State v Whalen
| Decision Date | 16 May 2000 |
| Docket Number | ED76038 |
| Parties | This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. State of Missouri, Plaintiff-Respondent v. Timothy J. Whalen, Defendant-Appellant Case Number: ED76038 Missouri Court of Appeals Eastern District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jefferson County, Hon. Gary P. Kramer
Counsel for Appellant: Irene Karnes
Counsel for Respondent: John Munson Morris and Adriane D. Crouse
Opinion Summary: Defendant Timothy Whalen appeals his convictions for one count assault in the first degree in violation of RSMo. section 565.050 (1994), a class A felony, two counts of assault in the first degree in violation of section 565.050, a class B felony, and three counts of armed criminal action in violation of section 571.015.
AFFIRMED.
Division Three holds: (1) Whalen either contemplated or should have contemplated the presence of Officers Taylor and Edler in his home. Therefore the trial court did not err in entering a judgment of guilty on Counts III-VI. (2) The trial court did not err in submitting both a voluntary intoxication or drugged condition jury instruction and the affirmative defense of not guilty by reason of mental disease or defect. (3) The trial court did not abuse its discretion in denying Whalen's motion for change of venue due to extensive pretrial publicity.
Timothy Whalen ("Defendant") appeals the judgment entered on his convictions for one count assault in the first degree in violation of RSMo. section 565.050 (1994), 1 a class A felony, two counts of assault in the first degree in violation of section 565.050, a class B felony, and three counts of armed criminal action in violation of section 571.015.2 Defendant contends: (1) the trial court plainly erred in entering a judgment of guilty against Defendant on Counts III-VI because the State failed to present evidence from which a reasonable juror could find beyond a reasonable doubt that Defendant was guilty of attempting to cause serious physical injuries to Officers Taylor and Edler; (2) the trial court erred in overruling defense counsel's objection to the submission of a voluntary intoxication or drugged condition jury instruction, because the instruction created a conclusive presumption of responsibility that conflicts with the substantive law of nonresponsibility due to mental disease or defect; and (3) the trial court erred in overruling Defendant's change of venue motion due to extensive pretrial publicity. We affirm.
In November 1997, Defendant became distraught after losing his job of almost five years, and thereafter began using marijuana and methamphetamine on a daily basis. By January 1998, Defendant's behavior became a matter of serious concern for both his parents and wife, because he insisted that his former employer had conspired to control his family life, used his social security number to launder money, and plotted to kill him. Defendant's family attempted to reason with him on numerous occasions, but Defendant steadfastly maintained his beliefs about the conspiracy. On January 28, 1998, Defendant's father informed Defendant that they would have him involuntarily committed to a mental hospital the next day, if he would not go on his own volition. Defendant agreed to be hospitalized, but indicated he wanted to rest first. During the early morning hours of January 29th, Defendant's wife was awakened by the sound of loud banging on the door and someone yelling "It's the police, open up, it's the police." Although wife had not summoned the police, she got up to dress and answer the door. Defendant, however, came into the bedroom and grabbed a gun, insisting it was not the police at the door.
Wife answered the door and talked with Officer Taylor, while Defendant continued to yell that the person at the door was not a police officer. Officer Taylor explained that he was responding to a 911 hang-up call from the residence; wife informed the officer that Defendant was having a nervous breakdown and wanted to go to the hospital. Wife also told Officer Taylor that there was no reason for him to come inside, so he returned to his vehicle to wait until Corporal Cummines and Deputy Edler arrived as back-up. All three officers returned to the house and remained in the entryway, where they talked with wife about the situation for several minutes. Wife informed the officers that Defendant had a gun in the bedroom with him. Defendant, meanwhile, continued to yell about the conspiracy, demanded to see police identification, and wanted the lights on the ambulance turned on.
