Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant was charged with attempted stealing. As part of his defense, he sought to introduce his medical records with a business records affidavit. The prosecutor objected to the records in front of the jury as “simply a way to avoid the defendant testifying.” Defense counsel objected as violating defendant’s rights not to testify and requested a mistrial, which the trial court overruled.

Holding: A direct reference to a defendant’s failure to testify violates the rights of freedom from self-incrimination and right not to testify under the 5^th and 14^th Amendments, and Art. I, Sec. 19 Mo. Const. A “direct reference” uses words such as “testify,” “accused” and “defendant.” Here, the prosecutor’s speaking objection in front of the jury was egregious because there had been a prior bench conference about the records at which the State had made an objection that had been overruled. The objection in front of the jury may have prejudiced the jury against Defendant for using the medical records rather than testifying himself. Reversed for new trial.
State v. Moore, No. ED95643 (Mo. App. E.D. 11/8/11):

(1) Even though Defendant was charged with driving while revoked in addition to assault on a law enforcement officer and a drug offense, admission of Defendant’s full driving record showing 22 driving offenses spanning more than 20 years violated his right to be tried only for the crime charged; and (2) where Defendant receives an SIS on an offense, he cannot direct appeal because there is no final judgment, but a remedy may be available by writ.

Facts: Defendant was charged with driving while revoked, assault on a law enforcement officer, and a drug offense all stemming from a traffic stop. At trial, the State sought to admit Defendant’s full driving record which contained 22 driving offenses over more than 20 years, including DWI and other offenses. The State claimed this was necessary to show Defendant’s “knowledge” that he was driving with a revoked license. Defendant moved to exclude the full driving record, and offered to stipulate to all elements of the driving while revoked charge. The trial court admitted the full driving record.

Holding: Admission of the full driving record spanning more than 20 years violated Defendant’s right to be tried only for the crime charged under Art. I, Secs. 17 and 18(a) of the Missouri Constitution. In order for intent, absence of mistake, or knowledge to serve as a basis for admission of prior bad acts, these must be controverted issues in the case. Here, Defendant never asserted that he didn’t know his license had been revoked. In fact, in his opening statement, he conceded he was guilty of driving while revoked, though not the other offenses. Therefore, his knowledge or intent were not issues, and evidence of his prior convictions were not admissible. (Defendant did not testify at trial.) Defendant was prejudiced because the State used his lengthy driving record to argue for conviction on all offenses. The State argued that it was “most troubling” that Defendant had 22 prior offenses, and “[i]t is time when we deal with this defendant to move beyond passing out traffic tickets because he’s moved beyond that … [Y]ou need to find him guilty of everything else, too.” Convictions for assault on law enforcement officer and drugs reversed and remanded for new trial.
State v. McArthur, No. ED95094 (Mo. App. E.D. 7/5/11):

Holding: Where Defendant charged with sodomy had a bifurcated trial, State may present in penalty phase testimony of a prior sexual assault victim of Defendant about that prior bad act.

Editor’s Note: An interesting dissenting opinion argues that State went too far in being allowed to present prior victim and then argue jury should impose maximum sentence to avenge prior victim’s assault, since that was not the subject matter of this particular case.
John Doe v. Roman Catholic Diocese of St. Louis, No. ED94720 (Mo. App. E.D. 7/5/11):

Holding: Alleged “grooming” of a victim to engage in sexual abuse does not constitute sexual abuse itself.
State v. Eisenhour, 2013 WL 5710545 (Mo. App. S.D. Oct. 21, 2013):

As matter of first impression, numeric results of Pre-arrest Portable Breath Test are not admissible as “exculpatory evidence” under Sec. 577.021.3.

Facts: Defendant was stopped for DWI, and failed several field sobriety tests. Defendant had alcohol on breath, and said he also had taken some pills and K2. He was given a pre-arrest portable breath test (PBT), which result was .002% BAC. He sought to use this test result at trial as exculpatory evidence, but the trial court excluded it. This test is not the same as a “Data Master” test at the police station, which is certified and calibrated. After conviction, he appealed.

