Case Law Update: 2011-2014 Cumulative Edition

Facts: Movant was convicted of possession of drugs. At trial, police testify that Movant had drugs in his pants. In his 29.15 motion, Movant alleged that jurors had seen him shackled, and that counsel was ineffective in failing to call a witness to testify that Movant had not had any drugs. The motion court denied relief without an evidentiary hearing on grounds that these matters were refuted by the record in that the court had affidavits from court personnel that no one had seen Movant shackled, and that the witness “would not establish that Movant did not possess the drugs.” Movant appealed and claimed he was entitled to an evidentiary hearing.

Holding: Movant was entitled to a hearing if he alleged facts warranting relief; the facts are not refuted by the record; and he shows prejudice. Here, the motion court relied on affidavits of court personnel to deny Movant’s claim that jurors had seen him shackled without a hearing. However, by relying on this non-record evidence, in essence, the motion court held a hearing without permitting Movant to present evidence and made factual determinations based on non-record evidence. Movant alleged in his 29.15 motion that jurors saw him shackled because his pants were too short. This is not refuted by the record. Regarding the witness, courts should not second guess counsel’s decision to call a witness made after a thorough investigation of the facts; however, counsel must investigate potential witnesses before deciding whether to call them. A witness provides a viable defense when the witness negates an element of the crime. Here, Movant alleged that counsel knew of the witness, could have located him, that the witness would have testified, and that the testimony would have provided a viable defense. Movant alleged that counsel failed to investigate this witness. The motion court found that the witness’ testimony “would not establish that Movant did not possess the drugs.” However, this conclusion is based on the court believing the police officers’ testimony. The record does not refute Movant’s allegation because it contains no evidence about whether Movant’s counsel chose not to call witness after investigating the nature of his testimony. Remanded for evidentiary hearing.
Wiley v. State, No. ED96782 (Mo. App. E.D. 3/20/12):

Where Movant gave his 24.035 motion to prison officials for mailing two months before due date and after due date the motion was returned in the mail for insufficient postage, this would constitute extraordinary circumstances beyond Movant’s control and allow a late-filing; Movant was entitled to hearing to prove these matters.

Facts: Movant filed a late Rule 24.035 pro se motion and counsel filed an amended motion thereafter. When the State pointed out that the initial pro se motion was late, Movant filed a motion alleging the pro se motion was late due to the actions of prison authorities in mailing it. The motion court dismissed the motion without a hearing.

Holding: An exception to the time limits of Rules 24.035 and 29.15 is when a late filing is “caused by circumstances beyond the control” of Movant. Howard v. State, 289 S.W.3d 651 (Mo. App. E.D. 2009), held that actions of prison officials in not properly mailing a Movant’s motion can constitute cause to excuse a late filing. Here, Movant’s case is similar. Movant alleged that he followed prison procedures in giving his motion to prison authorities to mail two months before its due date. However, after the due date, it was returned for insufficient postage. These facts, if true, would excuse the late filing and Movant should have been granted a hearing on them. The State also claims that Movant was required to raise these timeliness issues in his amended motion; however, the appellate court finds that raising them in the separate motion was sufficient here.

Facts: Movant pleaded guilty to stealing pursuant to a plea bargain. At his plea, he asked the judge if he would receive jail time credit and the judge said yes. After Movant was delivered to the DOC, he learned that he would only be given 243 days credit instead of 407 days because he was not eligible for time served prior to the date of the offense. (Movant was serving other sentences). Movant filed a Rule 24.035 motion claiming his attorney had been ineffective in advising him that he would receive 407 days credit. The motion court denied the claim without a hearing.

