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ANNUAL CASE

LAW UPDATE

Spring - 2004

MUNICIPAL JUDGE EDUCATION COMMITTEE

OFFICE OF STATE COURTS ADMINISTRATOR

2112 Industrial Drive

P.O. Box 104480

Jefferson City, MO 65110


NOTE: This material was originally prepared for presentation to the membership of the Missouri Municipal and Associate Circuit Judges Association at the Association’s Spring Educational Seminars on March 26, 2004. It was prepared by the Association’s Regional Seminar Committee. Comments following the cases reported here are the views and opinions of the Regional Seminar Committee, and not those of the Office of State Courts Administrator.



CASE LAW UPDATE - 2004

Table of Contents


“PLAIN FEEL” DOCTRINE – State v. Moore , 99 S.W.3d 579 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . . . . 1

PROBABLE CAUSE – State v. Bergmann , 113 S.W.3d 284 (Mo. App. E.D. 2003). . . . . . . . . . . . . . . . . . . . . . 1

PROBABLE CAUSE TO STOP MOTOR VEHICLE – State v. Goff , ____ S.W.3d ____

( Mo. banc, No. 85564, March 9, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSENT TO SEARCH CAR DOES NOT ALLOW PERSONAL PAT DOWN – State v. Haldiman,

106 S.W.3d 529 (Mo. App. W.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

EXPECTATION OF PRIVACY – State v. Courtney , 102 S.W.3d 81 (Mo. App. W.D. 2003) . . . . . . . . . . . . . . 4

EXIGENT CIRCUMSTANCES – State v. Pacheco , 101 S.W.3d 913 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . 4

EXIGENT CIRCUMSTANCES - State v. Kimberley, 103 S.W.3d 850 (Mo. App. W.D. 2003) . . . . . . . . . . . . . 5

CONSENT TO SEARCH - State v. Harp , 101 S.W.3d 367 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . 6

NO KNOCK AND ANNOUNCE NEEDED - State v. Baker, 103 S.W.3d 711 (Mo. banc 2003) . . . . . . . . . . . . 7

PROBABLE CAUSE - State v. Bradshaw , 99 S.W.3d 73 (Mo. App. E.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 8

ABANDONED PROPERTY - State v. Mosby, 94 S.W.3d 410 (Mo. App. W.D. 2003) . . . . . . . . . . . . . . . . . . . . 8

INSUFFICIENT PROBABLE CAUSE - State v. Barks, _____ S.W.3d _____ (Mo. banc, No. 85735,

March 9, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

NON-OWNED VEHICLE - State v. Wenzel, 119 S.W.3d 650 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . . . . . . 10

CONVICTION SUSTAINED ON OTHER GROUNDS – State v. Davalos , ____ S.W.3d ____

(Mo. App. S.D., No. 25402, January 13, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11


CUSTODIAL INTERROGATION - State v. Taylor , 109 S.W.3d 190 (Mo. App. E.D. 2003) . . . . . . . . . . . . . . . 11

NON-CUSTODIAL INTERROGATION - State v. Stacy , 121 S.W.3d 328 (Mo. App. W.D. 2003) . . . . . . . . . . 12

AMBIGUOUS REQUEST FOR COUNSEL - State v. Kerr, 114 S.W. 3d 459 (Mo. App. S.D. 2003) . . . . . . . . . 13

WAIVER OF FIFTH AMENDMENT RIGHTS - State v. Gray, 100 S.W.3d 881

(Mo. App. S.D. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

NON-CUSTODIAL INTERROGATION - State v. Seibert, 103 S.W.3d 295 (Mo. App. S.D. 2003). . . . . . . . . . 14

MIRANDA WARNING UNNECESSARY - State v. Londagin, 102 S.W.3d 46 (Mo. App. S.D. 2003) . . . . . . . . 14

SUCCESSIVE INTERROGATIONS - State v. Seibert, 93 S.W.3d 700 (Mo. banc 2002),

cert. granted May 19, 2003 (U.S. Supreme Court Case No. 02-1371) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CUSTODIAL INTERROGATION - State v. Manley, 115 S.W.3d 398 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . .16

INVOCATION OF RIGHTS DOES NOT CARRY OVER TO LATER CHARGES –

State v. Farris , ____ S.W.3d ____ (Mo. App. W.D., No. 61802, January 27, 2004) . . . . . . . . . . . . . . . . . 16

WAIVER OF TRIAL COUNSEL AND REQUIREMENT TO WARN OF PERILS OF SELF

REPRESENTATION – City of St. Peters v. Hodak, ____ S.W.3d ____ (Mo. App. E.D.,

No. 81885, January 20, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17


STEALING - State v. Maclin , 113 S.W. 3d 304 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18

KNOWING POSSESSION - State v. Winsor, 110 S.W.3d 882 (Mo. App. W.D. 2003) . . . . . . . . . . . . . . . . . . . . 19

RECEIVING STOLEN PROPERTY - State v. Langdon, 110 S.W.3d 807 (Mo. banc 2003) . . . . . . . . . . . . . . . . . 19

KNOWING POSSESSION OF CONTRABAND - State v. Charlton, 114 S.W.3d 378 (Mo. App. S.D. 2003) . . . 19

CHILD ENDANGERMENT - State v. Kuhn , 115 S.W.3d 845 (Mo. App. E.D. 2003) . . . . . . . . . . . . . . . . . . . . . . 20

RESISTING ARREST; VIOLENCE NOT REQUIRED - State v. Belton, 108 S.W.3d 171 (Mo. App.

W.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

SEXUAL ASSAULT; COERCION DOES NOT REQUIRE PHYSICAL FORCE - State v. Garner,

103 S.W.3d 866 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

POSSESSION OF CONTRABAND - State v. Bristol, 98 S.W.3d 107 (Mo. App. W.D. 2003). . . . . . . . . . . . . . . . .22

ATTEMPT - State v. Sellars , 98 S.W.3d 124 (Mo. App. W.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

DRIVING WHILE SUSPENDED - State v. Willis, 97 S.W.3d 548 (Mo. App. W.D. 2003) . . . . . . . . . . . . . . . . . . 24

POSSESSION OF CONTROLLED SUBSTANCE - State v. Blocker, _____ S.W.3d _____ (Mo. App. S.D.,

No. 25003, October 28, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

POSSESSION OF CONTRABAND – State v. Chavez, ____ S.W.3d ____ (Mo. App. W.D., No. 62048,

January 30, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ASSAULT AND RESISTING ARREST –State v. Shipp, ____ S.W.3d ____ (Mo. App. S.D., No. 25530,

January 14, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25



POSSESSION AND INTENT TO DISTRIBUTE ESTABLISHED BY THE EVIDENCE –

State v. Gonzalez, 108 S.W.3d 209 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

HEARSAY PREJUDICIAL WITHOUT LIMITING INSTRUCTION - State v. Robinson , 111 S.W.3d 510

(Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

POTENTIALLY EXCULPATORY EVIDENCE - State v. Barriner, 111 S.W.3d 396 (Mo. banc 2003) . . . .. . . . 27

IMPEACHMENT - State v. Turner , 94 S.W.3d 464 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

OPINION STATEMENTS AS TO VALUE - State v. Weekley, 92 S.W.3d 327 (Mo. App. S.D. 2002) . . . . . . . . . 29

BROKEN CHAIN OF CUSTODY – State v. Bode, ____ S.W.3d ____ (Mo. App. W.D., No. 62382,

February 3, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

AUTHENTICATION OF OUT OF STATE DWI CONVICTION – Friedrich v. Director of Revenue,

____ S.W.3d ____ (Mo. App. W.D., No. 62133, January 20, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

ADMISSION OF SURVEILLANCE VIDEOTAPE – State v. Powers, ____ S.W.3d ____

(Mo. App. E.D., No. 82209, February 17, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30


PROOF OF INTOXICATION - State v. Ball, 113 S.W.3d 677 (Mo. App. S.D. 2003). . . . . . . . . . . . . . . . . . . . . . . 31

IMPLIED CONSENT LAW - State v. Smith, _____ S.W.3d _____ (Mo. App. E.D., No. 82604,

July 22, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

EXCLUSIONARY RULE DOES NOT APPLY IN CIVIL ACTIONS – Garriott v. Director of Revenue,

____ S.W.3d ____ (Mo. App. W.D., No. 62710, January 27, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32


VERDICT IN DEFENDANT’S ABSENCE - State v. Wolfe, 103 S.W.3d 915 (Mo. App. W.D. 2003) . . . . . . . . . 32

PROBATION REVOCATION HEARING - State ex rel. Beaird v. Del Muro, 98 S.W.3d 902

(Mo. App. W.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

NO APPEAL OF PROBATION TERMS - State v. Pressley, 94 S.W.3d 449 (Mo. App. E.D. 2003) . . . . . . . . . . . 34

DETAINERS - State v. Williams , 120 S.W.3d 294 (Mo. App. W.D., 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

UNAUTHORIZED SENTENCE - State v. Fizer, 119 S.W.3d 640 (Mo. App. W.D., 2003). . . . . . . . . . . . . . . . . . . 35

RIGHT TO CONFRONT WITNESSES - State v. Thomas, 118 S.W.3d 686 (Mo. App. W.D. 2003). . . . . . . . . . . 35

DISCOVERY; LATE DISCLOSURE OF EVIDENCE - State v. Rippee, 118 S.W.3d 682 (Mo. App.

S.D., 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

NO APPEAL FROM SUSPENDED IMPOSITION OF SENTENCE - State v. Blalock , 119 S.W.3d 185

(Mo. App. E.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

FACTUAL BASIS REQUIRED FOR GUILTY PLEA - Jones v. State, 117 S.W.3d 209 (Mo. App. S.D. 2003) . . 36

COMMENTING ON DEFENDANT’S FAILURE TO TESTIFY - State v. Busey , _____ S.W.3d _____

(Mo. App. W.D., No. 60988, November 25, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

JOINDER OF OFFENSES - State v. Dizer, 119 S.W.3d 156 (Mo. App. E.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 37

FACTUAL BASIS REQUIRED FOR GUILTY PLEA - Johnson v. State, 115 S.W.3d 422

(Mo. App. W.D. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

NEW ARGUMENTS PROHIBITED IN CLOSING REBUTTAL – State v. Davis , ____ S.W.3d ____

(Mo. App. W.D., No. 61884, January 27, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

NO APPEAL FROM REVOCATION OF PROBATION – State v. Engle , ____ S.W.3d ____

(Mo. App. E.D., No. 83358, January 13, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

NO APPEAL FROM SUSPENDED IMPOSITION OF SENTENCE – State v. Hauser , ____ S.W.3d ____

(Mo. App. E.D., No. 83441, January 13, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

JURY PANEL STRIKE FOR CAUSE DENIEDState v. Stanley, ____ S.W. 3d ____ (Mo. App. S.D.,

No. 25598, January 20, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39


ENHANCEMENT BASED ON COURT PRIOR MARTIAL CONVICTION - State v. Grubb ,

120 S.W.3d 737 (Mo. banc 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

DEATH PENALTY FROM JURY ONLY - State v. Buchanan, 115 S.W.3d 841 (Mo. banc 2003) . . . . . . . . . . . 41

CONCURRENT UNLESS OTHERWISE STATED - State ex rel La Chance v. Bowersox, et al,

119 S.W.3d 95 (Mo. banc 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

ENHANCEMENT – PRIOR “INTOXICATION RELATED” OFFENSES – State v. Gibson, ____ S.W.3d

____ (Mo. App. W.D. No. 61455, December 30, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41


SEPARATION OF POWERS - Huffman v. Nixon, 98 S.W.3d 553 (Mo. banc 2003) . . . . . . . . . . . . . . . . . . . . . . 42

GROUNDS FOR ARREST; JOINT OCCUPANCY OF VEHICLE - Maryland v. Pringle ,

_____ U.S. _____ (No. 02-809, December 15, 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

RELIGIOUS FREEDOM - State v. Joos , 120 S.W.3d 778 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . 43



DANGEROUS ITEM - State v. William, 100 S.W.3d 828 (Mo. App. W.D. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . 44

UNLAWFUL USE OF FIREARM - State v. Parrow, 118 S.W.3d 629 (Mo. App. S.D. 2003) . . . . . . . . . . . . . . . . 44


CONSTITUTIONAL LAW – CONCEALED CARRY – Brooks v. Missouri, ____ S.W.3d ____ (Mo. banc,

No.85674, February 26, 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

SELF INCRIMINATION – WAIVER OF MIRANDA APPLIES TO ANY OFFENSE – State v. Nunnery,

____ S.W.3d ____ (Mo. App. S.D., No. 25502, February 20, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

D.W.I. – TWENTY MINUTE WAITING PERIOD INAPPLICABLE – Dotzauer v. Director of Revenue,

____ S.W.3d ____ (Mo. App. E.D., No. 82713, February 24, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

EVIDENCE – IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS – State v. Douglas,

____ S.W.3d ____ (Mo. App. S.D., No. 25376, February 19, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

SEARCH AND SEIZURE – NO PROBABLE CAUSE FOR WARRANT – State v. Kirby, ____ S.W.3d ____

(Mo. App. E.D., No. 83368, February 24, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

CRIMINAL PROCEDURE – ESCAPE FORFEITS RIGHT TO APPEAL – State v. Crump,

____ S.W.3d ____ (Mo. App. E.D., No. 82624, March 2, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

D.W.I. – SQUANDERING OF TWENTY MINUTE WAITING PERIOD – Christensen v. Director of

Revenue, ____ S.W.3d ____ (Mo. App. S.D., No. 25380, February 25, 2004) . . . . . . . . . . . . . . . . . . . . . 50

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – TAMPERING WITH A JUDICIAL OFFICER –

State v. Hamilton , ____ S.W.3d ____ (Mo. App. S.D., No. 25625, March 3, 2004) . . . . . . . . . . . . . . . . . 51

SELF INCRIMINATION – NO PROMISE OF LENIENCY SHOWN – State v. Simms, ____ S.W.3d ____

(Mo. App. W.D., No. 62134, March 2, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

SELF INCRIMINATION – OTHER EVIDENCE OF GUILT WAS OVERWHELMING – State v. Lopez

____ S.W.3d ____ (Mo. App., S.D., No. 25535, March 10, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53

WAIVER OF TRIAL COUNSEL – WARNINGS REQUIRED – Iowa v. Tovar, ____ U.S. ____,

(No. 02-1541, March 8, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

EVIDENCE – DESTRUCTION OF TRIAL EVIDENCE UNDER RETENTION GUIDELINES –

Illinois v. Fisher , ____ U.S. ____ (No. 03-374, February 23, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

SIXTH AMENDMENT – RIGHT TO CONFRONT WITNESSES – Crawford v. Washington,

____ U.S. ____ (No. 02-9410, March 8, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55



I. SEARCH AND SEIZURE

State v. Moore, 99 S.W.3d 579 (Mo. App. S.D. 2003)

SEARCH AND SEIZURE – “PLAIN FEEL” DOCTRINE

Defendant was convicted of possession of crack cocaine with intent to distribute. Trial court overruled motion to suppress. Conviction reversed. “Plain feel” doctrine not established in the record.

Police had gone to an apartment to execute a search warrant for possible drug violations. Defendant was one of the joint occupants of the apartment. Officers had an ID on the defendant, and knowledge that he had been seen with weapons. Defendant fled from the apartment and was stopped by officers. Because of the flight and the weapons history, officers elected to do a “ pat down” search. Apparently no weapons found, but a lump was found in defendant’s sock and seized. It was a baggie and it contained crack cocaine.

Western District quotes State v. Rushing, 935 S.W.2d 32 (Mo. banc 1996), cert. denied , 520 U.S. 1220 (1997) as adopting the “plain feel” doctrine laid down in Minnesota v. Dickerson , 508 U.S. 366 (1993). But in reversing, the court said “Here, the record is completely devoid of any evidence or testimony from Officer Wray showing that the object he might have felt in Appellant’s sock was, by virtue of its contour or mass, made immediately identifiable as contraband.” This result was reached because the State “failed to present this vital information during the course of trial.”

Query: What if Officer Wray had testified that, “I have arrested hundreds of drug users in my career, and in my experience they tend to hide crack cocaine in articles of their clothing other than the traditional pants pocket. I have never found marbles, candy, ball bearings, or any other legal substance of that size and shape in the socks of any defendant. It has always been dope.” Since the police were dealing with a drug warrant (as opposed to, say, receiving stolen televisions), wouldn’t such testimony provide the basis for the “contraband conclusion” by Officer Wray? On the other hand, the same marble sized items in the defendant’s sock would certainly not lead to the same “contraband conclusion” if the officers were looking for televisions rather than controlled substances.

State v. Bergmann, 113 S.W.3d 284 (Mo. App. E.D. 2003)

SEARCH AND SEIZURE – PROBABLE CAUSE

Police had received an anonymous tip about a disturbance at a motel, and had been given a description of a certain vehicle near a certain room. Upon arrival at the scene, the officer found a vehicle that matched the description involved in the disturbance. It was near the room described. The police stopped the defendant’s vehicle and during the search they found marijuana in plain view on the front seat. After a search, the police found more marijuana and other controlled substances and paraphernalia. Defendant was charged with possession of a controlled substance with intent to deliver. Defendant’s motion to suppress was denied.

The appeals court reversed the trial court’s denial of the motion to suppress evidence discovered during the stop because a mere disturbance call was not criminal activity sufficient to justify the stop. Query: Why wouldn’t the presence of marijuana in plain view support the arrest – which would then support the subsequent search? Answer: Because the original stop itself cannot qualify as a Terry stop since there must be at least some reasonable belief to suspect criminal activity. Here there was no showing of reliability as to the anonymous tip.

State v. Goff, _____ S.W.3d _____ (Mo. banc, No. 85564, March 9, 2004)

SEARCH AND SEIZURE - PROBABLE CAUSE TO STOP MOTOR VEHICLE

Defendant and a friend drove into the parking lot of a 24 hour Wal-Mart store at about 3:00 a.m. They were seen by Officer Boydston as she was driving through the lot. Defendant and his companion had illegally parked in the fire lane in front of the vending machines near the front of the store. They were near an outlying entrance that was locked after 11:00 p.m. When they saw Boydston, the friend got into the car, then defendant followed suit. As Boydston passed the car and left the lot, she radioed the dispatcher to run the license tag on the vehicle.

