Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant, who was a juvenile at time of offense, was convicted of first degree murder and sentenced to LWOP. While his direct appeal was pending, the U.S. Supreme Court decided Miller v. Alabama, 132 S.Ct. 2544 (2012), which held that automatic sentences of LWOP for juveniles violate the 8^th Amendment.

Holding: Because Defendant’s conviction was pending on direct appeal when Miller was decided, his conviction was not “final” and Miller applies. The Missouri Supreme Court in Hart established a procedure to apply Miller . Defendant’s case is remanded to apply that procedure. A new sentencing proceeding must be held at which the jury will be instructed that if it is not persuaded that LWOP is the just and appropriate sentence under all the circumstances, additional instruction regarding punishment will be given. If the jury does not then impose LWOP, the court must declare Sec. 565.020 void as applied to Defendant on grounds that it does not provide a constitutionally valid punishment. The court must then vacate the jury’s verdict of first degree murder, and enter a verdict of second degree murder under Sec. 565.020.1(1) as a lesser-included offense. The court must then instruct the jury as to the range of punishment for second degree murder.
State v. Doss, 2013 WL 1197484 (Mo. App. W.D. March 26, 2013):

(1) Where the State submits an instruction in the disjunctive for a single robbery, both alternatives must be supported by sufficient evidence; thus, even though the evidence may be sufficient to prove Defendant stole a cell phone, where it was not sufficient to prove that Defendant stole a wallet and the verdict director stated that Defendant “took a cell phone and/or wallet,” the evidence was insufficient for robbery; and (2) in penalty phase, the State could not introduce Defendant’s juvenile records which would show the equivalent of only misdemeanor conduct because such records are closed under Sec. 211.271.3, and the State could not introduce juvenile records which did not show by a preponderance of evidence that Defendant actually engaged in the conduct alleged.

Facts: Defendant was charged with two counts of first degree murder, first degree robbery, and ACA. Two murder victims were found in a home. There were no cell phones or wallets found in the home. There were some statements made that indicated that a cell phone may have been taken. The jury convicted Defendant of second degree murder, first degree robbery and ACA. At penalty phase, the State, over defense objection, introduced Defendant’s juvenile records which showed offenses that would be felonies and misdemeanor if committed by an adult, and also showed other misconduct.

Holding: (1) Because the State submitted a disjunctive verdict director allowing the jury to convict if they found that he “took a cell phone and/or wallet,” the State had to present sufficient evidence to support each alternative. Here, there was some evidence that a co-defendant may have taken a cell phone. However, there was no evidence that any wallet was taken. The State argues that it is “logical” to assume that the victims must have had wallets, and since none were found in the home, the wallets must have been taken as part of the charged crime. While the State’s argument is logical, that is not the standard for judging sufficiency of evidence. Absent some evidence that wallets were present and available to be stolen that day, there simply was not enough evidence to support a conviction for stealing a wallet. Robbery conviction reversed. (2) The State argues that the juvenile records were admissible in penalty phase under Sec. 211.321.2(2) which allows juvenile records to be open “for an offense which would be a felony if committed by an adult.” Here, however, the records at issue showed conduct that would be a misdemeanor if committed by an adult, and other conduct that would be a felony. Juvenile records regarding misdemeanors are closed under Sec. 211.271.3, while records regarding felonies are open under Sec. 211.321.2(2). Here, it is possible that the juvenile court found Defendant to have engaged in only the misdemeanor-equivalent acts, and thus, the records would not be admissible. Additionally, while the records demonstrate that Defendant engaged in at least some of the acts, the problem is that there are criminal acts alleged in the “motion to modify” the prior juvenile disposition for which there is not evidentiary support that Defendant committed the acts, and the documents do not show which acts Defendant was adjudicated as having committed. Defendant was prejudiced because the jury asked to review the juvenile records, and sentenced Defendant to high sentences despite having found second degree murder. On retrial of the penalty phase, where the records make reference only to “assaults,” the State will have to present additional evidence showing that these were felony-equivalent assaults; otherwise, the “assaults” are not admissible because they may have been misdemeanor-equivalent assaults.
In the Interest of A.G.R. Juvenile Officer v. A.G.R., No. WD73007 (Mo. App. W.D. 12/27/11):

(1) Where Juvenile is charged with only a “status offense,” Juvenile does not need to be competent for case to proceed; (2) even though Juvenile had been released from court supervision, appeal was not moot where it raised important issues of first impression which might otherwise evade appellate review.

