Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant was convicted at a trial de novo of violation of various city ordinances, including driving under the influence of drugs. The City at trial failed to introduce the ordinances into evidence. Defendant appealed.

Holding: Municipal prosecutions require proof of the ordinances upon which conviction rests. Courts cannot take judicial notice of municipal ordinances that are not properly introduced into evidence. There are three ways to introduce municipal ordinances: (1) introducing a certified copy under Sec. 490.240; (2) bringing the printed volume of ordinances to court and proving the ordinance through the book, Sec. 490.240; or (3) under Sec. 479.250, filing a certified copy with the court provided it is available for inspection by the parties. None of these were done here. Hence, the record is devoid of proof of the ordinance violation. Principles of double jeopardy preclude a retrial where the evidence is found to be legally insufficient. Reversed and remanded for entry of judgment of acquittal.
City of Joplin v. Klein, 2011 WL 2936401 (Mo. App. S.D. 7/21/11):

Even though City introduced ordinances making certain actions a municipal offense, where City failed to introduce the penalty portions of the ordinances, a court cannot judicially notice them and the charging information and proof were insufficient; furthermore, City is precluded from getting another opportunity to prove penalty.

Facts: Defendant was convicted of violation of various city ordinances. At trial, City properly placed the ordinances creating violations before the trial court by filing certified copies of the ordinances with the clerk of the circuit court under Sec. 479.250. However, the penalties for violation of these ordinances were in separate ordinances that were not provided. Defendant appealed.

Holding: A court cannot take judicial notice of a city ordinance that is not properly introduced into evidence. Here, the information (citation) charging the offenses failed to list the ordinance providing a penalty, and the penalty ordinances were not admitted into evidence or otherwise properly before the court. Thus, the charging information does not comply with Rule 37.35(b)(4). State v. Collins, 328 S.W.3d 705 (Mo. banc 2011), held that where the State failed to offer sufficient evidence to prove enhanced DWI status, the State does not get a second opportunity to do so. Applying Collins, City does not get a second opportunity to prove penalty here. Because City failed to allege the penalty ordinances in the charging information or prove them during trial, it is prevented from doing so at a re-sentencing. The only remedy is discharge of Defendant.
State v. Johnston, 2014 WL 4823628 (Mo. App. W.D. Sept. 30, 2014):

Where trial court granted new trial on basis that guilty verdict was “against the weight of the evidence,” this was not a “final judgment” subject to appeal since the trial proceedings would continue; granting a new trial on this basis does not implicate double jeopardy because this is not a judgment of acquittal or finding of insufficient evidence.

Facts: Defendant was convicted of first degree murder. The trial court then granted Defendant’s motion for new trial. The court found that the guilty verdict was “against the weight of the evidence,” establishing good cause under Rule 29.11 which provides that a trial court may grant a new trial upon good cause shown. Additionally, Sec. 547.020(5) allows a trial court to grant a new trial “when the verdict is contrary to the law or evidence.” The State appealed.

Holding: There is no “final judgment” here to allow an appeal. The judgment granting a new trial did not dispose of all issues and leave nothing for future adjudication. Here, everything is left for future adjudication since a new trial is pending. The State argues that the judgment was a de facto acquittal and that the State should be allowed to appeal because double jeopardy precludes retrial. But double jeopardy precludes retrial only if a conviction is set aside for insufficient evidence to support the verdict. However, when a new trial is granted because the verdict is “against the weight of the evidence,” rather than that the evidence was insufficient to support the verdict, double jeopardy does not bar a retrial. The trial court made its own credibility determinations and assessed the evidence, which indicates a weight of the evidence rather than a sufficiency of the evidence analysis. Appeal dismissed.
State v. Moad, 2013 WL 1838095 (Mo. App. W.D. April 23, 2013):

Even though jury was unable to reach a verdict at a jury trial, where Prosecutor subsequently dismissed the charge without Defendant’s consent, Sec. 56.087 barred Prosecutor from re-filing the charge.

