Case Law Update: 2011-2014 Cumulative Edition

Holding: (1) Even though the Mandatory Detention Act, 18 USC 3145(c), provides that certain defendants cannot be released pending sentencing if their crimes are violent, there is an exception where a “Judicial Officer” determines that the defendant is neither a seafety threat nor a flight risk and that detention is inappropriate; (2) a judge qualifies as a “Judicial Officer” under the statute; therefore, a judge can release Defendant under the statute for medical reasons pending his sentence appeal.
U.S. v. Tapia, 2013 WL 557278 (D.S.D. 2013):

Holding: Even though Defendant was an illegal alien, he was not a flight risk and was allowed bail under Bail Reform Act.
Treacy v. Lamberti, 2013 WL 556077 (Fla. 2013):

Holding: Since juveniles cannot receive LWOP for non-homicide offenses, Juvenile was eligible for bond even though their charged crime would carry LWOP if committed by an adult and would not be eligible for bond.
State v. Kiese, 2012 WL 1213352 (Haw. 2012):

Holding: A defendant who had been convicted of harassment and given a sentence of six months’ probation, as a petty misdemeanant on bail after the conviction, was entitled to a continuance of bail pending appellate review.
Fry v. State, 93 Crim. L. Rep. 512, 2013 WL 3193328 (Ind. 6/25/13):

Holding: The State bears the burden of proving conditions that justify denying bail to a person charged with murder or treason; placing the burden on defendants to prove they are entitled to bail violates the presumption of innocence and the State’s burden of proof beyond a reasonable doubt.
Big Louie Bail Bonds v. State, 94 Crim. L. Rep. 157 (Md. 10/23/13):

Holding: Bond is not forfeited when an alien-defendant is deported because defendant did voluntarily leave the country or evade prosecution.

DeWolfe v. Richmond, 2012 WL 10853 (Md. 2012):

Holding: Bail hearing was a “stage” of criminal proceedings, requiring appointment of counsel for indigent arrestees.
Com. v. Gautreaux, 88 Crim. L. Rep. 543 (Mass. 1/20/11):

Holding: Article 36 of the Vienna Convention on Consular Relations creates an individually enforceable right to consular notification, but to obtain a new trial for violation, Defendant must show a substantial risk of miscarriage of justice.
Smith v. Banks, 2014 WL 338842 (Miss. 2014):

Holding: Habeas corpus was available to challenge denial of pretrial bail.
State v. Segura, 2014 WL 295237 (N.M. App. 2014):

Holding: Defendant, who was on pretrial bail, was denied due process where trial court revoked his bail for alleged violation of conditions of release without any opportunity to be heard or examine witnesses.
People ex rel. Mcmanus v. Horn, 2012 WL 952409 (N.Y. 2012):

Holding: The statute providing that a court “may direct that the bail be posted in any one of two or more” of the listed forms prohibits a court from fixing only one form of bail.
State v. Haynes, 90 Crim. L. Rep. 602 (N.D. 1/12/12):

Holding: A bail condition requiring a defendant to consent to a warrantless search at any time of her person, vehicle, and residence was invalid under the state’s criminal rules
Collins v. Com., 2012 WL 112250 (Va. 2012):

Holding: Common law allowing out-of-state bail bondsmen and bounty hunters to enter another state to apprehend fugitive bailees was abrogated by statutes requiring bail bondsmen and bounty hunters to be licensed in the state.
Hagg v. Steinle, 2011 WL 1815443 (Ariz. Ct. App. 2011):
Holding: Statute mandating pretrial electronic monitoring “where available” did not require nonresident Defendant to stay in county where charged.
People v. International Fidelity Insurance Company, 152 Cal. Rptr.3d 52 (Cal. App. 2012):

Holding: Trial court lacked authority to order forfeiture of bail in misdemeanor case where Defendant appeared through counsel and court had not ordered a personal appearance by Defendant.
Babalola v. Superior Court, 2011 WL 489934 (Cal. App. 2011):

Holding: Even though Defendant had in the past hit victims and there was “bad blood” between them, this did not constitute good cause to issue a criminal protective order against Defendant because there was no evidence that Defendant attempted to intimidate or dissuade victims from testifying at trial.
Com. v. Gomez, 2011 WL 61886 (Mass. Ct. App. 2011):

