State ex rel. McKee v. Riley

• Decision Date: 21 December 2007
• Docket Number: No. SC 88867.,SC 88867.
• Citation: 240 S.W.3d 720
• Parties: STATE ex rel. Tracy McKEE, Petitioner, v. The Honorable John J. RILEY, et al., Respondents.
• Court: Missouri Supreme Court

240 S.W.3d 720

STATE ex rel. Tracy McKEE, Petitioner, v. The Honorable John J. RILEY, et al., Respondents.

No. SC 88867.

Supreme Court of Missouri, En Banc.

December 21, 2007.

Maleaner R. Harvey, Courtney M. Harness, Office of the Public Defender, St. Louis, for petitioner.

Jennifer M. Joyce, Charles W. Billings, Office of the Circuit Attorney, St. Louis, for respondents.

ORIGINAL PROCEEDING IN MANDAMUS

LAURA DENVIR STITH, Judge.

Petitioner Tracy McKee seeks a writ of mandamus directing the trial court to dismiss the indictment pending against him with prejudice on grounds that the failure to try him for over 18 months following his arrest violates his constitutional right to a speedy trial under the sixth and fourteenth amendments to the United States Constitution and under article I, section 18(a) of the Missouri Constitution, as well as his statutory right to a speedy trial under section 545.780, RSMo 2000.¹ Mr. McKee asserted these rights in various pro se motions for speedy trial and in a pro se motion to dismiss, although represented by counsel from the office of the public defender.

This Court rejects Mr. McKee's claim that his continued prosecution violates section 545.780. That statute supplements the constitutional right to a speedy trial by declaring that a case shall be set for trial as soon as possible after defendant announces ready for trial and files a request for speedy trial. Where, as here, a defendant is represented by counsel, however, it is counsel who will try the case and, therefore, only counsel who can declare that the defense is "ready for trial."

The same is not true of Mr. McKee's pro se invocation of his constitutional right to a speedy trial. That right is personal to a defendant and may be asserted by a defendant pro se even when, as in this case, defendant is represented by counsel. The trial court, and counsel for Mr. McKee and for the State, erred in simply ignoring Mr. McKee's repeated motions asserting his constitutional right to a speedy trial. Mere delay accompanied by an assertion of one's right to a speedy trial is insufficient to entitle one to dismissal, however. A defendant also must show that the defense is not unduly responsible for the delay and that the delay has caused prejudice to the defendant. Here, the record does not sufficiently elucidate the reasons for the delays nor does it disclose the extent and nature of prejudice to the defendant. Accordingly, the Court issues a peremptory writ of mandamus, directing the trial court: (1) to immediately hold a hearing to determine whether the conditions placed upon Mr. McKee's release at the time of his arrest pursuant to Rule 33.01 remain appropriate,² and (2) to hold a hearing within seven days of the issuance of this Court's mandate to determine whether Mr. McKee's constitutional right to a speedy trial has been violated. If the trial court finds that his speedy trial right has been violated, the charges against Mr. McKee shall be immediately dismissed. If the trial court concludes otherwise, Mr. McKee shall be brought to trial as soon as practicable, but in no event more than thirty days after the hearing on his motion.

I. FACTUAL AND PROCEDURAL BACKGROUND

The record indicates that Mr. McKee is 42 years old and was unemployed and homeless when he was arrested on June 4, 2006. He was charged with six crimes related to three alleged incidents of tampering with motor vehicles. More specifically, the state has charged that on June 16, 2005, Mr. McKee defaced a 2000 Nissan Maxima³ and pushed security officer Beverly Black, resulting in a felony charge of first-degree tampering and a misdemeanor charge of third-degree assault. Then, on March 27, 2006, Mr. McKee allegedly entered unlawfully into a building owned by Interpark and fled from a police officer, resulting in misdemeanor charges of trespassing and resisting arrest. Finally on June 4, 2006, Mr. McKee allegedly broke out the passenger window of a 2004 Ford Excursion and stole items over $500 in value, resulting in his arrest on a charge of felony stealing and a misdemeanor charge of second-degree property damage.⁴ Bond was set at $20,000 cash, which could be satisfied with $1000 cash and either $19,000 secured or 10 percent. Mr. McKee was unable to make bond.

