Case Law Update: 2011-2014 Cumulative Edition

Holding: Police cannot use an unreasonable show of force during a “knock and talk” to compel a Defendant to open their door.
Mahaffey v. State, 364 S.W.3d 908 (Tex. Crim. App. 2012):

Holding: Even though Defendant-Driver did not signal when he merged from a lane that was ending into another lane, there was not reasonable suspicion to stop Driver since Driver’s merging did not require a signal.
Crider v. State, 2011 WL 5554806 (Tex. Crim. App. 2011):

Holding: An affidavit in support of a search warrant to draw blood did not establish probable cause where there was no indication in the affidavit of how much time had passed between its signing and when the stop was initially made.
State v. Weaver, 90 Crim. L. Rep. 15 (Tex. Crim. App. 9/28/11):
Holding: Loading dock area was a private area (not a public parking lot) and, thus, police could not use a drug dog to sniff vehicles there without a warrant.
Martinez v. State, 2011 WL 2555712 (Tex. Crim. App. 2011):

Holding: Officer lacked reasonable suspicion to stop truck (which ultimately led to DWI arrest) based on caller stating that a truck picked up two bicycles and drove west; the caller failed to report anything reasonably linking this activity to a theft.
State v. Gauthier, 2013 WL 1314971 (Wash. App. 2013):

Holding: The use of Defendant’s invocation of his constitutional right to refuse to give a DNA sample without a warrant as substantive evidence of his guilt of rape violated Defendant’s right against unreasonable search and seizure; exercising right to refuse consent to a warrantless search may have had nothing to do with guilt, and a jury should not be allowed to infer guilt from exercise of a constitutional right.

State v. Lohr, 2011 WL 4944297 (Wash. Ct. App. 2011):

Holding: Search of defendant’s purse was not authorized under premises search warrant.
State v. Monaghan, 2011 WL 6957596 (Wash. Ct. App. 1 2011):

Holding: Where defendant gave consent to search the trunk of his car, that consent did not extend to search of locked container within the trunk.

Self-Defense
State v. Mangum, 390 S.W.3d 853 (Mo. App. E.D. 2013):

(1) Defendant can claim plain error in self-defense instructions where there was no evidence in the record that the defense submitted the instructions; (2) where the evidence viewed in the light favorable to the defense showed that multiple assailants attacked Defendant, it was plain error for self-defense jury instructions to instruct jury that they could acquit only if Defendant reasonably believed he needed to use force against a particular named person; (3) even though one of the assailants was only slapping and hitting Defendant and deadly force is not justified absent threat of death or serious physical injury, where Defendant was attacked by multiple people – some of whom were threatening serious bodily harm -- the acts of one attacker become the acts of another so Defendant can use deadly force against the common threat (all the assailants).

Facts: Viewed in the light most favorable to the defense, the evidence showed that Defendant was attacked by two assailants. He ultimately shot one of them. The jury instructions on self-defense instructed jurors that they could acquit Defendant only if he reasonably believed he needed to use force against one of the particular named assailants to protect himself.

Holding: (1) An appellant waives plain error review of an instruction that he himself submitted, even if the instruction is erroneous. Here, however, nothing in the record shows that Defendant submitted the self-defense instructions at issue; therefore, there is no waiver of plain error review. (2) MAI-CR3d 306.06, Note on Use 7, specifically provides for modification of the self-defense instruction to provide for multiple assailants. Here, however, the jury could find self-defense only if the jury believed that Defendant was protecting himself from a particular named assailant. The State argues that because Defendant did not face death or serious physical injury from the other assailant, who was only hitting and slapping him, he was not justified in using deadly force against her; therefore, no self-defense instruction about her was necessary. However, where a defendant is being attacked by multiple assailants, the act of one becomes the act of another. If two assailants are acting in concert to attack a defendant, the victim is entitled to an instruction hypothesizing multiple assailants. “We hold that a multiple assailant self-defense instruction is warranted even when the person the defendant assaulted never posed a direct threat of bodily harm to the defendant, as long as there is evidence that the person the defendant assaulted acted in concert with the assailant …. [W]hen two or more persons undertake overt action to harm another, the victim may use an appropriate amount of force to defend himself against either aggressor, or both of them.” The Defendant was entitled to a self-defense instruction against all the assailants, not just the one against whom Defendant acted.
Horton v. Warden, Trumbell County Correctional Inst., 2011 WL 590259 (N.D. Ohio 2011):

