Case Law Update: 2011-2014 Cumulative Edition

Facts: A subpoenaed defense witness did not appear for testimony. Trial counsel sought a writ of body attachment. Counsel presented an “Officer’s Return” that stated that a copy of the subpoena was served on such date, and was signed by Joyce Conley, who was not a sheriff’s deputy but who used to work for the prosecutor’s office. The return did not have a copy of the subpoena attached. Counsel stated that the subpoena form was taken from the circuit court’s website. Conley testified she served the subpoena on the witness and signed the return. The trial court found the return invalid, and refused to issue a writ of body attachment.

Holding: Rule 26.02 sets out the procedure for subpoenaing witnesses. As relevant here, 26.02(e) states that if the person serving the subpoena is not an officer, that person “shall” make an affidavit as to the time, place and manner of service. Here, no copy of the subpoena was ever before the court. Moreover, Conley failed to submit a proper return in that she failed to make an affidavit as to the time, place and manner of service, as required by Rule 26.02(e). We need not decide whether a process server may testify in court in lieu of an affidavit to the Rule 26.02 requirement because, without a copy of the subpoena showing what it contained, we cannot say the subpoena was validly executed. Court did not abuse discretion in failing to issue writ of body attachment.
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. Reed, 2014 WL 4457266 (Mo. App. S.D. Sept. 10, 2014):

Holding: Where preliminary hearing Witness died before trial and even though the preliminary hearing was not recorded, Defendant’s confrontation rights were not violated by State calling a different witness to testify to what Witness had said at the preliminary hearing.

Discussion: Under the Sixth Amendment Confrontation Clause, prior preliminary hearing testimony and other ‘testimonial’ proof is inadmissible unless the witness is unavailable and the Defendant had a prior opportunity for cross-examination. Defendant had that at the preliminary hearing. He does not contend the opportunity to cross-examine there was “inadequate.” Therefore, testimony about what Witness testified to at preliminary hearing did not violate Confrontation Clause.
State v. Love, 2014 WL 4723124 (Mo. App. S.D. Sept. 23, 2014):

Where trial court granted a motion to set aside judgment or for new trial, but then took no further action in case, the State could not appeal since there was no “final judgment.”

Facts: After conviction at trial, Defendant filed a “Motion to Set Aside Judgment or for New Trial,” which was sustained. However, the trial court took no further action. The State appealed.

Holding: In order to appeal, there must be a “final judgment” which disposes of all issues and leaves nothing for future determination. Here, the trial court merely set aside the judgment of conviction, apparently because the court thought the evidence was insufficient. However, the court failed to enter a judgment of acquittal, failed to convict of a lesser-included offense, or failed to finalize the case in any other legally permissible way. Therefore, there is no final judgment to support an appeal.
State v. Benitez, 2013 WL 2474511 (Mo. App. S.D. June 10, 2013):

Holding: Allowing child-victim to testify behind a screen so that child could not see Defendant, without a specific finding of necessity for this, violated Defendant’s 6^th Amendment confrontation rights (but was harmless under facts of case).

Discussion: Maryland v. Craig, 497 U.S. 836 (1990), allows face-to-face confrontation to be dispensed with but only if the State makes an adequate showing of necessity to protect the child from trauma in testifying. The requisite finding of necessity must be a case-specific one. The trial court must find that the emotional trauma suffered by the child in the presence of defendant is more than de minimis, i.e., more than mere nervousness or excitement or some reluctance to testify. Here, the trial court made none of the case-specific findings required by Craig before allowing the screen. The trial court relied on a generalized finding that because of the child’s young age and nature of the charge, that the screen was permissible. But Craig does not allow this generalized finding. However, here the evidence was harmless because the child’s testimony was cumulative of other evidence, and Defendant chose not to cross-examine child at all which indicates that child’s statements contained no important infirmities.
State v. Johnston, 2014 WL 4823628 (Mo. App. W.D. Sept. 30, 2014):

Where trial court granted new trial on basis that guilty verdict was “against the weight of the evidence,” this was not a “final judgment” subject to appeal since the trial proceedings would continue; granting a new trial on this basis does not implicate double jeopardy because this is not a judgment of acquittal or finding of insufficient evidence.

Facts: Defendant was convicted of first degree murder. The trial court then granted Defendant’s motion for new trial. The court found that the guilty verdict was “against the weight of the evidence,” establishing good cause under Rule 29.11 which provides that a trial court may grant a new trial upon good cause shown. Additionally, Sec. 547.020(5) allows a trial court to grant a new trial “when the verdict is contrary to the law or evidence.” The State appealed.