Holding: Sec. 577.021 says a PBT “shall be admissible as evidence of probable cause to arrest and as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content.” While a positive PBT is admissible to show whether there is probable cause to arrest, the statute demonstrates that the legislature had forbidden the test to be used to prove intoxication, because the PBT test is “too unreliable” to be used for that purpose. No case interprets what the statute means when it states that the result may be admissible as “exculpatory evidence.” The State argues that the presence or absence of alcohol as indicated by the PBT is admissible under the statute, but not the numeric value itself because the legislature has found that the numeric value is “too unreliable” for that purpose. Appellant makes no statutory construction argument or other argument supporting the converse of this issue. An appellate court will not speculate on arguments that could be raised or become an advocate for Appellant. Thus, judgment excluding PBT numeric value is affirmed.
State v. Brown, No. SD30787 (Mo. App. S.D. 11/18/11):

Holding: Where Defendant was charged with resisting arrest, testimony about his uncooperative demeanor at the police station after the arrest and at the station where he called an officer a “bitch” was not relevant to proof of resisting arrest (but was not prejudicial under the facts here).
State v. Thieman, No. SD30818 (Mo. App. S.D. 11/10/11):

Holding: Where Defendant’s prior guilty plea had been withdrawn, his statements made in a SAR (sentencing assessment report) could not be used by the State at his trial because Rule 24.02(d)(5) provides that “evidence of a guilty plea, later withdrawn, or an offer to plead guilty …, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers is not admissible in any civil or criminal proceeding against the person who made the plea or offer.”
State v. Walter, 2014 WL 4976913 (Mo. App. W.D. Oct. 7, 2014):

Prosecutor’s powerpoint slide during closing argument showing Defendant in jail clothes with word “GUILTY” superimposed across face violated right to fair trial and Prosecutor’s duty to seek justice (but not plain error where counsel failed to timely object and request mistrial, and evidence of guilt overwhelming.)

Facts: During closing argument, the Prosecutor displayed a powerpoint slide of Defendant dressed in jail clothes with the word “GUILTY” superimposed across his face. However, defense counsel, who was listening to closing argument, failed to see the slide at the time or object. Defense counsel learned of the slide during jury deliberations, but did not object until after the jury returned a guilty verdict.

Holding: A defendant cannot be forced to appear in front of the jury in jail clothing because this disparages the presumption of innocence and a fair trial. Although Defendant wore street clothes at trial, the powerpoint slide had the same effect as making him appear in jail clothing. The word “GUILTY” across his face further disparaged the presumption of innocence. “It defies logic why even an overzealous prosecutor” would do this. Prosecutors have a duty to serve justice, not just win a case. Prosecutors have a duty to see that defendants receive a fair and impartial trial. There was “no rational justification for the prosecutor’s use of the mug shot during closing argument.” Nevertheless, defense counsel chose to wait to object until after the jury returned a guilty verdict, even though counsel knew of the slide during jury deliberation. A party cannot fail to request relief, gamble on the verdict, and then if adverse, claim error. Also, the evidence of guilt is overwhelming here, so conviction affirmed.

Holding: (1) The State argues that since proffered Witness had only spoken with at most 10 people about victim’s reputation for truthfulness, this was not sufficient to show victim’s reputation in the community. However, whether the knowledge of a character witness is based on much or little evidence affects the weight of the evidence, not its admissibility. Here, the test for admissibility was met since Witness was familiar with community members who knew victim, had spoken to those people or overheard their conversations regarding victim’s reputation for truthfulness, and that victim had reputation as being untruthful. The trial court abused its discretion in excluding Witness, but error was not prejudicial here since jury heard other evidence that victim was untruthful. (2) Reading Secs. 557.011, 559.021.2 and 559.100.2 together, a trial court cannot simultaneously order imprisonment for a felony and payment of restitution. Restitution can only be ordered if the defendant is placed on probation. Since Defendant was sentenced to prison and it is clear that trial court would not have sentenced to probation here, appellate court strikes order of restitution.
State v. Mignone, 2013 WL 5712452 (Mo. App. W.D. Oct. 22, 2013):

