Case Law Update: 2011-2014 Cumulative Edition

Holding: Remedy in habeas proceeding for misconduct by crime lab technician at trial was to shift the burden of falsity to the State, but the burden of persuasion with respect to materiality remained with Petitioner.

Public Trial
State v. Davis, 434 S.W.3d 549 (Mo. App. S.D. 2014):

Defendant’s 6^th Amendment right to public trial was violated where family members were excluded during voir dire, even though there were empty seats in the jury box; defense made timely record that family members were wanting to attend voir dire but were being excluded, and that there were empty chairs in the courtroom’s jury box.

Facts: Prior to voir dire, defense counsel informed the court that Defendant’s family and possibly the press wanted to attend voir dire. The trial court denied the request on grounds that there were too many venirepersons. The court confirmed that there were 14 empty seats in the jury box but sated that they would “remain empty during voir dire selection.” During voir dire, defense counsel continued to notify the court that Defendant’s family were asking to come in, but were being told that they could not. The court granted a continuing objection.

Holding: The 6^th Amendment guarantees a public trial. Trial proceedings can only be closed if the proponent for closure advances an overriding interest; closure can be no broader than to protect that interest; the court considered reasonable alternatives to closure; and the court made adequate findings to support closure. The trial court considered none of these factors here. Here, defense counsel made a proper record to support reversal by timely showing that persons were actually being excluded from the courtroom, even though there were seats available for them. New trial ordered.
State v. Salazar, 2013 WL 5477215 (Mo. App. S.D. Oct. 2, 2013):

Holding: Trial court erred in effectively closing voir dire to public because there were not enough seats to accommodate the venire panels and the public, but this error was not prejudicial in absence of a showing by the defense that some member of the public actually attempted to attend voir dire but was prevented from doing so by the closure; defense failed to make any offer of proof that any member of the public was actually excluded; the ruling on prejudice was one of first impression in Missouri.
U.S. v. Gupta, 699 F.3d 682 (2d Cir. 2012):
Holding: Exclusion of Defendant’s brother and girlfriend from voir dire violated right to a public trial.
U.S. v. Cardenas-Guillen (Hearst Newspapers LLC), 89 Crim. L. Rep. 252, 2011 WL 1844189 (5^th Cir. 5/17/11):

Holding: Press and public have 1^st Amendment right to access criminal sentencing hearing.
U.S. v. Thompson, 93 Crim. L. Rep. 151 (8^th Cir. 4/23/13):

Holding: 6^th Amendment right to public trial applies at sentencing, but court did not err in excluding family of Defendant where a jail-house snitch witness was going to testify about another crime the Defendant had admitted to him.
U.S. v. Rivera, 2012 WL 2362531 (9^th Cir. 2012):

Holding: Defendant’s 6^th Amendment right to public trial was violated where his family was excluded from sentencing.
State v. Cox, 93 Crim. L. Rep. 511, 2013 WL 3122599 (Kan. 6/21/13):

Holding: Defendant’s right to a public trial was violated where court closed the courtroom while photos of the alleged victim’s genitals were displayed, without first balancing the compelling interests or considering less drastic alternatives.
Com. v. Maldonado, 94 Crim. L. Rep. 437 (Mass. 1/8/14):

Holding: Trial judge cannot require members of the public entering the courtroom to show identification, absent on-the-record findings that justify such a security measure.
Com. v. Barnes, 2012 WL 798754 (Mass. 2012):

Holding: Commonwealth did not demonstrate that psychological or physical harm to the minor victim could result from live internet streaming of audio and video recordings of criminal dangerous hearing.
State v. Turrietta, 2013 WL 3242337 (N.M. 2013):

Holding: When a trial court is deciding whether closure of a courtroom in appropriate, it should apply the more stringent “overriding interest” standard, not the “substantial reason” standard.
People v. Floyd, 2013 WL 1759557 (N.Y. 2013):

