*1 321 respect- therefore that conclude presumptions We tory inferences or when it sustained a failure of court was error facts ing the ultimate there liability directed verdict. fendant’s motion for subject it leaves proof, since conjecture.” in the field of and remanded. Reversed proper statement of This is a FINCH,
rule, application of J., defendant’s P. DONNELLY issue EAGER, JJ., does not resolve concur. facts this case only defendant. Plaintiffs in favor of evidence present substantial
the burden to driving prove that Pike was
tending to accident, account time of auto appearance body outside the that Pike evidence
mobile. There was no explain feet how his
had been moved or the dash near the pinned under
could having
accelerator without Missouri, Respondent, driver’s seat STATE man who was observed actually before the accident v. the car. Demonstrative evi driver of BRIZENDINE, Appellant. William Prell sub photographs dence form of No. 53078. by plaintiffs, jury mitted from which supportive in addi could draw inferences Missouri, Supreme Court of related, testimony, tion to the heretofore En Banc. Trooper Hamerand. Hamiltons and 12, 1968. Nov. Since to afford substantial sufficient reasoning deductive in the deter basis for issues, civil
mination of circumstantial evi quality
dence need not have the of absolute Farmer,
certainty (Fellows Mo.App., v. 842, 847), we cannot hold other
S.W.2d than that in the record
wise the evidence sufficient evi to amount to substantial
dence find that from which could
Pike the driver. who, proof among
The issue of occu- vehicle,
pants driving of a motor of an accident arisen Missouri occasion, 1964, upon only one other
considerably different facts. Martin
Sloan, Mo., held 252. That case S.W.2d
that there es- was sufficient evidence to
tablish Sloan as the driver on the basis that seen, place
when last 2.6 miles from the casualty, he driving. A review of jurisdictions suggests,
cases from other
however, that circumstantial evidence weaker,
stronger, and in much some cases in the instant case has been held suf-
than identity. A. (See:
ficient to establish therein.) and cases cited
L.R.2d *2 ap- City was Society of Kansas
Defender A hear- represent petitioner. pointed to held in the petition was ing on the Jackson Court, petitioner with the County Circuit by member of represented present and Defender staff. Legal Aid and conclusions findings fact and court made *3 against judgment entered of law and appeal followed. petitioner. This of the offense The circumstances Brizendine, v. are set in State volved out supra. Briefly stated, Brizendine Anderson, Gen., Atty. H. quarreled Norman and threatened previously with John Birnbaum, Asst. Klaffenbach, L. eyewitness, C. Gerald According to an victim. Gen., respondent. Attys. City, for the victim’s hotel Brizendine knocked on Jefferson to the the victim came room door. When Hill, The Moody, Arnot Whitfield “Miller, J. door, said, you my J. Brizendine are Society of Greater Legal Aid and Defender “Yes,” replied, and friend?” The victim appellant. City, City, Kansas for Kansas left the Brizendine Brizendine shot him. immediately, weapon
hotel
took
involved
acquaintance
and
home of a woman
WELBORN, Commissioner.
“killed
thought
told her that
he had
appeal
re-
is an
from a denial of
This
weapon
left
G. D.” Brizendine
with
pro-
post-conviction
lief
a Rule 27.26
in
police.
the woman who called
Brizendine
ceeding.
so.
arrested within an hour or
1963,
12,
By information' filed November
employed
Brizendine’s sister
Michael
County
Court,
in the
Wil-
Circuit
Jackson
Konomos,
experienced
City
an
Kansas
crim-
charged with
liam Prell Brizendine was
lawyer,
inal
her brother. At the
defend
death,
degree
murder
the first
in the
on
in
arraignment,
12, 1963,
on
defend-
November
1963,
6,
Miller.
George
October
Dave
attorney.
ant was asked whether he had an
31,
day
1964,.
On March
on
second
represented
When he
stated
Konomos
guilty
found Brizendine
of him,
of not
was entered
degree
murder in the
fixed his
first
and
(The
proceed-
transcript
court.
ap-
punishment
imprisonment.
at life
On
upon
ings
arraignment are set out
peal, the
was affirmed. State
conviction
Brizendine
Swenson, supra,
v.
at 261 F.
Brizendine,
v.
Mo.Sup., 391
898.
S.W.2d
Supp. 71 and
pro-
72. The record
ceedings
entry,
does not
bear out minute
prior
Without
Rule
resort to Criminal
transcript
found in the
appeal, upon
on
27.26, V.A.M.R.,
ap
Brizendine filed an
Brizendine,
which the statement in State v.
plication
corpus
for
habeas
United
supra,
relating
S.W.2d
States District
Court for Western Dis
proceedings at arraignment, was based.
trict of
Missouri. The court dismissed
The trial court
transcript
concludedthat the
petition
prejudice
mo
“without
to file a
of the proceedings correctly set out what
tion to vacate and set aside his sentence
transpired
accept
and we
finding.)
pursuant to Missouri Rule 27.26.” Brizen
The case
January 13,
was set for
1964. On
Swenson, D.C.,
dine
F.Supp.
77.
that date it
January 27,
was reset for
proA
se motion under
Rule
Criminal
January 23,
February
for
3.
27.26, V.A.M.R.,
was filed
Brizendine
County
Circuit Court
January
On
Konomos filed a
Jackson
Legal
November
The
Aid
and motion to have the defendant’s “mental
time,
if
Corps
he was
Marine
ability to aid counsel
capacity and
discharged.
he was
motion stated
determined.
defense”
endeavored
counsel had
that the defendant’s
again,
went
and talked
him
“I
back
the defend-
with
conferences
numerous
actions, appearance
from his
against him but
charge
ant to discuss
speech,
cooperate
Ime,
and refusal to
with
conferences, de-
each
said
during
“that
conclusion, my opinion,
come to
comprehend
been unable
fendant has
that the man
needs
examination
him;
he is unable
questions
asked
see
properly
whether he can
defend
he is
comprehend that
to understand
charge.”
degree
charged in this Court
prosecuting attorney
assistant
added:
that, in the
The motion stated
murder.”
counsel,
is so men-
opinion
“defendant
“Strictly
edification,
Court’s
in his own
to aid
tally ill that he is unable
just
based
what I know about the
gravity
understand
defense or to
man,
know,
been,
far
as I
if not
*4
asked that
against him” and
proceedings
narcotics,
on hard
‘goofballs’
has been on
“regarding
defendant
examined
[his]
fact,
for I don’t know
long;
how
ability
proceedings
to understand
convicted of it. The conviction was set
in his de-
aid counsel
against him
to
aside because
of error in
instructions.
fense.”