The public defender was appointed to represent Mr. McKee on June 6, 2006, two days after his arrest. On June 6, 2006, the cause was continued until July 19 at the request of the state, but the record does not state a reason for this continuance. On July 19, the cause was continued until August 23 at the request of the state, but again, the record does not state a reason for this continuance.⁵

The state presented the six charges set forth above to a grand jury in August 2006. The grand jury returned an indictment on the tampering charge and on the four misdemeanor charges, but it determined that there was insufficient evidence to support an indictment on the stealing charge, so that count was dismissed. On August 23, 2006, the cause was continued until September 13, 2006, at the request of the court.⁶ On September 13, Mr. McKee was arraigned on the charges in the grand jury indictment. After pleading not guilty the cause was assigned for an initial appearance in Division 16 on October 5, 2006. The October 5, 2006, hearing was "Continued/Rescheduled" for reasons that are not reflected in the docket sheets or the record submitted by the parties.⁷

In September 2006, shortly after his arraignment, Mr. McKee filed his first pro se motion for a speedy trial, alleging that he had been in custody for 100 days without trial and that further delay would have an "adverse impact on the defendant due to stressful incarceration conditions" and would undermine his ability to have a fair trial. That motion was accepted for filing by the trial court, and no motion to strike was filed by the circuit attorney opposing its filing on the ground, now asserted on appeal, that he had no right to file such a pro se motion because he was represented by counsel.

In October 2006, the public defender assigned a new attorney to Mr. McKee. On November 15, 2006, the case was set for trial to begin on January 29, 2007. On December 4, 2006, the prosecuting attorney sent a letter to counsel for Mr. McKee indicating the state's belief that five years would be an appropriate disposition of the charges if Mr. McKee were interested in pleading guilty.

The January 29, 2007, trial date was not kept. The parties suggest this was due to a failed plea agreement, but if so, no record was made to that effect in the trial court. This Court, like all appellate courts, is guided by the record, and neither the record nor the docket indicates what, if anything, occurred on January 29. The record does disclose that the prosecutor filed a superseding information on January 31, 2007, which amended the June 2005 tampering count (the only felony charge in the case) to allege tampering with a 2000 Nissan Maxima rather than a 2004 Ford Excursion. The superseding information was identical to the indictment in all other material respects. On February 9, 2007, the cause was continued (in an unsigned order) to April 30, 2007. As with most of the previous continuances, the record does not disclose a reason for this continuance other than that it was made at the request of the court. On April 17, 2007, the state issued at least four subpoenas for witnesses to testify at the April 30 trial date.

On April 27, the Friday before the April 30 trial date, Mr. McKee filed a letter with the court that notes he has "been incarcerated for 11 months and has yet to be brought to trial after having requested and answered ready many times." In this letter, Mr. McKee also requested discovery of certain items that he believed were pertinent to his defense. Although witnesses had been subpoenaed to testify, the April 30 trial date passed without even a docket entry reflecting that anything occurred in the case. Apparently some continuance was granted without record entry, for a letter from Mr. McKee that was filed on May 3 notes that his "most recent missed court date for trial was 04-30-07 again of no reason or cause of my own nor for any good cause of the state." Mr. McKee's May 3 letter again notes that he has been incarcerated for 11 months and has yet to be brought to trial "after having requested many times for a fast speedy trial." The conclusion of Mr. McKee's May 3 letter reads: "At this point I wish to file a motion to dismiss, pro-se if need be, and I request your powers and judgement to rule on this motion please. I intend to stand before your court soon for trial."

On May 9, 2007, a docket entry reflects that the cause was reset for July 2, 2007. The record contains no further information about this continuance. This continuance prompted another pro se motion for a speedy trial from Mr. McKee, filed on May 22, 2007. This motion invoked Mr. McKee's state and federal constitutional rights to a speedy trial and requested the sanction of dismissal. It notes that Mr. McKee has had "numerous employment opportunities" that "have been put on hold pending completion and final disposition of this cause, which places hardship on the defendant's family." Like Mr. McKee's previous motion for speedy trial, this motion was accepted for filing without opposition by the circuit attorney, but the trial court took no action on it nor did his counsel call it up for hearing. It simply sat, ignored, in the case file.

On July 11, 2007, a docket entry reflects that the July 2 hearing was "Continued/Rescheduled" to September 20, 2007. The record contains no further information about this continuance. Also on July 11, a "Plea/Trial Setting" was scheduled for August 13, 2007. Mr. McKee filed a third pro se motion for a speedy trial on July 18, 2007. In this motion, which was filed on a prepared form, Mr. McKee asserted that his statutory and constitutional rights to a speedy...