Case Law Update: 2011-2014 Cumulative Edition

Holding: Visiting Judge should not have sentenced Defendant where there was no showing that the original trial judge was unable to perform his sentencing duties, and the Visiting Judge was not familiar with the trial transcript.
U.S. v. Miller, 94 Crim. L. Rep. 421, 2013 WL 6818391 (D.C. Cir. 12/27/13):

Holding: Judge violated Defendant’s 6^th Amendment right to jury trial when, in response to a jury question, he gave his own view of how to reconcile discrepencies in the charges and evidence by explaining what specific proof supported specific charges.
Blaine v. U.S., 89 Crim. L. Rep. 191, 2011 WL 1584751 (D.C. 4/28/11):

Holding: Where jury sent a note asking for more guidance on burden of proof, judge erred in giving an additional instruction on reasonable doubt, even though the instruction was accurate, because the additional information about the State not having to prove guilt beyond a shadow of a doubt or to a mathematical or scientific certainty would have indicated to jury that judge believed Defendant was guilty and State met its burden of proof.
U.S. v. Coiscou, 2011 WL 2518764 (S.D. N.Y. 2011):

Holding: Magistrate judge had authority to dismiss complaint for lack of probable cause at initial appearance, even though preliminary hearing had not yet been held.
Ex parte Lightfoot, 93 Crim. L. Rep. 535 (Ala. 7/12/13):

Holding: When a judge has found by a preponderance of evidence a factor that triggers a mandatory sentence enhancement, the fact that the sentence imposed is below the statutory maximum does not render the 6^th Amendment right to have a jury determine the factor harmless.
People v. Clancey, 2013 WL 1667822 (Cal. 2013):

Holding: Record was ambiguous whether plea court engaged in prohibited plea negotiations, where there was no clear statement in the record that judges’ statement as to possible sentence represented court’s best judgment of what Defendant’s sentence would be regardless of whether Defendant pleaded guilty or went to trial, and record was ambiguous as to whether court extended leniency because of a plea.
Murphy v. State, 90 Crim. L. Rep. 651 (Ga. 2/6/12):

Holding: A defendant’s conviction for murdering a baby must be reversed because the trial judge made remarks during the testimony of a prosecution witness that bolstered the witness’ testimony.
Gibson v. State, 88 Crim. L. Rep. 781 (Ga. 2/28/11):

Holding: Where judge declined deliberating jurors’ request to see certain evidence by saying he wanted to avoid “reversible error,” this implied that judge thought Defendant was guilty and required reversal of conviction.
State v. Lee, 94 Crim. L. Rep. 586 (Idaho 2/10/14):
Holding: Where appellate court had previously ordered case remanded to enter a judgment of acquittal for Defendant, trial court should not have then entered a judgment acquitting Defendant but declaring him a “serious pedophile” who should be “closely watched;” while there were not specific rules prohibiting the judge from entering such an order, appellate courts have struck unnecessary verbiage from civil orders, and does so here.
Com. v. Hamilton, 2013 WL 5763180 (Ky. 2013):

Holding: Trial court had jurisdiction to hear Defendant’s claim the Health Department had violated laws of Kentucky in how it changed certain drug from Schedule V to Schedule III controlled substance.
State v. Pratt, 2012 WL 1859149 (Minn. 2012):

Holding: Retired Judge, who was sitting in Defendant’s criminal case as a special judge, should have been disqualified where he was simultaneously serving as a retained expert witness for the prosecutor’s office in a civil case; a reasonable observer would question his ability to be impartial under such circumstances.
State v. Melton, 2013 WL 3467123 (Wis. 2013):

Holding: Trial court lacked “inherent authority” to destroy a PSI of a Defendant in violation of a 50-year retention rule for court records.
People v. Labora, 2010 WL 4968641 (Cal. App. 2010):
Holding: Trial court engaged in improper judicial plea bargaining.
Holt v. Sheehan, 94 Crim. L. Rep. 204 (Fla. App. 10/11/13):

Holding: Even though trial judge had authority to issue an order recusing herself from all of public defender’s cases due to dispute with public defender, trial judge acted improperly in issuing an order that went beyond this and described public defender as “incompetent, untrustworthy and extremely dilatory,” as such comments were “scandalous” and not necessary to carry out the judge’s order recusing herself; “the order challenged in this case … is a scandalous comment having no place in a court record.”
Domville v. State, 2012 WL 3826764 (Fla. App. 2012):

Holding: Where judge was “Facebook friend” of prosecutor, this provided sufficient grounds to disqualify judge for cause since a reasonable person would not believe they would receive a fair and impartial trial from judge.
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.

