State v. Johnson

• Decision Date: 25 January 2011
• Docket Number: No. ED 93246.,ED 93246.
• Citation: 328 S.W.3d 385
• Parties: STATE of Missouri, Respondent, v. Stanley JOHNSON, Appellant.
• Court: Missouri Court of Appeals

328 S.W.3d 385

STATE of Missouri, Respondent,
v.
Stanley JOHNSON, Appellant.

No. ED 93246.

Missouri Court of Appeals,
Eastern District,
Division Three.

Nov. 2, 2010.
Motion for Rehearing and/or Transfer t Supreme Court Denied Dec. 13, 2010.
Application for Transfer Denied Jan. 25, 2011.

328 S.W.3d 389

Craig A. Johnston, Columbia, MO, for appellant.

Chris Koster, Terrence M. Messonnier, Jefferson City, MO, for respondent.

OPINION

CLIFFORD H. AHRENS, Judge.

Stanley Johnson (Defendant) appeals the trial court's judgment and sentence after a jury convicted him of first-degree murder and forcible rape. We affirm.

Background

In May 1994, Lela Warner was raped and strangled to death in her home in St. Louis County. Police collected evidence at the scene and on the victim including hair, blood, semen, two blood-stained towels, finger prints, and a palm print on the back door. The assailant's DNA profile was entered into the Combined DNA Index System (CODIS). The case remained unsolved until 2006 when the CODIS database generated a "hit" matching the crime scene DNA evidence to Defendant, who was then incarcerated on an unrelated conviction. Police obtained a search warrant compelling Defendant to provide a buccal swab, from which further testing confirmed that Defendant's DNA was consistent with that found on Ms. Warner.

In September 2006, the State charged Defendant with first-degree murder and forcible rape. Defendant filed a motion under the Uniform Mandatory Disposition of Detainers Law (UMDDL) demanding that his case be tried within 180 days. Defendant's court-appointed co-counsel entered their appearance December 22 and requested additional time to prepare for trial. Defendant objected to the delay, so the trial court rejected counsel's request and set the trial for March 2007. Counsel sought a writ of prohibition to prevent the trial court from convening the trial as scheduled. The Supreme Court of Missouri granted the writ, holding that, by exercising his right to counsel, Defendant had ceded to counsel the authority to seek reasonable continuances, which are allowed for good cause under the UMDDL. State ex rel. Wolfrum v. Wiesman, 225 S.W.3d 409 (Mo.2007).

In the months prior to trial, Defendant frequently expressed dissatisfaction with counsel and filed numerous motions to discharge them and represent himself. In

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July 2007, Defendant's original counsel withdrew, and the court appointed new counsel. Defendant then complained about his new counsel and filed additional motions to discharge them and represent himself. In October 2008, the trial court held a hearing, conducted a thorough colloquy with Defendant, and ultimately denied Defendant's motion, finding that Defendant's request was equivocal and unknowing and that Defendant was incapable of conducting himself appropriately in the courtroom. Defendant continued to complain that his attorneys were not following his strategic instructions or communicating with him frequently enough, and he repeatedly asked the court to discharge them and either appoint new counsel or allow him to proceed pro se. On the morning of trial, the court denied all pending motions, including Defendant's requests for different counsel or self-representation.

The trial was held April 15 to 22, 2009. Before jury selection, the trial court asked Defendant if he would be able to conduct himself appropriately in the courtroom. Defendant resumed his complaints about counsel, claimed that he wasn't getting a fair trial, and requested leave from the proceedings. The trial court granted Defendant's request and conducted a similar colloquy each morning of trial, in response to which Defendant lodged the same complaints and waived his right to be present. The trial proceeded in Defendant's absence.

At the close of the evidence, Defendant's counsel offered jury instructions including lesser offenses of second-degree felony murder and conventional second-degree murder. The trial court instructed the jury on the former but rejected the latter. After four hours of deliberation, the jury returned verdicts finding Defendant guilty of first-degree murder and forcible rape. The trial court sentenced Defendant, as a prior and persistent offender, to consecutive prison terms of life without the possibility of parole for first-degree murder and thirty years for forcible rape.