Holding: Self-defense instruction should have been given where Defendant did not create the situation giving rise to the shooting and did not violate any duty to retreat or avoid danger.
Dennis v. State, 88 Crim. L. Rep. 436, 2010 WL 5110231 (Fla. 12/16/10):

Holding: Under “Stand Your Ground” law (which provides immunity from prosecution for justifiably using force to resist certain arrests), the trial judge is to resolve factual questions via pretrial motion as to whether to grant immunity, and not deny the motion and let the jury decide the factual questions.

State v. Ultreras, 2013 WL 772264 (Kan. 2013):

Holding: The standard of proof for whether Defendant is immune from criminal liability based on justifiable use of force is probable cause, and State had burden of establishing proof that the force was not justified as part of the probable cause determination.
People v. Moreno, 2012 WL 1381039 (Mich. 2012):

Holding: Statute prohibiting people from resisting and obstructing a police officer did not abrogate common-law right to resist illegal police conduct, including unlawful arrests and unlawful entries into constitutionally protected areas; neither the language nor legislative history of the statute indicated that the Legislature intended to abrogate this common-law right.
Newell v. State, 2010 WL 4882026 (Miss. 2010):

Holding: Where Defendant was attacked while getting into his vehicle, he was entitled to an instruction under “castle doctrine” that he shot victim-assailant in reasonable fear of harm to himself, even though Defendant had exited the vehicle when he shot victim-assailant.
State v. Duncan, 89 Crim. L. Rep. 256, 2011 WL 1744209 (S.C. 5/9/11):

Holding: Where Defendant was charged with killing a former guest who was trying to force his way back into Defendant’s house, Defendant was entitled to a pretrial determination of immunity from prosecution under state’s home-defense statute (castle doctrine).
People v. Clark, 2011 WL 5926182 (Cal. App. 2011):

Holding: Self-defense can be a defense to direct child abuse.
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.
State v. White, 2012 WL 3570777 (Neb. App. 2012):

Holding: The right to self-defense and not to retreat when being attacked in a home applies equally whether the attacker is a cohabitant or an unlawful entrant.
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.
Sentencing Issues
State v. Hardin, 429 S.W.3d 417 (Mo. banc 2014):

(1) Where forcible rape statute stated the punishment as a “term of imprisonment of life imprisonment or a term of years not less than five,” a sentence of 50 years was not outside the statutory range under the plain language of the statute since this was “not less than five,” and (2) conviction for both “aggravated stalking” and “violation of protection order” did not violate double jeopardy because violation of protection order is not a lesser-included offense of “aggravated stalking” under the statutory elements test, which is the applicable test for determining lesser-included offenses.

Facts: Defendant was convicted of forcible rape for abducting and raping his wife. He was also convicted of “aggravated stalking” and five counts of “violation of a protective order” for telephoning his wife five times from jail. He was sentenced to 50 years for the rape. On appeal, he claimed that the 50-year sentence exceeded the permissible statutory range, and that his convictions for “aggravated stalking” and “violation of a protective order” violated double jeopardy.

