From the Circuit Court of Jasper County; Criminal Appeal; Judge Herbert C. Casteel; Reversed and Remanded
Motion for Rehearing Overruled, Transfer Denied August 10, 1983. Application Denied October 18, 1983.
Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.
The opinion of the court was delivered by: Greene
Defendant, Jay D. Bashe, was jury-convicted of capital murder, § 565.001, RSMo 1978, and sentenced to life imprisonment without possibility of parole prior to his serving a minimum of 50 years of his sentence. On appeal, Bashe alleges prejudicial trial court error in a) excluding the testimony of defense witness Brad Cameron, and b) giving an incorrect self-defense instruction.
Although the sufficiency of the evidence is not questioned on appeal, a brief factual recitation is necessary in order to discuss the dispositive issues.
On February 18, 1981, at about 9 a.m., Bashe, an unemployed alcoholic, became acquainted with Homer Bloese at a restaurant in Tulsa, Oklahoma. The two spent the day drinking beer and vodka at various locations in Oklahoma. Bloese invited Bashe to accompany him on a trip to Kentucky. En route, they rented a motel room in Joplin, Missouri.
Sometime during that night, or in the early hours of the next morning, Bloese was killed by Bashe. Bloese's skull was crushed and he had been stabbed in the chest four times, two of the stab wounds piercing his heart. Bashe then took Bloese's billfold which contained approximately $1,200, and left the scene in Bloese's car. Bashe attempted to burn the automobile after it became stuck in a ditch and returned to Tulsa, via bus, where he was arrested. Identification of Bashe as a suspect was established by documents found in the burning car.
Bashe made certain admissions to Joplin police officers after his arrest. He admitted striking Bloese with an object, later identified as a rock, after an argument over proposed homosexual activity between the two men. Bashe's recollection of the details of the encounter, as related to the police and testified to by him at trial, was hazy and fragmented.
An analysis of the victim's blood alcohol content after his death showed a concentration of .26 percent weight per volume of alcohol, which gave credence to Bashe's theory of his being so drunk at the time of the killing that he could not form the prerequisite intent required for a capital or second degree murder conviction, assuming the jury believed Bashe's story that the two men had matched drinks during the day and night before the killing.
At trial, Bashe also contended that he had acted in self-defense, as he feared violence to his person at the hands of Bloese. His evidence on this defense was that he awoke, after previously rejecting homosexual advances, to find Bloese standing over him with an object in his hand. Bashe said he wrestled the object, a rock, away from Bloese, and struck him in the head with it. He had no recollection of the stabbing ob Bloese.
WAS IT PREJUDICIAL ERROR TO EXCLUDE THE TESTIMONY OF DEFENSE WITNESS BRAD CAMERON?
Bashe did not plead not guilty by reason of mental disease or defect, but relied on the defense of not being able to form the requisite intent necessary to sustain a charge of murder due to his being intoxicated. To further that defense, defendant was examined by Dr. Turfboer, a psychiatrist, and by Randee Kaiser, a clinical psychologist. The report of their examinations, which contained the opinion that Bashe's ". . . likely state of intoxication at the time would have prevented him from formulating the requisite intent to commit capital murder", was timely furnished to the state several months prior to trial. Seven days before trial, defense counsel discovered that Dr. Turfboer would be unavailable as a witness, since he would not be in the state of Missouri on the trial date. In an attempt to counter the loss of Dr. Turfboer's testimony, defense counsel contacted Brad Cameron, the Director of the Alcohol Treatment Program of the Ozark Mental Health Center in Joplin, and arranged to have him examine Bashe.
On August 13, 1981, the trial Judge signed an order directing the sheriff of Jasper County to transport Bashe, at 11 a.m. on that day, the the Center for an interview with Cameron. Defense counsel, on that same day, gave formal notice to the prosecuting attorney of his intent to call Cameron. Previously, defense counsel had informally advised the state of his intention to call Cameron as a witness. Defense counsel did not receive Cameron's report until August 16, the day before the trial commenced, and gave the prosecuting attorney a copy of the report on the same day. On August 18, after an objection by the prosecuting attorney, the trial Judge indicated that he was going to exclude the testimony of Cameron. Defense counsel then made an offer of proof by Cameron.
Cameron testified that he had a master's degree in social work; that since 1969 he had worked in the psychiatric social field, with the last five years being in the alcohol treatment field. He stated that from his examination of Bashe he concluded that the defendant was a "middle stage" alcoholic, that such a stage is characterized by memory blackouts, daily drinking, loss of jobs and family, and arrests due to drinking. He testified that ...