Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though both victim and Defendant agreed that victim had rejected Defendant’s attempt to have intercourse, where other evidence about the encounter between them was contested, trial court erred in failing to instruct on reasonable and honest belief of victim’s consent in attempted rape case.
Alexander v. State, 2013 WL 5354419 (Fla. App. 2013):

Holding: Jury instruction, which stated that Defendant had to prove self-defense “beyond a reasonable doubt,” improperly relieved State of burden to prove guilt beyond a reasonable doubt.

Martin v. State, 2013 WL 646231 (Fla. App. 2013):

Holding: Evidence that Defendant, on account of his paranoid delirium, believed he was being threatened or attacked was admissible for purposes of supporting his self-defense claim for assault on officer, and supported a jury instruction on self-defense.
Stewart v. State, 2013 WL 275577 (Fla. App. 2013):

Holding: Where jury instruction instructed jurors that affirmative defense of justifiable use of force was not available where Defendant committed “felony battery,” but instruction did not define “felony battery,” this created confusion which warranted a new trial.
Cliff Berry, Inc. v. State, 2012 WL 10846 (Fla. Dist. Ct. App. 2012):

Holding: Rule of lenity required that defendant was entitled to requested instruction that a disagreement over the interpretation of a contract may result in a civil lawsuit but does not create criminal culpability.
McCoy v. State, 2010 WL 5540946 (Fla. Ct. App. 2010):

Holding: A prescription defense is available to an innocent possessor of another person’s prescribed drugs where the innocent possessor had a legally recognized reason for having the drugs, such as an agency relationship with the other person.
People v. Kidd, 2013 WL 5352328 (Ill. App. 2013):

Holding: Counsel was ineffective in failing to request jury instruction on meaning of “delivery” of drugs in prosecution for drug-induced homicide, which would have allowed jury to distinguish between whether Defendant and victim bought and possessed drugs together, or whether each bought and possessed alone, since if alone, then Defendant would not be guilty of drug-induced homicide.
People v. Wilcox, 2010 WL 5487517 (Ill. App. 2010):

Holding: Judge coerced verdict when, after jury sent note that they were deadlocked, the judge answered, “when you were sworn in as jurors and placed under oath you pledged to obtain a verdict. Please continue to deliberate and obtain a verdict.”
State v. Sood, 2012 WL 3055856 (Kan. App. 2012):

Holding: Computer fraud is a specific intent crime for purposes of determining whether to give a jury instruction on ignorance or mistake of fact.
State v. Flynn, 2011 WL 2507820 (Kan. Ct. App. 2011):

Holding: Court erred in failing to give instruction in rape case that a defendant has a reasonable time to act (stop) after victim withdraws consent to sex.
State v. Wade, 88 Crim. L. Rep. 434 (Kan. Ct. App. 12/30/10):

Holding: Where Defendant was charged with battery for striking his son, he was entitled to raise common-law defense of parental discipline, even though the legislature has not established this as a statutory affirmative defense.
Robinson v. State, 2014 WL 294285 (Md. App. 2014):

Holding: Court erred in giving “CSI Instruction,” which told jurors that there was no legal requirement for the State to use any specific technique or scientific test to prove its case, because this lowered the State’s burden to prove guilt beyond a reasonable doubt, and there is no conclusive empirical proof of an actual “CSI effect” on jurors.
Allen v. State, 2012 WL 1450605 (Md. Ct. Spec. App. 2012):

Holding: The “anti-CSI” instruction, which provided that there was no legal requirement that the State utilize any specific investigative technique or scientific test to prove its case, violated a defendant’s right to a fair trial, and the ruling also applied to cases that were pending on direct appeal.
Com. v. Groman, 2013 WL 5832527 (Mass App. 2013):

Holding: Omission from jury instruction for armed home invasion that Defendant knew that his co-Defendant was armed required reversal.
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.
Com. v. Hughes, 2012 WL 2330272 (Mass. App. 2012):

Holding: Defendant was entitled to jury instruction that jury should weigh the fact that Witness was paid $1,000 to be a drug informant in Defendant’s case.
Com. v. Tavares, 2011 WL 6793771 (Mass. App. 2011):

Holding: Where an audio recording of a defendant’s interrogation is not made, a cautionary instruction is mandatory, even where defendant refused to have a recording made.
People v. Jones, 2013 WL 4823162 (Mich. App. 2013):

Holding: Statute prohibiting trial courts in prosecution for “reckless driving causing a death” from instructing on lesser-included offense of “moving violation causing death” violated separation of powers and due process right to trial by jury; while the Legislature’s duty is to create the law, the court’s duty is to instruct on the law, including lesser-included offenses.
State v. McCauley, 2012 WL 3792117 (Minn. App. 2012):

