State v. Mouse, 22132
| Decision Date | 18 February 1999 |
| Docket Number | No. 22132,22132 |
| Citation | 989 S.W.2d 185 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Nicholas MOUSE, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
William J. Fleischaker, Roberts, Fleischaker, Williams, Wilson & Powell, Joplin, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel W. Follett, Asst. Atty. Gen., Jefferson City, for respondent.
Nicholas Mouse (defendant) appeals a judgment of conviction for the offense of assault in the first degree. § 565.050. 1 Defendant contends the trial court erred in refusing to allow a witness he tendered as an expert to testify concerning his state of mind at the time the offense was committed. He further asserts three claims of instructional error. Defendant does not challenge the sufficiency of the evidence. This court affirms.
William Wilkerson was talking on the telephone in his residence in Jasper County. The doorbell rang and there was a knock on the door. Mr. Wilkerson saw defendant standing at his front door and told him to come in. Defendant entered the house. Mr. Wilkerson continued talking on the telephone. Defendant attacked Mr. Wilkerson with a knife. He stabbed him at least 12 times, then ran from the house.
Mr. Wilkerson was able to call 911 for assistance. He was transported to Freeman Hospital in Joplin. He had sustained life threatening stab wounds. His family was told he would probably not survive the night.
Defendant was arrested the same night. At the time of his arrest, defendant had numerous small cuts on his hands. He told the arresting officer that he left his residence and went to a convenience store to purchase beer. He said he went to a Burger King restaurant to eat, then to Wilkerson's residence. According to defendant Mr. Wilkerson was talking on the telephone. Defendant said Wilkerson motioned him to come inside and told defendant, "Hi, Indian, be with you in a minute." Defendant said he remembered reaching into his pocket, pulling out a pocketknife and unfolding it. He said he remembered scuffling with Mr. Wilkerson. Defendant said he noticed a large knot on Wilkerson's head; that he asked himself what he had done.
When defendant left the Wilkerson residence, he went to the home of a friend, Michael East. He threw his remaining beer cans and his knife out the window of his vehicle on the way to the East house. Defendant told Michael East he needed to hide his truck "because the cops would be looking for him."
Defendant took a shower while he was at the East residence, then left. He went to another friend's house. He left the second residence. Richard Getty saw him standing by a fence along the roadway and picked him up. At Mr. Getty's suggestion, defendant turned himself in to the sheriff's office.
Point I is directed to defendant's attempt to present the testimony of Dr. Tim McCarty, a psychologist, at trial. Prior to trial the state filed a motion in limine. The motion requested the trial court to prohibit defendant from presenting "evidence of voluntary intoxication or voluntary drug use on the issue of defendant's state of mind." It asserted, "That defendant intends to introduce evidence of defendant's voluntary intoxication and voluntary drug use, on or prior to the date of the offense, on the issue of defendant's state of mind." It alleged defendant intended to introduce evidence of voluntary intoxication through expert testimony; that he intended to ask an expert witness to draw conclusions regarding how defendant's voluntary use of alcohol and drugs affected defendant's mental condition. The trial court granted the state's motion in limine.
During the course of trial defendant sought to present testimony by Dr. McCarty. The testimony was refused in accordance with the trial court's order granting the motion in limine. An offer of proof was made. The offer of proof was refused by the trial court.
Point I contends the trial court erred by not allowing defendant's expert witness to testify regarding defendant's state of mind. It asserts defendant should have been permitted to present expert testimony to show "he suffered from a mental disease or defect that prevented him from knowing and appreciating the nature, quality and wrongfulness of his conduct at the time of the offense because [he] entered a plea of not guilty and not guilty by reason of mental disease or defect excluding responsibility"; that the testimony presented in defendant's offer of proof disclosed "defendant was suffering from a substance induced psychotic disorder at the time of the assault on William Wilkerson and such condition is a mental disease or defect" that prevented defendant from knowing and appreciating the nature, quality or wrongfulness of his conduct.
The record on appeal does not include any record of proceedings at which defendant entered a plea of not guilty by reason of mental disease or defect excluding responsibility. See § 552.030.2. Defendant's statement of facts includes, "At his arraignment on the information, the defendant entered a plea [sic] of not guilty and not guilty by reason of mental disease or defect excluding responsibility." No part of the record on appeal is identified as authority for the statement, although defendant was obviously aware of the deficiency. The statement is followed by "(LF--?)". No reason is given as to why the deficiency was not corrected.
