552.020. Lack of mental capacity bar to trial or conviction--psychiatric examination, when, report of--plea of not guilty by reason of mental disease, supporting pretrial evaluation, conditions of rel
Lack of mental capacity bar to trial or conviction--psychiatricexamination, when, report of--plea of not guilty by reason of mentaldisease, supporting pretrial evaluation, conditions ofrelease--commitment to hospital, when--statements of accusedinadmissible, when--jury may be impaneled to determine mental fitness.
552.020. 1. No person who as a result of mental disease or defectlacks capacity to understand the proceedings against him or to assist inhis own defense shall be tried, convicted or sentenced for the commissionof an offense so long as the incapacity endures.
2. Whenever any judge has reasonable cause to believe that theaccused lacks mental fitness to proceed, he shall, upon his own motion orupon motion filed by the state or by or on behalf of the accused, by orderof record, appoint one or more private psychiatrists or psychologists, asdefined in section 632.005, RSMo, or physicians with a minimum of one yeartraining or experience in providing treatment or services to mentallyretarded or mentally ill individuals, who are neither employees norcontractors of the department of mental health for purposes of performingthe examination in question, to examine the accused; or shall direct thedirector to have the accused so examined by one or more psychiatrists orpsychologists, as defined in section 632.005, RSMo, or physicians with aminimum of one year training or experience in providing treatment orservices to mentally retarded or mentally ill individuals. The order shalldirect that a written report or reports of such examination be filed withthe clerk of the court. No private physician, psychiatrist, orpsychologist shall be appointed by the court unless he has consented toact. The examinations ordered shall be made at such time and place andunder such conditions as the court deems proper; except that, if the orderdirects the director of the department to have the accused examined, thedirector, or his designee, shall determine the time, place and conditionsunder which the examination shall be conducted. The order may includeprovisions for the interview of witnesses and may require the provision ofpolice reports to the department for use in evaluations. The departmentshall establish standards and provide training for those individualsperforming examinations pursuant to this section and section 552.030. Noindividual who is employed by or contracts with the department shall bedesignated to perform an examination pursuant to this chapter unless theindividual meets the qualifications so established by the department. Anyexamination performed pursuant to this subsection shall be completed andfiled with the court within sixty days of the order unless the court forgood cause orders otherwise. Nothing in this section or section 552.030shall be construed to permit psychologists to engage in any activity notauthorized by chapter 337, RSMo. One pretrial evaluation shall be providedat no charge to the defendant by the department. All costs of subsequentevaluations shall be assessed to the party requesting the evaluation.
3. A report of the examination made under this section shall include:
(1) Detailed findings;
(2) An opinion as to whether the accused has a mental disease ordefect;
(3) An opinion based upon a reasonable degree of medical orpsychological certainty as to whether the accused, as a result of a mentaldisease or defect, lacks capacity to understand the proceedings against himor to assist in his own defense;
(4) A recommendation as to whether the accused should be held incustody in a suitable hospital facility for treatment pendingdetermination, by the court, of mental fitness to proceed; and
(5) A recommendation as to whether the accused, if found by the courtto be mentally fit to proceed, should be detained in such hospital facilitypending further proceedings.
4. If the accused has pleaded lack of responsibility due to mentaldisease or defect or has given the written notice provided in subsection 2of section 552.030, the court shall order the report of the examinationconducted pursuant to this section to include, in addition to theinformation required in subsection 3 of this section, an opinion as towhether at the time of the alleged criminal conduct the accused, as aresult 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 ordefect 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 beaccepted by the court in the absence of any such pretrial evaluation whichsupports such a defense. In addition, if the accused has pleaded notguilty by reason of mental disease or defect, and the alleged crime is nota dangerous felony as defined in section 556.061, RSMo, or those crimes setforth in subsection 11 of section 552.040, or the attempts thereof, thecourt shall order the report of the examination to include an opinion as towhether or not the accused should be immediately conditionally released bythe court pursuant to the provisions of section 552.040 or should becommitted to a mental health or mental retardation facility. If such anevaluation is conducted at the direction of the director of the departmentof mental health, the court shall also order the report of the examinationto include an opinion as to the conditions of release which are consistentwith the needs of the accused and the interest of public safety, including,but not limited to, the following factors:
(1) Location and degree of necessary supervision of housing;
(2) Location of and responsibilities for appropriate psychiatric,rehabilitation and aftercare services, including the frequency of suchservices;
(3) Medication follow-up, including necessary testing to monitormedication compliance;
(4) At least monthly contact with the department's forensic casemonitor;
(5) Any other conditions or supervision as may be warranted by thecircumstances of the case.
5. If the report contains the recommendation that the accused shouldbe committed to or held in a suitable hospital facility pendingdetermination of the issue of mental fitness to proceed, and if the accusedis not admitted to bail or released on other conditions, the court mayorder that the accused be committed to or held in a suitable hospitalfacility pending determination of the issue of mental fitness to proceed.
