State v. Troupe

• Decision Date: 24 January 1995
• Docket Number: No. 77108,77108
• Citation: 891 S.W.2d 808
• Parties: STATE of Missouri, Respondent, v. Newton TROUPE, Appellant. Newton TROUPE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 808

891 S.W.2d 808

STATE of Missouri, Respondent, v. Newton TROUPE, Appellant.

Newton TROUPE, Appellant, v. STATE of Missouri, Respondent.

No. 77108.

Supreme Court of Missouri En Banc.

Jan. 24, 1995.

Rehearing Denied Feb. 21, 1995.

Susan K. Eckles, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., F. Martin Dajani, Asst. Atty. Gen., Jefferson City, for respondent.

COVINGTON, Chief Justice.

Appellant Newton Troupe brings this consolidated appeal from a conviction for possession of heroin in violation of § 195.202, RSMo Supp.1990, and the denial of his Rule 29.15 motion without an evidentiary hearing. The court of appeals dismissed appellant's direct appeal pursuant to the escape rule, finding that appellant forfeited his right to appeal by failing to appear for sentencing and remaining at large for more than eight months. The court of appeals reversed the judgment dismissing the postconviction appeal. This Court ordered transfer to decide whether Ortega-Rodriguez v. United States, --- U.S. ----, 113 S.Ct. 1199, 122 L.Ed.2d 581 (1993), requires the courts of Missouri to permit appellant to prosecute his appeal. Appeals dismissed.

Appellant was charged, as a class X offender and a persistent drug offender, with one count of illegal possession of heroin. On August 28, 1991, the second day of appellant's trial, the state and the defense made closing arguments, for which appellant was present. When the jury returned with a verdict of guilty, appellant was absent from the courthouse. The court sentenced appellant in absentia as a persistent drug offender and a class X offender.

Appellant was returned to custody on or about May 18, 1992. Appellant filed a pro se Rule 29.15 motion alleging ineffective assistance of trial counsel. The motion court sustained the state's motion to dismiss appellant's Rule 29.15 motion as untimely, but ordered appellant resentenced for the reason that he was not present for his initial sentencing. At resentencing, the trial court imposed the same fifteen year sentence it had imposed in absentia. Appellant contested this sentence by way of a timely pro se motion under Rule 29.15. The state moved to dismiss appellant's motion, arguing that under Missouri's escape rule appellant had forfeited his opportunity for postconviction relief. The motion court found that the trial court erred in sentencing appellant as a class X offender and ordered him resentenced without the class X designation. The motion court dismissed appellant's remaining claims without an evidentiary hearing.

The trial court resentenced appellant to fifteen years imprisonment without the class X offender status. Appellant appealed his conviction, sentence, and the denial of his Rule 29.15 motion without an evidentiary hearing. The state again moved to dismiss the appeals pursuant to the escape rule. The Missouri Court of Appeals, Eastern District, sustained the state's motion and dismissed appellant's direct appeal, but reversed the denial of appellant's Rule 29.15 motion without an evidentiary hearing and remanded. This Court granted transfer.

The escape rule operates to deny the right of appeal to a defendant who escapes justice. State v. Wright, 763 S.W.2d 167, 168 (Mo.App.1988). A defendant who flees justice also loses the opportunity to seek postconviction relief. Stradford v. State, 787 S.W.2d 832, 833 (Mo.App.1990).

Appellant claims that application of the escape rule in his case is contrary to law and deprives him of his constitutional rights. He argues, citing Ortega-Rodriguez, that the escape rule should not be automatically applied by appellate courts when the escape occurs prior to sentencing and has no impact on the appellate process.

In Ortega-Rodriguez, as in the instant case, the defendant fled prior to sentencing. Ortega-Rodriguez, --- U.S. at ----, 113 S.Ct. at 1202. The defendant was recaptured eleven months later. Id. He then filed a timely appeal from the court's judgment and sentence. Id. at ----, 113 S.Ct. at 1203. The United States Court of Appeals for the Eleventh Circuit sustained the government's motion to dismiss the appeal. Id. The United States Supreme Court held that, in general, a court of appeals may not dismiss an appeal pursuant to the federal fugitive from justice rule unless the escape coincides with the pendency of the appeal or it adversely affects the appellate process. Ortega-Rodriguez, --- U.S. at ----, 113 S.Ct. at 1209. The Supreme Court stated that recapture prior to the commencement of appellate proceedings usually severs the connection between the escape and the appellate process. Id. at ----, 113 S.Ct. at 1205-06. The Court stated that in circumstances in which the defendant escapes prior to invoking the appellate process, the sentencing court is generally the tribunal most directly affected by the escape and should be the court to consider appropriate sanctions. Id. at ----, 113 S.Ct. at 1209. The Court vacated the judgment of the court of appeals, and remanded the case for further proceedings consistent with the opinion. Id. at ----, 113 S.Ct. at 1210.

