concurring in part and dissenting in part.
I concur in that portion of the majority opinion holding instruction 9 prejudicially erroneous. Accordingly, I would reverse that portion of the judgment in which appellant is adjudicated guilty of the class A felony of assault in the first degree by means of a dangerous instrument as charged in Count II of the information, and sentenced to 20 years’ imprisonment therefor, and remand the cause for a new trial on Count II only.
I respectfully dissent in the reversal of that portion of the judgment in which appellant is adjudicated guilty of, and sentenced for, the offenses charged in Counts I, III and IV.
Appellant’s bizarre conduct at trial came as no surprise. The trial court had wrestled with the problem for almost a year.
On October 13, 1981 (two months after the second of appellant’s employed attorneys had been granted leave to withdraw) appellant appeared in court and stated he wished to represent himself. The trial court advised appellant that the case would be tried November 12, 1981, and suggested that appellant retain an attorney.
Appellant, who was free on bond, did not contact an attorney until a week before the trial date. The attorney appellant contacted at that time was not retained.
On November 11, 1981, the day before trial, appellant telephoned the office of the circuit judge and stated he was too busy to appear for trial the following day. Appellant was evidently employed as an automobile auctioneer and salesman at his father’s place of business.
A jury was present November 12, 1981, and the State announced ready for trial. Appellant appeared in court, advising the judge that he (appellant) had retained an attorney the previous evening. The judge contacted the attorney by phone and was advised that the attorney had been contacted by appellant’s father the previous evening, and that the attorney had advised appellant’s father that the attorney could not represent appellant at the scheduled trial.
These circumstances resulted in the trial being aborted and appellant being sentenced to 30 days’ imprisonment for contempt.
On November 22, 1981, the court requested the public defender to represent appellant, and the defender consented.
On December 1, 1981, the public defender filed notice per § 552.030.21 that appellant intended to rely on the defense of not guilty by reason of mental disease or defect excluding responsibility.2 That same day (December 1, 1981) the court entered an order that appellant undergo a psychiatric examination and evaluation by one or more physicians designated by the Director of the Department of Mental Health.
On January 21, 1982, the public defender filed a motion for leave to withdraw as appellant’s counsel, stating that appellant had become “intractable” with respect to undergoing the mental examination. The defender added that appellant had told him he was “fired.” Appellant, the defender and the prosecuting attorney appeared in court that date (January 21, 1982) and the court admonished appellant to appear at the Nevada State Hospital on February 2, *1971982, for the examination. At this same hearing, the defender furnished the court a document bearing the signature “Jan W. Kakolewski, M.D.” It said, “After examination it is my opinion that Mr. Howard can represent himself in the court.” The public defender was not permitted to withdraw.
Appellant appeared at Nevada State Hospital for the examination as scheduled. The report of that examination, filed in the trial court on March 8, 1982, stated that in the opinion of the examining physician (Paul L. Barone, M.D.), appellant did not have a mental disease or defect and did not lack the capacity to understand the proceedings against him. Dr. Barone added that appellant was able to assist in his defense. The doctor did not recommend that appellant be held in a hospital facility for treatment pending determination by the court of the issue of mental fitness to proceed.
On April 7, 1982, the public defender appeared in court on his motion to withdraw. The motion was denied and the cause set for trial May 19, 1982.
On the trial date, a jury was present and the State announced ready for trial. Appellant appeared, accompanied by the assistant public defender. The assistant defender renewed the motion to withdraw, stating that appellant had insisted on representing himself, which appellant had the constitutional right to do. The court denied the request, observing that appellant’s desire to represent himself would not excuse appellant from knowing the rules of evidence and those regarding the conduct of a trial. When asked by the court why he thought he was competent to represent himself, appellant stated he was a “good republican,” and that he told the truth. Asked whether he was familiar with court rules, appellant responded, “I’ll learn as we go along.”
After further colloquy, including reference by appellant to the lie detector and his litigation in federal court, the court told the assistant defender he would have to represent appellant “the best you possibly can.”
