Case Law Update: 2011-2014 Cumulative Edition

Holding: Defendant was entitled to writ of actual innocence, where alleged sex assault victim had recanted her testimony and had subsequently been convicted of perjury based on her false testimony at Defendant’s trial.
In re Personal Restraint of Carter, 263 P.2d 1241 (Wash. 2011):

Holding: Where a Defendant/Petitioner claims that he is actually innocent of prior convictions used to enhance a later sentence, then he may use an actual innocence exception to the postconviction time limits to challenge the prior convictions.
Elder v. Scolapia, 738 S.E.2d 924 (W.Va. 2013):

Holding: Defendant sentenced to home incarceration was incarcerated under sentence of imprisonment (in custody) for purposes of being able to bring a habeas corpus case.
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. Soojian, 2010 WL 4751762 (Cal. App. 2010):

Holding: Where defense counsel had been surprised at trial by testimony that truck used in crimes may have belonged to Defendant’s cousin, counsel should have been able to present new evidence discovered after trial about this in a new trial motion; this was an exception to rule that such evidence cannot be presented where counsel could have discovered it earlier by exercise of due diligence.
State v. Johnson, 2011 WL 1886475 (Idaho Ct. App. 2011):

Holding: “Mailbox rule” applies to postconviction motions because prisoner loses control over delivery of such motions once he gives them to prison authorities.
People v. Jakes, 2013 WL 6504817 (Ill. App. 2013):

Holding: Defendant was entitled to postconviction discovery on his claim that Officer beat him to obtain a confession and had lied under oath, where since his conviction, Defendant had learned of multiple cases of police misconduct and coerced confessions involving this same Officer.
People v. Henderson, 2011 WL 5838686 (Ill. App. 2011):

Holding: Summary judgment was not warranted in a postconviction petition where the motion was based merely on the fact that the verification affidavit was unnotarized.

People v. Barrow, 954 N.E.2d 895 (Ill. App. 2011):

Holding: Where statute authorizing the use of scientific evidence in postconviction proceedings regarding a claim of actual innocence was silent on the use of witnesses, the court determined that witnesses could also be utilized; while the issue in this case was whether the state could utilize witnesses, the court suggested that witnesses could also be used by the defense.
People v. Hamilton, 2014 WL 128496 (N.Y. App. 2014):

Holding: A freestanding claim of actual innocence can be brought under portion of statute for motions to vacate providing for vacation of a conviction based on violation of petitioner’s constitutional rights.
People v. L.G., 2013 WL 4402830 (N.Y. City Crim. Ct. 2013):

Holding: Even though Defendant was convicted of a weapons offense, it was the direct result of her being sex trafficked as a prostitute because she was forced to work under dangerous conditions, so her conviction should be vacated.
People v. G.M., 2011 WL 1815413 (N.Y. City Crim. Ct. App. 2011):

Holding: Even though Defendant was convicted of drug and other crimes in addition to prostitution, she was allowed to move to vacate all her convictions under a rule that allows vacation of convictions for sex trafficking victims for prostitution related offenses.
People v. Bronson, 2011 WL 1631919 (N.Y. City Crim. Ct. 2011):

Holding: Alleged sex abuse victim’s recantation warranted vacation of Defendant’s conviction where such evidence would have created a reasonable probability of a different verdict if it had been presented at trial.

State v. Keeley, 2013 WL 544055 (Ohio App. 2013):

Holding: Even though Movant did not raise certain issues in his earlier direct appeal, res judicata did bar raising those issues in his later postconviction case.
Knox v. Nooth, 2011 WL 2555841 (Or. App. 2011):

Holding: PCR court should have appointed new counsel for Movant after prior counsel was permitted to withdraw.
Com. v. Rykard, 2012 WL 4077380 (Pa. Super. 2012):

Holding: Movant’s response to State’s motion to dismiss postconviction petition was not itself a prohibited “successive” petition.
Ex parte Zantos-Cuebas, 2014 WL 715057 (Tex. App. 2014):

