Case Law Update: 2011-2014 Cumulative Edition

Holding: Statute that allows admission of statements made to others of a child under age 10 about sexual abuse does not apply in grand jury proceedings.
De Leon v. Hartley, 94 Crim. L. Rep. 444 (N.M. 12/30/13):

Holding: Trial court’s delegation to Prosecutor of selection and excusal of grand jurors required quashing indictment without prejudice.
People v. Extale, 91 Crim. L. Rep. 74 (N.Y. 3/27/12):

Holding: Prosecutor cannot dismiss a count of a grand jury indictment over Defendant’s objection.
People v. Credle, 90 Crim. L. Rep. 166 (N.Y. 10/25/11):

Holding: Where a grand jury deadlocks, prosecutors must get court approval to resubmit the charges to another grand jury.
State v. Borner, 93 Crim. L. Rep. 728 (N.D. 8/29/13):

Holding: The crime of “conspiracy” to commit extreme indifference murder does not exist, since indifference murder is an unintentional killing; “charging a defendant with conspiracy to commit unintentional murder creates an inconsistency in the elements of conspiracy and extreme indifference murder that is logically and legally impossible to rectify. An individual cannot intend to achieve a particular offense that by its definition is unintended.”
State v. Hernandez, 90 Crim. L. Rep. 242 (Utah 11/8/11):

Holding: Where under Utah territorial law there was a right to preliminary hearing in some misdemeanor cases, this right continues to exist under Utah’s Constitution even though it replaced indictments with informations.
State v. Zillyette, 2013 WL 3946066 (Wash. 2013):

Holding: Offense of “controlled substance homicide” requires the identity of the controlled substance which killed victim be disclosed in the information or indictment charging the offense.
People v. Rodriguez, 158 Cal. Reptr.3d 401 (Cal. App. 2013):

Holding: Even assuming that court had erroneously dismissed a prior indictment, Prosecutor was prohibited by statute from filing a new indictment, because the prior dismissal had been appealable by Prosecutor (though Prosecutor failed to appeal), and allowing Prosecutor to simply file a new indictment would allow new charges months or years after the time for appeal had expired.
Griffith v. Superior Court, 2011 WL 2449633 (Cal. App. 2011):

Holding: Misdemeanors joined with felonies may be set aside if not supported by evidence at a preliminary hearing.
McGill v. Superior Court, 2011 WL 2120179 (Cal. App. 2011):

Holding: Where a perjury charge against Defendant for testifying falsely before a grand jury was heard by the same grand jury that heard the underlying case where the perjury occurred, the perjury charge was subject to dismissal.
Barnett v. Antonacci, 2013 WL 4525322 (Fla. App. 2013):

Holding: Prosecutor’s decision to file charges or nolle a case is not a “stage” of the criminal proceedings invoking victims’ rights to intervene; such an interpretation would unconstitutionally impinge on a prosecutor’s exclusive authority to decide when to bring or dismiss charges.
Jamison v. State, 2011 WL 5157768 (Miss. Ct. App. 2011):

Holding: An amendment to an indictment which increased the drug quantity defendant was accused of possessing, thereby exposing defendant to a greater sentence, was a substantive amendment and required approval by a grand jury.
People v. Haste, 966 N.Y.S.2d 660 (Sup. 2013):

Holding: Prosecutor’s misleading and incomplete instruction to grand jury regarding defense of justification required dismissal of indictment for manslaughter.
People v. Jin Lu, 2013 WL 791296 (N.Y. City Crim. Ct. 2013):

Holding: Information charging Defendant with possession of a weapon was insufficient where it merely alleged Defendant had a metal pipe, which did not fall under the definition of a “per se” weapon.
People v. Martini, 2012 WL 2273438 (N.Y. City Crim. Ct. 2012):

Holding: Information was insufficient to charge menacing in the third degree where it only alleged that Defendant pushed victim and threatened to shoot her in the head, but did not allege that Defendant committed any physical act that objectively would cause victim to fear imminent physical injury.
People v. Figueroa, 2012 WL 2206889 (N.Y. City Crim. Ct. 2012):

Holding: The information charging an open container violation was insufficient where it only had an allegation that Officer saw Defendant drinking alcohol in open container, but lacked allegations that the alcohol was more than .005 by volume and did not occur at an authorized event where open containers are allowed.
People v. Pena, 2011 WL 4485976 (N.Y. App. 2011):

Holding: Information charging defendant with riding a bicycle on the sidewalk was jurisdictionally defective where defendant was riding a bicycle inside the entrance of a subway station and the Code defined a sidewalk narrowly.
People v. Sanders, 2011 WL 4638751 (N.Y. App. Div. 2011):

Holding: Defendant’s prior conviction for second degree assault barred a later prosecution for first degree assault based upon the same incident, even though it was based on a jurisdictionally defective information.
People v. Suber, 2011 WL 1438667 (N.Y. App. 2011):

Holding: Information charging failure to register as sex offender within 10 days of any change of address did not satisfy the prima facie case requirement of corroboration of the Defendant’s admissions that he had changed addresses twice since his initial registration.
People v. Valentine, 2011 WL 3274227 (N.Y. J. Ct. 2011):

Holding: Where State charges against Defendants for hosting a party where alcohol was served to juveniles had been dismissed after Defendants completed an alcohol awareness program, the interests of justice require that similar municipal charges be dismissed.
State v. Cooper, 2013 WL 6081452 (Tex. App. 2013):

Holding: Information was insufficient to charge property code violation where Ordinance required notice of violation before charging, and Information failed to allege that notice had been given.
Geick v. State, 2011 WL 4577578 (Tex. Crim. App. 2011):

Holding: Where the charging instrument unnecessarily narrows the manner and means of committing the offense, the narrower definition of the law will be used and must be proven beyond a reasonable doubt.
State v. Siers, 2010 WL 4813737 (Wash. Ct. App. 2010):

Holding: State’s failure to allege “Good Samaritan” sentencing aggravator in information, which aggravator was then presented to jury in trial on second degree assault, vitiated the assault conviction as well as the sentence.

