Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though Defendant’s confession had been held to be voluntary at trial, this did not preclude him from seeking postconviction DNA testing; when a court determines whether a confession is voluntary, it is determining an issue of admissibility at trial, not whether the confession is true.
State v. Thompson, 90 Crim. L. Rep. 760 (Wash. 2/23/12):

Holding: A court may not rely on evidence that was never admitted at a petitioner’s rape trial to deny a request for post-conviction DNA testing.
Jointer v. Superior Court, 158 Cal. Rptr. 3d 778 (Cal. App. 2013):

Holding: Postconviction court abused discretion in denying DNA testing of a water bottle that perpetrator drank from at the robbery scene, because if the DNA results were favorable, there is a reasonable probability that Defendant might have obtained a more favorable result at trial, since the water bottle was the only physical evidence in the case and two of three eyewitnesses were uncertain in their identification of Defendant.
People v. Wright, 2012 WL 1108504 (Ill. App. Ct. 1^st Dist. 2012):

Holding: A defendant charged with aggravated criminal sexual assault demonstrated that DNA evidence would be material to the defense investigation or relevant at trial, and thus the defendant was entitled to a pretrial DNA database search.
Amato v. District Attorney, 89 Crim. L. Rep. 801 (Mass Ct. App. 8/25/11):

Holding: Where police told Defendant that his DNA sample would later be destroyed if he helped out with a murder investigation, Defendant can bring equitable action to have his DNA sample destroyed.

Double Jeopardy
State v. Hardin, 429 S.W.3d 417 (Mo. banc 2014):

(1) Where forcible rape statute stated the punishment as a “term of imprisonment of life imprisonment or a term of years not less than five,” a sentence of 50 years was not outside the statutory range under the plain language of the statute since this was “not less than five,” and (2) conviction for both “aggravated stalking” and “violation of protection order” did not violate double jeopardy because violation of protection order is not a lesser-included offense of “aggravated stalking” under the statutory elements test, which is the applicable test for determining lesser-included offenses.

Facts: Defendant was convicted of forcible rape for abducting and raping his wife. He was also convicted of “aggravated stalking” and five counts of “violation of a protective order” for telephoning his wife five times from jail. He was sentenced to 50 years for the rape. On appeal, he claimed that the 50-year sentence exceeded the permissible statutory range, and that his convictions for “aggravated stalking” and “violation of a protective order” violated double jeopardy.

Holding: (1) The rape statute, Sec. 566.030.2 RSMo Supp. 2009, provides that the authorized term is “life imprisonment or a term of years not less than five.” Defendant claims the authorized term is five years to life. Defendant bases his argument on Sec. 558.019.4 which provides that a sentence of life shall be calculated to be 30 years for parole eligibility purposes. However, parole eligibility is not the same as the authorized term of imprisonment. Defendant’s reading is inconsistent with the plain language of the rape statute. The statute says “life imprisonment or a term of years not less than five.” The “or” is disjunctive, meaning the Legislature intended either life imprisonment, or a term not less than five. To the extent that prior decisions of the Court of Appeals have held that the maximum punishment is life imprisonment (State v. Williams, 828 S.W.2d 894 (Mo. App. 1992), State v. Anderson , 844 S.W.2d 40 (Mo. App. 1992)), they should no longer be followed. (2) Double jeopardy protects against multiple punishments for the same offense, but does no more than prevent the sentencing court from imposing greater punishment than the Legislature intended. Sec. 556.041 says a defendant cannot be convicted of more than one offense if one offense is included in the other. One offense is “included” in the other where it is established by proof of the same or less than all the elements required to establish commission of the charged offense. The test is an elements test by comparing the elements of the relevant statutes; not a test based on how the offense is charged. A person commits “aggravated stalking,” Sec. 565.225.3, if his course of conduct includes listed aggravated factors such as (1) making a threat, (2) violating a protective order, or (3) violating a condition of probation, parole or pretrial release. A person commits the crime of “violation of a protective order,” Sec. 455.085.2, when they commit an act of abuse in violation of the order. Under the elements test, violating a protective order is not “included” in the offense of “aggravated stalking.” “Aggravated stalking” requires proof of a course of conduct composed of two or more acts and “aggravated factors,” whereas a protective order violation can be proven by a single act of abuse of the order. “Aggravated stalking” can be proven without demonstrating an order of violation of protection. For example, if the defendant makes a threat. Each offense requires proof of an element the other does not. Defendant assumes that whether the offense of “violating a protection order” is included in the offense of “aggravated stalking” depends on how “aggravated stalking” is charged, proved or submitted to the jury, and that where it is charged and submitted based on violating a protection order, this violated double jeopardy. However, the proper test focusses only on the elements of the statutes defining each offense. An indictment-based analysis is wrong. To the extent that State v. Smith, 370 S.W.3d 891 (Mo. App. 2012) is contrary, it should no longer be followed.
State v. Hicks, 2013 WL 811932 (Mo. banc Feb. 26, 2013):

