State of Missouri v. David E. Smith

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
STATE OF MISSOURI, ) No. ED102585
)
Respondent, ) Appeal from the Circuit Court
) of St. Louis County
vs. ) 13SL-CR04581-01
)
DAVID E. SMITH ) Honorable Tom W. DePriest, Jr.
)
Appellant. ) Filed: April 5, 2016
David E. Smith (“Defendant”) appeals the judgment entered upon a jury verdict
convicting him of one count of first-degree assault, one count of first-degree robbery, and two
counts of armed criminal action. On appeal, Defendant argues the trial court erred in denying his
motion for a mistrial and, in the alternative, his motion to continue the trial, after it was
discovered during the trial that Bridgeton police had video surveillance footage from the scene of
the crimes which was not disclosed to the defense prior to trial. Defendant also claims the trial
court erred in denying his motions to dismiss his charges on the grounds his right to a speedy
trial had been violated. We affirm.
I. BACKGROUND
On July 1, 2013, Defendant was charged with the above crimes for his alleged
involvement in an incident involving Florentino Marquez Tellez (“Victim”). Defendant was
tried by a jury on November 3-7, 2014, and he does not challenge the sufficiency of the evidence
to support his convictions.
A. Evidence Presented at Defendant’s Jury Trial
Viewed in the light most favorable to the verdict, the evidence presented at Defendant’s
jury trial revealed the following.
On May 10, 2013, Defendant, Shenee Edwards, Lindsay Dames, Kevin Nolfo, and Jake
Dwyer were gathered in Room 235 of the Northwest Airport Inn in Bridgeton (“the motel”).
After Defendant smoked crack cocaine, he asked Dames if she knew of someone he could rob,
and Dames suggested Victim. Dames and Victim were acquaintances, and Dames thought
Victim would have substantial cash from getting paid at work that day. In addition, Dames and
Victim had already planned to meet up at a nearby Domino’s Pizza later that night. Defendant
asked Dames if Victim would fight back, and Dames said she did not think he would.
Nolfo and Dwyer were asked if they wanted “in” on the robbery, but they declined.
Dames and Edwards then left the motel room to meet Victim. Victim, who lived close by,
walked from his home to the Domino’s, where he met Dames and Edwards. They ordered food
and Victim paid for it. Subsequently, Dames asked Victim to accompany her and Edwards back
to the motel, and Victim agreed.
Dames contacted Dwyer and told him that he and Nolfo needed to get out of the motel
room since they did not want to participate in the robbery. Dwyer then sent Dames a text
message telling her Defendant would be hiding in the bathroom.
Thereafter, Dames, Edwards, and Victim arrived at the motel room, and Dames and
Edwards left Victim alone on the couch in the living room.1 Defendant subsequently left the
bathroom and charged toward Victim, while holding a knife in his hand and yelling curse words.
1
The motel room was divided into living room, bedroom, kitchen, and bathroom.
2
Defendant then hit Victim in the face with his elbow and stabbed Victim near his heart. Victim,
who was bleeding heavily, dropped his cell phone and tried to grab it, but Defendant kicked it
away. Defendant then said to Victim, “[G]ive me the money, mother [expletive],” while
continuing to hold the knife. Victim removed about $130 in cash from his pocket and threw it on
the carpet. Defendant then took Victim’s money and cell phone and ran out of the room. Dames
followed Defendant, and they both drove away in Defendant’s black Chevrolet truck.
As they were driving away from the motel, Dames asked Defendant, “What the
[expletive]?” referring to the fact that hurting Victim had not been part of the plan. Defendant,
who was still holding a knife, told Dames to shut up or he would slit her throat. Defendant then
threw the knife out of the passenger window of the truck as he was driving through St. Ann. He
later parked in a residential area of Breckenridge Hills and told Dames to walk down the street
with him. Defendant kicked Victim’s cell phone into a sewer, and he and Dames went to a
nearby house, where Defendant knocked on the door and asked the occupant if he could have
something to clean himself up with in exchange for cash. After the occupant brought Defendant
a towel, Dames sent a text to message to Edwards, asking to be picked up. Edwards, Nolfo, and
Dwyer arrived in Dwyer’s vehicle, and Dames got in. Defendant, who had shoulder-length hair
at the time, told Dames, Edwards, Nolfo, and Dwyer to tell the police the man who stabbed and
robbed Victim was “a long-haired biker,” with hair that went down to the middle of his back.
Defendant got his hair shaved off the day after the incident.
After Victim was stabbed and robbed, he walked back to the Domino’s, where he passed
out, and he later underwent surgery. Victim suffered a knife wound to the chest which lacerated
the right ventricle of his heart, penetrated his diaphragm, and lacerated his liver. Victim had
internal bleeding, and he would have bled to death without medical attention.
3
Dames was questioned by police about a week after the incident. The police showed
Dames multiple still-image photographs taken from one of the motel’s video surveillance
cameras (“camera eleven”), and she identified herself, Defendant, Edwards, Nolfo, and Dwyer as
the individuals shown in the photographs. Dames also later identified Defendant from a
photograph array of a total of six men who resembled one another. Dames told the police
Defendant had physically assaulted Victim after she brought him to the motel to be robbed, and
she also told police where Defendant had disposed of Victim’s cell phone.2 Detectives went to
that location and recovered the cell phone, in pieces, from the sewer. Prior to and during trial,
Victim identified the cell phone as the phone that was taken from him in the motel room.
Victim was shown a still-image photograph taken from camera eleven, and he testified at
trial that the man in the photograph looked like the man who stabbed and robbed him. When
shown the same still-image photograph at trial, Nolfo, Dwyer, and Defendant’s wife identified
Defendant as the man in the photograph.
Before trial, Victim viewed a line-up of men including Defendant, and prior to and during
trial, Victim identified Defendant as the man in the line-up who stabbed and robbed him. Victim
also stated Defendant’s hair was longer at the time of the incident than it was at the time of the
line-up.
B. Relevant Procedural Posture
1. Defendant’s Motions to Dismiss, Motion for a Mistrial, and Motion to
Continue the Trial
Prior to trial, Defendant’s counsel filed motions to dismiss Defendant’s charges on the
grounds his constitutional and statutory right to a speedy trial had been violated, which the trial
2
Dames did not tell police about Defendant throwing the knife out of his truck, so they never searched for it and
never recovered it. A knife was seized from Defendant’s truck after he was arrested, but it was not connected to the
stabbing.
4
court denied. During the trial, Defendant filed a motion for a mistrial and, in the alternative, a
motion to continue the trial, after it was discovered during the trial that the Bridgeton police had
video surveillance footage from the motel which was not disclosed to the defense prior to trial.
