Case Law Update: 2011-2014 Cumulative Edition

Holding: Hearsay is not admissible at a suppression hearing, and defense counsel was ineffective in stipulating to it.
Corona v. State, 89 Crim. L. Rep. 477 (Fla. 6/9/11):

Holding: A defense discovery deposition of a prosecution witness at which Defendant was not present does not provide an opportunity for cross-examination that is sufficient to satisfy the Confrontation Clause.
Hatley v. State, 90 Crim. L. Rep. 649 (Ga. 2/6/12):

Holding: The state child hearsay statute requires pretrial notice of the state’s intent to present a child victim’s hearsay statements.
State v. Torres, 90 Crim. L. Rep. 649 (Ill. 2/1/12):

Holding: A defendant’s opportunity to cross-examine a witness at a preliminary hearing was not sufficient to justify the admission at trial of the preliminary hearing testimony after the witness became unavailable.
State v. Bennington, 90 Crim. L. Rep. 191 (Kan. 10/28/11):

Holding: Where woman was raped and then interviewed at hospital by a nurse and police officer, her statements were “testimonial;” there was little medical purpose in the interview and the nurse conducted it mostly for forensic purposes, and the presence of a police officer further indicates the statements were intended to be used for court purposes and “testimonial.”
Jones v. Com., 2011 WL 6543010 (Ky. 2011):

Holding: Restitution based solely on unsworn statements by victim’s mother, who defendant was not given the opportunity to cross-examine, violated defendant’s due process rights.
State v. Larson, 2013 WL 1247690 (Me. 2013):

Holding: Admission of out-of-court statement made by a declarant, who was unavailable for trial due to his assertion of privilege against self-incrimination, which incriminated both declarant and Defendant violated Defendant’s confrontation rights.
Duylz v. State, 91 Crim. L. Rep. 73 (Md. 3/21/12):

Holding: Where a judge restricted Defendant’s right to cross-examine a witness at a pretrial motion to suppress hearing, this precluded the State from later using the testimony at trial when the witness did not appear.
Derr v. State, 2011 WL 4483937 (Md. 2011):

Holding: Though an expert may base his opinion on inadmissible evidence, if that evidence is comprised of the conclusions of other analysts then it is prohibited by the Confrontation Clause.
Derr v. State, 90 Crim. L. Rep. 63 (Md. 9/29/11):

Holding: Admission of DNA testimony by expert other than one who conducted the test violated Defendant’s 6^th Amendment confrontation rights.
Com. v. Montoya, 92 Crim. L. Rep. 763, 984 N.E.2d 793 (Mass. 2013):

Holding: Confrontation Clause violation where Defendant was not able to cross-examine lab analyst about drugs was not rendered harmless by jurors’ own potential to view drugs and determine that their weight exceeded a certain required amount.
Com. v. Barbosa, 2012 WL 255786 (Mass. 2012):

Holding: Confrontation Clause violation in admitting ballistics certificate of examination without testimony of examiner was not harmless.
In re Santos, 90 Crim. L. Rep. 791 (Mass. 2/22/12):

Holding: A Massachusetts law that provides for the admission of state experts’ reports in proceedings to re-evaluate an individual’s commitment as a sexually dangerous person must be construed to allow admission of reports from experts hired by the committed person as well.
Com v. Parenteau, 2011 WL 2239003 (Mass. 2011):

Holding: A certificate of mailing from the Dept. of Motor Vehicles verifying that a notice of driver’s license suspension had been sent to Defendant was “testimonial” and its admission violated the Confrontation Clause in prosecution for operating vehicle after license had been revoked.
People v. Burns, 832 N.W.2d 738 (Mich. 2013):

Holding: Even though Defendant told child sex victim “not to tell” anyone and she would “get in trouble” if she did, this did not invoke the forfeiture-by-wrongdoing exception to hearsay so as to permit the statement to be admitted without the victim testifying, since the alleged threat was made before any report of abuse was made, Defendant had no contact with victim once abuse was reported, and there was no evidence Defendant attempted to influence victim apart from the statement at issue.
People v. Burns, 93 Crim. L. Rep. 452 (Mich. 6/18/13):