Defendant appeals and asserts that the trial court erred by (1) denying his motions to dismiss for violation of his right to a speedy trial under the UMDDL; (2) denying his motions to proceed pro se; (3) rejecting his jury instruction on the lesser included offense of conventional second-degree murder; and (4) denying his requests for new counsel. Additional facts are discussed below as relevant to the issues on appeal.

Discussion

I. Speedy trial under UMDDL

First, Defendant asserts that the trial court erred in denying his motion to dismiss because the court lost jurisdiction before the case went to trial. Our review is de novo. State v. Taylor, 298 S.W.3d 482, 503 (Mo.2009). The UMDDL permits an incarcerated defendant to prompt final disposition of an untried indictment within 180 days, or longer for good cause, lest the trial court lose jurisdiction and be required to dismiss the cause with prejudice. When Defendant invoked it,¹ section 217.460 RSMo 2000 stated:

Within one hundred eighty days after the receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the indictment, information or complaint shall be brought to

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trial. The parties may stipulate for a continuance or a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard. If the indictment, information or complaint is not brought to trial within the period, no court of this state shall have jurisdiction of such indictment, information or complaint, nor shall the untried indictment, information or complaint be of any further force or effect; and the court shall issue an order dismissing the same with prejudice.
The statute provides three exceptions permitting the trial court to grant additional necessary or reasonable time beyond 180 days: (1) for good cause shown in open court, the offender or his counsel being present; (2) the parties stipulate to a continuance; or (3) notice is given to the attorney of record with an opportunity to be heard. Section 217.460; Wolfrum v. Wiesman, 225 S.W.3d at 412, n. 7.

Defendant filed his UMDDL request September 25, 2006. His trial commenced 933 days later on April 15, 2009. Defendant asserts that the additional time did not meet the exceptions to toll the statutory period. We consider each delay in chronological order.

Defense counsel's first request for continuance and related writ proceedings

The parties agree that 105 days accrued from the filing of Defendant's UMDDL motion until defense counsel first requested a continuance January 19, 2007. As previously mentioned, the trial court denied counsel's request due to Defendant's objections, so, on January 29, counsel sought a writ of prohibition to prevent the trial court from proceeding to trial. This court denied the petition February 1, and counsel appealed to the Supreme Court of Missouri February 5. The Supreme Court issued its preliminary writ February 16 ordering the trial court to take no further action except to grant counsel's request for additional time.

Defendant argues that, between January 19 and February 16 (27 days), the clock continued to run because no court order was in place to stop it. The State counters that the time should be excluded because a continuance should have been granted in the first instance, as the Supreme Court held in Wolfrum. In support of its position, the State cites Fischer v. Brancato, in which this court noted that an "appellate decision becomes the law of the case in a subsequent proceeding in the same cause and precludes re-examination of issues ... decided by the appellate court's opinion either directly or by implication." 174 S.W.3d 82, 86 (Mo.App.2005). Clearly, this rule prohibits re-examination of the central issues resolved in Wolfrum, namely defense counsel's authority to request, and the trial court's discretion to grant, a continuance over Defendant's objection. We are not persuaded, however, that Wolfrum prescribes by implication the tolling of the UMDDL clock retroactively based on the outcome. Nonetheless, while neither party offers instructive authority, generally any delay resulting from the defendant's affirmative action is excludable from the 180 day period. Lee v. State, 97 S.W.3d 9, 14 (Mo.App.2002). Thus, the times during which counsel's writ petitions were pending before this court (January 29 to February 1) and the Supreme Court (February 5 to 16) are excluded. This is consistent with other speedy trial authority excluding time during which trial proceedings are stayed pending interlocutory appeals. See for example U.S. v. Pete, 525 F.3d 844 (9th Cir.2008) (holding that the clock resumes upon the district court's order but tolls upon filing of notice of interlocutory appeal). As such, 12 days accrued during this period (January 20-28 and February

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2-4), for a new total of 118. The parties do not dispute that the clock was then tolled from February 16, when the Court issued its preliminary writ, until the Court issued its mandate June 26.

From mandate to new counsel's request for continuance

Next, the parties dispute whether the clock resumed as of the Court's mandate June 26 until July 11 (15 days) when the court appointed new counsel and granted them additional time to prepare for trial. Neither party offers authority for its position. The State suggests that Wolfrum implicitly approved original counsel's...