Annual Case Law Update by alicejenny

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									2008 Annual Case Law Update


    Missouri Municipal and Associate

           Circuit Judges Association



    Prepared for the 2008 Regional Educational Seminars

                         March 28, 2008


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                            2008 Annual Case Law Update
                              MMACJA Spring Seminar

       Notice: All cases listed below that have not yet been published by Thomson/
West™ and assigned a S.W.3d citation are subject to modification until all motions for
rehearing have been resolved, and the mandate issued by the Court. The procedural
posture as of Friday, February 29, 2008 for those cases without a S.W.3d citation, is set
forth in italics at the end of each such case. To check on the eventual disposition of
any such case, go to Missouri Case.net, found at www.courts.mo.gov/casenet


                                                  Table of Contents

I.    SEARCH AND SEIZURE
When drug sniffing dog is permitted

        State v. Daniels, 221 S.W.3d 438 (Mo. App. S.D. 2007).......................................................................    2

Consent search upheld even after traffic stop concluded

        State v. Abercrombie, 229 S.W.3d 188 (Mo. App. S.D. 2007)...............................................................        3

No valid search during Terry stop when patdown reveals no potential for danger to officer

        State v. Kelley, 227 S.W.3d 543 (Mo. App. S.D. 2007)........................................................................... 10

Search invalid without some articulable suspicion of criminal activity to justify the search

        Taylor v. State, 234 S.W.3d 532 (Mo. App. W.D. 2007)........................................................................ 12

Terry patdown permitted during traffic stop based on officer’s knowledge of defendant’s
  previous presence near high risk SWAT team searches

        State v. Bones, 230 S.W.3d 364 (Mo. App. S.D. 2007)........................................................................... 13

During investigative detention, all circumstances support search

        State v. Kempa, 235 S.W.3d 54 (Mo. App. S.D. 2007)............................................................................ 15

Exigent circumstances shown where infant possibly in danger

        State v. Burnett, 230 S.W.3d 15 (Mo. App. W.D. 2007)......................................................................... 26


                                                                                                                                             i
Validity of consent to be judged by totality of circumstances

        State v. Wood, 218 S.W.3d 596 (Mo. App. S.D. 2007)............................................................................. 40

High crime area and matching suspect description not enough for Terry search

        United States v. Hughes, ___ F.3d ___ (8th Cir. 2008).............................................................................. 44




II. SELF INCRIMINATION
Routine booking inquiry is not interrogation

        State v. Ream, 223 S.W.3d 874 (Mo. App. S.D. 2007)..............................................................................       1

Improper to question a represented defendant about “strikingly similar” crimes

        State v. Dykes, 238 S.W.3d 737 (Mo. App. E.D. 2007)............................................................................. 17

The “public safety exception” to Miranda

        United States v. Liddell, ___ F.3d ___ (8th Cir. 2008)................................................................................ 45




III. EVIDENCE
Witness cannot comment on credibility of another witness

        State v. Walters, 241 S.W.3d 435 (Mo. App. W.D. 2008).......................................................................          1

Defense invited inquiries as to otherwise inadmissible items

        State v. Fassero, ___ S.W.3d ___ (Mo. App. E.D. 2007).......................................................................... 5

Intent to distribute established by additional circumstances

        State v. Lawson, 232 S.W.3d 702 (Mo. App. W.D. 2007)......................................................................... 6

Where weight of contraband is in issue, State must exclude weight of containers

        State v. Cryderman, 230 S.W.3d 370 (Mo. App. S.D. 2007)..................................................................... 14

Presence of DNA does not always link defendant to the crime

        State v. Freeman, ___ S.W.3d ___ (Mo. App. S.D. 2008)........................................................................ 22




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Membership in a gang does not constitute impermissible evidence of a bad act

        State v. Turner, ___ S.W.3d ___ (Mo. App. S.D. 2008)............................................................................ 23

Improper for expert witness to comment on victim’s credibility

        State v. Foster, ___ S.W.3d ___ (Mo. App. S.D. 2008)............................................................................. 25

Officer’s testimony of estimated speed supports conviction if defendant’s observed
  speed is excessive – radar not always necessary

        State v. Kimes, 234 S.W.3d 584 (Mo. App. S.D. 2007)............................................................................. 28

Artisan’s lien supports stealing charge

        State v. Ecford, 239 S.W.3d 125 (Mo. App. E.D. 88967 – 2007).............................................................. 31

Officer training makes his opinion on HGN admissible

        State v. Poole, 216 S.W.3d 271 (Mo. App. S.D. 2007).............................................................................. 31

Uncharged crimes admitted for other permissible reasons

        State v. Jackson, 228 S.W.3d 603 (Mo. App. W.D. 2007)......................................................................... 31

Expression of remorse constitutes an admission

        State v. Simmons, 233 S.W.3d 235 (Mo. App. E.D. 2007)......................................................................... 32

Prior consistent statement of witness is admissible for rehabilitation

        State v. Hudson, 230 S.W.3d 665 (Mo. App. E.D. 2007)........................................................................... 32

Reference at trial to defendant in “booking photo” not prejudicial

        State v. Davis, 242 S.W.3d 446 (Mo. App. S.D. 2008)............................................................................... 32

Record supports conviction even without uncharged bad acts

        State v. Carnes, 241 S.W.3d 344 (Mo. App. W.D. 2008)........................................................................... 33



IV. CRIMINAL PROCEDURE
Even if evidence is wrongfully admitted, it is not prejudicial if merely cumulative

        State v. Franks, 228 S.W.3d 607 (Mo. App. S.D. 2007)........................................................................... 11

Validity of charging papers – when objection required

        State v. Richter, 241 S.W.3d 368 (Mo. App. S.D 2008)............................................................................. 19


                                                                                                                                          iii
No right to testify without oath or affirmation

        State v. Ward, ___ S.W.3d ___ (Mo. banc 2008)....................................................................................... 22


Too late to seek revocation after probationary term has expired

        State v. Seay, ___ S.W.3d ___ (Mo. App. S.D. 2008)................................................................................ 25

Validity of charging papers – when objection required

        State v. Carlock, 242 S.W.3d 461 (Mo. App. S.D. 2008)........................................................................... 35

Detainer statute – applicable to municipal courts?

        State v. Merrick, 219 S.W.3d 281 (Mo. App. S.D. 2007)…………………………………………......... 41




V. D.W.I.
15 minute observation period establishes prima facie case unless specific
  controverting evidence is shown

        White v. Director of Revenue, 227 S.W.3d 532 (Mo. App. E.D. 2007).................................................... 4

Insufficient evidence to sustain conviction because of passage of time between
  driving and apprehension

        State v. Byron, 222 S.W.3d 338 (Mo. App.W.D. 2007)............................................................................ 8

Minor lane use violation insufficient to establish drunk driving

        State v. Roark, 229 S.W.3d 216 (Mo. App.W.D. 2007)............................................................................. 9

Portable Breath Test inadmissible to show blood alcohol content

        State v. Morgenroth, 227 S.W.3d 517 (Mo. App. S.D. 2007)................................................................... 9

Conviction upheld even after defendant had stopped driving 15 minutes earlier

        State v. Davis, 226 S.W.3d 927 (Mo. App. W.D. 2007)............................................................................ 11

Impairment well after the accident does not prove that impairment was present earlier

        State v. Ollison, 236 S.W.3d 66 (Mo. App. W.D. 2007)............................................................................ 14




                                                                                                                                             iv
Driver’s refusal to take breath test is measured by simple objective standards – either
  he took it, or he refused - nothing else is required

        Fick v. Director of Revenue, 240 S.W.3d 688 (Mo. banc 2008)................................................................ 18

Warning to driver about effect of breathalyzer refusal held to be sufficient

        Jones v. Director of Revenue, 237 S.W.3d 624 (Mo. App. E.D. 2007)...................................................... 34




VI. ELEMENTS OF THE OFFENSE
Assault on police officer, tampering

        State v. Burse, 231 S.W.3d 247 (Mo. App. E.D. 2007).............................................................................. 3

Stealing established even if theft not completed

        State v. Walker, 232 S.W.3d 586 (Mo. App. E.D. 2007)............................................................................ 5

Telephone can be dangerous instrument

        State v. Coram, 231 S.W.3d 865 (Mo. App. S.D. 2007).............................................................................. 6

One bullet, two victims, no double jeopardy

        State v. Barraza, 238 S.W.3d 187 (Mo. App. W.D. 2007)........................................................................ 7

Resisting arrest during pendency of arrest effort

        State v. Ondo, 231 S.W.3d 314 (Mo. App. S.D. 2007).............................................................................. 13

No effort or intent to injure requires reversal of conviction for assault in the first degree

        State v. Dublo, ___ S.W.3d ___ (Mo. App. W.D. 2008)............................................................................ 16

Child endangerment contemplates substantial risk of harm to child, not merely a potential risk

        State v. Smith, 241 S.W.3d 442 (Mo. App. W.D 2008)............................................................................. 20

Correct venue not an element of criminal charge

        State v. Taylor, 238 S.W.3d 145 (Mo. banc 2007)..................................................................................... 21

Constructive possession not shown by mere presence in same room

        State v. Guinn, 242 S.W.3d 479 (Mo. App. W.D. 2008)........................................................................... 21




                                                                                                                                              v
Joint access to vehicle does not negate defendant’s constructive possession of contraband

        State v. Millsap, ___ S.W.3d ___ (Mo. App. S.D. 2008)........................................................................... 24

Knowledge of prohibited distances need not be shown

        State v. Minner, ___ S.W.3d ___ (Mo. App. S.D. 2007).......................................................................... 30

Buyer’s identity not an essential element of drug sale

        State v. Hall, 236 S.W.3d 698 (Mo. App. S.D. 2007)................................................................................ 34

Unlawful Use of Weapon separate from Assault on Law Enforcement Officer

        State v. Johnson, ___ S.W.3d ___ (Mo. App. W.D. 2008)........................................................................ 38




VII. CONSTITUTIONAL LAW
Propensity statute held unconstitutional

        State v. Ellison, 239 S.W.3d 603 (Mo. banc 2007).................................................................................... 1

No confrontation clause violation

        State v. Bennett, 218 S.W.3d 604 (Mo. App. S.D. 2007)............................................................................ 1

Double jeopardy where there was no “manifest necessity” for granting earlier mistrial

        State v. Wrice, 235 S.W.3d 583 (Mo. App. E.D. 2007)............................................................................. 15

Double jeopardy violation where multiple blows in single attack are treated separately

        State v. Harris, ___ S.W.3d ___ (Mo. App. W.D. 2008)........................................................................... 23

Retroactive application of CDL amendments permitted

        Pearson v. Director of Revenue, 234 S.W.3d 481 (Mo. App. E.D. 2007)................................................ 27

Confrontation Clause does not require a “face to face” look

        Guese v. State, ___ S.W.3d ___ (Mo. App. S.D. 2008)............................................................................. 29

Signature modus operandi evidence constitutionally impermissible as corroboration - overruling prior
decisions

        State v. Vorhees, ___ S.W.3d ___ (Mo. banc 2008).................................................................................. 39



                                                                                                                                            vi
Right to counsel in contempt proceeding

        Smith v. Kintz, ___ S.W.3d ___ (Mo. App. E.D. 2008).......................................................................... 43




VIII. STATUTORY INTERPRETATION
Medical necessity not available as a defense to the charge of possession of marijuana

        State v. Cox, ___ S.W.3d ___ (Mo. App. W.D. 2008)............................................................................ 20

Mother’s misconduct during pregnancy no basis for child endangerment charges

        State v. Wade, 232 S.W.3d 663 (Mo. App. W.D. 2007).......................................................................... 29

Trial de novo permitted after conviction on Technical Not Guilty plea

        City of Kansas City v. Dudley, ___ S.W.3d ___ (Mo. App. W.D. 2008)................................................. 36

Conviction for driving while revoked upheld even where driver did not have a driver’s license

        Nelson v. State, ___ S.W.3d ___ (Mo. App. E.D. 2008)………………………………………….......... 42




March supplement – The following cases became available in March 2008 after
these materials originally went to press.

STATUTORY INTERPRETATION – No D.W.I. enhancement based on prior municipal S.I.S. cases

        Turner v. State, ___ S.W.3d ___ (Mo. banc, SC88651, decided March 4, 2008).................................. 48

CONSTITUTIONAL LAW – Confrontation Clause and custodial interrogation issues

        State v. Hill, ___ S.W.3d ___ (Mo. App. E.D., ED89196, decided March 4, 2008)........................... 49

SEARCH AND SEIZURE – Consent to vehicle search, standing to object, knowing possession of small
amounts

        State v. Breese, ___ S.W.3d ___ (Mo. App. S.D., SD27858, decided March 14, 2008)......................... 51




                                                                                                                                       vii
CONSTITUTIONAL LAW – Propensity statute held unconstitutional

State v. Ellison, 239 S.W.3d 603 (Mo. banc 2007)

        Defendant appeals his conviction for child molestation in the first degree. His conviction
was reversed and remanded. Section 566.025 R.S.Mo. permits defendant’s prior criminal acts to
be admitted purely to establish his propensity to commit such acts. However, it is held that such
statute violates the Missouri constitutional guarantee that a defendant be tried only for the
offense with which he is charged. See Article I, Sections 17 and 18(a) Mo. Const. The
requirement of logical and legal relevance does not save the statute.



