Case Law Update: 2011-2014 Cumulative Edition

Holding: (1) Counsel was ineffective for believing that plea agreement prohibited counsel from presenting mitigating evidence and argument at sentencing, and such a plea agreement would violate public policy because it undermines the adversarial process by denying the sentencing court information it needs; and (2) counsel was ineffective in failing to object to unduly prejudicial victim impact video entitled “A Tribute To [name of victim],” which included childhood photos, music, a segment about the victim’s funeral, and a photo of their tombstone – these elements were not admissible evidence of the victim’s life as related to family and friends.
State v. Leon, 2012 WL 6918125 (N.M. 2012):

Holding: Because under New Mexico law Defendant had right to counsel at probation violation hearing, counsel was responsible for filing a timely notice of appeal and was ineffective in failing to do so.
People v. Clermont, 2013 WL 5707868 (N.Y. 2013):

Holding: (1) Counsel was ineffective in pursuing motion to suppress where counsel’s written motion contained erroneous facts about case (such as that it resulted from a traffic stop instead of an encounter on the street), counsel failed to marshal the facts for court or make legal argument at the suppression hearing, and counsel made no attempt to correct mistaken facts in the court’s judgment which differed from the facts testified to at the suppression hearing; and (2) appropriate relief was further proceedings on the suppression motion.
People v. Nesbitt, 2013 WL 1195696 (N.Y. 2013):

Holding: Counsel was ineffective in failing to argue that victim’s injuries were not serious or protracted enough to constitute first degree assault.
People v. Colville, 2012 WL 5199390 (N.Y. 2012):

Holding: Where the trial court deferred to Defendant’s personal decision contrary to judgment of his defense counsel not to submit lesser-included offense instructions in a murder prosecution, this deprived Defendant of the 6^th Amendment benefit of effective assistance of counsel and warranted a new trial.
People v. Fisher, 91 Crim. L. Rep. 74 (N.Y. 4/3/12):

Holding: Counsel was ineffective in sex abuse case by failing to object to closing argument that (1) improperly bolstered State’s case by saying girl told same story over and over to police, social workers and others; (2) told jurors they could consider evidence of girl’s misbehavior at school as evidence that she was sexually abused; and (3) told jurors that “the day that the voice of a child is not evidence is the day that the [courthouse] doors should be locked forever.”
State v. Eddy, 2013 WL 3209536 (R.I. 2013):

Holding: Counsel was ineffective in failing to investigate the forensic evidence regarding the timing of a sexual encounter between Defendant and victim, because his failure to recognize or understand the science or weakness of State’s case allowed State to inaccurately argue that it was scientifically impossible for anyone else to be involved.
Walker v. State, 94 Crim. L. Rep. 770 (S.C. 3/19/14):

Holding: Counsel was ineffective in failing to investigate alibi witness who would have said they spent “every weekend together” with Defendant; even though this was not a model of clarity in alibi, it would have made a difference if believed by jurors.
Mobley v. State, 2013 WL 633201 (Tenn. 2013):

Holding: Appointed counsel was ineffective in failing to object to Defendant having to wear a stun belt at trial in the absence of necessity; record suggested that appointed counsel may have himself requested the stun belt because of conflict he was having with Defendant.
Smith v. State, 2011 WL 6318946 (Tenn. 2011):

Holding: Defense counsel were ineffective for failing to present evidence in support of capital defendant’s motion to recuse sentencing judge, where the judge had prosecuted defendant for earlier crimes while he was an assistant district attorney general.
Calvert v. State, 89 Crim. L. Rep. 216 (Tenn. 4/28/11):

Holding: Defense counsel’s failure to advise client that offense to which client was pleading guilty carried a mandatory lifetime term of community supervision was ineffective assistance.
State v. Larrabee, 94 Crim. L. Rep. 308, 2013 WL 6164424 (Utah 11/22/13):

Holding: Counsel was ineffective in failing to object to Prosecutor’s closing argument which violated a motion in limine order not to present evidence about other claims of sex abuse by Defendant; there would be no sound trial strategy for counsel to fail to object to violation of the motion in limine order.
State v. Grier, 88 Crim. L. Rep. 592 (Wash. 2/10/11):

Holding: Even though Defendant acquiesced in decision to forgo a lesser-included offense instruction and go for “all or nothing” defense, this did not preclude Defendant from later claiming that his decision was based on ineffective assistance of counsel for deficient advice.
Ballard v. Ferguson, 94 Crim. L. Rep. 179 (W.Va. 10/25/13):
Holding: Counsel in murder case was ineffective in relying on a police report that said that third-party suspect had passed a polygraph test, and in failing to investigate Woman-Witness who told police that third-party suspect had told her that he had committed the murder.
Osterkamp v. Browning, 2011 WL 681098 (Ariz. Ct. App. 2011):

