Case Law Update: 2011-2014 Cumulative Edition

Holding: Where Juvenile was charged with second-degree assault, Sec. 565.060.1(2) for knowingly causing physical injury by means of a dangerous instrument, trial court plainly erred in convicting her of second –degree assault under Sec. 565.060.1(3) for recklessly causing serious physical injury, because this violated Juvenile’s rights to notice of the charged offense and to be convicted only of the charged offense, since second-degree assault under Sec. 565.060.1(3) is not a lesser-included offense second-degree assault under Sec. 565.060.1(2). This is because it is possible to cause mere “physical injury” without causing “serious physical injury.”
State v. Ess, 2013 WL 4715352 (Mo. App. E.D. Sept. 3, 2013):

(1) Where after trial the defense discovered that a juror who had failed to answer questions on voir dire about whether they had preconceived notions about guilt had said during a pretrial recess that this was an “open and shut case,” the nondisclosure was likely intentional and case is remanded for more detailed factual findings or new trial; and (2) even though Defendant had victim touch his penis through clothing in 1995 or 1996, during that time period the act of touching through the clothing was not a violation of Sec. 566.010(3)(1995 version), so the evidence was insufficient to support attempted first-degree child molestation.

Facts: Defendant was charged with various child sex offenses. (1) During voir dire, jurors were asked whether anyone had a “preconceived notion about the guilt or innocence” of Defendant. Juror did not answer. After trial, the defense learned that Juror had said during a pretrial recess that this was an “open and shut case.” The defense obtained an affidavit from another juror stating this, and also called this other juror to testify at a hearing on the New Trial Motion, which raised this issue. (However, the New Trial Motion was filed late in this case, so all appellate issues are decided under plain error standard.) The trial court made no credibility findings regarding the other juror’s testimony, but denied a new trial. (2) Defendant was originally charged with first-degree child molestation for acts which occurred in 1995 or 1996 during which Defendant had victim touch Defendant’s penis through clothing. During trial, however, State discovered that in 1995 and 1996, the act of touching through the clothing did not violate Sec. 566.010(3)(1995 version). Thus, the State submitted to the jury “attempt” first-degree child molestation. Jury convicted of this offense.

Holding: (1) No person who has formed an opinion on a matter is qualified to serve as a juror. In determining whether to grant a new trial, the court must determine whether a nondisclosure occurred, and whether it was intentional or unintentional. If intentional, bias is presumed and a new trial should be ordered. If unintentional, a defendant must prove that prejudice resulted from the nondisclosure that may have influenced the jury’s verdict. Here, jurors were asked various questions about their ability to be fair and impartial, including directly being asked whether they had any “preconceived notion” about guilt or innocence. Juror at issue failed to answer, but said to another juror during a pretrial recess that this was an “open and shut case.” The direct questions on voir dire indicate that Juror’s failure to understand the questions or answer was unreasonable. Thus, juror’s failure to disclose was likely intentional. The State argues that since Defendant did not produce any evidence from Juror at issue, the Defendant fails to prove his claim of bias. “But to require a defendant to produce an affidavit from a biased juror confessing to intentional nondisclosure of material information, or to forgo any relief, places an impossible burden on a defendant.” Nevertheless, the trial court made no finding on whether it found the other juror’s testimony about what Juror at issue said to be credible, and no finding on whether the nondisclosure was intentional or not. Thus, case must be remanded for more findings. If the court finds that the testimony is credible, however, the court must find that the nondisclosure was intentional and grant a new trial. (2) In 1995 and 1996, touching a penis through the clothing was not prohibited by then-Sec. 566.010(3). (The statute was amended in 2002 to prohibit touching through the clothing.) Defendant’s acts here of having the victim touch his penis through clothing was not a substantial step toward the offense of first-degree child molestation. Thus, the evidence is insufficient to convict of attempted first-degree child molestation.
State v. Wright, 2013 WL 324044 (Mo. App. E.D. Jan. 29, 2013):