Dispatcher ran the license and then also ran the address of the registered owner. Dispatcher then advised Boydston “ . . . that someone living at that address known to operate that car had several outstanding warrants.” Boydston returned to the parking lot, only to find the vehicle was gone. Thereafter, Officer Easley, hearing the dispatcher’s information, located the vehicle in the 24 hour Hy-Vee parking lot across from Wal-Mart. The vehicle was parked in front of the vending machines at one of the entrances. Defendant and his friend were standing in front of the machines. When Easley drove by, the friend got back in the car and parked it in a parking space. Defendant went into the store. Easley went on by, but turned around and got into position where he could observe the suspects without being observed himself. The friend got out, opened the hood of the car, looked all around as if checking to see if he was being watched, and put a bag of some kind in the engine compartment. Easley later testified that he was certain that the friend had not worked on or checked the engine. Defendant came back to the car with a soda, got in, and they attempted to leave the lot. Easley pulled them over. He asked for ID, and ran both Goff and his friend through the computer. The friend had an outstanding warrant and was arrested.

Goff was then ordered out of the car and was patted down. There was a large object in defendant’s right front pants pocket. Officer Easley asked what it was and defendant replied: “I don’t know” and gave Easley permission to retrieve it. The object turned out to be a “universal key” for vending machines. Easley inserted the key into one of the vending machines and it fit. He also noticed that the door of the machine was not fully closed and the lock was missing. Defendant was then arrested. A search of the car turned up quarters on the floorboard, dollar bills, and other coins. Under the hood of the car was found a bag containing two more universal keys and other vending machine keys. In the back seat were wire cutters, vice grips, and screwdrivers.

Defendant was convicted of stealing and sentenced to 15 years as a prior and persistent offender. He appealed. Western District reversed, stating that the facts were not enough to reasonably conclude that Goff and his friend were engaged in criminal activity. Hence, the stop was invalid. But the Supreme Court holds otherwise. The collective information of both officers can be considered in making a determination of reasonable suspicion. State v. Pruitt , 479 S.W.2d 785 (Mo. banc 1972). Here the totality of the circumstances, including the lateness of the hour, the tendency of the two suspects to gravitate toward vending machines, Goff having gone into the store to buy a soft drink when the vending machines themselves sold soft drinks, and the surreptitious activities of the other suspect in placing what appeared to be a bag in the engine compartment, all gave rise to reasonable suspicion that criminal activity was afoot. And once grounds for a Terry stop are found to exist, a pat down search for weapons is appropriate.

Another claim of trial error involved a volunteered statement by officer Easley on cross-examination describing his encounter with Goff at the Hy-Vee that night. Easley said, “Out there it was very polite, he understood the drill, he’d been through it before.” The trial court sustained the objection, directed the jury to disregard the statement, but denied the motion for a mistrial. Such denial was within the trial court’s discretion. Conviction affirmed.

Comment : Although his volunteered testimony was clearly improper, Officer Easley apparently knew what he was talking about. Goff most likely “understood the drill” because he had indeed “been through it before.” See State v. Goff, 490 S.W.2d 88 (Mo. 1973)(burglary); State v. Goff , 599 S.W.2d 89 (Mo. App. W.D. 1980)(passing a stolen tax refund check); and State v. Goff , 882 S.W.2d 781 (Mo. App. W.D. 1994)(affirming denial of motion for post conviction relief – nature of offense not shown in per curiam opinion).

State v. Haldiman, 106 S.W.3d 529 (Mo. App. W.D. 2003)

SEARCH AND SEIZURE – CONSENT TO SEARCH CAR DOES NOT ALLOW PERSONAL PAT DOWN

Officers got what was described in the opinion as an “anonymous tip” that a gray Camaro going east on I-70 contained drugs. Officers stopped the defendant on a routine traffic matter and obtained consent to search the car. They then proceeded to search the defendant as well, and the officers discovered contraband in the defendant’s boot. Defendant was convicted based on possession of the contraband.

On appeal, it was held that the trial court should have suppressed the contraband because the police had no reasonable articulable suspicion that the defendant possessed any hidden instrument for assaulting the officers. The uncorroborated anonymous radio call that the defendant might have drugs in his car did not support the search of the defendant’s person.

State v. Courtney, 102 S.W.3d 81 (Mo. App. W.D. 2003)

SEARCH AND SEIZURE – EXPECTATION OF PRIVACY

Defendant was convicted of possession of meth. Police were investigating a missing person report. Defendant was the last one to have been with the missing person. Police went to the rural home of a friend of defendant where they found defendant’s car, but no defendant. The friend claimed no knowledge of the defendant’s whereabouts.

The officers left the friend’s property and staked out the only road into it. Not long after, defendant came driving down the road and was stopped by the officers. When asked about a suitcase in the back seat, defendant started to exit the car (presumably to let the officers get the suitcase). In so doing, a small aluminum container about 1.5 inches long and 1 inch in diameter, looking somewhat like a bolt, fell to the ground. The sheriff picked it up and twisted off the cap. He found that the container contained what was later proven to be meth. Motion to suppress overruled by trial court.

Western District holds: Conviction reversed. The defendant had a reasonable expectation of privacy with respect to the container even though it was in plain sight. It had not been abandoned by the defendant. He had simply dropped it accidentally. Similar to a Southern District case where the defendant was floating a river and his canoe turned over. The baggies of dope floated downstream and were retrieved by officers. Accidental loss of control of personal items does not constitute abandonment or amount to a relinquishment of one’s expectation of privacy. See, State v. Looney , 911 S.W.2d 642 (Mo. App. S.D. 1995).

The warrantless search of the container required suppression of the evidence found therein. There was simply nothing about the metallic object that would have led to the conclusion that it contained contraband. Query: What if the container had been a Smith & Wesson carton indicating that it contained a .357 Magnum? And would it make any difference if the defendant were a felon? And if so, would the officers have to be aware of the felony conviction? Are there any Terry implications?

State v. Pacheco, 101 S.W.3d 913 (Mo. App. S.D. 2003)

SEARCH AND SEIZURE - EXIGENT CIRCUMSTANCES

In this case the police were investigating a hit and run accident and they came upon the defendant’s vehicle which bore a similarity to the one involved in the accident. They therefore entered the curtilage of the house without a warrant. In overruling the motion to suppress, the court ruled that “As a practical matter, exigent circumstances exist whenever an automobile is involved; the mere possibility that the vehicle can be moved is generally sufficient justification for a warrantless search.” Thus it seems clear that the rule of exigent circumstances is somewhat more liberally applied in motor vehicle searches.

Also, a certain witness had testified at the preliminary hearing but had died prior to trial. However, the sworn testimony at the preliminary hearing (which had been available for cross examination by defense counsel) was sufficient to satisfy the right to confrontation. Thus, the reading of that testimony in the actual trial was not erroneous.

State v. Kimberley, 103 S.W.3d 850 (Mo. App. W.D. 2003)

SEARCH AND SEIZURE – EXIGENT CIRCUMSTANCES

The Columbia police had responded to a report of property destruction at an apartment. Upon their arrival they were confronted by someone sticking a shotgun barrel out the back door of the apartment, waving it to and fro. The officers fell back for safety, and called the S.W.A.T. team. In the confusion the potential shooter apparently escaped from the apartment but he was apprehended a few blocks away. As that was happening, the S.W.A.T. team had arrived and, after repeated bullhorn requests for any occupants to exit the premises, they crashed into the apartment in order to secure the residence, make sure no one was hurt, and help anyone who needed medical assistance. In everyday parlance, because of the “exigent circumstances.”

Once inside the police officers found the defendant lying on a couch apparently asleep! Dope and drug paraphernalia was everywhere in plain sight. The defendant was convicted of (a) possession of dope and (b) related paraphernalia. She was sentenced on the paraphernalia charge, but got an SIS on the dope charge. She appealed both.

On appeal the court recognizes the “exigent circumstances” exception to the search warrant requirement as such circumstances are set forth in Payton v. New York , 445 U.S. 573, 590 (1980). Some of the factors to be considered in an exigent circumstances case are these:

Citing State v. McCullum , 63 S.W.3d 242, 256 (Mo.App.2001). The Western District found that exigent circumstances were present. The waving shotgun part was of particular import.

As for the defendant’s evidence of possession of the contraband, the court first agrees that the mere presence of the accused on shared premises where contraband is found is not enough circumstantial evidence to show ownership or possession. Additional factors are required to prove conscious possession. Some of these factors are (a) routine access to an area where the contraband is kept; (b) large quantities of the substance at the scene where the accused is arrested; (c) self-incriminating statements or admissions showing consciousness of guilt; (d) commingling of contraband with the defendant’s personal belongings; and (e) the substance being in public view and easily accessible by the defendant. 103 S.W.3d at 858.

With respect to those factors, the court of appeals observed that there was an exceptionally large bong in the nearby area and defendant admitted that she recognized it as contraband. She also admitted that she knew that marijuana had previously been smoked in the apartment. Thus, because of the presence of various kinds of paraphernalia in very close proximity to the defendant in her own apartment, with another large item of paraphernalia nearby, the appeals court agrees with the trial court that the totality of the circumstances was such that the finder of fact could believe beyond a reasonable doubt that defendant knowingly possessed the contraband items. The court concludes by stating that “It was not necessary for the State to eliminate all theoretical possibilities of her innocence.” 103 S.W.3d at 860, quoting State v. Grimm , 854 S.W.2d 403, 414 (Mo. banc 1993). Conviction affirmed.

Also, this case mentions that there is no appeal from a suspended imposition of sentence. Stated another way, you can’t appeal a sentence that has never been imposed. See also, State v. Blalock and State v. Hauser , mentioned at pp. 36 and 39 of these materials, respectively.

State v. Harp, 101 S.W.3d 367 (Mo. App. S.D. 2003)

SEARCH AND SEIZURE – CONSENT TO SEARCH

Police were alerted to the possibility of a meth lab by two sanitary workers who smelled ether in a sewer which was fed into by only four houses. Officers approached the properties and one smelled of ether. As they focused in on that one, defendant happened to be carrying some laundry out of the house and to a parked car. The defendant was questioned at the scene, and during the questioning, he consented to a search of the car. That search revealed two thermos bottles containing anhydrous ammonia, an ingredient for manufacturing meth. While the police were on the premises, the owner of the house (who had originally remained inside) came out, admitted he was a “user” but denied he was a manufacturer. The owner consented to a search of his house which revealed substantial evidence of a meth manufacturing operation. Defendant was convicted of several manufacturing violations and received a substantial sentence. He appeals claiming an illegal search of the car, admission of evidence at trial pertaining to his appearance on the date of his arrest, and a claim that all of his various convictions represented double jeopardy because they were part of a “continuing course of conduct.”

On the search and seizure issue, the consent to search the car was challenged. The court noted that where the voluntariness of consent is in issue, the court examines many factors, including but not limited to (1) the number of officers present; (2) the degree to which the officers emphasized their authority; (3) whether weapons were displayed; (4) whether the individual was already in custody; (5) whether there was any fraud on the part of the officers; and (6) evidence of what the individual consenting did and said. 101 S.W.3d at 375, citing State v. Shaw , 915 S.W.2d 775, 779 (Mo. App. W.D. 1996). The Court observed that under the totality of the circumstances the search here was consensual.

Apparently by trial time, defendant was well scrubbed and polished and was likely wearing his blue suit. However, trial testimony was adduced by the prosecutor regarding his thinner, paler, and generally haggard look at the time of the arrest. The officer also mentioned sores on and about the defendant’s face and the fact that he was visibly shaking while being questioned. Those observations were described by the officer as tending to indicate use of methamphetamine. This entire line of questioning was objected to.

The Court recognizes that direct evidence of uncharged crimes is generally inadmissible unless there is some legitimate tendency to establish the defendant’s guilt of the crime charged. But if the reference is a vague or indirect one, they are not as often characterized as clear evidence associating the accused with other crimes. It was held that the defendant’ ;s physical appearance on the day of his arrest and the officer’s opinions that he appeared to be addicted to methamphetamine were merely vague remarks that did not constitute clear evidence associating him with other crimes. Hence, no abuse of discretion in allowing such testimony.

In disposing of the claimed double jeopardy violation, the Court observes that double jeopardy is a personal right which is waived if not properly raised at trial. Since defendant failed to do so, the only review would be for plain error, and the Court found none.

State v. Baker, 103 S.W.3d 711 (Mo. banc 2003)

SEARCH AND SEIZURE – NO KNOCK AND ANNOUNCE NEEDED

Defendant was convicted of felony creation of a controlled substance. He appealed to the Southern District and the Supreme Court granted transfer to determine whether defense counsel’s statement of “no objection” at trial invalidates a previously entered continuing objection. The conviction was affirmed.

Here the defendant had a reputation for violence and the ability to destroy evidence quickly. There had also been multiple corroborations of suspicious activities which, although hearsay, supported the warrant with respect to the basis of the officer’s knowledge. These facts, as well as the easy destruction of evidence, obviated the knock and announce requirement. Reliance placed on Richards v. Wisconsin, 520 U.S. 385, 394 (1997).

During the trial defense counsel had made a continuing objection to certain lines of questioning. Thereafter, when evidence was proffered that was previously claimed by counsel to be improper [and as to which his request for a continuing objections had earlier been granted] he stated “no objection” when asked. It was held that once counsel has made a continuing objection, counsel does not waive that objection by responding “ ;no objection” when asked again. Basically the court rules that the defense was really “ . . . stating that he had no objection other than the continuing objection. ” 103 S.W.3d at 716-17. (emphasis added) Where, as in this case, it was well understood by the court and the prosecutor that defense counsel was not repudiating his earlier objection, “ . . . this Court will likewise acknowledge its continued validity.” 103 S.W.3d at 717.

State v. Bradshaw, 99 S.W.3d 73 (Mo. App. E.D. 2003)

SEARCH AND SEIZURE – PROBABLE CAUSE

Police had stopped Bradshaw’s car which contained a passenger who police had recognized as the subject of an outstanding warrant. After the stop, the passenger was ordered out of the car and placed under arrest. Once the passenger had been dealt with, Bradshaw was ordered out of the car, but dispatch advised there were no warrants outstanding. Police searched Bradshaw’s car anyway. The officer was apparently relying on New York v. Belton, 453 U.S. 454 (1981). Belton authorized the search of a vehicle after the arrest of its occupants. But the Eastern District distinguished Belton because in that case (1) the car had originally been stopped for a traffic violation; (2) all four men in that car were under arrest, and (3) none of the four was the owner of the vehicle. Here there was no reasonable suspicion upon which to detain Bradshaw or to go ahead and search Bradshaw’s car once the passenger had been arrested. Bradshaw was driving his own car, had committed no traffic violation, and had no warrants. The Eastern District finds this case more like Taber v. State , 73 S.W.3d 699 (Mo. App. W.D. 2002) where the absence of a front license plate on a Kansas car did away with the reason for trooper’s original stop.

DISSENT: Robert G. Dowd, Jr., Presiding Judge, dissents, stating his view that Belton is applicable here.

State v. Mosby, 94 S.W.3d 410 (Mo. App. W.D. 2003)

SEARCH AND SEIZURE – ABANDONED PROPERTY

Defendant was being chased by the police when he dropped certain items in the street and left others in a stairwell. The police recovered them after the arrest had been effected. The court ruled that even if the arrest was a pretextual arrest, seizure of the evidence was unrelated to it. The trial court was wrong to suppress the evidence which was discarded while avoiding the police, when it was found in plain view and where there was no reasonable expectation of privacy once the property had been abandoned and discarded.

State v. Barks, _____ S.W.3d _____ (Mo. banc, No. 85735, March 9, 2004)

SEARCH AND SEIZURE – INSUFFICIENT PROBABLE CAUSE

A state trooper clocked defendant at 74 in a 55. The trooper made a traffic stop and radioed in, with negative results on the defendant. He then wrote defendant a speeding ticket, handed it to the defendant and explained the mail-in procedure and the not guilty option.

But the trooper wasn’t finished yet. After the citation was handed through the driver’s window to the defendant (and as the emergency lights on the patrol cruiser continued flashing), the trooper went on to ask if there was anything illegal in the vehicle. He was told there was not. He then asked the defendant if he could search the vehicle. Although defendant refused the search, he told the trooper he had an unloaded gun in the back seat. The trooper asked defendant to step out so he could get the weapon. The trooper asked defendant to have a seat in the patrol car while the computer check on the gun was performed. The computer check revealed that the weapon was also clean. But the trooper persisted.

After receiving at least one more refusal of permission to search the vehicle, the trooper then asked for permission to search the defendant’s person. Permission was said to have been given. Finally, the trooper found a cigarette pack in the defendant’s pocket (with some aluminum foil in it) that he regarded as contraband. (It later tested positive for trace meth). An arrest was made (based on the foil) and a search of the car ensued, during which other contraband was found. Defendant was tried and convicted of possession of meth. He appealed.

At trial the trooper had testified that during the traffic stop the defendant appeared nervous and uneasy. However, on appeal the Southern District held that, “There is no evidence that the officer had developed articulable facts that would have supported a reasonable suspicion of criminal activity justifying detention of defendant for further inquiry. Although the officer testified that defendant appeared nervous, that alone does not give rise to reasonable suspicion.” To state the proposition more succinctly, “ The fact that the police may detain a person for a routine traffic stop does not justify indefinite detention, however. The detention may only last for the time necessary for the officer to conduct a reasonable investigation of the traffic violation.” Citing State v. Woolfolk , 3 S.W.3d 823, 828 (Mo. App. 1999) Reversed. On transfer, the Supreme Court agrees with the Southern District’s reversal, but remands for further proceedings consistent with the evidentiary ruling invalidating the search.

The Supreme Court opinion draws what appears to be the outside limit for permissible police conduct in a mere traffic violation situation. The officer may (1) ask for the driver’s license and vehicle registration, (2) request the driver to sit in the patrol car, and (3) inquire as to the driver’s destination and purpose. State v. McNaughton , 924 S.W.2d 517, 523 (Mo. App. 1996). The state had relied on the trooper’s testimony that Barks could have driven away at any time, but the Supreme Court declared “. . . that option was not apparent from the circumstances.” One such circumstance was the ominous flashing emergency lights on the patrol car. The defendant’s belief that he was in custody was warranted.