Holding: Where habeas petitioner who spoke only Spanish alleged he did not understand the written advisements as to immigration consequences of his plea, this stated a claim that was not frivolous on its face.
Ex Parte Coty, 2014 WL 128002 (Tex. App. 2014):

Holding: Remedy in habeas proceeding for misconduct by crime lab technician at trial was to shift the burden of falsity to the State, but the burden of persuasion with respect to materiality remained with Petitioner.
Ex Parte Hernandez, 2013 WL 1247678 (Tex. App. 2013):

Holding: Motion court improperly limited its review of habeas proceeding to the guilty plea record despite habeas counsel’s efforts to offer other clearly relevant evidence about what plea counsel had advised Petitioner regarding immigration consequences of conviction.
Ex parte Henderson, 92 Crim. L. Rep. 306 (Tex. Crim. App. 12/5/12):

Holding: Defendant was entitled to habeas relief where medical examiner recanted his testimony in a shaken-baby case regarding cause of death based on new scientific evidence.
Ex parte Rendon, 2010 WL 4628527 (Tex. Crim. App. 2010):

Holding: Petitioner need not personally verify his habeas petition, but can be verified by another person “according to his belief.”
Brown v. State, 93 Crim. L. Rep. 592 (Utah, 7/12/13):

Holding: A post-conviction determination of actual innocence can be based on combination of both newly discovered evidence and evidence that was previously available to petitioner.
Sanctions
Fuller v. Moore, No. ED96398 (Mo. App. E.D. 11/1/11):

Holding: (1) Where Plaintiff’s request for sanctions was premature because Plaintiff did not wait the required 30-days under Rule 55.03(d)(1)(A) to allow Defendant to correct their alleged misconduct, the premature filing deprived the trial court of authority to rule on the sanctions motion; and (2) a trial court errs when it grants a request for sanctions that is not “made separate from” other motions as required by Rule 55.03(d)(1)(A).
In re: Marriage of Younker v. Younker, 2014 WL 849879 (Mo. App. S.D. March 4, 2014):

Holding: Before imprisoning someone for civil contempt for failure to pay a civil judgment, court must find that Contemnor has the present ability to pay; absent the ability to pay, the coercive purpose of civil contempt is frustrated because Contemnor has no key to the jailhouse door, and this is true even if Contemnor acted in “bad faith” in some of their dealings in the case.
State ex rel. Jackson County Prosecuting Attorney v. Prokes, No. WD72996 (Mo. App. W.D. 12/20/11):

Where State engaged in repeated Brady violations and failed to comply with court order for discovery, trial court did not err in excluding all the State’s evidence from any trial.

Facts: Defendant’s case had previously been reversed in postconviction due to Brady violations. Before retrial, the court entered a detailed discovery order, with which the State failed to comply. As a sanction, the trial court entered an order excluding all evidence from trial, which effectively prevented the State from trying the case. The State sought a writ of prohibition.

Holding: In order to prevail on a writ, the State must show that the trial court’s order was an abuse of discretion. Because the original conviction was reversed due to Brady violations, the trial court entered a detailed discovery order for the retrial, with which the State repeatedly failed to comply. Where the State has failed to respond promptly and fully to a disclosure request, the issue is whether the failure has resulted in fundamental unfairness or prejudice to the defendant. Rule 25.18 provides that a court may “enter such other order as it deems just under the circumstances” for discovery violations. Here, the State’s discovery violations have gone on for more than 10 years. The State has continued to delay discovery, object to discovery, and failed to comply with court orders regarding discovery. Defendant has been subjected to fundamental unfairness and prejudice because he is no closer to receiving a fair trial than he was when he was charged more than 10 years ago. Willful violations require more serious sanctions than merely negligent violations because the willful violation shows an intentional disregard for the rules and orders of the court. The dissent argues that prior cases have held that due process concerns mean that a court should be cautious in excluding defense witnesses due to a discovery violation, but due process concerns do not apply to the State precisely because the State does not have due process rights. The dissent also argues that Missouri citizens are prejudiced here because the Defendant will not be brought to trial. However, the citizens have been prejudiced by the prosecutor’s misconduct throughout the case. The “balancing test” employed by the dissent is predisposed to an outcome in favor of the State based on the improper assumption that the State’s overriding interest should be to prosecute and convict Defendant, but such is not the case. The prosecutor has a duty not to convict at any cost, but to see that justice is done and that a defendant receives a fair and impartial trial. The trial court did not abuse its discretion in excluding all the State’s evidence.
State v. Lee, No. WD71924 (Mo. App. W.D. 6/7/11):

