State v. Bullington

• Decision Date: 18 September 1984
• Docket Number: No. WD,WD
• Parties: STATE of Missouri, Respondent, v. Robert E. BULLINGTON, Appellant. 34011.
• Court: Missouri Court of Appeals

Page 238

680 S.W.2d 238

STATE of Missouri, Respondent, v. Robert E. BULLINGTON, Appellant.

No. WD 34011.

Missouri Court of Appeals,

Western District.

Sept. 18, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Oct. 30, 1984.

Application to Transfer Denied

Dec. 18, 1984.

Mary Dames, Asst. Public Defender, 21st Judicial Circuit, Clayton, for appellant.

John Ashcroft, Atty. Gen., Michael H. Finkelstein, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, P.J., and SHANGLER and NUGENT, JJ.

CLARK, Presiding Judge.

Robert E. Bullington was jury tried and convicted of the multiple offenses of armed criminal action, burglary in the first degree and two counts of flourishing a dangerous and deadly weapon. He was sentenced, in the aggregate, to a term of 130 years. This appeal presents five points raising issues of procedure concerning admission and exclusion of evidence, jury instruction and limitations of time upon the state's entitlement to proceed with prosecution. The sufficiency of the evidence to sustain the convictions is not in contest.

From the evidence adduced at the trial, the jury was entitled to find that on September 3, 1977, Bullington entered the home of Mary Osborne by forcibly bursting a basement door. Mary and her two children, John and Pamela, were threatened by Bullington who held a shotgun and later taped their eyes and hands while he ransacked the house. Subsequently, Bullington left with Pamela as a hostage. Bullington was identified by Mary and John as the perpetrator of the crimes.

I.

Addressing first the procedural points, we consider Bullington's contention that his prosecution under an indictment returned in July, 1981 was in excess of the court's jurisdiction because the indictment was beyond the three year statute of limitations for the crimes. He also argues, even assuming the prosecution was commenced within the statute of limitations, that he was entitled to be discharged because his trial was not conducted within the time limits provided in § 545.780, RSMo 1978. Discussion of these points requires a recounting of the history of this case and an associated charge of capital murder.

On the original indictment, Bullington was charged with capital murder and kidnapping (as to the hostage, Pamela) and with the offenses here at issue, armed criminal action, burglary and flourishing a weapon. Trial proceeded on October 13, 1978 and convictions were had on all counts. On February 13, 1979, however, a new trial was ordered for Bullington because of the impermissible exclusion of women from jury venires in Jackson County. At that point, Bullington moved to sever the murder count from the remaining counts in accordance with Rule 24.04(a) which had become effective on January 1 of that year. A refusal of the trial judge to grant the severance resulted in a writ of prohibition taken to the Missouri Supreme Court where it was held that Rule 24.04(a) applied and the severance was to be granted. State ex rel. Bullington v. Mason, 593 S.W.2d 224 (Mo. banc 1980). From that point forward, the paths of the murder charge and the remaining counts diverge The original charges prosecuted in the 1978 trial remained on the court's calendar in bifurcated form while Bullington pursued appeals questioning whether, on a second trial, the state was entitled to seek the death penalty as to the severed murder charge. It was ultimately held that the death penalty was not available in a second trial of the capital murder charge if the first trial had resulted in a lesser punishment. Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981). At this point, for reasons not apparent in this record, the state elected to seek a new indictment as to the offenses other than the murder charge and that indictment was returned July 7, 1981. At some time thereafter, apparently in September, 1981, the state entered a nolle prosequi as to the original indictment. Trial proceeded on the 1981 indictment commencing May 10, 1982 to a judgment of conviction.

and proceed separately to their respective conclusions.

Bullington first contends the 1981 indictment under which he was convicted should have been dismissed because, at the time that indictment was filed, more than three years had passed since the crime and prosecution was barred under the statute of limitations. He relies on § 556.036, RSMo 1978 ¹ as the basis for the period of limitations. Although a three year period controls in either event, he is in error in the citation of the statute.

