Case Law Update: 2011-2014 Cumulative Edition

Holding: The trial court erred when it allowed witnesses, when giving victim impact statements, to tell the jury they wanted a death sentence.
People v. Riccardi, 2012 WL 2874237 (Cal. 2012):

Holding: Trial court erred in striking death penalty venireperson based solely on written questionnaire which answers were ambiguous as to whether the venireperson could consider death penalty; court should have conducted actual voir dire of venireperson.
People v. Pearson, 2012 WL 34145 (Cal. 2012):

Holding: Automatic reversal of the death penalty was required, where prospective juror was erroneously excused for cause based on her indefinite views on the merits of the death penalty.
State v. Komisarjevsky, 2011 WL 3557908 (Conn. 2011):

Holding: Defendant’s 6^th Amendment right to a fair trial and to prepare a defense allowed court to seal defense witness list from the media and public prior to trial.
Griffin v. State, 2013 WL 2096350 (Fla. 2013):

Holding: Counsel was ineffective in capital case in (1) having Defendant plead guilty based on unsubstantiated hunch that judge would not sentence Defendant to death; (2) failing to present evidence of drug use, family history of substance abuse and mental illness, history of depression and brain injury; (3) failing to obtain school and medical records, and (4) failing to rebut erroneous statements by State’s medical expert in penalty phase.
Hall v. State, 2012 WL 6619321 (Fla. 2012):

Holding: Trial court’s finding that Defendant was mentally retarded as mitigation in death penalty case did not estop a later claim under Atkins.
Gordon v. State, 2011 WL 4596660 (Fla. 2011):

Holding: Defendant’s may not proceed pro se in postconviction appeals if they have been sentenced to death.
Ballard v. State, 2011 WL 2566348 (Fla. 2011):

Holding: Death penalty disproportionate where Defendant’s age was mitigating, and there was only one aggravator factor and three mitigating factors, and Defendant was under influence of extreme mental and emotional disturbance, and his capacity to appreciate the criminality of his conduct was impaired.
State v. Coleman, 89 Crim. L. Rep. 475 (Fla. 6/2/11):

Holding: Where counsel’s ineffectiveness led judge to override jury’s verdict of life and impose death, the remedy for the ineffective assistance is for the trial court to impose a sentence of life.
Ellington v. State, 2012 WL 5833566 (Ga. 2012):

Holding: Defendant charged in death penalty case had right to ask venirepersons if they would automatically impose death if the victims were young children.
In re Brizzi, 91 Crim. L. Rep. 15 (Ind. 3/12/12):

Holding: Prosecutor violated ethical rules on trial publicity and special responsibility of prosecutors when he published press release that said the evidence was overwhelming and to not seek the death penalty would be a “travesty” in this case.
State v. Cheatham, 92 Crim. L. Rep. 492 (Kan. 1/25/13):

Holding: Flat fee in capital murder case created a conflict of interest and ineffective assistance of counsel.
Mullikan v. Com., 89 Crim. L. Rep. 600 (Ky. 6/16/11):

Holding: Even though a statute allows jury in noncapital penalty phase to hear “the nature of prior offenses,” the evidence of prior convictions must be limited to conveying only the elements of the crimes previously committed; “We suggest that this be done either by reading of the instructions of such crime from an acceptable form book or from the Kentucky Revised Statute itself”; details of the prior crimes beyond the statutory elements are improper.
Harrell v. State, 2014 WL 172125 (Miss. 2014):

Holding: Capital jury instruction for capital murder based on underlying felony of robbery was erroneous where it failed to instruct jury on what constituted the crime of robbery.
Grayson v. State, 93 Crim. L. Rep. 157 (Miss. 4/18/13):

Holding: Mississippi recognizes right to effective assistance of counsel in postconviction death penalty cases (but finds was harmless here); “Because this Court has recognized that PCR proceedings are a critical stage of the death-penalty appeal process at the state level, today we make clear that PCR petitioners who are under sentence of death have a right to the effective assistance of PCR counsel”; petitioner had alleged that appointed PCR’s counsel large caseload prohibited him from investigating case.
Davis v. State, 2012 WL 1538303 (Miss. 2012):

Holding: The failure of counsel for a capital murder defendant to conduct a reasonable, independent investigation to seek out readily available mitigation witnesses, facts, and evidence for the sentencing phase, and instead solely relying on witnesses suggested by the defendant, was not a matter of trial strategy and constituted ineffective assistance of counsel.
People v. Taylor, 2010 WL 4642461 (N.Y. 2010):

Holding: Even though Defendant struck victim on head and then put bag over her head, this was legally insufficient to prove torture or brutal, prolonged course of conduct.
Haugen v. Kitzhaber, 2013 WL 3155366 (Or. 2013):

Holding: Governor’s commutation of death sentence was valid and effective regardless of whether death-sentenced person “accepted” it or not.
Com. v. Murray, 2013 WL 6831852 (Pa. 2013):