(1) As matter of first impression, standard of appellate review for dismissal of DWI charge pursuant to Sec. 577.037.5 is whether the trial court’s dismissal was “clearly erroneous”; (2) State bears burden of persuasion and burden of proof regarding a motion to dismiss under the statute; and (3) where properly administered breath test showed Defendant had a BAC of less than .08, trial court did not clearly err in sustaining a motion to dismiss, even though tests took place an hour or more after Defendant’s arrest.

Facts: Defendant was arrested for DWI at 3:06 a.m. He was administered a proper breath test at 4:38 that showed a BAC of .075%. He was administered a second test at 5:46 that showed a BAC of .051%. Defendant moved to dismiss under Sec. 557.037.5 on grounds that his BAC was less than .08%. The trial court dismissed. The State appealed.

Holding: Appellate courts have not heretofore promulgated a standard of review for reviewing dismissals pursuant to Sec. 577.037.5. The standard of review is whether the dismissal was “clearly erroneous.” The appellate court will reverse only if left with a “definite and firm impression that a mistake has been made.” Sec. 577.037.5 provides that where a Defendant shows that his BAC was less than .08%, his case “shall” be dismissed unless (1) there is evidence that the BAC test was unreliable, (2) there is evidence that Defendant was under the influence of drugs, or (3) there is substantial evidence of intoxication from physical observation of witnesses. Dismissal is the default position. Unlike an ordinary motion to dismiss where the defendant has the burden of persuasion, the clear implication of the statute is that the State has the burden of production and persuasion. Here, the State apparently argues that the dismissal was unwarranted because Defendant’s blood alcohol content was in decline since the time of his arrest. However, the State did not present any expert testimony that this would be the case, and this is not subject to lay opinion. The trial court was free to accept or reject the testimony presented by the State, and chose to reject it. It was not necessary for Defendant to present evidence, and he contested the State’s case via cross-examination. There was no evidence of erratic driving or evidence of intoxication. Dismissal affirmed.
State v. Stallings, 2013 WL 4520019 (Mo. App. W.D. August 27, 2013):

Even though Sec. 569.080.3 allows in tampering cases the admission of evidence that a defendant unlawfully possessed a stolen car on a prior occasion, trial court abused its discretion in allowing Prosecutor to cross-examine Defendant about details of his prior convictions for stealing cars, because this was improper propensity evidence since it was not sufficiently similar to the charged offense.

Facts: Defendant was stopped on a highway driving a stolen car. At trial, Defendant testified that he did not know the car was stolen. Defendant testified that he had prior convictions for stealing by deceit and tampering. Over defense objection, the Prosecutor was allowed to question Defendant about details of the offenses, including that one involved stealing cars from car dealerships and another involved stealing from a rental car company. The State argued these details were admissible because they showed a “pattern.” In closing argument, the State argued that defendant “has done it before, and did it again.”

Holding: Prior criminal acts are not admissible for purposes of proving propensity. However, the State may use prior convictions to establish motive or intent. Here, Defendant claimed he did not know the car was stolen, so intent was at issue. Sec. 569.080.3 allows past acts of tampering to be used to establish the intent element of first-degree tampering. We interpret this statutory provision to be consistent with case law recognizing that evidence of uncharged bad acts may be relevant to show the defendant’s state of mind. The evidence here, however, does not fall under this exception. The State did not elicit details of other crimes for the purpose of showing knowledge. For example, the State failed to adduce any evidence demonstrating that in the prior cases the vehicles stolen from dealerships had the same distinctive key tags, lacked a temporary or permanent license, or lacked registration or title, as here. If Defendant’s prior offenses had involved such circumstances, his earlier convictions could arguably have defeated his claim of innocent state of mind. The evidence admitted, however, showed his prior offenses involved car dealerships and rental agencies, which lent itself to an argument based only on a “pattern” of similar offenses, which is not a permitted use of prior convictions. This prejudice was compounded by the State’s closing argument.
Hemphill v. Pollina, 2013 WL l1197502 (Mo. App. W.D. March 26, 2013):