People v. Radcliff, 2011 WL 2520134 (Ill. App. 2011):

Holding: Where judge was absent during part of a cross-examination of a witness, this violated Defendant’s due process right to a fair trial.
State v. Thompson, 2011 WL 836748 (Kan. Ct. App. 2011):

Holding: Even though a district judge heard guilt portion of trial, where sentencing was done by magistrate judge, Defendant could appeal for a trial de novo before district court.
Prince v. Dept. of Motor Vehicles, 2011 WL 7975443 (N.Y. Sup. 2011):

Holding: Administrative Law Judge in license revocation violated due process due to bias when he offered, developed and coached Officers during the hearing to get them to show that arrestee was warned that her license would be suspended upon refusal to take BAC test.
People v. Lockley, 2011 WL 1733894 (N.Y. App. 2011):

Holding: Trial court’s procedure of reading jury notes in front of jury and immediately answering without giving defense an opportunity to be heard beforehand was inherently prejudicial.
Duffey v. State, 2014 WL 685560 (Tex. App. 2014):

Holding: Where trial judge had ex parte contacts with victim’s family before sentencing and prayed with them for “justice” in the case, this created an appearance of partiality that required judge to recuse.
State v. Sellhausen, 2010 WL 4770622 (Wis. Ct. App. 2010):

Holding: Judges must sua sponte remove their immediate family members from a voir dire panel and not require defendant to strike them for cause or exercise a peremptory strike.
Jury Instructions
State v. Hunt, 2014 WL 7335208 (Mo. banc Dec. 23, 2014):

(1) Even though Defendant-Officer broke in Suspect’s door and hit him while arresting him, evidence was insufficient to convict Defendant-Officer of first-degree burglary because Officer either had authority to enter the residence based on the arrest warrant for Suspect, or if Officer did not believe Suspect was inside residence, he could not have intended to assault him by breaking in (which was the alleged intended crime from the entry); (2) Even though Defendant-Officer broke in Suspect’s door, evidence was insufficient to convict of conviction for property damage because Sec. 544.200 give officers authority to break open doors to arrest someone if, after notice, the person refuses to answer the door; and (3) the jury instructions for assault were plainly erroneous because they misled jury into considering whether Defendant-Officer was a “law enforcement officer,” which was not a jury question but a matter of law under 195.505; the proper question was whether Defendant-Officer “exceeded” his authority, not whether he “had” authority.

Facts: Officers had an arrest warrant to arrest Suspect for two felonies. Officers banged on the door of Suspect’s trailer (where an informer said he was) and announced “sheriff’s department” but no one answered. Defendant-Officer looked in a window and saw drug-related items. Defendant-Officer then kicked in the door and went inside. Defendant-Officer employed “control tactics” by hitting Suspect and also cursed at him. Defendant-Officer apparently had had a different prior incident with Suspect where he also hit him. Defendant-Officer was charged and convicted of first degree burglary for unlawfully entering the trailer with the purpose of assaulting Suspect, second-degree property damage for breaking down the front door, and third degree assault for hitting Suspect.