Facts: Defendant was charged with involuntary manslaughter, and went to jury trial. The jury was unable to reach a verdict. Subsequently, the Prosecutor dismissed the case nolle prosequi. Subsequently, Defendant was re-indicted on the same charge of involuntary manslaughter. He filed a motion to dismiss under Sec. 56.087, which was granted. The State appealed.

Holding: Sec. 56.087 clearly states 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. … For purposes of this section, double jeopardy attaches in a jury trial when the jury has been impaneled and sworn.” Here, Defendant did not consent to the dismissal. Therefore, the dismissal was with prejudice and the Prosecutor cannot re-file the charge. Defendant’s motion to dismiss was properly granted.
State v. Hicks, No. WD71650 (Mo. App. W.D. 1/17/12):

Holding: Where Defendant was convicted of two counts of robbery for stealing a victim’s keys and cassette recorder in a single act, this violated double jeopardy because he cannot be subject to multiple convictions for taking multiple items of property from victim in a single incident.
State v. Lee, No. WD71924 (Mo. App. W.D. 6/7/11):

Holding: In case of first impression, Western District holds that even though police officer-witness intentionally gave testimony designed to provoke a mistrial, the prosecutor was not responsible for this misconduct, so the trial court did not have authority to order dismissal of the charges with prejudice; further, double jeopardy does not bar retrial of defendant.
State v. Liberty, No. WD71724 (Mo. App. W.D. 4/12/11):

Sec. 573.037 RSMo. Cum. Supp. 2007 does not authorize multiple convictions for possession of multiple photos of child pornography in a single event; this constitutes a single offense only.

Facts: Defendant was charged with eight counts of possession of child pornography under Sec. 573.037 RSMo. Cum. Supp. 2007 for possession eight photos of child pornography on his computer on May 2, 2008, as a second offense. He was convicted and sentenced to eight consecutive prison sentences. He appealed, claiming violation of double jeopardy.

Holding: The Double Jeopardy Clause protects a defendant from successive prosecutions of the same offense after acquittal or conviction, and multiple punishments for the same offense. This latter protection ensures that the sentencing discretion of courts is confined to the limits established by the legislature. The issue here is whether multiple punishments were intended by the legislature. Sec. 573.037 as it existed at the time of the offense prohibited the possession of “any obscene material that has as a child one of its participants or portrays what appears to be a child as an observer or participant of sexual conduct.” Had the legislature wished to permit separate convictions, it could have criminalized the possession of “an item” of child pornography rather than “any material.” Here, we also find compelling that the actus reus the statute required the State to prove – the Defendant’s possession – was a single event in the instant case, at a single time and place. Had the State alleged that Defendant “possessed” each photo at a different time when they were each placed on the computer, our analysis might be different, however. We also find the legislature’s subsequent amendment informative; in 2008 the legislature added an enhanced penalty to the section on possession for possessing “more than 20 still images of child pornography.” If the legislature intended separate convictions for each still image in the prior statute, amending it to add an enhanced penalty for multiple images becomes illogical. Defendant’s eight possession counts are reversed and remanded for sentencing on a single count only.
* Martinez v. Illinois, 95 Crim. L. Rep. 271, ___ U.S. ___, 134 S.Ct. 2070 (U.S. 5/27/14):

Holding: Jeopardy attaches once a jury is sworn and State cannot avoid that by refusing to put on evidence; here, after the jury was sworn, the State refused to put on evidence because a State’s witness was missing; since the State refused to put on evidence, the judge granted a not guilty verdict; Supreme Court rejects view that jeopardy did not attach because Defendant “was never at risk of conviction,” and enforces bright-line rule that jeopardy attached when jury was sworn.
* Evans v. Michigan, 92 Crim. L. Rep. 612, ___ U.S. ___ (U.S. 2/20/13):

