STATE of Missouri, Plaintiff-Respondent, v. David LEE, Defendant-Appellant.
No. 13092.
Missouri Court of Appeals, Southern District, Division Two.
Oct. 13, 1983.
Motion for Rehearing or Transfer Denied Nov. 21, 1983.
Application to Transfer Denied Dec. 20, 1983.
In its brief defendant asks us to “look behind” the testimony of plaintiff‘s physicians that she would need future medical care, contending that if we examine their testimony as a whole, “their conclusions and the Commission‘s finding will be seen to be based upon surmise, speculation and conjecture.” Defendant asserts that “the identification of that treatment and the necessity for any particular treatment other than simple medications was never established on the record.” We do not think that the Act requires that there be evidence of the specific medical treatment or procedures that will be necessary in the future as that may put an impossible and unrealistic burden upon the employee. In interpreting the Workmen‘s Compensation Law, we resolve all doubts in favor of the employee. Kowalski v. M-G Metals and Sales, Inc., 631 S.W.2d 919, 923 (Mo.App. 1982). Resolving the doubts in favor of the employee here, we deny this point.
Defendant‘s third point is that the Commission erred in finding that plaintiff‘s disability was caused by the accident because none of the physicians who testified had treated plaintiff immediately following her injury and the testimony did not link her condition to the accident with reasonable medical certainty.
One of the physicians testified in response to a hypothetical question asking for his opinion “based on a reasonable medical certainty“, that if she had no problem with her knee prior to the accident, he “would have to assume that this was the cause of her chondromalacia.” There was evidence from plaintiff and her husband that she had no problem with her knee before the fall. Defendant contends that this testimony was insufficient because the physician assumed that the accident caused her problems and did not testify that it did with reasonable medical certainty. We read his testimony as indicating that he was using “assume” to mean that he could infer from the facts hypothesized, based upon reasonable medical certainty, that claimant‘s knee problems were a result of her fall. In legal, as well as common parlance, “inference“, “probability“, “assumption“, and “presumption” can have substantially the same meaning and import. Barr v. Vickers, Inc., supra, 648 S.W.2d at 583. In Barr, we found that a physician‘s use of “assume” in response to a hypothetical question did not prevent his opinion from being based upon the facts hypothesized. This point is denied.
The judgment is affirmed.
HOGAN and FLANIGAN, JJ., concur.
MAUS, P.J., not sitting.
John Ashcroft, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
MAUS, Presiding Judge.
The defendant was charged as a persistent offender with burglary in the first degree. The trial court found he was a persistent offender. A jury then found him guilty of the offense. The trial court fixed his punishment at imprisonment for 25 years. The defendant does not question the sufficiency of the evidence. The record presents overwhelming proof of his guilt. On appeal he contends two reversible errors were committed in the prosecution of the charge against him.
His first point is that the state did not introduce sufficient evidence to warrant a finding beyond a reasonable doubt that he had been convicted of two felonies committed at different times as required by
The state argues it met its burden “because there was a prima facie showing by the state that appellant had two prior felony convictions, and since appellant offered no evidence to rebut this showing.” It has been sagaciously observed, “[w]here, as in this case, the inference is clear that the previous crimes were committed at different times, the state should not be required to negative every possibility without some evidence by the defendant that the crimes were committed at the same time.” State v. Leake, 608 S.W.2d 564, 565-566 (Mo.App. 1980). The state contends this quotation supports its argument. However, the principle from Leake must not be taken out of context. It is not to be applied to hold the state has met its burden by the proof of any two prior felony convictions. It is applicable where the record, by reason of dates, geography and the nature of the offenses, in the absence of contrary evidence, supports a finding beyond a reasonable doubt the two offenses occurred at different times. It has been so applied in State v. Daniels, 655 S.W.2d 106 (Mo.App.1983); State v. Thornton, 651 S.W.2d 164 (Mo.App. 1983); State v. Cullen, 646 S.W.2d 850 (Mo. App.1982); State v. Leake, supra.
