State v. Gardner

• Decision Date: 25 February 1976
• Docket Number: Nos. 9917,9918,s. 9917
• Citation: 534 S.W.2d 284
• Parties: STATE of Missouri, Respondent, v. Dwain L. GARDNER, Appellant.
• Court: Missouri Court of Appeals

Page 284

534 S.W.2d 284

STATE of Missouri, Respondent, v. Dwain L. GARDNER, Appellant.

Nos. 9917, 9918.

Missouri Court of Appeals, Springfield District.

Feb. 25, 1976.

John C. Danforth, Atty. Gen., Sheila K. Hyatt, Asst. Atty. Gen., Jefferson City, for respondent.

William H. Wendt, Springfield, for appellant.

Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.

TITUS, Judge.

On October 15, 1973, two indictments in three counts were returned jointly charging defendant et alii with selling controlled substances (Ch. 195, V.A.M.S.) to Bill McConnell, an undercover agent for the Springfield-Greene County Gardner, then reau. Defendant and Peggy Gardner, then cohabitants, allegedly made sales of a salt of amphetamine and cocaine, respectively, on January 17 and 29, 1973; defendant and Larry Tate were charged with a January 18, 1973, sale of heroin. At the court-tried joint trial of defendant and Peggy on the consolidated cases represented by the two indictments, it was indicated that Tate previously had been acquitted; we do not know the disposition of the charges against Peggy. The trial court found defendant guilty on all three counts, which findings had the force and effect of a jury verdict. Rule 26.01(b), V.A.M.R.; State v. Daniels, 487 S.W.2d 465, 469(4) (Mo.1972). No motion for a new trial was filed and none was needed in this court-tried case for purposes of appellate review. Civil Rule 73.01--2(b), V.A.M.R., is made applicable to criminal cases by Criminal Rule 28.18, V.A.M.R. State v. Bruns, 522 S.W.2d 54, 55(1) (Mo.App.1975). The court sentenced defendant to five years for selling heroin and to five years for selling cocaine, with the sentences to run consecutively; the five year sentence imposed for selling a salt of amphetamine was to run concurrently with the other two sentences.

Defendant raises four points on appeal. Two are interrelated and will be considered together. In fine, they are that the trial court erred in overruling his motions to quash and dismiss the indictments because the delay of nine months between the time of the alleged offenses and the return of the indictments deprived him of his right to a speedy trial and to due process of law as guaranteed under the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. N.B.--defendant does not complain of the period which elapsed between the return of the indictments and the time he was tried on the charges.

The delay which occurred between the charged offenses and the indictments gave rise to a claim under due process rather than under the Sixth Amendment's guarantee of a speedy trial. United States v. Washington, 504 F.2d 346, 347(1) (8th Cir. 1974). Defendant's right to a speedy trial under the Sixth Amendment did not come into being until the indictments were filed. '(I) t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.' United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. York, 511 S.W.2d 758, 761(1) (Mo.1974); State v. Odzark, 532 S.W.2d 45 (Mo.App.1976). Therefore, defendant's reliance on the Sixth Amendment to support the claim that he was denied a speedy trial because of the hiatus between the offenses and the return of the indictments is misplaced. ¹

In Marion, the Supreme Court of the United States observed that 'since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, . . . the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. . . . However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant's case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case.' 404 U.S. at 324--325, 92 S.Ct. at 465. In elucidation, it is said that resolution of a claim that due process has been denied because of a delayed arrest or indictment, requires 'a process of balancing the reasonableness of the delay against any resultant prejudice to the defendant.' United States v. Jackson, 504 F.2d 337, 339(6) (8th Cir. 1974), cert. denied, 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975); United States v. Norton, 504 F.2d 342, 344(1) (8th Cir. 1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 790, 42 L.Ed.2d 811 (1975). 'While justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed.' Smith v. United States, 360 U.S. 1, 79 S.Ct. 991, 3 L.Ed.2d 1041 (1959).

Defendant trusts Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), and Woody v. United States, 125 U.S.App.D.C. 192, 370 F.2d 214 (1966), to serve his claim for release because of the preindictment delay. Without employing a detailed critique of those authorities as a make-weight for this writing--which any interested reader may do for himself--it is enough to recast what the court of origin has said regarding the application and limitations of Ross and Woody. 'The narcotics prosecutions which have caused our concern in Ross v. United States, supra, and the dozen or more later opinions, rely fundamentally upon an identification of a defendant as a result of a single brief contact by a Government witness who, in a relatively short period of time, has participated in a substantial number of virtually identical transactions. Confining our distinction from the Ross-type case only to the facts in the present case, we observe that the nature of the Government's proof in support of the several counts of the indictment is not of the nature that is blurred, obscured, dissipated, or destroyed by the passage of the period of time involved in this case.' Tynan v. United States, 126 U.S.App.D.C. 206, 376 F.2d 761, 763, cert. denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967). Again see Marion, 404 U.S. at 317 n. 8, 92 S.Ct. at 461: 'There is a unique line of cases in the District of Columbia Circuit concerning pre-indictment delay in narcotics cases where the Government relies on secret informers and (frequently) on single transactions. These cases take a more rigid stance against such delays, but they are based on the Court of Appeals' purported supervisory jurisdiction and not on the Sixth Amendment.'

Defendant's argument that the preindictment delay denied him due process of law wends this path: The delay was an unnecessary conscious act on the part of the state; the delay was of such a duration that defendant, even with the aid of Peggy's memory, could not reconstruct or remember what had transpired on the dates of the alleged offenses; the evidence against defendant consisted of testimony by adverse witnesses who had no independent recall of the involved events and who were dependent on notes to refresh their recollections; and the delay could have been shortened because the usefulness of McConnell as an undercover agent was virtually exhausted after March 1973, as he had made only five 'buys' after that time. In pretrial hearings, defendant asseverated that he had suffered amnesia (total in some areas and scattered in others) as the result of a May 6, 1973, vehicular accident. Indications that this claimed condition would be used to augment the alleged prejudice to him by reason of the preindictment delay have been forsaken on appeal in favor of another point to be considered anon.

Merely because the preindictment delay was admittedly a conscious act on the part of the state would not singly sustain defendant's claim of a denial of due process. Representatives of the narcotics bureau and the prosecuting attorney presented testimony to the effect that the delay, at least in part, was necessary due to limited personnel and financial resources; it was not practical or economical to permit an undercover agent to be 'burned,' i.e., publicly identified, every time a case could be made. Because of restricted manpower and money, the bureau attempted to maintain the agent's cover until he could go as far as possible, not only with a particular subject, but in making 'lateral progress' by trying to find other and more people involved in the sale of drugs. ' (W)e respect the (state's) need to keep the identity of such informants and agents confidential, both to protect their safety and to continue to use them effectively.' United States v. Jackson, supra, 504 F.2d at 340. Moreover, we can appreciate the fact that the revelation an undercover agent had been at work would quickly be disseminated to many in the community engaged in selling controlled substances. Such news would serve to deplete the effectiveness of other informants and agents, and thwart the overall efforts of the authorities to lay hold of as many sellers as possible. Thus, the process of balancing the reasonableness of the delay against any resultant prejudice to defendant cannot be concerned solely with the activities of a single agent.

Unlike the government's witnesses in the Ross-type cases, agent McConnell's testimony of his 'buys' from defendant and the co-indictees was not steeped in...