Holding: (1) There is insufficient evidence to support the burglary conviction. Burglary requires proof of (a) unlawful entry and (b) an intent to commit a crime therein, i.e., the alleged assault. The lawfulness of the entry depends on whether Defendant-Officer had a reasonable belief that Suspect was inside the trailer at the time. If, as the State contends, he did not reasonably believe Suspect was inside the trailer, then he could not have formed the intent to assault the suspect (because he didn’t believe the suspect was there). But if he did have such a belief that Suspect was inside, he had authority to enter by virtue of the arrest warrant. Thus, both elements needed to prove burglary can’t be present here. (2) There is insufficient evidence to support the property damage conviction because Sec. 544.200 gives officers authority to break open a door if, after notice, the officer is refused admittance. Here, officers had knocked, announced their presence and demanded entry, but were refused. As a matter of law, Defendant-Officer’s action in breaking down the door was lawful under Sec. 544.200. (3) The jury instructions for the assault conviction were plainly erroneous because they required the jury to find Defendant-Officer was acting as a law enforcement officer, which was not an issue for the jury to decide because it was a legal question answered by statute, Sec. 195.505. The issue for the jury to decide was whether he used reasonable force. The proper question for the jury was not whether Defendant-Officer had authority, but whether he exceeded it. If the jury believed the State’s theory at trial that Defendant-Officer was acting outside his authority, then it would never have considered the question of reasonable force at all, so the instruction was misleading. Burglary and property damage convictions vacated. New trial on assault conviction ordered.
State v. Jackson, 2014 WL 2861550 (Mo. banc June 24, 2014):

Even though the trial court believed that there was no reasonable basis in the evidence to acquit of first degree robbery and convict of second degree robbery because there was overwhelming evidence that Defendant used a gun in the offense, the trial court erred in failing to give a requested lesser-included offense instruction on second degree robbery because a jury can always disbelieve all or any part of the evidence; a trial court cannot refuse a defendant’s request for a “nested” lesser-included offense instruction (i.e., those comprised of a subset of elements of the charged offense) based solely on its view of what evidence a reasonable juror must believe.

Facts: Defendant was charged with first degree robbery. At trial, Victim testified that Defendant held a revolver at her back. Also, a police detective testified that he reviewed video of the robbery and saw Defendant holding a pistol to the Victim’s back. As relevant here, the distinction between first and second degree robbery was whether Defendant displayed a deadly weapon. Defense counsel requested a lesser-included offense instruction on second degree robbery on grounds that the jury could disbelieve Victim and police officer, and believe they were mistaken in seeing a gun. The trial court refused the instruction on grounds that “if I were to submit it, then I’d have to submit it every time there’s a robbery first brought, and I don’t think that’s the law.” Defendant was found guilty of first degree robbery. He appealed.

Holding: The outcome of this appeal depends on whether there was a basis in the evidence for acquitting Defendant of the charged offense. Here there was, because a jury can always disbelieve all or any part of the evidence, just as it always may refuse to draw inferences from that evidence. No matter how strong or even absolutely certain the evidence and inferences in support of the differential element in the greater instruction may seem to judges and lawyers, no evidence ever proves an element of the offense until all 12 jurors believe it, and no inference is ever drawn until all 12 jurors draw it. Accordingly, in a criminal case, the trial court cannot refuse a defendant’s request for a “nested” lesser offense instruction based solely on its view of what evidence a reasonable juror must believe or what inferences a reasonable juror must draw. When dealing with “nested” lesser included offenses (i.e., those comprised of a subset of the elements of the charged offenses), it is impossible to commit the greater without necessarily committing the lesser. Today’s opinion is consistent with Section 566.046. Even though the effect of this opinion will be that lesser-included offense instructions will be given virtually every time they are requested (and even though trial courts likely will give them even when not requested to avoid postconviction claims), Sec. 566.046 must be applied in the context of the constitutional presumption of innocence and right to trial by jury. To the extent that State v. Olson, 636 S.W.2d 318 (Mo. banc 1982) is contrary to this opinion, it is overruled. New trial ordered.
State v. Pierce, 2014 WL 2866292 (Mo. banc June 24, 2014):

(1) Even though the uncontradicted evidence showed that Defendant had more than two grams of cocaine base, the trial court erred in second degree trafficking case in failing to give “nested” lesser-included offense instruction on possession of cocaine because a jury may always believe or disbelieve the State’s evidence, and the only thing a defendant must do to put the elements of a crime “in dispute” is plead not guilty; and (2) Even though Court’s term had ended before Defendant was retried, Defendant waived his claim that this violated Article I, Sec. 19 of the Missouri Constitution because he failed to object to the “untimely” trial before the Court’s term ended at a time when the Court still had power to correct it.

