State v. Clark

• Decision Date: 29 June 1993
• Docket Number: 62803,Nos. 60035,s. 60035
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Russell CLARK, Jr., Defendant/Appellant. Russell CLARK, Jr., Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
• Court: Missouri Court of Appeals

Page 782

859 S.W.2d 782

STATE of Missouri, Plaintiff/Respondent, v. Russell CLARK, Jr., Defendant/Appellant.

Russell CLARK, Jr., Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.

Nos. 60035, 62803.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 29, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 28, 1993.

Application to Transfer Denied Sept. 28, 1993.

Scott Everett Walter, Zwibelman, Edelman & Walter, Clayton, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Joan F. Gummels, Asst. Atty. Gen., Jefferson City, for respondent.

CRANE, Judge.

A jury found Russell Clark, Jr. guilty of two counts of murder in the first degree in violation of § 559.010 RSMo 1969. The trial court found Clark to be a prior offender and sentenced him to two consecutive terms of life imprisonment. Clark filed a Rule 29.15 motion for post-conviction relief which the motion court denied without an evidentiary hearing. Clark appeals both the judgment of the trial court and the order of the motion court.

In his direct appeal Clark asserts that the trial court erred in overruling his motion to dismiss the indictment for pre-indictment delay, in excluding certain testimony of a police officer relating to the investigation and in failing to suppress Clark's confession on the ground it had been procured by promises of leniency. On appeal from the order of the motion court, Clark asserts that the motion court erred in denying his motion for post-conviction relief because his conviction was obtained in violation of his constitutional rights by reason of the delay and the destruction of some evidence. We affirm both the judgment of the trial court and the order of the motion court.

DIRECT APPEAL

Clark does not challenge the sufficiency of the evidence. His points on appeal concern the thirteen year delay between the date he confessed to the crimes and the date Clark was indicted and the events that occurred during the police investigation of the crimes.

On November 1, 1975 J.D. Bracken and Thomas Jackson were shot to death in a tavern on Arlington Avenue in the City of St. Louis. A witness who heard the shots saw a man wearing a ski mask running from the tavern in an alley toward some vacant buildings. Police searched one of the vacant buildings and found a stocking cap, sweater, overalls, a nine millimeter Astra and a .38 Smith and Wesson pistol.

The evidence from the scene, the weapons, the spent casings, and blood, bullets and clothing from the bodies of the victims were delivered to the police laboratory. Laboratory personnel entered the receipt of this evidence in a log and issued receipts to the delivering individual. Fire arms, spent casings and bullets were tested at the Fire Arms Section of the lab. The nine millimeter Astra was identified as the murder weapon.

During their investigation police identified Charles Urskin Cherry as a suspect. On November 1, 1975 Cherry was arrested for the two homicides and the homicides were removed from the active files.

In December 1975 police obtained an Unlawful Flight to Avoid Prosecution Warrant (UFAP Warrant) for Clark's arrest in connection with an unrelated homicide. Approximately one year later, on December 3, 1976, FBI Special Agent (S.A.) Byron Sage was advised that a man using the name "Cherry" had been arrested for petty theft in Fresno, California and his fingerprints matched the fingerprints on the UFAP warrant issued for Clark. S.A. Sage brought Clark to the FBI office in Fresno. On route to the FBI office, S.A. Sage advised Clark of his rights and provided him with a written warning and waiver of rights form. After arriving at the FBI office, S.A. Sage again gave Clark a copy of his rights. When asked about his ability to read and his education level, Clark said he had only a sixth grade education, but that he could read and write the English language. S.A. Sage asked Clark to read the form and went over it with him. Clark told S.A. Sage that he had read the form and understood it. Clark signed the form before S.A. Sage and another FBI agent.

Clark told the agents that he had used the alias "Charles Tony Cherry," as well as other aliases. He confessed to killing two people in a bar on Cote Brilliante in St. Louis in August 1975. He had been given information that these two persons were selling drugs in what he considered to be his territory. When he learned they were at the tavern, he hid two guns, a .38 Smith and Wesson and a nine millimeter Astra, as well as a ski mask, sweatshirt, and jeans, in a nearby vacant house. He went to the tavern, located the victims, and then returned to the vacant house for the guns. He changed into the clothes and returned to the tavern where he shot the victims with the nine millimeter Astra. He described where his shots had struck the victims. He escaped through an alley and ran back to the vacant house where he discarded his outer clothing and weapons. He drew a map showing the location of the murder scene and the route he took to get to the house. The agents transcribed his confession and Clark corrected, initialed and signed it.

