Case Law Update: 2011-2014 Cumulative Edition

Holding: Evidence of Defendant’s “gothic” lifestyle was not admissible in murder prosecution where there was no nexus between victim’s murder and Defendant’s “gothic” beliefs or subculture.
State v. Louwrens, 2010 WL 4750078 (Iowa 2010):

Holding: Where officer made a mistake of law in stopping Defendant for a U-turn (which was legal), this was a 4^th Amendment violation and evidence of DWI found after the illegal stop had to be suppressed.
State v. Edgar, 92 Crim. L. Rep. 547 (Kan. 2/1/13):
Holding: Driver’s consent to take breath test was rendered invalid by Officer’s erroneous statement that Driver had no right to refuse.
Com. v. Canty, 94 Crim. L. Rep. 209, 2013 WL 5912050 (Mass. 11/6/13):

Holding: Although Officer can testify that Defendant-Driver appeared intoxicated, Officer cannot offer opinion that Driver’s intoxication impaired his ability to operate a car, because this was tantamount to an opinion that Defendant was “guilty” of DWI.
People v. Koon, 93 Crim. L. Rep. 275, 2013 WL 2221602 (Mich. 5/21/13):

Holding: State statute that makes it a crime to drive with any amount of marijuana in bloodstream is superseded by the state’s “medical marijuana” law for persons who are legally prescribed marijuana; however, medical marijuana law does not protect such persons from operating a vehicle “under the influence” of marijuana.
State v. Koppi, 89 Crim. L. Rep. 476 (Minn. 6/8/11):

Holding: Under Minnesota crime for refusal to take chemical test where Officer had probable cause to believe person was driving while intoxicated, jury instruction which states that “probable cause means officer can explain the reasons he believed it was more likely than not that defendant drove [impaired]”, was improper because it failed to require Officer to cite actual observations and circumstances; failed to require the jury to consider the totality of the circumstances from the viewpoint of a reasonable Officer; and erroneously defined probable cause as “more likely than not” rather than “an honest and strong suspicion.”
State v. Chavez-Villa, 92 Crim. L. Rep. 222 (Mont. 11/7/12):

Holding: Where State introduced a video of drunk driving Defendant that showed him taking field sobriety tests, this triggered the requirement that the State lay a foundation for reliability of the sobriety tests.
State v. Eigth Judicial Dist. Court of State ex rel. County of Clark, 2011 WL 6840685 (Nev. 2011):

Holding: Danger of unfair prejudice outweighed relevance of retrograde extrapolation from single blood sample taken two hours after accident in a DUI case.
People v. Smith, 90 Crim. L. Rep. 674 (N.Y. 2/16/12):

Holding: If a motorist insists on consulting a lawyer before agreeing to a chemical breath test, the police must warn him that a significant delay will be interpreted as a constructive refusal.
State v. Herring, 2010 WL 4904646 (Vt. 2010):

Holding: Exclusion of victim’s prior inconsistent videotaped statement as impeachment evidence in child sexual assault prosecution was error.
State v. Morales, 2012 WL 243576 (Wash. 2012):

Holding: State failed to prove that vehicular assault defendant, who was subject to a mandatory blood test, was actually read the required warning of his statutory right to have an additional test administered by a qualified person of his choosing, rendering the results of the test inadmissible.
People v. Bejasa, 2012 WL 1353122 (Cal. App. 2012):

Holding: A defendant’s estimation of time during a Romberg sobriety test, in which a police officer asked the defendant to close his eyes and estimate when 30 seconds had passed, was testimonial and thus covered by the defendant’s privilege against self-incrimination.
State v. Weber, 2013 WL 3239493 (La. App. 2013):

Holding: Officer did not have probable cause for to believe unconscious Defendant who was brought to hospital after car accident was the driver of the vehicle to support a blood draw, where the vehicle had other occupants and no one ever asked who the driver was, and even though another officer knew the car belonged to Defendant, that officer never told the Officer who did the blood draw.
Com. v. Gibson, 2012 WL 5936023 (Mass. App. 2012):

Holding: Jury instruction which told jurors that a person does not have to take a breath test suggested to jury that Defendant had refused to take a blood test and violated the privilege against self-incrimination.
People v. Washington, 2013 WL 1632694 (N.Y. App. 2013):

Holding: Even though Driver has already consented to a breath test for DWI, where their attorney then appears, police must make reasonable efforts to inform Driver of their counsel’s appearance if such notification will not substantially interfere with the timely administration of the test.
Prince v. Dept. of Motor Vehicles, 2011 WL 7975443 (N.Y. Sup. 2011):