Holding: There is no “final judgment” here to allow an appeal. The judgment granting a new trial did not dispose of all issues and leave nothing for future adjudication. Here, everything is left for future adjudication since a new trial is pending. The State argues that the judgment was a de facto acquittal and that the State should be allowed to appeal because double jeopardy precludes retrial. But double jeopardy precludes retrial only if a conviction is set aside for insufficient evidence to support the verdict. However, when a new trial is granted because the verdict is “against the weight of the evidence,” rather than that the evidence was insufficient to support the verdict, double jeopardy does not bar a retrial. The trial court made its own credibility determinations and assessed the evidence, which indicates a weight of the evidence rather than a sufficiency of the evidence analysis. Appeal dismissed.
State v. Cochran, No. WD73766 (Mo. App. W.D. 5/1/12):

(1) Expert should not be permitted to testify that Defendant committed “animal abuse” under Sec. 578.012 because this invades the province of the jury; and (2) where Defendant was charged with county ordinance violation but State failed to introduce the ordinance into evidence at trial, a court cannot judicially notice a county or municipal ordinance and the failure to introduce it at trial made the evidence insufficient to convict.

Facts: Defendant was charged with and convicted of animal abuse under Sec. 578.012 and with violation of a county ordinance regarding vaccination of animals. At trial, an animal care official (“Expert”) testified about the conditions in which the animals were found and that “animal abuse” occurred.

Holding: (1) It was proper for Expert to testify about the inadequate conditions in which the animals lived, such as inadequate food and water. The State, however, asked Expert whether “animal abuse” occurred. “Animal abuse” includes the element of whether the Defendant knowingly failed to provide adequate care for the animals. To the extent that Expert’s testimony could be interpreted as Expert testifying that Defendant knowingly failed to provide adequate care, it exceeded his expertise and invaded the province of the jury. However, court finds the error harmless here in light of other evidence. (2) The State failed to prove guilt of the county ordinance violation because the State failed to introduce it into evidence. Sec. 479.250 and subsequent cases require that municipal and county ordinances be introduced into evidence either by formal presentation or by stipulation. A court cannot judicially notice an ordinance. The ordinance is an essential element of proof. No misconduct can be shown or conviction proven without it. The State’s evidence being insufficient, it would violate double jeopardy to re-try Defendant on the county ordinance violation, so that conviction must be vacated.
* Perry v. New Hampshire, ___ U.S. ___, 90 Crim. L. Rep. 500 (U.S. 1/11/12):

Holding: Eyewitness identifications are not subject to suppression unless police arranged the suggestive circumstances; however, defendants may counter identifications with cross-examination, expert testimony, and jury instructions on the reliability of eyewitness identification.
U.S. v. Ortiz-Garcia, 90 Crim. L. Rep. 354 (1st Cir. 12/7/11):

Holding: Guilty-pleading Defendant's waiver of appeal rights was rendered involuntary by judge's failure to ensure that Defendant was aware of the maximum sentence he faced.
U.S. v. Haynes, 93 Crim. L. Rep. 752 (2d Cir. 9/5/13):

Holding: Court erred in shackling Defendant, who had no prior criminal history, at drug trial, without indicating why shackling was necessary and whether there were less onerous ways to meet safety concerns.
U.S. v. Miller, 2012 WL 3059295 (7^th Cir. 2012):

Holding: Where Defendant was charged with receiving child pornography and his granddaughter alleged he had inappropriately touched her, before admitting granddaughter’s allegations of prior bad acts, the court should have first determined whether those allegations fell within the scope of the rule allowing prior bad acts, and second, whether such evidence was more prejudicial than probative and articulated its decision on the record.
U.S. v. Gillenwater, 93 Crim. L. Rep. 444, 2013 WL 2930502, 2013 WL 2930502 (9^th Cir. 6/17/13):

Holding: In a case of first impression in the federal circuits, 9^th Circuit holds that defendants have a constitutional right to testify at their own pretrial competency hearings, and only the defendants, not their lawyers, can waive that right; however, a defendant may be deemed to have waived the right if he sits mute when defense counsel elects not to call him as a witness. Constitutional right to testify stems from 6^th and 14^th Amendments’ right to testify at trial.
U.S. v. Toombs, 93 Crim. L. Rep. 189 (10^th Cir. 4/26/13):

Holding: Before court may admit Defendant’s testimony from a prior trial, it must first rule on any of Defendant’s admissibility objections at the second trial.
U.S. v. Ly, 89 Crim. L. Rep. 689, 2011 WL 2848477 (11^th Cir. 7/20/11):

