State of Missouri v. Gregorio L. Davis

In the
Missouri Court of Appeals
Western District
STATE OF MISSOURI, )
)
Respondent, ) WD82331
)
v. ) OPINION FILED:
) September 15, 2020
GREGORIO L. DAVIS, )
)
Appellant. )
Appeal from the Circuit Court of Platte County, Missouri
The Honorable Dennis C. Eckold, Judge
Before Division Three: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and
Thomas N. Chapman, Judge
Gregorio L. Davis ("Davis") appeals from the judgment of the Circuit Court of Platte
County, Missouri ("trial court") convicting him, after a bench trial, of one count of sodomy
in the first degree, section 566.060, and one count of domestic assault in the fourth degree,
section 565.076.1 On appeal, Davis contends that the trial court erred in denying Davis's
motion to dismiss because the prosecutor violated his constitutional right to a speedy trial.
We affirm.
1
All statutory references are to the Revised Statutes of Missouri (2016), as updated, unless otherwise
specified.
Factual and Procedural Background
On August 8, 2017, the State filed a Complaint charging Davis with one count each
of sexual abuse in the first degree, section 566.100, and domestic assault in the fourth
degree, section 565.076. A warrant was issued and served on Davis on August 11, 2017.
Davis's bond was $20,000 cash only, and Davis remained in custody after his arrest.
On September 5, 2017, Davis waived his right to preliminary hearing and was bound
over to the circuit court for further proceedings. A judge was assigned to hear the case.
On September 25, 2017, the State filed an Information with the same allegations as in the
Complaint. On November 16, 2017, the trial court scheduled a jury trial for April 30, 2018.
On April 12, 2018, the jury trial was continued on the State's motion and over Davis's
objection to June 25, 2018.
On April 17, 2018, Assistant Prosecuting Attorney Chris Seufert ("APA Seufert")
took over the prosecution of Davis's case, because the assistant prosecuting attorney who
had been handling the case was deployed in the Army Reserves. On that same day, APA
Seufert spoke with Davis's counsel and asked him to consent to a change of judge after
time to file a motion for change of judge had passed. APA Seufert indicated his desire for
a change of judge was because the judge assigned to the case had ruled against the State
on another case with facts similar to Davis's case. Davis's counsel refused to consent to a
change of judge, and filed a written request for a speedy trial the same day.
On April 20, 2018, the State voluntarily dismissed its case against Davis without
prejudice. Davis objected to the dismissal without prejudice, arguing that it would
jeopardize his right to a speedy trial and that the dismissal was an attempt to circumvent
2
Rule 32.07,2 which provides a ten-day period after an initial plea is entered for a party to
request a change of judge. Also on April 20, 2018, the State re-charged Davis, by
indictment, of sodomy in the first degree and domestic assault in the second degree. Davis
remained in custody.
On April 24, 2018, the State filed for a change of judge in the new case, and trial
was set before the newly assigned judge for July 2, 2018. On April 25, 2018, Davis filed
his request for a speedy trial in the new case. New counsel entered the case for Davis on
June 16, 2018, and simultaneously filed a motion to dismiss for violation of Davis's right
to speedy trial. The motion to dismiss was taken up on the first day of trial on July 2, 2018.
The judge denied the motion to dismiss, and Davis opted for a bench trial. The case was
tried to the court on July 2 and 3, 2018.
The facts adduced at trial established that on July 28, 2017, Davis and his husband,
J.D., met A.S. at a bar.3 A.S. became extremely intoxicated and had little memory of the
events at the bar and no memory of leaving the bar. Davis called a friend Stephen Fyffe
("Fyffe") to give the group a ride home. A.S. was stumbling and slurring his speech as he
got into the car and then passed out from intoxication during the ride and had to be carried
into Davis's house. A.S. was placed on the couch in the living room and Davis, J.D., and
Fyffe went into the bedroom where they engaged in sexual activities. Davis repeatedly left
the bedroom for several minutes at a time. Fyffe went to check on Davis during one of the
absences and found Davis engaging in anal intercourse with A.S., who was unconscious.
