Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable J. Dan Conklin, Circuit Judge.
GABRIEL E. HARRIS, Jefferson City, MO, for Respondent.
TERESA L. GRANTHAM, Springfield, MO, for Appellant.
DON E. BURRELL, J., OPINION AUTHOR. MARY W. SHEFFIELD, P.J., CONCURS, NANCY STEFFEN RAHMEYER, J., CONCURS.
WILLIAM W. FRANCIS, JR., J.
A jury found Ramone E. Hicks (" Defendant" ) guilty of first-degree robbery, first-degree burglary, and armed criminal action. See sections 569.020, 569.160, and 571.015. On appeal, Defendant claims: (1) the trial court plainly erred in denying
his oral motion for continuance; and (2) the trial court erred in overruling his hearsay objection to a question about another witness's identification of Defendant. Finding no merit in either claim, we affirm.
Facts Adduced at Trial
Defendant does not challenge the sufficiency of the evidence supporting his convictions, and while we relay the facts in the light most favorable to the jury's verdicts, State v. Wright, 247 S.W.3d 161, 163 (Mo. App. S.D. 2008), we mention only the facts necessary to address Defendant's points.
Joseph Vazquez (" Joseph" ) was home with his two daughters, Rose Vazquez (" Rose" ) and Jessica Vazquez (" Jessica" ), when three individuals -- a Hispanic man, a white woman, and a black man (later identified as Defendant) -- broke into their home. The black man's face was obscured by a drawn-up black hoodie and a blue bandana that covered the lower portion of his face.
One of the items the robbers had taken was Joseph's cell phone. By " pinging" that stolen phone, police officers were able to determine that it was located at a Walmart store. Officers went to that location and took into custody a group of three people (including Defendant) in the parking lot who matched the description Joseph had given of his assailants. Joseph later identified the Hispanic man and the white female as two of the persons who had invaded his home. Rose identified Defendant as the third person involved based upon a design on his pants.
Defendant was initially represented by a public defender (" trial counsel" ) until March of 2011, when Defendant retained private counsel. Defendant's private attorney conducted a few interviews, but he did not have the audio recordings of those interviews transcribed. In August 2012, trial counsel resumed the defense of the case.
At a pretrial hearing held on the Friday before the Monday trial date in March 2013, trial counsel made an oral motion for continuance to allow him to depose the alleged victims " and possibly some officers[.]" He explained that his motion was not submitted in writing because he had not had time to prepare a written motion the night before. Trial counsel further explained that Defendant had been incarcerated in the Department of Corrections, and trial counsel had not been able to meet with him at the county jail until the previous day. Trial counsel also told the court that Defendant had not had an " opportunity to listen to" the recordings of witnesses taken by private counsel. Trial counsel stated that he had " questions . . . that weren't answered in the informal interviews." Trial counsel said he " believe[d] there will be conflicting testimony[,]" but he gave no indication of the significance of any such testimony. He also suggested that because the recordings had not been transcribed, he would have to rely on the recordings themselves to impeach the witnesses.
The prosecuting attorney did not agree to the continuance request, arguing that the reason depositions had not already been taken was because private counsel had chosen to use audiotaped informal interviews as a cost-effective alternative to depositions. The trial court denied the
oral motion for continuance without explication.
Just before the Monday trial commenced, trial counsel " reiterat[ed]" his oral motion for continuance, outlining the same reasons he had described the previous Friday. Trial counsel indicated that " good" questions remained to be asked of the witnesses he wanted to depose, but he did not provide any description of the information those questions might elicit. The State continued to oppose the request, and the trial court again denied the oral motion for continuance, stating that it could not " see [its] way clear to continue the matter."
After accepting the jury's guilty verdicts, the trial court subsequently sentenced Defendant (a persistent offender) to serve consecutive, 20-year terms on each count. This appeal timely followed.
Point I -- Oral Motion for Continuance
" The decision to grant or deny a continuance is within the sound discretion of the trial court. A very strong showing is required to prove abuse of that discretion, with the party requesting the continuance bearing the burden of showing prejudice." State v. Schaal, 806 S.W.2d 659, 666 (Mo. banc 1991). Defendant acknowledges that his motion was not in writing as required by Rule 24.09, and he is requesting plain-error review under Rule 30.20 as he did not include the challenge in his motion for new trial.
Whether plain error review will be granted is within the appellate court's discretion. State v. Brown, 438 S.W.3d 500, 507 (Mo. App. S.D. 2014).
Errors are plain if they are evident, obvious, and clear. State v. Hawthorne, 74 S.W.3d 826, 829 (Mo. App. W.D. 2002). In the absence of such error, we should decline to exercise our discretion to review the claimed error under Rule 30.20. If we find plain error on the face of the claim, we may proceed, at our discretion, to the second step to consider whether or not a miscarriage of justice or manifest injustice will occur if the error is left uncorrected.
State v. Rios, 314 S.W.3d 414, 422 (Mo. App. W.D. 2010). Here, Defendant's request fails to satisfy the first step of demonstrating that an " evident, obvious, and clear" error occurred. Id.
Rule 24.09 provides: " A motion for continuance shall set forth in writing the facts upon which the motion is based. The motion may be oral if : (a) The adverse party consents, or (b) The court finds good cause." (Emphasis added.) The record on appeal does not support either exception. Acknowledging this difficulty, Defendant argues that an oral motion is nonetheless sufficient if the trial court does not explicitly base its ruling on Rule 24.09 and the appellate court is able to comprehend the situation quickly, citing Lee v. Kemna, 534 U.S. 362, 122 S.Ct. 877, 151 L.Ed.2d 820 (2002).
In Lee, the defendant was prepared to present an alibi defense. Id. at 365. On the third day of trial, the alibi witnesses were set to testify, but they disappeared from the courthouse for unknown reasons. Id. Defense counsel orally moved to continue the case until the next morning so that he could relocate his missing alibi witnesses. Id. The trial judge denied the motion because it looked as if the witnesses had abandoned the defendant, and the judge already had other plans for the next day. Id. at 365-66. Our court upheld the denial of the requested ...