State v. Pisha

• Citation: 674 S.W.2d 594
• Decision Date: 05 June 1984
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Donat Phillip PISHA, Appellant. 34946.
• Court: Missouri Court of Appeals

Page 594

674 S.W.2d 594

STATE of Missouri, Respondent, v. Donat Phillip PISHA, Appellant.

No. WD 34946.

Missouri Court of Appeals,

Western District.

June 5, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

July 31, 1984.

Joseph H. Locascio, Sp. Public Defender, John M. Torrence, Asst. Sp. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, C.J., and SHANGLER and NUGENT, JJ.

TURNAGE, Chief Judge.

Donat Pisha was found guilty by a jury of burglary in the first degree, and of armed criminal action by committing the felony of sexual abuse in the first degree through the use and aid of a dangerous instrument.

Pursuant to the jury's verdict the court imposed punishment at 5 years imprisonment for the burglary and 9 years for the armed criminal action with the two terms to run concurrently, but consecutively to a previously imposed 12 year sentence. Pisha contends the court erred: (1) in refusing to allow him to file a notice out of time of a defense of mental disease or defect; (2) in refusing to order a psychiatric examination; (3) in refusing a continuance; and (4) in instructing that the weapon carried by Pisha was a dangerous instrument. Affirmed.

In the early morning hours of September 11, 1981, a woman in Independence asleep on her front room couch was awakened by a man running his hand over her body. The man wore a ski mask and she was unable to recognize him. As the woman awakened, she screamed. She testified that the man then held a cold, heavy, blunt object to her temple and told her to be quiet. She stated that the object placed at her temple was round and that there was no doubt in her mind it was a gun. Shortly after the woman was awakened, one of her children woke up and started into the living room, whereupon the man fled through the front door.

Not long after the man had fled, the police arrested Pisha lying in a field a few blocks from the house. A car registered to Pisha was found about a block from the house.

After receiving the required warnings, Pisha made a statement in which he admitted entering the house and fondling the woman. In his statement Pisha said that he carried a BB pellet pistol which he described as a pistol type with a hand cock under the barrel.

Pisha led the officers to the point where he had discarded the ski mask and also to the point where he said he had discarded the pistol. The ski mask was found, but the pistol was never located.

Pisha was arraigned on October 22, 1981. On January 21, 1982, counsel filed a notice of intent to rely on the defense of mental disease or defect and a motion for a psychiatric examination. The state objected to both motions and the court held a hearing on all motions on January 28 prior to the trial which commenced on February 3. Counsel stated at the hearing that the motions had not been filed previously because of plea bargaining negotiations. Counsel stated that it was not until after those negotiations broke down, just a few days before the motions were filed, that Pisha told him that he had had mental problems several years earlier. The previous difficulty occurred in 1964 when Pisha and his wife were seen at Missouri Western Mental Health Center following his wife's suicide attempt. In 1967 Pisha himself attempted suicide but did not receive any psychiatric treatment.

The motion for leave to file notice to rely upon a defense of mental disease or defect did not state any cause for failure to file the motion at the time of the arraignment or within 10 days thereafter as required by § 552.030.2, RSMO 1978. ¹ The motion for mental examination was filed pursuant to § 552.020.2.

Pisha testified at the motion hearing that there were things going on in his mind that he did not have control over and that he did not understand why he had gone into the house and fondled the woman. He told the court that he had undergone a mental examination in connection with a rape charge in Benton County on which he was sentenced on October 8, 1981 and the psychiatrist had told him that he was not crazy. Pisha stated that he replied that he knew that he was not crazy because he had been managing 5 children for the last 4 years since his wife died.

At the conclusion of the hearing the court stated that it had observed and listened to Pisha and it was abundantly clear to the court that Pisha understood the proceedings and the charges against him and that he was able to assist his counsel. The court stated that it entertained no doubt that Pisha was competent to proceed.

After the court denied leave to file the late notice of intent to rely on the defense of mental disease or defect and did not grant the motion for a mental examination, counsel requested a continuance for the purpose of obtaining a psychiatric examination. The court denied this request.

The first claim of error relates of the failure of the court to allow the late filing of the notice to rely on the mental disease or defect defense. Section 552.030.2 requires that the notice that a person will rely on this defense be filed at the time the plea is entered, within 10 days after a plea of not guilty or at such later date as the court may permit for good cause shown. In State v. Holmes, 439 S.W.2d 518, 520[2-4] (Mo.1969), the court held that § 552.030.2 confers considerable discretion on the trial judge in passing upon a request to file the notice beyond the time allowed. In this case there is no showing of good cause for filing the notice beyond the time stated in the statute. The motion which was filed made no reference to any cause for its late filing. The evidence adduced at the hearing revealed that Pisha had undergone a mental examination within a short time prior to his arraignment and the entry of his plea of...