State v. Robinson, WD

• Decision Date: 02 July 1985
• Docket Number: No. WD,WD
• Citation: 696 S.W.2d 826
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Calvin E. ROBINSON, Defendant/Appellant. 35908.
• Court: Missouri Court of Appeals

Page 826

696 S.W.2d 826

STATE of Missouri, Plaintiff/Respondent, v. Calvin E. ROBINSON, Defendant/Appellant.

No. WD 35908.

Missouri Court of Appeals Western District.

July 2, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled

and Denied Aug. 27, 1985.

William Shull (argued), Fredrich J. Cruse, Hannibal, Mo., for defendant/appellant.

John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff/respondent.

Before LOWENSTEIN, P.J., and NUGENT and BERREY, JJ.

NUGENT, Judge.

Defendant Calvin E. Robinson, appeals his conviction for the Class C felony of stealing in violation of § 570.030. ¹ He raises four points on appeal: First, delay both before the filing of the information and after arraignment. Second, the improper conduct of the prosecuting attorney during the trial. Third, error in admission of evidence and in permitting certain prosecution argument. Finally, error in giving the instruction on accountability, an improper modification of MAI CR2d 2.12. We affirm the judgment.

On March 9, 1981, two unidentified men came to the rural Shelby County home of 77-year old Bert Bower. He testified that the two men posed as representatives of a lightning rod company and said that, if he would give to them a $1,200 check, in return he would receive a six to eight thousand dollar rebate from the company. Relying upon their representations, Mr. Bower gave the two men a check bearing only his signature, leaving blank the date, amount and the name of the payee. In Mr. Bower's presence, one of the men then filled in the amount of $1,200 and the defendant's name, Clavin Robinson, misspelling the name. Mr. Bower followed the men out and saw a third unidentified person sitting in their car.

After they had departed, Mr. Bower drove the five miles to the Citizen's Bank of Shelbyville in "ten minutes or less." As Mr. Bower was endorsing another check, defendant Robinson entered the bank carrying the $1,200 check and presented it to the teller. Mr. Bower determined that the check was his and told the teller not to cash it. The defendant said to Mr. Bower that "[they] had been out to the house and done some work and [that Mr. Bower's] brother was there and give [sic] them this check for the work they'd done out there." Mr. Bower told the defendant that his brother had not been at his house and that he was the one who had given the check. He retrieved the check from the defendant and headed for the sheriff's office. Mr. Robinson departed.

The prosecution of defendant began with the filing of a complaint and his arrest on April 8, 1983. On April 20, the preliminary hearing was held, and on May 12, 1983, the information was filed and the defendant arraigned. Between May 12 and November 23, 1983, defendant asked for and obtained three continuances. In the period from May, 1983 to January, 1984, defendant had three different attorneys. The prosecution sought a trial setting on May 12 and again on November 9, 1983. On defendant's applications for change of venue and change of judge, his case was transferred to Macon County. On February 3, 1984, defendant filed two motions to dismiss, one for failure to file the information in a timely manner and the other for failure to grant a speedy trial. The case was tried on February 6, 1984. Immediately after the trial began, defendant renewed his motions to dismiss, but both were denied. At the close of the State's case, the court denied defendant's motion for acquittal. Defendant offered no evidence.

During the preparation of jury instructions, defendant prevailed upon the court to modify MAI-CR2d 2.12, the verdict director, to add the words "before or during" to reflect the meaning of § 562.041 regarding responsibility for conduct of another. The phrase "before or during" was not included in the approved instruction then in effect.

I. Delay of Prosecution

Defendant's first point is that the trial court erred in overruling his motions to dismiss for pre-information and post-arraignment delay which prejudiced his constitutional rights in that he was unable properly to prepare his defense. He asserts that he was deprived of his Fifth and Sixth Amendment rights in that he was not charged until April 8, 1983, for a March 9, 1981, offense and in that he did not get a trial until February 6, 1984. He also claims that he was not given a trial within 180 days in violation of § 545.780.

