*1 Tracy McKEE, STATE ex rel.
Petitioner, RILEY,
The Honorable John J. Respondents. al.,
et
No. SC 88867.
Supreme Missouri,
En Banc.
Dec. *2 trial and dismiss, represented by
motion although public counsel from the office de- *3 fender. rejects
This Court Mr. McKee’s claim prosecution that his continued violates sec- tion 545.780. That supplements statute right constitutional to a trial declaring that case shall be set for trial possible as soon as after defendant an- ready nounces for trial files a request and Where, here, for speedy trial. as defen- counsel, however, dant is represented by it and, try counsel will case who there- fore, only counsel who can declare that the “ready defense is for trial.” The same is true of pro Mr. McKee’s se invocation of his right constitutional personal trial. That right is to a Harvey, Courtney Maleaner R. M. Har- may defendant and be asserted a defen- ness, Defender, Office of Public St. when, dant pro se even as Louis, for petitioner. represented by defendant is counsel. The Joyce, Jennifer M. Billings, court, Charles W. trial and counsel for Mr. McKee and Attorney, State, Office Louis, of the Circuit for St. erred in simply ignoring Mr. respondents. repeated asserting McKee’s his right
constitutional to a trial. delay accompanied Mere assertion of ORIGINAL PROCEEDING one’s trial insufficient IN MANDAMUS dismissal, to entitle one however. A STITH, Judge. LAURA DENVIR must show that the defense Tracy Petitioner McKee seeks a writ is not unduly responsible delay directing mandamus court delay the trial to dis- that the has prejudice caused to the against Here, miss the indictment pending him defendant. the record does not suf- prejudice grounds with on ficiently failure elucidate the reasons the de- try him for following lays over 18 months it his nor does disclosе the extent and arrest his violates of prejudice nature to the defendant. Ac- speedy trial under the sixth and cordingly, fourteenth the Court a peremptory issues mandamus, amendments to the United writ directing States Consti- the trial 18(a) (1) I, tution immediately and under article section court: a hearing hold Constitution, the Missouri as well as placed his determine whether the conditions statutory right upon trial at under Mr. McKee’s release the time of 545.780, section RSMo 2000.1 Mr. pursuant McKee arrest to Rule 33.01 remain (2) asserted these appropriate,2 various to hold a hearing otherwise, subsequent "modify 1. Unless stated all court stat- Rule 33.06 allows the trial utory are requirements references to RSMo 2000. for release.” a 2004 window of days passenger of this broke out within sеven of the issuance Mr. and stole items over mandate to determine whether Ford Excursion $500 Court’s value, charge on resulting arrest McKee’s constitutional If trial felony stealing trial violated. court a misdemeanor has been second-degree property finds that his been dam- charge of violated, against $20,000cash, charges age.4 Bond was set If the immediately shall be dismissed. cash could be satisfied $1000 otherwise, court concludes $19,000 percent. secured or 10 either brought McKee to trial as soon as shall bond. was unable make *4 more but no event than practicable, in appointed public defender was The thirty days hearing after on mo- the 6, 2006, two on represent Mr. McKee June tion. 6, 2006, the On days after his arrest. June the July 19 at was continued until cause I. AND FACTUAL PROCEDURAL state, does but the record request BACKGROUND not a for this continuance. state reason The indicates that McKee is record 19, until July On the cause was continued years and unemployed old and was state, request the but 23 at the of August 4, when he was arrested on June homeless state a reason again, the record does not charged was with six crimes He for this continuance.5 of alleged related to three incidents tam- set presented charges state the six The specifi- motor pering with vehicles. More grand jury August a in forth above to cally, charged the state has that on June grand jury an indict- 16, 2005, 2006. The returned Mr. McKee defaced a Nis- charge and on the tampering ment on the security Maxima3 pushed san and officеr Black, charges, four but it deter- Beverly resulting felony charge in a misdemeanor was evidence first-degree tampering of and a misde- mined there insufficient stealing charge an indictment on the third-degree support meanor of assault. Then, 2006, 27, count dismissed. On charge, on March Mr. McKee al- so that was 23, 2006, unlawfully the was continued legedly building August entered into a cause 13, 2006, the by Interpark police September