Court of Appeals of Missouri, Southern District, First Division
APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY Honorable Kelly W. Parker, Judge
Before Francis, P.J./C.J., Bates, J., and Scott, J.
Claude Chambers was charged with first-degree statutory sodomy in Crawford County, which has fewer than seventy-five thousand inhabitants. Defense counsel filed a timely Rule 32.03 application for change of venue that was not brought to the court's attention or ruled at any time in the next nine months.
A few days before trial, the court denied a defense request for continuance. On the Sunday afternoon before jury trial was to begin Monday morning, defense counsel advised the judge by phone "that a motion for change of venue had been filed and had not been ruled upon." After the case was called for jury trial the next morning, defense counsel formally requested the court "to grant [the] Change of Venue Motion previously filed." Following argument on the record, the court declined to do so, finding that Chambers "waived his right to a change of venue by failing to bring this matter to the court's attention until the day before trial."
Chambers then sought to discharge his public defender, to waive counsel, and to be tried in abstentia. After lengthy discussion and careful inquiry of Chambers, the court granted these requests. Defense counsel withdrew, Chambers was excused, a jury was selected, the state presented its evidence, and Chambers was found guilty.
We consider only Chambers' second point on appeal, as it is dispositive.
Failure to Grant Change of Venue (Point II)
We agree with Chambers; the trial court erred in denying his Rule 32.03 application for venue change. "If a timely application is filed, the court immediately shall order the case transferred to some other county…." Rule 32.03(c). Chambers timely filed his application; no one has suggested otherwise on appeal or in the trial court.
According to our highest court's plainest statements on this issue:
• "It is reversible error for a trial judge to deny a timely filed Rule 32.03 motion for change of venue …." Moss v. State, 10 S.W.3d 508, 513 (Mo. banc 2000).
• "[H]ad the issue been raised on direct appeal, the appellate court would have been compelled to enforce the non discretionary mandate of Rule 32.03 to have the case transferred to a different county." Matthews v. State, 175 S.W.3d 110, 114 n.5 (Mo. banc 2005).
The state counters by pressing its waiver argument that prevailed below, citing State v. Bradshaw, 81 S.W.3d 14, 28 (Mo.App. 2002), where a timely-filed application for venue change was presented for ruling only after voir dire and jury selection, but before the jury was seated and jeopardy attached. The Western District found that (1) "a defendant can waive a challenge to venue by proceeding to trial, " id. at 28; (2) "Mr. Bradshaw's reliance on the attachment of jeopardy has no relation to the waiver of the right to change of venue, " id. at 29; and (3) "[w]hen Mr. Bradshaw proceeded with voir dire without objection, he was proceeding with the trial, and he waived his right to a change of venue." Id. at 30.
The state would have us extend Bradshaw to reach this case. We decline to do so. We see Bradshaw as a narrow exception to Rule 32.03, a rule written in non discretionary terms provided the application is timely filed. Our Supreme Court authored Rule ...