Holding: 6^th Amendment right to public trial violated where court excluded Defendant’s mother from courtroom during jury selection.
People v. Martin, 2011 WL 1752223 (N.Y. 2011):

Holding: Even though trial court was concerned that there may not be enough seats for venirepersons and concerned that Defendant’s father could intimidate jurors, Defendant’s right to public trial was violated when court closed courtroom during voir dire and ejected the father.
State v. Wise, State v. Paumier and In re Personal Restraint Petition of Morris, 92 Crim. L. Rep. 236 (Wash. 11/21/12):
Holding: Judge cannot conduct non-public voir dire without first articulating a compelling reason to override Defendant’s 6^th Amendment right to a public trial.
Com. v. Lavoie, 2011 WL 4507161 (Mass. App. 2011):

Holding: Courtroom was closed to the public in the constitutional sense where defendant’s family was required to leave during jury selection, even though (1) a large portion of jury selection took place at sidebar and could not have been heard by spectators; and (2) there was no express judicial order.
Com. v. Downey, 2010 WL 4371391 (Mass. App. 2010):

Holding: Closing courtroom during voir dire when jurors were questioned about their criminal history violated 6^th Amendment right to public trial.
People v. Moise, 2013 WL 3984581 (N.Y. Ap. 2013):

Holding: Defendant’s right to public trial was violated where court excluded defense counsel’s co-counsel from courtroom while undercover officer testified.
Lilly v. State, 91 Crim. L. Rep. 130, 2012 WL 1314088 (Tex. Crim. App. 4/18/12):

Holding: Defendant’s right to a public trial was violated where the trial was held at a prison, which as a practical matter was closed, because it severely limited public entry.
State v. Rainey, 2014 WL 700164 (Wash. App. 2014):

Holding: Even though attorney told court that Witness would assert 5^th Amendment right against self-incrimination if called to testify, Defendant’s right to a public trial was violated where court did not require Witness to be sworn and assert her 5^th Amendment right in open court.
State v. Slert, 282 P.3d 101 (Wash. App. 2012):
Holding: Court violated right to public trial by conducting a portion of voir dire in chambers.

Rule 24.035/29.15 & Habeas Postconviction Procedural Issues
State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014):

Holding: Rule 91 habeas corpus is proper means to assert claim that Defendant is incompetent to be executed. However, Defendant failed to meet threshold showing of incompetence required by Panetti and Ford.

Dissenting opinion: Dissenting opinion questions constitutionality of competency to be executed statute, Sec. 552.060, because it has a “fundamental structural flaw” in that it places the decision to invoke the statute in the executive branch; Ford criticized Florida’s statutory scheme for consolidating whether a defendant is competent in the governor and administrative officials in the executive branch.
McIntosh v. State, 413 S.W.3d 320 (Mo. banc 2013):

A Rule 29.07 inquiry to counsel about their effectiveness will not preclude an evidentiary hearing in a subsequent postconviction case if Movant in the postconviction motion raises a question of fact as to the accuracy of defense counsel’s claims of reasonable trial strategy, and if the other requirements for an evidentiary hearing are met.

Facts: Following trial and sentencing, the trial court asked counsel at a Rule 29.07 hearing why counsel failed to call a witness. Counsel answered that he interviewed the witness and the witness did not provide helpful information for the defense. Subsequently, Movant filed a Rule 29.15 motion, alleging counsel was ineffective in failing to call the witness. The motion court denied the claim without a hearing, finding that the claim was refuted by counsel’s statement at the 29.07 hearing.

