State v. Hollis, KCD

Decision Date29 June 1979
Docket NumberNo. KCD,KCD
Citation584 S.W.2d 137
PartiesSTATE of Missouri, Respondent, v. Gerald HOLLIS, Appellant. 29582.
CourtMissouri Court of Appeals

Philip H. Schwarz, McMullin, Wilson & Schwarz, Kansas City, for appellant.

John D. Ashcroft, Atty. Gen., J. Michael Davis, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.

SWOFFORD, Chief Judge.

The appellant (defendant) was convicted of murder in the second degree by jury verdict and he was sentenced to 99 years and 1 day in the Missouri Department of Corrections and this appeal followed in due course.

The facts appearing from the record pertinent to the issues on this appeal may be thus summarized:

In the early morning hours of July 26, 1975, Mrs. Lelia M. Neely returned to her home at 7453 Walrond in Kansas City, Missouri and found her husband, Ernest K. Neely, on the bed in their bedroom covered with blood and apparently lifeless. She fled from the home and the police were called. Upon arrival, the police found Mr. Neely lying face-up on the bed with his head and chest covered with blood. He was cold and there was no discernible pulse. Later medical examination disclosed that he had suffered lacerations of the face and head, multiple skull fractures and severe injury to the brain.

Investigation of the Neely home disclosed that the window screen ordinarily screening a window to the den was removed and leaning against the outside wall of the house and it had been slit at a point next to the window lock. The window was open, the window curtains disturbed and a cover over a sofa in the den beneath the window was mussed. The telephone had been torn loose. A portable TV and two stereo speakers were missing from the home, and the family dog had a noticeable swollen place on its head.

The State offered the testimony of Adrian Kemp, who was acquainted with the defendant and who resided at 7429 College, in the same neighborhood as defendant. On the morning of July 26, 1975, he was working on his car at his home when he observed the defendant approaching west on 75th Street from the direction of a vacant house. The defendant told Kemp he had killed a man and that he had a TV and two speakers at the vacant house. The defendant told Kemp he had hit "the man" with a hammer in a house at the corner of 75th and Walrond; that he had gone into the house through a window; that he had also "knocked the hell out of the dog, some dog"; that the man was on a bed and started to raise up and "he started beating the man with the hammer"; that he then got the color TV and stereo speakers and put them at the side of a vacant yellow house next-door to the house "he was in"; that he then went back in the house to "finish" and beat the man some more; and, that he then went to his home at 7412 College and washed the blood from his arms and the hammer.

The defendant then asked Kemp if he would drive him to 64th and Benton. Kemp agreed to do so and the defendant got the speakers and TV and put them in the trunk of Kemp's car. They then drove to 6411 S. Benton and took "the stuff" into that house and left the items there. The next afternoon Kemp drove the defendant to 6411 S. Benton and then to a barber shop in the vicinity of 32nd and Prospect; the defendant took a portable TV into the shop, returned with $50.00 and gave Kemp $5.00. A few days later, Kemp gave a full statement to the police.

Melody Channel testified for the State that on July 26, 1975, in the early forenoon, the defendant came to her home at 6411 S. Benton. She stated that she did not see the stereo speakers at that time, but did see them on July 30, 1975 when the police came to her home. Upon the latter occasion the police picked up two stereo speakers and the record discloses that Mrs. Neely identified one of these as belonging to her husband and as missing from their home.

On July 30, 1975, Police Officer William Martin interviewed the defendant at the Juvenile Justice Center of Jackson County, Missouri. Martin testified that the defendant, his father, Juvenile Officer Steivers, and Police Officer Noel were present. Martin, Steivers and Noel advised both the defendant and his father of the defendant's rights under Miranda, and a Miranda waiver was signed. At this interview the defendant denied any connection with the burglary at Neely's home. He stated that he had stayed at home until 12:30 or 1:00 a. m. on July 26, 1975; had then gone walking, stopping at Adrian Kemp's house and helping Kemp work on a car; he and Kemp had then gone riding; and they had stopped at "Brian's" house on South Benton for a few minutes. The defendant specifically denied that he had taken anything into the Channel home at 6411 South Benton.

When advised by Officer Martin that the police had recovered two stereo speakers at the Channel house that day, the defendant told the police he had lied. He then stated that he had left his home at about 1:00 a. m. on July 26, 1975 and had run into "four dudes" (not otherwise identified) at a park at 74th and Bellefontaine, had engaged in a crap game with them and had won $35.00. The defendant stated he then left the "dudes" and walked to 75th and Indiana where he again ran into the same "dudes", who at that time had in their possession two stereo speakers and a portable TV which the defendant purchased from them with the $35.00 he had previously won from them at craps. He stated he concealed these items in the bushes at 75th and Indiana when the "dudes" refused to take him to the Channel house on South Benton. He stated he then contacted Adrian Kemp, who drove him to the Channel house where they dropped "the stuff". After relating these occurrences and at the suggestion of Officer Martin, the defendant and his father retired to another room for a private conference. Upon their return they stated that they were "going to stay with the story", would have to get a lawyer, and did not want to talk to the officials any further. The interview was thereupon terminated.

