State v. Crabtree

• Decision Date: 24 November 1981
• Docket Number: No. 39928,39928
• Citation: 625 S.W.2d 670
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Raymond CRABTREE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 670

625 S.W.2d 670

STATE of Missouri, Plaintiff-Respondent, v. Raymond CRABTREE, Defendant-Appellant.

No. 39928.

Missouri Court of Appeals, Eastern District, Division One.

Nov. 24, 1981.

Terry J. Flanagan and Joan Berger, St. Louis, for defendant-appellant.

Brian P. Seltzer, Asst. Atty. Gen., Jefferson City, William N. Seibel, Jr., Asst. Pros. Atty., St. Charles, for plaintiff-respondent.

STEPHAN, Judge.

Defendant was convicted of assault with intent to kill, § 559.180 RSMo 1969, his case having been tried to a jury in St. Charles County. He appeals from a judgment sentencing him to twenty years in prison. We affirm.

We begin with a brief statement of the essential facts. Additional facts will be introduced as needed in discussing the issues.

Defendant Raymond Crabtree has a daughter named Linda. In late September of 1976, the time of the offense under consideration, Linda had a boyfriend named Charles Newman, the victim in this case. Linda and Charles were married prior to trial.

On the morning of September 23, 1976, Charles and Linda arrived at defendant's trailer in order to pick up some clothes for Linda and for her daughter. Linda went inside, leaving Charles sitting in the car alone. Linda testified that while inside the trailer, she had conversations with defendant in which defendant made derogatory remarks about Charles, asked her to stop seeing Charles, and stated that she "belonged to him (defendant) and no one else."

Thereafter, defendant went out to the car in which Charles was sitting. Defendant testified that Charles threatened him, but Charles's testimony was that no threats occurred; rather, according to Charles, he first became aware of defendant when the latter was standing outside the passenger side of the car, pointing a gun at Charles's head through the right rear window of the car. Defendant then stated that he did not want Charles whipping Linda's daughter (defendant's granddaughter). Charles pushed the gun away, and the gun subsequently discharged. Charles was struck in the cheek and the bullet exited through the top of his head. He fell out of the driver's side of the car and recalled spitting out his false teeth, a piece of a bullet and blood. Defendant's evidence at trial tended to suggest that this was an accident. Defendant admitted at trial that Charles was shot a second time, this time intentionally by defendant in self-defense when the victim, lying on the ground, reached for defendant's trouser cuff. The second shot struck Charles in the right shoulder. Linda testified that after the second shot, defendant stated, "One down, one revenge completed. Three to go. If I can't have you, no man will."

Two questions must be addressed at the threshold of this appeal: (1) were defendant's constitutional rights violated by the delay in the preparation of his trial transcript?; (2) if so, should this court either order his release from custody or grant him a new trial, or is another remedy indicated?

The factual background of these questions is as follows. Defendant was tried and convicted in early November of 1977. Defendant's trial counsel filed a notice of appeal on December 9, 1977. In March of 1978, on advice of trial counsel, defendant filed a motion to proceed in forma pauperis. In April of 1978, trial counsel was granted leave to withdraw from the case, and defendant's motion and application in forma pauperis was sustained. In August of 1978, defendant filed a motion for appointment of counsel to perfect appeal and a motion to perfect appeal as a poor person. These motions were granted at the end of August, 1978, and the public defender was appointed to represent defendant. On October 19, 1978, the public defender requested that the court reporter prepare a transcript. Defendant's brief asserts that defendant was unaware of the fact that his trial counsel had not made such a request earlier.

On November 8, 1978, defendant filed a civil suit for damages and injunctive relief in federal district court against the court reporter. Defendant apparently undertook that action pro se. Since this action was taken less than three weeks after the October 19 request for the transcript, the question arises whether defendant sought this remedy on the strength of his belief that the transcript had been requested long before, or whether he foresaw at this early date that there would be a lengthy delay in production of the transcript. The record is silent on this matter. In any event, this suit was dismissed in March of 1979 because of certain deficiencies in defendant's pleadings. ¹ Meanwhile, in late November of 1978, the circuit court had determined after a hearing that defendant was not indigent and therefore not entitled to the public defender's assistance. Between December 8, 1978 and April 1, 1979, defendant wrote several letters to the court reporter, to the circuit court, and to this court concerning the delay in obtaining his transcript; he repeated these efforts between August 27, 1979 and July 5, 1980.

