State v. Adams

• Decision Date: 12 January 1976
• Docket Number: No. 9731,9731
• Citation: 532 S.W.2d 524
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert Faye ADAMS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 524

532 S.W.2d 524

STATE of Missouri, Plaintiff-Respondent, v. Robert Faye ADAMS, Defendant-Appellant.

No. 9731.

Missouri Court of Appeals, Springfield District.

Jan. 12, 1976.

Motion for Rehearing or Transfer Denied Feb. 2, 1976.

W. Newell Toalson, Springfield, for defendant-appellant.

John C. Danforth, Atty. Gen., K. Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before STONE, P.J., and HOGAN and FLANIGAN, JJ.

HOGAN, Judge.

Defendant Robert Faye Adams was found guilty of willful failure to appear in court (bond jumping) as defined and denounced by § 544.665, RSMo Supp.1973. ¹ His punishment was assessed at imprisonment for a term of five years and he appeals.

Accused of slaying his wife, Adams was convicted of murder in the second degree, on February 20, 1971, after trial to a jury in the Circuit Court of Greene County. His punishment for this offense was fixed at imprisonment for a term of 40 years. On April 6, 1971, Adams filed a notice of appeal and the amount of his bond on appeal was set at $25,000. On April 9, 1971, defendant and five personal sureties executed a supersedeas bond, and defendant was thereupon enlarged.

Defendant resumed his business activities, and at least until June 23, 1973, maintained contact with his bondsmen as mutually arranged. Defendant normally traveled a good deal, and during the two-year period from April 1971 to April 1973 he made trips to Mexico and Central America, keeping his bondsmen informed of his whereabouts.

In April 1973 Adams returned to his home in Springfield. The State's evidence was that he expected to have to 'go and serve his time', and he therefore began to liquidate his business. The defendant's testimony was that he started closing out his business because, 'I just didn't have the money to have a (business) high in accounts receivable and be relatively close to a decision.' He decided to tour the western states and in May 1973 left Springfield to go to Colorado, Arizona and New Mexico. While he was in Arizona in June 1973, defendant met a young German woman, Friederike Myer. Without informing his bondsmen of his intention to be married or to travel overseas, and without advising his prospective bride of his conviction, Adams married Miss Myer and in early July 1973 accompanied her to her parents' home in a remote village in the German Federal Republic. Prior to June 28, 1973, defendant had always furnished his bondsmen some means of locating him; after his marriage and while he was in Germany he severed all communication.

On July 16, 1973, our Supreme Court affirmed Adams' conviction of second-degree murder. State v. Adams, 497 S.W.2d 147 (Mo.1973). Because Adams' whereabouts were unknown, the mandate of that court could not be executed, forfeiture of the appeal bond was ordered and a capias warrant issued.

Defendant's bondsmen began trying to locate him. The State's evidence was that the bondsmen had 500 posters printed in Spanish and English which were circulated among state and local police forces of all the major cities of Mexico, Central and South America. Another 500 posters were printed in English and were circulated in most of the major cities west of the Mississippi. The distribution of posters produced no response. The bondsmen finally enlisted the cooperation of the Federal Bureau of Investigation, and on November 9, 1973, Adams was apprehended at O'Hare Airport in Chicago as he debarked a return flight from Europe.

Section 544.665, which defines the offense of willfully failing to appear, or 'bond jumping', reads in pertinent part as follows:

'1. In addition to the forfeiture of any security which was given or pledged for his release, any person who, having been released pursuant to sections 544.040 to 544.665, or upon a recognizance or bond pursuant to any other provisions of law, willfully fails to appear before any court or judicial officer as required shall be guilty of an offense and punished as follows:

(1) If arrested for or charged with a felony, by a fine of not more than five thousand dollars or imprisoned (sic) for not more than five years;'

This statute is relatively new; it was enacted in 1972 as part of an act designed, among other things, to modify and liberalize bail and release procedures in criminal cases. Laws of Mo.1972, p. 1027. Although our research has not disclosed the prototype of § 544.665, our examination of comparable statutes leads us to believe that present §§ 544.455 and 544.665 are similar in intent to §§ 3146, 3150 and 3151 of the Federal Bail Reform Act of 1966, now codified as 18 U.S.C. §§ 3146, 3150 and 3151. See 1966 U.S.Code Cong. & Admin.News, pp. 2305--2306. We therefore consider the federal decisions construing and applying 18 U.S.C. §§ 3146 and 3150 persuasive, though not controlling, in this case. Cf. Cooper v. Finke, 376 S.W.2d 225, 228(1) (Mo.1964).