Holding: Indigent movant was entitled to appointment of counsel to represent him in second PCR proceeding alleging ineffective assistance of PCR counsel.
People v. Pangan, 92 Crim. L. Rep. 574 (Cal. App. 2/4/13):

Holding: Counsel was ineffective in failing to argue that restitution for future lost earnings of victim who was killed in DWI accident had to be discounted to account for the time value of money.
People v. Smith, 152 Cal. Reptr. 3d 142 (Cal. App. 2013):

Holding: Counsel at SVP hearing was ineffective in agreeing to proceed on an SVP release petition under an SVP statute that was less favorable to petitioner seeking release than another SVP statute.
Rolon v. State, 2011 WL 4809119 (Fla. Dist. Ct. App. 2011):

Holding: Where, during his first trial, defendant was deprived of effective assistance of counsel during his direct and cross-examination, the court erred in allowing the state to introduce defendant’s statements from the first trial during the second trial.
Penn v. State, 2011 WL 115941 (Fla. App. 2011):

Holding: Where counsel told court that “the last time she talked to Defendant, he wanted her off his case,” the court was required to conduct a preliminary examination of effectiveness of counsel.
Cheeks v. State, 2013 WL 5993211 (Ga. App. 2013):

Holding: Counsel was ineffective in failing to object to Prosecutor’s argument about Defendant’s silence and failure to come forward to police.
Ottley v. State, 2013 WL 6085227 (Ga. App. 2013):

Holding: Counsel was ineffective in failing to investigate sexual assault nurse’s credentials, and failing to interview nurse or victim’s doctor before trial; counsel’s strategy of attacking the child and her family’s credibility and to accept the credibility of the medical evidence was not reasonable given the weak evidence in case.
People v. Gamino, 2012 WL 2369534 (Ill. App. 2012):

Holding: It is per se ineffective assistance of counsel for a Defendant to unknowingly be represented by a disbarred or suspended attorney.
State v. Greene, 2013 WL 6839119 (Ind. App. 2013):

Holding: Trial and appellate counsel were ineffective in failing to research and cite two cases which would have negated Defendant’s assault conviction as a matter of law; counsel was obligated to research and bring matter of law to court’s attention.
Com. v. Roberson, 2013 WL 1688357 (Ky. App. 2013):

Holding: Where trial court found that counsel had completely abdicated his responsibility to Defendant at critical stage of juvenile transfer, court was required to apply Cronic absence-of-counsel standard, not Strickland prejudice standard.
People v. Fonville, 2011 WL 222127 (Mich. App. 2011):

Holding: Counsel was ineffective in not informing defendant that sex offender registration was a consequence of a guilty plea.
State v. Barlow, 89 Crim. L. Rep. 211 (N.J. Super. Ct. App. 5/6/11):

Holding: Defense counsel has professional obligation to move to withdraw a guilty plea for a client if client requests this, and failure to do so is ineffective assistance.
State v. Favela, 2013 WL 4499459 (N.M. App. 2013):

Holding: Even though the trial court warned Defendant about immigration consequences, this never cures the prejudice from counsel’s ineffectiveness in failure to warn under Padilla, because judges cannot know a defendant’s priorities or use information strategically in negotiating pleas; also, advice by a judge is not the same as advice by counsel who knows more specific information about the case.
People v. Murray, 2013 WL 2915711 (N.Y. App. 2013):

Holding: Counsel was ineffective and had no legitimate trial strategy in DWI trial for arguing that since Defendant was asleep in the car, he couldn’t be guilty of DWI, when state courts had previously held that being asleep in the driver’s seat would constitute operation of a motor vehicle and guilt of DWI.
People v. Burgos, 2012 WL 2912498 (N.Y. Sup. 2012):
Holding: Failure to advise of immigration consequences was ineffective assistance, and Defendant was prejudiced because there is a reasonable probability Defendant would not have entered the plea and would have insisted on going to trial absent the deficient advice
People v. Bowles, 90 Crim. L. Rep. 264 (N.Y. App. Div. 11/1/11):

Holding: Defendant has due process right to effective assistance of counsel in assessment hearing under New York’s Sex Offender Registration Law because of stigmatizing effect of registration.
People v. Nunez, 2010 WL 5186602 (N.Y. App. 2010):
Holding: Padilla holding (that counsel must advice defendants of immigration consequences of guilty plea) is retroactive.
Berg v. Nooth, 2013 WL 4451225 (Or. App. 2013):

Holding: Counsel was ineffective in failing to object to improper “vouching” by child sex victim’s treating doctor and social service agent, and the State’s closing argument that emphasized this testimony.