Holding: Movant may be entitled to vacate his guilty plea if his attorney misinformed him about the number of days credit he would receive. Movant’s claim is not refuted by the record, since he specifically asked the judge at his plea if he would be given credit. The State argues that because Movant asked this after his plea was accepted, Movant did not rely on it in pleading guilty. However, the immediacy of the question, the form of the question and the court’s response all show the parties’ and court’s understanding that jail time credit was part of the plea agreement. Movant is entitled to an evidentiary hearing.
Williams v. State, No. ED95386 (Mo. App. E.D. 11/15/11):

Where there was no evidence that a gun Defendant-Movant used in an unlawful use of weapon case was readily capable of lethal use, Movant was entitled to an evidentiary hearing on claim that appellate counsel was ineffective in failing to raise sufficiency of evidence on direct appeal.

Facts: Defendant pointed a gun at various persons. He was convicted at a trial of unlawful use of a weapon, and other offenses. After losing his direct appeal, he filed a 29.15 motion alleging that appellate counsel was ineffective in failing to appeal the issue of sufficiency of evidence to support the unlawful use of weapon conviction. The motion court denied the claim without a hearing.

Holding: To show ineffective appellate counsel, Movant must show that counsel failed to raise a claim that was so obvious that a competent attorney would have recognized it and asserted it, and that there is a reasonable probability the outcome of the appeal would have been different. Unlawful use of a weapon requires display of a weapon “readily capable of lethal use.” Sec. 571.030.1(4). Here, Movant contends that the State presented no evidence that the gun was readily capable of lethal use. The State had the burden of proof and was required to produce evidence that the gun used was capable of lethal use. The State’s assertion that a gun is generally capable of lethal use is not unreasonable, but a verdict cannot rest upon stacked inferences when there are not supporting facts in the first inference. Denial of postconviction relief reversed, and case remanded for evidentiary hearing on whether appellate counsel was ineffective.
Conger v. State, No. ED96015 (Mo. App. E.D. 10/18/11):

Movant was entitled to evidentiary hearing on claim that he was coerced into pleading guilty because his counsel wanted more money for a trial than Movant could pay.

Facts: Movant (defendant) was charged with various offenses. He ultimately pleaded guilty. At the plea hearing, he said he was not threatened or coerced to plead guilty, and expressed general satisfaction with defense counsel. Later, he filed a 24.035 motion claiming he was coerced to plead guilty because he could not afford the fee counsel demanded to go to trial. The motion court found the claim was refuted by the record.

Holding: An attorney’s statement to a client for additional fees to take a case to trial is not itself coercive. However, a financial conflict of interest arises when a defendant’s inability to pay creates a divergence of interest between counsel and defendant such that counsel pressures or coerces a defendant to plead guilty. Here, Movant pleaded facts which, if true, would warrant relief: Counsel filed motions to withdraw, which were denied; Movant paid counsel $11,500, but counsel said it would cost an additional $20,000 to go to trial; plea counsel pressured Movant by telling him she would not take the cases to trial until additional fees were paid; Movant could not pay the additional $20,000; Movant would not have pleaded guilty had counsel not coerced his decision. The State argues the claim is refuted by the record. But the guilty plea court never informed Movant that if he could not afford counsel for trial, the court would appoint counsel for trial. Movant’s general answers that he was not coerced or threatened and was satisfied with counsel do not refute allegations that Movant’s counsel told him she would not take the case to trial until he paid more fees and that this pressured him to plead guilty. Remanded for evidentiary hearing.
Brown v. State, No. ED94429-01 (Mo. App. E.D. 7/12/11):

Holding: Where (1) Movant claimed that guilty plea counsel was ineffective because counsel told him he’d only serve 3 to 5 years and (2) the plea record showed the court only asked Movant whether or not any threats or promises had been made to him, Movant’s statements were insufficient to cleary refute the claim that counsel promised him a lesser sentence; Movant entitled to evidentiary hearing.
Collins v. State, No. ED94590 (Mo. App. E.D. 3/29/11):

Where Movant alleged his counsel told him he would receive 407 days jail time credit if he pleaded guilty but he later was not given this, Movant was entitled to evidentiary hearing on whether counsel was ineffective.
Brantley v. State, No. SD30868 (Mo. App. S.D. 4/20/12):

Holding: Where Movant claimed his plea counsel was ineffective in failing to provide him with timely discovery, which caused him to miss a favorable plea offer and later accept a less-favorable one, this stated a viable claim and required a hearing under Missouri v. Frye, 132 S.Ct. 1399 (2012).
Thompson v. State, 2014 WL 4636393 (Mo. App. W.D. Sept. 9, 2014):

Postconviction claim that counsel was ineffective for failing to investigate and file a motion to suppress failed to state claim; rather, Movant must plead that counsel provided incompetent advice whether to plead guilty under all the circumstances of the case.