Holding: Trial court erred in failing to clarify for a confused pro se defendant that he had a right to testify in narrative form.
U.S. v. Martinez-Cruz, 94 Crim. L. Rep. 332, 2013 WL 6231562 (D.C. Cir. 12/3/13):

Holding: When a Defendant presents objective evidence giving rise to a reasonable inference that a prior conviction being used to enhance punishment involved an invalid waiver of counsel, the burden shifts to the prosecution to prove the waiver was valid.
U.S. v. Moore, 89 Crim. L. Rep. 722, 2011 WL 3211511 (D.C. Cir. 7/29/11):

Holding: Gov’t cannot present a law enforcement “overview” witness to give a preview summary of the case.
In re Taylor, 2013 WL 3940827 (D.C. 2013):

Holding: Beneficiary of order of protection cannot prosecute an indirect criminal contempt against the person who the order of protection is against; allowing the beneficiary to prosecute the action compromises the public reputation of judicial proceedings.
U.S. v. Dupree, 2011 WL 5884219 (E.D. N.Y. 2011):

Holding: Defendants were entitled to cross-examine a government witness regarding her use of antianxiety medication because it was probative of her ability to recall the events about which she was expected to testify.
U.S. v. Martoma, 2013 WL 4502829 (S.D. N.Y. 2013):

Holding: Gov’t lacked standing to assert attorney-client privilege on behalf of a cooperating witness from whom Defendant was seeking documents via a motion to compel; Witness did not authorize the Gov’t to assert his rights and moved to assert them himself.
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.

Porta v. State, 2013 WL 3070389 (Ark. 2013):

Holding: Even though forensic mental health examiner had warned Defendant about the nonconfidential nature of his competency exam, trial court erred in allowing his inculpatory statements made during the exam to be admitted at trial, because this violated his constitutional right not to incriminate himself and forced him to choose between one constitutional right in order to claim another.
State v. Komisarjevsky, 2011 WL 3557908 (Conn. 2011):

Holding: Defendant’s 6^th Amendment right to a fair trial and to prepare a defense allowed court to seal defense witness list from the media and public prior to trial.
Hazuri v. State, 2012 WL 1947979 (Fla. 2012):

Holding: Even though trial transcripts are not allowed in jury room, where jury requested trial transcripts during deliberations, trial court was required to tell jury that it had a right to a “read back” of testimony it wished to review, and should not have merely told them to rely on their collective recollection of the evidence.
State v. Sampson, 93 Crim. L. Rep. 183 (Kan. 5/3/13):

Holding: Even though court has discretion to exempt police officer witnesses from rule excluding witnesses, court cannot allow police officer witness to sit at prosecution table.
State v. Rochelle, 93 Crim. L. Rep. 101 (Kan. 4/12/13):

Holding: Judge has discretion to allow child witness to testify with a “comfort person” without a finding of necessity, but may also consider alternatives which may lessen potential prejudice such as whether the comfort person is related to the child, which may lessen prejudice; where the “comfort person” is seated in relation to child; the availability of items in the courtroom (such as child-sized chairs) that would eliminate the need for a “comfort person”; a cautionary instruction to jurors to disregard the “comfort person” and not permit the person’s presence to influence credibility determinations; and a cautionary instruction to the “comfort person” not to speak or gesture to influence answers of child.
Allen v. Com., 94 Crim. L. Rep. 15, 2013 WL 5406606 (Ky. 9/26/13):

Holding: Judge violated 6^th Amendment right of self-representation where Defendant was representing himself at trial, but judge allowed only standby counsel to attend bench conferences.
Stacy v. Com., 92 Crim. L. Rep. 793 (Ky. 3/21/13):
Holding: Court should hold a hearing and make certain findings before requiring a defense witness to wear jail clothes at trial; the practice of requiring defense witnesses to appear shackled or in jail clothes can be inherently prejudicial to defense.
State v. Chinn, 2011 WL 414360 (La. 2012):

Holding: Due to a state constitutional provision prohibiting a noncapital defendant’s waiver of a jury trial later than 45 days prior to the scheduled trial date, the trial court’s sole course of action, when the state requested a trial date for the noncapital trial only 43 days away, was to consider the waiver, and if the waiver was accepted, to set a trial date beyond the 45-day period.
Com. v. Maldonado, 94 Crim. L. Rep. 437 (Mass. 1/8/14):

Holding: Trial judge cannot require members of the public entering the courtroom to show identification, absent on-the-record findings that justify such a security measure.
Com. v. Barnes, 2012 WL 798754 (Mass. 2012):

Holding: Commonwealth did not demonstrate that psychological or physical harm to the minor victim could result from live internet streaming of audio and video recordings of criminal dangerous hearing.
Duylz v. State, 91 Crim. L. Rep. 73 (Md. 3/21/12):