The defendant did not testify and offered no evidence in his defense. He was sixteen years of age at the time of the offense and his arrest. He raises as Point II on this appeal that the trial court lacked jurisdiction over the cause for the reason that there was no record before the court that the juvenile court had ever relinquished its exclusive jurisdiction, granted by Section 211.031 RSMo 1976 Supp., over the defendant as required by Section 211.071 RSMo 1969. See State v. Ford, 487 S.W.2d 1(3, 6) (Mo.1972).

The defendant filed no motion in the general criminal division below requesting dismissal of the proceedings or remand to the juvenile court as contemplated by Rule 25.06, Rules of Criminal Procedure. The only reference to this lack in the transcript was a comment by the trial court that the file before it did not contain the juvenile record affecting jurisdiction and his inquiry of counsel if the defendant was "certified here from the Juvenile Court?" In response to this, the following appears:

"MR. PIERCE (Defense counsel): My understanding is that he was.

MR. DAKOPOLOS (Prosecutor): Yes, Your Honor."

The trial then proceeded without further mention of the matter.

The State argues with convincing force that the defendant has waived his objections as contained in Point II under the state of the record and under the authority of Jefferson v. State, 442 S.W.2d 6, 12(7) (Mo.1969); Ford v. State, 534 S.W.2d 111 (Mo.App.1976), and State v. LePage, 536 S.W.2d 834, 836(2) (Mo.App.1976). The defendant, however, counters by requesting that if this point is "capable of being waived" that it be considered under Rule 27.20(c) as plain error. The defendant cites in support of this argument the case of State ex rel. D______ V______ v. Cook, 495 S.W.2d 127, 128(1) (Mo.App.1973), where this Court properly held that the statutory provisions dealing with the handling of juveniles in the preliminary stages constituted a critically important stage of the ensuing criminal prosecution and must conform to basic requirements of due process and fairness.

Further discussion of these positions and authorities is unnecessary for the decision here because following the submission of the cause the State (respondent) moved that the documents reflecting the proceedings in the Juvenile Court be forwarded to this Court as part of the record on appeal, and that motion was sustained by this Court under Rule 81.12(c) which authorizes this Court to do so when " * * * anything material to either party has been omitted from the transcript by error or accident * * * ", and Rule 84.03 which empowers this Court to order the Circuit Clerk to send directly any part of the pertinent records.

In accordance with this Court's order, the Attorney General has filed here duly certified copies of the formal records of the Juvenile Court with reference to the proceedings there following the defendant's arrest, including the "Order Dismissing Petition and Allowing Prosecution Under General Law" relating to this defendant, and such documents are found to be in full and meticulous compliance with all statutory requirements permitting the indictment and prosecution of this defendant in the court below.

The trial court had jurisdiction over the cause and defendant's Point II is ruled against him.

The defendant charges that the trial court erred in failing to sustain his motion to discharge for the reason that he was not provided a speedy trial as guaranteed by the Sixth Amendment to the Constitution of the United States since more than seven (7) terms of court had passed between the time of his indictment and the time of his trial (Point I).

To implement the constitutional right to a speedy trial the General Assembly of Missouri had enacted certain statutes. Generally, these statutes provide that a person charged with a crime who shall not be brought to trial before the court having jurisdiction...

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  • State v. Buckles
    • United States
    • Missouri Supreme Court
    • August 23, 1982
    ...of defendant's rights to a speedy trial occurred. State v. Haddix, 566 S.W.2d 266, 274(9) (Mo.App.1978). See also State v. Hollis, 584 S.W.2d 137 (Mo.App.1979). As to the matter of resulting prejudice to the defendant, the court in State v. Haddix, supra, declared that the principal factors......
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    ...has been preserved for appellate review. Rule 28.03; State v. McGee, 592 S.W.2d 886, 887-88 (Mo.App. banc 1980); and State v. Hollis, 584 S.W.2d 137, 145 (Mo.App.1979). Defendant has not asked this court to review the matters raised in point three as "plain error" under Rule 29.12(b) or sug......
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    ...waives his right to a speedy trial by failure to demand a trial. State v. West, 484 S.W.2d 191, 193-195 (Mo.1972); State v. Hollis, 584 S.W.2d 137, 143 (Mo.App.1979), and cases cited therein; State v. Johnson, 579 S.W.2d 771 (Mo.App.1979). A criminal case might be continued from month to mo......
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    ...401 (Mo.1971) (waiver after exercise of right to remain silent); State v. Starks, 459 S.W.2d 249, 252-253 (Mo.1970); State v. Hollis, 584 S.W.2d 137, 145 (Mo.App.1979) (waiver before exercise of right to remain silent). Numerous federal decisions have reached the same result-where an inadve......
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