2
All rule citations are to Missouri Court Rules, 2017, unless otherwise stated.
3
Pursuant to section 595.226 RSMo we do not use the victim's names to protect their privacy.
3
Fyffe and J.D. tried to pull Davis off of A.S., telling him that his actions were inappropriate.
Davis became angry and pushed them away. Fyffe, J.D., and Davis went back into the
bedroom and an argument ensued. Davis punched J.D. multiple times. A.S. awoke during
the fight to discover that he was not wearing pants and his anus hurt. He testified that he
did not consent to any sexual contact with Davis. A.S. and Fyffe left the house, and Davis
continued his assault on J.D.. Fyffe called the police. When they arrived, Fyffe and A.S.
were outside the house, and the officers could hear an altercation inside the house. J.D.'s
head was bleeding, and Davis admitted to the officers that he had struck J.D. first. A.S.
was in Fyffe's car, and the officers described him as, "probably one of the most heavily
intoxicated individuals I've ever encountered." Davis admitted to having intercourse with
A.S. but claimed A.S. consented and was aware of what was happening.
The court found Davis guilty of sodomy in the first degree and the lesser-included
offense of domestic assault in the fourth degree. Davis filed a motion for a new trial, again
claiming his case should have been dismissed due to the violation of his right to a speedy
trial. The court denied Davis's motion and sentenced him to ten years' imprisonment on
the sodomy count and thirty days on the domestic assault count, to run consecutively. This
appeal follows.
Standard of Review
In his sole point on appeal Davis argues that the charges against him should have
been dismissed due to a violation of his right to a speedy trial. A defendant's right to a
speedy trial comes from the Sixth Amendment to the United States Constitution, which
applies to the states via the Fourteenth Amendment. State ex rel. Garcia v. Goldman, 316
4
S.W.3d 907, 910-911 (Mo. banc 2010). Article I, Section 18(a) of the Missouri
Constitution also guarantees a "speedy public trial," and the two provisions "provide
equivalent protection for a defendant's right to a speedy trial." State ex rel. McKee v. Riley,
240 S.W.3d 720, 729 (Mo. banc 2007). The issue of whether the defendant's Sixth
Amendment rights have been violated is a question of law, and therefore, our review is de
novo. State v. Fisher, 509 S.W.3d 747, 751 (Mo. App. W.D. 2016). We defer to the trial
court's findings of fact. State v. Sisco, 458 S.W.3d 304, 312 (Mo. banc 2015).
Legal Analysis
It is the State's responsibility to provide a criminal defendant with a speedy trial.
State v. Richmond, 611 S.W.2d 351, 355 (Mo. App. W.D. 1980). The determination of
whether the State has satisfied its responsibility or whether it has violated the defendant's
right to a speedy trial requires a balancing of four factors: (1) the length of the delay; (2)
the reason for the delay; (3) the defendant's assertion of the right; and (4) the prejudice to
the defendant resulting from the delay. Barker v. Wingo, 407 U.S. 514, 530 (1972). The
existence of any one of these four factors is neither necessary nor sufficient to find that the
defendant's right to a speedy trial has been violated. Id. at 533. Rather, "courts must…
engage in a difficult and sensitive balancing process." Id.