He had been
at the time he
convicted
called
testify
to
George
witness for
presented Honorable
The motion was
Watson,
Lawrence
trying,
whom I was
A
Hall,
Division
Harry
Judge of Criminal
him,
and so I
‘Flapjack,’
saw
as we call
County
Court
of the
Circuit
Jackson
courtroom,
I
stand. mean
motion,
presenting
January
1964. In
this
say
don’t
doesn’t—I
the man
Konomos stated:
mentally unstable,
but based
what I
him,
know of
goofy.
he is
If that is men-
him,
sir,
all,
“Well,
I have seen
tally unstable, I don’t know.”
attorney
two
about
since I
his
became
Upon
times.
presentation,
at least twelve to sixteen
this
ago,
months
court ordered
Hospital
sent to the State
the minute
man,
know the
I
Joseph
St.
period
for a
thirty days
“to
his,
friends
that I
called
some
be examined as
mental condition.”
using
why, everybody
me that he
told
crazy.
talked
I
‘goofballs,’ that he’s
February 28, 1964,
On
the acting super-
him;
get
I
him to understand
couldn’t
intendent
hospital
addressed a letter
Degree
matter,
First
this is a
serious
Judge
Hall. The
portions
essential
life,
Murder
he
involve
the letter
Brizendine,
are set out in State v.
laugh, just
shake it
like it was
off
supra,
dine, pro presented Mr. se. its examination and state Konomos as From opinion prac- that he District witness. testified States United Court, 3, 1923, special- supra, January ticed law apparent it is that the motion since law, izing early in criminal career largely was formulated from a memor- office, petitioner’s court-appointed prosecuting attorney’s andum private practice. thereafter in an as- attorneys proceeding. in the Federal Court As prosecutor sistant points: attorney It three “I. and defense is subdivided into seventy-five COUNSEL, fifty had tried murder THE AT THE LACK OF THE cases. Konomos that he was em- “II. COMPE- stated ARRAIGNMENT.” sister, ployed by Brizendine’s for “a sub- TENCY OF PETITIONER TO STAND fee,” represent petitioner. stantial TRIAL.” THE “III. COMPETENCE presence vague OF Konomos was about his COUNSEL.” at the arraignment, stating: probably “It’s I, petitioner Under Point asserts remember, (appear), I did I can’t an absolute to counsel stated, practice it’s the of our this, capital, Alternatively, case. Court, Circuit judges, all the a de- when prejudiced by asserts that he the lack appears fendant case a fel- that’s stage proceeding at that ony misdemeanor, or even a to enter because, under 1967Cum. RSMo way of not the defend- so Supp., required plead V.A.M.S. ant rights will not lose constitutional not guilty reason mental disease if privileges.” such defense was to be offered. The following colloquy occurred: *6 II, petitioner Under Point does not al- ** * “Q Now, you were aware was, fact, lege incompetent that he at the time that a defendant arraigned stand trial. His claim is based for relief that if plead guilty intends to upon court’s failure to conduct insanity reason supposed sug- he’s a hearing upon competency. and rule his gest No, it to the Court A at time? sir. Point III is based the claim that
aware changed Supp., V.A.M.S.), which had become ef- Konomos at the trial and before was un- fective October Chapter procedure 13, 1963, (RSMo and rules and which 1967 Cum. appli- the Circuit Court. fense of “Q [*] * * * insanity? [*] When do [*] A [*] I raise you [*] raise a it up [*] de- cable defense of lack “Q you Could have raised it at the capacity. arraignment? No, A sir. the hearing upon motion, At the 27.26 Why “Q you not? A Because cannot counsel, present Brizendine with his any. just raise I asked the Court and
a member of the Legal staff of the Aid the Court did order that he be examined Society and Defender City. of Kansas and he was examined. placed Petitioner’s counsel in evidence the transcript the proceedings peti- Now, “Q procedures under the estab- presenta- Missouri, tioner’s and at the lished you can raise a de- tion of the motion for examination insanity Well, fense of time? A * * * * * * can, but not my opinion you is that Konomos, “Q arraignment, (By Pelofsky) You have to raise sir. Mr. Jlr. you opportunities trial. did have a number of it at the with defendant? charge to discuss this ? “Q prior to trial you Can raise times, twelve, A Several least fifteen course, you may A Of tell times. you raise it a matter Court can’t mean, “Q you an talking opportunity I we’re about And of defense. Yes, practice observe A now. him those occasions. sir, I talked him. “Q Now, pro- talking we’re about “Q you right. cedures. A Did discuss the merits That’s charge did, with him? A I sir. “Q question can you When raise the Yes, No, procedure “Q A insanity as a matter ? A defenses? sir. His I didn’t my raise it client was because “Q guilty Whether not he ? not insane. A That is correct. * * * * * * “Q Now, I you don’t want me to tell Now, particular case, “Q did you, what he you told but did ask him you question raise defend- to this question of whether or not he ant’s stand his trial or of this offense? A I did. insanity at committed the No, crime? A sir. ****** “Q (By Now, you Mr. Pelofsky) “Q you Did suggest Court discuss with him the various witnesses
that he you your was unable to assist might Sir, be called? A I advised defense? IA to the Court he was said him as rights to constitutional all uncooperative, he He’d was mean. write witnesses, phases facets me say a letter and lawyer, I’m a fine many and facts many, entire case then say he’d I’m good. got times, him, step-mother, father letters at home— brother. ****** “Q your And to mind he had full “Q (By Mr. Pelofsky) And did the understanding of charge nature of respond your Court statements order- and of the possible witnesses ing an examination A of this defendant? fenses? A He completely understood it did, sir. and intelligently. *7 “Q you what Do know the result of “Q right. All your From observations that examination was? A cannot rec- I particular of this defendant, when taken ollect, but he was found and we sane your in light past record went to trial. just work and general involvement in “Q Now, you did at the time of trial area, you criminal could any judg- form intend to a raise defense of not your ment in as to mind whether or insanity reason of as a matter this defendant was I sane or insane? A strategy ? certainly can. yer, “A if No, you’ll I did forgive not, me, but and I’m good maybe law- “THE [******] WITNESS: Yes, I talked him; a arrogant, lawyer every- said, little bit my tries as I practice of over years, thing to defend it 43 certainly his client. I use I should know whether tactically, may I crazy inferred it man is or insane out mind, Court, or to the man myself I consider fair pretty lawyer. not insane. This man was sane and intel- “Q me I ligent uncooperative but he Yes. A I don’t think I did. remember, said, day, I all changed his mind other cannot as because every speak, he un- so to but he sane and witnesses were adverse to me him. intelligently derstood what I said to to the defense.” cross-examination, “Q you Then what again, based on On the witness was many your learned this man from con- asked: your general in light versations and you “When stated that he was found experience, your opinion you it sane, you referring the examina- were intend a defense of not did not to raise Waraich, the you tion of Dr. letter that
