State v. Williams, 10420

• Decision Date: 19 July 1977
• Docket Number: No. 10420,10420
• Citation: 554 S.W.2d 524
• Parties: STATE of Missouri, Respondent, v. James (Buddy) WILLIAMS, Appellant.
• Court: Missouri Court of Appeals

Page 524

554 S.W.2d 524

STATE of Missouri, Respondent, v. James (Buddy) WILLIAMS, Appellant.

No. 10420.

Missouri Court of Appeals, Springfield District.

July 19, 1977.

Motions for Rehearing or Transfer Denied Aug. 8, 1977.

Application to Transfer Denied Sept. 12, 1977.

Fielding Potashnick, Sikeston, Joe Perry Rice, III, Chaffee, for appellant.

John C. Danforth, Atty. Gen., Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.

Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

By separate informations ¹ defendant was charged with the rape and murder of Brenda Joyce Raines and the murder of Frank Craig, each offense occurring on December 22, 1961. In 1962 the trial of the case involving the murder of Miss Raines resulted in a conviction and a sentence of death. On appeal that judgment was reversed and the cause remanded. State v. Williams, 369 S.W.2d 408 (Mo. banc 1963).

Later in 1963 defendant entered pleas of guilty to the three charges and a life sentence was imposed in each case. In 1969 defendant filed a motion under Rule 27.26 attacking each judgment and sentence on the ground that his plea was involuntary. His attack was successful and the supreme court ordered the setting aside of each conviction and the withdrawal of each plea. Williams v. State, 473 S.W.2d 97 (Mo.1971).

In June 1974, the trial court having previously sustained the state's motion to consolidate the trials of the three cases, a jury found defendant guilty of the first degree murder of Frank Craig, the rape of Miss Raines and the second degree murder of Miss Raines. A sentence of life imprisonment was imposed for each offense, the sentences to run consecutively. Defendant appealed to the supreme court and that tribunal, noting its lack of jurisdiction, transferred the three cases to this court.

The first of defendant's 14 "points relied on," each unavailing, is that the trial court erred in permitting a private attorney, Mr. James A. Vickery, to participate in the prosecution of the cases. In February 1974 the trial court appointed Mr. Vickery "as special assistant prosecuting attorney for this particular case," the appointment to be "charged to the County of Pemiscot so far as any expenses in connection with his appearance in the prosecution of the case are concerned." Mr. Art Stephenson was the prosecuting attorney. He informed the court that Mr. Vickery had agreed to serve at his request and with the approval of the county court. Defendant's counsel introduced the testimony of Mr. Vickery to the effect that he understood the county court was to pay him $500 for acting as special prosecutor. Mr. Vickery had represented the state in the 1962 trial.

In State v. Harrington, 534 S.W.2d 44, 48(2) (Mo. banc 1976) the supreme court held "that the practice of allowing private prosecutors, employed by private persons, to participate in the prosecution of criminal defendants, is inherently and fundamentally unfair, and that it should not be permitted . . . in any case tried after publication of this opinion in the Southwestern Reporter." The Harrington opinion was published in the Southwestern advance sheet of April 20, 1976, almost two years after the instant cases were tried. It seems clear, from the foregoing language, that the ruling in Harrington is inapplicable.

Referring to its prior holdings the court in Harrington at p. 49 said:

"This Court has recognized the inherent vice and potential prejudice arising from the participation of privately retained prosecutors in the prosecution of criminal defendants, but, nevertheless, has yet to strike down a conviction because of a private prosecutor's participation. The decisions have cast the burden on the defendant to allege and prove prejudice. We have come to believe that, by reason of the public policy enunciated by the Legislature, such a burden is unwarranted."

For the purpose of this opinion this court will assume that Mr. Vickery was a "private prosecutor," as the term is used in Harrington, although he was to be paid by the county court rather than by private persons, such as relatives of the victims. The reasons stated in Harrington for precluding the services of "private prosecutors employed by private persons" apply with no more vigor to Mr. Vickery and the circumstances of his employment. He was, perhaps, somewhat more of a public prosecutor than was the special prosecutor in Harrington.

Defendant's first point must fail because this case was tried prior to the publication of the Harrington opinion and because defendant has not, in his first point, "alleged and proven prejudice." Nor is such proof found in the facts alluded to in defendant's argument. As will be seen, the only attack made by defendant upon Mr. Vickery's trial conduct is leveled at his closing argument and that attack is without merit. The fact that the attorney making the argument was a special prosecutor and not the regular prosecutor would not create prejudice where none existed otherwise.