Rodriguez v. State, 2013 WL 5477366 (Tex. App. 2013):

Holding: Where counsel told Defendant to forego a 10-year plea offer because “acquittal would be easy at trial” and Defendant was convicted at trial and received eight life sentences, counsel was ineffective and remedy was to allow Defendant to plead guilty to original 10-year plea offer, though trial court retained power to accept or reject it.
Frangias v. State, 2013 WL 690859 (Tex. App. 2013):

Holding: Trial counsel was ineffective in failing to depose witness who was sick in lieu of live trial testimony, where witness would have provided critical corroboration of the defense version of events.
Ex Parte Moussazadeh, 2012 WL 468518 (Tex. Crim. App. 2012):

Holding: Counsel’s misinformation to defendant on parole eligibility, on which he relied in pleading guilty, was ineffective assistance of counsel.
Riley v. State, 2011 WL 3209175 (Tex. App. 2011):

Holding: Trial counsel ineffective in murder case in advising Defendant to go to trial to try to obtain “community supervision,” but trial resulted in sentence of 50 years.
State v. Fowers, 2011 WL 5438944 (Utah Ct. App. 2011):

Holding: Counsel rendered ineffective assistance by eliciting testimony about defendant’s 25-year-old conviction for sodomy, which defendant had previously obtained a ruling to exclude.

Interrogation – Miranda – Self-Incrimination – Suppress Statements
State ex rel. Nothum v. Walsh, No. SC92268 (Mo. banc 7/31/12):

Even though Prosecutor had granted use immunity to Debtors under Sec. 513.380.2, Debtors could still assert their 5^th Amendment privilege not to testify since use immunity is more limited than the constitutional privilege.

Facts: Creditors sought to compel Debtors to testify about various assets. Prosecutor had granted use immunity to Debtors under Sec. 513.380.2. Debtors asserted their 5^th Amendment privilege against self-incrimination and refused to testify. Trial court held Debtors in contempt. Debtors sought writ of prohibition.

Holding: To supplant the privilege against compulsory self-incrimination, the scope of immunity granted must be co-extensive with the scope of the constitutional privilege, which includes both “use immunity” and “derivative use immunity.” Here, Debtors received immunity pursuant to Sec. 513.380.2, which authorizes a prosecutor only to provide “use immunity” to a judgment debtor. A prosecutor has no inherent authority to provide immunity beyond the authority granted by Missouri statutes. The issue of whether a trial judge has inherent authority to grant immunity has not been addressed in Missouri and is not presented here. Here, the only immunity granted was “use immunity.” Such immunity did not include “derivative use immunity” and so it was not co-extensive with the 5^th Amendment privilege. Thus, the trial court abused its discretion in compelling Debtors to testify. Writ of prohibition granted.
State v. Churchill, 2014 WL 839455 (Mo. App. March 4, 2014):

Holding: (1) Where Mother (Defendant) was called to testify at a child protective hearing and repeatedly requested counsel before testifying (but court denied her request), Mother was denied her right to counsel under Sec. 211.111 and Rule 115.03 because the statute grants an unconditional right to counsel to any party to a juvenile court proceeding for all stages of the proceeding and the Rule requires the court to inform the juvenile’s parents of the right to appointed counsel; but (2) even though counsel was not provided, Mother-Defendant’s statements made at the juvenile hearing should not be suppressed at her subsequent trial for perjury, because courts have held that the exclusionary rule does not immunize perjury when false statements were obtained in violation of a defendant’s constitutional rights, so exclusion is not warranted for violation of Mother-Defendant’s statutory rights either. (3) Furthermore, Mother-Defendant’s Sixth Amendment right to counsel was not violated because there was no adversary judicial criminal proceeding pending against Mother-Defendant at the time she testified, so the Sixth Amendment right to counsel had not yet attached, and (4) even if her Fifth Amendment right against self-incrimination was violated (which appellate court does not decide), this does not mandate that her statements be suppressed because the Fifth Amendment privilege does not immunize perjury.
State v. Beasley, 2013 WL 6818153 (Mo. App. E.D. Dec. 24, 2013):

Defendant’s Fifth Amendment privilege against self-incrimination was violated where Officer asked Defendant, who was under investigation for a crime, whether he owned a black box (in which incriminating evidence was ultimately found) prior to giving Miranda warnings.

Facts: While Defendant was already in jail on a sex charge, Officer sought to question Defendant about different sex offenses, which Officer was investigating. Officer had Defendant brought to the police station, and asked his consent to search a black box which police had obtained as part of their investigation. Defendant consented to the search. Officer then asked Defendant who owned the box, and Defendant ultimately said he didn’t know if the box was his but he owned one like it. Only after this did Officer read Defendant his Miranda rights. Evidence of crime was ultimately found in the box. At trial, the State presented Officer’s testimony that Defendant said he owned a box like the one at issue.

