State v. Brooks, 13305

• Decision Date: 13 July 1984
• Docket Number: No. 13305,13305
• Citation: 675 S.W.2d 53
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robbie BROOKS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 53

675 S.W.2d 53

STATE of Missouri, Plaintiff-Respondent, v. Robbie BROOKS, Defendant-Appellant.

No. 13305.

Missouri Court of Appeals,

Southern District,

Division One.

July 13, 1984.

Motion for Rehearing or to Transfer to

Supreme Court Denied Aug. 1, 1984.

Application to Transfer Denied

Sept. 11, 1984.

John D. Ashcroft, Atty. Gen., Bruce Farmer, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Margaret Elise Branyan, Asst. Public Defender, Springfield, for defendant-appellant.

TITUS, Judge.

After a two-day jury trial, defendant was found guilty of selling marijuana (also spelled marihuana) on April 29, 1981, in Springfield, Missouri, in violation of § 195.020 ¹ and was court-sentenced as a prior offender (§ 558.016) to imprisonment for a term of eight years. This appeal ensued.

Defendant does not here challenge the sufficiency of the evidence. Ergo we examine two points relied on that the trial court erred in overruling his motion to dismiss the charge because (1) the state denied him a speedy trial in contravention of the mandates of the Sixth Amendment of the United States Constitution and Art. I, Sec. 18(a) of the Missouri Constitution and (2) the state failed to bring him to trial within 180 days as required by § 545.780, a/k/a The Speedy Trial Act. For a chronology of the actions below, see the appendix to this opinion. Also, bear in mind that the time for a speedy trial under the Sixth Amendment begins to run from the time of the indictment or information or arrest, whichever occurs first, State v. Holmes, 643 S.W.2d 282, 285 (Mo.App.1982), while the 180-day time for trial under The Speedy Trial Act begins to run from the time of arraignment. § 545.780-2.

As seen from the appendix hereto the delay in holding the preliminary hearing from December 21, 1981, as first set, to December 28, 1981, when it was held, was not the state's fault but resulted from a mutual agreement of the parties. The trial was not held February 8, 1982, as first set, because of defendant's request for a continuance to permit securing depositions of alibi witnesses residing in California, which depositions were not actually obtained until much later, in August and December of 1982. While the state announced ready on June 21, 1982, that setting was postponed to July 19, 1982, at defendant's request. We do not know what happened to the last mentioned setting but it obviously was continued and it may be assumed the fact defendant had not obtained the California depositions was a factor in the continuance. The trial setting for October 12, 1982, was continued at defendant's request until December 6, 1982, and, as defendant was at the latter date still engaged in the taking of depositions, further continued to February 16, 1983. However, before the last two setting dates occurred, defendant's counsel was permitted to withdraw and on November 19, 1982, the public defender was appointed in his stead. On February 15, 1983, defendant's prior request for a change of judge was sustained and on February 16, 1983, the last day the cause was set for trial, defendant filed (1) an application for a continuance and (2) a motion to dismiss the charge because his right to a speedy trial had been violated. These motions were overruled and after defendant's co-defendant was granted a severance, the cause of the latter went to trial on February 16, 1983. The state's March 3, 1983, request for a trial setting of defendant's case for March 14, 1983, was answered by yet another continuance request by defendant on March 10, 1983. The latter motion was overruled March 11, 1983, on the condition defendant's counsel was not engaged in another trial on March 14, 1983. As he was not, the case went to trial on March 14, 1983.