Facts: Rule 24.035 Movant alleged plea counsel was ineffective for failing to investigate and file a motion to suppress, and that Movant would not have pleaded guilty if counsel had done this. The motion court denied the claim without a hearing.

Holding: A plea of guilty is not subject to collateral attack on the ground that it was motivated by inadmissible evidence unless the Movant was incompetently advised by his attorney. The motion must allege that plea counsel provided incompetent advice regarding whether Movant should plead guilty, i.e., that counsel’s advice under all circumstances of the case was outside the range of competence demanded of counsel in criminal cases. Merely providing no advice regarding suppression is not enough. Denial of motion affirmed.
Scott v. State, 2013 WL 6170608 (Mo. App. W.D. Nov. 26, 2013):

Defendant/Movant was entitled to evidentiary hearing on claim that counsel was ineffective in advising him that he would receive pre-plea jail time credit, which he ultimately did not receive.

Facts: Defendant/Movant, who was held in custody approximately 4 years prior to his guilty plea for a drug offense, filed a 24.035 motion, alleging his counsel was ineffective in advising him that he would receive 4 years of pre-guilty plea jail time credit. In the actual event, the Department of Corrections awarded him less credit than this. The motion court denied the claim without a hearing.

Holding: Movant claims that but for counsel’s mistaken advice about jail time credit, he would not have pleaded guilty but would have insisted on going to trial. Movant would be entitled to relief if he relied on positive misrepresentations by counsel. At the plea colloquy, Movant said he thought he would be getting 4 years of jail time credit, and counsel said that that was true. Thus, it appears that counsel gave positive misadvice. Even though the plea court told Movant that the DOC would determine jail time credit, the court’s advice did not fully disabuse counsel’s advice because the court also said that it was “true” that Movant would get credit. Even though the plea court said that Movant could be required to serve “every day” of his sentence, this did not disabuse counsel’s advice because this statement could mean both pre-plea and post-plea service. Finally, any statements by the plea court about probation and parole didn’t correct the misadvice because probation and parole is not the same as pre-plea jail time credit. Thus, the record does not conclusively refute Movant’s claim. Reversed and remanded for hearing.
Epkins v. State, No. SD30349 (Mo. App. S.D. 2/10/11):

Even though Movant’s 24.035 motion only generally alleged that counsel had “coerced” him into waiving a jury, but the evidentiary hearing evidence was that counsel told him he’d get medical treatment faster if he did this, appellate court will review the claim on the merits; general pleading sufficient.

Holding: We acknowledge Movant’s amended motion more generally refers to trial counsel’s allegedly coercive conduct and does not specifically mention Movant’s medical condition. However, during the evidentiary hearing, claims of coercion based upon counsel’s alleged inducement stemming from Movant’s medical condition was clearly presented. Since Movant’s argument on appeal was generally encompassed in Movant’s amended motion, and presented to the motion court at the hearing, we choose to review the claim on the merits.
State v. Triplett, No. WD73486 (Mo. App. W.D. 12/20/11):