The trial court denied both of those motions.3
2. The Jury’s Verdict, Defendant’s Motion for a New Trial, and the Trial
Court’s Judgment
After hearing all of the evidence, including that which is set out above in Section I.A., the
jury found Defendant guilty of one count of first-degree assault (Count I), one count of first-
degree robbery (Count III), and two counts of armed criminal action (Counts II and IV).
Defendant filed a motion for a new trial, asserting the trial court erred in denying his motions to
dismiss, motion for a mistrial, and his motion to continue the trial. The trial court denied
Defendant’s motion for a new trial.
Thereafter, the trial court entered a judgment in accordance with the jury’s verdict. The
court sentenced Defendant as a prior and persistent offender to consecutive terms of life
imprisonment for Counts I and II and to concurrent terms of life imprisonment for Counts III and
IV, with the sentences for Counts I and II to run concurrently with the sentences for Counts III
and IV. Defendant appeals.
II. DISCUSSION
Defendant raises three points on appeal. In his first and second points on appeal,
Defendant asserts the trial court erred in denying his motion for a mistrial and, in the alternative,
his motion to continue the trial. In his third point on appeal, Defendant contends the trial court
erred in denying his motions to dismiss his charges on the grounds his right to a speedy trial had
been violated.
3
Further details regarding Defendant’s motions to dismiss, motion for a mistrial, and motion to continue the trial
will be discussed below in Sections II.A. and II.B.
5
A. The Trial Court’s Denials of Defendant’s Motion for a Mistrial and His Motion for
a Continuance
Defendant’s first and second points on appeal assert the trial court erred in denying his
motion for a mistrial and, in the alternative, his motion to continue the trial, after it was
discovered during the trial that Bridgeton police had video surveillance footage from the motel
which was not disclosed to the defense prior to trial. Because both of these points involve the
same underlying facts, standard of review, and general law, we will address them together.
1. Relevant Facts
On July 10, 2013, defense counsel filed a request for discovery pursuant to Rule
25.03(A)4 requesting, inter alia, “[a]ny material or information within the possession or control
of the State or its agents which tends to negate the guilt of the defendant as charged, or reduce
punishment.” See Rule 25.03(A)(9). Prior to trial, the State disclosed to the defense video
surveillance footage from camera eleven at the motel, and this was the only surveillance footage
which was given to the defense prior to trial.
Testimony at trial revealed the police showed Dames multiple still-image photographs
taken from camera eleven, and she identified herself, Defendant, Edwards, Nolfo, and Dwyer as
the individuals shown in the photographs. In addition, Victim was shown a still-image
photograph taken from camera eleven, and he testified at trial that the man in the photograph
looked like the man who stabbed and robbed him. When shown the same still-image photograph
at trial, Nolfo, Dwyer, and Defendant’s wife identified Defendant as the man in the photograph.
On Tuesday, November 4, 2014, the first day of trial testimony, the State called
Bridgeton Police Detective Brice Loveall as a witness, and he testified to the following.
Detective Loveall went to the motel on the night of the crimes against Victim and met another
4
All references to Rules are to Missouri Supreme Court Rules (2015).
6
officer who was reviewing the motel’s video surveillance tapes. After the other officer pointed
out that video surveillance footage from camera eleven showed Victim and others on the motel
stairwell, Detective Loveall had the motel staff download the footage from camera eleven onto a
flash drive. Detective Loveall identified State’s Exhibit 26 as a copy of the footage that had been
forwarded to the prosecutor’s office, and the exhibit was admitted without objection.
During defense counsel’s cross-examination of Detective Loveall, counsel sought
confirmation from the detective that footage from the surveillance camera in the motel lobby was
not seized. The detective testified that copies of surveillance footage from “all video cameras”
were seized and were on a DVD which was given to the prosecutor’s office. Defense counsel
then requested a bench conference and informed the court that Detective Loveall’s testimony
was unexpected because the only video surveillance footage counsel had received was from
camera eleven. The prosecutor stated she also had not received any footage from any other
cameras, and she later told the court every piece of evidence she had was turned over to defense
counsel and that she learned of the additional surveillance videos at the same time as defense
counsel. Upon further questioning by defense counsel, Detective Loveall testified he was not the
person who provided any copies of video surveillance footage to the prosecutor, so he did not
actually know if footage from cameras other than camera eleven were turned over. The detective
also testified that all of the video surveillance footage was on file with the other evidence in the
case on the law enforcement server.
The trial court subsequently ordered defense counsel to be provided with the DVD
containing the undisclosed surveillance footage before 5:00 p.m. that day. The court asked
defense counsel if an overnight review of the footage would be sufficient, and counsel stated it
7
would be so long as Detective Loveall would be available for recall. The court stated the
detective would be available for recall.
When court reconvened the following morning (Wednesday, November 5, 2014), the
court made a record that the DVD with the previously-undisclosed surveillance footage had been
turned over to defense counsel. Defense counsel informed the court that a large portion of the
footage had been reviewed the previous night, and investigators and interns at the Public
Defender’s office would continue to view the footage while counsel participated in the trial.
Defense counsel also told the court that all of the footage would be viewed by the end of the day
and the State’s case was expected to continue for the next one to two days.
When court reconvened the next morning (Thursday, November 6, 2014), defense
counsel made a record that the motel had three video banks of cameras, with each bank
containing up to sixteen different cameras. Counsel also stated that camera number nine
(“camera nine”) and camera number ten (“camera ten”) looked out from the lobby towards the
parking lot, and footage from those cameras showed a black Chevrolet truck which appeared to
match Defendant’s leaving the parking lot and entering the adjacent street at 10:09:39 p.m.
Counsel then noted the video footage from camera eleven showed Victim entering the
motel at 10:09:54 p.m. and a man identified by witnesses as Defendant leaving the motel at
10:16:06 p.m. Defense counsel argued that the time stamps on the cameras thus showed
Defendant’s truck leaving the motel parking lot before Victim had even arrived at the motel.
Counsel then told the court he had received an email from the prosecutor at 6:45 p.m. on
the previous evening (Wednesday) indicating another Bridgeton police detective, William
Dickherber, had gone to the motel earlier that day and taken “screen shots” of two video banks –
one containing cameras nine and ten and a different one containing camera eleven. The email
8
further indicated Detective Dickherber had discovered a time discrepancy between the two video
banks of six minutes and twenty-three seconds.