Defendant's second point is that the trial court erred in failing to dismiss, on defendant's motion, Cases 6093 and 6095 because, in those two cases, "defendant was not granted a speedy trial in violation of § 545.920 RSMo and Rule 25.01 (V.A.M.R.)."

The informations in 6093 and 6095 were filed in the Circuit Court of Pemiscot County on February 5, 1962. On August 2, 1963, the defendant entered a plea of guilty in each case. The only delay of which defendant's brief complains is the period between February 5, 1962, and August 2, 1963.

The record shows that the following events took place during the period under scrutiny: February 5, 1962 An information was filed in each of the three cases in the Circuit Court of Pemiscot County. March 5, 1962 In each case, Attorney George K. Reeves was appointed counsel for defendant, defendant entered a plea of not guilty, and the case was set for trial on April 6, 1962, "by agreement of the parties." April 14, 1962 Defendant filed an application for change of venue in each case. April 17, 1962 Each case was transferred to the Circuit Court of Scott County. June 22, 1962 Case No. 6094 was tried, defendant was convicted, and he was sentenced to death. July 8, 1963 Supreme Court of Missouri reversed the judgment in Case No. 6094 and remanded. August 2, 1963 Defendant entered a plea of guilty in the three cases.

Sections 545.890 through 545.920, the latter being the statute on which defendant relies, were discussed in State v. Morton, 444 S.W.2d 420, 423(2) (Mo.1969). Those four statutes, said the court, "prescribe the standards under which a defendant is entitled to be discharged if he is not brought to trial in the time and manner therein provided. They are in the nature of special statutes of limitation and have no counterpart in the Supreme Court Rules. . . . These statutes in effect limit the number of continuances that may be granted the state 'for cause' under § 545.780 and Rule 25.01."

The court in Morton pointed out that Rule 25.01 is a rescript of § 545.780 and said, at p. 423:

"Rule 25.01 and § 545.780 specifically authorize continuances 'for cause' and do not purport to be a limitation of the criminal action. The time and manner in which continuances on behalf of the state will entitle the defendant to be discharged are provided by §§ 545.890-545.920. The trial court did not err in refusing to discharge the defendant because of the provisions of Rule 25.01 and § 545.780. State v. Barlish, Mo.App., 421 S.W.2d 558, 559(2), 563(6, 7)."

Accordingly, defendant's reliance upon Rule 25.01 is not justified.

Equally futile is defendant's reliance upon § 545.920. With regard to the latter statute and § 545.900, the supreme court in State v. Harper, 473 S.W.2d 419, 424 (Mo. banc 1971) held that "a defendant is not entitled to be released under the statutes in question (assuming the statutory exceptions are not applicable) simply because the required number of terms have elapsed. In addition to that he must show that he has demanded a trial, and that such request was made without success for a reasonable length of time before his right to release has been asserted." The instant record contains no such showing.

As stated in State v. West, 484 S.W.2d 191 (Mo.1972), where the rule in Harper was reiterated, "We need not comb through the facts to determine whether the number of terms required by statute elapsed, and whether the failure of the case to be tried at such term was due to accused or the State applying for the delay or whether the delay was caused by want of time to try the case, for the reason that there is nothing in the record to indicate that the accused or his counsel at any time made any demand for a trial, or that he made such request 'without success for a reasonable length of time before his right to release has been asserted,' as required by the Court en Banc in the Harper case." West, at p. 194.

Defendant's second point has no merit.

Defendant's third point is that the trial court erred "in granting the state's motion to consolidate these three cases because the crimes therein charged and the informations thereon filed were prior to the effective date of Rule 24.04. Such change was of a substantive rather than a procedural nature and was ex post facto as to these cases."

Rule 24.04 in its present form became effective on July 1, 1971, which was after the instant informations were filed but prior to the trial. Rule 24.04 authorizes charging, "in the same indictment or information in separate counts, or in the same count when authorized by statute," offenses which are part of the same transaction or which constitute parts of a common scheme or plan. The former version of Rule 24.04 was more narrow in the type of joinder of offenses permitted in one indictment or information. ²

Rule 24.04 contemplates the joinder of related offenses in the same indictment or information. In the instant case three separate informations...