Holding: 5^th Amendment Double Jeopardy Clause bars retrial of a Defendant who was acquitted by a judge, even though judge based acquittal on an erroneous interpretation of law; judge had erroneously believed the prosecution was required to prove a fact it was not required to prove.
* Bleford v. Arkansas, 2012 WL 1868066, ___ U.S. ___ (U.S. 2012):

Holding: Even though jury told the trial court that jury had acquitted Defendant of greater offenses, where jury then deadlocked on lesser offenses and a mistrial was declared, Double Jeopardy was not violated by re-trying Defendant on the greater offenses. This is because the first trial was not a “final resolution of anything” and “[e]ven if we assume that the instructions required a unanimous vote before the jury could consider a lesser offense … nothing in the instructions prohibited the jury from reconsidering such a vote.” Thus, even though jury told judge that it had voted unanimously to acquit of capital murder and first degree murder and was deadlocked on a lesser offense, Defendant can still be retried on the greater offenses after the mistrial.
U.S. v. Cioni, 89 Crim. L. Rep. 183 (4^th Cir. 4/20/11):

Holding: Double jeopardy prohibits automatic elevation of an offense for reading someone else’s email in violation of Computer Fraud & Abuse Act, 18 USC 1030, to a felony under the Stored Communications Privacy Act, 18 USC 2701.
Martinez v. Caldwell, 2011 WL 2347708 (5^th Cir. 2011):

Holding: Pretrial detainee’s challenge to state court’s reversal of double jeopardy relief was subject to de novo review under AEDPA’s section proving general grant of habeas authority.
U.S. v. Rabhan, 2010 WL 51113186 (5^th Cir. 2010):
Holding: Even though Defendant made false statements to two different banks in two different states to obtain loans, this was a single conspiracy and not two separate conspiracies.
U.S. Dudeck, 2011 WL 4478398 (6^th Cir. 2011):

Holding: Double Jeopardy Clause required remand for the trial court to determine whether possession of child pornography was a lesser-included offense of receipt of child pornography or whether the two arose from separate conduct.
U.S. v. Ehle, 89 Crim. L. Rep. 256, 2011 WL 1794828 (6^th Cir. 5/12/11):

Holding: Convictions for both receiving and possession of the same child pornography violates Double Jeopardy Clause’s ban on multiple punishments for a single offense.
U.S. v. Cureton, 94 Crim. L. Rep. 473 (7^th Cir. 1/13/14):

Holding: Law making it a crime to use a firearm in a crime of violence, 18 USC 924(c)(1), does not authorize multiple convictions for a defendant who commits two predicate offenses during one act with a single use of a single firearm; thus, Defendant could not be convicted of both attempted extortion and interstate communication of a ransom request where he held a gun to victim’s head and demanded she call relatives to obtain cash.
U.S. v. Emly, 95 Crim. L. Rep. 46 (8^th Cir. 4/3/14):

Holding: A defendant who copied the same images of child pornography onto three separate devices may be prosecuted for only one count of possession under 18 USC 2252(a)(4)(B), which makes it a crime to possess “1 or more” such items; this expresses Congress’ intent to include multiple materials in a single unit of prosecution, and is unlike 18 USC 2252A, which makes it a crime to possess “any” item of child pornography. The Gov’t could have charged multiple counts under 2252A but did not.
U.S. v. Muhlenbruch, 2011 WL 536493 (8^th Cir. 2011):

Holding: In case of first impression in 8^th Circuit, convictions both for knowingly receiving and possession of child pornography violated Double Jeopardy because possession was a lesser-included offense of receipt, and the offenses were based on the same act or transaction.
U.S. v. Mancuso, 2013 WL 1811276 (9^th Cir. 2013):

Holding: Where Defendant was charged with a single continuing offense of distributing cocaine over seven years, this was improperly duplicitous because Gov’t was required to charge his numerous separate acts of drugs sales separately since they were not sufficiently related to be a continuing distribution offense.
U.S. v. Alvarez-Moreno, 2011 WL 4069170 (9^th Cir. 2011):

