State v. Whalen
| Decision Date | 10 July 2001 |
| Citation | 49 S.W.3d 181 |
| Parties | (Mo.App. S.D. 2001) State of Missouri, Respondent v. Timothy J. Whalen, Appellant. SC82822 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jefferson County, Hon. Gary P. Kramer
Counsel for Appellant: Irene C. Karns
Counsel for Respondent: Adriane D. Crouse and John M. Morris
Opinion Summary: After having an apparent mental breakdown the day before, Timothy Whalen shot in the head a corporal who approached his bedroom and injured a deputy and an officer who were standing behind the corporal. He was charged with one count of class A felony first-degree assault for shooting the corporal, one count each of class B felony first-degree assault for injuring the deputy and the officer, and three counts of armed criminal action for using a firearm in association with the assaults. A jury convicted Mr. Whalen on all counts, and he appeals, arguing there was not sufficient evidence to prove he intended to injure the deputy and the officer. He also claims the court erred in giving an instruction he believed conflicted with his defense of non-responsibility due to mental disease or defect and that the court abused its discretion in refusing to grant him a change of venue due to pre-trial publicity. Mr. Whalen does not challenge his convictions for first-degree assault and armed criminal action with respect to the corporal.
Court en banc holds: (1) Considering all the evidence in the light most favorable to the State, a reasonable juror could not find, beyond a reasonable doubt, that Mr. Whalen was aware that the other two officers were in the hallway with the corporal at the time he shot the corporal.
(2) Mere proof that Mr. Whalen should have known the other two officers were present is not sufficient to support first-degree assault convictions for injuring those officers. To the extent State v. Stewart, 811 S.W.2d 805 (Mo. App. 1991), and State v. Macone, 585 S.W.2d 64, 67 (Mo. App. 1979), hold otherwise, they are overruled.
(3) The evidence is sufficient to prove each element of the lesser-included offense of second-degree assault with regard to the deputy and the officer. It is undisputed that Mr. Whalen discharged a firearm, the evidence permitted the jury to find he acted in conscious disregard of a substantial risk of injury to others, and the jury found he attempted to cause serious physical injury. The trial court thus is directed to enter convictions for two counts of second-degree assault and two counts of associated armed criminal action.
(4) Mr. Whalen failed to cite any case law to support his contention that the instruction conflicted with the substantive law of non-responsibility due to mental disease or defect, and no such conflict exists.
(5) The court did not abuse its discretion in not granting a change of venue because the jurors said that although they were aware of the case from pre-trial publicity, they had not made up their minds and could be unbiased and impartial.
Opinion concurring in part and dissenting in part by Judge Price: This writer agrees that the convictions with respect to the corporal should be affirmed, but disagrees the other convictions should be reversed. Instead, this author argues that, viewed in the light most favorable to the verdict and disregarding all contrary inferences, the evidence presented was sufficient for the jury reasonably to find, as it did, that Mr. Whalen was aware the deputy and officer were in the hallway near the corporal and that he consciously attempted to kill or to cause serious physical injury to all victims when he shot his gun into the hallway.
Defendant Timothy Whalen was convicted of one count of class A first-degree assault, two counts of class B first-degree assault, and three associated counts of armed criminal action for causing serious physical injury to a police officer and for attempting to cause serious physical injury to two other officers. Defendant appeals, arguing that the State failed to prove the two counts of class B assault beyond a reasonable doubt. He further argues that the trial court erred in instructing the jury that voluntary intoxication would not relieve him of responsibility for his acts and that the trial court erred in denying his motion for change of venue.
The State failed to present evidence from which the jury could find beyond a reasonable doubt that Defendant attempted to cause serious physical injury to the two officers who were the subjects of the two counts of class B assault in the first degree. Therefore, the judgment is reversed as to those convictions and the two associated convictions for armed criminal action. Because the evidence was sufficient to support conviction of the lesser included offense of second-degree assault and armed criminal action, in that Mr. Whalen recklessly caused physical injury to the other two deputies by firing his shotgun at them, this Court remands for entry of judgment of conviction and sentencing on two counts of second-degree assault and two associated counts of armed criminal action as to the two other deputies. There is no merit in Defendant's other two points. The judgment as to the class A felony of first-degree assault and the associated armed criminal action charge is affirmed.
