State v. Dierks
| Decision Date | 20 November 2018 |
| Docket Number | No. ED 105945,ED 105945 |
| Citation | 564 S.W.3d 354 |
| Parties | STATE of Missouri, Respondent, v. Michael Mathew DIERKS, Appellant. |
| Court | Missouri Court of Appeals |
ATTORNEYS FOR APPELLANT: Samuel E. Buffaloe, 1000 West Nifong, Bldg. 7, Suite 100, Columbia, MO 65203, Jason M. Husgen, 190 Carondelet Plaza, Suite 600, St. Louis, MO 63105.
ATTORNEYS FOR RESPONDENT: Joshua D. Hawley, Attorney General, Julia E. Neidhardt, Asst. Attorney General, P. O. Box 899, Jefferson City, MO 65102.
Michael Dierks ("Defendant") appeals from the judgment entered after a jury trial on his convictions for possession of a controlled substance and possession of drug paraphernalia. He challenges the trial court’s denial of his pre-trial motions for continuance and his motion to suppress. We affirm.
On September 8, 2015, the police found a case containing methamphetamine and drug paraphernalia in the tent Defendant was sharing with Angela Akers, Defendant’s fianceé at the time, while they were camping in a state park. The State charged Defendant, and the court appointed a public defender. In April 2017, the court set the case for trial on July 31, 2017. On July 27, 2017—the Thursday before the Monday trial setting—the public defender filed a motion to continue the trial alleging that Akers was a material witness but "cannot be located." In that motion, the public defender also informed the court that Defendant planned to hire private counsel that afternoon. That evening, private counsel entered his appearance for Defendant and filed a motion to continue. In that motion, counsel alleged he had just been retained that day, Thursday, did not have any discovery and would likely not be able to provide proper representation at trial if it were to occur on Monday. After a hearing, the trial court granted the public defender leave to withdraw as counsel for Defendant, but denied the continuance requests.
The trial proceeded on July 31. That morning, new counsel filed a motion to suppress a statement Defendant made when the police found the case in his tent. In that statement, Defendant acknowledged that he knew the case was in the tent; he argued the statement was inadmissible because it was made during a custodial interrogation without being Mirandized. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court denied that motion after an evidentiary hearing. The jury ultimately found Defendant guilty of felony possession of methamphetamine and misdemeanor use of drug paraphernalia. He was later sentenced, as a prior and persistent offender, to fifteen years' imprisonment and thirty days in the county jail to be served concurrently. This appeal follows.
In his first point, Defendant challenges the denial of the motion to continue filed by the public defender based on the inability to locate Akers. In his second point, Defendant challenges the denial of the motion to continue that was filed by private counsel on grounds that he had inadequate time to prepare for trial. The State contends that the first point is not preserved because the alleged error in denying that particular motion for continuance was not raised in the motion for new trial. The motion for new trial referred to the fact that two motions for continuance were filed, but it alleged error only with respect to the "overruling of Defendant’s motion for continuance"—singular—and then discussed only the ground asserted in private counsel’s motion, namely that counsel "did not have the discovery" and "was unable to properly find, interview, and subpoena witnesses for trial and adequately prepare." Defendant claims this is an "exceedingly technical reading" of the motion for new trial, but requests plain error review in the event we find the error unpreserved.
We need not determine if this point was properly preserved because we find no error under either the plain error or the preserved standard of review, both of which are premised on finding an abuse of discretion. Plain error is found "only if we determine that its ruling was an obvious and clear abuse of discretion, which resulted in manifest injustice or miscarriage of justice to the appellant." State v. Wolf , 91 S.W.3d 636, 644-45 (Mo. App. W.D. 2002). "When properly preserved, a trial court’s decision denying a motion for a continuance will be reversed only if there is a strong showing that the trial court abused its discretion and that prejudice resulted from the denial of the motion." State v. Harding , 528 S.W.3d 362, 375-76 (Mo. App. E.D. 2017). An abuse of discretion occurs when the decision is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. at 376. We find no abuse of discretion in the denial of either motion to continue.