Holding: On appeal, Defendant argues that the trial court plainly erred in admitting his statements regarding ownership of the box because these statements were made prior to Miranda warnings and, thus, violated his Fifth Amendment privilege against self-incrimination. A request for consent to search a container is not itself deemed “interrogation,” and therefore, Officer did not violate the Fifth Amendment when he asked Defendant for consent to search the box. However, when Defendant additionally answered that he did not know whether the black box was his, Officer’s ensuing questioning constituted “interrogation,” in that there was a reasonable likelihood Defendant would answer in a way that would incriminate him. Thus, the failure to give Miranda warnings prior to asking the questions here beyond consent to search violated Defendant’s Fifth Amendment privilege, and his subsequent statements should have been suppressed. However, there is no plain error here because other evidence of guilt was overwhelming.
State v. Jones, No. ED97595 (Mo. App. E.D. 10/2/12):

Defendant’s incriminating statements should have been excluded under the corpus delicti rule because there was not independent corroboration that a murder had occurred where the only other evidence of guilt was police testimony that baby-decedent was on a bed near pillows and the medical examiner based his opinion that the baby died of suffocation on the Defendant’s statements.

Facts: In 2008, Defendant’s Baby died. At the time, the death was believed to have been caused by a seizure disorder. In 2009, a different baby of Defendant also almost died. This caused police to investigate the 2009 death. While questioning Defendant about that death, Defendant brought up first Baby’s death, and said she had put Baby facedown on a pillow because Baby wouldn’t stop crying, after which Baby stopped breathing. Defendant was then charged and convicted of second degree murder for death of first Baby. At trial, her statements to police were admitted against her. On appeal, she claimed that admission of such statements was plain error under the corpus delicti rule.

Holding: The corpus delicti rule bars the admission of extrajudicial statements by a defendant absent proof of the commission of an offense. In a murder case, the corpus delitici requires proof the death of the victim and evidence that the criminal agency of another person caused the death. The amount of corroborating evidence allowing the admission of out-of-court statements can be minimal, but here, there wasn’t any corroboration. The police testified that Baby was found on an adult bed near pillows and not breathing. Although police referred the case to investigators for further investigation because they thought it was “suspicious,” this is not corroboration of a murder. Importantly, the autopsy of Baby originally found the cause of death to be “seizure disorder.” Later, the pathologist changed this to “suffocation,” but only after Defendant’s statements to police and not based on any new medical tests. If the pathologist had originally found the death to be caused by suffocation, that would be corroboration of a homicide, but he did not find this. The record is clear that the pathologist later revised his opinion solely because of Defendant’s statements, not medical evidence. Without Defendant’s statements, the cause of death would have remained seizure disorder. Defendant’s statements should not have been admitted under the corpus delicti rule. New trial ordered.
State v. Smoot, No. ED95499 (Mo. App. E.D. 12/27/11):

Where Defendant contends his statements to police were not voluntary because they were physically coerced, the trial court must make a determination on voluntariness before they can be admitted, even for impeachment purposes.

Facts: Defendant made certain statements to police, and filed a motion to suppress claiming that the statements were the result of physical coercion. The State claimed that even if the statements were involuntary, they could be used to impeach Defendant’s testimony at trial. The trial court admitted them for impeachment purposes without ruling whether they were voluntary. After conviction, Defendant appealed.

Holding: Statements made to police can only be admitted for impeachment purposes if they were voluntary. If a defendant challenges the voluntariness of a statement, the burden of proof is on the State to show the statements were voluntary. When the trial court fails to rule on this issue, it is impossible for the appellate court to decide the issue. However, a new trial is not required. Instead, the case is remanded to the trial court to determine if the statements were voluntary. If yes, then the record shall be resent to the appellate court and Defendant may challenge this on appeal. If not, the trial court should grant a new trial.
State v. O’Neal, No. ED95274 (Mo. App. E.D. 11/29/11):

Where prosecutor objected to admission of Defendant’s medical records in front of the jury by saying they were“simply a way to avoid the defendant testifying,” this was a direct comment on Defendant’s failure to testify and a mistrial should have been granted.

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 ex rel. Nothum v. Kintz, No. ED95280 (Mo. App. E.D. 2/2/11):

Holding: Where judgment-debtors invoked their 5^th Amendment privilege against self-incrimination and refused to answer interrogatories or give testimony about their property, the trial court could not compel them to testify absent a finding that, as a matter of law, the witness’ response to the questions could not possibly intend to incriminate them. Here, the trial court failed to make such a finding. Writ of prohibition granted to preclude trial court from holding judgment-debtors in contempt.
State v. Thieman, No. SD30818 (Mo. App. S.D. 11/10/11):