State v. Black
| Decision Date | 03 July 1979 |
| Docket Number | No. 39796,39796 |
| Parties | STATE of Missouri, Respondent, v. Lindell BLACK, Appellant. |
| Court | Missouri Court of Appeals |
Shaw, Howlett & Schwartz, James J. Knappenberger, Clayton, for appellant.
John D. Ashcroft, Atty. Gen., Paul R. Otto, Carson W. Elliff, John M. Morris, III, Asst. Attys. Gen., Jefferson City.
Gary E. Stevenson, Pros. Atty., Thomas L. Ray, Jr., Asst. Pros. Atty., Farmington, for respondent.
Defendant was found guilty by a jury of exhibiting a dangerous and deadly weapon in a rude, angry or threatening manner. The jury was unable to agree on punishment, and the court imposed a sentence of four years imprisonment.
As grounds for his appeal, defendant contends: (1) he was denied his Sixth Amendment right to a speedy trial; (2) he was prejudiced by the state being permitted to amend the information against him just prior to trial; (3) the state's cross examination of him was unduly broad, and his cross examination of the victim was unduly restricted; and (4) there was an impermissible variance between the verdict directing instruction and the information filed against him. For the following reasons, we affirm the judgment of conviction and sentence entered by the trial court.
Defendant's first asserted right his Sixth Amendment right to a speedy trial is applicable to state prosecutions. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Describing the right to a speedy trial as "amorphous" and "slippery", the Supreme Court adopted an ad hoc analysis and detailed several factors which must be weighed against each other to determine whether a defendant has been denied this right. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors to be considered are: (1) length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) prejudice to the defendant resulting from the delay. Id. at 530, 92 S.Ct. 2182. The test is obviously not designed to supply simple, automatic answers to complex questions, but rather, it serves as a framework for "a difficult and sensitive balancing process". Id. at 533, 92 S.Ct. at 2193. Thus, the right necessarily depends upon the facts and circumstances of each case.
In the present case, the undisputed time sequence of significant events to which the Barker factors must be applied started with an altercation involving defendant and a Larry Turner late at night on July 16, 1974, or the early morning of July 17, 1974. The altercation resulted in a two-count complaint being filed in the Magistrate Court of St. Francois County, on July 17, 1974, charging defendant with an assault and with exhibiting a dangerous weapon and, on that same date, defendant was arrested. Subsequently, on October 30, 1974, the state filed a nolle prosequi of the charge. Approximately 16 months later, on February 24, 1976, the same charges were made against defendant by complaint filed in the magistrate court and defendant was re-arrested. 1 The record does not reflect the date of defendant's preliminary examination on these charges. However, 5 months later, on July 13, 1976, the record shows that the "cause was transcripted" to the circuit court, and some 6 months after that, on January 7, 1977, a two-count information was filed against defendant charging him, in Count I, with an assault and, in Count II, with exhibiting a dangerous weapon. Shortly thereafter, on January 21, 1977, defendant filed a motion to dismiss on the grounds that he was denied his right to a speedy trial and that the delay also violated his "due process rights". This motion was set for hearing, and, after a continuance requested by both the state and defendant, the motion was heard and overruled on April 22, 1977. After an additional 4 month delay, caused in part by defendant's change in counsel and his disqualification of the original trial judge, defendant's trial began on September 1, 1977. 2
During the discussion immediately prior to trial, defendant renewed his motion to dismiss, again arguing the denial of his right to a speedy trial and the denial of his "due process rights", and, also, added a new ground of denial of his rights, under our state "speedy trial statute", related to terms of court, § 545.900 RSMo. However, on appeal, defendant only argues his Sixth Amendment right and, thus, has abandoned his other complaints against the delay prior to trial.
For greater clarity the foregoing facts are organized in the following table:
PROCEDURAL EVENT DATE TIME INTERVAL IN
APPROXIMATE MONTHS
---------------------------------- ----------------- ------------------
Two-Count Complaint Filed. July 17, 1974
Defendant Arrested
-------------------------------------------------------------------------
3 1/2 Months
-------------------------------------------------------------------------
Nolle Prosequi of Charge. October 30, 1974
-------------------------------------------------------------------------
16 Months
-------------------------------------------------------------------------
Identical Two-Count Complaint February 24, 1976
Filed
Defendant Re-Arrested
-------------------------------------------------------------------------
5 Months
-------------------------------------------------------------------------
"Cause Transcripted to Circuit July 13, 1976
Court."