Holding: (1) The rape statute, Sec. 566.030.2 RSMo Supp. 2009, provides that the authorized term is “life imprisonment or a term of years not less than five.” Defendant claims the authorized term is five years to life. Defendant bases his argument on Sec. 558.019.4 which provides that a sentence of life shall be calculated to be 30 years for parole eligibility purposes. However, parole eligibility is not the same as the authorized term of imprisonment. Defendant’s reading is inconsistent with the plain language of the rape statute. The statute says “life imprisonment or a term of years not less than five.” The “or” is disjunctive, meaning the Legislature intended either life imprisonment, or a term not less than five. To the extent that prior decisions of the Court of Appeals have held that the maximum punishment is life imprisonment (State v. Williams, 828 S.W.2d 894 (Mo. App. 1992), State v. Anderson , 844 S.W.2d 40 (Mo. App. 1992)), they should no longer be followed. (2) Double jeopardy protects against multiple punishments for the same offense, but does no more than prevent the sentencing court from imposing greater punishment than the Legislature intended. Sec. 556.041 says a defendant cannot be convicted of more than one offense if one offense is included in the other. One offense is “included” in the other where it is established by proof of the same or less than all the elements required to establish commission of the charged offense. The test is an elements test by comparing the elements of the relevant statutes; not a test based on how the offense is charged. A person commits “aggravated stalking,” Sec. 565.225.3, if his course of conduct includes listed aggravated factors such as (1) making a threat, (2) violating a protective order, or (3) violating a condition of probation, parole or pretrial release. A person commits the crime of “violation of a protective order,” Sec. 455.085.2, when they commit an act of abuse in violation of the order. Under the elements test, violating a protective order is not “included” in the offense of “aggravated stalking.” “Aggravated stalking” requires proof of a course of conduct composed of two or more acts and “aggravated factors,” whereas a protective order violation can be proven by a single act of abuse of the order. “Aggravated stalking” can be proven without demonstrating an order of violation of protection. For example, if the defendant makes a threat. Each offense requires proof of an element the other does not. Defendant assumes that whether the offense of “violating a protection order” is included in the offense of “aggravated stalking” depends on how “aggravated stalking” is charged, proved or submitted to the jury, and that where it is charged and submitted based on violating a protection order, this violated double jeopardy. However, the proper test focusses only on the elements of the statutes defining each offense. An indictment-based analysis is wrong. To the extent that State v. Smith, 370 S.W.3d 891 (Mo. App. 2012) is contrary, it should no longer be followed.
State ex rel. Strauser v. Martinez, 2014 WL 120624 (Mo. banc Jan. 14, 2014):

Where trial court suspended probation and ordered Defendants to appear in court multiple times to continue to pay restitution or court costs, court could not revoke probation after the probation term expired because court did not make every reasonable effort to conduct a revocation hearing during the probation term.

Facts: Two separate Defendants with similar facts sought writs of prohibition to stop the trial court from revoking their probation after their probation terms had expired. Defendant-Strauser received an SIS in 2007 and was ordered to pay $8,389 in restitution. Later, in 2007, the State filed a motion to revoke probation due to failure to pay. The trial court passed the case numerous times, ordering Defendant each time to pay $100 per month. Eventually, the trial court suspended probation and ordered her to continue to appear in court periodically to make payments. Defendant appeared dozens of times from 2007 through 2013. Eventually, in 2013, the court sought to revoke her probation. Defendant-Edmonds received an SIS in 2003 and ordered to pay costs. In 2008, the court suspended probation for failure to pay. In 2008, on the last day of the probation term, the court held a probation violation hearing and ordered her to pay $55 per month. Between 2008 and 2013, the court continued the case and ordered Defendant to appear in court 22 times, with each appearance labeled as a “case review” or “hearing to monitor payments.” In 2013, Defendant filed a motion to discharge probation.