Holding: Even though Defendant charged with child molestation told child-victim not to tell anyone, this was insufficient to serve as a basis for applying the “forfeiture by wrongdoing” doctrine regarding the right to confront witnesses.
Goforth v. State, 89 Crim. L. Rep. 847 (Miss. 9/15/11):

Holding: (1) Where Witness gave a statement in child sex case and then suffered a brain injury that rendered Witness unable to remember events, the total lack of memory violated Defendant’s confrontation rights because he had no opportunity to cross-examine Witness’ past recollection recorded statement; (2) where all counts were identically worded and Defendant was acquitted of some counts and convicted of others, double jeopardy barred retrial on all counts.
State v. Gai, 92 Crim. L. Rep. 127 (Mont. 10/23/12):

Holding: Even though this jurisdiction requires that if the defense wants to cross-examine a forensic expert who prepared a report the defense has to make such a demand for appearance before trial, this does not preclude the defense from arguing that the report is not credible at a trial in the absence of such a demand; “The rule speaks to the admission of the reports not the effect of the admitted evidence.”
State v. Shambley, 89 Crim. L. Rep. 97, 2011 WL 1327864 (Neb. 4/8/11):

Holding: Defendant facing termination from diversion program is entitled to same process due at a probation or parole revocation hearing; thus, Defendant has right to cross-examine witnesses at hearing.
City of Reno v. Howard, 2014 WL 784065 (Nev. 2014):

Holding: Statute, which provided that DWI defendants waive their right to confront collectors of blood evidence unless the defendant can show a substantial and bona fide dispute regarding the facts in the declaration, violates the Confrontation Clause.

State v. Langill, 88 Crim. L. 292 (N.H. 11/30/10):

Holding: Hearsay rule prohibited fingerprint examiner from testifying that her fingerprint results were confirmed by a second examiner, even though the ACE-V method requires two examiners to compare results.
State v. McLaughlin, 88 Crim. L. Rep. 745 (N.J. 3/3/11):

Holding: The 6^th Amendment redaction rules of Bruton v. U.S., 391 U.S. 123 (1968) apply to hearsay admitted through the “state of mind” exception; thus, testimony by co-defendant’s girlfriend that co-defendant said he and Defendant planned to rob victim required redaction.
State v. Navarette, 92 Crim. L. Rep. 457 (N.M. 1/17/13):

Holding: Where pathologist offered his “subjective observations” regarding an autopsy report prepared by a different pathologist, this violated 6^th Amendment Confrontation Clause.
State ex rel. Roseland v. Herauf, 2012 WL 3031380 (N.D. 2012):

Holding: A signed statement from a nurse who drew Defendant’s blood for DWI case was testimonial.
State v. Clark, 94 Crim. L. Rep. 170, 2013 WL 5832253 (Ohio 10/30/13):

Holding: Child-victim’s statements to Teacher were “testimonial” because teachers are agents of State who have legal duty to report child abuse; because the circumstances objectively indicate that there was no ongoing emergency, Child was not making statements for medical care, and the primary purpose of Teacher’s questioning was to prove past events potentially relevant to later prosecution, the 6^th Amendment right to cross-examine accuser Child was implicated.
State v. Tribble, 67 A.3d 210 (Vt. 2012):

Holding: Defendant’s trial counsel could not waive Defendant’s Confrontation rights, over Defendant’s personal objection, by stipulating to admission of medical examiner’s prior deposition testimony, and this error was not harmless.
Crawford v. Com., 88 Crim. L. Rep. 515 (Va. 1/13/11):

Holding: Witness’ statements in affidavit seeking a civil order of protection are “testimonial.”
State v. Jasper, 90 Crim. L. Rep. 809 (Wash. 3/15/12):

Holding: Defendants’ Sixth Amendment right to confrontation was violated by the admission at their criminal trials of certifications regarding the statuses of their driver’s or professional licenses.
State v. Jasper, 2012 WL 862196 (Wash. 2012):

