Wickman v. State, 13882

• Decision Date: 25 June 1985
• Docket Number: No. 13882,13882
• Citation: 693 S.W.2d 862
• Parties: Harold Floyd WICKMAN, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 862

693 S.W.2d 862

Harold Floyd WICKMAN, Appellant, v. STATE of Missouri, Respondent.

No. 13882.

Missouri Court of Appeals,

Southern District,

Division Two.

June 25, 1985.

Larry Maples, Asst. Public Defender, Joplin, for appellant.

William L. Webster, Atty. Gen., Leah A. Murray, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

Harold Floyd Wickman ("movant") appeals from a judgment denying his amended motion under Rule 27.26 ¹ to vacate his conviction of robbery in the first degree and 12-year prison sentence. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Wickman, 655 S.W.2d 749 (Mo.App.1983).

The amended motion to vacate, prepared with the assistance of appointed counsel, alleges that movant received ineffective assistance from the attorney who represented him at the jury trial. We hereafter refer to that attorney as "defense counsel." In denying the motion to vacate, the circuit court, hereafter referred to as "the motion court," took note of the transcript and records of the jury trial and concluded that an evidentiary hearing on the motion was not required.

Movant, insisting he was entitled to an evidentiary hearing, briefs three assignments of error. The first involves a complaint by movant that defense counsel was derelict in failing to obtain a pretrial examination of movant by a psychiatrist.

The motion court, in its findings of fact and conclusions of law, Rule 27.26(i), noted that movant went to trial on the robbery charge on the pleas of not guilty and not guilty by reason of mental disease or defect excluding responsibility. Prior to trial, upon motion by defense counsel, the court had ordered a "mental examination" to be made of movant at a community mental health center. The examination was made by John R. Godfrey, a "licensed psychologist."

At the time of the examination, § 552.030.4, Laws 1980, pp. 517-18, provided, in pertinent part:

"Whenever the defendant ... has given the written notice ... [of his purpose to rely on the defense of not guilty by reason of mental disease or defect excluding responsibility] ... and such defense has not been accepted ... the court shall, after notice and upon motion of either the state or the defendant ... appoint one or more private psychiatrists as defined in section 632.005, ² who are neither employees nor contractors of the department of mental health for purposes of performing the examination in question, to examine the accused or shall direct the director of the department of mental health, or his designee, to have the defendant so examined by one or more individuals designated by the director, or his designee, as qualified to perform examinations pursuant to this chapter." (Emphasis added.)

Nothing in the record suggests that John R. Godfrey, who examined movant, met the statutory definition of "psychiatrist," nor is there any indication that Godfrey had been designated by the director of the department of mental health or his designee as qualified to perform examinations pursuant to Chapter 552, RSMo 1978. Consequently, it appears that the pretrial examination of movant was made by a person who lacked the qualifications required by § 552.030.4, supra.

Paragraph 9(a)(9) of movant's amended motion to vacate is the paragraph pertinent to his first assignment of error. It alleges:

"Movant was rendered ineffective assistance of counsel by counsel's failing to obtain for Movant a mental examination by a psychiatrist as required by Mo.Rev.Stat. Chapter 552 on the issue of competency and/or mental disease or defect has been pleaded." Regarding this complaint, the motion court said:

"Movant also objects that he was denied effective assistance of counsel because his counsel failed to request further mental examination.... [M]ovant was examined at Ozark Community Mental Health Center. At the trial, movant relied upon the defense of intoxication. His own witnesses testified that he was normally a rational, well behaved individual, but that when he became intoxicated, he acted differently and often irrationally. This defense was thoroughly presented to the jury, the appropriate instruction was submitted by defense counsel and given to the jury, and the jury found the issue against defendant. There is no showing that movant was prejudiced by the failure to request further mental examination."

Evidence at the jury trial revealed that movant was 41 years of age and, in Godfrey's words, was suffering from "chronic alcoholism," for which he had "been through numerous treatment programs." Movant's long-standing alcoholism was confirmed by the testimony of his mother, his sister and his fiancee (herself a "recovering alcoholic").

