Case Law Update: 2011-2014 Cumulative Edition

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Case Law Update:


Cumulative Edition
(Contains all 2011-2014 Case Law Update Cases)

Prepared by:
Greg Mermelstein

Division Director

Woodrail Centre

Building 7, Suite 100

1000 West Nifong

Columbia, MO 65203

Telephone: (573) 777-9977 x 314

Editor’s Note 5

Abandonment (Rule 24.035 and 29.15) 7

Ake Issues 16

Appellate Procedure 17

Armed Criminal Action 41

Bail – Pretrial Release Issues 42

“Brady” Issues 44

Child Support 54

Civil Procedure 56

Civil Rights 57

Closing Argument & Prosecutor’s Remarks 57

Confrontation & Hearsay 63

Continuance 78

Costs 78

Counsel – Right To – Conflict of Interest 80

Death Penalty 90

Detainer Law & Speedy Trial 99

Discovery 107

DNA Statute and DNA Issues 117

Double Jeopardy 119

DWI 137

Escape Rule 157

Evidence 157

Evidentiary Hearing 203

Experts 214

Ex Post Facto 218

Experts 223

Expungement 223

Extradition 224

Factual Basis 225

Findings of Fact, Conclusions of Law (Rules 24.035 and 29.15) 227

Guilty Plea 230

Immigration 242

Indictment and Information 246

Ineffective Assistance of Counsel 255

Interrogation – Miranda – Self-Incrimination – Suppress Statements 279

Joinder/Severance 302

Judges – Recusal – Improper Conduct – Effect on Counsel – Powers 303

Jury Instructions 308

Jury Issues – Batson – Striking of Jurors – Juror Misconduct 339

Juvenile 362

Malpractice 372

Mental Disease or Defect – Competency – Chapter 552 372

Presence at Trial 378

Privileges 379

Probable Cause to Arrest 381

Prosecutorial Misconduct 383

Public Trial 388

Rule 24.035/29.15 & Habeas Postconviction Procedural Issues 391

Sanctions 435

Search and Seizure – Suppression of Physical Evidence 439

Self-Defense 494

Sentencing Issues 497

Sexual Predator 601

Statute of Limitations 605

Statutes --- Interpretation – Vagueness 612

Subpoenas 628

Sufficiency of Evidence 629

Transcript – Right To 692

Trial Procedure 692

Venue 707

Waiver of Appeal and PCR 707

Waiver of Counsel 711

Waiver of Jury Trial 713

Editor’s Note

Dear Readers:

This cumulative edition of Case Law Update contains the 2011 – 2014 Case Law Updates combined into this single volume. It contains all Missouri appellate opinions from January 1, 2011 to December 31, 2014, which resulted in reversals, or in my opinion, were otherwise “noteworthy,” and federal and foreign state opinions from the Criminal Law Reporter and Criminal Law News (WL), which I found “noteworthy.” I have also included a few “noteworthy” cases from other sources.
U.S. Supreme Court opinions have an asterisk in front of them.
This edition does not track subsequent history on any case. The case may have been overruled. Before citing a case, be sure to Shepardize it to be sure it remains good law.

Greg Mermelstein

Division Director
(This page is intentionally left blank.)

Abandonment (Rule 24.035 and 29.15)
Vogl v. State, 437 S.W.3d 218 (Mo. banc 2014):

Even though 24.035 motion appeared to have been untimely due to its file-stamp date, appointed postconviction counsel abandoned Movant by filing motion to rescind appointment on grounds of untimeliness; postconviction rules require counsel to file an amended motion or statement explaining why an amended motion is not necessary.

Facts: Movant filed a Rule 24.035 motion, the file-stamp date on which was one day “late.” Counsel was appointed, but filed a motion to rescind appointment on grounds that the 24.035 motion was untimely. The court allowed counsel to withdraw, and dismissed the case. Later, Movant filed a motion claiming he was abandoned by postconviction counsel, in which he alleged facts showing that his motion was, in fact, timely filed. This motion was denied, but not appealed. He then filed a second motion claiming abandonment on the same grounds. The second motion is at issue here.

