State v. Joos, 21625

• Decision Date: 01 April 1998
• Docket Number: No. 21625,21625
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert JOOS, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 349

966 S.W.2d 349

STATE of Missouri, Plaintiff-Respondent, v. Robert JOOS, Defendant-Appellant.

No. 21625.

Missouri Court of Appeals,

Southern District,

Division Two.

April 1, 1998.

Rosemary E. Percival, Asst. Appellate Defender, Kansas City, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel W. Follett, Asst. Atty. Gen., Jefferson City, for Respondent.

Before PARRISH, P.J., and SHRUM, J., and MONTGOMERY, C.J.

PER CURIAM.

Robert Joos (defendant) was convicted, following a jury trial, of unlawful use of a weapon, § 571.030.1(1), ¹ a class D felony (Count I), and resisting arrest, § 575.150, RSMo 1986, a class A misdemeanor (Count II). This court affirms.

On the morning of June 29, 1994, members of the Missouri State Highway Patrol went to defendant's property in Newton County, Missouri, to arrest him on an outstanding warrant for an offense unrelated to the convictions that are the subject of this appeal. Two officers entered defendant's property. They positioned themselves at a location where they could see defendant's residence, but where defendant could not see them if he came outside his residence. Two other officers positioned their patrol cars on a county road outside defendant's driveway. The officers planned to arrest defendant when he exited his property. Defendant's residence was about .6 of a mile off the county road. His driveway ran from the residence to the county road.

The officers who were watching defendant's residence, Sgt. Miles Parks and Sgt. Michael Rogers, saw defendant drive away in a blue Chevrolet van. They contacted the other officers by radio and advised them defendant was coming toward them. Sgt. Parks and Sgt. Rogers followed defendant, on foot, down the driveway.

The officers who were waiting at the county road, Sgt. Steven Dorsey and Cpl. Bob Harper, had positioned their patrol cars on the county road on different sides of defendant's driveway. When defendant's van reached the county road, it turned toward Cpl. Harper's patrol car. Sgt. Dorsey proceeded toward Cpl. Harper's location. As he headed in the direction of Cpl. Harper's car, he saw defendant's van traveling backward toward him. Sgt. Dorsey blocked the road with his patrol car and activated the emergency lights on his vehicle. Sgt. Dorsey and Cpl. Harper got out of their vehicles. The officers were wearing patrol uniforms. Sgt. Dorsey told defendant he was under arrest.

Defendant shouted at the officers and attempted to move his van. Both officers drew their weapons. Sgt. Dorsey approached the van. When he got to it he holstered his weapon and reached inside the van in an attempt to disable it. Defendant was screaming and reaching between the front seats.

Defendant reversed directions several times while Sgt. Dorsey was hanging onto the side of the van until the van became stuck on a pile of gravel alongside the roadway. Cpl. Harper managed to turn off the ignition switch. Defendant refused to get out of the van. When defendant continued to refuse to exit the vehicle, Cpl. Harper sprayed him with mace. Defendant let go of the steering wheel. The officers pulled him from the van. He was subdued and handcuffed and taken to the McDonald County Jail.

Sgt. Parks drove defendant's van to the McDonald County Sheriff's Department where he conducted an inventory search of it. Sgt. Parks found a loaded .32 caliber revolver in a sack between the two front seats.

Defendant's first point on appeal asserts the trial court erred in not dismissing the charges against defendant because he was denied a speedy trial. Defendant was arrested June 29, 1994. On July 6, 1994, he filed a pro se pleading requesting, inter alia, "a quick and speedy trial." He filed numerous other pro se notices and demands while his case was pending. Many included "speedy trial" requests.

Defendant did not seek representation by an attorney until August 1996. Counsel was appointed August 28, 1996. On September 12, 1996, defendant sought to remove his appointed counsel. A public defender entered her appearance September 25, 1996. On March 24, 1997, she filed a motion to dismiss that included the claim that the state violated defendant's right to a speedy trial. Defendant's trial was held March 26 and 27, 1997.

Section 545.780, RSMo 1994, provides:

1. If defendant announces that he is ready for trial and files a request for a speedy trial, then the court shall set the case for trial as soon as reasonably possible thereafter.

2. The provisions of this section shall be enforceable by mandamus. Neither the failure to comply with this section nor the state's failure to prosecute shall be grounds for the dismissal of the indictment or information unless the court also finds that the defendant has been denied his constitutional right to a speedy trial.

