STATE of Missouri, Respondent, v. Timothy Paul CASON, Appellant
No. 61547
Supreme Court of Missouri, Division No. 2
April 8, 1980
596 S.W.2d 436
Appellants finally contend that the trial court should not have entered summary judgment against them because there was a genuine issue of material fact presented as to whether they had made reasonable repairs and whether the house constituted a dangerous building requiring demolition.
Clearly the dangerous building finding was not an issue before the court. That had been determined in the administrative heаring from which no appeal was taken. The issue before the court was compliance with the December 15 order. The trial court had the affidavit of Rice that his inspections between January 31 and March 28, 1977 revealed no change in the conditions which existed prior to the December hearing. Subsequent inspections between April 26 and August 22, 1977 showed only painting of portions of the house and partial repair of the porch roof. Mr. Atkins’ counter affidavit does not contradict Rice‘s affidavit. It offers the weather and the illness of the contractor apparently as an excuse for failure to commence making repairs as directed. It states that a new roоf had been placed on the house, but that it was done after the date of Rice‘s affidavit. It asserts that materials have been purchased for further repairs which Atkins proposed to make as his health and full-time working activities permitted.
On these affidavits the court could properly conclude that the directions in the December 15 оrder to commence repairs within 30 days and proceed to completion without unreasonable delay had not been met. Such a conclusion was supported by unassailable proof and showed that respondent was entitled, on that basis, to judgment as a matter of law.
The trial court attempted to avoid the harsh remedy of demolition of the property by offering to permit appellants to demonstrate a good faith effort to place the property in good repair. The trial court was patient and considerate beyond the requirements of the law but the appellants simply failed to cooperate. No reason has been demоnstrated for this Court‘s reversal of the trial court‘s judgment.
Judgment affirmed.
PER CURIAM:
The foregoing opinion by WELBORN, C., is adopted as the opinion of the court.
All of the judges concur.
Jeff S. Elson, Brookfield, for appellant.
John Ashcroft, Atty. Gen., Kathryn Marie Krause, Asst. Atty. Gen., Jefferson City, for respondent.
STOCKARD, Commissioner.
Timothy Paul Cason, age 16, was found guilty of capital murder,
The sufficiency of the evidence is not challenged. A jury reasonably could find
Prior to trial the State requested a mental examination pursuant to
* * *
The trial court gave, among others, the following instructions:
If you find and believe from the evidence beyond a reasonable doubt:
First, that on or about the 11th day of September, 1977, in the County of Daviess, State of Missouri, the defеndant caused the death of S. L. Houghton by shooting him, and
Second, that the defendant intended to take the life of S. L. Houghton, and
Third, that the defendant knew that he was practically certain to cause the death of S. L. Houghton, and
Fourth, that the defendant considered taking the life of S. L. Houghton and reflected upon this matter coolly and fully before doing so, then you will find the defendant guilty of capital murder.
However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of those propositions, you must find the defendant not guilty of that offense.
Instruction No. 9
If you do not find and believe from the evidence beyond a reasonable doubt each and all of the follоwing:
First, that the defendant intended to take the life of S. L. Houghton, and
Second, that the defendant considered taking the life of S. L. Houghton, and reflected upon this matter coolly and fully before doing so,
Then you must find the defendant not guilty of capital murder.
The trial court gave instructions submitting second degree murder and manslaughter. It also gave an instruction conversing the issue of intent in the instruction submitting second degree murder.
Appellant‘s first point is that the trial court erred in giving Instruction No. 8 because it “failed to instruct the jury about Appellant‘s defense of mental disease or defect.” As noted, appellant expressly abandoned the affirmative defense of mental disease or defect excluding rеsponsibility, and no instruction submitting that defense was given. The statement of the point lacks appropriate clarity but from his argument it is apparent that appellant contends that Instruction No. 8 was insufficient because it, and the other instructions, did not submit the special negative defense, of which there was evidence, of “diminished mental capacity” which affected his mind so that he did not have the capacity to intend the act.
This defense is based upon the concept that mental derangement of an accused may not be of such quantity or quality to absolve him of all responsibility for his criminal actions, but may be sufficient to preclude him from having the requisite mental state for а particular offense; for example, he may lack the capacity to deliberate or premeditate. The doctrine was rejected in this State until 1963. For example, see State v. Holloway, 156 Mo. 222, 56 S.W. 734 (1900). In 1963 the General Assembly enacted a new mental responsibility law based upon the Model Code. See Missouri‘s Mental Responsibility Law. A Symposium: An analysis of the lаw. Richardson, Reardon and Simeone, 19 J.Mo.B. 645 (Dec. 1963); 32 M.L.Rev. 274 (1967). Included in that law is
The trial of appellant was governed by instructions referred to as the “15.00 Series of MAI-CR,” effective April 12, 1978 and applicable to all homicides committed after
In order for the jury to find apрellant guilty of capital murder they were expressly required by Instruction No. 8 to find that he “caused” the death of Sheriff Houghton by shooting him, that in doing so appellant “intended” to take his life, that he “knew” that by shooting the sheriff he was practically certain to cause his death, and finally, that he “considered taking the life” of the sheriff and “reflected upon this matter coolly and fully before doing so.” The jury was then told that if they did not find and believe from the evidence beyond a reasonable doubt “each and all of those propositions, [they] must find [him] not guilty.”
By Instruction No. 9, the jury was then told that if they did not find and believe “beyond a reasonable doubt” that appellant “intended to take the life” of the sheriff, and that he had not “considered taking [his] life” and had not “reflected upon this matter coolly and fully before doing so,” they “must” find appellant not guilty of capital murder.
