State v. Davis
| Citation | 585 S.W.2d 60 |
| Decision Date | 30 April 1979 |
| Docket Number | No. KCD,KCD |
| Parties | STATE of Missouri, Respondent, v. Freddie DAVIS, Appellant. 29187. |
| Court | Court of Appeal of Missouri (US) |
Kenneth I. Grissinger, Kansas City, for appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Before SOMERVILLE, P. J., and PRITCHARD and MANFORD, JJ.
Direct appeal from jury conviction for sale of Schedule I controlled substance. Jury imposed sentence of five years. Motion for new trial timely filed and overruled.
Although not required to do so, the court has gleaned the briefs and the record for determination of the alleged errors and their alleged relationship to actions and rulings by the trier of fact.
Appellant first alleges that preaccusation delay was so prejudicial that the case should be dismissed outright.
Appellant was charged with the sale of a Schedule I controlled substance (marihuana) February 23, 1976 under an information executed in Lafayette County. The information charged the offense occurred on or about the 30th day of August, 1975, or roughly six months prior to the date of execution of the information. Said sale, it was alleged, was from appellant to Kent McGregor.
On July 22, 1976, appellant filed a motion to dismiss the charge on the ground that the information had not been timely filed. He alleged violation of his rights under the Sixth Amendment to the United States Constitution. Evidence and argument were received by the court and the motion overruled.
On August 26, 1976, appellant filed a request for discovery. On the same date, appellant filed a motion for evidentiary hearing. His motion for the hearing was sustained and the hearing was conducted September 3, 1976.
The hearing established that the undercover agent, Kent McGregor, had been in Lafayette County investigating illicit drug traffic. He investigated appellant and others. The officer used his real name. It was contended by appellant that the officer was never told not to use his real identity, but the evidence showed his true identity as a law enforcement official, of course, was known only to authorities. After investigating appellant, Officer McGregor was available for trial. The sheriff received the investigation report approximately one week after the investigation. This was turned over to the prosecutor some six months later. Two days following that step, the information was filed.
As near as the court can determine from the briefs and argument, the identity of Kent McGregor and the failure of the Sheriff of Lafayette County to present information to the prosecutor of Lafayette County for six months, allegedly prejudiced appellant's rights to a fair trial.
The evidence established an ongoing general investigation of illicit drug activities in Lafayette County before, during and subsequent to the time of the charge being made against appellant. While the point raised by appellant is not unique, it can be said it has caused diverse expression by the federal courts and numerous other state courts.
This question was earlier addressed by the United States Supreme Court in the case of U. S. v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). In addressing the question, the United States Supreme Court set forth a conjunctive test to be applied. The court, after first holding that the Sixth Amendment to the United States Constitution was not applicable to pre-accusation delay and that as a general rule, the statute of limitations provides safeguards against possible prejudice resulting from preaccusation delay, went on to say that the question is really one of due process, ". . . (t)hus the government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused."
Our own courts were confronted with this issue and relied upon U. S. v. Marion, supra, in denying relief to the appellant in State v. Thomas, 529 S.W.2d 379 (Mo.1975). While State v. Thomas, supra, can be distinguished from the case herein because in State v. Thomas, supra, the parties stipulated the delay was not an intentional device to gain a tactical advantage by the prosecution, that case, as does the case herein, included the claim of the loss of an exculpatory witness occasioned by the delay. Our State Supreme Court, without making specific reference to the alleged loss of an exculpatory witness, concluded under the circumstances the accused suffered no actual prejudice. The case herein is within State v. Thomas, supra. In addition, a similar contention such as that raised by appellant herein, came before the United States Supreme Court in the case of U. S. v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). The issue was discussed in full. From that decision came the guidelines which are decisive of appellant's contention. The Supreme Court held:
(a) loc. cit. 97 S.Ct. 2048
(b) ". . . proof of prejudice is generally a necessary but not sufficient element of a due process claim (concerning preindictment delay), and . . . the due process inquiry must consider the reasons for the delay as well as the prejudice to the accused." loc. cit. 2049
(c) "In our view, investigative delay is fundamentally unlike delay undertaken by the Government solely ...
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