State v. Moore

• Decision Date: 16 March 1982
• Docket Number: No. WD,WD
• Citation: State v. Moore, 633 S.W.2d 140 (Mo. App. 1982)
• Parties: STATE of Missouri, Respondent, v. Fred L. MOORE, Appellant. 32157.
• Court: Missouri Court of Appeals

Page 140

633 S.W.2d 140

STATE of Missouri, Respondent, v. Fred L. MOORE, Appellant.

No. WD 32157.

Missouri Court of Appeals, Western District.

March 16, 1982.

As Modified May 4, 1982.

Motion for Rehearing and/or Transfer to Supreme Court

Overruled and Denied May 4, 1982.

Application to Transfer Denied June 14, 1982.

James W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, P. J., and MANFORD and KENNEDY, JJ.

MANFORD, Judge.

Appellant was found guilty of robbery second degree, a Class B felony, in violation of § 569.030, RSMo 1978. A sentence of 12 years was imposed by the jury. § 558.011.1(2), RSMo 1978. The trial court sentenced appellant to an extended term of ten years (§ 558.016.4(1), RSMo 1978), to be served consecutively, totaling 22 years imprisonment. This appeal followed.

Appellant presents six points of error, which in summary charge that the trial court erred (1) in compelling appellant to stand trial attired in jail clothing and manacled because this destroyed the presumption of innocence; (2) by the admission of irrelevant and immaterial testimony; (3) by sentencing appellant to a term of ten years because such sentencing violated the double jeopardy clause because the trial court was without jurisdiction to impose an extended term pursuant to § 558.016, RSMo 1978; and (4) by extending appellant's sentence by ten years because of the failure to properly find that appellant was a persistent offender. Appellant also alleges error in that (5) the ten-year enhancement sentence is void and a remand for resentencing would amount to multiple punishment for the same offense in violation of the double jeopardy clause and (6) the trial court lacked jurisdiction to impose the extended sentence of ten years and failed to make requisite findings upon the existence of the basis for imposing such sentence.

A brief recital of the evidence reveals not only the events pertaining to this matter, but the basis which supports the jury's verdict.

The victim, William Gilbert, testified that he was sitting in front of the Boys Club on Woodland Avenue in Kansas City, Missouri, when he was accosted by appellant and two other men. After talking with the trio, he went with them in an automobile. When questioned why he got into the automobile, he said that he felt he could not handle all three of them. He stated that the four drove around for about twenty minutes, at which time the automobile was stopped and he was dragged from it by appellant. Appellant hit him on the head with his fist, a piece of wood and the victim's shoe. While this was occurring, a local police officer arrived on the scene, who observed appellant's beating the victim. The officer gave chase and apprehended appellant. When apprehended, appellant was in possession of the victim's watch, checkbook and a bottle of prescription medicine. The arresting officer testified that when apprehended, appellant appeared intoxicated, but in complete control of his faculties.

Appellant testified that he had beaten the victim and had taken his property, but that he was intoxicated. He also gave a different account leading to the beating and taking of the property. According to appellant, he was walking on 36th Street and observed the victim walking toward him. As they approached each other, the victim greeted appellant and during this exchange, the victim asked appellant if he would like the victim to perform an oral sexual act upon him. Appellant testified that he said "no" to the victim's offer and walked away, but that the victim followed him and continued to urge him to allow him to perform the sexual act. Appellant stated that the victim then touched his shoulder and a fight ensued. Appellant admitted that he took the victim's property, but that he had no intention to do so when he first observed the victim. After the jury's finding of guilty and sentencing of 12 years, the trial court extended the sentence, finding appellant to be a dangerous offender. This appeal followed.

