Criminal Law Materials Provided by James R. Wyrsch... H 1

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1 Criminal Law Materials Provided by James R. Wyrsch... H 1 H James R. Wyrsch (Kansas City) John F. Newsham (St. Louis) Douglas W. Hennon (Columbia) Susan R. Warren (Cape Girardeau) J.R. Hobbs (Springfield) Michael J. Fagras (St. Charles)

2 Please Refer to CD for Additional Materials From James Wyrsch ANNUAL CRIMINAL LAW UPDATE 2013 CRIMINAL LAW -- THE MISSOURI BAR SIGNIFICANT CASES Presented by James R. Wyrsch and J.R. Hobbs Wyrsch Hobbs & Mirakian, P.C. Appellate Procedure State v. Barber, 391 S.W.3d 2 (Mo. App. W.D. 2012): Where (1) a recording machine malfunction caused most of Defendant s testimony at trial to not have been recorded; (2) the State refused to stipulate to Defendant s testimony on appeal; and (3) the testimony was crucial to Defendant s points raised on appeal, Defendant was prejudiced by the lack of a transcript and entitled to a new trial. Discussion: Rule 30.04(h) allows parties to correct an omission from a transcript by stipulation. Although Defendant submitted an affidavit as to what his testimony was, the State refused to stipulate to its accuracy. The State argues that Defendant was not prejudiced by the missing testimony since the jury found him guilty and, thus, the missing evidence must not have been helpful to his defense. Were we to accept this argument, however, it would render transcripts of trials meaningless. The missing portion of the transcript is necessary for meaningful appellate reviews of Defendant s points on appeal, including sufficiency of evidence. Even though the prosecutor did not cause the recording machine to malfunction, it is the State that seeks to take Defendant s liberty from him. Due process requires that the State ensure that Defendant has access to a transcript of his testimony or at least a stipulation as to the specific contents of his testimony. Here, Defendant has neither, through no fault of his own. Bail Pretrial Release Issues State v. Jackson, 384 S.W.3d 208 (Mo. banc 2012): Holding: Cash-only bonds do not violate the Missouri Constitution, because third parties who are not commercial sureties may still post the cash-only bonds, and such bonds cannot be excessive. Courts must consider a variety of factors in setting bonds set out in Rule 33.01(e). Discussion: Art. I, Sec. 20 of the Missouri Constitution states that all persons shall be bailable by sufficient sureties, except for capital offenses. But this does not mean that cash-only bonds are prohibited. Such bonds are permissible because they can be posted by third-party sureties such as family members. But 10% bonds posted by commercial sureties are not mandated by this provision. Cash-only bonds should not be used to keep a defendant in jail unnecessarily pending trial, however. Art I, Sec. 32(c) of the Missouri Constitution provides that bail may be denied or special conditions imposed only when a defendant poses a danger to the victim, the community or another person. A judge must consider the factors in Rule 33.01(e) in setting bond. If bail is set higher than necessary to secure the defendant s appearance or to protect the public, it constitutes an impermissible punishment contrary to the presumption of innocence and may be challenged under Article I, Sec. 21 which prohibits excessive bail. Brady Issues State ex rel. Woodworth v. Denney, 2013 WL (Mo. banc Jan. 8, 2013): H--1

