State v. Nichols

• Decision Date: 04 December 2006
• Docket Number: No. 27047.,27047.
• Citation: 207 S.W.3d 215
• Parties: STATE of Missouri, Plaintiff-Respondent, v. James M. NICHOLS, Defendant-Appellant.
• Court: Missouri Court of Appeals

207 S.W.3d 215

STATE of Missouri, Plaintiff-Respondent, v. James M. NICHOLS, Defendant-Appellant.

No. 27047.

Missouri Court of Appeals, Southern District, Division Two.

December 4, 2006.

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Amy M. Bartholow, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Assistant Attorney General, Jefferson City, for Respondent.

PHILLIP R. GARRISON, Judge.

James M. Nichols ("Defendant") was convicted by a jury of committing first degree statutory sodomy, a violation of Section 566.062.¹ He was sentenced to a term of thirty years in the department of corrections to run consecutive to a sentence he was already serving on a separate conviction. Defendant appeals his conviction, contending that the trial court erred in: (1) denying his motion to dismiss, because he was not tried within the statutory period set by the Uniform Mandatory Disposition of Detainers Law ("UMDDL"); (2) failing to ascertain on the record whether Defendant's waiver of counsel was knowingly and intelligently entered; and (3) permitting evidence of Defendant's prior misconduct. We reverse and remand.

Defendant does not challenge the sufficiency of the evidence supporting his conviction. Viewing the evidence in the light most favorable to the verdict the record reveals the following.

In October of 1996, thirteen-year-old K.H. ("Victim") was staying at the family's lake house in Camden County, Missouri, with her stepfather, Defendant. Victim's mother and sisters, who had remained at their home in Franklin County, Missouri, were planning on joining them the next day. The morning after their arrival, as Victim was getting out of the shower, she discovered Defendant waiting for her and holding her towel. Defendant dried Victim off with the towel and then led her to his bed. Using lotion as a lubricant, Defendant proceeded to fondle Victim's breasts and "forcefully" rub her vagina, at one point, inserting his finger into Victim's vagina. After a while, Defendant stopped and told Victim to get dressed. Victim left and went to her friend's house, where she waited until her mother arrived that evening.

In August of 2000, after Victim's mother had divorced Defendant, Victim and her older sister, E.H., reported Defendant's sexual abuse to the Franklin County authorities. Detective David R. Scott ("Detective Scott") of the Franklin County Sheriff's Department, investigated the allegations. In September of 2000, Detective Scott visited Defendant in O'Fallon, Missouri, where he was residing at the time. Defendant agreed to speak to Detective Scott about the investigation. On the way to the Sheriff's Department, after Detective Scott advised Defendant of his Miranda² rights, Defendant spontaneously provided an account of incidents that had occurred between him and his stepdaughters, which corroborated the allegations of sexual abuse that had been made. After arriving at the Sheriff's Department, Defendant continued to talk about what had occurred, before signing a written waiver of his Miranda rights. Defendant then provided Detective Scott with a written statement.

On February 18, 2003, while Defendant was serving time in the department of corrections on a separate conviction, he was charged by information with first degree statutory sodomy. A jury trial on October 27, 2004, with Defendant appearing pro se, resulted in a verdict of guilty. The trial court sentenced Defendant as indicated earlier. This appeal followed.

In his first point on appeal, Defendant argues that the trial court erred in overruling his motion to dismiss because he was not tried within the statutory period set by the UMDDL. We disagree.

"[T]he right to be brought to trial within 180 days after a proper request under [the UMDDL] is jurisdictional." Carson v. State, 997 S.W.2d 92, 98 (Mo. App. S.D.1999). "[T]he provisions of the UMDDL are not drenched in doubt or ambiguity, and `a loss of subject matter jurisdiction inexorably occurs by operation of law when an imprisoned person who has initiated a proper request is not brought to trial within the appropriately determined statutory time period.'" Id. (quoting Russell v. State, 597 S.W.2d 694, 697 (Mo.App. W.D.1980)). "Jurisdictional issues present questions of law, which we review de novo and without deference to the [trial] court's determination." State ex rel. Garrett v. Dally, 188 S.W.3d 111, 113 (Mo.App. S.D.2006)(quoting State ex rel. Nixon v. Moore, 159 S.W.3d 488, 490 (Mo.App. W.D. 2005)).