Holding: Where Defendant had been convicted at a bench trial, double jeopardy barred him from being retried for failure to waive his constitutional right to a jury trial where Defendant had not moved for a new trial.
U.S. v. Jackson, 94 Crim. L Rep. 337 (10^th Cir. 11/26/13):

Holding: Even though Defendant caused two deaths when he was fleeing from a bank robbery, the unit of prosecution under 18 USC 2113(e) for “kill[ing] any person” while fleeing from a bank robbery was ambiguous, so the rule of lenity allows only one prosecution in this situation, not two.
U.S. v. Benoit, 2013 WL 1298154 (10^th Cir. 2013):

Holding: Conviction for both receiving and possessing child pornography violated Double Jeopardy.
Wood v. Milyard, 2013 WL 3369065 (10^th Cir. 2013):

Holding: Double jeopardy prohibits simultaneous conviction for first and second degree murder for death of a single victim.
U.S. v. Frierson, 2012 WL 5290330 (10^th Cir. 2012):

Holding: Where Defendant was convicted of both conspiracy to distribute and possession with intent to distribute, this violated Double Jeopardy’s prohibition on multiplicitous counts.
Haye v. U.S., 92 Crim. L. Rep. 794 (D.C. 3/14/13):

Holding: Separate convictions for unlawfully entering a building and criminal contempt for violation of an order to say away from the building violated Double Jeopardy.
U.S. v. Mendian-Santiago, 2012 WL 682460 (M.D. Fla. 2012):

Holding: Where Defendant had been convicted in Puerto Rico for a cocaine conspiracy involving distribution of cocaine in Florida, it violate Double Jeopardy to later charge the same conspiracy in Florida.
U.S. v. Cabrera, 2011 WL 2681248 (M.D. Fla. 2011):

Holding: Where Defendant was convicted on one theory of wire fraud, but such convictions were later set aside on grounds of insufficient evidence, double jeopardy barred prosecution under alternative theory of wire fraud.
U.S. v. Ocampo, 2013 WL 317621 (E.D. Mich. 2013):

Holding: Convictions for both felon in possession of firearm and being a drug user in possession of firearm violated Double Jeopardy.
U.S. v. Martinovich, 2013 WL 4881019 (E.D. Va. 2013):

Holding: In prosecution for engaging in a monetary transaction involving proceeds from a criminal offense, where funds in Defendant’s hedge fund were transferred from the fund to an investor in the fund as a redemption request, the issue of merger with the predicate offense arose, making it necessary to use the narrow definition of “proceeds” encompassing only actual profits from the criminal offense.
U.S. v. Salad, 2012 WL 6050326 (E.D. Va. 2012):

Holding: The different jurisdictional elements in the kidnapping statute and hostage taking statute indicate that Congress did not intend to punish them cumulatively under both provisions for Double Jeopardy purposes.
Ex parte T.D.M., 90 Crim. L. Rep. 202 (Ala. 10/28/11):

Holding: Even though as jury was leaving courtroom the foreperson told the judge that he had read the wrong form of “not guilty,” double jeopardy barred the judge from re-calling the jurors to announce a guilty verdict because the jury had already been discharged.
People v. Jones, 2012 WL 2345003 (Cal. 2012):

Holding: Defendant was subjected to impermissible multiple punishments for a single act when he was convicted of possession of a firearm by a felon, carrying a concealed weapon, and carrying an unregistered weapon.
Walker v. State, 2013 WL 5508541 (Ga. 2013):

Holding: Defendant could not be convicted of both felony murder (based on aggravated assault) and homicide by vehicle (based on reckless driving) from incident where Defendant hit and dragged a pedestrian, because one crime required criminal intent but the other criminal negligence.
Solomon v. State, 2013 WL 5302557 (Ga. 2013):

