State v. Pennington, 61928

• Decision Date: 14 July 1981
• Docket Number: No. 2,No. 61928,61928,2
• Citation: 618 S.W.2d 614
• Parties: STATE of Missouri, Respondent, v. Edward H. PENNINGTON, Jr., Appellant
• Court: Missouri Supreme Court

Page 614

618 S.W.2d 614

STATE of Missouri, Respondent, v. Edward H. PENNINGTON, Jr., Appellant.

No. 61928.

Supreme Court of Missouri, Division No. 2.

July 14, 1981.

Rehearing Denied July 29, 1981.

Larmar Dye, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Mark W. Comley, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Edward H. Pennington was found guilty by a jury of robbery in the first degree and of armed criminal action, and he was sentenced to imprisonment for twelve years for each offense, the sentences to be served concurrently. Appellant challenges the validity of § 552.010-030 (all statutory references are to RSMo 1978). Appellate jurisdiction is in this Court. Art. V, § 3, Mo.Const.

The sufficiency of the evidence is not challenged, and therefore the pertinent facts will be briefly stated. On September 25, 1978, appellant entered the 7-11 Store at 3906 Central, Kansas City, Missouri and inquired about some Allerest tablets and chewing gum. He then pointed a gun at the clerk and told her to open the cash register and give him all the money. She opened the drawer to the register and stood back. Appellant took the money from the cash register, and in doing so he activated a surveillance camera. The next morning a police officer recognized appellant as the person in the picture taken by the camera. Appellant was taken into custody, and at a lineup the clerk at the 7-11 Store identified him as the robber.

Appellant was arraigned on November 2, 1978 and entered a plea of not guilty. More than six months later appellant filed an untimely (see § 552.030.2) written notice of his intention to rely on the defense of "mental disease or defect." A hearing was requested by the prosecutor at which appellant reported the result of a previously held private psychological examination in which Dr. Franklin C. Boraks determined that appellant was not a psychopath and did not have a mental defect. Appellant desired an opinion by a psychiatrist, and the trial court ordered a psychiatric examination be performed at Western Missouri Mental Health Center. The report was filed on July 11, 1979, and it stated that appellant had the capacity to proceed with the trial, and had no mental disease or defect at the time of the alleged offense. Based on this report the trial court held appellant to be competent to stand trial. Appellant's sole defense was alibi, and none of the witnesses testified that he had a "disability of mind" or a "mental disease or defect." See § 552.030.7.

The precise contentions in appellant's point are not easily determined. We shall set forth the material parts of the point, but in order to give portions of the point some meaning it is necessary to change some punctuation and add some words.

"The trial court erred in overruling appellant's motion to dismiss (which was) filed immediately before trial, at the close of State's evidence and at close of all evidence, and (in overruling his) motion for new trial, on grounds that the State's accusatory process fails to provide due process of law * * * in that the State's Chapter 552, (pertaining to) mentally ill persons in criminal cases(,) is unconstitutionally vague and does not apply the Disability of Mind definition of 'Mental disease or defect(,)' (w)hich * * * test is constitutionally certain(.) In each and every case where the State accuses a person of 'criminal offense' such as the instant case, (in order) to provide defendant with the due process of law and equal protection of the law required * * * (it is necessary) that the trial court (be) fully appraised of the constitutionally certain Disability of Mind test by being informed in appellant's motion for acquittal * * * that the State's evidence failed to afford three options to the jury. (1) Disability of Mind in the conduct in question(.) The defendant for the most part lacked the capacity for rational conduct in regard to the criminal significance of the act; (2) Partial Disability of Mind the defendant was for the most part rational but did not suffer a material lack of the kind; or (3) No Disability of Mind no material lack of rationality. The trial court erred in not instructing the jury as to the constitutionally certain Disability of Mind test as set out herein." (Emphasis in the appellant's brief.)

