Criminal Law

Ellen H. Flottman, Esquire

Statements made in conjunction with an SAR were inadmissible as part of a withdrawn guilty plea, pursuant to Rule 24.02(d)(5). State v. Thieman, No. 30818 (Mo. App. S.D., November 10, 2011), Lynch, J.

Defendant was convicted of assault in the first degree, armed criminal action and unlawful use of a weapon. 

  Affirmed.  In this case, the objection was not preserved in the motion for new trial.  The error did not rise to the level of plain error, as it was not outcome determinative.

Rosalynn Koch, Esquire

Trial court erred in admitting defendant’s entire driving record to prove that he was driving while revoked, and should have either accepted defendant’s offer to stipulate to essential facts or admitted only the revocation with reasons redacted.  State v. Moore, No. 95643 (Mo. App. E.D., November 8, 2011), Mooney, J.

The defendant, charged with driving while revoked and other offenses, offered to stipulate to the revocation and his knowledge, but the trial court admitted the entire record containing numerous traffic violations and criminal convictions.  The state used the record to argue his other violations, and the defendant appealed his convictions.

Held:  Reversed and remanded.
  The court should have accepted the stipulation or admitted a redacted record.  The evidence on the other counts was not overwhelming, and admission of the entire record therefore prejudiced the defendant.

A defendant may be convicted of both forcible rape and statutory rape for the same conduct.  State v. Walker, No. 95089 (Mo. App. E.D., November 8, 2011), Mooney, J.

The defendant was convicted of both forcible rape and statutory rape for one act of rape.  He asserted a double jeopardy violation on appeal.

Held:  Affirmed.  Prior to 1994, there was one offense of rape.  In 1994 the legislature separated out forcible and statutory rape into two offenses, so that there are now two distinct offenses with separate punishments.

Movant made viable claim of appellate counsel’s effectiveness in failure to challenge sufficiency of the evidence that the gun the defendant exhibited, which was never recovered, was readily capable of lethal use.  Williams v. State, No. 95386 (Mo. App. E.D., November 15, 2011), Draper, S.J.

Postconviction movant claimed that appellate counsel should have challenged sufficiency of the evidence that the gun he exhibited, which was never found after the offense, was readily capable of lethal use. 

Held:  Affirmed in part, reversed and remanded in part.  While a gun generally is capable of lethal use, there was no specific proof regarding the particular gun that appellant had exhibited.  The state was required to adduce some evidence that appellant’s gun was at the time readily capable of lethal use.

Trial court should have suppressed contraband discovered when the officer searched the defendant because he was adjusting his pants in a manner that he appeared to be concealing a weapon, in view of lack of evidence as to the officer’s experience with weapons arrests; but error was harmless because the defendant admitted possessing the contraband.  State v. Norfolk, No. 95468 (Mo. App. E.D., November 15, 2011), Draper, S.J.

The defendant, charged with weapons and controlled substances offenses, unsuccessfully moved to suppress evidence seized after an officer observed him adjusting his pants from the back instead of the front and concluded that he was likely concealing a weapon.  The officer, who had been on the force only two years, admitted that she did not see a bulge and the defendant could have merely been pulling up his pants.

Held:  Affirmed.
  The evidence should have been suppressed because the record did not establish that the officer had experience that would justify her conclusion.  Also, concealed weapons may be carried lawfully with a permit. The error was harmless, however, because the defendant testified and admitted possession.  The court finds this result troubling, because the defendant had been forced to testify in the face of illegally seized evidence.  But precedent compels the result reached and any change in the law should come from the Supreme Court.

Defendant may be convicted of multiple counts of possession of child pornography for different photographs acquired at different points in time.  State v. Roggenbuck, No. 27045 (Mo. App. W.D., November 15, 2011), Welsh, J.

The defendant alleged a double jeopardy violation after he was convicted of five counts of possession of child pornography for five pictures discovered in a search of his computer.

Held:  Affirmed.
  The five photographs were not related to each other.  There were five different acts, justifying separate convictions.  The defendant’s factual situation is thus different from that presented in State v. Liberty, a recent Western District case that is now before the Supreme Court.

Miranda waiver invalid when the defendant did not read the Miranda form, did not verbally acknowledge understanding his rights, and did not initial each as provided on the form, because the state must prove the defendant actually understood his rights before signing the form.  State v. Sparkling, No. 73737 (Mo. App. W.D., November 29, 2011), Pfeiffer, J.

The defendant made a statement after being advised of his rights.  A videotape of the interrogation showed that when the officer asked him if he understood his rights, he did not answer.  He did not appear to read the form before signing it, nor did he initial each right as detailed on the waiver form.  There was no evidence of the defendant’s education, age, or prior experience with the criminal justice system.  The trial court suppressed the defendant’s statement.

Held:  Affirmed.  The prosecution was required to prove not only that the defendant was advised of his rights under Miranda, but also that that he understood them before signing the form and speaking with the authorities.

Prosecutor’s objection before the jury that defense medical records were being offered to avoid having the defendant testify necessitated a mistrial.  State v. O’Neal, No. 95274 (Mo. App. E.D., November 29, 2011), Hoff, J.

The defendant offered his medical records in evidence, and the prosecutor objected that these were mainly his statements and were being offered so that the defendant did not have to testify.   Defendant’s motion for mistrial was denied.

Held:  Reversed and remanded.  As a direct reference to the defendant’s failure to testify, the statement may have prejudiced the jury against the defendant for trying to use medical records rather than testifying.  No remedy short of a mistrial could counteract this direct reference.