EVIDENCE – Witness cannot comment on credibility of another witness

State v. Walters, 241 S.W.3d 435 (Mo. App. 2008)

        Here the prosecutor asked the defendant if an officer had lied in his previous testimony
when the testimony of the defendant and the previous officer appeared to be inconsistent. Such
cross examination is argumentative and improper. One witness is not allowed to comment on the
credibility of another. However, it was not prejudicial in the facts of this particular case.



CONSTITUTIONAL LAW – No confrontation clause violation

State v. Bennett, 218 S.W.3d 604 (Mo. App. S.D. 2007)

        The 911 tape implicating the defendant as one of the assailants in a then ongoing crime
was admitted into evidence. The Court of Appeals holds that, “The statements must survive
traditional hearsay analysis [and] Sixth Amendment Confrontation Clause analysis.” Citing
State v. Kemp, 212 S.W.3d 135, 145 (Mo. banc 2007)(cited in last year’s materials). The
appeals court points out that the excited utterance exception satisfies the hearsay rule because the
declarations were made under the stress of a startling event (in this case, an ongoing break-in and
holdup one floor below). The non-testimonial nature of the statements – that is, to assist police
in getting to the scene of the crime, satisfied the constitutional issue.


SELF-INCRIMINATION – Routine booking inquiry is not interrogation

State v. Ream, 223 S.W.3d 874 (Mo. App. S.D. 2007)

      The defendant was arrested for possession of drugs. During the booking process, the
booking sergeant asked the defendant whether he was employed. This was done for general

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identification purposes and not designed to elicit incriminating information. The defendant’s
answer, that he was unemployed, was not subject to suppression in a later hearing because the
employment question is among the “good faith booking questions [that] are exempt from
Miranda.” 223 S.W.3d at 878. The evidence in this case was not prejudicial, especially
compared to other overwhelming evidence.


SEARCH AND SEIZURE – When drug sniffing dog is permitted

State v. Daniels, 221 S.W.3d 438 (Mo. App. S.D. 2007)

               Defendant was convicted for possession of a controlled substance. Police stopped
the defendant in a Wal-Mart parking lot after being alerted to possible drug activity by Wal-Mart
security personnel. Defendant was in a group of three different vehicles when the police arrived.
A search of the first vehicle (not that of the defendant) revealed drugs. The second vehicle was
allowed to leave. Then the officers got to the defendant’s vehicle. The defendant refused to
allow a search of her car but the drug dog alerted to drugs when walking around the vehicle.
Drugs were found in the car and the defendant was charged with possession.

        The Court points out that in a consensual encounter, where the police approach a person
in a public place and engage in conversation, and perhaps request information, the person at that
time is free to refrain from answering and can simply walk away. A mere request to examine
identification does not render the encounter non-consensual, nor does a mere request to search
the person’s belongings. Encounters such as this do not implicate the Fourth Amendment unless
and until the officer by physical force or show of authority restrains the person’s liberty so that a
reasonable person would not then feel free to leave. When that happens, the person has been
seized and the encounter progresses to the category of an investigatory detention. The
investigatory detention falls between a mere consensual encounter and a formal custodial arrest.
In such a case, the officer must have reasonable articulable suspicion that criminal activity is
afoot. It must be temporary and only long enough to effectuate its purpose using the least
intrusive means reasonably available to either verify or dispel the officer’s suspicion in a short
period of time. Florida v. Royer, 460 U.S. 491, 500 (1983).

        The issue here is whether the police had reasonable suspicion to detain the defendant
after she refused consent to search her vehicle. Because the officer had found drugs on one of
the others in the group, it was appropriate to conclude that there was more than a hunch that
criminal activity is afoot. And therefore a minimal level of objective justification to hold the
other vehicles long enough to run the drug dog was permissible. Thus, the evidence was
admissible and the judgment and conviction affirmed.




                                                                                                   2
SEARCH AND SEIZURE – Consent search upheld even after traffic stop concluded

State v. Abercrombie, 229 S.W.3d 188 (Mo. App. S.D. 2007)

       Defendant was convicted after a bench trial of committing the class C felony of
possession of meth. On appeal, defendant claims the trial court erred in denying her motion to
suppress and admitting in evidence two baggies of meth that had been hidden on the defendant’s
person. Defendant had surrendered the drugs to police after her arrest for possession of
marijuana which had been discovered during an earlier warrantless search of her vehicle.

        On June 1, 2002, Defendant was stopped for a license plate violation. Defendant was the
only person in the vehicle. Defendant was not acting unusually nervous, and the officer saw
nothing suspicious or illegal in the vehicle. The officer asked for Defendant’s license and
registration, which she produced. The officer gave Defendant a summons for failing to register
her vehicle, and she signed it. At that point, the traffic stop ended. Defendant was free to go,
although the officer did not tell her so “in those exact words.”

        Officer then asked defendant for consent to search the car. Defendant was told it was her
decision and that she could refuse to permit the search. She gave permission to search. Officer
found a blue baggie containing marijuana inside a bag on the passenger seat. Defendant was then
arrested for misdemeanor possession of marijuana, patted down for weapons and taken to the
station. There, prior to being searched, officer asked Defendant if she had any drugs, weapons or
paraphernalia on her. Defendant said she had meth and reached inside her bra and removed two
baggies. Each baggie contained methamphetamine. In a written statement, Defendant said she
found the two baggies containing meth in a tin can in the car as she was returning from St. Louis
to her home. (She had just purchased the car.) She removed the baggies from the can and placed
them in her bra so she could later “confront” the persons who left the drugs in the car.

        Southern District holds: conviction affirmed. There was no evidence defendant was
threatened by the presence of the police officer. The written statement reveals no indication she
was coerced or pressured. She freely consented to the search of the car because she did not
believe there was anything inside for police to find. Neither officer displayed a weapon during
the encounter, nor was defendant touched or physically restrained until after the marijuana was
discovered in the car.


ELEMENTS OF THE OFFENSE – Assault on police officer, tampering

State v. Burse, 231 S.W.3d 247 (Mo. App. E.D. 2007)

       Defendant was convicted of, among other things, assault on a law enforcement officer
and tampering with a motor vehicle in the first degree. Convictions affirmed.


                                                                                               3
        Defendant was the subject of a traffic stop when he suddenly fled the scene. During his
flight he turned and fired a couple of shots at the pursuing police officers. He eluded their chase
and found an old truck in a farm yard a few miles away. He got the truck started and escaped.
He was eventually apprehended.

        The defendant claimed that the evidence was insufficient to support a conviction for
assault on a law enforcement officer because no one could specifically identify which officer was
being shot at. Defendant relied on State v. Harty, 569 S.W.2d 783 (Mo.App.E.D. 1978) in
supporting his argument for lack of evidence of specific intent. But in Harty the defendant was
firing from a point some 300 feet away from the victims, and no one could really tell who was
the intended target. But in this case it was clear that defendant had a strong motive to shoot the
officers to escape capture and a prison sentence. And there was nowhere near the 300 foot
distance between the defendant and the officers here.

       As for the tampering with the motor vehicle, defendant claimed there was a failure of
evidence establishing that he did not have permission to possess or operate the truck. Although
there was apparently no testimony from the owner of the truck, the conviction was affirmed
because the Court may rely on circumstantial evidence to prove the elements of the crime
charged. In State v. Holleran, 197 S.W.3d 603, 611 (Mo.App.E.D. 2006) it was noted that, “The
exclusive and unexplained possession of recently stolen property is a circumstance the jury can
consider, along with other facts and circumstances, to draw the inference that the possessor of
stolen property knew the property was stolen.” Such evidence is sufficient to establish
defendant’s guilty knowledge that he did not have permission to take the truck.


      DWI – 15 minute observation period establishes prima facie case unless specific
controverting evidence is shown

White v. Director of Revenue, 227 S.W.3d 532 (Mo. App. E.D. 2007)

        The driver’s driving privileges were suspended for DWI. On trial de novo, the trial court
reinstated driving privileges holding that the Director had failed to establish a prima facie case
for the introduction of the breathalyzer results based on a failure of evidence that there had been
a proper uninterrupted 15 minute observation period prior to the test. On appeal, the trial court’s
action was reversed based on the evidence that the driver had failed to present any evidence that
he engaged in any proscribed activity (such as vomiting, burping, intake of food or other liquids)
which would have established evidence tending to affect the blood alcohol test results. Hence,
the driver’s argument was ineffective to rebut the Director’s prima facie case.

       This case follows Vanderpool v. Director of Revenue, 226 S.W.3d 108 (Mo. banc 2007)
which has settled once and for all that the driver must adduce specific evidence in his own case
tending to skew the test results, even if there was no continuous observation during the fifteen
minute observation period.


                                                                                                 4
ELEMENTS OF THE OFFENSE – Stealing established even if theft not completed

State v. Walker, 232 S.W.3d 586 (Mo. App. E.D. 2007)

        Defendant found a nice-looking Oldsmobile Intrigue on the streets of the City of St.
Louis. He decided to steal it. In an effort to do so, he got into the car, started it with the key that
was in the ignition, put the vehicle into gear and tried to make off with it. Unbeknownst to the
defendant, the car actually belonged to the St. Louis Metropolitan Police Department, and it was
what is commonly referred to as a “bait car” fitted with a kill switch on the ignition. As soon as
defendant tried to drive away, the kill switch activated, the police moved in, and defendant was
arrested.

        In this post-conviction relief action, the State was able to establish a factual basis for a
plea of guilty to the charge of stealing a motor vehicle. Defendant claimed there was no such
basis because he failed in completing his effort at theft. The Court declares “It is disingenuous
of Movant to argue that his actions in entering a vehicle that he did not own, without the owner’s
consent, starting the motor, and putting the vehicle into gear did not constitute appropriation” of
the vehicle. 232 S.W.3d at 589. The Court of Appeals holds that this conduct constitutes
sufficient appropriation to justify a stealing plea and conviction, even though the bait car’s kill
switch prevented the defendant from getting away with the theft.


EVIDENCE – Defense invited inquiries as to otherwise inadmissible items

State v. Fassero, ___ S.W.3d ___ (Mo. App. E.D. 2007)

        Defendant was tried and convicted of child molestation. During the trial defendant’s ex-
wife testified that defendant had a bad reputation in the community for truthfulness and veracity.
This of course is an appropriate inquiry of any witness who knows of the defendant’s reputation
for truthfulness in the community. On cross examination, defense counsel asked the ex-wife
whether she trusted the defendant with their then six year old daughter. The ex-wife replied that
she did not.

        On redirect, the State inquired as to the reason she did not trust the defendant with her
daughter. As it turns out, it was because the defendant had committed similar child molestation
acts prior to those for which he was being tried. The Court ruled that, while generally evidence
of uncharged crimes is inadmissible (State v.Sheridan, 188 S.W.3d 55, 65 (Mo.App.E.D. 2005),
when the defendant brings the evidence into the case the State is allowed to pursue that evidence
without violating defendant’s rights (State v. Crenshaw, 59 S.W.3d 45, 50 (Mo.App.E.D. 2001).
Here defense counsel “opened the door” on the issue of not trusting the defendant with a child,
and the State had the right to explore that issue further.



                                                                                                     5
        Another point in this case was whether a pending out-of-state indictment charging two
counts of aggravated criminal sexual abuse of a child under 13 would be admitted for the Court’s
consideration in the sentencing phase. Defendant contended that the admission of the indictment
violated his rights under the Confrontation Clause of the Sixth Amendment. Since the
underlying principle to be followed in the sentencing phase is that both the State and the
defendant may introduce any evidence relating to the defendant’s character that might assist the
Court in assessing punishment, the Court may therefore hear evidence of a defendant’s prior
unadjudicated criminal conduct during the penalty phase because the Court is entitled to full
information about the defendant and his previous conduct. State v. Petary, 781 S.W.2d 534, 539
(Mo. banc 1989). ED86106. Transferred to Supreme Court November 27, 2007. SC88894 –
Briefs due March 3, 2008.


ELEMENTS OF THE OFFENSE – Telephone can be dangerous instrument

State v. Coram, 231 S.W.3d 865 (Mo. App. S.D. 2007)

        Defendant was convicted of felony assault in the second degree for knowingly causing
physical injury by means of a dangerous instrument. Defendant claims the item used in the
assault did not qualify as a “dangerous instrument.”

       Defendant had been hired as the caretaker for a 93 year old man. During an argument
between defendant and the old gentleman, the defendant (who had been talking on the telephone
while the argument was underway) threw the telephone at the victim striking him in the eye. The
impact left a severe bruise on the victim’s eye and also on his chin. When he told the authorities
he had been struck in the face with a telephone, an investigation and the eventual indictment then
followed.

       In affirming the defendant’s conviction, the Court drew a distinction between dangerous
instruments and deadly weapons. Deadly weapons are primarily designed just to be exactly that;
namely, weapons (i.e., guns, knives, etc.). Dangerous instruments, however, are not designed for
use as a weapon, and they have a normal function under ordinary circumstances. However, a
telephone, under certain circumstances (like this one), could qualify as a dangerous instrument.
The Court teaches that, “The key to determining whether an object is a dangerous instrument is
whether the object can kill or seriously injure under the circumstances in which it is used.” State
v. Arnold, 216 S.W.3d 203, 208 (Mo. App. S.D. 2007). Conviction affirmed.


