Criminal Law

Ellen H. Flottman, Esquire

The Missouri constitutional ban on laws retrospective in operation does not apply to criminal laws. State v. Honeycutt, No. 92229 (Mo. banc, November 11, 2013), Fischer, J.

The State appealed the dismissal of firearms charged against the defendant by the circuit court on the ground that the statute, § 571.070.1(1), was unconstitutionally retrospective as applied to him.

Reversed and remanded. The Court holds that the Missouri constitutional provision in Article I, Section 13, which prohibits laws retrospective in their operation applies only to civil laws; criminal laws are governed by the ex post facto provision in the same section. Calls into question R.L. v. Department of Corrections, 245 S.W.3d 236 (Mo. banc, 2008), and F.R. v. St. Charles County Sheriff’s Department, 301 S.W.3d 56 (Mo. banc, 2010). The concurrence would find those cases distinguishable because of their regulatory and not criminal effect.

Counsel’s answers in the Rule 29.07 inquiry can establish trial strategy such to defeat a request for an evidentiary hearing in a postconviction action. McIntosh v. State, No. 93118 (Mo. banc, November 26, 2013), Draper, J.

Appeal from the denial of a motion for postconviction relief without an evidentiary hearing. Movant claimed that he received ineffective assistance of trial counsel for failure to call a particular witness at trial.

Affirmed. The attorney’s reasons at sentencing for failure to call that witness could be taken into account by the motion court judge in denying an evidentiary hearing. 

Trial counsel’s failure to request an instruction on the lesser included offense of trespass required an evidentiary hearing regarding counsel’s possible strategy; trespass was consistent with the evidence. McNeal v. State, No. 92615 (Mo. banc, November 11, 2013), Teitelman, J.

Defendant was convicted of burglary and stealing. This is an appeal from the denial of his motion for postconviction relief without an evidentiary hearing.

Held: Reversed and remanded for a hearing.
The dissent would hold that the fact that the jury convicted defendant of the higher grade of offense conclusively demonstrated that he was not prejudiced by counsel’s failure to request an instruction on the lower grade of the offense.

Court could look beyond four corners of warrant application in determining the correct date of the application and the timeliness of the execution of the warrant. State v. Spradling, No. 32393 (Mo. App. S.D., November 11, 2013) Burrell, J.

Defendant was convicted of possession of a controlled substance.

Held: Affirmed and remanded for correction of judgment.
The application and search appeared to be more than thirty days apart, in violation of § 542.276, which requires the search to be executed within ten days of the application for warrant. The trial court found that to be a typographical error and substantial evidence supported his finding.

Rosalynn Koch, Esquire

By assuming care of her mother, defendant also assumed a legal duty to render adequate care, and in view of her medical knowledge, her failure to act reasonably to prevent and treat bedsores and gangrene was a voluntary act of elder abuse. State v. Gargus, No. 99233 (Mo. App. E.D., November 26, 2013), Gaertner, J.

Defendant, a certified nursing assistant, moved in with her mother to care for her. Mother was found to have several large bedsores and gangrene, and the skin and tissue of her left foot had been removed down to tendon and bone, possibly eaten by rodents in her bed. Mother died from septicemia due to the bedsores. Defendant was convicted of elder abuse.

Held: Affirmed.
While the elder abuse statute does not criminalize omissions, where the duty to act is otherwise imposed by law, neglect of that duty is a voluntary act giving rise to elder abuse.

Defendant knowingly shot at a dwelling house, even though his intended target was a person who happened to be standing in front of the building. State v. Hibler, No. 99285 (Mo. App. E.D., November 26, 2013), Van Amburg, J.

Defendant was convicted of unlawful use of a weapon after his shots missed his intended victim and went into a home behind him.

Held: Affirmed.
As with shooting in the direction of a crowd, defendant here knowingly shot into the house because he was aware of a high probability that he would hit it.            

Defendant’s intoxication and lack of memory of attack did not entitle him to a lesser offense instruction submitting third degree assault for reckless conduct. State v. Jefferson, No. 99248 (Mo. App. E.D., November 26, 2013), Norton, J.

The trial court refused to instruct the jury as to a reckless third degree assault when defendant seriously injured victim but could not later recall incident due to his intoxication at the time.

Held: Affirmed.
Intoxication is not a basis for a lesser-included verdict director. Furthermore, the defendant had threatened to kill victim and continued trying to stab him.

Intoxicated driver’s admission to failing to maintain right half of highway foreclosed postconviction relief based upon trial counsel’s failure to investigate and present expert testimony that an unimpaired driver could not have been able to stop in time to avoid hitting person standing on the left side of the road. Smith v. State, No. 99547 (Mo. App. E.D., November 19, 2013), Sullivan, J.

Movant pleaded guilty to involuntary manslaughter after hitting a man who was standing on the left side of a highway after dark. At the plea hearing movant admitted to crossing the center of the road, which had no center line. At a postconviction hearing movant presented expert testimony that, based upon studies, most drivers could not have seen the victim in time to avoid hitting him. The court denied relief.

Held: Affirmed.
Even if movant could not have avoided hitting the victim, he still could have avoided the accident by maintaining the right half of the roadway.

No appeal from pretrial ruling excluding evidence, but state may seek prohibition. State v. Woodworth, No. 76293 (Mo. App. W.D., November 12, 2013), Newton, J.

The trial court entered a pretrial ruling excluding evidence due to chain of custody issues, and the state filed an interlocutory appeal.

Held: Dismissed.
The state could not appeal but could seek a writ of prohibition, which is available where an important question of law is decided erroneously and would otherwise escape review.

Gateway of cause and prejudice was established, permitting review of defaulted claim that the state withheld exculpatory interview with the wife of a key state witness that cast doubt on the witness’ explanation at trial of his ability to identify the petitioner. In re: Ferguson v. Dormire, No. 76058 (Mo. App. W.D., November 5, 2013), Martin, J.

Petitioner was convicted of felony murder after his friend confessed to police and implicated him. Along with his friend, a janitor testified that while in prison he recognized petitioner’s photograph from a newspaper article that his wife sent him, even before reading the article. Police had interviewed the wife and she did not recall sending the newspaper, but police did not disclose this to the prosecutor or defense. After other remedies were exhausted, both the friend and the janitor recanted their trial testimony.

Held: Writ of habeas corpus granted.
The janitor’s eyewitness identification was crucial to the state’s case, and the undisclosed evidence could have been used to impeach his testimony.

(See also summary under Constitutional Law, supra).