State v. Loewe

• Decision Date: 21 June 1988
• Docket Number: No. 53258,53258
• Citation: 756 S.W.2d 177
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Charles M. LOEWE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 177

756 S.W.2d 177

STATE of Missouri, Plaintiff-Respondent, v. Charles M. LOEWE, Defendant-Appellant.

No. 53258.

Missouri Court of Appeals,

Eastern District,

Division Two.

June 21, 1988.

Rehearing Denied Aug. 3, 1988.

Robert H. Rice, Belleville, Ill., for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

STEPHAN, Presiding Judge.

This is an appeal from defendant's conviction on two counts of assault in the first degree for which he was sentenced to twenty-five years on each count. The sentences are to run consecutively to each other and to a thirty-six year sentence defendant received in federal court on racketeering charges.

Defendant was originally charged by indictment with co-defendants Paul Leisure, Anthony Leisure, David Leisure, Ronald "Joe" Broderick, John Ramo and Fred Prater on November 10, 1983. They were charged with two counts of capital murder (for the murders of James Anthony Michaels, Sr. and George "Sonny" Faheen), two counts of first degree assault (for the shooting of Charles John Michaels and Dennis Day) and two counts of armed criminal action. In May 1985 the state filed a new indictment, dropping the two counts of armed criminal action. Finally, on December 17, 1986, the charges against defendant were severed. This appeal, therefore, addresses only the assault convictions.

The sufficiency of the evidence to sustain defendant's conviction is not in dispute. We, therefore, present only the most important facts in a light most favorable to the verdict.

Anthony, Paul and David Leisure and Fred Prater were partners in a business called LN & P Towing. Defendant and John Ramo worked for LN & P Towing as truck dispatchers, and Joe Broderick was associated with the group.

On August 11, 1981, Paul Leisure was seriously injured when his car exploded on Nottingham and Kingshighway in the City of St. Louis. While he was still recuperating in the hospital, the Leisures, defendant, John Ramo, Joe Broderick and Fred Prater attempted to identify who might have been responsible for the bombing. One group under suspicion, and ultimately held to be responsible, was the Michaels family. They were suspected because Paul Leisure had been responsible for the bombing death of James Anthony Michaels, Sr., the year before.

In order to avenge Paul Leisure's injury, defendant and David Leisure began watching the movements of Charles John Michaels. They determined that Michaels worked at Anheuser-Busch and that he ate lunch at The Edge restaurant on a regular basis. It was decided that the restaurant would be the best place to ambush Michaels because there was an abandoned building next to the parking lot that they could use.

On September 11, 1981, defendant, Anthony Leisure, David Leisure and Joe Broderick met at defendant's home. Defendant drove the Leisures to The Edge in a stolen white van. Broderick followed in a white Chevrolet and waited near a large wall on nearby Hickory Street. The group had previously chosen the area as the place to switch vehicles after the shooting.

At approximately 11:00 a.m. Michaels and Dennis Day arrived at the restaurant. As they exited their car the shooting began. Both Michaels and Day were hit by gunfire. Two restaurant employees saw the van parked in the alley entrance. They also saw a heavyset person with a moustache in the driver's seat, but neither was able to positively identify defendant.

Later, Anthony Leisure told Fred Prater that he might be identified because the bus boys had seen him in the alley. Prater told defendant about this comment and defendant responded, "What are they worried about," because "They had me sitting there with no mask at all, driving that van."

Defendant was arrested on November 8, 1983. He was brought to trial on April 28, 1987 for the assaults on Michaels and Day. After hearing all the evidence, the jury found defendant guilty on both charges.

Defendant raises three points on appeal. The first is that the trial court erred in not dismissing the charges because defendant's right to a speedy trial under both the Missouri statute, § 545.780, RSMo 1978 (which was in effect at the time of his arraignment in November, 1983), and the federal constitution was violated. Secondly, the conviction should be reversed because the prosecutor denied defendant his right to be tried only for the offense for which he was indicted by: (1) bringing out evidence of other crimes; (2) introducing evidence about Paul Leisure's activities; (3) using defendant's federal convictions as substantive evidence to attack defendant's character when defendant's character was not at issue; and (4) by improperly creating the inference that defendant's attorney was attempting to deceive the jury. Lastly, defendant asserts that the trial judge abused his discretion in sentencing defendant to consecutive terms, after the judge participated in plea discussions.

