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Caruthers v. Wexler-Horn

Court of Appeals of Missouri, Eastern District, Writ First Division

July 10, 2018

Anthony Caruthers, Relator,
v.
The Honorable Wendy Wexler-Horn, Judge of the Circuit Court of the County of St. Francois, 24th Judicial Circuit, Respondent.

          Writ of Prohibition St. Francois County Circuit Court Cause No. 16SF-CR01512-01

          OPINION

          SHERRI B. SULLIVAN, J.

         Anthony 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.[1] 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.

         We dispense with further briefing and oral argument as permitted by Rule 84.24(i).[2] 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.

         Discussion

         I. Mental Examinations Under Chapter 552

         Respondent 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."

         Section 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.

         The 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.

         Section 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.

         Respondent 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 prove.

State v. Walkup, 220 S.W.3d 748, 756 (Mo. banc 2007).[3] 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).[4] 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. 2017).

         Under 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.[5]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.

         II. Mental Examinations Under Rule 25.06(B)(9)

         To be 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 ...


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