State v. Williams, 52367

Decision Date20 October 1987
Docket NumberNo. 52367,52367
Citation740 S.W.2d 345
PartiesSTATE of Missouri, Plaintiff-Respondent, v. John E. WILLIAMS, Defendant-Appellant.
CourtMissouri Court of Appeals

Thomas J. Marshall, Public Defender, Moberly, for defendant-appellant.

William L. Webster, Atty. Gen., Jeffrey Philip Dix, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

CARL R. GAERTNER, Judge.

Defendant was convicted of possessing a knife on the premises of a Missouri penal institution, in violation of section 217.360.1(4), RSMo. 1986. 1 Defendant appeals, claiming: (1) the trial court erred by denying defendant's motion to dismiss for failure to prosecute; (2) the trial court erred by improperly instructing the jury; (3) the trial court erred by denying defendant's motion for acquittal and motion for a new trial because there was insufficient evidence to show that the object in question was a weapon. We affirm.

Defendant, while an inmate at the Missouri Training Center for Men at Moberly, submitted to a routine body search on February 24, 1985. The prison officer conducting the search found, in defendant's pocket, a four and one-half inch metal rod sharpened to a point. A felony complaint was filed against defendant on March 7, 1986. During the year-long interval between the incident and the complaint, defendant was first placed in segregation then transferred to another prison. Defendant filed a motion to dismiss the information for failure to prosecute. He claims that, due to the delay, he is now unable to clearly remember what happened and he is unable to locate certain inmates who were eyewitnesses to the search. The trial court denied the motion on the grounds that defendant failed to show prejudice. Subsequently, the case was tried before a jury.

The state presented three witnesses, including the two officers who conducted the body search. These officers testified that on February 24, 1985 they conducted routine, random searches of inmates leaving the chow hall. Defendant was one of the inmates searched that day. During the search, the first officer found the metal rod, described above, in defendant's rear pants pocket.

Defendant does not deny the search or the fact that the rod was in his possession. Instead, he called two witnesses, also inmates, who testified that defendant used the rod as a wood carving tool and that it was not unusual for prisoners to have such "hobby" tools. One of defendant's witnesses even testified that he saw defendant put the rod into his pants pocket prior to leaving his cell for the chow hall. After the jury found defendant guilty, he was sentenced to five years, to be served concurrently with his current sentence.

Defendant's first point relied on alleges that the trial court erred in denying his motion to dismiss the information for failure to prosecute. A pre-indictment delay entitles a defendant to a dismissal if two requirements are met: (1) the delay must have substantially prejudiced the defendant and (2) "the delay was an intentional device to gain tactical advantage over the accused." State v. Scott, 621 S.W.2d 915, 917 (Mo.1981). When a trial court denies such a motion based on lack of prejudice, as the trial court did here, the appellate court should reverse that decision only if it was clearly erroneous. State v. Barrett, 710 S.W.2d 489, 490 (Mo.App.1986).

State v. Waselewski, 674 S.W.2d 177 (Mo.App.1984), involved a similar situation. During the pre-indictment delay in that case, the sole eyewitness died. Because defendant did not state what testimony the witness would have offered nor how the delay prejudiced him, the trial court correctly denied the motion to dismiss the information. In addition, the defendant neither alleged nor proved that the delay was an intentional device to gain a tactical advantage. Id. at 179.

Defendant here alleges that the delay rendered him unable to locate other prisoners who were eyewitnesses to the search. He does not, however, state what testimony these witnesses would give if found. Since the defendant did not challenge the officers' accounts of the search, we are at a loss in divining what new or additional information these eyewitnesses may have contributed. Consequently, the trial court's decision was not clearly erroneous.

Because the first requirement was not met, we do not need to determine if the delay was intentional. We do, however, note the absence of any suggestion by defendant of any specific tactical advantage which the state gained by virtue of the delay.

Defendant's second point alleges error in the following instruction.

If you find and believe from the evidence beyond a reasonable doubt:

First, that on or about February 24, 1985, in the County of Randolph, State of Missouri, the defendant knowingly had in his possession a weapon, to-wit: a metal rod sharpened to a point at one end, an article that may be used in such a manner as to endanger the safety or security of a correctional institution, and

Second, that this possession was on or about the premises of the Missouri Training Center for Men, a correctional institution of the Department of Corrections and Human Resources.

then you will find the defendant guilty of possession of a weapon on or about the premises of a correctional institution.

However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of these propositions, you must find the defendant not guilty of that offense.

There is no approved pattern instruction for the submission of a violation of section 217.360.1(4). Supreme Court Rule 28.02(d) provides that where there is no applicable MAI-CR form, the instruction should follow the format and "skeleton forms therein." Defendant contends the instruction fails to comply with the general format mandated by MAI-CR2d 2.04, requiring each essential element of the principal offense to be submitted in numbered paragraphs. He complains that the instruction as given combines in a single paragraph the element of possession and the finding that the sharpened rod may be used to endanger safety and security. Assuming that submission of the two elements in separately numbered...

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4 cases
  • U.S. v. Boyce
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 12 Mayo 2011
    ...under the Missouri statute requires proof of mens rea, Vincent, 575 F.3d at 825, specifically knowing possession. State v. Williams, 740 S.W.2d 345, 348 (Mo.Ct.App.1987). Boyce's offense was also both violent and aggressive because it “create [d] the possibility—even the likelihood—of a fut......
  • State v. Moore
    • United States
    • Missouri Court of Appeals
    • 22 Julio 1997
  • State v. Farr
    • United States
    • Missouri Court of Appeals
    • 31 Diciembre 2001
    ...to demonstrate that he was prejudiced, we need not reach the second prong of the test for prejudicial delay. See State v. Williams, 740 S.W.2d 345, 347 (Mo.App. E.D.1987). Defendant's second point is In his final point, Defendant contends that the trial court abused its discretion in denyin......
  • U.S.A v. Boyce
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 28 Febrero 2011
    ...under the Missouri statute requires proof of mens rea, Vincent, 575 F.3d at 825, specifically knowing possession. State v. Williams, 740 S.W.2d 345, 348 (Mo. Ct. App. 1987). Boyce's offense was also both violent and aggressive because it "create[d] the possibility-even the likelihood-of a f......

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