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State v. Black

587 S.W.2d 865, 1979 Mo. App. LEXIS 2971
CourtMissouri Court of Appeals
DecidedJuly 3, 1979
Docket39796
StatusPublished
Cited by36 cases

This text of 587 S.W.2d 865 (State v. Black) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Black, 587 S.W.2d 865, 1979 Mo. App. LEXIS 2971 (Mo. Ct. App. 1979).

Opinion

SATZ, Judge.

Defendant was found guilty by a jury of exhibiting a dangerous and deadly weapon in a rude, angry or threatening manner. The jury was unable to agree on punishment, and the court imposed a sentence of four years imprisonment.

As grounds for his appeal, defendant contends: (1) he was denied his Sixth Amendment right to a speedy trial; (2) he was prejudiced by the state being permitted to amend the information against him just prior to trial; (3) the state’s cross examination of him was unduly broad, and his cross examination of the victim was unduly restricted; and (4) there was an impermissible variance between the verdict directing instruction and the information filed against him. For the following reasons, we affirm the judgment of conviction and sentence entered by the trial court.

Defendant’s first asserted right— his Sixth Amendment right to a speedy trial — is applicable to state prosecutions. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967). Describing *869 the right to a speedy trial as “amorphous” and “slippery”, the Supreme Court adopted an ad hoc analysis and detailed several factors which must be weighed against each other to determine whether a defendant has been denied this right. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The factors to be considered are: (1) length of the delay; (2) the reasons for the delay; (3) whether the defendant asserted his right to a speedy trial; and (4) prejudice to the defendant resulting from the delay. Id. at 530, 92 S.Ct. 2182. The test is obviously not designed to supply simple, automatic answers to complex questions, but rather, it serves as a framework for “a difficult and sensitive balancing process”. Id. at 533, 92 S.Ct. at 2193. Thus, the right necessarily depends upon the facts and circumstances of each case.

In the present case, the undisputed time sequence of significant events to which the Barker factors must be applied started with an altercation involving defendant and a Larry Turner late at night on July 16,1974, or the early morning of July 17, 1974. The altercation resulted in a two-count complaint being filed in the Magistrate Court of St. Francois County, on July 17, 1974, charging defendant with an assault and with exhibiting a dangerous weapon and, on that same date, defendant was arrested. Subsequently, on October 30,1974, the state filed a nolle prosequi of the charge. Approximately 16 months later, on February 24, 1976, the same charges were made against defendant by complaint filed in the magistrate court and defendant was re-arrested. 1 The record does not reflect the date of defendant’s preliminary examination on these charges. However, 5 months later, on July 13, 1976, the record shows that the “cause was transcripted” to the circuit court, and some 6 months after that, on January 7,1977, a two-count information was filed against defendant charging him, in Count I, with an assault and, in Count II, with exhibiting a dangerous weapon. Shortly thereafter, on January 21, 1977, defendant filed a motion to dismiss on the grounds that he was denied his right to a speedy trial and that the delay also violated his “due process rights”. This motion was set for hearing, and, after a continuance requested by both the state and defendant, the motion was heard and overruled on April 22,1977. After an additional 4 month delay, caused in part by defendant’s change in counsel and his disqualification of the original trial judge, defendant’s trial began on September 1, 1977. 2

During the discussion immediately prior to trial, defendant renewed his motion to dismiss, again arguing the denial of his right to a speedy trial and the denial of his “due process rights”, and, also, added a new ground of denial of his rights, under our state “speedy trial statute”, related to terms of court, § 545.900 RSMo. However, on appeal, defendant only argues his Sixth Amendment right and, thus, has abandoned his other complaints against the delay prior to trial.

For greater clarity the foregoing facts are organized in the following table:

*870

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Cite This Page — Counsel Stack

Bluebook (online)
587 S.W.2d 865, 1979 Mo. App. LEXIS 2971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-black-moctapp-1979.