First, the motion to continue based on the inability to locate Akers was properly denied because it did not comply with Rule 24.10. Under Rule 24.10, an application for continuance due to the absence of a witness must show: (1) the materiality of the evidence sought to be obtained and due diligence on the part of the applicant to obtain the witness; (2) the name and residence of the witness or, if not known, diligence to obtain the same, and facts showing reasonable grounds for belief that the attendance or testimony of such witness will be procured within a reasonable time; (3) the facts that the witness will prove and that there is no other person who could have been present at trial to testify to such facts; and (4) good faith in seeking the continuance for the purpose of obtaining a fair and impartial trial. State v. Jones , 479 S.W.3d 100, 112 (Mo. banc 2016) ; State v. Salter, 250 S.W.3d 705, 712 (Mo. banc 2008) ; State v. Edwards , 116 S.W.3d 511, 535-36 (Mo. banc. 2003). If a continuance is not likely to result in the presence of the witness at trial, then the court is within its discretion to deny the continuance. Edwards , 116 S.W.3d at 535.
Defendant’s motion to continue due to Akers’s absence provided as follows:
A material witness, Angela Akers, cannot be located. In this matter, methamphetamine was found inside of a black bag located in a tent shared by Ms. Akers and [Defendant]. This is a constructive possession case and it is essential to have Ms. Akers testify at trial. She was the only other person in the tent with [Defendant] and she made some incriminating statements to law enforcement acknowledging that she knew there was methamphetamine in this black bag. In addition, Ms. Akers currently has three pending felony warrants outstanding. One warrant is relating to a probation violation where the underlying charge is possession of a controlled substance from an incident occurring in April 2014, Cause No. 14SL-CR09348-01. One warrant is relating to a felony possession of a controlled substance case from an incident occurring in April 2015, Cause No. 15SL-CR06488. One warrant is relating to a felony possession of a controlled substance case from an incident occurring in August 2015, Cause No. 16JE-CR02054. The controlled substance involved in all three of these matters is methamphetamine, the same controlled substance involved in the charges against [Defendant]. It is material and necessary to have Ms. Akers testify in the trial against [Defendant].
Elsewhere in the motion, Defendant alleged that the motion was not made to vex or harass the court. Defendant argues this motion substantially complied with Rule 24.10. We disagree.
Read broadly, the above assertion may suffice to show the facts Akers’s testimony would establish, that no one else could provide that evidence and that her testimony would be material. But no matter how generously we read this motion, we find nothing whatsoever about past, present or future efforts to procure Akers’s presence at trial beyond the statement that she "cannot be located." The motion does not demonstrate Defendant’s due diligence in trying to find Akers. There is no information in the motion about Akers’s residence or what efforts were made to obtain that information. The motion provides no facts showing a reasonable belief that Akers’s attendance could be procured in a reasonable time. In short, there is nothing in this motion to demonstrate that granting the continuance would likely result in Akers’s presence. Defendant’s suggestion that the references to her outstanding warrants shows "the ease with which Akers could be found" mischaracterizes the motion. The warrants were included in the motion only to show that Akers had the methamphetamine possession charges underlying those warrants and demonstrate her materiality, not for the purpose of demonstrating how to procure her attendance at trial.
Defendant’s motion did not comply—in form or substance—with Rule 24.10, and he wholly failed to demonstrate that continuing the trial for a reasonable time was likely to result in the presence of Akers at trial. Therefore, it was not an abuse of discretion to deny that motion for continuance. See id. at 536. Point I is denied.
We also find that denying the motion to continue filed by private counsel based on his allegedly inadequate amount of time to prepare for trial was not an abuse of discretion. Defendant argues that the court erred because counsel did not have enough time to prepare a defense to these serious charges, which implicated Defendant’s constitutional rights. "[T]he implication of a defendant’s constitutional rights, the seriousness of the offense charged, the nature of any potential defense defendant claims he was unable to prepare for and present at trial, and whether counsel had ample opportunity to prepare for trial" are factors for us to consider. State v. Bowens , 550 S.W.3d 84, 105 (Mo. App. E.D. 2018). But a trial court does not abuse its discretion by denying a motion for a continuance based on counsel’s lack of an ample opportunity to prepare for trial...
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State v. Baker
... ... have benefitted ... his defense at trial' and 'does ... not explain how more time to prepare would have made his ... defense more effective,' then he has not demonstrated ... prejudice." State v. Dierks, 564 S.W.3d 354, ... 360 (Mo. App. E.D. 2018) (quoting State v. McClurg, ... 543 S.W.3d 78, 82-83 (Mo. App. S.D. 2018)). The trial court ... did not abuse its discretion in denying Baker's motion ... for continuance.[4] Baker's point is denied ... ...