3 Holding: (1) In habeas action, State s failure to disclose exculpatory evidence before trial constitutes cause to overcome a procedural default for failure to raise Brady violations on appeal or in Rule action; (2) State s failure to disclose letters between trial judge, attorney general and murder victim s husband which would have impeached husband s testimony and supported defense theory at trial violated Brady and warranted habeas relief, even though habeas petitioner did not open the entire defense file to the State in the habeas case or call all prior defense counsel to testify in the habeas proceeding; (3) State s failure to disclose that murder victim s daughter had reported to police that another suspect in the murder had violated a protection order against her violated Brady and warranted habeas relief because such evidence would have impeached daughter s testimony and supported the defense theory that this other suspect committed the murder; even though the prosecutor may not have had knowledge of this protection-order evidence, the State was still responsible under Brady for the police s failure to disclose it, and even though the defense knew before trial of some matters about the protection order because daughter had mentioned it in her pretrial deposition, daughter s deposition testimony on this was misleading and incomplete because she did not testify that suspect had made any threats or that she had reported them to police; (4) in assessing Brady prejudice in habeas proceeding, court can consider newly discovered evidence of innocence in addition to the Brady violations and the matters presented at trial to determine if the trial verdict is no longer worthy of confidence. Confrontation and Hearsay Williams v. Illinois, 132 S.Ct (2012) Holding: The Court held that a defendant s right to confront a witness was not violated. In this case, a forensic specialist at the Illinois State Police Lab was permitted to testify that she matched a DNA profile produced by an outside lab to a profile the State Lab produced using a sample of the defendant s blood. She testified that the outside lab was an accredited lab and that business records show that vaginal swabs taken from a rape victim were sent to the outside lab and returned. She offered no testimony establishing how the outside lab handled or tested a sample or vouched for the outside lab s profile. The Court found that, under these circumstances, defendant s right to confront the witness was not violated particularly because the references to the outside lab were not hearsay or were not offered for the truth of the matter asserted. Illinois Rule of Evidence 703 permit an expert to disclose facts on which the expert s opinion is based even if the expert was unable to testify as to the underlying facts. Discovery State v. Storer, 368 S.W.3d 293 (Mo. App. S.D. 2012) Where jury hung and then State dismissed charges and refiled them, the re-prosecution of Defendant was prohibited by Sec which states that a dismissal by a prosecutor after double jeopardy has attached is with prejudice unless the Defendant has consented to the dismissal, and which defines jeopardy as attaching when the jury is impaneled and sworn. Facts: Defendant was charged with various offenses, and went to jury trial. After several hours of deliberation, the jury hung and the court declared a mistrial. Two weeks later, the State entered a nolle prosequi of the charges, and told Defendant it intended to re-file. Defendant never consented to the case being dismissed without prejudice. Thereafter, the State dismissed 2 H--2

4 the charges and re-filed. Defendant filed a motion to dismiss, claiming the re-filed charges were barred by double jeopardy. The trial court granted the motion to dismiss. The State appealed. Holding: The State claims the re-filing is not barred by double jeopardy because the first trial ended in a hung jury. The State is confusing constitutional double jeopardy with the applicable statute here. Sec provides that a dismissal filed by the prosecutor after double jeopardy has attached is with prejudice, unless the criminal defendant has consented to having the case dismissed without prejudice. The statute further provides that double jeopardy attaches in a jury trial when the jury has been impaneled and sworn. The State argues the statute was not intended to apply when there has been a hung jury. But courts can only interpret statutes by applying the plain language of them. Sec provides that double jeopardy attaches when a jury is impaneled and sworn. Applying that clear definition, the clear result is that a dismissal after the jury has been impaneled and sworn is with prejudice unless the defendant has consented to the case being dismissed without prejudice. Here, Defendant never gave such consent. The dismissal served as a bar to the case being re-filed. Double Jeopardy United States v. Thompson, 690 F.3d 977 (8 th Cir. 2012) Judgment of acquittal - district court at first granted motion for judgment of acquittal then reversed itself - Double Jeopardy Clause violated. Facts: At the close of the government s case, district court granted defendant s motion for judgment of acquittal. District court later reversed itself and jury found defendant guilty. District court imposed sentence on jury s verdict. Holding: Court reverses. Once a defendant has been acquitted by judge or jury, subjecting the defendant to post-acquittal fact-finding proceedings going to guilt or innocence violates the Double Jeopardy Clause. District court s judgment of acquittal was a determination that the government had not met its burden. Defendant had no reason to doubt finality of district court s ruling, and there was no indication on its face that the ruling was tentative. Once defendant rested his case, relying at least in part on the district court s judgment of acquittal, double jeopardy attached and the district court s reversal of that judgment was a constitutional violation. DWI Missouri v. McNeely, 133 S.Ct (2013) Holding: The Court affirmed the holding of the Missouri Supreme Court that, in order for the officers to obtain a blood test from a defendant who was being investigated for a blood alcohol concentration offense, a search warrant was required under the circumstances of the case. In this case, however, the Court held that the test to determine when a search warrant was required under these circumstances was based on a totality of the circumstances. Evidence State v. Sprofera, 372 S.W.3d 317 (Mo. App. W.D. 2012) Court abused discretion in allowing State to admit evidence that Defendant called Prosecutor a cunt because this had no logical relevance in proving the elements of the case or impeaching Defendant s testimony. 3 H--3

