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
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
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