request owned until at fled from officer, resulting charges September the On misdemeanor court.6 resisting arraigned charges grand the the trespassing arrest. Final- was on 4, 2006, ly allegedly jury pleading guilty, indictment. After on June pre- attorney superseding made on prosecuting 3. The 5. These continuances were filed printed provide January forms thаt several on order information allege space provide tampering tam- of blank reasons amended the count to inches these continuances pering instead of the continuance. Neither with 2000 Nissan Maxima request nor of those contin- superseding The in- at the state’s most a 2004 Ford Excursion. infra, request, the was at court’s addressed formation identical the indictment uances provide the extent that respects. all such reasons. To other material some those continuances state now asserts conduct, attributable to defendant’s are specifically, Mr. McKee was accused 4. More ought to have been reflected in those reasons violating (first-degree tamper- sec. 569.080 the first instance. the order of continuance in $500), ing), (felony stealing sec. 570.030 over assault), (third-degree sec. sec. 565.070 arrest), (sec- are given for continuance (resisting 6. The reasons sec. 569.120 575.150 filed,” and property damage), the continuance ond-degree sec. "Indictment notes, Early.” "Bring (first-degree trespass). Back 569.140 case) cause assigned was for an ap- initial charge allege tampering pearance in Division on16 October 2006. with 2000 Nissan Maxima rather than a 5, 2006, October hearing was “Contin- 2004 Ford superseding Excursion. The for reasons that are not ued/Rescheduled” information was identical the indictment reflected in the docket sheets or the record in all respects. other material On Febru- parties.7 submitted (in ary the cause was continued order) unsigned April 2007. As September 2006, In shortly after his ar- continuances, most of previous rec- raignment, Mr. McKee filed his first ord does not disclose reason for motion for a speedy alleging that he continuance other than that it at was made been in custody days had without of the court. April On delay that further would have an 2007, the state at least subpoe- issued four impact “adverse on the defendant due to testify nas for April witnesses to stressful incarceration conditions” and trial date. ability would undermine his to have a fair trial. That motion accepted for filing April 27, Friday On April before the *5 court, by the trial and no motion to strike date, 30 trial Mr. McKee filed a letter filed by was the attorney circuit opposing the court that notes he has “bеen incarcer- filing on ground, its the now asserted on ated for 11 yet months and has be to appeal, that he had no to file such a brought having requested to trial after se pro motion he was represented because many answered ready times.” In let- by counsel. ter, Mr. requested discovery McKee also of certain items that he 2006, per- believed were public In October the defender tinent to attorney Although a his defense. assigned new to Mr. witnesses McKee. 15, 2006, had been to subpoenaed testify, April On November the the case was set 29, begin January passed for trial to on 30 trial without 2007. date even a docket On 4, 2006, prosecuting entry December the reflecting anything attor- that occurred ney a sent letter to counsel for Mr. McKee the case. Apparently some continuance indicating the state’s that years belief five granted was entry, without record a for would be an appropriate disposition of the letter from Mr. that on McKee was filed if charges Mr. McKee were interested in May 3 notes that his “most recent missed
pleading guilty. court date again for trial 04-30-07 my no any reason or cause of own nor for 29, January
The trial date was not good cause of state.” the Mr. McKee’s kept. parties The suggest this was due to May again 3 letter notes that he has been so, plea agreement, a failed but if no rec- for 11 months to yet incarcerated and has was made to ord that effect in the trial brought having requested to trial “after Court, court. This like all appellate many courts, times for a fast trial.” The record, guided by the and nei- May conclusion of Mr. McKee’s 3 letter ther record nor docket indicates what, I point if reads: “At this wish to a anything, on file January occurred 29. dismiss, be, motion if pro-se The record that need and I prosecu- does disclose request your tor filed a superseding powers judgement information on Jan- 31, 2007, uary please. which amended the rule on this motion I June intend (the tampering only felony your count stand before court soon for trial.” pro September stamp 7. The docket file Al- reflects motion for reads 2006. 