Comment: The Supreme Court’s closing comment in remanding for further proceedings is interesting. The Court suggests that “ . . . the state may produce other evidence that cures the evidentiary insufficiency.” Citing State v. Kinkead, 983 S.W.2d 518, 519 (Mo. banc 1998). In Kinkead there had been no evidentiary foundation shown to establish the accuracy of or justifiable reliance upon a radio dispatch advising the officer in the field that there was a warrant out for Kinkead. Perhaps if such foundation evidence had been adduced by the state, the arrest and subsequent search might have been sustained. But when the trial court overruled the objection in Kinkead , the state rightly felt no need to adduce any such additional evidence. That need only became apparent there after the Supreme Court had invalidated the search based on the absence of evidence that might have carried the day, had it been put forth.

But one must wonder just exactly what other evidence might carry the day in this case. Nonetheless, the approach of remand, rather than outright reversal, is done because the state has a right to rely on the trial court’s initial ruling. Had the trial court denied admission of the challenged evidence, the state might have employed different trial strategy or adduced some different evidence that it felt was unnecessary because of the ruling allowing the evidence into the case. This appears to be a fair disposition of the issue, and certainly was warranted in Kinkead. The applicability of the remand approach in Barks seems at least somewhat less certain. Time will tell whether Barks is re-tried.

State v. Wenzel, 119 S.W.3d 650 (Mo. App. S.D. 2003)

SEARCH AND SEIZURE – NON-OWNED VEHICLE

Defendant was convicted for manufacturing meth. He was sentenced as a persistent offender. He appeals.

On the morning of the arrest, a deputy was passing through town when he saw the defendant and another fellow standing in a driveway next to a gray Oldsmobile. The deputy knew there was a warrant outstanding for the defendant’s arrest. He called in for back-up, then turned around and headed back toward the driveway where the defendant had been standing. By that time the defendant had backed the Oldsmobile from the driveway and drove down the street toward the oncoming deputy. Both men stopped on opposite sides of the roadway and got out. A confrontation between them in the middle of the street there followed. The deputy sprayed the defendant with pepper spray, but the defendant was unfazed. More officers arrived, at which time the defendant fled, stopping to pick up a rock and throw it at the officers. The officers had drawn their service revolvers but held their fire. (It must have been defendant’s lucky day!) Defendant ran into a wooded area and was not apprehended until later.

After that excitement the officers returned to the Oldsmobile and noticed the smell of ether coming from it. They called in a state trooper from the narcotics squad who examined the items in the car, concluding it was a meth lab. Following trial, defendant was convicted.

On appeal, the Southern District observed that the defendant’s resistance to arrest, his flight, and his acting like he was on methamphetamine showed that he knew that there was a meth lab in the trunk of the car that he was driving, even though he was not the owner of the vehicle. The trial testimony established that people on meth are not fazed by pepper spray. Also, the deputy testified that the defendant appeared to be quite agitated and aggressive. (Defendant had declared prior to the altercation that “I’ ;m going to fight your ass.”)

On the way to affirming, the Southern District first observes the general principle that exclusive control of premises where contraband is found virtually assures the finding that the defendant knowingly possessed the contraband. State v. Allen , 744 S.W.2d 865, 868 (Mo. App. 1988). But a well recognized exception exists as to automobiles, particularly since automobiles are loaned out from time to time. Hence, the general rule of exclusivity does not apply. Additional independent factors are required to buttress the inference of knowledge on the part of the non-owner custodian of the automobile. State v. Brown , 683 S.W.2d 301 (Mo. App. 1984). The Southern District holds that such additional factors (as mentioned above) are seen in the record. Affirmed.

State v. Davalos , ____ S.W.3d ____ (Mo. App. S.D., No. 25402, January 13, 2004)

SEARCH AND SEIZURE – CONVICTION SUSTAINED ON OTHER GROUNDS

Davalos was charged with possession of a controlled substance with intent to deliver. He was convicted following a trial in which improperly obtained evidence was admitted. There was clearly a bad search, but there was also significant independent evidence of guilt. The Southern District affirms saying, “It would be ‘trifling with the administration of the criminal law’ to allow a defendant who freely confessed his crime under oath to subsequently have that testimony excluded because of a trial court error.” Application for transfer to Supreme Court filed on February 20, 2004.


II. SELF INCRIMINATION

State v. Taylor, 109 S.W.3d 190 (Mo. App. E.D. 2003)

SELF INCRIMINATION – CUSTODIAL INTERROGATION

Here the police had been working a credit card theft case. They had actual surveillance footage of the potential defendants using the credit card the previous day. When the defendants came back to the store on the day in question, the police confronted them in a nearby gas station. At this point the investigation had plainly focused on these defendants, and the police had substantial reason to believe they were involved in the crime. The defendant was even wearing the same shirt he had been wearing in the surveillance photos from the previous day. Nonetheless, and without Miranda warnings, the police began questioning the defendant while he was standing outside his car and he made damaging admissions. He later moved to suppress those admissions.

The suppression of evidence was affirmed because of the failure to give Miranda warnings at a point in time when the defendant was essentially in custody and had plainly become the focus of the investigation. Although he was not in handcuffs, nor was he in a police car, the Court found that there was still custodial interrogation based on the failure to inform the defendant that he was free to leave (which he obviously wasn’t). The Court states that “The atmosphere was police dominated.” The appellate Court felt that the totality of the circumstances required defendant’s advice of his Miranda rights before the interrogation commenced. Reliance on State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000) and United States v. Griffin , 922 F.2d 1343, 1349 (8th Cir. 1990), setting out six factors to take into account in determining the issue of custodial interrogation. Although not controlling per se , such factors are guides in evaluation of the totality of the circumstances. The six factors are:

State v. Stacy , 121 S.W.3d 328 (Mo. App. W.D. 2003)

SELF INCRIMINATION – NON-CUSTODIAL INTERROGATION

Defendant convicted of possession of a controlled substance. Affirmed.

Stacy was walking down the street with his uncle when a police officer drove by. Stacy tried to cover his face and acted in a suspicious manner. Officer stated that defendant was “very nervous and fidgety.” The officer stopped his car in the street and Stacy and the uncle walked toward the officer, who was exiting the patrol car. The officer inquired as to their identities, and called the dispatcher on his hand held radio with the information. Stacy had an outstanding warrant, and he was arrested on the warrant. The officer could not recall whether he was told by Stacy of Stacy’s identity and birth date, or he got it from Stacy’s driver’s license. Doesn’t matter. Even if Stacy handed the officer the driver’s license, the officer didn’t walk away with it (which would have suggested detention). Rather, he merely read what was on the license and radioed it in while standing right there. Once the reasonable stop requirements of Terry v. Ohio have been met, mere requests for identification are clearly permissible under INS v. Delgado , 466 U.S. 210 (1984). Indeed, it is possible that mere questioning without any suspicion at all may be condoned as long as it is quite clear that the police do not convey any indication that compliance with their request is mandatory. Florida v. Bostick , 501 U.S. 429, 434-35 (1991). Query No. 1: But what about the police uniform, the big gun, and that shiny badge? Don’t those items strongly suggest that compliance is required? Aren’t they strong indicia of authority?

After they got to the station house, the officer began a search of the defendant pursuant to the arrest. Before finding the meth, defendant admitted that he had some “speed” in his pocket. Spontaneous statements, even when in custody, are admissible. State v. Reese , 26 S.W.3d 323, 324-25 (Mo.App. E.D. 2000).

Query No. 2: But why does the officer even have a right to stop the defendant and ask for ID in the first place? There was nothing in the case suggesting any criminal activity other than the fact that Stacy was “nervous and fidgety.” Is that probable cause? It may be that a large segment of the populace might be “nervous and fidgety” when confronted by the police. But compare State v. Barks , cited at p. 8 of these materials for a contrary result on similar facts.

State v. Kerr, 114 S.W. 3d 459 (Mo. App. S.D. 2003)

SELF-INCRIMINATION – AMBIGUOUS REQUEST FOR COUNSEL

Here the defendant’s ambiguous assertion of his Fifth Amendment right to counsel while not in custodial interrogation was not sufficient to cause the trial court to grant a motion to suppress for failure to give Miranda warnings. While being questioned by the police, the matter of a possible polygraph examination came up. Defendant said he wanted to talk to his lawyer about it. Later the officer inquired about the polygraph exam and what advice counsel had given the defendant on that subject. The defendant replied, “No, I’m not taking it and [my attorney advised me] don’t talk to [the officer] about it.” The appellate court regarded this as not a sufficient request for counsel to be present at an interrogation. Such declaration was regarded by the court as a mere refusal to take or discuss the polygraph issue – not a request for counsel.

In addition, the police officer in question had suggested to the defendant that the death penalty was a possibility in the case and, even if he dodged that bullet, the defendant might be sent to prison where the victim’s relative was already incarcerated. It was held that these were not specific threats for purposes of coercion.

State v. Gray, 100 S.W.3d 881 (Mo. App. S.D. 2003)

SELF INCRIMINATION – WAIVER OF FIFTH AMENDMENT RIGHTS

Defendant was convicted of second degree murder. He was barely over 16 years old at the time of the crime, but was certified for trial as an adult. In the early stages of the investigation (before defendant became a suspect and before any Miranda warnings had been given), defendant had invoked his right to silence by telling the investigators “he didn’t want to talk any more.” A few hours later, as the evidence began to point to the defendant, the officers took defendant and his mother to the police station.

Prior to that interrogation, defendant was given a “juvenile Miranda warning.” This is the usual warning plus 3 additional elements (1) The allegation is a felony, so a police officer will ask the questions; (2) You might be certified as an adult for trial, and this statement can be used against you; and (3) You can talk to a parent, guardian or custodian prior to questioning, and can have them present during questioning. Defendant specifically did not want his mother present. After 45 minutes, he asked to talk to his mother, and this was allowed. The interrogation continued for another 2 hours with steadfast denials by the defendant.

Blood was found on a broken window at the crime scene. The following day, defendant was taken by police to a hospital to get blood samples. The samples confirmed defendant’s presence at the crime scene. Interrogation resumed, after a new reading of the warnings. Defendant acknowledged an understanding of his rights, never requested counsel or his mother, and eventually confessed to the crime.

The issue here was whether the defendant actually understood his Miranda rights as read to him. It was held that his familiarity with the criminal justice system, including several run-ins with the law as a juvenile, his original and un-Mirandized “invocation of his rights, refusal to consent to the gunpowder residue test, and his assertion of control over the interview process,” supports a finding of a knowing and intelligent waiver. Defendant also claimed that medications had impaired his mental capacity but he failed to adduce sufficient proof to establish that defense. Also, the presence of the defendant’s parent between the interrogations satisfies the requirements of the applicable juvenile statute which requires the presence of a parent – Sec. 211.059.1(3).

This case was distinguishable from the U.S. Supreme Court cases reversing convictions of youthful offenders where there was a long interrogation and the defendant was held incommunicado. See Haley v. Ohio , 332 U.S. 596 (1948) and Gallegos v. State of Colorado , 370 U.S. 49 (1962).

State v. Seibert, 103 S.W.3d 295 (Mo. App. S.D. 2003)

SELF INCRIMINATION – NON-CUSTODIAL INTERROGATION

This case involves the son of Patrice Seibert (cited at p. 15 of these materials). This young man was a co-defendant with his mother in murder and arson charges. During the commission of the crime, defendant himself received severe burns. He was hospitalized, and when questioned by police in his hospital room about six weeks later, he made damaging admissions. At the start of the interview, the interrogating officer had read the defendant his rights, and the defendant said he wanted to talk to a lawyer. But the officer continued to outline for the defendant the evidence that had been developed, at the conclusion of which he again gave the defendant his rights. After that, the defendant confessed.

It was held that a Miranda warning was not required because the defendant was free to terminate the interview at any time. He was not in custody at the time. Also there was evidence other than the defendant’s statement which supported the conviction. Defendant had earlier testified in his mother’s trial, admitting all of the elements of the charge against him.

State v. Londagin, 102 S.W.3d 46 (Mo. App. S.D. 2003)

SELF INCRIMINATION – MIRANDA WARNING UNNECESSARY

Defendant was convicted of forcible sodomy on a retarded fellow in a “work life skills” center for people with such disabilities. Defendant was briefly employed by the shelter as a “life skills trainer.” The suspected conduct was exceptionally perverse, involving the utilization by the defendant of a wooden plunger handle whereby he inserted the handle into certain delicate portions of the victim’s anatomy. As the investigation unfolded (after defendant was no longer employed at the shelter), a detective and a female social worker from the shelter went to defendant’s new place of employment to interview him. The new employer provided a conference room for privacy.

As the interview progressed (and the details of the allegations and medical findings on the victim became more graphic), the defendant asked the detective to excuse the female social worker from the room. Thereafter, the defendant admitted the crime. He was then left alone for 30 minutes to write up his statement. It again detailed his part in the crime. Motion to suppress was denied for absence of custodial interrogation. In affirming, the Southern District notes the same six indicia of custody as are mentioned at p. 12 of these materials. Conviction affirmed.

State v. Seibert, 93 S.W.3d 700 (Mo. banc 2002), cert. granted May 19, 2003 (U.S. Supreme Court Case No. 02-1371).

SELF INCRIMINATION – SUCCESSIVE INTERROGATIONS

Patrice Seibert was convicted of second degree murder for her part in a mobile home fire resulting in a death. During the investigation, the defendant was in custody and had clearly become the focus of the investigation. Miranda warnings were definitely required. Nonetheless, the police went ahead and questioned the defendant and got her to admit the commission of the crime. The police then left her alone for about 20 minutes and apparently came to the awkward realization that they should have given her Miranda warnings to begin with. Therefore, they went back into the interrogation room, read her the Miranda warnings, then took the same confession from her a second time.

The Supreme Court of Missouri ruled that this was clearly a violation of the spirit of the Miranda warning requirement in that the two interrogations were really but one single and continuing interrogation. The Supreme Court of Missouri observed that to rule otherwise would likely cause the police officers to simply refrain from giving Miranda warnings, take the confession, then go back and give the Miranda warnings later (knowing full well that the defendant would go ahead and say the same thing having once already spilled the beans).

This case got to the United States Supreme Court on a writ of certiorari by the State of Missouri following the adverse ruling by the Missouri Supreme Court. It was argued in early December 2003 and a decision can be expected out of the Supreme Court sometime in the spring of 2004.

A companion case is United States v. Patane, Case No. 02-1183, argued the same day as Seibert. In Patane the officer had begun to read defendant the Miranda warnings, but the defendant (apparently a wise guy of sorts) interrupted the officer stating that he already knew his rights. Defendant was, after all, a convicted felon, who was eventually charged with possession of a firearm by a felon. Because the defendant was apparently so well versed in the law, the officer never completed the warning. The rule to be learned by police officers is to simply tell the defendant to shut up and listen for a few minutes.

State v. Manley, 115 S.W.3d 398 (Mo. App. S.D. 2003)

SELF INCRIMINATION – CUSTODIAL INTERROGATION

Manley was driving on I-44. The trooper sitting on the overpass noted the Texas plates on Manley’s car and fell in behind him. Manley immediately exited I-44 for a restaurant. In the parking lot the trooper beckoned Manley and inquired as to his business. On the way to the restaurant, Manley had crossed the proverbial yellow line. The officer told Manley of the violation, asked for his driver’s license and the car rental agreement, and asked Manley to “have a seat in the patrol car." The drug dog then found two duffel bags of marijuana in the trunk of the rental car. Trial Court suppressed the evidence. Affirmed.

When the police officer asked the defendant to sit in the patrol car while checking the defendant’s license and the rental car agreement, the encounter was no longer a consensual one. Mere fact that the defendant (1) appeared to be trying to avoid the officer (2) was driving a rental car from a border state and (3) only briefly stayed in another southwest border state (Arizona) did not support the seizure of the evidence. “The trial court was correct to implicitly find that the officer’s actions were unreasonable as the circumstances indicated that he possessed merely an inchoate, unparticularized suspicion or “hunch.”

State argues that this case is controlled by State v. Lemasters , 878 S.W.2d 485 (Mo.App. 1994). There Lemasters had been invited to sit in the police car for the conversation, but the officer had not advised him of any pending violation. Nor had the officer taken control of the defendant’s driver’s license. Hence, the rule seems to be that sitting the defendant down in the police car for a “businesslike, professional and non-accusatory” conversation is permissible, but it becomes a custodial setting if the officer has advised the defendant of wrongdoing or has taken possession of the defendant’s driver’s license. When that happens, the defendant is no longer free to go on his way, and he is in custody.

State v. Farris, ____ S.W.3d ____ (Mo. App. W.D., No. 61802, January 27, 2004)

SELF INCRIMINATION – INVOCATION OF RIGHTS DOES NOT CARRY OVER TO LATER CHARGES

Defendant was a suspect in the investigation of a May, 1998 burglary. His fingerprints were found at the scene. The police invited him to the station house, where he signed a Miranda waiver. He then confessed to the burglary. In December of 1998, while in custody on the burglary charge (apparently for failure to make bond), he signed a document prepared by his public defender denominated “Defendant’s Assertion of his Fifth Amendment Rights.” Basically it said he did not wish to be subjected to further interviews or interrogation unless a waiver was signed by him and the public defender. That document was filed in the then pending burglary case, and also served on the prosecutor and the jailer. Farris finally made bond and was released from jail in May of 1999 on electronic shackling. His burglary trial loomed in the future.

Almost four months later (in September of 1999), Farris was discovered leaving the scene of a murder, and following a chase, he was apprehended by police several blocks from the murder scene. He was taken to jail where he signed a Miranda waiver, and he was thereafter interrogated about the murder case. After several hours of interrogation, he confessed to the crime.

Farris was convicted of murder in the first degree, assault in the first degree, and armed criminal action. He got two life terms and fifteen years – consecutive. Following conviction, Farris appealed claiming that the statements taken in the murder interrogation were taken in violation of the December, 1998 “Kings X” declaration.

In a case of first impression in Missouri, the Western District affirms, holding that the assertion of rights under the December 1998 document does not span across a break in custody to a later interrogation. The court noted that the electronic shackling does not constitute “custody” for purposes of this decision. While recognizing the general principle that once a defendant declares his rights under Miranda, all interrogation must cease until counsel is obtained (Edwards v. Arizona , 451 U.S. 477, 484-85 (1981), the court notes several state and federal decisions holding that the Edwards rule does not apply where there has been a break in custody. ____ S.W.3d at ____. But the court warns that this holding does not allow the police to abuse a defendant’s rights while released on bond facing charges for which he is on pre-trial release.