guilty by insanity, that cor- reason of is read into the A evidence? Not neces- correct, except rect? A That I did sarily, I and I still believe sir. believed lawyer. it purpose good a tactical intelligent man is to un- sane and is “Q Well, now, you only raised doing. derstand what he’s question cooperate with ability of his question, “Q quite my Mr. That’s not you defense, isn’t correct? your testimony here During Konomos. correct, A That sir. you that he examina- stated had a mental
“Q You never did raise to the Court tion? A Yes. question that he should be examined “Q And doctor found him sane? sanity to determine the time A Yes. crime, committed the that correct? isn’t A I can’t recollect. I don’t know wheth- “Q Now, you’re referring Dr. to War- mean, er I did or I it’s been three not. aich of St. Joe? years four ago, I can’t remember it. No, “A I’m not. I’m violate going to “Q right. Now, All of my my duty my if you oath client insanity you did ask the Court for an you happened. want me tell what instruction, did, you not? A I sir. Court, please HILL: If it “MR. “Q right. All Was instruction question.” I will withdraw No, sir, given? ap- A because it was then Mr. Konomos was excused and parent that the man was not insane. presented, length, fendant’s counsel “Q There was a furnished position. pres- At the conclusion of the Court, was there not? entation, ex- Konomos was recalled and amined as follows: correct,
“A That sir. recall, Earlier, “Q you if will we talked “Q you And did read that into Chapter about is the mental did, sir, evidence? A argued I sections the criminal code Missouri? jury, also. A Yes. “Q you But did not obtain an instruc- “Q you at the time I asked And No, tion? A sir. you defending Mr. Brizendine were
“Q you provisions of Did the were familiar with the testify? A I *8 did, mean, don’t that think he I I statute? can’t remem- here, ber. you. He’s he can tell can’t I statute, fully aware “A I was remember, it’s been years three or four sir. ago. “Q right. you And were aware All “Q All right. you Do recall whether respects fact that it had in some you put any witnesses on? changed relating the law mental disease “A On his behalf? in defense? 6, 1963, date of “(b) If on October Yes,
“A sir. alleged offense, as a result of Yet, the Court you explain to “Q can defect, or defendant did not know disease question you raise why then did not nature, wrong- appreciate quality or or My insanity? A writing to his conduct, incapable fulness of or client was sane.” require- his conduct to the conforming ments of law. attorney called the also prosecuting witness, defendant but the defendant, “(c) a re- Whether except questions, to answer refused sult defect lacked of mental or disease In the course give his name. capacity proceedings to understand propounding objection to discussion of against him own de- or to assist the fol- defendant, questions to March, fense on about 30th lowing occurred: the date of al- for offense ** * leged.” only Not HILL: “MR. my opinion, to prosecutor attempting, petitioner was examined at the Cen- constitutional defendant his deny this February 1967, by ter on 10 and Dr. estab- trying but he’s to remain silent Owre, Jr., Alfred Director of Forensic we have by a man that something lish Psychiatry. Doctor Owre’s that the position advanced or will advance and, submitted to the further improper. highly insane. I think it’s he’s proceedings April incorpor- on you suggest- case, ated in the record this Are over “MR. PELOFSKY: counsel, time, objection petitioner’s ing at counsel. Doctor Court found, very Owre mo- insane at this basis of Doctor War- that this man is aich's that fit Mr. Brezendine was ment? in his own case able and was I HILL: am. “MR. cooperate expressed counsel. the opinion alleged that “the further act of mur- you’re And “MR. PELOFSKY: der, degree, product insane? suggesting that Finally, state of alcoholic intoxication.” you suggesting HILL: I’m “MR. Owre, noting Doctor that Brizendine’s men- asking questions. stop him tal markedly condition had “deteriorated asked haven’t “MR. PELOFSKY: since Dr. psychiatric Waraich’s evaluation to know I want questions, asking you. I’m February 28, 1964,” diagnosis made a the man suggest you Schizophrenic Reaction, para- “Chronic he committed the time insane at type, per- noid manifested delusions of ? crime auditory and grandeur, secution hallucina- control, tions, ideas of reference keep Counselor, just I will HILL: “MR. delusional acts.” Doctor Owre concluded another you. We’re a secret from appellant was unable to “understand question now.” the proceedings against him and to as- following 3, 1967, day February point.” sist in his own defense at this On trial court ordered hearing, 8, 1967, On May the trial court entered Mis- the Western petitioner transferred to the following findings fact and con- examina- Health Center Mental souri clusions of law: determining: the Court tion “to aid pre- represented “1. Defendant defendant, re- aas “(a) Whether liminary counsel of his own defect, lacks disease or sult of choosing, Michael Mr. Konomos. proceedings to understand capacity represented by “2. Defendant was not in his own against him to assist counsel at on November ; fense and/or *9 by was, Defend- 1963, accord- “11. The instruction offered although Mr. Konomos ant’s at the close case was counsel of Brizendine’s statement ing to Mr. 2, 1, phrased language not page Section 552.020 transcript, Exhibit of Defendant’s 552.030, attorney. and V.A.M.S. employed as his still 1964, 14, “12. 