State v. Cullen, WD
| Decision Date | 14 December 1982 |
| Docket Number | No. WD,WD |
| Citation | 646 S.W.2d 850 |
| Parties | STATE of Missouri, Respondent, v. Calvin CULLEN a/k/a Jackie Moore, Appellant. 32046. |
| Court | Missouri Court of Appeals |
James D. Walker, Asst. Public Defender (argued), James W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.
Philip M. Koppe, Asst. Atty. Gen. (argued en banc), Kansas City, John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Brian P. Seltzer, Asst. Atty. Gen. (first argument), Jefferson City, for respondent.
Before SOMERVILLE, C.J., and SHANGLER, DIXON, WASSERSTROM, MANFORD, KENNEDY and NUGENT, JJ.
Calvin Cullen (defendant) appeals from a jury verdict of June 3, 1980, finding him guilty of robbery, second degree, in violation of § 569.030 1 and sentencing him to five years imprisonment, and from the enhancement of the sentence for an additional four years under § 558.016. We affirm the conviction but remand the case with directions to reopen the sentencing proceeding.
On November 11, 1979, shortly after 10:00 p.m. Gary Dean Bowman was driving north on Troost Avenue at Thirty-third Street in Kansas City, Missouri, when a person dressed as a female called for him to stop. Bowman stopped in a grocery store parking lot to speak with this person. When Bowman declined the offer of a date, the person, later identified as Cullen, a man, demanded all of Bowman's money, indicating that he had a .357 Magnum in his purse. After giving the person $24, Bowman drove away and reported the incident to the police, giving a description of the suspect. Three nights later Bowman, again driving on Troost Avenue, noticed Cullen standing in the same block in which the robbery had occurred. Bowman notified the police and identified Cullen in a lineup that same night.
The defendant was arraigned on this robbery charge on December 4, 1979. By the calendar, the one hundred eightieth day thereafter was Sunday, June 1, 1980. In the interim, on its own motion for the reason that a state witness was unavailable, the court continued the trial setting from May 14 to June 2. Trial was called on Monday, June 2. That morning was devoted to hearings on Cullen's pretrial motions, including his motion to dismiss for failure to bring defendant to trial within the 180-day period set by the state speedy trial statute, § 545.780. The motions were overruled. Examination of the venire for jury selection began on the afternoon of June 2 and consumed the rest of the day. The following morning, defendant renewed his speedy trial motion to dismiss, it was denied, and the jury was sworn.
The jury found defendant guilty and assessed a punishment of five years. Thereafter, the trial court heard evidence on the issue of sentence enhancement under § 558.016 to determine whether defendant was a persistent offender. The prosecution offered evidence of a 1972 felony conviction for burglary consisting of two exhibits: Exhibit 2, a certified copy of the judgment and sentence of Cullen entered on January 4, 1973, showing that defendant was convicted in Jackson County of burglary, second degree; and Exhibit 1, a certified copy of a commitment order, fingerprints and photograph from the Department of Corrections showing that Cullen was received on March 10, 1974, and that his sentence was commuted on July 15, 1975.
For proof of a second prior felony conviction the state asked the court to take judicial notice of "State v. Cullen, aka Jackie Moore, CR 79-1043, in which Mr. Cullen was convicted of possession of a controlled substance, a Class C felony, on October 1, 1979, where Mr. Cullen received a sentence of two years in the Missouri Department of Corrections, which sentence is still pending execution." No record was offered into evidence relating to this conviction nor does the circuit court's file contain any documentation. In response to the prosecutor's request that the court take judicial notice of the 1979 conviction, the court stated:
Let the record further show that on the basis of the documents just received in evidence, the Court does determine that there is evidence in existence constituting a basis for an extended term, and makes findings with regard to those matters that are consistent with Exhibits 1 and 2, that is, the conviction of the prior felony is indicated by the State's offer of Exhibit 2 and the accompanying documents.