Holding: Court cannot order bail forfeited when defendant is in custody on a separate charge.
Ex Parte Gill, 94 Crim. L. Rep. 282, 2013 WL 6081449 (Tex. App. 11/20/13):

Holding: Texas statute which requires release on bond or reduction in bond if State fails to timely bring a Defendant to trial does not allow a judge to consider the safety of the victim or the community when choosing between the two options.
Brady Issues
State ex rel. Woodworth v. Denney, 2013 WL 85427 (Mo. banc Jan. 8, 2013):

Holding: (1) In habeas action, State’s failure to disclose exculpatory evidence before trial constitutes “cause” to overcome a procedural default for failure to raise Brady violations on appeal or in Rule 29.15 action; (2) State’s failure to disclose letters between trial judge, attorney general and murder victim’s husband which would have impeached husband’s testimony and supported defense theory at trial violated Brady and warranted habeas relief, even though habeas petitioner did not open the entire defense file to the State in the habeas case or call all prior defense counsel to testify in the habeas proceeding; (3) State’s failure to disclose that murder victim’s daughter had reported to police that another suspect in the murder had violated a protection order against her violated Brady and warranted habeas relief because such evidence would have impeached daughter’s testimony and supported the defense theory that this other suspect committed the murder; even though the prosecutor may not have had knowledge of this protection-order evidence, the State was still responsible under Brady for the police’s failure to disclose it, and even though the defense knew before trial of some matters about the protection order because daughter had mentioned it in her pretrial deposition, daughter’s deposition testimony on this was misleading and incomplete because she did not testify that suspect had made any threats or that she had reported them to police; (4) in assessing Brady prejudice in habeas proceeding, court can consider newly discovered evidence of innocence in addition to the Brady violations and the matters presented at trial to determine if the trial verdict is no longer “worthy of confidence.”
State ex rel. Griffin v. Denney, No. SC91112 (Mo. banc 8/2/11):

Even though State prosecutors may not have known about a DOC incident report that was favorable to Defendant in a prison stabbing case, State is responsible for its disclosure under Brady and failure to disclose it prejudiced Defendant; habeas corpus relief is available and granted.

Facts: In the 1980’s, Defendant (Petitioner) was convicted of first degree murder due to a fatal stabbing that occurred at a DOC prison. The primary witnesses against Defendant were two fellow inmates of questionable credibility. No physical evidence connected Defendant to the murder. In 2005, Defendant filed a habeas petition alleging newly discovered evidence that the State failed to disclose a DOC report that prison guards had seized a sharpened screwdriver from another inmate immediately after the stabbing.

Holding: To prevail in habeas, Defendant must show “cause” for failure to raise his claim previously, and “prejudice.” “Cause” must be some objective factor external to the defense. Here, the State’s failure to disclose the DOC report is “cause.” To show prejudice, Defendant does not need to prove definitively that he would have received a different verdict if the report had been disclosed, but whether in its absence, he received a fair trial resulting in a verdict worthy of confidence. In assessing Brady violations, the Court reviews all available evidence discovered after trial. Here, the undisclosed evidence would have provided an alternative perpetrator and further impeached the State’s witnesses because it places another inmate with a weapon at the murder scene just minutes after the murder. Even if the prosecutor was unaware of this, the State has a duty to discover and disclose this evidence because the prison guards were acting on the State’s behalf. Defendant was further prejudiced when other post-trial evidence is considered, including that one of the State’s witnesses has recanted his testimony, and that another person has confessed to the murder. Habeas relief granted. State must retry Defendant within 60 days or discharge him.
State v. Moore, 2013 WL 5726075 (Mo. App. E.D. Oct. 22, 2013):

State was obligated under Brady to disclose its Witness’ prior SIS (but was not prejudicial here since evidence of guilt was strong).

Facts: After trial, the State learned that its complaining Witness in rape prosecution had a prior SIS for misdemeanor stealing. The defense moved for a new trial under Rule 25.03 and Brady.