Length of Delay
Any delay of at least eight months has been found to be "presumptively prejudicial"
by Missouri courts. McKee, 240 S.W.3d at 729. An eight-month delay, therefore, is a
triggering mechanism or a threshold inquiry, because "[u]ntil there is some delay which is
presumptively prejudicial, there is no necessity for inquiry into the other factors[.]" Barker,
5
407 U.S. at 530. "The protections of the Sixth Amendment attach when there is a formal
indictment or information or when actual restraints are imposed by arrest and holding to
answer a criminal charge." Fisher, 509 S.W.3d at 751. In this case, Davis was first taken
into custody on August 11, 2017. His trial began on July 2, 2018. Thus Davis's "delay"
for speedy-trial purposes was just short of eleven months, or just under three months longer
than what is presumptively prejudicial. Substantial delays have been found to be so long
as to violate the defendants' constitutional rights, even without the defendant making a
showing of actual prejudice. See Doggett v. United States, 505 U.S. 647(1992) (eight
years); Garcia, 316 S.W.3d 907 (eight years); Fisher, 509 S.W.3d 747 (just under six
years). A three-year delay, however, was found by the Missouri Supreme Court not to
have been so excessive as to constitute an automatic violation of the defendant's right to a
speedy trial and required the court to balance each of the factors including any
particularized prejudice. Sisco, 458 S.W.3d 304. Therefore, we must consider Davis's
eleven-month delay in light of the other factors.
Reason for the Delay
Various reasons for delay are attributed to either the defendant or to the State, and
they weigh against the party that is responsible. Barker, 407 U.S. at 531. Different reasons
for delay have different weights attached to them as well. For example,
A deliberate attempt to delay the trial in order to hamper the defense should
be weighted heavily against the government. A more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.
Finally, a valid reason, such as a missing witness, should serve to justify
appropriate delay.
6
Id. But delays attributable to the defendant weigh heavily against the defendant. State v
Greenlee, 327 S.W.3d 602, 612 (Mo. App. E.D. 2010).
In this case, other than very early, while Davis tried unsuccessfully to secure his
pre-trial release, the delays were as follows. In September of 2017, Davis appeared with
counsel, waived formal arraignment and requested a two-week continuance, which was
extended until November 16, 2017 by agreement of the parties. On that date, a jury trial
was scheduled for April 30, 2018. In April of 2018, before the scheduled trial date, the
State requested a continuance which was granted over Davis's objection. The continuance
was due to the assistant prosecuting attorney's impending deployment in the Army
Reserves and to allow a new assistant prosecuting attorney to take over the case. This is
the first continuance to which Davis objected, and, although it must be weighed against the
State, it is not weighted heavily, as the delay was not in order to hamper Davis's defense,
but was necessitated by the military deployment and a new assistant prosecuting attorney
being assigned to take over the case. The trial was continued by the court until June 25,
2018.
When APA Seufert took over the case on April 17, he requested Davis's counsel
consent to a change of judge, even though the time to request a change of judge as of right
under Rule 32.07 had expired. When Davis's counsel refused to consent, APA Seufert filed
a voluntarily dismissal of Davis's case without prejudice and refiled the case the same day,
recharging Davis by grand jury indictment, on April 20, 2018. On April 24, 2018, APA
Seufert filed a timely motion for change of judge as of right in the newly filed case. A new
7
judge was assigned and set the case for trial for July 2. The delay from June 25 to July 2,
although brief, is weighted heavily against the State.
APA Seufert acknowledged that the State caused the delay in order to hamper
Davis's defense in that the State believed the judge originally assigned to the case would
be less favorable to the State's position, and the State desired a change of judge to obtain a
judge that it believed would be more favorable to it. The State then dismissed the case and
refiled it on the same day for the sole purpose of circumventing Missouri's Rules of
Criminal Procedure, to obtain a change of judge beyond the time allowed. APA Seufert
acknowledged that the prior ruling the State considered adverse in the other matter occurred
before the charges were even filed against Davis, that the prior assistant prosecutor who
had been assigned to this case was also trial counsel in the case the State had received what
they perceived as an adverse ruling by the trial judge, and APA Seufert provided no
explanation as to why the State did not timely file a motion for change of judge in the
original case against Davis. APA Seufert testified that while he had never previously
dismissed a case and refiled for purposes of obtaining an untimely change of judge, "our
office has done so on multiple occasions and we have never had any defense attorney object
or question the propriety of that procedure." He then cited to section 56.087 RSMo., which
grants the State complete discretion to dismiss and refile a case at any time before jeopardy
attaches. But delays for tactical advantage are weighed heavily against the State. In fact,
if the delay is pre-arrest or indictment, whether the delay is for tactical advantage is one of
only two considerations, along with prejudice to the defendant. State v. Morris, 285
S.W.3d 407, 412 (Mo. App. E.D. 2009).