S.A. Sage informed the St. Louis FBI office of the confessions. However, the details of this confession did not match the details of the crime for which the UFAP warrant had been issued. The warrant was dismissed then and Clark was released. The Fugitive Unit of the St. Louis Police Department was notified that Clark had been apprehended. S.A. Sage did not know if Clark's confession was forwarded to the St. Louis Police Department at that time.

During 1976 the St. Louis Police Department indexed homicide information by date, location, and victim. Under this indexing system Clark's confession would not have matched with the Jackson/Bracken homicides because Clark said the crimes took place in August, he said the crimes occurred at a tavern on Cote Brilliante and he did not name his victims. Jackson and Bracken had been killed on November 1 at a tavern on Arlington.

It was police policy at that time to clear a case from the index and remove it from the active files once a warrant application was made, whether or not that suspect was eventually charged. The Jackson/Bracken homicides case was placed on the inactive file when Charles Urskin Cherry was arrested, although he was apparently never charged.

At that time, the police laboratory would routinely request the disposal of evidence in a case after time had passed. Evidence destruction was authorized if there was no court action pending one year and one day after evidence was received. On January 3, 1977 the laboratory destroyed the clothing and the nine millimeter Astra and returned the .38 Smith and Wesson to the registered owner. The laboratory issued a memo authorizing the destruction and created vouchers for the destroyed evidence.

In November, 1989, thirteen years after Clark's confession, Detective Joseph Burgoon of the St. Louis Police Department Homicide Unit was reviewing old homicide files and discovered Clark's confession. He noted the similarity between the confession and the Jackson/Bracken homicides. On November 20, 1989 a grand jury indicted Clark, charging him with two counts of first degree murder.

Clark was tried before a jury. At trial the state introduced into evidence the police laboratory receipts for the delivery of the clothing, weapons, spent casings and bullets. It also introduced the photographs of the clothing and weapons. Clark did not testify and did not put on any evidence. In closing argument defense counsel argued that the only evidence linking Clark to the crime was Clark's confession, which he argued had been coerced. Defense counsel also argued that any other evidence he might have been able to submit in Clark's defense was destroyed during the pre-indictment delay.

For his first point on direct appeal, Clark asserts the trial court erred in overruling his motion to dismiss the indictment because the thirteen year period between his confession and indictment constituted a state-caused prejudicial delay which deprived him of due process under the Missouri Constitution and under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

In his motion Clark asserted the delay was an intentional device to give a tactical advantage to the state and placed an impossible burden on him to prepare a defense because he could not find alibi witnesses and potential witnesses had died. On the third day of trial, the trial court overruled the motion to dismiss noting it had heard Det. Burgoon's testimony and evidence of the circumstances of the delay.

A defendant is protected against prejudice from pre-indictment delay by the applicable statute of limitations and by the Fifth Amendment's due process clause. United States v. Marion, 404 U.S. 307, 322-24, 92 S.Ct. 455, 464-65, 30 L.Ed.2d 468, 479-81 (1971); State v. Robinson, 696 S.W.2d 826, 830 (Mo.App.1985). In Missouri there is no statute of limitations for the crime of murder; a prosecution for murder may be commenced at any time. § 556.036 RSMo (1986). However, even if prosecution is not foreclosed by a statute of limitations, a defendant may claim prejudice due to the pre-indictment delay under the Fifth Amendment due process clause. Robinson, 696 S.W.2d at 830.

Under the due process clause, a defendant's case must be dismissed if the defendant shows that 1) the pre-indictment delay caused substantial prejudice to his or her right to a fair trial and 2) the prosecution intentionally delayed the process in order to gain a tactical advantage over the defendant. Marion, 404 U.S. at 324, 92 S.Ct. at 465, 30 L.Ed.2d at 481; State v. Griffin, 848 S.W.2d 464, 467 (Mo. banc 1993); Robinson, 696 S.W.2d at 830. Any due process inquiry must consider the reasons for the delay as well as any resulting prejudice to the defendant. Robinson, 696 S.W.2d at 830.

A delay is prejudicial if it impairs the defendant's...