State v. Dierks

564 S.W.3d 354
CourtMissouri Court of Appeals
DecidedNovember 20, 2018
DocketNo. ED 105945
StatusPublished
Cited by3 cases

This text of 564 S.W.3d 354 (State v. Dierks) 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. Dierks, 564 S.W.3d 354 (Mo. Ct. App. 2018).

Opinion

ROBERT G. DOWD, JR., Judge

Michael Dierks ("Defendant") appeals from the judgment entered after a jury trial on his convictions for possession of a controlled substance and possession of drug paraphernalia. He challenges the trial court's denial of his pre-trial motions for continuance and his motion to suppress. We affirm.

On September 8, 2015, the police found a case containing methamphetamine and drug paraphernalia in the tent Defendant was sharing with Angela Akers, Defendant's fianceé at the time, while they were camping in a state park. The State charged Defendant, and the court appointed a public defender. In April 2017, the court set the case for trial on July 31, 2017. On July 27, 2017-the Thursday before the Monday trial setting-the public defender filed a motion to continue the trial alleging that Akers was a material witness but "cannot be located." In that *357motion, the public defender also informed the court that Defendant planned to hire private counsel that afternoon. That evening, private counsel entered his appearance for Defendant and filed a motion to continue. In that motion, counsel alleged he had just been retained that day, Thursday, did not have any discovery and would likely not be able to provide proper representation at trial if it were to occur on Monday. After a hearing, the trial court granted the public defender leave to withdraw as counsel for Defendant, but denied the continuance requests.

The trial proceeded on July 31. That morning, new counsel filed a motion to suppress a statement Defendant made when the police found the case in his tent. In that statement, Defendant acknowledged that he knew the case was in the tent; he argued the statement was inadmissible because it was made during a custodial interrogation without being Mirandized. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The trial court denied that motion after an evidentiary hearing. The jury ultimately found Defendant guilty of felony possession of methamphetamine and misdemeanor use of drug paraphernalia. He was later sentenced, as a prior and persistent offender, to fifteen years' imprisonment and thirty days in the county jail to be served concurrently. This appeal follows.

In his first point, Defendant challenges the denial of the motion to continue filed by the public defender based on the inability to locate Akers. In his second point, Defendant challenges the denial of the motion to continue that was filed by private counsel on grounds that he had inadequate time to prepare for trial. The State contends that the first point is not preserved because the alleged error in denying that particular motion for continuance was not raised in the motion for new trial. The motion for new trial referred to the fact that two motions for continuance were filed, but it alleged error only with respect to the "overruling of Defendant's motion for continuance"-singular-and then discussed only the ground asserted in private counsel's motion, namely that counsel "did not have the discovery" and "was unable to properly find, interview, and subpoena witnesses for trial and adequately prepare." Defendant claims this is an "exceedingly technical reading" of the motion for new trial, but requests plain error review in the event we find the error unpreserved.

We need not determine if this point was properly preserved because we find no error under either the plain error or the preserved standard of review, both of which are premised on finding an abuse of discretion. Plain error is found "only if we determine that its ruling was an obvious and clear abuse of discretion, which resulted in manifest injustice or miscarriage of justice to the appellant." State v. Wolf , 91 S.W.3d 636, 644-45 (Mo. App. W.D. 2002). "When properly preserved, a trial court's decision denying a motion for a continuance will be reversed only if there is a strong showing that the trial court abused its discretion and that prejudice resulted from the denial of the motion." State v. Harding , 528 S.W.3d 362, 375-76 (Mo. App. E.D. 2017). An abuse of discretion occurs when the decision is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. at 376. We find no abuse of discretion in the denial of either motion to continue.

First, the motion to continue based on the inability to locate Akers was properly denied because it did not comply with Rule 24.10. Under Rule 24.10, an application for continuance due to the absence of a witness must show: (1) the *358materiality of the evidence sought to be obtained and due diligence on the part of the applicant to obtain the witness; (2) the name and residence of the witness or, if not known, diligence to obtain the same, and facts showing reasonable grounds for belief that the attendance or testimony of such witness will be procured within a reasonable time; (3) the facts that the witness will prove and that there is no other person who could have been present at trial to testify to such facts; and (4) good faith in seeking the continuance for the purpose of obtaining a fair and impartial trial. State v. Jones , 479 S.W.3d 100, 112 (Mo. banc 2016) ; State v. Salter, 250 S.W.3d 705, 712 (Mo. banc 2008) ; State v. Edwards , 116 S.W.3d 511, 535-36 (Mo. banc. 2003). If a continuance is not likely to result in the presence of the witness at trial, then the court is within its discretion to deny the continuance. Edwards , 116 S.W.3d at 535.

Defendant's motion to continue due to Akers's absence provided as follows:

A material witness, Angela Akers, cannot be located. In this matter, methamphetamine was found inside of a black bag located in a tent shared by Ms. Akers and [Defendant].

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Cite This Page — Counsel Stack

Bluebook (online)
564 S.W.3d 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dierks-moctapp-2018.