EVIDENCE – Intent to distribute established by additional circumstances

State v. Lawson, 232 S.W.3d 702 (Mo. App. W.D. 2007)

      Defendant was convicted of possessing a controlled substance with intent to distribute.
He admits he was in possession of the substance (morphine tablets) but argues that his conviction

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was erroneous because there was no sufficient evidence to establish intent to distribute.
Affirmed.

        Defendant was arrested with 13 whole tablets and several half tablets of morphine on his
person or in his vehicle. At trial an experienced narcotics officer testified that a prescription
drug abuser would typically have no more than one to five tablets on his person. But if he had
more, he was most likely a dealer. On appeal Lawson sought to rely on State v. McCleod, 186
S.W.3d 439 (Mo.App.W.D. 2006). There it was held that testimony of an officer that possession
of 7.5 ounces of marijuana established evidence of intent to distribute was, in and of itself,
insufficient to sustain the conviction. In McCleod there was really no other circumstantial
evidence to support the conclusion put forth by the testifying officer.

        The Court of Appeals in Lawson distinguishes the McCleod ruling by pointing out that
the defendant was in possession of this particular quantity of morphine tablets while associating
with known drug users. Second, a portion of the drugs had been found in the defendant’s car in
the general area of the other drug users whereas another portion had been found in the
defendant’s shoe during the booking process. The Court of Appeals concludes that a jury could
have found that the morphine in the vehicle was there for distribution to others and had
purposefully been separated from the rest of Lawson’s personal supply because he was planning
to share the morphine in the vehicle with the others. Finally, the possession of several half
tablets was indicative of intent to distribute because they were more saleable in a half tablet
version and Lawson had far more morphine on his person than he would have needed for his
own personal consumption on the night in question.


ELEMENTS OF THE OFFENSE – One bullet, two victims, no double jeopardy

State v. Barraza, 238 S.W.3d 187 (Mo. App. W.D. 2007)

       Defendant was convicted of eight felonies, including the killing of one passenger and the
wounding of another when defendant fired a gun into a car in which the two victims were riding.
One bullet killed the first victim and injured the second. Among those eight felony convictions
were one count for second degree murder and an additional count for first degree assault, plus
two additional counts for unlawful use of a weapon.

         For those with a taste for the history of the Old West, this case is reminiscent of the
shooting of Wild Bill Hickock in Deadwood, South Dakota in 1876. The gunman, Jack McCall,
fired a .45 cal. bullet that passed through Wild Bill’s head and lodged in the wrist of the man
sitting across the card table. One shot, two victims.

        In today’s case, Barraza argued on appeal that the legislature intended that a single shot
fired would constitute only one violation of law and that since there was only one shot (which
both injured one victim and killed the other), he could be convicted only once for unlawful use of
a weapon and the corresponding armed criminal action charge. The Court denies the jeopardy

                                                                                                7
argument stating that there were two victims here regardless of whether or not one shot or
different shots were fired which caused both the death and the injury. There was no error in
convicting defendant for both.



D.W.I. – Insufficient evidence to sustain conviction because of passage of time between
driving and apprehension

State v. Byron, 222 S.W.3d 338 (Mo. App.W.D. 2007)

        Defendant appeals his conviction for driving while intoxicated. He claims (1) there was
insufficient evidence to support a guilty verdict and (2) the evidence was insufficient to link his
intoxication to the actual operation of the vehicle.

        In the early morning hours of July 19, 2005, a police officer was dispatched to an
accident scene. The call came in at 1:45 a.m. The officer had passed the scene about an hour
earlier (between 12:40 a.m. and 12:50 a.m.), and there had been no accident at that time. Upon
his arrival, the officer saw that a car had gone through several tall traffic cones marking off a
construction zone, and had stopped in that area. Part of the passenger side front wheel was
hanging over the edge of the road because there was no shoulder. There was about a two foot
drop-off where the shoulder should have been. The accident was called in by a third party. No
one was found inside or near the vehicle, but the officer found a muddy footprint near the vehicle
which did not match his or the third party’s shoes.

        The officer retrieved the registration information from the glove box and determined that
the vehicle belonged to the defendant. Another officer went to the defendant’s home around 2:00
a.m. and noticed that the defendant appeared to be intoxicated. The first officer arrived shortly
thereafter, and both officers testified Defendant smelled of alcohol, had watery, bloodshot eyes,
had slurred speech, and had trouble with his balance. Both officers also noticed Defendant’s pant
legs had mud on them and that a pair of muddy shoes was just inside the door.

        When asked about the accident, Defendant said he knew nothing about it but said that his
father had borrowed the car. The father denied borrowing the car. The father testified he had
been awakened earlier that night by a call from his son asking him to pick him up because he had
been in an accident. The father testified that he picked the Defendant up at a location
approximately one quarter mile from the accident site. He indicated that at the time he picked the
Defendant up, through the time that he took him home, the defendant did not appear to be
intoxicated.

        After speaking with the defendant, the police officer seized the muddy shoes and placed
the defendant under arrest for leaving the scene. He searched the defendant and found a set of
keys and when he returned to the accident scene, the keys started the vehicle. He also took a
picture of the muddy footprint outside the car.

                                                                                                 8
         At the station, the defendant performed poorly on all sobriety tests, and when asked to
take a breathalyzer test the Defendant stated, “You didn’t see me driving. You didn’t catch me
driving.” On appeal, the Western District reverses the conviction saying: Insufficient evidence
to show Defendant was intoxicated at the time he was driving. Defendant had access to alcohol
in the period of time after the accident. Defendant did not admit being intoxicated. Father
testified that defendant was not intoxicated. There was no other testimony as to Defendant’s
condition after the accident up until the time the officers found him at home at 2:00 a.m. The
interval between the accident and Defendant’s first contact with the officers (which could have
been as long as an hour and twenty minutes), together with Defendant’s access to alcohol, did
not show guilt beyond a reasonable doubt. Defendant discharged.


D.W.I. – Minor lane use violation insufficient to establish drunk driving

State v. Roark, 229 S.W.3d 216 (Mo. App.W.D. 2007)

        Defendant appeals his conviction for DWI. Defendant contends that the arresting officer
lacked reasonable suspicion to stop him and to conduct field sobriety testing. Western District
holds: conviction reversed. When a reasonable person does not feel free to disregard an officer’s
show of force, a stop has occurred. The stop here did not occur in traffic, but after Defendant
reached his destination. Defendant’s tires crossing fog line twice, but not so far as to require
surrounding heavy traffic to take any evasive action, did not support suspicion of drunk driving
which would support the detention. Anonymous informant’s report of a “possible” drunk driver
added nothing to officer’s own observations. “There is nothing in the record before this court to
suggest that Roark was driving erratically or in a dangerous manner.” 229 S.W.3d at 221.


D.W.I. – Portable Breath Test inadmissible to show blood alcohol content

State v. Morgenroth, 227 S.W.3d 517 (Mo. App. S.D. 2007)

        Defendant appeals his conviction by a jury for driving while intoxicated. Defendant
contends the trial court violated Section 577.021, R.S.Mo., by improperly admitting evidence
that Defendant failed a PBT. At trial, when the Highway Patrol Trooper was asked about giving
the PBT, Defense counsel objected. The judge admitted the evidence, indicating that it went to
weight, not admissibility. Southern District reverses and remands, stating: under 577.021, the
results of the PBT shall be admissible as evidence of probable cause to arrest, and may be used
as exculpatory evidence, but shall not be admissible as evidence of blood alcohol content.
Therefore, a positive result on a PBT is inadmissible as evidence of Defendant’s blood alcohol
content. Moreover, the jurors were told they could consider Defendant’s failure of the field
sobriety tests, including the PBT, as proof that he was intoxicated. The use of the PBT results for
this purpose violated the statutory prohibition contained in 577.021.


                                                                                                 9
SEARCH AND SEIZURE – No valid search during Terry stop when patdown reveals no
potential for danger to officer

State v. Kelley, 227 S.W.3d 543 (Mo. App. S.D. 2007)

       Kelley was charged with possession of meth and drug paraphernalia. In June 2003, David
Holmes, a narcotic’s investigator with the Ozark County Sheriff’s Department went to the
residence of Defendant’s mother, where Defendant was living. The Sheriff’s Department had
received a phone call from a neighbor reporting that defendant was spending a lot of time in
Defendant’s mother’s garage and the neighbor was concerned about a possibility that this
involved drug manufacturing.

        The Officer told the trial court that the purpose of going to Ms. Kelley’s house was to do
a “knock and talk.” Defendant was in the yard when the officer arrived and the officer
approached Defendant to inquire about the circumstances that had been reported. He told
Defendant there had been a report suggesting possible drug activity. The Defendant denied he
was involved with meth. Defendant’s speech was slurred and he stumbled as he walked. He
appeared to be intoxicated. The Officer observed a large hunting knife on Defendant’s belt,
which he took and placed on a nearby truck. Officer asked Defendant if he had anything else on
him and Defendant said no. Officer could see the Defendant’s pockets were bulging out. He asks
Defendant if he would empty his pockets. Defendant put material from his pockets on the tailgate
of the pickup truck. Officer observed that one of Defendant’s pockets was still bulged out. The
officer then patted him down. He felt a round metal cylinder in the Defendant’s pocket. The
Officer did not know what it was. He later identified the container as a military match holder and
when he opened it, there was a piece of straw and a small glass bottle with a white powder
inside. The powder tested positive for meth.

        Defendant filed a motion to suppress requesting that all evidence seized from the search
of Defendant be excluded from evidence. The trial court sustained the motion to suppress as to
the meth discovered in the match container on Defendant’s person. State appeals trial court’s
ruling saying that the search of Defendant was a “Terry protective frisk.” Southern District
holds: suppression of evidence affirmed.

        The evidence before the trial court was sufficient to sustain the court’s finding that the
discovery of the methamphetamine went beyond the scope permitted for a Terry search and that
the opening of the match container constituted an unreasonable search. There was no evidence
from which a court could find that the officer could have reasonably concluded that the presence
of the cylinder he touched when he patted down the defendant endangered his safety. The officer
did not identify the object he felt as contraband; his testimony was that he did not know what the
item was when he felt it.




                                                                                               10
D.W.I. – Conviction upheld even after defendant had stopped driving 15 minutes earlier

State v. Davis, 226 S.W.3d 927 (Mo. App. W.D. 2007)

        Defendant appeals the Circuit Court’s judgment convicting him of DWI. He argues the
State presented insufficient evidence to make a submissible case. In March 2004, Angela
Butcher was driving home and saw a SUV driven by Defendant veer off the road, drive through
her yard and damage her property. Butcher saw Defendant drive by her house again and she
called the Sheriff to report the incident. Highway Patrol Trooper returned Butcher’s telephone
call and while they were talking on the phone, Butcher saw Defendant drive by her house a third
time.

        Trooper drives to Butcher’s house to investigate the incident and notices a vehicle
matching Butcher’s description of the one that had been driving past her house. He stopped at the
house where the vehicle was parked and noticed an empty, cold beer can on the ground next to
the vehicle. He touched the vehicle’s hood and it felt warm. He then spoke with Defendant, who
refused to submit to field sobriety tests. Trooper believed that Defendant was intoxicated and
arrested him for DWI.

        Western District holds: Circuit Court had sufficient evidence to find Defendant guilty of
driving while intoxicated. Trooper discovered Defendant to be in an intoxicated state a mere 10
to 15 minutes after Butcher saw him driving. While he talked with Defendant, Defendant smelled
of alcohol, was unsteady on his feet, and his speech was slurred. Evidence was sufficient for the
jury to conclude that Defendant was intoxicated while he was driving earlier. In light of the brief
time that had elapsed since Butcher had seen Defendant driving, the jury could have reasonably
concluded that Defendant’s level of intoxication could not have resulted from his drinking
intoxicants after he arrived home.


CRIMINAL PROCEDURE – Even if evidence is wrongfully admitted, it is not prejudicial
if merely cumulative

State v. Franks, 228 S.W.3d 607 (Mo. App. S.D. 2007)

      Defendant was convicted after a bench trial for DWI. The only issue presented by
Defendant on appeal is whether the trial court erred in the admission of a statement made by
Defendant when he was asked to take the Breathalyzer test.

        Defendant was pulled over for operating a van without tail lights. Defendant appeared
confused and his speech was slurred. His eyes were watery and bloodshot. The officer smelled a
very strong odor of intoxicants on Defendant’s breath and saw unopened bottles of alcohol in the
vehicle. Defendant admitted that he “had a few beers.” Defendant failed several field sobriety
tests and he was arrested.


                                                                                                11
       At the station, defendant was read his Miranda rights and the implied consent warning.
Defendant said he understood the warning and initially agreed to be tested. However, when he
was asked to take the tests, he asked for an attorney and said that he needed time to “let the
alcohol wear off.” Both police officers involved in Defendant’s stop and arrest testified
Defendant was intoxicated.