Holding: In case of first impression, Western District holds that even though police officer-witness intentionally gave testimony designed to provoke a mistrial, the prosecutor was not responsible for this misconduct, so the trial court did not have authority to order dismissal of the charges with prejudice; further, double jeopardy does not bar retrial of defendant.
* Turner v. Rogers, ___ U.S. __, 89 Crim. L. Rep. 472 (U.S. 6/20/11):

Holding: Whether defendant in civil contempt proceeding for failure to pay child support is entitled to appointed counsel depends on applying the balancing test of Mathews v. Edridge, 424 U.S. 319 (1976).

Editor’s Note: Missouri on this matter is case on this subject is State ex rel. Family Support Division v. Lane, No. WD70715 (Mo. App. W.D. 6/8/10)(in order for a court to impose imprisonment for contempt for failure to pay child support, it must appoint private counsel for indigent defendants or they must waive counsel; Public Defender cannot be appointed).
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.
U.S. v. Agosto-Vega, 94 Crim. L. Rep. 49, 2013 WL 5394175 (1^st Cir. 9/27/13):

Holding: Even though defense counsel filed certain motions “late,” trial court was not justified in imposing a fine on defense counsel, since the motions could have been presented orally at trial anyway, and “the sua sponte issuance of a sanction order, staking out a view and judgment without any warning or opportunity to be heard, increases the likelihood of unfairness.”
In re Fengling Liu, 90 Crim. L. Rep. 327 (2^nd Cir. 11/22/11):

Holding: Attorneys may “ghost write” pleadings for pro se litigants without violating duty of candor to court because “ghost writing” is a form of limited representation under Model Rule 1.2(c).
Brandt v. Gooding, 2011 WL 567469 (4^th Cir. 2011):

Holding: The introduction of fraudulent letter at a deposition did not occur under the eye of the court and, thus, did not allow for summary criminal contempt.
U.S. v. Llanez-Garcia, 94 Crim. L. Rep. 205 (6^th Cir. 11/5/13):

Holding: Attorney should not have been sanctioned for abuse of subpoena power where there was no evidence attorney acted in “bad faith,” but instead relied on her interpretation of an arguably ambiguous criminal procedural rule regarding service of subpoenas; attorney issued a Rule 17(c) subpoena to records custodians to produce materials or appear in court on June 3; the problem was there was no court hearing scheduled on June 3; Rule 17(c)(1) states that courts “may direct” the production of materials before they are offered into evidence, and attorney believed the use of the term “may” does not require advance court approval.
U.S. v. Ali, 2012 WL 1970776 (8^th Cir. 2012):

Holding: Where Defendant refused to stand in courtroom when court convened, in determining whether to find criminal contempt, court must evaluate this under the Religious Freedom Restoration Act which applies to any sincerely held religious belief, not the First Amendment, which requires only a substantial burden on a central religious belief.
U.S. v. Kimsey, 2012 WL 386338 (9^th Cir. 2012):

Holding: Violations of local court rules cannot serve as predicates for criminal convictions under the federal criminal contempt statute.
U.S. v. Aguilar, 2011 WL 6097144 (C.D. Cal. 2011):

Holding: Government’s misconduct warranted exercise of the trial court’s supervisory powers to dismiss the indictment, where the misconduct included search warrants procured through materially false and misleading affidavits, improperly obtained privileged communications between defendant and defense counsel, and other flagrant acts.
In re Grand Jury Proceedings, 2014 WL 297538 (S.D. N.Y. 2014):

