State v. Redding, KCD29182

• Citation: 573 S.W.2d 371
• Decision Date: 31 July 1978
• Docket Number: No. KCD29182,KCD29182
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Donald L. REDDING, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 371

573 S.W.2d 371

STATE of Missouri, Plaintiff-Respondent, v. Donald L. REDDING, Defendant-Appellant.

No. KCD29182.

Missouri Court of Appeals, Kansas City District.

July 31, 1978.

Motion for Rehearing and/or Transfer Denied Oct. 10, 1978.

Application to Transfer Denied Dec. 18, 1978.

Lee M. Nation, Kevin R. Locke, Asst. Public Defenders, Kansas City, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Gregory W. Schroeder, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

DIXON, Judge.

The defendant appeals a judgment of conviction for robbery in the first degree and a jury-imposed sentence of thirty years. The defendant was charged with the armed robbery of a tavern. The bartender positively identified the defendant and also identified some keys which the defendant left behind at the scene of the robbery. Subsequently, these keys were found to belong to defendant's pickup truck, which was also left at the scene of the robbery.

An opinion was handed down in this case pointing out that the original transcript showed the untimely filing of the motion for new trial. On motion for rehearing, defendant asserted that an extension for filing the motion for new trial had been granted. Pursuant to leave of court, a supplemental transcript has been filed showing the motion for new trial was timely filed. The opinion has been modified to reflect a treatment of defendant's points as preserved error.

Defendant first claims that the trial court erred in failing to dismiss the information on defendant's motion because of an eighteen-month delay between the occurrence of the crime and the filing of the information. Upon this claim of pre-indictment delay, it is clear that if there was substantial prejudice to the defendant's right to a fair trial and the delay was an intentional device to give the government a tactical advantage over the defendant, then there may be a deprivation of due process. The facts in this case, however, clearly show that there was no error on the part of the trial court in overruling defendant's motion. The evidence shows the defendant had lived in Colorado and Chicago, Illinois after the commission of the crime. He was apprehended in Chicago and returned to Missouri approximately nine months before the trial. The defendant asserts no claim of prejudice other than his inability to recall the events of the day in question. Such failure to recollect is a wholly subjective state of mind, and it was for the trial...