Holding: Where the jury was repeatedly misinformed and instructed during a capital trial that the death of murder victim’s unborn child was a “separate capital offense,” this required a new sentencing hearing.
Com. v. Spell, 90 Crim. L. Rep. 103 (Pa. 10/7/11):

Holding: Even though victim was extensively beaten, this did not prove the “torture” aggravator in death penalty trial.
State v. Berget, 2013 WL 28400 (S.D. 2013):

Holding: Sentencing court erred in using Defendant’s unwarned statements to a psychiatrist during a pretrial competency hearing to impose the death penalty, since this violated Estelle v. Smith, 451 U.S. 454 (1981).
State v. Sexton, 2012 WL 1918922 (Tenn. 2012):

Holding: Trial court improperly struck venirepersons based solely on their written responses to whether they would ever vote for the death penalty; actual voir dire questioning may have rehabilitated the venirepersons.
Smith v. State, 2011 WL 6318946 (Tenn. 2011):

Holding: Defense counsel were ineffective for failing to present evidence in support of capital defendant’s motion to recuse sentencing judge, where the judge had prosecuted defendant for earlier crimes while he was an assistant district attorney general.
Coleman v. State, 89 Crim. L. Rep. 90, 2011 WL 1346932 (Tenn. 4/11/11):

Holding: To prove mental retardation, Defendant can rely on expert testimony that test scores do not accurately reflect Defendant’s cognitive abilities; “functional IQ” is not limited to raw IQ scores.
Smith v. State, 2013 WL 2458721 (Ala. Crim. App. 2013):

Holding: In death penalty case, Defendant could not be convicted of an aggravator that did not exist at the time of his offense.
Sims v. Department of Corrections and Rehabilitation, 157 Cal. Rprt. 3d 409 (Cal. App. 2013):

Holding: Death penalty lethal injection protocol did not comply with state Administrative Procedure Act.
Miller v. State, 2013 WL 4805683 (Okla. App. 2013):

Holding: Double jeopardy barred State from seeking death penalty on first murder count on retrial, where Defendant had been previously tried for two counts of murder, but received life imprisonment on the first count at the first trial; thus, he had been acquitted of the death penalty on the first count.
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.
Druery v. State, 2013 WL 5808182 (Tex. App. 2013):

Holding: Even though capital Defendant knew at least some of the time that he was scheduled for execution, where because of mental illness he did not believe he committed the murder and did not think he would be executed some of the time, this was a substantial showing of incompetency to be executed.
Staley v. State, 93 Crim. L. Rep. 764, 2013 WL 4820128 (Tex. App. 9/11/13):

Holding: State cannot execute inmate who was made competent through a trial court’s unauthorized forcible medication order.
Velez v. State, 2012 WL 2130890 (Tex. Crim. App. 2012):

Holding: Correction expert’s false testimony in capital case in guilt phase that Defendant could be assigned a low classification level in prison if sentenced to LWOP rather than death was prejudicial as to future dangerousness; the State knew or should have known that prison regulations contradicted expert’s testimony.

Detainer Law & Speedy Trial
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. McKay, 2013 WL 4813558 (Mo. App. E.D. Sept. 10, 2013):

Even though the Department of Corrections failed to timely forward Defendant’s request for disposition of detainer under UMDDL to the prosecutor and court because the DOC mistakenly believed the detainer was for a probation violation, Defendant had done all he could do to obtain disposition of his criminal charge so this error is counted against the State, and case is remanded to determine if Defendant’s constitutional speedy trial rights were violated, which would require dismissal of the charges.

Facts: In May 2010, Defendant was charged with various offenses in St. Charles. Shortly thereafter, he was scheduled to appear in court for an initial appearance, but failed to appear because he was incarcerated in DOC on an unrelated conviction. The St. Charles court then issued a warrant for his failure to appear, but the warrant was mistakenly designated a warrant for a probation violation. On January 20, 2011, Defendant filed a request with DOC for disposition of the St. Charles detainer. However, the DOC failed to forward the request to the prosecutor or court because DOC believed the request was for disposition of a probation violation, which is not covered under UMDDL. On December 2, 2011, Defendant filed a motion to dismiss the new charge because 180 days had expired after he filed for disposition of detainer. Subsequently, the DOC apparently realized it was mistaken in its original belief that the detainer was for a probation violation, and in January 2012, notified the prosecutor and court of the request for disposition of detainer. Defendant was tried in March 2012, which was 52 days after the prosecutor and court received the request for disposition. Defendant appealed, claiming the charge had to be dismissed.

Holding: UMDDL Sec. 217.450.1 requires a Defendant to deliver to the DOC a request for disposition of detainer, and the DOC is then to send it to the prosecutor and court. Here, Defendant timely and correctly delivered his request for disposition to the DOC. However, the DOC failed to deliver it because the DOC mistakenly believed the detainer was for a probation violation. This was not Defendant’s fault. He fully complied with the statute. This error must be attributed to the State. The State argues that Defendant waived UMDLL by appearing in court and remaining silent on the issue at two later court appearances. However, there is no requirement that a defendant make a second request for disposition of detainer, and furthermore, these appearances happened after the 180 days should have expired, so Defendant cannot be deemed to have waived the issue. UMDDL mandates the dismissal of a complaint not brought to trial within 180 days unless the 180 days is tolled and if the court finds that the constitutional right to a speedy trial has been denied. Here, there has never been a finding by the trial court whether the constitutional right to a speedy trial was violated. Case is remanded to trial court to apply the factors for determining this: (1) length of delay; (2) reason for delay; (3) defendant’s assertion of the right; and (4) prejudice.

