State v. Howard

668 S.W.2d 191, 1984 Mo. App. LEXIS 4500

• Court: Missouri Court of Appeals
• Decided: March 9, 1984
• Docket: No. 13235
• Status: Published

Opinions

GREENE, Chief Judge.

Defendant, David Alan Howard, was jury-tried and convicted of one count of first degree assault, one count of second degree assault, and two counts of third degree assault, for which he received total sentences of 27 years’ imprisonment and $2,000 in fines.

The charges against Howard were filed after a high-speed automobile chase on Interstate 44 near Rolla, Missouri. Howard, who had been observed driving his Datsun automobile in excess of the speed limit, tried to elude pursuing highway patrolmen by outrunning them.

During the chase, patrol cars driven by Troopers Quinn and Kernick were struck by the Datsun driven by Howard, and Trooper J.T. Roberts, on foot at the time, was forced to jump from the path of Howard’s car to avoid being hit. Howard was finally apprehended, after ramming Quinn’s patrol car at a roadblock. The only person apparently injured during the incident, which resembled a demolition derby in many respects, was Howard. His facial injuries, consisting of cuts requiring 16 or more stitches to close, were attributed by Howard to a beating he said he received from patrol officers after he was arrested.

Howard relies on nine points of claimed trial error in this appeal, several of which are meritorious.

Howard’s point two contends that the trial court committed prejudicial error by forcing defendant to trial without conducting a hearing to determine his competency. The criminal charges in question were filed on August 3,1981. Howard’s counsel gave notice that Howard would rely on the defense of mental disease or defect excluding responsibility. The trial judge ordered a mental examination which was conducted at the Nevada State Hospital on February 2, 1982. The reports of Paul L. Barone, M.D., Medical Director III of that facility, and William Amos, Ed.D., a clinical psychologist at the hospital, diagnosed Howard as cyclothymic, which is an insecure person who attempts to over-compensate for his deficiencies when under stress, and that Howard displayed a very positive attitude about his own ability to prove his innocence of the charges against him without the aid of an attorney.

However, although Howard took the position that he was competent and could conduct his own defense, his behavior, subsequent to the filings of the reports of Drs. Barone and Amos suggested otherwise. Examples of Howard’s bizarre behavior were:

1. At a hearing on the state’s motion to exclude from the trial any reference to a polygraph examination taken by the defendant, which motion was sustained by the trial court, the defendant defiantly announced to the court:

“I will use the lie detector in court ... [y]ou well know I took a lie detector, and passed it, that said I didn’t do any of these acts.... This is harassment from the court and delay of trial. Two years, it’s been. Now you can’t do anything to me. So dismiss it all ... I’m a helluva man, and I’ve been done wrong. Beat by the patrol, and I’ve sued them myself in federal court_ I'll crucify them. I’m a helluva man.... Dismiss all the charges right now, ... or I’ll take sodium pentothol and you can dismiss them after I’ve been questioned. Now get yourself out of this one ... Okay. My bag’s packed. They’ll interview me through my cell. ‘Sixty Minutes,’ films watching everything. So do as you please. I’m a helluva man ... I will use the lie detector ... They’ll build a statue of me in Washington, D.C. ...”

2. In a letter dated May 22, 1982, written to the trial judge, defendant alleged he had been “driven by the power of Satan and greed.... I was seeking revenge and that is so very wrong ‘please’ help me I’m a good man.”

3. An undated letter written to the trial judge read as follows: “Ole Pal, Ole Buddy, Ole Judgey Poo; Please give ole Davey just a teeney weeney [Bjreak and let me go home to my ‘Mommy and Daddy.’ Your Ole Buddy ... Dave”

4. Another letter addressed to Judges Northern and Moore stated that the reason Howard was driving foolishly was because the state mafia was trying to steal his father’s business, and that he and his ex-wife were having trouble. It also stated, “Now, after your best shot you lost. Either dismiss all charges against me and return my license and bond money or try some more of your shitty State tricks. I listen to no one except the FBI, so don’t waste your time talking with my parents. If you still aren’t finished harassing me yet then send me to Jefferson City to the State Pen because I won’t be back anywhere for any trial or go anywhere for any exam-. They didn’t teach you in law school how to lie your way around a polygraph and by the way the FBI uses them to eliminate suspects (show this to the press ... baby).”

