State v. Evans, 11727.

• Decision Date: 15 October 1980
• Docket Number: No. 11727.,11727.
• Citation: 606 S.W.2d 789
• Parties: STATE of Missouri, Plaintiff-Respondent, v. John EVANS, Defendant-Appellant.
• Court: Missouri Court of Appeals

606 S.W.2d 789

STATE of Missouri, Plaintiff-Respondent, v. John EVANS, Defendant-Appellant.

No. 11727.

Missouri Court of Appeals, Southern District, Division One.

October 15, 1980.

John D. Ashcroft, Atty. Gen., Lew A. Kollias, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Douglas B. Kays, Springfield, for defendant-appellant.

GREENE, Judge.

On July 5, 1979, defendant John Evans was jointly charged, along with Edgar E. Simpson, with the crime of burglary in the second degree, pursuant to § 569.170.¹ The case against Evans was originally tried before a jury on October 3-4, 1979. The jury was unable to agree on a verdict, and a mistrial was declared. The trial court then set the case against Evans for retrial on December 3, 1979. The record indicates that Simpson was jury-tried and found guilty on December 5-6, 1979. Evans was not retried on December 3rd, and, on January 24, 1980, he demanded a trial by jury. On January 29, 1980, Evans filed a motion to dismiss the charge against him, contending that he had been denied a speedy trial in violation of § 545.780. No constitutional grounds were raised in the motion. The motion was overruled, and the case proceeded to jury trial on January 30, 1980. The case was concluded on January 31st, at which time the jury found the defendant guilty of second degree burglary and recommended punishment of 7 years' imprisonment. The trial court, after hearing, determined that Evans was a persistent and dangerous offender under § 558.021, by reason of three prior felony convictions, enhanced his punishment, and sentenced Evans to 15 years' imprisonment in the custody of the Department of Corrections. This appeal followed.

The only point relied on by defendant Evans on appeal is that "The trial court erred in overruling defendant's motion to dismiss because the defendant was denied his right to a speedy trial as required by Section 545.780(4) RSMo and the 6th and 14th Amendments to the U.S. Constitution in that he was not retried for one hundred seventeen days after a mistrial to his prejudice."

The point, as stated, does not state why the trial court's ruling on the motion to dismiss was prejudicial to defendant, in violation of Rule 30.06(d), and preserves nothing for review. Nevertheless, we ex gratia review for plain error under Rule 30.20 to determine whether the action of the trial court in overruling the motion to dismiss constituted such an abuse of discretion on the part of the trial court so as to result in manifest injustice or a miscarriage of justice. We conclude that it did not, and affirm the judgment.

Even if we ignore defendant's preservation problem (not raised in his motion to dismiss or in his motion for new trial), his claim that he was denied his constitutional right to a speedy trial lacks merit. In Barker v. Wingo, 407 U.S. 514, 531, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972), the Supreme Court of the United States listed four principal factors to use in determining whether a defendant suffered a denial of his constitutional right to a speedy trial. Those factors are (1) length of delay, (2) reason for delay, (3) defendant's assertion of his rights, and (4) prejudice to defendant by the delay in bringing him to trial. The validity of this test was reaffirmed in Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183, 185 (1973).

Examination of these four factors, applied to the facts of this case, show that no prejudice resulted to defendant from trial delay. One hundred seventeen days passed between the first and second trial. Defendant, in his brief, states that the "length of delay was not extraordinary." We agree. Second, the trial court, at the hearing on the motion to dismiss, stated that the reason for the delay was that during the jury week of the December court docket, the court elected to try the codefendant, Simpson, and that the ends of justice dictated that Evans not be tried the same week before the same jury panel. The trial court also observed that during the next scheduled jury week, a capital murder case was scheduled in which the defendant was confined in jail, whereas defendant Evans was free on bond. It seems to us that these are reasonable explanations for such delay in trial as was present here. Third, defendant was granted a retrial within six days of his request for one. This was certainly not an unreasonable denial of his right to a speedy trial after he asserted it.

As to the fourth factor, defendant admits that he cannot show prejudice in any "concrete form" by the delay. We can understand why he cannot do so, because no prejudice occurred. He contends that a mere dimming of the memory of witnesses is sufficient to show prejudice. This may be true in some cases, but it is not true here. In this case, six witnesses testified for the state. The combined weight of their testimony showed defendant guilty of the charge beyond any...