The state argues the principle is applicable in this case because it is constitutionally impermissible to convict of attempted burglary and burglary upon the basis of the same incident. It cites cases dealing with double jeopardy, such as Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980); Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Nevertheless, this court cannot conclude the principle so espoused provides proof beyond a reasonable doubt the two felonies recited in the record occurred at different times. For example, even assuming the constitutional rule was applicable, the Circuit Court of Willis County could have acted in error.
However, this deficiency in proof does not require a reversal. As noted, the evidence of the defendant‘s guilt was overwhelming. It has been declared:
Accordingly, as in State v. Hill, 371 S.W.2d 278 (Mo.1963) “the sentence herein is declared void, the judgment is reversed and the cause remanded with directions to the court to cause the defendant to be brought before it to hold a hearing on the issue of former conviction of defendant and if proved to pronounce sentence and
judgment against defendant taking all proper procedural steps required therefor by law and the rules of this court but in the alternative if the issue of former conviction be found in favor of defendant to grant him a new trial on all issues.” State v. Harris, 547 S.W.2d 473, 476 (Mo. banc 1977).
That procedure is particularly appropriate under the present statutes and the facts of this case and is adopted. The sentence is declared void and the judgment is reversed.
The defendant‘s second point is that the court erroneously overruled the defendant‘s motion for a continuance to permit the filing of a written report of a mental examination previously ordered under the provisions of
On appeal the defendant continues to argue the action of the trial court was improper because he could not determine whether or not to enter a plea of not guilty by reason of mental disease or defect. He also contends he was prejudiced because he could not contest the written report of the previously ordered mental examination as provided in
A motion for a mental examination, under the provisions of the statute is insufficient to give rise to a mandatory duty of the court to order a mental examination to procure evidence of mental disease or defect excluding responsibility unless it is preceded by a plea of that matter or by a written notice of purpose to reply on such defense. State v. Sears, 501 S.W.2d 491, 493 (Mo.App.1973).
Each party misconceives the relationship of a mental examination under
However, the terms of the statute are clear. “Within five days after the filing of the report . . . the accused . . . upon
In one sense, the issue of competency to stand trial cannot be waived by going to trial. State v. Crews, 607 S.W.2d 729 (Mo.App.1980), affirmed after remand, 619 S.W.2d 76 (Mo.1981). However, “the rights available under
In this case there are two factors indicative of the defendant‘s waiver of the filing of and right to contest the report of the mental examination under
“Although the United States Supreme Court has recognized the hazards of retrospective competency hearings, there is no per se rule against such.” State v. Carroll, supra, at 51. Without determining the same to be mandatory, the circumstances of this case are such that a post trial competency hearing would be appropriate and will safeguard the interests of the defendant. State v. Carroll, supra; Harkins v. Wyrick, 552 F.2d 1308 (8th Cir.1977).
Therefore, this cause is remanded for the following purposes. To permit the defendant, if he elects to do so, within ten days after a copy of this opinion is filed in the circuit court, to contest the previously filed report of the mental examination under
HOGAN and PREWITT, JJ., concur.
ON MOTION FOR REHEARING OR TRANSFER
PER CURIAM.
This court has directed that upon remand, the trial court may receive additional evi-
Bullington involved the bifurcated trial procedure applicable to the trial on a charge of capital murder when the death penalty has not been waived. In that case, it was held that upon a retrial the Double Jeopardy Clause of the Fifth Amendment barred the state from seeking the death penalty when, upon the first trial, the verdict of the jury has been for life imprisonment without parole for 50 years.