At this point, defense counsel moved for a mistrial, arguing the video surveillance
footage from cameras nine and ten should have been disclosed to the defense during the normal
discovery process and that the State’s failure to disclose the evidence constituted a violation of
Brady v. Maryland, 373 U.S. 83 (1963). The court questioned the impact of the “time” issue on
Defendant’s case and noted that if Defendant’s defense was misidentification, then presenting
evidence of his truck leaving the motel parking lot would be damaging evidence indicating he
was at the scene of the charged crimes. In response, defense counsel argued Defendant made a
statement to the police that he loaned his truck to someone on the night of the incident, so the
presence of the truck did not damage his defense that he did not commit the crime. The court
noted Defendant’s statement to the police had been previously suppressed5 and denied the
motion for a mistrial.
Defense counsel subsequently moved for a continuance of the trial so he could
investigate whether time discrepancies in the videos existed on the day of the charged crimes.
The trial court denied the motion.
Subsequently, Detective Dickherber testified for the State and described information
obtained during his review of the video cameras at the motel on Wednesday, November 5.
Detective Dickherber testified that the motel had four different servers for its surveillance
camera system, and camera eleven was on a different server than cameras nine and ten. The
detective also testified he compared the time stamp on the servers to the time reflected on his
own watch. Detective Dickherber stated that while the time stamp on the server for camera
5
Prior to trial, defense counsel filed a motion to suppress Defendant’s statement to the police on the grounds it was
obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and the trial court granted the motion.
9
eleven matched his watch and appeared to be accurate, the time stamp on the server for cameras
nine and ten was six minutes and twenty-three seconds slower than the time stamp on the server
for camera eleven.
During defense counsel’s cross-examination of Detective Dickherber, defense counsel
played a portion of the video surveillance footage captured by cameras nine and ten and entered
into evidence still photographs taken from the footage. Counsel elicited testimony from
Detective Dickherber that the time stamp on cameras nine and ten showed a truck appearing to
match Defendant’s leaving the motel parking lot at 10:09:39 p.m., while camera eleven showed
the Victim entering the motel at 10:09:54 p.m. Counsel also elicited testimony from the
detective that even factoring in the alleged six minute and twenty-three second discrepancy, the
time stamp on cameras nine and ten showed the truck leaving the motel parking lot at 10:16:02
p.m., while the time stamp on camera eleven showed the man identified as Defendant present in
the motel stairwell at 10:16:06 p.m. Detective Dickherber conceded that, by his own
investigation into the cameras and even compensating for the alleged time discrepancy, the truck
appearing to match Defendant’s was leaving the motel parking lot while the man identified as
Defendant was still in the motel stairwell.
During closing argument, defense counsel argued about the video evidence and Detective
Dickherber’s testimony to the jury:
If you add up the times, even giving [Detective Dickherber] the benefit of the
doubt that these camera banks are not in sync[,] . . . if you add the time
discrepancy, which is 6:23, you get [10:]16:02, and you can take your time to
work the math. That truck is in motion [while the suspect] is walking out, and
[the detective] knows he has a problem . . . and evidence is not coming together
the way he wants it.
...
10
I know yesterday I was cross with Detective Dickherber, but these are very
serious matters, and . . . in this case . . . we’re not talking about reasonable doubt.
[Defendant] was not there in that room when [Victim] was stabbed and robbed.
2. Standard of Review and General Law
In this case, Defendant argues the trial court erred in denying his motion for a mistrial,
and, in the alternative, his motion to continue the trial because the State violated Rule 25.03 and
Brady by failing to disclose all of the video surveillance footage from the motel prior to the trial.
Whether a particular sanction should be imposed for noncompliance with Rule 25.03
and/or disclosure of exculpatory evidence as required by Brady is a matter that lies within the
sound discretion of the trial court. State v. Wallace, 43 S.W.3d 398, 402 (Mo. App. E.D. 2001).
The trial court may order disclosure of the evidence, grant a mistrial, grant a continuance,
exclude such evidence, or enter such other orders it deems just under the circumstances of the
case. Id.; Rule 25.18.
A mistrial is a drastic remedy which should be reserved for situations where all other
remedies are inadequate, and an appellate court will reverse a trial court’s denial of a motion for
a mistrial only when there has been an abuse of discretion. State v. Blevins, 385 S.W.3d 526,
528 (Mo. App. S.D. 2012); Wallace, 43 S.W.3d at 403. Similarly, “[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. Litherland, 477 S.W.3d 156, 163 (Mo. App. E.D. 2015). An abuse of discretion occurs when
the trial court’s ruling was “so illogical, arbitrary, and unreasonable as to shock the sense of
justice and indicate a lack of careful consideration.” Blevins, 385 S.W.3d at 528 (quotations
omitted). Moreover, whether a trial court committed reversible error in denying a motion for a
mistrial or a motion for a continuance is determined by considering the circumstances of each
11
case. Litherland, 477 S.W.3d at 163; City of Sugar Creek v. Harmon, 607 S.W.2d 777, 781 (Mo.
App. W.D. 1980).
Rule 25.03(A)(9) requires the State to provide to the defendant, upon written request,
“[a]ny material or information, within the possession or control of the [S]tate, which tends to
negate the guilt of the defendant as to the offense charged, mitigate the degree of the offense
charged, or reduce the punishment.” The purpose of Rule 25.03(A) “is to grant the defendant a
decent opportunity to prepare his case in advance of trial and avoid surprise.” State v. Ivy, 455
S.W.3d 13, 18 (Mo. App. E.D. 2014) (quotations omitted). The State’s duty to disclose evidence
to the defense includes information that is actually known to the prosecutor prior to trial as well
as information that he or she may have learned of through reasonable inquiry. State v. Mabry,
285 S.W.3d 780, 787 (Mo. App. E.D. 2009). Although compliance with the Rule is mandatory,
appellate courts will find a trial court abused its discretion in failing to impose a remedy for a
discovery violation only where the defendant demonstrates the State’s failure to make a timely
disclosure resulted in fundamental unfairness. Ivy, 455 S.W.3d at 18; Mabry, 285 S.W.3d at 787.
“Fundamental unfairness turns on whether there was a reasonable likelihood that an earlier
disclosure of the requested evidence would have affected the result of the trial.” Ivy, 455 S.W.3d
at 18 (quotations omitted).