The issue of diminished mental capacity was clearly presented to the jury by the oral argument of counsel. Appellant‘s counsel admitted in argument that appellant “shot the sheriff three times in the head and killed him,” and then stated to the jury that his defense was not that of “complete insanity,” but as the examining doctor selected by appellant, Dr. Phillips, testified, “there was no way in God‘s green earth that [appellant] could have considered what he was about to do before he did it,” and he then asked: “Do you believe beyоnd a reasonable doubt that what [appellant] did is the product of someone who is not suffering from some mental disease or defect?” He later argued, “The key to my side of the case and [appellant‘s] side of the case” is the testimony of Doctor Phillips.
In view of the instructions on lesser included offenses, as required by Anderson, supra, and the convеrse instructions, supplemented by the evidence and the argument of counsel on the issue of lack of intent, the instructions did “take account” of the doctrine of diminished mental capacity as contemplated by the requirements applicable at the time of trial. See State v. Cole, 588 S.W.2d 94 (Mo.App.1979).
Appellant next asserts that the trial court erred in admitting into еvidence Exhibit No. 1, a photograph of the head of Sheriff Houghton showing the bullet wounds which caused his death, because it “had no probative value and sought only to inflame the jury.” Appellant argues that he admitted the death of Sheriff Houghton was caused by his act, and therefore “the only issue was [his] state of mind at the time of the offense,” and that Exhibit Nо. 1 did not assist the jury in deciding that issue.
Appellant entered a plea of not guilty. Therefore, the State had the burden to cause the jury to find and believe each element of the offense submitted by the instructions. It is true that before the jury was sworn, appellant, his counsel, and his mother entered into a “stipulation” admitting that he shot and killed Sheriff Houghton, but that was to the court only and not before the jury. We do not find any such
Appellant‘s final point is that the court erred in sustaining the objection of the State to testimony of Betty Cason, appellant‘s adoptive mother, “as to her knowledge of Appellant‘s mental condition,” and “as to her knowledge of [his] ability to premeditate.” He relies on Underwood v. State, 553 S.W.2d 869 (Mo.App.1977), but he does not cite to us the page in the transcript where the ruling can be found.
From our study of the transcript it appears that appellant has reference to the court‘s ruling in sustaining an objection to the following question: “Q. In the early morning hours of September 11th [the date of the homicide], based upon your observations of Time [Tim, the first name of appellant], do you have an opinion as to whether or not Tim deliberately and premeditatedly murdered the sheriff?”
We first note that Mrs. Cason was permitted to testify concerning appellant‘s behavior and conduct which would have a bearing on his mental condition. As stated in Underwood v. State, supra, a lay person may testify to another‘s mental condition, if the opinion is based on adequate observation and on related supporting facts, State v. Shipman, 568 S.W.2d 947 (Mo.App.1978); State v. Rose, 249 S.W.2d 324 (Mo.1952), but it is generally held that “It is not proper for a witness to testify to a conclusiоn when it has the effect of answering the ultimate issue the jury is to determine.” State v. Linzia, 412 S.W.2d 116, 120 (Mo.1967). See also, State v. Wertz, 191 Mo. 569, 90 S.W. 838 (1905). Neither is it proper for a lay witness to give an opinion “of the real or actual state of mind” of another person. State v. Warren, 317 Mo. 843, 297 S.W. 397 (1927). See also State v. Morris, 263 Mo. 339, 172 S.W. 603 (1915). Under the circumstances it was not prejudicial error for the court to exclude the opinion testimony of appellant‘s mother as to whethеr he “deliberately and premeditatedly” committed the murder.
The judgment is affirmed.
HIGGINS and WELLIVER, JJ., concur.
SEILER, P. J., dissents in separate dissenting opinion filed.
SEILER, Presiding Judge, dissenting.
I respectfully dissent. I do not believe the instructions did fairly take account of the doctrine of diminished mental capacity. I do not believe the quoted portions of instruction No. 8, the standard instruction on capital murder, or the conversе thereof by instruction No. 9, sufficiently alerted the jury to the defense the defendant was seeking to make. This can readily be seen by examining MAI-CR2d 3.74, which provides as follows:
3.74 Mental Responsibility: Diminished Mental Capacity
Evidence that the defendant (had) (did not have) (had or did not have) a mental disease or defect may be considered by you in determining whether the defendant had or did not have the statе of mind required of [name of offense] and set out in Instruction No. ___ as an element of that offense.
If, after considering all of the evidence, including evidence that the defendant did
or did not have a mental disease or defect, you find and believe from the evidence that the defendant engaged in the conduct submitted in Instruction No. ___ but have a rеasonable doubt that he acted [insert the mental state involved, such as “with the (purpose) (knowledge) submitted in that instruction,” or “purposely,” or “knowingly,” or “recklessly,” or “with intent to ___” or “after considering taking the life of ___ and reflecting upon this matter coolly and fully before doing so“], then you must find the defendant not guilty of the offense of [name of offense] аs submitted in Instruction No. ___.
Nothing in the instructions given in this case invites such direct consideration by the jury, nor does the argument of counsel supply the deficiency, particularly in view of MAI-CR 2.01, 2.02, 2.03 and 2.68, both First and Second, which tell the jury that the law it must follow is that given by the court, not counsel. Diminished mental capacity goes directly to an issue which the jury must determine in arriving at its verdict and is one of the “questions of law necessary for their information in giving their verdict“. See
I realize that MAI-CR2d 3.74 was made effective for all trials after January 1, 1979, and this trial took place a few weeks prior to that date. But the principle upon which the defense rests was established long prior thereto and there is no reason why an instruction on the defense is not required when supported by the evidence and where it is clear, as here, that it was defendant‘s real and only defense.
In my opinion, the instructions did not fairly present defendant‘s defense and it was reversible error for the court not to have instructed on the theory of diminished capacity.