Holding: Double jeopardy prohibits multiple convictions for first-degree robbery for stealing multiple items in the single incident; thus, where Defendant was convicted of two counts of robbery for stealing a victim’s keys and a video recorder in a single continuous act of force, the conviction for the second count is vacated.
State v. Roggenbuck, No. SC92236 (Mo. banc 12/4/12):

Holding: Where there was evidence that Defendant acquired possession of five different photos of child pornography at different points in time during a three-week period, it did not constitute double jeopardy to convict of five separate counts under Sec. 573.037 RSMo. Cum. Supp. 2007, which defined the offense as possession of “any obscene material that has a child as one of its participants … as an observer or participant of sexual conduct.”
State v. Miller, No. SC91948 (Mo. banc 7/3/12):

(1) Where the information charged various sex acts between Dec. 3, 2004 and Dec. 5, 2005, and the verdict director tracked these dates, but the evidence was that the offense was committed in 1998 or 1999, the evidence is insufficient to convict because the time span of the charged offense was different than the evidence actually presented and the charged offense did not give adequate notice to the defense of the evidence the State intended to present; because the evidence is insufficient, Defendant cannot be retried on these counts; and (2) where Defendant was charged with another sex offense alleged to have occurred in 1997 or 1998, the trial court erred in giving a jury instruction regarding the definition of sexual contact that was not enacted until 2002; because this jury instruction constitutes only “trial error,” Defendant can be retried on this count.

Facts: Defendant was charged by information with child sex offenses alleged to have occurred between Dec. 3, 2004 and Dec. 3, 2005. The jury instruction tracked this time frame. However, the evidence presented at trial showed that these offenses occurred in 1998 or 1999. Regarding a separate charge of first degree child molestation, the verdict directed stated that Defendant touched the genitals of a child “through the clothing” in 1997 or 1998.

Holding: (1) There was no evidence that Defendant committed the first charged sex offenses in 2004 or 2005, as charged in the information and as instructed in the jury instruction. While the exact date of a sex offense is not an element of the crime, a time element cannot be so overbroad as to nullify an alibi defense or prevent application of double jeopardy principles. When the State chooses to file an information and submit a parallel jury instruction that charges a specific time frame, the evidence must conform to that time frame. Otherwise, the defense would not have adequate notice of the evidence the State intends to present. Here, there was no evidence Defendant committed the first sex acts during 2004 or 2005. Having not presented sufficient evidence to convict, the State cannot retry Defendant on these charges and he must be discharged. (2) Regarding a separate charge of first degree child molestation, at the time of this offense, Sec. 566.067 RSMo. 1994 applied and it did not define sexual contact as “touching through the clothing.” That language was not added until the statute was revised in 2002. Hence, the jury instruction using the 2002 language was error. However, this is “trial error,” so a new trial on this charge is permissible.
State v. Liberty, No. SC91821 (Mo. banc 5/29/12):

Sec. 573.037 RSMo. Supp. 2007 which prohibited possession of “any” obscene material is ambiguous as to the unit of prosecutor for multiple photos of child pornography, but double jeopardy does not bar retrial for multiple counts if State can show they were obtained at different times.

Facts: Defendant was convicted under Sec. 573.037 RSMo. Supp. 2007 of eight counts of possession of child pornography for possession of eight photos. He claimed this was only one unit of prosecution and violated double jeopardy.

