State v. Sykes, No. 41760

CourtCourt of Appeal of Missouri (US)
Writing for the CourtSMITH
Citation611 S.W.2d 278
Decision Date09 December 1980
Docket NumberNo. 41760
PartiesSTATE of Missouri, Respondent, v. Jerry SYKES, Appellant.

Page 278

611 S.W.2d 278
STATE of Missouri, Respondent,
v.
Jerry SYKES, Appellant.
No. 41760.
Missouri Court of Appeals, Eastern District, Division Four.
Dec. 9, 1980.
Motion for Rehearing and/or Transfer to Supreme Court Denied
Jan. 16, 1981.
Application to Transfer Denied March 9, 1981.

Page 280

Robert C. Babione, Public Defender, John Putzel, Asst. Public Defender, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Paul R. Otto and Mary C. P. Pincus, Asst. Attys. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, for respondent.

SMITH, Presiding Judge.

Defendant appeals from his conviction by a jury of robbery first degree and armed criminal action, and resultant 15 and 10 year concurrent sentences by the court. We affirm the robbery conviction and reverse the conviction for armed criminal action.

The evidence supports the conclusion that defendant and another man, Dwayne Jenkins, held up the bar maid of the Texas Lady Lounge in the City of St. Louis, at gunpoint, on October 26, 1977. Jenkins was arrested as he left the Lounge by police answering a silent alarm activated by the bar maid. Defendant was chased by a police officer and escaped. He was arrested in Boston approximately eight months after the robbery.

Defendant's first point is that the trial court erred in refusing to order the attendance at trial of a witness residing in Boston. The motion for such attendance was filed pursuant to Sec. 491.420 RSMo 1978. The witness involved was Lucy Woods, defendant's grandmother. Counsel advised the court that he had received a letter purportedly signed by Ms. Woods (but not written by her) indicating that defendant had been in Boston from October 20 through October 26, 1977. The letter was not identified nor offered in evidence. In response to the letter, counsel talked to a woman in Boston who identified herself as Lucy Woods. In the telephone conversation, the woman indicated her belief that defendant arrived in Boston "somewhere in the middle of October or toward October 20, 1977, and had in fact resided with her for a week or two weeks prior to leaving her residence to live in another place, but within the city of Boston." Counsel did acknowledge "that at no time did she claim to be able to testify beyond, without any doubt at all, that her grandson resided with her on October 26." No affidavit of Ms. Woods was offered nor was any further evidence adduced that Ms. Woods was a material witness.

Secs. 491.400 through 491.450, RSMo 1978, is the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. It provides that if a person in another state which has adopted the Uniform Act is a material witness in a prosecution in this state, the court may issue a certificate stating such facts and specifying the number of days the witness will be required. This certificate is then presented to a judge in the county where the witness may be found. Following a hearing that judge, if he finds certain statutorily established facts, shall issue a summons compelling attendance by the witness in the requesting state or if required the witness is taken into custody and delivered to an officer of the requesting state. Massachusetts has enacted the Uniform Act.

The constitutionality of this act has been upheld. See New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). It is apparent that the statute, while constitutional, can have a substantial impact temporarily upon the freedom of the witness. As a result the courts have required a clear showing that the testimony of the witness is in fact both material and necessary. State v. Ivory, 609 S.W.2d 217 (Mo.App.E.D. 1980); People v. McCartney, 38 N.Y.2d 618, 381 N.Y.S.2d 855, 345 N.E.2d 326 (1976); People v. Cavanaugh, 69 Cal.2d 262, 70 Cal.Rptr. 438, 444 P.2d 110 (Cal.banc 1968); People v. Newville, 220 Cal.App.2d 267, 33 Cal.Rptr. 816 (Cal.App.1963). The burden is upon the party seeking the presence of the witness to establish the materiality and necessity of the witness. That party should present evidence

Page 281

by affidavit of the witness or in some other way establish the testimony is material and necessary. Unsupported statements of materiality and necessity are not sufficient to require the trial judge to grant the application under the statute. State v. Ivory, supra; People v. McCartney, supra (3-5). Even where the showing of materiality and necessity is made the granting of the application is largely within the discretion of the trial court, for the statute provides he "may" issue the certificate. Sec. 491.420.1 RSMo 1978; State v. Ivory, supra; People v. McCartney, supra (6, 7); People v. Cavanaugh, supra (3, 4); People v. Newville, supra (9).