13, 2006, September though trial on but the the difference immaterial in this itself discrepancy motion states in its certificate of serviсe between docket entries September filing it was mailed on and the dates is troublesome. Again, trial. 9, 2007, entry rights tutional May a docket reflects On August 14 July although both the July that the cause was reset nei- opposition, were filed without information contains no further record addressed ther these motions were continuance. This continuance about this the trial court or counsel. se motion for another prompted McKee, May on speedy trial from Mr. filed entry a docket September On This motion invoked Mr. the cause was reflects “continued/resched- state and federal constitutional McKee’s with a uled” to October “Plea/Trial rights requested According trial and October 9. setting” on docket, It place *6 an alter- speedy a trial. This Court issued 11, 2007, July entry On a docket reflects of native writ mandamus. July hearing that “Contin- was 20, September 2007. ued/Rescheduled” II. OF REVIEW STANDARD The record contains no further information authority This July about this continuance. Also on a original and remedial “issue determine was for Au- Setting” scheduled “Plea/Trial Const, V, art. sec. 4.1. It Mo. writs.” gust 2007. a third Mr. McKee filed “to compel a writ of mandamus issues pro se July for speedy motion a trial on duty ministerial that one performance of a motion, 2007. In this filed was on duty per has refused to charged with form, prepared Mr. asserted City Furlong Cos. Kansas form.” of statutory and to a constitutional (Mo. City, banc 189 S.W.3d 165-66 speedy being infringed, trial he were and 2006). asking by manda “A relief litigant sought evidentiary hearing prove prove has a allege must that he mus offer to claim. Mr. McKee filed an clear, thing unequivocal, specific right of plead guilty charge the lesser tam- Id. 166. The trial claimed.” July 18, degree pering in second on “the provi allows that specifically statute by shall enforceable sions of this section 545.780(2). in the There is no information record Sec. mandamus.” supplied August to indicate whether A III. REPRESENTED RIGHT OF or, setting if it plea/trial kept was TO FILE PRO SE DEFENDANT continued, was the reasons for the continu- VIOLATION MOTION ALLEGING reflect, though, ance. The record does TRIALRIGHTS OF SPEEDY pro filed a August that on Mr. McKee alleges of his statu- se motion pending charges to dismiss the violation tory trial under section right statutory of his and consti- violation 545.780, of his right they violation from separately the issue of whether public to “a trial” under U.S. were effective to assert his constitutional Const, amend. VI and violation right. Const, 18(a) I, promise of Mo. art. sec. Statutory Right Speedy A. Trial “the shall accused have the by Cannot Be Invoked Defendant Pro ... a speedy public trial”. Se. Respondent argues that this Court Mr. McKee claims that the trial should not reach the merits inaction pro McKee’s trial court’s on his se they claims because motions vio pro by statutory were asserted in lated his a de represented fendant who counsel. under section Section 545.780. 545.780 general, In one must choose between self- states: representation representation If defendant announces that he noted, counsel. As recently this Court ready for files trial and invoked, once the to counsel is then the сourt shall “effectively to his coun cede[s] set the case as soon as seek authority sel reasonable contin reasonably possible thereafter. uances.” State ex rel. v. Wies Wolfrum provisions 2. The of this section shall man, (Mo. 2007); banc be enforceable mandamus. Nei- Williams, accord State v. 34 S.W.3d comply ther the failure to with this S.D.2001) (“defendant 442 (Mo.App. ... section nor the state’s failure to has no right to ... a combination self- prosecute grounds shall be for the counsel”).8 representation assistance dismissal the indictment unless Here, counsel, because McKee had the court also finds that the defen-
