Criminal Law

Editor:
Ellen H. Flottman, Esquire
Rosalynn Koch, Esquire

Agreement that in exchange for defendant’s truthful statements concerning a robbery and rape, “the term of imprisonment” he would receive “for his involvement and participation in these crimes” would “be served concurrently with prison sentences” he was then serving was not violated when his rape and robbery sentences were run consecutively to each other. State v. Hicks, No. 71650 (Mo. App. W.D., January 17, 2012), Ahuja, J.

As a suspect in a rape and robbery case, the defendant agreed to make a statement if the state would promise that any sentences that he received would “be served concurrently” with the sentences he was then serving. Under § 558.026.1, the robbery and sexual assault sentences must be consecutive. The trial court rejected the defendant’s claim that his statements were not voluntary and intelligent because the state violated its agreement.

Held: Affirmed; one robbery conviction vacated on other grounds
. The state only promised that the new “term of imprisonment” would be served concurrently but made no commitment as to the nature of that new term of imprisonment.

Dissent
: A reasonable person in defendant’s position would interpret the agreement as a promise that any sentences that he received would be concurrent with the sentences he was then serving. The state should have been required to dismiss the either robbery or the rape charges in order to introduce the defendant’s confession.


State cannot use investigative subpoenas to obtain a suspect’s text messages on an ongoing basis, without some grounds for believing they would contain admissions or other relevant information. State v. Clampitt, No. 73943 (Mo. App. W.D., January 24, 2012), Ellis, J.

In the course of investigating an involuntary manslaughter, the state periodically requested investigative subpoenas for the defendant’s text messages, ultimately obtaining four subpoenas extending over a 32-day period from the accident. The suspect finally admitted that he was the driver. The trial court held that the subpoenas violated the Fourth Amendment.

Held: Affirmed
. The subpoenas were not limited in scope or relevant in purpose. The period of time was continually extended until the state got what it wanted. Investigative subpoenas must be requested in good faith and are not for general fishing expeditions.


A truck shelter with only one complete wall is a “building” for burglary purposes. State v. Collins, No. 96069 (Mo. App. E.D., January 24, 2012), Romines, J.

The defendant stole property from a truck shelter that had no doors or windows. The shelter had one complete wall and the other three sides were partially enclosed.

Held: Affirmed
. The structure was somewhat enclosed and was used for storage. A structure does not have to have multiple complete walls to be a “building.”