In point (1), appellant argues that the trial court erred in compelling appellant to stand trial attired in green jail dungarees, raggedly cut off at the knees, tennis shoes, no socks, chained about the waist and handcuffed and manacled at the ankles. Appellant argues that the clothing and restraint destroyed his right to a presumption of innocence. He does not deny that restraint of an accused is within the discretion of the trial court, but argues that the trial court in this case abused its discretion. Appellant contends that the instant case falls squarely within State v. Borman, 529 S.W.2d 192 (Mo.App.1975), which declared that the trial court is vested with considerable, but not unlimited, discretion in determining the propriety of restraints. In Borman, the court declared that the trial court should weigh the relevant factors which include: the presence or absence of disruptive conduct on the part of the accused prior to or during trial, the presence or absence of threats of misconduct, the trial atmosphere, the likelihood of an attempt to escape, the age and physical attributes of the accused, the nature of the offense, the size of the trial audience, and its mood and the adequacy of alternative methods. In Borman at 194, the court also restated, "It has rightly been said that the propriety of physical restraints depends upon the particular facts of each case," citing State v. Robinson, 507 S.W.2d 61, 62 (Mo.App.1974). The Borman court pointed out (at 194) that "(t)he right of a defendant in a criminal case to be free of physical restraints while attending his own trial is not absolute. Under 'exceptional circumstances', State v. Boone, 355 Mo. 550, 196 S.W.2d 794, 796(3) (1946), or for 'good reason,' State v. Kring, 64 Mo. 591, 592 (1877) at least if the good reason is bottomed on the accused's misconduct during the trial, State v. Kring, supra..."

Appellant seizes upon Kring, charging that since appellant displayed no misconduct at trial, the court was without authority to restrain him. Appellant's reading of Kring is too narrow. He would have this court conclude that restraint is permissible only when there is disruption during actual in-court proceedings. This court not only fails to agree with such a narrow interpretation, but finds that the correct interpretation of the court's discretion is clearly defined within footnote language in Borman at 194. The court correctly pointed out:

(I)n Loux v. United States, 389 F.2d 911, 919 (9th Cir. 1968) it is said: '... To require a dangerous act at trial before shackling the prisoner would seriously impair the court's security. The purported requirement of bad conduct at trial stems from two old Missouri cases, State v. Kring, 1877, 64 Mo. 591 and State v. Temple, 1906, 194 Mo. 237, 92 S.W. 869 ... Modern cases do not require that the judge's decision be based on conduct of the prisoner at trial ...'

Preceding Borman and cited in Borman, our courts restated the more sound rule to determine whether the trial court abused its discretion in ordering restraint. In Bibbs v. State, 504 S.W.2d 319, 321 (Mo.App.1973), the court ruled, "To support such action on the part of the court, there must be some 'good reason' arising during the trial (State v. Rice, 347 Mo. 812, 149 S.W.2d 347, 348(1, 2) (1941) ) or 'exceptional circumstances' (State v. Boone, 355 Mo. 550, 196 S.W.2d 794, 796(3) (1946) )." (Emphasis added)

Appellant is entirely correct in his contention that there was no misconduct at trial to warrant restraint, so the only "good reason" must be shown by "exceptional circumstances".

Prior to trial, this entire matter was discussed with the court. Appellant's counsel rigorously challenged appellant's appearance before the jury in jail garb, handcuffs, chains and manacles. In addition to appellant's claimed dissatisfaction with counsel for no apparent reason other than the delay of trial, the record reveals the disqualification of the trial judge for no apparent reason other than the delay of trial and appellant's refusal to come out of his jail cell the morning of trial to appear at trial. This refusal produced a disturbance in the county jail, arousing other prisoners to such an extent that the entire jail had to be secured. It took the entire jail force to quell the disturbance, which lasted four hours and during which three deputy officers were injured. During this disturbance, the court awaited appellant's arrival, along with a panel of more than 40 veniremen.

The trial court concluded that appellant's actions brought about his appearance in jail garb and shackles. It is noted that prior to the jury's appearing in the courtroom, appellant's hands were no longer chained, the chain around his waist had been removed and his feet, though shackled, were beneath the counsel table, not visible to the jury. In addition, while appellant had objected to the presence of a jail guard during the pretrial conference, this was not mentioned at the time the jury was impaneled. The record also reveals that prior to his testifying, the shackles on appellant's legs were removed.

In summary, appellant contends that there should never be restraint of an accused or that there should be none absent any in court disturbance under Kring, supra. The instant case reveals that appellant had previously been convicted of assault. On the morning of trial, his refusal to leave jail to stand trial caused a jail-wide disturbance of some four hours and included injury to some jail authorities. During this time, the court and potential jurors awaited appellant's arrival. It cannot be said, although appellant argues to the contrary, that there was an absence of "exceptional circumstances" which provided "good reason" for the trial court's action. Bibbs, supra. Appellant has no standing to complain...