Holding: Dissemination of child pornography is not a strict liability offense in the absence of legislative intent to make it such and given its severe penalty, but rather requires “knowledge” that one is doing it; thus, jury instruction failing to instruct that Defendant acted “knowingly” was error.
State v. Singleton, 2011 WL 676976 (N.J. Super. Ct. App. Div. 2011):
Holding: NGRI Defendant who believed he killed victim as part of command from God was entitled to a jury instruction that insanity includes both “legal wrong” and “moral” wrong” in determining the right-wrong test.
State v. Tindell, 2011 WL 43479 (N.J. Super. Ct. App. Div. 2011):

Holding: Where Defendant was charged with making terroristic threats against a number of distinct people, the State was required to identify individual victims for the offense; otherwise, the verdict could possibly have lacked unanimity as some jurors could have based the verdict on one threat, but others based it on a different threat.
State v. Alvarado, 2012 WL 8467506 (N.M. App. 2013):

Holding: Where Defendant was charged with three degrees of an offense and also with tampering, and the jury instructions on the tampering count failed to require a jury finding on which degree of offense the tampering count was related to, the instruction failed to require jury unanimity, and sentencing Defendant to the highest penalty violated Apprendi and its progeny.
State v. Dickert, 2012-NMCA-004, 2011 WL 7090595 (N.M. Ct. App. 2011:

Holding: Defendant’s reliance on noninvolvement defense did not preclude jury instruction on intoxication defense, despite the fact that the two defenses were contradictory.
People v. Minor, 2013 WL 5477143 (N.Y. App. 2013):

Holding: Jury instruction on affirmative defense of assisted suicide was confusing because jurors could erroneously believe that if they found an intentional murder, the affirmative defense of assisted suicide was not applicable; instruction told jurors that the assisted suicide defense was not available if Defendant “actively caused” the death.
People v. Delee, 969 N.Y.S.2d 350 (N.Y. App. 2013):

Holding: Jury verdict finding Defendant guilty of manslaughter as a hate crime, but not guilty of manslaughter in the first degree, was inconsistent as legally impossible, so as to require reversal of conviction.
People v. Lessey, 966 N.Y.S.2d 848 (Sup. 2013):

Holding: Where Defendant was charged with first degree assault with depraved indifference to human life for showing someone onto a subway track, Defendant was entitled to an instruction that Defendant’s voluntary intoxication made him incapable of forming the mental state of depraved indifference.
People v. Johnson, 2011 WL 4637476 (N.Y. App. Div. 2011):

Holding: Error in annotated verdict sheet would not be harmless if defense counsel did not consent to the annotated verdict sheet.
State v. Wier, 2013 WL 6834844 (Or. App. 2013):

Holding: Instruction which failed to inform jurors that the State was required to prove that Defendant knew he subjected sex victim to forcible compulsion was incorrect statement of law.
State v. Wolf, 2013 WL 6834955 (Or. App. 2013):

Holding: Evidence supported jury instruction on an exception to felon-in-possession statute, i.e., exception which allowed carrying a gun in a defendant’s residence; here, Defendant lived in a tent and possessed a gun outside at the campsite; this was his residence, and the statute did not limit carrying a gun to inside a structure.
State v. Zolotoff, 2012 WL 5876502 (Or. App. 2012):

Holding: Where inmate-Defendant had a sharpened spoon handle that was not yet a weapon, trial court erred in failing to give a lesser included attempted possession instruction.
Arrington v. State, 2013 WL 4082305 (Tex. App. 2013):

Holding: Jury instruction failed to require unanimity for each criminal incident, where there were multiple instances of criminal acts involving child sex abuse presented at trial.
Alonzo v. State, 89 Crim. L. Rep. 856 (Tex. Crim. App. 9/14/11):

Holding: Even though charged offense had a recklessness mens rea, Defendant could still get instruction on self-defense because jury would be deciding if Defendant acted recklessly or acted in self-defense; by arguing self-defense, Defendant is claiming that his actions were justified and he did not act recklessly.
Freeman v. State, 2011 WL 3627697 (Tex. App. 2011):

Holding: Trial court’s failure to issue, sua sponte, a jury instruction on the accomplice witness rule was egregious error where non-accomplice evidence was weak.
State v. Bauer, 2013 WL 864843 (Wash. App. 2013):

Holding: Where Defendant was charged with assault for having left a gun on a dresser where a child got it and shot someone, the question of whether leaving the gun in the open was the proximate cause of the victim’s injury was a jury question.

Jury Issues – Batson – Striking of Jurors – Juror Misconduct
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 ex rel. Sitton v. Norman, 2013 WL 3984732 (Mo. banc July 30, 2013):

Even though trial court allowed prospective jurors to avoid jury service by performing community service instead, this was not a failure to substantially comply with Secs. 494.400-505 absent proof of how this affected the randomness of the process or undermined confidence in the verdict.

Facts: Defendant was convicted at a jury trial. Several years later, he learned that the Lincoln County judge in his case had allowed otherwise qualified jurors to opt out of jury service before trial by agreeing to perform community service. He sought habeas relief, alleging that this violated Missouri’s jury selection procedures.