Holding: Defendant’s aggravated assault conviction for pointing gun at victim merged into his malice murder conviction for showing same victim.
Durden v. State, 2013 WL 2371806 (Ga. 2013):

Holding: Defendant could not be convicted of both malice murder and aggravated assault with a deadly weapon.
Garrett v. State, 992 N.E.2d 710 (Ind. 2013):

Holding: Where Defendant was originally charged with two counts of rape (that apparently involved the same criminal episode), but was originally acquitted of one count and the jury hung on the second, a reasonable probability existed that the State used evidentiary facts from the acquitted rape at the retrial to prove the second rape, and this violated the double jeopardy clause of the Indiana Constitution.
State v. King, 2013 WL 4041563 (Kan. 2013):

Holding: In prosecution for making a criminal threat, there is only one crime regardless of number of victims who perceived the threat, and multiple convictions based on number of victims was multiplicitous.
State v. Snellings, 2012 WL 1144318 (Kan. 2012):

Holding: The elements of two drug-related offenses were identical, requiring sentencing for the less severe offense.
Little v. Com., 2013 WL 6700106 (Ky. 2013):

Holding: Where the State had named two child victims in a charge, but instructed on only one of them at trial, the State abandoned the claims regarding the second victim and double jeopardy barred retrial regarding those claims.
State v. Fennell, 2013 WL 2121916 (Md. 2013):

Holding: Where jury sent note to judge that it intended to acquit Defendant of some charged, but had not agreed on what to do on others, there was no manifest necessity to declare a mistrial, so double jeopardy barred retrial.
Mansfield v. State, 90 Crim. L. Rep. 66 (Md. 9/30/11):

Holding: Where trial judge knew facts impairing his impartiality before the trial began, and then once trial was underway declared a mistrial over defense objection, a second trial is barred by double jeopardy.
Com. v. Suero, 2013 WL 2097368 (Mass. 2013):

Holding: Convictions for both “indecent assault and battery of a child under 14” and “statutory rape” were duplicative.
State v. Sahr, 2012 WL 1414306 (Minn. 2012):

Holding: Where a trial court’s dismissal of a complaint charging first-degree criminal sexual conduct constituted an acquittal on the merits after jeopardy had attached, double jeopardy protections precluded the reviewing court from considering the merits of the State’s claim that the defendant had a duty to bring a pretrial motion to dismiss the complaint.
State v. Jeffries, 2011 WL 4949993 (Minn. 2011):

Holding: Defendant did not forfeit his double jeopardy claim by entering into a second plea agreement where trial court rejected the original plea agreement following a presentence investigation.
State v. Martinez-Mendoza, 2011 WL 3820760 (Minn. 2011):

Holding: Jeopardy attached when Defendant pleaded guilty, and State could not later move to vacate the plea.
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. Huff, 2011 WL 376380 (Neb. 2011):

Holding: Under same elements test for double jeopardy, the possible predicates of a compound offense should not be incorporated into the offense when determining whether it contains elements that the other does not.
Woods v. State, 92 Crim. L. Rep. 468 (Nev. 1/17/13):

Holding: Where State failed to respond to a motion to dismiss filed by Defendant at a preliminary hearing, and instead dismissed the charges and refilled in another case, this necessitated dismissal of the case under Nevada’s “conscious indifference” doctrine and a second prosecution was not allowed due to the “willful failure of the prosecutor to comply with important procedural rules”; this was true even though the prosecutor in charge of the case apparently didn’t get notice of the motion to dismiss, although the prosecutor who appeared in court did.
State v. Tate, 2013 WL 5975988 (N.J. 2013):

Holding: Convictions for possession of weapon for unlawful purpose and for aggravated manslaughter merged because the evidence did not support the existence of another unlawful purpose for the weapon possession.
State v. Montoya, 2013 WL 2126472 (N.M. 2013):