Holding: Certified records declaring the presence or absence of public records relating to facts at issue in prosecutions for driving while license suspended and unregistered were testimonial in nature, requiring custodians in order to satisfy the defendants’ rights of confrontation.
State v. Kennedy, 92 Crim. L. Rep. 234 (W.Va. 11/21/12):

Holding: Confrontation Clause was violated when State was allowed to present autopsy report without the pathologist who wrote it, but was not violated when the State presented a different pathologist to testify to expert opinions he could have formed based on autopsy photographs.
Spradley v. State, 2011 WL 4511226 (Ala. Crim. App. 2011):

Holding: Testimony of detectives regarding the statements of a witness who refused to testify was inadmissible and plain error where it was used to fill a void in the state’s case.
In re Fratus, 2012 WL 1231947 (Cal. App. 2012):

Holding: In refusing to allow a prisoner to call a witness during a disciplinary hearing because the witness “could not provide any additional/relevant information,” the department of corrections violated the prisoner’s due process right to call witnesses in his defense.
People v. Starks, 2012 WL 504635 (Ill. App. Ct. 2012):

Holding: New exculpatory serology and DNA evidence meant that the defendant did not have adequate ability to examine now-deceased complainant, barring her prior testimony from being admitted in the defendant’s new trial.
State v. Simmons, 2011 WL 1938385 (La. Ct. App. 2011):

Holding: Even though Defendant failed to follow statute which required that he make a timely pretrial demand to be able to cross-examine criminalist, the State’s presentation of criminalist’s report violated the Confrontation Clause because the burden cannot be shifted to Defendant to call this prosecution witness.
Com. v. Ramsey, 2011 Wl 2520143 (Mass. App. 2011):

Holding: Admission of drug analysis certificate to prove substance was drugs violated Confrontation Clause and was not harmless.
Com. v. Ellis, 2011 WL 1520027 (Mass. App. 2011):

Holding: A probation certification used to prove Defendant had a prior DWI conviction was testimonial for Confrontation Clause purposes.
Dionas v. State, 2011 WL 2585962 (Md. Ct. Spec. App. 2011):

Holding: Trial court erred in limiting cross-examination of State’s witness as to whether they had an expectation of leniency from State for testifying at Defendant’s probation revocation hearing.
Green v. State, 2011 WL 2578562 (Md. Ct. Spec. App. 2011):

Holding: SAFE nurses sexual assault report was written under circumstances that would lead an objective observer to believe the statements would be available for use at trial, so nurse’s report was “testimonial.”
State v. Heisler, 2011 WL 1885670 (N.J. Super. Ct. App. Div. 2011):

Holding: Ten-day period in which defendant must object to the admission into evidence of a lab certificate does not begin to toll until after defendant is served with notice of the submission.
State v. Rehmann, 2011 WL 1598660 (N.J. Super. Ct. App. 2011):

Holding: Confrontation Clause is not satisfied by State calling just anyone to the stand to testify about lab results; the State must provide a witness who has made an independent determination as to the results offered.
State v. Smith, 2013 WL 4017321 (N.M. App. 2013):

Holding: Defendant’s confrontation rights were violated where court allowed lab analyst to testify via 2-way video, absent adequate showing of necessity.
People v. Diaz, 2011 WL 2475182 (N.Y. App. Div. 2011):

Holding: Trial court violated Defendant’s confrontation rights in child sex case by not allowing Defendant to present testimony from child’s mother’s ex-boyfriend that child had falsely accused him of sex abuse and then recanted; testimony was offered for impeachment and to show bias.
People v. Canales, 2011 WL 2347617 (N.Y. Sup. 2011):

Holding: Co-conspirator’s statements made after conspiracy ended were not admissible against Defendant/co-conspirator.
People v. Waters, 2011 WL 240753 (N.Y. City Ct. 2011):

Holding: Simulator solution documents and an instrument calibration certificate, containing electronic signatures, were not admissible under business records exception to hearsay rule; documents were not made in regular course of business, were not a true and accurate representation of electronic records and were incomplete.
State v. Hurt, 2010 WL 4608708 (N.C. Ct. App. 2010):

