Case Law Update: 2011-2014 Cumulative Edition

Holding: Defendant can present expert psychiatric testimony about the impact of his opiate addiction and withdrawal symptoms on the reliability of his confession; a lay person may not understand the effects of withdrawal on an addict.
State v. Combs, 2011 WL 6130774 (N.M. Ct. App. 2011):

Holding: Showup procedure employed by deputy lacked indicia of reliability necessary to overcome suggestiveness of the procedure, where the deputy was shown a mug shot of the defendant and told that it was the driver the deputy had issued a citation to two months earlier.
People v. Thompson, 970 N.Y.S.2d 620 (N.Y. App. 2013):

Holding: Defendant was deprived of right to present a defense where court precluded Defendant from offering evidence that victim had repeatedly and consistently identified another person as the perpetrator in the year following the charged burglary.
People v. Quin, 2012 WL 751561 (N.Y. Sup 2012):

Holding: No statutory or other legal basis existed to permit the prosecution to be present at, or videotape, the defendant’s competency hearing in an attempted assault prosecution.
People v. Donato, 2012 WL 231268 (N.Y. App. 2012):

Holding: The trial court committed reversible error when it prevented the defendant from offering a full account of the events surrounding the alleged traffic violation because it deprived the defendant of his constitutional right to testify in his own defense.
People v. Waters, 2011 WL 240753 (N.Y. City Ct. 2011):

Holding: Simulator solution documents and an instrument calibration certificate, containing electronic signatures, were not admissible under business records exception to hearsay rule; documents were not made in regular course of business, were not a true and accurate representation of electronic records and were incomplete.
People v. Stubbs, 2010 WL 4705163 (N.Y. App. 2010):

Holding: Even though prior robbery threatened use of a nonexistent gun and occurred on same road as charged robbery, the prior robbery was not sufficiently unique to establish Defendant’s identity based on his modus operandi and was not admissible.
State v. Davis, 2010 WL 4608698 (N.C. Ct. App. 2010):

Holding: “Odor analysis” by which BAC was determined using Officer’s report of smelling alcohol on Defendant 10 hours later was not sufficiently reliable to be admissible.
Harney v. State, 2011 WL 666319 (Okla. Crim. App. 2011):

Holding: Admission of driving record in DWI case that contained other crimes and bad acts was erroneous as to jury’s determination of sentence.
State v. Fivecoats, 2012 WL 3594255 (Or. App. 2012):
Holding: A Defendant’s demonstrating to a jury how he walks in order to show that his gait is not the same as the person’s on a surveillance video is not “testimonial evidence” that waives a right against self-incrimination; walking is physical evidence and does not communicate beliefs, knowledge or state of mind.
State v. Almanza-Garcia, 2011 WL 1486076 (Or. App. 2011):

Holding: Admission of testimony of a diagnosis of child sexual abuse in the absence of physical evidence of abuse was plain error, even in a bench trial.
State v. Cordovoa-Contreras, 2010 WL 4867534 (Or. Ct. App. 2010):

Holding: Physician’s “diagnosis” of “sexual abuse” was inadmissible absent supporting physical evidence; physician had not discovered any physical signs of abuse and his testimony was an impermissible comment on child’s credibility.
Com. v. Brown, 2012 WL 3025112 (Pa. Super. 2012):
Holding: Where Defendant-Doctor was charged with unlawfully prescribing medicine, his prior bad act of fraudulently obtaining his medical degree should not have been admitted under the res gestae exception to prior bad acts because this took place decades before the charged crime, and was not interwoven with the charged crime.
State v. Johnson, 2011 WL 6347861 (S.C. Ct. App. 2011):

Holding: Officer’s unexcused failure to comply with statutory requirement that administration of breath tests be videotaped for purposes of DUI prosecutions warranted dismissal of the DUI charges.
State v. Hill, 2011 WL 3568486 (S.C. Ct. App. 2011):

Holding: Where the jury was inadvertently sent written statements of Defendant to police which had not been admitted into evidence, this was error.
Pawlak v. State, 2013 WL 5220872 (Tex. App. 2013):

