Criminal Law

Editor:
Rosalynn Koch, Esquire 

Transfer to Missouri Supreme Court to examine propriety of waiver of postconviction claims regarding effectiveness of counsel in the course of a guilty plea.  Burgess v. State of Missouri, No. 94641 (Mo. App. E.D., February 22, 2011), Dowd, J.
As part of his plea agreement, the defendant waived his right to postconviction relief.  He later filed a postconviction action alleging ineffective assistance of counsel, which was dismissed due to the waiver.
Held: Cause transferred.  According to Formal Opinion 126 of the Advisory Committee of the Supreme Court of Missouri, it is impermissible for defense counsel to advise the defendant concerning any waiver of claims as to counsel's performance because counsel's interests are adverse to those of the defendant.  The impact of this formal opinion raises a matter of general interest and importance appropriately addressed in the Supreme Court.
Comment:  The court had previously upheld a similar waiver in Cooper v. State of Missouri, No. 94757 (Mo. App. E.D., February 15, 2011).  Burgess did not mention or distinguish Cooper.
Update: On March 8, the court transferred another case, noting that it would ordinarily have remanded for dismissal but the movant alleged a conflict of interest.  Krupp, Jr. v. State of Missouri, No. 95024 (Mo. App. E.D., March 8, 2011). Postconviction movants may be required to plead the existence of a conflict in order to overcome the waiver issue.  

Court may admit juvenile records at sentencing phase of trial.  State of Missouri v. Sapien, No. 69575 (Mo. App. W.D., February 22, 2011), Welsh, J.
During the defendant's sentencing hearing, the state adduced records of juvenile proceedings in which the defendant was found delinquent due to committing a rape.  The defendant appealed, claiming a violation of Section 217.271.3, which provides that records of the juvenile court are not to be used in any proceedings outside of Chapter 211.
Held: Affirmed.  The statute appeared to be in conflict with Section 211.271.3, which provides that records of juvenile proceedings are open to the public after a child has been adjudicated delinquent for an offense which would be a felony if committed by an adult.  The latter statute is more specific, insofar as it applies only to felony charges.  Also, Section 211.271.3 was amended by the legislature more recently.  It supersedes and qualifies Section 217.271.3.  Records of the previous delinquency proceedings are therefore admissible.
Judge Ahuja, dissenting on other grounds: The state did not have the right to show that the defendant had previously raped a witness in the past in order to explain the witness' failure to immediately report what she saw defendant doing.  The state was the first to establish that she had delayed reporting, and the defense only emphasized on cross-examination what the state had already proven.  Thus, the defense did not open the door to the evidence on rebuttal; the state cannot preemptively "open the door" itself and then seek to exploit an opening that it had itself created.

State cannot use a video deposition of a witness without showing that it made an effort to procure his attendance and that he was unavailable.  Woods v. State of Missouri, No. 94540 (Mo. App. E.D., February 15, 2011), Norton, J.
Defendant  was charged with several counts of stealing and burglary.  One of his alleged victims had plans to attend medical school in Pennsylvania at the time of trial, so the state took his video deposition to preserve his testimony and presented the deposition at trial over the defendant's objection.
Held:  Reversed in part.  While Missouri subpoena power did not extend to Pennsylvania, the prosecution could have availed itself of the Uniform Law to Secure Attendance of Witnesses from Within or Without the State in Criminal Proceedings.  There was no evidence that the state attempted to use this law or made other efforts to obtain the victim's attendance at trial.  Attending mandatory medical school classes on the east coast was did not per se equal unavailability.  Admission of the video deprived the defendant of his right of confrontation.

Claim of ineffective assistance of counsel considered on its merits on appeal from a misdemeanor conviction.  State of Missouri v. Beckemeyer, No. 94412 (Mo. App. E.D., February 15, 2011), Richter, J.
Defendant was convicted of misdemeanor domestic assault.  On appeal, he argued that the trial court erred in failing to sua sponte declare a mistrial because his trial counsel was ineffective in failing to call a necessary witness.
Held:  Affirmed.  The defendant failed to show that trial counsel's performance was deficient or that the defendant was prejudiced.

Trial court lacks statutory authority to credit defendant with time spent on probation after judgment and sentence have been entered.  State of Missouri ex rel., Scroggins v. The Honorable Kellogg, No. 73178 (Mo. App. W.D., February 8, 2011), Martin, J.
In October 2010, respondent granted a prisoner credit for time that he had spent on probation before his probation was revoked in 2004.  The state sought a writ.
Held:  Writ of prohibition and mandamus issued.  The court lost jurisdiction after judgment and sentence were entered.  While Section 559.100.2 provides that the circuit court may credit time spent on probation against the prison term, the statute does not create "freestanding" authority, but only permits the court to grant credit in the context of a probation revocation proceeding.

Defendant's refusal to cooperate in a court-ordered psychiatric examination does not obviate the requirement that an appointed expert file a mental health report.  State of Missouri v. Wilkerson, No. 71314 (Mo. App. W.D., February 1, 2011), Pfeiffer, J.
Upon concluding that the defendant's behavior raised competency questions, the court ordered a mental health examination and report.  The defendant refused to meet with the expert and the expert notified the court that he could not give a report.  The court took no further action upon the issue, and defendant was convicted.
Held:  Reversed.  Once the defendant's mental competency is questioned, an expert report is mandatory. If the defendant refuses to cooperate, the expert should use other sources, including transcripts, police reports, and interviews.  It was plain error to proceed without addressing the competency issue.

The Missouri Bar Courts Bulletin, 11-Mar