State v. Ivester

978 S.W.2d 762, 1998 Mo. App. LEXIS 744, 1998 WL 186848
CourtMissouri Court of Appeals
DecidedApril 21, 1998
DocketNo. 71745
StatusPublished
Cited by5 cases

This text of 978 S.W.2d 762 (State v. Ivester) 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. Ivester, 978 S.W.2d 762, 1998 Mo. App. LEXIS 744, 1998 WL 186848 (Mo. Ct. App. 1998).

Opinions

CRANDALL, Judge.

Defendant, Michael Ivester, appeals from judgments of conviction, after a jury trial, for forcible rape, forcible sodomy, and felonious restraint. He was sentenced to consecutive prison terms of two life sentences and seven years respectively. We affirm.

On appeal, defendant does not challenge the sufficiency of the evidence to support his convictions. On December 3, 1993, defendant arrived home around 6:00 p.m. His wife was there when he arrived. Defendant had been drinking. He became violent and began to destroy the furniture and the interior of the home. He beat his wife repeatedly [764]*764and threatened to kill her. He struck their two-year old child while his wife was holding him. He laughingly told his nine-year old stepson who was present that he was going to kill his mother. The stepson bravely attempted to protect his mother but failed. Defendant continued to beat his wife, then took her to the bedroom and forcibly sodomized her and forcibly raped her twice. His announced justification was that she was his wife and therefore he could do whatever he wanted to do.

Wife was finally able to leave her home in the early morning of December 4,1998. She drove to the police station and arrived there at approximately 5:30 a.m. Within thirty minutes of her arrival at the station, officers went to the residence and placed defendant under arrest. Defendant has been in custody since that day.

The state charged defendant in an amended information with forcible rape, forcible sodomy, and felonious restraint. He was arraigned on March 7, 1994. Trial was originally set for May 12,1995, seventeen months after defendant was jailed. On May 4, 1995, the state filed a request to endorse additional witnesses. Following this request, the ease was continued. The parties discussed a guilty plea on one charge. On May 12, 1995, with the consent of the state, defendant requested a “continuance for a plea of guilty on May 19,1995.” The parties did not reach an agreement for a plea because the attorneys held opposing views on which charge would be the subject of the plea. On May 19,1995, the “cause [was] continued to be re-assigned.” On June 9,1995, an amended information was filed.

Two months later, on August 16, 1995, defendant filed a motion to dismiss for failure to provide a speedy trial or, in the alternative, a request for a speedy trial. The trial court denied the request to dismiss and the trial did not commence until March 12, 1996. On August 24, 1995, both the state and defendant requested a priority trial setting. The trial court record does not explain or justify the delay from August 1995, to the trial on March 12, 1996. During trial, defendant did not testify or present any evidence. He continued to assert his speedy trial rights were violated. The jury returned guilty verdicts on all three counts. Defendant’s motion for new trial was denied and the court sentenced defendant. Defendant raises two points on appeal.

Defendant first argues the trial court erred in denying his motion to dismiss because a twenty-seven month delay from his arrest to trial deprived him of his right to a speedy trial guaranteed by the United States Constitution and Missouri Constitution. The state responds that defendant was brought to trial in an orderly and expeditious manner and that defendant was not prejudiced by the delay.

The Sixth Amendment to the United States Constitution and Art. I, section 18(a) of the Missouri Constitution guarantee a criminal defendant the right to a speedy trial. State v. Fleer, 851 S.W.2d 582, 595 (Mo.App. E.D.1993). To determine whether a defendant has been denied his constitutional right to a speedy trial, Missouri has adopted the balancing process set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). State v. Bolin, 643 S.W.2d 806, 813-16 (Mo. banc 1983). The process requires the balancing of four factors: (1) length of the delay; (2) reason for the delay; (3) defendant’s assertion of his right to a speedy trial; and (4) prejudice to defendant. State v. Davis, 903 S.W.2d 930, 936 (Mo.App. W.D.1995).

The first factor is actually a double inquiry. Doggett v. United States, 505 U.S. 647, 651, 112 S.Ct. 2686, 2690, 120 L.Ed.2d 520 (1992). Initially, we examine the length of delay to determine if the delay is ordinary or presumptively prejudicial. A further inquiry into the remaining factors is required only if the delay reaches a level presumed to be prejudicial. If the length of delay is not presumptively prejudicial, the request for dismissal may be denied without explaining or weighing the remaining factors. State v. Farris, 877 S.W.2d 657, 659-60 (Mo.App. S.D.1994). The presumption that pretrial delay prejudices defendant increases over time, and we must again examine the length of delay when analyzing prejudice to the defense, a consideration in the fourth factor [765]*765of the Barker analysis. Doggett, 505 U.S. at 652, 112 S.Ct. at 2691.

Defendant was arrested on December 4, 1993, but was not tried until March 12, 1996. The length of delay totaled more than twenty-seven months. A delay of eight months or longer is presumptively prejudicial and therefore an examination of the remaining three factors is necessary. Farris, 877 5.W.2d at 660.

A delay of three and one-half times the period creating a presumption of prejudice is alarming especially when we consider the time frames and standards for case processing set forth by our Supreme Court in Administrative Rule 17.23.1 Even though the rale went into effect after this trial, it establishes a standard for what is considered tolerable pretrial delay on a felony charge. The time frames and standards for circuit court felonies are fifty percent processed in four months, ninety percent disposed of in eight months, and ninety-eight percent completed in twelve months. A twenty-seven month delay for a defendant incarcerated in a county jail is wholly incompatible with the Supreme Court standards, particularly where the delay is unexplainable. The length of delay is strong support for defendant.

Furthermore, defendant was in custody in the St. Charles County jail for all twenty-seven months before he was tried. There were no other charges pending, no missing witnesses for the state, and defendant was not undergoing mental examinations. There simply was no excuse for this case not to go to trial. The victim, wife, not only underwent the trauma of the events of December 3 and 4, 1993, but also suffered the stress of waiting twenty-seven months for the uncertainty to end. The second factor to consider is the reason for the delay. Different weights are assigned to the different explanations given for the delay. Delays deliberately intended to harm the defense are weighed heavily against the state. State v. Raine, 829 S.W.2d 506, 512 (Mo.App.1992). Delays attributable to the state’s negligence or overcrowded court dockets are weighed against the state, although weighed less heavily. Id

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Bluebook (online)
978 S.W.2d 762, 1998 Mo. App. LEXIS 744, 1998 WL 186848, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ivester-moctapp-1998.