“And now . . .” to quote Paul Harvey, “ . . . the rest of the story.” Remember the old burglary case that had not yet gone to trial? It seems that Farris had been doing some nefarious “trial preparation.” The victim in the burglary case was also his murder victim! So much for any possible “no motive” defense.

City of St. Peters v. Hodak, ____ S.W.3d ____ (Mo. App. E.D., No. 81885, January 20, 2004)

SELF INCRIMINATION – WAIVER OF TRIAL COUNSEL AND REQUIREMENT TO WARN OF PERILS OF SELF REPRESENTATION

Defendant appeared pro se in municipal court where he was charged with (a) assault and (b) resisting arrest. Following a bench trial and conviction on the resisting arrest charge, he filed an appeal de novo and appeared before the Associate Circuit Court where he signed a waiver of counsel. The precise form he signed is not clear from the record. But there was no record made then (or at any other time) to establish that the court verbally made a specific and probing inquiry into the elements being waived, including the perils of self-representation.

A month later defendant’s case came on for trial. He represented himself in a jury trial. Again, he was convicted. He appealed claiming several points of error – the most crucial being that his waiver of counsel was insufficient.

The Eastern District makes clear that in waiver of counsel cases, it is not enough to merely obtain and insert the written waiver into the record. There must also be a record that comports with the following requirements:

“A judge must make a penetrating and comprehensive examination [of the defendant] in order to properly assess that the waiver was made knowingly and intelligently. The defendant should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Citing State v. Watson, 687 S.W.2d 667, 669 (Mo. App. E.D. 1985). Conviction affirmed in part, reversed in part, and remanded for re-trial.

This case has perhaps more impact on Associate and Circuit Judges who are hearing trials de novo than it does on a Municipal Judge who has a pro se litigant for trial. Where a stenographic record of the proceedings is being made (such as, in Circuit court – and especially in a jury trial situation), this decision requires that the court take the defendant on a paragraph by paragraph trip through the waiver form. The Municipal Judge has no court reporter, but nonetheless, should at a minimum verbalize each of the points in the waiver form, get the defendant’s assent, and then make a notation of some kind on both the waiver form and in the court’s file.

A suggested waiver form to utilize is MMACJA Form 5-02 found in Chapter 5 of the Forms Book. The Notes on Use (MMACJA 5-02-N) pertaining to that form address the same points raised by the Eastern District.

One additional interesting point: The defendant also argued that the municipal court conviction was invalid because it was not designated as a “ Judgment.” This requirement is for civil cases only – not municipal court proceedings, which are quasi-criminal in nature. Rule 37. 64 only requires that the judgment of conviction “shall set forth the plea, the verdict or findings, and the adjudication and sentence.” Although reversing the conviction on the waiver issue, the court affirmed the validity of the form of the judgment appealed from.


III. ELEMENTS OF THE OFFENSE OR PROOF OF SAME

State v. Maclin, 113 S.W. 3d 304 (Mo. App. S.D. 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – STEALING

Defendant had hidden three bottles of Crown Royal whiskey under his clothing and tried to force his way past store employees. He was charged with forcible stealing which requires the exertion of physical force on another as part of the theft. It was held that since he tried to force his way past the employees he was in fact exerting “physical force upon another person for the purpose of preventing or overcoming resistance to the taking the property or to the retention thereof immediately after the taking.”

State v. Winsor, 110 S.W.3d 882 (Mo. App. W.D. 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – KNOWING POSSESSION

Defendant was driving and he was pulled over for traffic violations. A computer check revealed that there were outstanding warrants for his arrest. He was arrested and thereafter transported to jail while hiding controlled substances on his person. Although he was transported to jail by other persons and against his will, it was held that his possession of the contraband was with knowledge. He maintained control of the contraband even after being told that bringing a controlled substance into jail was a felony and he continued in possession of the contraband, even after being given a chance to abandon it.

State v. Langdon, 110 S.W.3d 807 (Mo. banc 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – RECEIVING STOLEN PROPERTY

Defendant was charged with, and convicted of, receipt of stolen property. The property was a pistol which was found in the defendant’s dresser drawer. Defendant had no explanation for its presence. The finding of the weapon occurred soon after the theft. While unexplained possession shortly after a theft is sometimes sufficient to establish that the defendant knew he was possessing stolen property and was intending to keep it from its true owners, the court looked at the evidence here as being insufficient. The court stated that possession of a gun without having applied locally for a permit is not the same as other circumstances permitting an inference of knowing possession of stolen property. While it may represent some evidence of knowledge of the stolen nature of the property, mere failure to seek a permit is not enough, either alone or even combined with unexplained possession of recently stolen property - to make a submissible case for receipt of stolen property. Conviction reversed.

State v. Charlton, 114 S.W.3d 378 (Mo. App. S.D. 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – KNOWING POSSESSION OF CONTRABAND

Methamphetamine conviction. A police officer was in civilian clothes, off duty, campaigning for sheriff on a door to door basis. He went to defendant’s house and left some campaign literature. While in the front yard, he saw marijuana plants growing in the defendant’s flower bed. He went to the sheriff’s office, and he and the deputies returned to the scene. Defendant was arrested, and a search warrant was obtained. A search of the house revealed a meth lab and significant quantities of paraphernalia. Defendant was convicted of manufacturing meth. He appealed on several points. Affirmed.

This case establishes several interesting points:

In an interesting footnote, the Southern District wondered why there had been no fingerprint analysis done on any of the incriminating articles found in the search. Also, there were handwritten notes and meth “cookbooks” with the defendant’s wife’s initials on them. The court also noted that she had been the only one arrested in possession of contraband . Pretty troubling stuff in a joint possession of premises case. Nonetheless, defendant’s conviction was upheld because the standard of review is whether there was sufficient evidence to render the outcome “ plausible,” even if the reviewing court would have weighed the evidence differently. See, 114 S.W.3d at 386, footnote 2.

State v. Kuhn, 115 S.W.3d 845 (Mo. App. E.D. 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – CHILD ENDANGERMENT

Defendant was convicted of child endangerment. Defendant was apparently a methamphetamine cook. The evidence was that there were no items connected with the manufacture of methamphetamine lying in the open or where the child was found. It was held that the risk to the child’s health because of methamphetamine construction items was potential, not actual. In this case the jury acquitted the defendant on the charge of possession of methamphetamine and possession of ephedrine with intent to manufacture meth, which crimes would have required knowledge of the presence of the drug or the ingredients thereof. However, the jury convicted the defendant on the child endangerment charge which also requires knowledge of the very same elements. Hence, the conviction was reversed.

Comment: Don’t meth labs sometimes explode or catch fire? At least, certainly far more often than the typical, law-abiding home? Wouldn’t the higher degree of likelihood of such an untoward event put a child who lives there in danger? Maybe too speculative.

State v. Belton, 108 S.W.3d 171 (Mo. App. W.D. 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME - RESISTING ARREST; VIOLENCE NOT REQUIRED

Here the defendant was a passenger in a car driven by his wife. They were involved in a vehicular chase by the police. During the course of the chase defendant threw bags of marijuana from the car. It was held that such evidence would support a finding of possession. Also, after the stop was made the defendant was ordered out of the car and handcuffs were attached. While the officer leaned into the car to speak to the wife (the driver), defendant sat back down in the passenger seat. Thereafter he refused to budge despite some tugging by the police officer. The appeals court held that “The jury could have reasonably concluded that defendant used physical force in resisting the officer’s arrest by exerting the strength and power of his bodily muscles to overcome the attempts to pull him from the car.”

It would appear that this case might define a whole new form of resisting arrest. What comes to mind would be the peace protesters who need to be forcibly carried by police officers to the paddy wagon. Under the teaching of the Belton case, could such “passive” protesters be charged with resisting arrest? Maybe . . . maybe not. But in this case, while the officer was pulling on the defendant, defendant’s wife drove away, striking the officer and knocking him into the ditch! Assuming she had not done so, and if the officer had succeeded in getting the defendant out on the first try, it is at least open to debate as to whether that “passive” resistance would qualify as “resisting arrest.”

State v. Garner, 103 S.W.3d 866 (Mo. App. S.D. 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME - SEXUAL ASSAULT; COERCION DOES NOT REQUIRE PHYSICAL FORCE

Defendant was a babysitter whom the children liked and respected. He was the stepfather of the victims’ dad. He had often looked after the children because the parents worked. Defendant persuaded the children to comply with his desires. In doing so, his threat was “subtle and psychological but no less forceful than if defendant had used physical violence.” Thus the element of coercion was present. Also, the defendant’s statement given at a preliminary hearing was admissible as an admission against interest and constituted evidence of consciousness of guilt. At the preliminary hearing the defendant had admitted being present with the victim on the night of the offense, but did not admit any of the sexual contact alleged by the state. Appellate court states that admissions by a defendant are not limited to full blown confessions. Rather, admitting mere presence at the scene of the crime can give rise to an inference of guilt.

Comment: But consider this. The “scene of the crime” was not a bank or convenience store that had recently been robbed. Admitting one’s presence there would seem relevant. But the “scene of the crime” in this case was the defendant’s own residence. He belonged there. Although not clearly stated in the opinion, it appears from the text that “overnighters” at Grandpa’s place were not unusual. So what inference of guilt can be drawn from an admission by him of this relatively common occurrence?

State v. Bristol, 98 S.W.3d 107 (Mo. App. W.D. 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – POSSESSION OF CONTRABAND

The defendant was driving someone else’s car and there were two other individuals in the car with him. Defendant had borrowed the car the day before and was to return it the day of the arrest. Defendant was pulled over for traffic violations. Officers asked everyone for ID. No one had any. Defendant didn’t have a driver’s license. The two other people in the car gave false names, and when their true identities were ascertained, outstanding warrants resulted in their arrest. Defendant was arrested for driving while suspended.

Subsequent to the arrest, the car was searched and drugs were found. Defendant was charged with both possession and driving while suspended. The Court of Appeals held that the facts established only that the defendant was present where the controlled substance was found but did not establish conscious possession. Defendant was not in exclusive control of the car inasmuch as he was not the owner, and had been in possession of it for less than 24 hours. However, the driving record did establish a conscious decision to drive while suspended. Conviction for possession reversed. Conviction for DWS affirmed.

[Note: This is a classic case of winning the battle but losing the war. When the case was tried, the jury had found Defendant guilty of the possession charge, and the court assessed a fine of $250.00 plus a 90-day jail sentence, to be served concurrently with the one year sentence on the DWS charge. So defendant is still doing the year on the DWS!]

State v. Sellars, 98 S.W.3d 124 (Mo. App. W.D. 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME - ATTEMPT

The defendant was convicted of attempt to possess methamphetamine. It was held that a substantial step in attempting to possess methamphetamine is shown by the defendant having gone to a house where the meth was made, waiting for it to be finished, and needing it to satisfy his addiction.

Discussion point here is to inquire as to how many cities have an attempt ordinance. And what about a conspiracy ordinance? For those cities that do not have such ordinance provisions, and may want to present such ordinances to their City Council, a sample of the recently re-codified attempt and conspiracy ordinances of one Missouri municipality now follows:

SECTION 210.035: ATTEMPT

A. A person is guilty of attempt to commit an ordinance violation when, with the purpose of committing the ordinance violation, he/she does any act which is a substantial step toward the commission of the ordinance violation. A " substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the ordinance violation.

B. It is no defense to a prosecution under this Section that the ordinance violation attempted was, under the actual attendant circumstances, factually or legally impossible of commission if such ordinance violation could have been committed had the attendant circumstances been as the actor believed them to be.

C. Unless otherwise provided, a person who has been convicted of an attempt to commit an ordinance violation may be sentenced to pay a fine which does not exceed three hundred dollars ($300.00) or serve a period of imprisonment which shall not exceed fifteen (15) days, or by both such fine and imprisonment.

SECTION 210.040: CONSPIRACY

A. A person is guilty of conspiracy with another person or persons to commit an ordinance violation if, with the purpose of promoting or facilitating its commission, he/she agrees with such other person or persons that they or one (1) or more of them will engage in conduct which constitutes such ordinance violation.

B. If a person guilty of conspiracy knows that a person with whom he/she conspires to commit an ordinance violation has conspired with another person or persons to commit the same ordinance violation, he/she is guilty of conspiring with such other person or persons to commit such ordinance violation, whether or not he/she knows their identity.

C. If a person conspires to commit a number of ordinance violations, he/she is guilty of only one (1) conspiracy so long as such multiple ordinance violations are the object of the same agreement.

D. No person may be convicted of conspiracy to commit an ordinance violation unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him/her or by a person with whom he/she conspired.

E. Exceptions.

1. No one shall be convicted of conspiracy if, after conspiring to commit the ordinance violation, he/she prevented the accomplishment of the objectives of the conspiracy under circumstances manifesting a renunciation of his/her criminal purpose.

2. The defendant shall have the burden of injecting the issue of renunciation of criminal purpose under Subsection (E)(1) of this Section.

F. For the purpose of time limitations on prosecutions:

1. Conspiracy is a continuing course of conduct which terminates when the ordinance violation or ordinance violations which are its object are committed or the agreement that they be committed is abandoned by the defendant and by those with whom he/she conspired.

2. If an individual abandons the agreement, the conspiracy is terminated as to him/her only if he/she advises those with whom he/she has conspired of his/her abandonment or he/she informs the law enforcement authorities of the existence of the conspiracy and of his/her participation in it.

G. A person may not be charged, convicted or sentenced on the basis of the same course of conduct of both the actual commission of an ordinance violation and a conspiracy to commit that ordinance violation.

H. Unless otherwise provided, a person who has been convicted of conspiracy to commit an ordinance violation may be sentenced to pay a fine which does not exceed five hundred dollars ($500.00) or serve a period of imprisonment which shall not exceed fifteen (15) days, or by both such fine and imprisonment.

State v. Willis, 97 S.W.3d 548 (Mo. App. W.D. 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – DRIVING WHILE SUSPENDED

Defendant was charged with, inter alia , involuntary manslaughter and driving while suspended. The DWS charge was bench tried. At that trial, the state adduced evidence (by way of a certified record) that Defendant’s driving privileges were revoked on the day in question. But oddly, the prosecutor proved nothing else. Defendant presented no evidence of a reinstatement. The court found Defendant guilty and he appeals.

Held: Conviction reversed and sentence on that charge vacated There was no proof that Defendant was the one who was doing the driving! Conviction on that record was plain error.

State v. Blocker, _____ S.W.3d _____ (Mo. App. S.D., No. 25003, October 28, 2003)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – POSSESSION OF CONTROLLED SUBSTANCE

Defendant was charged with possession of a controlled substance. He filed a motion for continuance because of an unavailable witness, and when that was overruled he offered the affidavit of the witness, which was also denied. The witness would have testified that a member of the defendant’s household had a prescription for the drug in question, which drug was the subject of the charges against the defendant. It was held that the trial court did not err in denying that evidence because the statutes do not allow the defendant to obtain a controlled substance from a household member. Query: Could the household member have been charged with delivery of a controlled substance? Perhaps so. At least if the household member had voluntarily given it to the defendant (as opposed to, say, the defendant having stolen it from the household member). Note: This case was transferred to the Supreme Court on January 7, 2004. Case No. SC 85704.


State v. Chavez, ___ _ S.W.3d ____ (Mo. App. W.D., No. 62048, January 30, 2004)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – POSSESSION OF CONTRABAND

Chavez was carrying a white plastic bag when he met up with his friend, Faulkner. He told Faulkner he had “a whole lot of stuff” and that they “needed to get out of Northtown.” They departed in Faulkner’s car and they were observed by police. Because of Faulkner’ ;s suspicious eye contact, a computer check was run and Faulkner had a warrant out. After the traffic stop, Faulkner was arrested on the warrant. Another officer checked out Chavez, but he had no warrants, so Chavez was released. He got out of the car, closed the door, and departed the scene on foot, leaving his “stuff” behind in the car (between the passenger seat and the door). It was found when later Faulkner consented a search of his vehicle.

Chavez was charged with possession of the “stuff” and was convicted. He appealed, with his principal point being the claimed failure of the evidence to establish that he was in possession of the contraband. Affirmed. The Western District notes that the defendant’s statement to Faulkner indicated that he was in possession of drugs, and the location of the drugs where he was sitting in the car, supported the conviction. Proof required for a possession conviction is (a) that the defendant consciously and intentionally possessed the contraband, either actually or constructively , and (b) the defendant’s awareness of the presence and nature of the substance. Citing State v. Johnson , 81 S.W.3d 212, 215 (Mo. App. S.D. 2002). Circumstantial evidence, and reasonable inferences can support proof of possession. Citing State v. Fox , 882 S.W.2d 214, 217 (Mo. App. W.D. 1994).

Joint possession of automobiles present difficult (but not insurmountable, hurdles for the prosecution). State v. Rollett , 80 S.W.3d 514, 519 (Mo. App. W.D. 2002). In those cases, there must be additional evidence connecting the defendant to the illegal substance. State v. Johnson , 81 S.W.2d at 215. Mere possession of the automobile is not enough. (Referring to State v. Bristol , cited at p. 22 of these materials).

But while the conviction was affirmed, the court notes that certain other facts relied upon by the State did not tend to establish possession. For example, the mere facts that (a) defendant closed the car door after he got out, and (b) walked away after the officer told him he could do so, were not indicia of guilt. But since there was other evidence relied on by the State (not least of which was Faulkner’s testimony), the conviction stood.

State v. Shipp, ____ S.W.3d ____ (Mo. App. S.D., No. 25530, January 14, 2004)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – ASSAULT AND RESISTING ARREST

Stephen Shipp might best described as something of a “loose cannon.” He had been at some friends’ place, showing off a loaded .22 cal. pistol, grousing about problems he was having with his girlfriend and “another man,” and generally acting in an agitated manner. Unbeknownst to Shipp, one of his friends (May) took a look at the gun, stepped outside, unloaded the gun, then went back inside and returned the gun to Shipp.

