Case Law Update: 2011-2014 Cumulative Edition

Holding: Double jeopardy barred convictions for both voluntary manslaughter and causing great bodily harm by shooting at a vehicle.
State v. Gonzales, 93 Crim. L. Rep. 18 (N.M. 3/28/13):

Holding: Where State fails to join all possible charges arising from a single incident, Double Jeopardy bars subsequent prosecution of charges not brought; here Defendant was acquitted of child endangerment and State subsequently tried to prosecute her for vehicular homicide from same incident.
State v. Gallegos, 89 Crim. L. Rep. 618 (N.M. 6/15/11):

Holding: Whether multiple conspiracy counts arising out of the same facts constitute double jeopardy is an issue of law for the court to decide, not a matter for the jury to decide as factfinder.
State v. Gutierrez, 89 Crim. L. Rep. 420 (N.M. 5/24/11):

Holding: Convictions for both robbery and carjacking violated double jeopardy’s ban on multiple punishments for same offense.
People v. Gause, 2012 WL 1986507 (N.Y. 2012):

Holding: Where jury was instructed that it could convict of only one of two offenses which were submitted in the alternative (but jury convicted of both), the conviction on depraved indifference murder amounted to an implied acquittal of intentional murder for Double Jeopardy purposes.
State v. Hampton, 92 Crim. L. Rep. 304 (Ohio 12/2/12):

Holding: Where trial judge acquitted Defendant on the basis of the State’s failure to establish venue, State could not appeal.
State v. Manatau, 94 Crim. L. Rep. 711 (Utah 3/7/14):

Holding: Where Defendant objects to a mistrial, the State has the burden of persuading a trial judge that there are reasonable alternatives so as to avoid triggering a double jeopardy bar; if the trial judge has not adequately justified terminating the proceeding, the State – not the defendant – must alert the court to the problem; “we do not require defense counsel to help pave the way for their clients to be subjected to jeopardy for a second time.”
State v. Prion, 91 Crim. L. Rep. 70 (Utah 3/20/12):

Holding: Double jeopardy prohibited an increase in Defendant’s sentence at a resentencing after he had been found “guilty [but] mentally ill.”
Bowlsby v. State, 2013 WL 2501758 (Wyo. 2013):

Holding: Convictions for both incest and first degree sexual abuse of a minor arising out of the same act violated double jeopardy.
People v. Aranda, 2013 WL 4855952 (Cal. App. 2013):

Holding: Under Calif. Constitution, when a jury indicates that Defendant is not guilty of a greater offense, but is deadlocked only on the lesser offense, the court must give the jury the opportunity to return a verdict acquitting of the greater before a mistrial can be declared, and if court does not do so, the mistrial is deemed to be without legal necessity as to the greater, and double jeopardy precludes retrial on that offense (disagreeing with U.S. Supreme Court in Blueford v. Arkansas).
People v. Mason, 160 Cal. Rptr.3d 516 (Cal. App. 2013):

Holding: (1) Trial court erred in omitting a jury instruction for offense of failure to register as sex offender that the State prove that the prior spousal rape conviction involved force or violence, since this was an element of the crime here; (2) Because the evidence was insufficient to prove that the prior conviction involved force or violence, Defendant could not be retried for failure to register on the basis of the conduct at issue in the present case.
People v. Nunez, 2012 WL 5270177 (Cal. App. 2012):

Holding: Conviction for striking a motorist and stealing a car were indivisible and violated statutory prohibition against multiple punishments for an indivisible course of conduct.
People v. Eroshevich, 2012 WL 4962999 (Cal. App. 2012):
Holding: Where trial court in ruling on a new trial motion precisely stated that the evidence was insufficient to establish the charged conspiracy, double jeopardy precluded retrial on the charge even if trial court may not have intended to find the evidence insufficient or such a finding was legally erroneous.
People v. Daniels, 145 Cal. Rptr. 3d 33 (Cal. App. 2012):