Holding: Where Defendant was charged with child sex offense, the admission of thousands of extraneous photos of adult and child pornography was inherently prejudicial and inflammatory, where there was no allegation that the photos pertained to the child sex offense victims, and the victims’ testimony about the offense was more probative than the photos.
Bays v. State, 93 Crim. L. Rep. 190 (Tex. App. 4/17/13):

Holding: Even though Texas has a statute that creates a hearsay exception to admission of testimony by the first person to whom a child sex victim reports sexual abuse, this statute does not allow introduction of a videotaped interview of child given to an investigator for Texas Dept. of Family Services; statute was intended to apply to persons like a child’s mother or other adult to whom child first reported abuse, not to a later investigator who was investigating the incident.
Lewis v. State, 2013 WL 1665835 (Tex. App. 2013):

Holding: Crime scene animation in murder case purporting to show scene from the perspective of a witness should not have been admitted where many details in the animation had no support in the record, even though the creator testified that he used crime scene measurements, photos and witness statements to do the animation.
Leonard v. State, 92 Crim. L. Rep. 271 (Tex. Crim. App. 11/21/12):

Holding: Even though sex-offender-Defendant’s probation terms required that he submit to polygraphs as part of his sex therapy, polygraph evidence is so unreliable that it cannot be used to revoke Defendant’s probation.
Velez v. State, 2012 WL 2130890 (Tex. Crim. App. 2012):

Holding: Correction expert’s false testimony in capital case in guilt phase that Defendant could be assigned a low classification level in prison if sentenced to LWOP rather than death was prejudicial as to future dangerousness; the State knew or should have known that prison regulations contradicted expert’s testimony.
Cornet v. State, 90 Crim. L. Rep. 604 (Tex. Crim. App. 1/25/12):

Holding: The “medical-care defense” to an alleged sexual abuse of a child may be asserted by untrained adults, not just licensed medical professionals, who have inspected a child’s anatomy for evidence of sexual abuse.
Crider v. State, 2011 WL 5554806 (Tex. Crim. App. 2011):

Holding: An affidavit in support of a search warrant to draw blood did not establish probable cause where there was no indication in the affidavit of how much time had passed between its signing and when the stop was initially made.
State v. Dominguez, 2011 WL 3207766 (Tex. App. 2011):

Holding: A “scent lineup” used by police to have a dog identify Defendant’s scent on items from crime scene was not scientifically reliable.
State v. Gauthier, 2013 WL 1314971 (Wash. App. 2013):

Holding: The use of Defendant’s invocation of his constitutional right to refuse to give a DNA sample without a warrant as substantive evidence of his guilt of rape violated Defendant’s right against unreasonable search and seizure; exercising right to refuse consent to a warrantless search may have had nothing to do with guilt, and a jury should not be allowed to infer guilt from exercise of a constitutional right.
State v. Lucas, 2012 WL 716552 (Wash. Ct. App. Div. 2 2012):

Holding: Psychiatrist’s reliance, in trial testimony, on the defendant’s statements to form the basis for the psychiatrist’s expert opinion on defendant’s mental health did not expose the defendant to the admission of prior crimes evidence to impeach the defendant.
State v. Allen, 89 Crim. L. Rep. 212 (Wash. Ct. App. 5/9/11):

Holding: Court of Appeals calls for approval of an instruction on reliability issues with cross-racial identification, even when Defendant does not call an expert on this; ABA has proposed a model instruction on this matter; “[a]lthough cross-examination is a powerful tool for exposing lies, it is not particularly effective when used against eyewitnesses who believe they are telling the truth”; the additional protection of a cross-racial jury instruction is needed “because the own-race effect strongly influences the accuracy of identification, because that influence is not understood by the average juror, because cross examination cannot reveal its effects, and because jurors are unlikely to discuss racial factors freely without some authorization for this.”


Evidentiary Hearing (Rules 24.035 & 29.15)
McNeal v. State, 2013 WL 5989237 (Mo. banc Nov. 12, 2013):

Defendant/Movant was entitled to evidentiary hearing on claim that counsel was ineffective in failing to request lesser-included offense instruction for trespassing at burglary trial, where evidence would have supported such an instruction and defense suggested crime was merely trespassing.

