Criminal Law

Editor:
Ellen H. Flottman, Esquire

Where defendant claimed self-defense to murder charge, trial court was not obligated to give proffered verdict director for involuntary manslaughter absent evidence that the defendant was uncertain as to whether his actions would cause serious injury or death.  State v. Pulley, No. 95265 (Mo. App. E.D., October 4, 2011), Odenwald, C.J.

At his trial for second degree murder, the defendant testified that during a struggle he shot at the victim’s center mass because it was the easiest part to target, and was aware that the shot would “definitely disable” victim and cause “serious trouble.”  The court refused the defendant’s proffered involuntary manslaughter instruction.

Held:
Affirmed. While it is possible that an intentional act may result in acquittal for murder and conviction of manslaughter, here the defendant admitted to being substantially certain that the shooting would kill or seriously injure the victim and thus there was no evidence of recklessness.


A factual basis for a plea of guilty to distribution of methamphetamine is established when the defendant believes that the substance was methamphetamine. Evans v. State, No. 72937 (Mo. App. W.D., October 4, 2011), Witt, J.

Movant appealed denial of  Rule 24.035 relief, after claiming that the trial court failed to establish a basis for the plea when it asked her if the substance she delivered was methamphetamine and she replied, “I don’t know but I’m pretty sure it was.”

Held:  Affirmed. The movant had had prior experience with methamphetamine, and did not offer any reason to question the identity of the substance. A contrary result would cause insuperable difficulties in obtaining guilty pleas involving controlled substances.


Court’s order denying relief is not final unless denominated a “judgment.”  Middleton v. State, No. 73290 (Mo. App. W.D., October 18, 2011), Pfeiffer, J.

Movant brought a motion to reopen post-conviction proceedings, and the court entered an order denying relief.

Held:  Appeal dismissed.
Rule 74.01 requires that a judgment is not final unless it is in writing, signed by the judge, designated a “judgment,” and filed.


Defendant was guilty of failure to pay child support even though DNA testing had excluded his paternity; but he may seek relief under § 210.854. State v. Buckler, No. 72794 (Mo. App. W.D., October 18, 2011), Smart, J.

Defendant acquiesced in an action for paternity and child support based upon mother’s representations that he was the father. Subsequent DNA testing excluded him, and he discontinued child support payments. He was convicted of failure to pay child support after a trial, in which the court excluded evidence of the DNA test.

Held: Affirmed.
The judgment of paternity determined the existence of parent-child relationship “for all purposes.”  The state was not required to prove that the defendant was the child’s father. Defendant is an “ideal candidate” under § 210.854 to have his conviction set aside.


For purposes of Rule 32.07 regarding motions for change of judge, a judge is “designated” when an assignment is first made, not when a trial date is set before a particular judge. State v. Ford, No. 95804 (Mo. App. E.D., October 25, 2011), Gaertner, J.

Defendant was arraigned in September 2009, and a judge was assigned the case. In March 2010 defendant applied for a change of judge, which was denied. After that, the court set the case for trial and the defendant was convicted.

Held:  Affirmed.
The date the judge was “designated” was the date the judge first received assignment of the case, not, as the defendant contended, the date the trial was set before the judge.


Postconviction review is limited to claims involving felony convictions, even if movant claims that, but for irregularities in his misdemeanor proceeding, he would not have pled guilty to the felony. Newton v. State, No. 72558 (Mo. App. W.D., October 25, 2011), Ahuja, J.

Movant pled guilty to a controlled substances offense and misdemeanor domestic assault. He unsuccessfully sought post-conviction relief, alleging that he would not have pled guilty to the felony had his attorney properly developed a defense to the misdemeanor charge.

Held:  Affirmed
. Post-conviction claims can be considered only insofar as they relate to the felony convictions.