Facts: Juvenile was originally charged with a “delinquency offense” that would have resulted in a felony sex charge if Juvenile were an adult. However, the State filed an amended petition charging only “status offense” acts constituting behavior injurious to the welfare of the child. After a court-ordered competency evaluation, the court found Juvenile to be incompetent. Defense counsel filed a motion to dismiss or to suspend proceedings while Juvenile was incompetent. The court denied the motions. The status offense proceeded to disposition, and Juvenile was ordered placed in care and custody of his mother under supervision of the Children’s Division and court. Juvenile appealed.

Holding: As an initial matter, since the appeal was filed, Juvenile has been released from court supervision, and hence, there is a question whether the appeal is moot. Because the appeal raises important issues of first impression that may otherwise evade appellate review, the appellate court will decide the case. Regarding the merits, this case is not one where Juvenile was charged with a “delinquency offense,” i.e., a criminal-type offense. Instead, he was ultimately charged with a “status offense.” A status offense is unique to juveniles and is an infraction that allows the juvenile court to take jurisdiction of a child alleged to be in need of care due to behavior injurious to welfare. Such status cases are fundamentally different from delinquency cases under Sec. 211.031.1(3), in which the juvenile is alleged to have violated a state law or municipal ordinance. Missouri law treats “status offenses” differently than “delinquency offenses.” How the offense is charged determines what rights will be accorded the juvenile. Here, the court did not err in denying the motion to dismiss or suspend proceedings while Juvenile was incompetent because Juvenile was charged with a “status offense.”
* Miller v. Alabama, ___ U.S. ___, 2012 WL 236859 (U.S. 2012):

Holding: Mandatory life without parole for juveniles convicted of homicide offenses violates 8^th Amendment.
In re Pendleton, 2013 WL 5486170 (3d Cir. 2013):

Holding: Juvenile Petitioners made a prima facie showing that new constitutional rule banning juvenile LWOP was retroactive, so as to permit filing of second habeas petition.
Moore v. Biter, 93 Crim. L. Rep. 642, 2013 WL 4011011 (9th Cir. 8/7/13):

Holding: The Ninth Circuit ordered federal habeas relief based on Graham for Juvenile-Defendant who would not become eligible for parole until he was 144 years old, for non-homicide sentences totaling 254 years. Sentence of 254 years is materially indistinguishable from a life sentence without parole because Juvenile will not be eligible for parole within his lifetime, regardless of his remorse, reflection, or growth.
State v. Butler, 93 Crim. L. Rep. 313, 2013 WL 2353802 (Ariz. 5/30/13):

Holding: Even though State has an implied consent law for DWI, the voluntariness of Driver-Defendant’s consent must still be based upon the totality of the circumstances, not just invocation of the implied-consent law because Missouri v. McNeely (U.S. 2013) teaches that a blood draw in DWI is subject to 4^th Amendment constraints; here, Juvenile’s consent was not voluntary because his parents were not notified before the chemical test.
Mario W. v. Kaipio, 2012 WL 2401343 (Ariz. 2012):

Holding: Taking DNA samples from juveniles who had been charged but not yet adjudicated violated 4^th Amendment.
People v. Caballero, 2012 WL 3516135 (Cal. 2012):

Holding: Juvenile’s sentence of 110 years for non-homicide offense of attempted murder violated 8^th Amendment because it did not provide a realistic opportunity to be released prior to end of term, since it exceeded a person’s natural life.
Moore v. State, 94 Crim. L. Rep. 119, 2013 WL 5508540 (Ga. 10/7/13):

