Criminal Law

Ellen H. Flottman, Esquire

Ineffective assistance of counsel to fail to call co-defendant to testify at trial. Co-defendant would have testified that Defendant was not with him at the time of the robbery. Smith v. State, No. 92127 (Mo. banc, July 3, 2012), Price, J.

This is the State’s appeal of the grant of a motion for post-conviction relief following convictions of robbery in the first degree and armed criminal action.

Held: Affirmed.

No error in the judge who sentenced the Defendant to death ruling the post-conviction relief petition. McLaughlin v. State, No. 91255 (Mo. banc, July 3, 2012), Breckenridge, J.

Defendant was convicted of first degree murder, forcible rape, and armed criminal action, and sentenced to death. This is the appeal of the denial of his motion for post-conviction relief, pursuant to Rule 29.15.

Held: Affirmed.

Three counts of child sexual offenses are reversed because the evidence did not support that any acts occurred during the time frame instructed to the jury. State v. Miller, No. 91948 (Mo. banc, July 3, 2012), Fischer, J.

Defendant was convicted of six sexual offenses involving a child.

Convictions of first degree statutory sodomy, deviate sexual assault and first degree child molestation are reversed and remanded for entry of judgment of acquittal; all other counts affirmed.

Defense-of-others instruction was offered by Defendant; therefore Defendant waived appellate review of any error in giving that instruction. State v. Bolden, No. 92175 (Mo. banc, July 3, 2012), Russell, J.

Defendant was convicted of robbery and armed criminal action. Although the defense-of-others instruction did not properly instruct the jury that it could consider the actions of multiple assailants in deciding whether Defendant’s actions were reasonable, any error was invited by the joint submission of the instructions.

Held: Affirmed.

Rosalynn Koch, Esquire

Double jeopardy not implicated in convictions of both first degree robbery and receiving stolen property by retaining the property that taken in the robbery. State v. Wright, No. 73441 (Mo. App. W.D., July 24, 2012), Welsh, J.

The defendant and others committed a robbery, and defendant retained some of what was taken. She was convicted of both first degree robbery and receiving stolen property.

Held: Affirmed.
Receiving stolen property is not a lesser included offense of robbery, as retaining property is not an element of first degree robbery.

Defendant consciously disregarded an unjustifiable risk of physical injury to officer by fleeing a lawful stop, and so committed third degree assault when the officer slipped in mud and was injured. State v. Burton, No. 97224 (Mo. App. E.D., July 17, 2012), Mooney, J.

The defendant fled from a traffic stop, and ended up running away and sliding in a patch of mud. The trooper in pursuit also fell in the mud and suffered a broken nose.

Held: Affirmed
. The defendant could reasonably foresee that the trooper would pursue him through the muddy field. Flight from a legal stop inherently includes a substantial and unjustifiable risk of physical injury to the officer.

No actual conflict of interest when attorney continued to represent defendant in sentencing on a guilty plea after defendant asked to withdraw the plea due to attorney’s malfeasance. Neal v. State, No. 73588, (Mo. App. W.D., July 31, 2012), Martin, J.

After pleading guilty, the defendant moved pro se to set aside the plea due to a complaint about his counsel. The attorney continued to represent the defendant at sentencing, and defendant brought a postconviction action. The motion court found that the defendant’s complaint about counsel was unfounded and denied relief.

Held: Affirmed.
It would be unrealistic to require trial counsel to withdraw every time a defendant complains about representation; insofar as the motion court found that the complaint lacked merit, there was no actual conflict of interest.