Case Law Update: 2011-2014 Cumulative Edition

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. Ousley, 2013 WL 6822193 (Mo. banc 12/24/13):

(1) Even though trial court properly excluded certain defense witnesses in Defendant’s case-in-chief as a sanction for failing to timely disclose the witnesses, trial court abused its discretion in not allowing those witnesses to testify in surrebuttal after State presented rebuttal evidence, because surrebuttal witnesses need not be disclosed; and (2) even though Defendant’s defense was that he had consensual sex as a teenager with another teenager, trial court abused discretion in preventing Defendant from asking on voir dire whether jurors would consider the possibility or automatically rule out that two teenagers had consensual sex, because this did not seek a commitment but was necessary to uncover the bias of jurors who might punish all teenage sex, even though the law may allow it.

Facts: (1) Defendant was charged with forcible rape for rape of a teenage girl which happened on Dec. 26, 1999, when someone abducted Girl on a street and forced her to have sex. Defendant was arrested about 10 years later through a “cold hit” DNA match when samples found on Girl’s clothing matched Defendant. On the Friday before trial, Defendant moved to endorse three witnesses – his Mother, Grandmother and a medical records custodian – who would testify that in December 1999, Defendant was generally bed-ridden and could only walk around with difficulty, because of a shooting injury. Defendant’s defense was that, although he could not remember if he had sex with Girl, Defendant was very promiscuous and had sex with many girls, and if Defendant did have sex with Girl, it was consensual because he was not physically able to “force” anyone to have sex due to his injury. The trial court excluded Defendant’s Mother and Grandmother from his case-in-chief as a sanction for his late disclosure, but allowed the medical records. Defendant testified consistent with his defense. The State then called a treating Doctor in rebuttal to testify that Defendant would have been able to “get around” (wasn’t significantly disabled) in December 1999. Defendant then sought to call his Mother and Grandmother in surrebuttal, but the trial court continued to exclude them. (2) During voir dire by the Prosecutor, a juror asked if the Defendant and Girl were the same age, and the Prosecutor asked if juror would automatically say there could not be a rape if they were the same age. Later, defense counsel sought to ask jurors “whether they can consider the possibility or do they automatically rule out the possibility of two teenagers that had consensual sex.” The trial court would not allow this question on grounds that it sought a “commitment.”

Holding: (1) The purpose of surrebuttal is to give the defendant an opportunity to rebut the State’s rebuttal evidence. The disclosure obligations of Rules 25.03 and 25.05 do not apply to witnesses whose testimony will be in the nature of rebuttal or surrebuttal. These witnesses do not have to be endorsed. When offering Mother and Grandmother as surrebuttal, defense counsel explained that they would contradict the State’s rebuttal Doctor who testified that Defendant would have been able to get around (was not significantly disabled). Mother and Grandmother would have rebutted this crucial point of State’s rebuttal evidence, and corroborated Defendant’s testimony. Although there is no entitlement to surrebuttal as a matter of right, a trial court abuses discretion in denying surrebuttal where its decision is against the logic of the circumstances. Here, Defendant’s physical condition was the central issue in the case. Mother and Grandmother would have rebutted the State’s rebuttal Doctor with their personal observations that Defendant was unable to get around well. Their testimony was the best evidence Defendant could offer to corroborate his physical condition and his own testimony. Once the trial court admitted the State’s rebuttal evidence, its ability to exclude surrebuttal evidence was limited. Here, the trial court should have allowed Defendant to rebut the State’s evidence with Mother and Grandmother, who would have directly contradicted the rebuttal evidence and allowed Defendant to present a complete defense. Further, their testimony was not “cumulative” of Defendant’s testimony or the medical records because Mother and Grandmother’s testimony would have corroborated Defendant’s testimony and rehabilitated his credibility which was called into question by the rebuttal evidence. (2) In determining what questions to allow on voir dire, a court must strike a balance between competing mandates that “counsel may not try a case on voir dire” and that voir dire requires revelation of critical facts so that bias can be revealed. Here, the ages of Girl and Defendant as teenagers at the time of the offense was a critical fact that defense counsel should have been allowed to ask about. The State was allowed to essentially ask whether jurors would regard teen sex as consensual. Defendant sought to explore the opposite bias by asking if jurors would automatically think teen sex was not consensual. Some jurors may have believed that any sex between teens was such that a girl could never consent, but his is not the law. It was possible that Defendant and Girl had legal consensual sex. The question was designed to determine whether any jurors would find forcible compulsion as a foregone conclusion from the fact that both the alleged victim and Defendant were teenagers. Not every question that asks whether a juror would “automatically” decide something seeks a “commitment.” Here, the proposed question merely sought to ensure, in light of the critical facts of the case of the ages involved, that jurors could follow the law regarding sex among minors and would not impose legal consequences even if they believed the sex was consensual.
State v. Walker, 2014 WL 6476054 (Mo. App. E.D. Nov. 18, 2014):

