State v. Pate

• Decision Date: 15 September 2015
• Docket Number: ED 101709
• Citation: 469 S.W.3d 904
• Parties: State of Missouri, Respondent, v. Jermaine C. Pate, Appellant.
• Court: Missouri Court of Appeals

469 S.W.3d 904

State of Missouri, Respondent

v.Jermaine C. Pate, Appellant.

ED 101709

Missouri Court of Appeals, Eastern District, Division Two .

Filed: September 15, 2015

Emmett D. Queener, 1000 W Nifong, Bdg 7, Suite 100, Columbia, MO 65203, for appellant.

Chris Koster, Daniel N. McPherson, P.O. Box 899, Jefferson City, MO 65102, for respondent.

Gary M. Gaertner, Jr., Judge

Introduction

Jermaine Pate (Defendant) appeals the judgment entered upon his convictions for robbery in the first degree and armed criminal action. He argues the trial court should have dismissed the charges due to a violation of his constitutional right to a speedy trial, and alternatively that the trial court should have suppressed incriminating statements he made as fruit of being unlawfully held for more than 24 hours. Finally, he argues that there was insufficient evidence to prove that he committed the robbery with a dangerous instrument. We affirm.

Background

Just after midnight on October 25, 2012, Ganesh KC (Victim) arrived at his apartment in University City. He parked his white Toyota Camry in the parking area behind his apartment. As he got out of his car, two men, one of whom was Defendant, walked toward Victim and asked if he had jumper cables. Victim responded that he did not. Defendant asked if he could use Victim's cell phone, and Victim gave it to him. The other man was behind Victim, and at that point he held a knife to Victim's neck from behind. Defendant then pointed a gun at Victim and demanded Victim's car keys. Victim gave them to Defendant, and the two men got into Victim's car, in which Victim also had a laptop and some sports equipment, and drove away.

Victim contacted the police, and when they arrived, Victim gave them a description of the two men as well as the items stolen. Victim's cell phone was equipped with a program that could be used to locate the phone, which police did. They tracked the phone to a retail store, where an employee gave them the name of a customer who had brought the phone into the store to be unlocked. The police eventually traced the phone to Darnesha Nunn (Nunn). Nunn said Defendant had given her the phone and a laptop and asked her to sell them, which she did. At the time, she did not know they were stolen. Police showed Nunn surveillance photos from the area of the robbery taken near the time of the robbery, and Nunn identified Defendant and Tim Valley (Valley) as the two men pictured.

Detective Jesse Meinhardt created two separate photographic lineups containing pictures of Defendant and Valley and showed them to Victim. Victim identified Defendant as the man who had pointed a gun at him, and Valley as the man with the knife. Detective Meinhardt then put out a “wanted” for Defendant and Valley, which alerted other police officers that they could arrest Defendant, but was different than an arrest warrant because it had not been signed by a judge who had verified probable cause.

On February 12, 2013, Cuba, Missouri police officers arrested Defendant. They transported Defendant to University City, Missouri, where Detective Meinhardt met with him the next day, February 13, 2013. After advising Defendant of his Miranda¹ rights, Detective Meinhardt took a statement from Defendant, who maintained he did not do anything.

Detective Meinhardt then obtained warrants for Defendant's arrest for robbery in the first degree and armed criminal action. Detective Meinhardt returned to speak with Defendant the next day, February 14, 2013, and showed him the warrants. Defendant waived his Miranda rights and wrote out a statement in which he admitted robbing Victim and apologized for taking Victim's car.

Defendant waived his right to a jury trial, and the court tried his case on May 12, 2014. Defendant moved to dismiss the charges, arguing the State had violated his right to a speedy trial, which the trial court denied. Defendant also moved to suppress his written statement as well as later statements he had made during recorded telephone calls from jail. He argued that all of these were made while he was being unlawfully detained without an arrest warrant longer than 24 hours. The trial court denied Defendant's motion and convicted him of robbery in the first degree and armed criminal action. The court sentenced Defendant to concurrent terms of thirteen years in prison for each offense. This appeal follows.

Discussion

Defendant raises four points on appeal. He argues the trial court erred in failing to dismiss the charges against him due to a violation of his right to a speedy trial. He also argues the trial court clearly erred in denying his motion to suppress his written statement as well as portions of phone calls he made from jail, and finally, that there was insufficient evidence from which the trial court could find him guilty of armed criminal action.

Point I

Defendant argues that the trial court erred in failing to dismiss the charges against him and in proceeding to trial because the 15–month delay between his arrest and his trial violated his constitutional right to a speedy trial. We disagree.