30, 1965, Defendant was On Defendant’s con- January “3. On June having duly appealed viction af- for hearing men- granted a on his motion Supreme by firmed of Missouri. question Court tal which raised examination capacity of Defendant’s to understand “13. of his Defendant’s counsel own and assist proceedings against him Konomos, choosing, Mr. Michael has been defense. own a member the Missouri Bar since experience has had extensive January 1964, the Court “4. On practice law, rep- principally of criminal a men- sustained Defendant’s motion resenting except defendants for a short tal the Defend- examination and directed period of time wherein he awas member Hospital ant No. delivered to State Prosecuting Attorney staff Joseph, at St. Missouri. County, Missouri. Jackson report from Hos- “5. A was sent State “14. Defendant’s intend counsel did not pital February 2 to the No. Court on question raise the of Defendant’s Waraich, by stat- signed Dr. G. S. per- disease or defect a defense but was competent ing stand that Defendant was mitted to and did utilize of Dr. trial and able to his counsel. assist tactic, G. S. Waraich because suffering any from Following return from Defendant’s “6. capacity disease or defect lacked Hospital no State No. the proceedings understand against him or by held the Court to determine Defendant’s to assist in his own defense. provided for competency to stand trial as by Section V.A.M.S. April 13, “15. On 1967, Dr. Alfred Owre, Jr., M.D., psychiatrist, pursuant to objec- “7. Defendant’s Court, examination the request Hospital tion to the No. found the Defendant heavily intoxi- argument and in fact used it in his cated with alcohol on the occasion when jury at the trial the case a de- the homicide was the act committed and fense tactic. of murder product was the a state alcoholic intoxication. Chapter
“8. 552 of the Missouri Stat- October, 1963, utes effective in became “16. In his motion to vacate the movant applicable to the herein raised three contentions and no proceedings involving other Defendant others : (1) Lack arraign- of counsel at the Brizendine. ment, (2) The competency petitioner to counsel. (3) stand The plea guilty by “9. No reason of men- tal by disease or defect De- was entered “CONCLUSIONS LAW OF
fendant throughout pro- ceedings. “1. permits Section 552.030 V.A.M.S.
“10. March 31, On Defendant the entry quilty by reason jury Brizendine was tried before arraignment, of mental disease or defect at Jensen, Honorable Richard Judge C. of within days ten arraignment, after 13 of Division No. Circuit Court of (which always leave granted). of Court Missouri, County, found whole indicates that record case Jackson guilty, pursuant verdict Defendant’s counsel not at time in- imprisonment. sentenced life question tend to raise *10 counsel’s argues that his “3. that Defendant or mental or defect reason of disease law 1964) ignorance (January, the new of prior any Brizendine had at defect affect- any or indica- mental disease concerning his case to given trial of of deprived him counsel, ing responsibility criminal to trial suggestion tion or his The counsel. of assistance effective years, he have had known him for that trial Defendant’s found that Court has disease or suffering from mental de- in experience years many of counsel had fect. and has practice criminal law of to take “Movant asks this herein Court and Conclusions Findings of Fact dicated in position and his prejudiced that was was above that defendant of set out Law by the rights were constitutional violated irregularities any by claimed prejudiced not appear at his failure trial counsel of to of resolution raising surrounding and arraignment plea not enter a of question Defendant’s of by defect when reason mental disease or of therefore holds Court stand trial. The information, basis, knowledge, there was no rea- by relief entitled no is Defendant evidence, or history, condition or of such in Point allegations of contained son It conclusion conditions. is therefore the vacate 3 of his motion to sentence.” that the com- of this Court defect mental trial court’s fundamental basis of plained by suggested and now movant of III, judgment, to Points I and an afterthought. not counsel that “Defendant’s did question of Defendant’s intend raise Supreme “The Court has held ab- defect defense but mental disease or as a preliminary sence of at counsel hearing re- utilize the permitted to and did was per not se reversible In the case error. port Dr. S. defense G. Waraich Bar, of prej- Defendant has actual shown no suffering tactic,- was not because udice resulting from the coun- absence of or lacked disease defect from arraignment. sel at therefore The Court proceedings capacity to understand holds that Defendant is to no relief entitled in own against him or assist by reason allegations in contained finding, the court fense.” Based Point his motion sentence. to vacate of mental that, since concluded “2. Defendant’s been raised ques- incapacity counsel not raised have tion of ar- competence event, Defendant’s counsel stand absence of cooperate trial raignment because, by pre- nonprejudicial with counsel effect, report there, trial motions. Dr. War- counsel been aich, Hospital not guilty. No. than indicated entered no other not competent Defendant and The not whether or trial find stand did assist was, counsel did counsel the time Defendant’s object thereafter, request changes to this aware an ex- by physician amination law on Missouri the defense own choosing. effect, that, incapacity, finding, Even even though hearing no changes, held to competence, ignorant such determine the counsel was Defendant’s view he had for and intend counsel’s Defendant’s satisfac- basis tion stat- report, raise the new Defendant defenses authorized prejudiced by the utes. absence
his competency nor was there
any evidence to indicate than our By (j) other subparagraph Defendant competent supra, appellate to stand trial. our Criminal Rule The Court therefore holds that Defendant review is “limited to a determination is not judg entitled to findings, relief reason of whether the conclusions and allegations contained in erro Point 2 of mo- ment clearly court are tion to review, findings vacate sentence. neous.” Under such support of presumptively Doctor Waraich’s court are correct. *11 defense, and, in- finally, offered a he
