State v. Haslip, 10623

• Decision Date: 04 June 1979
• Docket Number: No. 10623,10623
• Citation: 583 S.W.2d 225
• Parties: STATE of Missouri, Respondent, v. Stephen Greg HASLIP, Appellant.
• Court: Missouri Court of Appeals

Page 225

583 S.W.2d 225

STATE of Missouri, Respondent, v. Stephen Greg HASLIP, Appellant.

No. 10623.

Missouri Court of Appeals, Southern District, Division One.

June 4, 1979.

Motion for Rehearing or to Transfer to Supreme Court Denied

June 27, 1979.

Application to Transfer Denied July 17, 1979.

John D. Ashcroft, Atty. Gen., Neil MacFarlane, Steven D. Steinhilber, Asst. Attys. Gen., Jefferson City, for respondent.

Ralph E. Baird, Joplin, for appellant; Douglas Hamilton, Joplin, of counsel.

TITUS, Judge.

Charged under the Second Offender Act (§ 556.280) ¹ with first degree murder (§ 559.010), defendant was jury convicted thereof. Presumably because defendant and his trial attorney became estranged after the verdict was rendered and, as defendant said, "he don't work for me no more," no motion for a new trial was filed. Also, before allocution was afforded, judgment rendered and sentence pronounced (Rule 27.09), the trial judge went out of office and defendant acquired new counsel. A special judge was assigned "to perform the duties to be performed by the court under these rules after a verdict is returned." Rule 79.01; cf. State v. Hopkins, 573 S.W.2d 744, 745 (Mo.App.1978). Upon affording allocution, the special judge sentenced defendant to life imprisonment as mandated by § 559.030. Defendant appealed.

Since no motion for a new trial was filed, our review of grounds asserted by defendant on appeal should be limited to consideration of plain errors affecting substantial rights. Rule 27.20(c); State v. Collett, 542 S.W.2d 783, 785(1) (Mo. banc 1976). Of course, as defendant complains in one of his points relied on, if the state failed to make a submissible case, then plain error resulted. State v. Covington, 559 S.W.2d 78, 79(1) (Mo.App.1977). Therefore, we will review that point premised upon appellate rules that the evidence is to be viewed in the light most favorable to the verdict (State v. Hegwood, 558 S.W.2d 378, 379(1) (Mo.App.1977)) and that the jury had leave to believe or disbelieve all, part or none of the testimony of any witness. State v. Davis, 556 S.W.2d 745, 747(2) (Mo.App.1977).

The dead body of Lee Coquillette was found in his mobile home in Joplin near 2 a. m. May 17, 1974. Death was caused by a shotgun wound inflicted at close range. Outside the trailer was found a live .16 gauge shotgun shell and a .16 gauge shotgun containing a spent shell. The evidence indicated the shotgun had been fired through an opened jalousie window and screen while Coquillette was apparently in the process of watering houseplants. Albeit he could not make positive identification, a special F.B.I. agent who examined a plaster cast made of a boot print found outside the trailer, opined the print was most similar to one of defendant's boots which defendant had asked a friend to take and "go swimming with them." Instead of disposing of the boots as directed, the recipient gave the boots to authorities who had comparisons made between them and the cast. The state, at the trial, produced a witness who asserted defendant had recounted that he had killed Coquillette with a shotgun while the victim was in his trailer watering plants. Another witness called by the state testified that in conversations overheard between defendant and one Bebee, defendant "said he shot (this man) with a shotgun." We rule this evidence was sufficient to submit defendant's innocence or guilt to the jury. Cf. State v. Higdon, 356 Mo. 1058, 1060, 204 S.W.2d 754, 755(1) (banc 1947). (This covers point VII in defendant's brief).

Another point (Number I) advanced by defendant is that the "Court erred in pronouncing judgment and sentence upon the Appellant for the reason that the prosecution was barred by the 'Agreement on Detainers' (V.A.M.S. Section 222.160) in that the Appellant had been returned to the Federal custody prior to being tried in violation of Article IV, Paragraph 5, of the Agreement." Defendant's first three appearances in the Missouri courts were caused via writs of habeas corpus Ad prosequendum while defendant was incarcerated in the Medical Center for Federal Prisoners in Springfield, Missouri; the last two such writs issued when defendant was imprisoned in the United States Penitentiary at Leavenworth, Kansas. In State ex rel. Stanley v. Davis, 569 S.W.2d 202, 210 (Mo.App.1978) it was held that the Agreement on Detainers "is not applicable to the situation where a federal prisoner in Missouri is transferred to a Missouri court for the limited purposes of arraignment, appearances or hearings and then returned to the federal facility in Missouri." But more to the point in this case where defendant's appearances in the Missouri courts were obtained through writs rather than detainers, is the pronouncement of the United States Supreme Court in United States v. Mauro, 436 U.S. 340, 98 S.Ct. 1834, 1847, 56 L.Ed.2d 329 (1978): "We therefore conclude that (interstate transfers of prisoners via) a writ of habeas corpus Ad prosequendum is not a detainer for purposes of the Agreement."