Holding: Where a judge restricted Defendant’s right to cross-examine a witness at a pretrial motion to suppress hearing, this precluded the State from later using the testimony at trial when the witness did not appear.
Thomas v. State, 2011 WL 4389167 (Md. 2011):

Holding: A showing that a witness committed the conduct underlying an unconstitutional guilty plea can be used to impeach the witness.
State v. Guild, 91 Crim. L. Rep. 105 (N.H. 4/10/12):

Holding: Where trial court fails to sequester a witness, this requires a new trial unless the error is harmless beyond a reasonable doubt.
People v. Kevin W., 94 Crim. L. Rep. 307, 2013 WL 6096129 (N.Y. 11/21/13):

Holding: Once a trial court has ruled on a suppression motion, the State cannot “reopen” the hearing to present witnesses it chose not to present at the original hearing.
People v. Cantave, 2013 WL 3185171 (N.Y. 2013):

Holding: Prosecutor violated Defendant’s right against self-incrimination where he cross-examined Defendant at trial about a prior, unrelated conviction that was pending on direct appeal and thus Defendant remained at risk of self-incrimination.
People v. Best, 92 Crim. L. Rep. 236 (N.Y. 11/20/12):

Holding: The same standard barring visible shackling at a jury trial also applies to a bench trial.
People v. Steward, 89 Crim. L. Rep. 601 (N.Y. 6/7/11):

Holding: Trial court’s limiting voir dire to 5 minutes per panel in complex felony trial denied fair opportunity to explore jurors’ qualifications.
State v. Rivera, 2013 WL 518629 (S.C. 2013):

Holding: Trial court (under apparent prompting by defense counsel) violated Defendant’s right to testify where it prevented Defendant from testifying at trial under paternalistic belief, shared by defense counsel, that such testimony would undermine his own defense.
State v. Coristine, 93 Crim. L. Rep. 204, 300 P.3d 400 (Wash. 5/9/13):

Holding: Court violated Defendant’s 6^th Amendment right to control his defense by giving a jury instruction on an affirmative defense over a defense objection; court finds right to control one’s defense is derived right to self-representation in Faretta and right to plead guilty while maintaining innocence in Alford.
People v. Gutierrez, 2013 WL 940786 (Cal. App. 2013):

Holding: State’s duty to disclose Brady material applies at preliminary hearings.
Barnett v. Antonacci, 2013 WL 4525322 (Fla. App. 2013):

Holding: Prosecutor’s decision to file charges or nolle a case is not a “stage” of the criminal proceedings invoking victims’ rights to intervene; such an interpretation would unconstitutionally impinge on a prosecutor’s exclusive authority to decide when to bring or dismiss charges.
Rolon v. State, 2011 WL 4809119 (Fla. Dist. Ct. App. 2011):

Holding: Where, during his first trial, defendant was deprived of effective assistance of counsel during his direct and cross-examination, the court erred in allowing the state to introduce defendant’s statements from the first trial during the second trial.
Osborn v. State, 2011 WL 2697853 (Ga. App. 2011):

Holding: Holding voir dire in a church did not comply with statute which permitted trials in places other than courthouses.
People v. Buie, 2011 WL 93003 (Mich. App. 2011), appeal granted, 489 Mich. 938, 797 N.W.2d 640 (2011):

Holding: Permitting witnesses to testify via two-way, interactive video technology without defendant’s consent was plain error in that it violated defendant’s right to confrontation.
People v. Delee, 969 N.Y.S.2d 350 (N.Y. App. 2013):

Holding: Jury verdict finding Defendant guilty of manslaughter as a hate crime, but not guilty of manslaughter in the first degree, was inconsistent as legally impossible, so as to require reversal of conviction.
People v. Quin, 2012 WL 751561 (N.Y. Sup 2012):

Holding: No statutory or other legal basis existed to permit the prosecution to be present at, or videotape, the defendant’s competency hearing in an attempted assault prosecution.
People v. Strotehrs, 2011 WL 3503237 (N.Y. App. Div. 2011):

Holding: Beginning suppression hearing without defense counsel being present was fundamental error, even though counsel for co-defendant was present; defendant entitled to new suppression hearing.
Ex parte Doan, 2012 WL 2327914 (Tex. Crim. App. 2012):

Holding: Where prosecutor in County X sought to revoke Defendant’s probation based on a theft in County Y but the evidence was found to be insufficient, res judicata barred County Y from instituting theft charges against Defendant.
State v. Rainey, 2014 WL 700164 (Wash. App. 2014):