Holding: (1) Where Defendant entered an Alford plea to assault and received an SIS, the Alford plea was not admissible against Defendant in a later civil suit over the assault as an admission against interest because the Alford plea was not an admission of guilt and was not inconsistent with Defendant’s position in the civil case; (2) Defendant’s Alford plea was not admissible for purposes of impeachment of Defendant since it resulted in an SIS and the disposition of a criminal charge by SIS is not a conviction for purposes of impeachment; (3) Defendant’s post-Miranda failure to speak to police was not admissible as an admission against interest because Defendant had no duty to speak.
State v. Schnelle, 2013 WL 1110698 (Mo. App. W.D. March 19, 2013):

(1) Even though proffered impeachment Witness had only spoken to “not more than 10 people” about victim’s reputation for truthfulness, where Witness was familiar with community members who knew victim, had spoken to them about victim’s reputation for truthfulness, and knew from this that victim had bad reputation for truthfulness, it was abuse of discretion for trial court to exclude witness (but not prejudicial in light of other evidence of untruthfulness that was admitted); and (2) where a trial court sentences a person to prison, it cannot also order restitution.

Facts: Defendant was convicted of assault and burglary. The defense was that the alleged victim had fabricated her story. The defense offered an impeachment Witness to testify as to the victim’s reputation for lack of truthfulness, but the trial court excluded Witness. The trial court sentenced Defendant to prison and to pay about $41,000 in medical expenses of victim as restitution.
State v. Register, No. WD73390 (Mo. App. W.D. 5/22/12):

Trial court abused its discretion in allowing State to call a Witness to child sex abuse, who invoked her 5^th Amendment privilege against self-incrimination, and then to allow State to argue that her invocation was to protect Defendant and showed Defendant’s guilt.

Facts: Defendant was charged with various child sex offenses. His wife (Witness) allegedly witnessed some of the offenses. The State subpoenaed Witness (wife) to testify, but her counsel informed the court that she would not testify if called, and would invoke her right against self-incrimination. The State granted immunity to Witness. The State then called Witness, who invoked her right against self-incrimination. The State then argued that this showed Defendant was guilty. Defendant claimed this violated his rights to due process and a fair trial.

Holding: In general, it is not improper for a trial court to require a witness to invoke their privilege against self-incrimination in front of the jury. However, the witness’ assertion of testimonial privilege cannot be used to argue a favorable or unfavorable inference of a defendant’s guilt. Thus, allowing a prosecutor to deliberately build its case out of inferences arising from the use of testimonial privilege is error. The State argues there is no error here because Witness’ invocation of her privilege was invalid, since she had been granted immunity. But juries are no less likely to draw improper inferences from an invalid assertion of privilege than from a valid one. Here, the record shows the prosecutor called Witness so the jury could draw negative inferences from her invocation of privilege. The prosecutor had asked Victim about the incidents about which Witness refused to testify. The prosecutor objected to Defendant’s request for a jury instruction to prevent jurors from drawing negative inferences regarding Witness’ invocation of privilege. The prosecutor expressly told the court he believed the jury could draw any reasonable inference it wanted from Witness’ invocation of privilege. The prosecutor argued to the jury that Witness invoked the privilege to protect her husband and did not handle the abuse correctly by failing to protect the Victim because she did not testify. Reversed for new trial.
State v. Cochran, No. WD73766 (Mo. App. W.D. 5/1/12):

(1) Expert should not be permitted to testify that Defendant committed “animal abuse” under Sec. 578.012 because this invades the province of the jury; and (2) where Defendant was charged with county ordinance violation but State failed to introduce the ordinance into evidence at trial, a court cannot judicially notice a county or municipal ordinance and the failure to introduce it at trial made the evidence insufficient to convict.