Holding: A defendant’s increased fine and restitution after a new trial violates Double Jeopardy only if the aggregated monetary sentence, not each component thereof, is greater than that originally imposed.
People v. Wensinger, 2012 WL 718548 (Cal. App. 4^th Dist. 2012):

Holding: The double jeopardy clause required a trial court to review the sufficiency of the evidence at the defendant’s first trial before retrying him on a criminal threat charge because, even though sufficiency of evidence was not an issue on appeal, the Attorney General conceded that the charge was supported by insufficient evidence.
People v. Phong Bui, 2011 WL 505353 (Cal. App. 2011):

Holding: Defendant cannot be convicted of both attempted murder and mayhem for firing the shots because this violates statutory prohibition against multiple punishments for crimes arising from same course of conduct.
People v. Duarte, 2010 WL 4629071 (Cal. App. 2010):
Holding: Defendant could not be punished for street terrorism in addition to underlying crime of discharging a firearm with gross negligence, since this violated statutory prohibition against multiple punishment for single course of conduct.
People v. Zadra, 2013 WL 5761415 (Colo. App. 2013):

Holding: Plain error review applied to claim that seven perjury convictions and one official misconduct conviction were multiplicitous.
Neal v. State, 2013 WL 1316692 (Fla. App. 2013):

Holding: The Florida statute governing offense of fraudulent use of a credit device requires consolidation of all unauthorized uses of the same card within 6 months into a single offense; the Florida statute is based on a Model Act, which was designed to distinguish between petty and more major criminal acts.
Losh v. State, 2011 WL 13729 (Fla. Ct. App. 2011):

Holding: Where plea agreement was silent as to whether Defendant had to serve mandatory minimum term and this was discretionary with prosecutor, court violated double jeopardy by sentencing Defendant without a minimum term and then a few days later entering a new sentence pronouncing a minimum term.
State v. Davenport, 2013 WL 3330505 (La. App. 2013):

Holding: Trial judge’s grant of a mistrial following a grant of a motion for judgment of acquittal violated double jeopardy.
Savage v. State, 2013 WL 2338469 (Md. Spec. App. 2013):

Holding: Defendant’s two convictions for conspiracy to commit burglary violated Double Jeopardy where State did not advance a two-conspiracy theory at trial, and jury was not instructed that it could not find two conspiracies unless it was convinced beyond a reasonable doubt of two separate agreements.
People v. Sanders, 2011 WL 4638751 (N.Y. App. Div. 2011):

Holding: Defendant’s prior conviction for second degree assault barred a later prosecution for first degree assault based upon the same incident, even though it was based on a jurisdictionally defective information.
State v. McKenzie, 2012 WL 149750 (N.C. App. 2012), writ allowed, 2013 WL 257378 (N.C. 2013):

Holding: Even though a 1-year suspension of trucker’s commercial license was “civil,” the 1-year suspension period was more punitive than remedial and promoted retribution and deterrence, and therefore a subsequent criminal prosecution for DWI violated Double Jeopardy.
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.
Barnard v. State, 2012 WL 5356320 (Okla. Crim. App. 2012):

Holding: Convictions for both making a lewd proposal to a child and using a computer to commit a felony violated Double Jeopardy since they were identical crimes arising from the same conduct.
Com. v. Anderson, 2011 WL 5235232 (Pa. Super. 2011):

Holding: Where prosecutor acted intentionally and improperly to prejudice defendant’s right to a fair retrial, a retrial was barred by double jeopardy.
Com. v. Jackson, 2010 WL 4970197 (Pa. Super. 2010):

Holding: Double jeopardy prohibits prosecution for trespass that had previously been subject of indirect criminal contempt.
Ex Parte Milner, 2013 WL 518496 (Tex. App. 2013):

Holding: Separate convictions for attempted capital murder involving multiple victims in same course of conduct violated Double Jeopardy.
State v. Davis, 2013 WL 5883767 (Wash. App. 2013):

Holding: Convictions for second degree assault with a deadly weapon merged with convictions for second degree kidnapping based on pointing gun at victims.
State v. Morales, 2013 WL 1456939 (Wash. App. 2013):

Holding: Even though Defendant made two different communications on two days that he was going to kill the mother of his children, this was a single unit of prosecution for felony harassment, because the harassment statute focused on the threat to a victim, not the number of persons who might learn of the threat or communicate it to the victim.