We summarily and gratuitously review defendant's other points relied on albeit they were not preserved because no motion for a new trial was filed. "VII. The evidence was insufficient to prove the guilt of the Appellant beyond a reasonable doubt. VIII. The Court abused its discretion in refusing Appellant's requested instruction on circumstantial evidence." Initially it is to be noted that these points, although we have previously decided point VII on its merits under the plain error rule, are written in utter disregard of the mandatory requirements of Rule 84.04(d) because they do not undertake to state "wherein and why" the evidence was insufficient to prove defendant's guilt beyond a reasonable doubt or "wherein and why" the court abused its discretion in refusing the proffered instruction. Moreover, it is to be seen that these points are stated sans citation of authority (State v. Paige, 550 S.W.2d 582, 584(4) (Mo.App.1977)), and while it has been decided "that Rule 84 does not Require citation of authority in every instance, we emphasize that we do not thereby intend to modify the appellant's burden on appeal of demonstrating error by the court below. Thus, if the point advanced is not a matter of first impression and is not simply a matter of logic or policy or analysis of statutory or documentary language, . . ., the court on appeal need not search for precedential support to overrule the contention. If the point is one for which precedent is appropriate and available, it is the obligation of appellant to cite it if he expects to prevail." Thummel v. King, 570 S.W.2d 679, 687(13) (Mo. banc 1978). The two points do not present matters specified in the exceptions noted in Thummel and offer only conclusionary assertions for which appropriate precedent was surely available if they had merit. In the circumstances here, we decline to do defendant's briefing on appeal.

In defendant's point III he says the trial court erred in permitting a witness to testify concerning defendant's alleged but uncompleted preparations to escape from jail because it constituted evidence of a separate crime not connected to the crime for which defendant was being tried. The obvious difficulty with this point is that defendant did not object to the testimony at trial nor in a motion for a new trial. When such is the case, the alleged error is not preserved for appellate review and warrants no consideration when presented for the first time in defendant's brief on appeal. State v. Wendell, 542 S.W.2d 339, 342(5) (Mo.App.1976).

Point relied on numbered II in defendant's brief is to the effect that the trial court erred in not imposing upon the state sanctions for its failure to disclose a certain witness' written statement concerning defendant's admissions as required by Supreme Court Rules. As then written, Rule 25.31 stated: "Requests or motions for discovery shall be made not later than twenty days after arraignment . . . ." It is enough to observe that defendant was arraigned September 15, 1975, but did not request or move for discovery until more than 20 days after arraignment or on October 7, 1975. The motion was untimely and of no effect. Cf. State v. Rains, 537 S.W.2d 219, 221-222(1) (Mo.App.1976). While the state was not compelled to do so, it, nevertheless, disclosed the name of the witness and the nature of the witness' proposed testimony to defendant some 20 days before trial.

Under point IV defendant asserts his right to be discharged because he was denied a speedy trial. Sixth Amendment, Constitution of the United States; art. I, § 18(a), Constitution of Missouri. This is predicated upon the fact that defendant was jury-convicted in July 1976 but was not sentenced until February 1977, a period of some seven months. Although defendant summarily asserts the delay prejudiced "his ability to obtain post conviction (sic) relief," he does not undertake, in violation of Rule 84.04(d), to demonstrate "wherein and why" the delay was prejudicial. The following cases illustrate the indicated periods between the plea of guilty or conviction and sentencing were not prejudicial to defendant nor violative to his Sixth Amendment rights. Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957) 24 months; Brooks v. United States, 423 F.2d 1149 (8th Cir. 1970) 10 months, cert. denied 400 U.S. 872, 91 S.Ct. 109, 27 L.Ed.2d 111; United States v. Tortorello, 391 F.2d 587 (2d Cir. 1968) 29 months; Bolduc v. United States, 363 F.2d 832 (5th Cir. 1966) 13 months; United States v. Grabina, 309 F.2d 783 (2d Cir. 1962) 24 months; Kaye v. United States, 235 F.2d 187 (6th Cir. 1956) 23 months; State v. Brown, 445 S.W.2d 647 (Mo.App.1969) 6 months. In the instant case there is no showing of prejudice to the defendant as a result of the delay because during that time defendant was confined in the United States Penitentiary at Leavenworth where he would have been...