Holding: Even though civil Contemnor who was jailed for refusing to testify at grand jury was continuing to refuse to testify, where he had publicly staked out a position of noncooperation, had public supporters and was willing to risk deteriorating health to refuse to testify, it was clear that Contemnor would never testify and, thus, had to be released because the jailing for contempt was not inducing him to testify.
U.S. v. Bran, 2013 WL 2565518 (E.D. Va. 2013):

Holding: (1) Where Gov’t deported a witness who would likely have provided favorable testimony for Defendant and Gov’t was aware at time of deportation that witness had information about case, some sanction for the Gov’t’s conduct was appropriate; but (2) appropriate sanction was a “missing witness” jury instruction, not dismissal of case.
Bloodman v. State, 2010 WL 1507065 (Ark. 2010):

Holding: Even though the trial judge wrote a letter to Attorney informing him that a hearing would be held on a specific date “ to determine what happened” regarding Attorney’s alleged misrepresentations to the court, this did not provide proper notice to Attorney that court was going to consider criminal contempt at the hearing.
Oliver v. State, 2013 WL 427236 (Del. 2013):

Holding: Granting 24-hour recess during trial to allow defense counsel to be able to review forensic reports which State had failed to disclose was not an appropriate sanction for State’s non-disclosure before trial, since defense counsel would not have time to adequately prepare for cross-examination of the highly technical information or be able to consult with their own forensic expert.
People v. Kladis, 2011 WL 6851169 (Ill. 2011):

Holding: State’s allowance of destruction of videotape of defendant’s traffic stop was a discovery violation, and the trial court did not abuse its discretion by barring the arresting officer from testifying about events which occurred during the time period of the videotape as a sanction for the state’s actions.
In re Brizzi, 91 Crim. L. Rep. 15 (Ind. 3/12/12):

Holding: Prosecutor violated ethical rules on trial publicity and special responsibility of prosecutors when he published press release that said the evidence was overwhelming and to not seek the death penalty would be a “travesty” in this case.
Com. v. Carney, 88 Crim. L. Rep. 349, 2010 WL 4948559 (Mass. 12/8/10):

Holding: Punitive monetary sanctions against a party are not appropriate for a discovery violation; such sanctions are limited to remedial measures aimed at curing prejudice and promoting fair trial.
Freeman v. State, 93 Crim. L. Rep. 362, 2013 WL 2350373 (Miss. 5/30/13):
Holding: State’s failure to preserve evidence that is subject to a court’s discovery order violated Defendant’s due process right to present a defense and entitled him to judgment in his favor regardless of whether State acted in bad faith; here, the defense had been granted an order to preserve all evidence, but state later destroyed a video of the DWI traffic stop.
State v. Dabas, 93 Crim. L. Rep. 613 (N.J. 7/30/13):

Holding: Where Officer destroyed his interrogation notes of Defendant in violation of State’s disclosure obligation, Defendant was entitled to an adverse-inference instruction because the destruction allowed the State to present a sanitized version of the interrogation.
Concah v. Sanchez, 2011 WL 2477141 (N.M. 2011):

Holding: Where judge imposed contempt and incarceration on 32 spectators in court who may have interrupted the court proceedings, but judge did not observe each of the 32 actually being disruptive, this indiscriminate contempt finding violated due process.
State v. Beeler, 2012 WL 5524982 (Tenn. 2012):

Holding: Defendant’s attorney, who asked a co-defendant a question while co-defendant’s counsel was examining a witness, did not engage in misbehavior to warrant contempt where both attorneys were working closely together on a joint defense.
Hunter v. Virginia State Bar, 92 Crim. L. Rep. 697 (Va. 2/28/13):

