Ellen H. Flottman, Esquire
Functionality of a weapon is not an element of the offense of unlawful use of a weapon. Rather, non-functionality is a special negative defense where the defendant is transporting the weapon in a continuous journey peaceably through the state. State v. Wright, No. 92257 (Mo. banc, October 16, 2012), Fischer, J.
Defendant was convicted of unlawful use of a weapon.
A firearm is presumed to be a weapon readily capable of lethal use without proof that the gun was loaded. Williams v. State, No. 92250 (Mo. banc, October 16, 2012), Fischer, J.
Defendant was convicted of unlawful use of a weapon. He appeals from the denial of his motion for post-conviction relief alleging his appellate counsel ineffective for failure to raise an insufficiency of the evidence claim.
Rosalynn Koch, Esquire
Plain error to admit defendant’s statement that she placed her child’s face on a pillow when corpus delicti was not established, there being no independent evidence that child either was observed in that position or that death was result of criminal agency. State v. Jones, No. 97595 (Mo. App. E.D., October 2, 2012), Odenwald, J.
Defendant’s three-month old daughter died, and the cause of death was ruled a seizure disorder. She was later investigated for offenses involving her infant son, and acknowledged placing her daughter facedown on a pillow before she quit breathing. The cause of death was changed, and defendant was convicted of second degree murder, as well as offenses involving her son, after her admission was presented to the jury.
Held: Reversed and remanded in part. The authorities who responded to the scene could not recall the infant daughter’s position when they arrived, and the medical evidence did not establish a criminal act apart from the defendant’s statement. The state failed to establish corpus delicti and consequently defendant’s statement was inadmissible.
Administrative decision that officer lacked probable cause to arrest did not collaterally estop the state in later driving while intoxicated prosecution. State v. Brightman, No. 74299 (Mo. App. W.D., October 2, 2012), Witt, J.
On appeal from DWI conviction, the defendant argued that res judicata and collateral estoppel principles precluded relitigating the legality of his arrest after an administrative tribunal had found in his favor.
Held: Affirmed. Section 302.505 specifically provides that the facts are to be independently determined in each proceeding.
Motion court may not rely upon affidavits, its custom and practice, or its own independent recollection to deny an evidentiary hearing in a post-conviction case. White v. State, No. 97805 (Mo. App. E.D., October 23, 2012), Cohen, J.
Movant claimed that his trial counsel was ineffective for failing to make a record on movant’s shackling at trial. The motion court denied the motion without an evidentiary hearing, based upon affidavits of court personnel, its own recollection that movant had not been shackled, and its customary practice of making a record whenever a criminal defendant was shackled at trial.
Held: Reversed and remanded. The motion court had essentially held a hearing without offering movant the opportunity to present evidence.