Holding: As an initial matter, the second motion is not a prohibited “successive” motion under 24.035(l) because 24.035(l) does not deal with procedures for claims of abandonment, and thus, does not prohibit the motion here. Movant could have shown that his pro se motion was timely by filing an amended motion alleging the facts that would prove timeliness. However, because appointed counsel failed to file an amended motion, Movant was deprived of the opportunity to use his method of proving timeliness. Rule 24.035(e) requires counsel to either file an amended motion or a statement in lieu of amended motion stating what actions were taken to ensure that an amended motion is not necessary. Here, counsel abandoned Movant by failing to file either an amended motion or statement in lieu. The Court of Appeals has held that no abandonment occurs when appointed counsel notifies the motion court that a pro se motion is untimely without filing an amended motion or statement in lieu. See Stewart v. State, 261 S.W.3d 678, 679 (Mo. App. 2008); Morgan v. State, 8 S.W.3d 151, 154 (Mo. App. 1999). This Court disagrees. Stewart and Morgan are now overruled.
Price v. State, 2014 WL 712956 (Mo. banc Feb. 25, 2014):

(1) Even though Movant hired a postconviction counsel to handle his Rule 29.15 proceeding, where counsel failed to file an initial postconviction motion (Form 40) within the time required, Movant waived his postconviction proceeding, and counsel’s failure is merely ineffective assistance of postconviction counsel, not abandonment; (2) abandonment is limited to situations where counsel fails to timely file an amended motion, and to situations where “third-party interference” prevents timely filing of an initial motion (Form 40).

Facts: Movant hired an attorney to file a Rule 29.15 motion for him. However, the attorney misunderstood the time limits for filing, and failed to file an initial motion (Form 40) within 90 days of the mandate on direct appeal. Movant claimed he was “abandoned” by his attorney, and should be allowed to proceed with his Rule 29.15 case.

Holding: The abandonment doctrine of Sanders and Luleff was created to excuse the untimely filing of amended motions by counsel, and was intended to ensure that Rule 29.15(e)’s requirement of an amended motion is fulfilled. The abandonment doctrine of Sanders and Luleff was not created to police the performance of postconviction counsel generally. Since there is no constitutional right to counsel in postconviction proceedings, there is no right to effective assistance of postconviction counsel. Bullard held that where counsel fails to timely file an initial postconviction motion, this is a complete bar to relief and is not an “abandonment,” because a movant can file a pro se initial motion (Form 40) without the assistance of counsel. This Court holds that, as in Bullard, the abandonment doctrine of Sanders and Luleff cannot excuse an inmate’s (movant’s) failure to file his initial postconviction motion on time and will not protect an inmate from the provisions of Rule 29.15(b) that deem any failure to comply with those deadlines to be a complete waiver of relief. However, there are limited exceptions where an untimely initial filing may be deemed timely, but those exceptions must involve “third party interference” with a Movant’s initial filing. For example, where an inmate has mailed his motion to an outdated address, this is “third party interference.” Inmates, unlike other litigants, cannot file initial postconviction proceedings without relying on the assistance of one or more third parties to take the motion from the inmate and deliver it to the circuit clerk for filing. McFadden is properly understood as a “third party interference” case, not an abandonment case. In McFadden, a movant filled out an initial pro se motion (Form 40) on time, but his attorney told him to give it to her for filing. The attorney, however, failed to file it on time. The inmate in McFadden did all he could to express an intent to seek relief under Rule 29.15 and would have filed his motion on time but for the active interference of the third party, who happened to be an attorney, and who did not file the motion he gave her. Here, however, Movant Price retained counsel for his initial pleading. While he was entitled to retain counsel, he took the same risk as every other litigant who retains counsel, i.e., he was bound by his counsel’s actions as if they were his own. Movant’s claim is really one of ineffective assistance of postconviction counsel, which is not cognizable. To the extent McFadden is contrary to today’s opinion, it should no longer be followed.
Stanley v. State, 2014 WL 439505 (Mo. banc Feb. 4, 2014):

Even though first postconviction counsel’s amended motion failed to allege certain claims and first postconvcition counsel was permitted to withdraw, second postconviction counsel’s subsequently-filed second amended motion could not be considered where it was outside the original time limits of Rule 24.035(g), and any defects in first counsel’s amended motion did not constitute “abandonment” of Movant, but rather “ineffective assistance of postconvction counsel,” which is not cognizable.