Holding: Administrative Law Judge in license revocation violated due process due to bias when he offered, developed and coached Officers during the hearing to get them to show that arrestee was warned that her license would be suspended upon refusal to take BAC test.
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.
People v. Walters, 2010 WL 4976697 (N.Y. City Ct. 2010):

Holding: A statute requiring DWI defendants to finance installation of interlock device on their vehicles unless they could not afford to do so did not provide sufficient notice of punishment as required by due process, since the ultimate cost was determined by other administrators.
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.
State v. Newman, 2013 WL 2370589 (Or. 2013):

Holding: DWI requires proof that Defendant’s act of driving was volitional, and thus evidence that Defendant had suffered from “sleep driving” was relevant to whether Defendant was “conscious” at the time of driving.
State v. Almanza-Garcia, 2011 WL 1486076 (Or. App. 2011):

Holding: Admission of testimony of a diagnosis of child sexual abuse in the absence of physical evidence of abuse was plain error, even in a bench trial.

Escape Rule
Davidson v. State, 2014 WL 2922499 (Mo. App. S.D. 6/27/14):

Holding: Even though Movant failed to appear for sentencing, the “escape rule” does not bar postconviction claims that arise post-capture; thus, Movant can raise claim that trial court breached the plea agreement at sentencing, and that she was denied effective assistance at sentencing when counsel failed to object to the trial court not honoring the plea agreement or allowing Movant to withdraw her plea.
Kindler v. Horn, 89 Crim. L. Rep. 185 (3d Cir. 4/29/11):

Holding: Even though Pennsylvania court applied that State’s “escape rule,” that rule does not bar federal habeas review.

Evidence
State v. Porter, 2014 WL 3729864 (Mo. banc July 29, 2014):

Holding: The “corroboration rule” (which provided that an appellate court is to disregard sex victim’s testimony if contradictory and uncorroborated) and the “destructive contradictions doctrine” (which allowed an appellate court to disregard testimony relevant to an element of the crime if the testimony was inconsistent and contradictory) are abolished because they are inconsistent with the appellate standard of review, whereby the appellate court defers to factual findings of the trial court or jury.
State v. Ousley, 2013 WL 6822193 (Mo. banc Dec. 24, 2013):

(1) Even though trial court properly excluded certain defense witnesses in Defendant’s case-in-chief as a sanction for failing to timely disclose the witnesses, trial court abused its discretion in not allowing those witnesses to testify in surrebuttal after State presented rebuttal evidence, because surrebuttal witnesses need not be disclosed; and (2) even though Defendant’s defense was that he had consensual sex as a teenager with another teenager, trial court abused discretion in preventing Defendant from asking on voir dire whether jurors would consider the possibility or automatically rule out that two teenagers had consensual sex, because this did not seek a commitment but was necessary to uncover the bias of jurors who might punish all teenage sex, even though the law may allow it.

Facts: (1) Defendant was charged with forcible rape for rape of a teenage girl which happened on Dec. 26, 1999, when someone abducted Girl on a street and forced her to have sex. Defendant was arrested about 10 years later through a “cold hit” DNA match when samples found on Girl’s clothing matched Defendant. On the Friday before trial, Defendant moved to endorse three witnesses – his Mother, Grandmother and a medical records custodian – who would testify that in December 1999, Defendant was generally bed-ridden and could only walk around with difficulty, because of a shooting injury. Defendant’s defense was that, although he could not remember if he had sex with Girl, Defendant was very promiscuous and had sex with many girls, and if Defendant did have sex with Girl, it was consensual because he was not physically able to “force” anyone to have sex due to his injury. The trial court excluded Defendant’s Mother and Grandmother from his case-in-chief as a sanction for his late disclosure, but allowed the medical records. Defendant testified consistent with his defense. The State then called a treating Doctor in rebuttal to testify that Defendant would have been able to “get around” (wasn’t significantly disabled) in December 1999. Defendant then sought to call his Mother and Grandmother in surrebuttal, but the trial court continued to exclude them. (2) During voir dire by the Prosecutor, a juror asked if the Defendant and Girl were the same age, and the Prosecutor asked if juror would automatically say there could not be a rape if they were the same age. Later, defense counsel sought to ask jurors “whether they can consider the possibility or do they automatically rule out the possibility of two teenagers that had consensual sex.” The trial court would not allow this question on grounds that it sought a “commitment.”