There is nothing in the transcript of the jury trial indicating that movant had ever manifested any mental disease or defect or that he had ever been treated for, or diagnosed as having, any such condition. Indeed, it is obvious from the record of the jury trial that the purpose of the plea of not guilty by reason of mental disease or defect excluding responsibility was not to enable movant to contend that he was afflicted with a mental disease as defined by § 552.030.1, Laws 1980, p. 517. ³ Instead, the purpose was to ensure that movant could assert the "diminished capacity defense" that he, by reason of intoxication at the time of the robbery, was unable to act with the purpose of committing it. ⁴ Defense counsel revealed this by the following comment when movant was arraigned on the amended information on the morning of trial: "We'll waive formal reading of the information to that charge and enter a plea of not guilty by reason of diminished capacity."

The trial court pointed out that such was not a proper plea, but that movant could plead not guilty and not guilty by reason of mental disease or defect. Defense counsel consented that the plea be shown that way.

In an effort to provide evidentiary support for movant's hypothesis that he was too drunk to act with the purpose of committing the robbery, defense counsel elicited testimony from the robbery victim that movant "had been drinking." One investigating officer recalled that movant "appeared to be intoxicated," another officer described movant as "pretty heavily intoxicated," and a third officer conceded movant was "intoxicated," but the officer did not know to what extent. Movant's mother, sister and fiancee testified, in substance, that when movant was sober, he was responsible and well-behaved, but when intoxicated he was a different person, becoming irresponsible and uninhibited. Randy M. Kiser, a clinical psychologist called as a witness by defense counsel, confirmed that many alcoholics, when intoxicated, are "not able to rationally assess their own behavior." In response to a question hypothesizing the facts of the robbery in the instant case, Kiser expressed the opinion that the perpetrator's "mental capabilities would be very seriously impaired at that time, their ability to make judgments, to reason, to plan, to anticipate."

An instruction patterned on MAI-CR 2d 3.30.1, ⁵ submitting the issue whether movant's alleged intoxication prevented him from acting with the purpose of committing the robbery, was given at defense counsel's request. Defense counsel relied on the instruction in arguing the issue to the jury.

It is thus evident that the trial strategy employed by movant and defense counsel was based on movant's alleged intoxication and well-documented alcoholism, and not on any supposed mental disease or defect that would have excused movant from criminal responsibility under § 552.030.1, supra. Godfrey's report expressed the opinion that movant neither suffered from mental disease or defect nor lacked the capacity to understand the proceedings against him or to assist in his defense. It explained: "This is not seen as a situation where Mr. Wickman was incapable of understanding the wrongfulness of his conduct nor was he incapable of conforming his behavior to the requirements of the law."

Movant, in his amended motion to vacate, does not allege that there was any reason whatsoever to suspect that at the time of the robbery he had any mental disease or defect which would have excused him from criminal responsibility, nor does he allege that after receiving Godfrey's report he desired to be examined by a psychiatrist to explore the possibility of utilizing such a defense. Movant simply complains that he never received an examination by a psychiatrist and that defense counsel was ineffective in failing to insist on one. Movant does not allege that he remonstrated to defense counsel about the examination by Godfrey or that he ever asked defense counsel to demand an examination by a psychiatrist.

In order to prevail on a claim of ineffective assistance of counsel, a prisoner seeking postconviction relief must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would employ under similar circumstances, and that he was prejudiced thereby. Seales v. State, 580 S.W.2d 733, 736-37 (Mo. banc 1979); Jackson v. State, 672 S.W.2d 367, 368 (Mo.App.1984). A prisoner is entitled to an evidentiary hearing on a motion under Rule 27.26 only if the motion alleges facts, not conclusions, which, if true, would entitle him to relief, and such allegations are not refuted by the files and records in the case. Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974), cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975); Barnett v. State, 618 S.W.2d 735, 736 (Mo.App.1981). Our review is limited to a determination whether the findings, conclusions and judgment of the motion court are clearly erroneous. Futrell v. State, 667 S.W.2d 404, 405 (Mo. banc 1984); Rule 27.26(j). They are clearly erroneous only if upon review of the entire record we are left with the definite and firm impression that a mistake has been made. Knight v. State, 491 S.W.2d 282, 284 (...