but counsel filed a speedy never trial mo- dant has been denied his constitu- tion or called Mr. McKee’s se motions tional trial. *7 up for hearing, Respondent argues the expressly The statute it states that does trial court obligated never became to ad- not entitle a defendant to dismissal unless By dress the the first instance. right speedy the constitutional to trial is extension, Respondent argues it that 545.780(2); also violated. Sec. see also inappropriate would be for to this Court (Mo. Owsley, State v. 959 S.W.2d a right issue writ of mandamus. Since the 1997) (statute provides a banc indict- speedy statutory to trial has both ment constitutional the ad- cannot be dismissed where the de- origins, Court will dress is not pro whether Mr. McKee’s se motions fendant denied constitutional trial).9 statutory were effective invoke right right speedy to to a occasionally appoint Trial Owsley courts to dicta in counsel The State v. that “the statute provides operate "standby relief" where [a defendant] no he is as counsel” when a defen right speedy not denied his trial, constitutional self-representation. dant chooses Occasional (Mo. 1997), 959 S.W.2d banc ly, appellate the courts have to referred this refers to the effect of the statute on a defen- "hybrid representation,” e.g., as see State v. right charge to have a dant’s dismissed. The White, (Mo.App. 44 S.W.3d 846-47 W.D. could, statutory speedy necessary, if trial 2001), but those cases are different than the be enforced mandamus where a trial court bar, case at where the defendant at no time timely bring to a case to trial once failed the permitted proceed pro only was to se with or invoked, properly statute was even where standby counsel. was no the there violation of constitutional speedy a statute to trial. The makes it have with proceed Trial would then to pur The statute’s self-evident to pose expand potentially is not constitutional be inade- counsel who could trial, to but pro rather quately prepared. mechanism for a case to bringing vide a provides proce a the statute Since timely trial when a defendant seeks a reso be held dure a defendant’s trial or The lution of his her case. statute since, expeditiously, where defendant accomplishes purpose by requiring this counsel, is it is counsel who represented court to set case for trial “as soon as case, it be try will therefore must reasonably possible” after an “defendant prerogative announce when ready that he for trial and files counsel’s nounces is “ready for a trial.” is for trial” for Sec. defense 545.780(1). The the harsh statute limits trial statute. purposes of Missouri’s only for its violation to remedy dismissal at 412. Wolfrum, See 225 S.W.3d those there is cases where also constitu Mr. in- In this while McKee did violation, analyzed tional should far voke his so as separately statutory from the violation. (and record shows the record submitted Bolin, See State v. complete), Court is no means 1983) (Mo. (distinguishing banc between counsel never announced McKee’s defense statutory constitutional and ready pro for trial. sе decla- Mr. McKee’s trial).10 ready ration that he for trial was not clearly intended invoke protec- trigger effective statute’s protections of Missouri’s tions, it Mr. McKee— as was counsel—not in his In his Au- statute se motions. Therefore, try case. who would 2007, motion, gust example, he ar- Respondent agrees gued every setting that “at cannot claim violation ready answered for trial.” available trial act. 545.780, But requiring section that de- Right “ready fendant that he announce B. Constitutional trial,” clearly contemplates that it is coun- Speedy Be Trial Invoked Pro Se Can sel, defendant, the represented who by Represented Even Defendant. must this statutory Any invoke protection. however, different, The outcome interpretation othеr could the statute regard Mr. McKee’s place in an posi- defense counsel untenable *8 right a trial. The constitutional speedy to when, tion example, represented de- is in that its right speedy unique to trial “ready fendant announced for trial” with- assertion, circumstances, can counsel, under some consulting out or her and fact, not, conflicting in a ready place posi- in for trial. the defendant counsel 545.780(2), statutory arraignment. the of See Sec. RSMo clear that remedies for viola- however, tions, 1986, legislature cannot include dismissal of the 1978. In the amended the unless there is a constitu- indictment statute to make the defendant’s constitutional tional violation. remedy speedy the right to a trial relevant to violations, stаtutory in so the statement Court in Bolin held that “the constitu- This no that the constitutional standard "has Bolin application has no when tional standard ... longer application" no relevant. The question has been whether defendant recognition of difference between Court's Bolin, speedy right.” statutory trial denied standards, statutory how- constitutional At the of v. 643 S.W.2d time State ever, today. pertinent remains Bolin, required speedy trial statute a de- days brought to be to trial within 180 fendant 728
tion with
counsel.