Pursuant to Brady, due process is violated where the State fails to disclose evidence in its
possession which is favorable to the accused and is material with respect to either guilt or
punishment. Barton v. State, 432 S.W.3d 741, 761 (Mo. banc 2014); State v. Reed, 334 S.W.3d
619, 625 (Mo. App. E.D. 2011). “The prosecutor is responsible for any favorable evidence
known to the others acting on the government’s behalf in [a] case, including the police,” because
it is the prosecutor’s duty to learn of such evidence. State v. Parker, 198 S.W.3d 178, 184 n. 2
12
(Mo. App. W.D. 2006) (quoting Strickler v. Greene, 527 U.S. 263, 275 n. 12 (1999)) (internal
quotations omitted). In order to make a successful Brady claim, the defendant has the burden to
show, (1) the evidence at issue is favorable to the defendant, either because it is exculpatory or
impeaching; (2) the evidence was suppressed by the State, either willfully or inadvertently; and
(3) the defendant was prejudiced as a result of the suppression of the evidence, i.e., that the
evidence is material. Barton, 432 S.W.3d at 761; see Reed, 334 S.W.3d at 626 (holding that the
defendant has the burden to prove elements of a Brady claim). Evidence is considered material
if:
there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different. The question is
not whether the defendant would more likely than not have received a different
verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence. The materiality
inquiry is not simply a matter of whether, after discounting the inculpatory
evidence, there remains sufficient evidence to support the conviction. Rather, the
question is whether the favorable evidence could reasonably be taken to put the
whole case in such a different light as to undermine confidence in the verdict.
Barton, 432 S.W.3d at 761 (quoting Strickler, 527 U.S. at 280, 289-90) (internal citations and
quotations omitted). Evidence is also considered material “if it would have provided the
defendant with plausible and persuasive evidence to support a theory of innocence or would have
enabled the defendant to present a plausible, different theory of innocence.” State v. McKay, 411
S.W.3d 295, 305 (Mo. App. E.D. 2013).
3. Analysis and Defendant’s Arguments
The State does not dispute the following: (1) Defendant made a timely written request for
discovery pursuant to Rule 25.03(A)(9); (2) the video surveillance footage from all of the
cameras at the motel should have been disclosed to the defense prior to trial; (3) the footage in
cameras nine and ten contained evidence favorable to Defendant; and (4) the evidence was
13
inadvertently suppressed by the State. Instead, the State maintains Defendant is not entitled to
relief on appeal because he cannot show the State’s failure to make a timely disclosure of the
evidence resulted in fundamental unfairness or was material pursuant to Brady; accordingly, our
analysis will be confined to a determination of these issues. We will specifically examine
Defendant’s contentions that, (a) his case is similar to the Western District’s Decision in Buchli
v. State, 242 S.W.3d 449 (Mo. App. W.D. 2007); (b) the late-disclosure of the evidence affected
his trial strategy; and (c) the trial court’s denial of his motion for a continuance affected his
ability to prepare a defense to the late-disclosed video surveillance footage.
a. Buchli v. State
Buchli is the main case relied upon by Defendant.6 In Buchli, a jury found defendant
guilty of first-degree murder and armed criminal action. Id. at 451. Defendant subsequently
filed a Rule 29.15 motion for post-conviction relief alleging the State violated Brady by failing to
disclose all portions of Exhibit 134, a building surveillance video tape made on the day of the
murder between 6:49 a.m. and 5:39:50 p.m. Id. at 451-52. The State had turned over a portion
of the recording from 1:13 to 2:39 p.m., which encapsulated the timeframe when the victim died
and defendant left the scene. Id. At trial, the State used the video tape’s time stamp to try and
expand the window of opportunity defendant had to commit the crime and to leave the scene. Id.
at 452. The State called a detective who testified that twelve days after the crimes were
committed, the time stamp on the recording device was three minutes behind the time indicated
on his pager, and the State used other evidence to argue the time stamp was slow and was as
much as five minutes behind real time. Id. at 452, 454-55. In addition, the State presented
6
Defendant also relies on Ferguson v. Dormire, 413 S.W.3d 40 (Mo. App. W.D. 2013) and Duley v. State, 304
S.W.3d 158 (Mo. App. W.D. 2009) for general propositions of law relating to the late-disclosure of evidence,
relevant portions of which are discussed above in Section II.A.2. Ferguson and Duley are distinguishable from the
circumstances of this case because, inter alia, they involved untimely disclosure of witness statements rather than
video evidence. Ferguson, 413 S.W.3d at 44, 53-72; Duley, 304 S.W.3d at 161, 162-65.
14
testimony from a witness, a building engineer who was not involved in the events surrounding
the crimes, regarding the time he saw the defendant exit the building where the crimes occurred.
Id. at 452, 453.
In granting defendant post-conviction relief on his Brady claim, the motion court found
Exhibit 134 was exculpatory and material under Brady, because it demonstrated that when the
detective retrieved the surveillance tape on the day of the murder at 5:40 p.m., the time stamp on
the tape indicted 5:39:50 p.m. Id. at 451-52. The motion court concluded Exhibit 134 would
have established the time stamp on the video was accurate and would have cast doubt on the
State’s alternative timeline theory. Id. at 452. The State appealed, and the Western District
affirmed the motion court’s grant of post-conviction relief. Id. at 452, 456. The Court held
Exhibit 134 “would have provided [defendant] with plausible and persuasive evidence to support
his theory of innocence by supporting his theory that he did not have enough time to commit the
crime” and found the exhibit put the case in such a different light that it undermined confidence
in the verdict. Id. at 455.
In Buchli and this case, the State failed to disclose all video surveillance evidence prior to
trial and the State presented evidence at trial indicating there was a discrepancy in the time
stamps on surveillance footage. See id. at 451, 452, 454-55. But that is where the similarities
end. Here, in attempting to explain to the jury the motel’s video surveillance system and the
various cameras and footage, the State presented testimony from Detective Dickherber that he
observed a discrepancy in the time stamps on cameras nine and ten as compared to camera
eleven. Defense counsel was then able to cross-examine Detective Dickherber and gain an
admission that even when the alleged discrepancy was figured in, the cameras still showed the
truck which appeared to match Defendant’s leaving the motel parking lot while the man
15
identified as Defendant was still in the motel stairwell. Defendant was also able to put before the
jury the fact that the time stamps on cameras nine and ten, had they been accurate, showed the
truck leaving the parking lot before the Victim entered the motel, as reflected by the time stamp
on camera eleven. This is in contrast to the circumstances in Buchli, where the defendant did not
have an opportunity to utilize the potentially exculpatory evidence in front of the jury. See id. at
451-56.
The facts of this case are further distinguishable from Buchli because here, after the
existence of undisclosed surveillance footage became apparent to both defense counsel and the
prosecutor during the Tuesday of trial, the trial court ordered the police to provide defense
counsel with the footage before the end of the day. Defense counsel received the footage, and
staff from defense counsel’s office reviewed all of the footage before the end of the presentation
of the State’s case. In addition, after counsel utilized the footage during his cross-examination of
Detective Dickherber and elicited the favorable testimony discussed above, counsel highlighted
Detective Dickherber’s testimony during closing argument. Specifically, defense counsel argued
to the jury that even if they gave the detective the benefit of the doubt and believed his testimony
that the cameras were not in sync and contained a time discrepancy, the discrepancy showed the
truck which appeared to be Defendant’s leaving the motel parking lot while the suspect was still
in the motel stairwell. Defense counsel further argued during closing that Detective
Dickherber’s testimony was problematic for the State and demonstrated Defendant was not in the
motel room when Victim was stabbed and robbed. None of the preceding circumstances took
place in Buchli.
