State v. Parker

• Decision Date: 28 November 1994
• Docket Number: 18969,Nos. 17843,s. 17843
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Jerry PARKER, Defendant-Appellant. Jerry PARKER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 312

890 S.W.2d 312

STATE of Missouri, Plaintiff-Respondent, v. Jerry PARKER, Defendant-Appellant.

Jerry PARKER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 17843, 18969.

Missouri Court of Appeals Southern District.

Nov. 28, 1994.

Motion for Rehearing or Transfer Denied Dec. 19, 1994.

Tamara Detloff, Office of the State Public Defender, St. Louis, for defendant-movant-appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., F. Martin Dajani, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent-respondent.

PER CURIAM.

Following his conviction by a jury, Jerry L. Parker (Parker) was sentenced to thirty years' imprisonment for the offense of sodomy (§ 566.060), ¹ fifteen years' imprisonment on each of three separate offenses of kidnaping (§ 565.110), thirty years' imprisonment on each of four separate offenses of armed criminal action (§ 571.015), and six months' imprisonment in the county jail for the offense of third degree sexual abuse, a class A misdemeanor (§ 566.120). All sentences were ordered to be served consecutively. Parker's direct appeal from those convictions is No. 17843.

After he was sentenced, Parker filed a pro se motion under Rule 29.15 ² seeking to vacate his convictions and sentences. Appointed counsel later filed an amended Rule 29.15 motion. Following an evidentiary hearing, the motion court denied both motions. Parker's appeal from the denial of his motions is No. 18969.

These appeals were consolidated per Rule 29.15(l).

We affirm in both cases.

DIRECT APPEAL--No. 17843

Facts From Trial Testimony

The victims were three young girls, B.D.C., age 13, H.J.R., age 11, and K.L.B., age 10. Their testimony concerning the offenses includes the following.

Near midday on August 10, 1989, the girls went to a public park in Gerald, Missouri. While at a gazebo in the park, they were accosted by a man carrying a gun in his hand. He told them to go with him to a bathroom in the park. B.D.C. objected and started to leave, whereon the assailant threatened to shoot her. All three girls then entered the women's bathroom as ordered, followed by their assailant.

Once inside, the assailant tied H.J.R. and B.D.C. to a drain pipe, then led the youngest girl, K.L.B., toward a bathroom stall. Before entering the stall, he lifted K.L.B.'s T-shirt and fondled her breasts. K.L.B. began to cry and asked her sister, B.D.C., to "help" her, whereon B.D.C. asked the assailant to "take me instead" and "don't hurt K." The assailant then tied K.L.B. to the drain pipe and released B.D.C. from her confinement. B.D.C. was taken to a bathroom stall where the assailant ordered her to have oral sex with him, which she did.

As B.D.C. was being sodomized, a car came into the park. After that vehicle passed by, the assailant took B.D.C. back to the sink, tied her up with K.G.B., and left.

Throughout this incident, the assailant kept the gun displayed, either in his hand or under his arm. As he left the bathroom, he pointed the gun at the girls and told them, "I'm going to go outside for a few minutes, and if I hear any of you scream, I'm going to come back in here and kill you all."

Upon hearing the assailant's car leave, the girls freed themselves and ran to a neighbor's house. After family was contacted, police were called and an investigation commenced. On August 31, 1989, Parker was charged with the offenses.

At trial, all three girls identified Parker as their assailant.

Parker did not testify at trial but offered the testimony of two alibi witnesses. Their testimony, if believed, tended to show that Parker was elsewhere when the offenses took place. He offered testimony of three other witnesses which, if believed, tended to show that Parker's vehicle differed from the victims' description of the assailant's car.

We recite additional facts when essential to an understanding of Parker's points on appeal.

Point I--Denial of Right of Self-Representation

For his first point, Parker avers that he was denied his constitutional right to defend himself. He argues his request for self-representation was timely and unequivocal, and, consequently, the trial court erred when it overruled his "Motion to Proceed Pro Se."

An accused has a constitutional right under the Sixth Amendment to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Fourteenth Amendment extends the Sixth Amendment right of self-representation to defendants charged in state courts. State v. Gilmore, 697 S.W.2d 172, 174 (Mo.banc 1985), cert. denied, 476 U.S. 1178, 106 S.Ct. 2906, 90 L.Ed.2d 992 (1986); State v. Edwards, 592 S.W.2d 308, 310[1, 2] (Mo.App.1979).

