State v. Chambers

• Decision Date: 09 February 2016
• Docket Number: No. SC 95094,SC 95094
• Citation: 481 S.W.3d 1
• Parties: State of Missouri, Respondent, v. Claude Chambers, Appellant.
• Court: Missouri Supreme Court

481 S.W.3d 1

State of Missouri, Respondent,

v.Claude Chambers, Appellant.

No. SC 95094

Supreme Court of Missouri, en banc .

Opinion issued February 9, 2016

Chambers was represented by Margaret M. Johnson of the public defender's office in Columbia, (573) 777–9977.

The state was represented by Dora A. Fichter of the attorney general's office in Jefferson City, (573) 751–3321.

Mary R. Russell, Judge

Claude Chambers (Defendant) appeals his conviction for first-degree statutory sodomy. He argues on appeal that the trial court erred in failing to sustain his timely filed application for a change of venue under Rule 32.03, that the state presented insufficient evidence to support the charge against him, and that the court abused its discretion in overruling his motions for a continuance.

Defendant timely filed his application for a change of venue as a matter of right under Rule 32.03. After he filed the application, however, Defendant allowed the application to languish in the case file for almost nine months while affirmatively representing to the trial court that he had no pending motions in the case and that the cause should remain set for trial. Defense counsel notified the court of the pending application for a change of venue the day before trial. On the morning of trial his application was taken up by the court for argument. Because of this conduct, Defendant waived his right to a change of venue. The trial court did not err in denying Defendant's application under Rule 32.03. This Court finds no error in Defendant's other points on appeal. The judgment of the trial court is affirmed.

I. Facts

The evidence adduced at trial established that Defendant lived with C.R. (the victim), who was 10 years old at the time of trial, and the victim's mother. Most mornings Defendant would wake the victim to get him ready for school. Defendant made the victim watch "nasty movies," during which Defendant would pull down his pants and would make the victim disrobe from the waist down. Defendant then made the victim sit on Defendant's lap. The victim testified that Defendant then inserted his penis into the victim's anus. Defendant told the victim to keep it a secret, but the victim told his teacher what had happened. When the victim was interviewed by the Child Advocacy Center, he stated that this occurred several times.

Defendant was charged with statutory sodomy in the first degree in Crawford County. On March 19, 2013, Defendant appeared in person and with counsel and waived formal arraignment. On the same day, defense counsel filed an application for a change of venue pursuant to Rule 32.03. This application for a change of venue was not called up for hearing or argument in the months preceding Defendant's trial.

Defendant appeared with different counsel at an April 16 hearing for all pending motions and for trial setting. The case was continued to May 22 for a hearing on the admissibility of out-of-court statements made by the child victim. At the May 22 hearing, two witnesses for the state testified regarding the victim's statements to them, and defense counsel cross-examined them. The trial court then set a case review hearing for June 19. Defendant appeared in person and with counsel at the June 19 hearing, during which the court set the case for trial on December 9. The court then ordered the cause "continued to November 19, 2013 at 1:00 P.M. to hear all pending motions and for last plea" and asked counsel if there was "anything else" for the court to address in the case. Counsel for defendant and the state both answered that they had nothing further for the court to consider. At no time during the April, May, or June hearings did defense counsel, the state, or the trial court take note of Defendant's pending application for a change of venue.

On November 14, less than one month before Defendant's case was set for trial, defense counsel filed a notice indicating that he would be deposing eight witnesses before trial. Defense counsel then filed a motion for a continuance on November 18, alleging that counsel needed additional time to prepare for trial.

At the November 19 hearing, the court asked if there were "[a]ny motions on behalf of Defendant." Defense counsel answered that he had a "pending motion" for continuance, but stated that he did not want the court to take it up at that time because he had depositions scheduled later in the week. The trial court then asked, "So cause is to remain for trial?" Defense counsel responded, "Yes, sir."

On December 5, Defendant filed an amended motion for a continuance, which the trial court overruled the same day in a telephone conference. On Sunday, December 8, defense counsel discovered the still-pending application for a change of venue and informed the trial judge of this matter over the telephone. The trial court contacted the prosecutor, who suggested that the application be taken up on the record before trial the next day.

