Criminal Law

Ellen H. Flottman, Esquire

Driving a non “street legal” dirt bike on private property while intoxicated was not a crime. State v. Slavens, No. 31613 (Mo. App. S.D., September 12, 2012), Francis, J.

Defendant was convicted of driving while intoxicated.

Held:  Reversed.

Omission from the verdict director of element of knowledge of content and character of particular drugs in a trafficking case was plain error. State v. Stover, No. 91760 (Mo. banc, September 25, 2012), Breckenridge, J.

Defendant was convicted of trafficking drugs in the first degree.

Held:  Reversed and remanded.
Verdict director for trafficking omitted the phrase “knowing of the substance’s content and character” from the definition of trafficking in the pattern instruction. Defendant’s knowledge of the content and character of the content of the suitcase in which the PCP was found was seriously disputed. Therefore, the omission in the verdict director was plain error.

Rosalynn Koch, Esquire

Evidence that defendant suffered from drug-induced psychosis was inadmissible to negate an element of the charged offense despite the fact that defendant was not under the influence of drugs when the incident occurred. State v. Wright, No. 97219 (Mo. App. E.D., September 4, 2012), Cohen, J.

At the defendant’s first degree murder trial the trial court excluded the expert testimony that he suffered from psychosis and depression due to drug use, and as a result lacked the capacity to deliberate.

Held:  Affirmed. 
Even though the defendant was not acting under the influence of drugs, the evidence was still inadmissible because a defendant’s psychosis negates an element of the offense only if it exists independently of voluntary drug use.

Post-conviction counsel’s alleged ineffectiveness does not justify review of an issue that was not raised in the motion court. Logan v. State, No. 74133 (Mo. App. W.D., September 25, 2012), Mitchell, J.

Movant’s appointed post-conviction counsel filed a statement in lieu of an amended motion. On appeal, movant argued that appointed counsel abandoned him in failing to raise a claim of prosecutorial vindictiveness.

Held: Affirmed. 
The court does not review counsel’s decision whether to file an amended motion. The court agrees with the Southern District that the recent Supreme Court decision in Martinez v. Logan, 132 S. Ct. 1309 (2012), does not apply as Martinez involved consideration of procedural default in federal habeas actions.

Where the statutory requirements for filing a detainer were modified between the filing of a detainer and the defendant’s request for disposition, the requirements in effect at the time of the filing of the detainer governed. State v. Brown, No. 74114 (Mo. App. W.D., September 25, 2012), Hardwick, C. J.

The state lodged a detainer against defendant by faxing the defendant’s arrest warrant to the Department of Corrections on August 4, 2009. On August 28, § 217.450.1, RSMo, was amended to require the state to forward a certified copy of the warrant and formal request for detainer. On September 8, defendant filed a request for final disposition. After the 180-day deadline passed, the court dismissed the criminal charge.

Held: Affirmed.
The court properly applied the requirements in effect at the time the detainer was lodged.