8
We do not condone APA Seufert's manipulation of the procedures to circumvent the
Supreme Court Rules, however, we do recognize that our Supreme Court has indicated that
while such a practice is "concerning" and any delay caused is weighed heavily against the
state, a 70-day delay so caused was found not to have violated a defendant's Sixth
Amendment rights to a speedy trial. Sisco, 458 S.W.3d 315-16. There, the state, after
receiving an adverse pre-trial evidentiary ruling, voluntarily dismissed Sisco's case and
refiled it to obtain a different trial judge, causing delay. Id. The Missouri Supreme Court,
however, stressed that the State has broad authority to dismiss and refile cases pre-trial
under the statute, even after unfavorable rulings, and the Court ultimately concluded that,
even weighing this delay heavily against the state, the balance of the four factors as a whole
did not warrant dismissal of Sisco's charges for a speedy-trial violation. Id. at 315, 319.
While this factor weighs heavily against the State, the resulting delay in the trial was
only seven days, from June 25, 2018 until July 2, 2018.
Assertion of Right to Speedy Trial
The third Barker factor is the defendant's timely assertion of his right to a speedy
trial. It matters when and how persistently the defendant asserts his right. Fisher, 509
S.W.3d at 754. "[C]ourts will weigh the timeliness of the assertion and the frequency and
force of a defendant's objections" to delays in trial. Sisco, 458 S.W.3d at 316. In this case,
Davis first requested a speedy trial after his first trial setting of April 30, 2018, had been
continued over his objection, and the newly assigned prosecuting attorney informed
Davis’s counsel that he wanted to obtain a change of judge. When the case was dismissed
and refiled, Davis's counsel again requested a speedy trial within a matter of days. Davis
9
also moved to dismiss his case for the alleged speedy trial violation on June 26, 2018,
before the July 2, 2018, trial setting. This factor favors Davis.
Prejudice to the Defendant
The last of the four factors the court considers is the prejudice to the defendant
caused by the delay. As previously mentioned, if the delay is long and all or mostly
attributable to the State, the defendant need not establish particularized prejudice in order
to establish a violation warranting dismissal. See Doggett, 505 U.S. 647; Garcia, 316
S.W.3d 907. However, the prejudice to the defendant created by the delay can be great,
and may include: prevention of oppressive pretrial incarceration; minimization of anxiety
and concern of the accused; and the possibility that the defense will be impaired from loss
of evidence or witnesses. Barker, 407 U.S. at 532; Garcia, 316 S.W.3d at 912.
Davis was incarcerated from August 11, 2017, up until his trial on July 2, 2018.
And while undoubtedly "anxiety and concern exist in every criminal case . . . 'that alone
does not establish prejudice where, as here, the defendant [does not show] that the delay
weighed particularly heavily on him in [the] specific instanc[e].'" State v. Woodworth, 941
S.W.2d 679, 694 (Mo. App. W.D. 1997) (quoting State v. Ingleright, 787 S.W.2d 826, 832
(Mo. App. S.D. 1990)). Davis did not articulate any unusual or particular anxiety due to
his incarceration leading up to his trial. Nor does Davis allege any impairment in his
defense caused from the delay of his trial setting. No evidence or witnesses had become
unavailable in the roughly eleven months between the time of his arrest and the time of his
trial.
