State v. Franco, 62731

• Decision Date: 08 December 1981
• Docket Number: No. 62731,No. 1,62731,1
• Citation: 625 S.W.2d 596
• Parties: STATE of Missouri, Respondent, v. Alfred Anthony FRANCO, Appellant
• Court: Missouri Supreme Court

Page 596

625 S.W.2d 596

STATE of Missouri, Respondent, v. Alfred Anthony FRANCO, Appellant.

No. 62731.

Supreme Court of Missouri, Division No. 1.

Dec. 8, 1981.

Rehearing Denied Jan. 12, 1982.

Ralph Marcus and C. Clifford Schwartz, Clayton, for appellant.

Sara Rittman, Asst. Atty. Gen., Jefferson City, for respondent.

ROBERT R. WELBORN, Senior Judge.

Appeal from judgment of conviction on jury verdict and sentence to life imprisonment, without right to parole until 50 years served, for capital murder. § 565.001, RSMo 1978.

On Friday, July 6, 1979, a group of people were drinking beer at the home of Michael and Linda Ellis in St. Ann, St. Louis County, Missouri. At around 11:30 P.M., appellant Alfred Franco arrived at the party, uninvited. He lived in the vicinity and was known, at least by sight, to some of the other persons present.

Appellant and Randall Deffenderfer became involved in an altercation and Franco was thrown to the ground and struck several times. The appellant then left but returned in about 15 minutes, carrying a rifle. He fired a shot at Deffenderfer, striking him in the hip. Appellant then left. Police were called to the scene, but, by prearrangement, the persons present agreed that, because the victim had had prior difficulties with the law, they would tell police that they did not know who did the shooting. That was the account received by the police at that time.

The next afternoon, Detective-Lieutenant O'Rando of the St. Ann Police Department interviewed the victim in the hospital and Deffenderfer told the officer that appellant had shot him. The officer went to the Ellis residence and found a shell casing in the driveway. Upon returning to the police station he interviewed other persons who had been present at the time of the shooting. They named Franco as the person who had fired the shot.

At around midnight Saturday, shots were fired into the residence where Deffenderfer resided with his parents, the Ellis house and the residence of Robert James Bergmann. All of the houses were in the same general area of St. Ann. Bergmann had been at the Ellis house at the time of the shooting of Deffenderfer. Earlier on Saturday evening, he had told Lieutenant O'Rando that Franco had shot Deffenderfer.

Bergmann's in-laws lived with him. At the time the shots were fired into his house, Bergmann was in the basement and his brother-in-law, Carl Reisinger, was upstairs watching television. Bergmann heard a "thump" on the floor above him and went upstairs to find Carl on the floor at the front door, with a wound in the head. Carl died on July 29 from the gunshot wound he had received.

Lieutenant O'Rando was still at the station when police received a call about the shooting into the Deffenderfer residence. He was preparing to go there when a second call was received within a short time.

When the second call was received, Lieutenant O'Rando went to Franco's residence, some five blocks from the Reisinger residence.

As the officer drove up to the Franco residence, Franco also drove up and stopped in front of his residence. Lieutenant O'Rando told Franco to get out of his car with his hands up. Franco did so and the officer told him to "hit the ground." As Franco did so, the officer saw a thirty-round magazine fall from his shirt pocket. A rifle was seen on the front seat of the Franco automobile. It was seized by the officer and Franco was taken to the police station.

Subsequently ballistics tests showed that bullets found at the residences into which shots had been fired had come from the .30 caliber M-1 carbine taken from Franco's automobile.

By indictment filed August 6, 1979, Franco was charged with assault in the first degree in the shooting of Deffenderfer and with capital murder in the death of Reisinger. At his trial on the latter charge, which began November 3, 1980, the appellant was found guilty of capital murder and a sentence of life imprisonment, without possibility of parole until a minimum of 50 years had been served, was imposed.

On this appeal, the first contention of appellant is that his constitutional right to a speedy trial was violated and that he did not receive a trial within 180 days of his arraignment, in violation of statutory requirements. He contends that the trial court erred in failing to overrule his motion to dismiss for failure to grant a speedy trial.