Holding: Under Virginia Rule 1.6 on attorney-client confidentiality (which prohibits disclosure of information a lawyer obtains in an attorney-client relationship that would be embarrassing or detrimental unless client consents beforehand), a defense counsel who uses public information from a trial to blog about a client’s completed case does not have to obtain his former client’s consent before doing so, even if the client will be embarrassed or suffer detriment if details about their case are on the internet; “A lawyer is no more prohibited than any other citizen from reporting [publicly available information of] what transpired in the courtroom.”
Johnson v. Dept. of Public Safety Standards and Training, 2012 WL 5429461 (Or. App. 2012):

Holding: Oregon victim’s rights law which provided that a victim must be informed “by defendant’s attorney” that they are being contacted in a defense capacity did not require a private investigator hired by a defense attorney to disclose anything; the only obligation imposed by the law was on the attorney, not the investigator.
In re McCann, 94 Crim. L. Rep. 277 (Tex. App. 11/20/13):

Holding: Because an attorney’s “trial file” belongs to the Defendant, the Defendant can direct that the file not be given to successor counsel; thus, trial court cannot hold prior counsel in contempt for refusing to turn over file where counsel was following Defendant’s directions.
Search and Seizure – Suppression Of Physical Evidence
State v. McNeely, 358 S.W.3d 65 (Mo. banc 1/17/12):

The 4^th Amendment prohibits a non-consensual blood draw without a warrant in routine DWI arrest cases; the fact that alcohol may dissipate in blood over time does not justify a non-consensual blood draw without a warrant; exigent circumstances must exist (e.g., accident or injury) in order to do a warrantless blood draw.

Facts: Defendant, who was stopped for speeding, displayed classic characteristics of DWI and failed field sobriety tests. Defendant refused to consent to a breath test or blood test. Officer, believing that changes in Sec. 577.041 RSMo. Supp. 2010, now allowed a warrantless blood test, took Defendant to a hospital and had blood drawn. Defendant moved to suppress the blood test.

Holding: Schmerber v. California, 384 U.S. 757 (1966), held that a warrantless blood draw requires that there be “special facts” that might lead an officer to reasonably believe he was faced with an emergency situation in which delay in obtaining a warrant would lead to destruction of evidence. Schmerber involved an injury accident in which the officer had to investigate the accident and take defendant to the hospital, thus reducing time to get a warrant. Here, the issue before the court is whether the natural dissipation of blood-alcohol evidence alone is a sufficient exigency to dispense with the warrant? It is not under Schmerber. Officers must reasonably believe they are confronted with an emergency where the delay in obtaining a warrant would threaten destruction of evidence. In routine DWI cases, in which no special facts other than natural dissipation of alcohol in blood exist, a warrant must be obtained before blood can be drawn. Here, this is a routine DWI case with no special facts. Hence, a motion to suppress should be granted. Because the warrantless blood draw violated the 4^th Amendment, the court need not address the State’s arguments based on the implied consent law. State v. Ikerman, 698 S.W.2d 802 (Mo. App. 1985) and State v. Setter, 721 S.W.2d 11 (Mo. App. 1986)(holding that warrantless blood draws are permissible in DWI cases) are no longer to be followed.
State v. Johnson, No. SC91173 (Mo. banc 12/6/11):

Holding: Where an officer conducts a search incident to arrest in objectively reasonable reliance on binding appellate precedent that is later overturned, the exclusionary rule does not suppress the evidence obtained as a result of the search; hence, where Officer conducted search of vehicle incident to arrest and the search was lawful at the time it was conducted before Arizona v. Gant, 129 S.Ct. 1710 (2009), the evidence would not be suppressed where Officer relied on pre-Gant law.
State v. Grayson, No. SC90971 (Mo. banc 3/29/11):

Where (1) Officer received anonymous tip that certain person was driving a certain vehicle while intoxicated, and (2) Officer stopped different vehicle, saw that it was a different person (Defendant) but knew Defendant had history of arrests and then discovered Defendant had warrant for his arrest, the stop of the car and detention of Defendant were without reasonable suspicion and drugs later found were not attenuated from the unlawful stop, would not have been inevitably discovered, and were not abandoned, even though they were found in the back of police car after Defendant was put there.