State v. Raine, WD

• Decision Date: 10 March 1992
• Docket Number: No. WD,WD
• Citation: 829 S.W.2d 506
• Parties: STATE of Missouri, Respondent, v. Robert David RAINE, Appellant. Robert David RAINE, Appellant, v. STATE of Missouri, Respondent. 41793.
• Court: Missouri Court of Appeals

Page 506

829 S.W.2d 506

STATE of Missouri, Respondent, v. Robert David RAINE, Appellant.

Robert David RAINE, Appellant, v. STATE of Missouri, Respondent.

No. WD 41793.

Missouri Court of Appeals,

Western District.

March 10, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

June 2, 1992.

David S. Durbin, Appellate Defender, Anthony C. Cardarella, Asst. Appellate Defender, Office of State Public Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Joan F. Edwards, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, P.J., and FENNER and BRECKENRIDGE, JJ.

BRECKENRIDGE, Judge.

Robert Raine appeals from his conviction for burglary in the first degree, § 569.160, RSMo 1986, burglary in the second degree, § 569.170, RSMo 1986, and forcible rape, § 566.030, RSMo 1986, for which he was sentenced to six years, ten years and thirty years respectively. ¹ He also appeals the denial of his motion for post-conviction relief after an evidentiary hearing. These appeals have been consolidated in the instant action. The judgment of the trial court is affirmed. The judgment of the motion court is affirmed.

Raine presents the following points in his direct appeal, alleging that the trial court erred in: (1) finding him competent to proceed to trial because the court-ordered examination did not include an electroencephalogram (EEG) or a CAT scan; (2) sustaining the State's objection to the defense's offer of proof as to medical records concerning Raine's childhood injuries suffered as a result of an automobile accident and as to testimony from family of Raine's abnormal behavior and their opinions that Raine suffered from a mental disease or defect; (3) overruling his motion to dismiss for lack of a speedy trial; and (4) overruling his motion for judgment of acquittal as the evidence was insufficient as a matter of law to support his conviction. In his appeal of the denial of his motion for post-conviction relief, Raine contends that the hearing court erred in not making a finding sua sponte that he suffered ineffective assistance of counsel because trial counsel failed to request a continuance so as to seek public funds to conduct a neurological examination of Raine.

Raine was originally charged by indictment with the commission of eleven offenses. His motion to sever was granted and the court ordered that count I, rape; count II, first degree burglary; count VII, felony stealing; and count VIII, burglary in the second degree; be tried together.

On November 8, 1986, Raine noticed an open window in an apartment building. He entered the apartment. Although no one was home at the time, three women resided at the apartment. Raine searched through the three bedrooms, taking various articles of clothing. He left the apartment through a sliding glass door, leaving it unlocked, and took the clothing home and put it away.

A.P., one of the women living at the apartment, returned to the apartment at approximately 11:15 p.m. She turned on the light in the living room and locked the front door. She then retired for the evening, falling asleep about midnight.

Raine returned to the apartment in the early morning hours, entering through the sliding glass door which he had left unlocked. A.P. awoke, saw a figure standing by her bed and began to scream. Raine placed his hand over her mouth, pushing her head down into the pillow. He told her to be quiet so she would not get hurt. Raine removed A.P.'s underwear and assisted A.P. in the removal of her sweatshirt. A.P. told Raine that a roommate and her boyfriend would be home soon in an attempt to get him to leave. Raine told her to get up. He walked her to the bedroom door and closed the door. After the door was closed he walked her back to her bed. He made her lie down next to the bed, then he tried to penetrate her but failed.

Raine asked A.P. questions about her boyfriend and other sexual matters. He also asked whether she had pants or a skirt and told her, "You're going outside with me." She refused. During the time Raine was questioning A.P. he was trying to achieve an erection. Finally succeeding, he raped A.P.

After completing the act, Raine told A.P. that she would be going outside with him. She refused and told him to leave, stating that she wouldn't tell anyone. He left while she was talking. She discovered that the sliding glass door was open. After telephoning her mother, A.P. immediately called 911.

Raine returned to the apartment on November 11, 1986, entering through the bathroom window. He stole some dirty underwear, a photograph of A.P. and some other items of clothing.

