State v. Moss

• Decision Date: 09 May 1990
• Docket Number: No. 15850,15850
• Citation: 789 S.W.2d 512
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Larry Dean MOSS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 512

789 S.W.2d 512

STATE of Missouri, Plaintiff-Respondent, v. Larry Dean MOSS, Defendant-Appellant.

No. 15850.

Missouri Court of Appeals,

Southern District,

Division Two.

May 9, 1990.

Kimberly Bonney Landman, Asst. Public Defender, Springfield, for defendant-appellant.

William L. Webster, Atty. Gen., Robert V. Franson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

HOGAN, Judge.

On November 29, 1989, this court adopted and filed an opinion reversing and remanding the judgment of conviction for instructional error. Thereafter and on December 15, 1989, the court denied the State's motion for a rehearing or transfer to the Supreme Court. The State then filed an application for transfer to the Supreme Court and on February 13, 1990, the application was sustained. On May 4, 1990, the Supreme Court entered the following order: "Cause ordered retransferred to the Missouri Court of Appeals, Southern District." With the addition of this paragraph our original opinion is readopted this 7th day of May, 1990. It is set out hereafter.

A jury has found defendant Larry Dean Moss guilty of kidnapping in violation of § 565.110.1(5), RSMo 1986, and has further found him guilty of armed criminal action as defined and denounced by § 571.015.1, RSMo 1986. ¹ Defendant's punishment was assessed at imprisonment for a term of 5 years for kidnapping and imprisonment for a term of 3 years for armed criminal action. It was ordered that the sentences be served consecutively. The defendant appeals, asserting that his motion for judgment of acquittal made at the close of all the evidence should have been granted and that the trial court erred in giving and reading Instruction No. 12, which is MAI-CR.3d 312.10. We reverse for instructional error.

There is no proper challenge to the sufficiency of the evidence, and an extensive recitation of the facts is unnecessary. On review of a criminal prosecution, the State is entitled to the most favorable view of the facts in evidence and the reasonable inferences to be drawn therefrom. State v. Cannady, 660 S.W.2d 33, 35 (Mo.App.1983). Viewed in that light, the State adduced proof which demonstrated that the defendant abducted a former paramour and transported her from Springfield to Van Buren and back in November 1987. There was evidence warranting the conclusion that the defendant's purpose was to terrorize his victim and there was evidence that a firearm was used to accomplish that purpose. The evidence is amply sufficient to support the judgments of conviction.

The defendant pled not guilty by reason of mental disease or defect excluding responsibility as provided by § 562.086.1 and § 552.030. The jury rejected that excuse. The two points briefed have to do with the submission of the excuse of mental disease or defect, to which we shall also refer as the insanity defense.

The defendant's second point is, in substance, that he proved by a preponderance or greater weight of the evidence that he was suffering from a mental disease or defect excluding responsibility at the time he committed the acts charged and therefore the trial court should have directed a verdict of acquittal at the close of all the evidence. There is substantial evidence in the record which would justify a finding that defendant was suffering from a mental disease or defect excluding responsibility and there is substantial evidence to the contrary, but a recitation of the evidence is not necessary. Essentially, the defendant argues that as a matter of law, he was not guilty by reason of mental disease or defect. We reject this argument. Even if the experts had testified unanimously that the defendant suffered from a mental disease at the time the crimes charged were committed--and they did not--such evidence would not have authorized removal of the issue of criminal responsibility from the jury. The prosecution has no burden to prove the sanity of the accused. By statute, the defendant is presumed to be free from mental disease or defect and that presumption alone is sufficient to take the issue to the jury even when it is controverted by substantial and uncontradicted evidence to the contrary. Section 552.030.7; State v. Lee, 654 S.W.2d 876, 880-81 (Mo.banc 1983); State v. Ginnery, 617 S.W.2d 117, 120 (Mo.App.1981); State v. Bradshaw, 593 S.W.2d 562, 568[11, 12] (Mo.App.1979); State v. West, 575 S.W.2d 257 (Mo.App.1978).

The meritorious question on this appeal is whether the instructions given were such as to mislead and confuse the jury concerning the defendant's burden to prove the insanity defense. In our view they were, and the cause must be reversed and remanded for instructional error.

