Criminal LawEditor:Ellen H. Flottman, Esquire
Postconviction movant failed to prove that his understanding
of his jury trial waiver was impaired by not having a Spanish
interpreter present. Sanchez v. State, No. 30384 (Mo. App. S.D., January 27, 2011), Barney, J.
Movant appeals from Rule 29.15 postconviction motion which challenged
his conviction after a bench trial of deviate sexual assault.
Location is not an element of tampering with a judicial officer. State v.Wolfe, No. 30166 (Mo. App. S.D., January 19, 2011), Scott, C. J.
Defendant was convicted of two counts of tampering with a judicial officer for sending letters to two judges.
Held: Affirmed. Location is not an element of the
offense, so the state did not have to prove the letters were sent in
Greene County, despite its being in the jury instructions.
Breath test taken without a warrant was proper as incident to arrest. State v. Dowdy, No. 30381 (Mo. App. S.D., January 19, 2011), Scott, C. J.
Defendant was charged with second-degree murder, armed criminal
action and unlawful use of a weapon. The trial court granted his
motion to suppress the results of a warrantless breath test of his blood
alcohol content. The state appealed.
Held: Reversed and remanded. The sample was taken without consent but incident to a lawful arrest, citing Schmerber v. California, 384 U.S. 757 (1966).
Defendant not entitled to offer evidence on initial
aggressor where deadly force was used that was not necessary to repel
an assault without a weapon. State v. Wiley, No. 30014 (Mo. App. S.D., January 19, 2011), Scott, C. J.
Defendant was convicted of first-degree assault and armed criminal action.
Held: Affirmed. Defendant claimed self-defense,
testifying that the victim attacked first and used a racial slur toward
Defendant. Defendant appealed, claiming the trial court erred in
excluding evidence that the victim had earlier told a friend he was
"going to kill [Defendant]." Although the evidence might have been
relevant to the question of initial aggressor, the court does not reach
the question because Defendant was not entitled to use deadly force, a
knife, to repel simple assault.
No prejudice to Defendant in pre-indictment delay of thirty-two years. State v. Kleine, No. 30313 (Mo. App. S.D., January 13, 2011), Rahmeyer, J.
Defendant was charged with two counts of first-degree murder and
tried in 1970, which resulted in a hung jury. The charges were
dismissed for failure to prosecute in 1976. Defendant was recharged
in 2008 and convicted in 2009. He claims on appeal that the delay of
thirty-two years violated his rights to a speedy trial and due process.
Held: Affirmed. As there was no bad faith and the only claims of prejudice were speculative, Defendant's claim fails.
Where state failed to prove whether Defendant was
represented by counsel on prior offenses, they are not given the
opportunity to offer additional evidence regarding priors on remand. State v. Collins, No. 90839 (Mo. banc, January 11, 2011), Per Curiam.
Defendant was convicted of driving while intoxicated after a bench
trial. He was sentenced as a chronic DWI offender. The state conceded
that the finding of chronic DWI offender was erroneous because they
failed to prove whether Defendant was represented by counsel in his
prior cases. The question is remedy.
Held: Sentence vacated. Remanded
for re-sentencing on the class B misdemeanor of DWI. The state is not
entitled on remand to present additional evidence to prove Defendant is
a chronic offender.
Missouri's DWI law is not void for vagueness. State v. Schroeder, No. 90738 (Mo. banc, January 11, 2011), Price, C. J.
Defendant was convicted of failure to dim headlights, driving while intoxicated, and driving with a revoked license.
Held: Affirmed. Ordinary people can understand what is meant by the terms "intoxicated condition" and "under the influence."
Failure to give mandatory instruction on considering offenses separately was not plain error. State v. Williams, No. 30225(Mo. App. S.D., January 6, 2011), Lynch, J.
Defendant was convicted of three counts of statutory rape in the
first degree and one count of statutory sodomy in the first degree.
Held: Affirmed. Although the court failed to give
the jury the mandatory instruction, MAI-CR3d 304.12, to consider each
offense separately, the failure to do so did not prejudice Defendant so
as to result in manifest injustice or miscarriage of justice.
Rosalynn Koch, Esquire
Expert testimony that Defendant exhibited "rational and
deliberate behavior" when she killed her child was not prejudicial,
even if deliberation was not a proper subject for expert testimony. State of Missouri v. Pickens, No. 93494 (Mo. App. E.D., January 25, 2011), Mooney, J.
Defendant was charged with a number of offenses, including first
degree murder for poisoning her son. At trial a forensic psychologist
testified that her actions were consistent with a mental disorder known
as "Munchausen syndrome by proxy." The expert also opined that her
acts were "rational and deliberate behavior." Defendant appealed her
conviction, claiming that this latter testimony invaded the province of
Held: Affirmed. The expert's testimony did invade
the province of the jury because it suggested that Defendant had the
requisite mental state for first degree murder. But it was a single
isolated occurrence and not argued in closing; and, most importantly,
the defendant was convicted of second degree felony murder and
therefore it did not influence the jury.
The Missouri Bar Courts Bulletin, 11-Feb