State v. Purnell

• Decision Date: 08 September 1981
• Docket Number: No. 1,No. 62019,62019,1
• Citation: 621 S.W.2d 277
• Parties: STATE of Missouri, Respondent, v. Maurice PURNELL, Appellant
• Court: Missouri Supreme Court

Page 277

621 S.W.2d 277

STATE of Missouri, Respondent, v. Maurice PURNELL, Appellant.

No. 62019.

Supreme Court of Missouri, Division No. 1.

Sept. 8, 1981.

Rehearing Denied Oct. 13, 1981.

Doris Gregory Black, St. Louis, for appellant.

John C. Reed, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Appellant, Maurice Purnell, was found guilty by a jury of rape (for which he was sentenced to life imprisonment), robbery in the first degree (for which he was sentenced to life imprisonment), and of operating a motor vehicle without the consent of the owner (for which he was sentenced to imprisonment for five years, all terms to run consecutively). On this appeal appellant does not challenge the sufficiency of the evidence as to any of the charges. Therefore, we need not set forth the evidence in detail.

A jury reasonably could find from the evidence that about 6:15 o'clock in the morning of September 2, 1978, while the prosecutrix was driving to work and was stopped for a traffic light, appellant entered her automobile, robbed her of all the money she had in her purse, repeatedly hit and struck her, threatened to kill everyone in her family if she did not cooperate and to injure her seriously if she looked at him, and then after driving to another location he raped her. He then had a bowel movement and rubbed some of the feces on her and her clothing.

Appellant's first point is that the trial court "abused its discretion" in excluding "material parts of appellant's expert psychiatrist's testimony that would have indicated that because of the bizarre manner in which the assailant conducted himself during the course of the rape, i. e. smearing (his own) feces on (the) victim and in her panty hose, said assailant definitely exhibited a psychotic breakdown and was psychotic." Appellant asserts that such evidence was "probative and relevant" because when the qualified psychiatrist previously examined appellant he found him "not psychotic."

Prior to trial the public defender's office filed a motion for a mental examination of appellant, and such examination was conducted by Dr. Sadashir Parwatikar, an employee of the Department of Mental Health who was a consultant for forensic psychiatry. As the result of that examination the doctor concluded that appellant was not suffering from a mental disease or defect within the meaning of Chapter 552 RSMo 1978; that he understood the charges against him and was competent to assist his attorney in his defense; that he appreciated the nature, quality, and wrongfulness of the alleged offense; and that he was capable of conforming his conduct to the requirements of the law. In his report filed with the court, under the sub-heading "Discussion," the doctor stated: "Actions of defecating and smearing feces over the victim's clothes along with stuffing pants in his trousers is indicative of serious psychotic breakdown. However, there is no evidence of any psychotic breakdown in the life of Mr. Purnell." The only information had by the doctor of this conduct at the time he made his report was obtained by reading the police report, which was not introduced in evidence.

After the State closed its case and appellant's counsel had made an opening statement, Dr. Parwatikar was called as a witness, presumably by appellant but the direct examination was by the State. He testified out of the presence of the jury that he had made an examination of appellant and had filed his report with the court, but that in doing so he had not interviewed the prosecutrix or any witness. On cross-examination he testified as to his qualifications, and that over the previous five years he had made "about five hundred evaluations." The court stated that it understood what appellant's counsel proposed to do with the doctor, but suggested that she "make a record." Counsel then stated she wanted to call the doctor to testify (after certain basic conditions were met) "what his conclusions were based upon any degree of medical certainty as to the type of behavior that was committed in this particular instance." The prosecutor objected because the doctor was "not an expert in rape," was not present when the rape occurred, has not interviewed the witnesses, and, as stated by the prosecutor, "I believe it is negative evidence."

