Criminal Law

Ellen H. Flottman, Esquire

Juror did not intentionally fail to disclose that he was a member of the venire panel in Defendant’s prior trial
for assault and armed criminal action; no abuse of discretion in trial court’s denial of claim. State v. McFadden, No. 89429 (Mo. banc, January 29, 2013), Teitelman, C.J.

Defendant was found guilty of first degree murder and armed criminal action and sentenced to death.

Held: Affirmed.  

Conviction of harassment under section previously found unconstitutional, § 565.090.1(5), is reversed. State v. Wooden, No. 92846 (Mo. banc, January 8, 2013) per curiam.

Defendant was found guilty of two counts of harassment under §§ 565.090.(2) and 565.090.1(5).

Held:  Conviction under one count is reversed.

Violation of Brady rendered verdict in murder case no longer worthy of confidence; state habeas writ. State ex rel., Woodworth v. Denney, No. 91021 (Mo. banc, January 8, 2013), Stith, J.

Petition for writ of habeas corpus on the grounds that newly discovered evidence shows that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding material, favorable evidence which prejudiced petitioner.

Petitioner’s convictions vacated and ordered discharged unless the State elects to retry him. Special master found that State violated Brady by failure to disclose evidence which bolstered a key defense theory that another person committed the crime.  

Rosalynn Koch, Esquire

No plain error in court’s failing to hold prior offender hearing before submitting case to the jury if defendant had timely notice and failed to object. State v. Wrice, No. 97890 (Mo. App. E.D., January 15, 2013), Clayton, J.

Defendant was charged as a prior and persistent offender before trial. He failed to object to the court’s instruction submitting guilt only, and was sentenced as a prior and persistent offender after a later hearing.

Held: Affirmed.
The defendant had notice that the state intended to seek an enhanced sentence, and at trial he admitted to the previous offenses. The court failed to comply with the statutory requirements, but did not commit plain error.

Where defendant’s self-defense evidence indicated that his victims acted in concert, trial court was required to give a multiple assailant self-defense instruction as to each victim, regardless of whether that particular victim posed a threat of bodily harm. State v. Mangum, No. 96029 (Mo. App. E.D., January 8, 2013), Mooney, J.

In his trial for domestic assault of his girlfriend and assault of her sister, defendant testified that he pulled out his gun for protection. While he was struggling with the sister, and his ex-girlfriend was approaching him with a crowbar, his gun went off and hit the girlfriend. A self-defense instruction for each count cited only to that victim’s acts as justification for self-defense.

Held:  Reversed and remanded
. The instructions should have hypothesized the acts of both victims in accordance with the evidence. Defendant was entitled to use appropriate amount of force to defend against either or both victims.

Claim of ineffectiveness of counsel in the course of termination of juvenile custody is not cognizable in a postconviction action. Ziebol v. State, No. 98530 (Mo. App. E.D., January 2, 2013), Mooney, J.

Upon the defendant’s guilty plea, the court imposed a juvenile disposition and informed defendant that he would go to prison if he violated the program requirements. Defendant was later sentenced to prison, and filed a Rule 24.035 motion alleging that counsel failed to properly advocate at his hearing to transfer custody out of the Division of Youth Services. The motion court denied the motion without hearing.

Held: Affirmed
. As with probation revocation, habeas corpus is the sole vehicle for challenging proceedings relating to transfer of juvenile custody.