DWI
Doughty v. Director of Revenue, 387 S.W.3d 383 (Mo. banc 2013):

Holding: (1) Driver has a due process right to confront and cross-examine witnesses at a civil trial to revoke license; but (2) even though Director did not call arresting officer to testify at civil trial to revoke license, Sec. 302.312 authorizes admission of certified copies of the Director’s records (which includes police reports, BAC reports, and driving records) and if Driver wished to cross-examine the officer at issue, Driver could have subpoenaed him because he was equally available to both parties; (3) Sec. 302.312 does not violate due process since Driver can subpoena witnesses he wishes to cross-examine.
State v. McNeely, 358 S.W.3d 65 (Mo. banc 1/17/12):

The 4^th Amendment prohibits a non-consensual blood draw without a warrant in routine DWI arrest cases; the fact that alcohol may dissipate in blood over time does not justify a non-consensual blood draw without a warrant; exigent circumstances must exist (e.g., accident or injury) in order to do a warrantless blood draw.

Facts: Defendant, who was stopped for speeding, displayed classic characteristics of DWI and failed field sobriety tests. Defendant refused to consent to a breath test or blood test. Officer, believing that changes in Sec. 577.041 RSMo. Supp. 2010, now allowed a warrantless blood test, took Defendant to a hospital and had blood drawn. Defendant moved to suppress the blood test.

Holding: Schmerber v. California, 384 U.S. 757 (1966), held that a warrantless blood draw requires that there be “special facts” that might lead an officer to reasonably believe he was faced with an emergency situation in which delay in obtaining a warrant would lead to destruction of evidence. Schmerber involved an injury accident in which the officer had to investigate the accident and take defendant to the hospital, thus reducing time to get a warrant. Here, the issue before the court is whether the natural dissipation of blood-alcohol evidence alone is a sufficient exigency to dispense with the warrant? It is not under Schmerber. Officers must reasonably believe they are confronted with an emergency where the delay in obtaining a warrant would threaten destruction of evidence. In routine DWI cases, in which no special facts other than natural dissipation of alcohol in blood exist, a warrant must be obtained before blood can be drawn. Here, this is a routine DWI case with no special facts. Hence, a motion to suppress should be granted. Because the warrantless blood draw violated the 4^th Amendment, the court need not address the State’s arguments based on the implied consent law. State v. Ikerman, 698 S.W.2d 802 (Mo. App. 1985) and State v. Setter, 721 S.W.2d 11 (Mo. App. 1986)(holding that warrantless blood draws are permissible in DWI cases) are no longer to be followed.
Shaefer v. Koster, No. SC91130 (Mo. banc 6/14/11):

Holding: (1) Criminal defendant cannot bring declaratory judgment action to challenge constitutionality of statute under which they are charged because there is an adequate other remedy, i.e., to raise the alleged unconstitutionality in their criminal case; (2) Sec. 516.500 which places a time limit on when a person can challenge the constitutionality of a statute does not apply to a criminal defendant who raises a challenge to the statute as a defense to the criminal case.

Editor’s Note: The dissenting opinion would allow the declaratory judgment action and would find that the 2008 version of Sec. 577.023.16 which enacted certain DWI penalty enhancements (since repealed and replaced by a new statute) violates the Missouri Constitution’s prohibitions about clear title, original purpose and single subject, Art. I, Secs. 21 and 23, Mo.Const. The bill’s title dealt with “watercraft,” the bill was originally only about “watercraft” and adding DWI provisions violated the title, original purpose and single-subject provisions. The majority opinion did not reach the merits of the case.
State v. Collins, No. SC90839 (Mo. banc 1/11/11):

Where State failed to properly prove up Defendant’s prior DWI convictions at bench trial before sentencing, this was a failure of proof that Defendant was a “chronic offender,” and State could not offer additional evidence upon remand for resentencing to prove the prior offenses.

