State v. McMillon
| Decision Date | 26 April 2022 |
| Docket Number | WD 84257 |
| Citation | 644 S.W.3d 281 |
| Parties | STATE of Missouri, Respondent, v. Eric V. MCMILLON, Appellant. |
| Court | Missouri Court of Appeals |
Zeb Charlton, Jefferson City, MO, Counsel for Respondent.
Annette M. Wallace, Kansas City, MO, Counsel for Appellant.
Before Division Three: Anthony Rex Gabbert, Presiding Judge, Lisa White Hardwick, Judge, Thomas N. Chapman, Judge
Eric V. McMillon appeals the circuit court's judgment, entered on a jury verdict, convicting him of one count of Statutory Rape in the First Degree, Section 566.032,1 and one count of Statutory Sodomy in the First Degree, Section 566.062. On appeal, McMillon contends that the circuit court erred in changing the venue of his trial from western Jackson County to eastern Jackson County, thereby denying him the right to be tried in the proper venue and violating his rights to a fair trial and due process of law under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and article I, sections 10, 18(a), 19 and 22(a) of the Missouri Constitution. He argues that the court had no statutory authority under Section 478.461 to change the venue of the trial, as there was no agreement of the parties to transfer the case from the western portion of Jackson County to the eastern portion of Jackson County, and the transfer did not occur because there was a disproportionate number of cases in the western portion. We affirm.
McMillon was indicted by a grand jury on one count of rape in the first degree under Section 566.030, for allegedly having sexual intercourse with a child less than twelve years of age between July 1, 2014, and March 11, 2017. He was additionally indicted on one count of sodomy in the first degree under Section 566.060, for allegedly having deviate sexual intercourse with a child less than twelve years of age between July 1, 2014, and March 11, 2017.
McMillon's case was assigned to Division 18 in Kansas City on July 23, 2018; his trial was scheduled for January 7, 2019. On December 20, 2018, McMillon requested a continuance and his trial was rescheduled for July 8, 2019. On June 27, 2019, the parties appeared for a pre-trial conference, at which time McMillon requested a continuance. Trial was rescheduled for March 30, 2020, with a notation that there would be no further continuances. McMillon's trial did not occur on March 30, 2020, due to a Missouri Supreme Court order suspending all pending jury trials in light of the COVID-19 pandemic. Supreme Court of Missouri en banc, In re: Response to the Coronavirus Disease (COVID-19) Pandemic (March 16, 2020). McMillon's trial was moved to October 5, 2020.
A pre-trial conference was held September 24, 2020. The judge informed the parties that McMillon's case had the highest priority of the cases the judge had set for October 5, 2020. This was in part due to there being an alleged child victim. The court took up various pre-trial motions at that time. On September 25, 2020, jury trials were suspended at the Western Jackson County Courthouse in Kansas City due to specific circumstances arising within that courthouse related to COVID-19. Circuit Court of Jackson County, Missouri, In Re: Updated Court Operations under Supreme Court Operational Directives – Effective September 25, 2020. The order expressly stated that it pertained only to court operations at the Kansas City Courthouse, and that jury trials would continue in the Eastern Jackson County Courthouse in Independence, Missouri. Id. The record reflects that, in response to the closing of the Western Jackson County Courthouse, the court was entertaining the idea of holding McMillon's trial at the Eastern Jackson County Courthouse.
On October 4, 2020, McMillon filed a "Motion in Opposition to Change of Venue" wherein he asked that the court "deny the transfer of the above styled cause of action from the Western portion of Jackson County to Independence." McMillon argued that "venue is determined solely by statute," specifically Section 478.461 with regard to Jackson County, and that "there is no statutory basis for a change of venue." McMillon argued that the statute treats eastern and western Jackson County like two separate counties, and the statute did not authorize moving McMillon's trial to eastern Jackson County. McMillon further argued that Rule 32 of the Sixteenth Judicial Circuit barred the presiding judge from transferring a case between divisions more than ten days after the initial plea was entered.
