Ellen H. Flottman, Esquire
Stop exceeded the scope of its purpose, and taint was not attenuated by the discovery of an outstanding warrant. State v. Grayson, No. 90971 (Mo. banc, March 29, 2011), Stith, J.
Defendant was convicted of possession of a controlled substance. He
challenges the trial court's ruling on a motion to suppress evidence
and the admission of that evidence at trial.
Held: Reversed and remanded. The initial seizure
of Defendant was unreasonable as it was based solely on an
uncorroborated anonymous tip. It was improper for the officer to
continue to detain Defendant once he discovered that he was not the
right person simply because he had been arrested in the past. The taint
of the improper seizure was not attenuated by the discovery of an
Search did not exceed the scope of the stop due to passenger's nervousness and furtive movements. State v. Waldrup, No. 90978 (Mo. banc, March 1, 2011), Price, C.J.
Defendant was convicted of possession of a controlled
substance. He challenges the trial court's ruling on a motion to
suppress evidence and the admission of that evidence at trial.
Held: Affirmed. The stop was justified by
reasonable suspicion due to the visible nervousness of Defendant, who
was the passenger. He reached down into the floorboard as if trying to
retrieve or conceal a weapon or contraband. A pat-down for weapons was
therefore also within the scope of the stop. A subsequent radio check
revealed warrants, and then evidence of drugs was found incident to
Section 491.075 does not violate the Confrontation Clause where the child witness is available for cross-examination. State v. Biggs, No. 90775 (Mo. banc, March 1, 2011), Wolff, J.
Defendant was convicted of abuse of a child. He challenged the
constitutionality of Section 491.075, RSMo, which allows hearsay
statements of a child younger than 14 years of age to be admitted in
Held: Affirmed. The child witness was cooperative,
testified, and was available for cross-examination. The record
supported the trial court's finding that the statements provided
sufficient indicia of reliability.
Defense counsel not ineffective for choice of mental retardation expert. Johnson v. State, No. 90582 Mo. banc, March 1, 2011), Fischer, J.
Defendant was convicted of three counts of murder in the first degree
and sentenced to death. This is an appeal from the denial of
postconviction relief challenging the sentences of death after a new
penalty phase proceeding to determine mental retardation.
Held: Affirmed. Although the defense expert had been
held not credible in an earlier death penalty case affirmed by the
Missouri Supreme Court, counsel's decision to use this expert was
reasonable trial strategy.
Rosalynn Koch, Esquire
Attorney renders ineffective assistance by misinforming a client concerning parole in the course of a guilty plea. Webb v. State of Missouri, No. 91012 (Mo. banc, March 29, 2011), Per Curiam.
Movant's Rule 24.035 motion alleged that his attorney misled him by
advising him that he would not be required to serve 85 percent of his
sentence for manslaughter before becoming eligible for parole, and he
pled guilty in reliance on this advice. He was denied an evidentiary
Held: Reversed. The courts of appeals have
distinguished between counsel's failure to explain collateral
consequences of a guilty plea and affirmative misinformation on those
issues. That distinction should be adopted. The movant is entitled to
an opportunity to prove his claim.
Judge Wolff, joined by Judges Teitelman and Stith, concurring:
Trial counsel should be required to advise a client of statutory
restrictions on parole, which are "truly clear consequences" of a guilty
plea as is deportation. It is never a reasonable strategy for counsel
to overlook "practically inevitable" consequences of a guilty plea.
Judge Fischer, joined by Judges Price and Russell, dissenting:
The movant denied receiving any promises, so his allegation is refuted
by the record. If the court finds that a claim is refuted only upon a
narrowly tailored question, the finality of guilty pleas is placed on a
slippery slope, necessitating either "innumerable questions" from the
court or allowing the movant to challenge a conviction on "countless
Prejudice is presumed in habeas corpus proceeding based upon
extraneous jury influence; new evidence invoked the procedural gateway
of cause and prejudice. State ex rel. Chris Koster v. The Honorable Warren McElwain, No. 73211 (Mo. App. W.D., March 29, 2011), Martin, J.
Dale Helmig was convicted of the first degree murder of his mother,
and was unsuccessful on appeal and postconviction review. After he
successfully petitioned for a writ of habeas corpus, the State filed
for a writ of certiorari.
Held: Writ of habeas corpus upheld. Two grounds,
narrower than those found by the habeas court, support the writ. Cause
and prejudice exist for the claim that the state withheld evidence
establishing that the victim had been afraid of her estranged husband,
but not of Helmig, near the time of the murder. This claim previously
had no legal significance because Helmig's father had not been
connected with the offense. Because of evidence that came to light
linking the father to a purse that the killer presumably threw off a
bridge after the murder, the withheld evidence would now be admissible.
