Criminal Law

Ellen H. Flottman, Esquire

Facts support knowledge of felony amount of marijuana, but not control. State v. Politte, No. 31469 (Mo. App. S.D., February 25, 2013), Scott, J.

Defendant was convicted of possession of more than 35 grams of marijuana.

Held:  Reversed and remanded with directions.
Defendant concedes the record supports a misdemeanor amount of marijuana, but disputes the larger quantity. The State proved Defendant had knowledge of the larger amount, but showed no additional evidence tending to support control or ownership.  

Guilty plea counsel has no constitutional obligation to advise a defendant about parole eligibility. Johnson v. State, No. 31920 (Mo. App. S.D., February 6, 2013), Bates, J.

Postconviction movant appeals from the denial of his Rule 24.035 motion without an evidentiary hearing. He had claimed his guilty plea was involuntary because his plea counsel failed to advise him regarding the 85% rule.

Held:  Affirmed.
Guilty plea counsel has no constitutional obligation to advise a defendant about parole eligibility, despite recent United States Supreme Court jurisprudence regarding advise regarding deportation consequences of a guilty plea. Padilla v. Kentucky, 130. S.Ct. 1473 (2010).

Killing unborn child is manslaughter even where no proof of cessation of spontaneous respiration under § 194.005. State v. Harrison, No. 31374 (Mo. App. S.D., February 4, 2013), Scott, J.

Defendant was convicted of involuntary manslaughter for the deaths of his girlfriend and her unborn child.

Held: Affirmed.
The State proved the mother was pregnant and under § 565.024, manslaughter lies for the death of the unborn child. Applying § 194.005 to this circumstance would be “if not absurd, at least so unreasonable that we will not do so.” 

Rosalynn Koch, Esquire

State did not violate its agreement that, in exchange for defendant’s admissions to certain offenses, he would “be sentenced to a term of imprisonment for his involvement and participation in these crimes to be served concurrently” with other sentences when the court imposed consecutive sentences for sexual and non-sexual offenses as required by law; these constituted “a term” that was run concurrent with the defendant’s previous sentences. State v. Hicks, No. 92402 (Mo. banc, February 26, 2013), Breckenridge, J.

In exchange for defendant’s cooperation, the state agreed that he would be sentenced to “a term of imprisonment” to be served concurrently with sentences he was then serving. The defendant requested assurance that his outdate would remain the same, and the state refused. Defendant was later convicted of both sex offenses and robbery, which by statute must be served consecutively, and the court sentenced him accordingly.

Held: Affirmed.
The state honored its agreement. Although “term of imprisonment” is ambiguous, and the state had drafted the agreement, here the defendant should have known that he faced convictions of sexual and non-sexual offenses and he knew the agreement might change his outdate. Defendant’s belief that he would receive an aggregate term of concurrent sentences was unreasonable.

Failure to object waives Art. I, § 19 right to be tried at the same or next term of court when the jury cannot reach a verdict. State v. Pierce, No. 98478 (Mo. App. E.D., February 26, 2013), Sullivan, J.

The trial court declared a mistrial in the defendant’s case in November 2010 after a hung jury, and the defendant was later convicted after a trial that began in November 2011.

Held:  Affirmed.
The issue is one of first impression. Art. I, § 19 of the Missouri Constitution requires that when the jury fails to reach a verdict, the court could commit the defendant “for trial at the same or next term of court.”  Local rules for the 22nd Circuit provide that terms commence on the second Mondays in February, May, August, and November. Defendant did not assert his rights or object to any of seven continuances. The time constraint of Art. I, § 19, for retrial following a hung jury is a right that the defendant may waive by inaction.

Police had the right to stop the defendant, who was riding his bicycle around in circles in a high-crime area with a gun in his waistband, in order to determine his identity and purpose for carrying the weapon; but discovery that the gun was a toy dissipated the reason for the stop, and all evidence seized as the result of further detention must be suppressed. State v. Lovelady, No. 74249 (Mo. App. W.D., February 19, 2013), Newton, J.

The police stopped the defendant because he was riding his bicycle in circles at an intersection in a high-crime neighborhood with a gun in his waistband . They examined the gun and realized it was a toy. After checking for warrants, they arrested the defendant and found cocaine on his person, and he was subsequently convicted of possession of a controlled substance.

Held:  Reversed and remanded
. The evidence must be suppressed, because once the police discovered that the defendant did not have a weapon, there was no further reasonable suspicion that he was engaged in criminal activity.

A person who has an outstanding capias warrant for his arrest, but who has not taken affirmative action to elude detection by authorities, is not a “fugitive from justice” for purposes of § 571.070, and may carry a concealed weapon with a valid permit.  State v. Rodgers, No. 74912 (Mo. App. W.D., February 5, 2013), Howard, J.

The defendant was convicted of unlawful possession of a firearm, despite having a valid permit to carry a concealed weapon, because he had failed to appear on a summons and a warrant had been issued for his arrest. The trial court found that he was a fugitive from justice, and having a permit was no defense to the charge.

Held: Reversed and remanded.
While a valid permit is a defense to a charge of unlawful possession, a fugitive from justice is prohibited from possessing a weapon. But a person who fails to appear on a summons, resulting in a capias warrant, is not automatically a fugitive from justice.