State v. BrooksState v. Brooks
Aftеr a two-day jury trial, defendant was found guilty of selling marijuana (also spelled marihuana) on April 29, 1981, in Springfield, Missouri, in violation of § 195.-020 1 and was court-sentenced as a prior offender (§ 558.016) to imprisonment for a term of eight yeai’S. This appeal ensued.
Defendant does not here challenge the sufficiency of the evidence. Ergo we examine twо points relied on that the trial court erred in overruling his motion to dismiss the charge because (1) the state denied him a speedy trial in contravention of the mandates of the Sixth Amendment of the United States Constitution and Art. I, Sec. 18(a) of the Missouri Constitution and (2) the state failed to bring him to trial within 180 days as required by § 545.780, a/k/a The Speedy Trial Act. For a chronology of the actions below, see the appendix to this opinion. Also, bear in mind that the time for a speedy trial under the Sixth Amendment begins to run from the time of the indictment or information or arrest, whichever occurs first,
State v. Holmes,
As seen from the appendix hereto the delay in holding the preliminary hearing from December 21, 1981, as first set, to December 28, 1981, when it was held, was not the state’s fault but resulted from a mutual agreement of the parties. The trial was not held February 8, 1982, as first set, because of defendant’s request for a continuance to permit securing depositions of alibi witnesses residing in California, which depоsitions were not actually obtained until much later, in August and December of 1982. While the state announced ready on June 21, 1982, that setting was postponed to July 19, 1982, at defendant’s request. We do not know what happened to the last mentioned setting but it obviously was continued and it may be assumed the fact defendant had not obtained the California depositions was a factor in the continuance. The trial setting for October 12, 1982, was continued at defendant’s request until December 6, 1982, and, as defendant was at the latter date still engaged in the taking of depositions, further continued to February 16,1983. However, before the last two setting dates occurred, defendant’s counsel was permitted to withdraw and on November 19, 1982, the public defender was appointed in his stead. On February 15, 1983, defendant’s prior request for a change of judge was sustained and on February 16, 1983, the last day the cause was set for trial, defendant filed (1) an application for a continuance and (2) a motion to dismiss the charge because his right to a speedy trial had been viоlated. These motions were overruled and after defendant’s co-defendant was granted a severance, the
The foregoing and the appendix hereto attest that roughly 70% of the delay in bringing defendant to trial (who was free on bond all the while) was directly caused by defendant himself. The guiding concepts used in determining defendant’s Sixth Amendment rights to a speedy trial are set forth in
Holmes,
supra at 286-287, one of which is whether defendant made a timely assertion of his right to a speedy trial. As seen from the above chronology and that recited in the appendix, defendant did not once take any affirmative action to acquire a speedy trial. Instеad and to the bitter end, he made repeated requests for continuances. When such occurred he is deemed to have waived his right to a speedy trial. Where, as here, defendant repeatedly caused trial delay by continually asking for and being granted continuances, he may not be heard to successfully allege denial оf his constitutionally guaranteed right to a speedy trial.
State v. Campbell,
In another point relied on defendant contends the trial court erred in overruling his motion for continuance filed March 10, 1983, after the cause was set for trial on March 14, 1983. The application filed March 10, 1983 was at least defendant’s seventh such application and the third motion for a continuance filed on his behalf by the public defender after the latter’s appointment on November 19, 1982. In part, Rule 24.09 provides “An appliсation for a continuance shall be made by a written motion
accompanied by the affidavit of the applicant or some other credible person
_” (Emphasis supplied). Contrary to the mandates of the rule, the application in question was not verified and defendant’s failure to accompany the motion with an affidаvit showing good cause therefor was sufficient reason for the trial court to deny it.
State v. Diamond,
In another point relied on defendant contends the trial court erred in not complying with the jury’s request to have in its possession during deliberations certain items involved in the cause. As requested, the trial court sent to the jury an April 1981 calendar and defendant here concedes that the trial court properly refused to give the jury Police Officer Foster’s report and synopsis as they had not been offered or admitted into evidence. Therefore, in this court defendant’s complaint is that the trial court erred in not giving the jury (1) State’s Exhibit 2 — the marijuana sold to Officer Foster, (2) Defendant’s Exhibit E — the telephone bill of defendant’s mother and (3) the depositiоns of defendant’s witnesses Bob and Rhonda McMillan.
A jury, as a matter of right, may not take exhibits into the jury room and whether a jury may do so rests within the sound discretion of the trial court.
State v. Connell,
Defendant’s defense was alibi — that he had been in Haywаrd, California, on April 29, 1981, the date he allegedly sold the marijuana in Springfield, Missouri. Defendant's Exhibit E, a telephone bill, was identified by defendant’s mother to show she had placed a call from Springfield to Hayward on May 1, 1981. Both defendant’s mother and brother testified the call was to defendant and they had spoken to defendant on that date. To send to the jury room only Exhibit E would certainly unduly highlight and emphasize that particular evidence. We find no abuse of discretion on the part of the trial judge in refusing the jury access to that exhibit.