Holding: Even though under-age-18 Defendant agreed to a life without parole sentence to avoid the death penalty, he was entitled to sentencing relief because Roper v. Simmons, 543 U.S. 551 (2005), subsequently held that the 8^th Amendment bans the death penalty for all offenses committed before the 18^th birthday.
People v. Davis, 94 Crim. L. Rep. 769 (Ill. 3/20/14):

Holding: Miller’s ban on mandatory life without parole for juveniles is retroactive.
State v. I.T., 94 Crim. L. Rep. 747 (Ind. 3/12/14):

Holding: Indiana Juvenile statute which bars statements made to a mental health evaluator “in the evaluator’s official capacity” from being used “as evidence against the child” on whether they committed a delinquent act provides both use immunity and derivative use immunity for Juvenile’s statements.
In re Geltz, 94 Crim. L. Rep. 366 (Iowa 12/6/13):

Holding: A juvenile adjudication on a charge of sexual abuse does not qualify as a predicate “conviction” that can trigger civil commitment under Iowa’s SVP law.
State v. Ragland, 2013 WL 4309970 (Iowa 2013):

Holding: Even though Governor commuted Juvenile’s unconstitutional life without parole sentence to “life without parole for 60 years,” this was the functional equivalent of life without parole because Defendant would not be eligible for parole until age 78, and did not remove the 8^th Amendment prohibition on such sentences without individualized consideration of Defendant’s youth.
State v. Null and State v. Pearson, 93 Crim. L. Rep. 681, 2013 WL 4250939 and 2013 WL 4309189 (Iowa 8/16/13):

Holding: Iowa Constitution goes beyond Miller and Graham, and recognizes “effective” juvenile life without parole, such as multiple consecutive sentences that are so long in total that a juvenile would never be released; Iowa Supreme Court adopts “special procedures” judges must follow, including on-the-record findings of principles set forth in Roper, Graham and Miller, before imposing a lengthy sentence; a lengthy sentence “is appropriate, if at all, only in rare and uncommon cases.
State v. Shaffer, 90 Crim. L. Rep. 330 (La. 11/23/11):

Holding: State cannot enforce statutes that require life without parole for juveniles convicted of nonhomicide offenses because this violates Graham v. Florida, ___ U.S. ___ (U.S. 2010).
Diatchenko v. District Attorney and Com. v. Brown, 94 Crim. L. Rep. 418, 2013 WL 6726856 (Mass. 12/24/13):
Holding: (1) Miller v. Alabama (U.S. 2013) ban against mandatory LWOP for juvenile offenders is retroactive, and (2) all prisoners who received LWOP before turning 18 must be afforded opportunity to apply for parole.
Com. v. Walczak, 979 N.E.2d (Mass. 2012):

Holding: Where grand jury seeks to indict a juvenile for murder, court is required to give instruction on mitigating circumstances and defenses because an indictment for murder would result in juvenile being tried as an adult.
Jones v. State, 2013 WL 3756564 (Miss. 2013):

Holding: Miller’s prohibition against mandatory juvenile LWOP applies retroactively to cases on collateral review.
Benjamin v. State, 93 Crim. L. Rep. 357 (Miss. 6/6/13):

Holding: Police violated Juvenile’s rights under Miranda where Juvenile had invoked his right to counsel, but police then persuaded his mother to convince him to waive his rights and be interrogated.
Parker v. State, 93 Crim. L. Rep. 401 (Miss. 6/6/13):
Holding: Even though Juvenile’s sentence would allow him to be eligible for conditional release at age 65, this was tantamount to a life without parole sentence and violated Miller v. Alabama (U.S. 2012).
State v. Mantich, 94 Crim. L. Rep. 549 (Neb. 2/7/14):

Holding: Miller’s ban on automatic JLWOP sentences is retroactive.
State ex rel. K.O., 94 Crim. L. Rep. 709 (N.J. 2/24/14):

Holding: Where juvenile recidivist statute called for higher sentence when a juvenile has been adjudged delinquent on two separate occasions, this required two separate prior adjudications, and does not count the current offense; the rule of lenity should apply in interpreting the statute given the rehabilitative goal of the juvenile system.
In re D.J.B., 94 Crim. L Rep. 539, 2014 WL 260560 (N.J. 1/16/14):