Facts: Defendant/Movant was convicted of burglary and stealing for entering an apartment and stealing a drill. The defense was that Defendant went to the apartment to collect money for a debt from a friend, knocked and opened the door, went inside and discovered apartment was empty except for some tools, and then decided to take a drill he saw. Defendant admitted stealing the drill, but denied entering the apartment with the intent to steal. The defense argued that the offense was a trespassing, but did not request an instruction on trespassing. During deliberations, the jury sent a note asking when Defendant had to form the intent to steal in order to convict of burglary. After conviction for burglary, Defendant filed a 29.15 motion, alleging counsel was ineffective for failing to request a lesser-included offense instruction for trespassing. The motion court denied the claim without a hearing.

Holding: Defendant/Movant’s motion alleged that counsel failed to request a lesser-included offense instruction and that this was not a strategic choice, but due to inadvertence. Although there is a presumption that counsel’s performance is sufficient, Movant’s claim is not refuted by the record. The evidence at trial supported a theory that when Movant entered the apartment, he did not have the intent to steal, which is necessary for burglary. Rather, the evidence supported that the intent to steal was formed after he entered. A trespassing instruction would have been consistent with the evidence and defense counsel’s argument. The State argues that because the jury convicted of the higher offense of burglary, there is no prejudice because the jury would never have gotten to the lesser offense of trespassing, even if it had been submitted. However, it is illogical to conclude that the jury’s deliberative process would not have been impacted in any way if a lesser-included offense instruction were submitted. Where failure to give lesser-instructions is raised on direct appeal, the underlying rationale for giving relief is that the failure to instruct deprives a defendant of a fair trial, even if the jury ultimately convicted defendant of the greater offense. Without a lesser instruction, the jury was faced only with finding guilt of the greater, or acquittal. When one of the offense elements remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve doubts in favor of conviction, even though jurors are theoretically supposed to acquit. Thus, the jury’s conviction of the greater offense does not foreclose the possibility that they would have convicted of the lesser if it had been submitted. Defendant was prejudiced. Case is remanded for evidentiary hearing.
Webb v. State, No. SC91012 (Mo. banc 3/29/11):

Even though Movant said no promises had been made to him to get him to plead guilty, where Movant claimed his attorney erroneously told him he’d only have to serve 40% of his sentence before being eligible for parole but he really had to serve 85%, this was affirmative misadvice and warranted an evidentiary hearing.

Facts: Movant pleaded guilty to first-degree involuntary manslaughter and ACA. Movant’s plea deal was for a 10 year sentence. However, the trial court indicated it would reject this deal, impose a 12-year sentence, and allowed Movant the opportunity to withdraw his plea. Movant did not. Later, Movant filed a Rule 24.035 motion claiming that his plea was involuntary and unknowing because his attorney was ineffective for telling him he would only have to serve 40% of his sentence before being eligible for parole, but he really had to serve 85%. The motion court found the claim to be refuted by the record since Movant had said at his plea that no promises were made to him to plead guilty.

Holding: Prior Missouri cases have drawn a distinction between an attorney’s failure to inform (which is not ineffective) and giving affirmative misinformation (which is ineffective). Here, Movant claims his attorney affirmatively misinformed him he would only have to serve 40% of his sentence. Movant’s negative response to a routine question that no promises were made to him is too general to refute that no such information was given. The State claims that the SAR would have given correct information, but the Supreme Court reviews it and determines the SAR did not. The Supreme Court also notes that the SAR is part of the record of the case, and should be provided to the attorneys and appellate court where requested. (The circuit clerk had refused to provide it). Movant is entitled to an evidentiary hearing on his claim.