A. Pre-Accusation Delay

If a delay occurs in the pre-accusation stage, the defendant must look to the protections afforded by the statutes of limitation and by the Fifth Amendment's Due Process Clause. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); Dillingham v. United States, 423 U.S. 64, 96 S.Ct. 303, 46 L.Ed.2d 405 (1975); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); United States v. Barket, 530 F.2d 181 (8th Cir.1975), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 282 (1976); State v. Holmes, 643 S.W.2d 282, 285 (Mo.App.1982). In Marion the Court stated at 464 that "the applicable statute of limitations ... is ... the primary guarantee against bringing overly stale criminal charges." The Court also recognized that the statute of limitations does not fully define a defendant's right to be speedily accused and that governmental pre-prosecution delay may violate a defendant's right to due process under the Fifth Amendment. Therefore, a statute of limitations, even though it has not yet expired, does not automatically foreclose a defendant's assertion of prejudice from pre-accusation delay.

The Due Process Clause requires dismissal of defendant's case if he shows at trial that pre-indictment delay caused substantial prejudice to his right to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. United States v. Marion at 324, 92 S.Ct. at 465; State v. Scott, 621 S.W.2d 915, 917 (Mo.1981); State v. Waselewski, 674 S.W.2d 177, 178-79 (Mo.App.1984). Although proof of prejudice is generally necessary, by itself it is not sufficient to support a due process claim. Any due process inquiry must consider the reasons for the delay as well as the prejudice to the accused. United States v. Lovasco at 790, 97 S.Ct. at 2049. Necessarily, the reasonableness of the delay must be balanced against any resulting prejudice to the defendant. The test for determining prejudicial impact is whether the delay has impaired the defendant's ability to defend himself. United States v. Barket at 193. In Barket, the Eighth Circuit said at 193:

A test for judging the reasonableness of pre-indictment delay comparable to that for assessing whether the defendant was prejudiced by the delay has, however, not yet been clearly developed. Lacking a predetermined standard, we employ a "delicate judgment" based upon the circumstances of each case, United States v. Marion, supra, 404 U.S. at 325, ... balancing a combination of factors such as those employed in Barker v. Wingo, 407 U.S. 514 [92 S.Ct. 2182, 33 L.Ed.2d 101] ... (1972), for assessing the impact of the denial of speedy trial after arrest.

Finally, not every "delay-caused detriment to a defendant's case should abort a criminal prosecution." United States v. Marion at 324-25, 92 S.Ct. at 465-466. Due process claims of pre-accusation delay are to be scrutinized closely for actual prejudice and should not be loosely interpreted. United States v. Barket at 196.

Accordingly, in this case we see no error or violation of defendant's constitutional rights in the court's denial of defendant's motion to dismiss for prejudice for pre-information delay. The crime was committed on March 9, 1981, and the defendant was charged April 8, 1983. Section 556.036.2(1), the three-year statute of limitations for a felony, was applicable, and the twenty-five month delay was within that limit. Moreover, defendant has not adequately demonstrated that the delay violated the Due Process Clause. He contends that he was prejudiced by the fact that one witness, Owens, was unavailable for trial, but he failed to show what Owens would have said or why he was unavailable. Defendant has failed to show how he was prejudiced. Further scrutinizing defendant's claim, we note that no evidence or explanation of the reason for the delay appears in the record. The state gave no explanation for the delay, and the defendant made no showing of purposeful delay of his arrest to gain a tactical advantage. Here we find no evidence of substantial prejudice to justify dismissal.

B. Post-Accusation Delay

Defendant next contends that he was denied his constitutional right to a speedy trial guarantied by the Sixth Amendment and by Art. I, § 18(a), of the Missouri Constitution. He further alleges violation of Missouri's Speedy Trial Act, § 545.780, which requires that a trial must begin within 180 days of arraignment. On February 3, 1984, defendant filed a motion to dismiss asserting violation of his constitutional right to a speedy trial. On February 6, 1984, the motion was denied. We deal first with the constitutional issues.

Post-accusation delay entitles a defendant to the protections of the Sixth Amendment. This limitation arises from the wording of the amendment which extends its protection only to "the accused" in a criminal prosecution. Defendant's entitlement to the protection of the Sixth Amendment depends upon when he became "an accused." The rule now is that the time for purposes of speedy trial under the Sixth Amendment begins to run from the time of the indictment or information or an arrest, whichever occurs first. United States v. Marion, 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed.2d 468 (1971); Dillingham v. United States, 423 U.S. 64, 65, 96 S.Ct. 303, 304, 46 L.Ed.2d 205 (1975); State v. Holmes, 643 S.W.2d 282, 285 (Mo.App.1982).

We said in State v. Holmes at 286 that in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the ...