Court of Appeals of Missouri, Eastern District, Writ First Division
of Prohibition St. Francois County Circuit Court Cause No.
B. SULLIVAN, J.
Caruthers ("Relator") seeks a writ of prohibition
to prevent the trial court ("Respondent") from
ordering a mental examination pursuant to Chapter 552.
Relator is charged with murder in the first degree, armed
criminal action, burglary in the second degree, tampering in
the first degree, tampering with physical evidence, resisting
arrest, and escape. Relator's charges stem from conduct
he allegedly committed on November 3, 2016. Counsel for
Relator has endorsed Dr. Stacie Bunning and disclosed reports
she had prepared that support Relator's position that he
was incapable of deliberation at the time of the alleged
murder offense (i.e., a diminished capacity defense). In
response, the State filed a motion on April 23, 2018,
requesting a mental examination of Relator pursuant to §
552.020. On May 2, 2018, the State withdrew this motion and
then refiled a motion requesting a mental examination
pursuant to § 552.015 and/or § 552.020, which the
trial court ("Respondent") granted. Relator filed a
petition for a writ of prohibition with this Court on May 4,
2018. On May 9, 2018, Respondent filed Suggestions in
Opposition. On May 10, 2018, this Court issued a preliminary
order in prohibition staying Respondent's May 2, 2018,
order for a mental examination. Despite this order, the
Department of Mental Health interviewed Relator on May 11,
2018. Respondent maintains that the mental examination was
conducted by Dr. Rachel Springman, who had no knowledge of
the order, and there was no intent to violate the preliminary
order. Following our issuance of the preliminary order in
prohibition, Relator filed a reply to Respondent's
Suggestions in Opposition, and Respondent filed a Response to
Relator's Reply. Because our stay order of May 10, 2018,
vitiated any legal authority for the Department of Mental
Health to conduct an interview, we issued an order on May 15,
2018, stating the following:
[a]ny report generated by the Department of Mental Health
based on any interview or mental examination of [Relator] or
any other evidence … related to the interview or
mental examination of [Relator] which was conducted in
violation of this Court's stay order is void and of no
effect and shall not be admissible at trial of Defendant,
pending further order of this Court.
dispense with further briefing and oral argument as permitted
by Rule 84.24(i). After reviewing the parties' filings
and conducting independent research on the matter, we find
that neither § 552.015 nor § 552.020 grant the
trial court authority to order a mental examination to assess
whether a criminal defendant had a diminished capacity at the
time of the alleged offense. The preliminary order in
prohibition is made permanent as modified. The report or any
evidence conducted in violation of the court's stay order
is void and of no effect. Respondent is directed to vacate
and set aside her order of May 2, 2018, ordering a mental
examination of Relator.
Mental Examinations Under Chapter 552
claims that under § 552.015 and/or § 552.020 the
trial court had the authority to order a mental examination
of Relator to assess whether Relator had a mental disease or
defect that rendered him incapable of deliberation at the
time of the alleged murder. Respondent contends that Relator
injected this issue into the trial by expressing his intent
to call Dr. Bunning to testify on Relator's ability to
deliberate at the time of the alleged offense, and that by
injecting this issue, the trial court "had clear
discretion to order a mental examination pursuant to Chapter
552.015 governs when evidence of a mental disease or defect
is admissible in criminal proceedings; there is
nothing in the statute relating to a trial court's
authority to order a mental examination under any
circumstances. Accordingly, § 552.015 does not provide a
basis for a court to order a mental examination.
Section 552.020 permits a judge to order a mental examination
under two circumstances. Under the first circumstance:
Whenever any judge has reasonable cause to believe that the
accused lacks mental fitness to proceed, he shall, upon his
own motion or upon motion filed by the state or by or on
behalf of the accused, by order of record, appoint one or
more private psychiatrists or psychologists, ... or
physicians ... to examine the accused.
State, ex rel. Proctor v. Bryson, 100 S.W.3d 775,
777 (Mo. banc 2003) (quoting § 552.020.2). This first
circumstance "specifically addresses the occasion when a
defendant lacks the capacity to understand the proceedings or
lacks the ability to assist counsel in the defense."
Id. The mental examination would be permitted to
assess the defendant's capacity at the time of the
relevant criminal proceeding. See id.
"It does not allow the court to order an examination as
to the mental capacity of [a defendant] at the time of the
alleged criminal conduct." Id. Thus, in the
present case, the first circumstance is inapplicable.
second circumstance in which a court has authority to order a
mental examination is provided by § 552.020.4.
Id. This subsection reads:
If the accused has pleaded lack of responsibility due to
mental disease or defect... the court shall order ...
[an] examination conducted pursuant to this section ... [the
examination shall include] an opinion as to whether at the
time of the alleged criminal conduct the accused, as a result
of mental disease or defect, did not know or appreciate the
nature, quality, or wrongfulness of his conduct or as a
result of mental disease or defect was incapable of
conforming his conduct to the requirements of law. A plea of
not guilty by reason of mental disease or defect shall not be
accepted by the court in the absence of any such pretrial
evaluation which supports such a defense.