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. Sisco, 2013 WL 324031(Mo. App. W.D. Jan. 29, 2013):

Even though the Western District upholds a trial court’s finding that Defendant’s speedy trial rights were not violated here because of the deferential standard of review, Western District notes this case could “easily” have supported a contrary conclusion because “[t]he State’s repeated delays in producing additional discovery until the eve of the various trial dates and use of a nolle prosequi on the day of trial solely to avoid an in limine order and the denial of a motion for continuance, at a minimum, create an appearance of unfairness to a defendant who has requested a speedy trial.” The Western District notes it has seen similar “suspect discovery practices” from the Jackson County Prosecutor’s Office in State ex rel. Jackson Cnty. Prosecuting Attorney v. Prokes, 363 S.W.3d 71 (Mo. App. W.D. 2011).

State v. Brown, No. WD74114 (Mo. App. W.D. 9/25/12):

Even though a newer 2009 version of the detainer statute was in effect at the time Defendant invoked his rights to dispose of a detainer, where the Sheriff had notified the DOC of an arrest warrant for Defendant before the new version of the statute took effect, the old 2000 version of the statute applied; the 2000 version of the statute did not require a “certified copy of a warrant” or formal request for a detainer for there to be a “detainer.”

Facts: On August 3, 2009, Defendant was incarcerated in the DOC on a 2004 drug conviction when another arrest warrant was issued for him in Henry County. On August 4, 2009, the Henry County Sheriff’s Department faxed a copy of the arrest warrant to the DOC. The DOC generated a document stating that “a detainer has been placed” against Defendant. On August 12, 2009, the DOC sent the Sheriff a document stating that a detainer had been placed. On August 31, 2009, Defendant was given a “notice of detainer,” which he immediately signed and mailed to the Henry County Prosecutor and clerk requesting disposition of detainer. However, the State took no action to prosecute. On March 19, 2010, Defendant filed a motion to dismiss based on the State’s failure to try him with 180 days of his request for disposition of detainer. The trial court granted the request. The State appealed.

Holding: The State claims that Sec. 217.450.1 RSMo. Cum. Supp. 2009, which went into effect August 28, 2009, applies to Defendant, and that under this version of the statute, there was no actual “detainer” filed against Defendant because there was not a “certified copy of a warrant” or formal request that a detainer be lodged against Defendant. The State claims this version applies because Defendant made his request for disposition after this statute came into effect. However, the applicable statute is Sec. 217.450.1 RSMo. 2000. This is because the protections of the UMDDL were triggered when the Henry County Sheriff’s Department faxed a copy of Defendant’s arrest warrant to the DOC on August 4, 2009. The old statute did not require a certified copy of the warrant or a formal request for detainer. That statute provided only that an inmate “may request a final disposition of any untried indictment, information or complaint pending in this state on the basis of which a detainer has been lodged.” This old statute did not define the term “detainer.” Defendant followed the correct procedures under the old statute to require dismissal of his charge.
* Boyer v. Louisiana, 93 Crim. L. Rep. 155, ___ U.S. ___ (U.S. 4/29/13):

Holding: Supreme Court dismisses case on improvident cert. grounds which posed question of whether delay caused by lack of funding for appointed counsel violates 6^th Amendment speedy trial rights; dissenting opinion by 4 justices states that Supreme Court should answer question affirmatively since Barker v. Wingo, 407 U.S. 514 (1972), states that “overcrowded courts” should count against the State and failure to adequately fund indigent defense is the same.
* U.S. v. Tinklenberg, ___ U.S. ___, 89 Crim. L. Rep. 305 (U.S. 5/26/11):

Holding: (1) The filing of a pretrial motion stops the running of the Speedy Trial Act clock, 18 USC 3161, regardless of whether the motion actually causes or is expected to cause a delay in starting the trial; thus, where Defendant filed pretrial motions two weeks before trial, the 9 days during which the motions were pending before they were resolved is excluded from the Speedy Trial calculation even though the motions did not delay the actual trial; and (2) Weekends and holidays count toward then number of days that can be excluded under the Act when a defendant is being transported for a competency hearing.
U.S. v. Gates, 92 Crim. L. Rep. 762 (1^st Cir. 3/1/13):

Holding: Under federal Speedy Trial Act, a defense counsel can seek a continuance and resulting exclusion of time from the speedy trial clock without first securing Defendant’s consent.
U.S. v. Pleau, 90 Crim. L. Rep. 100 (1^st Cir. 10/13/11):