State v. Stein, 57265
| Decision Date | 14 January 1974 |
| Docket Number | No. 2,No. 57265,57265,2 |
| Citation | 504 S.W.2d 1 |
| Parties | STATE of Missouri, Respondent, v. Richard Lee STEIN, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
John P. Haley, Jr., Kansas City, for appellant.
HOUSER, Commissioner.
On August 31, 1971 Richard Lee Stein filed a notice of appeal from the judgment and sentence entered upon a jury verdict finding him guilty of assault with intent to kill with malice aforethought and fixing his punishment at 15 years' imprisonment.
Appellant's sole point follows:
Appellant was arraigned in circuit court on October 21, 1970. Appellant's privately employed attorney entered his appearance on the same day. On December 2, 1970 his counsel filed and on that day the court sustained a motion requesting an examination to determine his competence to stand trial and the existence or nonexistence of mental disease or defect. Except for unsworn statements of counsel and an observation by the trial judge made during the hearing on the motion for new trial, there is nothing of record to show that the examination was made, or that a medical report was filed with the court, as ordered, or what the examining physicians may have found. During that hearing, however, appellant's counsel made the statement that there was a medical examination pursuant to the court order and, without producing a copy of the report, stated that from the doctor's report 'obviously * * * there is considerable emotional disturbance.' The assistant prosecuting attorney stated that a mental examination was performed on March 12, 1971. The court stated that 'there was a previous mental examination,' and that the examinating doctor 'found that (appellant) was competent to proceed to trial and was mentally sound under the meaning of Chapter 552 at the time of the alleged crime * * *.' Appellant does not dispute the facts stated by the court.
On April 19, 1971 the case was set for trial in May and in May it was reset for trial on June 15. On the morning of June 15, before the trial commenced, appellant's counsel made an oral application for a continuance, not for any reason connected with his client's mental condition or fitness to stand trial, but on the ground of an absent witness. A hearing was held and testimony taken on the question of absent witness, but at no time prior to the commencement of the trial, or during the progress of the trial, did appellant personally or through his counsel suggest that his mental condition was such as to affect his ability to stand trial. In his motion for new trial appellant alleged that he applied for a continuance 'in order to secure an additional medical opinion relative to the appellant's mental condition and his fitness to stand trial,' but this allegation is not substantiated by the record of the pretrial proceedings, and the transcript does not show that evidence in support of this allegation was introduced at the hearing of the motion for new trial.
Appellant had nearly sixty days after the case was set for trial within which to obtain 'an additional medical opinion' but he failed to take the necessary steps to do so. If as appellant stated an examination in fact was made pursuant to court order and if as the trial judge stated the medical report showed that appellant was competent and mentally sound, there was ample time within which appellant could have...
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...v. Rand, 496 S.W.2d 30, 37 (Mo.App.1973); (7) claimed amnesia, State v. Gardner, 534 S.W.2d 284, 289 (Mo.App.1976). See also State v. Stein, 504 S.W.2d 1 (Mo.1974); Newbold v. State, 492 S.W.2d 809 (Mo.1973).14 Miller v. State, supra, 498 S.W.2d 79; McCarthy v. State, supra, 502 S.W.2d 397;......
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...such a waiver may be established by the informed personal express waiver of the accused. State v. Anderson, supra. Also see State v. Stein, 504 S.W.2d 1 (Mo.1974). The right to a mandatory competency hearing to proceed is likewise waived by failure to file a timely contest of the initial re......
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...fide doubt in the mind of the trial judge as to appellant's mental competency to stand trial. The point is without merit. State v. Stein, 504 S.W.2d 1 (Mo.1974); Maggard v. State, 471 S.W.2d 161 (Mo.1971); McCormick v. State, 463 S.W.2d 789 No error appearing, the judgment is affirmed. All ......
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State v. Wagner, 38935
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