"The [UMDDL] provides for the prompt disposition of detainers based on untried state charges pending against a prisoner held within this state's correctional system." State ex rel. Kemp v. Hodge, 629 S.W.2d 353, 354 (Mo. banc 1982).³ Section 217.450.1 of the UMDDL provides that:

Any person confined in a department correctional facility may request a final disposition of any untried indictment, information or complaint pending in this state on the basis of which a detainer has been lodged against him while so imprisoned. The request shall be in writing addressed to the court in which the indictment, information or complaint is pending and to the prosecuting attorney charged with the duty of prosecuting it, and shall set forth the place of imprisonment.

A defendant who complies with Section 217.450.1 must be brought to trial "[w]ithin one hundred eighty days after the receipt of the request and certificate . . . by the court and the prosecuting attorney," or the untried indictment, information or complaint must be dismissed. Section 217.460. However, the UMDDL defines three instances in which the 180-day period may be tolled: (1) the trial court may grant "additional necessary or reasonable time . . . for good cause shown in open court, the offender or his counsel being present[;]" (2) "[t]he parties may stipulate for a continuance[;]" and (3) "a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard." Section 217.460. Additionally, Missouri courts have held that any delays attributable to the affirmative actions of a defendant will toll the 180-day period. State v. Laramore, 965 S.W.2d 847, 850 (Mo.App. E.D.1998). The State has the burden of showing that the 180-day period should be extended. Id.

The following timeline is set out to assist in determining whether Defendant was timely tried.

10/03/02 A Complaint was filed, alleging that Defendant committed the felony of statutory sodomy in the first degree.

11/12/02 The Camden County Sheriff's Department places a detainer against Defendant.

11/21/02 Defendant files an Inmate's Request for Disposition of Indictments, Informations or Complaints ("Request").

12/09/02 Defendant's Request is received by the prosecutor.

12/12/02 Defendant's Request is received by the trial court, triggering the 180-day period in which Defendant must be tried.

02/18/03 Information filed.

03/12/03 The trial is scheduled to begin on May 19, 2003.

04/28/03 The State files a motion for continuance, alleging good cause under the UMDDL, due to the unavailability of an essential witness, Detective Scott, who was placed on active military duty on March 14, 2003.

05/21/03 The trial court holds a hearing, and finds good cause to grant the State's motion for continuance over the objection of Defendant, due to the unavailability of State's witness, Detective Scott, who had been ordered to active military duty.

05/29/03 The trial is scheduled to begin October 20, 2003.

10/06/03 The State files its second motion for continuance, alleging the continued unavailability of Detective Scott.

10/20/03 A hearing is held on the State's second motion for continuance, with Defendant present. The trial court sustains the motion finding that "[Detective] Scott [ ] is still in Iraq, that he is not expected to return until March 2004, that the State has no way to compel the witness' return from Iraq, and that the State needs the witness to make their case and that the State is otherwise ready to proceed."

11/20/03 The trial is scheduled to begin April 20, 2004.

03/30/04 The State files its third motion for continuance.

04/20/04 A hearing is held on the State's third motion for continuance with Defendant present. The trial court sustains the motion.

06/03/04 Defendant files a motion to dismiss alleging that more than 180 days has expired since the filing of his Request.

06/14/04 Defendant files suggestions in support of his motion to dismiss.

06/30/04 The trial is scheduled to begin October 21, 2004.

10/21/04 The trial is delayed due to the illness of Defendant.

10/27/04 The trial court overrules Defendant's motion to dismiss.

10/27/04 Defendant is tried and convicted.

The 180-day period for bringing Defendant to trial began on December 12, 2002, when his Request was received by both the prosecutor and the trial court. Meyer v. State, 854 S.W.2d 69, 71 (Mo.App. E.D. 1993). However, when calculating the expiration of the 180-day period, the day of receipt is excluded, State v. Galvan, 795 S.W.2d 113, 118 n. 8 (Mo.App. S.D.1990), as are the periods which are properly tolled pursuant to Section 217.460 and any delays attributable to the affirmative actions of Defendant. Laramore, 965 S.W.2d at 850. The delay from the original trial date of May 19, 2003, to October 27, 2004, is almost entirely attributable to continuances granted to the State.

As previously set out, the trial court may grant "additional necessary or reasonable time [to dispose of a detainer] for good cause shown in open court, the offender or his counsel being present[.]" Section 217.460. In this case, the trial court sustained the State's motions for continuance based on the persistent unavailability of the State's witness, Detective Scott. The record reflects that each continuance was granted in open court and in the presence of Defendant. Therefore, as Defendant explains, "the issue for this Court to resolve is...