Holding: Where Defendant discovers alleged irregularities in jury selection after the time for filing a direct appeal or postconviction action have expired, the remedy is to file a petition for habeas corpus; even though Sec. 494.465.1 states that a party alleging jury irregularities may move for “appropriate relief” within 14 days of discovering them, this statute does not authorize a “new trial motion” to do so after the time for filing a new trial motion under Rule 29.11(b) has expired.
State v. Ousley, No. ED97047 (Mo. App. E.D. 11/20/12):

(1) Even though the trial court did not abuse its discretion in excluding Defendant’s mother and grandmother as witnesses in Defendant’s case-in-chief as a sanction for late disclosure of the witnesses, where the State presented rebuttal evidence, Defendant was entitled to call the mother and grandmother as surrebuttal witnesses because surrebuttal witnesses need not be disclosed; and (2) where Defendant was charged with forcible rape, Defendant should have been permitted to voir dire potential jurors on whether they could consider that teenagers would have consensual sex because this was a critical fact with a substantial potential for disqualifying bias.

Facts: Defendant, who was 19, was charged with forcible rape of a 14 year old. The trial court set a pretrial deadline for disclosure of witnesses, which Defendant failed to meet. As a sanction, the trial court excluded as witnesses Defendant’s mother and grandmother, who were going to testify that Defendant’s physical condition made it impossible for him to commit a forcible rape. After Defendant presented other evidence of this at trial, the State called a doctor in rebuttal. Defendant then sought to call his mother and grandmother in surrebuttal, but the trial court would not permit this because of its prior sanction.

Holding: (1) If the State introduces a new matter during rebuttal, the Defendant is entitled to offer surrebuttal. Because the nature of rebuttal requires a party to depend on the evidence presented in determining whether to offer rebuttal, rebuttal witnesses need not be disclosed or endorsed; this applies to surrebuttal evidence, too. Regardless of any initial discovery sanction, when Defendant offered his mother and grandmother as surrebuttal witnesses, it became a new inquiry for the trial court to determine whether Defendant was entitled to call them in light of the State’s rebuttal evidence; this determination was to be made anew without reference to the rules of discovery or the trial court’s earlier sanction. The trial court abused discretion in excluding the surrebuttal witnesses (but not prejudicial under facts of case). (2) During voir dire Defendant sought to ask potential jurors whether they could consider that two teenagers had consensual sex. The State objected that this was seeking a commitment, and the trial court sustained the objection. However, a party is entitled to ask about critical facts that have a substantial potential for disqualifying bias. Here, Defendant could not have been charged with statutory rape because it is defined as sex with a person who is less than 14, or a person who is at least 21 having sex with a person who is less than 17. Defendant’s question sought to inquire as to whether jurors would impose consequences for such an act, even if it was not illegal. This did not require a commitment from jurors to acquit Defendant upon hearing that two teenagers had sex, but rather sought to ensure that jurors could follow the law as it relates to sex among minors if they believed the sex was consensual. The trial court abused discretion in prohibiting this question (but was not prejudicial in context of case).
State ex rel. Koster v. McCarver, No. ED97414 (Mo. App. E.D. 5/15/12):

Where Petitioner did not know during his trial, direct appeal or time for filing a 29.15 case that Lincoln County employed an impermissible jury selection procedure that allowed venirepersons to opt-out of jury service by paying $50 and performing community service, this constitutes “cause and prejudice” to allow Petitioner to raise such a claim in habeas corpus.

Facts: Petitioner was convicted at a jury trial in 2008 in Lincoln County. Unbeknownst to him or his trial counsel, Lincoln County used a jury selection procedure that allowed venirepersons to opt-out of jury service by paying $50 and performing community service. 10 venirepersons out of 1200 chose this option in his case. Petitioner’s direct appeal counsel testified that she was unaware of this opt-out program during his direct appeal. Petitioner subsequently did not file a Rule 29.15 motion. Subsequently, this opt-out program was declared unlawful in Preston v. State, 325 S.W.3d 420 (Mo. App. E.D. 2010). After this, Petitioner learned of the opt-out program and filed a motion for new trial under Sec. 494.465.1. After this was denied by operation of law, Petitioner filed a state habeas corpus action. The habeas court granted a new trial. The State sought a writ of certiorari to reverse this.