In September of 1979, this court found the court reporter to be guilty of criminal contempt for failure to deliver several transcripts on appeal, and sentenced her to six months' imprisonment. Defendant's case was not included in the order. On July 10, 1980 the court reporter sent defendant a letter informing him that his transcript had been completed. Over four months later, on November 14, 1980, defendant filed the first of several motions for extension of time to file transcript, which was granted by this court. Defendant attributes these delays after July 10, 1980 to the need for correcting alleged inaccuracies in the transcript. During the fall of 1980, defendant presented the transcript to the prosecutor's office and to his trial counsel for their review and suggested corrections. On January 29, 1981, defendant moved for the trial court to review his transcript. This motion was sustained on March 4, 1981. Defendant filed his brief on appeal on June 11, 1981. The record reflects that defendant was in prison throughout the period of the delay in preparation of his transcript.

The issue presented appears to be one of first impression in Missouri.

The Sixth Amendment to the United States Constitution guarantees to a defendant faced with a criminal charge the right to a speedy trial, but does not guarantee to a convicted criminal the right to a speedy appeal. Rheuark v. Shaw, 477 F.Supp. 897, 908(7) (N.D.Tex.1979), aff'd., 628 F.2d 297 (5th Cir. 1980). When a state provides the right to appeal, however, it must meet the constitutional requirements of due process and equal protection, and a substantial delay in the processing of an appeal may exceed the limits of due process. Rheuark, 628 F.2d at 302; Doescher v. Estelle, 477 F.Supp. 932, 934 (N.D.Tex.1979); People of Territory of Guam v. Olsen, 462 F.Supp. 608, 613 (D.Guam 1978). See also Petition of Williams, --- Mass. ---, 393 N.E.2d 353, 354(1) (Mass.1979).

As the Fifth Circuit Court of Appeals has noted, however, "not every delay in the appeal of a case, even an inordinate one, violates due process." Rheuark v. Shaw, 628 F.2d at 303(6). Both parties suggest that we examine four factors used by the Fifth Circuit and other federal courts to determine whether a due process violation has occurred, to-wit: (a) the length of the delay; (b) the reason for the delay; (c) defendant's assertion of his right; (d) prejudice to the defendant. Id., Rheuark v. Shaw, 477 F.Supp. at 908; Doescher v. Estelle, 454 F.Supp. 943, 947 (N.D.Tex.1978). See Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101, 117 (1972).

1. Length of the Delay.

The state concedes that there was a delay of twenty-one months between defendant Crabtree's request for a transcript and his notification by the court reporter that his transcript had been prepared. In the Rheuark case, supra, relied on heavily by both parties, federal courts, taking into account the four factors alluded to earlier, found due process violations in cases where the delays in transcript preparation were nine, twenty, and twenty-three months. 628 F.2d at 300; 477 F.Supp. at 910. The Supreme Court Rules in this state contemplate that normally a transcript will be ready within ninety days of the filing of the notice of appeal, see Rule 81.18 (1981 and 1979 editions), and possibly within sixty days of defendant's request for the transcript. See Rule 81.12(c) (1981). Otherwise, appellant must seek an extension from the appellate court, Rule 81.19 (1981; formerly, extension was sought in the trial court, see Rule 82.19, 1979 edition). While we note that such extensions are often granted, we also note that a delay seven times longer than the contemplated three-month period is extraordinary.

2. Reason for the Delay.

The state concedes that the twenty-one month hiatus in question is attributable to the court reporter's backlog. Defendant states in his brief that the backlog was caused, at least in part, by the fact that the court reporter suffered "some form of emotional collapse." Neither the backlog, the collapse nor the resulting delay may be blamed upon either the defendant or the state.

3. Defendant's Assertion of His Rights.

It is clear from the record in this case that between December 8, 1978, less than two months after the public defender ordered a transcript, and July 5, 1980, five days before notification that the transcript was ready, defendant made efforts to hasten the completion of his trial transcript. These efforts included letters to various officials, a "Motion to Provide Transcript," and a civil suit for damages and injunctive relief filed in federal court. Certainly, the record indicates that defendant, in effect, vigorously "demanded a more rapid appeal," see Rheuark, 477 F.Supp. at 909, and the state does not contend otherwise.

4. Prejudice Resulting to Defendant.

When, as here, an appellate court affirms a defendant's conviction on...