We find no abuse of discretion by the trial court. No evidence was presented to the court to establish...

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6 practice notes
  • K.K.M., In Interest of, No. 45698
    • United States
    • Court of Appeal of Missouri (US)
    • January 25, 1983
    ...to take custody of the child from the stepfather. This court affirmed the trial court's finding that the natural father was not unfit. 611 S.W.2d at 278[8, 9]. Evidence of other special or extraordinary factors which may have rebutted the natural parent's right to the child was not before t......
  • State v. Closterman, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • February 13, 1985
    ...witness to be compelled to attend and testify" would occur and denied Missouri's request. According to a footnote in State v. Sykes, 611 S.W.2d 278, 281 n. 1 (Mo.App.1980), the uniform act is not constitutionally mandated. The court there cited People v. Cavanaugh, 69 Cal.2d 262, 70 Ca......
  • State v. Moore, No. 64688
    • United States
    • Court of Appeal of Missouri (US)
    • June 28, 1994
    ...the burden is on the party seeking the presence of the witness to establish the materiality and necessity of the witness. State v. Sykes, 611 S.W.2d 278, 280 (Mo.App.1980). That party should present evidence by affidavit of the witness or in some other way establish the testimony is materia......
  • State v. Patrick, No. 53598
    • United States
    • Court of Appeal of Missouri (US)
    • July 26, 1988
    ...materiality or necessity of the testimony of either witness was offered at trial, nor for that matter in this court. See State v. Sykes, 611 S.W.2d 278 (Mo.App.1980) [1-3]. The attachment was requested under Sec. 491.150 RSMo 1986 which does not have extra-territorial reach. State v. Ivory,......
  • Request a trial to view additional results
6 cases
  • K.K.M., In Interest of, No. 45698
    • United States
    • Court of Appeal of Missouri (US)
    • January 25, 1983
    ...to take custody of the child from the stepfather. This court affirmed the trial court's finding that the natural father was not unfit. 611 S.W.2d at 278[8, 9]. Evidence of other special or extraordinary factors which may have rebutted the natural parent's right to the child was not before t......
  • State v. Closterman, No. WD
    • United States
    • Court of Appeal of Missouri (US)
    • February 13, 1985
    ...witness to be compelled to attend and testify" would occur and denied Missouri's request. According to a footnote in State v. Sykes, 611 S.W.2d 278, 281 n. 1 (Mo.App.1980), the uniform act is not constitutionally mandated. The court there cited People v. Cavanaugh, 69 Cal.2d 262, 70 Ca......
  • State v. Moore, No. 64688
    • United States
    • Court of Appeal of Missouri (US)
    • June 28, 1994
    ...the burden is on the party seeking the presence of the witness to establish the materiality and necessity of the witness. State v. Sykes, 611 S.W.2d 278, 280 (Mo.App.1980). That party should present evidence by affidavit of the witness or in some other way establish the testimony is materia......
  • State v. Patrick, No. 53598
    • United States
    • Court of Appeal of Missouri (US)
    • July 26, 1988
    ...materiality or necessity of the testimony of either witness was offered at trial, nor for that matter in this court. See State v. Sykes, 611 S.W.2d 278 (Mo.App.1980) [1-3]. The attachment was requested under Sec. 491.150 RSMo 1986 which does not have extra-territorial reach. State v. Ivory,......
  • Request a trial to view additional results

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