State v. Strong
| Decision Date | 25 September 1972 |
| Docket Number | No. 56609,No. 2,56609,2 |
| Citation | 484 S.W.2d 657 |
| Parties | STATE of Missouri, Respondent, v. Billy Taylor STRONG, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent.
John P. Beihl, Robert B. Randolph, St. Joseph, for appellant.
Billy Taylor Strong was convicted by a jury of the first degree murder of Robert Cordonier on September 23, 1969, in St. Joseph, Missouri, and sentenced to life imprisonment. We affirm.
The day before the killing the defendant purchased a .22 caliber long rifle pistol, serial No. 490910 from John Westbrook, a clerk at the Dave Cook Sporting Goods store located in Denver, Colorado, for $25. A record of the transaction was made at the time and defendant produced his Colorado driver's license, which contained his photograph, at the time of the purchase for purpose of identification. Defendant signed the purchase form in the clerk's presence and at the trial the clerk identified the defendant as the purchaser of the pistol. Clerk Westbrook further identified the pistol found near the scene of the slaying as the one he sold defendant and produced the purchase form signed by defendant.
The following day, September 23, bartender John O'Brien of Tom's Tavern in St. Joseph saw the defendant in the tavern on three occasions between 4 o'clock p.m. and 6:30 o'clock p.m. On the first occasion the bartender overheard the defendant talking to a third person about Denver, Colorado. On the second and third occasions defendant was with Chuck Warner and the bartender served them drinks.
Warner, also charged with the murder of Cordonier, knew the defendant but had not seen him for several years until he met him near Tom's Tavern during the late afternoon of September 23. Defendant told Warner he needed a car in order to commit a robbery and the two men discussed stealing a car. Defendant displayed a .22 caliber pistol and a box of shells to Warner and told him he wanted Warner to drive the car in a 'bank job' and he (the defendant) would 'handle the gun.' They left Tom's Tavern and as they approached Tura's Lounge on Sixth Street they saw a white colored car, later identified as a 1964 Dodge Dart sedan owned by Cordonier, on a parking lot across from Tura's. Following a drink in this tavern the two men then walked outside the establishment and defendant told Warner he was going to get the white car. They thought someone was in the car and Warner told the defendant he did not want anyone to get hurt. Defendant stated he would stop anybody that got in his way. Defendant and Warner crossed the street and approached the white vehicle, with defendant going to the driver's side of the automobile and Warner going to the passenger's side of the front seat. The door next to Warner was locked but he could make out a form in the front seat of the car and could hear the car radio. Warner kept looking toward Sixth Street and in about a minute or a minute and a half he heard a shot. Defendant came around the rear of the car with the pistol in his hand and said: 'Come on, let's get out of here.' As the two ran from the scene, defendant threw the pistol into a doorway of a nearby building. The pair then separated.
As Frank Harris was leaving Tura's about 6:30 o'clock p.m. he heard something like a firecracker or shot from near the white car on the parking lot. Sheldon Smith was just entering Tura's and he and Harris saw two men near the white car. When Harris and Smith started towards the car the two men ran from the parking lot. Harris recognized Warner but not the defendant. Harris and Smith saw Cordonier lying on the ground near the driver's side of the white car. Harris gave chase and went north on Sixth Street and seized Warner and held him until police officers arrived.
Officers arrived shortly thereafter and took photographs and measurements of the body of Cordonier and of the scene. The dead man was lying on the parking lot near the rear wheel of his automobile. The driver's door was open and the car radio was playing. The officers found the .22 caliber pistol in the vestibule of a nearby building. The weapon contained five unfired Super X cartridges and one fired Super X shell. At a different location but near the scene, a box of Super X .22 caliber long rifle ammunition was found. Six of the original fifty cartridges were missing. Ballistics tests of the gun and cartridges and comparison examinations of the spent cartridge and slivers of a bullet from the victim's brain brought forth the opinion that the pistol fired the fatal shot.
An autopsy of the victim revealed a 'gun sight' wound to the face, 'defense-type' lacerations on the back of both hands, a laceration and swelling of one knee, and a bullet hole which entered the rear of the head with a partial exit wound in the left top area of the skull. Bullet fragments were found in the brain and the skull was fractured.
Defendant offered no evidence and unsuccessfully moved for a judgment of acquittal at the close of the state's evidence
Defendant first contends that the magistrate court lost jurisdiction because of seven continuances from November 28, 1969, to April 6, 1970. While it is true our Rule 23.06, V.A.M.R., provides continuation of a preliminary hearing is not to exceed ten days at one time, the failure to adhere to this rule did not oust the magistrate court of its jurisdiction. In State v. Caffey, Mo., 438 S.W.2d 167, we held that a continuation of a preliminary hearing over an eleven month period was a procedural irregularity and did not divest the magistrate court or the circuit court of jurisdiction over the subject matter. We also note that it was admitted that several of the continuances in magistrate court were with the knowledge and consent of defendant.
Defendant further claims that the elapse of eleven months between his arrest and the trial deprived him of his constitutional right to a speedy trial and a violation of due process. In Caffey, supra, and more recently in State v. Roach, Mo., 480 S.W.2d 841, the rule is set forth that the right to a speedy trial does not begin until the information is filed. (Our emphasis.) Here, the information was filed five months before the trial and the passage of substantial periods of time between arrest and trial does not of itself violate the constitutional guarantee of a speedy trial. State v. Quinn, Mo., 405 S.W.2d 895; Hodges v. United States, 408 F.2d 543 (8th Cir.).
Defendant also argues that three terms of court had expired before his trial and under § 545.890, RSMo 1969, V.A.M.S., he was entitled to be discharged. In order to seek the benefit of this statute defendant starts the time running as of November 19, 1969, when he first appeared in magistrate court for what he designates his 'arraignment.' Section 545.890 requires in some circumstances the discharge of a person indicted and committed to prison if he is not brought to trial within two terms after the indictment is found. The Buchanan County Circuit Court has three terms of court (the first Mondays in January, May and October, § 478.220, RSMo 1969, V.A.M.S.), and therefore § 545.920 applies and extends the time for trial to three terms. However, defendant would not have been entitled to be discharged under either statute. His position as to this contention is thwarted by the plain language of the statutes, which in this case became applicable on May 4, 1970, when the information was filed, and not September of 1969 when he was arrested or in November of 1969 when he first appeared in magistrate court. The information being filed in the May term of 1970 this term would be excluded in applying the statute. Trial of defendant occurred in the next following (October) term. Defendant is not entitled to a statutory discharge. State v. Roach, 480 S.W.2d 841; State v. Morton, Mo., 444 S.W.2d 420; State v. Harper, Mo., 473 S.W.2d 419.
In his brief herein defendant complains that his cross-examination of Warner war unduly restricted by the trial judge and this constituted a deprivation of his constitutional right of confrontation. Defendant states that the trial judge refused to allow his counsel to cross-examine Warner as to what this witness first told police concerning defendant's participation in the crime. We have reviewed the cross-examination of witness Warner and find this assignment of error to be without merit. In the twenty-three transcript pages of cross-examination of Warner the only question that was asked of the witness concerning this matter was as follows:
No objections were made by the state, defendant did not pursue this line of questioning, and the trial court made no ruling on the matter.
Defendant argues his motion for a judgment of...
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