Facts: Movant filed a pro se Rule 24.035 motion. Counsel was appointed and filed an amended motion that alleged certain claims. Counsel was then permitted to withdraw. Later, a second counsel was appointed. Second counsel determined that the amended motion failed to allege other claims, and was allowed by the motion court to file a second amended motion.

Holding: The primary issue on appeal is whether the second amended motion is cognizable. It is not, because it was untimely. Second counsel could not have timely filed any amended motion because he wasn’t appointed to the case until after the time for filing any amended motion had already expired. Rule 24.035(g) sets forth the time for filing an amended motion. Under 24.035(g), the date of first appointment of counsel controls the time for filing an amended motion, regardless of whether the court later appoints new counsel or allows new counsel to enter. The purpose of the postconviction rules is to promote finality. Postconviction counsel cannot usurp this purpose by withdrawing and replacing lawyers to re-establish the time limits for filing an amended motion, and neither can the motion court by permitting counsel to withdraw and “reappointing” another lawyer. The earlier of the date of first appointment or entry of appearance controls, regardless of whether new lawyers appear. Therefore, second counsel could not timely file a “second amended motion.” Movant next contends that first counsel abandoned him by not filing a sufficient amended motion. However, abandonment occurs when there is a “complete absence of performance” by appointed counsel, or when appointed counsel fails to file an amended motion in a timely fashion. Here, first counsel filed a timely amended motion. Movant’s claim is really one of “ineffective assistance of postconviction counsel” for not including all claims, but this is not cognizable.
Eastburn v. State, No. SC92927 (Mo. banc 6/25/13):

While Rule 75.01 allows a motion court to reopen a Rule 24.035 or 29.15 case for 30 days after a judgment (Findings) is entered because the judgment is not yet final, a motion court cannot reopen such cases later unless there has been an “abandonment” by counsel, which means only failure to file or timely file an amended motion or actively preventing Movant from filing an original Form 40; the term “motion to reopen” should no longer be used, and attorneys should file a “motion for postconviction relief due to abandonment.”

Facts: Movant had a Rule 29.15 case with an amended motion in the 1990’s. In 2010, she filed a “motion to reopen” her 29.15 case on various grounds, including that her sentence to life without parole was unconstitutional since she was a juvenile at the time of her offense.

Holding: Under Rule 75.01 a motion court has authority to reopen a 29.15 case for 30 days after a judgment (Findings) is entered because its judgment is not yet final. A late-filing may be accepted where “abandonment” occurs, but abandonment is narrow and limited to where an attorney fails to file or timely file an amended motion, or interferes with filing an original Form 40. Here, while the parties refer to this case as a “motion to reopen” the 29.15 case, such nomenclature does not exist in our rules and should not be used henceforth. Here, Movant’s claim is really a motion claiming ineffective assistance of postconviction counsel because she wishes postconviction counsel would have raised additional issues. This is prohibited by Rule 29.15. “[F]iling a motion to reopen does not exist in our rules. Henceforth, attorneys should file a motion for postconviction relief due to abandonment.”
Price v. State, No. SD31725 (Mo. banc 12/28/12):

Where Movant’s direct appeal counsel had been retained to also file a Rule 29.15 motion for Movant but failed to do so, Movant was abandoned and the motion court did not clearly err in granting a motion to reopen the PCR and allow a late filing.

Facts: Following trial, Movant retained a new Attorney to represent him at sentencing, on direct appeal and in a Rule 29.15 case. At sentencing, the trial court explained the time limits for filing a Rule 29.15 motion, and Movant said he understood them. Movant lost his direct appeal. Attorney then failed to file a Rule 29.15 motion for Movant. Attorney had repeatedly assured Movant’s mother on behalf of Movant that he (Attorney) would file a 29.15 motion. Movant then retained different counsel who filed a habeas corpus case on behalf of Movant, but the Southern District quashed relief in State ex rel. Nixon v. Sheffield, 272 S.W.3d 277 (Mo. App. S.D. 2008), upon grounds that habeas relief can only be granted due to an objective factor external to the defense or actual innocence. Movant then filed a motion to reopen the 29.15 proceedings on grounds of abandonment by original Attorney, who had promised to file a 29.15 motion. The motion court granted relief under McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008). The State appealed.