Facts: Defendant was charged with and convicted of animal abuse under Sec. 578.012 and with violation of a county ordinance regarding vaccination of animals. At trial, an animal care official (“Expert”) testified about the conditions in which the animals were found and that “animal abuse” occurred.

Holding: (1) It was proper for Expert to testify about the inadequate conditions in which the animals lived, such as inadequate food and water. The State, however, asked Expert whether “animal abuse” occurred. “Animal abuse” includes the element of whether the Defendant knowingly failed to provide adequate care for the animals. To the extent that Expert’s testimony could be interpreted as Expert testifying that Defendant knowingly failed to provide adequate care, it exceeded his expertise and invaded the province of the jury. However, court finds the error harmless here in light of other evidence. (2) The State failed to prove guilt of the county ordinance violation because the State failed to introduce it into evidence. Sec. 479.250 and subsequent cases require that municipal and county ordinances be introduced into evidence either by formal presentation or by stipulation. A court cannot judicially notice an ordinance. The ordinance is an essential element of proof. No misconduct can be shown or conviction proven without it. The State’s evidence being insufficient, it would violate double jeopardy to re-try Defendant on the county ordinance violation, so that conviction must be vacated.
Secrist v. Treadstone, LLC, No. WD73250 (Mo. App. W.D. 11/1/11):

Even though Plaintiff had a THC (marijuana) level of 50 ng/ml in his blood, this fact by itself was not admissible (for comparative fault or impeachment) to show that Plaintiff was “impaired” at the time of his accident without more evidence of the significance of such statistic.

Facts: Plaintiff was injured in a construction accident and sued Defendant. The trial court admitted evidence that at the time of the accident, Plaintiff had a THC level of 50 ng/ml (marijuana) in his blood for purposes of comparative fault and impeachment. Plaintiff appealed an adverse verdict.

Holding: A prima facie case for impairment from alcohol has been set by statute, Sec. 577.012.1, and is established when BAC reaches .08%. Drug impairment, however, is different. Different drugs have varying effects on behavior, and do not necessarily produce readily recognizable symptoms and behavior. In State v. Friend, 943 S.W.2d 800 (Mo. App. W.D. 1997), a drug test of a defendant-driver revealed that driver had methamphetamine in his system. However, there was no testimony as to the amount of methamphetamine, the effect of it, or whether it would cause Defendant’s erratic behavior. Hence, the evidence was insufficient to convict because there was no evidence that the level of methamphetamine was sufficient to impair his driving. There must be evidence beyond the mere fact that a drug is present in someone’s system before a reasonable inference can be made that the person is impaired therefrom. The fact that Plaintiff tested positive for 50 ng/ml of THC means nothing without context. THC may remain in the blood for weeks after marijuana use, and THC levels are no indication of impairment. Evidence regarding abnormal behavior is not sufficient without some evidence that the behavior is consistent with identifiable symptoms of ingestion of the particular drug. Popular stereotypes regarding the characteristics and behaviors of drug users are not sufficient in a court of law. The trial court erred in admitting the THC level without evidence of (1) what effect that level of drug would reasonably have on that individual; (2) that the behaviors exhibited by that person were consistent with having the drug and the amount in his system; and (3) the proximity in time between when the drug was ingested and the events to which impairment is relevant. Additionally, the evidence was not admissible for impeachment. Although it is the rule that impairment of a witness’s ability to recall is relevant to credibility, the THC levels in the blood are not alone an indication of impairment and inability to recall. Judgment reversed.
State v. Burns, No. WD73127 (Mo. App. W.D. 4/12/11):

Trial court’s pretrial ruling excluding certain hospital drug-test results was not appealable by the State because this was a ruling in limine based on violation of an evidentiary rule, not a ruling on a motion to suppress illegally seized evidence; but State may seek writ of prohibition.