Shipp thereafter went to town to confront his girlfriend and the “other man.” (a fellow named Whitaker). While pulling into the parking lot of the tavern, Shipp turned his truck over in the driveway. Shipp climbed out of the wreckage and went into the saloon, inexplicably accusing Whitaker of rolling his truck! This came as quite a surprise to poor Whitaker, who had been minding his own business playing pool. When Whitaker denied Shipp’s allegation of reckless driving, he got an even greater surprise when Shipp grabbed Whitaker by the throat, placed the gun against Whitaker’s head, and squeezed the trigger. Fortunately for all concerned (especially Whitaker), the empty weapon did not fire.

A struggle ensued, the police were called, and order was finally restored. During the process, defendant had jerked his hand away from the deputy who was trying to handcuff the defendant.

Shipp was convicted of both second degree assault and resisting arrest. The resisting arrest conviction was easily sustained by the evidence that defendant had forcibly tried to avoid the application of handcuffs. Compare: State v. Belton, cited at page 21 of these materials.

As for the assault conviction, the defendant argued that since second degree assault requires proof that the defendant intended to cause physical injury, there could be no conviction because the State failed to prove that Shipp believed the gun was loaded. The court found that it was reasonable for the jury to have concluded from the evidence that Shipp was unaware of May’s secretive, life saving precaution earlier in the evening.

Moreover, the jury could properly disregard that portion of May’s testimony to the effect that Shipp had made the self-serving declaration a short time after the fracas that he had “seen May empty the revolver on the evening” in question and thus, he [Shipp] at all times knew the gun was unloaded. Shipp’s claim would seem to be revisionist history of the most ambitious sort.


IV. EVIDENCE

State v. Gonzalez, 108 S.W.3d 209 (Mo. App. S.D. 2003)

EVIDENCE – POSSESSION AND INTENT TO DISTRIBUTE ESTABLISHED BY THE EVIDENCE

Gonzalez was one of several people living in a multi-bedroom apartment. During a search of the premises, the police found dope and paraphernalia in virtually every room, including that of the defendant. He was convicted of possession with intent to distribute. He appeals. Affirmed.

Here the state showed that the defendant’s possession of marijuana in a jointly controlled area was established by showing that the defendant had easy access to large quantities of marijuana which were co-mingled with his personal property. The court stated that “the sheer quantity of the marijuana in defendant’s room and the baggies used to package a portion thereof were sufficient to sustain the conviction and sentence” for intent to distribute. Because the police found dope, scales, baggies, papers, and every other type of necessary appliance all throughout the apartment, the opinion describes the apartment as “a marijuana production and distribution operation.”

This case contains a very good exposition on the several principles to be considered in these multi-party joint possession of premises cases. 108 S.W.3d at 211-12.

State v. Robinson, 111 S.W.3d 510 (Mo. App. S.D. 2003)

EVIDENCE – HEARSAY PREJUDICIAL WITHOUT LIMITING INSTRUCTION

Here the state introduced detailed testimony of a confidential informant’s tip that the defendant was storing drugs at his girlfriend’s house. The hearsay that was offered and admitted was far more than was necessary to explain police conduct or provide continuity. The testimony was regarded as not merely cumulative, and the remaining evidence was not particularly strong. The jury actually made an inquiry as to the informant’s statement during deliberations, and the appellate court regarded this as showing prejudice. The trial court had failed to admonish the jury that the testimony was not useable for the truth of the matter asserted but rather, only to explain why the police did what they did.

The rule of law here is that hearsay testimony is not always inadmissible – rather, only if it is offered for the truth of the matter asserted. It can be admitted (in small doses) to explain why the officer took the action he took, i.e., “I got a call from dispatch about a robbery in progress, so I responded immediately to 123 Main Street.” But in this case, there was an overdose! The hearsay testimony went well beyond merely explaining conduct, and it was not the subject of a limiting instruction. Hence, the conviction was reversed and the case remanded for a new trial.

State v. Barriner, 111 S.W.3d 396 (Mo. banc 2003)

EVIDENCE – POTENTIALLY EXCULPATORY EVIDENCE

Barriner is a persistent fellow. But he certainly has his reasons. In 1999 he was convicted on two counts of first degree murder and sentenced to death. In 2000 the Supreme Court reversed and remanded. In 2002 he was re-tried and again convicted. Same sentence. Case again reversed and remanded.

During Barriner’s second trial, defense counsel attempted to cross-examine the state’s forensic expert to establish that hairs found on the thigh of one of the victims and in the knotted rope binding the other victim did not match those of the defendant. The state admitted the truth of those facts. Trial court refused to allow that line of questioning. Supreme Court ruled there was an abuse of trial court discretion – hence, error. The ruling was that this particular evidence was far more than a mere claim that “ Somebody else must have done it.” The presence of hair at the heart of the crime scene (which did not match that of the defendant) was regarded as critical exculpatory evidence.

Given the error, was it prejudicial? Barriner had actually confessed to having tied up the victims as part of a robbery. But he had denied the sexual assault and the murders. The obvious defense theory was that someone else came upon the scene after Barriner had departed, and had committed the murders. The confession was neither videotaped nor recorded. It was only witnessed by a police officer who testified at trial. All other evidence of the murder was circumstantial. Conspicuously absent were forensic traces of Barriner’s presence at the time of the murder, i.e., his fingerprints, footprints, semen or hair. Because the evidence of guilt was not overwhelming, the prejudicial effect of the erroneous trial court ruling could not be discounted. The evidence offered was logically relevant in that it could indicate direct connection between the victims and persons other than the defendant at the crime scene.

DISSENT: The dissent argues that the mere presence of hair from someone other than the defendant really proves nothing. In fact, it might have belonged to the victims themselves, or even to the family dog . It was not as if the hair sample was definitely shown to have been left by a stranger . It was never tested at all! So to allow it as probative on any defense claim that “Somebody else did it” would have been confusing because of the absence any real relevance. To be probative it should have also ruled out the victims, and even the family dog before giving rise to the argument that someone else was there.

The dissent also takes the majority to task for concluding that there was no other compelling evidence of Barriner’s guilt. The dissent lists considerable circumstantial evidence of guilt.

State v. Turner, 94 S.W.3d 464 (Mo. App. S.D. 2003)

EVIDENCE – IMPEACHMENT

Here the defendant testified in his own behalf in a criminal matter and his credibility was impeached by reason of a prior conviction for non-support. The defense objections to this line were slow in coming – twice the answers had already been given. The holding is that where an objection comes after the answer has been given, it is too late. Citing State v. Delgado , 774 S.W.2d 549, 551 (Mo. App. S.D. 1989). If there is no immediate request to strike, issues not properly preserved at trial may be considered only on the basis of plain error. State v. Morrow , 968 S.W.2d 100, 106 (Mo. banc 1998).


State v. Weekley, 92 S.W.3d 327 (Mo. App. S.D. 2002)

EVIDENCE – OPINION STATEMENTS AS TO VALUE

Defendant was convicted of receiving or possessing stolen property of a value in excess of $150.00. At trial there were various opinions on the value of the stolen items including opinions offered by the owners. Such testimony is proper. State v. Petalino , 890 S.W.2d 679, 683 (Mo. App. 1994). Such opinions included statements as to value at the time and place of the crime. It was held that such opinions of value are sufficient to submit to the jury, even though they are lay opinions (as opposed to expert opinion). State v. Gardner, 955 S.W.2d 819, 823 (Mo. App. 1997).

To apply this case to municipal court cases, we know that most cities have a “leaving the scene of an accident” ordinance. Most require a certain degree of property damage, but perhaps some do not. Where there is a financial threshold requirement, these cases suggest that almost “anything goes” as to valuation. Trial courts have broad discretion in the admission or exclusion of evidence. State v. Mathews , 33 S.W.3d 658, 660 (Mo. App. 2000).

State v. Bode , ____ S.W.3d ____ (Mo. App. W.D., No. 62382, February 3, 2004)

EVIDENCE – BROKEN CHAIN OF CUSTODY

Bode’s car was stopped by a state trooper. Bode decided to flee, so after a few moments he sped away from the scene. The real problem was that in so doing, he dragged the trooper a good distance. Bode was tried and convicted for first degree assault on a law enforcement officer, armed criminal action, resisting arrest, and for possession of contraband found in his car. At trial the State offered the contraband but could not prove an uninterrupted chain of custody of the paraphernalia between seizure and testing. That part was reversed and remanded. But kind of a hollow victory. As in State v. Bristol , cited at p. 22 of these materials, Bode’s real incarceration time was on the other three (and far more serious) charges. Again, another case illustrating the concept of winning the battle, but losing the war.

Friedrich v. Director of Revenue , ____ S.W.3d ____ (Mo. App. W.D., No. 62133, January 20, 2004)

EVIDENCE – AUTHENTICATION OF OUT OF STATE DWI CONVICTION

Friedrich had multiple alcohol related contacts, and received notice of an impending one year revocation. Also, the Director instituted ten year revocation proceedings. Friedrich filed a petition for review as to the one year revocation.

At the hearing, the Director offered Friedrich’s certified driving record showing two Missouri DWI convictions. The record also revealed an Iowa DWI conviction, thereby subjecting Friedrich to a ten year denial. Defense counsel in post trial briefing argued that the Iowa conviction could not be taken into account since the record was not in compliance with Section 490.130 (the basic evidence statute pertaining to the requirement of giving full faith and credit to certified copies of judgments from other states.) The trial court agreed and excluded the Iowa record of conviction.

On appeal, the Western District reversed the trial court’s refusal to admit the Iowa evidence stating that Section 490.130 is not the only way to get the record into evidence. Section 302.312(1) is “expressly applicable to Department of Revenue records” and therefore it applies in DWI proceedings. The court cites Thomas v. Director of Revenue , 74 S.W.3d 276, 278-79 (Mo. App. 2002) standing for the proposition that out-of-state records duly filed with the Department of Revenue and properly certified by the sister state are admissible under Section 302.312(1).

Western District also rejects trial court’s reasoning that the record was deficient for not indicating that it was an attorney judge and that a proper waiver was obtained. Reason: Because the one year revocation statute (Section 302.304) does not require an attorney judge or waiver of counsel, whereas a ten year denial proceeding under Section 302.060(9) does. But even at that, this evidence was not deficient because the Iowa record clearly indicated that the Iowa conviction was a state conviction, not a municipal conviction, so the attorney judge and waiver rules were inapplicable in any event. Reversed and remanded.

State v. Powers , ____ S.W.3d ____ (Mo. App. E.D., No. 82209, February 17, 2004)

EVIDENCE – ADMISSION OF SURVEILLANCE VIDEOTAPE

Defendant was convicted of stealing, third offense. She got nine months. On appeal, she raised several evidentiary points. She had gone into a pharmacy by properly accessing the entrance-only door. She helped herself to several items, collecting them in an empty beer carton. When the beer carton was full of goods, she left the store by departing through the entrance-only door (which had been thoughtfully triggered for her by her son who tripped the electric eye from outdoors). Her only problem was this. Her entire visit was caught on surveillance cameras which made a videotape of the action. The tape was sort of a 16 track multiplex format (from the 16 surveillance cameras in the store) and in its normal condition, it would not play on a normal VCR. During her time in the pharmacy, defendant had attracted the attention of the store detective, who left the security office, then observed and followed her on the sales floor while the cameras rolled.

At trial, both the multiplex tape, and a second tape which had been dubbed to show only the defendant’s actions, were offered and admitted. The 16 track tape was not shown to the jury, but the dubbed version was. The store detective testified that he had viewed both tapes, and that they both truly and accurately reflected the events he had personally observed on the day in question.

In affirming, the Eastern District notes that the same principles used in consideration of the admissibility of regular photographs are to be used in considering the admissibility of videotape evidence. “The party offering the videotape must show that it is an accurate representation of what it purports to show and foundation may be established through the testimony of any witness who is familiar with the subject matter of the tape and competent to testify from personal observation.” (quoting Phiropoulas v. Bi-State Development Agency , 908 S.W.2d 712, 714 (Mo. App. 1995). Defendant’s other points merited no extended discussion.


V. D.W.I.

State v. Ball, 113 S.W.3d 677 (Mo. App. S.D. 2003)

DWI – PROOF OF INTOXICATION

Defendant was convicted of DWI and on appeal he argued that there was insufficient evidence upon which the trial court could have found him guilty. He argued that he overcame the rebuttable presumption of intoxication created by his .143 result on the breathalyzer, because he had failed only one field sobriety test and he had passed the other two. He further argues that his failure on the one legged stand (he claimed he had a bad ankle but the officer told him to use the other leg) was explainable. Conviction affirmed. The rule apparently announced is that even if you do well on the field sobriety tests, you probably will not overcome the presumption of intoxication presented by a high BAC reading.

State v. Smith, _____ S.W.3d _____ (Mo. App. E.D., No. 82604, July 22, 2003)

DWI – IMPLIED CONSENT LAW

Carol Smith was arrested for DWI and she refused to give a blood, breath or urine test. The deputy who had effected the arrest applied for a search warrant for the defendant’s blood and urine on the ground that they contained evidence of driving while intoxicated. The circuit court issued such a warrant and it was executed. The paramedic drew blood and Smith was thereafter charged with DWI based on the blood alcohol content.

Defendant moved to suppress the blood sample on the ground that the warrant was prohibited by Section 577.041 and the trial court granted the motion. The trial court relied on the plain language of the implied consent law, ruling that the legislature intended to limit the state’s right to seek a search warrant because the statute provides that, after refusal to consent to a chemical test, “none shall be given.” The state took an appeal.

In reversing the trial court ruling, the appeals court held that, “Because the Missouri implied consent law is directed only to warrantless tests authorized by law enforcement officers, it does not restrict the state’s ability to apply for a search warrant to obtain evidence in criminal cases pursuant to other statutes.” Note: This case was transferred to the Supreme Court on October 28, 2003. Case No. 85595. It is set for oral argument on April 8, 2004.

Garriott v. Director of Revenue , ____ S.W.3d ____ (Mo. App. W.D., No. 62710, January 27, 2004)

DWI – EXCLUSIONARY RULE DOES NOT APPLY IN CIVIL ACTIONS

Director revoked Garriott’s driving privileges under Section 577.041 for refusing a breathalyzer examination. Garriott had been rear-ended at an intersection, and there happened to be a trooper nearby who witnessed the wreck. But as the trooper approached the accident scene, Garriott drove away. The trooper followed, (1) being concerned about Garriott’s well being, and (2) harboring a justifiable curiosity as to why Garriott departed the scene. After the stop, Garriott offered the altogether implausible explanation that the reason he left the scene was that his truck was sort of a junker, and that he was not concerned about a little more damage! The patent transparency of this claim was exacerbated by Garriott’s watery, bloodshot eyes and the heavy bouquet of alcoholic beverage exuded by Garriott. The trooper ordered Garriott out of the vehicle, “formed the opinion” that Garriott was intoxicated, and effected an arrest. (The opinion does not specify the basis of the trooper’s opinion – nothing said about PBT, field sobriety tests, or anything else).

At trial Garriott challenged only the validity of the arrest, stipulating to (1) the existence of reasonable grounds to believe he was intoxicated, and (2) to his refusal. The trial court found the arrest unlawful, and therefore suppressed the refusal evidence. The trial court concluded that Garriott was not validly under arrest at the time of the refusal because the trooper “ had no reason to stop him.” Query: How about “leaving the scene of an accident” for starters? In any event, the Director took an appeal. Reversed.

A revocation action by the Director is a civil action. When the revocation action is based on a refusal to give a breath sample, the revocation will stand even if there is a constitutional infirmity in the traffic stop which would have precluded admission of the evidence in a criminal proceeding. Citing Supreme Court decision in Hinnah v. Director of Revenue , 77 S.W.3d 616, 620 (Mo. banc 2002) and Riche v. Director of Revenue , 987 S.W.2d 331, 334-35 (Mo. banc 1999). Same rule applies whether it is a revocation under Section 577.041 or Section 302.505.


VI. CRIMINAL PROCEDURE

State v. Wolfe, 103 S.W.3d 915 (Mo. App. W.D. 2003)

CRIMINAL PROCEDURE – VERDICT IN DEFENDANT’S ABSENCE

Defendant was tried by the Court on the Class D felony charge of sexual misconduct. The Court took the case under advisement to review the evidence. The following day, the Court found the defendant guilty, concluding that he was subject to enhancement because of a prior felony conviction. The Court ordered a pre-sentence investigation. This was all done by way of a written docket entry in the absence of the defendant.

The defendant was not told of the finding, but was later notified of the pre-sentence investigation and the sentencing date. At the sentencing, defendant was asked if he had any questions and he replied in the negative. Defendant at that time raised no objection to the matter of the verdict having been entered by the Court by way of a docket entry in the defendant’s absence. Defendant was sentenced to five years, and he now appeals saying that the verdict or finding of guilty should have been rendered in open court in his presence.

The conviction and sentence were affirmed. The appeals court found that there was no plain error or manifest injustice when the verdict was entered in the defendant's absence because it was a bench tried case. The Western District also says that even if the defendant's argument were meritorious, the remedy would be a remand for the purpose of the Court's announcement of the guilty finding in the defendant's presence and a re-sentencing to follow. The Court states, "We should not issue a remand where it serves no useful purpose."

But actions such as this when taken in the absence of the defendant would appear to be dangerous ground on which to tread. It is true that many municipal judges from time to time take cases under advisement following a bench trial, sometimes to consider a legal point raised during a trial. And it is probable that most municipal judges eventually simply write a letter to the prosecutor and defense counsel setting forth the decision (and probably even imposing sentence). Because of the specific facts in Wolfe , the appeals court gave such procedure its blessing. But certainly the better practice would be to call the defendant back to court to hear the decision and accept sentence personally. The defendant’s absence is probably permissible if consent of all parties is clearly on the record. See Rule 37.57.

State ex rel. Beaird v. Del Muro, 98 S.W.3d 902 (Mo. App. W.D. 2003)

CRIMINAL PROCEDURE – PROBATION REVOCATION HEARING

After written notice to the defendant of the two reasons for probation revocation, and after actual notice of an additional reason was given at the hearing, the trial court based its order of revocation on two other grounds. In defendant’s action for a writ of habeas corpus the defendant was released on bond pending further proceedings. The appeals court affirmed the release of the defendant because the state failed to show that lack of notice was harmless.

