State v. Odzark
| Decision Date | 08 January 1976 |
| Docket Number | No. 9934,9934 |
| Parties | STATE of Missouri, Respondent, v. Jim ODZARK, Appellant. |
| Court | Missouri Court of Appeals |
John c. Danforth, Atty. Gen., K. Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
J. Miles Sweeney, Johnson & Sweeney, Springfield, for appellant.
Before BILLINGS, C.J., and TITUS and FLANIGAN, JJ.
In a jury-waived trial the defendant was found guilty of carrying a concealed weapon (pistol) in violation of § 564.610, RSMo 1969, and sentenced to a term of three years in the custody of the Department of Corrections. Contending he was denied a speedy trial and the evidence failed to establish concealment of the weapon, defendant prosecutes this appeal. We affirm.
In the main, the facts giving rise to the instant charge are set forth in State v. White, 529 S.W.2d 22 (Mo.App.1975), and will not here be repeated. Suffice to say that defendant was present October 17, 1973, when undercover narcotic agents purchased a large quantity of marijuana from Dan Gullet and Jud White and a search of defendant resulted in the removal of a short-barreled, fully-loaded .38 caliber pistol from the waistband of his trousers.
Gullet, White and the defendant were charged with violating the Narcotic Drug Act, but that charge against the defendant was subsequently dismissed. Thereafter, on May 6, 1974, a felony complaint for carrying a concealed weapon was lodged against the defendant and he was arrested. Following a preliminary hearing, defendant was charged in this case by an information filed June 6, 1974. On the latter date defendant was arraigned and entered a plea of not guilty. On July 3, 1974, the defendant filed 'motion to quash and dismiss information', assigning as grounds the state's delay between the time the weapon was found on him and the date the present charge was initiated. He alleged, inter alia, his constitutional rights to a speedy trial and due process had been abridged. Defendant's motion for change of judge was sustained October 4, 1974. An evidentiary hearing was conducted on his 'motion to quash and dismiss information' on November 11, 1974, and it was denied. The court set the case for trial November 13, 1974, but at defendant's request it was reset and held on December 13, 1974.
We first consider defendant's point that the nearly seven-month delay between the time the officers found the pistol on his person and his arrest on the weapon charge violated his right to a speedy trial as guaranteed by both the Federal and Missouri Constitutions. 1
The right to a speedy trial as insured by the Sixth Amendment of the United States Constitution was ruled applicable to state prosecutions, by way of the Fourteenth Amendment, in Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Missouri's guarantee of the right to a speedy trial was first embodied in the Constitution of 1820 (Art. XIII, Sec. 9) and is now found in Art. I, Sec. 18(a), Constitution of 1945.
In addition to the speedy trial provisions contained in the Federal and Missouri Constitutions, the General Assembly of this state has further implemented the right to a speedy trial by enacting general and special statutes of limitations for criminal cases. Thus, for felonies other than capital offenses and bribery or corruption in office, § 541.200, RSMo 1969, prescribes a three-year limiting period between the commission of an offense and indictment or information. And once prosecution is initiated, §§ 545.890, 545.900 and 545.920, RSMo 1969, limit the number of court terms trial of the case can be delayed by inaction of the state.
The difficulty inherent in defendant's contention in this case, that the delay between the offense and his arrest on the charge abridged his speedy trial right, is that neither the United States Supreme Court nor our Supreme Court has given the broad interpretation to the speedy trial guarantee defendant suggests.
The issue was squarely presented in United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), and the court held the right to a speedy trial did not extend to the period prior to arrest. '(I)t is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.' 404 U.S. at 320, 92 S.Ct. at 463.
The Missouri Supreme Court considered the identical contention in State v. Deckard, 459 S.W.2d 342 (Mo.1970), and after reviewing various federal and state decisions concluded * * *' 459 S.W.2d at 345.
Our Supreme Court has also ruled that the constitutional right to a speedy trial has no application until a criminal prosecution is commenced by either indictment or information. State v. York, 511 S.W.2d 758 (Mo.1974); State v. Caffey, 438 S.W.2d 167 (Mo.), cert. denied, 396 U.S. 853, 90 S.Ct. 114, 24 L.Ed.2d 102 (1969).
Under the Federal Constitution the defendant's right to a speedy trial did not arise on the weapons charge until he became an accused as a result of that arrest. 'The appellant's Sixth Amendment right to a speedy trial was not denied, since that protection is not triggered until a criminal suspect becomes an 'accused,' either by arrest or indictment.' United States v. Jackson, 504 F.2d 337, 338--339 (8th Cir. 1974), cert. denied 420 U.S. 964, 95 S.Ct. 1356, 43 L.Ed.2d 442 (1975). 2
In his brief herein the defendant has placed considerable reliance on Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965), in asserting the prearrest delay violated his constitutional rights.
In Ross, a majority of the court concluded the prearrest delay resulted in prejudice to the defendant and violated the due process provision of the Fifth Amendment. The dissent charged the principal opinion erroneously undertook to weigh the evidence and supervise the police in their conduct of an investigation. The doctrine espoused in Ross was reviewed at length by our Supreme Court in State v. Deckard, supra, and commented upon by the Eighth Circuit Court of Appeals in United States v. Jackson, supra. The Ross opinion was written prior to the United States Supreme Court decision in United States v. Marion, supra, which withheld the operation of the Sixth Amendment until the point of accusation, either by arrest or indictment. 3 'There is no constitutional right to be arrested.' Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966).
We hold the delay between the commission of the offense of carrying a concealed weapon and the defendant's arrest thereon, or the filing of the information against him, did not abridge the defendant's right to a speedy trial as guaranteed by the United States and Missouri Constitutions. If defendant's challenge to the delay be considered as claiming a violation of his right of due process under the Fifth Amendment, he fares no better since no prejudice was demonstrated by the delay. His allegations of prejudice are wholly without evidentiary support.
Defendant's remaining point is that the evidence failed to establish the element of concealment of the pistol on his...
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...See State ex rel. Brooks v. Bone, 473 S.W.2d 681, 682 (Mo.1971); State v. Gardner, 534 S.W.2d 284, 286 (Mo.App.1976); State v. Odzark, 532 S.W.2d 45, 48 (Mo.App.1976); Billings v. State, 503 S.W.2d 57, 61 (Mo.App.1973); See also Skelton v. State, 578 S.W.2d 323, 325 (Mo.App.1979).4 The Cour......
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State v. Murphy, 41873
... ... State v. Cavin, supra, 654(3); State v. Odzark, 532 S.W.2d 45, 49(4-7) (Mo.App.1976); State v. Jones, 523 S.W.2d 152, 154(3) (Mo.App.1975). Appellant has urged that the .357-magnum revolver which he carried was too large to be concealed in his jacket pocket. However, if the revolver were partially concealed by the jacket pocket and partially ... ...
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State v. Gardner
...States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. York, 511 S.W.2d 758, 761(1) (Mo.1974); State v. Odzark, 532 S.W.2d 45 (Mo.App.1976). Therefore, defendant's reliance on the Sixth Amendment to support the claim that he was denied a speedy trial because of the hi......
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State v. Lee, s. 63074
...of the Sixth Amendment." United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 463, 30 L.Ed.2d 468 (1971). See State v. Odzark, 532 S.W.2d 45 (Mo.App.1976); State v. Gardner, 534 S.W.2d 284 Appellant also suggests that he was denied a speedy trial under the provisions of the Interstate ......