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Criminal Law

Ellen H. Flottman, Esquire

"Ring" error waived by guilty pleaState ex rel., Taylor  v. Steele, No. 90925 (Mo. banc, May 31, 2011), Russell, J.

Defendant pleaded guilty to kidnapping, rape and murder and was sentenced to death.  He seeks a writ of habeas corpus, arguing that his sentence was unconstitutionally imposed by a judge rather than a jury. 

Held: Writ denied.
Defendant waived any allegation of error under Ring v. Arizona, 536 U.S. 584 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000), when he strategically waived jury sentencing at his guilty plea.  See also companion case: State v. Nunley, No. 76981, (Mo. banc, May 31, 2011), Price, Jr., C.J. Defendant pleaded guilty to kidnapping, rape and murder and was sentenced to death.  He filed a motion to recall the mandate, arguing that his sentence was unconstitutionally imposed by a judge rather than a jury.  the motion to recall the mandate was overruled.

Missouri's "direct connection rule" for evidence of third-party guilt is constitutional.  State v. Nash, No. 90649 (Mo. banc, May 17, 2011), Russell, J.

Defendant was convicted of capital murder for a crime committed in 1982 and prosecuted in 2007. 

Held: Affirmed.
  The requirement that a defendant show a direct connection between a third party and the charged crime is not higher than a reasonable doubt standard, and does not violate the constitutional right to present a defense.  It prevents confusion of the issues and reduces the potential to mislead the jury. 

Error to use gun as demonstrative evidence during closing argument where no evidence was presented that the gun was similar to victim's gun. State v. Brown, No. 90853, (Mo. banc, May 17, 2011), Teitleman, J.

Defendant was convicted of murder in the second degree and armed criminal action. 

Held: Reversed and remanded
.  There was no evidence that the gun used as an exhibit in closing argument was similar in size and shape to the victim's gun; self-defense was at issue. 

Homeowner had reasonable expectation of privacy in his back yard.  State v. Bates, No. 30701 (Mo. App. S.D., May 13, 2011), Rahmeyer, J.

This is an appeal by the State of the grant of a motion to suppress physical evidence found in a drug trafficking case. 

Held:  Affirmed.
  Marijuana plant found on respondent's curtilage was in a zone of privacy where the deputy had no lawful right to be.  The State's inevitable discovery argument is speculative and unsupported by the evidence.  

Rosalynn Koch, Esquire 

Defendant entitled to credit for time spent awaiting extradition.  Howard v. Missouri Department of Corrections, No. 72520 (Mo. App. W.D., May 31, 2011), Witt, P.J.

Defendant appealed the grant of the state's motion for summary judgment in his declaratory action seeking credit for time served in Canada awaiting extradition.

Held:  Reversed and remanded.
  Defendant was "awaiting trial" while in Canadian jail, because the reason for the detainer was for the state to eventually bring him to trial.

Trial court cannot deny motion to suppress evidence pursuant to a search warrant without examining the warrant itself; the court was further required to hold a pretrial hearing on the defendant's motion to suppress his statements; on remand, the state may supply any deficiency in its proof.  State of Missouri v. Ingram, No. 94866 (Mo. App. E.D., May 24, 2011), Gaertner, Jr. P.J. 

Defendant charged with drug offenses moved to suppress his statements and to suppress evidence seized upon execution of a search warrant.  The trial court took the motions with the case. The state did not introduce the warrant in evidence.  The court denied both motions and the defendant was convicted.

Held:  Reversed and remanded
The trial court was required to conduct a pretrial hearing to determine the voluntariness of the defendant's statements, and it is the better practice to address any motion to suppress before trial.  Review of the validity of a search warrant is limited to the four corners of the warrant so that, without the warrant, the state cannot meet its burden of proof.  The State may retry the defendant, and on retrial may attempt to remedy the deficiencies and establish the warrant's validity.

Executive order transferring administration of Breath Alcohol Program to the Department of Transportation did not invalidate the procedures previously in place.  State of Missouri v. Ross, No. 71827 (Mo. App. W.D., May 17, 2011), Hardwick, C.J.

Defendant convicted of DWI challenged his breath test on the grounds that an executive order transferring regulation of the Breath Alcohol Program from Health and Senior Services to the Department of Transportation required that the testing procedure be established by the latter department.

Held: Affirmed.
The executive order contemplated a gradual, not an immediate transfer from one department to the other.

The Missouri Bar Courts Bulletin, 11-Jun