State v. Thomaston, No. WD

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMANFORD
Citation726 S.W.2d 448
PartiesSTATE of Missouri, Respondent, v. Michael L. THOMASTON, Appellant. 38235.
Docket NumberNo. WD
Decision Date10 March 1987

Page 448

726 S.W.2d 448
STATE of Missouri, Respondent,
v.
Michael L. THOMASTON, Appellant.
No. WD 38235.
Missouri Court of Appeals,
Western District.
March 10, 1987.

Page 450

Paul T. Miller, Kansas City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, P. Ann Dirks, Asst. Atty. Gen., Kansas City, for respondent.

Before PRITCHARD, P.J., and MANFORD and BERREY, JJ.

MANFORD, Judge.

This is a civil proceeding initiated by appellant pursuant to § 552.040, RSMo Supp. 1984, seeking alternatively an unconditional or conditional release from the care, custody, and control of the Missouri Director of Mental Diseases. The circuit court entered its judgment in order form, denying both an unconditional and conditional release. The judgment is affirmed.

While appellant formally presents five points, because of their similarity and repetition, they can be reduced to three. In summary, it is charged the circuit court erred (1) in considering the transcript of a hearing in the Circuit Court of Buchanan County, Probate Division, in violation of appellant's rights under the 5th, 6th, and 14th Amendments of the United States

Page 451

Constitution; (2) in taking judicial notice of the transcript of the hearing in the Probate Court of Buchanan County; and (3) in giving consideration to the transcript of the proceedings in Buchanan County, in finding that the testimony of two witnesses was not credible, and in failing to place the burden of persuasion on the party opposing appellant's application for release.

The pertinent facts are as follows:

Appellant was originally charged with three counts of murder, second degree. He was found not guilty by reason of mental disease or defect. Appellant was committed to the care, custody, and control of the Missouri Director of Mental Diseases on July 15, 1980, pursuant to § 552.040.1, RSMo Supp. 1980 by the Circuit Court, 16th Judicial Circuit. On September 4, 1985, appellant filed an application in the alternative for an unconditional or conditional release. On September 10, 1985, he filed an amended application for alternative release. An objection to his release was filed by the prosecutor of Jackson County on September 6, 1985. A hearing was held on September 26, 1986 in the Circuit Court of Jackson County. The matter was continued pending action on a motion for a mental examination filed by the prosecutor of Jackson County. The order for the mental examination was issued on October 4, 1985. At the hearing, the state was represented by an assistant prosecutor. Appellant appeared with counsel. Appellant produced two witnesses, Michael Crampton and Dr. Pu Shu. Crampton was appellant's "team psychologist". Shu was appellant's treating psychiatrist. Crampton testified he recommended a conditional release. He testified that he never recommended an unconditional release. When examined by the trial court, the following was disclosed:

EXAMINATION BY THE COURT:

Q. In your review of the records, are you aware that every prior hearing about release that the Department of Mental Health has stated that the defendant is a danger to himself or to the community?

A. In my reading of the records, they assess him as a characterlogical order sociopathic, and therefore potentially dangerous. In my opinion that may very well be the case; but in character disorders the learning theory can--he learned to behave that way, he can unlearn it; in my opinion, he's in that process now.

Q. My second question is: In your experience how many people, who have been found not guilty of murder by reason of insanity have you recommended be released?

A. In the court situation, or is it--well, in the two and a half years that I have been involved at St. Joseph's State Hospital, we have had approximately five people go to court that have that similar background. Of those five I believe I recommended two people.

Crampton also testified to appellant's "low frustration tolerance." Crampton stated that such a condition is a learned condition which can be unlearned and that appellant was in the process of "unlearning" this condition. Crampton acknowledged appellant's recent confrontation with other patients and stated that appellant had reported the matter to hospital personnel rather than taking action on his own.

