619 S.W.2d 830 | Mo. Ct. App. | 1981
Defendant Bernard Meeks after a jury trial was convicted of an escape from the Missouri State Penitentiary on June 2,1978. As a persistent offender he was sentenced by the court to three years’ imprisonment. Defendant has appealed to this court upon several allegations of error. We reverse for the court’s failure to instruct upon defendant’s proffered defense of mental disease or defect and remand for a new trial.
The alleged error has not been preserved for review for the reason that the motion for a new trial was filed out of time, and hence was a nullity. Rule 29.11(b); State v. Howard, 476 S.W.2d 587, 588 (Mo. 1972); State v. Kenton, 298 S.W.2d 433, 434[1] (Mo.1957). Nor has it been preserved by defendant’s brief, which cites no authority for the proposition except Rule 29.12(b), the “plain error” rule, nor presents any sort of analytical argument in support of the proposition. Rule 30.06(d); Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978); State v. Johnson, 539 S.W.2d 493, 509 (Mo. App.1976). We review the point in search of “plain error”.
Defendant made his escape by secreting himself in a trailer load of furniture. He was missed at 5:00 o’clock p. m. and was discovered in the trailer in a warehouse outside the walls at 9:00 o’clock p. m.
Defendant did not deny the escape but relied upon mental disease or defect excluding responsibility as a defense. Sec. 552.-030, RSMo 1978.
Defendant’s evidence on this point was his own testimony and that of fellow inmates in the penitentiary. McKinley Rob
Defendant’s own testimony was that at the time of the offense he was depressed because his six-year-old son was dying of cancer and he had been denied permission to see him; that he was “in a daze”. At about 5 o’clock in the afternoon of the day of the offense he remembered coming out of his cell and walking toward the industrial area. The next thing he remembered was Officer Eberle’s hitting him in the head with a club in the warehouse outside the penitentiary walls. He recalled nothing about the truck in which he had made his escape. He had been having blackout periods since he was 12 yeas old. The blackouts would be from an hour in length to all day, he would be unable to recall what he did during the blackouts.
The foregoing evidence, which we have recounted in some detail, is “substantial evidence” of mental disease or defect which entitled the defendant to an instruction on the defense of mental disease or defect. Tatum v. U. S., 190 F.2d 612 (D.C. Cir.1951). We do not intend to characterize the defendant’s case for mental disease or defect as either strong or weak, but it is more than a scintilla. We might believe that the defendant’s witnesses were of dubious veracity, or we might believe that their testimony was not plausible — or accepting their testimony as true, we might believe it does not show mental disease or defect excluding responsibility. But that is not our judgment to make. That is a judgment for the jury to make, and it was the
The state cites State v. Vansandts, 540 S.W.2d 192 (Mo.App.1976), for the proposition that defendant’s evidence did not constitute substantial evidence of mental disease or defect, pointing out that the testimony of defendant’s mental condition in Vansandts was very much like the testimony of defendant’s mental condition in the present case, and that the Eastern District of this court held that the evidence did not call for a mental disease or defect instruction. In Vansandts, however, the defendant was not arrested until almost two years after the offense with which he was charged, and the testimony related to his mental condition at that time and later, up to and including the time of the trial. A review of the testimony recited in the opinion reveals no evidence of his mental condition at the time of the offense. Of course, the mental disease or defect to furnish a defense must exist at the time of the offense. Judge Pritchard’s opinion in State v. Brizendine, 391 S.W.2d 898, 901 (Mo.1965), another case holding that the evidence did not require a mental disease or defect instruction, emphasizes that there was no evidence of defendant’s mental disease or defect at the time of the offense.
The failure to instruct upon a defense supported by the evidence is “plain error affecting substantial rights”. Rule 29.12(b); Tatum v. U. S., supra, 190 F.2d at 615; U. S. v. Timberlake, 559 F.2d 1375, 1379 (5th Cir. 1977); U. S. v. Alston, 551 F.2d 315, 320 (D.C.Cir.1976); State v. Harley, 543 S.W.2d 288, 292 (Mo.App.1976).
For reasons hereinbefore set out, the judgment is reversed and remanded for a new trial. The other allegations of error need not be noticed.
All concur.
. Of course, a mental disease or defect defense allows the proof to take the widest range as to time, encompassing even the defendant’s whole life. While the inquiry is the existence of mental disease or defect existing at the time of the alleged offense, his behavior at times far removed from the time of the offense may be relevant upon that issue. State v. Nickens, 403 S.W.2d 582, 586 (Mo. banc 1966); State v. Tarwater, 293 Mo. 273, 239 S.W. 480, 486 (Mo. 1922).