Holding: New Jersey statute which allowed expungement of an “adult” conviction if Defendant has not been convicted of a prior or subsequent crime allowed for expungement, even though another statute provided that for purposes of expungement, any act which resulted in a juvenile being adjudged a delinquent shall be classified as if committed by an adult, and Defendant had a prior delinquency adjudication; the “adult” expungment statute was not affected by the juvenile statute, which applied only to expungement of juvenile convictions.
People v. Santiago, 2013 WL 5610128 (N.Y. 2013):
Holding: Even though Defendant was convicted of third-degree murder in Pennsylvania at age 15, this offense could not be counted under New York’s recidivist statute because under New York law, Defendant was a juvenile and could not have been prosecuted for a similar offense in New York.
State v. Arot, 2013 WL 5718189 (N.D. 2013):

Holding: Even though immigrant-Defendant’s birthday was listed as “1/1/1993” on official documents, where various witnesses testified that it was common for immigrants from Sudan to have their birthdate be arbitrarily assigned by the U.S. Gov’t upon their entry to the U.S. as the first day of the year of their birth, and Defendant’s father testified Defendant was born in Summer of 1993, State failed to prove that Defendant was 18 years old at time of offense, and thus, court did not have jurisdiction over Defendant.
In re C.P., 91 Crim. L. Rep. 62 (Ohio 4/3/12):

Holding: Imposing lifetime registration requirement on juvenile sex offenders violates 8^th Amendment.
Com. v. In re M.W., 90 Crim. L. Rep. 760 (Pa. 2/21/12):

Holding: Before entering an adjudication of delinquency under Pennsylvania’s Juvenile Act, a juvenile court must find not only that the juvenile committed the acts alleged in the delinquency petition but also that the juvenile is in need of treatment, supervision, or rehabilitation.
Bear Cloud v. State, 92 Crim. L. Rep. 575 (Wyo. 2/8/13):

Holding: Statute providing life imprisonment for juveniles “according to law” is constitutional only if it specifies the time when the juveniles will be eligible for parole.
In re Heard, 166 Cal. Rptr. 3d 824 (Cal. App. 2014):

Holding: Even though a statute provided for a mandatory youth parole hearing in the future, this did not cure Miller error in effective juvenile LWOP sentence of 80 years to life because the youth parole statute cannot allow the sentencing court to disregard the constitutional duty to consider juveniles and adults separately when sentencing juvenile-Defendant.
People v. Lewis, 94 Crim. L. Rep. 392 (Cal. App. 12/16/13):
Holding: Where a Juvenile has both homicide and non-homicide offenses, court must look at the sentence as a whole to determine how 8^th Amendment restrictions on LWOP for juveniles applies.
People v. Ramirez, 2013 WL 4850302 (Cal. App. 2013):

Holding: Sentences imposed on juveniles which were equivalent to LWOP for first and second degree murder violated 8^th Amendment; neither defendant was “the rare juvenile offender whose crime reflects irreparable corruption,” even though one of the shootings was for gang affiliation; there is no reason to make a decision at sentencing to imprison a juvenile for life, since this decision is a judgment that can be made at a later parole hearing.

People v. Moffett, 148 Cal. Rptr. 3d 47 (Cal. App. 2012):

Holding: Statutory presumption in favor of LWOP of 16 and 17 year olds convicted of murder violated Miller v. Alabama.
People v. Argeta, 2012 WL 6028241 (Cal. App. 2012):

Holding: Sentence of 100 years without parole for 75 years was functional equivalent of LWOP as applied to a juvenile and thus violated 8^th Amendment.
People v. P.A., 92 Crim. L. Rep. 244 (Cal. App. 11/15/12):

Holding: Probation condition that required Juvenile to keep his parents and probation officer informed of his “whereabouts, associates and activities” was unconstitutionally vague.
People v. J.I.A., 2011 WL 2206910 (Cal. App. 2011):

Holding: Even though 14-year old Defendant would be eligible for parole at age 70, his sentence of 50 years plus consecutive life sentences was a de facto life without parole sentence and violated 8^th Amendment ban on such sentences for nonhomicide juveniles.
People v. Rainer, 2013 WL 1490107 (Colo. App. 2013):