During deliberations, the jury consulted a map in order to evaluate
Helmig's alibi. Prejudice should be presumed in the same way as if the
issue had been raised on appeal. While a court may take judicial notice
of official state highway maps, that did not occur here and there was
no evidence that an official map was used; consequently, the State did
not rebut the presumption of prejudice.
The State may dismiss and refile a case, even if the
dismissal is intended to circumvent an unfavorable pretrial ruling. A
person may use deadly force only if acting under a belief that a felony
is actually occurring or imminent. State of Missouri v. Clinch, No. 71869 (Mo. App. W.D., March 22, 2011), Welsh, J.
Prior to Defendant's murder trial, the State moved to exclude
evidence of the victim's prior bad acts. Defendant intended to use the
acts to assert a claim of defense of others, and the State argued that
the defense was unavailable because of lack of evidence that he shot
the victim to defend anyone from "imminent" commission of a forcible
felony, as required by Section 563.031. The court initially granted the
State's motion but later reversed its ruling. The State then dismissed
the case and refiled it, obtaining a different judge and a different
ruling. Defendant was convicted after the jury was instructed that his
acts were justifiable as in defense of others only if he reasonably
believed a felony was imminent.
Held: Affirmed. As jeopardy had not attached, the
State had the power to dismiss and refile charges. A person is not
justified in using deadly force in the absence of a reasonable belief
that a felony is actually occurring or is imminent.
State's failure to object to out-of-time postconviction motion waives claim of untimeliness. Snyder v. State of Missouri, No. 72071 (Mo. App. W.D., March 22, 2011), Ellis, J.
In the movant's appeal from the denial of his postconviction motion,
the State asserted for the first time that the motion should be
dismissed as untimely.
Held: Affirmed. Failure to file a timely motion
constitutes a waiver of postconviction claims. Waiver is an affirmative
defense that must be properly pleaded under the rules. Statute of
limitations is non-jurisdictional and may be waived if not asserted in a
timely manner. The ruling is affirmed on the merits.
Taking of property from unfinished structure constituted a
burglary of a "building" pursuant to statute even though structure was
only twenty-five to thirty-five percent complete, lacked some doors and
windows, and was left open and unsecured. State of Missouri v. Ashby, No. 94036 (Mo. App. E.D., March 8, 2011), Ahrens, J.
Defendant was observed taking property from an apartment complex construction site and was convicted of burglary.
Held: Affirmed. The burglary statute does not define
a "building," but does imply a broad reading of the term by
distinguishing "a building" from "an inhabitable structure." The
entire exterior of the structure was complete. It had a roof, and it
Judge Mooney, dissenting: Missouri case law defines a
building as a permanent edifice "serving as a dwelling, storehouse,
factory.." The legislature intended for the term "building" to be
broader than merely a dwelling, but not a dwelling structure that was
not ready for habitation.
Failure to obtain clear waiver of the right to jury trial is plain error. State of Missouri v. Beam, No. 94457 (Mo. App. E.D., March 8, 2011), Odenwald, J.
Prior to trial, defense counsel informed the court that it was
setting the case for bench trial and in opening statement indicated
that Defendant was trying the case to the court because of the
insufficiency of the evidence. No other record was made on the issue of
Held: Reversed. There was no express mention of
Defendant's right to a jury trial or her desire to waive that right.
The best practice is to question Defendant personally, on the record, to
ensure that Defendant has discussed the issue with defense counsel and
understands the right, along with what is conceded in the waiver, and
is voluntarily requesting a bench trial.
Defendant communicated a credible threat to the victim by
driving in front of his home four times in one night and exiting his
car while holding a gun in plain view before driving off. The threat
was communicated even though the only person who witnessed his acts was
the victim's son. State of Missouri v. Bernhardt, No. 95044 (Mo. App. E.D., March 1, 2011), Ahrens, J.
Defendant drove to the victim's home at 3 a.m., parked momentarily,
left and returned several times. The last time he got out of the car
holding a handgun. The victim's adult son, whose bedroom faced the
street, witnessed each occurrence. Defendant was stopped and eventually
convicted of aggravated stalking and armed criminal action.
Held: Affirmed. While the Defendant did not
directly confront the victim or his family, his "repeated apparitions"
in the middle of the night, illuminated by street lights, and his
returning after evading security, proved that he wanted to communicate a
threat to the household. The threat did not have to reach the intended
recipient; it was sufficient that it reached an intermediary, which
could be a person, electronic device, or postal service.
The Missouri Bar Courts Bulletin, 11-Apr