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APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY. The Honorable Sandra Midkiff, Judge.
Sisco was represented by Clayton E. Gillette of Gillette Law Office LLC in Kansas City and Patrick W. Peters of Peters & Peters PC in Kansas City.
The state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.
PATRICIA BRECKENRIDGE, JUDGE. Russell, C.J., Fischer, Draper, Wilson, and Teitelman, JJ., concur. Stith, J., dissents.
Patricia Breckenridge, Judge
Sylvester R. Sisco appeals his convictions after a jury trial for murder in the first degree, assault in the first degree, and two counts of armed criminal action. On appeal, Mr. Sisco asserts that the trial court erred in overruling his motion to dismiss and in not designating the state's nolle prosequi as a dismissal with prejudice because those rulings violated his right to a speedy trial under section 545.780, RSMo 2000, article I, sections 10 and 18 of the Missouri Constitution, and the Sixth and Fourteenth amendments to the United States Constitution. The trial court did not err in not designating the state's nolle prosequi as a dismissal with prejudice because the court did not have authority to do so. The trial court also did not err in overruling Mr. Sisco's motion to dismiss on the basis of a speedy trial violation because the length of delay in this case is outweighed by the reasons for the delay, Mr. Sisco initially acquiesced to the delay, and no prejudice resulted from the delay. Accordingly, this Court affirms the trial court's judgment.
Factual and Procedural Background
In the early morning hours of October 16, 2006, Mr. Sisco and his brother, Anthony Sisco, shot and killed Jacob Higgs and seriously wounded Reno Dillard at a bar in Kansas City, Missouri. The bar was owned by Mr. Dillard and his parents and brothers, and the men had access to the bar in the early morning hours after it closed. Still photographs taken from surveillance video at the bar were released to the media. Erin Bridges and Lucretia Neal had been at the bar with the men before the shooting, and they contacted police to identify Mr. Sisco and his brother as the individuals in the photographs.
A felony complaint was filed against Mr. Sisco on October 19, 2006, and Mr. Sisco was arrested and taken into custody the next day. On October 27, 2006, Mr. Sisco was charged by indictment with one count of murder in the first degree, one count of assault in the first degree, and two counts of armed criminal action. The case was assigned to division 10 of the Jackson County circuit court and trial was subsequently scheduled for August 20, 2007. On January 23, 2007, Mr. Sisco posted a bond with the condition that he would be on house arrest.
On August 14, 2007, the state requested and was granted a continuance until December 10, 2007, because the lead prosecutor had health issues. The court subsequently continued the case to March 24, 2008, due to docket constraints. After the judge in division 10 was placed on special assignment to handle a domestic docket, the case was transferred to division 18 by agreement of the parties. Trial was reset for June 30, 2008.
On June 30, 2008, when the case was called for pretrial proceedings, Mr. Sisco announced he was ready for trial and informed the court that he had filed a motion requesting a speedy trial on that date. At
the pretrial proceedings, the trial court was advised that Ms. Neal, one of the state's witnesses, had appeared under subpoena with an attorney and indicated that she planned to invoke her Fifth Amendment privilege against self-incrimination if called to testify. The state argued that Ms. Neal was an important witness because she had given a written statement to the police two days after the shootings that she was present in the bar with the victims, Mr. Sisco, his brother, Anthony, and Anthony's girlfriend, Erin Bridges, a short time before the shootings. Ms. Neal was granted immunity and ordered to testify at trial.
Because the state had concerns whether Ms. Neal would testify even with the grant of immunity, the state requested and was granted, over Mr. Sisco's objection, a continuance to have DNA testing performed on a swab from a Bluetooth device recovered at the crime scene. Although the state indicated it needed only a 30-day continuance, the court was not available in 30 days. Because defense counsel did not have his calendar, the attorneys agreed to consult with the judge later regarding a new trial date. The trial court then issued an order directing Mr. Sisco to provide a buccal swab so that his DNA could be compared with DNA from the Bluetooth device. On the following day, Mr. Sisco filed a motion asking the court to reconsider its order, and the court withdrew the order upon agreement of the parties.