Holding: Defendant-Strauser’s probation term ended in 2012. Defendant-Edmonds’ term ended in 2008. Section 559.036.8 RSMo. Supp. 2012 allows a court to revoke probation after a probation term has ended if (1) the court manifested its intent to conduct a revocation hearing during the probation term, and (2) the court made every reasonable effort to notify the probationer and hold a hearing before the term ends. Here, the court manifested an intent to hold a hearing and notified the Defendants, but the court did not make every reasonable effort to conduct revocation hearings during the Defendants’ probation terms. The court could have held a hearing and revoked during the probationary period, but instead, through various orders, just required Defendants to appear and make payments. The court continued this even after the probationary terms ended. Because the court could have revoked probation on any of the numerous occasions Defendants appeared in court before the probation term expired, but the court chose not to do so, the court did not make every reasonable effort to hold the hearing during the probation term. Although the court may have had worthy goals of attempting to ensure maximum restitution while not imprisoning the Defendants, 559.036.8 does not permit what the court did. In the future, however, new Sec. 559.105 RSMo. 2013 will give more “flexibility” in collecting restitution. 559.105.2 (2013) now provides that a probationer ordered to pay restitution shall not be released from probation until restitution is complete and “[i]f full restitution is not made … the court shall order the maximum term of probation allowed for such offense.”

Concurring Opinion: The concurring opinion notes that judges may also use new 559.105.3 to revoke probation more often because 559.105.3 requires restitution be paid as a condition of parole. 559.105.3 repeals the prior prohibition against requiring a defendant both to serve a prison term and to pay restitution and, thus, relieves courts from having to choose between a prison term and restitution. Anytime a court believes a prison term is warranted – or does not believe the defendant will make full restitution within the maximum five-year probation period – the court can remand the defendant to the DOC for a lengthy term and be assured that defendant will be required to pay restitution during his parole term. This may disadvantage future defendants. However, any adjustments to the balance struck by Sec. 559.036.8 (as interpreted by today’s opinion) and the 2013 amendments to Sec. 559.105 must be made by the Legislature.
Farish v. Missouri Department of Corrections, 2013 WL 6822231 (Mo. banc Dec. 24, 2013):

Even though Petitioner was being held in Kansas on a Missouri detainer, where he also was being held in Kansas on Kansas charges, Petitioner was not entitled to jail time credit against his Missouri sentence for the time spent in Kansas since that time was not “compelled exclusively,” Sec. 558.031.1(2), by Missouri.

Facts: Petitioner was arrested by Kansas and held by Kansas for a robbery in Kansas. Missouri then issued a detainer for him for a robbery in Missouri. Petitioner was ultimately convicted in both Kansas and Missouri. He sought “jail time” credit against his Missouri sentence for time spent in Kansas.

Holding: Sec. 558.031.1(2) provides that a person shall receive jail time credit for time spent in jail prior to a sentence, but “[s]uch credit shall only be applied if the person convicted was in custody in the state of Missouri, unless such custody was compelled exclusively by the state of Missouri’s action.” Petitioner claims he is entitled to credit for time in Kansas after Missouri lodged its detainer. This Court has never construed the term “compelled exclusively,” so this is a case of first impression. The plain meaning of such term is “single” or “sole.” That is not the case here. The detainer did not unilaterally cause Petitioner to enter Kansas custody or remain in Kansas custody. A detainer is merely a “request” that an institution notify other authorities (here, Missouri) that a person’s release is imminent. At most, Kansas may have been obligated under the Interstate Agreement on Detainers to deliver Petitioner to Missouri to be tried on his charges here. However, the custody in Kansas was compelled by Kansas’ own charges against Petitioner, not the Missouri detainer. Therefore, he is not entitled to credit for that time against his Missouri sentence.
Roe I. v. Replogle, 408 S.W.3d 759 (Mo. banc 2013):

Holding: Federal sex offender registration act (SORNA) does not violate the nondelegation doctrine of U.S. Constitution, even though it delegates to Attorney General the decision on how SORNA applies to pre-Act offenders.
State v. Hart, 404 S.W.3d 232 (Mo. banc 2013):

(1) Where Juvenile-Defendant was convicted of first degree murder and sentenced to life in prison without parole (LWOP) without the sentencer having considered mitigating factors, the sentence violates the 8^th Amendment and must be remanded for a new sentencing; (2) at the new sentencing, the sentencer must first determine whether a sentence of LWOP is appropriate considering mitigating factors; (3) if the sentencer determines LWOP is not appropriate, then the first degree murder statute is unconstitutional as applied to Defendant, and the court must enter a conviction for second degree murder and the sentencer then sentence for second degree murder; and (4) even though Defendant had waived his right to jury sentencing before his original trial, that waiver was not knowing because it was made without considering the new, qualitatively different decision a sentencer must make about mitigating circumstances after Miller v. Alabama.