Buchli is further distinguishable because in this case, the State presented testimony from
four witnesses who were involved in the events surrounding the charged crimes. See id. at 452,
16
453 (the State presented testimony from a building engineer who was not involved in the events
surrounding the crimes regarding the time he saw the defendant exit the building where the
crimes occurred). Here, Dames, Nolfo, Dwyer, and Victim provided overwhelming testimony,
independent of any testimony identifying Defendant as the man in the surveillance footage from
camera eleven, which placed Defendant in the motel room near or at the time the crimes against
Victim occurred and implicated Defendant as the person who stabbed and robbed Victim.
Based on the foregoing, we cannot find that had the video surveillance footage from
cameras nine and ten been disclosed earlier, it would have provided Defendant with a plausible
and persuasive theory of innocence or would have put the case in such a different light that it
undermined confidence in the verdict. Cf. at 455. In other words, Defendant has not
demonstrated that the late-disclosed surveillance footage was material under Brady. See Barton,
432 S.W.3d at 761; McKay, 411 S.W.3d at 305. Similarly, Defendant has not demonstrated the
State’s failure to make a timely disclosure of video surveillance footage from cameras nine and
ten resulted in fundamental unfairness, i.e., that there was a reasonable likelihood an earlier
disclosure of the evidence would have affected the result of the trial. Ivy, 455 S.W.3d at 18.
b. Whether the Late-Disclosure of Evidence Affected Defendant’s Trial
Strategy
Defendant also argues the late disclosure of video surveillance footage from cameras nine
and ten resulted in fundamental unfairness and was material under Brady because it affected his
trial strategy. Defendant maintains that had he known about the evidence before trial, defense
counsel would not have filed a motion to suppress Defendant’s statement to the police that he
loaned his truck to someone on the night of the incident and counsel would have interviewed the
person who allegedly borrowed Defendant’s truck. We agree with the State’s contention that
17
“the decision to suppress [Defendant’s] statement had nothing to do with the ability to present
independent evidence that [Defendant] loaned out his truck.”
Further, the late-disclosed footage from cameras nine and ten, combined with the footage
from camera eleven, showed a truck appearing to be Defendant’s leaving the parking lot of the
motel while the suspect was still in the motel stairwell. We cannot understand how knowledge
of this information before trial would have somehow enabled Defendant to present a plausible,
different theory of innocence based upon the alleged assertion that Defendant loaned out his
truck on the night of the charged crimes. See McKay, 411 S.W.3d at 305 (evidence is considered
material under Brady when, inter alia, it would have enabled the defendant to present a
plausible, different theory of innocence). In other words, Defendant has not convinced this
Court there is a connection between the late-disclosed video surveillance evidence and a theory
that Defendant loaned out his truck on the night of the charged crimes.
Defendant has also not demonstrated that surprise from the late-disclosed video
surveillance footage prevented meaningful efforts to consider and prepare a strategy for
addressing the evidence where, (1) counsel’s staff reviewed all of the evidence before the State’s
presentation of the evidence was complete; (2) counsel was able to utilize the evidence in cross-
examining Detective Dickherber and gain admissions that were favorable to Defendant’s case;
and (3) counsel was able to highlight those admissions in closing argument. See State v. Zetina-
Torres, 400 S.W.3d 343, 353-54 (Mo. App. W.D. 2013) (fundamental unfairness occurs when
the State’s failure to timely disclose evidence results in the defendant’s “genuine surprise” and
the surprise prevents meaningful efforts to consider and prepare a strategy for addressing the
late-disclosed evidence). Therefore, Defendant has failed to demonstrate the late disclosure of
18
video surveillance footage from cameras nine and ten was material pursuant to Brady or resulted
in fundamental unfairness because it affected his trial strategy.
c. Whether the Trial Court’s Denial of Defendant’s Motion for
Continuance Affected His Ability to Prepare a Defense
Finally, Defendant argues the trial court’s denial of his motion for a continuance affected
his ability to prepare a defense. Defendant specifically claims:
[T]here was no way to know whether the surveillance cameras were synchronized
on [the date of the crimes against Victim] without evaluation by a forensic expert.
Given additional time for consultation with a computer forensic expert,
[Defendant] could have prepared a defense that addressed the issues raised by the
late-disclosed evidence.
Defendant does not cite to any controlling authority in support of this claim, and we find it is
speculative. A trial court does not abuse its discretion in denying a motion for a continuance
based on mere speculation. State v. Johnson, 812 S.W.2d 940, 944 (Mo. App. S.D. 1991).
More importantly, “[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.” Litherland, 477 S.W.3d at 163. Defendant
has failed to make such a showing here. Defendant has also failed to demonstrate fundamental
unfairness or prejudice under Brady resulted from his inability to consult with a computer
forensic expert and the denial of his motion for a continuance where, inter alia, (1) defense
counsel was able to elicit testimony from Detective Dickherber during cross-examination
regarding the time stamps on the videos; and (2) defense counsel gained an admission from the
detective that even when the alleged discrepancy was figured in, the cameras showed the truck
appearing to match Defendant’s leaving the motel parking lot while the man identified as
Defendant was still in the motel stairwell.
19
4. Conclusion as to Points One and Two
Based on the foregoing, Defendant has not demonstrated the State’s failure to make a
timely disclosure of video surveillance evidence from cameras nine and ten resulted in
fundamental unfairness or was material under Brady. Accordingly, we find the trial court did not
abuse its discretion in denying Defendant’s motion for a mistrial, or in the alternative, his motion
for a continuance, under the circumstances of this case. Points one and two are denied.
B. The Trial Court’s Denial of Defendant’s Motions to Dismiss His Charges on the
Grounds His Right to a Speedy Trial Had Been Violated
In his third and final point on appeal, Defendant argues the trial court erred in denying his
motions to dismiss his charges on the grounds his right to a speedy trial had been violated. For
the reasons discussed below, we disagree.
