State v. East, No. WD

• Decision Date: 06 August 1991
• Docket Number: No. WD
• Citation: 817 S.W.2d 521
• Parties: STATE of Missouri, Respondent, v. Tony Renee EAST, Appellant. Tony Renee EAST, Appellant, v. STATE of Missouri, Respondent. 41157.
• Court: Missouri Court of Appeals

Page 521

817 S.W.2d 521

STATE of Missouri, Respondent, v. Tony Renee EAST, Appellant.

Tony Renee EAST, Appellant, v. STATE of Missouri, Respondent.

No. WD 41157.

Missouri Court of Appeals Western District.

Aug. 6, 1991.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 1, 1991.

Application to Transfer Denied Nov. 19, 1991.

David S. Durbin, Appellate Defender, Susan L. Hogan, Asst. Appellate Defender, Kansas City, for appellant.

William L. Webster, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before FENNER, P.J., and TURNAGE and ULRICH, JJ.

TURNAGE, Judge.

This is a consolidated appeal in which East challenges his conviction of offering violence to a corrections officer, § 217.385, RSMo 1986, and the denial of a Rule 29.15 motion for post-conviction relief, after an evidentiary hearing. A jury convicted East of offering violence, and the court sentenced him as a prior and persistent offender to three years imprisonment, to run consecutively to the terms to which he had been sentenced already.

East filed a motion for post-conviction relief pursuant to Rule 29.15, alleging that he received ineffective assistance of counsel. The motion court denied the motion after an evidentiary hearing.

On appeal, East raises three points: instructional error; allowing him to appear at trial in restraints; and ineffective assistance of counsel. Affirmed.

East first contends the trial court erred in submitting the case because the verdict director did not require the jury to make any finding of a culpable mental state. Section 217.385 states, "No offender shall commit or offer to commit violence to an employee of the department [of corrections] ..." No specific culpable mental state is given in the statute, and this court has consistently held that § 217.385 is a strict liability offense, requiring no culpable mental state. State v. Singleton, 799 S.W.2d 120 (Mo.App.1990); State v. Lee, 708 S.W.2d 229, 232 (Mo.App.1986).

As his second point, East claims the trial court abused its discretion in allowing the trial to proceed with him fully shackled in plain view of the jury in that the sight of a defendant in shackles during trial weakens the presumption of innocence. It is clear that the trial court has the discretion to compel the use of restraints for the purpose for maintaining order and security in the courtroom. State v. Guinan, 665 S.W.2d 325, 331 (Mo. banc 1984). However, if the use of security measures is not supported by good cause, a defendant is entitled to appear before the jury unfettered. Lytle v. State, 762 S.W.2d 830, 835 (Mo.App.1988).

In this case, the court heard evidence of East's four prior convictions. The court, and the jury, also heard evidence that East was incarcerated in the highest security cell block of the Missouri State Penitentiary, and that the men who were housed in that cell block were not allowed to go anywhere within the prison without handcuffs. It was also noted on the record that there was another trial going on in the larger courtroom in the Cole County Courthouse that involved many inmates, and the trial court expressed concern that courthouse security was going to be spread thinly. With these concerns, and considering the nature of the offense, there was good cause to require that East be shackled during the proceedings. State v. Zeitvogel, 655...