-------------------------------------------------------------------------
6 Months
-------------------------------------------------------------------------
Two-Count Information Filed. January 7, 1977
-------------------------------------------------------------------------
Motion to Dismiss Filed. January 21, 1977
-------------------------------------------------------------------------
1 Month
-------------------------------------------------------------------------
Case Called and Motions Set February 14,1977
For Hearing on March 4, 1977.
-------------------------------------------------------------------------
Motion to Dismiss Continued March 4, 1977
and Reset at Request of State
and Defendant.
-------------------------------------------------------------------------
1 1/2 Months
-------------------------------------------------------------------------
Motion to Dismiss Heard and April 22, 1977
Overruled.
Trial Set for August 24, 1977.
-------------------------------------------------------------------------
4 Months
-------------------------------------------------------------------------
Defendant's Counsel Permitted August 12, 1977
To Withdraw.
Defendant's Motion For August 15, 1977
Disqualification Filed, Sustained.
New Judge Appointed. August 16, 1977
Trial Set For September 1,
1977.
-------------------------------------------------------------------------
1/2 Month
-------------------------------------------------------------------------
Trial Begins. September 1, 1977 37 1/2 Months
-------------------------------------------------------------------------
We now turn to consider these facts in the light of the test defined in Barker.
The length of the delay is "to some extent a triggering mechanism", for, unless the delay is presumptively prejudicial, no further inquiry need be made into the other factors which complete the test. Barker v. Wingo, supra, 407 U.S. at 530, 92 S.Ct. at 2192.
Defendant complains of an approximate 3 year delay, computing the length of the delay from the date of his first arrest, July 17, 1974, to the date of his trial, September 1, 1977. The state measures the delay from the date of defendant's second arrest on February 24, 1976, and, thus, discusses an approximate 18 month delay, from the date of this arrest to trial. However, neither party addresses or explains specific language used by our State Supreme Court forcefully implying that defendant's right to a speedy trial would not be activated until the information was filed on January 7, 1977, State v. Caffey, 438 S.W.2d 167, 171 (Mo.1969); State v. York, 511 S.W.2d 758, 761 (Mo.1974); 3 thus, limiting the delay to approximately 8 months.
We resolve this conflict by considering the basic purpose and policy underlying the speedy trial provision of the Sixth Amendment found in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In that case, the Supreme Court considered a 3 year delay between the alleged criminal acts and the indictment, where no arrest or other formal charge had preceded the indictment. By explaining that "the protection of the (Sixth) Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been 'accused' in the course of that prosecution", Id. at 313, 92 S.Ct. at 459, the Court emphasized the speedy trial provision of the Sixth Amendment has no application and is not activated until the putative defendant in some way becomes an "accused". Since no other formal charge had preceded the indictment, the Court there held the defendants were "accused" only when the indictment was filed and, for this reason, refused to extend the protection of the right to a speedy trial to the pre-indictment period.
Howeve...
To continue reading
Request your trial
-
People v. Small
...indictment and the defendant's actual trial as the "length of delay" during which he was entitled to a speedy trial. State v. Black, 587 S.W.2d 865 (Mo.Ct.App.1979). See United States v. Santos, 588 F.2d 1300 (9th Cir. Reasons for Delay A nolle prosequi order is not the final disposition of......
-
Dillard v. State
...did not violate right to speedy trial because trial was held within a few days of the information). As further stated in State v. Black, 587 S.W.2d 865 (Mo.App.1979): Being merely an application, which can be refused for constitutional or statutory non-compliance, the complaint itself place......
-
State v. Allen
...involved and the factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972) and State v. Black, 587 S.W.2d 865 (Mo.App.1979), we find no violation of defendant's right to speedy trial. Nor do we find that defendant established the more stringent requ......
-
Davis v. State, 07-81-0008-CR
...does not initiate any of the financial, social or psychological harm protected against by the right to a speedy trial. State v. Black, 587 S.W.2d 865 (Mo.App.1979). See also Favors v. Eyman, 466 F.2d 1325 (9th Cir. 1972); People ex rel. Coca v. District Court of Seventh J.D., 187 Colo. 280,......