Holding: Defendant’s 6^th Amendment confrontation rights apply in non-capital sentencing hearing.
Burch v. State, 2013 WL 2196934 (Tex. App. 2013):

Holding: Confrontation Clause violated where State introduced lab report stating type and quantity of drugs through a different analyst than that who did the actual testing.
Burch v. State, 93 Crim. L. Rep. 540 (Tex. Crim. App. 6/26/13):

Holding: 6^th Amendment right to confrontation is violated by having a “reviewing analyst” testify to crime lab results performed by another analyst.
Bays v. State, 93 Crim. L. Rep. 190 (Tex. App. 4/17/13):

Holding: Even though Texas has a statute that creates a hearsay exception to admission of testimony by the first person to whom a child sex victim reports sexual abuse, this statute does not allow introduction of a videotaped interview of child given to an investigator for Texas Dept. of Family Services; statute was intended to apply to persons like a child’s mother or other adult to whom child first reported abuse, not to a later investigator who was investigating the incident.
Coronado v. State, 89 Crim. L. Rep. 848 (Tex. Crim. App. 9/14/11):

Holding: Even though Defendant was allowed to question child sex victim by submitting written questions to be asked through a forensic interviewer, this violated Defendant’s confrontation rights.
State v. Turnipseed, 2011 WL 1991752 (Wash. Ct. App. 2011):

Holding: Defendant’s 6^th Amendment right to confrontation was violated by a partially distorted and inaudible video of defense counsel’s earlier cross-examination of an expert.

6^th Amendment confrontation rights apply in non-capital sentencing hearing.

Continuance
U.S. v. Sellers, 2011 WL 1935735 (7^th Cir. 2011):

Holding: Denial of Defendant’s pretrial motion for a continuance to change counsel, without conducting a balancing test to determine if a continuance was warranted, denied Defendant his 6^th Amendment right to counsel of his choice.
Oliver v. State, 2013 WL 427236 (Del. 2013):

Holding: Granting 24-hour recess during trial to allow defense counsel to be able to review forensic reports which State had failed to disclose was not an appropriate sanction for State’s non-disclosure before trial, since defense counsel would not have time to adequately prepare for cross-examination of the highly technical information or be able to consult with their own forensic expert.
Com. v. Ross, 2012 WL 4801433 (Pa. Super. 2012):

Holding: Trial court abused discretion in refusing to grant a continuance to death penalty counsel where counsel had not interviewed 50 witnesses and had not completed interviewing his own experts.
Blackshear v. State, 2011 WL 1991424 (Tex. App. 2011):

Holding: Trial court erred in second trial in not granting a continuance to allow Defendant to obtain a transcript from the first trial; defense should have been able to use the transcript to cross-examine witnesses from first trial, even though second trial was for punishment only.

Costs
McVeigh v. Fleming, 410 S.W.3d 287 (Mo. App. E.D. 2013):

Holding: Attorney must give client the attorney file without charge because the file is the property of the client. “If a lawyer wishes to keep a copy of the file for his own use or protection, the lawyer must bear the cost of copying the file….Therefore, the trial court erred in ordering [client] to pay [attorney] 4 cents per page in duplication costs because a client’s file is property that belongs to the client, a lawyer must return the client’s property once representation has been terminated, and a lawyer must bear the cost of copying the file.”
State ex rel. State of Missouri Dept. of Social Services Family Support Division v. Campbell, No. WD75408 (Mo. App. W.D. 11/27/12):

Holding: Judge cannot order State to pay for paternity testing under Sec. 210.854, since statute says that petitioner (alleged father) shall pay for such testing.
U.S. v. Moore, 90 Crim. L. Rep. 650 (4^th Cir. 1/25/12):

Holding: Before a federal district judge may invoke the Criminal Justice Act to order a defendant to repay the government for his or her court-appointed attorney, the judge must find that there are specific funds, assets, or asset streams available to the defendant.
Buster v. Com., 2012 WL 5285665 (Ky. 2012):

