Nicholas MOUSE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent, 90 S.W.3d 145

JAMES K. PREWITT, Presiding Judge. Nicholas Mouse (“Movant”) appeals the denial of his Rule 29.15 motion following an evidentiary hearing on the matter. Movant was charged by information with the class A felony of assault in the first degree, § 565.050, RSMo Supp.1995. His first trial resulted in a mistrial. At the second jury trial, the State filed, and the trial court sustained, a motion in limine to exclude expert testimony regarding Movant’s alleged substance-induced psychosis, which Movant attempted to introduce to ameliorate the required mens rea for the crime of assault.

Movant presented an offer of proof in the form of an excerpt from the transcript of the offer of proof from the first trial, where Dr. Tim McCarty, a psychologist, testified that Movant suffered from a “mental disease of substance[-]induced psychotic disorder [that] prevented [Movant] from knowing and appreciating the nature, quality and wrongfulness of his conduct” and prevented Movant “from acting with a conscious object to kill or cause physical injury.” The trial court rejected Movant’s offer of proof.

As determined on the direct appeal, the evidence at trial showed that Movant voluntarily induced amphetamines prior to the commission of the assault. See State v. Mouse, 989 S.W.2d 185, 189 (Mo.App.1999). There was also sufficient evidence presented through which the jury could have determined that, during the commission of the crime, Movant was in an intoxicated condition from alcohol. Id. Movant was convicted and sentenced to thirty years’ imprisonment, and the conviction and sentence were affirmed on direct appeal. Id. at 192.

Thereafter, Movant filed an Amended Motion to Vacate, Set Aside or Correct the Judgment or Sentence, alleging ineffective assistance of counsel. The motion was denied. This appeal followed. Movant presents three points relied on, all relating to claims of ineffective assistance of counsel. Appellate review of the denial of a post-conviction motion is limited to the determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k).

To prevail on a claim of ineffective assistance of counsel, Movant must show that counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and that Movant was prejudiced as a result thereof. Sneed v. State, 756 S.W.2d 618, 618 (Mo.App.1988). Movant “must overcome the strong presumption that counsel made all significant decisions in the exercise of his [or her] reasonable professional judgment.” Robinson v. State, 752 S.W.2d 873, 374 (Mo.App.1988).

In our review, we need not consider both the performance and prejudice prong, if we find that Movant failed on one of them. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). It is also not necessary to consider the performance prong first and then prejudice; if the claim may be resolved based on lack of prejudice, we may stop our review there. Id. In his first point, Movant contends that counsel was ineffective because he did not cite State v. Shipman, 568 S.W.2d 947 (Mo.App.1978), to the trial and appellate courts.

Movant argues that Shipman would have supported the attempt at trial to include expert testimony showing Mov-ant lacked the requisite mental intent to commit the crime because of a substance-induced psychosis. Movant maintains that the failure of counsel to cite Shipman prejudiced him because counsel was thereby unable to effectively argue Movant’s position before the trial and appellate courts. In support of his point, Movant asserts that Shipman recognized that chronic substance abuse can lead to an independent psychosis that can be relied upon as a mental defense for the crime charged.

Movant is correct that the Shipman court stated, “If a psychosis exists by reason of defendant’s inability to tell right from wrong or inability to know or appreciate the nature, quality or wrongfulness of his conduct or incapacity to conform his conduct to the requirements of law ..., how or why the mental disease or defect arose should be of no moment.” Id. at 951. The discussion in Shipman is based on § 552.010, which defines “mental disease or defect” in the same manner today as it did in 1978, when Shipman was decided.

The terms “mental disease or defect” include congenital and traumatic mental conditions as well as disease. They do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, whether or not such abnormality may be included under mental illness, mental disease or defect in some classifications of mental abnormality or disorder. The terms “mental disease or defect” do not include alcoholism without psychosis or drug abuse without psychosis .... Another statute of interest in this appeal is § 562.076, which is quite different today than it was at the time of Shipman.