Holding: The motion court found that Attorney actively interfered with Movant’s ability to file a pro se Rule 29.15 motion by stating that he would timely prepare and file the motion on Movant’s behalf, but failed to do so. The State argues that McFadden is distinguishable, but none of the cited cases by the State deal with a retained counsel who assumed responsibility to timely file a Rule 29.15 motion for an imprisoned client and then failed to do so. Movant is in the same position as McFadden, whose counsel undertook to perform a necessary filing and then failed to so do. The State also argues that Movant’s motion to reopen was not filed within a reasonable time after the abandonment, but was filed four years later. There is no express time limit for when a motion to reopen must be filed. The State argues that the court should analogize to the one-year time limit of Rule 30.03 for notices of appeal for policy reasons, but because the State did not raise this claim in the motion court, the appellate court will not consider it.
Stanley v. State, No. ED97795 (Mo. App. E.D. 12/04/12):

(1) Even though a second postconviction counsel filed a second amended motion which was untimely, the motion court can grant relief on it if Movant was abandoned by his first postconviction counsel thereby excusing the untimely filing of the second amended motion; and (2) where the guilty plea court failed to advise Movant prior to his plea that he could not withdraw from his non-binding plea agreement if the court chose not to follow the State’s recommendation, Movant was entitled to postconviction relief from the plea where the judge imposed a higher sentence.

Facts: Movant/Defendant pleaded guilty pursuant to a non-binding plea agreement under which the State was going to argue for two concurrent three-years sentences, and the defense could argue for probation. The court did not inform Movant prior to his plea that if the court did not follow the State’s recommendation, Movant could not withdraw the plea. The court ultimately did not follow the State’s recommendation, but instead, sentenced Movant to two consecutive four-year sentences. Movant filed a 24.035 motion, which was timely amended by a first postconviction attorney. Subsequently, the first postconviction attorney withdrew from the case. A second postconviction attorney entered the case and filed a second amended motion alleging that the plea court failed to inform Movant that, should it reject the State’s recommendation, Movant could not withdraw his guilty plea. The second amended motion, however, was untimely because the time for filing any amended motion had expired before the second postconviction counsel entered the case.

Holding: (1) The Missouri Supreme Court has recognized limited exceptions to the timeliness requirements of the postconviction rules. A motion court can permit the filing of an untimely amended motion and consider a movant’s claims if it determines that a movant was abandoned by postconviction counsel. Counsel abandons a movant when he or she is aware of the need to file an amended motion but fails to do so. In such a case, the court may consider an untimely postconviction motion only when the Movant is free of responsibility for failure to comply with the postconviction rule. Here, a remand is required to determine why the second amended motion was untimely, i.e., whether Movant’s first postconviction attorney abandoned him. “If the motion court finds that Movant’s second amended motion was untimely due to no fault of Movant, the motion court must permit Movant to withdraw his plea” based on the second amended motion. (2) Under Rule 24.02(d)(2), the plea court was required to tell Movant that his plea could not be withdrawn if the court did not accept the State’s recommendation. The court failed to do this before he entered his guilty plea. Due process requires that a defendant understand the true nature of his agreement before his plea is accepted by a court. The court must tell a defendant clearly and specifically whether he will or will not be able to withdraw the guilty plea if the court exceeds the recommendation. That did not happen here.
Gasa v. State, 2013 WL 6198248 (Mo. App. S.D. Nov. 27, 2013):

Holding: (1) Where postconviction counsel filed an amended motion “late,” i.e., beyond the time permitted by Rule 29.15(g), and the motion court ruled only on the claims in the timely pro se motion, the case must be remanded to determine if counsel “abandoned” Movant by the late filing; (2) even though the motion court purported to grant postconviction counsel additional time beyond that allowed in Rule 29.15(g) to file an amended motion, a motion court does not have authority to extend the time beyond that allowed by the Rule.
Harper v. State, 2013 WL 554013 (Mo. App. S.D. Feb. 14, 2013):

