Criminal Law

Editor:
Ellen H. Flottman, Esquire

Knowing and intelligent waiver of postconviction rights as part of a post-trial sentencing bargain is valid and enforceable. Defense counsel’s potential conflict of interest does not render the guilty plea unknowing, involuntary or unintelligent. Krupp v. State, No. 91613 (Mo. banc, December 6, 2011), Fischer, J.

Defendant was convicted by a jury of various offenses and entered into an agreement prior to sentencing for a plea to other counts, as well as for sentencing on the counts tried, in which he waived appeal and postconviction rights. Defendant filed a postconviction motion with the circuit court denied on the merits.

Held
:  Vacated and remanded with instructions to dismiss the postconviction motion. This is a companion case to Cooper, infra.


Knowing and intelligent waiver of post-conviction rights as part of a plea bargain is valid and enforceable. Defense counsel’s potential conflict of interest does not render the guilty plea unknowing, involuntary or unintelligent. Cooper v. State, No. 91695 (Mo. banc, December 6, 2011), Fischer, J.

Defendant pleaded guilty to two counts of stealing and waived his right to file a post-conviction motion in exchange for his bargained-for sentence of  fifteen years and probation. Defendant filed a post-conviction motion with the circuit court denied on the merits.

Held:
  Vacated and remanded with instructions to dismiss the postconviction motion.


The trial court erred in granting the State’s reverse-Batson challenge without requiring the State to make a prima facie case. The State failed to carry its burden of proving the defense counsel attempted to strike the affected venire-person for unconstitutionally discriminatory reasons. The error was harmless, because the erroneous denial of defendant’s peremptory strike merely resulted in the empanelling of an otherwise qualified juror. State v. Letica, No. 91849 (Mo. banc, December 20, 2011), Fischer, J.

Defendant was convicted of first degree assault and armed criminal action.

Held:  Affirmed.
Defendant can show no prejudice for the denial of the peremptory strike.


Post-conviction movant was not abandoned. Post-conviction counsel advised movant to dismiss his post-conviction case in order to prevent more serious charges from being filed against him  The voluntary and knowing waiver of post-conviction rights abrogated counsel’s duty to further proceed in the post-conviction case. Kirk v. State,  No. 31123 (Mo. App., S.D., December 31, 2011), Bates, J.

Post-conviction movant appeals from order denying his motion to reopen his Rule 24.035 proceeding on the grounds of abandonment.

Held:  Affirmed.


Editor:
Rosalynn Koch, Esquire

Because officers reasonably relied on binding appellate precedent in searching the defendants’ vehicles after ordering them to exit, the exclusionary rule does not apply despite later Supreme Court opinion invalidating the procedure; furthermore, the officers’ subjective intent was irrelevant. State v. Johnson, No. 91173; State v. Hicks, No. 91182; State v. Kingsley, No. 91214; State v. Kingsley, No. 91429 (Mo. banc December 6, 2011).

Defendants were all removed from their cars after a traffic stop revealed violations of the license laws. The cars then were searched, resulting in discovery of contraband for which the defendants were prosecuted. The United States Supreme Court later handed down Arizona v. Gant, invalidating such searches, and the defendants unsuccessfully moved to suppress the evidence.

Held: Affirmed.
The United States Supreme Court held in Davis v. U.S. that the exclusionary rule did not apply when officers acted in “objectively reasonable reliance” on binding appellate precedent before Gant. The officers’ subjective intent was irrelevant.


Right to confrontation does not prohibit an expert from testifying to his own independent conclusions, even if those conclusions rely in part on another’s autopsy report. State v. Fulton, No. 71820 (Mo. App. W.D., December 6, 2011), Mitchell, J.

At the defendant’s murder trial, the court admitted testimony of a physician who based his opinion as to cause of death upon investigative files and photographs, along with an autopsy report conducted by a medical examiner who was not present and did not testify at trial.

Held: Affirmed.
The expert testified to his own opinions and conclusions and not those of the autopsy report.


Amendment to the Sex Offender Registration Act (SORA) requiring reporting of changes in employment within three business days was not retrospective. State v. Guyer, No. 72580 (Mo. App. W.D., December 6, 2011), Ahuja, J.

The defendant sought to withdraw his plea of guilty to violating SORA’s requirement that he report change in his employment status to the authorities within three business days.

Held: Affirmed.
Before the statute’s amendment, the defendant was already required to supply law enforcement with his place of employment and to report any change of residence within three days. The amendment did not impose a new requirement to report his employment status; it merely required him to update that information if it changed.


The testimony of a cell phone owner that she owned the phone that received messages purportedly texted by the victim was insufficient to establish that the victim actually authored the messages. State v. Harris, No. 96045 (Mo. App. E.D., December 20, 2011), Romines, J.

In a statutory rape case, the defendant called the complainant’s babysitter who testified to receiving text messages from the victim. The court refused to admit the text messages.

Held: Affirmed.
The content of text messages is analogous to a personal letter and similar rules of admissibility should be applied, necessitating some proof that the messages were actually authored by the person who allegedly sent them. The court declined to follow State v. Smith, 330 S.W.3d 548 (Mo. App., S.D. 2010), which held that text messages sent by the defendant to a statutory rape victim to arrange a meeting were admissible on the testimony of the victim that she received the messages.


Remand for determination of voluntariness is necessary when trial court fails to make a finding before admitting the defendant’s statement for impeachment purposes. State v. Smoot, No. 95499 (Mo. App., E.D. December 27, 2011), Romines, J.

The defendant was convicted of forcible rape and forcible sodomy. He filed a motion to suppress, claiming that his statements were the result of physical abuse. Without holding a hearing or making a finding of voluntariness, the trial court admitted the statements for impeachment purposes only.

Held:
  Remanded for supplemental hearing on issue of voluntariness. If the statement was voluntary it could be admitted for impeachment, but the appeal court cannot review the matter where the trial court has not addressed it.