Holding: Sec. 494.465.1 provides that a defendant may make a motion for new trial regarding errors in selecting a jury within 14 days after learning of such errors. Even though Defendant filed his new trial motion within 14 days of learning of the factual basis for his claim in 2010, 494.465.1 does not provide a remedy here because to allow this would subvert postconviction Rule 29.15. However, where a defendant fails to file a Rule 29.15 motion, he can still proceed in a state habeas action on a claim about which he was previously unaware if he can show “cause and prejudice” to overcome his procedural default in failing to raise the claim in a 29.15 action. Here, Defendant has shown cause and prejudice. His trial attorney did not know about the jury opt-out program, and his appellate attorney did not either. Although the State claims the appellate attorney knew about it because she received an email on the matter from another attorney, assuming this is true, we know of no authority that we may impute an attorney’s knowledge of a defaulted claim to their client. The State further contends that Petitioner could have filed a 29.15 motion without stating any grounds. However, the State cites no authority that a defendant must file a 29.15 motion even when he has no knowledge of any grounds for relief. Conviction vacated and new trial granted.
In re: Brooks v. Bowersox, 2014 WL 5241645 (Mo. App. S.D. Oct. 15, 2014):

Holding: Miller v. Alabama, 132 S.Ct. 2455 (2012), which barred automatic life-without-parole sentences for juveniles convicted of first degree murder, does not apply to Juvenile-Defendants convicted before Miller and whose direct appeals and Rule 29.15 amended motions were completed or already filed without a such a claim; such defendants are procedurally barred for not raising the claim on direct appeal or in their Rule 29.15 cases.
State v. Kalter, 2014 WL 1873808 (Mo. App. S.D. 5/9/14):

Even though Jurors said they could be fair and impartial and were instructed about Defendant’s right not to testify, where they said during voir dire that they would have to hear from Defendant, trial court abused its discretion in not striking Jurors for cause.

Facts: During voir dire, the State asked jurors generally if they could be fair and impartial, and all jurors agreed. Under subsequent questioning by the defense, two Jurors indicated that they would have to hear from Defendant. The defense moved to strike Jurors for cause, but the trial court overruled the motion. Jurors served on the jury. Defendant did not testify.

Holding: When the defense asked Jurors if they would have to hear from Defendant, the reasonable interpretation of their positive response was not that Defendant would have to testify for them to know his side of the story but that Jurors would have to hear from him in order to acquit him. Even though Jurors said they could be fair and impartial, this was before they were asked about whether they would have to hear from Defendant. And even though Jurors were instructed about Defendant’s right not to testify, this is not the equivalent of unequivocal assurances of impartiality. The last responses from Jurors were that they would need to hear from Defendant. They were not subsequently rehabilitated. These Jurors served on the jury. Defendant did not testify at trial, so he was prejudiced. New trial ordered.
In the Interest of A.B. v. Juvenile Officer, 2014 WL 5877703 (Mo. App. W.D. Nov. 12, 2014):

Even though (1) 12-year-old Juvenile touched other child’s genitals, including with his mouth, and (2) trial court believed that the “only inference” that could be drawn if a 12-year-old boy engages in such conduct is that it is done for sexual gratification, the evidence was insufficient to prove first-degree sexual molestation because such offense requires proof that the acts were done for sexual gratification, and other evidence showed that Juvenile was immature for his age, had little sexual knowledge, and did not have an erection or other sexual arousal.

Facts: Juvenile boy, who was 12 years old, was charged with first degree sexual molestation for acts with a five-year-old boy. Both boys touched each other’s genitals and put their penises in each other’s mouth. There was no evidence that either child had an erection or ejaculation. Juvenile told other boy not to tell anyone what happened. The defense presented evidence that Juvenile was immature and had less understanding of sexual matters than the average 12 year old. The State called a rebuttal witness who did not examine Juvenile but testified that mouth-to-penis contact was an “advance stage of sexual whatever” and that the “only reason” a person would engage in oral sex is to satisfy sexual desire. The trial court found that the “only inference” from touching a five-year-old’s penis was sexual gratification.

