State v. Williams

• Decision Date: 09 September 1980
• Docket Number: No. 61457.,61457.
• Citation: State v. Williams, 603 S.W.2d 562 (Mo. 1980)
• Parties: STATE of Missouri, Respondent, v. John WILLIAMS, Appellant.
• Court: Missouri Supreme Court

603 S.W.2d 562

STATE of Missouri, Respondent, v.John WILLIAMS, Appellant.

No. 61457.

Supreme Court of Missouri, Division No. 2.

July 15, 1980.

Rehearing Denied September 9, 1980.

COPYRIGHT MATERIAL OMITTED

Mary-Louise Moran, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

John Williams was charged by a four-count information, filed in lieu of indictment, with rape, sodomy, kidnapping, and stealing a motor vehicle.He was found guilty by a jury of all four offenses, and pursuant to the Second Offender Act then applicable was sentenced by the court to two consecutive life sentences for rape and sodomy, and to two consecutive ten-year sentences for kidnapping and for stealing a motor vehicle.He has appealed from the ensuing judgment.

Appellant does not challenge the sufficiency of the evidence as to any of the four charges.Therefore, we shall not here set forth the evidence, but shall only state that it clearly authorized the verdict rendered as to each offense.

On February 7, 1978the trial court sustained appellant's motion for "Appointment of Psychiatrist," and appellant was committed to the Fulton State Hospital.A report of the examination there conducted, dated May 8, 1978, was filed in the trial court on May 22, 1978, in which the examining physicians stated that "The accused has the capacity to understand the proceedings against him and can assist in his own defense."On May 30, 1978appellant filed what he captioned "Objection to Findings of Psychiatrist," which stated:

"Comes now Mary-Louise Moran, attorney for Defendant, and informs the Court that in accordance with the provisions of Section 552.020 4. RSMo. 1969, Defendant hereby objects on the basis of the competency of the examiner and the validity of the procedures used to the findings entered in the report of the psychiatric examination previously ordered by the Court and filed with the Court of March 10, 1978.

"The defendant believes that he has a mental disease or defect and does not possess the mental competency necessary to proceed in this criminal matter and therefore he contests the opinion stated by the court-appointed psychiatrist filed in this case, with evidence in support of this conclusion to be presented at a hearing on this matter.

"Defendant further informs the Court that he is indigent and without funds with which to employ a psychiatrist or a physician of his own choosing to make such an examination.

"Defendant requests that the Court order that defendant be examined by another psychiatrist to be designated by the Court and that a copy of the report of this examination be included in the confidential Court files relative to the defendant's cause before this Court."

The trial court entered a written order in which it noted that appellant's motion "does not pray for a second examination by a physician of the defendant's own choosing and at the defendant's expense," and that there is no provision in § 552.020(4) RSMo 1969 for filing an "objection" to the findings of the court-appointed psychiatrist.The court then stated that "No evidence or testimony was offered or adduced, indicating that the procedures were invalid or improper or that the two examining physicians were incompetent in any way," and that appellant"did not, in fact, contest the findings of the first report within time allowed," and added that the court"hereby finds on the basis of the report of May 18, 1978 * * * that the above named defendant has mental fitness to proceed."

In his first point appellant asserts it was error for the court to overrule his "Objection to Findings of Psychiatrist" and deny him a second psychiatric examination at State's expense, because, as he asserts, § 552.020(4)"allows a second psychiatric examination so long as he fully complies with the requirements of this section."

Section 552.020(4) provides that "within five days after the filing of the report" of the court-appointed physician, both the accused and the State shall, upon written request of either, be entitled to an order granting an examination of the accused by a physician of the State's or accused's "own choosing and at their own expense."It is clear that whatever status is to be given to appellant's "Objection to Findings of Psychiatrist," it was not filed within five days after the filing of the report, and it did not present a written request for "an order granting * * * an examination of the accused by a physician of appellant's own choosing and at his expense."Instead, the request was that "the Court order that defendant be examined by another psychiatrist to be designated by the Court," which was to be at the expense of the State because, as appellant alleged, he was "indigent and without funds with which to employ a psychiatrist or a physician of his own choosing to make such an examination."