Ineffective Assistance of Counsel
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.
Smith v. State, No. SC92127 (Mo. banc 7/3/12):

Where counsel failed to investigate a co-defendant in crime as to whether co-defendant committed crime alone, counsel was ineffective and Movant was prejudiced because co-defendant would have testified that Movant was not involved in crime.

Facts: Two people robbed a gas station. “Carroll” pleaded guilty to the crime. No other person was convicted at that time. Later, Snitch, who was in jail on other charges, told prosecutors that Movant (Defendant) confessed to him to being the other person in the robbery. Snitch made a favorable deal to testify against Movant at trial. Meanwhile, “Carroll” wrote a letter to prosecutors offering to “help get another conviction on the robbery” if he could get a sentence reduction. Movant’s counsel did not contact “Carroll.” Movant was convicted at a trial. “Carroll” did not testify at the trial. Movant later filed a Rule 29.15 claim, alleging that counsel was ineffective in failing to investigate and call “Carroll” to testify.

Holding: At the 29.15 hearing, Snitch testified he lied at trial that Movant confessed to him; Snitch testified he wanted to correct his prior false testimony. “Carroll” testified that Movant was not involved in the robbery; however, “Carroll” refused to name who his accomplice was. He said he sent his letter to prosecutors to seek a sentence reduction because he had no prior criminal convictions. Here, counsel “assumed” that “Carroll’s” testimony would be “bad” for Movant, but counsel never contacted, questioned or interviewed “Carroll.” Counsel further believed that even if the testimony would have been “good,” “Carroll” would be impeached on it. However, failing to determine what “Carroll’s” testimony might be, and then failing to call Carroll, falls outside the wide range of professional competence. The State argues that counsel made a “strategic” decision not to call “Carroll,” but strategic decisions must be made after thorough investigation and, having not investigated “Carroll,” counsel could only speculate as to what “Carroll” would say at trial. Counsel was unaware of the possible strategies available to the defense through the use or nonuse of “Carroll” because he had failed to investigate. Movant was prejudiced because “Carroll’s” testimony would have exonerated Movant.
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.
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.
Wright v. State, 411 S.W.3d 381 (Mo. App. E.D. 2013):

Holding: Although Eastern District reluctantly upholds a “group guilty plea” despite prior criticism of the practice by the Eastern District and Missouri Supreme Court, a concurring opinion says that “[d]efense lawyers agreeing to such a procedure may well be presumptively ineffective.”
Ervin v. State, 2013 WL 5629380 (Mo. App. E.D. Oct. 15, 2013):

Plea counsel was ineffective for failing to review discovery and failing to advice Defendant/Movant that the value of stolen property did not qualify as a felony, even though Movant wanted to plead guilty to “get it done” with.

Facts: Defendant/Movant was charged with felony stealing for stealing more than $500 in alcohol bottles. Plea counsel received discovery, but failed to review it and failed to provide it to Movant prior to his guilty plea. Movant pleaded guilty to a felony plea offer which was about to expire in order to “get it done” with. After his conviction, Movant filed a 24.035 motion alleging that counsel failed to review discovery and advise Movant that the discovery showed that the value of the bottles was less than $500, which was a misdemeanor.

Holding: An attorney has a duty to investigate all aspects of a defendant’s case, and can only make strategic choices after thorough investigation. Here, counsel failed to conduct any sort of investigation and did not carefully read the discovery in her possession. The State’s discovery showed the value of the stolen bottles was less than $500, which was a misdemeanor. Even though Movant wanted to plead guilty to “get it done” with, the record does not show that Movant would have pleaded guilty regardless of what the discovery showed. He pleaded guilty trusting that counsel had reviewed the discovery and because a plea bargain was expiring. “[W]e hold that a defendant’s desire to immediately plead guilty does not alleviate a counsel’s duty to at least minimally review discovery. Counsel always has a duty to investigate appropriate defenses and to look at discovery.” Movant’s general responses of satisfaction with plea counsel at his plea were too general to refute his ineffectiveness claim. Conviction vacated.
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.
Barmettler v. State, 2013 WL 2316813 (Mo. App. E.D. May 28, 2013):

Holding: (1) In child sex prosecution with two counts and some evidence of additional uncharged acts, trial and appellate counsel unreasonably failed to object to and raise on appeal that the verdict directors did not describe or distinguish the particular acts from one another in violation of Note on Use 6 for MAI-CR3d 302.02 regarding the risks associated with non-specific verdict directors submitted in multiple acts cases and as illustrated by State v. Celis-Garcia, 344 S.W.3d 150 (Mo. banc 2011); (2) even though Movant’s trial was before Celis-Garcia, the verdict directors were still in violation of Note of Use 6 and Movant’s right to a unanimous jury verdict; but (3) Movant was not prejudiced here because most of the trial testimony focused on the two specific alleged acts of abuse, so there was no reasonable risk that jurors would have convicted Movant based on the uncharged acts.
Gray v. State, No. ED97667 (Mo. App. E.D. 9/11/12):