State v. Dixon

• Decision Date: 12 May 1998
• Docket Number: Nos. WD,s. WD
• Citation: 969 S.W.2d 252
• Parties: STATE of Missouri, Respondent, v. Anthony DIXON, Appellant. 51493, WD 53645.
• Court: Missouri Court of Appeals

Page 252

969 S.W.2d 252

STATE of Missouri, Respondent, v. Anthony DIXON, Appellant.

Nos. WD 51493, WD 53645.

Missouri Court of Appeals Western District.

May 12, 1998.

Rosalynn Koch, Asst. Public Defender, Columbia, for Appellant.

Philip M. Koppe, Asst. Atty. Gen., Kansas City, for Respondent.

HANNA, Judge.

On June 9, 1995, the defendant, Anthony M. Dixon, was convicted after a jury trial of forcible rape (§ 566.030, RSMo 1994), forcible sodomy (§ 566.060, RSMo 1994), two counts of robbery in the first degree (§ 569.020, RSMo 1994) and two counts of armed criminal action (§ 571.015.1, RSMo 1994). The trial court imposed sentences totalling life plus sixty years on August 7, 1995. ¹ The defendant filed a Rule 29.15 motion. Following an evidentiary hearing, the motion court denied the defendant's Rule 29.15 motion. The defendant raises six points of error: that the trial court excluded his alibi testimony and denied his right to a speedy trial, that the motion court disallowed alibi testimony of his wife from a previous trial, that the trial court failed to apply the collateral estoppel doctrine and thereby relitigated an ultimate fact issue decided in a prior trial; that the trial court overruled his motion regarding the search and seizure and testimony of an audio tape of his voice; and that the motion court denied his charge that his attorney was ineffective in failing to file a notice of alibi defense precluding the defendant from testifying at trial.

An abbreviated statement of the underlying facts are as follows. On August 4, 1993, Sharon Neal was working the 11:00 p.m. to 7:00 a.m. shift for the night clerk at the Super 8 Motel in Harrisonville where she was employed as the manager. At approximately midnight, she was standing near the door of her apartment in the hotel, which was located down the hall from the front desk, when she noticed a man standing in the doorway with a gun. The man was wearing dark clothing, including a dark-hooded sweatshirt with the hood up, and he had a sock-type hat pulled down over his face. From the eye and mouth cut-outs in the hat, she could tell that the individual was a black man with a short-cropped moustache.

The man aimed a gun at her and told her to get down on the carpet. He told her that he wanted to know where the money was. She responded that the motel did not have a safe. The gunman then went to the office. After seeking her assistance, the man found the cash drawer and used the key to take out the money. He demanded more money, and Neal finally told him that there was money in a different drawer. After retrieving the money, he returned and demanded more money.

He then obtained a piece of clothesline rope from the bag he was carrying and tied Neal's hands behind her back. He pressed his knees into her back, put the gun to her head and again demanded more money. He also went through the motel cards that indicated which rooms in the motel were occupied and asked Neal about a master key.

He ordered her to get up, but she told him that her rheumatoid arthritis prevented her from doing so, unless he untied her hands. The assailant then ordered her to put her head and chest in the chair. He pulled down her pants and proceeded to rape her vaginally and rectally.

At this point, James Shaffer, a guest at the hotel, entered the office. He encountered a man dressed in dark clothing and asked for change. Instead, the gunman pointed his gun between Shaffer's eyes, told Shaffer to give him his money, and threatened to kill him. Shaffer gave him the two dollars he had, and then the gunman told Shaffer to lie on the office floor and again threatened to kill him. As Shaffer crawled around behind the front desk, he saw a woman, whose hands were tied together, lying on the floor. The gunman then tied Shaffer's hands together. Within a few minutes, James Nesmith, a man staying with Shaffer at the hotel, was also brought into the room by the gunman and was told to lie on the floor. The gunman tied up Nesmith and then left, after announcing his intention to check some of the hotel rooms. Neal and Nesmith managed to get loose after 10 or 15 minutes and called the police.

Shaffer, who initially saw the gunman behind the front desk with his sock cap rolled up above his eyes, was interviewed by the police in an effort to obtain a composite drawing of the suspect. Approximately three weeks after the incident, the police showed Shaffer a photographic line-up. Shaffer immediately identified the defendant as the gunman from a photo array. Shaffer also identified the defendant's voice from an audiotape that contained the voices of five or six individuals. Subsequently, Neal listened to the same audiotape and when she heard the third voice, she began to shake, cry and perspire. She listened to the remaining voices, and then identified the third voice on the tape as the voice of her attacker.