       Defendant filed a motion to suppress seeking to exclude the statement made by
Defendant about needing time to let the alcohol wear off. The motion was denied and Defendant
was convicted. Southern District holds: conviction affirmed. Statement by Defendant which was
allowed into evidence was merely cumulative of other properly admitted evidence, and there was
“overwhelming evidence” to support the conviction.

       Southern District observes that it is nearly impossible to obtain a reversal based upon the
improper admission of evidence in a court-tried case. State v. Crane, 841 S.W.2d 271, 273 (Mo.
App. 1992). And because the trial court has broad discretion in the admission of evidence, the
reviewing court is looking for prejudice, and not merely error. State v. Forrest, 183 S.W.3d 218,
223 (Mo. banc 2006).



SEARCH AND SEIZURE – Search invalid without some articulable suspicion of criminal
activity to justify the search

Taylor v. State, 234 S.W.3d 532 (Mo. App. W.D. 2007)

        On August 23, 2001, two Kansas City, Missouri Police Officers were on patrol. As the
officers crested a hill, they noticed the Defendant walking in the middle of the street. This was a
violation of Kansas City ordinances. The officers regarded the area in question as a zero
tolerance enforcement zone because of drug activity. The officers pulled up behind the defendant
in their patrol car. When the man turned around, one of the officers recognized Defendant
because the officer had dealt with the Defendant on many previous occasions. The officer knew
the Defendant had a criminal record and had a history as a narcotic user. The Officer had
previously frisked the Defendant on many occasions (“more than 50 times”) but had never found
a weapon on him.

        Instead of issuing the Defendant a citation for jaywalking, the officers ordered the
Defendant to place his hands on the police car so they could frisk him for weapons and sharp
objects. The Defendant complied. The other officer asked Defendant if he had any weapons or
sharp objects and Defendant responded that he was a “user” and had a crack pipe in the front
pocket of his pants. The pipe was retrieved and the officers placed Defendant under arrest for
possession of drug paraphernalia.

      During the search, a small rock of crack cocaine was found inside the Defendant’s shoe.
Defendant was then charged with one count of possession of a controlled substance. Defendant

                                                                                                12
was tried and convicted, although defense counsel objected to the use of the rock cocaine and
testimony related to it based on an unreasonable search in violation of the Fourth Amendment.

        Western District holds: evidence should have been suppressed. The officer may not
search a person, even one known to use and deal drugs, caught jaywalking, even in a high drug
trafficking neighborhood, for those reasons alone. Officer may stop a person for a traffic offense
long enough to issue a citation. A further restraint requires an articulable suspicion of criminal
activity. A search requires reason to believe that the officer is in danger.


ELEMENTS OF THE OFFENSE – Resisting arrest during pendency of arrest effort

State v. Ondo, 231 S.W.3d 314 (Mo. App. S.D. 2007)

         Defendant was convicted of a class D felony of resisting arrest. His only point on appeal
is that the state failed to prove each element beyond a reasonable doubt. He claims that the arrest
was complete, so his actions could not be regarded as resisting arrest. Southern District holds:
conviction affirmed.

        Resisting arrest has three elements: (1) knowledge that a law enforcement officer is
making an arrest, (2) purpose on the part of the defendant to prevent the arrest, and (3) resisting
the arrest by force or flight. Here the Deputy Sheriff advised Defendant that he was under arrest,
handcuffed him, and gave him Miranda warnings. Defendant then tried to flee and kicked the
Deputy. Such conduct constituted resisting arrest because the arrest process was not complete
when Defendant resisted. The Deputy had not finished searching Defendant’s person and not yet
placed Defendant in the patrol car. Stated another way, the officers did not have the Defendant
sufficiently restrained, and he had not submitted to the officer’s custody. The arrest was still in
progress, and his resistance to that process constituted the crime. Quere: What if, after being
placed in the back seat of the patrol car, Defendant somehow got out and took off down the
street? While no longer resisting arrest, he could then be charged under Section 575.200 for
escape from custody.



SEARCH AND SEIZURE – Terry patdown permitted during traffic stop based on officer’s
knowledge of defendant’s previous presence near high risk SWAT team searches

State v. Bones, 230 S.W.3d 364 (Mo. App. S.D. 2007)

       Defendant was stopped for a traffic violation. The officer recognized him as having been
present at the scene of the execution by SWAT teams of some earlier search warrants in high risk
drug house situations. He asked defendant to get out of the car and when the patdown
commenced, defendant fled the scene, dropping the drugs in question. Southern District holds:
conviction affirmed.

                                                                                                13
       Officer may ask driver to exit vehicle during traffic stop “regardless of whether he
suspects foul play or danger.” Officer’s recognition of driver from executions of warrants where
weapons were found supported a patdown of Defendant. Evidence discovered as a result was
admissible.


EVIDENCE – Where weight of contraband is in issue, State must exclude weight of
containers

State v. Cryderman, 230 S.W.3d 370 (Mo. App. S.D. 2007)

        Defendant was convicted of two counts of first degree trafficking in drugs, and one for
the sale of drugs near a school. An element of first degree trafficking is that the drugs weigh
more than two grams. At trial evidence of three different undercover purchases was admitted.
Only the second and third purchases were charged. Of the three baggies of crack, each weighed
four or five grams. But the evidence showed only the NET weight of the first baggie (not
charged) and the GROSS weight of the second and third baggies (the charged counts). (The first
transaction was a sale to an informant; the second and third to an undercover officer. This may
explain why the first purchase was not the subject of a charge.) Defendant was convicted on
both charges alleging the sale to the undercover officer.

        The State’s evidence in the two trafficking cases did not segregate the weight of the
plastic bags from the weight of the controlled substance, so it did not establish the essential
element of the substance’s weight. “It is necessary for the state to establish the weight of any
non-controlled substance involved when said substance is mixed with a controlled substance and
the weight of the controlled substance is an element of the crime charged.” 230 S.W.3d at 372.
Convictions on the two trafficking charges reversed; for sale near a school - affirmed.


D.W.I. – Impairment well after the accident does not prove that impairment was present
earlier

State v. Ollison, 236 S.W.3d 66 (Mo. App. W.D. 2007)

        Defendant wrecked his truck no later than 1:20 a.m. He did not remain at the scene.
When the police caught up with the defendant later that night, his BAC was .154% at 2:40 a.m.
Trial court convicted based on the “inference of impairment” that flows from evidence that
defendant had started drinking at 7:00 p.m., had the wreck some time before 1:20 a.m., and
admitted that he had nothing to drink after the accident. Court of Appeals reverses, stating that
the evidence did not show Defendant was intoxicated at the time that he was driving. Court
notes that if Defendant drank most of what he consumed within 30 minutes before the accident,
he may not have been intoxicated at the time. Conviction reversed. Court of Appeals again


                                                                                              14
recognizes the “alcohol curve” authorities by citing one of the leading treatises on the subject.
236 S.W.3d at 69.


CONSTITUTIONAL LAW – Double jeopardy where there was no “manifest necessity” for
granting earlier mistrial

State v. Wrice, 235 S.W.3d 583 (Mo. App. E.D. 2007)

          Defendant called an unexpected alibi witness at trial. This witness had not been
identified after earlier discovery by the State inquired about alibi witnesses. The State requested
a mistrial, declined the court’s offer of a continuance, and further did not indicate how long it
might need to continue the case to interview the unexpected witness. The defense did not agree
to the mistrial.

          Because the alibi witness was of critical importance to the defendant, and because the
State was adamant in seeking the mistrial, it was granted. But when the case was again before
the trial court, the defense cited State v. Gatlin, 539 S.W.2d 731, 733 (Mo. App. 1976) as
standing for the proposition that when surprise is an issue, a continuance is the proper remedy,
not a mistrial. Trial court dismissed the second case on double jeopardy grounds. State appeals.
Eastern District holds: judgment affirmed.

          Double jeopardy bars a mistrial since there was “no manifest necessity” to support the
mistrial. The general rule in Missouri is that surprise is not a ground for a new trial. State v.
Henson, 290 Mo. 238, 234 S.W. 832, 834 (1921). A continuance is the proper relief.


SEARCH AND SEIZURE – During investigative detention, all circumstances support
search

State v. Kempa, 235 S.W.3d 54 (Mo. App. S.D. 2007)

        Defendant was charged with committing the Class A felony of trafficking drugs in the
first degree by transporting almost 180 pounds of marijuana with the intent to distribute. In
December 2004, Trooper and his drug dog are on duty on I-44 in Lawrence County. Trooper
clocks Defendant’s car doing 76 mph in a 70 zone. He notes that it has Arizona license plates.
The car also crosses the fog line and travels on the shoulder two times within a few seconds.
Trooper conducts a license plate check and it comes back to a Tucson, Arizona rental car agency.

        Trooper turns on his emergency lights, but Defendant does not pull over immediately.
Trooper requests back up. Trooper finally gets Defendant pulled over and Trooper identifies
himself and explains the reason for the stop. He intended to give the Defendant warnings for
speeding and a lane violation. The weather was not cold but Defendant was wearing a long
sleeve shirt and shorts. He appeared to be nervous. Trooper notices that Defendant’s arms, hands

                                                                                                15
and legs are shaking. Trooper has Defendant sit in the patrol car while he runs a license check.
He asks Defendant where he was going and Defendant says he is going to his brother’s
girlfriend’s wedding. Trooper asks Defendant if there was any clothing in the trunk and the
Defendant did not respond. When asked if there was anything illegal in the trunk, Defendant
again did not respond. Trooper asked for permission to search and Defendant said “you can look
around in my vehicle.”

       Trooper and his drug dog do a sniff of the car and the dog hit on the trunk area. When the
trunk was opened, the Trooper smelled a strong order of marijuana and subsequently found 178
pounds of it in the trunk. Defendant was found guilty and was sentenced to serve 22 years.
Southern District holds: Conviction affirmed.

        Highway Patrol Trooper had not issued any warnings or traffic citations to the Defendant
before the K-9 sniff took place. Therefore, the investigatory phase of the traffic stop was still
ongoing. A routine traffic stop is not concluded until the warning or citation is issued.
Information acquired by an officer during a lawful detention to investigate a traffic violation can
authorize continued detention if the officer “has an objectively reasonably suspicion that the
driver or passengers were involved in criminal activity based upon specific articulable facts.”

        The court notes that: Defendant’s behavior was unusual; Defendant immediately exited
his own vehicle when he finally stopped it; Defendant was excessively nervous throughout the
entire encounter with the Trooper; Defendant’s untenable explanation for why it took him so
long to stop; Defendant was traveling from a known drug source area to a known drug
destination area in a rental car over a short time frame; Defendant’s hesitant and unlikely
explanation of his purpose for the trip; the absence of any appropriate clothing in the
Defendant’s vehicle for such a trip.

       Highway Patrol Officer was entitled to consider the results of the K-9's sniff because it
occurred prior to the end of the traffic stop. Considering all the circumstances, Trooper was
aware of specific, articulable facts supporting an objectively reasonable suspicion that Defendant
was involved in criminal activity. Defendant’s continued detention to investigate that reasonable
suspicion did not violate the Fourth Amendment.


ELEMENTS OF THE OFFENSE – No effort or intent to injure requires reversal of
conviction for assault in the first degree

State v. Dublo, ___ S.W.3d ___ (Mo. App. W.D. 2008)

        Defendant appealed his convictions for first decree assault and armed criminal action.
During an altercation the Defendant had threatened the victim’s life (by putting a knife to the
victim’s neck) and was able to carry out the threat - but he did not do so. The court cited State ex
rel. v. Verweire v. Moore 211 S.W.3d 89, 91 (Mo. banc 2006) where the defendant jabbed a
loaded pistol into the victim’s side and cheek and threatened to shoot him. In that case the

                                                                                                 16
Missouri Supreme Court found that because the defendant “did not pull the trigger and . . .he
soon retreated from the altercation without ever having attempted to fire the pistol . . . he did not
have the intent to cause serious physical injury.”

        In this case, Dublo held a knife close to the necks of two victims, but he did not injure or
attempt to injure either one. There was insufficient evidence to support the intent necessary to
support a conviction for first degree assault. Because there was no felony conviction for first
degree assault, there was no basis for the two ACA convictions. Convictions for first degree
assault and ACA are reversed and the case is remanded for a new trial on the lesser included
offense of misdemeanor third degree assault. Mandate issued February 21, 2008. WD67202.



SELF INCRIMINATION – Improper to question a represented defendant about
“strikingly similar” crimes

State v. Dykes, 238 S.W.3d 737 (Mo. App. E.D. 2007)

       Defendant was charged with a class C felony of stealing over $500.00 by deceit. He was
represented by counsel on that charge, but he was still incarcerated at the St. Louis Justice
Center. On June 15, 2006, the trial court authorized a detective from the St. Louis Police
Department to interview the Defendant on matters not related to the charges pending against the
Defendant. On June 23, 2006, the same Detective, together with an Assistant Prosecuting
Attorney (who was not authorized to speak to the Defendant), met the Defendant at the Justice
Center. The defense attorney was not notified and was not present.

