Criminal Law

Ellen H. Flottman, Esquire

For an arrest inside a home without a warrant, an exigent circumstance must exist in addition to hot pursuit. State v. Foster, No. 32181 (Mo. App. S.D., March 20, 2013), Scott, J.

State’s appeal of trial court’s order suppressing evidence.

Held: Affirmed and remanded.
Officers saw defendant cross the center line while patrolling for drunk drivers. They followed him to his driveway, and scooted under the garage door as it was closing. They took him outside without his consent and arrested him for DWI and not driving on the right side of the road. Neither exigency nor probable cause supports the officers’ actions.

Requiring defendant to speak in open court for identification purposes did not violate privilege against self-incrimination. State v. Robinson, No. 31780 (Mo. App. S.D., March 8, 2013), Francis, J.

Defendant was convicted of first degree robbery, armed criminal action, and first degree burglary.

Held: Affirmed.

Rosalynn Koch, Esquire

Juvenile court petition charging felonious conduct and motion to modify the previous disposition were inadmissible at sentencing, because they did not prove that defendant had been adjudicated guilty of an act that would be a felony if committed by an adult as required under § 211.321.2(2). State v. Doss, No. 73937 (Mo. App. W.D., March 26, 2013), Mitchell, P.J.

At sentencing the trial court admitted a juvenile court petition alleging that the defendant had engaged in conduct that would have been a felony if committed by an adult, along with a motion to modify the disposition on that petition. Neither document reflected the nature of the disposition.

Held:  Reversed and remanded for resentencing
. Under § 211.321.2(2), the sentencing court could only admit juvenile court adjudications for offenses that would be a felony if committed by an adult. The documents proved that the defendant was adjudicated guilty of something, but they did not prove that she was actually found guilty of the charged offense as opposed to a misdemeanor.

Trial court abused its discretion in denying defense request for continuance due to state’s late disclosure of evidence showing that the defendant owned truck containing methamphetamine, which he had denied owning. State v. Zetina-Torres, No. 74441 (Mo. App. W.D., March 5, 2013), Witt, J.

Defendant was convicted of trafficking after he was stopped when driving a truck in which methamphetamine was concealed. He had denied owning the truck; the registered owner of the truck was Mardonio Benitez. Two days before trial the state disclosed a mug shot of a man resembling the defendant who had been previously arrested under Benitez’ name, along papers that had been found in defendant’s wallet with a court date at the same time and fingerprint comparisons between defendant and Benitez. The state later used this evidence at trial to prove that defendant was actually Benitez and thus owned the truck. Defendant unsuccessfully requested a continuance in order to investigate the previous case and to otherwise meet the evidence.

Held:  Reversed and remanded.
The defense was disadvantaged by inability to investigate the potential witnesses involved in the earlier case, but also by the overall effect of the untimely disclosure, which necessitated a completely different defense. The defense did not have an opportunity to test the evidence. The claim regarding denial of a continuance was preserved despite a lack of objection to the evidence at trial.

Movant’s failure to specify date of mandate in Form 40 does not warrant dismissal of a timely motion. Rennick v. State, No. 74719 (Mo. App. W.D., March 5, 2013), Newton, J.

Motion court dismissed timely pro se motion because movant indicated that he did not know the date the mandate was handed down.

Held: Reversed and remanded
. The date the mandate was filed was easily ascertainable, and deficiency could be corrected in an amended motion.