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State v. Walther

Court of Appeals of Missouri, Eastern District, Second Division

August 20, 2019

STATE OF MISSOURI, Respondent,
v.
SHAWN M. WALTHER, Appellant.

          Appeal from the Circuit Court of St. Louis County Honorable Gloria C. Reno

          PHILIP M. HESS, PRESIDING JUDGE

         Introduction

         Shawn Walther ("Appellant") appeals his convictions for first-degree robbery and armed criminal action. He claims the trial court erred in refusing to instruct the jury on diminished capacity. Finding no error, we affirm.

         Factual Background

         Appellant Shawn Walther appeals his convictions for first-degree robbery under § 569.020 and armed criminal action under § 571.015.[1] On June 11, 2018, Appellant was tried by a jury in the Circuit Court of St. Louis County. He was convicted and sentenced to 30 years in the Missouri Department of Corrections. Appellant argues the trial court erred in refusing to instruct the jury on the defense of diminished capacity.

         The State adduced the following evidence at trial. Appellant approached a Circle K convenience store clerk, outside on a cigarette break. When the clerk finished smoking, Appellant followed her into the store and asked for all the money in the cash register. The clerk thought Appellant was joking, but Appellant insisted he was serious and pointed a gun at her. The clerk gave Appellant some of the money in the register and tried to close the drawer, but Appellant said, "I want all of it." The clerk gave Appellant all the money, and Appellant left. The clerk called the police and described Appellant's appearance. The store's surveillance camera captured Appellant's entire interaction with the clerk. The clerk testified Appellant did not ask her to call the police.

         Appellant fled the scene and approached a Metropolitan Sewer District worker near the River Des Peres less than a mile away from the Circle K. Appellant claimed he had twisted his ankle in the woods nearby and offered to pay the worker $10 for a ride across the river in his work vehicle. The worker thought this was odd considering there were no woods nearby and said he could lose his job if he gave Appellant a ride. The worker noticed a police car nearby and suggested Appellant ask the police for help. Appellant then jumped down into a ditch.

         The worker summoned the police officer, who was coincidentally responding to the 911 call from the Circle K. The officer drew her weapon, approached Appellant in the ditch, and told Appellant to raise his hands. Appellant was reluctant to move his hands out from under his sweatshirt, but he eventually complied when a second police officer arrived. The officers arrested Appellant without incident and found a .38 caliber pistol on the ground with a bullet in the chamber. The officers found a large amount of cash in Appellant's right front pocket. The Circle K clerk identified Appellant as the robber at the scene of the arrest. Appellant then apologized to the clerk.

         At the police station, Appellant wrote a voluntary statement indicating he was drunk and high on "ice" (methamphetamine) before the offense. Specifically, he "went crazy on the drugs," "kept craving the drugs," and "contemplated how to get more money for the drugs." Appellant stated he took a gun from a friend and walked to the Circle K. Appellant waited for all the cars to leave, entered the store, drew the gun, and demanded all the money in the register. He "took all the money and walked off."

         Before trial, the court ordered that Appellant be examined for competency to stand trial and for "mental disease or defect." The mental examiner, Dr. Bridget Graham, offered her expert opinion Appellant did not have a mental disease or defect as defined in the Revised Statutes of Missouri.[2] Subsequently, Appellant filed a "notice of defense of diminished capacity" in which he informed the State of his intent to argue he did not have the requisite mental state for the crime of robbery. Relying on favorable portions of Dr. Graham's testimony and BJC Behavioral Health records, Appellant argued he acted with diminished capacity and his reason for robbing the Circle K was to effectuate his own arrest as a means of suicide prevention.

         Appellant's BJC Behavioral Health records indicated a physician had diagnosed him with bipolar disorder two months before the Circle K robbery when he was incarcerated in St. Louis County on an unrelated matter. Appellant failed to disclose to the trial court the diagnosing physician retracted this diagnosis of bipolar disorder after continued observation of Appellant for a year revealed "mild depressive symptoms" but "no … symptoms reaching the threshold of a major psychiatric illness." The diagnosing physician withdrew the diagnosis of bipolar disorder after Appellant had robbed the Circle K but approximately three years before this pretrial hearing.

         In response, the State moved to preclude Appellant's defense because "[b]ased on the opinion of [Dr. Graham] relied on by the defense," Appellant does not suffer from a legally cognizable mental disease or defect that would support an instruction of diminished capacity.

         At a pretrial hearing on the State's motion, Appellant argued he had successfully injected diminished capacity because the BJC records and favorable portions of Dr. Graham's testimony showed Appellant still suffered from some mental disease or defect. At this hearing, Dr. Graham testified she was aware of the BJC Behavioral Health records. She believed the original diagnosis of bipolar disorder was incorrect and knew the diagnosing physician had retracted it. Dr. Graham believed Appellant had a "borderline personality disorder with antisocial personality traits" rather than a qualifying mental disease or defect. The trial court found Dr. Graham's testimony dispositive on whether Appellant suffered from mental disease or defect under § 552.010 and granted the State's motion to preclude Appellant from proceeding with a diminished-capacity defense.

         At trial, Appellant testified he was suicidal at the time of the offense and heard loud thoughts telling him, "If you don't get off the street soon, you're going to end up really hurting yourself or someone else, or something stupid is going to happen." Appellant testified he took his friend's gun so he could commit suicide, but changed his mind and walked to the Circle K to buy a drink. He also stated he was "afraid" of being arrested because he had just committed a crime and left the store. ...


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