       On June 12, 2007, Defendant filed a motion to suppress identification evidence, and oral
statements, including those resulting from his interview about a year earlier. At the suppression
hearing, the Detective testified that his intent in interviewing the Defendant was to see if he
would be able to identify unknown suspects and allow the detective to otherwise gain
information about other crimes similar to the one with which Defendant was charged. The
Detective stated he wanted to gain information about how cons work and how victims were
chosen. He testified he thought Defendant would have this information because the crimes he
was investigating were “strikingly similar” to the one in which Defendant was charged.

        The Detective stated he did not notify any attorney of the meeting on June 23, 2006 and
had no independent knowledge of any notice. He testified Defendant refused to sign anything
and would not make an audiotape statement, but waived all of his Miranda rights. During the
interview, Defendant alluded to his own superiority as a con artist and implicated others involved
in scams. During the course of the interview, Defendant made several incriminating statements.
The State sought to admit those admissions at trial. The statements regarding Defendant’s past
uncharged crimes, indicated a criminal scheme so unique as to establish the likelihood that
Defendant committed the crime for which he was being tried. The statements are also evidence
of Defendant’s intent, identity, and lack of mistake in connection with the charged crime.

                                                                                                  17
        The trial court sustained Defendant’s Motion to suppress and the State appealed. Here, on
June 23, 2006 the Defendant was in custody for his pending charge. He had been indicted, was
represented by counsel, and was awaiting trial. The Assistant Prosecutor went to a trial judge
without defense counsel, and requested an order for the detective to interview the Defendant
regarding other cases she was prosecuting. The Order was granted and was worded to allow only
the Detective to speak to Defendant regarding cases “not related” to the pending matter. Eastern
District affirms the trial court’s suppression order stating: The State had an affirmative obligation
to respect and preserve Defendant’s right to counsel. The statements were obtained in violation
of Defendant’s Sixth Amendment Right to Counsel as they related to the case in which he had
been indicted and for which he had retained defense counsel.



D.W.I. – Driver’s refusal to take breath test is measured by simple objective standards –
either he took it, or he refused - nothing else is required

Fick v. Director of Revenue, 240 S.W.3d 688 (Mo. banc 2008)

        Fick was injured in a single vehicle accident in which his truck overturned. The
responding Officer smelled intoxicants coming from Fick and observed an empty 12-pack of
beer in Fick’s truck as well as an unopened cold can of beer in the debris from the accident. The
arresting Officer arrested Fick for DWI. Fick told the officer he would not submit to a chemical
test, and DOR thereafter revoked Fick’s driving privileges. Fick filed a Petition for Review in the
Circuit Court of Callaway County, and the Circuit Court concluded there were no reasonable
grounds for the officer to believe Fick was DWI. The trial court also found that Fick had not
knowingly refused the breath test. The trial Court ordered the Director to reinstate Fick’s driving
privileges, and the Director appeals.

        Missouri Supreme Court holds: Substantial evidence in the record does not support the
trial court’s judgment. The evidence is sufficient to establish that the arresting officer had
reasonable grounds to believe Fick was DWI. There is no requirement that driver knowingly
refuse the chemical test. Fick had claimed that, because of his injuries in the accident, he had no
recollection of being asked to take the test. His argument follows that he did not really
understand the request, or perhaps the consequences. This argument fails. The Court notes that
under Berry v. Director of Revenue, 885 S.W.2d 326, 327-28 (Mo. banc 1994) the test for refusal
is a simple objective one – either the driver took the test or refused. That is all that need be
established.




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CRIMINAL PROCEDURE – Validity of charging papers – when objection required

State v. Richter, 241 S.W.3d 368 (Mo. App. S.D. 2008)

        Defendant was charged with speeding, going 108 mph on US 71 Highway. At trial,
Defendant claimed he was only driving 83 mph, but readily admitted he was speeding and
knowingly so. He testified he was prone to speeding and using a radar detector, so that he could
“go fast and not get tickets.” He was found guilty and sentenced to seven days in jail.

        Defendant on appeal claimed the trial court lacked jurisdiction because the information
failed to cite the applicable penalty statute as required by Rule 23.01(b)4. Southern District
holds: conviction affirmed. Jurisdiction and a charging document’s sufficiency are two distinct
concepts.

         Despite an incomplete blank, the information plainly alleged Defendant was driving 108
mph in a 70 mph zone and charged him with speeding in violation of Section 304.010. And a
charging document first challenged on appeal is deemed insufficient only if it is so defective that
it (1) by no reasonable construction charges the offense of which the defendant was convicted, or
(2) prejudices the defendant’s substantial rights to prepare a defense and plead former jeopardy
in case of acquittal. In either event, the Defendant must prove actual prejudice. Otherwise, the
claimed defects “are of no consequence.” Defendant did not challenge the insufficiency of the
information earlier, and the information was clear as to the crime charged. Affirmed.

        General Comment: This case is to be distinguished from City of Montgomery v.
Christian, 144 S.W.3d 338 (Mo. App. 2004). There the defense raised the defects in the
charging papers both prior to trial and at trial. It is seen on occasion in the municipal courts that
defense counsel says nothing about an allegedly defective charge until after the evidence has
concluded. It would appear that such a defense tactic would likely constitute a waiver of the
defect (unless, of course, the charging paper was so fatally defective as to fall into one of the two
classes listed above.

         A fair argument can be made that, as a general proposition, municipal court charging papers
are not held to the same rule of strictness as charges presented in a state criminal case. See, City of
Chesterfield v. Deshetler Homes, Inc., 938 S.W.2d 671, 674 (Mo. App. E.D. 1997) and City of
Clinton v. Kammerich, 642 S.W.2d 353, 355 (Mo. App. W.D. 1982). Nonetheless, the municipal
courts certainly ought to be sensitive to the Associate and Circuit level considerations set out in the
Criminal Rules other than Rule 37 (which are applicable if there is no Rule 37 guidance). And once
the municipal courts begin to look at those other guidelines, it would be well to also observe the
effect of Rule 24.04(b)(2), which requires that defenses and objections based on defects in the
institution of the prosecution or in the indictment or information (except for jurisdictional defects)
are to be made by motion before trial, and "such motion shall include all such defenses and
objections then available to the defendant." Rule 24.04(b)(2) further provides that the failure to
present any such defense or objection constitutes a waiver thereof, but the Court may grant relief
from the waiver for good cause shown.

                                                                                                    19
         Obvious good cause would be evidence of fundamental unfairness or manifest injustice by
reason of vague and wholly uninformative charging papers, as postulated in the Richter decision
noted above. But it would seem that the only defect in an information that may be raised at any
time with a guaranteed favorable result for the defense is lack of jurisdiction, which may be raised
at any time during the proceeding (and even on appeal for that matter).

        So what may be gleaned from the concept set forth in Rule 24 is that defense counsel may
elect not to raise the insufficiency of the information prior to the commencement of the trial, but in
so doing, counsel perhaps runs the risk that the information might, taking into account the other
allegations contained therein, sufficiently charge the defendant with a degree of specificity that (1)
fairly apprises the defendant of the charge so as to allow for the preparation of a defense and (2)
precludes the potential for double jeopardy. If as a tactical matter defense counsel chooses to
commence trial without raising an objection to a claimed deficiency in the information, there seems
to be at least some risk that the information, while deficient in some respect, might yet sufficiently
meet the requirements of fundamental fairness and due process. Such was the result in Richter.



ELEMENTS OF THE OFFENSE – Child endangerment contemplates substantial risk of
harm to child, not merely a potential risk

State v. Smith, 241 S.W.3d 442 (Mo. App. W.D. 2008)

        Defendant was convicted of second-degree child endangerment. Smith was fighting with
her boyfriend while their child was in the home, and the child saw Smith throw a pot at his
father. Western District reverses conviction, holding: to prove a defendant guilty of second-
degree child endangerment, the state had to adduce evidence showing her conduct created a
substantial risk of harm to the child and that she acted with criminal negligence in doing so. The
State failed to produce evidence that Smith’s fighting with the father created a substantial risk to
the child. A substantial risk is an actual risk of harm. There was no evidence showing the child
was in the path of a flying object or in close proximity to it. At best, the State showed only a
potential risk.



STATUTORY INTERPRETATION – Medical necessity not available as a defense to the
charge of possession of marijuana

State v. Cox, ___ S.W.3d ___ (Mo. App. W.D. 2008)

        Defendant was convicted of the Class B felony of possessing a controlled substance with
intent to distribute. Western District affirms the conviction, holding: the court did not err in
excluding evidence regarding Cox’s medical need for marijuana to relieve his pain and suffering

                                                                                                   20
from a spinal cord injury because as a matter of law, a medical marijuana necessity defense is
unavailable in Missouri. The defense is unavailable in Missouri because the General Assembly
has acted to preclude medical necessity as a defense to a charge of possession of marijuana by
classifying marijuana as a Schedule I controlled substance. Section 195.050 authorizes the
distribution of certain Schedule I substances to certain professionals, but has no acceptable
medical use when not dispensed by a professional under the constrictions of that statute.
Motion for Rehearing or Transfer to Supreme Court filed January 17, 2008. WD67832.


ELEMENTS OF THE OFFENSE – Correct venue not an element of criminal charge

State v. Taylor, 238 S.W.3d 145 (Mo. banc 2007)

        This case involves a venue challenge by a defendant convicted of forcible rape. At trial,
the victim could not identify the exact location where the crime occurred (whether in St. Louis
City or St. Louis County). Missouri Supreme Court unanimously holds that venue is not an
element of the crime, as defined by state statutes, and as such, the prosecution need not prove
venue beyond a reasonable doubt. To the extent the approved instruction for forcible rape
references venue, it is incorrect. Similarly, to the extent that previous cases require the state to
prove venue at trial, they should no longer be followed.

        The court holds that if a criminal defendant believes that venue is incorrect, the defendant
must file a motion before the trial begins, after adequate discovery. If the state then cannot prove
by preponderance of the evidence that venue is correct, the trial court must transfer the case to a
county where venue is proper. Any error here as to venue was not prejudicial, so the conviction
was affirmed.

        Comment: Be sure, however, not to confuse jurisdiction with venue, all as discussed in
the Richter case on p. 19 of these materials. From a municipal court standpoint, jurisdiction and
venue would seem to be rather concurrent in nature. But if the event happened outside of the
city limits, the municipal court is not only the wrong venue; it simply has no jurisdiction at all.
Such a case would be one for dismissal at any stage of the proceedings, including appeal.


ELEMENTS OF THE OFFENSE – Constructive possession not shown by mere presence in
same room

State v. Guinn, 242 S.W.3d 479 (Mo. App. W.D. 2008)

       This is another of those constructive possession cases that are always so fact dependent.
Defendant was convicted of possession of meth with intent to deliver. He was at a friend’s house
and was in a room where methamphetamine was found, but it was not in a place where it would
have been easily recognized. In addition, the evidence was that he had been in that room only a
few seconds. While there are cases establishing constructive possession of drugs, they are

                                                                                                 21
especially difficult in cases where the defendant is not the owner of the property (a mere guest –
as defendant here) or is someone in joint possession of the property with someone else. The trial
court had found there was a reasonable inference of knowing possession but the appeals court
reversed finding that the State had not presented a submissible case. The appeals court cites
cases establishing that a mere guest, even if in close proximity to the contraband when arrested,
cannot be held responsible for possession absent other compelling circumstances. State v.
Purlee, 839 S.W.2d 584, 588 (Mo. banc 1992); State v. Farris, 125 S.W.3d 382, 388 (Mo. App.
W.D. 2004).


CRIMINAL PROCEDURE – No right to testify without oath or affirmation

State v. Ward, ___ S.W.3d ___ (Mo. banc 2008)

       In his criminal trial, defendant wanted to testify on his own behalf but he repeatedly
refused to swear any oath or affirmation under pain and penalty of perjury. The Circuit Court
denied the defendant’s request to testify under those altogether self-serving conditions. On
appeal the Supreme Court affirmed the Circuit Court’s denial of such testimony.      Mandate
issued February 8, 2008. SC88409. Ward is possibly filing a Petition for Certiorari in the
United States Supreme Court.


EVIDENCE – Presence of DNA does not always link defendant to the crime

State v. Freeman, ___ S.W.3d ___ (Mo. App. S.D. 2008)

        Defendant appeals his conviction for first degree murder. The evidence was that
defendant and the victim had been together with several others at the local VFW for several
hours prior to the crime. Defendant and the victim had been drinking together, in close
proximity to one another. At closing time, the victim went home, and her body was found in her
residence the next morning. She had been hit in the head, strangled, and sexually assaulted with
an unknown instrument, but no semen was present. However, some of defendant’s DNA (but
not his blood or semen) was found on the victim at the scene of the crime.

        At trial it was established that DNA transfers quite easily among persons, sometimes by
sweat, tears or dandruff, and it can even be transferred without physical contact. There was
evidence at trial that, shortly prior to the crime, the defendant and the victim were near each
other at the VFW, far from the crime scene. Therefore, miniscule traces of the defendant’s DNA
(along with the DNA of several other persons for that matter) on the victim at the crime scene
did not alone prove that the defendant was there at the time of the crime.

       In order to support a conviction using DNA evidence, a supporting inference must be
more likely than what is seen here. The Court of Appeals observes that “we note that the
presence of an identified body fluid such as blood or semen, both of which are not normally and

                                                                                               22
routinely exchanged by people in public places or left on objects in public places” may be
sufficient. But the record in this case did not show that kind of evidence. Conviction reversed.
Application for Transfer to Supreme Court filed February 21, 2008 SC89119. Pending.