Holding: (1) The purpose of surrebuttal is to give the defendant an opportunity to rebut the State’s rebuttal evidence. The disclosure obligations of Rules 25.03 and 25.05 do not apply to witnesses whose testimony will be in the nature of rebuttal or surrebuttal. These witnesses do not have to be endorsed. When offering Mother and Grandmother as surrebuttal, defense counsel explained that they would contradict the State’s rebuttal Doctor who testified that Defendant would have been able to get around (was not significantly disabled). Mother and Grandmother would have rebutted this crucial point of State’s rebuttal evidence, and corroborated Defendant’s testimony. Although there is no entitlement to surrebuttal as a matter of right, a trial court abuses discretion in denying surrebuttal where its decision is against the logic of the circumstances. Here, Defendant’s physical condition was the central issue in the case. Mother and Grandmother would have rebutted the State’s rebuttal Doctor with their personal observations that Defendant was unable to get around well. Their testimony was the best evidence Defendant could offer to corroborate his physical condition and his own testimony. Once the trial court admitted the State’s rebuttal evidence, its ability to exclude surrebuttal evidence was limited. Here, the trial court should have allowed Defendant to rebut the State’s evidence with Mother and Grandmother, who would have directly contradicted the rebuttal evidence and allowed Defendant to present a complete defense. Further, their testimony was not “cumulative” of Defendant’s testimony or the medical records because Mother and Grandmother’s testimony would have corroborated Defendant’s testimony and rehabilitated his credibility which was called into question by the rebuttal evidence. (2) In determining what questions to allow on voir dire, a court must strike a balance between competing mandates that “counsel may not try a case on voir dire” and that voir dire requires revelation of critical facts so that bias can be revealed. Here, the ages of Girl and Defendant as teenagers at the time of the offense was a critical fact that defense counsel should have been allowed to ask about. The State was allowed to essentially ask whether jurors would regard teen sex as consensual. Defendant sought to explore the opposite bias by asking if jurors would automatically think teen sex was not consensual. Some jurors may have believed that any sex between teens was such that a girl could never consent, but his is not the law. It was possible that Defendant and Girl had legal consensual sex. The question was designed to determine whether any jurors would find forcible compulsion as a foregone conclusion from the fact that both the alleged victim and Defendant were teenagers. Not every question that asks whether a juror would “automatically” decide something seeks a “commitment.” Here, the proposed question merely sought to ensure, in light of the critical facts of the case of the ages involved, that jurors could follow the law regarding sex among minors and would not impose legal consequences even if they believed the sex was consensual.
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. Clark, No. SC92003 (Mo. banc 5/1/12):

Even though Witness’ pending criminal case had been referred to drug court and Witness might never face sentencing, Defendant should have been permitted to cross-examine Witness about whether Witness hoped for leniency in testifying for the State, since this showed Witness’ bias.

Facts: Defendant was charged with murder. The State’s case rested on two witnesses with questionable credibility. At the time of trial, one “Witness” had been charged in an unrelated case, but that case had been referred to drug court for disposition. Before trial, Defendant had deposed Witness and knew that Witness would testify that he hoped for leniency in his own criminal case because of his testimony in Defendant’s case. At trial, Defendant sought to cross-examine Witness about this. However, the State objected on grounds that there was no deal in exchange for Witness’ testimony and since Witness’ case was in drug court, he might never face an actual sentencing so there was no expectation of leniency. The trial court sustained the objection. Defendant made an offer of proof and appealed.

Holding: A witness may be cross-examined by questions to test his credibility, and show bias and interest. The trial court relied heavily on the fact that there was no plea deal. But this reasoning fails to account for the subjective nature of “bias.” The term “bias” includes all varieties of hostility or prejudice, and includes all circumstances that make it probable that Witness potentially favors one side. Witness’ belief that he may get a more favorable outcome in his drug court case if he testified for the State may be mistaken or speculative, but what is important is what Witness believed. A reasonable jury could have concluded that Witness’ misplaced hope made him want to help the State. Reversed for new trial.

Cash LLC v. Askew, No. SC91780 (Mo. banc 1/17/12):

Holding: Where purported “records custodian” of successor bank was unable to testify to mode of preparation of records of prior bank because she didn’t know specifically how the records were prepared, the witness was not a proper “records custodian” for prior bank’s records and the wsrecords weren’t admissible under Sec. 490.680, even though the prior records were part of successor banks’ records.
State v. Brown, No. SC90853, 2011 WL 1885183 (Mo. banc 5/17/11):

Where during closing argument the State used a gun as demonstrative evidence to rebut Defendant’s defense theory, but there was no showing that the gun was similar to that used in the actual crime, the use of the gun was misleading to jurors and prejudicial.