Holding: State statute does not permit trial court to retain jurisdiction until a Defendant finishes a sentence to determine whether court costs and public defender fees should be imposed.
Com. v. Garzone, 90 Crim. L. Rep. 606 (Pa. 1/19/12):

Holding: A state law providing that convicted defendants can be ordered to pay the prosecution’s expenses does not mean that the state may recover the costs for the prosecutors’ salaries.
Com. v. Garzone, 2012 WL 149334 (Pa. 2012):

Holding: Statute governing payment of costs of prosecution does not authorize recovery, from defendant, of costs relating to salaries of regularly staffed personnel.
Collins v. City of Los Angeles, 2012 WL 1371978 (Cal. App. 2012):

Holding: Los Angeles’ liability to DUI arrestees for improperly charging for overhead as a portion of emergency response costs was ascertainable when the arrestees made the payments.
People v. Palomo, 2011 WL 3332327 (Colo. App. 2011):

Holding: Court could only assess prosecution costs against Defendant for counts he was convicted of, not for counts he was not successfully prosecuted for.

Johnson v. State, 2014 WL 714736 (Tex. App. 2014):

Holding: A bill for court costs did not have to be brought to the trial court’s attention for Defendant to be able to challenge it on appeal.
Landers v. State, 2013 WL 3329332 (Tex. App. 2013):

Holding: Defendant could appeal trial court’s imposing prosecutor fees as court costs even though he failed to object, because he wasn’t given an opportunity to object and was not required to file a new trial motion about this issue.
State v. Villanueva, 311 P.3d 79 (Wash. App. 2013):

Holding: Acquitted Defendant can recover lost wages as restitution under state statute that allows certain acquitted Defendants to receive restitution for losses stemming from unsuccessful prosecution.
Counsel – Right To – Conflict of Interest
Whitfield v. State, 435 S.W.3d 700 (Mo. App. E.D. 2014):

Holding: Even though motion court believed that “justice is [not] served by the routine appointment of counsel for a movant who files a pro se motion … pursuant to Rule 24.035,” the appointment of counsel for indigent movants is mandatory under Rule 24.035(e).
State v. Churchill, 2014 WL 839455 (Mo. App. E.D. March 4, 2014):

Holding: (1) Where Mother (Defendant) was called to testify at a child protective hearing and repeatedly requested counsel before testifying (but court denied her request), Mother was denied her right to counsel under Sec. 211.111 and Rule 115.03 because the statute grants an unconditional right to counsel to any party to a juvenile court proceeding for all stages of the proceeding and the Rule requires the court to inform the juvenile’s parents of the right to appointed counsel; but (2) even though counsel was not provided, Mother-Defendant’s statements made at the juvenile hearing should not be suppressed at her subsequent trial for perjury, because courts have held that the exclusionary rule does not immunize perjury when false statements were obtained in violation of a defendant’s constitutional rights, so exclusion is not warranted for violation of Mother-Defendant’s statutory rights either. (3) Furthermore, Mother-Defendant’s Sixth Amendment right to counsel was not violated because there was no adversary judicial criminal proceeding pending against Mother-Defendant at the time she testified, so the Sixth Amendment right to counsel had not yet attached, and (4) even if her Fifth Amendment right against self-incrimination was violated (which appellate court does not decide), this does not mandate that her statements be suppressed because the Fifth Amendment privilege does not immunize perjury.
Conger v. State, No. ED96015 (Mo. App. E.D. 10/18/11):

Movant was entitled to evidentiary hearing on claim that he was coerced into pleading guilty because his counsel wanted more money for a trial than Movant could pay.

Facts: Movant (defendant) was charged with various offenses. He ultimately pleaded guilty. At the plea hearing, he said he was not threatened or coerced to plead guilty, and expressed general satisfaction with defense counsel. Later, he filed a 24.035 motion claiming he was coerced to plead guilty because he could not afford the fee counsel demanded to go to trial. The motion court found the claim was refuted by the record.