Holding: Sec. 573.037 RSMo. Supp. 2007 (since amended) prohibited possession of “any” obscene material. The question here is whether 573.037 (2007) intended to impose separate punishments for each item of child pornography a person possesses, or whether the statute is ambiguous as to whether it intended this to only be a single crime. The use of the word “any” is ambiguous because it can be interpreted to permit either a single prosecution or multiple prosecutions for eight photos. The ambiguity is shown, in part, by the legislative amendment in 2008, which more clearly evidenced the Legislature’s intent as to unit of prosecution. 573.037 was amended in 2008, in relevant part, to provide that a possession of child pornography is a Class C felony unless the person possess more than 20 still images, in which case it is a Class B felony. The 2008 amendment makes clear that possession of 20 or more images is a single unit of prosecution for which only a single prosecution is permissible. To suggest that multiple prosecutions are permissible for possession of fewer than 20 images would produce the unreasonable result that a defendant could receive a harsher penalty for possessing fewer images; statutes must be interpreted to avoid absurd results. However, just because the 2007 statute is ambiguous, does not mean that double jeopardy bars retrial on eight counts. Double jeopardy bars retrial where the evidence is insufficient, not for “trial error.” Defendant’s claim is “trial error” here because it is based on erroneous application of 573.037 (2007). Accordingly, the proper remedy is to affirm Defendant’s conviction on one count and remand to the trial court, at which point the State may determine whether to proceed on the remaining seven counts should it have evidence of separate offenses, e.g., possession of the photos by Defendant at different times or from different sources.
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. Hardin, 2013 WL 2181218 (Mo. App. E.D. May 21, 2013):

Holding: Where four counts (convictions) of violation of a protective order alleged the same conduct as another count (conviction) for aggravated stalking, the four counts of violation of a protective order violated Double Jeopardy; this is because the offense of violating a protective order (Sec. 455.085.2) is included in the offense of aggravated stalking (Sec. 565.225) because proof of the same conduct is required to sustain both convictions, and the Fifth Amendment and Sec. 556.041 protect against multiple punishments for the same offense.
State v. Roach, No. ED97952 (Mo. App. E.D. 11/20/12):

Holding: Missouri follows principle of “dual sovereignty” for double jeopardy purposes such that an acquittal or conviction in federal court does not prevent a subsequent conviction for the same offense in Missouri state court if the offense is one over which both sovereigns have jurisdiction.
State v. Smith, No. ED96865 (Mo. App. E.D. 5/5/12):

(1) Convictions for both aggravated stalking, Sec. 565.225.2, and violation of a protective order, Sec. 455.085.2, violated double jeopardy; and (2) jury instruction which allowed conviction for violation of protective order by “disturbing the peace of victim by showing up at her home” was plain error because this was not one of the enumerated ways to commit the offense set out in MAI-CR3d 332.52.

Facts: Defendant was convicted of various counts of aggravated stalking, 565.225.2, and violation of a protective order, Sec. 455.085.2, based on the same conduct.

Holding: (1) Defendant argues that it constituted double jeopardy to convict of both aggravated stalking and violation of a protective order. Sec. 556.041 provides that a person may not be convicted of more than one offense if one offense is included in the other. Sec. 556.046 provides that an offense is included when it is established by proof of the same or less than all the facts required to establish commission of the offense charged. An offense is a lesser included offense if it is impossible to commit the greater without committing the lesser. Sec. 565.225.2 provides that a person commits aggravated stalking if through his course of conduct he harasses or follows with the intent of harassing another person and at least one of the acts constituting the course of conduct is in violation of an order of protection of which he has notice. Sec. 455.085.2 states that a person commits the offense of violating an order of protection where he commits an act of abuse in violation of such an order. The offense of violation of a protective order is included in the offense of aggravated stalking because proof of the same conduct is required for both convictions. It is impossible to commit aggravated stalking without violating the order of protection. Thus, the trial court plainly erred in accepting verdicts for both offenses, and the convictions for violating the order of protection are vacated. (2) MAI-CR3d 332.52 provides that a person commits the offense of violation of an order of protection if they violate the order by stalking, abusing victim in certain ways, entering the premises of victim, or initiating communication with victim. The jury instruction here submitted the offense of violating the order of protection by “disturbing the peace of [victim] by showing up at her home.” This is not one of the enumerated ways to commit the offense and this conduct was not even charged. It was plain error to give this instruction.
State v. Walker, No. ED95089 (Mo. App. E.D. 11/8/11):

