Criminal Law


Editor:
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. 
Held:  Affirmed.

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. 

Editor:
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 the jury.
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