EVIDENCE – Membership in a gang does not constitute impermissible evidence of a bad
act

State v. Turner, ___ S.W.3d ___ (Mo. App. S.D. 2008)

         Defendant was convicted of first degree assault and other offenses. He and his
confederates were involved in a drug ring, and he had allegedly shot an individual that had
testified in a prior proceeding. During defendant’s trial for the shooting there was evidence of
his being a member of a gang. Such evidence was referred to both in the state’s case and on
cross examination by defense counsel. This was allowed into the trial, and on appeal the
Southern District, reviewing for plain error only, holds that evidence of gang membership alone
does not show an uncharged bad act so as to be objectionable. It appears that it was defense
counsel’s tactic to refer to gang membership of some of the other players in the criminal
enterprise, so as to perhaps lessen his client’s culpability. Southern District says, “Now that his
trial strategy has not borne fruit, Appellant cannot be heard to complain.” ___ S.W.3d at ___
(Slip opinion, p. 19).

       In addition, there was the reading into evidence of certain testimony from a preliminary
hearing, but that evidence does not raise a Confrontation Clause issue, principally because
defendant was present at the preliminary and his attorney had the right to cross examine.
Mandate issued February 1, 2008. SD27778.



CONSTITUTIONAL LAW – Double jeopardy violation where multiple blows in single
attack are treated separately

State v. Harris, ___ S.W.3d ___ (Mo. App. W.D. 2008)

        Defendant was convicted on three counts of first degree assault. The charges grew out of
an attack upon the victim in which the defendant had landed several blows during the course of
the attack. The facts in the case showed that there was never any break in the action for the
defendant to reconsider his actions and then commit yet a new and separate offense. The entire
assault here took about 60 seconds from start to finish. This is to be contrasted with the case in
the 2007 materials entitled State v. Tyler, 196 S.W.3d 638 (Mo. App. W.D. 2006) where a
domestic violence assault over a period of several hours using various means of inflicting injury
resulted in multiple convictions. Also, compare this with the case in this year’s materials entitled
State v. Barraza (see p. 7, supra) where a single gunshot killed one person and injured a second.
No double jeopardy in that situation.

                                                                                                 23
       Unlike Tyler and other similar “multiple offenses of offensive physical contact” cases,
the Court of Appeals holds that the defendant and the victim here “were locked in a single and
continuous battle the entire time.” ___ S.W.3d at ___ (Slip opinion p. 5). Thus, two of the three
convictions for first degree assault were reversed on double jeopardy grounds, and the sentences
thereon were vacated. Mandate issued February 13, 2008. WD67312.



ELEMENTS OF THE OFFENSE – Joint access to vehicle does not negate defendant’s
constructive possession of contraband

State v. Millsap, ___ S.W.3d ___ (Mo. App. S.D. 2008)

        There are many cases where the element of possession of contraband fails in a charge
against a particular defendant where the contraband was found in jointly possessed real estate or
in a jointly possessed vehicle. (See e.g., State v. Morris, 41 S.W.3d 494 (Mo. App. E.D.
2000)(as to real estate) and State v. Driskill, 167 S.W.3d 267 (Mo. App. W.D. 2005)(as to
automobiles).      However, in this case the defendant’s conviction for possession of
methamphetamine (which had been found in her car) was upheld based on compelling
circumstantial evidence. The evidence was as follows: The car had been rented by defendant,
she was standing next to the open driver’s door, her purse was overturned on the seat and it
appeared that certain contraband items (a glass pipe and some syringes) had spilled out onto the
driver’s side floorboard. They were in plain view of the defendant. A more thorough search
revealed the meth which supported the conviction. Although these joint possession cases are
sometimes difficult for the prosecution to establish, the Western District has addressed the point
by saying that an inference of knowledge and control may include:

       “ . . . self incriminating statements; consciousness of guilt; routine access to the place
       where the controlled substance is found; the commingling of the controlled substance
       with a defendant’s personal belongings; a great quantity of the illegal substance at the
       scene; the substance in public view and access by defendant.” State v. Smith, 33 S.W.3d
       648, 653 (Mo. App. W.D. 2000).

       In addition, defense counsel had sought a continuance of the trial based on the absence of
a missing witness. That request was denied and on appeal, the Court of Appeals points out that
the rule requires defendant to show due diligence to obtain a witness whose absence is the
grounds for a requested continuance. In this case, the defendant failed to establish due diligence
and, therefore, could not complain about the absent witness.       Mandate issued February 22,
2008. SD28094.




                                                                                               24
CRIMINAL PROCEDURE – Too late to seek revocation after probationary term has
expired

State v. Seay, ___ S.W.3d ___ (Mo. App. S.D. 2008)

        Here is another case which re-emphasizes the crucial importance of initiating and
pursuing probation revocation procedures on a timely basis. Here the Circuit Court lost
jurisdiction to revoke the defendant’s probation because it did not diligently initiate and pursue
such efforts until after the probation’s expiration. The Court’s actions constituted less than
“every reasonable effort . . . to conduct the hearing prior to the expiration of the [probationary]
period.” ___ S.W.3d at ___ (Slip opinion, p. 8). Thus, prohibition would issue to halt the
hearing on the probation revocation. Preliminary writ made absolute.               Mandate issued
February 26, 2008. SD28696.

       Comment: It should be remembered that the defendant’s probationary term may be
suspended upon the filing of a Notice of Probation Revocation. But the statute (Sec. 559.036.5)
provides that the Court’s Notice to the defendant may order the suspension of the probationary
term. It is not automatic. Therefore, the suspension needs to be set forth in the Notice so as to
become effective to extend defendant’s overall probationary term obligation. It is suggested that
either Form MMACJA 12-03 or OSCA Form MU40, both found in the MMACJA Forms
Handbook, should be utilized.



EVIDENCE – Improper for expert witness to comment on victim’s credibility

State v. Foster, ___ S.W.3d ___ (Mo. App. S.D. 2008)

        Defendant was convicted of child molestation, statutory sodomy and child endangerment.
The alleged victim was nine years old at the time. After the child told her mother of defendant’s
actions, the child was interviewed by an expert in Missouri’s SAFE-CARE1 Network. Although
there was no supporting physical evidence, the expert felt the child had been sexually abused
based on what she told him. The case was not tried until over four years later. The expert (a
licensed physician) was allowed to offer his opinion to the jury that the child’s story was, in his
opinion, “very credible.” This was even brought out again on questioning from the bench.

       On appeal, the defendant challenged the admission into evidence of the numerous
references to the doctor’s belief that the victim was “very credible.” There had also been such
references in the State’s opening statement as to the victim’s high degree of credibility. The
Southern District, citing State v. Williams, 858 S.W.2d 796 (Mo. App. E.D. 1993), reminds that
“Missouri strictly prohibits expert evidence on witness credibility.” 858 S.W.2d at 800. Such
evidence usurps the province of the jury, and it “. . . presents the danger that jurors may be
over-awed by, or may defer too quickly to, the expert’s opinion.” Id.
1
    Sexual Assault Forensic Examination – Child Abuse Resource and Education.
                                                                                                25
        In some circumstances it might be argued that evidence of this type could be regarded as
cumulative, and in particular, in cases where there exists overwhelming evidence of guilt (i.e.,
where there is compelling and undeniable forensic evidence, strong eye witness testimony,
irrefutable documentary evidence and other forms of traditional non-testimonial proffers). See,
e.g., State v. Dexter, 954 S.W.2d 332, 342 (Mo. banc 1997). However, in this case the evidence
of guilt was a very close call. The appeals court describes the evidence as a “he said, she said”
type of case, with no confession, no eyewitnesses, and no physical evidence. Therefore, it was
held that the admission of such inappropriate testimony was prejudicial. The conviction was
reversed and the case remanded for a new trial.     Not disposed as of February 29, 2008.
SD28068.


SEARCH AND SEIZURE – Exigent circumstances shown where infant possibly in danger

State v. Burnett, 230 S.W.3d 15 (Mo. App. W.D. 2007)

        A 20 month old child had been placed in the care of her grandmother by Court order.
The child’s parents (Janice and Daniel) had both suffered termination of their parental rights; she
for drug use and he for sexual abuse and illegal drug activity.

       The legal guardian was hospitalized, and she called the Division of Family Services
expressing concern for the child. DFS investigators contacted the child’s great uncle and aunt,
and they were advised that the infant’s natural father, Daniel, had come to the relatives’
residence and picked up the child about 15 or 20 minutes earlier. The DFS worker went to the
home of the child’s mother and knocked on the door but got no reply. However, she could see
someone inside. She called the police and requested a “check the welfare” on the minor child.

       St. Joseph police officers arrived at the subject home and met with the DFS worker. The
DFS worker explained to the police officer her concern for the baby and the possibility that the
child was in the possession of the father whose parental rights had been terminated.

        After additional efforts to get the occupant of the house to respond, the police officer left
the area and placed the house under surveillance. Although the windows were covered by closed
drapes, he could see a shadow of a person holding what appeared to be a baby or a small child in
his arms. This confirmed for the officer that there was an infant in the house, and that there were
people in the house who chose not to respond to the knocking on the door.

        After backup units arrived, the on-scene officer again approached the house, opened the
outer screen door and began knocking on an inner door. As he knocked, that door came open
about two inches and yet a second inner door kept the contents of the residence hidden from the
officer’s view. He continued to knock on the door and call out, at which time a child between 10
and 12 years of age answered the door. The youngster advised the uniformed officer that he had
no right to open the door, that he should not be there, and that he should leave. The officer then

                                                                                                  26
asked this young search and seizure expert where his parents were, and the youth gave an
evasive answer. With that, the officer entered the home to check the well being of the infant.

      On the motion to suppress, the trial court ruled that the officer had illegally entered the
home because exigent circumstances did not exist. The Western District reverses.

        Trial court’s suppression of evidence based on the forced and warrantless entry was
reversed because the silhouette of an adult who could be the father (whose parental rights had
been terminated) holding a young child, combined with pressing concern for the child’s safety,
justified the warrantless entry.



CONSTITUTIONAL LAW – Retroactive application of CDL amendments permitted

Pearson v. Director of Revenue, 234 S.W.3d 481 (Mo. App. E.D. 2007)

        The driver in this case held a commercial driver’s license. In 2002 he had been convicted
in Illinois of driving while suspended or revoked. In September of 2005 the CDL statute was
amended to allow for the disqualification for one year of a holder of a CDL if that person was
found guilty of driving while revoked. Prior to the 2005 amendment, a driving while revoked
conviction would not result in a suspension of one’s CDL privileges.

         In December 2005 the Director sent Pearson notice of intent to revoke Pearson’s CDL.
Pearson thereafter filed a petition for review in the Circuit Court. The Circuit Court held that the
2005 amendment allowing revocation could not be applied against the driver based on the 2002
Illinois conviction. The Director appeals.

        On appeal, the Director argued that a driver’s license is not a vested right but is merely a
privilege. Since the driver did not have a vested right in his commercial driving privileges, the
retroactive application of the 2005 amendments could not be said to have taken away any such
vested right.

        The driver cited Doe v. Phillips, 194 S.W.3d 833 (Mo. banc 2006) as authority
prohibiting retrospective application of a statute to criminal conduct which occurred before the
statute became effective. In Doe the Court found an impermissible application of the revised sex
offender registration statute because such statute imposed upon individuals a new obligation to
register, maintain and update the registration on a regular basis, all based solely on their offenses
committed prior to the enactment of the new registration statute.

        Distinguishing Doe, the Eastern District holds that the Director’s application of the new
CDL statute does not run afoul of Doe because it does not impose any new duty on the
petitioner. Rather, the retroactive application of the new statute merely uses the driver’s past
conduct (namely, his 2002 conviction in Illinois) as a basis for future decision making by the

                                                                                                  27
State to determine whether the driver’s commercial driving privileges should be disqualified for
one year. Doe specifically recognized that this situation does not invoke the prohibition on
retrospective laws. Doe v. Phillips, 194 S.W.3d at 850.

        Thus, the 2005 amendments to the CDL statute can be applied retroactively against
Pearson’s driver’s license because CDL privileges are not a vested right, and there is no
constitutional protection against retrospective laws where no new duty is imposed.

        Comment: But consider some interesting language found in the seminal case on this
subject, Squaw Creek Drainage Dist. v. Turney, 235 Mo. 80, 138 S.W. 12 (1911), which was
cited very recently by the Supreme Court in R.L. v. Department of Corrections, ___ S.W.3d ___
(Mo. banc 2008, No. SC88644, February 19, 2008). In the R.L. case, today’s Supreme Court (as
did the Eastern District in Pearson) quoted the Squaw Creek decision’s interpretation of
Missouri’s broad constitutional prohibition of prospective laws as establishing the following
framework for analysis:

       “A retrospective law is one which creates a new obligation, imposes a new duty, or
       attaches a new disability with respect to transactions or considerations past. It must give
       to something already done a different effect from that which it had when it transpired.”
       (emphasis added). 138 S.W. at 16.