The rule to be followed by a trial judge is this: Don’t revoke anybody’s probation for any reason other than those set forth in the notice of hearing. Court of Appeals stated: “In a probation revocation proceeding, one of the minimum requirements of due process is that the probationer receive written notice of the alleged probation violations.” (emphasis added)


State v. Pressley, 94 S.W.3d 449 (Mo. App. E.D. 2003)

CRIMINAL PROCEDURE – NO APPEAL OF PROBATION TERMS

Here the trial court had entered an order sustaining defendant’s motion for early termination of the defendant’s probation. The next day, the trial court set the order aside and scheduled a hearing for later. At the hearing, the motion was denied. The defendant then filed a motion to reinstate the earlier order terminating her probation (which had stood for only one day). Denied. The defendant appealed the denial of the second motion. Appeals court held that because the issue of probation was not part of her sentence, there is no appeal from an order denying its early termination. State v. Williams , 871 S.W.2d 450, 452 (Mo. banc 1994). In a footnote, the court indicated that the trial court may have lost jurisdiction of the case when the order terminating probation was entered. It was observed that the defendant might yet have a remedy by way of a writ. See, 94 S.W.3d at 450, footnote 1.

State v. Williams, 120 S.W.3d 294 (Mo. App. W.D. 2003)

CRIMINAL PROCEDURE – DETAINERS

This is a case involving the Uniform Mandatory Disposition of Detainers Law (UMDDL). Section 217.485 et seq ., R.S. Mo. That law allows an incarcerated defendant who has a detainer lodged against him to write to the prosecutor and the appropriate court and demand that he be brought to trial within 180 days after the date of delivery of his written demand. The defendant in Williams failed to show that he was entitled to the protections under the act because he did not show that he addressed a request for final disposition of any untried indictment, information, or complaint to the prosecuting attorney and the appropriate court. It was held that the delay in processing the detainer did not prejudice the defendant, presumptively or actually.

Although some defendants have so contended, the UMDDL has no direct applicability to municipal court actions. For one thing, municipal court cases are quasi-criminal in nature, not criminal. The research tends to suggest that the UMDDL applies only to misdemeanors and felonies. In addition, the “appropriate court” to which the request for final disposition is to be addressed is defined in Section 217.495 to exclude municipal (and probate) courts. We know that many times municipal courts get letters from incarcerated defendants asking to have their municipal case resolved on a “time served” basis. The municipal court, at its option, may grant the defendant’s request for “time served,” or may leave the detainer in place. Either way, such a letter does not constitute a proper request for protection under the UMDDL since the law is inapplicable to municipal courts in any event.


State v. Fizer, 119 S.W.3d 640 (Mo. App. W.D. 2003)

CRIMINAL PROCEDURE – UNAUTHORIZED SENTENCE

Defendant was charged with and convicted of stealing and possession of drug paraphernalia. At the sentencing hearing, the court sentenced Defendant to one year on the possession charge, but the written judgment said the sentence was 10 years for that offense (maximum sentence for that offense is one year.)

On appeal, Defendant did not contest his conviction, only the 10 year sentence on the possession charge. The case was remanded for entry of a nunc pro tunc judgment to correct the clerical error as to the sentence so that Defendant was sentenced to one year only on the possession charge.

Embarrassing inquiry - Why no objection from defense counsel when he received the written order from the court and before his client was sent to jail - and why didn’t the court or the prosecutor know what the maximum sentence was? At any rate, this case represents perhaps a good reminder for all municipal judges to review anew their maximum fine and incarceration limits. It no doubt varies from jurisdiction to jurisdiction.

Interesting note - Fizer was no stranger to Pettis County’s criminal justice system. He had been there before. See, State v. Fizer , 772 S.W.2d 6 (Mo. App. W.D. 1989). Maybe even he should have known?

State v. Thomas, 118 S.W.3d 686 (Mo. App. W.D. 2003)

CRIMINAL PROCEDURE – RIGHT TO CONFRONT WITNESSES

During the defendant’s second degree murder trial in Jackson County, defense counsel sought to cross examine two of the state’s witnesses as to their possible motivation to lie. Both witnesses had criminal charges currently pending against them in Jackson County. The trial court denied counsel the opportunity to cross-examine as to those charges.

On appeal the Western District holds that the defendant need only show that the witness might merely perceive a possible benefit from testifying favorably to the state, and that there is no need to show the existence of an actual deal with the prosecutor. Held: The trial court abused its discretion in denying defense counsel the opportunity to cross-examine as to pending criminal charges brought by the same prosecutor. The court also noted that the other evidence of guilt in the case was not particularly overwhelming. Reversed and remanded.

Query: But what if the other evidence of guilt was overwhelming? Like, for example, a confession – or five eyewitnesses – or indisputable forensic evidence? Might the appeals court have affirmed even in spite of the trial court’s erroneous refusal to allow the “other charges pending” inquiry? Perhaps so.

State v. Rippee, 118 S.W.3d 682 (Mo. App. S.D. 2003)

CRIMINAL PROCEDURE – DISCOVERY; LATE DISCLOSURE OF EVIDENCE

The state had failed to disclose documents in response to the defendant’s two pre-trial discovery motions. The trial court denied defendant’s motion in limine seeking to prohibit the introduction of the evidence. Following denial of the motion to strike the evidence, counsel for the defendant failed to ask the court for any kind of continuance in order to investigate the authenticity of the evidence or to adjust his trial strategy. Defendant was convicted and on appeal the appellate court affirmed because the defendant’s attorney failed to ask for the lesser remedy of a continuance.

State v. Blalock, 119 S.W.3d 185 (Mo. App. E.D. 2003)

CRIMINAL PROCEDURE – NO APPEAL FROM SUSPENDED IMPOSITION OF SENTENCE

Appellate court has no jurisdiction to hear an appeal from a suspended imposition of sentence because a suspended imposition of sentence is not a final judgment. In criminal cases, a judgment is final for purposes of appeal when the judgment and sentence are entered. State v. Ham , 91 S.W.3d 676, 677 (Mo. App. E.D. 2002). Appeal was dismissed.

Jones v. State, 117 S.W.3d 209 (Mo. App. S.D. 2003)

CRIMINAL PROCEDURE - FACTUAL BASIS REQUIRED FOR GUILTY PLEA

The defendant had entered a guilty plea to an assault charge. Both the complaint and the pre-sentence investigation described the crime, but essential elements of the crime (the nature of the instrument used and the victim’s injuries) were not a part of the record. The Southern District reversed the motion court’s denial of post conviction relief because the trial court accepted the guilty plea without a factual basis on record. Naturally the “factual basis” requirement in a felony case is extremely important. In our municipal court cases it is probably not nearly as crucial (except for the more serious offenses such as DWI). But even in DWI cases, when defendant is represented by counsel and a plea bargain is reached (usually involving an SIS on the DWI charge), probably very few municipal judges demand a factual basis in that circumstance.


State v. Busey, _____ S.W.3d _____ (Mo. App. W.D., No. 60988, November 25, 2003)

CRIMINAL PROCEDURE – COMMENTING ON DEFENDANT’S FAILURE TO TESTIFY

Defendant was convicted of murder, robbery, and armed criminal action as to both. His defense was that he and a co-defendant had intended only to rob a drug dealer of the drugs, but that he (Busey) had left the scene of the murder after the robbery had concluded but before the co-defendant killed the dealer. His confession admitted as much.

During closing arguments, the state made direct and indirect references to the defendant’s failure to testify. Defense counsel in closing had offered the wholly unsupported suggestion that defendant was unable to read (thereby challenging the written Miranda waiver). The prosecutor responded by saying “What witness said Marcus Busey could not testify? Not one single witness. The waiver of rights form says this man completed the tenth grade, and the inference that they would have you draw . . .” Defense objection was then interposed. The trial court overruled the defense objection because the court did not hear the word “testify” or because it appeared that the prosecution misspoke. No curative instruction was sought or given. The prosecution resumed by saying “Did any witness say that Marcus Busey could not read?” But inadvertent or not, the earlier comment amounted to a direct reference.

On appeal, the convictions for murder and armed criminal action in the course of the murder were reversed based on the apparent reference to the defendant’s failure to testify. But the Western District notes that not all comments of this type require reversal, citing State v. Neff , 978 S.W.2d 341 (Mo. banc 1998). Although the defense did not concede the elements of the robbery charge, the evidence in that regard was undisputed. The closing argument errors had no prejudicial effect on those two charges (the robbery and the ACA during the robbery).

The State sought to justify the comments as curative of a statement made by defense counsel in his opening statement that it was “anticipated” that Busey would testify. (normally this might be permissible prosecutor’ s commentary under Lockett v. Ohio, 438 U.S. 586 (1978) and State v. Dollens , 878 S.W.2d 875 (Mo. App. E.D. 1994). But such a declaration by the defense in the opening statement must be clearly and unequivocally stated before responsive commentary becomes permissible. A mere statement that it is “anticipated that defendant will testify” is not enough. Note: Case transferred to Supreme Court on February 13, 2004. Case No. 85726.

State v. Dizer, 119 S.W.3d 156 (Mo. App. E.D. 2003)

CRIMINAL PROCEDURE – JOINDER OF OFFENSES

Defendant was charged in a single indictment with several offenses. There were two counts of forcible sodomy, and one of false imprisonment. There were two victims of the forcible sodomy. The alleged crimes occurred six years apart (during most of which time, defendant had been incarcerated). Defendant sought to have the charges severed for separate trials but the trial court denied the motion for severance and the case proceeded to trial on the multiple offenses. On appeal, the Eastern District reasoned that while the evidence was similar but not identical with respect to the various offenses, the evidence of each particular offense was still simple and distinct. The similarities outweighed the differences, thus militating in favor of joinder. Conviction affirmed.

Johnson v. State, 115 S.W.3d 422 (Mo. App. W.D. 2003)

CRIMINAL PROCEDURE – FACTUAL BASIS REQUIRED FOR GUILTY PLEA

Unlike the result in Jones v. State , 117 S.W.3d 209 (Mo. App. S.D. 2003) (cited at page 36 of these materials), the defendant’s admission in this case that he struck his wife in the face with a baseball bat, and a record showing that the injuries resulted from this blow were severe, provided an appropriate factual basis for the element of “serious physical injury” in a charge of first degree domestic assault.

State v. Davis , ____ S.W.3d ____ (Mo. App. W.D., No. 61884, January 27, 2004)

CRIMINAL PROCEDURE – NEW ARGUMENTS PROHIBITED IN CLOSING REBUTTAL

Here the State “sandbagged” defense counsel. The State made no reference to a recommended term of punishment in the opening portion of closing argument. So the defense likewise left that point unmentioned. But on the final portion of the State’s summation, the term of punishment issue was raised by the State. Trial Court allowed the argument over defense objection.

Appeals court holds that such a tactic deprives the defense of notice or opportunity to address those arguments. Thus is restated the well known rule: If you have the last opportunity before the jury, and if you want to leave a certain point as the last thing they hear about before retiring to deliberate, you had better at least touch on it lightly in the opening segment of your summation.

State v. Engle, ___ S.W.3d ___ (Mo. App. E.D. No. 83358, January 13, 2004)

CRIMINAL PROCEDURE – NO APPEAL FROM REVOCATION OF PROBATION

The trial court revoked the defendant’s probation and imposed sentence, but suspended execution thereon in favor of still more probation. Such action does not constitute a final judgment – hence, not subject to review on direct appeal. Rather, probation revocation is only reviewable on a writ. See also, State v. Pressley, cited at p. 34 of these materials.

State v. Hauser, _____ S.W.3d _____ (Mo. App. E.D., No. 83441, January 13, 2004)

CRIMINAL PROCEDURE – NO APPEAL FROM SUSPENDED IMPOSITION OF SENTENCE

Hauser was convicted of DWI but he was sentenced before the time for him to file a motion for a new trial had expired. He appealed the judgment and the appeal was dismissed because the judgment was void (because entered before the expiration of the new trial timetable). State v. Hauser , 101 S.W.3d 320 (Mo. App. E.D. 2003). That set the stage for this appeal.

On remand for resentencing, the trial court this time suspended imposition of sentence and placed defendant on probation for two years with conditions. Hauser again appealed.

Appeal dismissed again , but this time for a different reason. The appellate court has no jurisdiction to hear an appeal from a suspended imposition of sentence because a suspended imposition of sentence is not a final judgment. (See also State v. Blalock cited at page 36 of these materials).

State v. Stanley, _____ S.W.3d _____ (Mo. App. S.D., No. 25598, January 20, 2004)

CRIMINAL PROCEDURE – JURY PANEL STRIKE FOR CAUSE DENIED

Stanley was starting trial charged with burglary. One of the potential jurors (West) seemed to express some bias against defendants who avail themselves of their right to remain silent. West said, “I would like to hear the defendant’s side of the story” (or words to that effect). Trial court refused to strike for cause because there was no clearly stated indication of a tendency to reach a conclusion of guilt if the defendant did not testify. Defense counsel (apparently more concerned about other veniremen) left West on the jury. Stanley testified at trial. He was convicted.

On appeal, Southern District first finds that such statements by West were sufficient to remove her from the panel for cause. Hence, error not to do so. However, failure to strike West for cause resulted in no prejudice to the defendant because Stanley took the stand at trial. Defense argued that Stanley might not have taken the stand, but felt compelled to do so because of West’s voir dire comments. Southern District finds nothing in the record to support that argument. Affirmed.

Comment: Defense counsel here found himself between the proverbial rock and hard place. Either let his client testify (thereby encountering the harmless error problem seen above), or not allow the client to testify (thereby preserving the voir dire error, but taking on the very real problem of a silent defendant). Two choices – both bad.



VII. SENTENCING

State v. Grubb, 120 S.W.3d 737 (Mo. banc 2003)

SENTENCING – ENHANCEMENT BASED ON PRIOR COURT MARTIAL CONVICTION

The defendant here was convicted of two counts of assault in the second degree. The assaults were particularly brutal (described in 120 S.W.3d at 738). When he was sentenced the trial court enhanced his term as a prior offender because the defendant had previously entered a guilty plea in a court martial (where we also see particularly brutal misconduct – described in 120 S.W.3d at 739). Although the military offense was not classified as a felony or a misdemeanor, it allowed imprisonment for a term in excess of one year. Therefore it qualified as a felony in Missouri.

On appeal to the Western District, Grubb’s assault conviction and enhanced sentence were both affirmed. State v. Grubb , ____ S.W.3d ____ (Mo. App. W.D., Case No. WD 60983, February 18, 2003). The Western District rejected the reasoning of the Eastern District’s decision in State v. Mitchell , referred to below. The Supreme Court granted transfer to resolve the conflict.

In the Western District case, Grubb had relied on State v. Mitchell , 659 S.W.2d 4 (Mo.App. E.D. 1983) which had reached a contrary result. The Eastern District had ruled against using a court martial conviction as a qualifying conviction under the recidivism statute. The legislature had taken no action to amend the prior and persistent offender statute following that Eastern District decision.

The Supreme Court held that legislative inaction after a contrary court of appeals decision did not necessarily constitute the adoption by the legislature of the court of appeals’ reading of the statute. It was observed that in determining legislative intent as to any particular issue, legislative action is far more persuasive than legislative inaction. Citing L & R Dist., Inc. v. Mo. Dept. of Revenue , 529 S.W.2d 375 (Mo. 1975).

Also, the defendant sought to claim that the court martial did not afford him proper due process so it should not be considered as a prior offense. But the Supreme Court noted that the guilty plea entered in the military tribunal (while represented by counsel) waived all due process issues, thus removing Grubb’s case from the area of concern expressed in State v. Mitchell .

Finally, it is well to observe that Grubb became something of a “ regular” on the Western District’s docket. Four months after his first adverse ruling from that court, he alleged yet another sentencing violation on some different felony convictions (tampering, and knowingly burning and exploding). Having already been down that road, the Western District summarily affirmed under Rule 30.25(b). See State v. Grubb, 112 S.W.3d 110 (Mo. App. W.D. 2003)

(Note: The Supreme Court decision was a 4 to 3 decision, with a lengthy dissent by Judge Teitelman – White, C.J. and Wolff, J. concurring.)

State v. Buchanan, 115 S.W.3d 841 (Mo. banc 2003)

SENTENCING – DEATH PENALTY FROM JURY ONLY

Although clearly not applicable to municipal court proceedings, this was a landmark case in Missouri establishing that when the jury is unable to agree on the death sentence, the court may not impose such a sentence.

State ex rel La Chance v. Bowersox, et al, 119 S.W.3d 95 (Mo. banc 2003)

SENTENCING – CONCURRENT UNLESS OTHERWISE STATED

Defendant was already doing time on another charge when he was convicted and sentenced for something else. At the time of sentencing, the sentencing court did not specify whether the new sentence was to run concurrently or consecutively with the current sentence. But a later written order of the sentencing specified that the terms should run consecutively. Defendant sought a correction of his sentence to avoid the consecutive time.

Rule 29.09, Mo. R. Crim. P. provides that a sentence is to run concurrently with previous sentences unless pronounced otherwise. Case also holds that oral pronouncements control over a written judgment where the two conflict (citing State v. Franklin , 975 S.W.2d 493 (Mo. App. E.D. 1998). While such a preference for the oral over the written would probably not be followed in civil law (such as, in a contract case), the requirement of due process in a criminal case precludes the court from doing something later in writing which differs from that which was ruled orally in open court when the defendant was present. See also Rule 37.64 (g) for similar language requiring concurrent sentencing unless specified to be consecutive.

State v. Gibson, ____ S.W.3d ____ (Mo. App. W.D., No. 61455, December 30, 2003)

ENHANCEMENT – PRIOR “INTOXICATION RELATED” OFFENSES

Defendant was convicted of DWI and sentenced as a persistent offender. Defendant appeals alleging that the state failed to prove that he had been convicted of at least two prior “intoxication-related traffic offenses” because one of those offenses was a municipal conviction for “being in physical control of a vehicle while under the influence of alcohol.”

Western District holds: Reversed and remanded. The 1996 amendment to Section 577.001.1 defined “driving” as “ physically driving or operating a motor vehicle.” Prior to the amendment, it also included “being in physical control of a motor vehicle while intoxicated.” Because of the 1996 amendment, a mere “physical control” conviction is not an “ ;intoxication-related traffic offense” for purposes of enhancement. Case is remanded for re-sentencing. Defendant is a prior (but not a persistent) offender, i.e., one prior, but not two.


