State v. Bolin

• Decision Date: 11 January 1983
• Docket Number: No. 63242,63242
• Citation: 643 S.W.2d 806
• Parties: STATE of Missouri, Respondent, v. John BOLIN, Appellant.
• Court: Missouri Supreme Court

Page 806

643 S.W.2d 806

STATE of Missouri, Respondent, v. John BOLIN, Appellant.

No. 63242.

Supreme Court of Missouri,

En Banc.

Jan. 11, 1983.

Roger G. Brown, Jefferson City, for appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Ellyn L. Sternfield, Clayton, for amicus curiae.

WELLIVER, Judge.

Appellant was convicted by a Cole County jury of two counts of second degree burglary, § 569.170, RSMo 1978, ¹ and was sentenced to a five year prison term on each count, with the two terms to run consecutively. The trial court rejected appellant's contention that he was denied a speedy trial under § 545.780 and under the state and federal constitutions. We affirm.

I

Appellant does not challenge the sufficiency of the evidence, and so it is not necessary to set forth the facts surrounding the crimes. The procedural history of the case requires detailed description.

The burglaries occurred in Russellville on September 2, 1980. Appellant and his two accomplices were stopped by an officer on patrol and arrested in Jefferson City in the early morning hours of September 3, and later that day a complaint was filed in Cole County to secure confinement of appellant. See §§ 544.020, .170. The case was assigned No. CR380-1063F. On September 5, the complaint was amended, and appellant appeared before the court, bond was set, and appellant was released.

For the sake of clarity it should be said at this juncture that the next day, September 6, appellant was jailed in the Butler County Jail in Poplar Bluff on a charge of first degree assault. He remained in jail on that charge until October 23. He was again jailed in Butler County from November 14 to November 18 on charges of burglary and possession of stolen property and from November 20 to November 21 on the possession charge. Finally, appellant was jailed in Butler County from January 7, 1981, to January 17, 1981, and from January 29, 1981, to February 8, 1981, on charges not disclosed by the record before us.

The indigency hearing scheduled in Cole County for September 12, 1980, pursuant to appellant's request for the appointment of counsel was continued to September 15 because appellant was not present--he was in jail in Butler County. A preliminary hearing was also scheduled for September 15, but both the preliminary and indigency hearings were continued until October 9 because appellant again was absent. On that day, however, the trial court proceeded to appoint the public defender to represent appellant.

The preliminary hearing was continued three more times. It was continued October 9 because appellant was in jail in Butler County. On October 15, therefore, the case was severed from that of appellant's accomplices ² and was assigned No. CR380-1227F. The preliminary hearing was again continued October 21, and on October 23 the state sought, and obtained, a writ of habeas corpus ad prosequendum. The preliminary hearing was again scheduled for November 25, but on November 18 the state requested, and received, another continuance for the purpose of seeking a grand jury indictment.

On December 31 the Cole County grand jury returned an indictment charging appellant with two counts of second degree burglary and one count of stealing. The case was assigned No. CR180-99F. The indictment was suppressed because of appellant's absence, and a capias warrant was issued for appellant's arrest. Appellant was arrested on February 8, 1981, and two days later, on February 10, he was arraigned on the indictment. The arraignment thus was held forty-one days after the indictment was returned. The previous complaint, comprising case Nos. CR380-1063F and CR380-1227F, was dismissed after appellant was arraigned on the indictment.

On February 13, and again on February 18, appellant filed a motion to quash the indictment on the ground that, in violation of § 545.780(1), he had not been arraigned within ten days after the indictment was made public. The trial court overruled the motions on April 9.

The Missouri Court of Appeals, Western District, issued a preliminary writ of prohibition on April 20 staying the proceedings against appellant and thirty-six other defendants indicted by the same Cole County grand jury because the indictments were improperly returned in violation of § 540.270. State ex rel. Avery v. McHenry, No. WD 32671 (Mo.App. Apr. 20, 1981) (preliminary rule in prohibition). The preliminary writ of prohibition was modified on May 4 by an order authorizing the state to recommence prosecution by information during the pendency of the prohibition proceedings. State ex rel. Avery v. McHenry, No. WD 32671 (Mo.App. May 4, 1981) (order modifying preliminary rule in prohibition issued Apr. 20, 1981). Meanwhile the state had already filed another complaint, case No. CR381-403F, on April 27. The preliminary hearing scheduled thereon for May 1 was never held, however, because, although appellant appeared, no judge was available on that day.

