Ritterbusch v. Speaks

602 S.W.2d 937, 1980 Mo. App. LEXIS 2752
CourtMissouri Court of Appeals
DecidedAugust 4, 1980
DocketNo. WD 30988
StatusPublished
Cited by1 cases

This text of 602 S.W.2d 937 (Ritterbusch v. Speaks) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ritterbusch v. Speaks, 602 S.W.2d 937, 1980 Mo. App. LEXIS 2752 (Mo. Ct. App. 1980).

Opinion

MANPORD, Judge.

This is an appeal from a judgment in the form of an order for involuntary detention and treatment following a jury finding of mental illness. The proceedings, civil in nature, were initiated pursuant to Chapter 202, RSMo 1978. Motion for new trial was timely filed and overruled. The judgment is affirmed.

Appellant presents one point for review. In this point, he alleges the trial court erred in admitting the opinion of the medical expert witness because the opinion was permitted without proper foundation in fact and based upon reports which were hearsay.

The evidence reveals that appellant was first a patient in Pulton State Hospital in 1965. He was there for a period of some two weeks. He again became a patient in 1973 and continued to remain at the facility until he walked away on January 28, 1978. In addition, he was a patient at the facility from February 2, 1978 to August 1, 1978. Between 1973 and 1978, he had left, on some five or six other occasions, the facility without authorization.

On November 5, 1978, appellant came into contact with a Missouri highway trooper who had responded to a call at a service station upon someone’s failure to pay for gasoline. The trooper observed a vehicle (which was being operated by appellant), followed the vehicle, and when the vehicle came to a stop in a private driveway, confronted appellant and informed him of his (appellant’s) alleged failure to pay for the gasoline.

At trial, the trooper described his attempt • to discuss the gasoline purchase with appellant, stating that appellant was not intoxicated, but that his conversation was incoherent. The trooper stated that appellant placed a screwdriver under his (the trooper’s) chin, which broke the skin, and then attempted to gain possession of his service revolver. The parties wrestled to the ground and the trooper subdued appellant and took him into custody. The trooper related the following conversation between himself and appellant:

“Q. Did he say anything to you at that time?
A. Yes he did. He said, he made the statement to me that I must be a righteous man because he couldn’t kill me, and I asked him how come he would say that and he said, well, the Lord has told me, or I asked the Lord to not let me kill a righteous man.
******
Q. Sergeant Fitzgerald, what were the facts that he related to you that he wanted you to investigate?
A. As I said he was at times he was nearly incoherent, he conveyed the fact that he was a man of God, and that God had sent him on a mission, they, quote, had implanted a transmitter in his brain and controlled him, that the world was in a terrible shape, things such as this.
Q. What did he say with respect to the world being in terrible shape, did he say anything else? Why was it in terrible shape?
[939]*939A. No. Like I say, he wasn’t entirely coherent all of the time and as I’ve said, he was vague on who was doing these things to him, it was always they were doing this and unable to get who they were.”

Additional evidence revealed that appellant, around the first day of February, 1978, had been in a local tavern and law enforcement authorities were called to the establishment. Appellant had, in his possession, a length of pipe and was swinging it around. The authorities subdued appellant and took him into custody.

The evidence continued with the testimony of the Sheriff of Adair County. The Sheriff stated he had been acquainted with appellant some 5-6 years and that on some of these occasions, while appellant was being detained in the county jail awaiting return to Fulton Hospital, he had visited with appellant. The Sheriff was asked to elaborate upon what appellant said during these conversations. As a result of this inquiry, the following colloquy took place:

“Q. Did he say anything during your conversations with him that you regard as unusual?
A. The only thing that I would say, Clell says that he is a religious man and he, the Lord, he has power of the Lord.
Q. What does he mean by that, does he say?
A. Well, in the conversations that we have, this old country is in bad shape and Clell, the Lord has given Clell maybe the powers to clean it up.
Q. Did he say what powers the Lord has given him?
A. Yes, he has said that the Lord has give [sic] him the rights, that he could take a life.
Q. Do you recall how recently he said that to you?
A. Well, it’s almost every time that he’s ever in jail, I’ve talked to Clell and it’s always the same religion.”

Respondent’s evidence concluded with the testimony of Dr. Elmer Jackson, a staff psychiatrist at Fulton Hospital. Dr. Jackson testified he had been on the staff of Fulton Hospital some 18 years, had known appellant since 1965, and that since 1973, had, on various occasions, the opportunity to examine and observe appellant.

The particular portion of the psychiatrist’s testimony which is attacked on this appeal on the basis of improper foundation is found on the record as follows:

“Q. Doctor, have you had on occasion an opportunity to examine and observe Mr. Speaks with respect to his mental condition?
A. Yes, I have.
Q. Have you done so recently?
A. Yes. The last time was on March the 15th, what I call a comprehensive exam, of course I see him almost daily, that is during the weekdays.
Q. You say you have seen him almost daily, since what date have you seen him almost daily?
A. Well, the last two months, the first week in February.
Q. Doctor, have you been able to form an opinion as to whether or not Mr. Speaks’ mental condition is impaired at this time?
A. Yes, I do have an opinion.
Q. What is your opinion?
MR. MARIEA: (attorney for Speaks): I’m going to object to the opinion, the reason that a proper foundation has not been laid with reference to testing for any defect that may exist.
THE COURT: Objection will be overruled.
Q. What is that opinion, Doctor?”

Before this court, appellant argues that no foundation had been laid upon which an expert opinion could be premised. Further, he argues that the opinion was not coached in hypothetical language so as to allow the jury to assume as true, if it chose to do so, other evidence presented at trial. This court has difficulty in following the latter [940]*940portion of appellant’s argument on the question, and concludes that appellant argues it was mandatory that a hypothetical question should have been presented to the expert witness. The objection on the record does not include reference to a hypothetical question, but this court will consider the same as if briefed, see State v. Grapper, 328 S.W.2d 633 (Mo.1959).

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Bluebook (online)
602 S.W.2d 937, 1980 Mo. App. LEXIS 2752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ritterbusch-v-speaks-moctapp-1980.