Howard developed a delusional fixation that the highway patrol, prosecutor, and the judge had formed a conspiracy to frame him on the charges, and that because he had evidently taken and passed a polygraph examination showing that he had not intended to injure any of the highway patrolmen during the automobile chase, that he should be released and the charges against him dismissed.

Two successive hired attorneys withdrew as counsel for Howard, and the public defender was appointed to represent him. Howard refused to cooperate with the public defender, or the court, would not show up in court for hearings, after being ordered to do so, and insisted on his polygraph examination record being admitted as evidence in his behalf. This conduct earned him two contempt of court sentences, one for 30 days and the other for one year.

. The case was not tried until September 21,1982. On that date, the public defender requested that the trial court hold a hearing to determine the competency of Howard to stand trial, and in support of the motion made the following offer of proof:

“MR. STERLING: Your Honor, I would intend ... to make a motion for a further examination as to the defendant’s competence to proceed. My personal contacts telephonically with the defendant over the past several days has indicated to me that he is totally irrational with respect to his behavior and attitudes in the context of this case, and that if allowed to put him on the stand, that he would ... demonstrate that type of behavior and those type of attitudes which have made him impossible to counsel or to advise, or for me to act as his attorney. On the basis of the evidence adduced through that, calling that witness, I would ask the Court to either order further psychiatric evaluation as to his competence to proceed, or I would ask the Court to find that he has repudiated the Court’s offer of appointed counsel, and has in effect insisted that he either go counselless or represent himself in the context of the proceeding and permit me to withdraw. In the context of this offer of proof, I would offer to prove that he is—with respect to me, has refused to discuss the case with me unless I go to the F.B.I. office in Rolla, Missouri, and submit to a polygraph examination. I would offer to prove that he is—when I tried to call, talk to his father to discuss his behavior with his father, Earl Howard, that he has answered the phone and refused to let me talk to the father, because I had not contacted the F.B.I. He has accused me of a conspiracy, of participation in conspiracy with the Court and counsel in respect to this case and that’s the apparent reason for requesting me to go to the F.B.I. office, and told me I could clear myself my [sic] confessing to the F.B.I.

He has demonstrated a total irrational reliance on the possibility that a polygraph examination that he at one point took in the processing of this case is somehow going to be used in evidence and would permit ... him to vindicate himself in the eyes of the jury.

He has announced to me that he will get a change of venue to Jasper or Newton Counties and that they have to grant him a change of venue, as well; that he cannot be tried by judges of this particular county; and that’s again because of a conspiracy.

He’s announced that he is probably going to be a hero because of his efforts in order to make polygraphs admissible in the courts of this nation and that he, in all seriousness, believes that he is going to be elected as the new head of the F.B.I.

He’s at one time announced to me that he’ll probably be represented in the context of this case by William Webster, the Director of the F.B.I.

He has sent my office—and I think several other persons involved in the case—copies of bumper stickers that he’s had printed up, and apparently at his own expense, and distributed with respect to the issue that exists in his mind with respect to polygraph examination

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I would offer to prove to the Court that rather than it being a situation where he has simply sought to maneuver the Court to his own convenience because he’s out on bond, he has in fact become so obsessed and irrational with respect to this pending litigation that he has threatened and alienated various friends of his which had previously offered their support on his behalf ... [and] has sent ... semi-threatening letters indicating that [they] must go to the F.B.I. office ... and submit to a polygraph examination, because he had heard that I had called [them] to seek [their] possible assistance as ... character witnesses].

I would offer to show to this Court that defendant has written numerous letters to the prosecuting attorney in which he has exhibited irrational and bizarre ideas with respect to the law as it pertains to this case_

And in summary, I believe that through this witness ... the Court could be convinced that his behavior is so irrational that he has lost his competence to proceed.”

The motion was denied by the trial court.

The trial court allowed Howard to conduct his own defense at trial, with the public defender standing by as amicus curiae. Howard’s self-proclaimed qualifications to represent himself were that he was a “good republican”, and that he had watched Perry Mason on TV a few times. This state of affairs amounted to a trial in name only. Howard would not allow the public defender to question many of the state’s witnesses. As an example, following the testimony of Trooper Ralph Roark, the trial judge asked Howard if he had any questions of the witness. This triggered the following testimony and series of events.