Facts: Juvenile-Defendant was convicted of first degree murder and armed criminal action, and sentenced to LWOP and a concurrent term of 30 years. He waived jury sentencing before trial. While Juvenile’s direct appeal was pending, the U.S. Supreme Court decided Miller v. Alabama, 132 S.Ct. 2455 (2012), which forbids sentencing a juvenile to LWOP when there has been no consideration of mitigating circumstances.

Holding: Juvenile’s sentence of LWOP violates the 8^th Amendment after Miller because there was no consideration of mitigating circumstances prior to imposing LWOP under Sec. 565.020, since LWOP was the only sentence authorized for first degree murder. The question is what remedy must be given. Miller holds that an LWOP sentence is permissible as long as the sentencer determines it is just and appropriate given Juvenile’s age, maturity and other mitigating factors. On remand, the State must persuade the sentencer beyond a reasonable doubt that an LWOP sentence is just and appropriate under all the circumstances. As an initial matter, the State argues that the sentencer must be the judge here because Juvenile waived his right to jury sentencing before trial, so he was willing to have a judge determine the entire range of punishment, regardless of what offense he was ultimately convicted of. While the State’s waiver argument would usually be correct, here it is not because Juvenile’s decision to waive a jury was mistaken as to the role of the sentencer in light of Miller, which created a qualitatively new decision that the sentencer must make. Therefore, Juvenile’s jury waiver will not be enforced on remand. Regarding the procedure to follow, the jury must be properly instructed that it may not find LWOP unless it is persuaded beyond a reasonable doubt that LWOP is just and appropriate under all the circumstances. However, the jury should not be given a choice of punishments for first degree murder because this would violate the separation of powers since the legislature, not courts, determines punishments for crimes. Therefore, the jury should be instructed that if it is not persuaded that LWOP is just and appropriate, additional instructions concerning additional punishments will be given. If the jury finds LWOP, the judge must impose that sentence. However, if the jury does not find LWOP, the judge must declare Sec. 565.020 void as applied to Juvenile on grounds that it fails to provide a constitutionally valid punishment. In that case, the judge must vacate the finding of guilt of first-degree murder, and enter a new finding of guilt of second-degree murder. In that case, the judge must also vacate the finding of armed criminal action based on having been found guilty of first degree murder, and enter a new finding of ACA in connection with second-degree murder. After the trial court enters those findings, the jury must then determine Juvenile’s sentences within the statutory ranges for those crimes. This procedure may require two separate submissions to the sentencer in a single penalty phase, but is required to carry out Miller without violating the legislature’s prerogative to decide which punishments are authorized for which crimes.
State v. Nathan, 404 S.W.3d 253 (Mo. banc 2013):

(1) Once a Juvenile is certified to stand trial in circuit court, the State is not limited to the charges alleged in the juvenile petition, and may bring whatever charges it believes are justified regardless of whether such charges or underlying facts were included in the juvenile petition; (2) where Defendant-Juvenile was convicted of first degree murder and sentenced to LWOP without consideration of mitigating circumstances, such sentence violates the 8^th Amendment and the case is remanded for resentencing per the procedure set forth in State v. Hart, No. SC93153 (Mo. banc 7/30/13); but (3) even though Juvenile contends he must also be resentenced for various non-homicide offenses if he is ultimately resentenced for second-degree murder, Juvenile did not appeal these convictions or argue that the non-homicide sentences (individually or combined) are unlawful or unconstitutional so resentencing on those is not addressed, and his implication that the combined effect of such sentences may be unconstitutional is premature until after the resentencing procedure, and will be moot if Juvenile is sentenced to LWOP.