sion
defense
Unlike the
between the burdens on defense coun-
right to
impartial jury
right
or the
sel and
to
the defendant’s desire to resolve
witnesses,
confront
the charges quickly appears
and cross-examine
to have arisen
in
where
this
repeatеdly
defense counsel is often in a
which defendant
better
sought
position
speedy
to
and counsel appears
understand the contours of the
never to
right
appreciate
sought
bring
have
the case to
situations which it
trial
up
speedy
or to call
trial
has not
properly respected,
been
right
or motion
hearing.
to dismiss for
to a speedy
part,
trial
depends,
on cir-
uniquely
cumstances that
experienced
are
Perhaps
type
of
situation
by the defendant.
speedy
“[T]he
trial mind,
repeatedly
our court of appeals
right
primarily
protect
exists
an individ-
represented
allowed a
defendant to assert
interest,
ual’s liberty
‘to minimize
pos-
right
through
to a
speedy
pro
trial
se
sibility
lengthy
incarceration prior to
Smith,
motion.
v.
e.g.,
See
849
State
trial
... and to
the disruption
shorten
E.D.1993)
209,
(Mo.App.
(filing
S.W.2d
214
life
presence
caused
and the
arrest
pro
speedy
of a
se
repre
motion for
trial
”
charges.’
unresolved criminal
United
sents “the
assertion of
first formal
[the]
Gouveia,
States v.
467 U.S.
104
trial”);
McNeal,
right
State v.
(1984) (address-
2292,
S.Ct.
146
E.D.1985)
81 L.Ed.2d
457,
699
(Mo.App.
S.W.2d
461
(defendant
ing
right
distinction
between
timely
asserted “his
trial
under
motion”);
counsel
the Sixth
pro
trial in a
se
State v.
Amendment)
Morris,
(quoting United States v.
(MoApp.
163
S.W.2d
MacDonald,
E.D.1984)
456 U.S.
S.Ct.
asserted
(appellant
(1982)).
729 Barker, ous, complex conspiracy charge.” recognized: represent- long has appeals 2182; 530, see also at 92 S.Ct. 407 U.S. may assert his constitutional ed defendant (“for Bolin, ‘ordi- 814 this 643 at S.W.2d speedy through to a trial right delay ... a of seven nary crime’ street then motion. This must determine ... presumptively prejudicial”). is months right whether McKee’s speedy trial has been violated. to a defen delay bringing The AS A MUST BE MADE
IV.
RECORD
time of
trial
from the
dant to
is measured
DEFENDANT’S CON-
is
TO WHETHER
arrest,
right
time that the
not from the
Bolin,
SPEEDY TRIAL RIGHT
at 813
STITUTIONAL
643
first asserted.
S.W.2d
(“the
TEAS VIOLATED
speedy
provi
of the
trial
protections
in
is
attach
there
a formal
sions
when
Mis
States and
United
or
actual
or information
when
dictment
provide equivalent pro
souri Constitutions
imposed by arrest
[are]
rеstraints
right
for a
tection
defendant’s
(in
charge”)
a criminal
holding
answer
Bolin,
n. 5
trial. See
reason for these continuances. Respondent But acknowledged also that there was a factual error in the indictment
To the extent
delays
these
as to the
count on the
are due
date of the
they
to the
felony
court’s docket
“should
apparent January plea hearing, an error
weighted
heavily
less
[against the state
superseding
сorrected
information
than
delays
hamper
deliberate
the de
January
filed on
2007. A defendant’s
but
fense]
nevertheless should be consid
unwillingness to plead guilty
factually
ered since the
responsibility
ultimate
unlikely
inaccurate indictment is
to be a
such circumstances must rest with
gov
delay attributed to the defendant.
“It is
ernment rather than with the defendant.”
