Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though a clerk’s docket entry stated that the clerk had notified Defendant by telephone and mail about a court date for an Order of Protection Hearing, where the return of service was blank, Defendant was not personally served by the sheriff or police, and the mail was not sent by certified mail, Defendant could move to set aside the default judgment against him because he denied having received notice.
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.


Civil Rights
* Ashcroft v. al-Kidd, ___ U.S. ___, 89 Crim. L. Rep. 308 (U.S. 5/31/11):

Holding: (1) Policy initiated by Atty. General Ashcroft to detain suspected terrorists as material witnesses did not violate any clearly established 4^th Amendment right, and thus, Ashcroft was entitled to qualified immunity; and (2) an arrest warrant that is validly obtained under the material witness statute, 18 USC 3144, cannot be held unconstitutional on the basis of subjective intent.

Closing Argument & Prosecutor’s Remarks
State v. Jones, 2013 WL 519548 (Mo. App. E.D. Feb. 13, 2013):

Holding: Trial court erred in prohibiting defense counsel from arguing in closing that Defendant’s “liberty” was at stake (but was not prejudicial here); even though the State contended that “liberty” was not relevant to whether the Defendant committed the crime but was relevant to sentencing only, the concept of liberty is relevant for a jury to consider in guilt phase because it is a fundamental constitutional right, and the defense may emphasize the jury’s duty to carefully weigh the evidence and the significant impact a criminal conviction will have on Defendant.
State v. O’Neal, No. ED95274 (Mo. App. E.D. 11/29/11):

Where prosecutor objected to admission of Defendant’s medical records in front of the jury by saying they were“simply a way to avoid the defendant testifying,” this was a direct comment on Defendant’s failure to testify and a mistrial should have been granted.

Facts: Defendant was charged with attempted stealing. As part of his defense, he sought to introduce his medical records with a business records affidavit. The prosecutor objected to the records in front of the jury as “simply a way to avoid the defendant testifying.” Defense counsel objected as violating defendant’s rights not to testify and requested a mistrial, which the trial court overruled.

Holding: A direct reference to a defendant’s failure to testify violates the rights of freedom from self-incrimination and right not to testify under the 5^th and 14^th Amendments, and Art. I, Sec. 19 Mo. Const. A “direct reference” uses words such as “testify,” “accused” and “defendant.” Here, the prosecutor’s speaking objection in front of the jury was egregious because there had been a prior bench conference about the records at which the State had made an objection that had been overruled. The objection in front of the jury may have prejudiced the jury against Defendant for using the medical records rather than testifying himself. Reversed for new trial.
State v. Brightman, No. WD74299 (Mo. App. W.D. 10/2/12):

Where in DWI case prosecutor argued to jury that State did not have to prove that Defendant was “drunk” but only that he was “intoxicated” and the jury could determine what that means, this misstated the law and lowered the State’s burden of proof because to convict, the jury had to find that Defendant’s use of alcohol impaired his ability to operate the vehicle.

Facts: Defendant was charged with DWI. In closing argument, the State argued that “we didn’t set out to prove today … that the Defendant was drunk. … We never proved – tried to go out and prove that he was drunk driving. We came here to prove that he was intoxicated. ... We are trying to prove beyond a reasonable doubt that he was driving and he was intoxicated. So what does that mean with the instructions? … [The definition there] is a very vague definition of ‘intoxicated condition’ which means under the influence of alcohol. There is a reason for that. The reason is that you can decide what it means.” Defense counsel objected to this as misstating the law, but was overruled. In defense counsel’s closing, defense counsel argued “that intoxication means that your ability to drive was,” but the prosecutor objected at that point and the trial court sustained the objection.

Holding: Missouri’s appellate courts have ruled that “intoxicated condition” for DWI purposes means that Defendant’s use of alcohol impairs his ability to drive the vehicle. The Western District recommends that the applicable MAI be changed to reflect this definition, but says that is for the Supreme Court to do. Here, however, the State’s closing argument effectively invited jurors to ignore the given instruction and substitute their own subjective understanding of “intoxicated condition” that did not include any level of drunkenness. Courts should exclude argument that misstates the law. The State contends on appeal that the prosecutor was trying to make the point that Defendant did not have to be “falling down drunk.” But that is not what the prosecutor argued or how a reasonable juror would understand the argument. When a term is not defined for the jury, the jury can decide what the term means. But here the State refused to acknowledge that being drunk and intoxicated are generally synonymous, and attempted to say the two were different concepts. The trial court compounded this confusion by sustaining the State’s objection to defense counsel’s closing argument which tried to correctly state the law. An objection to improper argument which is overruled has the impression of giving the court’s approval to the argument. Here, reasonable jurors could have understood the State’s argument to lower the State’s burden of proof on a key element of the offense. When the State misstates the law so as to lower the burden of proof, it is error. Here, the evidence of guilt was not overwhelming so Defendant was prejudiced. New trial ordered.
Cauthern v. Colson, 2013 WL 603891 (6^th Cir. 2013):

