State v. McKay
| Decision Date | 22 October 2013 |
| Docket Number | No. ED 98489.,ED 98489. |
| Citation | 411 S.W.3d 295 |
| Parties | STATE of Missouri, Plaintiff/Respondent, v. Daniel K. McKAY, Defendant/Appellant. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Timothy A. Blackwell, Jefferson City, MO, for Plaintiff/Respondent.
Daniel K. McKay, Mineral Point, MO, for Defendant/Appellant.
Daniel K. McKay (Appellant) appeals from the trial court's judgment entered upon a jury verdict convicting him of unlawful possession of a firearm and two counts of sale of a controlled substance. We affirm in part and remand in part.
Viewed in the light most favorable to the verdict, the following evidence was adduced at trial. In May 2010, a confidential informant (CI) informed Detective Eric Feagans (Det. Feagans) that Appellant was selling heroin. The CI set up a May 25, 2010, heroin buy between Appellant and Det. Feagans in the parking lot of Gingham's Restaurant. The buy went as planned and Det. Feagans purchased a gram and a half of heroin from Appellant for $300.00. The CI set up another buy for May 26, 2010, on which Det. Feagans met Appellant in a Taco Bell parking lot and purchased two grams of heroin from him for $400.00. Appellant was then stopped after leaving the scene of this transaction, arrested, and on May 27, 2010, charged by complaint filed by the St. Charles prosecuting attorney with two counts of sale of a controlled substance and unlawful possession of a firearm, as he was a convicted felon and a loaded pistol was found in his car incident to arrest. Appellant was on probation in Pike County at the time for second-degree trafficking of narcotics.
On July 19, 2010, Appellant pled not guilty to the charges, and a plea hearing was set for September 20, 2010. Appellant failed to appear for the plea hearing because he was incarcerated in the Missouri Department of Corrections (MDOC) serving his 15–year sentence for second-degree trafficking, his probation having been revoked in Pike County. On September 23, 2010, the St. Charles County trial court issued a superseding warrant for Appellant's arrest for the new charges based on his failure to appear, but the warrant was mistakenly issued for a probation violation instead of new charges.
On January 20, 2011, Appellant filed a request for a final disposition of detainers with regard to the St. Charles County charges against him, addressed to the St. Charles County prosecutor and circuit court, and filed it with the MDOC records officer. The records officer, however, did not deliver the request to the director for his certification, nor did the director certify and send it to the St. Charles County prosecutor or circuit court because of the arrest warrant's erroneous designation for a probation violation, which does not entitleone to a speedy trial disposition. On May 12, 2011, a detainer letter from jail was filed. On May 17, 2011, MDOC Records Officer Sharon Glore (Records Officer) issued a response to Appellant's request informing him that the detainer placed against him by St. Charles County was in conjunction with a probation violation warrant based on the unlawful possession and controlled substance sale charges and therefore a request for speedy disposition did not apply. On July 5, 2011, the St. Charles prosecutor filed a writ of habeas corpus order, with a copy sent to “Potosi Correctional, Transport.” This writ did not result in any action. On August 1, 2011, a warrant was served on Appellant, and on August 2, the prosecutor filed another writ of habeas corpus order, with a copy sent to “Potosi Correctional, Transport.” Appellant was transported to court pursuant to this writ and warrant for a hearing on August 1, 2011, according to the prosecutor but there is no notation of this in the docket sheets.
On December 2, 2011, Appellant filed a motion to dismiss with prejudice for prosecutorial misconduct and violation of his right to due process, alleging violation of his right to be brought to trial within 180 days of his request for disposition of detainer.1 On December 9, 2011, Appellant also filed a motion to dismiss charges based on an illegal and invalid arrest warrant, arguing he was arrested and charged by way of an arrest warrant for a probation violation, which was incorrect.
On January 19, 2012, the MDOC Records Officer issued Appellant a notice that his request for speedy disposition with regard to his pending St. Charles County charges would now be forwarded to his caseworker, because “we were able to determine that these are new charges that incurred [sic] while you were on probation and you can request a speedy disposition.”