“THE DEFENDANT: I think he’s honest, Your Honor. He’s a good man. I have none.

MR. STERLING: I’d like to ask a few questions, if you would permit that.

THE DEFENDANT: No, he don’t need to be questioned. He’s fine. He told the truth. He’s a good man. No further questions.

MR. STERLING: Without that— there’s some additional information I’d like to get. Do you wish me to do that?

THE DEFENDANT: Don’t need it. He’s a good man. Tell him to step down.

MR. STERLING: Okay.”

The state then rested.

Out of the jury’s presence, the defendant announced he had no evidence. He thought he did not need to testify because the trial judge was a “republican” and would be “fair.” He had no other evidence he wanted to present. The court inquired as to whether he had been advised that extreme mental distress could be raised as a defense. The defendant guessed he had not but did not want to talk to the public defender about it; he was sure the court would be “fair.” When informed the court was not going to testify for him, the defendant said, “Well, I’ll tell my story, I guess. Might as well. Can’t dance.” The court thereupon suggested he discuss his testimony with the public defender but the defendant said he had nothing to discuss. The defendant replied, “It’s just cut and dried. Let’s go. I am ready.” At the bench, the public defender indicated he would try to show the defendant’s mental state after the Datsun was stopped and introduce evidence that the chase was as dangerous to the defendant as it was to others but the defendant did not want him to so proceed and announced that the defense was resting.

“THE COURT: Well, just a minute. Come back. Come back here. I’m going to permit your lawyer to do that for the simple reason that—

THE DEFENDANT: Your Honor,—

THE COURT: —you have not demonstrated that you have a clear-thinking understanding of what this situation is. (emphasis ours)

THE DEFENDANT: I’ll tell the story. I’ll be sworn in to say what happened, in detail.

THE COURT: We’re talking about calling him [Roark] back. Whether you want it or not, the Court’s gonna—gonna permit him to call him back in your behalf.

THE DEFENDANT: Okay.

THE COURT: It can’t do anything but to help you.

THE DEFENDANT: I can clear up the situation real fast.”

The court thereafter directed the public defender to recall Roark because the defendant’s decision “is not wisely made, otherwise.” (emphasis ours.) Many other episodes of the similar nature appear in the record.

A person charged with a crime is not competent to stand trial if, as the result of mental disease or defect, he lacks capacity to understand the proceedings against him or to assist in his own defense. § 552.-020(1);¹ Bryant v. State, 563 S.W.2d 37, 41 (Mo. banc 1978). Missouri law requires an investigation of a defendant’s mental state when the court has “reasonable cause to believe” incompetency exists. § 552.020(2).

In this case, the trial court’s continuing opportunity to observe defendant and to gauge whether he was capable to represent himself with aid from the public defender when requested, should have alerted the court to the possible incapacity of defendant. The evidence in the record sustains a reasonable belief that defendant lacked the competence to stand trial. This being so, it was prejudicial error to proceed without holding a competency hearing to determine the issue. State v. Moon, 602 S.W.2d 828, 834-836 (Mo.App.1980).

We further observe that permitting Howard to pull the lead oar in his defense, with only token aid from the public defender in this hybrid representation case, was prejudicially erroneous, as there is no evidence in the record from which it could be found that Howard had the competence to call the shots in his defense, and further observe that the giving of Instruction No. 9 (verdict director on first degree assault on which charge Howard was found guilty and sentenced to 20 years’ imprisonment) was erroneous, because the instruction did not include the paragraph: “Second, that the defendant did not act under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, as submitted in Instruction No. _”, and was, therefore, prejudicially erroneous, since there was substantial evidence introduced at trial that Howard was under the influence of extreme emotional disturbance during the series of events in question. Notes on Use 5, MAI-CR2d 19.02; State v. Nunn, 646 S.W.2d 55, 56 (Mo. banc 1983).

The judgment of the trial court is reversed and the cause remanded for further proceedings consistent with this opinion.

FLANIGAN, P.J., and TITUS, J., concur. CROW, J., dissents and files dissenting opinion.

1 . Unless otherwise indicated, all references to statutes are to RSMo 1978, V.A.M.S.