State v. Wade, 46872

• Decision Date: 31 January 1984
• Docket Number: No. 46872,46872
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Nathaniel WADE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 869

666 S.W.2d 869

STATE of Missouri, Plaintiff-Respondent, v. Nathaniel WADE, Defendant-Appellant.

No. 46872.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 31, 1984.

Motion for Rehearing and/or Transfer to

Supreme Court Denied

March 8, 1984.

Jane B. Phillips, Sp. Asst. Public Defender, St. Louis, for defendant-appellant.

Carrie Francke, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

NORWIN D. HOUSER, Senior Judge.

Nathaniel Wade, charged with Stealing Without Consent, a Class C Felony, § 570.040, RSMo 1978, tried and convicted by a jury and sentenced by the court to 12 years in the custody of the department of corrections as a persistent offender under § 558.016, RSMo 1978, has appealed.

Appellant's first point is that the court erred in refusing to grant a continuance and in forcing the case to trial because defendant's counsel, through no fault of defendant or counsel, was not prepared to try the case. On December 15, 1982 the case was sent to the office of the special assistant public defender. It was assigned to attorney Jane B. Phillips, who joined the staff of the public defender on December 16, 1982. Counsel entered her appearance on December 28, 1982. The case was sent to trial on January 18, 1983, three weeks after it was assigned to Ms. Phillips. Counsel unsuccessfully sought a continuance from the assignment judge on the basis that she had seen defendant only once prior to being sent out for trial. Counsel renewed her request for a continuance in the trial courtroom. Her request was made orally, no written affidavit for a continuance having been filed pursuant to Rules 24.09 and 24.10. Counsel told the court she had not interviewed any of the State's witnesses; had not sought to speak with the co-defendant, and had no opportunity to visit the scene. Prior to trial the prosecutor had provided defendant's counsel with police reports and a list of the witnesses the State expected to call. Counsel for defendant, who had called no witnesses on behalf of defendant, gave the court no explanation or reason for not having taken any of the foregoing steps to prepare for trial during the three weeks she had been in charge of the defense. The court denied the oral request for a continuance but gave defense counsel an opportunity to interview the State's witnesses before they testified. Counsel was allowed five minutes to interview each of them. Counsel asserts on appeal that in the course of the interviews she was confronted with several documents she did not understand and did not have sufficient time to study. Counsel filed and presented pretrial motions to dismiss the indictment and to suppress statements and evidence. She filed a motion for judgment of acquittal at the close of the evidence, and a motion for a new trial after verdict. On appeal counsel complains that the trial judge pressed counsel to hurry, and to adhere strictly to the scope of the motions; instructed counsel not to argue with the court or witnesses; pushed her throughout the two-day trial to move quickly, and that defendant "was a hapless pawn in an understaffed office" (a statement unsupported by evidence).

A review of the performance by counsel in defending appellant, considering the trial transcript, reveals no impatience or hurrying tactic on the part of the trial judge and demonstrates that defense counsel cross-examined each of the State's witnesses extensively and effectively and represented her client intelligently and zealously.

The fact that defense counsel is not adequately prepared for trial is not ground for a continuance if counsel has had an adequate opportunity to prepare for trial. State v. Belleville, 362 S.W.2d 77 (Mo.App.1962). Counsel had three weeks within which to prepare for trial. This was adequate under the circumstances. See and compare State v. Cheesebrew, 575 S.W.2d 218, 225 (Mo.App.1978).

Counsel's vigorous representation of defendant is convincing evidence of her familiarity with the facts of the case and demonstrates that defendant was accorded a fair trial and enjoyed the effective assistance of counsel. ¹ The granting of a continuance is a matter of discretion of the trial court. The appellate court will not intervene unless the trial court's ruling is clearly an abuse of discretion. State v. Carroll, 543 S.W.2d 48, 49 (Mo.App.1976); State v. Collie, 503 S.W.2d 445, 446 (Mo.App.1973). The trial court properly exercised its discretion in this case.

Appellant's second point relates to the sufficiency of the indictment.

Defendant and one Willie Dean were jointly indicted for the Class C felony of Stealing, pursuant to §§ 570.030 and 570.040, RSMo. By motion to dismiss filed on the day of the trial defendant attacked the indictment for failure to comply with Rule 23.01(b) 2-3 requiring an indictment to state plainly, concisely and definitely the essential facts constituting the offense and the time and place of the offense.

An indictment is sufficient if it states the essential elements of the offense charged, adequately notifies the defendant of the charge against him, and constitutes a bar to further prosecution for the same offense. State v. Mitchell, 611 S.W.2d 223, 225 (Mo. banc 1981); Merrill v. State, 576 S.W.2d 561, 562 (Mo.App.1978); State v. Downs, 593 S.W.2d 535, 540 (Mo.1980).

The indictment charges that on the 28th day of March, 1982, at the City of St. Louis, Missouri, defendants appropriated a quantity of clothing in the possession of Roadway Express without the consent of Roadway Express and that defendant Nathaniel Wade was convicted of the offense of stealing on December 17, 1965, on January 14, 1966 and on October 21, 1980, and is a prior and persistent offender.

Appellant complains that the indictment is a nullity; did not invest the court with jurisdiction to proceed and is insufficient to support a conviction. Appellant makes these specific complaints: (1) the owner of the property is not named; (2) the place of the offense is not stated, and (3) the time of the offense is not stated. None of these complaints is well taken. Under MACH-CR 24.02.1 ownership need not be alleged if it is alleged (as here) that the property was in the possession of another; the wording "in the City of St. Louis" is sufficient...