Holding: The State’s discovery obligations under Rule 25.03 and Brady are separate legal concepts. Rule 25.03(A)(7) requires the State, upon request of Defendant, to provide prior criminal convictions of witnesses. However, this Rule does not require disclosure of SIS. If a defendant seeks disclosure of SIS, he must make a motion to the trial court under Rule 25.04, but that was not done here. Brady requires the State to learn of any favorable information known by others acting on behalf of the government and and to disclose that; the State must “diligently” search for this information. Here, even though the State didn’t learn of the SIS until after trial, it was nevertheless obligated to have searched and found it before trial, and to have disclosed it. However, there was no prejudice here because other evidence of guilt was strong.
In re: Ferguson v. Dormire, 413 S.W.3d 40 (Mo. App. W.D. 2013):

(1) Even though a circuit court had denied habeas petition on the merits with written Findings, the remedy for Petitioner is to file a new habeas proceeding in the appellate court, and the appellate court does not review the circuit court’s Findings but reviews the case de novo; (2) in the absence of statutory constraint, a habeas Petitioner is not barred from filing successive habeas corpus petitions asserting grounds previously denied by a circuit court. (However, where a higher court has denied a writ, Rule 91.22 prohibits returning to a lower court unless the higher court’s denial was without prejudice.); and (3) where the State failed to disclose an interview of a State’s witness which would have impeached another State’s witness and allowed the defense to develop further evidence, Petitioner demonstrated cause and prejudice for habeas relief and violation of Brady.

Facts: Petitioner was convicted of murder. After appeal and postconviction remedies were concluded, he filed a habeas petition alleging, in relevant part, that the State failed to reveal an interview of a witness which would have impeached a key identification witness at trial. There was no physical evidence connecting Petitioner to the offense, and the identification evidence was hotly contested at trial. The circuit court denied the petition on the merits. Petitioner filed a new habeas petition in the appellate court.

Holding: (1) The State claims that because Petitioner’s claims were denied by the circuit court after an evidentiary hearing, Petitioner’s recourse is to file for a writ of certiorari. When a circuit court grants a habeas petition, the State’s recourse is to file for a writ of certiorari. However, when a petition is denied, Petitioner’s remedy is to file a new habeas petition in the appellate court. Further, the appellate court does not conduct appellate review of the circuit court’s decision, but reviews de novo. (2) The State argues that the petition should be prohibited as “successive,” but in the absence of any statutory constraint, a habeas Petitioner is not prohibited from filing a successive petition in the appellate court. Rule 91.22 does, however, prohibit returning to circuit court after a habeas writ is denied by a higher court unless the higher court denied the writ without prejudice. (3) Petitioner has established the cause and prejudice gateway for habeas relief because he has shown that the State’s failure to disclose a witness interview which would have impeached a critical identification witness was an objective factor external to the defense, which he did not know about or have reason to know about at the time of his direct appeal and postconviction cases. In determining prejudice, Petitioner need only show a reasonable probability of a different result or undermined confidence in the outcome, not that discounting the inculpatory evidence in light of the nondisclosed evidence, there would not have been enough evidence left to convict. Even though the State did not reduce the witness interview to writing and the prosecutor did not know about it, the failure to disclose still violated Brady, because Brady obligations cover police and prosecutor investigators. Even though the State claims Petitioner could have learned about the Brady violation sooner, a rule that “prosecutor may hide, defendant must seek,” does not comport with due process. The undisclosed evidence would have impeached a critical identification witness at trial, and allowed the defense to develop other evidence. Even though the State endorsed the undisclosed witness, endorsement cannot be a valid substitute for Brady disclosure because it is not enough to avoid active suppression of favorable evidence; Brady requires disclosure.
Wallar v. State, 403 S.W.3d 698 (Mo. App. W.D. 2013):

(1) The “form discovery response” of the Jackson County Prosecutor’s Office is deceptive because it implies that the Office has checked the criminal histories of witnesses when the Office has not, in fact, done so; thus, the response violates Rule 25.03; (2) in a Rule 24.035 motion following a guilty plea, a mere violation of a discovery rule is not cognizable, but the issue can be cognizable if it has “constitutional significance” under Brady; to plead the claim, Movant must plead that had the Brady evidence been disclosed, he would not have pleaded guilty but would have insisted on going to trial; but (3) the failure to disclose mere impeachment evidence is insufficient, because the government is not constitutionally required to disclose impeachment evidence prior to entering a plea agreement with a defendant.