Although our is not limited to such a review of jury to not structions for the submission determination of there was whether or find- evidence court’s such defense. support to trial ings, are findings supported by evidence in- seemingly To with considered reviewing rejected not “the to be unless position is the com- consistent of counsel left court on the entire evidence is with presented plete absence the matters and firm a mistake definite conviction us to the trial before court likewise v. committed.” States United of for of evidence whatsoever review 364, Gypsum Co., United States 333 U.S. incom- a defense of a substantial for basis 395, 525, 542, 68 92 L.Ed. See S.Ct. 746. petency alleged act. at the time of the State, Mo., Crosswhite v. 426 67. S.W.2d only psychiatric evaluation directed question negatives the such existence of Here, there is no doubt Konomos’ that a defense. Mr. Konomos testified supports 27.26 testimony on the explained gave examination otherwise finding. the trial court’s Konomos testified support when Finally, defense.1 for such a that he consider the defendant appellant’s opportunity an was afforded sane time trial he raised of position the incom- counsel state only the issue tactics. matter of trial petency appellant time at the However, must, feel, we such view offense, so. do declined testimony in the actions light of counsel’s ap- in the course of his defense of the proceeding This in which is not a pellant. The motion pretrial for examina- appellant any presump is favored with tion and in support statement of counsel tion of innocence such as was accorded such motion showed substantial as doubt in the original upon trial. The burden is Brizendine’s at that him to establish facts which would entitle reasonable basis such doubt. for him to relief. His fill obvious failure to Although counsel says now that he was upon deficiencies for relief his claim satisfied with the his client accept rests leaves to our no alternative competent nevertheless, he, to proceed, ance trial court’s factual conclusion. stated in his argument the defendant “cannot cooperate me. * * * conclusion, Accepting such factual my cannot consistently talk with support does court’s client the trial conclusions prepare at least a decent half of law the effect of the absence regarding defense.” appellant’s attorney arraignment? As for counsel’s statement that he no Appellant that, contends under v. White basis for a incapacity defense of mental Maryland, 59, State of 373 83 S.Ct. U.S. at the time offense, it is clear that 1050, 193, 10 L.E.2d absence was, such in effect, the only defense which capital arraignment inherently in a case is did, in fact, attempt present. prejudicial. However, prejudice stated in his opening statement that such obvious, Maryland White v. State of defense, was the he attempted to make use “guilty” defendant’s used being Appellant’s previously counsel had attorney thereby raised tence of his him divests objection testifying to Konomos privilege relying upon to state self of the client, ments up made to him protection against attorney’s based disclo attorney-client privilege. Konomos him sure of communications to declined go on such basis to Kendrick, Cir., further into client. v. States 4 United examination, 110; above Peyton, D.C., set out. No 331 F.2d Pruitt v. 243 question is here raised F.Supp. 907; Butler, about v. D. United States appellant upon rely objec C., 102, such an F.Supp. 104(2); v. State tion. cases, Kruchten, numerous it has been held 101 Ariz. 417 P.2d that a defendant eompe- [1-4], attacks period beyond ten-day may be raised subsequent in a against him “at later date Mary- such following changed plea. White v. State permit.” good cause Ala- Hamilton v. State land followed court, ex- to be authority L.Ed.2d This bama, 82 S.Ct. 368 U.S. cause” favorably good “for held ercised Hamilton, arraignment was 114. In Richardson, State v. unreviewable. See criminal stage Alabama be a critical 576; 805, 46 S.W.2d must 329 Mo. defenses procedure because numerous Jack- 595; Fore- son, 130 S.W.2d “irre- 344 Mo. time or be been raised at that *12 67. Mo.Sup., 418 Roddy, S.W.2d ster v. 552.030, supra, a trievably By lost.” § significant differ- a produces That fact upon the de- rely fendant who intends to arraign- the Alabama our excluding ence between or defect fense of disease Maxwell, v. procedures. ment See Dean arraign- at his responsibility plead must so 884, A.L.R. 193, 187 5 174 Ohio N.E.2d St. notice give ment must of written 1263, Ops.2d 22 144. 3d Ohio upon within rely intention such days ten not or at such guilty a of of may time good
later as the court for cause regarding Although our rules permit. that this can be little doubt There upon arraignment are directed counsel arraign- provision significance the adds indigent primarily that an defend seeing procedure. in step ment our criminal right (S.Ct. ant is the counsel afforded of a mere step not treat the as Courts should 29.01, V.A.M.R.), a Rule the fact that de in formality with, apparently occurred as au employed fendant does not case, stereotyped re- entry this not record upon thorize the the ar court proceedings. lated the actual raignment counsel. in the absence of such case, in
Although that, we conclude deprivation right there the has been no of However, we are that not convinced to counsel in the Amend violation of Sixth Mary language the White State of of v. ment, nevertheless, must trial courts the land and Hamilton of Alabama v. State zealously guard rights defendants at the of applied to be regard without the actual for stage, the at all arraignment as well as holdings of those the cases. As stated stages proceedings. other 773, in Benison, State v. 415 S.W.2d upon 775: “The ar rule requiring counsel incompetence inflexible; On the
raignment of trial coun is not it is not re quired where, here, prejudice issue, as no later express sel court made no could of possibly result from absence allegation Konomos that during 552, counsel. The Chapter absence of counsel was not familiar with RSMo. the rec The record of trial as well as arraignment not, se, per violation ord on this motion would the Sixth Amendment.” support appellant’s allegation for lend Furthermore, ignorance in v. part Hamilton State on the his counsel. Alabama, Supreme Konomos, that conclusion On behalf observe Court’s do “crit- questioning that Alabama com motion his client’s based, in proceeding petency ical” in the stage stand trial drawn part, upon requirement 552.020, law language Alabama Cum. RSMo 1967 § 545.750, at Supp., V.A.M.S., repealed be insanity that the defense of raised not the § time, 1959, ap “irretrievably However, be lost.” Unless RSMo V.A.M.S. raised, pellant solely upon so such the defense thereafter rest could only ignorance raised discretion of the unless it “blotted out essence “ re- judge, ‘not of a * * whose determination was substantial defense the trial court] [in States, appeal.” visable’ on 82 U.S. 368 U.S. S.Ct. Bruce v. United 126 supra, App.D.C. 336, the defense There 157. Under F.2d fore, appellant of not disease to convict his counsel reason of mental inadequate representation, appellant incompetent that the defendant was must show there was some basis for assert- the offense was a “secret.” ing the defense al- of which his counsel States, D.C., Poe United v. 233 F.