Holding: (1) Where (a) Defendant filed a motion which appeared to be a hybrid motion to suppress and motion to dismiss, (b) the trial court sustained the motion by dismissing the charge without prejudice, and (c) the State attempted to appeal only the motion to dismiss, the appeal must be dismissed because the State is not appealing the motion to suppress, and the appeal does not meet the requirements for the State to be able to appeal under Sec. 547.200. There is no final judgment because the dismissal was without prejudice. The State can just refile the charge in the trial court. (2) Although civil rule 73.01 gives parties the right to request Findings of Fact and Conclusions of Law before introduction of evidence, there is no similar rule in the criminal rules that requires a trial court to issue Findings in connection with a motion to suppress or other motions. A party (or appellate court) may request them, however, and the trial court may choose to do them, but they aren’t mandatory.
U.S. v. Meises, 89 Crim. L. Rep. 257, 2011 WL 1817955 (1^st Cir. 5/13/11):

Holding: Even though Officer actually participated in the drug sting, this did not make his “overview testimony” about the sting about which he had no personal knowledge admissible; this was still hearsay and inadmissible lay opinion testimony.
Matthews v. U.S., 2012 WL 2146320 (2d Cir. 2012):

Holding: Petitioner was entitled to evidentiary hearing on claim that counsel was ineffective in retaining a biased investigator to investigate his case; Petitioner should be allowed to show what an unbiased investigator would have discovered.
Lee v. Glunt, 90 Crim. L. Rep. 719 (3d Cir. 1/27/12):

Holding: A federal district court abused its discretion in refusing to grant a habeas corpus petitioner an evidentiary hearing to develop his due process claim that new scientific evidence has proved that expert testimony underlying his conviction was fundamentally unreliable.
U.S. v. Reed, 93 Crim. L. Rep. 365 (5^th Cir. 6/6/13):

Holding: Defendant was entitled to evidentiary hearing based on his claim that his trial counsel overestimated the amount of time he would get if he took a plea; motion court had denied an evidentiary hearing on the claim based on lack of evidence, but Defendant’s own testimony, if found credible, would establish the claim; “It is hard to imagine what additional evidence Reed could present to establish what his trial counsel told him in a presumably private conversation.”
U.S. v. Rivas-Lopez, 2012 WL 1326676 (5^th Cir. 2012):

Holding: The district court should have held an evidentiary hearing before dismissing a federal prisoner’s motion to vacate, set aside, or correct his sentence because the court could neither credit nor refute the defendant’s allegation of ineffective assistance on the record before it.
Hooper v. Ryan, 2013 WL 4779579 (7^th Cir. 2013):

Holding: Habeas petitioner was entitled to evidentiary hearing in federal court on Batson, where State court unreasonably concluded that striking all 7 African-American members of a venire did not make out a prima facie case of discrimination.
Coleman v. Hardy, 2010 WL 4670206 (7^th Cir. 2010):

Holding: Defendant was entitled to hearing on actual innocence where his habeas petition alleged new evidence of innocence, including a co-defendant affidavit saying Defendant had nothing to do with crime, and affidavits of alibi witnesses.
Hurles v. Ryan, 2013 WL 21922 (9^th Cir. 2013):

Holding: Petitioner would be entitled to habeas relief on his claims, if true, that judge was biased because judge had contacted Attorney General’s office during case and commissioned or authorized a responsive pleading or provided input to the prosecution of the case, so evidentiary hearing was warranted.
Johnson v. Finn, 2011 WL 6091310 (9^th Cir. 2011):

Holding: District court deprived habeas petitioners of due process by failing to conduct evidentiary hearing on Batson issue following a magistrate judge’s proposed finding regarding prosecutor’s lack of credibility.
Stouffer v. Trammell, 94 Crim. L. Rep. 445 (10^th Cir. 12/26/13):

Holding: Even though State’s evidence against capital Defendant was overwhelming, this did not justify failure to hold a hearing on alleged juror misconduct where Juror’s Husband allegedly signaled to Juror-Wife his opinions about the trial.
U.S. v. Weeks, 2011 WL 3452053 (10^th Cir. 2011):
Holding: Evidentiary hearing required on postconviction claim that Defendant received ineffective counsel at guilty plea because he had a valid defense to securities fraud in that he lacked knowledge of the illegality of his actions.
Fisher v. Ozaukee County Circuit Court, 2010 WL 3835098 (E.D. Wis. 2010):