6. The clerk of the court shall deliver copies of the report to theprosecuting or circuit attorney and to the accused or his counsel. Thereport shall not be a public record or open to the public. Within ten daysafter the filing of the report, both the defendant and the state shall,upon written request, be entitled to an order granting them an examinationof the accused by a psychiatrist or psychologist, as defined in section632.005, RSMo, or a physician with a minimum of one year training orexperience in providing treatment or services to mentally retarded ormentally ill individuals, of their own choosing and at their own expense.An examination performed pursuant to this subsection shall be completed anda report filed with the court within sixty days of the date it is receivedby the department or private psychiatrist, psychologist or physician unlessthe court, for good cause, orders otherwise. A copy shall be furnished theopposing party.
7. If neither the state nor the accused nor his counsel requests asecond examination relative to fitness to proceed or contests the findingsof the report referred to in subsections 2 and 3 of this section, the courtmay make a determination and finding on the basis of the report filed ormay hold a hearing on its own motion. If any such opinion is contested,the court shall hold a hearing on the issue. The court shall determine theissue of mental fitness to proceed and may impanel a jury of six persons toassist in making the determination. The report or reports may be receivedin evidence at any hearing on the issue but the party contesting anyopinion therein shall have the right to summon and to cross-examine theexaminer who rendered such opinion and to offer evidence upon the issue.
8. At a hearing on the issue pursuant to subsection 7 of thissection, the accused is presumed to have the mental fitness to proceed.The burden of proving that the accused does not have the mental fitness toproceed is by a preponderance of the evidence and the burden of goingforward with the evidence is on the party raising the issue. The burden ofgoing forward shall be on the state if the court raises the issue.
9. If the court determines that the accused lacks mental fitness toproceed, the criminal proceedings shall be suspended and the court shallcommit him to the director of the department of mental health.
10. Any person committed pursuant to subsection 9 of this sectionshall be entitled to the writ of habeas corpus upon proper petition to thecourt that committed him. The issue of the mental fitness to proceed aftercommitment under subsection 9 of this section may also be raised by amotion filed by the director of the department of mental health or by thestate, alleging the mental fitness of the accused to proceed. A reportrelating to the issue of the accused's mental fitness to proceed may beattached thereto. If the motion is not contested by the accused or hiscounsel or if after a hearing on a motion the court finds the accusedmentally fit to proceed, or if he is ordered discharged from the director'scustody upon a habeas corpus hearing, the criminal proceedings shall beresumed.
11. The following provisions shall apply after a commitment asprovided in this section:
(1) Six months after such commitment, the court which ordered theaccused committed shall order an examination by the head of the facility inwhich the accused is committed, or a qualified designee, to ascertainwhether the accused is mentally fit to proceed and if not, whether there isa substantial probability that the accused will attain the mental fitnessto proceed to trial in the foreseeable future. The order shall direct thatwritten report or reports of the examination be filed with the clerk of thecourt within thirty days and the clerk shall deliver copies to theprosecuting attorney or circuit attorney and to the accused or his counsel.The report required by this subsection shall conform to the requirementsunder subsection 3 of this section with the additional requirement that itinclude an opinion, if the accused lacks mental fitness to proceed, as towhether there is a substantial probability that the accused will attain themental fitness to proceed in the foreseeable future;
(2) Within ten days after the filing of the report, both the accusedand the state shall, upon written request, be entitled to an order grantingthem an examination of the accused by a psychiatrist or psychologist, asdefined in section 632.005, RSMo, or a physician with a minimum of one yeartraining or experience in providing treatment or services to mentallyretarded or mentally ill individuals, of their own choosing and at theirown expense. An examination performed pursuant to this subdivision shallbe completed and filed with the court within thirty days unless the court,for good cause, orders otherwise. A copy shall be furnished to theopposing party;
(3) If neither the state nor the accused nor his counsel requests asecond examination relative to fitness to proceed or contests the findingsof the report referred to in subdivision (1) of this subsection, the courtmay make a determination and finding on the basis of the report filed, ormay hold a hearing on its own motion. If any such opinion is contested,the court shall hold a hearing on the issue. The report or reports may bereceived in evidence at any hearing on the issue but the party contestingany opinion therein relative to fitness to proceed shall have the right tosummon and to cross-examine the examiner who rendered such opinion and tooffer evidence upon the issue;
(4) If the accused is found mentally fit to proceed, the criminalproceedings shall be resumed;
(5) If it is found that the accused lacks mental fitness to proceedbut there is a substantial probability the accused will be mentally fit toproceed in the reasonably foreseeable future, the court shall continue suchcommitment for a period not longer than six months, after which the courtshall reinstitute the proceedings required under subdivision (1) of thissubsection;
(6) If it is found that the accused lacks mental fitness to proceedand there is no substantial probability that the accused will be mentallyfit to proceed in the reasonably foreseeable future, the court shalldismiss the charges without prejudice and the accused shall be discharged,but only if proper proceedings have been filed under chapter 632 or chapter475, RSMo, in which case those sections and no others will be applicable.The probate division of the circuit court shall have concurrentjurisdiction over the accused upon the filing of a proper pleading todetermine if the accused shall be involuntarily detained under chapter 632,RSMo, or to determine if the accused shall be declared incapacitated underchapter 475, RSMo, and approved for admission by the guardian under section632.120 or 633.120, RSMo, to a mental health or retardation facility. Whensuch proceedings are filed, the criminal charges shall be dismissed withoutprejudice if the court finds that the accused is mentally ill and should becommitted or that he is incapacitated and should have a guardian appointed.The period of limitation on prosecuting any criminal offense shall betolled during the period that the accused lacks mental fitness to proceed.