The officers ultimately proceeded down the hall to the bedroom, with Corporal Cummines in front of Officers Taylor and Edler. As Cummines stopped at the doorway, he drew his service revolver and turned to motion the others to stop. At that moment, Defendant shot Cummines, critically injuring him with a single 12-gauge shotgun blast to the head. The two officers were able to get the corporal outside, and they waited for an ambulance. Corporal Cummines was taken to the hospital, where he underwent brain surgery to remove portions of his brain. Cummines remained on a ventilator for three days. Officers Edler and Taylor also received medical attention. Edler felt a hot air and 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 observed and treated at the hospital.
Defendant's wife and son escaped from the house after shots were fired. Defendant, however, remained in the home following the shootout, and a negotiator from the Emergency Response Team was called to the scene. The police negotiator testified at trial that Defendant informed him through the window that he had "already shot one and that if anybody came in he'd shoot another." Defendant was finally restrained several hours later. The police subsequently seized a 12-gauge shotgun and film canister containing methamphetamine from the home.
Prior to trial, Defendant filed a motion for change of venue due to pretrial publicity, which was denied. The motion was renewed before the jury was seated, and was again denied.
Defendant also timely filed a notice of intent to rely on a defense of mental disease or defect. The court ordered a mental examination for the purpose of obtaining an expert opinion as to whether Defendant was competent to stand trial and whether he was criminally responsible for his actions on the night in question. Dr. Rabun, a forensic psychiatrist appointed to examine Defendant, concluded that Defendant suffered from an amphetamine-induced psychotic disorder at the time he fired the shotgun at Corporal Cummines. The doctor further testified that Defendant had stated he saw a person with a uniform enter the bedroom with his gun holstered on the morning of the shooting. It was also Dr. Rabun's opinion that, due to the substance-induced psychosis Defendant was experiencing at the time of the shooting, Defendant did not believe that Corporal Cummines was a police officer and did not appreciate the nature, quality or wrongfulness of his conduct.
Despite the doctor's testimony, the jury found Defendant guilty on each of the charges, and the judge sentenced him to consecutive terms of twenty years and six years, on Counts I and II respectively, to be followed by concurrent terms of five years on Count III, three years on Count IV, five years on Count V, and three years on Count VI, for a total of thirty-one years' imprisonment. Defendant filed this timely appeal.
In his first point on appeal, Defendant contends that the trial court plainly erred in entering judgment on the jury's verdict and sentencing Defendant on Counts III-VI, which allege Defendant committed first-degree assault and armed criminal action against Officers Taylor and Edler. According to Defendant, the State failed to produce evidence from which a reasonable juror could find beyond a reasonable doubt that Defendant was guilty of attempting to cause serious physical injury to Officers Taylor and Edler by shooting them, in that the evidence did not show that Defendant could see the two officers, or even knew they were in the residence, when he fired at Corporal Cummines. We disagree.
Plain error does not embrace all trial error, and this court's discretion to reverse a conviction on the basis of plain error should be utilized sparingly. State v. Roberts, 948 S.W.2d 577, 592 (Mo. banc 1997). "Plain error is evident, obvious and clear error." State v. Long, 925 S.W.2d 220, 222 (Mo.App. E.D. 1996), quoting State v. Bailey, 839 S.W.2d 657, 661 (Mo.App. W.D. 1992). Relief under the plain error review standard is granted only where the alleged error will so substantially affect a defendant's rights that a manifest injustice or a miscarriage of justice inexorably results if left uncorrected. State v. Tokar, 918 S.W.2d 753, 769-770 (Mo. banc 1996). A showing of mere prejudice is not enough. State v. Kalagian, 833 S.W.2d 431, 434 (Mo.App. E.D. 1992). Moreover, a defendant bears the burden of demonstrating manifest injustice or miscarriage of justice. State v. Baller, 949 S.W.2d 269, 272 (Mo.App. E.D. 1997).
When reviewing a challenge to the sufficiency of the evidence, this Court views the evidence and all reasonable inferences in the light most favorable to the verdict and ignores all contrary evidence and inferences. State v. Grim, 854 S.W.2d 403, 405 (Mo. banc 1993); State v. Rousan, 752 S.W.2d 388, 389 (Mo.App. E.D. 1988). Appellate review is limited to a determination of whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt. State v. Williams, 623 S.W.2d 552, 553 (Mo. 1981).
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