State v. Menteer

• Decision Date: 24 November 1992
• Docket Number: Nos. 57537,61036,60940,s. 57537
• Citation: State v. Menteer, 845 S.W.2d 581 (Mo. App. 1992)
• Parties: STATE of Missouri, Respondent, v. Dennis P. MENTEER, Appellant. Dennis MENTEER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 581

845 S.W.2d 581

STATE of Missouri, Respondent, v. Dennis P. MENTEER, Appellant.

Dennis MENTEER, Appellant, v. STATE of Missouri, Respondent.

Nos. 57537, 60940, 61036.

Missouri Court of Appeals,

Eastern District,

Northern Division.

Nov. 24, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

Jan. 7, 1993.

Application to Transfer Denied Feb. 23, 1993.

Charles E. Bridges, St. Charles, for appellant.

William L. Webster, Atty. Gen., Rudolph R. Rhodes IV, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Judge.

Appellant, Dennis Menteer, was convicted by a jury of Robbery in the First Degree, § 569.020 R.S.Mo.1986, and sentenced to life imprisonment. (All further statutory references shall be to R.S.Mo.1986 unless otherwise noted.) On appeal, he asserts error in the trial court's failure to: (1) remand the case to the associate division of the circuit court for a preliminary hearing; (2) grant a request for continuance based on counsel's inability to have meaningful contact with appellant before trial; and, (3) grant appellant's request for continuance based on the state's late endorsement of two alibi rebuttal witnesses. Further, he contends that he was prejudiced by the state's failure to reveal a plea bargain with the state's witness, Gerald Quesenberry, wherein the state would recommend a suspended execution of sentence and probation in return for Quesenberry's testimony. We affirm.

The sufficiency of the evidence is not in dispute. Viewed in a light most favorable to the verdict, the evidence reveals that on May 31, 1988, Gerald Quesenberry sought to borrow twenty dollars from appellant. Appellant responded that he knew where they could get some money and that he would tell Quesenberry about it later that night. Later, while riding in appellant's car, appellant suggested to Quesenberry that they rob a gas station. Around 10:00 p.m., they rode in appellant's car to a site near a gas station in Lincoln County, Missouri. Appellant gave Quesenberry a gun and told him to go in, point it at the attendant, and demand money. Appellant waited in the car, which was parked in a nearby trailer park, while Quesenberry, after walking to the gas station and back at least once, finally executed the plan and robbed the gas station. The attendant, with Quesenberry holding her at gunpoint, put the money from the cash register in a brown paper bag. Quesenberry took the bag and ran to appellant's car, and appellant then drove to appellant's trailer to divide their ill-gotten gains. After they split the money, they went to the trailer where Quesenberry was living, arriving around 1:30 or 2:00 a.m.. Some other people were there, and Quesenberry had one of them cut his hair. Approximately two weeks later, when questioned by the police, Quesenberry denied any participation in the robbery and denied being with appellant the night of the robbery. Quesenberry was subsequently arrested for armed robbery, and gave a statement implicating himself and appellant in the robbery. Quesenberry testified as a state's witness at appellant's preliminary hearing and trial.

Appellant's first point is that the trial court erred in not remanding the cause to the associate division for another preliminary hearing because at the first preliminary hearing the state's sole witness, Quesenberry, invoked his fifth amendment privilege against self-incrimination and refused to answer incriminating questions on cross-examination. Appellant asserts that the witness' refusal to answer questions deprived him of his rights to (1) a preliminary hearing under § 544.250, (2) cross-examination of witnesses under Rule 22.07(c) and the federal and Missouri constitutions, (3) due process, and (4) assistance of counsel. Appellant claims that the witness' refusal to answer questions requires that the testimony be stricken, and that if it had been properly stricken there would have been no probable cause to find that appellant had committed a crime since this witness' testimony was the only evidence presented at the hearing.

The record of the preliminary hearing reveals that on direct examination Quesenberry testified that he was a witness to a robbery of a gas station involving the use of a gun. He testified to the extent of appellant's planning and participation in the robbery, stating that he and appellant had discussions prior to the robbery about how it would be done and that appellant explained how to go in, point a pistol at the attendant and demand the money. He also testified that appellant waited in the car and shared in the proceeds of the robbery.

