State v. Holmes

• Decision Date: 23 November 1982
• Docket Number: No. WD33325,WD33325
• Citation: 643 S.W.2d 282
• Parties: STATE of Missouri, Respondent, v. Xavier Earl HOLMES, Appellant.
• Court: Missouri Court of Appeals

Page 282

643 S.W.2d 282

STATE of Missouri, Respondent, v. Xavier Earl HOLMES, Appellant.

No. WD33325.

Missouri Court of Appeals Western District.

Nov. 23, 1982.

Fred Duchardt, Public Defender, Liberty, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, John Jacobs, Asst. Atty. Gen., for respondent.

Before KENNEDY, P.J., and WASSERSTROM and LOWENSTEIN, JJ.

WASSERSTROM, Judge.

Defendant appeals from a conviction of robbery in the first degree. He asserts three points of error, but it is necessary to discuss only the first. In that point, defendant complains that he was denied a speedy trial, and he argues that his motion to dismiss the information on that ground should have been sustained. We find that contention meritorious and therefore reverse.

On August 2, 1979, a robbery occurred at Laurie's Liquors in North Kansas City, Clay County, Missouri. Within a short time thereafter, Jones, who was the clerk in charge of the liquor store, was shown a photographic array by the police and identified the defendant.

In mid-November 1979, defendant was apprehended in St. Louis, Missouri. At that time, defendant was wanted not only by the Clay County authorities, but also by the authorities in Jackson County, Missouri, on an unrelated offense of manslaughter. On November 14, 1979, Kansas City Detective Whitaker and North Kansas City Detective Wells went to St. Louis to pick defendant up, apparently under the authority of a Jackson County warrant. During the trip back, Wells told defendant of the Clay County offense and of the investigation which implicated defendant.

The next day, November 15, 1979, Detectives Whitaker and Wells conducted a showup at the Kansas City, Missouri police headquarters. Witness Jones was asked to be present. Defendant was told that the reason for the showup was the Clay County robbery, and he signed a waiver of his right to have counsel present. As a result of the showup, Jones identified defendant as the one who had robbed him on August 2.

On the same day of November 15, 1979, the Clay County prosecutor filed a complaint against defendant for the robbery offense and a warrant of arrest was issued. A hand written notation was made upon the records of the Kansas City, Missouri police stating "Hold for Clay County," but no copy of the Clay County arrest warrant was ever filed with the Jackson County officials.

Defendant was then tried and convicted in Jackson County on the manslaughter charge, and he was sent to the Missouri Division of Corrections on May 5, 1980. No record was delivered to the state penitentiary of the Clay County proceeding, nor was any detainer filed with respect to the Clay County robbery. Defendant was moved to successively less restrictive types of confinement and finally was transferred to St. Mary's Honor Center, a pre-release facility. At every transfer a check of Holmes' records was made, but no outstanding warrant for arrest was ever revealed.

While Holmes was at the Honor Center, the outstanding Clay County warrant against him was discovered. He was arrested on June 5, 1981, and returned to Clay County where he was formally charged by information on July 10, 1981. The trial which led to the present conviction commenced on September 29, 1981, twenty-two months after his arrest in St. Louis by Detectives Whitaker and Wells.

Prior to trial, defendant filed a motion to dismiss the information because of violation of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. A hearing was held on that motion and the motion was overruled. That ruling, objection to which has been properly preserved at all stages, constitutes the basis for defendant's first point on this appeal.

I.

The legal principles applicable to delay in criminal proceedings differ sharply depending upon whether the delay is pre-accusatory or post-accusatory. Only post-accusatory delay entitles the defendant to protection of the Sixth Amendment. This limitation arises from the wording of the Sixth Amendment which extends its protection only to "the accused" in a criminal prosecution. ¹ On the other hand, if the delay occurs in the pre-accusatory stage, then the defendant is relegated to the protections afforded by the statutes of limitation and by the due process clause of the Fifth Amendment, which in their operation are substantially more restricted than the Sixth Amendment protection. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Dillingham v. U.S., 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 205 (1975); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. MacDonald, 456 U.S. 1, 102 S.Ct. 1497, 71 L.Ed.2d 696 (1982).

Defendant argues that he has suffered deprivation of rights under both the Fifth and Sixth Amendments. However, we need not consider his rights under the Fifth Amendment, since we conclude that his Sixth Amendment rights have been impaired.