Timothy Whalen lived in a mobile home with his wife Misty and young child. He lost his job and became convinced that a conspiracy existed to do him harm. His behavior caused his wife and parents to become concerned, and, on January 28, 1998, his father threatened to involuntarily commit him the next day. Mr. Whalen agreed to enter the hospital of his own volition, but stated that he wanted to rest first.
That night, in the early morning hours of January 29, 1998, Police Officer Taylor knocked on the door of the Whalens' trailer and said, "Open up, it's the police." Mr. Whalen went into the bedroom, grabbed a gun, and began yelling that the person at the door was not really from the police. Mrs. Whalen answered the door anyway, and the officer explained that he was responding to a 911 hang-up call made from the residence. Mrs. Whalen told Officer Taylor that she had not made a 911 call. She also said that her husband was having a mental breakdown and wanted to go to the hospital, but that they had no need for the police. Officer Taylor left the doorstep, but went back to his cruiser and waited for backup help to arrive.
In the meantime, Mr. Whalen told his wife that he wanted an ambulance and demanded proof that Officer Taylor was really a policeman. The 911 operator called the Whalen home and stayed on the line with Mrs. Whalen, who told the operator that her husband had a gun. Corporal Cummines and Deputy Edler eventually arrived. All three entered the Whalens' home and spoke with Mrs. Whalen about her husband's situation. Officer Taylor determined that it would be dangerous for an ambulance to come until Mr. Whalen was in control and arranged for it to wait elsewhere. During this time, Mr. Whalen continued to yell about the conspiracy, to demand to see police identification, and to ask that the ambulance lights be turned on.
Mrs. Whalen testified at trial that she told the officers not to go near the bedroom as her husband had a gun, and one of the officers acknowledged he was told about the gun. Nonetheless, the three officers decided to approach the bedroom, with Corporal Cummines leading the way. The testimony is consistent that the other two officers were walking behind Corporal Cummines and a bit to either side of him, but from the record it is impossible to determine their exact position.
As Corporal Cummines stopped at the bedroom doorway, he drew his service revolver and turned to motion to the others to stop. At that moment, Mr. Whalen fired, very seriously injuring the corporal with a single 12-gauge shotgun blast to the head. Although the other two officers were not close enough to the doorway to be able to see Mr. Whalen at the time he fired the shot, they were close enough so that Deputy Edler felt hot air and a stinging sensation on his face and hand, which required a tetanus shot, while Officer Taylor felt a hot flash on his cheek and was also treated at the hospital.
After the officers were taken to the hospital, a member of the sheriff's department emergency response team negotiated with Mr. Whalen. At one point during the negotiations, Mr. Whalen leaned out the bedroom window and shouted that he had shot one person, and that if anybody came into the trailer, he would shoot another. Eventually, Mr. Whalen was taken into custody without further incident.
As a result of the confrontation, Mr. Whalen was tried on charges of one count of class A assault in the first degree under section 565.050,1 for causing serious physical injury to Corporal Cummines. He was also tried on two counts of class B assault in the first degree under section 565.050 for attempting to cause serious physical injury to Officer Taylor and Deputy Edler, as well as on three associated counts of armed criminal action in violation of section 571.015. Mr. Whalen relied on a defense of mental disease or defect, and additionally argued that there was insufficient evidence to show that he attempted to kill or cause serious physical injury to Officer Taylor and Deputy Edler. The jury convicted Mr. Whalen on all counts.2 Mr. Whalen appeals.
In reviewing a challenge to sufficiency of the evidence, this Court must determine whether there is sufficient evidence from which a reasonable juror could have found the defendant guilty beyond a reasonable doubt. In applying this standard, the Court:
must look to the elements of the crime and consider each in turn. . . . . [The Court is] required to take the evidence in...
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