Holding: Convictions for forcible rape, Sec. 566.030 RSMo. Cum. Supp. 1998, and statutory rape, Sec. 566.032 RSMo. Cum. Supp. 1998, for a single act of sexual intercourse do not violate double jeopardy; court emphasizes it is deciding case solely under 1998 statutes, and expresses no opinion on current versions of the statutes.
State v. Schallon, No. ED94181 (Mo. App. E.D. 5/24/11):

(1) Where Defendant was charged with having Victim touch his penis but Victim testified that she didn’t recall touching the penis, the evidence was insufficient to convict of sodomy; (2) where Defendant was charged with two counts of sodomy for having Victim touch his penis, but this was really the same occurrence, double jeopardy prohibited conviction on both counts; and (3) where Defendant was convicted of attempted statutory sodomy but sentenced to 7 years in prison, the sentence was in excess of that authorized for a Class D felony.

Facts: Defendant was charged with multiple counts of various sexual offenses. Count 15 charged him with having Victim touch his penis. Counts 21 and 26 charged him with having Victim touch his penis “on the same day he instructed her to perform oral sex” and on the day “he threatened to tell her mother” about a boyfriend. Count 20 charged attempted statutory sodomy in the second degree.

Holding: Regarding Count 15, Victim testified that she did not recall touching Defendant’s penis that day. Where the act constituting the crime is specified in the charge, the State is held to proof of that act. Thus, the evidence was insufficient to convict for Count 15. Regarding Counts 21 and 26, the evidence showed that these were part of the same event and that during this event, Defendant had Victim touch his penis only one time. Double Jeopardy prohibits multiple punishments for the same offense, so one of the Counts must be vacated. Lastly, Defendant was convicted in Count 20 of attempted second degree statutory sodomy, which is a Class D felony because an attempt offense is one class less than the completed offense, Sec. 564.011.3(3). The 7 year sentence exceeded the maximum allowed by law for a Class D felony.

State v. Storer, SD31303 (Mo. App. S.D. 4/25/12):

Where jury hung and then State dismissed charges and refiled them, the re-prosecution of Defendant was prohibited by Sec. 56.087 which states that a dismissal by a prosecutor after double jeopardy has attached is with prejudice unless the Defendant has consented to the dismissal, and which defines jeopardy as attaching when the jury is impaneled and sworn.

Facts: Defendant was charged with various offenses, and went to jury trial. After several hours of deliberation, the jury hung and the court declared a mistrial. Two weeks later, the State entered a nolle prosequi of the charges, and told Defendant it intended to re-file. Defendant never consented to the case being dismissed without prejudice. Thereafter, the State dismissed the charges and re-filed. Defendant filed a motion to dismiss, claiming the re-filed charges were barred by double jeopardy. The trial court granted the motion to dismiss. The State appealed.

Holding: The State claims the re-filing is not barred by double jeopardy because the first trial ended in a hung jury. The State is confusing constitutional double jeopardy with the applicable statute here. Sec. 56.087 provides that a dismissal filed by the prosecutor “after double jeopardy has attached is with prejudice, unless the criminal defendant has consented to having the case dismissed without prejudice.” The statute further provides that “double jeopardy attaches in a jury trial when the jury has been impaneled and sworn.” The State argues the statute was not intended to apply when there has been a hung jury. But courts can only interpret statutes by applying the plain language of them. Sec. 56.087 provides that double jeopardy attaches when a jury is impaneled and sworn. Applying that clear definition, the clear result is that a dismissal after the jury has been impaneled and sworn is with prejudice unless the defendant has consented to the case being dismissed without prejudice. Here, Defendant never gave such consent. The dismissal served as a bar to the case being re-filed.
City of Joplin v. Marston, 2011 WL 2931075 (Mo. App. S.D. 7/21/11):

Where City failed to introduce city ordinance under which Defendant was convicted into evidence, the evidence is insufficient to convict because courts cannot take judicial notice of city ordinances, and double jeopardy precludes retrial.