Criminal Law

Editor:
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 outstanding warrant. 

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 arrest. 

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 certain circumstances.
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.

Editor:
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 hearing.
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 grounds."

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 was permanent.
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 jury waiver.
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