Facts: (1) Defendant was charged with second degree trafficking. The jury instruction for second degree trafficking required the jury to find that Defendant possessed more than 2 grams of cocaine base. Defendant requested a lesser-included offense instruction for possession of drugs, Sec. 195.202.1. The trial court refused this instruction on grounds that all the evidence showed the cocaine base weighed more than 2 grams. Defendant was convicted of second degree trafficking. He appealed. (2) Defendant’s original trial ended in a hung jury. Subsequently, the trial was continued several times without objection from the defense. It was ultimately tried during a much later “term” of the trial court.

Holding: (1) For the reasons set forth in State v. Jackson, No. SC93108 (Mo. banc June 24, 2014), Defendant was entitled to the lesser-included offense instruction. Guilt is determined by a jury, not the court. Even though the State contends that the issue of the weight of the drugs was not “in dispute,” the jury is the sole arbiter of facts and is entitled to believe or disbelieve the State’s evidence. Under the trafficking instruction, the jury was told that the State had to prove that the substance weighed more than 2 grams. Because a jury may always believe or disbelieve the evidence, the State’s burden is met only when a jury returns a guilty verdict. The only thing a defendant has to do to hold the State to this burden of proof, or to put the elements of a crime “in dispute,” is plead not guilty. Once the defendant pleads not guilty, there will always be a basis in the evidence to acquit the defendant at trial because the jury is the final arbiter of what the evidence does or does not prove. New trial ordered. (2) Article I, Sec. 19, Mo. Const., provides that if a jury fails to render a verdict, the court may commit the prisoner to trial during the same or next term of court. Here, the trial court failed to retry Defendant during the “same or next term of court.” However, this does not mean that the trial court lacked authority to try Defendant. Here, Defendant waived this issue because he did not object to the “untimely” trial until the date of the new trial. This waived the issue because the trial court must be given an opportunity to correct the error while correction is still possible. Thus, Defendant was required to object before the Court’s term expired when there was still time to try him.
State v. Stover, No. SC91760 (Mo. banc 9/25/12):

Trial court plainly erred in giving jury instruction in first degree trafficking case which, contrary to MAI-CR3d 325.10.2, omitted the phrase “knowing of the substance’s content and character” from the definition of trafficking.

Facts: Defendant, a driver of a car, was charged with first degree trafficking after a large amount of PCP was found in a suitcase in the car’s trunk during a traffic stop. Another passenger was in the car. At trial, Defendant’s defense was that he did not know about the PCP.

Holding: The MAI submitted in this case stated that a person commits the crime of trafficking “if he knowingly distributes … 90 grams or more of a mixture or substance containing a detectable amount of PCP, a controlled substance.” However, this was not in conformity with the applicable MAI. MAI-CR3d 325.10.2 would have required this instruction to read “if he knowingly distributes … 90 grams or more of a mixture or substance containing a detectable amount of PCP, a controlled substance knowing of the substance’s content and character.” The given-instruction violated Defendant’s rights to due process and a fair trial because it did not require the jury to find that Defendant knew of the PCP’s content and character. Plain error exists when an instruction omits an essential element of the crime and the evidence establishing the omitted element was seriously disputed, as it was here.
State v. Miller, No. SC91948 (Mo. banc 7/3/12):

(1) Where the information charged various sex acts between Dec. 3, 2004 and Dec. 5, 2005, and the verdict director tracked these dates, but the evidence was that the offense was committed in 1998 or 1999, the evidence is insufficient to convict because the time span of the charged offense was different than the evidence actually presented and the charged offense did not give adequate notice to the defense of the evidence the State intended to present; because the evidence is insufficient, Defendant cannot be retried on these counts; and (2) where Defendant was charged with another sex offense alleged to have occurred in 1997 or 1998, the trial court erred in giving a jury instruction regarding the definition of sexual contact that was not enacted until 2002; because this jury instruction constitutes only “trial error,” Defendant can be retried on this count.

Facts: Defendant was charged by information with child sex offenses alleged to have occurred between Dec. 3, 2004 and Dec. 3, 2005. The jury instruction tracked this time frame. However, the evidence presented at trial showed that these offenses occurred in 1998 or 1999. Regarding a separate charge of first degree child molestation, the verdict directed stated that Defendant touched the genitals of a child “through the clothing” in 1997 or 1998.