Facts: Defendant was charged with DWI as a “chronic offender” with having multiple prior DWI convictions. He had a bench trial. As evidence of prior convictions, the State offered a copy of Defendant’s driving record showing prior DWI convictions. The exhibit did not specify whether Defendant was represented by counsel or waived counsel in the prior proceedings.

Holding: Defendant claims the trial court plainly erred in finding he was a “chronic offender” because the State did not properly prove up his prior convictions. Sentencing a defendant to a term greater than the maximum allowable punishment constitutes plain error. At the time of Defendant’s conviction, Sec. 577.023.1(3) required the State to prove that Defendant had counsel or waived counsel in his prior offenses. Under Section 577.023.9, the presentation of evidence and court findings on the prior offenses must be done prior to sentencing. Here, the State concedes there was no evidence about representation by or waiver of counsel. However, the State contends it should be permitted to present such evidence on remand. This Court has rejected this contention in a jury trial context. The question is whether the rule should be different in a bench trial context. It should not. Allowing the State to present new evidence of prior convictions would give the State two bites of the apple. Under the timing requirements of the statute, the State is foreclosed from offering additional evidence at resentencing. The State argues that if the case is remanded for resentencing, then it is still “prior to sentencing” so that the State can present additional evidence. But this does not comport with the plain language of the statute, which makes no mention of vacated sentences. Remanded for resentencing as Class B misdemeanor.
McPhail v. Director of Revenue, 2014 WL 7157005 (Mo. App. E.D. Dec. 16, 2014):

Where Director submitted its license revocation case entirely on written AIR reports and narratives, and those were ambiguous as to whether Driver had unequivocally refused to take a chemical test, there was not substantial evidence to support revocation of license.

Discussion: Sec. 577.041.1 states that where Driver requests to contact an attorney, he must be allowed a 20-minute period to do so. Once that period expires, if Driver continues to refuse a test, it shall be deemed a refusal. Here, the written reports on which the case was tried state that Driver’s 20-minute period for contacting an attorney began at 11:33 p.m., that Driver did contact an attorney, but also that Driver’s refusal occurred at 11:33 p.m. It is unclear whether Driver’s refusal occurred after being given an opportunity to contact an attorney. The Director bears the burden to show refusal. There is no legal principle or presumption that allows a court to divine the Officer’s meaning or to supply clarification where the reports create ambiguity. Where Director has presented no live Officer testimony to explain the meaning of the reports, a court cannot be an advocate for the Director and supply the missing information, since Director has the burden of proof in the first place. Trial court’s judgment revoking license is unsupported by substantial evidence.
Gannon v. Director of Revenue, 2013 WL 5726014 (Mo. App. E.D. Oct. 22, 2013):

Holding: (1) Where Director presented substantial evidence that Driver was intoxicated, and requested written findings about any indicia of intoxication that the trial court did not believe, but trial court merely checked a box of a standard form finding no probable cause to arrest for DWI based on insufficient evidence, trial court’s judgment reinstating license is reversed because trial court did not make any finding regarding credibility (or incredibility) of Director’s evidence, and Director presented sufficient evidence to prove probable cause to arrest for DWI. (2) Defendant’s motion for “directed verdict” was inapplicable in a court-tried case, but Defendant’s motion should have been treated as a motion for judgment under Rule 73.01(b) on grounds that the facts and law did not show that Director was entitled to relief. But (3) where after making a “motion for directed verdict,” Defendant said he wanted to call an expert, but court said he “won’t have to worry about that” and did not appear to rule on the motion (which should have been under 73.01(b)), case must be remanded for new trial to allow Defendant opportunity to rebut State’s case with his expert testimony, since record is unclear if Defendant was denied right to present defense.
Tweedy v. Director of Revenue, 2013 WL 4715669 (Mo. App. E.D. Sept. 3, 2013):

