State v. Dicus, No. 62060

• Decision Date: 29 June 1993
• Docket Number: No. 62060
• Citation: 858 S.W.2d 757
• Parties: STATE of Missouri, Appellant, v. James W. DICUS, Respondent.
• Court: Missouri Court of Appeals

Page 757

858 S.W.2d 757

STATE of Missouri, Appellant, v. James W. DICUS, Respondent.

No. 62060.

Missouri Court of Appeals,

Eastern District,

Division One.

June 29, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Aug. 18, 1993.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for appellant.

Clinton Almond, Hillsboro, for respondent.

CRIST, Judge.

The State appeals an order dismissing the charges against Defendant for first degree assault and armed criminal action because of ineffective assistance of counsel. We reverse and remand.

On December 3, 1990, Defendant was charged with first degree assault, armed criminal action, and unlawful use of a weapon in connection with a shoot-out between him and George Michael Boyer (Victim). Depositions of various witnesses, Defendant and Victim, were filed with the trial court. These depositions reveal Defendant and some members of his family came to the home of Janet Boyer, Victim's sister-in-law. Defendant began taking photographs. Victim, who had been drinking alcoholic beverages, exited the trailer. Victim and several witnesses stated Defendant and the other people with him had guns. Victim asserts he shot into the air and told them to leave. Victim was then shot in the arm.

After Defendant was charged, he hired an attorney, Norman Stricker, to represent him. Stricker was his attorney until after the preliminary hearing. At that time, Stricker became ill and could not continue his representation of Defendant. There is also some discussion that Stricker's license to practice law may have been suspended for failure to pay his annual dues. Defendant hired a new attorney who filed a motion to dismiss the charges. Defendant asserted he could not receive a fair trial under the Constitution of the United States because of "ineffective assistance of Defendant's former counsel and the disappearance of evidence critical to Defendant's defense...." Defendant first alleged a videotape which had been in the custody of the Washington County Sheriff's Department no longer existed. He stated the videotape depicted the crime scene and a statement of Victim made immediately after the shooting. He further alleged he had entrusted to his former legal counsel, Norman Stricker, exculpatory evidence which was no longer available. This evidence included a tape recording of Defendant's preliminary hearing, copies of photographs which Defendant took at the time of the shooting, and a spare tire cover with bullet holes removed from Defendant's jeep immediately after the shooting. Defendant argued the alleged ineffectiveness of Stricker had so tainted his right to fair trial, it could not be remedied by his present counsel.

Two proceedings discussing the motion to dismiss were held: a "Pre-Trial Conference" on March 25, 1992, and a hearing on the motion to dismiss on May 18, 1992. In each proceeding, much discussion was had among the attorneys and the judge, but no evidence was presented. The Legal File contains affidavits of Defendant, his wife, and his son, all of which are essentially identical. These affidavits reveal the following:

1. Photographs: Defendant states he gave them to Stricker. One photograph shows Victim's truck blocking the road. Another shows a witness drinking a beer. Another shows "someone on the porch of Janet Boyer's trailer holding a gun."

2. Spare tire cover: It contains bullet holes due to shots fired at him during the incident.

3. Tape Recording: Defendant asserts Stricker took the tape recording of the preliminary hearing with him.

Defendant's affidavit further states: "Neither my wife nor I, nor any member of my family, took the tape recording, the pictures or the spare tire cover from Mr. Stricker's office or residence."

The record also includes depositions of Norman Stricker and his wife. Stricker admitted Defendant gave him the spare tire cover and the photographs. He stated the photographs were of "Mike Boyer's [Victim] truck setting in the road leading to Mr. Dicus' residence ... [and] some pictures of skid marks on the Pat Daley Road that leads from '21' down to the road that leads to Mr. Dicus' residence." He stated the spare tire cover had "two holes in it that looked like they had been made with a .22 caliber, by a .22 caliber bullet, and there was (sic) holes that looked like they were made by shotgun pellets, approximately, I would guess, Number 4's." He stated he had placed the spare tire cover in his van and put the photographs in his office. Mrs. Stricker stated Defendant's son came to her house and took the spare tire cover. Stricker stated he believed the photographs were in the file he turned over to Defendant later.

Stricker further stated he had made a tape recording of the preliminary hearing. However, Stricker asserted Defendant's wife had taken the recording following the preliminary hearing because the family wanted to listen to it. He states he has not seen the recording since that day.

On May 18, 1992, the trial court orally sustained Defendant's motion to dismiss the charges without reciting the specific grounds for such dismissal. State appeals.

Before addressing the merits of this appeal, we must first determine whether the State has the right to appeal. Defendant asserts the State has no right of appeal in this case. Defendant argues the trial court dismissed the charges because of destruction and loss of evidence, which he avers is analogous to a ruling of insufficiency of the evidence, precluding the State's appeal. We disagree.

Section 547.200, RSMo 1986, provides:

The State, in any criminal prosecution, shall be allowed an appeal in the cases and under the circumstances mentioned in section 547.210 and in all other criminal cases except those cases where the possible outcome of such an appeal would result in double jeopardy for the defendant.

In the case at hand, the State has the ability to appeal the trial court's order dismissing the charges against Defendant only if double jeopardy would not result. We believe double jeopardy is not implicated in this case.

Jeopardy does not attach until a defendant is " 'put to trial before the trier of facts, whether the trier be a jury or a judge.' " Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265 (1975), quoting United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971). In a jury trial, this occurs when the jury is impaneled and sworn; while in a nonjury trial it attaches when the court begins to hear evidence. Serfass, 420 U.S. at 388, 95 S.Ct. at 1062; State v. Jarvis, 809 S.W.2d 460, 461 (Mo.App.1991).

In Serfass, the United States Supreme Court addressed the issue of whether jeopardy attached after the granting of Defendant's motion to dismiss the indictment prior to trial. Serfass, 420 U.S. at 377, 95 S.Ct. at 1055. The Court held jeopardy had not attached because the defendant had not been put to trial before a trier of fact, nor had he waived his right to a jury trial. Id. at 389, 95 S.Ct. at 1063. The Court further stated that even considering evidence outside the indictment was not the functional equivalent of acquittal causing jeopardy to attach. Id. at 392, 95 S.Ct. at 1064-65. "Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy." Id. at 391-92, 95 S.Ct. at 1064.

We have also examined the issue in State v. Casaretto, 818 S.W.2d 313, 315-16 (Mo.App.1991). In Casaretto, prior to trial, the defendant filed a motion to dismiss on the grounds the statute of limitations had run. Id., at 314. The...