State v. Clements

MAUS, Judge,

dissenting.

I respectfully dissent. It is my opinion the admission of Dr. Harte’s testimony “Yes, it was deliberated. It was planned for a different night.” does not constitute reversible error. I agree with the criticism of the use of expert opinions found in United States v. Alexander, 805 F.2d 1458 (11th Cir.1986) and quoted in the majority opinion. It may well be time for a legislative review of the law on that subject in this *112 state. See State v. Thompson, 695 S.W.2d 154 (Mo.App.1985). However, under the existing law of this state I believe that testimony was admissible.

That testimony must be considered in context. Dr. Harte was a qualified expert on mental conditions. He determined that the defendant suffered from an “identity disorder of adolescence”, a mental illness. He had so testified when the questioned testimony was admitted.

Section 552.030.1 provides:

“A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect he did not know or appreciate the nature, quality, or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law.”

Whether or not such mental condition existed at the time of the charged acts is an ultimate issue for the jury. It is well established that expert opinion that such mental condition did or did not exist at that time is admissible. State v. Crawford, 416 S.W.2d 178 (Mo.1967).

Section 552.015 in relevant part provides:

“2. Evidence that the defendant did or did not suffer from a mental disease or defect shall be admissible in a criminal proceeding:

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

Those provisions are drawn from the Model Penal Code § 4.02(1). Under statutes embodying those provisions, an expert opinion a defendant did or did not, at the time of the charged acts, as the result of mental illness, have mental capacity to form the state of mind which was an element of the offense, is generally held to be admissible. Annot., Admissibility of Expert Testimony as to Whether Accused had Specific Intent Necessary for Conviction, 16 A.L.R.4th 666 (1982). Some states do not permit expert opinion that a defendant did or did not in fact have such an intent at the time of the charged acts. See Koester v. Commonwealth, 449 S.W.2d 213 (Ky.1969), cited in the majority opinion. A basis frequently assigned is that such an opinion invades the province of the jury. Annot., supra. However, that limitation is not valid in this state.

“In Missouri, an expert may testify as to his opinion on an ultimate issue in a criminal case. State v. Paglino, 319 S.W.2d 613 (Mo.1958), states:

Every opinion of an expert witness is to an ‘ultimate’ fact in the sense that it is a conclusion based upon facts supported by the evidence. We may assume that it would not be proper for an expert witness to express his opinion on the ultimate issue of whether appellant was guilty of the offense charged, but that was not done here, and as this court recognized in the Eickmann [v. St. Louis Public Service Co., 363 Mo. 651 , 253 S.W.2d 122 (1952)] case, opinions of experts are often admissible upon vital issues which only the trier of fact may decide.

Id. at 624.

But Paglino also says that ‘an opinion (evidence) cannot “invade the province of a jury,” and this [is true], even though the opinion is upon the very issue to be decided.’ Id. at 623 , quoting Eickmann v. St. Louis Public Service Co., 363 Mo. 651 , 253 S.W.2d 122, 129 (1952); see also State v. White, 621 S.W.2d [287] at 293 [ (Mo.1981) ]. Compare State v. Smith, 422 S.W.2d 50, 63 (Mo. banc 1967), cert. denied, 393 U.S. 895 , 89 S.Ct. 150 , 21 L.Ed.2d 176 (1968).” State v. Taylor, 663 S.W.2d 235, 239 (Mo. banc 1984) (emphasis in original).

The statement from Paglino that an opinion may not invade the province of the jury is often construed as a limitation upon the admissibility of expert opinion. An examination of the cited authority of Eickmann v. St. Louis Public Service Co., 363 Mo. 651 , 253 S.W.2d 122 (1952), establishes that is not the case. In Eickmann , the proffered testimony was that a personal injury plaintiff was a “malingerer”. The objection was made that the opinion invaded the province of the jury. The Supreme Court held the opinion admissible even though it invaded the province of the jury.

*113 “Thus an opinion (evidence) cannot ‘invade the 'province of a jury,’ and this, even though the opinion is upon the very issue to be decided. An objection that an expert opinion invades the province of the jury is not a valid one.” Eickmann, 253 S.W.2d at 130 (emphasis in original).

This principle has been consistently upheld.

“It is not a valid objection on a proper subject of expert testimony that the opinion of a qualified expert witness will invade the province of the jury, so long as the question does not call for a conclusion of law.” State v. Cochran, 356 Mo. 778, 788 , 203 S.W.2d 707, 713 (banc 1947).

Also see Allen v. St. Louis Public Service Co., 365 Mo. 677 , 285 S.W.2d 663 (1956), 55 A.L.R.2d 1022 (1957); Wessar v. John Chezik Motors, Inc., 623 S.W.2d 599 (Mo.App.1981); State v. Brigham, 709 S.W.2d 917 (Mo.App.1986).