Facts: Defendant was charged with murder. He claimed he shot victim in self-defense because victim had a gun in his pocket and was going to shoot Defendant. Various witnesses testified that victim had a gun in his pocket. However, no gun was admitted into evidence. During closing argument, the court, over defense objection, allowed the State to use a .38 revolver to demonstrate that the gun would not fit into the victim’s pocket. During jury deliberations, the jury asked to see this gun, but the court did not allow it because it hadn’t been admitted.

Holding: The State cannot use otherwise inadmissible evidence to rebut Defendant’s defense theory. When assessing the relevance of demonstrative evidence, the court must ensure that the evidence is a fair representation of what is being demonstrated. Here, the relevance of the .38 revolver was dependent on its physical similarity to the victim’s gun. If the .38 differed substantially in size or shape from the victim’s gun, then the weapon likely would be inadmissible because it did not constitute a fair representation of what is being demonstrated. Various cases have held that using dissimilar guns not connected to the offense as demonstrative evidence is improper. Here, the State did not show that .38 was similar to the size or shape of the victim’s gun. The .38 was misleading to jurors and prejudicial. Reversed for new trial.
State v. Winfrey, No. SC90830 (Mo. banc 4/12/11):

(1) Witness could be cross-examined on whether he told another person that he committed the crime because this is impeaching; and (2) evidence of other bad acts that occurred after the crime or that were not connected to Defendant were irrelevant.

Facts: Defendant was charged with first degree murder and robbery. At trial, the State called Witness (Lewis) to testify about getting a gun for Defendant. On cross-examination, the defense sought to ask Witness if Witness told a third-party (Reynolds) that Witness shot the victim. The defense knew through discovery that Witness had said this, and made an offer of proof on it. The trial court refused to admit this because it was “hearsay.” Also at trial, the trial court admitted various evidence of other bad acts, which the State claimed showed motive.

Holding: (1) As an initial matter, if defense counsel had merely rephrased his question as “did you shoot the victim?” there would have been no hearsay problem. However, although Witness’ (Lewis’) out-of-court statement to prove the truth of the matter asserted is a hearsay use of the evidence, the evidence was admissible for the non-hearsay purpose of impeaching Witness’ (Lewis’) credibility. A hearsay statement is an out-of-court statement used to prove the truth of the matter asserted; hearsay is generally inadmissible. However, if the statement is independently admissible for some other purpose, then the statement is not hearsay. A witness can be asked if he admitted committing a crime to attack his credibility. Even if Witness’ statement was untrue, it is still relevant for impeachment. The fact that Witness would falsely claim that he committed the murder for which Defendant was on trial affects his credibility. If Witness is willing to lie about committing the crime in the very case in which he is testifying, Witness might be equally willing to testify untruthfully about other matters in the case. The statement also shows Witness’ interest in testifying against Defendant. (2) The trial court admitted evidence that Defendant stole furniture, fraudulently obtained utilities and wrote bad checks after the murder. The State claimed this showed his motive because he was having financial problems and committed the murder and robbery to get money. However, the fact that Defendant had financial problems after the murder and robbery is not probative to his motive to commit crimes that have already occurred. The State also presented evidence that Defendant’s car was broken into and his apartment above the murder scene were broken into. However, this evidence was irrelevant because it did not tend to prove or disprove any fact at issue. Reversed for new trial.
State v. Brown, 2014 WL 6464568 (Mo. App. E.D. Nov. 18, 2014):

(1) Sec. 570.020(1) regarding value (for determining if stealing is a felony or misdemeanor) abrogates prior case law holding that where property is secondhand, proof as to its cost and its length of use may be used to show value; instead, Sec. 570.020(1) requires that “value” be the market value of the property at the time and place of the crime, or if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the crime; even though stolen television cost $749 when new in 2008, where it was stolen in 2011 and pawned for $140, evidence was insufficient to prove value was over $500 to support felony stealing; (2) Even though church sacristy was generally not open to the public, evidence was insufficient to convict of burglary of sacristy where sacristy was open to persons who wanted to speak to a priest and did not have a sign that indicated it was private or that no admittance was allowed; and (3) where Defendant was on trial for burglary of a church on June 18, trial court erred in admitting evidence that Defendant was suspiciously at a second church on June 21 because this was improper propensity evidence.