State v. Strubberg, 62104

• Decision Date: 11 May 1981
• Docket Number: No. 62104,62104
• Citation: 616 S.W.2d 809
• Parties: STATE of Missouri, Respondent, v. Arthur F. STRUBBERG, Appellant.
• Court: Missouri Supreme Court

Page 809

616 S.W.2d 809

STATE of Missouri, Respondent, v. Arthur F. STRUBBERG, Appellant.

No. 62104.

Supreme Court of Missouri, En Banc.

May 11, 1981.

As Modified On Court's Own Motion.

Rehearing Denied June 8, 1981.

Frank K. Carlson, Public Defender, Union, for appellant.

John Ashcroft, Atty. Gen., Edward F. Downey, Asst. Atty. Gen., Jefferson City, for respondent.

WELLIVER, Judge.

Arthur Strubberg was convicted of assault with intent to kill with malice aforethought in violation of § 559.180, RSMo 1969, and sentenced to a term of thirty years imprisonment. ¹ On appeal, the Missouri Court of Appeals, Eastern District, affirmed his conviction. The case was transferred to this Court for the purpose of reexamining the existing law on the use of limiting instructions under Missouri's Mental Responsibility Law and instructions on lesser included offenses. Rule 83.03. We review as on original appeal. Mo.Const. Art. V, § 10; Rule 83.09.

Appellant contends that the trial court erred: (I) in failing to give MAI-CR 2.36; (II) in failing to instruct on the lesser included offenses of mayhem in certain circumstances and common assault, § 559.210, RSMo 1969, and § 559.220, RSMo 1969, respectively; (III) in failing to declare a mistrial for improper remarks by the prosecutor during closing argument; (IV) in refusing to allow certain questions on redirect; and (V) in admitting into evidence information gathered during a police interrogation when appellant had not been read his Miranda rights immediately prior to the interrogation. We agree with the court of appeals that appellant's conviction should be affirmed.

On February 11, 1977, Josephine Noelker drover her car to a park in Union, Missouri, to eat lunch. She was seated on the driver's side of the front seat when appellant opened the door of her car, held the cutting edge of a knife to her throat, and said, "Don't scream, I've got a knife, I'll stab you." Appellant got into the car and attempted to climb over Mrs. Noelker to sit in the passenger's seat. As he was making this move, it was necessary to remove the knife from Mrs. Noelker's neck, and she escaped. Appellant subsequently was arrested and given his Miranda warnings, which he said he understood. He confessed the attack on Mrs. Noelker to Officer Brune. Officer Brune testified appellant told him his reason for committing the attack was "seeing blood in his mind" and "feeling that he had to kill somebody." Appellant pled not guilty at his arraignment. These facts are not in dispute. Appellant concedes in his brief that "(d)efendant's capacity to form the intent to kill ... was the only real factual issue in the case...."

I

Prior to trial, on motion made pursuant to § 552.020.2, RSMo Supp.1975, appellant was granted a court ordered psychiatric examination to determine his fitness to stand trial. The report of Dr. Crane, the examining psychiatrist, shows: (1) that appellant suffers from mild retardation that has existed since birth; (2) that appellant understands the proceedings against him and is able to assist in the preparation of his defense; and (3) that appellant knew and appreciated the nature, quality, and wrongfulness of his conduct and was capable of conforming his conduct to the requirements of law.

At trial appellant called Dr. Crane as his sole witness in an attempt to prove "diminished mental capacity" or "partial responsibility." ² On direct, Dr. Crane testified in more detail regarding his examination and the conclusions reflected in his report. He said that appellant suffered from the mental defect of mild retardation, that he had received very little supervision as he was growing up, and that he had a history of drinking, stealing, firesetting, and fighting. Dr. Crane testified that it was his opinion that appellant at times acted out of impulse, and when doing so thought little about the consequences of his acts before he did them. While defense counsel was able to get the psychiatrist to say that it was his impression that appellant "did not have that intent (to kill)", on cross examination the doctor reiterated the opinion expressed in his report that appellant did "know and appreciate the nature, quality and wrongfulness of his conduct and was capable of conforming his conduct to the requirements of law." Appellant now contends that pursuant to § 552.030.6, RSMo 1969, the jury should have been instructed that the information Dr. Crane received during his examination was "admitted solely on the issue of the mental condition of the defendant at the time of the offense charged against him ... (and should not be used) as evidence that defendant did or did not commit the acts charged against ... (him)." MAI-CR 2.36. Appellant neither offered nor requested MAI-CR 2.36 at the time of trial and now contends that the giving of the instruction was mandatory.