This court is of the opinion the procedure directed upon remand is not barred by the Double Jeopardy Clause. That clause has been historically applied to the issue of guilt and not sentence. United States v. DiFrancesco, 449 U.S. 117, 101 S.Ct. 426, 66 L.Ed.2d 328 (1980). “[A]t least since 1919, when Stroud v. United States, 251 U.S. 15, 40 S.Ct. 50, 64 L.Ed. 103 (1919) was decided, it has been settled that a corollary of the power to retry a defendant is the power, upon the defendant‘s reconviction, to impose whatever sentence may be legally authorized, whether or not it is greater than the sentence imposed after the first conviction.” North Carolina v. Pearce, 395 U.S. 711, 720, 89 S.Ct. 2072, 2078, 23 L.Ed.2d 656 (1969). Only the due process clause has been held to impose a limitation upon the sentence which may be fixed by a judge upon retrial. North Carolina v. Pearce, supra. Under the federal practice, the Double Jeopardy Clause does not bar a federal trial court from increasing an initially imposed sentence any time before the defendant starts to serve that sentence. United States v. DiFrancesco, supra. Nor, does that clause bar a federal circuit court of appeals from increasing a sentence initially imposed upon a “dangerous special offender” by the district court. United States v. DiFrancesco, supra. If the Double Jeopardy Clause does not in those instances bar an enhanced sentence imposed without a hearing, it is difficult to rationalize a bar to an enhanced sentence based upon a second hearing, dealing not with guilt but only the formal matter of a prior conviction.
To do so, so long as U.S. v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896) and North Carolina v. Pearce, supra, state the law, it is necessary to say the statute defining burglary in the first degree defines two crimes: one committed by a persistent offender; the other committed by any other defendant. It would then follow that an acquittal, or the presentation of insufficient evidence to establish the first offense, would bar a second attempt to convict a defendant of that offense. The undesirable implications from such a rationale are endless.
Bullington is based upon factors clearly distinguishable from those applicable to a determination of persistent offender status by a judge. Some of those distinguishing factors are emphasized in that opinion. Obviously, in Bullington the second of the two jury hearings involved a determination concerning the imposition of the death penalty, a procedure often accorded special treatment. That determination was to be made by a jury, not a judge. The jury was given only two choices, not the flexible range of punishment afforded a judge under the persistent offender procedure. The second jury hearing could, and most likely would, involve a wide range of evidence. That
Nevertheless, the reasoning in Bullard v. Estelle, 665 F.2d 1347 (5th Cir.1982), vacated U.S., 103 S.Ct. 776, 74 L.Ed.2d 987 (1983), is often cited to the contrary. That case involved the enhancement of punishment upon a determination of two prior convictions by a jury in a bifurcated criminal trial in Texas. The punishment involved was an automatic enhancement from a limited term of years to life imprisonment. Relying primarily upon Bullington, the court stated: “[T]he double jeopardy clause bars a second enhancement proceeding when the evidence at the first enhancement proceeding was insufficient to establish that the defendant committed one or more of the prior offenses necessary for enhancement, ....” Bullard, at 1349. Other authorities are cited in State v. Cullen, 646 S.W.2d 850 (Mo.App. 1982).
A conclusion contrary to Bullard was reached in Linam v. Griffin, 685 F.2d 369 (10th Cir.1982). That conclusion is supported by the reasoning in United States v. Busic, 639 F.2d 940 (3rd Cir.1981). Also compare Dixon v. State, 437 N.E.2d 1318 (Ind.1982). In State v. Cullen, supra, the failure of proof of persistent offender status was held to be due to a trial error, defective receipt of evidence, and not the insufficiency of the evidence. In those circumstances, the court held the Double Jeopardy Clause did not bar a second hearing upon the persistent offender issue.
A determination by the judge of whether or not the defendant is a persistent offender is a part of the sentencing procedure. The rehearing on that issue ordered in the principal opinion “should be governed by DiFrancesco rather than Bullington.” Linam, at 376. In no sense of the word has the defendant been acquitted of an offense. “This is not the kind of adjudication that is referred to in the fifth amendment.” Linam, at 376. Also see United States v. Busic, supra. In all events, this court is constrained to follow the procedure on this issue clearly mandated by the decisions of the Supreme Court of Missouri first cited above. The other arguments in the defendant‘s motion have been considered and found to provide no basis for rehearing or transfer. The motion is overruled.
All concur.
STATE of Missouri, Plaintiff-Respondent, v. Levi HODGE, Defendant-Appellant.
No. 12909.
Missouri Court of Appeals, Southern District, Division One.
Oct. 17, 1983.
Motion for Rehearing or to Transfer to Supreme Court Denied Nov. 1, 1983.
Application to Transfer Denied Dec. 20, 1983.