Holding: (1) There was no evidence that Defendant committed the first charged sex offenses in 2004 or 2005, as charged in the information and as instructed in the jury instruction. While the exact date of a sex offense is not an element of the crime, a time element cannot be so overbroad as to nullify an alibi defense or prevent application of double jeopardy principles. When the State chooses to file an information and submit a parallel jury instruction that charges a specific time frame, the evidence must conform to that time frame. Otherwise, the defense would not have adequate notice of the evidence the State intends to present. Here, there was no evidence Defendant committed the first sex acts during 2004 or 2005. Having not presented sufficient evidence to convict, the State cannot retry Defendant on these charges and he must be discharged. (2) Regarding a separate charge of first degree child molestation, at the time of this offense, Sec. 566.067 RSMo. 1994 applied and it did not define sexual contact as “touching through the clothing.” That language was not added until the statute was revised in 2002. Hence, the jury instruction using the 2002 language was error. However, this is “trial error,” so a new trial on this charge is permissible.
State v. Bolden, No. SC92175 (Mo. banc 7/3/12):

Holding: Trial court has no duty to sua sponte correct an erroneous jury instruction proffered by the defense, and appellate court will not conduct plain error review of such an instruction. To the extent that State v. Beck, 167 S.W.2d 767, 777-78 (Mo. App. 2005) holds to the contrary, it is overruled.
State v. Maura Celis-Garcia, No. SC90980 (Mo. banc 6/14/11):

(1) Where alleged child-victim testified to multiple acts of hand-to-genital contact at various locations and the verdict-director allowed the jury to convict if it found that Defendant touched Defendant between certain dates, this violated Defendant’s right to a unanimous jury verdict because the verdict-director failed to require that the jury agree on the specific act Defendant committed which constituted the charged count of sodomy; (2) even though MAI-CR 3d 304.02 Note on Use 6 allows offenses to be described by location, this modification is insufficient to protect the right to a unanimous jury verdict in a multiple acts case without also instructing the jury to agree unanimously on at least one of the specific acts described in the verdict director.

Facts: Defendant was charged with two counts of sodomy for alleged acts involving two child victims. The victims testified that Defendant touched them during various incidents at various times on a porch, in a bedroom, and in a bathroom. The verdict director for each victim instructed the jury to find Defendant guilty if “between January 1, 2005 and March 31, 2006 … the defendant … placed her hand on [victim’s] genitals.”

Holding: The trial court plainly erred in submitting this verdict director because it denied Defendant her right to a unanimous jury verdict. As an initial matter, the State argues that Defendant cannot seek plain error review because she submitted a verdict director that contained this same defect, but a defendant does not waive plain error review by failing to submit a correct instruction. On the merits, Article I, Sec. 22(a) of the Missouri Constitution guarantees a right to a unanimous jury verdict. Here, the broad language of the verdict director allowed the jury to convict if they found that Defendant engaged in hand-to-genital contact in the bedroom, or the porch, or the bathroom. The jury was not required to agree on the specific act Defendant committed. “This Court agrees that a defendant’s right to a unanimous verdict would be protected in a multiple acts case by either the state (1) electing the particular criminal act on which it will rely to support the charge or (2) the verdict director specifically describing the criminal acts presented to the jury and the jury being instructed that it must agree unanimously that one of those acts occurred.” MAI-CR 3d 304.02 Note on Use 6 allows the acts to be described by location. But this is not sufficient to ensure a unanimous jury verdict. The instruction must not only describe the separate criminal acts with specificity, but must also instruct the jury to agree unanimously on at least one of the specific criminal acts described. To the extent MAI-CR 3d 304.02 and its notes conflicts with this substantive law, they are not binding. New trial ordered.
State v. Meeks, 427 S.W.3d 876 (Mo. App. E.D. 2014):

(1) “Resisting arrest” instruction which instructed jury that Defendant could be convicted if he resisted his own arrest by “physical interference” was plainly erroneous because Sec. 575.150.1(1) does not include resisting one’s own arrest by “physical interference,” and thus, the State was relieved of its burden of proof; and (2) trial court plainly erred in sentencing Defendant to an extended term of imprisonment as a “persistent offender,” where State only alleged and proved that Defendant was a “prior offender” with one prior felony conviction.