Holding: While we accept as true all inferences favorable to the State, they must be reasonably drawn from the evidence. The “integrity of the inference” must be established before it can sufficiently support a judgment that the act was committed. Secs. 566.067 and 566.010 require proof that the touching of the genitals was done for sexual arousal or gratification. Here, the incidents lasted only a few seconds. There was no evidence of physical arousal. Neither boy described the incident in sexual terms. There were no words spoken indicating sexual arousal or sexual intent, or additional actions such as rubbing, moving a hand up and down, or use of a lubricant to show this. The issue here is whether an inference based solely on the act’s occurrence has sufficient “integrity” to prove beyond a reasonable doubt that Juvenile acted for the purpose of satisfying sexual desire. “We are not persuaded that intent can be inferred from the act alone” when dealing with a juvenile. Juvenile’s sexual knowledge was much lower than his stated age. Judgment reversed and Juvenile discharged.
Snellen by Snellen v. Capital Region Medical Center, 2013 WL 5614115 (Mo. App. W.D. Oct. 15, 2013):

Trial judge’s sua sponte questioning and strike of nursing-mother venireperson was improper because such venirepersons are not disqualified, even though she would need breaks every three or four hours.

Facts: During voir dire, Venireperson said she was a nursing mother and would need breaks every three or four hours. The trial judge then said, “Waah. Mama. Starving. I couldn’t take the guilt,” and asked counsel to agree to strike her, which counsel did. Later, Appellant raised this as plain error on appeal.

Holding: Although this does not rise to level of plain error since counsel failed to object to the court’s action, “[w]e do not condone the actions of the trial judge…. This juror did not request to be excused for hardship; she merely informed the trial court of a need for a break every three to four hours so she could pump breast milk. Such limitation is not itself disqualifying” under Sec. 494.425. It would be a rare trial which did not stop every three or four hours for everyone to take a break. The trial court’s actions may have brought inappropriate attention to Venireperson and embarrassed her or caused her stress.
State ex rel. Koster v. McElwain, No. WD73211 (Mo. App. W.D. 3/29/11):

(1) Petitioner was able to raise Brady claim and jury misconduct claim in state habeas case because he showed cause and prejudice for not raising them on direct appeal or in postconviction; (2) State violated Brady where it failed to disclose that Sheriff knew that another person had threatened murder victim and police knew of witness who would also indicate another person threatened victim; (3) jury committed misconduct in seeking out a map that was not introduced into evidence to determine Petitioner’s guilt.

Facts: Petitioner was convicted at a jury trial of first degree murder of his mother. He lost his direct appeal and Rule 29.15 case. He won relief in U.S. District Court, but the 8^th Circuit reversed. He then filed a state habeas corpus case alleging various claims. The habeas court granted relief, and the State sought a writ of certiorari challenging the grant of relief.