The state obtained a second grand jury indictment, No. CR141-49F, on May 26. Appellant was arraigned on that indictment the following day, May 27, at which time the previous complaint, No. CR381-403F, was dismissed. Appellant was also released on bail that day. Until that time appellant had spent 108 days in jail after his arrest on February 8. On June 1, appellant moved to dismiss the second indictment on statutory and constitutional speedy trial grounds. The motion was overruled on June 2. The state, with leave of the trial court, filed an information in lieu of the indictment on June 4, the day of the trial, and appellant was arraigned and tried on that information. The jury convicted him of two counts of second degree burglary. Finally, on June 16, the court of appeals quashed its preliminary writ of prohibition as moot. State ex rel. Avery v. McHenry, No. WD 32671 (Mo.App. June 16, 1981) (order quashing preliminary rule in prohibition).

II

Appellant first contends that the trial court should have dismissed the case against him because § 545.780, ³ the speedy trial statute, was violated. He complains that he was not arraigned and tried within the time prescribed by the statute. His premise for that argument is that the time periods within which arraignment and trial must be held should begin to run at the time a defendant is arrested or charged. Appellant also contends that the statute is unconstitutionally vague and effectively defeats the speedy trial guarantee embodied in the sixth amendment to the United States Constitution. ⁴ The intertwined and at times confusing nature of these arguments necessitates a general discussion of the right to speedy trial before addressing appellant's specific complaints.

The states are free to offer criminal defendants greater protection through their laws than the Constitution requires, but they cannot offer less. See Oregon v. Hass, 420 U.S. 714, 719, 95 S.Ct. 1215, 1219, 43 L.Ed.2d 570 (1975); Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917 (1968); Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730 (1967). Statutes cannot displace constitutional guarantees. The Constitution forms an irreducible minimum upon which statutes can only build. Consequently, it has been recognized that § 545.780

is not a substitute for the ... speedy trial right accorded by the Sixth Amendment ... and by the Missouri Constitution, [art. I, § 18(a) ], nor does it purport to define the limits of those constitutional rights.... The statutory speedy trial right exists separate from, but longside, the constitutional speedy trial right.

State v. Richmond, 611 S.W.2d 351, 354 (Mo.App.1980). Appellant is incorrect in his contention that the statute defeats the constitutional speedy trial guarantee. Neither the language of the statute nor judicial interpretation thereof can abrogate a constitutional right.

Section 545.780 grants defendants greater protection than the Constitution requires. ^{5 5} Although there is "no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months," Barker v. Wingo, 407 U.S. 514, 523, 92 S.Ct. 2182, 2188, 33 L.Ed.2d 101 (1972), the Missouri statute provides specific time limitations within which, absent excusable delays outlined in subdivision (3), arraignment and trial must be had. Arraignment must occur within ten days "from the filing of the information or the making public of the indictment." § 545.780(1). If the defendant pleads not guilty, his trial must begin within 180 days of arraignment. § 545.780(2). The statute makes it clear when these additional rights accrue, and thus appellant's vagueness contention is unavailing. The fact that the trial court interpreted the statute contrary to appellant's view of how it should be interpreted does not make the statute vague.

Appellant confuses the constitutional and statutory standards. He argues that the ten day period within which a defendant must be arraigned should begin to run whenever the accused is arrested or incarcerated and not when the information is filed or the indictment is made public. He also contends that the 180 day period within which trial must be had should begin to run when a defendant is arrested or charged and not after the "formal arraignment." It is true that for purposes of a defendant's constitutional right to a speedy trial "it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment" and "[i]nvocation of the speedy trial provision ... need not await indictment, information, or other formal charge." Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 304, 46 L.Ed.2d 205 (1975) (quoting United States v. Marion, 404 U.S. 307, 320-21, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971)). See also ...