State v. Maynard, WD
| Citation | 714 S.W.2d 552 |
| Decision Date | 29 April 1986 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. James E. MAYNARD, Appellant. 36556. |
| Court | Court of Appeal of Missouri (US) |
David Fry, Asst. Public Defender, Kansas City, for appellant.
Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before CLARK, C.J., and SHANGLER and KENNEDY, JJ.
James E. Maynard was convicted by a jury of forcible rape, first degree burglary and armed criminal action. On this appeal, he raises six points of trial error, two of which question the sufficiency of the state's evidence. The facts of the case must therefore be briefly stated.
On August 2, 1983, at approximately 4:00 a.m., the female victim was awakened by the presence of a man in her apartment armed with a knife and standing by her bed. Entry had been gained by removing security bars and a ventilating fan from a living room window. The assailant held a knife to the victim's neck and forced her to engage in multiple acts of intercourse. Following the assault, the intruder took the victim's purse and left.
On August 4, 1983, Maynard was arrested on a sexual offense charge unrelated to the present case. At the time, appellant was living in the home of friends, Kenneth and Cheryl Smith. Some three weeks after Maynard's arrest and while the investigation and presentation against him of charges in the other case were in process, the Smiths discovered and delivered to the police a purse identified as the property of the victim in this case. They stated it had been found under a couch in the Smith apartment where Maynard slept. They also reported that on August 3, 1983, Maynard, who was unemployed, had displayed a substantial quantity of money which he said was given him by his mother or grandmother. With this evidence, the police arranged a lineup in which the victim in this case identified Maynard as the person who had entered her apartment and committed the assault. Maynard was thereafter charged with the offenses in this case.
On the foregoing evidence and the in-court identification of Maynard by the victim, the jury returned verdicts of conviction on the three counts charged. The trial court imposed consecutive sentences of life, 40 years and 15 years after finding Maynard to be a prior offender under § 558.016, RSMo.Cum.Supp.1984.
In his first point, Maynard contends the trial court erred in overruling his motion for dismissal based on denial of a speedy trial. He says that the time which elapsed between the date of arraignment, November 7, 1983, and the date of trial, September 11, 1984, exceeded the permissible time under § 545.780, RSMo. 1978 (now repealed).
The issue of speedy trial was first raised by appellant in an oral motion presented on the first day of trial. At that time, the statute on which the motion was based was no longer in effect, having been repealed some three months earlier. Section 545.780, RSMo.Cum.Supp.1984, effective June 7, 1984. In State v. Allen, 669 S.W.2d 569, 570 (Mo.App.1984), it was held that failure of the defendant to move for dismissal under § 545.780, RSMo.1978 prior to trial constituted a waiver of the rights to dismissal under the statute. It would also seem to follow that a failure to raise the statute as a basis for dismissal until after the statute had been repealed would, pro tanto, constitute a waiver of its provisions.
Appellant recognizes this deficiency in his position but argues that a denial to him of the protection of the statute in effect when the subject crimes were committed would amount to the unconstitutional imposition of an ex post facto law. If it be assumed for the sake of the point that appellant had cause for dismissal of the charges against him because a speedy trial was not provided and that such cause ripened before the then existing statute was repealed, there is yet no ex post facto violation under the facts here. In order for a law to be deemed ex post facto, it must either denounce acts as criminal which did not constitute crimes when they were committed or, it must enlarge the penalty for crimes after the date of the violation. State v. Davis, 645 S.W.2d 160 (Mo.App.1982). The repeal of the former "Speedy Trial Act" effective in June, 1984 did neither in appellant's case. The statute did not affect the substantive elements of a criminal offense or alter the penalties. It was merely a procedural enactment which was subject to amendment or repeal without ex post facto consequence.