10
Davis argues that he did in fact establish particularized prejudice in this case because
the delay caused by the State's nolle prosequi and refiling was used by the State for a
specific tactical advantage. The State readily acknowledged that the specific reason it
dismissed the case and refiled it was to obtain a tactical advantage, i.e., a judge that it
perceived would be more favorable to the State and less favorable to Davis under the
particular facts of this case. It is unclear how the State can now take the position that this
delay did not impair his defense and therefore was not prejudicial to Davis. The State's
own position is that Davis's defense was impaired by its tactical use of the dismissal and
refiling of the charges, supporting a finding of the particularized prejudice that is at issue
in this analysis. However, "[c]laims of prejudice must be actual or apparent on the record,
or by reasonable inference, while speculative or possible prejudice is not sufficient." State
v. Ferdinand, 371 S.W.3d 844, 854-55 (Mo. App. W.D. 2012) (abrogated on other grounds
by Sisco, 458 S.W.3d at 312-13).4 "The burden to present evidence of actual prejudice is
on the defendant and the failure to do so weighs heavily in favor of the State." Id. at 855.
4
The parties disagree as to who has the burden of showing whether the defendant suffered actual prejudice.
Indeed, the relevant case law is somewhat conflicting. The United States Supreme Court, in Doggett v. U.S., 505
U.S. 647, 656(1992), states that if the government uses "reasonable diligence," the defendant's speedy-trial claim
should fail "so long as [the defendant] could not show specific prejudice to his defense." An extraordinarily long
delay due to the government's negligence, however, did not require a showing of particularized prejudice by the
defendant. Id. at 657-58. The Missouri Supreme Court, in State ex rel. Garcia v. Goldman¸ 316 S.W.3d 907, 913
(Mo. banc 2015), affirmatively placed the burden of showing a lack of prejudice on the State. ("In this case, the
state has not proven that the delay 'affirmatively…left [Garcia's] ability to defend himself unimpaired' as required to
rebut the presumption of prejudice.") (alterations in original). That same year, however, the Missouri Supreme
Court found against a defendant when he did not show that his "defense was impaired significantly by the delay. He
does not identify any witnesses who disappeared or otherwise became unavailable because of the delay, nor does he
allege that any evidence was lost." State v. Sisco, 458 S.W.3d 304, 317 (Mo. banc 2015). The Court noted that the
delay of the defendant's trial was "presumptively prejudicial" but then stated that "[d]etermining a delay is long
enough to trigger consideration of other factors does not negate the need for this Court to consider actual prejudice."
Id. at 318. It appears that the burden of production with respect to showing whether actual, particularized prejudice
exists depends upon where the balance lies after the court has considered the other three Barker factors. Irrespective
of which party bore the burden in this matter the outcome would not change.
11
While arguing that he suffered particularized prejudice, the only evidence of prejudice
Davis cites is APA Seufert's opinion that the original trial judge was less favorable to the
State's case. In response to Davis's argument of particularized prejudice, the State cites to
Sisco, noting that in that case the Supreme Court found a delay of 70 days caused by a nolle
prosequi and refiling of the charges was generally, without more, insufficient to establish
prejudice. However, in Sisco the defendant failed to make any argument that he suffered
particularized prejudice caused by the State's successful attempt to obtain a tactical
advantage by the use of its dismissal and refiling of the charges and the Court did not
address an argument not raised before it. Sisco, 458 S.W.3d at 318-19.
Considering all four of the Barker factors together, we cannot conclude that Davis’s
rights under the United States and Missouri Constitutions to a speedy trial were violated.
His trial took place within a year of his arrest. His trial was delayed less than two months
from its original setting due to the assistant prosecuting attorney's deployment in the
military. And while the second assistant prosecuting attorney's delay caused by his
dismissing and refiling the charges against Davis weighs heavily against the State, that
delay was only a matter of days. Davis promptly and persistently asserted his rights to a
speedy trial, but not until the first trial setting was continued. Finally, while Davis
established prejudice caused by the delay, the delay was only a matter of days. For these
reasons, the trial court properly denied Davis's motion to dismiss.
__________________________________
Gary D. Witt, Judge
All concur
12