The court ruled that not "enough foundation has been laid at this time to admit this testimony," but it gave no indication of what it considered to be missing, and then ruled that "more importantly, * * * there is no issue raised as to (appellant's) sanity in this lawsuit," and "the question before this jury is whether or not he is the man who committed this crime, and to allow an expert witness to testify to a conclusion based upon an initial police report * * * invades the province of the jury to make a determination, and for those reasons I am going to sustain the State's objection." Appellant then asked if the court was ruling that Dr. Parwatikar could not testify at all, and the court replied that he could testify "but as to a question of whether this defendant is guilty of this crime because the person who committed it, based on that report, is psychotic, I would sustain the State's objection to that." Appellant's counsel then commented that she had not asked the doctor, and he had not indicated that he would say that appellant did not commit the offense, but he "can only say (that) when he observed (appellant, he) did not exhibit any psychotic traits * * *." Appellant's counsel then made what she termed an "offer of proof" that Dr. Parwatikar would testify (1) that he examined appellant; (2) that he was aware of the statements in the police report and that in at least 500 examinations the use of the police report was the way he determined the facts of a crime; (3) that the police report showed that the robbery and rape occurred and that feces was spread over the prosecutrix; (4) that such behavior was "psychotic behavior on the part of the person who was perpetrating it;" and (5) that in June of 1979 he examined appellant and found him not to be psychotic and had no history of psychotic behavior.

Dr. Parwatikar was then called as a witness by appellant. He testified before the jury as to his qualifications and that he had examined appellant with the result shown in his report. He was then asked this hypothetical question:

"If you will, assume, and I pose it hypothetically, that on a certain date in 1978 a woman is driving her car and is stopped at a red light; assume further that a subject who this woman does not know opens her car door without her consent, forces her into the car and drives her car against her will, okay. Assume further this subject drives this woman to another location in an area that she is not aware of, where the car is parked; that the subject forces this woman to walk down a hill and into a certain wooded area, and that a sexual act is committed upon this woman. Assume further that the person who commits this act has a bowel movement, either during or after that act, and smears that movement upon this young woman, all right. Assume all those facts, Dr. Parwatikar, and I would like you to indicate whether or not you have, or can you state with any degree of medical certainty whether or not the individual who performed or committed this act had a mental disease or mental illness."

The State's objection, which was sustained, was that the question calls "for a conclusion not based on what this particular witness can testify to."

We experience considerable difficulty in reducing this contention to a reviewable status. At no time during the discussion between counsel and the court did appellant state the purpose of the proposed testimony. In his brief to this court he states for the first time that "it goes to the identity of the assailant," citing State v. Terry, 582 S.W.2d 337 (Mo.App.1979), which we consider to be contrary to his contention. We can surmise that perhaps appellant wanted to use this testimony as the basis to argue that he could not have been the assailant because the assailant was psychotic and he was not. However, if so, that reason was never communicated to the court. In fact, the discussion between counsel and the court indicates that the purpose was to show appellant was psychotic, and it is evident that the court had that impression. Since appellant did not enter a plea of not guilty by reason of "mental disease or defect" such evidence was not admissible for that purpose. Section 552.020.1 RSMo 1978.

Generally speaking the admission or rejection of expert testimony such as we have here is a matter resting in the discretion of the trial judge. State v. Pinkus, 550 S.W.2d 829, 840 (Mo.App.1977). In view of what we consider to be inadequate presentment of the purpose of the interrogation, and the understandable position taken by the trial court, we cannot hold as a matter of law that the court abused its discretion in sustaining an objection to the hypothetical question.

By his second point appellant asserts prejudicial error resulted when the trial court overruled his objection to the "testimony of State's expert (witness) Paul English" because it related to an exhibit which had not been disclosed to appellant, and because the failure to disclose the exhibit "impeded (appellant) in trial preparations."

At the time appellant was arrested impressions of his fingerprints were taken and placed on what is referred to as an identification card which was later used to identify a latent print found on the automobile of the prosecutrix as being a print of the left index finger of appellant. Prior to trial appellant requested the State to disclose any "reports or statements of experts * * * including results * * * of scientific tests, experiments, or comparisons." In response, the State furnished appellant the report of its expert witness, Paul English, in which he stated that the latent fingerprint which was taken...