(1) Even though Defendant was charged with first degree murder, trial court abused discretion in not allowing defense to voir dire on range of punishment for second-degree murder where parties knew in advance that second-degree murder would be submitted to jury; and (2) trial court erred in not allowing Defendant who claimed self-defense to testify to what Victim said before shooting because statements were not offered to prove truth of matter but to show Defendant’s subsequent conduct (but not reversible here because there was similar evidence presented).

Facts: (1) Defendant was charged with first degree murder arising out of a shooting. The defense was self-defense. The trial court sustained the State’s motion in limine to preclude the defense from asking anything during voir dire about the range of punishment for second-degree murder. The defense claimed it should be allowed to voir dire on the range of punishment for second- degree murder because the parties anticipated that such an instruction would be given, and the defense was entitled to know if jurors could follow the law and range of punishment on it. The State was allowed to voir dire on the range of punishment for first degree murder. During guilt phase deliberations, the jury sent a note asking what the range of punishment was for second-degree murder. The court did not specifically answer. The jury convicted of second-degree murder. During penalty deliberations, the jury sent a note saying they were deadlocked on punishment. After a hammer instruction was given, the jury sentenced to 30 years. (2) During the Defendant’s testimony, the trial court sustained a “hearsay” objection to the Defendant testifying about what Victim said before Defendant shot Victim.

Holding: (1) Although the defense did not make an offer of proof as to specific voir dire questions which the defense was precluded from asking, the defense did state in response to the motion in limine that they expected the law and facts to support a second-degree murder instruction, and that they wanted to voir dire on the range of punishment for second-degree murder to see if the jurors could follow the law. Thus, the issue is preserved for appeal. The Defendant’s right to an impartial jury is meaningless without the opportunity to show bias. As long as the Defendant’s question is in proper form, the trial court should allow the defense to determine whether the jurors can consider the entire range of punishment for a lesser-included form of homicide. The trial court precluded this because Defendant was charged with first degree murder, but this was unreasonable. The trial court allowed the State to voir dire extensively on the range of punishment for first degree murder. Defendant was prejudiced here because by being denied any opportunity to voir dire on the range of punishment for second-degree murder, he could not determine if jurors were able to follow the full range of punishment. The jury sent a note during guilt phase deliberations about the range of punishment. During penalty phase, the jury sent a note saying they were deadlocked on punishment. After a hammer instruction, the jury sentenced to the maximum, 30 years. The State argues that since the punishment did not exceed the maximum range there is no prejudice, but under that logic, a defendant could never show prejudice unless the punishment was beyond the authorized range, which would be plain error anyway. The State also argues there is no prejudice because the judge could reduce the jury’s recommended sentence. “While it is true that the judge might impose a lesser sentence, we do not conclude that trial judges are unaffected by the jury’s recommendation.” Further, the fact that a judge might impose a lesser sentence should not be confused with the jury’s ability to consider the full range of punishment in the first instance. Case remanded for new penalty phase trial. (2) The trial court erred in sustaining the State’s “hearsay” objection during Defendant’s testimony about what Victim said before Defendant shot him. This was not “hearsay” because not offered for the truth of the matter asserted, i.e., not offered to show the truth of the Victim’s statements. Instead, it was offered to explain Defendant’s conduct after the statements were made. Although this error facially shows manifest injustice, the error is not reversible because the jury heard similar evidence that would allow it to conclude Defendant was in fear of his life when he shot Victim.
In the Interest of: T.P.B., 2014 WL 4411669 (Mo. App. E.D. Sept. 9, 2014) & In the Interest of J.L.T., 2014 WL 4411679 (Mo. App. E.D. Sept. 9, 2014):

Where Defendant-Juvenile was charged with second degree assault for “knowingly causing physical injury to another person by means of a dangerous instrument,” Sec. 565.060.1(2), but trial court found Defendant guilty of second degree assault for “recklessly causing serious physical injury to another person,” Sec. 565.060.1(3), this violated Defendant’s rights to notice of the charged offense and to prepare a defense, since recklessly causing serious physical injury is not a lesser-included offense of knowingly causing physical injury by means of a dangerous instrument.