Holding: Aggregate sentence of 112 years for Juvenile-Defendant, under which he would not be eligible for parole until age 75, violated 8^th Amendment under Graham.
Peters v. State, 2013 WL 6083405 (Fla. App. 2013):

Holding: Application of Florida sentencing law after Graham v. Florida, which resulted in some Juveniles getting sentenced more harshly than others who had committed more serious crimes, violated the gross proportionality element of 8^th Amendment.
Shingler v. State, 90 Crim. L. Rep. 300 (Fla. App. 11/16/11):

Holding: Florida recidivist statute cannot apply to juveniles to create life without parole for nonhomicide offenses because this violates Graham v. Florida, ___ U.S. ___ (U.S. 2010), and the statute on its face does not authorize a 40 year term of years either – only life sentences; thus, such juveniles can only be sentences under non-enhanced robbery statute.
People v. Williams, 2012 WL 6028833 (Ill. App. 2012):

Holding: Miller decision banning automatic LWOP for juveniles is retroactive.
State v. Williams, 2012 WL 6176856 (La. App. 2012):

Holding: Juvenile offender who was sentenced to life was eligible for parole.
Ex parte Maxwell, 94 Crim. L. Rep. 745 (Tex. App. 3/12/14):

Holding: Miller v. Alabama’s ban on mandatory life without parole for juveniles is retroactive.

Malpractice
Goodman v. Wampler, 2013 WL 3548739 (Mo. App. S.D. July 15, 2013):

Holding: Even though defense counsel could have taken steps to have Plaintiff (former criminal defendant) released from prison sooner after trial court had improperly denied probation after shock incarceration without holding a hearing required by Sec. 559.115, Missouri public policy prohibits a legal malpractice claim against a defense counsel unless the Plaintiff has demonstrated actual innocence; to hold otherwise would allow plaintiffs to benefit financially from their criminal conduct.


Mental Disease or Defect – Competency – Chapter 552
State v. O’Neal, No. ED95274 (Mo. App. E.D. 11/29/11):

Where prosecutor objected to admission of Defendant’s medical records in front of the jury by saying they were“simply a way to avoid the defendant testifying,” this was a direct comment on Defendant’s failure to testify and a mistrial should have been granted.

Facts: Defendant was charged with attempted stealing. As part of his defense, he sought to introduce his medical records with a business records affidavit. The prosecutor objected to the records in front of the jury as “simply a way to avoid the defendant testifying.” Defense counsel objected as violating defendant’s rights not to testify and requested a mistrial, which the trial court overruled.

Holding: A direct reference to a defendant’s failure to testify violates the rights of freedom from self-incrimination and right not to testify under the 5^th and 14^th Amendments, and Art. I, Sec. 19 Mo. Const. A “direct reference” uses words such as “testify,” “accused” and “defendant.” Here, the prosecutor’s speaking objection in front of the jury was egregious because there had been a prior bench conference about the records at which the State had made an objection that had been overruled. The objection in front of the jury may have prejudiced the jury against Defendant for using the medical records rather than testifying himself. Reversed for new trial.
In the Interest of A.G.R. Juvenile Officer v. A.G.R., No. WD73007 (Mo. App. W.D. 12/27/11):

(1) Where Juvenile is charged with only a “status offense,” Juvenile does not need to be competent for case to proceed; (2) even though Juvenile had been released from court supervision, appeal was not moot where it raised important issues of first impression which might otherwise evade appellate review.

Facts: Juvenile was originally charged with a “delinquency offense” that would have resulted in a felony sex charge if Juvenile were an adult. However, the State filed an amended petition charging only “status offense” acts constituting behavior injurious to the welfare of the child. After a court-ordered competency evaluation, the court found Juvenile to be incompetent. Defense counsel filed a motion to dismiss or to suspend proceedings while Juvenile was incompetent. The court denied the motions. The status offense proceeded to disposition, and Juvenile was ordered placed in care and custody of his mother under supervision of the Children’s Division and court. Juvenile appealed.