552.020.4 (emphasis added). "Absent from both
[sub]sections is language allowing the trial court to order a
psychiatric examination concerning mental state at the time
of alleged criminal conduct without a plea of not
guilty by reason of mental disease or defect."
Proctor, 100 S.W.3d at 777-78 (emphasis in
original). In the instant case, the State is seeking a mental
examination concerning Relator's mental state "at
the time of alleged criminal conduct without a plea of not
guilty by reason of mental disease or defect," but
§ 552.020.4 does not grant the trial court the authority
to order such an examination.
claims there is "no functional difference" between
a criminal defendant's notice to raise a defense for not
guilty by reason of a mental disease or defect (also referred
to as "NGRI") and a defense of diminished capacity.
We disagree. Most notably, unlike a NGRI defense, which is an
"affirmative defense," the State's burden is
not altered by Relator's diminished capacity defense. Our
Supreme Court explained the difference between defenses of
diminished capacity (under MAI-CR 3d 308.03) and NGRI:
A "not guilty by reason of mental disease or defect
excluding responsibility" (NGRI) defense requires the
defendant to comply with special notice provisions and
injects into the case an issue on which defendant has the
burden of proof. If defendant succeeds on his affirmative
defense, he is absolved of criminal responsibility. A
diminished capacity defense, if successful, does not absolve
the defendant of responsibility entirely, but makes him
responsible only for the crime whose elements the state can
State v. Walkup, 220 S.W.3d 748, 756 (Mo. banc
2007). A diminished mental capacity defense
"does not alter the elements to be proved by the
state." State v. Frazier, 404 S.W.3d 407, 415
(Mo. App. W.D. 2013) (quoting MAI-CR 3d
304.11). Rather, "[e]vidence of mental disease
or defect negating a culpable mental state is simply evidence
that the defendant did not have the culpable mental state
that is an essential element of the crime."
Walkup, 220 S.W.3d at 755 (quoting MAI-CR 3d 308.03,
Note 3). Although it is commonly referred to as a defense,
"it is a negative or negating defense because the
defendant has no burden to present evidence or to
persuade." Id. "Evidence of diminished
capacity is intended simply to negate an element of the
state's case-a culpable mental state-which is the
state's burden to prove beyond a reasonable doubt."
Id. Conversely, an affirmative defense-such as NGRI-
"is an independent bar to liability in which the
defendant carries the burden of persuasion; an affirmative
defense does not negate any of the essential elements that
the State must prove in order to convict a defendant."
State v. Jones, 519 S.W.3d 818, 825 (Mo. App. E.D.
Missouri Approved Jury Instructions, Second Edition,
"diminished capacity" was considered a
"special negative defense." State ex rel.
Westfall v. Crandall, 610 S.W.2d 45, 47 (Mo. App. E.D.
1980).When a special negative defense is raised regarding a
defendant's mental capacity at the time of the offense,
"the state has the burden of proving that the defendant
did not suffer from a mental disease or defect affecting his
state of mind," and "[i]nherent in this burden of
proof, is the recognition that the state will need to have
the defendant's mental abilities examined."
Id. Thus, if a trial court could not order a mental
examination upon a showing of good cause, it would
"effectively hamper the state from carrying its burden
of proof on the intent element." Id.
"Similarly, the NGRI defense, as provided in section
552.030.1, is an affirmative defense that must be initiated
and proven by the defendant." State ex rel. Koster
v. Oxenhandler, 491 S.W.3d 576, 594 (Mo. App. W.D.
2016); see also MAI-CR 4th 404.11.Relevant to the
present case, under MAI-CR 4th, "diminished
capacity" is no longer considered a "special
negative defense," and the State's burden is not
changed by a criminal defendant raising this defense. See
Frazier, 404 S.W.3d at 415 ("[C]ontrary to
Frazier's characterization, diminished capacity is not a
special negative defense."); see also Walkup,
220 S.W.3d at 756; see also MAI-CR 4th 404.11
(excluding "diminished capacity" from its list of
"Special Negative Defenses"). The fact that both
special negative defenses and affirmative defenses change the
State's burden helps explain why a diminished capacity
defense under MAI-CR 3d and MAI- CR 4th is treated
differently than NGRI and diminished capacity under MAI-CR2d.
Accordingly, we find that neither § 552.015 nor §
552.020 provides the court with the authority to order a
defendant to submit to a mental examination if the defendant
raises a diminished capacity defense.
Mental Examinations Under Rule 25.06(B)(9)
clear, the only issue currently before this Court is whether
the trial court had authority to order a mental examination
of Relator under Chapter 552. However, Respondent suggests
that Missouri Supreme Court Rule 25.06(B)(9) may also provide
the court with authority to require defendant to submit to a
mental examination to determine the defendant's ability
to deliberate at the time of the charged offense,
upon a showing of good cause, and Respondent cites
Westfall, 610 S.W.2d at 47 to support its position.
We find that Westfall is not persuasive. At the time
of the criminal proceedings in Westfall, the defense
of diminished capacity was viewed as a "special negative
defense" that altered the State's burden under MAI-
CR 2d. However, a diminished capacity defense no longer