State v. Thompson

• Decision Date: 30 July 1985
• Docket Number: No. 13728,13728
• Citation: 695 S.W.2d 154
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Frank THOMPSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 154

695 S.W.2d 154

STATE of Missouri, Plaintiff-Respondent, v. Frank THOMPSON, Defendant-Appellant.

No. 13728.

Missouri Court of Appeals,

Southern District,

Division Two.

July 30, 1985.

David Robards, Public Defender, Joplin, for defendant-appellant.

William L. Webster, Atty. Gen., Mark A. Richardson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

MAUS, Judge.

A jury found the defendant guilty of second degree burglary. As a persistent offender, he was sentenced to imprisonment for 12 years. The case is unusual in two respects. First, the burglary was observed by three eyewitnesses. Second, the defendant has invoked the doctrine of diminished capacity as a defense to burglary. The following is a brief summary of the facts the jury could have found from the testimony.

On July 18, 1983, the defendant was in the Pub Bar in Joplin. The bar was across the street from Baum's Boot Store. The defendant told another bar patron, who was drinking with him, that he was going to break into the boot store and get a pair of boots. In a joking manner, the patron told the defendant to get her a pair. The bar patron related defendant's intention to the bartender, who had just served the defendant a drink. The defendant left the bar and crossed the street. He entered the boot store by kicking out the glass in the front door. He took some boots from the store and fled. In addition to the bartender and patron, a second patron saw the defendant come through the broken door with a pair of boots in his hand.

The defendant presents two points on appeal. His first point alleges the trial court erred in admitting the identification testimony of the bartender because her in-court identification was tainted by the prior suggestion of the police that the defendant was believed to have committed the offense.

Evidence concerning the bartender's identification was adduced at a suppression hearing and at trial. The following are the salient facts developed by that evidence. A short time after the offense, the bartender was shown a photographic lineup consisting of six pictures. She knew all of the subjects but one, the defendant. Her testimony was that she told the officer, "take off the beard and this looks like him." The officer stated that she was less certain about her identification. He did not regard her as a good witness. As a result, speaking of the picture of the defendant, he said to her, "Well, this is the gentleman that we believe did it."

It is well established that even though an issue of the admissibility of identification testimony has been presented in a motion to suppress, the failure of a defendant to object to an in-court identification results in the issue not being preserved for appellate review. State v. Mayes, 671 S.W.2d 361 (Mo.App.1984). Defendant made no objection to the bartender's identification at the trial and may not complain of its admission.

Further, even assuming the photographic lineup accompanied by the officer's remark was unduly suggestive, the trial court did not err in admitting the in-court identification testimony of the bartender. Numerous cases hold that reliability, not suggestiveness, is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Robinson, 641 S.W.2d 423 (Mo. banc 1982). Even if an out-of-court identification procedure was suggestive, it does not invalidate a reliable in-court identification based on a recollection independent of the pretrial identification, and the reliability of the in-court identification is assessed under the totality of the circumstances. State v. Littleton, 649 S.W.2d 225 (Mo. banc 1983).

The bartender was examined by counsel and the court to determine if her in-court identification of the defendant was admissible by this standard. The bartender was positive that her in-court testimony was an independent identification because her attention had been riveted on the defendant after he announced he was going to commit a burglary. After such examination, the trial court found her in-court identification to be an independent and reliable recollection. As measured by the five factors delineated in State v. Robinson, supra, that determination was supported by the evidence and testimony properly admitted.

In addition, it is appropriate to observe that the defendant was unequivocally identified by the undisputed testimony of the two bar patrons, one of whom had known the defendant for ten years. The defendant could not have been prejudiced by the admission of the bartender's testimony. State v. Williams, 664 S.W.2d 226 (Mo.App.1983).

The defendant's second point is:

The trial court erred in failing to instruct the jury on the lesser-included offense of trespass because there was a basis in the evidence for the jury to find the defendant not guilty of burglary second degree but guilty of trespass in that from the evidence the jury could have found that the defendant was suffering a diminished mental capacity and so did not have the requisite intent for the greater offense of burglary second degree but nevertheless was guilty of trespass.