5 Facts: Defendant was charged with various child sex offenses. At trial, he testified he was a calm parent and did not have a significant temper. The State, over objection, was then allowed to cross-examine Defendant about an outburst he had made at a prior court appearance where he called the Prosecutor a cunt in court. Holding: The State claims the cross-examination was relevant to impeaching Defendant s testimony that he was a calm parent and did not have a significant temper. However, we fail to see any logical relevance a profane outburst made to a prosecutor could have in proving the elements of the case against Defendant or in impeaching his testimony about his parenting. Given that the testimony was wholly irrelevant and could have prejudicial effect, the Prosecutor should not have been allowed to ask the question and the objection should have been sustained. However, the evidence was harmless in light of other evidence of guilt here. Guilty Plea Williams v. State, 367 S.W.3d 652 (Mo. App. E.D. 2012) Failure to inform defendant of the mandatory minimum punishment for an offense may be ineffective assistance of counsel when the defendant consequently rejects a favorable plea offer, but defendant was not prejudiced as he was aware of the maximum punishment and his erroneous beliefs about the sentence that he would actually receive if he stood trial were not due to any misinformation from counsel. Facts: The defendant filed a Rule action, alleging that had counsel informed him of the ten year minimum sentence for robbery he would have accepted the state s plea offer. Holding: Affirmed. The plea process was a critical stage requiring effective counsel, and knowing the mandatory minimum was necessary for evaluating a plea offer. But the defendant understood that he faced up to thirty years or life imprisonment and his erroneous belief that he would be sentenced to no more than seven years was not due to any advice from counsel. Williams v. United States, 705 F.3d 293 (8 th Cir. 2012) Successive 2255 petition - neither Lafler v. Cooper nor Frye v. Missouri is retroactive. Holding: Court denies petitioner s request to file a second 2255 petition. Defendant, relying on Lafler v. Cooper and Missouri v. Frye, requests authorization to file a second 2255 motion to present a claim that he rejected a favorable plea offer because trial counsel failed to explain the terms of the offer or the consequences of rejecting it. Petitioner filed his first 2255 motion before Cooper and Frye were decided, and claims he thus could not have presented this claim in his first 2255 motion. Pursuant to 2255(h)(2), court can authorize a second or successive 2255 motion that contains a claim based on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. In Cooper and Frye the Supreme Court noted that its analysis was consistent with the approach many lower courts had taken for years, as well as with its own precedent. Court concludes that neither Cooper nor Frye announced a new rule of constitutional law, and petitioner s request for authorization is denied. Chaidez v. United States, 133 D.Ct (2013) Holding: The Court held that the holding in Padella v. Kentucky to the effect that the Sixth Amendment to the United States Constitution requires defense attorneys to inform non-citizens of the deportation risk of guilty pleas was not retroactive in cases already final on direct review. 4 H--4

6 According an excellent article in the March 13, 2013 edition of The Champion, at page 43, authored by Jeffrey Fisher and Kendall Turner, the ruling in Chaidez is not as broad or absolute as it may sound. Three overlapping categories of defendants may still benefit from the retroactive application of Padella: (1) defendants seeking relief in timely filed first conviction proceedings; (2) defendants who received affirmative misadvice (as opposed to no advice) concerning deportation consequences; and (3) defendants with state convictions seeking relief in states that have more generous retroactivity frameworks than the federal courts. Immunity Self-Incrimination State ex rel. Nothum v. Walsh, 380 S.W.3d 557 (Mo. banc 2012) Even though Prosecutor had granted use immunity to Debtors under Sec , Debtors could still assert their 5 th Amendment privilege not to testify since use immunity is more limited than the constitutional privilege. Facts: Creditors sought to compel Debtors to testify about various assets. Prosecutor had granted use immunity to Debtors under Sec Debtors asserted their 5 th Amendment privilege against self-incrimination and refused to testify. Trial court held Debtors in contempt. Debtors sought writ of prohibition. Holding: To supplant the privilege against compulsory self-incrimination, the scope of immunity granted must be co-extensive with the scope of the constitutional privilege, which includes both use immunity and derivative use immunity. Here, Debtors received immunity pursuant to Sec , which authorizes a prosecutor only to provide use immunity to a judgment debtor. A prosecutor has no inherent authority to provide immunity beyond the authority granted by Missouri statutes. The issue of whether a trial judge has inherent authority to grant immunity has not been addressed in Missouri and is not presented here. Here, the only immunity granted was use immunity. Such immunity did not include derivative use immunity and so it was not co-extensive with the 5 th Amendment privilege. Thus, the trial court abused its discretion in compelling Debtors to testify. Writ of prohibition granted. Juvenile Miller v. Alabama, 132 S.Ct (2012) The Court held that a juvenile convicted of murder and sentenced to a mandatory term of life imprisonment without parole was entitled to have his sentenced vacated as it was violative of the Eighth Amendment to the United States Constitution which prohibits cruel and unusual punishment. Privileges United States v. Spencer, 700 F.3d 317 (8 th Cir. 2012) Attorney-client privilege - attorney acted as tax preparer - no privilege where attorney acts as conduit for funds, scrivener or business advisor. Holding: Court rejects defendant s challenge to district court s determination that no attorneyclient privilege existed between defendant and attorney acting as tax preparer. Attorney-client privilege protects confidential communications between a client and his attorney made for the purpose of facilitating or rendering legal services to client. Privilege does not apply when 5 H--5

