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Criminal Law

Ellen H. Flottman, Esquire

Replica sword was a deadly weapon.  State v. Harrell, No. 30312 (Mo. App., S.D., June 23, 2011), Burrell, J.

Defendant was convicted of burglary in the first degree and armed criminal action.

Held:  Affirmed.
Replica sword won at a carnival met the definition of a dagger, as it had a hilt, fixed blade, sharpened edges and a sharp point. Further, there was sufficient evidence that the entry to the building was made with the assistance of the deadly weapon, because there was evidence from which the jury could have found a glass window had been broken out with the weapon.

Declaratory judgment petition was incorrect remedy for challenge to unconstitutional criminal provision. Shaefer v. Koster, No. 91130 (Mo. banc, June 14, 2011), Teitelman, J.,

Petition for declaratory judgment asserted that enhanced penalty provisions of Section 577.023, RSMo was unconstitutional as violating the clear title, original purpose and single subject provisions; petition was dismissed below.

Held:  Affirmed.
Each plaintiff had an adequate remedy at law, as the challenge to the constitutionality of the statute and bill could have been raised in the criminal appeal of each. Judge Fischer, dissenting, opined that one plaintiff at least should have been allowed to pursue her claim in summary judgment, as the statute of limitations for a challenge would have run prior to the commencement of her criminal appeal.  

Multiple acts of sodomy were not distinguished in the verdict directors, violating requirement of unanimous verdict. State v. Celis-Garcia, No. 90980 (Mo. banc, June 14, 2011), Breckenridge, J.

Defendant was convicted of two counts of first degree statutory sodomy.

Held:  Reversed and remanded.
Defendant did not object to the verdict directors, but the issue rises to the level of plain error. This is a state constitutional violation only, as a conviction by less than a unanimous jury does not violate Sixth Amendment right to trial by jury.

Postconviction claim involving ramifications of accepting a plea offer was not cognizable since it was unrelated to fairness of the trial. Williams v. State, No. 30588 (Mo. App., S.D., June 20, 2011), Francis Jr., J.

Appeal from the denial of Rule 29.15 motion.

Held:  Affirmed.
Defendant who proceeded to trial could not raise ineffective assistance of counsel claim regarding advice about a plea offer. Overrules State v. Stillings, 882 S.W.2d 696 (Mo. App., S.D. 1994), and Collins v. State, 231 S.W.3d 861 (Mo. App., S.D. 2007).

Rosalynn Koch, Esquire

Absent the prosecution's participation in police misconduct intended to provoke a mistrial, the trial court is not authorized to dismiss the charges with prejudice. State v. Lee, No. 71924 (Mo. App. W.D., June 7, 2011), Smart Jr., J.

At trial, a police officer intentionally informed the jury of the defendant's involvement in prior bad acts. The trial court ordered a mistrial and, after finding that the officer intentionally provoked the mistrial, dismissed the charges.

Held:  Reversed.
A dismissal is authorized only if  prosecutorial misconduct has resulted in a mistrial. The police officer is subject to discipline, and the trial court has the power to punish by contempt for disrupting the proceedings or by striking the testimony of the "rogue witness."

Transfer to Missouri Supreme Court to determine whether authorities may procure a blood alcohol sample pursuant to the implied consent law if the motorist refuses consent. State v. McNeely, No. 96402 (Mo. App. E.D., June 21, 2011), Dowd Jr., J.

The defendant was arrested for driving while intoxicated and, after being informed of the Missouri implied consent law, refused to submit to blood alcohol testing.  The officer obtained a blood sample despite the refusal. The trial court granted the defendant's motion to suppress the results of the testing.

Held: Transferred to the Missouri Supreme Court.
The legislature has amended the implied consent law by deleting a provision that if the arrestee refused a request for a test, "none shall be given."  This indicates an intent to permit the officer to obtain a blood sample despite the motorist's refusal.

Prisoner cannot waive state jail time credit to obtain credit toward his federal sentence. Buehrle v. Missouri Department of Corrections, No. 95367 (Mo. App. E.D., June 21, 2011), Gaertner Jr., P.J.

Prisoner serving both federal and state sentences unsuccessfully sought a declaratory judgment permitting him to waive his jail time credit on his Missouri sentence so that he could receive that credit against his federal sentence.

Held: Affirmed
. There is no provision for waiver of jail time credit.

Transfer to Missouri Supreme Court to determine whether the erroneous denial of a defense peremptory strike is a structural defect. State v. Letica, No. 95498 (Mo. App. E.D. June 21, 2011), Dowd Jr., J.

The state challenged the defense peremptory strikes of four Caucasian jurors. Defense counsel proffered explanations that were rejected despite the state's failure to counter with a showing of pretext.

Held: Transferred to the Missouri Supreme Court.
As the state failed to prove that the explanations were pretextual, the trial court's ruling was clearly erroneous. The court would reverse on appeal, but instead transfers to the Missouri Supreme Court to determine whether the error was a structural error.

Mother who left her children in a park in the care of her thirteen year old for several hours due to a medical emergency did not create a substantial risk to their health. State v. Johnson, No. 95517 (Mo. App. E.D., June 28, 2011), Romines, J.

Mother needed to visit the hospital emergency room and, unable to find child care, left her thirteen, seven, and two year old children at a park for several hours in winter. The children had jackets but no mittens. Mother was convicted of endangering the welfare of a child.

Held:  Reversed.
The thirteen year old had babysat her siblings in the past. While the children appeared to be cold, the state failed to produce any evidence as to the temperature at the time and so did not prove an actual risk of harm.

Offense of possessing property in a county jail that may be used in a manner to endanger the safety or security of the institution does not require that the object be inherently dangerous; possession of contraband is not a lesser included offense. State v. McCabe, No. 72495 (Mo. App. W.D., June 28, 2011), Pfeiffer, J.

After he was found in possession of a stainless steel shower drain cover, inmate was convicted of possessing a prohibited article of property in a county jail that may be used in such manner as to endanger the safety or security of the institution.

Held:  Affirmed.
The statute does not require that the property be inherently dangerous. The trial court was not required to instruct as a lesser offense the misdemeanor of knowingly possessing contraband in a county jail, as each offense contained an element not contained in the other.

The Missouri Bar Courts Bulletin, 11-Jul