Holding: Petitioner is correct that the opt-out practice here was not authorized by Missouri’s jury selection statutes. However, to be entitled to a new trial, Petitioner must show that there was a “substantial failure” to comply with the jury selection statute, which means one that rises to the level of a constitutional violation or that prejudices a defendant. In rare cases, a violation of the statute may be so fundamental or systemic that failure to comply is “substantial” even absent a showing of prejudice, e.g., excluding jurors before trial because they would be “too harsh or too lenient,” or inadvertently excluding jurors due to their age. Here, however, the exclusion of five prospective jurors was not a “substantial” failure. Petitioner does not allege how many people were summoned for jury duty. There is no way to assess the extent to which improper excusal of five jurors impacted the randomness of jury selection, substantially interfered with the selection of jurors, or undermined confidence in the verdict.
State v. Letica, No. SC91849 (Mo. banc 12/20/11):

Holding: Even though the trial court erred in ruling on a reverse-Batson challenge by not allowing the defense to peremptorily strike a venireperson, the error was harmless and not a “structural error” where Defendant failed to show that an unqualified person ended up on his jury of 12.

Editor’s note: This ruling that the Batson error is “harmless” and not “structural error” may be wrong under federal law, and should continue to be challenged.
State v. Walker, 2014 WL 6476054 (Mo. App. E.D. Nov. 18, 2014):

(1) Even though Defendant was charged with first degree murder, trial court abused discretion in not allowing defense to voir dire on range of punishment for second-degree murder where parties knew in advance that second-degree murder would be submitted to jury; and (2) trial court erred in not allowing Defendant who claimed self-defense to testify to what Victim said before shooting because statements were not offered to prove truth of matter but to show Defendant’s subsequent conduct (but not reversible here because there was similar evidence presented).

Facts: (1) Defendant was charged with first degree murder arising out of a shooting. The defense was self-defense. The trial court sustained the State’s motion in limine to preclude the defense from asking anything during voir dire about the range of punishment for second-degree murder. The defense claimed it should be allowed to voir dire on the range of punishment for second- degree murder because the parties anticipated that such an instruction would be given, and the defense was entitled to know if jurors could follow the law and range of punishment on it. The State was allowed to voir dire on the range of punishment for first degree murder. During guilt phase deliberations, the jury sent a note asking what the range of punishment was for second-degree murder. The court did not specifically answer. The jury convicted of second-degree murder. During penalty deliberations, the jury sent a note saying they were deadlocked on punishment. After a hammer instruction was given, the jury sentenced to 30 years. (2) During the Defendant’s testimony, the trial court sustained a “hearsay” objection to the Defendant testifying about what Victim said before Defendant shot Victim.

Holding: (1) Although the defense did not make an offer of proof as to specific voir dire questions which the defense was precluded from asking, the defense did state in response to the motion in limine that they expected the law and facts to support a second-degree murder instruction, and that they wanted to voir dire on the range of punishment for second-degree murder to see if the jurors could follow the law. Thus, the issue is preserved for appeal. The Defendant’s right to an impartial jury is meaningless without the opportunity to show bias. As long as the Defendant’s question is in proper form, the trial court should allow the defense to determine whether the jurors can consider the entire range of punishment for a lesser-included form of homicide. The trial court precluded this because Defendant was charged with first degree murder, but this was unreasonable. The trial court allowed the State to voir dire extensively on the range of punishment for first degree murder. Defendant was prejudiced here because by being denied any opportunity to voir dire on the range of punishment for second-degree murder, he could not determine if jurors were able to follow the full range of punishment. The jury sent a note during guilt phase deliberations about the range of punishment. During penalty phase, the jury sent a note saying they were deadlocked on punishment. After a hammer instruction, the jury sentenced to the maximum, 30 years. The State argues that since the punishment did not exceed the maximum range there is no prejudice, but under that logic, a defendant could never show prejudice unless the punishment was beyond the authorized range, which would be plain error anyway. The State also argues there is no prejudice because the judge could reduce the jury’s recommended sentence. “While it is true that the judge might impose a lesser sentence, we do not conclude that trial judges are unaffected by the jury’s recommendation.” Further, the fact that a judge might impose a lesser sentence should not be confused with the jury’s ability to consider the full range of punishment in the first instance. Case remanded for new penalty phase trial. (2) The trial court erred in sustaining the State’s “hearsay” objection during Defendant’s testimony about what Victim said before Defendant shot him. This was not “hearsay” because not offered for the truth of the matter asserted, i.e., not offered to show the truth of the Victim’s statements. Instead, it was offered to explain Defendant’s conduct after the statements were made. Although this error facially shows manifest injustice, the error is not reversible because the jury heard similar evidence that would allow it to conclude Defendant was in fear of his life when he shot Victim.
In the Interest of J.T., 2014 WL 5462402 (Mo. App. E.D. Oct. 28, 2014):