Barker,
ultimately
duty
bring
the state to
Based on the uncertainties in the consideration petition, simply unique. petitions record on this this Court Numerous other filed lacks sufficient record from which it can writs have been in this Court awaiting dispo delays bringing persons determine whom the incarcerated while charges and on trial should be sition of their some attributed and, jurisdictions, similarly if some is attributable to the defen occasions in other dant, delays. much delay alleging lengthy how of the overаll that important right attributable to his conduct. trial is an Without record, to hon- duty-bound this Court lacks sufficient informa courts this state are or, regarding delays heavy tion the causes of the even in the face dockets trial. Pro competing reach conclusion whether Mr. McKee’s and demands for delays in crimi trial has been violated. tracted and unreasonable cannot Such a determination should be made— nal cases due to crowded dockets acceptable already indeed it should been made— Neither is it have become routine. attorney and prosecuting the trial court in the first instance. for the defense provide any or such routine accept The failure to reasons for counsel to objеction. The de granting continuances in a criminal case continuances without trial and the coupled complete absence of rec fendant’s public’s timely interest resolution of reflecting significant ord entries actions troubling. criminal demands that this and other exceedingly the case is It leads cases expeditious in the as a similar cases receive more to a lack of confidence record treatment, competing in the record-keeping practices in the even face of whole and court. on counsels’ and the court’s time. of the trial demands suggest This does not mean to hearing required will be to de- Since has in- proceeding to this lengthy delay any party termine reasons for any аlso entrust to tended to violate defendant’s in this Court will delay in inquiry regarding rights, court but “unreasonable the trial *12 PRICE, J., run-of-the-mill criminal cases cannot be in part separate concurs in justified by simply asserting that the pub- opinion filed.
lic provided resources by the State’s crimi- nal-justice system are limited and that PRICE, JR., WILLIAM RAY Judge, Barker, each case must await its turn.” in concurring part. (White, J.,
84.16(b). formal published opinion A value, and the precedential would have no provided with memo- parties have been reasoning of the randum explaining court. TURNER, Appellant, E.
Steven
v. DARR, Respondent.
Ronald L.
No. 67858. WD Appeals, of Missouri Court COLTIN, Appellant, Rochelle Ann District. Western Oct. 2007. OF PROBATION MISSOURI BOARD Rehearing Motion for Transfer and/or PAROLE, Respondent. AND Supreme Denied Dec. 2007. 67315. No. WD Appeals, of Missouri Court District. Western Shumaker, Kirksville, Seth appellant. Oct. 2007. Mexico,
Ann Hagan, respondent. P. Rehearing Motion for Transfer and/or HOLLIGER, Before R. RONALD Denied Dec. Supreme Court L. Presiding Judge, HAROLD LOWENSTEIN, Judge, and M. JAMES
SMART, JR., Judge. ORDER Coltin, MO, pro Rochelle A. Chillicothe (“Turner”) Turner appeals Steven se. judgment in favor of the in his Nixon, Gen., resulting Atty. from three- damages (Jay) suit for Jeremiah W. car collision. Turner Attorney rear-end claims Assistant Mackelprang, Shaun J. General, MO, jury’s City, verdict favor of the defendant for respon- Jefferson evidence, weight against was dent. trial court abused its discre- that the C.J., HOWARD, Before denying
tion a motion for trial on new ELLIS, evidentiary JJ. support is BRECKENRIDGE basis. Because J., reassigned special court as a has been to this Breckenridge, was a of this member argued disposition judge purpose at the time the case court for the subsequently appointed submitted. She was case. Supreme judge Court Missouri but sanсtion of dismissal. notes took on October nothing 17, a dock- Mr. McKee’s case. On October employment has had “numerous McKee that the cause was “Con- entry et reflects on opportunities” put that “have been hold 3 for December disposition and final tinued/Rescheduled” pending completion a rea- The record does not disclose trial. cause, hardship on the places these continuances. son for either of Like family.” defendant’s Mr. McKee’s trial, this mo- previous motion for no on Since the trial court took action accepted filing opposi- tion was without and for Mr. McKee’s motions dismiss attorney, tion the trial circuit but sought writ of court took no action on it nor did his dis- directing trial court to mandamus up simply counsel call it It hearing. charges against him for violation miss sat, statutory ignored, case file. and constitutional