State v. Collins, 65285
| Decision Date | 15 May 1984 |
| Docket Number | No. 65285,65285 |
| Citation | 669 S.W.2d 933 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Jerry Lloyd COLLINS, Defendant-Appellant. |
| Court | Missouri Supreme Court |
Frederick W. Martin III, West Plains, for defendant-appellant.
John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
The appellant was charged with selling marijuana in violation of § 195.020, RSMo 1978. He moved to dismiss the information pursuant to Missouri's "speedy trial act," § 545.780. 1 The trial court overruled the motion and the jury found the defendant guilty. He appealed to the Court of Appeals, Southern District, alleging (1) violation of the speedy trial act, and (2) error in the admission of evidence. The Court of Appeals held that he was not entitled to relief under the speedy trial act but that there was reversible error in the admission of evidence. We granted transfer on the appellant's motion because of the substantial number of appeals involving the speedy trial act. 2 We of course decide the case as on original appeal and reach the same conclusion as did the Court of Appeals.
The defendant was charged by information on June 9, 1981 and was arraigned on July 6, 1981. The trial did not commence until July 9, 1982, 368 days after arraignment. The record contains little in explanation of this long delay. 3 There was, in particular, a failure of compliance with § 545.780-3(5)(a) (emphasis supplied):
Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of the defendant's attorney, or the defendant, or at the request of the prosecuting attorney if the continuance is consented to by the defendant's attorney or the defendant and if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the benefits of a speedy trial. No such period of delay resulting from a continuance granted by the court in accordance with this paragraph shall be excludable under this section unless the court sets forth, in the record of the case, its reasons for finding that the ends of justice served by the granting of such continuance outweigh the best interests of the public and the defendant in a speedy trial;
Nor was there substantial compliance with the provisions of § 545.780-5:
The court shall make a record showing the action taken in regard to the dismissal or continuance of the case and show on the record the reasons for such action.
Failure of the trial court to comply with these provisions, however, does not require dismissal of an indictment or information. Section 545.780-5 (emphasis supplied) provides as follows:
If the defendant is not brought to arraignment or trial within the time limit required by this section, the trial judge may dismiss the information or indictment upon motion by the defendant and a showing by defendant that the failure to have the trial commence within time limits specified herein was occasioned by the state. The case may be dismissed with or without prejudice at the discretion of the court. In determining whether to dismiss the case, the court shall consider, among others, each of the following factors: The seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a re-prosecution on the administration of this section and on the administration of justice.
The speedy trial act, despite the requirement of detailed findings, has no teeth. Dismissal of an indictment or information is purely a matter for the discretion of the trial judge. One who would challenge this exercise of discretion must meet the very substantial burden of demonstrating an abuse of discretion. Counsel should realize that success on appeal is very unlikely if the trial judge declines to dismiss the case. We are totally unable to say that the delay involved in this case was so great that the denial of the motion to dismiss could be said to constitute an abuse of discretion.
The detailed findings required by the speedy trial act are essentially addressed to the trial judges themselves. Judges of course should make the findings required by statute. An appellate court, if not informed as to the trial court's reasoning, may be more likely to find abuse of discretion. Failure to make findings, however, does not necessarily call for remand with directions to supplement the record. We will not order a useless act. The judge who tried this case is no longer in office, and there would be substantial difficulty in reconstructing the chronology of and reasons for the continuances. We see no need for a remand for this purpose. A trial judge, for example, might decide in his discretion that dismissal should not be ordered, even though the delays are solely occasioned by the state, and so detailed findings would not be necessary.
We conclude that the defendant has not established a right to dismissal and that no specific directions regarding the speedy trial act are necessary at this stage of the proceeding.
Art Howell was an undercover informant employed by the West Plains Police Department. He testified that he had known the defendant for several years and that he had purchased marijuana from the defendant on September 26, 1980, which was the date charged in the information.
The defendant testified in his own defense that he had seen Howell on only one occasion prior to the trial, in early August of 1980, when Howell was riding in a car driven by his uncle, David Woods. The defendant said that Woods got out of the car and socialized with a group at a barbecue at the defendant's house but that Howell remained in the car. The defendant's testimony was corroborated by two other witnesses.
The prosecution called David Woods in rebuttal, and he then testified as follows:
Q And what did you all do when you got out, Mr. Woods?
A I asked Bud [the defendant] if there was any pot around cause Arthur was looking for some, and he said, "Yeah--"
Defense counsel objected. The objection was overruled and the examination continued as follows:
Q What happened when you all got out of the car?
A Well, we all sat down at the table there, and I asked Mr. Collins if there was any pot around; he said, "Yeah." The pot came up, Arthur got the pot and we left.
Q Arthur got the pot from who?
A Bud Collins.
The trial court committed prejudicial and reversible error by receiving this evidence. The state had every right to impeach the defendant's testimony about his acquaintance with Howell by showing that they had met face to face on a prior occasion, but it was neither necessary nor proper to mention the criminal conduct. The trial court expressly sanctioned the improper evidence by overruling the objection and allowing the examination to continue. The state's purpose could have been served by simply asking Woods whether Howell had had a conversation with the defendant.
There are situations in which evidence of other crimes may be admitted in support of such issues as "motive, intent, the absence of mistake or accident, common scheme or plan ..., or the identity of the person charged ...." State v. Shaw, 636 S.W.2d 667, 672 (Mo. banc 1982), cert. denied, 459 U.S. 928, 103 S.Ct. 239, 74 L.Ed.2d 188. When the appropriate showing cannot be accomplished without establishing the commission of other crimes, the defendant must bear the burden as well as he can. 4 In the present case, however, proper impeachment could be had without introducing evidence of other crimes, which is highly prejudicial, State v. Griffin, 662 S.W.2d 854 (Mo. banc 1983) (Blackmar, J., dissenting), and should be received only when there is strict necessity. Here the prejudicial effect outweighs the necessity for and probative value of the testimony.
Our conclusion is supported by State v. Carter, 475 S.W.2d 85 (Mo.1972) and State v. Burr, 542 S.W.2d 527 (Mo.App.1976). We find no support for the state's argument that evidence of unrelated crimes is subject to challenge only if it demonstrates that the defendant has been charged with or convicted of the crime in question. State v. Wright, 582 S.W.2d 275 (Mo. banc 1979); State v. Holbert, 416 S.W.2d 129 (Mo.1967).
The defendant also complains of prejudicial error in the admission of the testimony of Chief of Police Harry Reavis that Howell had testified regarding the purchase of controlled substances from other persons, and that his trust in Howell has been well founded. The testimony of sales to third persons was introduced to explain the delay between the date of the sale and defendant's arrest and was not facially improper. The testimony about Howell's trustworthiness was offered on redirect after defense counsel attempted to cast doubt on Howell's character. There might be occasion for both offers of evidence. The evidentiary situation may not be the same on retrial, and so it is not necessary to treat of these points further.
We find no error in allowing the state to show the sentences received by Joanna Romans, the defendant's former wife who testified for him, after she admitted that she had been convicted, with imposition of sentence suspended and probation, which was later revoked. She did not testify as to the length of the sentence then imposed. The sentence may be shown when conviction is relied on for impeachment. State v. Taylor, 589 S.W.2d 302, 304 (Mo. banc 1979); State v. Sullivan, 553 S.W.2d 510, 515 (Mo.App.1977).
The judgment is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
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