As indicated above, the test of defendant's entitlement to the protection of the Sixth Amendment depends upon when he became "an accused." Although it was once held that the accusation stage did not commence until the filing of an indictment or information, it has now become authoritatively settled that this stage may also be commenced by the placing of the defendant under arrest. The rule now is that the time for purposes of speedy trial under the Sixth Amendment begins to run from the time of the indictment or information or an arrest, whichever occurs first. United States v. Marion, supra; Dillingham v. U.S., supra; State v. Paxton, 535 S.W.2d 558 (Mo.App.1976); State v. Black, 587 S.W.2d 865 (Mo.App.1979); State v. Haddix, 566 S.W.2d 266 (Mo.App.1978).

The parties here argue contradictory views as to how the above principles should be applied to the facts of the present case. Defendant's brief sets forth his view to be that "his right to speedy trial arose when the Clay County Prosecuting Attorney filed the complaint against him in the Associate Circuit Court on November 15, 1979." The attorney general, on the other hand, argues that: "Appellant did not become an accused until he was arrested for the robbery charge on June 5, 1981." Neither of those interpretations can be accepted. That of the defendant is somewhat inaccurate and does not quite square (at least unless further explained) with the view expressed in State v. Black, supra, which holds:

"The principal and, perhaps, single function of a complaint is to serve as the basis for an application for an arrest warrant, Sec. 544.020 RSMo; Rule 21.08. Being merely an application, which can be refused for constitutional or statutory non-compliance, the complaint itself places no actual restraints on the putative defendant nor does its filing require him to begin to protect his interests; thus, although the complaint may be the first step in a criminal prosecution, see State v. Nichols, 330 Mo. 114, 49 S.W.2d 14, 19 (1932); State v. Flannery, 263 Mo. 579, 173 S.W. 1053, 1055 (1915), the complaint does not 'initiate a criminal prosecution' and it does not make the putative defendant an 'accused' as those terms are defined in Marion and Dillingham, for the complaint itself does not initiate any of the financial, social or psychological harm protected against by the right to a speedy trial."

The state likewise is incorrect in that it mistakes when defendant's arrest first occurred.

Under the peculiar facts of this case, the correct date which started the clock running for the purpose of speedy trial was November 14, 1979, the date of defendant's arrest in St. Louis by Detectives Whitaker and Wells. True, that arrest was under the authority of a Jackson County warrant. Nevertheless, that arrest was a joint enterprise between officers of both Jackson and Clay Counties for the reciprocal benefit of each. Detectives Whitaker and Wells had engaged in a joint investigation, made a joint trip to St. Louis for the purpose of picking up defendant, and Wells informed defendant during the course of that trip that one of the purposes was to bring defendant back in connection with the Clay County robbery. The showup which immediately followed was conducted by both officers, and the showup was utilized for the purpose of having witness Jones make a further identification. As a direct and immediate result of that showup identification, the Clay County prosecutor filed a complaint in Clay County and an arrest warrant issued. Most telling of all, the Clay County authorities made an informal request of the Jackson County authorities that defendant be held for the Clay County offense and a hand written notation to that effect was made on the records in Jackson County.

The fact that defendant was held under arrest in a different jurisdiction under a different and unrelated charge does not make the incarceration any less effective for the purposes of speedy trial in Clay County on the offense in that jurisdiction. Smith v. Hooey, 393 U.S. 375, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (1970); State v. Powers, 612 S.W.2d 8, 12 (Mo.App.1981); Williams v. Darr, 4 Kan.App.2d 178, 603 P.2d 1021 (1979). See also State v. Alexus, 91 Wash.2d 492, 588 P.2d 1171 (banc 1979). Whether jailed in Jackson County, Clay County or in the state penitentiary at Jefferson City, adverse effects resulted to defendant, particularly with respect to the preparation of his case. This matter of prejudice is more fully considered below in point II D of this opinion.

The state argues that the delay in bringing defendant to trial in Clay County did not result in any undue or oppressive incarceration because he was imprisoned anyway under the manslaughter conviction, and no special anxiety could have been caused to defendant because he did not even know of the Clay County complaint and arrest warrant until June 5, 1981. In support of that argument, the state cite...