Facts: Defendant-Juveniles were charged with second degree assault for knowingly causing physical injury by means of a dangerous instrument, Sec. 565.060.1(2). The trial court found Defendants guilty of recklessly causing serious physical injury to another person, Sec. 565.060.1(3).

Holding: An uncharged offense is a “nested” lesser-included offense if it is impossible to commit the charged offense without necessarily committing the uncharged offense. To commit the uncharged offense, Defendants must have committed “serious physical injury.” But to commit the charged offense, Defendants need only have caused an ordinary “physical injury.” Because it is possible to commit an ordinary physical injury without causing serious physical injury, it is possible for Defendants to have committed the charged offense without committing the uncharged one. Thus, Sec. 565.060.1(3) is not a lesser-included offense of Sec. 565.060.1(2). The trial court violated due process by convicting of an uncharged offense. Defendants discharged.
State v. Spencer, 2014 WL 4085162 (Mo. App. E.D. Aug. 19, 2014):

Where trial court took motion to suppress “with the case” in a bench trial and at end of trial granted the motion and declared the proceedings to be concluded, the State’s interlocutory appeal must be dismissed because it violates Double Jeopardy.

Facts: Defendant, charged with drug possession, filed a motion to suppress, and waived a jury trial. The trial court held a bench trial, during which the motion was taken “with the case.” The State and defense made opening statements and the State presented police witnesses. Defendant moved for judgment of acquittal at the close of all evidence, and argued his motion to suppress. The trial court then stated, “Very well. I’m going to grant the motion to suppress the evidence, and that will conclude the matter….Court is in recess.” The State filed an interlocutory appeal regarding the motion to suppress.

Holding: Sec. 547.200.2 allows the State an interlocutory appeal regarding a motion to suppress but not if “such an appeal would result in double jeopardy for the defendant.” Here, the State presented its entire case. Although the trial court did not enter a not guilty verdict or enter an order labeled a judgment, the appellate court looks at the practical effect of the actions. Here, the trial court did not continue the trial pending an interlocutory appeal. The trial was “concluded.” The practical effect is the trial court acquitted Defendant after the suppression of evidence. Double jeopardy applies as the State presented evidence, thus giving due deference to double jeopardy in bench trials. “While taking motions to suppress evidence with a bench trial may serve judicial economy, it is not good practice.”
State v. Aston, 2014 WL 2853548 (Mo. App. E.D. 6/24/14):

Even though trial court conducted a “trial by police report” over the State’s objection and found Defendant not guilty, the trial court denied the State the right to present evidence to prove its case and double jeopardy does not preclude retrial since this proceeding was not a “trial.”

Facts: Defendant was charged with stealing over $500. Defendant waived a jury trial. The trial court then asked for the police reports, and voiced concern about the value of the property being less than $500. The State claimed it would show through witnesses that the value was more than $500. The trial court announced it was going to try the case on the police reports. The State objected. The trial court then found Defendant not guilty. The State appealed.

Holding: Rule 27.02(g) and Sec. 546.070(1) state that the State shall offer evidence at trial. Because the State has the burden of proof, it should not be unduly limited in how it presents evidence. Here, the trial court foreclosed the State from presenting witnesses as to value. The trial court, in effect, allowed Defendant to unilaterally stipulate that the police reports were the only evidence against him. No cases allow a Defendant to unilaterally, over objection, submit a case on the police reports. Having heard no evidence, the trial court never conducted an actual “trial,” at which the State could present evidence. The court did not provide the State with a full and fair opportunity to vindicate society’s interest. Thus, Defendant’s right to be free from double jeopardy would not be violated by a trial. Not guilty judgment reversed.
State v. Williams, No. ED99399 (Mo. App. E.D. 6/28/13):

Trial court does not have authority to dismiss a criminal case with prejudice in the absence of a speedy trial violation.

Facts: In early 2012, Defendant was charged with a drug offense. Later in 2012, he entered in a plea bargain with the State. However, on the day of the scheduled plea, the State failed to appear. Defense counsel moved to dismiss for failure to prosecute. The trial court dismissed the charge with prejudice. The State appealed.

