Dillard v. State

• Decision Date: 13 August 1996
• Docket Number: No. WD,WD
• Citation: 931 S.W.2d 157
• Parties: Rickey Lee DILLARD, Appellant, v. STATE of Missouri, Respondent. 50143.
• Court: Missouri Court of Appeals

Page 157

931 S.W.2d 157

Rickey Lee DILLARD, Appellant, v. STATE of Missouri, Respondent.

No. WD 50143.

Missouri Court of Appeals Western District.

Aug. 13, 1996.

Rosemary E. Percival, Assistant Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Fernando Bermudez, Assistant Attorney General, Jefferson City, for respondent.

Before ELLIS, P.J., and LOWENSTEIN and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

Mr. Dillard was arrested on February 15, 1994 and charged by information in Boone County on April 27, 1994 with three counts of passing bad checks. Following a jury trial on August 11, 1994, Mr. Dillard was convicted on all three counts. He filed a post-conviction motion under Rule 29.15, in which he alleged his right to a speedy trial under the Sixth Amendment to the United States Constitution was violated because of the delays in arresting and trying him. In support, he alleges that he became an accused and his right to speedy trial began to run on June 15, 1992, twenty months before his arrest, when the Boone County prosecutor first filed a complaint against him in the form of an affidavit. He also alleges a violation of his due process rights under the Fifth Amendment to the United States Constitution due to the pre-arrest delay, and further that the State lost jurisdiction to try him because of undue delay following his request for disposition of charges against him in accordance with RSMo Section 217.450 et seq.

We affirm the denial of Mr. Dillard's post-conviction motion, finding that his Sixth Amendment right to a speedy trial was not triggered until his arrest and that the six-month delay between arrest and trial was not presumptively prejudicial and did not constitute a Sixth Amendment violation. Further, any pre-arrest delay was not shown to be both prejudicial and intentional and thus did not violate Mr. Dillard's Fifth Amendment due process rights. Finally, Mr. Dillard did not have a statutory right to a speedy trial because he did not make a proper demand for speedy disposition in accordance with the procedural requirements of the statute and the interstate detainer act was not applicable.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 11, 1992 Mr. Dillard passed three bad checks at Gerbes supermarkets in Columbia, Missouri. These checks were drawn on an account which had been opened by Mr. Dillard for a one-month period in March 1991. The account was emptied almost immediately and was closed by the bank almost one year prior to the time Mr. Dillard tried to cash the checks written on the account.

On June 8, 1992 Mr. Dillard was arrested in Sedgwick County, Kansas on outstanding warrants from Texas, Colorado, Arkansas, and Carthage and Camdenton in Missouri. It appears from the record most if not all of these warrants also involved forgery or bad checks. In any event, on June 11, 1992, Mr. Dillard waived extradition to Camden County and was arrested there for forgery.

On June 15, 1992, Mr. Dillard was charged in Boone County, Missouri by complaint, in the form of a sworn affidavit, with seven felony counts of check forgery. The court set a $10,500 bond for Mr. Dillard's release should he be arrested. On or about the date the affidavit and complaint were filed, a Boone County police officer investigating the alleged forgeries requested that Camden County place a "hold" on Mr. Dillard. It appears that this request was not acted upon, however, nor was it made a part of Mr. Dillard's record in Camden County. To the contrary, on July 17, 1992 Mr. Dillard was sentenced on the Camden County charges, and he began serving a three-year term on those charges in the Missouri Department of Corrections beginning July 20, 1992. While in the Department he was never placed under a detainer or other "hold" from Boone County.

During 1992 and 1993, while in the custody of the Missouri Department of Corrections, Mr. Dillard made several inquiries regarding outstanding charges and detainers against him. He learned of pending charges against him in Callaway and Scott Counties in Missouri, as well as in Illinois and Texas. Mr. Dillard invoked his right to a speedy disposition of each such charge. For instance, Mr. Dillard learned that Callaway County had lodged a detainer against him in connection with charges of passing two bad checks, numbered 459 and 464, drawn on the closed account mentioned above. In accordance with the procedures set out in Section 217.450 et seq., he served the Callaway County prosecutor and court with a request for a speedy disposition of these charges. The Callaway County charges were then dismissed.