On November 25, 1980, this Court advised appellant's attorney that the above point did not comply with the rules in that it did not "briefly and concisely set out the rulings of the (trial) court which are sought to be reviewed as is required by Rule 30.06(d)." Counsel was directed to redraft the point. On December 12, 1980, appellant filed a "supplemental brief" in which he set forth what he termed "additional supplement to the points relied on." As far as correcting the noted deficiency, it added nothing to the original point, but it does include the statement by way of a conclusion that "(t)he listing of the criminal or antisocial acts makes Section (552.010) vague, unconstitutional, and chills defendants from the use of said Chapter 552." We shall, in a most liberal exercise of judicial discretion, review those contentions we are able to glean from the point and the "additional supplement" thereto. We consider these contentions to be presented:

1. Chapter 552, and particularly § 552.010 is unconstitutional because (a) it is vague, and (b) by listing in § 552.010 the "criminal or antisocial acts" it "chills" persons charged with a crime from the use of Chapter 552.

2. Chapter 552 does not apply the Disability of Mind definition of "mental disease or defect." ¹

3. It was a denial of due process of law and equal protection of the law for the court to fail to instruct the jury as to the Disability of Mind test.

We should first note that appellant filed a written notice, but out of time, of his intent to rely on "the defense of non-responsibility for any alleged criminal conduct because 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." At the request of the prosecution a hearing was held, and as a result the trial court ordered appellant be examined at the Western Missouri Mental Health Center. The findings of the examining doctor were that appellant "does not have a mental disease or defect," that he "has the capacity to understand the proceedings against him and to assist his attorney in his defense," and that "at the time of the alleged criminal conduct, (appellant) did not have a mental disease or defect, did appreciate the nature and quality of his actions and was capable of conforming his conduct to the requirements of the law."

Certain basic rules should be set forth before we attempt to evaluate appellant's contentions. The legislature is empowered to enact statutes defining criminal responsibility and standards for determination of legal insanity. Leland v. Oregon, 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1951); State v. McGee, 361 Mo. 309, 234 S.W.2d 587 (banc 1950); State v. Sturdivan, 497 S.W.2d 139, 143 (Mo.1973). Pursuant to this authority the legislature of Missouri has enacted Chapter 552, RSMo 1978, and particularly §§ 552.010, 552.020 and 552.030, adopted from A.L.I. Model Penal Code, but neither the Chapter nor the sections thereof refer specifically to any particular mental disease or defect, but they consider all classifications and symptoms of mental disease. State v. Sturdivan, supra; Missouri's Mental Responsibility Law, A Symposium, 19 Mo.Bar J. 683 (Mo.1963). A finding of competency to stand trial does not affect a defendant's ability or right to plead not guilty by reason of mental disease or defect, State v. Brizendine, 433 S.W.2d 321 (Mo. banc 1968), and even though the notice was untimely appellant can be considered to have entered such a plea in this case.

In his point, and in the argument under the point, appellant makes no attempt to demonstrate in what respect Chapter 552 is unconstitutionally vague. The doctrine of vagueness, as applied to the definition of crimes, is that the legislature must "inform the citizen with some degree of specificity just what acts are prohibited, thus affording an 'understandable rule of conduct.' " State v. Perkins, 380 S.W.2d 433, 434 (Mo.1964). See also State v. Smith, 431 S.W.2d 74 (Mo.1968). We doubt, however, that the vaugeness doctrine, at least as it is applied to statutes defining crimes, has any application to this case. Chapter 552 does not prohibit an accused from any conduct. It does prohibit the State from trying, convicting or sentencing any person who by reason of a mental disease lacks the capacity to understand the proceedings against him or to assist in his own defense, and as stated in Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103, 114 (1975), it "jealously guards" a defendant's right to a fair trial, and is "constitutionally adequate to protect a defendant's right not to be tried while legally incompetent." We find no merit to appellant's challenge to Chapter 552 on the ground of vagueness.

Appellant argues that he would have "spoken freely to the court (appointed) psychiatrist if (§ 552.010) had not chilled him by its vagueness, its reference to 'repeated criminal or otherwise antisocial conduct, whether or not such abnormality may be included under mental illness, mental disease or defect in some classification of mental abnormality or disorder.' " Appellant then argues that he was charged with two felonies, and had previously been convicted of robbery, and the "above definition" decides without a jury "that he cannot have the benefit of Chapter 552 even though the facts could be brought to a jury that would convince a jury by the preponderance of the evidence that he was not entitled to the benefit of the Durham rule." He concludes his argument by asserting, "(t)he Missouri statute is plainly...