State v. Thompkins

• Decision Date: 04 November 1974
• Docket Number: No. KCD,KCD
• Citation: 515 S.W.2d 808
• Parties: STATE of Missouri, Respondent, v. Curtis Keith THOMPKINS, Appellant. 27004.
• Court: Missouri Court of Appeals

Page 808

515 S.W.2d 808

STATE of Missouri, Respondent, v. Curtis Keith THOMPKINS, Appellant.

No. KCD 27004.

Missouri Court of Appeals, Kansas City District.

Nov. 4, 1974.

F. A. White, Jr., Asst. Public Defender, Seventh Judicial Circuit, Liberty, for appellant.

John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P.J., and SWOFFORD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Curtis Keith Thompkins, appellant, was charged by indictment with selling a quantity of marijuana, a felony, and convicted by a Clay County jury, which set his punishment at eight years in the custody of the Missouri Department of Corrections. This is a direct and timely appeal from that judgment and sentence.

Appellant has assigned four (4) points of error on appeal. The first two challenge his pre-trial detention, charging that the trial court's refusal (1) to release him upon his own recognizance and (2) to order reduction of the $25,000.00 bond constituted reversible error.

Bail has only one legal purpose, and that is to insure the defendant's presence at trial. Ex parte Chandler, 297 S.W.2d 616 (Mo.App.1957); Koen v. Long, 302 F.Supp. 1383 (E.D.Mo.1969). While it is true that the Eighth Amendment protects a criminal accused from imposition of excessive bail, no court has yet held that the Eighth, or any other amendment, constitutes a constitutional basis for a person to be released without bail or on his own recognizance. Koen v. Long, supra; Mastrian v. Hedman, 326 F.2d 708 (8th Cir. 1964), cert. den. 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982 (1964). Appellant has not favored this court with any citation of authority, nor has this court's own research disclosed any, construing Article I, Section 21, of the Missouri Constitution, V.A.M.S., the state counterpart to the Eighth Amendment of the Constitution of the United States, as affording a person a constitutional right to be released without bail or on his own recognizance. Here the appellant was charged with a serious felony, was unemployed, and has no familial ties in the Clay County area. Under these circumstances, the trial court was justified in refusing to release appellant upon his own recognizance and such constituted a proper exercise of discretion afforded by Section 544.455, RSMo Supp. 1973. Appellant's first point is ruled against him.

Regarding appellant's second point, the proper procedure for challenging the excessiveness of bail should be noted. In Missouri, the correct procedure is provided by Rule 32.08, V.A.M.R., and subsequently by habeas corpus if that should prove unsuccessful. Dabbs v. State, 489 S.W.2d 745 (Mo.App.1972). In the federal system a substantially analogous procedure exists--a motion for reduction, and a timely appeal from an order denying such motion. Fed.Rules Crim.Proc. Rule 46(a); 18 U.S.C.A. § 3146 and § 3147; and Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951). In the widely cited case of Hemphill v. United States, 392 F.2d 45 (8th Cir. 1968), cert. den. 393 U.S. 844, 89 S.Ct. 176, 21 L.Ed.2d 149 (1968), it was held that a contention, after conviction, that a person was prejudiced from denial of his motion for reduction of bail was untimely, even where, as here, the person contended he had been prevented from properly preparing his defense because of said denial.

Appellant proffered no justification for his failure to seek relief by way of habeas corpus from the trial court's refusal to reduce the allegedly excessive bail. Nor did appellant offer any proof that his counsel attempted to identify and locate potential witnesses on his behalf, but was thwarted or encountered a wall of silence in doing so. In view of these negative aspects permeating appellant's second point, the substantial similarity between the procedure in this state and that in the federal system afforded for questioning the excessiveness of bail other than by direct appeal on the merits of the case, and, concomitantly, the persuasive authority of Hemphill v. United States, supra, this court rules that appellant's second point is untimely and, consequently, affords him no basis for relief on direct appeal.

Appellant charges by his third point that the trial court erred in refusing to require the state to divulge the identity of a police informant who was present at the time of the proscribed sale, but who was never called by the state as a witness. Determination of this issue is tested by 'fundamental requirements of fairness'. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Edwards, 317 S.W.2d 441 (Mo.banc 1958); and State v. Yates, 442 S.W.2d 21 (Mo.1969). Roviaro pragmatically recognized application of the test of 'fundamental requirements of fairness' to be somewhat elusive at best, and, accordingly, noted (353 U.S. l.c. 62, 77 S.Ct. l.c. 628):

'We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.'

In other words, 'fundamental requirements of fairness' cannot be stereotyped as a rule of thumb or doctrinarily applied.

In this case, although the unidentified informant introduced the police officer (who was the state's principal witness) to the appellant and was present at the time of the sale of the controlled substance to the officer, there was no evidence that the informant sought to ingratiate himself with appellant so as to lull him into a false sense of confidence or security. Nor is there any contention of entrapment. From a practical standpoint, appellant is in no position to contend persuasively on appeal that identity of the informant was crucial in order to have available a witness who might possibly raise a cloud of doubt...