Although appellant asserts a violation of constitutional guarantees of a speedy trial, his argument is based upon the claim that he was not brought to trial within the 180-day limit specified by the Missouri Speedy Trial Act, effective September 1, 1978, (§ 545.780, RSMo 1978), from the date of his arraignment on August 10, 1979.

The motion to dismiss was filed on October 20, 1980 and overruled on October 24, 1980. Trial began on November 3, 1980.

A major factor in the trial delay is related to the pretrial determination of appellant's mental capacity.

The appellant's request for psychiatric examination was filed on November 2, 1979 and examination was ordered by the court on that date. The issue of capacity to stand trial was not resolved until June 9, 1980, when the court, on the basis of reports of three psychiatric examinations and hearings held on May 15 and June 2 concluded that the defendant was fit to proceed.

There were numerous previous settings of hearing on the psychiatric issue which were continued from time to time. In some instances the report of the examining physician had not been received by the date set for the hearing. After the first psychiatric report had been filed, the state requested an examination and the defendant requested a second examination. These requests were granted. Resolution of the issue was further protracted by reason of the court's permitting the public defender, appointed to represent defendant, to withdraw on March 24, 1980, because defendant had filed a lawsuit against his attorney in the federal court.

Subparagraph (1)(a) of paragraph 3 of Section 545.780, RSMo 1978, excludes, in computing the time within which a criminal trial must commence, "(d)elay resulting from an examination of the defendant and hearing on his mental competency * * *." Such exclusion is applicable in this case. Appellant attacks the numerous continuances of the psychiatric hearing for the failure of the court to make the findings required by subparagraph (5) of paragraph 3 of Section 545.780. Such provision relates to continuances of trial settings and continuances of psychiatric hearings do not require such findings in order to exclude the period required for resolution of the competency issue.

Appellant also calls attention to Section 552.030 4., RSMo 1978, which requires a psychiatric examination ordered by the court to be completed within 60 days. That provision was added by an amendment which became effective August 13, 1980. Laws of Mo., 1980, pp. 503, 517-518. Therefore, it was not in effect at the time of the examinations here involved. In any event, that provision limits the time for the examination, not for the determination by the court. It should be noted that in this case the first examination was ordered on November 2 and the report, dated January 10, 1980, was filed on January 21, 1980. The subsequent examinations, ordered on January 22 on behalf of the state and on January 24 on behalf of the defendant, were filed on February 20, 1980 and April 4, 1980, respectively.

On this record, the period from November 2, 1979 to June 9, 1980 was properly excludable in computing the 180-day period within which defendant was required to be tried.

However, excluding that time, more than 180 days had elapsed from the defendant's arraignment on August 10, 1979 and his motion to dismiss filed on October 20, 1980 and overruled on October 24.

In this Court, the state concedes that the 180-day limitation ran from the date of arraignment until the order for psychiatric examination, a period of 84 days. It also accepts the running of the time from the court's determination of appellant's competency to stand trial on June 9, 1980 to July 14, 1980, a period of 35 days.

At the time of the court's finding on June 9 of defendant's capacity to stand trial, it ordered the case placed on the trial docket of July 14, 1980. On that date, the cause was continued at the request of the defendant to September 8, 1980. The state would toll the running of the 180-day period between those two dates. The appellant contends that such period is not excludable because the trial court, in ordering the continuance, gave no reason for its conclusion stated in the order, that the ends of justice served by the granting of the continuance outweighed the interests of the defendant and the public in a speedy trial, as required by Section 545.780 3. (5)(a).

The defendant's request of July 14 for a continuance gave as reasons for the request that pretrial motions had not been heard. The order set such motions for hearing on July 18. No such motions were filed and no order entered with respect to them on the latter date. A delay for hearing pretrial motions is excludable under Section 545.780 3. (1)(c), without the necessity of further findings by the trial court. However, the state does not rely upon that exclusion.

The further reason stated for the continuance was "depositions to be taken." The state, in effect, argues that the statement of the reason for the continuance was the equivalent of a finding on the part of the trial court that the defendant's need to take depositions "outweigh(ed) the best interests of the public and the defendant in a speedy trial."

On August 29, 1980, the case was at the request of the defendant continued to September 29, 1980 "peremptorily." The order states no reason for that continuance. On September 16, 1980, the cause was continued at the request of the defendant "for further trial preparation" and set peremptorily for October 6, 1980. The order contained none of the...