State v. Jones, 38732

• Decision Date: 27 September 1977
• Docket Number: No. 38732,38732
• Citation: 556 S.W.2d 736
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ricky JONES, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 736

556 S.W.2d 736

STATE of Missouri, Plaintiff-Respondent, v. Ricky JONES, Defendant-Appellant.

No. 38732.

Missouri Court of Appeals, St. Louis District, Division Three.

Sept. 27, 1977.

James B. Ashwell, Asst. Public Defender, 22nd Judicial Circuit, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

GUNN, Judge.

Defendant was convicted of escaping before conviction in violation of § 557.390 R.S.Mo.1969; the sentence was two years imprisonment. Two points are raised upon appeal: (1) that the trial court erred in requiring two defense witnesses to appear before the jury in leg shackles; and, (2) that the trial court erred in failing to give prompt effect to writs of habeas corpus ad testificandum issued for two defense witnesses. We affirm the judgment.

Defendant was being held in custody on a conviction for armed robbery and a charge of assault. On June 25, 1974, he and at least four other persons were confined in the security section of Homer G. Phillips Hospital in St. Louis. On the day of the escape, a laboratory technician intending to draw a blood sample from a prisoner entered the ward with Deputy Sheriff Earl Robertson. As the technician was procuring the sample, Bernard Meeks, one of the prisoners, attacked Robertson with a bed post and beat him severely. Meeks freed himself from his bed shackles, utilizing a pair of pliers, and continued to pummel Robertson into unconsciousness. Another sheriff's deputy, Arnold Roberts, responded to the commotion, but Meeks overpowered him and took his gun. Meeks then freed the defendant and another prisoner, Eddie Fleming, and all three left the confinement of the hospital. Defendant was captured in the basement of his mother's house on October 6, 1974, 42 days after the breakout. Fleming surrendered to East St. Louis police 40 days after the escape. Meeks escaped to Virginia, where he was ultimately convicted of 9 or 10 crimes, which according to Meeks, included abduction, assault, robbery and attempted escape. For the Virginia crimes, Meeks received a total of 125 years in sentences to be served concurrently for 50 years. He subsequently escaped from Virginia authorities, and at the time of trial, was serving a 15 year sentence in the Missouri penitentiary for armed robbery.

Defendant was charged in three counts: with escape before conviction; with assault with malice aforethought by reason of the attack on Deputy Robertson; with assault with malice aforethought by reason of attack on Deputy Roberts. The jury found defendant guilty of the escape and acquitted him on the two assault charges.

At trial, Deputy Robertson testified that both Meeks and defendant assaulted him. The laboratory technician, however, could not identify who had assaulted Robertson. Deputy Roberts testified that he was attacked only by Meeks, who took his gun; that as soon as the gun was taken, defendant, Meeks and Fleming ran out of the ward and jumped out a window to complete their escape. There was no evidence that defendant assaulted Roberts.

Defendant, Meeks and Fleming each testified that Meeks assaulted Robertson by beating him with a bed post and that defendant took no part in the assault.

With regard to the escape, Fleming testified that both he and defendant were forced at gunpoint by Meeks to leave the hospital prison ward. There was no assertion, however, that there were any restraints on either man after they had left the hospital ground. The only testimony from defendant on his direct examination regarding his escape was as follows:

"Q. Who released Earl Fleming?

"A. (Defendant) Bernard Meeks.

"Q. And how did you gain your freedom?

"A. Bernard Meeks."

Meeks, in his direct testimony, stated only that he had "released" defendant. On cross-examination, Meeks related the following:

"A. Ricky Jones (defendant), he didn't want to go, and I said, 'Well, when the police come down here they're going to take it out on all of you, because the guard was beaten up,' and I told them everyone down there, you know, they would get in trouble for it and finally I talked them into it, you know.

"Q. (prosecutor) When you finally talked them into it or he finally agreed with you, was that before you took the shackles off or after?

"A. It was before. He didn't want me to take them off.

"Q. Then he agreed to go with you?

"A. In a way he did not agree, I told him what the police might do to him; I guess he got a little scared."

The jury accepted defendant's and defendant's witnesses' version of the assault on Robertson and Roberts, acquitting him on both assault charges. The jury, however, found defendant guilty of escape before conviction.

On appeal, defendant contends that it was error to have required his two witnesses Meeks and Fleming to remain shackled during the trial. He argues that he was thereby denied a fair trial. At trial, defendant's counsel objected to the shackles on Meeks and Fleming, but the trial court without comment, overruled the objection. Defendant correctly points out that an accused has the right to appear before the jury free of shackles unless good reason, based on his misconduct or exceptional circumstances, dictate that restraints are needed. State v. Wendel, 532 S.W.2d 838 (Mo.App.1975); State v. Kirksey, 528 S.W.2d...