I

Defendant's first point asserts that the trial court should have dismissed the charges because he was denied his right to a speedy trial. Defendant did not preserve this point by raising it in his motion for new trial. In order to appeal constitutional questions, the grounds must be asserted at the first opportunity and must be preserved in the motion for new trial. State v. Wright, 551 S.W.2d 884, 886 (Mo.App.1977). This court does, however, have discretion to review the point for plain error. Sup.Ct.Rule 30.20.

Plain error is invoked sparingly and is applied in those cases only "where there is a stong, clear showing of manifest injustice or a miscarriage of justice." State v. Hubbard, 659 S.W.2d 551, 555-556 (Mo.App.1983). Whether or not plain error is present is determined by the facts of the individual case. State v. Valentine, 646 S.W.2d 729, 731 (Mo.1983). It is the defendant's burden to prove the alleged error constitutes manifest injustice. Hubbard, 659 S.W.2d at 556. If guilt is established by overwhelming evidence, then there is no injustice in refusing to invoke the rule. State v. McKinley, 689 S.W.2d 628, 632 (Mo.App.1984); Hubbard, 659 S.W.2d at 556.

We review the point ex gratia; but, in order to do so, it is necessary to present the procedural history of this case.

Defendant was arrested November 8, 1983 and was arraigned on November 18, 1983. The case was continued by the state for "want of time to try" on December 15, 1983, January 26, 1984 and February 23, 1984. On April 24, 1984 the state filed notice of its intent to use intercepted wire and oral communications at trial. Defendant had moved to suppress this evidence in federal court, so the case was continued until such time as there was a ruling on the admissibility of the evidence in federal court.

Defendant moved to dismiss the indictment on May 30, 1984 alleging: that more than 180 days had passed since the arraignment, defendant had been in continuous custody, and all delays had been occasioned by the state. This motion was denied on June 28, 1984. On August 28, 1984, the United States Magistrate filed his Report and Recommendation regarding the federal motion to suppress. He determined that the evidence was admissible. Defendant requested a speedy trial on September 24, 1984 and filed a second motion to dismiss which was denied.

The state continued the trial on January 29, 1985 because the defendant was then on trial in federal court. In May 1985 the state filed a new indictment. Defendant was arraigned under the new indictment on June 12, 1985.

On July 2, 1985, the Circuit Attorney's office filed a memorandum of nolle prosequi because a superseding indictment had been filed. Defendant filed his third motion to dismiss the indictment and another request for a speedy trial. The trial judge, before whom the case was then pending, denied these motions on July 30, 1986, stating in his order, "court is mindful of the complexity of this case, the multiple parties, issues and evidence, and the dual prosecution of defendant in Federal and State jurisdictions. Court finds trial delays not to be excessive under all circumstances nor occasioned by the State."

On August 11, 1986 defendant adopted all motions filed by all co-defendants, except for those requesting a continuance. Defendant moved for and obtained a change of judge on April 27, 1987. Trial commenced on April 28, 1987.

Defendant suggests that the former Speedy Trial Act, § 545.780, RSMo 1978 (Repealed June 7, 1984), should apply because it was in effect at the time defendant was arraigned. The state argues that the statute is procedural, therefore, the one in effect at the time of defendant's trial, § 545.780, RSMo 1986, should apply.

The Speedy Trial Act is a procedural law. State v. Maynard, 714 S.W.2d 552, 554 (Mo.App.1986); State v. Diener, 706 S.W.2d 582, 584 (Mo.App.1986). It is, therefore, subject to repeal or revision without any ex post facto consequences. Maynard, 714 S.W.2d at 554.

The statute which we apply, § 545.780, RSMo 1986, reads as follows:

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.

This section specifically incorporates defendant's constitutional right to a speedy trial in its application by providing that noncompliance is not grounds for dismissal unless the court determines that the defendant was also denied his constitutional right. § 545.780.2 RSMo 1986.

The right to a speedy trial guarantees to a criminal defendant that the state will move fast enough to assure the defendant of the early and...