State v. Nickens, 50718

• Decision Date: 13 June 1966
• Docket Number: No. 50718,50718
• Citation: 403 S.W.2d 582
• Parties: STATE of Missouri, Respondent, v. Earl Eugene NICKENS, Appellant.
• Court: Missouri Supreme Court

Page 582

403 S.W.2d 582

STATE of Missouri, Respondent, v. Earl Eugene NICKENS, Appellant.

No. 50718.

Supreme Court of Missouri, En Banc.

June 13, 1966.

Norman H. Anderson, Atty. Gen., James J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.

J. Paul Allred, Jr., David L. Campbell, William D. Mykins and Martin Schiff, Jr., St. Louis, Jules B. Gerard, St. Louis, of counsel, for defendant-appellant.

HENLEY, Judge.

Defendant appeals from a judgment and sentence imposing the penalty of death. He was charged by indictment in usual and common form with murder in the first degree and tried as having committed homicide in the perpetration of robbery. Section 559.010, RSMo 1959, V.A.M.S. His plea was: 'not guilty by reason of mental disease or defect excluding responsibility.' Section 552.030, paragraph 2, RSMo 1959 (1965 Cumulative Supplement), V.A.M.S. A jury found him guilty and, as indicated, assessed his punishment at death. Section 559.030, RSMo 1959, V.A.M.S.

Defendant has been ably represented by the same court-appointed counsel throughout all proceedings, including arraignment, pre-trial hearings on motions to suppress evidence and to dismiss the indictment, a trial in June, 1963, resulting in a mistrial due to illness of defendant, a six-day trial in December, 1963, resulting in his conviction, and briefing and extended oral argument in this court.

Two closely related assignments of error briefed by defendant dictate that the case be reversed and remanded for another trial. Therefore, a brief summary of the evidence will suffice.

On March 4, 1963, at about 2:20 P.M., defendant, with a pistol pointed at his victim, held up and robbed Mrs. Maxine Butler in her grocery store located at the southwest corner of Chippewa and Illinois Streets in the southern portion of the City of St. Louis, taking approximately $100 and a carton of cigarettes. Leaving the scene of this robbery, he drove in his automobile in a general northwestwardly direction. In the meantime the police were notified and given a description of the robber and his vehicle. As defendant turned left off of Grand Avenue onto Castleman Avenue (3.2 miles northwest of the scene of the robbery and about 20 or 25 minutes thereafter), he was stopped by Police Officer Donald Sparks, who was driving a marked police car. Defendant pulled to the north curb of Castleman and stopped fifty or so feet west of Grand near a beauty shop in the Saum Hotel. The police car pulled to the curb at an angle and stopped behind defendant. As Officer Sparks alighted from the left side of the police car defendant, sitting at the steering wheel of his automobile, fired three shots at the officer with a .38 caliber pistol. Two of these bullets struck the officer in the head inflicting wounds from which he died within two hours; the third struck and deflated the left front tire of the police car. The officer's body, with his pistol still secure in its holster, was found lying in the street parallel to the left side of the police car. Escaping this scene, defendant drove northwestwardly to a parking lot on Vandeventer Avenue where he abandoned his automobile and walked to a nearby tavern known as Crest Lounge at 1640 south Vandeventer. There he ordered a beer and asked the waitress to call a taxicab for him. Leaving the tavern by Laclede Cab he rode to Kingshighway and Lindell Boulevard, got out, and walked to his residence about a block away at 4220 Maryland Avenue. He was arrested there by police at about 4:30 P.M.

As stated, his defense was not guilty by reason of mental disease or defect excluding responsibility for the acts with which he was charged. Whether he suffered such disease or defect was the primary, if not the sole, issue in the case. In support of this defense he offered the testimony of Dr. Robert L. Lam, a neurologist and psychiatrist appointed by the court on defendant's request. Dr. Lam testified, in substance, that, on the date of this offense and prior thereto, defendant was suffering from a mental disease known as paranoid schizophrenia or, described in a layman's terms, a split personality; that by reason of this mental disease, defendant was unable to appreciate or understand the significance, nature or quality of his acts and unable to conform his conduct to the requirements of law both at the time of the robbery and at the time of the shooting of Officer Sparks. In rebuttal the state offered the testimony of Dr. James N. Haddock, also a psychiatrist, who had examined defendant at the state's request.