We consider the "Objection to Findings of Psychiatrist" to constitute a request for the appointment of a second psychiatrist to conduct a second examination of appellant at the expense of the State.This issue was ruled in State v. Grant,560 S.W.2d 384, 386(Mo.App.1977) as follows, with which ruling we agree:

"The Court did not violate the provisions of subsection 4, § 552.020 in denying appellant's motion that the court appoint a second psychiatrist to examine appellant at no expense to him.Subsection 4 makes no mention of, nor does it provide for, the appointment of a psychiatrist by the court as does subsection 2, § 552.020.Subsection 4 explicitly provides that the second examination is to be made by a physician, chosen and paid by the party making the request.That a defendant cannot obtain a second examination without cost to him has been definitely settled in this state.State v. Mullen,532 S.W.2d 794, 799(Mo.App.1975)."

Appellant also asserts that if § 552.020(4) does not authorize a second psychiatric examination at State expense, it violates the Equal Protection and Due Proces Clauses of the Fourteenth Amendment to the United States ConstitutionandArticle I, §§ 2and10 of the Missouri Constitution in that it "creates an invidious classification based on wealth that denies an indigent defendant a second psychiatric examination and, therefore prevents him and his attorney from participating effectively in the hearing provided under Section 552.020(6) R.S.Mo. 1969 to contest the opinion of the court-appointed psychiatrist concerning his fitness to proceed."

This court has previously ruled that § 552.020(4) does not create an impermissible discrimination and does not deny an indigent accused equal protection of the law.State v. Terry,472 S.W.2d 426(Mo. banc 1971);Newbold v. State,492 S.W.2d 809(Mo.1973);State v. Sturdivan,497 S.W.2d 139(Mo.1973).See alsoState v. Mullen,532 S.W.2d 794(Mo.App.1975);Hudson v. State,552 S.W.2d 244(Mo.App.1977);State v. Grant,supra.We adhere to that ruling.

Appellant attempts to avoid the rule announced in the above cases by asserting that by not receiving a second psychiatric examination at State expense he was prevented from "participating effectively in the hearing provided under Section 552.020(6) R.S.Mo. 1969, to contest the opinion of the court-appointed psychiatrist concerning his fitness to proceed."¹The effect of appellant's contention is that the State should stand the expense of obtaining the testimony of an expert witness in his behalf.

In the absence of statutory authorization, the accused in a criminal case is not entitled to have his expert witnesses summoned at public expense.21 Am.Jur.2dCriminal Law § 348.The precise question presented here was considered at length in State v. Superior Court in and for the County of Pima,2 Ariz.App. 458, 409 P.2d 742(1966).There the accused sought payment by the State to his expert medical witness.Reference was made to State v. Crose,88 Ariz. 389, 357 P.2d 136(1960), in which it was held that the State is not mandated by constitutional provisions to provide a "full paraphernalia of defense," and that medical experts are part of the paraphernalia not so provided.In the County of Pima caseat p. 749, the court then considered the constitutional arguments presented here by appellant and concluded that the "failure to provide at state expense the expert assistance" of a medical witness did not result in an "invidious discrimination."We agree with that conclusion.Assuming that the second psychiatric examination would have been helpful to appellant if he had decided to contest the report of the examination that was given, and we conclude he did not do so as authorized by § 552.020(6), the State was not constitutionally mandated to provide such second examination at public expense.

In his second point appellant asserts the court erred in overruling his "Motion to Sever Offenses" because "the four offenses joined together here could not be properly joined under * * * Rule 24.04, and their joinder in a single trial deprived him of his right to a fair trial by an impartial jury as the evidence tending to support his conviction upon one offense tended to indicate his guilt with regard to the other offenses charged."

Rule 24.04, in effect at the time of trial, provided that "All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, * * *."A brief summary of the evidence will be helpful.On November 12, 1977, at approximately 2:45 a. m., appellant approached Alzada Johnson in the yard of her home, and by threatening her with a hand gun forced her to drive her automobile to an empty apartment building where he engaged in acts of sodomy and sexual intercourse.He drove Alzada Johnson's...