The State then took up a motion in limine seeking to prevent any mention to the jury of the polygraph examination. The court sustained the motion, ruling that no one would be permitted to mention the examination or its results.
Appellant stated repeatedly that he would use the examination in his defense. The court warned appellant that anyone doing so would be held in contempt.
Thereafter, the venire was seated and the court began reading MAI-CR 2d 1.02. Appellant interrupted with an outburst that included reference to the fact that he had passed the polygraph examination, and had suits filed in federal court. The tirade also included remarks of the tenor set out in paragraph numbered 1 of the majority opinion.
The court ordered appellant removed from the courtroom, and discharged the jury. Later that day, the court adjudicated appellant guilty of contempt and sentenced him to imprisonment for one year. This hearing was punctuated by intemperate and inappropriate comments by appellant. It was evidently this sentence for contempt that prompted appellant’s letter of May 22, 1982, described in paragraph numbered 2 of the majority opinion.
On June 1, 1982, appellant’s punishment for contempt was reduced to six months’ imprisonment.
On June 9, 1982, “by agreement,” the cause was set for trial September 21, 1982.
On June 16, 1982, appellant was ordered released from confinement.
On September 9, 1982, appellant, through the public defender, filed a joint application for change of venue and change of judge. There is no showing that it was noticed up for hearing prior to the trial date.
A jury appeared on the morning of September 21, 1982, and the State announced ready for trial. The public defender appeared, but appellant did not. At the court’s direction, the defender telephoned appellant, who was at his place of employment, some 150 miles from the trial site. According to the defender, appellant “sorta *198chuckled” and indicated he was not going to appear for trial, as he did not “feel like it today.”
Appellant did, however, arrive at the courtroom at midafternoon. The court advised appellant that the defender wanted to talk to him, but appellant declined. At that point, outside the hearing of the venire, the defender verbally requested a further examination of appellant on the issue of his competence to proceed. The defender’s comments in support of that request are set out in the majority opinion.
The court stated:
“Well, the record in this case will speak for itself. Even before Mr. Sterling requested to try to assist this defendant, an order was made for psychiatric examination. That examination was made and the file reflects that as a result of that examination he was found to be competent to stand trial.
The Court is very familiar with his conduct, and in the Court’s opinion he has conducted himself in such a way as to hinder and delay the trial of this case. He’s been committed to the Pulaski County jail on two different occasions for contempt of court. He has done everything he can to hinder and delay going to trial.
He was released from contempt for the purpose of having his parents to try to persuade him to seek whatever medical attention that was necessary, but his parents did not feel that he was incompetent in any respect.”
The court denied the request for an additional examination.
The defender then renewed his request to withdraw as appellant’s counsel, stating that if appellant was competent to proceed, he had waived the assistance of counsel by reason of his refusal to cooperate with the defender.
The court denied the request, stating that to grant it would aid and assist appellant in postponing the trial which had been pending for almost two years.3 The court then told appellant that the defender would be available for assistance or legal advice about “procedures and things of that kind.”
Appellant replied, “Yes, sir. Thank you, sir, but no thank you.” Appellant told the defender, “Just leave me alone. I don’t even want to talk to you.”
Despite this, the court told appellant the defender would be available in case appellant changed his mind. Other pretrial matters were then discussed, and the motion for change of judge and change of venue was denied. No error is assigned regarding that ruling.
Trial ensued, the highlights of which are reported in the majority opinion. During the court’s final instructions to the jury, appellant interrupted with this remark:
“Your Honor, why are you doing this to me when I took a lie detector? You have the lie detector test says I didn’t do it. Why are you doing this to me? Have the prosecutor show it to you.”
Appellant was escorted from the courtroom, and the trial proceeded to conclusion.