The Crampton testimony was followed by that of Dr. Shu. At the time of the hearing, Shu stated that he had been appellant's treating psychiatrist for some three months. Shu also supported a conditional release. Shu stated that he had observed no aggressive behavior by appellant. Shu admitted that appellant's diagnosis disclosed an anti-social characterlogical disorder. Shu was then asked to relate his opinion about appellant's future behavior, and the following is what the record discloses:

A. Yes. We have difficulty like a question for the future; and we always think so far for the--my experience with him, he was able to contain in peaceful way, you know, to deal with the problems.

My predicition [sic], if he's not drinking too much, or drinking or us[ing] drugs and if very good supervision by the staff of the boarding home, he might be all right.

Q. You say he might be all right?

A. Yeah.

Page 452

Q. There are no guarantees in this; is that correct?

A. Yeah; this is a part of everybody. I cannot guarantee everybody.

Then Shu was asked about the problem of drugs and/or alcohol in the placement program, and he admitted that he did not know if drugs and alcohol were a problem in the program. The trial court then asked Shu some questions, and the record reveals the following:

Q. Is it your recommendation--

A. Uh-huh.

Q. --that michael thOmaston Be given a conditional release?

A. No; we're not giving, we only suggest. We thinking he does not need to be in-patient treatment, his condition should be trial less restrictive environment, such as boarding home like by the team. We have doctors, psychologists, social worker, nurse and activity therapist, together, discuss that to see which way to go would be the best. Maybe, yeah.

Do you have other kind of question to this area?

Q. I'm not sure about two things.

A. Okay.

Q. First of all, I'm not sure if you have an opinion that this man is not likely to commit a crime against others, or that he's not a danger to himself or others.

A. No. At this present time I don't see any sign of dangerousness. That's why we try to place out in less restrictive environment. We educated a guess he's going to be all right with supervision; that's the plan.

Step by step to be less restrictive and he still have people observe him and supervise him. So that's the plan.

Q. So you do not consider that as a conditional release?

A. That's a conditional release.

Q. And you are recommending that?

A. Yes. That's why we are recommending that; yes.

Now, if he's not need to be in the hospital, should be, we call the--leave the hospital and still have the--still have the hospital staff, we have a community placement program, one unit to deal with the patient, visit to different nursing home and boarding home to check them psychiatrically, medically and physically, you know.

Q. And you, yourself, are not part of that program--

A. Yeah.

Q. --whatever it is in the community, are you?

A. No, because I'm folks of the in-patient; that's all.

THE COURT: Okay. I don't have any further questions.

At this point, the evidence ceased. The prosecutor made an oral motion for an independent mental examination, which the court, over appellant's objection, granted. The court also made the following observation:

THE COURT: I think [the mental exam] it's absolutely in order.

I don't mind saying in the presence of everyone here that the Court has considerable difficulty with the testimony of these two witnesses.

I cannot find, based on this testimony, a justification for the conditional release. And--and I'm going to sustain the prosecutor's motion for the additional examination.

And I'm going to take this matter under advisement pending further information; and the defendant is remanded to custody pending further ruling by the Court.

The record reflects that the independent mental examination was conducted, there is nothing to reveal whether the trial court ever viewed this report prior to its order judgment of March 7, 1986. 1 The trial court entered the following order denying appellant's request:

Page 453

ORDER

This Court having reviewed the testimony heard on September 25th in this Court and the transcript of the hearing in the Circuit Court of Buchanan County, Missouri, Probate Division on the 19th of December, 1985, this Court finds that there has not been any change in defendant's mental condition that would justify his being released. The Court further finds that the testimony of witnesses, Dr. Shu and Michael Cramton [sic], is not credible and non-persuasive.

WHEREFORE, defendant's motion for conditional or unconditional release is overruled.

Dated this 7th day of March, 1986.

This appeal followed.

On this appeal, appellant's position can be summed up as follows: Appellant contends that the trial court erred in finding the testimony of Crampton and Shu as not credible and nonpersuasive. Appellant further charges that the trial court erred in reviewing the transcript of a separate proceeding conducted in the Probate Court of Buchanan County (hearing held December 19, 1985). Appellant then asserts that the trial court failed to apply § 552.040 properly regarding the burden of proof required of the prosecutor who opposed appellant's release.