In this court the defendant questions the sufficiency of the evidence in several respects. In particular, he argues that the State did not demonstrate that he 'willfully' failed to appear because the evidence does not indicate that he acted with a deliberate purpose to avoid appearing when he was required to do so.

The term 'willful' as used in criminal statutes simply means intentional. State v. Marston, 479 S.W.2d 481, 483--484(2, 3) (Mo.1972); State v. Baumann, 311 Mo. 443, 450, 278 S.W. 974, 976(4) (1925). The evidence that defendant purposely disobeyed or disregarded the law is circumstantial, but willfulness can seldom be directly proved, United States v. Wetzel, 514 F.2d 175, 177--178(3) (8th Cir. 1975), and every legitimate inference favorable to the verdict must be indulged by this court. State v. Kays, 492 S.W.2d 752, 758(1) (Mo.1973); State v. Burton, 357 S.W.2d 927, 930(2) (Mo.1962); State v. Brown, 291 S.W.2d 615, 620(9) (Mo.1956). No single fact or circumstance shown here conclusively proves defendant's guilt, but his course of conduct after he began to liquidate his business, anticipating an unfavorable decision on appeal, is entirely consisten with a deliberate design to avoid the command of the law. Construed most favorably to the result reached, the evidence supports the judgment of conviction.

Another point for dicussion is defendant Adams' assertion that his conviction cannot stand because he received no written notice that he was required to appear, nor any warning of the consequences of his failure to do so.

We agree that a fair reading of § 544.665 implies that a defendant released on bond will be given a reasonable notice that he is required to appear, and, since January 1, 1973, Rules 28.11 and 28.12 have prescribed procedures designed to afford such notice. It is quite another thing to say, in this factual situation, that Adams' conviction must be reversed because he received no written notice that his appearance was required. Having chosen to become a fugitive from justice, the defendant is now in no position to complain that a wholly unavailing act should have been performed by the trial court, and the want of specific notice on his part does not vitiate the conviction. United States v. Cohen, 450 F.2d 1019, 1021(2) (5th Cir. 1971); United States v. DePugh, 434 F.2d 548, 551--552(2, 3) (8th Cir. 1970), cert. denied, 401 U.S. 978, 91 S.Ct. 1208, 28 L.Ed.2d 328 (1971).

Defendant's claim that he should have been warned of the consequences of his failure to appear is repreated several times in his brief and reflects his understanding that present § 544.665 incorporates § 544.455, and that the warning provided for in § 544.455, para. 3, is a precondition to prosecution under § 544.665. We do not agree.

Section 544.455 authorizes the conditional release of defendants charged with bailable offenses; the language and import of the statute are similar to 18 U.S.C. § 3146. In particular, § 544.455, para. 3 provides:

'A magistrate or judge authorizing the release of a person under this section (our emphasis) shall issue an appropriate order containing a statement of the conditions imposed (upon the defendant's release), if any, (and) shall inform such person of the penalties applicable to violations of the conditions of his release and shall advise him that a warrant for his arrest will be issued immediately upon any such violation.'

For several reasons, the 'warning' provision has no application here. Adams was not released conditionally pursuant to § 544.455; his liberty, pending the outcome of his appeal, was in no way restricted. As we read the statute, the order and warning provisions are applicable only to criminal defendants released subject to the restrictions enumerated in § 544.455, which had not been enacted when Adams was enlarged. Moreover, the argument advanced by the defendant has been carefully considered in connection with the federal statutes and rejected. The warning provided for by § 544.455, para. 3, is intended to deter violation of the conditions imposed, but it is in no sense a condition precedent to prosecution under § 544.665, nor is the State required to prove that a warning was given and disregarded. United States v. DePugh, supra, 434 F.2d at 552--553.

Complaint is made of Instruction No. 4, the State's main or verdict-directing instruction. In from, the instruction is unexceptionalbe; it is carefully patterned upon the verdict-directors promulgated for use in criminal cases pursuant to Rule 20.01, and the requirements of Rule 20.02(d) have been fully satisfied. In substance, Instruction No. 4 requires the jury to find beyond a reasonable doubt that Adams, on a specified day, while enlarged on bond, willfully failed to appear before the Greene County Circuit Court when required. The instruction recites the conversive 'tail' found in all MAI-CR verdict-directors. As for punishment, the jury is instructed that if it finds defendant guilty, it will fix his punishment a) at 'imprisonment . . . for a term fixed by (the jury), but not less than two...