legedly ignorant. Again, the evidence Supp. 173, upon by appellant, relied simply record does afford attorney, ap defendant’s knowing basis for a finding there was reason- plicable prosecu law to the ground able a defense of lack of mental tion to capacity. cross-examine the Appellant elected stand stand, event that against he took the despite holding record advised result, defendant’s testifying. As a Brizendine, supra, nothing v. went case no defense supported a record defense of Likewise, People evidence whatsoever. sanity under either old new or the Ibarra, Cal.Rptr. Cal.2d not, versions of the defense. 386 P.2d fail attorney defendant’s might done, have evidence on the mo- offer ed object incriminating tion which evidence be supported conclu- *13 sion cause he appellant that the law which incompetent the unaware of at gave object. the fact, defendant a standing In only the mat- offense. cases, In those it clearly ignorance the ter hearing offered at the on the motion was attorney prej produced which the to the contrary effect. Here, udice defendant. insofar as the shows, record before us the defendant’s The absence of such dis evidence difficulty primarily arises from the lack tinguishes this case from that of Schaber support of for the now defense which Maxwell, v. 348 (C.A. 6). F.2d 664 In says should been advanced and case, that defense comply counsel failed to attorney’s familiarity pertinent the with law with Ohio in an attempted law of defense procedure not, alone, have avoid insanity. In holding that the defendant consequences ap against ed the the which had been effective denied assistance of pellant protests. counsel, the upon court merely relied the defense apparent ignorance counsel’s appellant’s As we view brief on law, of Ohio upon also “the facts and II, Point the issue competency of to stand * * circumstances of this case 348 trial, we that varies the basic- find F.2d Particularly, pointed the court appellant’s contention motion. found out that the “evidence to record contained The erred alleges brief that trial court the raise serious sanity doubts as to the of petitioner, thereby emphasizing import- appellant competent stand holding ance having However, trial. of a of not the thrust of that is ” ‘not guilty by insanity.’ petition. ground reason Point II of the for of 671. Psychiatric F.2d pointed there evidence was relief is that the failure of stated to, as lay history well as testimony pass trial court a hearing of to conduct a of erratic part behavior on the stand competency the issue of his of the de- proc requirements fendant. due p. See Footnote trial violated the 672. As we have previously noted, Pate v. Robin evidence is ess of law as set down in such lacking son, appellant, case and L.Ed.2d in his U.S. 86 S.Ct. brief, respon our alleged directs attention to 815. As no evidence issue of sibility act, petition supply claims would reasonable at time of the inwas, basis for the says not allege defense which now does that the defendant ignorance deprived fact, trial, incompetent counsel’s nor was him of. to stand Again observe the at incongruity evidence to such effect offered appellant’s respect hearing. appellant’s (We assertion also note his counsel’s position, explain in the hearing on here makes some brief effort to motion, claiming whether the trial on he was absence of evidence such PER Point CURIAM: under matters basis asserted arraignment. I, the counsel at absence of WELBORN, opinion by foregoing failure appellant urging Apparently is One, adopted as C., in Division written plead guilty by reason mental opinion the Court Banc. en capacity precluded presentation also dis- except J., SEILER, evidence on the issue of All concur opinion filed. Competency separate dissenting trial. stand stand sents in accordance with determined § dependent upon plea of supra. is not It (dissenting). SEILER, Justice reason defect mandatory pro- It to me seems af- make such in manner failure to 552.020.3,1requiring that where visions of § appellant’s proceed under fected the proceed] “the fitness to [on 552.020, supra.) shall hold contested opin Examination the court’s issue”, here on the have not been followed Robinson, supra, ion in Pate shows judgment and that must therefore absence, case, in this significance of given a new trial. vacated and defendant support incom substantial the claim opinion findings, am also Pate,
petency there to stand trial. judgment of the trial court conclusions relating on a broad evidence scale proceeding clearly er- in the 27.26 are capacity. defendant’s mental The defend roneous. long history, adduced ant had had trial, a motion original murder In the ill evidencing behavior “defend- for an examination of was filed *14 Supreme that, in such ness. The Court held pro- ability to understand ant’s circumstances, duty trial court had him counsel ceedings against and to aid competency pass upon the to consider and to in his defense”. This was sufficient trial, regardless to stand play provisions into bring 552.020 § request by the absence counsel for un- then even if defendant’s counsel it That petitioner. either the state or the The motion aware of the statute. pro large was the mass of evidence by strong representations made supported requirement is obvious from duced such coun- the trial court defendant’s then to held subsequent been cases which has court, sel, of the Canons which the view to suggestion'of incompetency that a mere Ethics, 4.22, expect to rule was entitled Pate proceed is not sufficient invoke to spoken in and fairness”. “candor were Follette, rule. United States ex rel. Rizzi v. attorney prosecuting assistant Even the 561; Pey Cir., 559, 2 Hawks v. 367 F.2d if defend- that while he did not know said ton, 125; Cir., 123, 4 370 Wilson F.2d “mentally unstable”, he considered ant was Here, Bailey, Cir., 4 663, 375 667-669. F.2d can be “goofy”. there the defendant So incompetency had although defendant’s to question but that defendant’s fitness no suggested, psychiatric examination proceed put in issue. competency produced the conclusion of present in the trial court found As the trial, was sufficient to warrant re- proceeding, following defendant’s 27.26 objection. absence of Whalem further See made turn examination States, U.S.App.D.C. v. United 120 Hospital No. “no State 812; States, D.C. 346 F.2d Heard v. United by the determine held Court to F.Supp. D.C., as fendant’s to stand not con- We do find the trial court’s provided for V.A.M.S.” “clearly (S.Ct. clusion Rule erroneous” this, opening 27.26(j), supra). judgment Despite is affirm- in his statement defend- jury original ed. to Y.A.M.S.; statutory are to all references are to V.A.M.R. 1. All references rule ports subject to position that should be cross-examina- ant’s then counsel took the