Concurring Opinion: Padilla v. Kentucky, 130 S.Ct. 1473 (2010)(which held that attorneys must inform defendants of immigration consequences of their guilty pleas) indicates that attorneys have an obligation to inform clients of truly clear consequences of their guilty pleas. The Missouri Supreme Court’s prior cases may need to be expanded to take into account Padilla when considering whether counsel rendered ineffective assistance. Other courts have recognized that Padilla applies to other situations besides deportation. The 85% rule in this case was even more “certain” than deportation in Padilla and counsel has a duty to inform of “certain” consequences. There may be other situations where counsel must advise about consequences – a conviction may disqualify a person from professional licenses, used to deny gov’t benefits, access to housing, student loans and health care. Until there is further specific guidance, counsel and courts should be as vigilant as possible to explain to defendants that a guilty plea may carry serious consequences beyond immediate punishment.

Dissenting Opinion: Padilla should not be expanded beyond the deportation context.
Moore v. State, 2014 WL 1597633 (Mo. App. E.D. April 22, 2014):

Movant was entitled to evidentiary hearing on claim that counsel was ineffective for withdrawing motion for automatic change of judge and not moving for change of judge for cause, where judge had previously prosecuted Movant.

Facts: Movant, who was convicted of various offenses at trial and sentenced to the maximum possible sentence by Judge, filed 29.15 motion alleging his counsel was ineffective in failing to move for change of judge. Judge had previously prosecuted Movant when Judge was a prosecutor. Counsel had filed a motion for automatic change of judge, but then withdrew it. Counsel failed to file a motion for change of judge for cause. The motion court (who was also the trial court Judge) denied relief without a hearing.

Holding: Here, there was a motion for automatic change of judge under Rule 32.07 filed, but then it was withdrawn by counsel. The motion court found that this withdrawal was done in Movant’s “presence” and “with his consent” in open court, but the record does not indicate that Movant was even aware that the motion was withdrawn much less that it was done with his “consent.” The motion court further found that Movant failed to allege prejudice sufficient to trigger postconviction relief, and that just because a trial judge received knowledge of facts through prior court hearings does not justify disqualification for cause. However, Movant’s motion alleges that counsel lacked a strategic purpose for not pursuing a change of judge, and that Movant wanted a change of judge. Movant argues that Judge was biased against him, because she prosecuted him in another case before she became a judge. And Movant contends that a reasonable person would doubt Judge’s impartiality where she had prosecuted him previously, and sentenced him to the maximum possible sentence here. All of this sufficiently alleged facts not refuted by the record which warrant an evidentiary hearing before a different judge.
Kyles v. State, 417 S.W.3d 873 (Mo. App. E.D. 2014):

Movant was entitled to hearing on claim that counsel was ineffective for failing to strike Juror who said she could “sympathize” with and could be partial to victim; motion court cannot conclude that counsel had reasonable trial strategy for not striking Juror without a hearing.

Facts: Movant was convicted at jury trial of first degree tampering. During voir dire, Juror said that someone had tried to steal her car recently, and she could find herself “sympathizing” with the victim, and not being impartial. Juror further said, “I can listen to the evidence. What I’m telling you is I might find myself sympathizing with … the victim.” Movant filed a 29.15 motion, alleging counsel was ineffective in failing to move to strike Juror. The motion court denied the claim without a hearing.

Holding: Where counsel fails to strike a biased venireperson who ultimately serves as a juror, a postconviction movant is entitled to a presumption of prejudice. Here, the record shows Juror expressed bias, and that she was not rehabilitated because she never gave unequivocal answers that her sympathy for the victim would not affect her ability to be fair and impartial. The State claims that counsel had a “trial strategy” for failing to strike Juror. Assuming there was a strategy, that strategy must be “reasonable.” The record here does not show that. A hearing must be held so that defense counsel can explain whether his failure to strike Juror was a reasonable trial strategy.
Washington v. State, 2013 WL 6627968 (Mo. App. E.D. Dec. 17, 2013):

Movant was entitled to evidentiary hearing on his claim that counsel was ineffective in failing to move to suppress his statements on grounds that he could not knowingly and intelligently waive his Miranda rights due to his cognitive impairments, even though there was no evidence of police coercion.

