule 29.12(b), the "plain error" rule, nor presents any sort of analytical argument in support of the proposition. Rule 30.06(d); Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978); State v. Johnson, 539 S.W.2d 493, 509 (Mo.App.1976). We review the point in search of "plain error".

Defendant made his escape by secreting himself in a trailer load of furniture. He was missed at 5:00 o'clock p. m. and was discovered in the trailer in a warehouse outside the walls at 9:00 o'clock p. m.

Defendant did not deny the escape but relied upon mental disease or defect excluding responsibility as a defense. Sec. 552.030, RSMo 1978.

Defendant's evidence on this point was his own testimony and that of fellow inmates in the penitentiary. McKinley Robinson a fellow prisoner, said that defendant on June 2, 1978, "seemed to have been depressed". Robinson said he saw defendant "going down into the industrial area ... he seemed as though he was wandering at that time. I got him and took him to his cell". Robinson was asked if defendant had said anything to him. Robinson's answer: "A little bewildered, didn't know where you were going. I took you back to your cell, I seen you were having problems ... a little bewildered, depressed, just like you was out of it, didn't know what you were doing ... talking a lot of stuff that didn't make real good sense ... like you are tired, can't take it no more, you didn't know what you were going to do." (Defendant was allowed to take the leading role in conducting his defense, and was conducting the examination of Robinson.) Robinson said that he saw defendant an hour or so later, when his condition was "about the same, but worse. I tried to get you to come back out of the industry area and we had a little bit of a shuffle ... you said, told me to let you go, leave you alone ..." Robinson said that he had seen defendant "bewildered" before, and that on several occasions he had had memory difficulties. "Well, several occasions where I would say something to you", Robinson testified, "you don't seem to remember right off or not at all." Five or six months after the escape, defendant had swallowed a broken knife and had gone to the hospital. At another time, "last year" the trial was held January 11, 1980 Robinson described the following incident: "I was asleep and woke up and pulled you down when you were trying to tie a sheet around your neck on the bars within the cell ... you were acting hysterical, didn't want to talk for a while, acting deeply depressed like you were out of it ..." Roth Hogan, another prisoner, without relating defendant's behavior to the time of the offense, said: "... He is not the same all the times, sometimes I have come up to him at times and he didn't know who I was. It has been times where he acts kind of strange and I check on him every now and then and see how he is doing, and at times when I come before him he asks me who I am, it has been various occasions when that has happened, I don't know what it is from ... I can say I'd see him like that at least three times in one week, this isn't every week, but three times in a week is the most I've ever seen him, but throughout the whole times I have seen him, go and come..." Hogan said that in the early '70's when he and the defendant were both on the streets, defendant "took some pills at times, he was depressed about I guess it was in the family." At another time in the penitentiary defendant had possession of a blade which his fellow inmates took away from him to prevent his threatened suicide.

Defendant's own testimony was that at the time of the offense he was depressed because his six-year-old son was dying of cancer and he had been denied permission to see him; that he was "in a daze". At about 5 o'clock in the afternoon of the day of the offense he remembered coming out of his cell and walking toward the industrial area. The next thing he remembered was Officer Eberle's hitting him in the head with a club in the warehouse outside the penitentiary walls. He recalled nothing about the truck in which he had made his escape. He had been having blackout periods since he was 12 yeas old. The blackouts would be from an hour in length to all day, he would be unable to recall what...