Trespass in the first degree (MAI-CR2d 23.40) is a lesser included offense of burglary in the second degree (MAI-CR2d 23.52). State v. Martin, 624 S.W.2d 879 (Mo.App.1981); State v. Neighbors, 613 S.W.2d 143 (Mo.App.1980). The defendant did request an instruction on the lesser included offense as required by State v. Olson, 636 S.W.2d 318 (Mo. banc 1982). The defendant's second point, as stated by his astute appointed counsel, demands consideration of the doctrine of diminished mental capacity.

A discussion of the development and application of that doctrine is found in Annot., Criminal Law--Mental Condition, 22 A.L.R.3d 1228 (1968). It has been compared to the so called defense of voluntary intoxication. Commonwealth v. Swartz, 335 Pa.Super. 457, 484 A.2d 793 (1984). The doctrine of diminished capacity has been justified by the existence of a defense of voluntary intoxication.

Neither logic nor justice can tolerate a jurisprudence that defines the elements of an offense as requiring a mental state such that one defendant can properly argue that his voluntary drunkenness removed his capacity to form the specific intent but another defendant is inhibited from a submission of his contention that an abnormal mental condition, for which he was in no way responsible, negated his capacity to form a particular specific intent, even though the condition did not exonerate him from all criminal responsibility.

United States v. Brawner, 471 F.2d 969, 999 (D.C.Cir.1972). However, it has also been distinguished from that defense. Hendershott v. People, 653 P.2d 385 (Colo. banc 1982), cert. denied, 459 U.S. 1225, 103 S.Ct. 1232, 75 L.Ed.2d 466 (1983).

The doctrine of diminished capacity has been accepted by decision. Other courts have refused to do so. The states were cataloged in State v. Correra, 430 A.2d 1251 (R.I.1981). The Supreme Court of Delaware recently declined to recognize the doctrine stating: "[T]he potential impact of concepts such as diminished capacity or partial insanity--however labeled--is of a scope and magnitude which precludes their proper adoption by an expedient modification of the rules of evidence." Bates v. State, 386 A.2d 1139, 1143 (Del.1978). Even more recently, in Johnson v. State, 292 Md. 405, 439 A.2d 542 (1982), the Court of Appeals of Maryland followed suit citing the following quotation: "The criminal law cannot 'vary legal norms with the individual's capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable, such as the mental disease or defect that may establish irresponsibility. The most that it is feasible to do with lesser disabilities is to accord them proper weight in sentencing.' " United States v. Moore, 486 F.2d 1139, 1180 (D.C.Cir.1973), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973).

The doctrine is embodied in the Model Penal Code § 4.02(1). That provision has been adopted in Missouri in § 552.030.3 which provides:

3. Evidence that the defendant did or did not suffer from a mental disease or defect shall be admissible

(1) To prove that the defendant did or did not have a state of mind which is an element of the offense; or

(2) For the purpose of determining whether or not the defendant, if found guilty of a capital offense, shall be sentenced to death or life imprisonment.

The doctrine, as established by decision or as embodied in statute, is impossible of a concise statement. Common expressions of the doctrine are:

The diminished-capacity doctrine recognizes that although an accused was not suffering from a mental disease or defect when the offense was committed sufficient to exonerate him of all criminal responsibility, his mental capacity may have been diminished by intoxication, trauma, or mental disease so that he did not possess the specific mental state or intent essential to the particular offense charged. A defendant claiming diminished capacity concedes his responsibility for the act but claims that, in light of his abnormal mental condition, he is less culpable.

State v. Correra, supra, at 1253.

But, while this defendant is therefore ineligible for a finding of not guilty by reason of insanity, his mental abnormality may nonetheless be a most relevant consideration in the determination of whether he is guilty of the crime charged. Under the doctrine referred to as partial responsibility, diminished responsibility, or (somewhat less accurately) partial insanity, evidence concerning the defendant's mental condition is admissible on the question of whether the defendant had the mental state which is an element of the offense with which he is charged.

LeFave & Scott, Criminal Law § 42, p. 326 (1972) (footnote omitted).

The doctrine has been said to be "a special negative defense."...