State v. Scott
| Decision Date | 13 October 1981 |
| Docket Number | No. 63082,No. 1,63082,1 |
| Citation | 621 S.W.2d 915 |
| Parties | STATE of Missouri, Respondent, v. Roy E. SCOTT, Appellant |
| Court | Missouri Supreme Court |
Simon, Simon & Katz, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Michael Elbin, Asst. Atty. Gen., Jefferson City, for respondent.
Roy Scott, convicted of robbery in the first degree, § 560.120, RSMo 1969 (since repealed), appeals.
Substantial evidence adduced by the State authorized a jury finding that on August 21, 1978 appellant robbed Lee Trowbridge at gun point at her place of employment, Manor Bakery Thrift Store; that appellant made off with the store's money; that a customer observed a brown and tan van parked in the store's parking lot, and saw a man walking out of the store carrying a brown bag; that immediately after the robbery that van was seen heading west; that the police, notified and informed that a tan over brown van with two black occupants was possibly the vehicle used in the robbery, stopped a westbound van fitting that description. An officer observed appellant moving his hands down below the level of the dashboard and leaning forward in the seat. Appellant, a passenger, and another occupant of the van, the driver, were arrested. The van was searched without a warrant. A .38 caliber chrome-plated revolver was found inside the heat duct in the dashboard. A brown paper sack containing small manila envelopes marked "for bank deposit" was found in front of the passenger seat. An "inventory search" produced a money bag containing change and currency.
Appellant's defense was alibi.
Appellant's first point is that the court erred "in failing to afford the defendant a hearing on the motion to dismiss the information * * * against the clear admonition of Rule 24.04(b)4." 1 The motion prayed for dismissal because of the delay between the time the offense is alleged to have occurred and the time charges were brought against him.
The offense was committed on August 21, 1978, according to the information, which was filed nine months later, on May 22, 1979. The motion to dismiss alleged that defendant was arrested in 1978 but charges were declined and he was released when the victim of the crime identified another as the party who robbed her; that subsequently the victim positively identified defendant, whereupon charges were filed against defendant; that the lapse of time between these dates deprived defendant of due process in that defendant lost the testimony of two named persons, and "possible alibi or other defense witnesses which (sic) could offer evidence material to the Defendants whereabouts at the time, place and location of the alleged occurrence", and that due to the passage of time defendant had a lapse of memory, rendering him less able to assist counsel.
A pre-trial hearing, with an assistant prosecuting attorney and the attorney for defendant present in court, was held for the purpose of considering three preliminary motions: the motion to dismiss the information due to pre-indictment delay; a motion to suppress in-court identification, and a motion for a continuance. Counsel for defendant argued the latter two motions. The court overruled the motion to suppress and sustained the motion for a continuance. Counsel for defendant did not ask for an opportunity to present evidence on the motion to dismiss, nor did he seek to argue that motion. The record relating to that motion follows
Counsel for defendant did not object to the Court's action in not affording defendant a hearing on the motion; did not request the Court to set aside or withdraw its ruling; did not ask for a rehearing, and did not apply to the Court by motion or otherwise for leave to renew the motion to dismiss. Instead, counsel for defendant stood mute in open court and submitted to the ruling without objection. Under these circumstances appellant has no cause for complaint, State v. Jones, 531 S.W.2d 67, 75 (8) (Mo.App. 1975); is held to have waived his right to present evidence or argue the motion at the hearing on the motion, Rule 24.04(b)(2), 2 Marty v. Ahl, 5 Minn. 27 (1860), and to have acquiesced in the overruling of the motion to dismiss. Marty v. Ahl, supra, 5 Minn. at 35. Compare United States v. Price, (8th Cir. 1972), 464 F.2d 1217 (5).
Appellant is not entitled to relief under the plain error rule. The motion to dismiss did not allege facts sufficient to show that defendant was entitled to the relief requested. If appellant had been afforded a hearing and had established everything alleged in the motion there would still have been no legal justification for dismissal. To be entitled to dismissal of an information for preindictment delay a defendant must show two things: (1) that the preindictment delay caused substantial prejudice to his right to a fair trial, and (2) "that the delay was an intentional device to gain tactical advantage over the accused." United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 465 (14), 30 L.Ed.2d 468 (1971); United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); State v. Thomas, 529 S.W.2d 379 (Mo.1975); State v. Davis, 585 S.W.2d 60 (Mo.App. 1979). Although appellant alleged loss of the testimony of two witnesses by reason of the delay, he did not allege, and did not prove, that the delay was an intentional device to gain tactical advantage over the accused.
It is clear from appellant's motion and from the record that the delay in filing the charge against appellant was an investigative delay. Appellant was arrested and a lineup was conducted within an hour or so after the robbery. Appellant and four others appeared in the lineup. The victim, present at the lineup, positively identified Roy Scott as the robber but through the mistake of one of the officers or a typist the lineup report stated inaccurately that the victim identified one Brown as the robber. On the basis of the inaccurate report the prosecutor declined to prosecute Roy Scott, who was released from custody. Later the victim again positively identified Roy Scott as the robber, whereupon he was re-arrested and an information filed charging him with the offense. Once the mistake was discovered the prosecution was commenced and proceeded without delay.
The pre-indictment delay in this case, due to the mix-up in reporting the name of the person actually identified was investigative in nature. " * * * (T)o prosecute a defendant following investigative delay does not deprive him of due process, even if his defense might have been somewhat prejudiced by the lapse of time." United States v. Lovasco, supra, 97 S.Ct. at 2051-2(9). The prosecutor properly declined to file charges against Scott on the basis of a lineup report naming Brown as the robber. Prosecutors are not required to, and...
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