Holding: Rule 29.07 proceedings are only intended to be a “preliminary hearing” on the effectiveness of counsel to determine if there is “probable cause” to believe counsel was ineffective. Rule 29.07 proceedings are not intended to replace an evidentiary hearing under Rule 29.15. However, to receive a hearing, a Movant must plead facts to rebut the statements counsel made at the 29.07 hearing. Here, for example, Movant did not claim in his amended motion that counsel had failed to discuss the witness with Movant. Movant has not asserted any factual allegations in his amended motion to contradict or rebut counsel’s stated reasons for choosing not to call the witness. Movant has not put forth any facts demonstrating counsel was untruthful, mistaken or unreasonable when he stated on the record that the witness would not be helpful to the defense. “[I]f in his or her postconviction motion the movant raises a question of fact as to the accuracy of defense counsel’s claims of reasonable trial strategy, and if the other requirements for an evidentiary hearing are met, the movant may be entitled to an evidentiary hearing on the issue.” However, that did not happen here.
Eastburn v. State, No. SC92927 (Mo. banc 6/25/13):

While Rule 75.01 allows a motion court to reopen a Rule 24.035 or 29.15 case for 30 days after a judgment (Findings) is entered because the judgment is not yet final, a motion court cannot reopen such cases later unless there has been an “abandonment” by counsel, which means only failure to file or timely file an amended motion or actively preventing Movant from filing an original Form 40; the term “motion to reopen” should no longer be used, and attorneys should file a “motion for postconviction relief due to abandonment.”

Facts: Movant had a Rule 29.15 case with an amended motion in the 1990’s. In 2010, she filed a “motion to reopen” her 29.15 case on various grounds, including that her sentence to life without parole was unconstitutional since she was a juvenile at the time of her offense.

Holding: Under Rule 75.01 a motion court has authority to reopen a 29.15 case for 30 days after a judgment (Findings) is entered because its judgment is not yet final. A late-filing may be accepted where “abandonment” occurs, but abandonment is narrow and limited to where an attorney fails to file or timely file an amended motion, or interferes with filing an original Form 40. Here, while the parties refer to this case as a “motion to reopen” the 29.15 case, such nomenclature does not exist in our rules and should not be used henceforth. Here, Movant’s claim is really a motion claiming ineffective assistance of postconviction counsel because she wishes postconviction counsel would have raised additional issues. This is prohibited by Rule 29.15. “[F]iling a motion to reopen does not exist in our rules. Henceforth, attorneys should file a motion for postconviction relief due to abandonment.”
Swallow v. State, 2013 WL 1974339 (Mo. banc May 14, 2013):

(1) Where Movant had a single judgment which sentenced him to DOC on one count but suspended execution of sentence on the other count, his Rule 24.035 motion on the other count was due within 180 days of his original delivery to the DOC on the first count; and (2) claim of ineffective assistance of counsel for representation at a probation violation hearing is not cognizable under Rule 24.035 but can be raised in habeas corpus.

Facts: In 2006, Defendant pleaded guilty to assault and ACA in a single case. He was sentenced to three years for the ACA and 20 years for the assault. The ACA sentence was executed, but he received an SES on the assault. In 2008, Defendant was released from DOC on the ACA. In 2010, his probation was revoked on the assault. Movant subsequently filed a Rule 24.035 motion within 180 days of his delivery to the DOC on the assault.

Holding: (1) Movant’s Rule 24.035 motion was not timely because it was not filed within 180 days of his original delivery to the DOC on the ACA count, even though his assault count had an SES. Here, there was a single judgment for both cases. While Rule 24.035 does not specifically address multiple deliveries for the same judgment, the purpose of the rule is prompt resolution of claims in a unitary proceeding. If Movant were to be able to bring multiple postconviction cases from the same judgment, this would introduce complex issues relating to claim preclusion that a prompt resolution will prevent. (2) Movant also attempts to challenge his attorney’s effectiveness at the probation revocation hearing. But such claims are not cognizable in a Rule 24.035 action. The remedy is habeas corpus.
State ex rel. Woodworth v. Denney, 2013 WL 85427 (Mo. banc Jan. 8, 2013):