As observed in Hammack v. White, 464 S.W.2d 520 (Mo.App.1971):
Normally, on review, we are bound by the record. We may not notice or accept a statement of a fact asserted in a brief which is not supported by the transcript. Avalon Development Company, Inc. v. American Italian Construction and Development Company, Inc., Mo.App., 437 S.W.2d 702, 703. Neither can we determine what was filed or done in the trial court on the basis of such a statement. Lubrication Engineers, Inc. v. Parkinson, Mo.App., 341 S.W.2d 876, 879.
Id. at 522. Hammack noted, however, that an exception to the requirement that facts be supported in the record occurs when adversary counsel concedes the issue in his brief. Id. As stated in State v. Bowling, 734 S.W.2d 565, 568 (Mo.App.1987), citing Hammack, "Where a statement of fact is asserted in one party's brief, and conceded to be true in the adversary's brief, we may consider it as though it appeared in the record."
The state's brief does not challenge the statement that defendant timely pleaded not guilty by reason of mental disease or defect excluding responsibility. It addresses Point I of defendant's brief on the merits. This court interprets the state's response as a concession that the plea was timely entered. Point I will be reviewed on its merits. It is appropriate, nevertheless, to suggest that appellate counsel responsible for providing records on appeal not rely on tacit accommodation by adversary counsel to cure defects that could be readily avoided by providing complete records of trial court proceedings.
Dr. McCarty was prepared to testify that defendant suffered from substance-induced psychosis, i.e., a psychotic disorder triggered by controlled substances. Dr. McCarty stated in defendant's offer of proof that substance-induced psychosis is a mental disease. He gave the opinion that the triggering mechanism for the ailment defendant had at the time he assaulted William Wilkerson was use of amphetamines.
Dr. McCarty was asked the following questions and gave the following answers:
Q. Isn't it true that when you make a diagnosis of substance induced psychosis that the psychosis has to be a direct result of the substance induced?
A. Absolutely.
Q. Okay, and that when you make a diagnosis of substance induced psychosis you eliminate other types of psychosis, isn't that correct?
A. Right.
Q. So substance induced psychosis, when you make that finding, you're finding that he has no other psychosis, isn't that true?
A. Right.
...
Q. And that the substance that triggered the psychosis in this case in your opinion was [defendant's] use of methamphetamines, isn't that true?
A. Uh-huh.
Dr. McCarty agreed that defendant's use of amphetamines was a voluntary act. He stated the opinion that defendant's substance-induced psychosis was a direct result of voluntary use of amphetamines.
Section 552.010 defines "mental disease or defect":
The terms "mental disease or defect" include congenital and traumatic mental conditions as well as disease. They do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, whether or not such abnormality may be included under mental illness, mental disease or defect in some classifications of mental abnormality or disorder. The terms " mental disease or defect " do not include alcoholism without psychosis or drug abuse without psychosis.... [Italics added.]
Defendant argues that the italicized part of the statute implicitly states that alcoholism with psychosis or drug abuse with psychosis is a mental disease or defect and, therefore, it was error for the trial court not to permit Dr. McCarty's testimony. That argument, however, was rejected in State v. McGreevey, 832 S.W.2d 929 (Mo.App.1992). In McGreevey, a psychologist's testimony was offered to show a defendant suffered from a psychosis that was characterized as " 'an idiosyncratic intoxication reaction to cocaine use,' or a 'cocaine induced delirium or dementia' " at the time the charged offense was committed. Id. at 931.
The Western District of this court, relying on State v. Woltering, 810 S.W.2d 584, 587-88 (Mo.App.1991), and State v. Elam, 779 S.W.2d 716, 717 (Mo.App.1989), found there was no support for the proposition that a drug-induced psychosis constituted a mental disease or defect within the purview of § 552.010. McGreevey held that § 562.076.1 2 applied to the facts of that case. Because...
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Mouse v. State
...the evidence at trial showed that Movant voluntarily induced amphetamines prior to the commission of the assault. See State v. Mouse, 989 S.W.2d 185, 189 (Mo.App. 1999). There was also sufficient evidence presented through which the jury could have determined that, during the commission of ......
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