The Illinois charges similarly were dismissed after Mr. Dillard requested a speedy trial. An agreement was reached as to the Scott County, Missouri charges under which Mr. Dillard paid restitution and received probation. Finally, Mr. Dillard served six months in Texas as a result of a probation revocation there. He was paroled by Missouri and Texas and returned to his home in Arkansas on January 21, 1994.

On February 15, 1994, Mr. Dillard was arrested in Arkansas on the Boone County charges. On April 25, 1994 a preliminary hearing was held. On April 27, 1994, the Boone County prosecutor filed an information under the same case number as the initial complaint which had been filed in June 1992 but on which no further action had been taken. The information, however, did not charge Mr. Dillard with any of the seven counts of check forgery as set forth in the original complaint. Instead, the information alleged three felony counts of passing bad checks written on a closed account. The information was amended three times, but the amendments simply went to issues such as the dates of the offense; they did not change the substance of the three counts.

Defendant alleges that two of the counts of the information involved two of the checks as to which prosecution had previously been dismissed in the Callaway County case, noting that the amounts of two of the checks were the same in both cases. The record refutes this allegation, however. The Callaway County case involved checks numbers 459 and 464 on the closed account discussed above. The 1992 Boone County Complaint alleged forgery of checks numbers 456, 460, 465, 467, 468, 469 and 481. The 1994 amended affidavit and information deleted the allegations of forgery but alleged in three counts that by passing checks 465, 467 and 468, Mr. Dillard violated Section 570.120. In sum, the checks involved in the Boone County prosecution were, at all times, different than the checks involved in the Callaway County prosecution, although all were apparently written on the same account within a 2 or 3 day period in 1992.

Mr. Dillard says that he was not aware of the Boone County charges until his arrest in February 1994. He was not arraigned on those charges until May 2, 1994. Mr. Dillard filed a motion to dismiss on the basis of the State's delay on May 10, 1994. ¹ The record discloses no earlier request for dismissal specifically on speedy trial grounds. However, Mr. Dillard did oppose each of the State's five requests for continuance of the preliminary hearing in March and April 1994.

A jury trial was held on August 11, 1994. Mr. Dillard presented no evidence. He was convicted on three counts of passing bad checks in violation of Section 570.120, RSMo 1986. He received concurrent four-year sentences on each count. Mr. Dillard filed a post-conviction motion on the ground that the trial court lost jurisdiction over the charges because of the delay in bringing him to trial. He claimed that the delay was prejudicial because he lost contact with an allegedly beneficial witness, Ms. Thompson, during the delay. The record does not disclose when or why he lost contact with the witness, what the witness' testimony may have been, whether such testimony would have been essential to an acquittal or merely cumulative, or how such testimony would have affected the outcome of Mr. Dillard's trial.

Mr. Dillard also claimed that the delay eliminated any opportunity for the sentencing judge to make his sentence run concurrently with a prior sentence which had already been fully served by the time of trial. The post-conviction judge, who was the same judge that heard the trial and issued the sentence, rejected this contention implicitly by finding that no prejudice occurred. He attributed Boone County's delay in arresting Mr. Dillard to the State's negligence, found no constitutional or statutory speedy trial violations, and denied the post-conviction motion. This appeal followed.

II. THE SIXTH AMENDMENT RIGHT TO A SPEEDY TRIAL DOES NOT BEGIN TO RUN UNTIL THE DEFENDANT IS ARRESTED OR AN INFORMATION OR INDICTMENT IS FILED

Mr. Dillard's first claim on appeal is that his right to a speedy trial under the Sixth Amendment to the United States Constitution was violated. ² The Sixth Amendment says that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." The first issue we must resolve is when Mr. Dillard's right to speedy trial attached.

To so determine, we look to United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In that case, the Supreme Court held that the Sixth Amendment right to a speedy trial is "an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of the accused to defend himself." Id. 404 U.S. at 320, 92 S.Ct. at 463. The Court held that these concerns are adequately protected by making the right to speedy trial attach with the filing of "either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge." Id. At this point, the defendant has become an "accused," and hence is entitled to Sixth Amendment protection....