Facts: Movant was convicted at trial of a child sex offense, to which he had confessed after Miranda warnings. In his Rule 29.15 motion, Movant claimed that counsel was ineffective in failing to move to suppress his statements on grounds that he was mentally impaired and could not knowingly and intelligently waive his rights. The motion court denied the claim on grounds that there was no evidence of police coercion.

Holding: The inquiry into whether a person has effectively waived his Miranda rights has two different prongs: (1) the waiver must have been voluntary, meaning it was the product of a free and deliberate choice without police intimidation or coercion, and (2) the waiver must have been knowing and intelligent, meaning made with full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it. Movant has alleged that he lacked mental capacity to knowingly and intelligently waive his rights due to mental and cognitive impairments. The motion court considered only the first prong of the waiver issue. Movant’s claims of impairments are not refuted by the record. A reasonably competent counsel would have used all available evidence in an attempt to suppress Movant’s statements since they were the critical evidence supporting his conviction at trial. There is a reasonable probability that if the statements had been suppressed, the outcome of trial may have been different.
States v. State, 2013 WL 6070034 (Mo. App. E.D. Nov. 19, 2013):

Holding: (1) Movant was entitled to evidentiary hearing on 24.035 claim that his plea was rendered involuntary by counsel’s erroneous advice to him that he would receive pre-plea jail time credit; (2) even though receiving jail time credit is not cognizable in a 24.035 action (but should be pursued in habeas corpus; the 24.035 motion court has no power to order jail time credit), Movant’s claim that he would not have pleaded guilty at all but for the erroneous advice regarding jail time credit is cognizable because it seeks to set aside his conviction (not just receive jail time credit); and (3) even though Movant said he was not “promised” anything at his plea, a “promise” is not the same as being given erroneous advice by counsel, so Movant’s statements at his plea did not refute the claim of ineffective assistance of counsel of being told wrong information about whether he was going to receive jail time credit.
Greer v. State, 2013 WL 4419338 (Mo. App. E.D. August 20, 2013):

Movant was entitled to an evidentiary hearing on his claim that counsel was ineffective in failing to object when the sentencing judge, after trial, said he was sentencing Movant to a higher sentence than that recommended as a plea agreement in order to deter others from seeking trials in their cases, since this unconstitutionally punished the exercise of the right to trial.

Facts: At Movant’s sentencing after having been found guilty at a trial, the judge said the “problem” the judge had was that if he sentenced Movant to a sentence lower than that recommended in the plea agreement before trial that Movant would go back to jail and say he went to trial and beat the recommendation, and this would cause “chaos” because “everyone’s going to go to trial, because they’re going to think they’re going to get less than the recommended sentence or the same sentence. That’s my problem.” After the judge sentenced him to a high sentence, Movant filed a Rule 29.15 motion alleging his counsel was ineffective in failing to object to the judge’s remarks. The motion court denied the claim without a hearing.

Holding: To be entitled to a hearing, Movant must alleges facts, not conclusions, warranting relief; the facts alleged must not be refuted by the record; and the matters complained of must have resulted in prejudice. If a defendant’s exercise of a constitutional right was an actual factor considered by the sentencing court in imposing sentence, then the exercise of that right is considered to be a determinative factor in sentencing, and retaliation has been demonstrated, even if other factors could have been relied on by the sentencing court to support the same sentence. The State argues that the sentence here is designed to deter others. But the proper purpose of deterrence is to prevent others from committing a crime, not to deter those who have already committed a crime from exercising their right to a trial. Here, the record does not refute that counsel was not ineffective in failing to object, so Movant is entitled to an evidentiary hearing.
White v. State, No. ED97805 (Mo. App. E.D. 10/23/12):

(1) Even though the motion court had affidavits from court personnel that no one saw Movant shackled at trial, Movant was entitled to an evidentiary hearing on claim that jurors saw Movant shackled because by relying on affidavits, the court considered non-record evidence but did not allow Movant opportunity to present his own evidence; and (2) even though police testified that Movant possessed drugs in his pants, where Movant alleged counsel was ineffective in failing to call a witness who would testify that Movant did not have drugs, Movant was entitled to an evidentiary hearing and claim could not be denied without a hearing based on the police testimony.