VIII. CONSTITUTIONAL LAW

Huffman v. Nixon, 98 S.W.3d 553 (Mo. banc 2003)

CONSTITUTIONAL LAW – SEPARATION OF POWERS

Defendant pled guilty to manufacturing and possessing a controlled substance. He was sentenced under Sec. 217.362. That statute provides that sentence may be executed on a defendant if he fails to complete a treatment program. Specifically, the statute permits the sentencing court to sentence the defendant to (1) participation in an intensive long-term substance abuse program and (2) a term of incarceration. While in the treatment program, incarceration is suspended. Defendant failed to complete the program, so he was sent to prison.

Defendant challenged the constitutionality of that statute based on the separation of powers clause. Apparently he was arguing that the probation officer (part of the Executive Branch) could not terminate his probation and send him to jail because he would be performing a judicial function. The Supreme Court made it clear that there is no separation of powers problem because only the trial court imposes sentence, and the sentence was imposed with certain conditions that would trigger upon failure by the defendant. See Sec. 217.362.4, which requires execution of the sentence upon failure to complete the program. The Executive Branch had nothing to do with it.

Maryland v. Pringle, _____ U.S. _____ (No. 02-809, December 15, 2003)

CONSTITUTIONAL LAW – GROUNDS FOR ARREST; JOINT OCCUPANCY OF VEHICLE

This case presented the commonly recurring problem for prosecutors and police authorities regarding jointly occupied vehicles or premises where contraband is found. We have had many cases of this type in the past, and the general rule is that joint occupancy or possession creates an almost insurmountable burden of proof of possession by a specific defendant. Therefore, so long as all joint occupants remain silent, those cases are very difficult for the state to win.

In Maryland v. Pringle the Supreme Court of the United States offered police authorities something to work with by holding that, in a case where there is clearly defined contraband in a motor vehicle (but where all occupants disavow any knowledge or ownership), all of the occupants can nonetheless be subject to an arrest for possession. Note that this case does not say you can convict any one or all of the defendants – only that you can arrest them. But the obvious import of the decision is that, once the arrest has been effected, one or more of the defendants will very likely point the finger at one or more of the others, and you then have evidence to support a conviction. That is precisely what happened in Maryland v. Pringle . There the Baltimore police found five bags of cocaine and some cash in Mr. Partlow’s car but Partlow, Pringle, and the other occupant all disavowed knowledge or ownership. The officer arrested everyone and thereafter Pringle confessed to owning the contraband.

But on appeal Pringle had argued that the officer lacked probable cause to arrest him because he wasn’t the owner of the car and he wasn’t driving. The Maryland Court of Appeals reversed the conviction, but the Supreme Court ruled that the drugs and money were sufficient cause to detain everyone in Partlow’s car. The court stated that the car was not a public place where other people might be. Hence, we see the well known rule that probable cause to arrest requires a lower threshold of proof than the degree of proof required to convict.

State v. Joos, 120 S.W.3d 778 (Mo. App. S.D. 2003)

CONSTITUTIONAL LAW - RELIGIOUS FREEDOM

Joos was apparently a man of high religious principle. The Court of Appeals never questioned the sincerity or validity of his religious beliefs. 120 S.W.3d at 782. It’s just that his pro se legal arguments were not so very persuasive. In fact, he suffered the ignominy of losing his appeal without the Respondent filing a brief in opposition to his “points!”

The evidence showed that the defendant drove on three occasions without any driver’s license. At trial, he was found guilty on two of such charges. On appeal, Joos claimed that the phrase to “operate” a vehicle was an impermissibly vague term, leaving him wholly unable to ascertain exactly what he could and could not do. But the Southern District disagreed, stating that its plain meaning was in the dictionary and was easily discernible from the statutes. As for the statutes, even though “operate” was not defined, the term “operator” was. Section 302.010(15). And even though the specific term “operate” is not defined in the statutes, the court can consider the plain and ordinary meaning of the word. Cox v. Director of Revenue , 98 S.W.3d 548, 550 (Mo. banc 2003). If not defined in the statute, the plain and ordinary meaning is derived from the dictionary. Id.

Joos also argued that the prosecution and conviction violated his religious freedom. In his words, “[T]here was no legal right to prosecute me for living by God’s law.” 120 S.W.2d at 781. The appellate court agreed that there are cases where individuals have been excused from compliance with statutes because of religious beliefs. Some are mentioned in Penner v. King , 695 S.W.2d 887, 889 (Mo. banc 1985). But the case of Mr. Joos was not one that so qualified. Affirmed.



IX. STATUTORY INTERPRETATION

State v. William, 100 S.W.3d 828 (Mo. App. W.D. 2003)

STATUTORY INTERPRETATION – DANGEROUS ITEM

An inmate in a penitentiary was in possession of a cell phone. On the charge of possessing a dangerous item in a correctional facility, the trial court refused to grant a motion for acquittal.

The Western District reversed, holding that under statutory language banning a “gun, knife, weapon or other article or item of personal property,” such other article or item of personal property must be something along the lines of a gun, knife, or weapon. Thus, a cellular phone does not fall within that category and the motion for acquittal should have been granted.

State v. Parrow, 118 S.W.3d 629 (Mo. App. S.D.2003)

STATUTORY INTERPRETATION – UNLAWFUL USE OF FIREARM

Defendant was convicted of unlawful use of a weapon, a Class B felony. He got fifteen years. He appeals, claiming the evidence failed to prove the elements of the offense.

The evidence was that the defendant was involved in a drive-by shooting. The defendant squeezed off several rounds from what the witnesses described as a “gun.” They testified that the weapon was a revolver by its look and sound. The witnesses had considerable experience with guns. Such evidence was regarded as sufficient to support a finding that the item was a firearm which the defendant used unlawfully. Affirmed.

Discussion point: Section 571.010(6) defines “firearm” as “. . . any weapon that is designed or adapted to expel a projectile by the action of an explosive; . . .” The term “explosive” is not defined in the statute. So what about an air actuated pellet gun? One the operator pumps up manually, or that is expelled by the gases from a CO2 cartridge? As it happens, these items are included in Section 571.010(13) describing pellet guns (and other things) as “projectile weapons.” It is suggested that a look at each city’s ordinance in this area might be in order so as to be well advised of the precise definition of a “ firearm.”



X. ADDENDA – RECENT DECISIONS

Note: The following cases were decided in late February and early March, 2004. They are listed here in no particular order.

Brooks v. Missouri, ____ S.W.3d ____ (Mo. banc, No. 85674, February 26, 2004)

CONSTITUTIONAL LAW – CONCEALED CARRY

In May of 2003 the General Assembly passed the concealed weapons law. In July of 2003 the governor vetoed the bill. In September of 2003 the legislature overrode the veto. In October of 2003 gun law opponents filed a lawsuit against the state and the Attorney General seeking a permanent injunction to stop the enforcement of the act and also seeking a declaratory judgment that the act was unconstitutional.

In November the trial court issued a final declaratory judgment in favor of the plaintiffs preventing the law from taking effect. The trial court held that the statute violated Article I, Section 23 of the state constitution and permanently enjoined enforcement of the act. The trial court specifically rejected the plaintiffs’ other claims, including the claim that the act violated the Hancock Amendment. The state, the Attorney General and a gun shop (which had been allowed the right to intervene) filed an appeal. The plaintiffs took a cross-appeal.

The Supreme Court affirmed in part, reversed in part and remanded the case with the injunction being dissolved in part. The Court held that the trial court erred in declaring the concealed carry law unconstitutional under Article I, Section 23. That constitutional provision grants the right to bear arms, but also adds the following crucial ten words: “ . . . but this [right] shall not justify the wearing of concealed weapons.” These ten words formed the basis for the trial court’s ruling of unconstitutionality.

In a 5-2 decision, the Supreme Court (Limbaugh, J.) reversed the trial court, finding that the new law did not violate Article I, Section 23, but rather, it does violate the Hancock Amendment by imposing an unfunded mandate on certain county sheriffs. However, there was evidence that the costs of implementing the new law would exceed state funding only in Jackson, Camden, Greene and Cape Girardeau counties. Hence, the new law is unconstitutional only in those four counties. The opinion goes on to say that permit holders can carry concealed weapons in those counties as well, but those counties do not have to issue permits. Hence, citizens from other counties who hold a valid permit can carry weapons in the four counties, but citizens of those four counties will be unable to get a permit.

The rejection of the trial court’s ruling as to Section 23 was based on the legislature’s right to override the critical ten word clause by enacting legislation regulating concealed weapons. Injunction affirmed only as to the four counties in question. Dissolved elsewhere.

State v. Nunnery, ____ S.W.3d ____ (Mo. App. S.D., No. 25502, February 20, 2004)

SELF INCRIMINATION – WAIVER OF MIRANDA APPLIES TO ANY OFFENSE

Ronald Nunnery was convicted of first degree murder and armed criminal action. He got life plus 50 years, consecutive. He appeals, claiming Miranda violations.

In August of 2000, Nunnery killed his wife Marcia, with significant assistance from his other wife , Eunnona. Eunnona eventually testified against Ronald at trial, which might explain the absence of any reported cases involving Eunnona. It seems that several months prior to the shooting, the three of them had travelled to Las Vegas (where else?) where there was a wedding between Ronald and Eunnona, at which Marcia served as a witness, and apparently consented to the bigamous union! The Southern District notes (in perhaps the understatement of this year’s materials), that after the happy threesome returned to the marital home in Wayne County, “ . . . there was discord among the three adults.” The result was the shooting death of Marcia within a year after the nuptials in Las Vegas.

After the shooting, Ronald and Eunnona buried the body, and for the next sixteen months or so, began receiving and fraudulently cashing Marcia’s Social Security checks. Ronald and Eunnona apparently had told many people a variety of less than persuasive stories explaining Marcia’s absence. Eventually, the sheriff and the Social Security investigators closed in. Ronald was arrested in December of 2001. He was told of the check fraud investigation, and the interrogation began, after written waivers were obtained. As the interrogation progressed, Ronald eventually admitted to the murder. He was convicted.

On appeal, Ronald claimed that the waiver was improper because he was not told that the interrogation would also take up the murder case. It was clear that the authorities had long since focused their suspicion on Ronald for not only the check fraud case, but also the killing as well. The Southern District affirms, noting that the written Miranda waiver was not offense-specific. It amounts to a waiver of the defendant’s right to counsel during the interrogation as to any offense. Citing McNeil v. Wisconsin , 501 U.S. 171 (1991). The Missouri case on that point is State v. Blackman , 875 S.W.2d 122, 137 (Mo. App. 1994). Since the waiver requirements set forth in Edwards v. Arizona , 451 U.S. 477 (1981) are not offense-specific, so long as the waiver is properly obtained, there is no limit as to the subject matter that can be properly pursued.

Dotzauer v. Director of Revenue, ____ S.W.3d ____ (Mo. App. E.D., No. 82713, February 24, 2004)

D.W.I. – TWENTY MINUTE WAITING PERIOD INAPPLICABLE

Dotzauer was found by a police officer standing outside a wrecked SUV which had been involved in a two-car accident. Dotzauer admitted that he had been driving. He was asked to perform the field sobriety tests and he failed them. He was arrested and taken to jail, where he was read the Implied Consent Law. He agreed to take the breathalyzer test.

While getting ready to take the test, Dotzauer asked at 12:47 a.m. to call his attorney. He did so, and left a message on the answering machine. After that, the officer asked him if he wanted to go ahead and answer the questions on the A.I.R. Dotzauer agreed to do so. The breath test was administered at 1:08 a.m. It came back at .173% Revoked.

On review, the trial court overturned the revocation, apparently relying on Sec. 577.041.1 which refers to the 20 minute waiting period where a driver asks to speak to an attorney. The statute allows the driver that much time to make that effort before having to take the test. But the Eastern District holds that this 20 minute waiting period is only relevant in a refusal situation . Here, the driver consented to take the test, so it is irrelevant whether he had an opportunity to consult with counsel. “In a non-refusal case, no contact with an attorney is required for admission of the test results under the statute.” Quoting Crabtree v. Director of Revenue , 65 S.W.3d 557, 558 (Mo. App. 2002).

In addition, the Eastern District also observed that the 20 minutes had been granted anyway . Even if the statute applies (which it doesn’t), there was a period of 21 minutes between the request at 12:47 a.m. and the test at 1:08 a.m. Trial court reversed, revocation imposed.

State v. Douglas , ____ S.W.3d ____ (Mo. App. S.D., No. 25376, February 19, 2004)

EVIDENCE – IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS

Douglas was a turkey hunter who did not seem to follow the rules. He was convicted of shooting at turkeys from a motor vehicle, doing so during closed season, and firing a weapon across a public roadway. He appeals as to three points: (1) the trial court having sustained the state’s objection to his efforts to impeach the state’s witnesses with their prior testimony; (2) denying his motion to strike a certain venireperson for cause; and (3) allowing the state to introduce statements of a certain witness without disclosing her prior criminal conviction to the defendant in response to his pre-trial discovery request. Convictions affirmed.

Initially, it is important to observe that this defendant was pro se, both at trial and on appeal. The appeals court acknowledged defendant’s right to so proceed, but made it clear that he would be held to the same standards of practice and procedure that the court would expect of an attorney. Citing State v. Watkins, 102 S.W.3d 570, 571 (Mo. App. 2003) and In re S.I.G., 26 S.W.3d 616, 618 (Mo. App. 2000).

As to the impeachment point, the appeals court observed that there had been an earlier mistrial involving this defendant where two conservation officers had given sworn testimony. A record had been made in the earlier trial but the defendant had never obtained a transcription of the earlier testimony. During the second trial, he attempted to impeach the testimony of the two conservation officers by asking them if they remembered their previous testimony. But rather than reading the previous testimony from a written transcript, the defendant proceeded to recite for the witnesses his own recollection of what the previous testimony was. The state objected and the trial court sustained the objection.

This case makes clear the proper way in which impeachment testimony is to be introduced into the record. Before a witness may be impeached by proof of prior contradictory statements, a proper foundation must be laid. The witness must be given a chance to refresh his recollection of the prior statement and to admit, deny, or explain it. To lay the requisite foundation, it is necessary to ask the witness whether he made the statement. It is essential to quote the prior statement and to point out the precise circumstances under which it was made. Quoting Nichols v. Preferred Risk Group, 44 S.W.3d 886 (Mo. App. 2001).

The proper procedure that must be followed to impeach a witness with a prior inconsistent statement from a deposition or a trial transcript is well established. The party attempting impeachment should: (1) show the document to the witness if he asks to see it; (2) read the impeaching questions and answers; and (3) ask the witness if he did not so testify previously. Quoting Peppers v. St. Louis-San Francisco Ry. Co., 295 S.W. 757, 761 (Mo. 1927). Here the defendant failed to do so. Rather , he attempted to paraphrase or summarize the prior testimony. This is not a proper foundation for impeachment.

On the motion to strike a potential jury member for cause, it was established during voir dire that one of the potential jurors had utilized the county prosecuting attorney for the preparation of some legal documents about 15 years earlier. An assistant county prosecutor was trying the case. The motion to strike that particular juror for cause was overruled since there was no evidence that the potential juror could not be fair and impartial. Citing State v. Webster, 539 S.W.2d 15, 16-17 (Mo. App. 1976).

Finally, defendant complained of the trial court’s having allowed into evidence a statement of a witness who apparently had a criminal record. He claimed that he had made a discovery request for such information, and it was not disclosed by the state. But the record on appeal did not include the claimed discovery request. Hence, the point was waived. Further, even if that point were to be taken up the court, it was held that the entry of the statement of the individual was not the same as her having testified. The claimed discovery request inquired about criminal records of witnesses . The person involved was never endorsed as a witness by the state. The court does mention that criminal convictions may be proved to affect the credibility of any witness in a civil or criminal case, citing Section 491.050, R.S. Mo.

State v. Kirby , ____ S.W.3d ____ (Mo. App. E.D., No. 83368, February 24, 2004)

SEARCH AND SEIZURE – NO PROBABLE CAUSE FOR WARRANT

Defendant was charged with narcotics violations. There had been a search of his premises pursuant to a warrant. He moved to suppress the fruits of the search because of the claimed lack of probable cause to support the issuance of the warrant. Trial court sustained the motion. Affirmed.

The affidavit in support of the warrant request specified only that the information had been learned from a "cooperative individual.” But the detective making the affidavit had not done any further research to try to establish corroborative evidence which would harmonize with what this un-named “cooperative individual” had told the detective. Or if he did, he did not advise the issuing court of any such corroboration effort. Hence, the warrant was defective.

Note that this opinion distinguished a somewhat similar Supreme Court decision. In State v. Berry , 801 S.W.2d 64, 66 (Mo. banc 1990), there was likewise an anonymous informant, but the informant there gave a great deal of detail about the exterior details of the residence in question. The detective had actually gone by the suspected location and had confirmed these factual details as accurate. He told the issuing magistrate about his confirmatory investigation. Hence, the otherwise unsupported statement of the anonymous informant was bolstered by the independent corroboration of the details given. Therefore, the warrant in Berry was upheld. But in the Kirby case, the detective had not taken such steps (or if he did, he certainly did not tell the magistrate about them).

Comment: But really, how important was that information about the exterior of the house in Berry? Isn’t that the kind of detail that anybody could come up with just by driving past the house? Does that kind of detailed information really corroborate the other information being conveyed by the confidential informant?

State v. Crump , ____ S.W.3d ____ (Mo. App. E.D., No. 82624, March 2, 2004)

CRIMINAL PROCEDURE – ESCAPE FORFEITS RIGHT TO APPEAL

Following trial by jury, defendant was found guilty of felony drug violations. The court set a sentencing date but Crump failed to appear. A capias warrant for his arrest was issued and Crump was apprehended about ten weeks later. Following sentencing, he filed his appeal in the Eastern District.

The Eastern District dismissed his appeal under the escape rule. That rule declares that a defendant who escapes or flees the jurisdiction of the court (either during trial or during the process of post-trial proceedings) forfeits his right to an appeal as to the merits of the case. And a defendant’s failure to appear when required by the court constitutes an “escape” for purposes of applying the escape rule. The escape rule is properly applied when it is determined that the escape by the defendant adversely affected the criminal justice system. This is a matter that is left to the sound discretion of the appellate court. The court cited two other Eastern District decisions where there were unexplained absences of six and seven weeks. Such time frames were regarded as having an adverse effect on the criminal justice system. Certainly a ten week delay in this case between the original and actual sentencing date so qualified. Appeal dismissed.