We review de novo whether a defendant's constitutional rights have been violated. State v. Sisco, 458 S.W.3d 304, 312–13 (Mo. banc 2015) (citing State v. Schroeder, 330 S.W.3d 468, 472 (Mo. banc 2011) ), In so doing, we defer to the trial court's factual findings and credibility determinations. Id.

“The United States and Missouri Constitutions provide equivalent protection for a defendant's right to a speedy trial.” State ex rel. McKee v. Riley, 240 S.W.3d 720, 729 (Mo. banc 2007). There is no bright-line test to determine a violation of this right, rather a “court must balance four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) prejudice to the defendant.” Id. (citing Barker v. Wingo, 407 U.S. 514, 533, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) ).

The first factor triggers the analysis, because until there is a delay that is presumptively prejudicial, we need not consider the other three factors. State ex rel. Garcia v. Goldman, 316 S.W.3d 907, 911 (Mo. banc 2010). In Missouri, a delay of eight months is presumptively prejudicial. Id. Here, the delay of 15 months between Defendant's arrest in February of 2013 and trial in May of 2014 is presumptively prejudicial, thus we must balance the other factors. See id.

Regarding the second factor, the reason for the delay, it is “incumbent upon the State to establish the reasons justifying the delay.” State v. Mason, 428 S.W.3d 746, 750 (Mo.App.E.D. 2014), abrogated on other grounds by Sisco, 458 S.W.3d at 311–13. We assign different weights to different reasons for the delay. Mason, 428 S.W.3d at 750 (citing Garcia, 316 S.W.3d at 911 ). A deliberate attempt by the State to hinder the defense weighs heavily against the State. Mason, 428 S.W.3d at 750 (citing Barker, 407 U.S. at 531, 92 S.Ct. 2182 ). Neutral reasons, such as overcrowded dockets or the State's negligence also weigh against the State, but less heavily. Id. Conversely, “[d]elays attributable to the defendant weigh heavily against the defendant.” State v. Darnell, 858 S.W.2d 739, 745 (Mo.App.W.D. 1993) (internal quotations and citations omitted).

Here, the reasons for the delay are predominantly neutral. Once the trial court set a date for trial, it was not continued. Before that, while the record reflects several continuances of pretrial conferences, it notes no reason for each continuance. During that time period, Defendant changed attorneys and at one point indicated a desire to proceed pro se. At a pretrial conference on November 22, 2013, the trial court denied Defendant's motion to proceed pro se in light of Defendant's explanation that it was simply a misunderstanding with his attorney. We see nothing in the record indicating a deliberate attempt by the State to delay trial or hamper the defense. See State v. Fleer, 851 S.W.2d 582, 597 (Mo.App.E.D. 1993). The delay coinciding with Defendant's change of attorney was likely to allow time for new counsel to prepare, which is reasonable. Any weight against the State in the second factor is slight in this case.

The third factor is Defendant's assertion of his right to a speedy trial. Here, Defendant sent pro se letters to the court and the prosecutor requesting a speedy trial, beginning in June of 2013. The trial court instructed Defendant regarding the Missouri Department of Corrections' form for requesting a speedy trial in November of 2013, which Defendant filed in January of 2014. Defendant asserted his right early in the proceedings and did so multiple times, thus this factor is weighed in his favor. Mason, 428 S.W.3d at 752.

Finally, the most important factor in our analysis is any resulting prejudice to Defendant. Id. We consider three additional factors in determining prejudice, the third of which is “the most vital to the analysis”: (1) the oppressiveness of pretrial incarceration, (2) whether it unduly heightened the defendant's anxiety, and (3) the impairment of the defense. Id. (quoting State v. Newman, 256 S.W.3d 210, 216–17 (Mo.App.W.D. 2008) ).

Here, Defendant argues his anxiety was evidenced by his repeated requests for a speedy trial. Defendant does not argue that the delay impaired his defense. Under the circumstances here, the evidence of the crime was memorialized in photographs and police reports, and it is unreasonable to believe Victim's memory as to who had robbed him was so eroded by the delay here as to cause him to mis-identify Defendant, especially when Victim had identified Defendant in a photographic lineup within a few months of the crime. Any impairment of the defense is speculative at best. Thus, in this particular case, the effects of the delay on Defendant are outweighed by the lack of impairment to his defense. See Mason, 428 S.W.3d at 752.

In view of all relevant factors, we find no error in the trial court's decision to proceed to trial in that under the...