On January 20, 2012, the St. Charles County circuit court and prosecutor received Appellant's January 20, 2011, request for disposition of detainer. On January 20, 2012, the MDOC notified Appellant that it had received a Notice of Detainer from the St. Charles County Sheriff's Department as to the new charges. On February 24, 2012, prior to trial, Appellant filed a motion in limine to exclude prior bad acts, convictions, character or reputation and a motion in limine to exclude mention of money found on defendant.
On March 5, 2012, the motions to dismiss were argued then denied 2; the motionin limine regarding mention of money was granted; and the motion in limine regarding prior bad acts was taken under advisement. On March 12, 2012, the parties stipulated that Appellant had a prior felony conviction in that he pled guilty to a felony on December 9, 2004, and this stipulation was read to the jury. Appellant was tried on March 13, 2012, 52 days after his request for disposition of detainer was received by the prosecutor and court, but 1 year and 52 days after the request was lodged with the MDOC Records Officer. On March 13, 2012, Appellant filed motions for judgment of acquittal at the close of the State's evidence and at the close of all the evidence. The trial court denied the motions.
On March 14, 2012, a jury found Appellant guilty on all counts. On July 3, 2012, the trial court sentenced Appellant to twenty years on each of the controlled substance counts and seven years on the firearms count, to run concurrently with each other and with the prior sentence Appellant was serving from the case in Pike County. This appeal follows.
In his first point, Appellant maintains the trial court erred in denying his motion to dismiss for prosecutorial misconduct and violation of due process, because the prosecutor knew the arrest warrant was invalid and did nothing to correct the error and the prison officials failed to forward Appellant's request for final disposition of detainer to the prosecutor and the court, resulting in a violation of Appellant's right to a speedy trial.
In his second point, Appellant claims the trial court erred in denying his motions for acquittal at the close of the State's evidence and at the close of all of the evidence on the grounds that the State had not made a submissible case, in that it withheld evidence and relied on false testimony.3
In his third point, Appellant contends the trial court plainly erred when it instructed the jury as to his December 9, 2004, felony guilty plea, because the mention of this prior conviction deprived him of his right to be tried only for the crime with which he is charged. Appellant also alleges his counsel was ineffective in stipulating to and allowing the admission of said evidence and convincing Appellant to agree to the stipulation of said evidence.
Appellant maintains the trial court erred in denying his motion to dismiss based on prosecutorial misconduct. The dismissal of an indictment is a matter for the discretion of the trial judge, which is reviewed for an abuse of that discretion. State v. Collins, 669 S.W.2d 933, 935 (Mo.banc 1984).
Appellant claims the prosecutor knew the arrest warrant for the charges filed in this case was incorrectly issued for a probation violation preventing Appellant from filing a request for disposition of detainer but did nothing to correct the error, thereby committing prosecutorial misconduct and depriving Appellant of his constitutional right to a speedy trial.4
Appellant has presented no evidence that the prosecutor knew the arrest warrant was incorrect or that he deliberately failed to correct it to hinder Appellant's due process rights. In fact, although Appellant raised this claim in his pro se motion to dismiss filed December 2, 2011, in arguing the motion on March 5, 2012, trial counsel maintained she was not arguing that the prosecutor was guilty of misconduct with regard to Appellant's detainer. Based on the foregoing, we find the trial court did not abuse its discretion in denying the motion to dismiss based on prosecutorial misconduct.
Appellant also maintains the trial court erred in denying his motion to dismiss based on the State's failure to comply with the Uniform Mandatory Disposition of Detainers Law (UMDDL), because the State failed to bring him to trial within 180 days of his request for disposition of his detainer. Whether a criminal case should be dismissed based on the UMDDL, Section 217.450 et seq.5, is a question of law, which this court reviews de novo. State v. Brown, 377 S.W.3d 619, 621 (Mo.App.W.D.2012).
When applicable, the UMDDL requires the trial court to dismiss with prejudice any pending indictment, information or complaint not brought to trial within 180 days. Section 217.460. Section 217.450.1 governs when a person has properly invoked his or her right to a trial within 180 days under the UMDDL. Burgess v. State, 228 S.W.3d 43, 45–46 (Mo.App.W.D.2007). Section 217.450.1 of the UMDDL states:
Any person confined in a department correctional facility may request a final disposition of any untried indictment, information or complaint pending in this state on the basis of...
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