State v. Cullen

682 S.W.2d 132, 1984 Mo. App. LEXIS 4900
CourtMissouri Court of Appeals
DecidedNovember 9, 1984
DocketNo. 13571
StatusPublished
Cited by1 cases

This text of 682 S.W.2d 132 (State v. Cullen) 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. Cullen, 682 S.W.2d 132, 1984 Mo. App. LEXIS 4900 (Mo. Ct. App. 1984).

Opinion

GREENE, Judge.

Patrick M. Cullen was jury-convicted of three counts of the class A felony of kidnapping, § 558.011.1(1),1 one count of the class B felony of armed criminal action, § 571.015, and one count of attempted escape from confinement, § 558.011, and was thereafter sentenced by the trial court, as a prior offender, to two life sentences and a total of 46 years’ imprisonment on the five offenses in question.

The sufficiency of the evidence to sustain the jury verdicts is not challenged on appeal. It suffices to say that evidence in the record supporting the verdicts shows that on July 25, 1981, Cullen, an inmate of the Missouri State Penitentiary who had three prior felony convictions, and another inmate, William Lewis Herron, who had four prior felony convictions, including one for first degree murder, attempted to escape from the penitentiary. They had a cutting torch, which they planned to use to cut the bars at the various security doors along their escape route, and two loaded pistols. Billy Holt, an employee of the prison for many years, was later convicted for smuggling contraband into the prison.

While Cullen was cutting the bars on one of the doors, he was discovered by Officer Charles Turner, a prison guard. Turner was taken hostage and tied to a chair by Herron. Another officer, George Thompson, became alarmed when Turner did not return from his appointed rounds and started to call the Control Center to report Turner’s absence when he was also taken hostage by Herron. Cullen continued to use the cutting torch in the break-out attempt. Turner escaped temporarily, went to another room where he broke a window and blew his whistle to alert other guards of the escape attempt. Cullen recaptured Turner at pistol-point. When he brought Turner back to where Herron was guarding Thompson, Cullen said, “We ought to kill the son-of-a-bitch; he blowed the whistle on us.” Herron said, “No, let’s wait.” Richard Childs, a Zone Lieutenant, was taken hostage at pistol-point when he came to the area to make his daily check on the housing unit. The three guards were then held hostage by Herron and Turner in an office area.

By this time, the prison warden had been alerted and negotiations for the release of the hostages started over the telephone between Herron, the warden and the assistant warden. During this time, Cullen was guarding the three hostages and threatening to kill Turner with his pistol. Finally, after realizing that they were not going to be set free in return for the release of the hostages, Cullen and Herron released the guards and surrendered. The filing of the charges in question followed.

Cullen’s first point relied on in this appeal contends that the trial court erred in overruling his motion to dismiss for failure [134]*134to grant him a speedy trial. Cullen urges that the undue delay between the time of his arrest and the date of trial was caused substantially by the state to his prejudice.

Facts pertinent to this issue are that Cullen remained in the penitentiary after he surrendered on July 25, 1981. He was serving “10 and 5” on a prior conviction. In addition, he had “a parole detainer for the feds and I owe them 9 and a half more years .... ” He knew “I’m never gonna make parole .... ” Cullen was indicted on November 1, 1981, in Cole County, the site of the incident in question, and arraigned December 1,1981. He entered pleas of not guilty and not guilty by reason of mental disease or defect excluding responsibility. A psychiatric examination was ordered, and a report of the results was filed with the trial court on September 14, 1982.

Venue of the case was moved to Randolph County where the trial court, on May 25, 1983, dismissed without prejudice all charges against Cullen arising out of the escape attempt for lack of a speedy trial. In connection with the dismissal, the trial court made the following findings and conclusions:

In ordering dismissal without prejudice, the Court has considered the seriousness of the offenses charged, namely, the kidnapping and taking of prison guards as hostages, and the use of weapons in connection therewith. The Court finds from the unchallenged statements of the State that Defendant is presently serving a long period of incarceration, and will presumably be available for trial, and difficulty in trial preparation will be no greater for Defendant in the future than it is at present time. The Court further finds that the State’s ability to try the Defendant is similarly not impaired, owing to the availability of witnesses. The Court believes that the order of dismissal is compatible with twin public policies, one being in the speedy trial law, that, except for excluded periods of time, the Defendant shall be tried within 180 days; and that its order of dismissal without prejudice is compatible with the other public policy that those who are charged with serious crimes should be brought to trial.

The state immediately filed a new complaint against Cullen followed by a five-count information charging the offenses for which he was convicted. The case was transferred to Phelps County on change of venue. Prior to trial, which started on September 14, 1983, Cullen again filed a motion to dismiss for violation of the Speedy Trial Act, which motion was overruled by the trial court.

Boiled down, Cullen’s argument on this point is that the length of the delay in bringing his case to trial prejudiced his ability to present his defense and thus violated his constitutional and statutory right to a speedy trial.

In criminal prosecutions, the accused has a constitutional right to a speedy and public trial. Factors to be considered in determining whether the accused was denied that right are 1) length of the delay, 2) reasons for the delay, 3) the accused’s assertion of his right, and 4) prejudice to the accused from the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972).

Each case in which speedy trial violations are claimed must be determined on its own facts. State v. Black, 587 S.W.2d 865, 869 (Mo.App.1979). The delay in this case of 567 days from the time Cullen was first charged until he was finally tried was not so inordinately lengthy as to automatically weigh heavily against the state. See Barker v. Wingo, supra, (five-year delay— no denial of speedy trial); United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 776, 15 L.Ed.2d 627, 630 (1966) (19-month delay — no denial of speedy trial); United States v. Roemer, 514 F.2d 1377, 1382 (2d Cir.1975) (56-month delay — no denial of speedy trial); United States v. Skillman, 442 F.2d 542, 557 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 82, 30 L.Ed.2d 63 (1971) (20-month delay — no denial of a speedy trial). Morris v. Wyrick, 516 F.2d 1387, 1390 (8th Cir.1975).

[135]*135It is difficult to determine the reasons for all of the delay due to an incomplete record.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Daly
731 S.W.2d 315 (Missouri Court of Appeals, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
682 S.W.2d 132, 1984 Mo. App. LEXIS 4900, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cullen-moctapp-1984.