As to the court’s refusal to let the jury have the depositions of defendant's witnesses, it is to be observed that the depositions were not read in their entirety and neither wеre they marked as exhibits or admitted into evidence. We do not have the entire depositions before us and do not know if the unread portions thereof contained objectionable questions and answers. But experience prompts the assumption objectionable material may have been present therein. Nevertheless, the use of the depositions at trial simply took the place of testimony of live witnesses and, therefore, was testimonial in nature. Generally, exhibits (and the depositions were not exhibits) which are testimonial in nature may not be given to the jury during their deliberations
[State v. Evans,
Defendant’s final point relied on is that the trial court erred in failing to sustain his objections to the cross-examination of defendant’s mother by the state and in failing to sustain his objections to the state’s rebuttal witness, a Missouri probation and parole officer, because the cross-examination and the rebuttal testimony revealed that defendant was under restrictions not to leave the state of Missouri on the date the alleged crime was committed and because such testimony was evidence that defendant had been convicted of a crime
As previously noted, the crime charged was allegedly committed in Springfield, Missouri, on April 29, 1981. Defendant’s alibi defense was that he was in Hayward, California, at that time. Hazel Brooks, defendant’s mother and a witness for the defense, testified she had talked via telephone from her Springfield home to defendant in Hayward on May 1, 1981, and identified a telephone bill showing the long distance charge she had incurred in calling Hayward on that date. On cross-examination the first question asked of Mrs. Brooks by the prosecutor was “Ma’am, on May 1st, 1981, didn’t you know that your son was not supposed to leave the State?” Before the mother could answer and out of the jury’s hearing, defense counsel moved for a mistrial and objected to the form of the question becausе it was argumentative and called for a conclusion and because of its prejudicial effect in suggesting the defendant was involved in some other unrelated crime for which he was on parole or probation. Albeit the court refused the mistrial and sustained the initial objections, the prosecutor thereafter, over repeated objections, was permitted to unrelentingly inquire as to restrictions placed on defendant “for leaving the State.” Finally, Mrs. Brooks recounted that defendant had told her “Officer Snowden” or “his office” had given him permission to leave the state of Missouri. No other subject than this was mentioned in the state’s cross-examination of the witness.
Over dеfendant’s objections and motion for a mistrial, Officer Snowden was permitted to testify as a rebuttal witness for the state on the condition that he did not identify himself as a probation or parole officer. When Snowden took the stand he acknowledged he knew defendant and that in April and May of 1981 defendant was restricted from leaving the state of Missouri. Officer Snowden also stated he worked “in an office” where records were maintained concerning “permission given to leave the State to persons who have been restricted from leaving the State.” The witness recounted that such records “were made in the regular course of business” of his office and that in consulting thоse records there was nothing to show that defendant had ever been issued a travel permit or given permission to leave the state of Missouri.
Defendant did not testify and no witness testified concerning his character or reputation. Thus it would have been error for the prosecution to attack the character of the defendant when the issue had not first come into esse by the defendant himself.
State v.
Thurman,
Though he did not identify himself as a probation and parole officer, Snowden was repeatedly referred to as “Officer Snow-den” during the cross-examination of defendant’s mother. His testimony that he had not given defеndant permission to leave Missouri and that the regular business records maintained by his “office” showed that defendant had never been given permission to leave the state would clearly indicate to the jury, as the trial judge openly feared, that defendant had earlier been convicted of a crime unrelated to that for which he wаs then on trial. No other conclusion has been suggested to us. The state’s argument that evidence of the restriction placed on defendant from leaving Missouri was relevant to rebut his alibi defense misses the mark inasmuch as such evidence does not speak to the issue of whether defendant, in fact, did or did not depart from Missouri to go to Cаlifornia as recounted by his witnesses. The mere violation, if so, by defendant of parole and probation restrictions does not, in and of itself, prove or disprove defendant was in
The defendant in a criminal case has the right to be tried only for the crime with which he is charged. Evidence of offenses unrelated to the cause on trial viоlates that right as it may result in a conviction based upon crimes for which the defendant is presently not being tried. The proof of separate and distinct crimes is inadmissible and constitutes error unless it has some legitimate tendency to establish that defendant is guilty of the crime with which he is charged.
State v. Shaw,
APPENDIX
Date Action Taken Elapsed Days Sixth Amend. § 545.780
12-10-81 Defendant arrested and released on bond. Preliminary set fоr 12-21-81 1 0
12-18-81 By agreement preliminary continued to 12-28-81 9 0
12-28-81 Preliminary held defendant bound over for arraignment on 1-8-82 19. 0
1- 8-82 Defendant arraigned, pleads not guilty, trial set for 2-8-82. Bond continued 30 1
1-27-82 Court receives letter from defendant’s counsel indicating need to depose alibi witnesses in California during the week of 2-15-82. Case continued at defendant’s request so attorney may go to California to depose alibi witnesses 49 20
6-21-82 State announces ready for trial. Cause continued to 7-19-82 at defendant’s request 195 166
8-14-82 Deposition of defendant’s witness taken in California 249 220
9- 9-82 Deposition filed 275 246
10-12-82 Trial setting for 10-18-82 continued to 12-6-82 at defendant’s request 308 279
11-19-82 Defendant’s counsel granted leave to withdraw. Public defender appointed for defendant 346 317
12-17-82 Deposition of defendant’s second out-of-state witness taken 374 345
2- 9-83 Defendant files request for change of judge 428 399
2-15-83 Defendant’s request sustained. Case assigned to Division 3 434 405
2-16-83 Defendant’s motion for continuance and to dismiss for alleged violation of 180-day rule filed and overruled 435 406
2-17-83 Deposition of defendant’s witness taken 12-17-82 filed 436 402
3- 3-83 State’s letter to court asking trial setting for week of 3-14-83 450 421
3-10-83 Defendant files motion for continuance 457 428
3-11-83 Defendant’s motion for continuance overruled and trial set for 3-14-83 458 429
3-14-83 Trial begins 461 432
Notes
. Statutory and rule references are to V.A.M.S. and V.A.M.R.