In his first point, the defendant claims that the trial court erred in excluding his alibi testimony. Rule 25.05(a)(5) requires that if the defendant intends to rely on the defense of alibi, and the state requests the specifics, disclosure shall be in a written statement by counsel for the defendant of his intent, and counsel shall give specific information concerning the alibi including the names and addresses of the witnesses who will establish the defendant's alibi. Id. The defendant claims that the trial court's ruling (unidentified in the brief and argument before this court) denied him his constitutional right to testify in his own behalf and in his own defense. This point of error was raised for the first time in the defendant's pro se Rule 29.15 motion. It was not raised during trial or in his motion for new trial. It is now raised as plain error, pursuant to Rule 30.20. ²

At trial, the defendant did not attempt to present any alibi testimony. In fact, the defendant's brief does not make any reference to a trial court ruling which is claimed to have denied his right to present alibi testimony. Apparently, the assistant prosecuting attorney had a concern that the defendant was intending to present alibi evidence and had requested the information pursuant to Rule 25.05(a)(5). This concern arose as a result of the defendant's previous statement(s) to the court that he wished to testify at trial and present an alibi defense. On the other hand, the trial record shows that the defendant's attorney repeatedly indicated, in response to discovery requests and to questions during at least at two pretrial hearings, that counsel did not intend to present any alibi testimony from either the defendant or any other witnesses. In light of the inconsistent statements from the defendant and his counsel, the trial court specifically noted in a pretrial conference in which the defendant was present, one week before the trial was scheduled, that alibi testimony could not be presented from either the defendant or defense witnesses without the requisite notice. The trial judge indicated that if the defendant intended to present an alibi defense, the defendant would have a problem and the court would probably have to "take some action."

Thus, the trial judge did not exclude defendant's alibi evidence. The defendant's argument is based upon an assertion that is contradicted by the record. At trial, the defense rested without putting on any evidence; the defendant did not attempt to present an alibi defense. ³ Since the defendant never attempted to put on an alibi defense, either himself or by the testimony of other witnesses, the trial judge never ruled that the defense of alibi should be excluded. The court cannot be convicted of error for excluding testimony that the defendant never presented or intended to introduce. The court cannot be faulted for failing to take action it was not asked to take. See Rule 84.13(a)("allegations of error not presented to or expressly decided by the trial court shall not be considered in any appeal from a jury tried case"); State v. Jordan, 751 S.W.2d 68, 75 (Mo.App.1988); State v. Webb, 583 S.W.2d 536, 538 (Mo.App.1979). Point denied.

The defendant next contends that the trial court erred in denying his motion to dismiss because his constitutional right to a speedy trial was denied. He argues that his trial did not commence for over 17 months after the indictment. He asserts that this was due to unreasonable delays which prejudiced him.

The following is the pre-trial chronology of this matter:

January 20, 1994 An indictment was returned against the defendant.

February 7, 1994 Trial counsel was appointed.

March 3, 1994 State's request for a continuance was granted.

April 25, 1994 Court transferred venue to Johnson Co. pursuant to defendant's request.

June 3, 1994 Defendant filed a request for a speedy trial.

August 29, 1994 Defendant's request for a continuance was granted & the cause was set for trial on Dec. 19, 1994.

December 19, 1994 Defendant's case was passed, and a previously scheduled case was tried.

February 2, 1995 Defendant requested a change of judge after his witness list was not endorsed.

February 22, 1995 Defendant was assigned to a new judge.

March 6, 1995 Court denied defendant's motion for a sooner trial date.

June 7, 1995 Defendant's case was tried.

The defendant has the constitutional right, under the Sixth Amendment of the United States Constitution and Article I, § 18(a) of the Missouri Constitution, to a speedy trial. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 2191-92, 33 L.Ed.2d 101 (1972); State v. Davis, 903 S.W.2d 930, 935-36 (Mo.App.1995). In order to assess whether a defendant has been denied this right, four factors are weighed: (1) length of delay; (2) reason for the delay; (3) how the defendant asserted his right to a speedy trial; and (4) prejudice to the defendant. Barker, 92 S.Ct. at 2191; State v. Bolin, 643 S.W.2d 806, 813 (Mo. banc 1983)(adopting the four part analysis in Barker ).

Missouri courts have ruled that ...