In order to rule upon appellant's contention, it is necessary to examine all relevant sections of our Mental Responsibility Law relating to court ordered examinations, including the historical background of these sections.

The Missouri Mental Responsibility Law was for the most part patterned after the Model Penal Code (1962). See State v. Anderson, 515 S.W.2d 534, 538 (Mo. banc 1974); Richardson, Reardon, & Simeone, Missouri's Mental Responsibility Law, A Symposium, 19 J.Mo.Bar 645 (1963).

Missouri's Mental Responsibility Law, like the Model Penal Code, makes provision for two types of pre-trial, court ordered psychiatric examinations. Missouri provides for these examinations in § 552.020.2, RSMo Supp. 1975, (hereinafter referred to as an ".020 examination") and § 552.030.4, RSMo 1969, (hereinafter referred to as an ".030 examination"). The purpose of the .020 examination is to determine the fitness of the accused to stand trial. The purpose of the .030 examination is to help determine the availability to the accused of the defense of not guilty by reason of mental disease or defect which will excuse responsibility for the acts charged.

The .020 examination is ordered almost as a matter of routine upon request of the state or the accused or upon the trial court's own motion. See Bryant v. State, 563 S.W.2d 37 (Mo. banc 1978). The .030 examination is only ordered upon motion of the state or the accused after the accused has chosen to rely on the defense of not guilty by reason of mental disease or defect excluding responsibility for the acts charged. Sections 552.030.2, RSMo 1969, and § 552.030.4, RSMo 1969, require that the defendant do one of two things before a motion for an .030 examination can be granted. The defendant must either, (1) at the time of pleading enter a plea of not guilty by reason of mental disease or defect excluding responsibility; or, (2) within ten days after a plea of not guilty or in the trial court's discretion at a later date after good cause is shown, file a written notice of an intention to rely on such defense. The state may accept the plea, thereby triggering treatment procedures contained in § 552.040, RSMo 1969, or the state may refuse to accept the plea. If the state refuses to accept the defendant's not guilty by reason of mental disease or defect plea, then the trial court is required to order the .030 examination upon the motion of either party ³ to help determine the availability of the defense of not guilty by reason of mental disease or defect excluding responsibility for the acts charged.

The Model Penal Code has but a single section, § 4.09, dealing with the admissibility of information received during either the .020 type examination or the .030 type examination. It is in substantially the same form as § 552.030.6, RSMo 1969, upon which appellant relies.

In this respect, our legislature deviated from the format of the Model Penal Code and created two separate sections relating to admission of evidence obtained by the physician during these examinations. In the section relating to the .020 examination, § 552.020.9, RSMo Supp.1975, ⁴ the General Assembly provided and stated in part:

No statement made by the accused in the course of any examination or treatment pursuant to this section and no information received by any physician or other person in the course thereof, ... shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding then or thereafter pending in any court, state or federal.

(Emphasis added.) In the section relating to the .030 type examination, § 552.030.6, RSMo 1969, the General Assembly provided and stated in part:

No statement made by the accused in the course of any such examination and no information received by any physician or other person in the course thereof, ... shall be admitted in evidence against the accused on the issue of whether he committed the act charged against him in any criminal proceeding then or thereafter pending in any court, state or federal. The statement or information shall be admissible in evidence for or against him only on the issue of his mental condition, whether or not it would otherwise be deemed to be a privileged communication. If the statement or information is admitted for or against the accused on the issue of his mental condition, the court shall both orally at the time of its admission and later by instruction inform the jury that it must not consider such statement or information as any evidence of whether the accused committed the act charged against him.

(Emphasis added.)

The .020 examination is ordered solely for the purpose of determining fitness of the defendant to stand trial. The public policy against subjecting to trial those who are by reason of mental disease or defect unfit to stand trial is based as much on the interest of the state (the people) as it is on the interest of either of the parties to the trial itself. The examination is directed primarily at the condition of the accused at time of trial. The condition of the accused at the time of the acts charged is no more...