finding tion is competent proceed, not where the contested. defendant was way is written saying Dr. Waraich that defendant would take declared, prove through himself decided issue. He stand we “because shall “ * * * adequate He authority is com- intellectual medical man capacity petent his counsel in the cooperate Later assist con- with me”. * * *. jury prove legal duct of his There- told “this man is he would fore, respectfully suggest that his case incompetent”. through ordinary be handled channels argument jury, de- In his final to the of criminal law.” challenged fendant’s then counsel the con- examining clusion of the doctor contained But showing there that Dr. is adequate the above that “He has legal Waraich was aware of what capacity intellectual assist his standard of fitness to is whether legal defense”, saying the conduct by counsel, on examination the doctor “That, accept. I will not testify support to facts which would lawyer. is not a not know He does what judicial finding proceed. fitness to require my I cannot When client. Defendant’s counsel recognized this when me can intelligently, answer so I handle pointed out, “That, accept” I will not properly.” his defense Later counsel said (referring conclusions) the doctor’s you. all I jury: “That can tell that the doctor “Even tells the what I presented no evidence this man because to do Dusky in this case.” In v. United * * * cooperate can not with me States, 362 U.S. 80 S.Ct. L.Ed. “ consistently can my talk with client 2d it is said the ‘test must be whether prepare at least a half decent defense.” present he has sufficient ability consult lawyer with his with a degree reasonable quite It thus that at the clear understanding rational whether he —and defendant did in fact contest has a rational well factual under- physician examining standing proceedings against ”. him’ competent proceed. that defendant was psychiatrist All competent to do is It not have been done in the usual *15 a report. to render medical judge The trial way, opinion quote but to in from the is the pro- one who knows about criminal State (Mo.Sup.) v. Brizendine 391 S.W.2d ceedings qualified pass and is to 898, 901, “As counsel defendant here whether is competent proceed defendant to states, ‘It apparent transcript is from the requirements within the of the test laid State, that appellant, neither the nor the down above. This unquestionably why is Court, of, proceeded was aware at least legislature ” provided hearing for a in Chapter under 552.’ This be failure to contested by cases and for a determination course, cannot, aware of the statute judge. it, trial As I understand requirement by eliminate hearing of a means a full fair evidentiary and hearing proceed, court on the issue of fitness to fact, end determining an issue of here, apparent where as it defendant findings and a and by decision made finding by was is contesting and made trial court on the basis of that evidence. the examining physician. This in case. was done At hearing such a provides 552.020 § report may evidence, be received In trial present proceeding 27.26 defendant has to summon a fact that no hear- court after as physician required by ing cross-examine ar- was held as § report question, offer evidence. rives at the conclusion defendant was that 28, by Waraich, February prejudiced by hearing made Dr. dated a lack of on his 1964, good why a example proceed. arriving re- at such can be considered Two, 3 and 4 above seems trial court this conclusion it can be said not believe I do together. following: rely on the failure counsel’s then that defendant’s by Dr. reached conclusions 1. avoid operate to report can object to 28, February report of Waraich by required necessity for the competent was 1964, that defendant contested, finding is 552.020 when § stand trial. it was, I believe nor do in effect as then that defendant’s said fairly can then counsel defendant’s 2. Failure report. As with the counsel was satisfied report. object to the Robinson, 383 U.S. in Pate v. then counsel defendant’s 3. Failure of the record 15 L.Ed.2d 86 S.Ct. by physician a examination request an that defendant’s shows choosing. own of his throughout insisted then counsel proceed, fitness to defendant’s satisfac- then counsel’s Defendant’s 4. defense, in his cooperate competency to report. tion de- Failure of very much in issue. request an ex- then fendant’s counsel’s testi- Defendant’s former physician of defendant’s amination a claim hearing that 27.26 mony choosing gets again to counsel’s own back merely a incompetency to rights under defendant’s unawareness of defense tactic. then coun- Although defendant’s 552.020. § Dr. February 1967 6. The sister, employed by defendant’s sel Owre, Hos- psychiatrist another open during the counsel claimed a 2, received, objection, as pital over No. money to not have the trial defendant did hearing, the crime part 27.26 employ psychiatrist (it is to be noted product of a state of alcoholic indigent here as an defendant heavily toxication that defendant was ap- permitted also him to the trial court at the time. intoxicated peal pauper original from his con- closing argu- viction). During the state’s already problems I have discussed the ment, prosecutor pointing out Dr. placing full reliance on involved insanity, de- question of if there were giving without Waraich’s conclusions lawyer psychiatrists fendant’s would have opportunity fendant an to cross-examine testify, to which counsel ob- in court also, present evidence of his own. See money got the jected, we haven’t “because 10) 361 (C.C.A. Butler v. United States or the Under 552.020 means.” 869, holding F.2d a district court erred an entitled a matter of course to proceeding in a under U.S.C. § physician of his own examination a similar without a accepting expense choosing could be taxed *16 hearing opportunity an to cross- it would not as costs under 552.080. So § also, See, Brizendine examine doctor. appear that defendant’s counsel’s failure F.Supp. (D.C.W.D.Mo.) v. Swenson request by physician an examination 68, 75, People Gonzalez, 20 N.Y.2d v. necessarily choosing defendant’s was own 229 N.E.2d 222. N.Y.S.2d did not want It because defendant one. D.C.D.C., States, In Heard United stated, could well have been as because point by Com- F.Supp. cited on this which em- counsel had no funds with Welborn, points out the court missioner examiner, ploy yet at the an same time transcript expressions was “devoid of by obtained court not aware one could be competency by any of doubt as to order under 552.020. here, parties.” That is not case where clear in the murder trial the record is the court then counsel As defendant’s accepted hearing in the 27.26 defendant’s many defendant was not com- times stated former statement that there sim- proceed. counsel’s