The foregoing and the appendix hereto attest that roughly 70% of the delay in bringing defendant to trial (who was free on bond all the while) was directly caused by defendant himself. The guiding concepts used in determining defendant's Sixth Amendment rights to a speedy trial are set forth in Holmes, supra at 286-287, one of which is whether defendant made a timely assertion of his right to a speedy trial. As seen from the above chronology and that recited in the appendix, defendant did not once take any affirmative action to acquire a speedy trial. Instead and to the bitter end, he made repeated requests for continuances. When such occurred he is deemed to have waived his right to a speedy trial. Where, as here, defendant repeatedly caused trial delay by continually asking for and being granted continuances, he may not be heard to successfully allege denial of his constitutionally guaranteed right to a speedy trial. State v. Campbell, 612 S.W.2d 371, 374[5, 6] (Mo.App.1980). The constitutional right to a speedy trial is neither a guarantee of a prompt trial nor a trial instanter and there are decisions holding that delays of many months or even years are not intolerable. E.g. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); State v. Harper, 473 S.W.2d 419 (Mo. banc 1971). As apparently then required by § 545.780-3(5)(a), the trial court in the instant matter dutifully set forth in the record its reasons for finding that the ends of justice served by granting defendant's various requests for continuances outweighed the best interest of the public and the defendant to a speedy trial. The Missouri Supreme Court in the recent case of State of Missouri v. Jerry Lloyd Collins, 669 S.W.2d 933 (Mo. banc 1984), described Missouri's speedy trial act as a statute that "has no teeth." Although the dissent to that opinion described the absence of teeth as "far more attributable to this Court's dentistry than to any deficiency in the statute," the courts in the future should not be encumbered with wrestling that particular law as it was repealed by H.C.S.S.C.S.S.B. 602, 82nd General Assembly, 2d Session (1984) and replaced by a provision putting the burden on defendant to request a trial. (Governor signed and approved new law June 7, 1984). Nonetheless, defendant's total inertia in seeking trial and his overt activities in repeatedly acquiring continuances belie the assertions advanced in the two points relied on which are denied.

In another point relied on defendant contends the trial court erred in overruling his motion for continuance filed March 10, 1983, after the cause was set for trial on March 14, 1983. The application filed March 10, 1983 was at least defendant's seventh such application and the third motion for a continuance filed on his behalf by the public defender after the latter's appointment on November 19, 1982. In part, Rule 24.09 provides "An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person ...." (Emphasis supplied). Contrary to the mandates of the rule, the application in question was not verified and defendant's failure to accompany the motion with an affidavit showing good cause therefor was sufficient reason for the trial court to deny it. State v. Diamond, 647 S.W.2d 806, 808 (Mo.App.1982); State v. Bolden, 525 S.W.2d 625, 632 (Mo.App.1975). Moreover, it is well established that an application for a continuance is addressed to the sound discretion of the trial court whose exercise thereof will not be disturbed upon appeal unless it clearly appears that discretion has been abused. State v. Winston, 627 S.W.2d 915, 917 (Mo.App.1982). When this court is asked to review the discretion exercised by the trial court in refusing a continuance request, every intendment in favor of the trial court's action is indulged [State v. Gaskin, 618 S.W.2d 620, 626 (Mo.1981); State v. Berger, 618 S.W.2d 215, 217 (Mo.App.1981) ] and a very strong showing is necessary to induce an appellate court to interfere with the trial court's ruling. State v. Green, 647 S.W.2d 902, 904 (Mo.App.1983). As no such showing was made, defendant's point is denied.

In another point relied on defendant contends the trial court erred in not complying with the jury's request to have in its possession during deliberations certain items involved in the cause. As requested, the trial court sent to the jury on April 1981 calendar and defendant here concedes that the trial court properly refused to give the jury Police Officer Foster's report and synopsis as they had not been offered or admitted into evidence. Therefore, in this court defendant's complaint is that the trial court erred in not giving the jury (1) State's Exhibit 2--the marijuana sold to Officer Foster, (2) Defendant's Exhibit E--the telephone bill of defendant's mother and (3) the depositions of defendant's witnesses Bob and Rhonda McMillan.

A jury, as a matter of right, may not take exhibits into the jury room and whether a jury may do so rests within the sound discretion of the trial court. State v. Connell, 523 S.W.2d 132, 138[15-16] (Mo.App.1975). To constitute an abuse of discretion the act must be untenable and clearly against reason and must work an injustice. State v. Williams, 643 S.W.2d 3, 4 (Mo.App.1982). The marijuana exhibit, the substance defendant was accused of selling, had been passed to and inspected by the jury during trial. As the jury had seen the exhibit and it was only one item of the total evidence in the case, we cannot hold the trial court's refusal for it to be taken to the jury room constituted an abuse of discretion. State v. Sanders, 541 S.W.2d 530, 534 (Mo. banc 1976).

Defendant's defense was alibi--that he had been in Hayward, California, on April 29, 1981, the date he allegedly sold the marijuana in Springfield, Missouri. Defendant's Exhibit E, a telephone bill, was identified by defendant's mother to show she had placed a call from Springfield to Hayward on May 1, 1981. Both defendant's mother and brother testified the call was to defendant and they had spoken to defendant on that date. To send to the jury room only Exhibit E would...