Holding: (1) In habeas action, State’s failure to disclose exculpatory evidence before trial constitutes “cause” to overcome a procedural default for failure to raise Brady violations on appeal or in Rule 29.15 action; (2) State’s failure to disclose letters between trial judge, attorney general and murder victim’s husband which would have impeached husband’s testimony and supported defense theory at trial violated Brady and warranted habeas relief, even though habeas petitioner did not open the entire defense file to the State in the habeas case or call all prior defense counsel to testify in the habeas proceeding; (3) State’s failure to disclose that murder victim’s daughter had reported to police that another suspect in the murder had violated a protection order against her violated Brady and warranted habeas relief because such evidence would have impeached daughter’s testimony and supported the defense theory that this other suspect committed the murder; even though the prosecutor may not have had knowledge of this protection-order evidence, the State was still responsible under Brady for the police’s failure to disclose it, and even though the defense knew before trial of some matters about the protection order because daughter had mentioned it in her pretrial deposition, daughter’s deposition testimony on this was misleading and incomplete because she did not testify that suspect had made any threats or that she had reported them to police; (4) in assessing Brady prejudice in habeas proceeding, court can consider newly discovered evidence of innocence in addition to the Brady violations and the matters presented at trial to determine if the trial verdict is no longer “worthy of confidence.”
Price v. State, No. SD31725 (Mo. banc 12/28/12):

Where Movant’s direct appeal counsel had been retained to also file a Rule 29.15 motion for Movant but failed to do so, Movant was abandoned and the motion court did not clearly err in granting a motion to reopen the PCR and allow a late filing.

Facts: Following trial, Movant retained a new Attorney to represent him at sentencing, on direct appeal and in a Rule 29.15 case. At sentencing, the trial court explained the time limits for filing a Rule 29.15 motion, and Movant said he understood them. Movant lost his direct appeal. Attorney then failed to file a Rule 29.15 motion for Movant. Attorney had repeatedly assured Movant’s mother on behalf of Movant that he (Attorney) would file a 29.15 motion. Movant then retained different counsel who filed a habeas corpus case on behalf of Movant, but the Southern District quashed relief in State ex rel. Nixon v. Sheffield, 272 S.W.3d 277 (Mo. App. S.D. 2008), upon grounds that habeas relief can only be granted due to an objective factor external to the defense or actual innocence. Movant then filed a motion to reopen the 29.15 proceedings on grounds of abandonment by original Attorney, who had promised to file a 29.15 motion. The motion court granted relief under McFadden v. State, 256 S.W.3d 103 (Mo. banc 2008). The State appealed.

Holding: The motion court found that Attorney actively interfered with Movant’s ability to file a pro se Rule 29.15 motion by stating that he would timely prepare and file the motion on Movant’s behalf, but failed to do so. The State argues that McFadden is distinguishable, but none of the cited cases by the State deal with a retained counsel who assumed responsibility to timely file a Rule 29.15 motion for an imprisoned client and then failed to do so. Movant is in the same position as McFadden, whose counsel undertook to perform a necessary filing and then failed to so do. The State also argues that Movant’s motion to reopen was not filed within a reasonable time after the abandonment, but was filed four years later. There is no express time limit for when a motion to reopen must be filed. The State argues that the court should analogize to the one-year time limit of Rule 30.03 for notices of appeal for policy reasons, but because the State did not raise this claim in the motion court, the appellate court will not consider it.
Dorris v. State, No. SC91652 (Mo. banc 1/17/12):

Where Movant files a 24.035 or 29.15 motion out of time (and an exception to the time limits does not apply), this is a complete waiver of postconviction relief, even if the State does not contest the time limits; the time limits cannot be waived in the motion court or on appeal.

Facts: Various 24.035 and 29.15 movants filed their pro se motions late.