Holding: Prosecutor’s reference at capital sentencing hearing comparing Defendant to notorious recent murderers were inflammatory and personalized to jurors by making them feel personally unsafe if they did not return a death verdict.
U.S. v. Sanchez, 2011 WL 5149141 (9^th Cir. 2011):

Holding: Prosecutor’s statement that acquitting defendant of importation and possession of cocaine for duress would “send a memo” to other drug couriers to use the defense was improper.
U.S. v. Sanchez, 90 Crim. L. Rep. 201 (9^th Cir. 11/1/11):

Holding: Prosecutor’s closing argument that if jurors bought Defendant’s duress defense, they’d be “sending a memo” to drug traffickers in how to beat drug cases was plain error because had nothing to do with Defendant’s culpability; prosecutors may not ask jurors to convict to protect society, deter future crimes, or deal with a particular societal crisis.
U.S. v. Marsh, 89 Crim. L. Rep. 422 (C.A.A.F. 6/2/11):

Holding: Prosecutor’s argument that jurors should imagine themselves having to fly on a plane serviced by Defendant-mechanic was improper personalizing about future risk in case having nothing to do with fact that Defendant worked as flight mechanic.

Turner v. State, 2011 WL 3715029 (D.C. 2011):

Holding: Plain error where prosecutor argued matters about Defendant’s motive that were not supported by evidence.
U.S. v. Ganadonegro, 2012 WL 592168 (D.N.M. 2012):

Holding: The prosecutor’s statement during closing argument in the defendant’s first trial, which resulted in a mistrial, would be admissible against the Government in the second trial.
Adams v. State, 2011 WL 4111079 (Alaska 2011):

Holding: Prosecutor’s comments on Defendant’s pre- and post-arrest silence as diminishing his credibility amounted to plain error.
State v. Maguire, 2013 WL 5989742 (Conn. 2013):

Holding: (1) Prosecutor’s argument that Defendant and defense counsel were asking jury to “condone child abuse” and to find that “child abuse that happens in secret is legal” was highly improper in that it appealed to emotions and demeaned defense counsel; and (2) Prosecutor’s objection during defense counsel’s cross-examination of forensic interviewer which left misleading impression that redacted portions of interview refuted defense counsel’s assertions was improper.
Kirkley v. State, 91 Crim. L. Rep. 75 (Del. 4/3/12):

Holding: Prosecutor improperly vouched for State’s case when he argued he was “bringing this charge because it is exactly what the Defendant did.”
State v. Schnabel, 2012 WL 1981217 (Haw. 2012):

Holding: Where prosecutor argued that jurors need not get “too caught up in the mumbo jumbo of all the words” of the jury instructions and could decide the case based on their “gut feeling,” this abrogated the State’s burden to prove every element of the offense beyond a reasonable doubt and lowered the State’s burden of proof.
People v. Adams, 2012 WL 169702 (Ill. 2012):

Holding: Closing arguments that officers’ testimony should be believed because they would not risk their jobs or credibility by lying were improper, in that there was no evidence that their jobs were at risk and the statements implied that the police have a greater reason to testify truthfully than a person with another job.
State v. Ochs, 306 P.3d 294 (Kan. 2013):

Holding: Prosecutor’s closing argument that a child sex victim-witness was protected by the truth was error (but harmless here).
State v. Glover, 94 Crim. L. Rep. 14 (Me. 3/27/14):

Holding: State should not have been permitted to argue that Defendant’s refusal to consent to DNA test in rape case showed consciousness of guilt; constitutional right to refuse consent would be destroyed if State could penalize anyone who refused consent by arguing consciousness of guilt; probative value of evidence was outweighed by unfair prejudice.
State v. Woodard, 2013 WL 1197921 (Me. 2013):
Holding: Prosecutor’s “send a message” closing argument was improper because it urged jurors to render their verdict based on factors outside the evidence in the case.
Beads v. State, 2011 WL4374969 (Md. 2011):