Holding: Postconviction counsel’s filing of a statement in lieu of amended motion one day late technically abandoned Movant, but the remedy is to treat the statement in lieu as timely filed where, as here, postconviction counsel ensured that Movant received meaningful review of his pro se postconviction claims by filing a motion to amend judgment after the motion court had failed to consider several of them.
Vogl v. State, 2013 WL 173009 (Mo. App. S.D. Jan. 16, 2013):

Postconviction counsel abandoned Movant where Movant’s Form 40 (24.035 motion) was file-stamped one day late and counsel moved to withdraw based on this, but could have shown that the motion was timely filed.

Facts: Movant’s Form 40 was file stamped one day late. Subsequently, the Public Defender was appointed to his Rule 24.035 case, but moved to withdraw on grounds that the Form 40 was untimely and the court had no jurisdiction to proceed. The withdrawal motion was granted and the motion court dismissed the case as untimely. Subsequently, Movant, acting pro se, filed a motion to reopen his 24.035 action on grounds that he was abandoned by counsel. He alleged facts showing that he actually had filed his motion timely, even though it was file-stamped a day late. The motion court denied his motion without a hearing. He appealed.

Holding: Abandonment by postconviction counsel can occur where postconviction counsel takes no action with respect to filing an amended motion and, thus, a movant is denied of meaningful review of his claims. Here, postconviction counsel took no action to file an amended motion which would have alleged facts showing that the Form 40 was timely. In Movant’s motion to reopen, he alleges that he filed his motion timely at the courthouse in Carthage – Jasper County has two courthouses – but that Carthage forwarded it to the courthouse in Joplin, and it was received in Joplin one day late. If these facts are true, then Movant’s Form 40 was timely. The failure of counsel to file an amended motion to allege these facts was an abandonment which deprived Movant of his opportunity to show that his Form 40 was timely. Case remanded for an abandonment hearing.
White v. State, No. SD31300 (Mo. App. S.D. 5/11/12):

Holding: Where counsel filed an amended 24.035 motion, a claim that counsel “abandonned” Movant could not be raised for the first time on appeal because it was not presented to the motion court. However, court notes in a footnote that the Western District has suggested that such a claim might be raised in a motion filed in the motion court to reopen the postconviction proceeding.
Williams v. State, 2013 WL 6592768 (Mo. App. W.D. Dec. 17, 2013):

(1) Motion court had “jurisdiction” to hear a “motion to file an untimely postconviction relief motion based on abandonment” which alleged that Movant’s postconviction counsel had abandoned him in 1991 by promising to file a Form 40 for Movant but failing to timely do so; and (2) Even though the appellate court in 1993 affirmed dismissal of Movant’s 29.15 motion as untimely filed, the issue of whether Movant was abandoned was not res judicata because abandonment (though alleged in 1993) was not necessary to the appellate court’s decision.

Facts: In 1991, Defendant/Movant was convicted of various offenses at trial. He hired a postconviction attorney to represent him in a Rule 29.15 case. The attorney promised Movant that the attorney would timely file a postconviction motion (Form 40), but the attorney filed it three days late. Shortly thereafter, the public defender eventually began representing Movant, and filed an affidavit from the postconviction counsel in which counsel stated that the untimeliness of the Form 40 was entirely counsel’s fault. The motion court held a hearing on the matter at which counsel testified that he promised he would file a postconviction motion (Form 40) on time, but failed to do so because he did not “check the dates” correctly. The motion court and appellate court dismissed the 29.15 motion as untimtely, citing State v. Bullard, 853 S.W.2d 921 (Mo. banc 1993), which held that a movant’s reliance on erroneous advice of counsel does not excuse an untimely filing. In 2010, Movant filed a “motion to reopen” his 29.15 case on grounds of abandonment, citing McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008), which found abandonment where counsel had assured a movant that counsel would file a Form 40 for him, but then did so late. The motion court held that it did not have “jurisdiction” to hear Movant’s case, and dismissed it.

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