The opinion of a qualified expert that a defendant suffering from a mental disease as a result thereof did not appreciate the nature, quality or wrongfulness of the acts charged is an expert opinion concerning a mental condition. The opinion of a qualified expert that a defendant suffering from a mental illness as a result thereof, at the time of the acts charged, did not have the capacity to deliberate is an expert opinion concerning his mental condition. I believe that the opinion of a qualified expert that a defendant suffering from a mental illness as a result thereof did not, in committing the acts charged, deliberate is also an opinion concerning his mental condition. This also is true if such an opinion is that a defendant suffering from a mental disease acted with deliberation. Such an opinion is no less admissible even though the facts would, as in this case, inexorably lead a lay jury to conclude, in agreement with or in spite of an expert opinion, a defendant acted with deliberation. The admissibility of the questioned testimony of Dr. Harte has been inferentially established in State v. Anderson, 515 S.W.2d 534 (Mo. banc 1974). In that case, the armed defendant went to the home of his paramour. There he separately shot her step-father and then her mother. A psychologist and a psychiatrist testified the defendant suffered from severe depression, a mental disease, and “that, as a result, he was unable to premeditate; and that in their opinion there was no premeditation in what appellant did.” Id. at 536 . The court refused to give an instruction on manslaughter as a lesser included offense of murder in the second degree. Upon the basis of § 552.030(3), now § 552.015.2(8), this was held to be error. In so holding, the court approved the following statement from the comment to § 4.02(1) of the Model Penal Code. “ ‘... If states of mind such as deliberation or premeditation are accorded legal significance, psychiatric evidence should be admissible when relevant to prove or disprove their existence to the same extent as any other relevant evidence.’ ” Anderson at 538-539 . In summary, I believe that by reason of § 552.015.2(8), under the existing law of this state, the questioned expert opinion of Dr. Harte was admissible.

Moreover, even if the questioned testimony of Dr. Harte was not otherwise admissible, the defendant made it admissible under a well established doctrine of evidence. That doctrine is denominated or described by a variety of terms including “Conditional Relevance and Competence”, Vol. I, Wharton’s Criminal Evidence, § 101, p. 358 (14th ed. 1985); “invited error”, State v. McFall, 737 S.W.2d 748 (Mo.App.1987); and “opening the door”, State v. Hawkins, 690 S.W.2d 198 (Mo.App.1985). The following is a summary of that doctrine appropriate to this case.

“[Wjhere the defendant has injected an issue into the case, the State may be allowed to admit otherwise inadmissible evidence in order to explain or counteract a negative inference raised by the issue defendant injects.” State v. Lingar, 726 S.W.2d 728, 734-735 (Mo. banc 1987), cert. denied, 484 U.S. 872 , 108 S.Ct. 206 , 98 L.Ed.2d 157 .

As noted, the defendant in taking the deposition of Dr. Harte asked all the questions. As part of his case, the defendant read that deposition to the jury, omitting selected questions and answers. The omissions included the questioned testimony.

*114 Portions of the deposition read to the jury tended to establish the defendant was pliable, easily influenced and dominated. Further questions and answers inferred that the defendant followed his companion Hardy because of the defendant’s emotions or “dark side”. Those questions and answers included the following:

“I asked him — I kind of described from the reports and so on; I said did that happen that way? I said, Can you make sense out of it? And he said no, he just felt like he was just kind of swept along by the idea that he was fascinated with, and he realized that his judgment was not good in carrying it through. And yet kind of, as I think he described it, it was like the dark side of himself was possessing and dominating himself, which he describes an interesting phenomenon in terms of good and bad, good and evil sort of conflict going on within himself, and he even talked over this kind of like voices within his own head which he was aware of were really not voices but his own thoughts that were in conflict.”

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“QUESTION: Do you think that, based on your evaluation of him and what you learned about him, that he had to actually shun the dark side, as he called it, or these evil thoughts that he had? ANSWER: It was interesting. He said the dark side possessed him or controlled him or dominated him, much of the time, but it was like a conflict going on internally within himself as to what part would dominate.”

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“QUESTION: You’re right; I’m not sure that you’ve answered my question. Are you saying that he was unable to control his actions? ANSWER: Let me answer it in another way. I think intellectually he knew that it was wrong, but he was swept away emotionally.”

The portions of the deposition read by the defendant raised the issue of deliberation and the inference he did not deliberate but wasr“swept along”. The state properly introduced the questioned testimony to counteract an inference injected by the defendant.