Christensen v. Director of Revenue , ____ S.W.3d ____ (Mo. App. S.D., No. 25380, February 25, 2004)

D.W.I. – SQUANDERING OF TWENTY MINUTE WAITING PERIOD

Director appeals the trial court’s reinstatement of the driving privileges of Calvin Christensen. Christensen was suspended due to a refusal to submit to a breath test.

Christensen was stopped by a state trooper for excessive speed and crossing the center line. He did very poorly on the field sobriety tests, and he was placed under arrest and read his Miranda rights.

He was taken to the Sheriff’s department and, after reading driver the Implied Consent Notification, the trooper requested that Christensen take a breathalyzer test. Christensen asked to speak with his attorney and the trooper provided him with a telephone book and told him he had 20 minutes to contact an attorney.

Christensen then stated that he had to use the restroom and the trooper provided him with monitored use of the facility. Christensen urinated, but when he started to leave the restroom he told the trooper that he had more details to attend to. He dropped his trousers, sat down and began answering the call of nature. While he was doing so, the trooper notified Christensen that half of his 20 minute time period had already passed. Christensen then told the trooper that he thought he was going to be sick and that he might throw up, to which the trooper advised that if the driver vomited, he would be required to watch the driver for another 15 minutes. Upon hearing that news Christensen attempted to insert his fingers into his mouth in an apparent attempt to induce vomiting. The trooper warned him that if he were successful in that endeavor a refusal to submit to blood alcohol testing would be declared. When the driver asked what would happen if he was too sick to take the test, the trooper told him there would be a request for a blood sample.

Finally, at the expiration of the 20 minute time frame, the trooper advised Christensen that his time had expired and asked him if he would consent to take the test. In response, Christensen began wiping his hands in an area of his anatomy containing fecal matter and, ignoring the trooper’s warning not to do so, repeatedly put his soiled fingers into his mouth. It goes without saying that Christensen must have been profoundly inebriated.

Following that remarkably drastic endeavor, Christensen turned to a nearby water fountain and the trooper warned him that if he took a drink from the water fountain it would constitute a refusal. This warning fell on deaf ears, and Christensen took two long drinks of water. After finishing his drink, he then said he would like to have his 15 minutes to commence the test (actually it’s 20, but remember Christensen’s condition). The trooper told him that he had already refused and there would be no further testing.

The Director revoked the driving privileges and on review the trial court heard testimony from Christensen and the trooper. Following trial the court entered judgment in the favor of Christensen stating that he had not been given a reasonable opportunity to contact an attorney.

On appeal, the Southern District notes that the only issue was whether or not Christensen refused the chemical test. The decisive issue is whether Christensen was given a reasonable opportunity to contact an attorney. The trial court had ruled that by designating the time Christensen spent in the restroom as his “reasonable opportunity” to seek legal assistance, the trooper had failed to satisfy the intended purpose of the statute. Not so, says the Southern District.

The appeals court agrees with the state’s assertion that Christensen had engaged in a “cat- and-mouse” game with the trooper in an effort to avoid the chemical test. The Southern District notes that an arrested person has no constitutional right to speak with an attorney prior to deciding to submit to a breathalyzer test. Witeka v. Director of Revenue , 913 S.W.2d 438, 440 (Mo. App. E.D. 1996). And absent the 20 minute period set forth in Section 577.041.1, a driver would actually have no right at all to attempt to contact an attorney before making the decision. But the language of the statute requires only that the person requesting to speak with an attorney be “granted 20 minutes in which to attempt to contact an attorney.” Thus, there is neither a constitutional nor a statutory right to actually speak to an attorney. Rather, the only requirement is a statutory one that calls for 20 minutes to be granted to attempt to contact an attorney. The statute makes no guarantee that the arrestee will actually contact his lawyer. Nor is there any statutory provision for extending the 20 minute opportunity in order to render the opportunity “reasonable.” Rather, the 20 minute opportunity, in and of itself , has been deemed by the courts to be reasonable. Wall v. Holman , 902 S.W.2d 329, 331 (Mo. App. W.D. 1995).

In closing, the Southern District also noted that the trooper made every reasonable effort, repeatedly reminding Christensen of the time remaining in his 20 minute allotment. And he did so even though under no requirement to warn of the diminishing time. Trial court reversed, and suspension of driving privileges by the Director was reinstated.

State v. Hamilton, ____ S.W.3d ____ (Mo. App. S.D., No. 25625, March 3, 2004)

ELEMENTS OF THE OFFENSE OR PROOF OF SAME – TAMPERING WITH A JUDICIAL OFFICER

Hamilton was convicted for the offense of tampering with a judicial officer. Affirmed.

While on parole after serving prison time, defendant’s parole officer was a Ms. Gray. During a visit with his parole officer the defendant was arrested on a parole violation warrant which had been sworn out by Ms. Gray. While being escorted to jail he made threatening comments to Ms. Gray’s supervisor, in the presence of Ms. Gray. Once defendant was taken to jail he advised jail officers that he “was gonna kill that bitch when he got out.” In addition, he made other similar comments which were even more obscene and threatening.

Defendant’s sole point on appeal was that the comments he made were not made in the presence of the judicial officer in question, nor could it be assumed that the statements he made were threats that he intended to be conveyed to her. The Southern District rejected that contention for a couple of reasons. First, the original threatening language was actually made in the presence of Ms. Gray. And with respect to the statements made at the jail, they were clearly made in the presence of police personnel, and the defendant could logically have expected the threats to be communicated to the parole officer. Naturally the police would be required to notify Ms. Gray of these threatening claims so she could take reasonable steps to protect herself. Indeed, if the officers had failed to do so there would very likely have been a charge of dereliction of duty. The conveyance of those threats to Ms. Gray would be a natural and probable consequence of the defendant’s acts. Quoting State v. O’Brien, 857 S.W.2d 212, 218 (Mo. banc 1993).

State v. Simms , ____ S.W.3d ____ (Mo. App. W.D., No. 62134, March 2, 2004)

SELF INCRIMINATION – NO PROMISE OF LENIENCY SHOWN

Simms was convicted of three counts of stealing. He appeals, alleging that the trial erred in admitting incriminating statements made to the police because those statements were allegedly induced by promises of leniency. He also argued an abuse of discretion by not declaring a mistrial as a sanction for discovery violations committed by the state.

In affirming the conviction, the Western District first notes that a confession is indeed inadmissible if it is procured by a direct or implied promise of leniency. State v. Simmons , 944 S.W.2d 165, 175 (Mo. banc 1997). However, an officer’s statements indicating that cooperation is in the best interests of the suspect are not improperly coercive and do not make a statement involuntary. Here the court found no express or implied promise of leniency. The only thing said to the defendant was that one of the officers indicated that Simms “would be a good candidate for probation.” The court cites a similar case where the interrogating officer had made statements indicating that the suspect would be a good candidate for probation if he cooperated with the investigation. State v. Sutherland, 11 S.W.3d 628, 632-33 (Mo. App. 1999).

Prior to trial the defense had requested disclosure of any written or recorded statements and the substance of any oral statements made by the defendant. The request for disclosure was undeniably timely and it was admitted by the state that the state had failed to disclose the defendant’s statement which was offered at trial. There was a clear violation of Rule 25.03. But where a discovery violation has occurred, the trial court has discretion to fashion an appropriate remedy. This discretion is abused only when the remedy results in a fundamental unfairness to the defendant or the outcome of the case has been altered. Citing State v. Scott, 943 S.W.2d 730, 735 (Mo. App. 1997).

With respect to the challenged testimony, the trial court sustained the objection because of the discovery violation, struck the testimony, and instructed the jury to disregard the answer. However, the defense request for a mistrial was denied. The Western District felt there was no real prejudice to the defendant in this case because there was similar evidence already admitted in the form of a written statement that also implicated Simms in the crime. Therefore, the deputy’s testimony that briefly touched on facts similar to those already admitted in the written statement was not prejudicial. Defendant also had a third point of claimed error but it warrants no further discussion in this seminar. Conviction affirmed.

State v. Lopez, ____ S.W.3d ____ (Mo. App. S.D., No. 25535, March 10, 2004)

SELF INCRIMINATION – OTHER EVIDENCE OF GUILT WAS OVERWHELMING

Defendant was convicted of murder and received a life sentence. He appeals claiming that statements he made to the first officer on the scene were improperly admitted in evidence in violation of his Miranda rights. Affirmed.

At 4:18 a.m. defendant placed a 911 call, seeking medical assistance at his home. He told the 911 operator he had awakened to find the victim (his live-in girlfriend) on the floor unresponsive. Three minutes later, Officer Thomas arrived, along with the para-medics. Thomas followed the medics into the house where the victim was found on the living room floor, with the defendant pacing the floor nearby. The medics pronounced the victim dead.

Officer Thomas and defendant left the living room and retired to the back porch, where Thomas asked the defendant for some ID. Lopez was agitated and Thomas asked him to sit down and calm down so Lopez could supply the information necessary for the report. Defendant wouldn’t sit down, and blurted out, “Go ahead and take me to jail. I don’t care.” This declaration caused Thomas some concern and, since he was the only police officer on the scene, he put the defendant in handcuffs and helped him sit down. He did so for his own safety so he could gain a measure of control over the situation. Lopez calmed down, and the handcuffs were removed within one or two minutes. During the next 45 minutes the two of them stayed on the back porch while other officers arrived and cordoned off the crime scene in the house. During this time defendant made two more similar statements tending to implicate himself in the crime. The officer testified that he did not consider Lopez a suspect at that time. Rather, he was being detained for questioning, which is standard procedure in a case of this kind.

Lopez was later taken to jail by detectives who, after giving the Miranda warnings, interrogated defendant and obtained two videotaped confessions. Both were highly detailed admissions of a great deal of information about the murder, all of which information was corroborated by the forensic evidence. Included in the forensic evidence, and the defendant’s admissions in that regard, was clear proof of a beating death of remarkably savage dimension. The medical examiner’s report establishes in shocking detail the severity of the beating of the victim. At trial, both videotapes of the Mirandized confessions were shown to the jury, and Officer Thomas testified as to the defendant’s far less incriminating statements at the scene in the early stages of the investigation. On appeal, Lopez challenges only the admission of the earlier un-Mirandized statements.

In affirming, the Southern District holds that even if warnings had been necessary for the first encounter (a point not reached in the opinion), the admission of the earlier declarations would be harmless error in light of the later Mirandized (and very detailed videotaped statements) given by defendant. Where error is harmless beyond a reasonable doubt, it may be overlooked. Chapman v. California , 386 U.S. 18, 24 (1967). The Missouri case on that general point is State v. Dexter, 954 S.W.2d 332, 344 (Mo. banc 1997). The Southern District quotes a later U.S. Supreme Court case saying that since Chapman “ . . . we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.” Delaware v. Van Arsdall , 475 U.S. 673, 681 (1986). Southern District states the obvious, that the videotaped confessions were “far more incriminating” than the declarations made at the scene.

For a Missouri case applying the Chapman harmless error analysis to an alleged violation of defendant’s Miranda rights, see State v. Fuente, 871 S.W.2d 438, 443-44 (Mo. banc 1994).

Iowa v. Tovar. ____ U.S. ____ (No. 02-1541, March 8, 2004)

WAIVER OF TRIAL COUNSEL – WARNINGS REQUIRED

In this case Tovar had entered a pro se guilty plea to a DWI several years earlier. On a later DWI charge, he sought to avoid the impact of that prior conviction in an enhancement situation. The trial court in the earlier case had made a detailed record as to the voluntariness issue, but had not warned of certain perils of self representation. The Iowa Supreme Court held that the earlier warning was deficient because it did not tell Tovar that his waiver of the assistance of counsel (1) entailed the risk that a viable defense might be overlooked and (2) that such waiver deprived him of the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it was wise to plead guilty.

The Supreme Court holds that neither warning is required under the Sixth Amendment. Rather, all that is necessary in a guilty plea situation is that the accused be informed of (1) the nature of the charge against him, (2) his right to be counseled regarding his plea, and (3) the range of punishment allowable upon his guilty plea. The Court draws a distinction between a mere guilty plea and a waiver of trial counsel. Tovar re-affirms that the earlier case of Faretta v. California , 422 U.S. 806 (1975) still requires that the defendant who wants to try his case pro se “ . . . must be warned specifically of the hazards ahead.”

The Court closes the opinion by noting that the states are free to adopt by statute, rule or decision any guides to the acceptance of an uncounseled plea they deem useful. The Court holds only that the two admonitions required by the Iowa Supreme Court are not required by the Federal Constitution. Thus, it seems clear now that the warning about the perils of self representation is apparently only necessary on a pro se trial, but not in a pro se guilty plea. 1 Nonetheless, the additional paragraph 8 addressing that issue in MMACJA Form 5-02 can certainly do no harm. (See MMACJA Form 5-02 in the MMACJA Form Book).

Illinois v. Fisher , ____ U.S. ____ (No. 03-374, February 23, 2004)

EVIDENCE – DESTRUCTION OF TRIAL EVIDENCE UNDER RETENTION GUIDELINES

Fisher was found in possession of a white powdery substance. The police had tested it 4 times, all positive for cocaine. Fisher’s attorney filed a pre-trial motion for discovery, apparently intending to have the substance tested by his own experts. Before production of the cocaine to defense counsel, and while awaiting his trial, Fisher fled the jurisdiction and was a fugitive for over 10 years. During that time, under the usual evidence retention guidelines for the police department, the evidence was in good faith destroyed. When Fisher was eventually apprehended, he sought dismissal because the evidence was no longer available for testing. Trial court denied the motion. Convicted. State appeals court reversed. Certiorari granted.

The Supreme Court reversed the Illinois court, differentiating this case from the usual Brady v. Maryland situation where there is a failure to disclose material exculpatory evidence. Rather, this case is controlled by Arizona v. Youngblood , 488 U.S. 51 (1988) where there was good faith destruction of evidence which, at best, might have exonerated the defendant. The cocaine in this case was only “potentially useful evidence” in that it had already been tested 4 times, and the defense was only hoping that a fifth test might disclose a different result. Interestingly, nothing is said in the Supreme Court’s opinion about the defendant’s having voluntarily absented himself from the same judicial arena in which he later sought relief.

Query: Why wouldn’t something along the lines of the escape rule (mentioned at p. 49 of the Case Law Update) be applicable to this kind of situation? Surely it may fairly be said that Fisher’s decision to go into fugitive status had “an adverse effect on the criminal justice system.” But even without an analysis of Fisher playing “both ends against the middle” the Supreme Court approves the good faith destruction of evidence under retention guidelines, at least in cases where the evidence was only “potentially useful” (as opposed to evidence that was “materially exculpatory” ;).

Crawford v. Washington, ____ U.S. ____ (No. 02-9410, March 8, 2004)

SIXTH AMENDMENT – RIGHT TO CONFRONT WITNESSES

This case addresses the Sixth Amendment’s Confrontation Clause which provides that, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406 (1965).

Although the principal opinion of the court does not directly do so, the concurring (and certainly less than altogether enthusiastic) opinion written by the Chief Justice makes it clear that this decision overrules Ohio v. Roberts, 448 U.S. 56 (1980). Roberts established that an unavailable witness’s out-of-court statement may be admitted so long as it has adequate indicia of reliability – i.e, when it falls within a “firmly rooted hearsay exception” or bears “ particularized guarantees of trustworthiness.” 448 U.S. at 66.

In Crawford the defendant was on trial for assault and attempted murder. The state sought to introduce a recorded statement that the petitioner’s wife had made during a police interrogation. The wife did not testify at trial because of Washington’s marital privilege statute. Missouri has a somewhat similar marital privilege statute. See Section 546.260, R.S.Mo.

The defendant argued that admitting the wife’s police statement against him would violate his Sixth Amendment right to be “confronted with the witnesses against him.” The Washington Supreme Court gave its blessing to the admission of the evidence, but the U.S. Supreme Court reversed the conviction stating that where testimonial statements are at issue, the only true test of reliability sufficient to satisfy the constitutional demands is confrontation of the witness. The Supreme Court felt that the vice of Ohio v. Roberts was that it allows the jury to hear evidence, untested by the adversary and cross examination process, based on a mere judicial determination by the Court as to the reliability of the statement. Hence, Roberts represented a replacement of the constitutionally prescribed method of assessing reliability (that is to say, confrontation and cross-examination) with an altogether unacceptable one (which is to say, allowing a judge to simply make that determination).

The opinion in Crawford provides an in-depth historical analysis of the right to confront one’s accusers dating back to Roman times. And while recognizing that there have always been exceptions to the general rule of excluding hearsay evidence, there is scant historical evidence that those exceptions were invoked to admit testimonial statements against the accused in a criminal case. The Court notes that the only significant exception to that general proposition is the existence of the admission of dying declarations as a general rule of criminal hearsay law. However, the Court does not decide the question as to dying declarations – rather, only notes the existence of that long-standing and rather unique exception.

The Court in Crawford differentiates from testimonial statements by noting that many other hearsay exceptions are not testimonial – such as business records or statements in furtherance of a conspiracy. The thrust of the opinion is that testimonial statements of witnesses absent from trial should be admitted only where the declarant is unavailable and only where the defendant has had a prior opportunity to cross examine. This differs from the previous historical context where such testimony has been admitted based on a variety of settings which seemed to meet the Roberts test of a “particularized guarantee of trustworthiness.” For example, prior testimony at a preliminary hearing, before a grand jury, at a former trial, and to police interrogations are four such settings. But the Court now describes these as “ . . . the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.”

The concurring judgment of the Chief Justice laments the fact that the opinion declares that it will leave for another day any effort to spell out a comprehensive definition of “testimonial” evidence. The Chief Justice expresses the concern that the main opinion offers no guidance as to what “specific kinds of testimony” beyond those listed immediately above will be covered by the new rule requiring confrontation. The concurring opinion concedes that the main opinion at least excludes from the definition of “testimony” some hearsay exceptions such as business records and official records. But that’s about all the guidance that can be gleaned from the main opinion. Thus, it seems clear that Crawford elevates to a new level of constitutional concern the matter of confrontation of the accuser, but leaves somewhat unclear the scope of the application of the newly declared rule.


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