Holding: Only the prosecutor has the authority to voluntarily dismiss or nolle prosequi a felony charge, because the prosecutor has more knowledge about all the circumstances of the cases. While a trial court has authority to dismiss a case without prejudice for failure to prosecute in certain circumstances, it has no inherent authority do so with prejudice absent a speedy trial violation, and no such violation was alleged here.
State v. Pierce, 2013 WL 682739 (Mo. App. E.D. Feb. 26, 2013):

Even though Article I, Sec. 19, of the Missouri Constitution provides that a case should be retried within the same or next term of court following a mistrial, this privilege is waived if not timely asserted, and Defendant waived the privilege by not objecting to multiple continuances after his mistrial. This was a case of first impression.

Facts: In 2010, Defendant’s first trial ended in a hung jury. Subsequently, several continuances were granted due to scheduling conflicts and other reasons. The case was tried about one year later. On the day of trial, Defendant filed a motion to dismiss for violation of Article I, Sec. 19, Mo. Const., which was overruled. After conviction, Defendant appealed.

Holding: Article I, Sec. 19, states that “if the jury fail[s] to render a verdict the court may … discharge the jury and commit or bail the prisoner for trial at the same or next term of court.” Since no local rule governs the terms of court of the City of St. Louis, this is determined by Sec. 478.205, which provides that terms of court begin in February, May, August and November of each year. Here, after the mistrial, Defendant’s case was rescheduled during the same term of court, but ultimately continued approximately seven times for multiple reasons. Defendant never objected to the continuances or demanded a speedy trial. Like other speedy trial rights, a Defendant waives his privilege under Article I, Sec. 19, if he does not assert a timely demand for a trial. Because Defendant did not affirmatively demand an earlier trial date, he waived his privilege.
State v. Ousley, No. ED97047 (Mo. App. E.D. 11/20/12):

(1) Even though the trial court did not abuse its discretion in excluding Defendant’s mother and grandmother as witnesses in Defendant’s case-in-chief as a sanction for late disclosure of the witnesses, where the State presented rebuttal evidence, Defendant was entitled to call the mother and grandmother as surrebuttal witnesses because surrebuttal witnesses need not be disclosed; and (2) where Defendant was charged with forcible rape, Defendant should have been permitted to voir dire potential jurors on whether they could consider that teenagers would have consensual sex because this was a critical fact with a substantial potential for disqualifying bias.

Facts: Defendant, who was 19, was charged with forcible rape of a 14 year old. The trial court set a pretrial deadline for disclosure of witnesses, which Defendant failed to meet. As a sanction, the trial court excluded as witnesses Defendant’s mother and grandmother, who were going to testify that Defendant’s physical condition made it impossible for him to commit a forcible rape. After Defendant presented other evidence of this at trial, the State called a doctor in rebuttal. Defendant then sought to call his mother and grandmother in surrebuttal, but the trial court would not permit this because of its prior sanction.

Holding: (1) If the State introduces a new matter during rebuttal, the Defendant is entitled to offer surrebuttal. Because the nature of rebuttal requires a party to depend on the evidence presented in determining whether to offer rebuttal, rebuttal witnesses need not be disclosed or endorsed; this applies to surrebuttal evidence, too. Regardless of any initial discovery sanction, when Defendant offered his mother and grandmother as surrebuttal witnesses, it became a new inquiry for the trial court to determine whether Defendant was entitled to call them in light of the State’s rebuttal evidence; this determination was to be made anew without reference to the rules of discovery or the trial court’s earlier sanction. The trial court abused discretion in excluding the surrebuttal witnesses (but not prejudicial under facts of case). (2) During voir dire Defendant sought to ask potential jurors whether they could consider that two teenagers had consensual sex. The State objected that this was seeking a commitment, and the trial court sustained the objection. However, a party is entitled to ask about critical facts that have a substantial potential for disqualifying bias. Here, Defendant could not have been charged with statutory rape because it is defined as sex with a person who is less than 14, or a person who is at least 21 having sex with a person who is less than 17. Defendant’s question sought to inquire as to whether jurors would impose consequences for such an act, even if it was not illegal. This did not require a commitment from jurors to acquit Defendant upon hearing that two teenagers had sex, but rather sought to ensure that jurors could follow the law as it relates to sex among minors if they believed the sex was consensual. The trial court abused discretion in prohibiting this question (but was not prejudicial in context of case).
State v. Moore, No. ED95952 (Mo. App. E.D. 2/21/12):

Where the person who served a subpoena was not a sheriff’s deputy and failed to make an affidavit of service as required by Rule 26.02, the trial court did not err in failing to issue a writ of body attachment.