Holding: Prosecutor’s requests during opening statement and closing argument for jurors to say “Enough!” improperly implored jurors to consider their own safety and required reversal of defendant’s conviction.
Com. v. Lewis, 93 Crim. L. Rep. 246 (Mass. 5/4/13):

Holding: Prosecutor’s references to Defendant as a “street thug,” references to the defense as a “sham,” and condemnation of defense counsel as a “liar among liars” were improper.
State v. Demond-Surace, 2011 WL 1833256 (N.H. 2011):

Holding: Where court had excluded evidence of Defendant’s alcohol impairment, prosecutor’s closing argument that Defendant had lied about alcohol use was improper.
People v. Fisher, 91 Crim. L. Rep. 74 (N.Y. 4/3/12):

Holding: Counsel was ineffective in sex abuse case by failing to object to closing argument that (1) improperly bolstered State’s case by saying girl told same story over and over to police, social workers and others; (2) told jurors they could consider evidence of girl’s misbehavior at school as evidence that she was sexually abused; and (3) told jurors that “the day that the voice of a child is not evidence is the day that the [courthouse] doors should be locked forever.”
State v. Sexton, 2012 WL 4800459 (Tenn. 2012):

Holding: Prosecutor was not permitted to state in opening statement that Wife gave prior statements against Defendant but Wife could not be forced to testify due to spousal privilege; this evidence was inadmissible under spousal privilege and led jury to infer that Husband-Defendant was preventing Wife from testifying.
In re Glassman, 92 Crim. L. Rep. 131 (Wash. 10/18/12):

Holding: Prosecutor’s use of PowerPoint in closing argument, which showed pictures of Defendant with the word “Guilty” across them and which had other captions such as “Do you believe him?” and “Why should you believe anything he says about the assault?”, was unduly inflammatory and prejudicial.
State v. Monday, 89 Crim. L. Rep. 548 (Wash. 6/9/11):

Holding: Prosecutor injected racial bias into trial by pronouncing the word “police” as “po-leese” during questioning and by arguing that the reason the state’s witnesses weren’t more forthcoming was that “black folk” follow a code that frowns on cooperating with authorities.
People v. Otero, 2012 WL 5305736 (Cal. App. 2012):
Holding: Prosecutor’s use of a diagram during closing argument which showed missing puzzle-type pieces to illustrate that proof beyond a reasonable doubt does not preclude missing information improperly lowered the burden of proof.
People v. Shazier, 2012 WL 6734681 (Cal. App. 2012):

Holding: Prosecutor’s closing argument in SVP case asking jurors to imagine what their family, friends, co-workers or the community would think if they turned loose a dangerous predator and that they would have to “explain their verdict” to people denied Defendant due process.
People v. Higgins, 2011 WL 106083 (Cal. App. 2011):

Holding: Prosecutor’s argument denigrated defense counsel by arguing without evidence that witness had been “coached,” by criticizing the length of counsel’s cross-exam of victim, and by saying counsel and expert witness had previously worked together “to attack a victim in a rape trial.”
State v. Iverson, 2014 WL 30558 (Idaho App. 2014):

Holding: Prosecutor closing argument that jury could find self-defense only if Defendant’s use of force was the “only and best” option was misstatement of law, since the use of force need merely be reasonable.
Frazier v. State, 2011 Wl 326306 (Md. Ct. Spec. App. 2011):

Holding: Prosecutor improperly commented on Defendant’s exercise of his right to trial by asking why Defendant wanted a trial after signing a confession and then saying guilty people have a right to a trial and “that’s what we had today.”
People v. Forbes, 975 N.Y.S.2d 490 (N.Y. App. 2013):
Holding: Prosecutor’s argument was improper in that it vouched for credibility of State witnesses, said that if you believe Defendant then I have a “bridge in Brooklyn” to sell you, speculated about why Defendant wasn’t involved in other robberies, and said that to believe Defendant, jury would have to accept that there was a wide-ranging conspiracy against Defendant, which included the trial judge.
People v. Mehmood, 977 N.Y.S.2d 78 (N.Y. App. 2013):

Holding: Cumulative effect of prosecutor’s improper closing argument required new trial; prosecutor misstated Defendant’s testimony about whether he touched child’s vagina, improperly suggested that Defendant committed other bad acts, and improperly suggested Defendant lied in his testimony.
Pryor v. State, 2011 WL 2649978 (Okla. Crim. App. 2011):

Holding: Prosecutor improperly denigrated defense counsel and appealed to emotions by arguing the defense created a “bizarro world” where “nothing makes sense” and “rules of right and wrong” and “fairness” “don’t apply.”
State v. Barajas, 2011 WL 6188502 (Or. Ct. App. 2011):

Holding: Defendant’s failure to object to trial court’s unilateral decision to waive defendant’s right to closing arguments did not waive the issue for appellate review, where an attempt to object would have been futile.