Section 562.076, RSMo 1978, is set forth below: 1. A person who is in an intoxicated or drugged condition whether from alcohol, drugs or other substance, is criminally responsible for conduct unless such condition

(1) Negatives the existence of the mental states of purpose or knowledge when such mental states are elements of the offense charged or of an included offense; or

(2) Is involuntarily produced and deprived him of the capacity to know or appreciate the nature, quality or wrongfulness of his conduct or to conform his conduct to the requirements of law. 2. The defendant shall have the burden of injecting the issue of intoxicated or drugged condition. Presently, § 562.076 provides as follows: 1.

A person who is in an intoxicated or drugged condition, whether from alcohol, drugs or other substance, is criminally responsible for conduct unless such condition is involuntarily produced and deprived him of the capacity to know or appreciate the nature, quality or wrongfulness of his conduct. 2. The defendant shall have the burden of injecting the issue of intoxicated or drugged condition. 3.

Evidence that a person was in a voluntarily intoxicated or drugged condition may be admissible when otherwise relevant on issues of conduct but in no event shall it be admissible for the purpose of negating a mental state which is an element of the offense. In a trial by jury, the jury shall be so instructed when evidence that a person as in a voluntarily intoxicated or drugged condition has been received into evidence. Revisions between the two are indicated in bold print.

Shipman did not address § 562.076, under which defendant might have been able to use voluntary intoxication as a defense had it negated the requisite mental state of the crime of which he was accused. However, from the testimony and evidence that can be gleaned from the opinion, it does not appear that Shipman was intoxicated at the time of the attempted burglary. Id. at 947-48. The focus of the appeal in Shipman was the testimony defendant attempted to elicit from his mother that, according to defendant, would have shown that his drug abuse had resulted in psychosis. Id. at 951.

The court rejected defendant’s argument and determined that the trial court had not abused its discretion in excluding the mother’s testimony because her opinion would have simply recast “defendant’s unconventional conduct when he was under the influence of drugs,” which would not have “warrant[ed] a lay conclusion that defendant’s drug abuse had resulted in psychosis.” Id. at 951. The court further determined that defendant’s mother had, at best, limited experience in such diagnosis, and would not have qualified as an expert in determining mental capacity related to criminal responsibility. Id.

Prior to reaching the above holding in the case, the Shipman court presents a lengthy discussion analyzing § 552.010 in which it makes several statements to which Movant attaches significance. The court states that the statute is written to make “psychosis the determinative factor in deciding whether drug abuse is a defense vel non.” Id. at 950.

It focuses the discussion on the premise that determining a defendant’s legal responsibility is based on “whether the defendant, at the time of the crime and as the result of drug-induced psychosis, did not know or appreciate the nature, quality or wrongfulness of his conduct or was incapable of conforming his conduct to the requirements of law.” Id.

It concludes the analysis by stating: While it must be recognized that drug addiction without psychosis is not a defense [citations omitted], a mental disease or defect which results in insanity or the inability to distinguish right from wrong is still a defense although the disease or defect had its origin and was nurtured into legal irresponsibility through drug abuse or addiction.

Stated differently: If a psychosis exists by reason of defendant’s inability to tell right from wrong or inability to know or appreciate the nature, quality or wrongfulness of his conduct or incapacity to conform his conduct to the requirements of law (§ 552.030), how or why the mental disease or defect arose should be of no moment. Id. We do not necessarily disagree with the language as stated in Shipman. However, there are two distinctions that are important to the case at bar, which show why Movant fails on the ineffective assistance of counsel claim made in this point.

First, the issue before the Shipman court was whether the trial court abused its discretion by excluding the testimony of defendant’s mother. The analysis related to § 552.010 and the statements made by the court regarding drug-induced psychosis were not essential to the court’s decision on that issue. Therefore, the portion of the opinion to which Movant directs our attention is dicta. See Campbell v. Labor & Indus. Relations Comm’n, 907 S.W.2d 246, 251 (Mo.App.1995).

Second, the facts of Shipman are distinguishable because, within that case, there was no evidence that defendant was intoxicated, voluntarily or unvoluntarily, at the time of the commission of the crime. Shipman, 568 S.W.2d at 947-48. There was only an attempt by defendant to show that prior drug use had led to a psychosis, and that defendant’s actions during the time of the commission of the crime were influenced by that psychosis. Id. at 950.