1. Relevant Facts
In this case, a complaint was filed against Defendant on May 17, 2013, and an arrest
warrant was served on him the same day. A grand jury indictment was filed on July 1, 2013, and
a public defender (“defense counsel” or “counsel”) entered his appearance for Defendant and
filed a request for discovery on Defendant’s behalf on July 10, 2013. Defendant’s parole on
another case was revoked, and he was delivered to the Missouri Department of Corrections on
August 16, 2013. It is undisputed Defendant filed his first request for a speedy trial on October
25, 2013 and he continued to personally assert that request throughout the proceedings.7
Court dates were rescheduled from August 8, 2013 to November 1, 2013, but the record
does not indicate who requested the rescheduling or why it was done. On November 22, 2013,
Defendant’s case was set for trial for March 31, 2014. Then, on March 7, 2014, defense counsel
filed a motion for a continuance, alleging he needed more time to prepare for trial and the
7
Some of Defendant’s requests for a speedy trial and his motions to dismiss based on alleged violations of his
constitutional and statutory right to a speedy trial are mentioned below.
20
continuance was being sought over Defendant’s objection. At the hearing, counsel told the court
he could not adequately represent Defendant if the case went to trial as scheduled because the
discovery in the case was voluminous and additional investigation, including the taking of
depositions, was necessary. The prosecutor responded that she agreed with defense counsel’s
statements but told the court the State was not requesting a continuance. The court found there
was good cause to continue the trial, granted defense counsel’s motion for a continuance, and
reset the trial for September 15, 2014.
On September 8, 2014, the trial court held a hearing on various motions filed by defense
counsel, including a motion to inspect and test evidence and a motion for sanctions. Defense
counsel’s motion to inspect and test evidence related to granting defense counsel access to a
knife found in the vehicle of one of the witnesses so counsel could have it tested for DNA. The
prosecutor told the court she had requested the police to have the knife tested at a crime lab, but
she did not have the results. The court directed the crime lab to test the knife before the next
scheduled hearing.
Defense counsel’s motion for sanctions alleged, (1) defense counsel had been unable to
locate Victim at the address given to him by the prosecutor; (2) the prosecutor provided various
items to the defense on September 4 and 5, 2014, including recordings of phone conversations
that Defendant had while in jail and a plea agreement between the State and Dames; and (3)
Dames gave a recorded statement to law enforcement which had not been turned over to the
defense. Defense counsel’s motion requested all of the evidence listed in the motion be excluded
from trial, or in the alternative, for the trial to be continued. The prosecutor responded to each of
the allegations, noting she had provided defense counsel with Victim’s last known address and
had told defense counsel she would make Victim available for a deposition. In addition, the
21
prosecutor told the court the State did not intend to use the recordings of Defendant’s phone
conversations at trial, the State reached a plea agreement with Dames on September 4, Dames
entered a guilty plea on the following day, and Dames’ interview with the prosecutor’s office
was not recorded but a summary of the conversation was being prepared. Noting that defense
counsel was in trial for the remainder of the week, the court ordered the State to make Victim
available for a deposition to be conducted within the next ten days. Defense counsel indicated he
wanted time to review the recordings and phone records turned over by the State to determine if
they contained any exculpatory information. Defense counsel also stated he wanted to depose
Dames, and the court ordered the deposition to be set up immediately. The court denied
Defendant’s motion for sanctions based on its knowledge of what had taken place, noting
discovery in the case had been ongoing and voluminous. However, the court granted, over the
State’s objection and Defendant’s personal objection, defense counsel’s request for a
continuance and rescheduled the trial for October 27, 2014.
On October 22 and 24, 2014, defense counsel filed numerous motions, including motions
to suppress statements and physical evidence, a motion to dismiss all charges on the basis
Defendant’s right to a speedy trial had been violated, and a motion for a continuance. Counsel
also filed Defendant’s “personal motion” to dismiss based on alleged speedy trial violations.
The court held a hearing on Defendant’s motions on October 27, 2014, the day trial was
scheduled to begin.
Defense counsel explained at the hearing that his motions to dismiss and for a
continuance were based on the potential unavailability of witnesses Carolyn and Jabbar Lindsey
(“the Lindseys”). According to counsel, the Lindseys were interviewed by police at the scene of
the crimes and described the suspect as being in his early twenties, having short, blonde hair, and
22
wearing a sky blue shirt, characteristics which allegedly “differ[ed] materially from the physical
appearance of Defendant.” Counsel also alleged the Lindseys had since moved out of state to an
unknown location. The court noted the Lindseys may have testimony material to the case and
might be on a bus scheduled to arrive in St. Louis that afternoon. The court further stated it
would continue the case to the following Monday, November 3, 2014 if the witnesses were not
on the bus. When the Lindseys were not on the bus and did not appear in court later that
afternoon, the court granted defense counsel’s continuance request so counsel could attempt to
locate and subpoena the witnesses, and the court reset the case for trial on November 3, 2014.
Defense counsel made a record that Defendant personally opposed the continuance and asked the
court to consider dismissing his charges. The court denied the motions to dismiss and found the
trial would begin on November 3 whether or not the Lindseys were present.
Defendant’s trial began on November 3, 2014. At a pretrial conference, defense counsel
renewed the motions to dismiss or for a continuance, informing the court he was unable to locate
the Lindseys. The prosecutor noted the Lindseys had not cooperated with the State, and Jabbar
Lindsey had informed her he was living somewhere in Memphis, Tennessee and had no intention
of coming back to Missouri unless the State paid his transportation. The prosecutor stated she
sent paid bus tickets to the Lindseys at an email address provided by Jabbar Lindsey, but she had
not received any communication from the Lindseys since. The prosecutor further noted the
Lindseys had been uncooperative as far back as May of the previous year and their attitude had
never changed. The court denied defense counsel’s motions to dismiss or for a continuance, and
counsel supplemented the record with documents and a recording containing the Lindseys’
description of the suspect to the police near the time of the incident.
23
2. Defendant’s Arguments, Relevant Law, and Application
In this case, Defendant asserts the trial court erred in denying his motions to dismiss his
charges on the basis of a violation of his right to a speedy trial under the Sixth Amendment of the
U.S. Constitution and article I, section 18(a) of the Missouri Constitution.8 9 See State v. Sisco,
458 S.W.3d 304, 313 (Mo. banc 2015). In determining this issue, we defer to the trial court’s
factual findings and credibility determinations and review de novo whether defendant’s
constitutional right to a speedy trial was violated. Id. at 311-13.
“The federal and Missouri constitutions provide equivalent protection for a defendant’s
right to a speedy trial.” Id. at 313 (quotations omitted). There is no bright-line test to determine
a violation of this right; instead, courts must balance four factors: (1) the length of the delay in
bringing the defendant to trial; (2) the reasons for the delay; (3) the defendant’s assertion of his
right to a speedy trial; and (4) any prejudice suffered by the defendant as a result of the delay.
