Criminal Law

Ellen H. Flottman, Esquire

State’s dismissal of charges after first jury was impaneled and sworn was with prejudice and dismissal served as a bar to the case being re-filed under § 56.087. Double jeopardy question did not need to be reached. State v. Storer, No. 31303 (Mo. App. S.D., April 25, 2012), Lynch, J.

State’s appeal of trial court’s order dismissing felony information based on double jeopardy.

Held: Affirmed.

There must be some affirmative manifestation of intent to conduct a revocation hearing before probation expires. State ex rel. Stimel v. White, No. 31664 (Mo. App. S.D., April 11, 2012), Barney, J.

Relator sought to prohibit Judge White from revoking his probation because no formal revocation procedures were initiated prior to the expiration of Relator’s probation and the judge .

Held: Preliminary writ made absolute.

Rosalynn Koch, Esquire

Evidence of uncharged misconduct, including statutory rape victim’s observation of defendant’s assault on his wife and defendant’s profanity to police upon his arrest, was relevant to explain victim’s initial failure to accuse defendant when she became pregnant, and as evidence surrounding the circumstances of the defendant’s arrest; profanity directed to prosecutor was irrelevant but did not deprive the defendant of a fair trial. State v. Sprofera, No.73213 (Mo. App. W.D., April 10, 2012), Ellis, J.

At the defendant’s trial for statutory rape of his daughter, daughter testified that she had witnessed him striking her mother and breaking a mirror when he was angry. The police testified that defendant was extremely agitated and used vulgarity when he was arrested and taken to the police station. The state also adduced vulgar statements to the prosecutor, to rebut his claim that he was a calm parent.

Held:  Affirmed
. The assault was relevant to explain why victim had initially claimed that her brother had raped her when she was discovered to be pregnant. Circumstances of a defendant’s arrest are relevant. The profane outburst against the prosecutor was irrelevant and could have had some prejudicial effect, and the defense objection should have been sustained, but the evidence did not deprive the defendant of a fair trial.

Special Judge Del Muro, dissenting:
Defendant’s actions toward third parties was irrelevant, and at trial the evidence of daughter’s observations was argued as bad character evidence, not fear of reprisal evidence. Appellant’s actions upon arrest and trial had no probative value, and bolstered a weak case involving an impeachable prosecutrix who had made prior inconsistent statements and who, because her mother was divorcing her father, had a motive to lie.

Motion court was not required to hold an evidentiary hearing on a claim that counsel for movant, who was convicted of burglary after testifying that he had no intent to steal anything at the time he entered his neighbor’s home, was ineffective for failing to request a trespass instruction as a lesser included offense. McNeal v. State, No. 96796 (Mo. App. E.D., April 10, 2012), Romines, J.

Movant filed a Rule 29.15 motion challenging trial counsel’s failure to offer a verdict directing instruction submitting trespass. At his burglary trial, movant had testified that he was visiting a neighbor to check on money that he was owed at the time when he entered the apartment, and only after entering found a drill that he then took. The motion court found that counsel’s strategy was reasonable.

Held: Affirmed.
The record indicates that appellant and counsel were pursuing an all or nothing strategy with regard to the burglary charge.

Judge Mooney, dissenting
:  There was no discussion on the record about a lesser included instruction, and a trespass instruction did not conflict with the defense theory. The court’s clairvoyance is admirable, but the question of whether counsel employed reasonable strategy required an evidentiary hearing.

The use of defendant’s testimony from a previous trial did not violate his right against self-incrimination, even though he testified at his first trial only because his counsel’s ineffectiveness deprived him of a mental disease defense. State v. Williams, No. 72556 (Mo. App. W.D., April 17, 2012), Martin, J.

The defendant was retried after his convictions were vacated due to counsel’s ineffectiveness in failing to obtain state funds to procure a mental health expert regarding his criminal responsibility. He unsuccessfully objected to the state using his testimony from the first trial, claiming that it was induced by counsel’s ineffectiveness that had deprived him of his mental disease defense, and therefore its use was tainted by the ineffective assistance of counsel in the first case.

Held:  Affirmed
. While the state cannot use the defendant’s testimony from a hearing on a motion to suppress or postconviction proceeding because such testimony is “effectively compelled” for the defendant to vindicate a constitutional right, here by contrast the testimony was not compelled because it was not required to enforce his constitutional rights.