The Faretta court implicitly recognized, however, that the right of an accused to represent himself is not an absolute right. See State v. Sheppard, 172 W.Va. 656, 310 S.E.2d 173, 187 (1983), cited with approval in State v. Power, 721 S.W.2d 194, 195 (Mo.App.1986).

"[T]he right of self-representation is a qualified right and its exercise is subject to reasonable restrictions designed to further two important considerations: protection of other fundamental rights guaranteed the accused by the Constitution, and protection of the orderly administration of the judicial process."

Sheppard, 310 S.E.2d at 187. Thus, exercise by an accused of his right to self-representation is conditioned on a knowing and intelligent waiver of the right to counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357 (1938); Gilmore, 697 S.W.2d at 174. Moreover, self-representation is a right that an accused must clearly and unequivocally assert before trial. State v. Wilson, 750 S.W.2d 560, 564 (Mo.App.1988); Power, 721 S.W.2d at 195. The right of self-representation is intended to insure an accused's right to a full and fair trial but is not intended to enable an accused to avoid or delay the trial for any unjustifiable reason. State v. Sharkey, 821 S.W.2d 544, 546 (Mo.App.1991). Accordingly, if a request to proceed pro se is untimely, the court in its discretion may refuse to allow self-representation. State v. Herron, 736 S.W.2d 447, 449 (Mo.App.1987); Power, 721 S.W.2d at 195.

Here, Parker filed his motion to proceed pro se on Friday, July 19, 1991. His trial was scheduled to begin Monday, July 22, 1991. Because of the intervening weekend, his request was in effect made one day before his trial was to begin.

His motion to proceed pro se said that he "reject[ed] appointed counsel, [her] theory of defense and method of representation." Continuing, the motion read:

"2. On being allowed to proceed pro se, the movant requests that the trial not be delayed for any extended period of time; however, the movant will need to be allowed to review the legal file to prepare before trial.

3. Movant requests that an investigator be provided to deliver subpoenas due to the fact that the movant will seek to endorse additional witnesses for the defense."

Parker's motion to proceed pro se was the first pretrial matter considered on Monday morning, July 22. After extended inquiry of Parker regarding his request, the court denied the motion as "not ... timely filed" and "made to hinder the administration of justice."

On its face, Parker's motion was not an unequivocal demand to proceed pro se without delay. It coupled Parker's self-representation request with his request for delay, albeit not "extended," so that he might prepare. Although Parker now insists that he orally withdrew his request for delay on Monday morning, the record shows that his announcement in that regard was equivocal and conditional. Specifically, Parker said, "I would withdraw the request for delay, for extra time, if I'm allowed to review the file, like, in my cell and go over it with the public defenders because I have a couple questions about that." When the trial judge attempted to learn from Parker what he meant by "review" of his file, Parker's lack of preparation was fully revealed by his response:

"Well, I'd like--much of this stuff I've never seen. I don't have any idea what she even has on a lot of it.

And I'd also like to view that videotape. That videotape was made not as part of the prosecution's case but as part of my defense, and I feel that might be important to my defense."

When asked if he was familiar with the pretrial rulings on numerous Motions in Limine and what areas he could and could not go into, Parker's response was, "Well, I know that my attorney stipulated to some of those, which I did not agree with at the time."

Parker's motion and his oral presentation of it to the trial judge reveals that if his motion had been allowed, either a continuance would have been necessary, which is not the intended use of the right of self-representation, see Sharkey, 821 S.W.2d at 546, or the trial would have gone on as scheduled which would not have been fair to the parties involved, especially to Parker who admitted that he was unprepared. See State v. Gomez, 863 S.W.2d 652, 656 (Mo.App.1993). In such a case, the motion for self-representation is addressed to the sound discretion of the trial court. Power, 721 S.W.2d at 195. Under the circumstances, the trial court did not abuse its discretion when it denied Parker's request for self-representation made on the Friday preceding the Monday the trial was to start. See Williams v. State, 655 P.2d 273, 276 (Wyo.1982). Point denied.

Point IX--Speedy Trial Issue

In Point IX Parker asserts that the trial court erred in overruling his motion for acquittal because it lost jurisdiction to try him as "more than 180 days passed between the time [he] requested a speedy trial pursuant to the [Uniform Mandatory Disposition of Detainers Law (UMDDL), §§ 217.450 to 485] and the time when the trial actually began." ³ He says that he first asked for final disposition of his case under § 217.450 of the UMDDL on May 11, 1990, and that no tolling of the 180-day requirement of § 217.460 should be charged against...