Despite the foregoing, however, Maynard did not show himself entitled to relief under the former § 545.780, RSMo. 1978 even had the statute remained in effect through the date of trial. If a defendant seeks to obtain the remedy of dismissal under the statute which previously set the arbitrary limit of 180 days, he has the burden of showing not only the passage of more than 180 days but the further burden of showing that the failure to bring him to trial within that time was "occasioned" by the state. State v. Franco, 625 S.W.2d 596, 601 (Mo.1981). In this case, the appellant's attorney merely asserted that the passage of more than 180 days since arraignment entitled Maynard to dismissal. No showing whatever was made as to the reasons for the delay. In fact, the trial judge appropriately observed that the delays were the result of repeated continuance requests by appellant. Examination of the record in the case confirms the accuracy of the statement. The court correctly denied the dismissal motion.
In his second point, appellant challenges the finding of prior offender status and the imposition of sentence by the court under § 558.016, RSMo.Cum.Supp.1984. The state had charged Maynard as a prior offender by amended information and in support of that charge introduced the following proof at trial. A certified copy of sentence and judgment from the circuit court of Boone County was offered showing that Jim Maynard had been convicted of first degree robbery in December, 1976. The records from the Missouri Division of Corrections were also produced showing the admission of Jim Maynard into custody under a sentence of robbery from Boone County. Those records included a photograph of Jim Maynard, a detailed physical description and the date of birth. Appellant contends the evidence was insufficient to prove that he and Jim Maynard were one and the same person.
It is true that when the name which appears in a prior conviction record is at variance with the name of the defendant on trial, some additional evidence is generally required to prove the identity of the defendant on trial with the person previously convicted. Ballard v. State, 615 S.W.2d 589, 592 (Mo.App.1981). Although the difference between Jim and James was probably not significant in this case so as to require additional proof of common identity, the state did offer sufficient proof. The birthdays of "Jim" and "James" were the same and the physical characteristics were also the same. In addition, the trial court had before it a photograph of Jim Maynard which was compared by the court with the actual appearance of appellant in the courtroom. This evidence was ample basis to support the finding by the court that appellant was the prior offender, Jim Maynard, who had been convicted and sentenced from Boone County.
Appellant's third point, in a somewhat involved proposition, argues that his motions to suppress the victim's identification of her assailant should have been sustained. An understanding of the sequence of events leading to the charge filed against Maynard for this crime is necessary to understand the claim of error. As noted at the outset of this opinion, Maynard was taken into custody on August 4, 1983, two days after the crime charged in this case was committed. That arrest, however, was for another crime charged in an information filed August 19, 1983. Counsel was appointed for Maynard in that case August 22, 1983.
Suspicion first centered on appellant as the perpetrator of the rape charged in this case when, on August 27, 1983, the victim's purse was delivered to the police by Smith, the person at whose home Maynard had resided. The police then arranged a videotaped lineup which Maynard participated September 19, 1983. The videotape was viewed by the victim two days later, she identified Maynard and on November 7, 1983, the information in this case was filed. At the time of the videotape lineup, appellant was represented by appointed counsel in the earlier and unrelated charge filed against him August 19, 1983. The gist of appellant's point with regard to the lineup identification in this case is that his Sixth Amendment right to counsel was violated when the lineup was conducted without the presence of the attorney who represented him in the previously charged crime.
As to the subject offense and prosecution, the lineup conducted September 19, 1983 was not a critical stage of the prosecution at which presence of counsel was constitutionally required because it was held prior to commencement of formal prosecution. State v. Quinn, 594 S.W.2d 599, 604 (Mo. banc 1980). Maynard asserts, however, that his pending charge in the case filed August 19 was sufficient to trigger his right to counsel in the present case, first because both cases involved charges of rape and they were therefore related and, second because the state knew of counsel's representation of Maynard in the first case but intentionally excluded him from participation in the September 19 lineup.
There is no factual basis for appellant's assumption the two rape prosecutions were related. The rapes occurred at different times and in different places and there was no attempt by the state to advance a prosecution theory of a common scheme or plan. The record also discloses no reference in the prosecution of this case to any other rape...
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