Id. at 313 and State v. Pate, 469 S.W.3d 904, 908 (Mo. App. E.D. 2015) (citing Barker v. Wingo,
407 U.S. 514, 530-33 (1972)). Missouri Courts refer to these factors as the “Barker factors.”
8
Defendant also asserts the trial court erred in denying his motions to dismiss his charges on the basis of a violation
of his right to a speedy trial under section 545.780 RSMo 2000, which is Missouri’s speedy trial statute. See State
ex rel. McKee v. Riley, 240 S.W.3d 720, 727 (Mo. banc 2007). Because section 545.780 RSMo 2000 authorizes a
court to dismiss a defendant’s charges only if there is a constitutional violation of his right to a speedy trial, the
statute’s application here is contingent on finding a constitutional violation. State v. Sisco, 458 S.W.3d 304, 312 n.9
(Mo. banc 2015); section 545.780.2 RSMo 2000. For the reasons discussed below, we find Defendant’s
constitutional right to a speedy trial was not violated. Accordingly, Defendant’s claim that he was denied his right
to a speedy trial under Missouri’s speedy trial statute has no merit. See id.
9
In his reply brief, Defendant argues for the first time on appeal that the trial court’s ruling was also a violation of
his rights under the Uniform Mandatory Disposition of Detainers Law (“the UMDDL”). We must reject this
argument for two independent reasons. First, “a reply brief is to be used only to reply to arguments raised by
respondents, not to raise new arguments on appeal,” and an appellate court will not review an allegation of error
made for the first time in the reply brief. Ferguson v. State, 325 S.W.3d 400, 414 (Mo. App. W.D. 2010)
(quotations omitted). In addition, even if we were to review Defendant’s claim under the UMDDL, Defendant’s
reply brief fails to cite to any authority indicating he has a basis for relief on appeal. Instead, Defendant only alleges
in a conclusory fashion that “the trial court’s ruling was also a violation of his rights under sections 217.450 to
217.485 RSMo, the [UMDDL] [,] [f]or the reasons formerly stated in Appellant’s [opening] brief.” Defendant’s
opening brief fails to set forth any argument concerning the UMDDL. Under these circumstances, Defendant is not
entitled to relief on his claim under the UMDDL. See Ferguson, 325 S.W.3d at 414 (similarly holding).
24
See, e.g., State ex rel. Garcia v. Goldman, 316 S.W.3d 907, 911-12 (Mo. banc 2010);
Giammanco v. State, 416 S.W.3d 833, 839 (Mo. App. E.D. 2013).
a. The Length of the Delay
The first factor, the length of the delay in bringing the defendant to trial, triggers the
analysis of whether a defendant’s constitutional right to a speedy trial has been violated, because
unless there is a delay that is presumptively prejudicial, there is no need to consider the other
three Barker factors. Pate, 469 S.W.3d at 908. A delay of eight months or more between the
time of the defendant’s arrest and his trial is presumptively prejudicial. Id. In this case, the
delay of approximately seventeen-and-a-half months between Defendant’s arrest on May 17,
2013 and the first day of Defendant’s trial on November 3, 2014 is presumptively prejudicial.
Therefore, we must consider and balance the other three Barker factors. See id.
b. The Reasons for the Delay
Regarding the second Barker factor, the reasons for the delay in bringing the defendant to
trial, we consider whether the delays are attributable to the State or the defendant and assign
different weights to different reasons for the delay. Sisco, 458 S.W.3d at 313-14. A deliberate
attempt by the State to delay the trial in order to hinder a defendant’s defense weighs heavily
against the State. Id. at 314. Neutral reasons, such as overcrowded dockets or the State’s
negligence also weigh against the State, but such delays are weighed less heavily. Id. However,
“delays attributable to the defendant weigh heavily against the defendant.” Id. (quotations
omitted).
In this case, Defendant was arrested on May 17, 2013, and a grand jury indictment was
filed less than two months later. On July 10, 2013, a public defender entered his appearance for
Defendant and filed a request for discovery on his behalf. Court dates were rescheduled from
25
August 8, 2013 to November 1, 2013, but the record does not indicate who requested the
rescheduling or why it was done. On November 22, 2013, Defendant’s case was set for trial for
March 31, 2014. After that time, defense counsel filed several motions, including multiple
motions for a continuance and an unsuccessful motion for sanctions against the State. There was
some delay which resulted from the State’s performance of DNA analysis on a knife and because
the Lindseys, potential witnesses at trial, were being uncooperative. In addition, the record
reflects discovery was ongoing and voluminous. Defendant’s trial began on November 3, 2014.
Nothing in the record indicates a deliberate attempt by the State to delay the trial in order
to hinder Defendant’s defense, and we find the reasons for the delay in bringing Defendant to
trial are neutral or attributable to Defendant’s counsel. We find any weight against the State due
to neutral reasons, including delays resulting from the State’s performance of DNA analysis and
from the Lindseys being uncooperative, is slight. Id.
With respect to the delays in bringing Defendant to trial which are attributable to
Defendant’s counsel, Defendant notes he repeatedly filed motions for a speedy trial and objected
to the continuances requested by his attorney. Similar circumstances took place in State v.
Taylor, 298 S.W.3d 482 (Mo. banc 2009). In Taylor, defense counsel requested multiple
continuances, over defendant’s objections, so counsel could have more time to investigate,
prepare for trial, and respond to newly-discovered evidence. Id. at 503, 504. On appeal,
defendant argued his constitutional right to a speedy trial had been violated. Id. at 502. In
discussing the second Barker factor, the Supreme Court noted “the reason for a substantial
portion of the delay [in bringing defendant to trial] was to provide counsel with more time to
prepare for trial, which effectively protected [defendant’s] right to effective assistance of
counsel.” Id. at 504. While the Supreme Court did not explicitly weigh this reason for delay
26
against the State or the defendant, it ultimately found defendant’s constitutional right to a speedy
trial had not been violated. Id.
Like in Taylor, defense counsel in this case requested multiple continuances over
Defendant’s objections so counsel could have more time to investigate, prepare for trial, and
respond to newly-discovered evidence. See id. at 503, 504. As in Taylor, the reason for a
substantial portion of the delay in Defendant’s trial was to provide counsel with more time to
prepare for trial, which effectively protected Defendant’s right to effective assistance of counsel.
See id. at 504. “Any defendant that has exercised his right to counsel is guaranteed effective
assistance of counsel, and courts should do the utmost to protect the defendant’s right to
adequate and competent representation.” State ex rel. Wolfrum v. Wiesman, 225 S.W.3d 409,
412 (Mo. banc 2007). Based on the foregoing case law and principles, we decline to weigh the
second Barker factor, the reason for the delay in bringing Defendant to trial, heavily against the
State.10
c. Defendant’s Assertion of His Right to a Speedy Trial
“The third factor to be considered is whether and how the defendant asserted his right to a
speedy trial.” Sisco, 458 S.W.3d at 316. There is no rigid requirement with respect to when a
defendant must assert his right to a speedy trial. Id. Instead, courts consider the timeliness of the
defendant’s assertion and the frequency and force of his objections. Id. As previously stated,
Defendant was arrested on May 17, 2013. It is undisputed Defendant filed his first request for a
speedy trial on October 25, 2013 and he continued to personally assert that request throughout
the proceedings, including in his motions to dismiss prior to trial and in his motion for new trial.