A defendant's constitutional right to a speedy trial is established by the Sixth Amendment of the U.S. Constitution. State v. Davis, 903 S.W.2d 930, 936 (Mo.App.1995). The determination of whether a defendant in a criminal case was denied his or her right to a speedy trial as guaranteed by the Sixth Amendment is made by applying the analysis set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972). State v. Bolin, 643 S.W.2d 806, 813 (Mo. banc 1983).

Four factors are balanced to ascertain if a defendant was denied the right to a speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of the right to speedy trial; and (4) prejudice to the defendant. State v. Davis, supra.

Factors 2, 3 and 4 are not reviewed unless there is a finding that the length of the delay was presumptively prejudicial. State v. Bohannon, 793 S.W.2d 497, 503 (Mo.App.1990). Delays of eight months or more are presumptively prejudicial. State v. Farris, 877 S.W.2d 657, 660 (Mo.App.1994). In determining the length of delay, any delays attributable to the defendant are subtracted from the total delay between the time of trial and the time a defendant was formally charged or actual restraints were imposed by arrest and being held to answer criminal charges. State v. Fleer, 851 S.W.2d 582, 596 (Mo.App.1993).

Defendant contributed to the total delay in various ways. Regardless, even if credit is given for all delays attributable to him, he was incarcerated in excess of the presumptively prejudicial time of eight months.

The state had the responsibility to bring defendant to trial. State v. Davis, supra; State v. Bohannon, supra, at 504. Excuses suggested by the state for its failure to more quickly bring defendant to trial are not persuasive. The length of the delay and the reasons for it weigh against the state.

The requirement in § 545.780, RSMo 1994, for a defendant to request a speedy trial was met. Defendant made various requests for a speedy trial, the first being made within a week of his arrest. He timely asserted his right to a speedy trial.

The determinative factor, however, is whether defendant suffered actual prejudice from the delay and, if so, its effect. Davis, 903 S.W.2d at 937. Defendant argues that he was prejudiced due to the time that expired between his arrest and trial because he served more jail time than he would have served if there had been an earlier trial; that two defense witnesses died prior to his trial; that he suffered lengthy and severe pretrial anxiety.

Defendant was confined 33 months. He was sentenced to confinement for a term of 33 months on Count I and confinement for a term of one year on Count II. The sentences were ordered to be served concurrently. Defendant was given credit for time served.

The ranges of punishment for the offenses for which defendant was found guilty were five years for the class D felony of unlawful use of a weapon (Count I) and one year for the class A misdemeanor of resisting arrest (Count II). §§ 558.011.1(4) and (5). The trial court could have ordered that the sentences be served consecutively. § 558.026.1, RSMo 1986. The record does not support defendant's claim that he served additional jail time because of the delay in bringing him to trial.

Defendant contends that two witnesses who died between the time he was arrested and tried would have testified he was proceeding peaceably to Arkansas the day he was arrested. A witness who testified for defendant at trial, Carol Covey, testified that she was to meet defendant in Arkansas the morning he was arrested to buy groceries.

The testimony defendant asserts the two deceased witnesses would have provided would have been repetitious of Ms. Covey's testimony. Prejudice does not necessarily result from the unavailability of a witness whose testimony would have been cumulative of testimony presented at trial. State v. Loewe, 756 S.W.2d 177, 183 (Mo.App.1988). Defendant has not demonstrated prejudice due to unavailability of the deceased witnesses.

Defendant's claim that he suffered anxiety and weight loss awaiting trial likewise fails to entitle him to a reversal of the judgment of conviction. Anxiety alone does not establish prejudice absent the showing of specific instances that weighed heavily on the defendant. State v. Fleer, supra, at 597. The record reveals no specific instances of inordinate anxiety on his part. Defendant failed to demonstrate actual prejudice as a result of the delay in the trial of his case.

In addition to defendant's claim that his Sixth Amendment right to a speedy trial was violated, he contends the delay denied him due process of law as guaranteed by the Fifth Amendment to the U.S. Constitution. That claim also fails. More stringent proof of prejudice is required to show denial of the Fifth Amendment right to due process by reason of delay than is required to show denial of the Sixth Amendment right to a speedy trial. State v. Allen, 641 S.W.2d 471, 475 (Mo.App.1982). Point I is denied.

Point II asserts the trial court erred by allowing the state to present testimony and argument that defend...