On this appeal the defendant raises two points: (1) the trial did not commence within the 180-day period in accordance with the provisions of § 545.780, Missouri's speedy trial statute; and (2) the trial court improperly imposed an extended four-year sentence because the prosecution failed to establish by adequate evidence two prior felony convictions.
With respect to the speedy trial issue, the burden rests with defendant to prove the expiration of the 180-day period. Once done, the burden shifts to the state to show the excludability of any period of delay. State v. Richmond, 611 S.W.2d 351, 357 (Mo.App.1980).
Supreme Court Rule 20.01(a) provides that in computing a period of time prescribed by a statute, "The last day of the period ... is to be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday nor a legal holiday." In this case, under this rule, the one hundred eightieth day after Cullen's December 4 arraignment was June 2, 1980. That Monday morning, although it was the day trial was set and called, was spent on defendant's motions. Section 545.780-3(1)(c) provides that delay of a trial resulting from hearings on pretrial motions "shall be excluded in computing the time within which the ... trial ... must commence." If nothing else had happened in the case that day, the day nevertheless was excludable under § 545.780-3(1)(c), and a trial beginning on the following day, Tuesday, June 3, was timely commenced. 2
The trial court need not have relied upon the application of the exclusion provided for in § 545.780-3(1)(c), however. The trial actually began on Monday, June 2, in the afternoon with the swearing of the venire at the commencement of the voir dire examination. That is so because, in the case of a jury trial, the selection of a jury is a necessary incident of the trial. Moreover, the swearing of the venire always occurs at a time when the judge has taken the bench, the defendant is present with counsel, and the court reporter is present. Thus the trial actually began on the one hundred eightieth day within the mandate of § 545.780.
Defendant's reliance on Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978), for the proposition that a trial does not begin until the jury is sworn is misplaced. That case presented "a single straightforward issue concerning the point during a jury trial when a defendant is deemed to have been put in jeopardy ..." for purposes of application of the Double Jeopardy Clause of the Fifth Amendment. Id. at 32, 98 S.Ct. at 2159. The Court and the defendant in Crist were concerned to fix a specific, definable time at which a defendant can always know that his jeopardy has begun for Fifth Amendment purposes. The question is of constitutional dimensions. On the other hand, no question of constitutional import is involved in fixing and defining the certain end of a statutory period. Under the speedy trial statute, a defendant's concern is to know when a trial begins so that he and the court may know with certainty whether the trial has commenced within the 180-day period. No necessary correlation exists between the beginning of jeopardy and the end of the statutory period. We know of no constitutional or statutory compulsion that they be the same or coterminous. Moreover, trial judges and lawyers commonly understand the beginning of trial to be that time when the selection of the jury begins. The voir dire is the first regular and usual in-court proceeding on the morning a case is set for trial. 3
The statute gives the prosecution and the trial court clear and unequivocal direction to begin trial within a certain time, specifically instructing as to the measurement of that time. One cannot predict with certainty that voir dire will be completed within any given number of hours or days. If for speedy trial purposes trial did not begin until completion of the voir dire, a prolonged examination of the venire might well carry the proceeding beyond the statutory limits despite procedurally scrupulous efforts to afford a defendant his full statutory rights, thus permitting dismissal. Common sense tells us that the legislature intended no such absurd result. We hold, therefore, that for purposes of this statute the voir dire of the venire must be considered the beginning of the trial. Because here the voir dire began on June 2, the trial was timely commenced within the mandate of § 545.780. The trial court did not abuse its discretion in denying defendant's motion to dismiss.
Cullen also contends that the trial court erred in sentencing him to an extended term of four years in addition to the five years imposed by the jury. The trial court was empowered to enhance defendant's sentence under § 558.016 if it found him to be a "persistent offender." The term is defined as "one who has pleaded guilty to or has been found guilty of two or more felonies committed at different times." Section 558.016-3.
He argues that the trial court had no jurisdiction to impose such an extended term because: (1) the state did not prove that the prior offenses occurred on different dates; (2) a variance between the date of the conviction judicially noticed by the court and the one alleged in the state's information was fatal to enhancement; (3) the trial court did not take proper...
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