Here, the evidence was that Movant had voluntarily ingested amphetamines and alcohol prior to the commission of the crime and was intoxicated at the time of the commission of the crime. See Mouse, 989 S.W.2d at 189. Cases other than Shipman are more directly on point and state the law necessary to analyze the issue. As noted above, § 562.076 defines how intoxication or a drugged condition affects criminal liability and, since 1984 when the statute was changed, has provided that evidence of voluntary intoxication is not admissible to negate the mental state of an offense. State v.

Goodwin, 43 S.W.3d 805, 816 (Mo.banc 2001); see also State v. Elam, 779 S.W.2d 716, 717 (Mo.App.1989). Nor can voluntary intoxication “provide an insanity defense absent a separate mental disease that results in diminished capacity without the voluntarily ingested drugs.” State v. Rhodes, 988 S.W.2d 521, 526 (Mo.banc 1999). “Missouri [law] provides that a person is criminally hable if the state proves all the necessary elements of the crime beyond a reasonable doubt despite intoxication. Missouri has defined all of its criminal offenses so as to render voluntary intoxication legally irrelevant.” State v.

Fanning, 939 S.W.2d 941, 947 (Mo.App.1997). Here, Movant relies on § 552.010, which he states, “allows for the mental defect defense based upon substance-induced independent psychosis.” The Elam court addressed the issue and, through analysis of the current versions of §§ 552.010 and 562.076, determined that “[ijngestion of a drug, or alcohol, because of an addiction, or compulsion, is not done involuntarily as that word is used in the statute [§ 562.076].” Elam, 779 S.W.2d at 717.

Therefore, the court concluded that “defendant’s testimony that he ingested the PCP voluntarily prevent[ed] his assertion of a defense based on mental disease or defect resulting from the drug.” Id. The holding as stated in Elam was reiterated in a later case in which the appellate court affirmed the trial court’s exclusion of two witnesses whose testimony allegedly would have shown that defendant’s prior alcohol use affected his ability to deliberate during the commission of a murder. State v. Woltering, 810 S.W.2d 584, 587-88 (Mo.App.1991).

In Woltering, a case where there was evidence that defendant was intoxicated at the time of the commission of the crime, the court determined that defendant could not assert a defense of mental disease or defect and that “the exclusion of this testimony was proper because Missouri law precludes a defense of voluntary intoxication.” Id. In State v.

McGreevey, 832 S.W.2d 929 (Mo.App.1992), defendant maintained that he suffered from a mental defect at the time of the crime “which was essentially drug abuse with psychosis and hence within the purview of a mental disease or defect, per § 552.010.” McGreevey, 832 S.W.2d at 931. The trial court excluded testimony from a psychologist who was prepared to testify that the defendant suffered from “ ‘an idiosyncratic intoxication reaction to cocaine use,’ or a ‘cocaine induced delirium or dementia!,]’ ” which defendant maintained was a “psychosis.” Id.

The court stated: It is true that Missouri at one time allowed a defendant to use voluntary intoxication/drug use as a defense if it negatived the mental state necessary for the crime (§ 562.076.1(1), RSMd 1978; effective January 1, 1979, repealed October 1,1984). However, there is no current support for this position. As settled by ... Woltering ... and ... Elam ..., § 562.076.1 brings Missouri back to the common law rule that voluntary intoxication is no defense to a criminal charge. Id.

On Movant’s direct appeal, this court concluded consistent with the Woltering, Elam, and McGreevey line of cases, “there was no support for the proposition that a drug-induced psychosis constituted a mental disease or defect'within the purview of § 552.010.” Mouse, 989 S.W.2d at 188-89. Given the facts of the case here and the current state of Missouri law, the conclusion reached on direct appeal was correct and citing Shipman as authority before either the trial court or the appellate court would not have aided Movant. Therefore, counsel was not ineffective for failing to cite the case. Point I is denied.