Although appellant argues here that the trial court should have conducted a hearing to determine his competency prior to trial, appellant did not ask the trial court for that relief. What he requested (through the defender) was an additional mental examination. This request was made at midaft-ernoon with a jury panel waiting to try the case. At that time, the results of the examination at Nevada State Hospital had been known for more than six months. During that time, appellant had made no request for an examination by a physician of his own choosing, § 552.020.5, nor had appellant contested Dr. Barone's opinion, § 552.020.7. In such circumstances, the court was authorized to determine appellant’s fitness to proceed on the basis of that report. Id. Furthermore, as there was nothing rendering the psychiatric examination at Nevada State Hospital sus*199pect, it was not error to deny the untimely request for another examination. State v. Shaw, 646 S.W.2d 52, 54[5] (Mo.1988).
Even if appellant had requested a competency hearing, I fail to see what such a hearing would have accomplished. The trial court was already aware of the opinions of Dr. Kakolewski and Dr. Barone, and had observed appellant’s conduct in court on earlier occasions. The court was also aware of the letter described in paragraph numbered 2 of the majority opinion, and of appellant’s hostility toward the public defender. The conduct described by the defender at the start of the trial was merely cumulative to, not different from, that which the court was already aware.
It is evident that the court was convinced appellant had no mental disease or defect, and that appellant had the capacity to understand the proceedings against him and to assist in his defense. That finding is implicit, if not explicit, in the court’s remarks denying the day-of-trial motion for another mental examination. Those instances during the trial in which the court indicated appellant did not understand what was taking place, or that his tactics were not wise, do not indicate, at least to me, that the court believed appellant lacked the mental capacity to proceed. Rather, they indicate concern that appellant’s unfamiliarity with court procedure and his rejection of the defender’s assistance were imperiling his defense.
Despite appellant’s extraordinary behavior, the only two physicians who expressed an opinion on his competency to proceed (Kakolewski and Barone) pronounced him fit. Absent those reports, I would agree that appellant’s conduct would have compelled an examination on that issue. Here, however, the court had two medical opinions about the matter, one from a doctor evidently selected by appellant. Moreover, the court had the opportunity—or chore— of observing appellant in person.
Accordingly, on this record, I would not convict the trial court of error in refusing the defender’s request for another mental examination, or in failing to hold a competency hearing sua sponte when one was not requested.
If, as appears here, the trial court believed appellant was competent to stand trial, I cannot agree with the majority opinion that the trial court erred in allowing appellant “to pull the lead oar in his defense.” So-called “hybrid representation” such as occurred here has been approved in similar cases. State v. Harper, 637 S.W.2d 170, 173[4, 5] (Mo.App.1982); State v. Edwards, 592 S.W.2d 308 (Mo.App.1979). In my view, the trial court, given the situation confronting it, handled the matter with commendable restraint and solicitude.
Certainly no defendant should be compelled to stand trial on a criminal charge if he is mentally unfit to proceed. Conviction of an accused, legally incompetent, violates due process. Miller v. State, 498 S.W.2d 79, 82[4] (Mo.App.1973). Here, however, the trial court was convinced that appellant was competent to proceed, and that appellant’s persistent antics were an effort to frustrate the orderly adjudication of his guilt or innocence. This was the trial court’s decision to make, State v. Clark, 546 S.W.2d 455, 468[14] (Mo.App.1976), and, on this record, there is competent and substantial medical opinion to support the trial court’s conclusions, appellant’s conduct to the contrary notwithstanding.
If, as said in the majority opinion, the proceedings below “amounted to a trial in name only,” it was appellant’s shenanigans that made it so. His mockery of the judicial process should not be rewarded.
Finding no merit in any of, appellant’s assignments of error as to Counts I, III and IV, I would affirm the judgment as to them.
. References beginning with "§” are to RSMo 1978, as amended by Laws 1980, pp. 515-19.
. When appellant had appeared for arraignment August 5, 1981, with private counsel, appellant had entered the sole plea of not guilty to all four Counts.
. The occurrence out of which the charges arose took place May 26, 1980. For reasons unexplained in the record, the preliminary hearing was not held until July 14, 1981.