On November 21, 1986, Raine was interviewed by Detective Frank Mazzuca, a member of the Kansas City Police Department. Detective Mazzuca advised Raine of his Miranda rights. Raine signed a waiver of those rights and thereafter confessed to the crimes which are the subject of this appeal.

Raine went to trial on January 23, 1989. At that trial A.P. testified, detailing the circumstances of the rape. She was not able to identify Raine as the room was dark and her assailant was behind her. Physical evidence was also introduced at the trial and Raine's confession was entered into evidence. The jury found him guilty of first degree burglary, rape and burglary in the second degree. He was acquitted of felony stealing. Raine filed a pro se Rule 29.15 motion for post-conviction relief on January 25, 1990. Counsel was appointed and an amended motion was filed on March 26, 1990. After an evidentiary hearing, the 29.15 motion was denied. Raine appeals from his conviction and from the denial of his 29.15 motion.

In his first point on direct appeal, Raine alleges that the trial court erred in finding him competent to stand trial as no EEG or CAT scan was performed during his competency examination. Raine entered the dual plea of not guilty and not guilty by reason of mental disease or defect. Pursuant to § 552.020, the trial court ordered a mental examination to determine Raine's competency. Raine then filed a motion for a physical examination. In its order granting Raine's motion, the trial court pointed out that no neurological testing had been performed. The court then ordered "that the Director of the Department of Mental Health, or his designee, conduct neurological testing of defendant."

During a hearing on the competency motion, Dr. Stephen Mandracchia, a clinical psychologist with the Missouri Department of Health, testified that he had Raine perform the Halstead-Reitan Neuropsychological Testing battery. This is a seven or eight hour test battery which primarily tests cognitive intellectual type functions, but also tests motor type functions to assess neurological or neuropsychological difficulties. Dr. Mandracchia found that Raine did not suffer from any neurological or neuropsychological defects. This was the consensus of the experts who testified.

Doctor Enrique Vera, a physician certified by the American Board of Psychiatry and Neurology, conducted a neurological examination of Raine which consisted of an interview and asking Raine to perform certain tasks. He testified that he did not perform a CAT scan or EEG because Raine had no neurological or neuropsychological defects. He explained that "[t]here was no indication or hint of any symptom that E.E.G. could answer. The same thing would go for the brain scan."

Doctor Syed Shabbir, a psychiatrist who testified at Raine's motion for additional medical examination, stated that he had interviewed Raine and reviewed his records, including reports on social history, mental evaluations, medical evaluations and a report of a previously administered EEG. Dr. Shabbir asked Raine questions about the role of the defense, the prosecution and the judge. Raine responded appropriately to all of those questions.

Raine suggests that his indigence prevented him from employing independent experts. He further claims a "disingenuous effort" on the part of the trial court in that its failure to require a CAT scan and EEG was the equivalent of a denial of the appointment of an expert physician to examine Raine, and is a violation of his equal protection rights. Raine places great significance on his claim that the trial court ordered the performance of a CAT scan and an EEG, and then failed to "use the full power and authority of the law to see that its directives [were] obeyed." The language of the trial court's order was that neurological testing of Raine be conducted, not that any specific neurological test be performed. Even assuming arguendo that the trial court originally intended a CAT scan or an EEG be performed pursuant to its order, the trial court was free to reconsider its ruling on Raine's Motion for Special Order Requiring Physical Examination of Defendant and could, at any time before final judgment, amend or vacate its interlocutory order. Around The World Importing, Inc. v. Mercantile Trust Co., 795 S.W.2d 85, 88 (Mo.App.1990).

In this appeal, Raine does not assert that he lacked any capacity to understand the proceedings or to assist in his own defense. He merely asserts that additional testing should have been performed, an assertion at odds with the testimony of the experts. The record reflects that the requirements of § 552.020 were met and that there was no error even if the trial court reversed its original order to conduct further testing. Raine was examined by three experts, a clinical psychologist, a psychiatrist and a physician certified by the American Board of Psychiatry and Neurology. Raine was tested extensively through interviews, neurological examinations, reviews of prior medical and social history, and by the Halstead-Reitan Neuropsychological testing battery. No further testing would have been useful. Raine's Point I is denied.

The next argument that Raine makes concerning his direct appeal is that the trial court erred in sustaining the State's objection to a defense offer of p...