Section 556.036, on which Bullington relies is expressly declared by § 556.031(3), not to apply to or govern any offense committed prior to January 1, 1979. The prior statute, also setting a three year limitation generally for the prosecution of felonies and effective at the time of Bullington's crimes is § 541.230, RSMo 1969. Material to the point advanced by Bullington is the companion section from the prior statute revision, § 541.230, RSMo 1969, which reads:

"When an indictment or prosecution shall be quashed, set aside or reversed, the time during which the same was pending shall not be computed as part of the time of the limitation prescribed for the offense."

Because Bullington was under indictment, nol-prossed in September, 1981, continuously from 1977 until the new indictment was returned in 1981, it is apparent § 541.230, RSMo 1969 tolled the statute of limitations, § 541.230, RSMo 1969, if the entry nolle prosequi was the equivalent of a prosecution quashed, set aside or reversed. We conclude that it was.

At common law, proceedings on a particular bill could be retracted by the prosecution at any time without bar to a subsequent prosecution or revival of the original bill. Time accumulated under a withdrawn or defective indictment was not to be computed as part of any time of limitation. This concept is recognized as the law in Missouri as exemplified by State ex rel. Lodwick v. Cottey, 497 S.W.2d 873 (Mo.App.1973). There it was held that § 541.230, RSMo 1969 operates to toll the period of limitations during pendency of an indictment even though the indictment is so defective as to require dismissal, a dismissal being equated to the statutory language, "quashed, set aside or reversed."

The question of whether a nolle prosequi is likewise the equivalent of setting aside an indictment or prosecution was considered in State ex rel. Graves v. Primm, 61 Mo. 166 (1875). There the record entry showed the indictment filed against relator had been set aside. The latter contended the prosecutor had actually filed a nolle prosequi and he sought a revision of the record to this effect. The court held the words "set aside" and "nolle prosequi" to be the same in legal effect.

On the basis of § 541.230, RSMo 1969, Bullington must be denied his entitlement to rely on a bar of the three year statute of limitations because the statute was tolled throughout the period of time when the indictment first returned was pending.

Appellant next asserts that the trial court abused its discretion in failing to sustain his motion for dismissal in which he relied on the provisions of § 545.780, the Speedy Trial Act. He contends, as to the 1981 indictment, that neither arraignment nor trial were conducted within the time limits of the statute. He also argues that the time limit on retrial after entry of the new trial order was not observed.

On the face of the record, it is apparent more than 10 days passed between the filing of the 1981 indictment and the date of arraignment, more than 60 days passed between the date of the order granting a new trial and the trial and more than 180 days passed between arraignment on the 1981 indictment and the ultimate trial in 1982. Bullington contends he met his burden under the statute, citing State v. Richmond, 611 S.W.2d 351 (Mo.App.1980), and that the state failed to show excludability of any part of the delay. Although the state's brief dismisses the point as unworthy of response and therefore includes no argument or citation of authority, the appellate process is not amenable to or served by unreasoned, arbitrary dispositions of cases. We therefore consider the point on its merits, of necessity relying to some extent on the court's own research.

At the outset it is to be noted that Bullington makes no claim of trial delay as to the first trial of the case which commenced October 13, 1978 and was concluded February 13, 1979 by the order granting a new trial. Attention focuses instead on proceedings which commenced with the indictment returned July 7, 1981 and the trial which commenced in May of the following year. In presenting his argument, Bullington fails to address the issue of whether § 545.780, on which he relies is applicable to trial on charges of offenses which occurred in 1977. The question is whether the "speedy trial act" is applicable in this case where the law effective September 1, 1978 was not in existence at the time the crime was committed but was in force when the proceedings against the defendant were instituted.

As we observed in the previous portion of this opinion which considered appellant's claim under the statute of limitations, § 556.031 limits application of 1977 criminal code changes to the prosecution of crimes committed after January 1, 1979. The speedy trial act adopted concurrently in the 1977 session of the General Assembly is, of course, a procedural law. Any doubt as to whether § 556.031 was applicable to procedural as well as to substantive changes in the statutes was resolved by the decision in State ex rel. Peach v. Bloom, 576 S.W.2d 744 (Mo. banc 1979). The court there ruled that § 556.031 was applicable to procedural as well as substantive changes in the criminal statutes and, as a consequence, the defendant was subject to sentencing under the Second Offender Act which had been repealed as of the date of trial but which was in effect when the...