I

We have first to consider whether the defendant was entitled to an instruction submitting the insanity defense, i.e., mental disease or defect excluding responsibility. The approved criminal instruction is MAI-CR.3d 306.02, and in Note on Use No. 2, it is stated that the defense of mental disease or defect excluding responsibility is an affirmative defense and the defendant has both the burden of injecting the issue and the burden of persuasion. It is also stated that when there is evidence supporting this defense, Instruction 306.02 must be given. While our courts have frequently held that in the absence of any evidence showing mental disease or defect, an instruction on that subject need not be given, State v. Shaw, 646 S.W.2d 52, 54-55 (Mo.1983), there is no doubt the court is required to instruct the jury upon the insanity defense if there is substantial evidence of mental disease or defect excluding responsibility. Section 552.030.6; State v. Brizendine, 391 S.W.2d 898, 901 (Mo.1965). Our inquiry is whether there was substantial evidence of mental disease or defect excluding responsibility.

Dr. Emma Sue Snow, a practicing psychiatrist, was called as a witness by the defendant. Dr. Snow had evaluated the defendant's mental condition at the request of the court. We will not repeat Dr. Snow's testimony at length, but upon being asked if in her opinion the defendant had a mental disease, she answered, "Yes," and upon being asked "Speaking of the criminal activity that [the defendant] is charged with on November 2nd of 1987, did [he] know or appreciate the nature, quality or wrongfulness of his conduct at that time?" Dr. Snow replied, "No, not at that time."

The trial court further received evidence from Dr. Donald R. Butts, also a practicing psychiatrist. Dr. Butts had also evaluated the defendant's mental condition. Dr. Butts was asked, among other things:

* * * * * *

"Q. At the time of the [criminal] conduct [with which defendant was charged] did the defendant have a mental disease or defect?

A. That's another question. I feel that he did.

Q. At the time of the conduct on November 2nd of 1987 was he capable of conforming his conduct to the requirements of law?

A. At that point I don't feel that he was."

* * * * * *

Perhaps Dr. Butts' testimony was not as positive and unequivocal as it might have been, but the fact that an expert expresses his opinion in terms which fall short of absolute certainty does not render his answer inadmissible or deprive it of all probative value. Galovich v. Hertz Corporation, 513 S.W.2d 325, 335 (Mo.1974) (medical expert expressed his conclusion in terms of suspicion); Wray v. Schwitzer Co., 615 S.W.2d 646, 648 (Mo.App.1981) (use of "think," "guess," "rough opinion," "impression" and similar words not destructive of an expert witness' opinion when it appears witness employs such words with intent to express an opinion); Collier v. St. Louis Public Service Company, 298 S.W.2d 455, 461[6, 7] (Mo.App.1957) (use of the word "think" to express a medical opinion did not deprive the opinion of probative value).

The test of mental disease or defect sufficient to exclude responsibility for criminal conduct is an alternative test. Section 552.030.1 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 the law."

The source of Subsection 1 of § 552.030 is § 402(1) of the Model Penal Code, which appears as § 4.01(1) in Part I, Model Penal Code and Commentaries, p. 163 (1985). Comment No. 3 to that Section, as it appears in the Official Draft with Revised Commentaries, p. 168, states that the enunciated standard:

"... relieves the defendant of responsibility under two circumstances: (1) when, as a result of mental disease or defect, the defendant lacked substantial capacity to appreciate the criminality [wrongfulness] of his conduct; (2) when, as a result of mental disease or defect, the defendant lacked substantial capacity to conform his conduct to the requirements of the law."

In this case, both Dr. Snow and Dr. Butts testified that the defendant was suffering from a mental disease or defect at the time he committed the acts charged against him. Dr. Snow testified, in substance, that the defendant did not know or appreciate the nature, quality or wrongfulness of his conduct. Dr. Butts testified that the defendant was suffering from mental disease or defect at the time the criminal acts charged were committed. Dr. Butts' opinion was that defendant was incapable of conforming his conduct to the requirements of the law. There was substantial evidence that the defendant was suffering from a mental disease or defect when the criminal acts charged were committed in November 1987, and defendant was entitled to an instruction on the insanity defense.

II

Having determined that the defendant was entitled to an instruction on mental disease or defect excluding responsibility, we must consider whether the jury was properly instructed on the defendant's burden to prove the excuse of mental disease or defect excluding responsibility.

The trial court ...