Immediately before trial the next day, defense counsel argued that the timely filed application for a change of venue should be sustained. The trial court found that Defendant waived his right to a change of venue because Defendant did not affirmatively bring that matter to the court's attention when the court had asked him on previous occasions about pending motions. The court, consequently, denied his application for a change of venue.

Defense counsel also filed a second amended motion for a continuance on the day of trial, which the trial court overruled, finding that Defendant's attorney had a substantial amount of time to prepare for trial. Defendant then signed a written waiver of his right to the assistance of counsel and waived his right to be present during the trial. After the trial court determined that Defendant's waivers were knowingly and intelligently made, the trial proceeded in the absence of Defendant and defense counsel.

The jury found Defendant guilty of first-degree statutory sodomy. Defendant appealed. This Court has jurisdiction pursuant to article V, section 10, of the Missouri Constitution.

II. Analysis

A. Change of Venue

Defendant argues that the trial court committed reversible error by failing to sustain his application for a change of venue pursuant to Rule 32.03.

A trial court's decision to deny an application for a change of venue as a matter of right is a question of law. See State ex rel. Dilliner v. Cummins, 338 Mo. 609, 92 S.W.2d 605, 608–09 (1936). At the time of these proceedings, Rule 32.03 stated:

(a) A change of venue shall be ordered in any criminal proceeding triable by a jury pending in a county having seventy-five thousand or fewer inhabitants upon the filing of a written application therefor by the defendant. In felony and misdemeanor cases the application must be filed not later than ten days after the initial plea is entered. The defendant need not allege or prove any reason for change. The application need not be verified and shall be signed by the defendant or the defendant's attorney.

(b) A copy of the application and notice of the time when it will be presented in the court shall be served on all parties.

(c) If a timely application is filed, the court immediately shall order the case transferred to some other county convenient to the parties, first giving all parties an opportunity to make suggestions as to where the case should be sent. In lieu of transferring the case to another county, the court may secure a jury from another county as provided by law.¹

The failure to sustain a timely application for a change of venue as a matter of right may constitute reversible error² unless the party seeking a change of venue affirmatively withdraws the application or otherwise waives the right to the relief requested.

There is no question that Defendant timely filed his application for a change of venue under Rule 32.03. It is well established, however, that a defendant may waive constitutional or statutory rights, including the right to a change of venue. State v. Harmon, 243 S.W.2d 326, 328 (Mo.1951). Change of venue is a "mere statutory privilege which the parties may waive either before or after the change has been granted." Dilliner, 92 S.W.2d at 607. Waiver may be explicit or it may be implied by conduct. Bartleman v. Humphrey, 441 S.W.2d 335, 343 (Mo.1969). Waiver can be implied when a party's conduct "clearly and unequivocally show[s] a purpose to relinquish [a known] right." O'Connell v. Sch. Dist. of Springfield R–12, 830 S.W.2d 410, 417 (Mo. banc 1992).

The facts show that Defendant waived his right to a change of venue. After he filed the application for a change of venue, Defendant took no further action to pursue a change of venue despite numerous opportunities to do so. Defense counsel made no mention of the application during four separate pretrial hearings. Neither did the defense call up the application by filing notice of the time the application would be presented in court.

Defendant did more than sit by silently while his application for a change of venue remained pending in the case file. Counsel for Defendant affirmatively represented to the court on at least two occasions that there were no other matters pending in Defendant's case. At the case review hearing on June 19, defense counsel stated that there were no other matters for the court to take up in the case even though Defendant's application for a change of venue had been pending for three months. At the November 19 hearing three weeks before trial at which all pending motions were scheduled to be taken up, the trial court asked if there were "any motions on behalf of Defendant." Defense counsel mentioned a pending motion for a continuance, but indicated that he did not wish to take up the motion at that time because he was conducting depositions in the near future. Once again, defense counsel made no mention of the pending application for a change of venue. The court asked then, "So cause is to remain set for trial?" Defense counsel answered, "Yes,...