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Criminal Law

Ellen H. Flottman, Esquire

Mandatory sentencing of juvenile to life without parole for first degree murder does not violate the Eighth Amendment.  State v. Andrews, No. 91006 (Mo. banc, December 21, 2010), Fisher, J.
Defendant was convicted of first degree murder, committed when he was fifteen years old and after he was certified to stand trial as an adult.  He was sentenced to life imprisonment without possibility of parole. 
Held: Affirmed.  Since under Roper v. Simmons, 543 U.S. 551 (2005), he was ineligible for the death penalty, life without parole was the only possible sentence.  It is not unconstitutionally cruel and unusual punishment under Roper and under Florida v. Graham, 130 S.Ct. 2011 (2010).  Further, the juvenile certification statute does not violate Apprendi insofar as it requires a judge to make factual findings which could subject a juvenile to the possibility of a life without parole sentence. 

Promise of leniency did not require confession to be suppressed. State v. Dixon, No. 95181(Mo. App. E.D., December 21, 2010), Dowd, J.
State of Missouri appeals the grant of the trial court's order suppressing Defendant's confessions. 
HeldReversed and remanded.  While a promise of leniency was made to Defendant during the confession, under the totality of the circumstances, it did not render his statements involuntary. 

Postconviction movant given the opportunity to withdraw plea of guilty when DOC did not place him in Sex Offender Assessment Unit in violation of the plea bargain. State v. Bryan, No. 30363 (Mo. App. S.D., December 14, 2010), Barney, J.
Appeal of a motion for postconviction relief pursuant to Rule 24.035 to set aside a guilty plea.
Held: Reversed and remanded with directions.  Defendant was promised as part of his plea bargain that he would be placed in the Sexual Offender Assessment Unit (SOAU) for assessment, to be followed by a suspended execution of sentence and probation.  He was never placed in SOAU by the Department of Corrections.  Because Defendant was denied placement through no fault of his own, he lost his opportunity to perform his part of the plea bargain and ensure his early release.

Insufficient evidence of attempted statutory rape in the first degree where Defendant believed he was communicating with a fourteen-year-old, not someone less than fourteen. State v. Smith, No. 30150 (Mo. App. S.D., December 8, 2010), Rahmeyer, P.J.
Defendant was convicted of enticement of a child and attempted statutory rape in the first degree. 
HeldAffirmed in part, reversed in part, and remanded with directions.  Defendant communicated with a police officer posing as a fourteen-year-old girl.  Judgment can properly be entered on the lesser included offense of attempted statutory rape in the second degree. 

Postconviction movant not abandoned by appellate counsel; untimely motion properly dismissed. Moore v. State, No. 90918 (Mo. banc, December 7, 2010)Russell, J.
Appeal from the dismissal of an untimely 29.15 postconviction motion. 
Held:  Affirmed.  The clerk of the appellate court sent Defendant the mandate from the direct appeal, therefore the untimeliness was not excused by appellate counsel's not providing notification to Defendant. 


Rosalynn Koch, Esquire 

Double jeopardy precludes state's appeal of trial court's ruling suppressing evidence made after closing arguments.  State v. Connell, No. 72643 (Mo. App. W.D., December 14, 2010), Pfeiffer, J.
Defendant filed a motion to suppress evidence that was denied.  He waived a jury and objected to the evidence during trial.  During closing argument, the defense claimed that the State had not proven its case because the only evidence before the court was the fruit of an illegal search.  The court requested additional authority and suggestions, and later reversed its ruling and granted the motion to suppress.  The state appealed.
Held:  Appeal dismissed.  The defense argument merged the issues of guilt and suppression, and the trial court considered them together. The State's appeal was not an interlocutory appeal but a post-trial appeal, and double jeopardy prevented a second prosecution.

Once officers develop reasonable suspicion of criminal activity during a traffic stop, they must resolve their suspicions in a timely manner, and may not prolong the stop in an attempt to get further information.  State v. Stover, Jr., No. 70594 (Mo. App. W.D., December 14, 2010), Per Curiam.
Questioning during a traffic stop suggested suspicious activity; two travelers on an extended trip had no luggage and gave conflicting accounts of their trip.  The officer continued extensive questioning, and waited until 20 minutes had passed to request consent to search.  The defendant refused, and the officer called for a canine unit that arrived 25 minutes later.  The canine search resulted in seizure of contraband and defendant's conviction for drug trafficking.  He appealed, challenging the trial court's denial of his motion to suppress the evidence.
HeldConviction vacated and remanded.  The officer protracted the detention unnecessarily before requesting consent to search and summoning the canine unit.  The length of detention is important, as reasonable suspicion is not tantamount to guilt.  The cause is remanded for retrial should the State be able to produce other evidence.

Defendant cannot be convicted of enticement of a child for attempts to meet a volunteer working with the sheriff's office.  State v. Davies, No. 70910, (Mo. App., W.D. December 14, 2010), Witt, J.
Defendant was caught in an internet sting operation in which college interns posed as children to converse with sexual predators.  He was convicted of enticement of a child and attempted statutory sodomy.
Held:  Enticement conviction reversed, conviction for attempted enticement entered. Section 566.151 criminalizes the enticement of a child under 15 or a peace officer masquerading as a minor.  The college volunteer was neither.  The evidence did establish attempted enticement of a child, and the jurors were required to find that the defendant  took a substantial step when it convicted him of attempted statutory sodomy. 

Driver could not be stopped for failing to signal when turning out of a parking lot.  State v. Loyd, No. 71692 (Mo. App., W.D. December 21, 2010), Witt, J.
Defendant was stopped when he failed to signal while pulling from a parking lot onto the roadway and touched the center line while driving. He was subsequently convicted of driving while revoked and driving while intoxicated after his motion to suppress evidence obtained as a result of the stop was denied.
Held: Reversed and remanded.  Missouri law required defendant to signal only if he was driving upon a roadway, and the relevant Kansas City ordinance applied only if he was turning at an intersection.  Consequently, failure to signal when turning out of a parking lot was not a traffic violation. Slightly touching the center line was an insignificant violation that did not justify a traffic stop.

Statutory provision conditioning early release for sex offenders upon completion of MOSOP does not violate the privilege against self-incrimination.  Spencer v. State of Missouri, et al., No. 72100, (Mo.  App., W.D. December 28, 2010), Ahuja, J.
Convicted sex offender appealed the trial court's dismissal of his petition for declaratory relief, filed after he was terminated from MOSOP due to his refusal to admit guilt.
Held:  Affirmed.  The United States Supreme Court has upheld laws creating programs requiring offenders to acknowledge their guilt.  The requirement serves a legitimate penological objective, and taking responsibility is an integral component of rehabilitation.   Conditional release and good-time credit are discretionary with the Board of Probation and Parole.

The Missouri Bar Courts Bulletin, 11-Jan