In his first argument, appellant simply asserts that the testimony of Crampton and Shu was sufficient to support a grant of his release. In his second argument, appellant asserts an impropriety by the trial court in reviewing the proceedings of another circuit court (probate division). In his third argument, appellant asserts that the trial court failed to apply the applicable statutory law.

Each of these arguments are taken up and...

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17 practice notes
  • State v. Jessie, No. 34589.
    • United States
    • Supreme Court of West Virginia
    • November 24, 2009
    ...trial under the Sixth Amendment begins to run from the time of the indictment or information or an arrest, whichever occurs first.'" 726 S.W.2d at 448, quoting State v. Holmes, 643 S.W.2d 282, 285[3] (Mo.App. 1982); see also United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 71 L.Ed......
  • MISSOURI REAL ESTATE COM'N v. Rayford, No. WD 70723.
    • United States
    • Court of Appeal of Missouri (US)
    • April 13, 2010
    ...... can be enacted. This area of the law makes use of the terms ex post facto, retrospective and retroactive." State v. Thomaston, 726 S.W.2d 448, 459 (Mo.App. W.D.1987). There is a distinct and legally material difference in the meaning of these terms, though the terms are often misused by......
  • Jones by Williams v. Missouri Dept. of Social Services, No. 72304
    • United States
    • Missouri Court of Appeals
    • March 17, 1998
    ...attach new disabilities to past transactions and impair its vested rights in violation of Missouri's Constitution. State v. Thomaston, 726 S.W.2d 448, 459 (Mo.App.1987). We Article 1, Section 13 of the Missouri Constitution provides "no ex post facto law, nor law ... retrospective in its op......
  • Pierce v. State, Dept. of Social Services, No. WD
    • United States
    • Missouri Court of Appeals
    • May 26, 1998
    ...amendments do not apply, however, to any part of a proceeding completed prior to the effective date of the amendment. State v. Thomaston, 726 S.W.2d 448, 462 (Mo.App.1987). "[T]he steps already taken, the status of the case as to the court in which it was commenced, the pleadings put in, an......
  • Request a trial to view additional results
17 cases
  • State v. Jessie, No. 34589.
    • United States
    • Supreme Court of West Virginia
    • November 24, 2009
    ...trial under the Sixth Amendment begins to run from the time of the indictment or information or an arrest, whichever occurs first.'" 726 S.W.2d at 448, quoting State v. Holmes, 643 S.W.2d 282, 285[3] (Mo.App. 1982); see also United States v. MacDonald, 456 U.S. 1, 7, 102 S.Ct. 1497, 71 L.Ed......
  • MISSOURI REAL ESTATE COM'N v. Rayford, No. WD 70723.
    • United States
    • Court of Appeal of Missouri (US)
    • April 13, 2010
    ...... can be enacted. This area of the law makes use of the terms ex post facto, retrospective and retroactive." State v. Thomaston, 726 S.W.2d 448, 459 (Mo.App. W.D.1987). There is a distinct and legally material difference in the meaning of these terms, though the terms are often misused by......
  • Jones by Williams v. Missouri Dept. of Social Services, No. 72304
    • United States
    • Missouri Court of Appeals
    • March 17, 1998
    ...attach new disabilities to past transactions and impair its vested rights in violation of Missouri's Constitution. State v. Thomaston, 726 S.W.2d 448, 459 (Mo.App.1987). We Article 1, Section 13 of the Missouri Constitution provides "no ex post facto law, nor law ... retrospective in its op......
  • Pierce v. State, Dept. of Social Services, No. WD
    • United States
    • Missouri Court of Appeals
    • May 26, 1998
    ...amendments do not apply, however, to any part of a proceeding completed prior to the effective date of the amendment. State v. Thomaston, 726 S.W.2d 448, 462 (Mo.App.1987). "[T]he steps already taken, the status of the case as to the court in which it was commenced, the pleadings put in, an......
  • Request a trial to view additional results

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