Finally, even if the admission of the questioned testimony was error, whether or not it is reversible error must be determined considering all of the evidence. When so considered, the questioned testimony does not “impact so substantially upon the rights of the defendant that manifest injustice or a miscarriage of justice will result if left uncorrected.” State v. Driscoll, 711 S.W.2d 512, 515 (Mo. banc 1986), cert. denied, 479 U.S. 922 , 107 S.Ct. 329 , 93 L.Ed.2d 301 . Also see United States v. Young, 470 U.S. 1 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985); State v. Sidebottom, 753 S.W.2d 915 (Mo. banc 1988), cert. denied, - U.S. -, 109 S.Ct. 515 , 102 L.Ed.2d 550 . In fact, when considered against the overwhelming evidence of deliberation, it would be harmless error within the doctrine as delineated in State v. DeGraffenreid, 477 S.W.2d 57 (Mo. banc 1972). Also see State v. Marvel, 756 S.W.2d 207 (Mo.App.1988); State v. Whitley, 750 S.W.2d 728 (Mo.App.1988).

In the state’s initial closing argument, the prosecuting attorney briefly referred to that testimony. He did so after advising the jury they should consider all of the facts. The state made no further reference to the questioned testimony. It relied upon facts to establish deliberation. Those facts and the emphasis of the state are best illustrated by the following portion of the eloquent rebuttal argument made by the assistant prosecuting attorney.

“Let’s talking [sic] about the planning stage of this, ladies and gentlemen. He planned — they had originally planned to kill him on Halloween. Of course that didn’t work because Steven Newberry wasn’t available. So then they decided to kill him on another night in November, and they went out there with the same scenario that ended up in the death of Steven Newberry. They went out there with the ball bats, with the cat, to the Well of Hell. The only problem is they were too stoned that time to do it and it didn’t happen. But he was bound and determined, ladies and gentlemen, to get the act accomplished, and he did.

*115 They went out on December 6th, again with ball bats, his with — his stick, the Ultra-Violence Stick. They went out and they picked up Steven Newberry. They handed him a bat. They had the cat. They indicated to him that they were going to take him out there so they could kill the cat. They took him out here in the deep recesses near Farmers’ Chemical out of sight. They took him near the Well of Hell, and then they killed him.

And they took his lifeless — unfortunately he wasn’t lifeless — body, and stuffed it into that well so they could be sure it wouldn’t be found. They then used the twine that they had brought with them, tied it to a rock, and dumped him into that well, ladies and gentlemen.

I suggest to you that there is tons of evidence, a myriad of evidence, to show where he thought about that, where he reflected about that, where he planned that on many occasions, and in fact carried it out. I don’t think there’s any issue, ladies and gentlemen, as to deliberation.”

The defendant also complains that the admission of Dr. Harte’s answer concerning the risk to society presented by the defendant was reversible error. The defendant read to the jury the following portions of the deposition which preceded the answer about which he now complains.

“ ‘ANSWER: I think giving the diagnosis that he has an identity disorder is that. QUESTION: Okay. And if he is ill, is he treatable? ANSWER: I would say we’d like to think so. QUESTION: You have no opinion, based on reasonable psychiatric certainty, as to whether or not he can be rehabilitated and — ANSWER: Let me answer your question, maybe not directly, but I think he was probably as anxious and uncomfortable an adolescent as I have seen. And he was confused. He was searching — the fact that he was extremely uncomfortable with his present psychological mental state means that he’s looking for some better way to understand his life himself and to give his life and self a sense of direction. QUESTION: Are you saying in different words that he’s looking for treatment, he’s looking for help? ANSWER: He said as much, that he was looking for help. And I asked him about the counseling, and he said — he said it was with his mother and they talked. But it’s almost like, as he said, it really didn’t get to the core of what he felt his problems were in terms of his confusion, the conflict between the darker side and the other parts of himself. QUESTION: You said in your report that you didn’t feel it was necessary that Mr. Clements be hospitalized for treatment. “If however he showed any further decomposition from an already fragile sense of identity, then I feel hospitalization is appropriate.” ANSWER: Uh-huh. QUESTION: You weren’t speaking, I take it from your testimony today, that he’s a danger to society as much as his need for medical and psychiatric treatment.’ ”

The defendant chose to inject the issue of his desire for reformation and the fact his illness could be treated without hospitalization. He apparently sought to raise an inference he posed no threat to society. Under the doctrine and authorities above cited, it was not error for the state to counteract this inference. Further, in view of the undisputed evidence of the facts, it was not plain error resulting in manifest injustice within the scope of the rule cited above.

I have considered the other points raised in the defendant’s direct appeal. I find no merit in them and I would affirm his conviction. I have also considered the motion court’s denial of the defendant’s motion for postconviction relief under Rule 29.15. The motion court did not err in denying that motion, and I would affirm its decision.