Holding: Rules 24.035(b) and 29.15(b) provide that failure to file a motion within the time provided by the rules shall be a “complete waiver” of the right to proceed under the Rules and a “complete waiver” of any claim that could be raised in a motion filed under the Rules. A movant must allege facts establishing that his motion is timely filed in addition to proving his substantive claims. A movant can show his motion was timely filed by (1) having a file-stamp on his pro se motion which shows it was timely filed; (2) alleging and proving by a preponderance of the evidence in his motion that he falls within a recognized exception to the time limits; or (3) alleging and proving by a preponderance of the evidence that the court misfiled his motion. It is the court’s duty to enforce the time limits even if the State does not raise them. The State cannot waive a movant’s noncompliance with the time limits. The time limits of Rules 24.035 and 29.15 are not the same as statutes of limitations (which can be waived) because the postconvction rules are concerned with upholding the “finality” of judgments, not just ensuring speedy filing of claims.
Cooper v. State, No. SC91695 (Mo. banc 12/6/11):

Where Movant waived his postconviction rights as part of his plea bargain and his later postconviction motion failed to allege or prove the presence of an actual conflict of interest, i.e., “a claim of ineffective assistance of counsel that pertains to the knowing, voluntary, and intelligent waiver of postconviction rights,” then the postconviction motion should be dismissed.

Facts: Movant pleaded guilty in a plea bargain which also required that he waive his rights to later pursue postconviction relief. At the plea hearing, the court inquired whether Movant understood this, whether he had any complaints about his attorney, and whether he understood that he was waiving his posconviction rights. Later, Movant filed a Rule 24.035 motion.

Holding: Movant argues that his waiver of postconviction rights was unknowing, unintelligent and involuntary because of defense counsel’s potential conflict of interest in advising him to waive his postconviction rights. However, a movant can waive his postconviction rights in exchange for a plea bargain if the record clearly demonstrates that the movant was properly informed of his rights and that the waiver was knowing, voluntary and intelligent. A movant’s plea agreement to waive postconviction rights does not waive the right to argue that the decision to enter the plea agreement was not knowing, voluntary or intelligent; this may be done through a state habeas petition. Additionally, a movant’s plea agreement to waive postconviction rights does not waive the right to argue that the decision to enter the plea agreement was not knowing and voluntary because it was the result of ineffective assistance of counsel. There must be a factual basis for the claim of ineffective assistance in order to survive a wavier of postconviction relief. A court must determine whether there is any basis for a claim of ineffective assistance and whether the ineffectiveness claims pertain to the validity of the plea. Movant relies on Advisory Committee Opinion 126 (May 19, 2009) for his claim that the waiver is invalid here. Opinion 126 held that it was not permissible for defense counsel to advise a defendant regarding waiver of postconviction rights because this would violate Rule 4-1.7(a)(2) because there is a significant risk that the representation of the client would be materially limited by the personal interest of defense counsel. In addition, Opinion 126 held that it was “inconsistent” with the prosecutor’s duties as minister of justice to seek a waiver of postconviction rights based on ineffective assistance of counsel. It is important to note that the instant plea agreement predates Opinion 126 so the attorneys at issued did not violate the formal opinion. Additionally, no attorneys have sought to have the Supreme Court review Opinion 126, even though there is a procedure for an aggrieved attorney to do so. A violation of a professional rule does not equate to a constitutional violation, however. Here, Movant “has neither alleged nor proven the presence of an actual conflict of interest – that is to say, a claim of ineffective assistance of counsel that pertains to the knowing, voluntary, and intelligent waiver of the postconviction rights.” Therefore, the wavier is valid, and the case should be dismissed.

Editor’s Note: Footnote 1 notes that courts will recognize an exception to waiver if it can be determined from the indictment, information and transcript that the court lacked power to enter the plea. Also, footnote 1 states motion courts must still enter Findings in postconviction cases, even if there was a purported waiver of postconviction rights. “In the future, if a movant alleges that a waiver of postconviction relief was not given knowingly, voluntarily or intelligently because an actual conflict of interest adversely affected defense counsel’s performance,” the court must still enter Findings.
Krupp v. State, No. SC91613 (Mo. banc 12/6/11):

Where Movant had a jury trial but prior to sentencing entered into an agreement with the State for a favorable sentence in exchange for waiving his appeal and postconviction rights and his later postconviction motion failed to allege an actual conflict of interest by defense counsel, the postconviction case should be dismissed.