State v. GrantState v. Grant
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Defendant-appellant, Oscar James Grant, appeals from a judgment of conviction entered by the Circuit Court of the City of St. Louis on May 21, 1976. The jury found Grant guilty of murder in the second degree,
This appeal involves alleged errors in the trial court’s application of
The evidence at the trial clearly established that appellant and his cousin, Sanders Johnson, Jr., the deceased, spent most of May 23,1975 drinking with friends. Appellant and the deceased got into an argument. The deceased struck appellant and pulled a knife on him. Appellant wrested the knife from the deceased and started chasing him. Appellant chased deceased into a store and
Appellant’s counsel filed a pretrial motion for a psychiatric examination of appellant. The motion stated that on May 23, 1975, and continuing thereafter, appellant had a mental disease or defect within the meaning of
On September 10, 1975, after receiving a copy of the psychiatric report, appellant’s counsel filed “Objections To Findings of Psychiatrist” which stated:
“Comes now Joseph W. Warzycki, attorney for Defendant, and informs the Court thаt in accordance with the provisions ofSection 552.020(4) R.S.Mo.1969, the Defendant hereby files an objection to the findings entered in the report of the psychiatric examination previously ordered by the Court, a copy of which was received by Defendant’s attorney on September 10, 1975. Defendant further informs the Court that he is without funds to employ the services of a psychiatrist; and Defendant requests that the court order that Defendant be examined by another psychiatrist to be designated by the Court and that a copy of the report of this examination be included in the confidential Court files relative to the Defendant’s cause before this Court.”
The trial court, on October 16, 1975, found that the findings of the psychiatric report were not contested by the State, nor the accused, nor his counsel. Thereupon the court found that the defendant had mental fitness to proceed based upon said psychiatric report. The cause was ordered removed from the mental examination docket and set for trial.
Appellant’s first contention is that the trial court erred in refusing to grant him a second psychiatric examination because
The pertinent portion of subsection 4,
“Within five days after the filing of the [initial psychiatric] report, both the accused and the state shall, upon written request, be entitled to an order granting them an examination of the accused by a physician of their own choosing and at their own expense.”
The court did not violate the provisions of subsection 4,
Appellant’s second contention is that even if thе trial court acted properly under the statute in denying a second psychiatric examination, there was error because the
The Supreme Court of the United States has ruled that the equal protection clause does not require absolute equality or precisely equal advаntages, nor does it require the State to equalize economic conditions. Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974). See also, San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16, reh. den., 411 U.S. 959, 93 S.Ct. 1919, 36 L.Ed.2d 418 (1973).
“In [Bloom case] an inmate in a state mental institution applying for release on the ground that he was now sane, sought an examination by a physician of his own choice contending he was entitled to the examination at state expense. The contention was rejected. . . . The cases concerning the alleged equal protection violation involved in making possible an examination by a physician of thе petitioner’s own choice for moneyed inmates but not for indigents were reviewed, and we did not find a constitutionally impermissible discrimination. We do not find one here.” 472 S.W.2d at 429-430.1
Accord, State v. Sturdivan, 497 S.W.2d 139, 144 (Mo.1973); State v. Mullen, 532 S.W.2d 794, 799 (Mo.App.1975); Newbold v. State, 492 S.W.2d 809, 820-821 (Mo.1973).
In view of the fact that the statute provides for, and appellant received, one free and objective examination at state expense, there is not an unconstitutional and invidious discrimination based upon wealth. That appellant was dissatisfied with the result of the initial examination doеs not without more require the State to continue to pay for subsequent examinations.
Appellant’s third alleged ground for reversal is that the trial court violated
Appellant bases his assertion that he contested the psychiatrist’s opinion on his motion for a second court orderеd examination. In that motion appellant stated in part that “in accordance with the provisions of
Contrary to the language in appellant’s motion, there is no provision in
To “contest” is “[t]o strive, to win or hold; to controvert, litigate, call in question, challenge. . . .” Black’s Lаw Dictionary 391 (Revised 4th ed. 1968). At most, appellant‘s motion merely evidenced a dissatisfaction with the finding of the first examination. There was no attempt to show that the dissatisfaction was properly grounded, that is, the basis of the objectiоn.
This court was presented with a similar claim in State v. Vansandts, 540 S.W.2d 192, 200 (Mo.App.1976). In that case defendant’s counsel also filed an objection to Findings of Psychiatrist and requested an examination by another psychiatrist. The court rejected the contention that such a motion for a second еxamination constituted a “contest” within the meaning of the law.
The object of appellant’s motion here was to obtain a second examination under subsection 4,
We have studied the transcript and all authority cited by appellant in support of his alleged grounds of error and find no error requiring reversal.
The judgment of conviction is therefore affirmed.
SIMEONE, C. J., DOWD and STEWART, JJ., and DONALD L. MASON, Special Judge, concur.
Notes
. A different hоlding could result on a finding that the first psychiatrist was biased or incompetent; otherwise, one objective and independent examination is all that is constitutionally required under the statute. In Bloom, 461 S.W.2d at 844, the court stated that: “Even if relator had funds to employ a psychiatrist of bis own choosing, it could not be assumed that it would be concluded relator is now sane. All that money could have obtained would have been an ‘independent’ examination, and relator, by virtue of the equal рrotection clause, is entitled to have an examination that is professionally independent of any influence by those having custodial control. An examination by a competent psychiatrist who is in a position to freely render his opinion based only on his professional training is constitutionally adequate because ‘ * * * it is appropriate to observe that a State can, consistently with the Fourteenth Amendment, provide for differences so long аs the result does not amount to a denial of due process or an “invidious discrimination”.’ Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.”
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“If neither the state nor the accused nor his counsel contests the opinion referred to in subsection 3, subdivision (3), of this section relative to fitness to proceed [the initial court ordered psychiatric examination], the court may make a determination and finding of record on the basis of the report filed or may hold a hearing on its own motion. If any such opinion is contested the court shall hold a hearing on the issue.”