The pertinent facts of the present case are analogous to those of Ortega-Rodriguez, as well as several cases in which the Missouri Court of Appeals followed Ortega-Rodriguez without analysis and reviewed the merits of an appeal despite an escape. See State v. Akers, 877 S.W.2d 147 (Mo.App.1994); State v. Grisby, 867 S.W.2d 270 (Mo.App.1993); State v. Woods, 861 S.W.2d 326 (Mo.App.1993). The Supreme Court decided Ortega-Rodriguez in the exercise of its supervisory power over the federal courts and not on the basis of any constitutional principle. Ortega-Rodriguez, --- U.S. at ----, 113 S.Ct. at 1205. It falls to this Court, therefore, to determine whether to apply the reasoning of Ortega-Rodriguez to cases in Missouri in which a criminal defendant escapes during trial and is recaptured prior to initiating an appeal. After reviewing the various justifications for the escape rule alongside the reasoning of Ortega-Rodriguez, this Court determines not to depart from Missouri precedent.

Although application of the escape rule clearly requires a relationship between the escape and prejudice to the criminal justice system, this Court does not agree that the rule may be applied by an appellate court only when the appellate process itself is substantially prejudiced. For over a century Missouri courts have advanced rationales that justify application of the escape rule because of the adverse effect an escape has on Missouri's criminal justice system. The escape rule was first applied in Missouri in State v. Carter, 98 Mo. 431, 11 S.W. 979 (Mo.1889). In Carter, the defendant escaped while his appeal was pending. Id., 11 S.W. at 979. The rationale expressed for the application of the escape rule was the need for a court to have control over the defendant before rendering its decision on appeal. Id. at 980. Otherwise, the defendant "places himself in a position to speculate on the chances of reversal, meanwhile keeping out of the reach of justice, and prepared to render the judgment of reversal nugatory or not, at his option." Id.

Subsequently, courts advanced additional justifications for the escape rule. In State v. Kearns, 743 S.W.2d 553 (Mo.App.1987), the defendant, who remained free on bond following his conviction, failed to appear for sentencing and remained at large for more than five years. The defendant was captured and sentenced, and then sought to appeal the judgment and sentence. Id. at 553. The court applied the escape rule because of the administrative problems caused by the defendant's long absence. Id. at 554. In addition, the extended delay created "almost certain prejudice to the state in the event of a remand for a new trial." Id. The court in State v. Wright, 763 S.W.2d at 168-69, articulated another rationale:

Those who seek the protection of this legal system must, however, be willing to abide by its rules and decisions. [The defendant] comes before this court seeking vindication of her Fourth Amendment rights. Earlier, however, when she absconded she showed her reluctance to accept the decision of the trial court or to await the vindication of her rights by this court. She may not selectively abide by the decisions of the courts. By absconding, she has forfeited her right to appeal. (Citations omitted).

Furthermore, application of the escape rule discourages escape and encourages voluntary surrender. Kearns, 743 S.W.2d at 555.

Recently, in Robinson v. State, 854 S.W.2d 393, 396 (Mo. banc 1993), this Court recognized that the escape rule should not be applied to dismiss challenges to post-capture errors. "It is one thing to say that a defendant constructively waives errors in law that have occurred at the time of the escape; it is quite another to say that, having escaped and returned, the defendant is no longer entitled to be treated as provided by law because the escape forfeits all rights of appeal for the future." Id.

In the present case, appellant was at large for more than eight months. ¹ His escape, therefore, hindered the administration of justice in his case by at least this amount of time. It strains credulity to postulate that such a delay does not have an adverse impact on the criminal justice system and the state's case. If appellant were successful on the merits of an appeal, the cause might be remanded for a new trial. In that event, the state could be prejudiced by lost or destroyed evidence and witnesses who are no longer available. Further, over time, witnesses' memories fade, subjecting them to impeachment and consequent diminished credibility. ²

In escaping from custody, whether before or after filing a notice of appeal, a defendant flouts the authority of the courts. Ortega-Rodriguez, which permits dismissal pursuant to the fugitive from justice rule only if the escape had "a significant interference with the operation of [the] appellate process," Orte...