Movant’s second point asserts that trial counsel was ineffective in failing to move to suppress the incriminating statement Movant made to a deputy sheriff, as Movant “did not knowingly, voluntarily and intelligently waive his rights ... because he was suffering from substance-induced psychosis that prevented him from being capable of effectively waiving his rights to remain silent and to representation.” Thus, Movant contends, trial counsel was ineffective in failing to move to suppress the statement and, as a result, Movant was prejudiced.

Movant attempts to bolster this contention by pointing out that trial counsel knew going into the second trial that expert testimony regarding Movant’s alleged psychotic state would not be admitted, as the State had filed a pre-trial motion in limine to exclude expert testimony relating to Movant’s alleged drug-induced psychosis. Therefore, counsel’s testimony that Mov-ant’s statement would make Movant appear irrational and would, as a result, aid the defense theory (that he lacked the requisite mental capacity to commit the assault) was not consistent and was unreasonable trial strategy.

Movant asserts, “trial counsel’s trial strategy effectively worked to admit his Ghent’s culpability without any real defense.” “[T]he inquiry on the voluntariness of a statement extends only to determining if a statement was elicited by coercive police tactics.” State v.

Blackman, 875 S.W.2d 122, 134 (Mo.App.1994). “A statement which is induced by psychosis or a mental disease which destroys a defendant’s volition and makes him confess is not involuntary within the meaning of the due process clause.” Id. “The test for voluntariness of a statement is whether, under the totality of the circumstances, the defendant was deprived of the free choice to admit, deny or refuse to answer questions and whether physical or psychological coercion was of such a degree that defendant’s will was overborne.” Id. at 135.

Movant’s counsel testified at the eviden-tiary hearing that 1) because Movant knew the victim, “suppressing his statement from the standpoint of an actual innocence approach ... wouldn’t have been very effective” and 2) counsel anticipated having Appellant testify and suppressing the statement would not have aided Movant, as his was an affirmative defense of mental disease or defect.

Counsel stated, “I thought it enhanced ... our position.... [I]t was one of those things where I weighed and balanced it and felt that overall the things to be gained from the statement outweighed the negative aspect of the statement, in terms of our strategy.” “Strategic choices made after a thorough investigation of the law and the facts which are relevant to plausible options are virtually unchallengeable.” Robinson, 752 S.W.2d at 374. We find that a strategic decision was made after a thorough consideration of the plausible options available in conducting Movant’s defense. Point II is denied.

Movant’s third point states: The motion court clearly erred in failing to sustain [Movant’s] request for relief on his 29.15 motion in that [Mov-ant] alleged that his trial counsel was ineffective in failing to object and keep from entering into evidence at trial testimony concerning [Movant’s] alleged prior abuse of his wife which was inadmissible character impeachment that prejudiced [Movant] before the jury on the unrelated assault in issue at trial, all in violation of [Movant’s] rights to due process, a fair trial and the right to effective counsel under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.

Movant claims that “because the question of [Movant’s] intent was really the only issue in question before [the] jury, ... this evidence of potential marital discord and violence may well have tipped the scale before the jury on the question of [Movant’s] intent.” Movant’s post-conviction motion contains no such claim. The Amended Motion to Vacate, Set Aside or Correct the Judgment or Sentence references testimony elicited by the State from Movant’s -wife during the first trial, which resulted in a mistrial. However, no such testimony was received in Movant’s second trial.

Any reference in the second trial to Movant’s alleged prior abuse of his wife came from Movant himself when Movant’s trial counsel elicited from Movant the fact that Mov-ant’s wife had at one time obtained a restraining order against Movant. This exchange is not referenced in Mov-ant’s post-conviction motion from which this appeal is brought.

There, Movant complained of testimony elicited by the State from his wife concerning “Movant’s prior acts of violence towards his wife, and the restraining order obtained by Movant’s wife against Movant.” Claims not properly “raised in the post-conviction motion or tried by implicit consent of the parties at the time of the evidentiary hearing cannot be reviewed for the first time on appeal.” Young v. State, 770 S.W.2d 243, 245 (Mo. banc 1989). Point III is denied. The judgment is affirmed. RAHMEYER, C.J., concurs. ALMON H. MAUS, Sr.J„ dissents in separate opinion.