        So might one argue that the retrospective application of the new CDL law to Pearson and
his 2002 Illinois conviction “attaches a new disability” to Mr. Pearson, something very much
different from the CDL privilege he used to have back in 2002? After all, before 2005 he could
drive a truck, but now he is newly unable (i.e., he has suffered a “new disability”) from doing so.
But the problem here is that he never had a vested right to drive a truck to begin with. Thus,
even though he probably now suffers a “new disability” the absence of a vested right dooms his
claim.



EVIDENCE – Officer’s testimony of estimated speed supports conviction if defendant’s
observed speed is excessive – radar not always necessary

State v. Kimes, 234 S.W.3d 584 (Mo. App. S.D. 2007)

        This case holds that an officer’s visual estimate alone regarding a defendant’s speed can
constitute substantial evidence under certain facts. The Court notes that an estimate of ten miles
per hour over the speed limit might not be sufficient, but in this case, the officer estimated a
speed of 35 miles per hour in a 20 mile zone which is a variance of 75%. Therefore, a conviction
would stand based on such estimated speed.

       The Southern District distinguishes the general rule found in City of Kansas City v.
Oxley, 579 S.W.2d 113 (Mo. banc 1979). In Oxley the difference between the posted limit and

                                                                                                28
the estimated speed was “slight” (45 in a 35 zone – or only 29% over the limit). The officer’s
estimate alone will not support conviction in such a case. But the Oxley opinion refers to a New
York case and agrees that an excess between 67% and 83% (New York officer testified 50 or 55
in a 30 zone) represents a “wide” variance and the conviction would be affirmed. Therefore, a
75% excess in this case likewise seem to represent a “wide” variance

        This decision is a case of first impression on the point of whether the officer’s
uncorroborated estimate will carry the day. It seems that it will, but only if the defendant’s
estimated speed is well above the posted limit, i.e., a “wide” variance. While no bright line of
demarcation exists, it would appear that somewhere at or above a 67% excess will be sufficient
in such a case.




STATUTORY INTERPRETATION – Mother’s misconduct during pregnancy no basis for
child endangerment charges

State v. Wade, 232 S.W.3d 663 (Mo. App. W.D. 2007)

        Defendant Wade gave birth to a son on August 21, 2005. The following day, both she
and the infant tested positive for marijuana and meth. She was charged and convicted of child
endangerment for ingesting the dope during her pregnancy, thereby passing it along to the baby.
Trial court dismisses the charge, stating that the child endangerment statute cannot be applied to
parental misconduct as to an unborn child. The State appeals the dismissal.

        Section 1.205, R.S. Mo. recognizes unborn children as human beings, entitled to same
rights as other persons, but does not proscribe any particular conduct. And the statute explicitly
excepts a pregnant woman from prosecution or civil litigation based on her failure to properly
care for herself or to follow up with appropriate pre-natal care. Thus, the child endangerment
statute does not apply to a mother’s conduct adversely affecting her unborn child. Court notes
that the legislature has addressed problems of drug or alcohol use during pregnancy by funding
programs which provide women with pre-natal education and treatment. Dismissal affirmed.



CONSTITUTIONAL LAW – Confrontation Clause does not require a “face to face” look

Guese v. State, ___ S.W.3d ___ (Mo. App. S.D. 2008)

        Defendant seeks post conviction relief from his conviction for child molestation. The
trial court had admitted the victim’s statements to four different witnesses pursuant to Section
491.075. The victim herself also testified at trial. In that proceeding, she was allowed to sit near


                                                                                                 29
her mother, and was not required to look in the direction of the defendant. Rather, she looked
only at the jury. Defendant was convicted and sentenced to ten years.

        The Confrontation Clause does not come into play when the declarant actually testifies.
In that situation, extrajudicial statements, whether testimonial or not, are admissible. State v.
Howell, 226 S.W.3d 892, 896 (Mo. App. S.D. 2007) As to the trial court’s decision to not
require a “face to face” confrontation, the Southern District holds that under Maryland v. Craig,
497 U.S. 836 (1990) the procedure guaranteed adequate confrontation. It was held that even
though the defendant could not see the child’s face, the child witness testified at trial and was
indeed subject to cross examination. In general, it looks like the defendant does not get to look
the witness “squarely in the eye.” Quere: Wouldn’t it seem that this decision might pave the
way for the giving of televised testimony by a distant witness as long as there was an opportunity
to cross-examine the distant witness?        Motion for Rehearing or Transfer to Supreme Court
denied February 14, 2008. SD28240. Not disposed as of February 29, 2008.




ELEMENTS OF THE OFFENSE – Knowledge of prohibited distances need not be shown

State v. Minner, ___ S.W.3d ___ (Mo. App. S.D. 2007)

        Defendant was convicted of delivery of a controlled substance within 1,000 feet of public
housing in violation of Section 195.218. There was no evidence that the defendant knew the sale
location was within 1,000 feet of public housing. However, the Court holds this is not an
element of the offense which would require proof beyond a reasonable doubt. Citing State v.
Hatton, 918 S.W.2d 790, 794 (Mo. banc 1996). Hatton makes it clear that Section 195.218 is
merely a punishment enhancement provision, and is not really an element of the offense. 918
S.W.2d at 794.

        But note that this decision appears to be contrary to the Western District’s decision in
State v. White, 28 S.W.3d 391 (Mo. App. W.D. 2002). There the Western District ruled that the
prohibited distance from a school was an element of the offense under Section 195.214, which
prohibits drug dealing within 2000 feet of a school. White not only declares the distance issue to
be an element of the offense requiring proof beyond a reasonable doubt before enhancement is
appropriate (and Hatton and Minner so hold), but also, that there must be proof that the
defendant “could have known” of the presence of a school within 2000 feet. But the Southern
District follows Hatton’s lead in disregarding the issue of any requirement of proof of the
defendant’s awareness of the distance to the protected facility. Transferred to Supreme Court
January 24, 2008. SC88986. Briefs due March 7, 2008. Pending.




                                                                                               30
EVIDENCE – Artisan’s lien supports stealing charge

State v. Ecford, 239 S.W.3d 125 (Mo. App. E.D. 2007)

        Common law artisan’s lien gave mechanic a possessory interest in the parts he installed.
Mechanic’s labor is not a service supporting a conviction for theft of goods or services. Here the
owner of a car took his repaired vehicle for a test drive and did not return. The sum of the parts
and labor to repair exceeded the statutory threshold of $500.00 and defendant was convicted for
theft of goods or services. Held: Conviction reversed because the cost of the mechanic’s labor
could not be included inasmuch as it is not a service as defined in Section 570.010 (14), and the
cost of the parts was less than $500.00.

        Comment: In the municipal courts, a careful review of the city ordinance regarding theft
of goods or services would be in order in the event of one of these “customer drive-off” or
“rental return failure” cases. The court should be well aware of any monetary threshold issues,
and what types of goods or services are, or are not, covered.


EVIDENCE – Officer training makes his opinion on HGN admissible

State v. Poole, 216 S.W.3d 271 (Mo. App. S.D. 2007)

        Poole was convicted of D.W.I. He was blind in one eye. At trial, the arresting officer
was allowed over objection to offer his opinion that the HGN results were not hampered by the
blindness in one eye. Trial court ruled the officer’s experience was enough to make his opinion
helpful. On appeal, Southern District affirms, holding that it is a case of weight, not
admissibility. In addition, ample other evidence proved intoxication.


EVIDENCE – Uncharged crimes admitted for other permissible reasons

State v. Jackson, 228 S.W.3d 603 (Mo. App. W.D. 2007)

       Defendant was convicted of first degree tampering with a vehicle. On appeal he
challenges the admission into evidence of testimony about an uncharged crime. Affirmed.

        Jackson and his friends were in the process of burglarizing a home. Someone in the crew
had previously stolen a pickup truck to assist them in hauling away the fruits of their burglary
effort. The homeowner returned to his abode and caught the burglars in the act. The homeowner
saw defendant get into the truck to make good his escape. Defendant fled the scene, there was a
high speed chase, and the defendant wrecked the truck. He was captured shortly after the crash.
At his trial for tampering based on his unauthorized operation of, and the damage to, the truck,
evidence of the interrupted burglary was admitted. On appeal, it was held that such evidence


                                                                                               31
was relevant to explain the witness’s ability to identify the defendant (he saw him at the crime
scene) and to paint a complete picture of the entire chain of events.

EVIDENCE – Expression of remorse constitutes an admission

State v. Simmons, 233 S.W.3d 235 (Mo. App. E.D. 2007)

         Defendant was charged with several counts of child molestation, sodomy and other
misconduct involving his daughter. While defendant was in jail, he had a telephone conversation
with his son. After the son related that he [the son] had been in a fight with his mother and sister
(the victim here), the defendant admitted that he was “sorry for what he did.” When offered at
trial, the defendant claimed the admission was too vague, and did not really establish an
admission as to the crimes charged. Trial court allowed the testimony of the son. Affirmed.
Such a statement implies guilt. The context in which it was made (while the defendant was in
jail charged with that very crime), made it material and relevant as an admission.


EVIDENCE – Prior consistent statement of witness is admissible for rehabilitation

State v. Hudson, 230 S.W.3d 665 (Mo. App. E.D. 2007)

         Defendant was convicted of first degree murder and armed criminal action. Two
acquaintances of the defendant witnessed the shooting, and only minutes later (after they had
departed the scene) they told a third party (Polk) what they had seen. At trial the two witnesses
testified to essentially the same story. Defense counsel challenged their credibility as to
inconsistencies in some minor details. The State then offered the testimony of Polk that the two
key witnesses had told her the very same story only minutes after the crime. This testimony was
admitted over defense objection.

        Held: The trial court did not err in admitting into evidence the prior consistent statements
of the witnesses to rehabilitate their credibility. Such prior consistent statements may be used for
any rehabilitative purpose once a witness’s credibility has been called into question. State v.
Ramsey, 864 S.W.2d 320, 329 (Mo. banc 1993).


EVIDENCE – Reference at trial to defendant in “booking photo” not prejudicial

State v. Davis, 242 S.W.3d 446 (Mo. App. S.D. 2008)

       Davis was on trial for statutory rape. A police officer was explaining how he had been
asked to assist in the investigation of the crime by the local Sheriff’s department. The identity of
the defendant was at that time not yet known. He was explaining how he had tracked down the
defendant through radio logs, a date of birth, and a social security number. When asked by the
prosecutor if he was ever able to come up with a photo of the defendant, the officer replied that

                                                                                                 32
he had been successful in finding a “booking photo” of the defendant. Defense objection was
sustained, but a request for mistrial was denied. Sole point on appeal is the denial of the motion
for mistrial.

       Trial court did not abuse its discretion in denying a mistrial when the State used the
defendant’s mug shot from another crime because the “reference was fleeting and did not
connect defendant to a specific crime.” Affirmed.

        Comment: But this is indeed very dangerous water in which to swim. The Southern
District quotes at length a very careful and thorough analysis of this point found in State v.
Rodgers, 3 S.W.3d 818, 822 (Mo. App. W.D. 1999). Mistrial is a drastic remedy, and the
appeals courts seem willing to sustain trial court denials in most cases. But certainly the lesson
to be learned by prosecutors is to warn the state’s witness to simply stay away from such “mug
shot” and “booking photo” references altogether.



EVIDENCE – Record supports conviction even without uncharged bad acts

State v. Carnes, 241 S.W.3d 344 (Mo. App. W.D. 2008)

        Defendant was convicted of murder and armed criminal action. In what appears to have
been a dispute over drug turf, defendant murdered the victim who was selling crack cocaine near
defendant’s business location, which was an apartment several blocks from defendant’s actual
residence. On the day in question, the defendant yelled at the victim, telling him that he could
not sell drugs in defendant’s territory. When the victim ignored the warning, defendant chased
the victim one fifth of a mile, shot him in the back during the chase, then stood over the victim
and declared his intention to kill the wounded man (“Die mother _______, you’re going to die.”).
Immediately thereafter, defendant shot the victim three more times, the last of the shots being a
fatal shot to the head. All of this evidence supported an inference that the defendant deliberated
prior to killing his victim.

         After defendant had been arrested, a search of his home several blocks removed from the
site of the murder produced drug paraphernalia, cash and weapons. Such evidence was admitted
at trial. The State argued that such evidence was offered to confirm that the motive for the
killing was drug turf related. The trial court admitted the evidence “for whatever it’s worth.”

        Held: This evidence was not prejudicial, even if incorrectly entered into the record,
because such evidence is presumed not to have influenced the trial court’s judgment. In a court
tried case, erroneously admitted evidence rarely arises to the level of reversible error unless it
appears that the trial court relied on the improper evidence. State v. Isom, 660 S.W.2d 739, 741
(Mo. App. E.D. 1983). Here there was plenty of other evidence to support the convictions.



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ELEMENTS OF THE OFFENSE – Buyer’s identity not an essential element of drug sale

State v. Hall, 236 S.W.3d 698 (Mo. App. S.D. 2007)

        Defendant was convicted of distribution of a controlled substance. The charging papers
alleged a sale to Officer Wilson. Officer Wilson and an informant made a drug purchase from
defendant. Wilson gave the informant the cash to make the deal. The officer waited in the car
and the informant was involved in the sale transaction, all of which was witnessed by the officer.
Defendant appeals, claiming that the evidence was insufficient to show a sale to the police
officer. Rather, at most, it showed a sale to a confidential informant. Motion for acquittal was
denied, and the jury convicted.