12. If the question of the accused's mental fitness to proceed wasraised after a jury was impaneled to try the issues raised by a plea of notguilty and the court determines that the accused lacks the mental fitnessto proceed or orders the accused committed for an examination pursuant tothis section, the court may declare a mistrial. Declaration of a mistrialunder these circumstances, or dismissal of the charges pursuant tosubsection 11 of this section, does not constitute jeopardy, nor does itprohibit the trial, sentencing or execution of the accused for the sameoffense after he has been found restored to competency.
13. The result of any examinations made pursuant to this sectionshall not be a public record or open to the public.
14. No statement made by the accused in the course of any examinationor treatment pursuant to this section and no information received by anyexaminer or other person in the course thereof, whether such examination ortreatment was made with or without the consent of the accused or upon hismotion or upon that of others, shall be admitted in evidence against theaccused on the issue of guilt in any criminal proceeding then or thereafterpending in any court, state or federal. A finding by the court that theaccused is mentally fit to proceed shall in no way prejudice the accused ina defense to the crime charged on the ground that at the time thereof hewas afflicted with a mental disease or defect excluding responsibility, norshall such finding by the court be introduced in evidence on that issue norotherwise be brought to the notice of the jury.
(L. 1963 p. 674 § 2, A.L. 1969 p. 572, A.L. 1971 S.B. 171, A.L. 1980 H.B. 1724, A.L. 1985 S.B. 265, A.L. 1994 S.B. 763, A.L. 1997 S.B. 56)(1972) Where a copy of report of mental examination was furnished to prosecutor and contained a statement of facts made by appellant to the doctor concerning the crime with which he was charged but there was nothing in record, and appellant pointed to nothing, indicating that prosecutor thereby obtained information concerning the case not otherwise available to him, court did not err in failing to dismiss information. State v. Franklin (Mo.), 482 S.W.2d 420.
(1972) This section does not apply to post trial procedure. A conviction while defendant is legally incompetent violates due process. Brown v. State (Mo.), 485 S.W.2d 424.
(1973) State may not order commitment without express written notice that no other defense exists. Ex parte Kent (Mo.), 490 S.W.2d 649; Cert. denied 94 S.Ct. 596.
(1973) Attempted suicide during trial did not require trial judge to order psychiatric examination under this section. Scope of discretion of trial judge discussed. Drope v. State (A.), 498 S.W.2d 838.
(1973) Held that pretrial psychiatric examination report became a record in the criminal proceeding and court could take judicial notice of its contents when considering a motion to vacate. State v. Conner (A.), 500 S.W.2d 300.
(1975) After receiving report of psychiatric examination indicating defendant's competency, his attorney was under no duty to contest the results and in order to charge his attorney with ineffective assistance defendant movant is required to show some basis for questioning the report. Shubert v. State (A.), 518 S.W.2d 326.
(1975) This section constitutionally adequate to protect rights of accused. Suicide attempt during trial and psychiatric information available prior to trial together with testimony as to "strange behavior" creates a sufficient doubt of competence so as to require further inquiry on the question of competence. Drope v. Missouri (U.S.), 95 S.Ct. 896.
(1975) Magistrate at preliminary hearing has jurisdiction to inquire into accused's mental fitness to proceed. State v. Morgett (A.), 526 S.W.2d 434.
(1976) Held, examination by osteopath who was not a "licensed psychiatrist" met the requirements of this section. State v. Mullen (A.), 532 S.W.2d 794.
(1976) Held, defendant is entitled to a competency hearing even though motion was not filed until day of trial. Motion may be made anytime prior to sentencing. State v. Carroll (A.), 543 S.W.2d 48.
(1976) Held, that if report is contested the court must hold a competency hearing. State v. Carroll (A.), 543 S.W.2d 48.
(1977) Defense counsel should be allowed to express opinion as to defendant's competency to stand trial. Issue of competency is not waived by going to trial since a mental incompetent lacks capacity to understand a right, much less give it up. State v. Clark (A.), 546 S.W.2d 455.
(1981) The accused, for the purpose of attempting to establish his partial responsibility or his diminished capacity, may introduce evidence obtained in the section 552.020 examination. State v. Strubberg (Mo.), 616 S.W.2d 809.