The State challenged McMillon's motion and argued that there was no true transfer of venue, just a change of facilities. In response to McMillon suggesting that he would be subject to a different pool of jurors, the State argued that jurors in Jackson County are all pulled from voter registration rolls, and then sent either to the eastern portion of the county or the western, and the pool was not based on where the jurors live within the county. Hence, the jurors would be drawn from the same pool regardless of the location of the trial. The State argued that presiding judges have the administrative authority to make a facility change in order to facilitate a trial, both statutorily and through recent Supreme Court orders issued due to the COVID-19 pandemic. The State indicated that Section 491.710 requires criminal cases involving child witnesses to be given docket priority, and McMillon's case had been pending for three and a half years.
On October 5, 2020, McMillon was in COVID-19 related quarantine and was not scheduled to be released from quarantine until October 7, 2020. The parties, nevertheless, appeared before the court and argued their positions regarding moving trial to the Eastern Jackson County Courthouse. The court discussed with the parties that jury selection could begin on October 6, 2020, if the trial was held at the Eastern Jackson County Courthouse. McMillon declined to waive his presence for jury selection, and believed that his appearance over video for jury selection would be prejudicial. The court stated that it would table the motions regarding moving the trial to the Eastern Jackson County Courthouse as it anticipated the Western Jackson County Courthouse would reopen soon. McMillon's trial was rescheduled for November 2, 2020.
On October 22, 2020, the parties met for a pretrial conference. At that time, the court noted that, the day prior, there had been another confirmed COVID-19 case at the Western Jackson County Courthouse. However, McMillon's trial remained scheduled for November 2, 2020.
On October 29, 2020, the trial judge initially granted McMillon's "Motion in Opposition to Change of Venue," but rescinded the order when, on that same date, the presiding judge of the 16th Judicial Circuit ordered the case to proceed to trial at the Eastern Jackson County Courthouse. The order noted that the presiding judge had general administrative authority over all dockets and cases within the circuit pursuant to Local Court Rule 100. The order cited Section 478.240.2 and "Administrative Orders 2020-166 & 2020-179" in additional support. The order clarified that "the above captioned case is not being transferred to another division," but that even if it were, Section 478.461 grants the presiding judge authority to transfer cases from one division to another due to a disproportionate number of cases pending in one location or another. The order stated that there were a disproportionate number of cases pending at the Western Jackson County Courthouse that could not be tried due to the closing of the courthouse for COVID-19 related reasons, but trials could proceed at the Eastern Jackson County Courthouse. The order concluded that, "Based on the overall circuit prioritization of cases for trial next week, the above captioned case is the highest prioritized case." The judge noted that McMillon was arraigned in July 2018, and had been in pre-trial detention for over 900 days. The judge ordered the case to proceed to trial at the Eastern Jackson County Courthouse and that the judge who had been presiding over the matter at the Western Jackson County Courthouse would be assigned to the Eastern Jackson County Courthouse for the trial.
Trial was held November 2-6, 2020, at the Eastern Jackson County Courthouse. Prior to trial, McMillon renewed his objection to the case being heard there. McMillon argued that the statute separating the county into two portions requires that each portion be treated as a separate county and the formalities for transferring must then be followed. As those formalities had not been followed, there was no basis for the transfer absent an agreement.
On November 6, 2020, the jury found McMillon guilty, as charged, of one count of Statutory Rape in the First Degree and one count of Statutory Sodomy in the First Degree. On December 1, 2020, McMillon filed a "Motion for Judgment of Acquittal or, in the Alternative, for a New Trial." Therein he argued, among other things, that the court erred in moving his case from the Western Jackson County Courthouse to the Eastern Jackson County Courthouse which resulted in "improper jurisdictional venue" because the court had no statutory grounds to move the case. The court denied the motion and on December 18, 2020, McMillon was sentenced to consecutive life sentences on each count.
This appeal follows.
"To the extent that a court bases its venue ruling on factual matters and inferences, this court reviews the trial court's ruling under an abuse of discretion standard." McCoy v. The Hershewe Law Firm, P.C. , 366 S.W.3d 586, 592 (Mo. App. 2012). "To the extent to which the venue decision is governed by the interpretation of a statute, the ruling is a question of law, and accordingly this court reviews the ruling to determine whether the trial court misinterpreted or misapplied the law." Id.
In McMillon's sole point on appeal, he contends that...
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