(1) There is no presumption of validity in Director’s evidence, and trial court is free to disbelieve it. (2) Even though Defendant admitted after his arrest that he was drunk driving, Director could not use this admission of party-opponent for purposes of proving if there was probable cause to arrest, because probable cause must be based on information known to Officer at time of arrest, not acquired after the fact; (3) Even though a driver usually has burden to subpoena law enforcement officers if the driver wishes to cross-examine them, where Director subpoenaed Officer, who then failed to appear, Driver was denied his right to confrontation through no fault of his own; and (4) Director was not permitted to call Driver as witness because even though license-suspension proceeding was civil, a witness has a constitutional right not testify against himself in a civil matter where his answers might incriminate him in a future criminal proceeding.

Facts: Deputy Hoelzer received a call about a DWI, and went to a vehicle scene. There, Deputy Burkard told Hoelzer that Driver was driving the car. Driver failed various sobriety tests and his BAC was .185. In a post-arrest interview, Driver admitted he was driving. Director suspended Driver’s license. Driver demanded a trail de novo. At trial, Driver objected to Hoelzer’s arrest narrative that contained “double hearsay,” i.e., that Burkard told Hoelzer he had witnessed Driver driving. Although Director had subpoenaed Burkard, Burkard failed to appear. Director tried to call Driver to testify to admit he was driving, but the trial court refused to allow it. Director then stated he did not intend to present live testimony and submitted the case on the records under Sec. 302.312.1. Exhibit A was Hoelzer’s arrest narrative. Exhibit B was an undated, unsigned narrative that contained information about the traffic stop that was inconsistent with the information in Exhibit A. The trial court found Exhibit B to be not credible and “fiction,” and was “offended” that the Sheriff’s office would submit it rather than provide live testimony. The court then sustained the “double hearsay” objection regarding Exhibit A and found that without this evidence, Director failed to prove there was probable cause to arrest Driver for driving with a BAC of .08 or more, and reinstated license. Director appealed.

Holding: (1) There is no presumption of validity of Director’s evidence, and trial court was free to disbelieve it. Director had to prove that arresting officer had probable cause to arrest for DWI, and that Driver’s BAC was .08 or more. There is no dispute about the BAC. Director is correct that it is not necessary for Officer to observe the person driving the vehicle. Rather, Officer may rely on information from police dispatch or other witnesses. Thus, the trial court should not have sustained the “double hearsay” objection to Burkhard’s statement in Exhibit A. However, this error was harmless here because Exhibit B was intended by Director, in essence, to serve as the foundation for the “double hearsay” in Exhibit A. However, the trial court found Exhibit B to be a “fiction” and not credible. If Driver disputes Director’s evidence “in any manner,” the trial court has the right to disbelieve it. Here, Driver disputed Director’s evidence by pointing out inconsistencies in Exhibits A and B. Appellate court defers to trial court’s credibility determination. (2) Director argues that the trial court erred in not considering Defendant’s post-arrest admission for purposes of determining whether he was driving because this was an admission of a party-opponent, which is an exception to hearsay. However, probable cause to arrest must be based on information officer had at time of arrest, not on information acquired after the fact. (3) Director argues that if Driver wanted to cross-examine Burkard, Driver was required to subpoena him. While the language of Doughty, 387 S.W.3d 383 (Mo. banc 2013), places the initial burden to subpoena on Driver, Doughty did not answer whether Driver may rely on Director’s subpoena of same witness. When Director agrees to undertake such responsibility, Driver may rely on it. Here, Director did not attempt to enforce his subpoena when Burkard failed to appear, but instead submitted Exhibit B. Driver was denied his right to confrontation through no fault of his own. (4) Director contends that he should have been allowed to call Driver to testify that he was driving. However, even though a license suspension trial is civil, a witness has a right not to testify against himself in a civil proceeding where his answers might incriminate him in a future criminal proceeding, here DWI.
O’Rourke v. Director of Revenue, No. ED98949 (Mo. App. E.D. 6/25/13):