petent to ply side, was no truth what his contradictory by counsel side statements and, told the court and later the about correct, as both cannot be we realize defendant’s lack that that in' proceed, of fitness to at least one of the two he must along spoken erroneously. Thus, counsel knew all defendant have was sane we witnesses, charge, specific error, and understood detected him in one from defenses, possible and the this was which be a capacity inferred make * * just a matter trial tactics. Parenthet- other errors *. ically, it is to be noted that rule How “* * * present mode, [I]n Lawyer May Far a Supporting Go in process discrediting is in its chief aim Cause, points “Nothing Client’s out that incomparably stronger, always because it operates certainly more to create sort shows that witness had made some popular prejudice lawyers foster against time, a mistake at and thus demon- some class, deprive profession and to capacity strates a to make errors. In other esteem, public full measure words, statements both cannot be belongs confidence proper correct; incorrect; one of two must be duties, discharge of than its does the false therefore, * * * capacity shows to err. It claim duty that it is the the repugnancy sig- of the two that lawyer do whatever him may enable ** * says nificant ‘if what be winning succeed his client’s cause.” contradictory, that removes him all from Be that may, as it the fact is evi- credit; most totally things opposite cannot dent testimony that the hear- 27.26 receive belief from attestation of ” ing of lawyer former defendant’s was man.’ highly self-serving, because one contention me, therefore, findings It seems by
advanced hearing and conclusions of the trial court prejudice through lack of as- effective prejudice there no to defendant sistance of in failing counsel to be aware hearing failure to hold a on com- Chapter 552 and what could done be petency proceed, they to the extent are Therefore, for defendant it. under if it self-serving based the inconsistent, appeared that there no merit to testimony counsel, of defendant’s former claim of lack of fitness to are clearly erroneous and without by defect, then, reason mental support. substantial course, there be prejudice could to de- fendant and counsel would not remiss above, again As to 6 have an untested failing to raise the defenses and invoke psychiatrist an examining procedures Chapter available under accepted which is at face value taking Without time to compare the testi- court, objection, over and which con- mony at the hearing 27.26 with what coun- which the trial tains original point sel said at the by point, place con- in the 27.26 seems to quote or to statements which were namely, reliance, that the siderable defend- opposite direct of what had earlier heavily ant and the crime intoxicated said, apparent defendant’s former product of a state of alcoholic one thing said at one The foundation for this state- toxication. very something different at another. puzzling. medical examiner is ment
What this testimony transcript original to a witness’ trial shows does *17 witnesses, by Wigmore is discussed Professor all called in his that there were four Evidence, Ill, Ed., 1017, state, specifically work on the by Vol. 3rd who were asked § Self-Contradiction, on states, pp. drunk or had been where he whether defendant was “ * * * One, Anderson, night 685-686: simply drinking. the resort Mrs. hotel, prior statements, the own in who saw defendant as witness’ in which clerk the he given contrary has left few minutes the place version. he the hotel a after We far for a hearing proceed not drunk as he was fitness to when shooting, said the Cox, dispute at whose in Claudia issue is were could see. not followed as she minutes appeared original a few the judgment place defendant the gun, with shooting left the must be vacated and and set aside defend- after deceased, given ant he had shot a new trial. the statement that she drunk and he did not seem said Finally, it findings' seems to theme many him when he occasions seen had on clearly trial court are erroneous on Powell, also who was drunk. Clara was issue of of counsel. Kono- Cox, that much pay didn’t she Claudia said experienced spe- mos held himself out as an Clark, attention defendant. Janice Jean cialist law. Yet criminal he was not she shooting, said eyewitness to the changed aware that the law been had drinking he had know whether Missouri that the so defendant could testimony from or not. The criminally held liable for conduct therefore, not show witnesses, does state’s by reason mental he disease or defect drinking. the medi- Yet evidence of nature, appreciate did not know or examiner, the crime cal concludes quality wrongfulness of his conduct product “the of a state of alcoholic incapable conforming his conduct to arriving at this con- intoxication.” requirements of law. The trial did not report clusion takes into consideration start until March new law history given defendant to the became effective October 1963. In that examiner, prob- “in saying it all indicates time, field, length specialist in the ability” “heavily defendant was intoxi- should it. says Konomos have known about report, however, cated”. The same jury Konomos tried to his cli- history convince man statement of whose ent had mental He disease or defect. accepted is “unfit being prove told the jury would defendant was point”, paranoid schizophrenia, “incompetent”. Dr. Waraich’s He read deteriorated condition “has it. jury to the markedly” since commented examination in argued (when the defendant a schizo- he was as “function- described phrenic, next borderline ing intel- range within the borderline kill, insanity, intent to needed lectuality”), that defendant should be hospitalized treatment, punishment, yet also told hospital in a mental closed treatment, they must psychiatric ward decide is unable issue wrong, against knew from proceedings to understand him whether defendant only and to offered assist his own defense. I fail and the instructions counsel to see how under the above on whether defendant were based wrong. regarded capable determining right circumstances can be as substan- tending tial support evidence the find- have held defend- These instructions ings trial court. than rigorous conclusions ant a more standard Taking into record disease required consideration entire where defect or law proceeding coun- before the court 27.26 illustrate They further involved. (which only knowledge included record the first lack sel’s trial), findings, representation believe conclusions Defendant’s available. judgment acceptable the trial in the 27.26 standard. counsel was below proceeding clearly were erroneous and dissent. respectfully I, therefore, procedures mandatory
since the of 552.020