7 attorney acts in another capacity, such as conduit for client s funds, scrivener or business advisor. Court has held that attorney who prepares income tax return acts as scrivener. Defendant presented no evidence that he sought tax-planning advice from attorney or that defendant believed an attorney-client relationship had been formed. Rule /;19.25 & Habeas Post-Conviction Procedural Issues Maples v. Thomas, 132 S.Ct. 912 (2012) Holding: Where petitioner s state post-conviction counsel abandoned him without telling him and thus petitioner missed a state post-conviction filing deadline, this constituted cause to excuse the procedural default for federal habeas purposes. Martinez v. Ryan, 132 S.Ct (2012) Holding: Where claim of ineffective assistance of trial counsel was not presented to State court, federal habeas court may excuse this procedural default if post-conviction counsel failed to provide effective assistance or there was no post-conviction counsel at all in the State proceeding. Search and Seizure Suppression of Physical Evidence State v. Sachs, 372 S.W.3d 56 (Mo. App. W.D. 2012) Even though State claimed exigent circumstances existed to justify search of a computer believed to contain child pornography because the computer might be unplugged later, a warrant should have been obtained because Officer admitted it was okay to unplug the computer and mere inconvenience to police did not justify failure to get a warrant. Facts: Three Officers conducting child pornography investigation went to Defendant s apartment, informed Defendant they were investigating child pornography and believed his computer could be involved in it, and asked to view the computer. Defendant said he had accidently downloaded child pornography before but deleted it. Defendant refused a request to examine his computer. Officer told Defendant he was going to apply for a search warrant. Defendant then said he would probably find child pornography on the computer. Officer then allowed Defendant to use the telephone. While Defendant was calling his parents, Officer clicked on icons on the computer and began to examine it. He saw files being uploaded and downloaded using LimeWire, many of which had names suggesting child pornography. Officer took pictures of these screens. Officer then unplugged computer and took it to Sheriff s Office. The next day, a warrant was obtained and the computer searched. This search also located child pornography. Defendant moved to suppress all evidence on the computer. Holding: When Officer began clicking on icons to view different items on the computer, this was a search. The generally accepted practice is for law enforcement to stop and seek an explicit warrant when they encounter a computer they believed should be searched. The State claims exigent circumstances existed because the computer s RAM (random access memory) would disappear when the officer unplugged the computer. But the record here does not establish any pressing need to unplug the computer before obtaining a warrant. Three officers were present in the apartment to secure the scene. They could have stayed with the computer while obtaining a warrant. Getting a warrant was merely inconvenient. Moreover, the Officer here turned off the computer himself, so turning off the computer cannot justify exigent circumstances. However, a 6 H--6

8 warrant was obtained later so evidence discovered after the warrant would have been inevitably discovered. The evidence prior to the warrant should have been suppressed, but not the evidence afterwards. Since the evidence afterwards is sufficient to convict, the failure to suppress was harmless here. Florida v. Harris, 133 S.Ct (2013) Facts: The police pulled over the defendant for a routine traffic stop. After the defendant did not consent to the search of his truck, the officer executed a sniff test with a narcotics dog. The search did not find anything the dog was trained to detect but did reveal pseudoephedrine and other materials for manufacturing methamphetamine. Holding: The Court held that the officer had probable cause to search the defendant s truck because training and testing records supported the dog s reliability. Florida v. Jardines, 133 S.Ct. 140 (2013) Facts: The police utilized a drug sniffing dog on the defendant s front porch where the dog gave positive alerts for narcotics. Based on the alert, the officers obtained a search warrant which revealed marijuana plants. Holding: The Court held that there was an unlawful search of Jardine s home within the meaning of the Fourth Amendment. 7 H--7

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