On August 4, 2008, the case was transferred to division 15 by agreement of the parties after the judge in division 18 was assigned an exclusively domestic docket. On September 18, 2008, the state filed a new motion to compel Mr. Sisco to provide a buccal swab. A hearing on the motion was scheduled for October 3, but, on October 2, Mr. Sisco requested additional time to respond to the motion. Mr. Sisco filed his response opposing the state's motion on November 24, and a hearing was held the next day. On December 9, the trial court issued an order directing Mr. Sisco to provide a buccal swab. Trial then was scheduled for April 27, 2009.
Five days before trial, on April 22, 2009, the state provided Mr. Sisco with 113 pages of discovery and 14 DVDs containing enhanced surveillance footage. Included in the 113 pages of discovery was a report from a new fingerprint expert who recently had been asked to review the prints recovered from the crime scene. In the report, the expert, for the first time, identified a latent print from the crime scene as belonging to Mr. Sisco. Previous discovery disclosed to Mr. Sisco included a report from a different fingerprint expert stating that none of the fingerprints found at the scene matched Mr. Sisco. The state informed Mr. Sisco that the original fingerprint expert had retired, was out-of-state, and would be unavailable to testify at trial.
On April 24, 2009, Mr. Sisco filed a motion in limine to exclude the fingerprint evidence because of the state's late disclosure of this evidence. A hearing was held the same day, and the trial court sustained Mr. Sisco's motion. The state then requested a continuance, which the court denied. Mr. Sisco's attorney stated that the state was considering dismissing the case and recharging Mr. Sisco at a later
time if the fingerprints were excluded and asked whether that was still being considered. The state responded that it had not yet made a decision.
On April 27, 2009, the day of trial, Mr. Sisco announced that he was ready for trial. After the trial court denied the state's request to reconsider granting a continuance, the state dismissed the case nolle prosqui. Later that day, the state filed a new complaint with the same charges against Mr. Sisco. An information was filed against Mr. Sisco on May 4. Following an arraignment on that day, the case was assigned to division 13 and set for trial for July 6, 2009. Mr. Sisco filed a second motion for a speedy trial on May 6.
On June 29, 2009, Mr. Sisco filed a motion to dismiss the case with prejudice based on a violation of his right to a speedy trial. He amended the motion on July 1 to include a claim that the new information was invalid because Mr. Sisco had not waived his right to a preliminary hearing. Trial was canceled for the court to adjudicate Mr. Sisco's motion. Following a hearing, the court determined that a preliminary hearing should be conducted because Mr. Sisco had not waived his right to one. The court held the motion in abeyance and ordered the parties to reconvene on July 10. Before the parties reconvened, however, the state charged Mr. Sisco by indictment, thereby eliminating any need for a preliminary hearing.
On July 10, 2009, Mr. Sisco moved for a change of judge. His motion was sustained on July 13, and the case was assigned to division 12. On July 13, Mr. Sisco filed a request for discovery, a motion to dismiss with prejudice, a motion in limine to exclude the fingerprint evidence and surveillance footage disclosed by the state on April 22, and a request for sanctions due to discovery violations. Despite venirepersons present and ready for jury selection on July 13, the trial court continued the case so that the state could respond to Mr. Sisco's motions. A hearing on the motions was held on July 15. On August 4, 2009, the trial court overruled the motion to dismiss after finding Mr. Sisco failed to prove a violation of his constitutional right to a speedy trial or actual prejudice. The court rescheduled trial for October 5.
Mr. Sisco's trial began on October 5, 2009. During trial and in a motion for a new trial, Mr. Sisco again claimed that his right to a speedy trial had been violated. The jury returned verdicts finding Mr. Sisco guilty of all charges. The trial court sentenced Mr. Sisco to a term of life imprisonment without the possibility of parole on the murder count, to be served concurrently with a term of thirty years on the associated armed criminal action count. The court sentenced Mr. Sisco to ...