Confrontation & Hearsay
State v. Clark, No. SC92003 (Mo. banc 5/1/12):

Even though Witness’ pending criminal case had been referred to drug court and Witness might never face sentencing, Defendant should have been permitted to cross-examine Witness about whether Witness hoped for leniency in testifying for the State, since this showed Witness’ bias.

Facts: Defendant was charged with murder. The State’s case rested on two witnesses with questionable credibility. At the time of trial, one “Witness” had been charged in an unrelated case, but that case had been referred to drug court for disposition. Before trial, Defendant had deposed Witness and knew that Witness would testify that he hoped for leniency in his own criminal case because of his testimony in Defendant’s case. At trial, Defendant sought to cross-examine Witness about this. However, the State objected on grounds that there was no deal in exchange for Witness’ testimony and since Witness’ case was in drug court, he might never face an actual sentencing so there was no expectation of leniency. The trial court sustained the objection. Defendant made an offer of proof and appealed.

Holding: A witness may be cross-examined by questions to test his credibility, and show bias and interest. The trial court relied heavily on the fact that there was no plea deal. But this reasoning fails to account for the subjective nature of “bias.” The term “bias” includes all varieties of hostility or prejudice, and includes all circumstances that make it probable that Witness potentially favors one side. Witness’ belief that he may get a more favorable outcome in his drug court case if he testified for the State may be mistaken or speculative, but what is important is what Witness believed. A reasonable jury could have concluded that Witness’ misplaced hope made him want to help the State. Reversed for new trial.
State v. Walker, 2014 WL 6476054 (Mo. App. E.D. Nov. 18, 2014):

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

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

Holding: (1) Although the defense did not make an offer of proof as to specific voir dire questions which the defense was precluded from asking, the defense did state in response to the motion in limine that they expected the law and facts to support a second-degree murder instruction, and that they wanted to voir dire on the range of punishment for second-degree murder to see if the jurors could follow the law. Thus, the issue is preserved for appeal. The Defendant’s right to an impartial jury is meaningless without the opportunity to show bias. As long as the Defendant’s question is in proper form, the trial court should allow the defense to determine whether the jurors can consider the entire range of punishment for a lesser-included form of homicide. The trial court precluded this because Defendant was charged with first degree murder, but this was unreasonable. The trial court allowed the State to voir dire extensively on the range of punishment for first degree murder. Defendant was prejudiced here because by being denied any opportunity to voir dire on the range of punishment for second-degree murder, he could not determine if jurors were able to follow the full range of punishment. The jury sent a note during guilt phase deliberations about the range of punishment. During penalty phase, the jury sent a note saying they were deadlocked on punishment. After a hammer instruction, the jury sentenced to the maximum, 30 years. The State argues that since the punishment did not exceed the maximum range there is no prejudice, but under that logic, a defendant could never show prejudice unless the punishment was beyond the authorized range, which would be plain error anyway. The State also argues there is no prejudice because the judge could reduce the jury’s recommended sentence. “While it is true that the judge might impose a lesser sentence, we do not conclude that trial judges are unaffected by the jury’s recommendation.” Further, the fact that a judge might impose a lesser sentence should not be confused with the jury’s ability to consider the full range of punishment in the first instance. Case remanded for new penalty phase trial. (2) The trial court erred in sustaining the State’s “hearsay” objection during Defendant’s testimony about what Victim said before Defendant shot him. This was not “hearsay” because not offered for the truth of the matter asserted, i.e., not offered to show the truth of the Victim’s statements. Instead, it was offered to explain Defendant’s conduct after the statements were made. Although this error facially shows manifest injustice, the error is not reversible because the jury heard similar evidence that would allow it to conclude Defendant was in fear of his life when he shot Victim.
State v. Francis, 2014 WL 1686538 (Mo. App. E.D. April 29, 2014):

Even though Defendant possessed a BlackBerry at time of his arrest, where the State never showed that Defendant owned the BlackBerry, the trial court erred in admitting the text messages on it because (1) the State did not authenticate that this was Defendant’s own phone or that the messages were written by him, and (2) the messages were hearsay and were not admissions of a party opponent or adoptive admissions since the State emphasized the incoming messages, not outgoing messages which would be those allegedly written by Defendant or “adopted” by him.