Holding: The State argues that Petitioner’s claims are procedurally barred because he did not raise them in his direct appeal or Rule 29.15 case. However, claims are not barred in a habeas case if (1) the claim relates to a jurisdictional (authority) issue; or (2) the petitioner establishes manifest injustice because newly discovered evidence makes it more likely than not that no reasonable juror would have convicted him (a “gateway innocence” claim); or (3) the petitioner establishes the presence of an objective factor external to the defense, which impeded his ability to comply with the procedural rules for review of claims, and which worked to his actual and substantive disadvantage infecting his entire trial with constitutional error (a “gateway cause and prejudice” claim). Here, Petitioner’s claims fall under exception number three. He has shown that the State engaged in Brady violations because the Sheriff knew that another person had threatened the murder victim and law enforcement also failed to disclose that another witness had similar knowledge. Even though there may not have been written reports about this, Brady still required the State to disclose it, and even though the prosecutor may not have personally known about it, Brady makes the State responsible for police nondisclosure. Since these thing weren’t disclosed, Petitioner could not have known about them or raised them on direct appeal or in his Rule 29.15 case. Even though the Eastern District had held that Petitioner’s evidence at that time was insufficient to allow Petitioner to introduce evidence that another person did the crime, Petitioner has introduced new evidence in the habeas case directly linking another person to the crime, so all this evidence would now be admissible. Furthermore, the jury committed misconduct by seeking out a map that was not in evidence to use to convict Petitioner. The State contends that Petitioner has the burden to prove prejudice from this, but there is nothing in Missouri law that deprives a habeas petitioner of the benefit of the presumption of prejudice from such jury misconduct; Petitioner would have had such a presumption if this matter was raised on direct appeal. Here, the presumption applies and the State failed to rebut it. Grant of writ of habeas corpus affirmed.
* Rehberg v. Paulk, ___ U.S. ___, 91 Crim. L. Rep. 8 (U.S. 4/2/12):

Holding: Grand jury witnesses have absolute immunity from civil suits.
* Kaley v. U.S., ___ U.S. ___, 94 Crim. L. Rep. 597, 134 S.Ct. 1090 (U.S. 2/25/14):

Holding: There is no constitutional right to revisit a grand jury’s finding of probable cause in a pretrial hearing challenging the restraint of forfeitable assets needed to hire counsel; “With probable cause, a freeze [on assets] is valid”; “The grand jury gets to say – without any review, oversight or second-guessing – whether probable cause exists to think that a person committed a crime”; this rule avoids the inconsistent result of a judge finding no probable cause to restrain potentially forfeitable assets, but probable cause to allow the criminal case to proceed.
In re Grand Jury Proceedings, 94 Crim. L. Rep. 668, 2014 WL 702193 (1^st Cir. 2/20/14):

Holding: Prosecutors who empanel a new grand jury cannot enforce by civil contempt a subpoena duces tecum issued by an earlier, now-defunct grand jury.
Sampson v. U.S., 93 Crim. L. Rep. 587 (1^st Cir. 7/25/13):

Holding: New penalty-phase trial was warranted where juror repeatedly gave dishonest answers in voir dire regarding her and her family members’ employment, drug use and experience with criminal justice system.
U.S. v. Wu, 92 Crim. L. Rep. 788 (1^st Cir. 3/19/13):

Holding: Offense of selling items qualifying as weapons-grade technology without a license requires a jury determination of whether the items actually qualified.
U.S. v. Collins, 2012 WL 34044 (2d Cir. 2012):

Holding: During ex parte exchange which occurred without consultation with counsel, the trial court emphasized the importance of reaching a verdict to a dissenting juror, thereby depriving defendant of his right to be present, which was not harmless error.
U.S. v. Mitchell, 2012 WL 3171563 (3d Cir. 2012):

Holding: Close relatives of a principal in a case are impliedly biased as jurors under the kinship principle, but implied bias does not extend to jurors who are coworkers of a key witness.
Breakiron v. Horn, 89 Crim. L. Rep. 190 (3d Cir. 4/18/11):

Holding: Where Movant claims that trial counsel was ineffective in failing to strike a juror who heard another juror’s remarks about Defendant’s prior bad acts, Strickland requires an objective assessment of whether any juror who heard the remarks would have voted to acquit Movant; Movant does not have to show that the specific juror in question was actually prejudiced to win relief; here, Movant is entitled to relief because there was a reasonable probability he would not have been convicted had counsel acted when the juror was exposed to the improper remarks.
U.S. v. Lawson, 2012 WL 1372172 (4^th Cir. 2012):

Holding: A presumption of prejudice applied to a juror’s use of a dictionary definition of the term “sponsor” during deliberations in a prosecution for violating the animal fighting prohibition of the Animal Welfare Act.
U.S. v. King, 628 F.3d 692 (4^th Cir. 2011):