Dr. Haddock testified, in substance, that his examination disclosed no evidence that defendant suffered from any degree of psychotic disturbance, including any form of schizophrenia, paranoid disorder, affective disorder, or organic disorder either on the date of the killing of Officer Sparks or at any time prior thereto; that defendant did not suffer from paranoid schizophrenia; that defendant has, and has had for sometime, '* * * a severe character disorder also known variously as (a) psychopathic, sociopathic, or anti-social personality * * * manifested by repeated criminal acts * * * and * * * anti-social behavior * * *;' that at the time of the robbery and killing defendant knew and appreciated the nature, quality and wrongfulness of his conduct and was capable of conforming his conduct to the requirements of law.

These opposite medical opinions are based on essentially the same type of subjective and objective examinations of the defendant by each of the doctors. In the course of their testimony each of the doctors related to the jury defendant's history of repeated criminal acts resulting in convictions and jail, reformatory and prison sentences, and an undesirable discharge from the Navy. This historical information was acquired by each doctor during the course of his examination of defendant. As required by § 552.030, paragraph 4, the court, both orally at the time of its admission and later by instruction, informed the jury that it must not consider such information as any evidence of the guilt of defendant.

While testifying in narrative form from a written report of his examination of defendant, Dr. Haddock was interrupted by an objection from defendant made in anticipation of his reading the following portion of his report:

'* * * Treatment or rehabilitation of the type of disorder shown by this man would be of no avail with the methods available today. If unrestrained further anti-social acts by this man will undoubtedly recur in the same way as in the past.'

Out of the hearing of the jury, defendant objected and asked the court not to permit the doctor to read the above-quoted portion of his report for the reasons that it was irrelevant and immaterial to the issue of whether defendant was suffering from a mental disease at the time of the act charged, and that the testimony would be highly prejudicial in that it constituted a prognosis of what defendant's future conduct would be if unrestrained. The court first sustained the objection and then, after a colloquy between court and counsel, reversed its ruling and permitted the doctor to read these two sentences as a part of his testimony. It was understood between the court and counsel for defendant that when the doctor reached this portion of his report defendant's objection would be considered as renewed and, along with a motion for a mistrial, overruled.

In his closing argument counsel for the state was permitted, over defendant's objection, to argue:

'* * * He (referring to counsel for defendant) says, 'My God, you may come back some day and say, 'My God, what have I done? " All of this, of course, is to throw some kind of a scare into you that you might do the wrong thing and all the rest of that nonsense.

'He reads you an instruction that says that this defendant will--if you find him not guilty by reason of mental defect--will go to a hospital until such a time that there is a hearing and some doctor will have to testify that he is all right again. Well, we've already had one doctor today, or yesterday, who already testified that he's not psychotic; should be no problem to get some other problem--to get some other doctor somewhere now that he's not--that he has no psychosis. And, when next week, next month, next year, five years from now, ten years from now, when--and when he gets back on the street again, a man with this kind of a sickness; that is to say a psychopath, a repeater, a man with this kind of a mind; that is to say an anti-social, a sociopath, a character disorder--what does Dr. Haddock say about him? Treatment or rehabilitation of the type of disorder shown by this man will be of no avail with the methods available today. If unrestrained, further anti-social acts by this man will undoubtedly occur in the same way as in the past.

'And if unrestrained, further anti-social acts by this man will undoubtedly recur in the same way as in the past and we--are we to say now the same type of boogie man he throws up; are we to say after he hits the street again, 'My God, what have I done?' Who do we say that to--the next widow? Who do we say that to when we say, 'My God, what have I done?'

'This man has no mental disease. This man is a repeater and in that sense he has a character disorder and nothing more. This man is guilty of Murder in the First Degree in the shooting and assassination of that officer.'

Defendant contends that the above-quoted testimony of Dr. Haddock '* * * was wholly irrelevent and immaterial to any issue of the case, was highly inflammatory, and was calculated to induce the jury to assess defendant's punishment at death through fear rather than reason.' He says that the issue is his mental condition at the time of the commission of the alleged offense ¹ and that although great latitude is allowed in the admission of evidence where the defense is 'not guilty by reason of mental disease', it is not wholly unlimited and is restricted to...