10
For purposes of our analysis, we find it is unnecessary to determine whether the delays resulting from defense
counsel needing more time to prepare for trial weigh against Defendant. See Taylor, 298 S.W.3d at 504 (similarly
remaining silent on the matter).
27
Because Defendant asserted his right to a speedy trial relatively early in the proceedings and did
so repeatedly, this factor is weighed in his favor. Pate, 469 S.W.3d at 909.
d. Any Prejudice Suffered by Defendant as a Result of the Delay
The final and most important factor in our analysis is any prejudice suffered by
Defendant as a result of the delay in bringing him into trial. Id. Whether such a delay prejudiced
the defendant is evaluated in light of three considerations: “(1) prevention of oppressive pretrial
incarceration; (2) minimization of anxiety and concern of the accused; and (3) limitation of the
possibility that the defense will be impaired.” Sisco, 458 S.W.3d at 317 (quotations omitted). Of
these considerations, courts view the third as the most serious. Id. A defendant has the burden
of “demonstrating that actual, not speculative or possible, prejudice occurred due to the delay in
his trial,” and general allegations of prejudice are insufficient. State v. Greenlee, 327 S.W.3d
602, 613 (Mo. App. E.D. 2010). Claims of prejudice must be supported by the record and a
defendant’s failure to present evidence or reasonable inferences of actual prejudice weighs
heavily in favor of the State. Id. at 612-13.
In this case, Defendant’s sole allegations of prejudice are:
[Defendant’s] parole on another case was revoked as a result of this indictment,
and his trial in this case was continued, over his objection, to a date beyond his
[Missouri Department of Corrections (“MDOC”)] release date. In other words,
instead of being able to go to trial on this case while he was incarcerated in
MDOC, [Defendant] had to wait until he completed his MDOC sentence before
his trial in this case started. This resulted in oppressive pretrial incarceration
lasting well over a year; [Defendant] was returned to MDOC on August 16, 2013,
and his trial did not begin until November [3], 2014.
[Defendant] also demonstrated prejudice by the loss of the testimony of Carolyn
and Jabbar Lindsey, witnesses that even the trial court noted may have testimony
material to the case. While the Lindseys were available and gave statements to
the police near the time of the incident, they had moved out of state by the time of
trial and became less willing to testify over time.
(citations omitted).
28
Although the restriction of freedom that comes with being incarcerated may give rise to
actual prejudice, see Sisco, 458 S.W.3d at 317, Defendant’s general claim of prejudice based
upon the length of his incarceration establishes only minimal prejudice. State v. Raine, 829
S.W.2d 506, 513 (Mo. App. W.D. 1992). Notably, Defendant has not alleged any details of the
conditions of his incarceration. Cf. Greenlee, 327 S.W.3d at 613 (finding defendant’s allegations
of prejudice resulting from his pre-trial incarceration were insufficient and too general even
where he alleged he was cold, unable to sleep, and badly beaten by another inmate because he
did not show the alleged prejudice occurred due to the delay in his trial). Further, although
Defendant did spend an extended period of time incarcerated before his trial, he was sentenced to
four terms of life imprisonment as a result of his convictions. Accordingly, Defendant has no
claim that he has served additional jail time because of any delay in bringing him to trial. See id.
(similarly finding). Therefore, Defendant has only shown minimal prejudice as it relates to his
pre-trial incarceration.
With respect to the next consideration of prejudice, Defendant makes no allegations he
suffered anxiety or concern due to the delay in his trial or that there were any specific instances
which weighed heavily upon him. Therefore, Defendant has not shown he suffered actual
prejudice as a result of pre-trial anxiety or concern. See id.
Finally, we turn to the most serious consideration of prejudice, whether Defendant has
demonstrated his defense was impaired due to the delay in his trial. A defense may be impaired
where defense witnesses become unavailable due to the delay in the trial. Giammanco, 416
S.W.3d at 840 (quotations omitted). Here, although Defendant’s brief apparently claims that
potential testimony from Lindseys was lost due to the delay in his trial, the record shows the
Lindseys refusal to cooperate went back as far as May 2013, which is the same month the crimes
29
occurred. In fact, the documents and recording defense counsel supplemented to the trial court,
which are a part of the record on appeal, indicate Defendant last cooperated with police on May
11, 2013, the day after the crimes occurred. Defendant has failed to provide the trial court or this
Court with any evidence that the Lindseys would have further cooperated or testified had the trial
been held earlier than November 2014. In other words, any claim that the Lindseys would have
testified at Defendant’s trial had it been held earlier is merely speculative and Defendant has not
met his burden of proving actual prejudice as it relates to a possible impairment in his defense.
See Greenlee, 327 S.W.3d at 613 (a defendant has the burden of “demonstrating that actual, not
speculative or possible, prejudice occurred due to the delay in his trial”); State v. Weeks, 982
S.W.2d 825, 836 (Mo. App. S.D. 1998) (finding defendant did not meet his burden of
establishing his defense was impaired due to unavailable witnesses where, inter alia, the record
did not demonstrate defendant could have produced the witnesses at trial had the trial been held
earlier).
Based on the forgoing, any actual prejudice suffered by Defendant was only due to the
length of his pre-trial incarceration and was minimal.
3. Conclusion as to Point Three
In sum, the first and third Barker factors weigh in Defendant’s favor because the length
of the delay in this case is presumptively prejudicial and Defendant asserted his right to a speedy
trial relatively early in the proceedings and did so repeatedly. However, the reasons for the delay
in bringing Defendant to trial are neutral or attributable to Defendant’s counsel, and this factor
does not weigh heavily against the State. With respect to the most important Barker factor,
prejudice, any actual prejudice suffered by Defendant was only due to the length of his pre-trial
incarceration and was minimal. After balancing all of these factors, our Court holds the
30
presumption of prejudice in this case is outweighed and Defendant’s constitutional right to a
speedy trial was not violated. See Sisco, 458 S.W.3d at 319 (similarly holding). Point three is
denied.
III. CONCLUSION
The trial court’s judgment is affirmed.
ROBERT M. CLAYTON III, Presiding Judge
Lawrence E. Mooney, J., and
James M. Dowd, J., concur
31