On cross-examination, Quesenberry again testified as to the date and time of the robbery. When asked, however, whether it was he who actually went in with the gun, and what clothes he was wearing when he robbed the station, he asserted his fifth amendment privilege and refused to answer. After counsel's motions to have the testimony stricken were denied, no further questions were asked and no further evidence was adduced. The associate circuit judge then found probable cause to bind appellant over for trial.

Before an information charging a defendant with a felony may be filed, § 544.250 requires that a preliminary hearing be conducted to determine if probable cause to charge the defendant exists. State v. Turner, 353 S.W.2d 602, 604[3, 4] (Mo.1962). However, "[a] preliminary examination is in no sense a trial and does not finally adjudicate the guilt or innocence of an accused. It is simply a means to prevent abuse of power by the prosecution, while at the same time to permit arrest and detention of an accused by means of a limited inquiry into whether there is probable cause that a felony was committed and that the accused was the offender." Nero v. State, 579 S.W.2d 638, 639[2, 3] (Mo.App.1979).

Here, the evidence adduced by the state, in the form of the testimony of Quesenberry, was sufficient for a finding of probable cause that a robbery had been committed and that appellant was a participant in its commission. Here, the issue is whether the hearing court's allowance of Quesenberry to assert his fifth amendment privilege to defense counsel's cross-examination questions denied appellant his rights.

First, a defendant's substantive rights are not affected by a preliminary hearing, and such a hearing is not even a part of the constitutional right to due process. State v. Blackmon, 664 S.W.2d 644, 649[13-16] (Mo.App.1984). Secondly, a state witness' invocation of his fifth-amendment right against self-incrimination during cross-examination does not per se violate a defendant's right to confront the witnesses against him and require striking of that testimony. State v. Blair, 638 S.W.2d 739, 754[17-20] (Mo. banc 1982). Here, defense counsel had the opportunity to confront the witness about his testimony regarding appellant's participation in the robbery, but chose instead to try and get the witness to incriminate himself regarding his own participation. Such a line of inquiry is not pertinent as to whether there was probable cause to charge appellant for his actions in the commission of the crime. These questions are relevant to the witness' credibility, a collateral matter, and would not require striking the testimony. Id. We recognize that "courts must be acutely aware of a defendant's right to confront and cross-examine prosecution witnesses and to not permit that right to be diminished by recalcitrant witnesses who give damaging testimony on direct and then refuse to answer questions on cross which are closely related to the commission of the crime because those rights are constitutionally protected." Id. (Emphasis in original.) Here, the preliminary hearing and, therefore, the witness' testimony, were in regard to appellant's participation in the robbery, i.e., planning a robbery and participating in it, and then dividing and sharing in the loot. The issue of the identity of the person who actually went in the gas station and held the gun on the attendant is not required to establish probable cause to charge appellant for his participation in the robbery.

In view of the purpose of a preliminary hearing under § 544.250, and the nature of the testimony elicited at the hearing, we find no error on the part of the trial court in denying appellant's motion for the court to remand to the associate division for another preliminary hearing. Point denied.

Appellant's next two points assert error on the part of the trial court in denying his two requests for continuance based on (1) his inability to adequately consult with counsel and prepare his defense before trial; and, (2) the prosecutor's endorsement of two witnesses two days before trial and defense counsel's inability to adequately interview and prepare for cross-examination of these witnesses.

The record reveals that the preliminary hearing was held in Lincoln County on November 23, 1988, where appellant was represented by the same attorney as at trial. The information was filed on November 28, 1988, and after two continuances, trial date was set for April 26, 1989. Defense counsel filed a Motion For Meaningful Access To Counsel, which was mailed to the prosecution on April 18, 1989, and noticed for hearing on April 24, 1989. At this time, appellant was incarcerated in Taney County, Missouri, some 270 miles from Lincoln County. Defense counsel was assured by the prosecutor that the defendant would be in Lincoln County by four o'clock on April 25, 1989, the day before trial. However, appellant did not arrive in Lincoln County at the appointed time, and apparently did not confer with counsel in person until the morning of the day of trial.

The decision to grant or deny a continuance is within the sound discretion of the trial court. A very strong showing is required to prove abuse of that discretion, with the party requesting the continuance bearing the burden of showing prejudice. State v. Schaal, 806 S.W.2d 659,...