Holding: Trial court’s application of general law prohibiting admission of preliminary breath test (PBT) results so as to preclude defense expert from testifying that Defendant’s BAC would have been lower violated right to present a defense.
State v. Victor O., 2011 WL 2135671 (Conn. 2011):

Holding: Results of an Abel Assessment of Sexual Interest (Abel test), which purports to show sexual interest minors, were not sufficiently reliable in a nontreatment context to be admitted in criminal case.
Harris v. State, 89 Crim. L. Rep. 177 (Fla. 4/21/11):

Holding: For drug dog evidence to be admissible, State must not only show that dog had proper training and certification, but also evidence that particular dog is reliable; State failed to show this where there was no evidence of field performance records about the dog at issue or about dog’s performance on false alerts. Tennessee issued a similar ruling in State v. England, 19 S.W.3d 762 (Tenn. 2000).
State v. Neal, 2011 WL 3366418 (Kan. 2011):

Holding: Evidentiary hearing was required to determine if Defendant had counsel or validly waived counsel regarding prior convictions which were used to enhance later sentence.
Com. v. Heang, 88 Crim. L. Rep. 594 (Mass. 2/15/11):
Holding: Ballistics expert should avoid testifying that ballistics matches have more certainty than they do, and should avoid terms like “absolute certainty” and “reasonable degree of scientific certainty,” but can say “reasonable degree of ballistic certainty.”
State v. Langill, 88 Crim. L. 292 (N.H. 11/30/10):

Holding: Hearsay rule prohibited fingerprint examiner from testifying that her fingerprint results were confirmed by a second examiner, even though the ACE-V method requires two examiners to compare results.
State v. Porter, 94 Crim. L. Rep. 393 (N.J. 12/19/13):

Holding: Where PCR judge denied an evidentiary hearing on ineffectiveness claim on basis that victim who identified Defendant was a credible witness and affidavits obtained for the PCR showing an alibi would not have changed the outcome, this was erroneous because “[t]here is no substitute for placing a witness [the affiants] on the stand and having the testimony scrutinized by an impartial factfinder” in the PCR case.
State v. McLean, 89 Crim. L. Rep. 68 (N.J. 3/31/11):

Holding: Officer cannot testify as “lay opinion” that a series of roadside transactions involving Defendant looked like drug deals since this invaded fact-finding province of jury.
Keough v. State, 90 Crim. L. Rep. 420 (Tenn. 12/9/11):

Holding: Movant seeking postconviction relief is entitled to testify at postconviction hearing without cross-examination under postconviction rule that states that “under no circumstances shall petitioner be required to testify regarding the facts of the conviction … unless necessary to establish the allegations of the petition.” Court notes whether the privilege against self-incrimination applies to a postconviction case remains an open question, but the state rule was designed to accomplish the same goal; the movant should not be dissuaded from testifying due to fear of self-incrimination.
Lear v. Fields, 2011 WL 102572 (Ariz. Ct. App. 2011):

Holding: Statute which adopted Daubert test for expert testimony violated separation of powers because Arizona courts had rejected Daubert.
People v. Gacho, 2012 WL 1343950 (Ill. App. 2012):

Holding: Even though a jury determined Defendant’s guilt, Defendant was entitled to evidentiary hearing on postconviction claim that trial judge’s corruption in accepting a bribe in a co-defendant’s case indicated that the judge had a personal interest in the outcome of his case and violated his due process rights to a fair trial.

Experts
State v. Cochran, No. WD73766 (Mo. App. W.D. 5/1/12):

(1) Expert should not be permitted to testify that Defendant committed “animal abuse” under Sec. 578.012 because this invades the province of the jury; and (2) where Defendant was charged with county ordinance violation but State failed to introduce the ordinance into evidence at trial, a court cannot judicially notice a county or municipal ordinance and the failure to introduce it at trial made the evidence insufficient to convict.