State v. Williams
| Decision Date | 02 February 1988 |
| Parties | STATE of Missouri, Respondent, v. Ronnie L. WILLIAMS, Appellant. WD 39166. |
| Court | Missouri Court of Appeals |
Sean D. O'Brien, Public Defender, Jo Ann Arnold, Asst. Public Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., Deborah L. Ground, Asst. Atty. Gen., Jefferson City, for respondent.
Before KENNEDY, C.J., and TURNAGE and LOWENSTEIN, JJ.
Defendant was convicted upon jury trial of two counts of selling marijuana, a controlled substance, § 195.020, RSMo 1983, and was sentenced by the court as a persistent offender to two consecutive 15-year terms of imprisonment, § 558.016, RSMo 1983.
The convictions of the defendant were had upon the testimony of an undercover informant by the name of Kim Elletson. Under the direction of the law enforcement officials of Livingston County, Ms. Elletson commenced her undercover work in and about Chillicothe on August 1, 1985. She was paid wages and expense money. She testified to purchasing marijuana from the defendant for $25.00 on January 15, 1986, and a second time on February 5, 1986, when she purchased marijuana for $27.50.
After Ms. Elletson had completed her work, the evidence was presented to a grand jury in Livingston County. It appears that they returned a number of indictments, 13 of them for drug offenses. It may be gathered from the record that the grand jury investigation and the indictments were a matter of a good deal of public interest and excitement in Livingston County. The indictment was handed down on April 24, 1986, and the trial was held in the Circuit Court of Livingston County on December 15 and 16, 1986, resulting in the guilty verdict mentioned above.
Defendant on appeal says the trial judge erred in failing to disqualify himself and in failing to grant a change of venue from Livingston County upon defendant's motion. Defendant's first motion for the disqualification of the judge and for the change of venue was framed under Rules 32.03 (change of venue), 32.07 (change of judge) and 32.08 (combined change of judge and change of venue), which provide for a change of judge and change of venue as a matter of right simply upon application therefor. The court denied the applications on the ground that a copy of the motion and a notice of the time when the application would be heard had not been served upon the prosecuting attorney, as required by Rule 32.08. Each of the rules cited above contains the same provision: "A copy of the application and a notice of the time when it will be presented to the court shall be served on all parties."
The omission to serve "a copy of the application and a notice of the time when it will be presented to the court" upon the prosecuting attorney was properly held by the trial court to be fatal to defendant's absolute right to change of venue and change of judge. State ex rel. Jackson v. Thompson, 661 S.W.2d 677 (Mo.App.1983).
Defendant filed a second application for change of venue and change of judge for cause under Rule 32.09(c). That paragraph provides: "However, nothing contained in Rules 32.01 through 32.09, inclusive, shall prohibit a judge from ordering a change of venue or change of judge when fundamental fairness so requires."
The second application was not filed within 30 days after arraignment, as required by Rule 32.04(b) (change of venue) and 32.07(c) (change of judge). The attorney general, citing State v. Harris, 670 S.W.2d 73 (Mo.App.1984), argues that this fact alone provides a sufficient basis for the trial court's denial of the second application.
Defendant maintains that the Rule 32.09(c), quoted above, overrides all procedural rules and that the court for reasons of "fundamental fairness" ought to have sustained the application. Assuming that defendant is right in his contention that tardiness of the filing was not fatal to his application, still the record does not convict the trial court of any abuse of discretion in denying the application. The motion alleges that from March through June 1986, twenty articles appeared in the Chillicothe Constitution-Tribune regarding grand jury indictments and arrests, five of such articles specifically mentioning defendant, and that two radio stations also broadcast similar stories, many of them mentioning defendant. There was no evidence of the content of such publications, and in the absence of any record we have no way of assessing the prejudicial effect, if any, of such publicity. Of course, the allegations of the motion do not prove themselves. Peck v. Jadwin, 704 S.W.2d 708, 711 (Mo.App.1986).
When the trial commenced on December 15, approximately six months after the publicity had ceased, only one member of the jury panel remembered hearing about the case, and that one said he had formed no opinion on the guilt or innocence of any particular person. This absence of any apparent knowledge of the case by any but one of the members of the jury panel bears out the correctness of the trial court's ruling on the application for change of venue.
For evidence of the trial judge's prejudice against the defendant, defendant points to the fact that defendant had earlier been sentenced by him on another charge to the maximum sentence for that crime--what the crime and what the sentence is not shown--and that in the present case the trial judge had set defendant's bond at $100,000 per count for two sales of marijuana and afterwards refused to reduce it on defendant's motion. In overruling defendant's motion to reduce bond, the court commented that he was "familiar with defendant's record". These facts, however, do not indicate any bias against the defendant on the judge's part which would prevent his giving defendant a fair trial. "Fundamental fairness" to defendant did not require the judge's disqualification, and there was no error in his denying such motion.
Defendant next assigns error in the court's refusal to disqualify the prosecuting attorney on the ground that the prosecuting attorney had been involved in the investigation and undercover operation which resulted in the prosecution.
The prosecuting attorney, Mr. Elliott, was directly involved with the undercover operation. He along with a Mr. Deister had made the initial arrangements with Kim Elletson to spy out the drug activity in Chillicothe. He was involved in some way in the payment of her agreed wages and expenses, but just what his role was is not defined in the record. Before making the January 15 purchase, Kim called Mr. Elliott to tell him where and when the buy was to take place. Mr. Elliott with a police officer surveilled the place and saw the defendant leave and return to the house. The marijuana which she purchased at that time she delivered to Mr. Elliott and Mr. Jesse King, the Chillicothe chief of police.
This involvement of the prosecuting attorney with the undercover operation did not disqualify him from conducting the prosecution. The case is ruled by State v. McIntosh, 333 S.W.2d 51 (Mo.1960). We quote from ...
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