Facts: Following a guilty plea, Movant filed a 24.035 motion alleging that the Jackson County Prosecutor’s Office had failed to disclose evidence to him in violation of Rule 25.03. The Western District ultimately affirms the denial of postconviction relief, but makes some notable comments about discovery law and postconviction relief.

Holding: (1) The Western District finds that the “form discovery response” of the Jackson County Prosecutor’s Office is misleading because it implies that the Office has already run criminal histories on State’s witnesses when it has not done so. Although this was not prejudicial in this case because the defense attorney testified that he knew the Office did this and knew he would not get discovery of this until closer to trial, the Office’s “standard response” is deceptive and does not comply with Rule 25.03. The Jackson County Prosecutor’s Office should alter this language in its standard response to clearly reflect either that the criminal histories have not been run, or that they have been run and revealed no prior convictions. (2) As for Movant’s claim that he should receive postconviction relief due to violation of Rule 25.03, mere violation of a court rule is not cognizable under Rule 24.035 because court rules do not constitute the “laws of this state.” For the claim to be cognizable, it must have and be pleaded as having “constitutional significance,” i.e., it must violate the U.S. or Missouri Constitutions. Failure to disclose evidence could have constitutional significance if it can meet the test for Brady violations. To plead and prove such a claim, a movant must plead and prove that had the evidence at issue been disclosed, he would not have pleaded guilty, but would have insisted on going to trial. This Court recently held that when a defendant has pleaded guilty, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights … but may instead attack [only] the voluntary and intelligent character of the guilty plea by showing ineffectiveness of counsel.” The State argues that this holds that movants cannot raise Brady claims or constitutional claims other than ineffective counsel. This reading is too narrow. Rule 24.035 contemplates raising constitutional claims. To be cognizable, the claim would have to be one the defense was unaware of prior to the plea, that could not have been raised prior to the plea, and that rendered the plea involuntary. While such claims are rare, an example would be a Brady claim, but “[s]uch a claim is more likely to be successful if the defendant entered an Alford plea.” Also, the violation of other court rules can have “constitutional significance.” For example, if there is not a factual basis under Rule 24.02(e), this violates due process, and Rule 24.035 allows relief as a violation of due process. (3) The U.S. Supreme Court has held, however, that the Constitution does not require the government to disclose impeachment evidence prior to entering a plea agreement with a defendant. The undisclosed evidence here is merely impeachment evidence, and therefore, does not affect the voluntary nature of the plea.
State ex rel. Koster v. Green, No. WD75820 (Mo. App. W.D. 12/26/12):

Even though Petitioner confessed to crime, it was not an abuse of discretion to grant habeas relief where police had committed numerous “Brady” violations by failing to disclose serological test results, fingerprints, a drawing of the crime scene, and that a key prosecution witness had been hypnotized – all of which would have aided the defense and which undermine confidence in the outcome.

Facts: Defendant/Petitioner was convicted of a murder in 1983. In 2011, he sought habeas relief on grounds that the police had committed various “Brady” violations. The trial court granted relief. The State sought a writ of certiorari and claimed that there was no prejudice to Petitioner since he had confessed to the crime.

Holding: The undisclosed evidence in this case would have cast doubt on Petitioner’s confession because such evidence was inconsistent with it. The defense was that Petitioner, who was mentally ill, had falsely confessed. To demonstrate prejudice, a Petitioner does not have to show that the suppressed evidence would have resulted in an acquittal or that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. Thus, it doesn’t matter that even if the favorable evidence had been disclosed, there would still have been enough to convict based on Petitioner’s confession. All that is required is a showing that the favorable evidence could reasonably be taken to have put the whole case into a different light so as to undermine confidence in the verdict. Here, all of the undisclosed evidence would have allowed defense counsel to greatly undercut the credibility of the police investigation, which was a critical issue in the jury’s assessment of Petitioner’s confession. Had the undisclosed evidence come to light, the defense easily could have shown evidence that was inconsistent with Petitioner’s confession. It was not an abuse of discretion to grant habeas relief.
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 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.