        Held: Affirmed. The record supported the trial court’s denial of a motion for acquittal.
Defendant’s argument is invalid. The evidence showed that the defendant sold crack cocaine to
the informant who bought it on a police officer’s behalf. The fact that defendant did not actually
place the drugs in Officer Wilson’s hand is irrelevant. Court refers to State v. Burns, 795 S.W.2d
527 (Mo. App. 1990) which establishes that where the informant and the officer are working in
concert with one another, a transfer of drugs to the informant is essentially the same as a transfer
to the officer. See also United States v. Waller, 503 F.2d 1014, 1015-16 (7th Cir. 1974) (holding
that where the defendant “did not physically hand the heroin to the purchaser” she could still be
convicted of distributing a controlled substance because her “conduct constituted a constructive
transfer of the heroin . . .”)



D.W.I. – Warning to driver about effect of breathalyzer refusal held to be sufficient

Jones v. Director of Revenue, 237 S.W.3d 624 (Mo. App. E.D. 2007)

        Jones held a commercial driver’s license. He was arrested while driving his private
vehicle and charged with DWI. He refused to submit to the breathalyzer test and shortly
thereafter he received notice of the disqualification of his CDL for a period of one year.

        Jones filed a petition for review, claiming a violation of due process because of an
alleged failure on the part of the arresting officer to advise Jones of the dire consequences, i.e.,
the loss of his CDL, should Jones refuse the breath test. Trial court affirmed the Director’s
notice of disqualification and Jones appealed. Eastern District affirms.

        This case is another outgrowth of the 2005 amendments to the CDL statutes. Previously
a DWI in the license holder’s personal vehicle would not result in the loss of his commercial
driver’s license. Now it does. Jones claims that because of the 2005 amendment, the statutory
warning contained in Section 577.041 requires revision.

                                                                                                 34
        The Eastern District first notes that there are already provisions in the Commercial
Driver’s License Act concerning implied consent and the required warnings for refusal to submit
to a chemical test. Section 302.745.2 establishes implied consent by any individual who drives a
commercial motor vehicle. Additionally, Section 302.750.2 states that a person requested to
submit to a chemical test shall be warned that the refusal to submit to the test will result in being
disqualified from operating a commercial vehicle for at least one year. However, the Court notes
that these provisions apply only to individuals who are driving commercial motor vehicles, but
not private vehicles. Neither of these provisions was amended in 2005 to expand their coverage
to individuals holding a CDL but who are driving private vehicles.

        Therefore, the consent warning set forth in Section 302.750.2 is required only when the
refusal is in the context of an individual driving a commercial vehicle. Because Jones was
driving his personal vehicle, the proper implied consent warning is that set forth in Section
577.041.1. Under this statute there is simply no requirement to warn the driver about the
ancillary consequence of having his CDL disqualified. Indeed, the privilege to drive a
commercial motor vehicle extends from the underlying privilege to drive a private motor vehicle.
Thus, loss of CDS privileges would rationally follow revocation of the underlying privilege. In
fact, Section 577.041.1 states that “any license to operate a motor vehicle issued by this State”
which is held by an individual shall be surrendered upon refusal to submit to a chemical test. No
due process violation found here. Affirmed.



CRIMINAL PROCEDURE – Validity of charging papers – when objection required

State v. Carlock, 242 S.W.3d 461 (Mo. App. S.D. 2008)

        Defendant was charged with committing the Class C felony of second degree assault. He
was tried to the Court, convicted, and sentenced to five years. The Information alleged that the
defendant “ . . . knowingly caused physical injury to [the victim] by choking her.” In order to
have conformed with the approved MAI instruction for this particular charge, the Information
should have alleged that the defendant “knowingly caused physical injury to [the victim] by
means of a dangerous instrument by choking her.” At no time prior to trial did defendant ever
file a motion raising this claimed defect, as required by Rule 24.04(b)(2), Mo.R.Crim.P.

       On appeal, defendant claimed that the omission of the “dangerous instrument” language
from the charging papers rendered the Information defective. Court rejects that argument by
quoting Rule 24.04 above and concluding that, “Based upon the plain language of this rule,
Defendant’s challenge was untimely because it was not raised by motion before trial.” 242
S.W.3d at 464. Citing State v. Barnes, 942 S.W.2d 362, 368 (Mo. banc 1997). Conviction
affirmed.

        Here again we see a reliance by the court on the Rule requirement that defense counsel
raise claimed defects in the charging papers prior to trial, and if they fail to do so, there is a fairly

                                                                                                      35
high likelihood that such claim for relief will not be granted. The Southern District in this
decision points out that where challenges such as this are out of time, the Information will not be
deemed insufficient unless it is so very defective that “(1) it does not by any reasonable
construction charge the offense of which the defendant was convicted or (2) the substantial rights
of the defendant to prepare a defense and plead former jeopardy in the event of acquittal are
prejudiced.” This cite is from the oft-quoted Supreme Court decision of State v. Parkhurst, 845
S.W.2d 31, 35 (Mo. banc 1992).



STATUTORY INTERPRETATION – Trial de novo permitted after conviction on
Technical Not Guilty plea

City of Kansas City v. Dudley, ___ S.W.3d ___ (Mo. App. W.D. 2008)

        At issue in Dudley were the ramifications of a “technical not guilty” plea. The defendant
had entered a TNG in Kansas City Municipal Court, and then timely filed his application for a
trial de novo in Circuit Court. But the Circuit Court dismissed his application, saying that the
Court lacked jurisdiction to hear the case because there had never been a trial in the Municipal
Court as required by Section 479.200, R.S.Mo.

         The Missouri Court of Appeals, Western District, reversed and remanded the case for a
trial de novo. The Court of Appeals listed each of the requirements for a municipal court trial as
specified in Rule 37.62, and noted that only two of the requirements are mandatory: (1) evidence
must be offered by the prosecutor and (2) the municipal judge must pronounce a judgment. The
Court noted that in both civil and criminal cases in Missouri “stipulations of fact are considered
evidence,” and it noted that in this case the stipulation “simply relieved the prosecutor of proving
each element of the ordinance violation.” The Court then stated:

       “The City’s case file and the stipulation were presented for the municipal court’s
       determination of whether the evidence was sufficient to support a conviction. The court
       pronounced the judgment of guilt based on the record presented. This proceeding was
       the functional equivalent of a municipal court trial under Rule 37.62. It also satisfied the
       jurisdictional requirement under Section 479.200 that the defendant be “tried” by a
       municipal judge before invoking the right to a trial de novo in the circuit court.” ___
       S.W.3d at ___.

        Question: Must the prosecutor on the record state both the city’s evidence and the
stipulation? Or is the charge itself (which the judge reads to the defendant), together with the
stipulation announced on the record and the Court’s judgment thereon, sufficient to satisfy Rule
37.62? Mandate issued February 13, 2008. WD67675.

       General Comment: The “technical not guilty” plea is sometimes referred to by municipal
court practitioners by other names. It is often called “an Alford plea” or a plea of “nolo

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contendere”. These terms are not recognized in Rule 37.58(a), where the only two allowable
pleas are “guilty” or “not guilty.” And even if they were, Alford and nolo pleas are not precisely
the same as a Technical Not Guilty plea (sometimes also referred to as “submitting the case on
the record.”) There are some vital differences that merit further discussion.

          In North Carolina v. Alford, 400 U.S. 25 (1970) there was a state statute that said if you
plead guilty to murder you get life in prison, but if you are found guilty after a not guilty plea and
a trial, the jury is permitted to give you the death penalty. Alford wanted to plead guilty (thereby
avoiding the possible death penalty) but he did not want to stand up in open court and admit to
the murder. In fact, he continued to profess his innocence. The Supreme Court held that Alford
can plead guilty but not admit to the crime. In short, an Alford plea is a GUILTY plea, plain and
simple. O’Neal v. State, 236 S.W.3d 91, footnote 1 (Mo. App. E.D. 2007).

       A nolo contendere plea in Missouri has essentially the same effect, at least with respect to
possible future attacks on the credibility of the defendant. See Section 491.050, R.S.Mo. But
note that other states treat nolo pleas differently. See e.g., Georgia Statutes 17-7-95(c) where
such a plea is inadmissible for any purpose, whether it be impeachment, sentence enhancement,
or any other reason.

       And this murky water is not cleared any, even by the United States Supreme Court’s
opinion in Alford, where it is noted:

                “Courts have defined the plea of nolo contendere in a variety of different ways,
        describing it, on the one hand, as ‘in effect, a plea of guilty’ (citation omitted), and on the
        other, as a query directed to the court to determine the defendant’s guilt (citations
        omitted). As a result, it is impossible to state precisely what a defendant does admit
        when he enters a nolo plea in a way that will consistently fit all the cases.” 400 U.S. at
        35, footnote 8.

        However, a technical not guilty plea, on the other hand, is everything its name implies. It
is a plea of NOT GUILTY. It’s as simple as that. The defendant then stipulates to a set of facts
which, if believed by the trial court (and why wouldn’t the court accept such a stipulation?) will
support a finding of guilt. This is the concept of “submitting the case on the record” if that is the
preferred local terminology. But of course, municipal court findings, because they are civil in
nature, are inadmissible in a subsequent criminal or civil claim (whereas an admission of guilt
would be). This explains why defendants who face potential civil liability want to enter a TNG
rather than to plead guilty. See Lewis v. Wahl, 842 S.W.2d 82, 95 (Mo. banc 1992) (and cases
there cited in the concurring opinion of Thomas, J.).

       But to paraphrase Shakespeare,2 a rose by any other name is still a rose. No matter what
defense counsel might call it, counsel is seeking to enter a Technical Not Guilty plea for
whatever strategic reasons may exist. The municipal courts should simply note on the docket

2
   “What’s in a name? That which we call a rose, by any other name would smell as sweet.” Romeo and Juliet, Act
II, Scene Two.
                                                                                                             37
sheet that there has been a not guilty plea, and enter judgment against defendant on the stipulated
facts. The Alford and nolo references by counsel might be close, but they are not entirely
accurate.


ELEMENTS OF THE OFFENSE – Unlawful Use of Weapon separate from Assault on
Law Enforcement Officer

State v. Johnson, ___ S.W.3d ___ (Mo. App. W.D. 2008)

       Defendant was convicted of (1) unlawful use of a weapon, (2) assault on a law
enforcement officer in the second degree, and (3) armed criminal action.

        One evening a Sedalia police officer stopped defendant’s vehicle because the officer
knew defendant had failed to report to jail pursuant to a court order. Defendant got out of his
car, turned and pointed a pistol at the Sedalia officer. No shots were fired at that time because
the officer was concerned about hitting passing traffic. Defendant got back into his car and fled
the scene. After a short while the police officer lost sight of the defendant’s vehicle, but a state
trooper, having learned of the pursuit, came upon the defendant and followed him into an
adjoining county. During that pursuit defendant lost control of his vehicle and crashed.
Immediately after the crash there was a shootout between defendant and the trooper, during
which the defendant was wounded. Defendant was eventually charged with the three crimes
noted above, all of which related only to the initial traffic stop by the Sedalia police officer.
Defendant was not charged with the high speed pursuit or the shootout with the state trooper.

        In his first point on appeal defendant challenges the admission by the trial court of
evidence pertaining to the pursuit by, and the shootout with, the state trooper. Such evidence
was admitted by the trial court, probably under the general exception which allows the telling of
a complete story or the painting of a comprehensive and coherent picture of the entire sequence
of events. See, e.g., State v. Jackson at p. 31 of these materials, and State v. Henderson, 105
S.W.3d 491, 495 (Mo. App. W.D. 2003). (The Johnson opinion does not state the specific basis
for the trial court’s ruling in that regard).

        But in any event, the Court of Appeals is not required to decide the propriety of such
admission because, even if improperly admitted, the presumption of prejudice from erroneously
admitted evidence does not result in reversible error where there is overwhelming evidence of
guilt. In this case, the dash mounted video camera in the Sedalia police cruiser clearly recorded
and established all elements of (1) the unlawful use of a weapon, (2) second degree assault on a
police officer, and (3) armed criminal action by the defendant.

      In his second point, defendant claims error in sentencing him for both unlawful use of a
weapon and armed criminal action. He claims violation of the double jeopardy clause.



                                                                                                 38
       In rejecting that contention, the Western District notes that, “Double jeopardy analysis
regarding multiple punishments is . . . limited to determining whether cumulative punishments
were intended by the legislature. State v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992) (citing
Missouri v. Hunter, 459 U.S. 359, 366-69 (1983). When the legislature specifically authorizes
cumulative punishments under two statutes that proscribe the same conduct, cumulative
punishment may be imposed against the defendant without violating the double jeopardy clause.”
___ S.W.3d at ___.

       Defendant relies on Section 571.015 which specifies that a conviction for armed criminal
action cannot be predicated upon the felony of unlawful use of a weapon. That is to say, an
ACA action may not utilize the crime of unlawful use of a weapon as the underlying offense.
Indeed, the case law so holds. Ivy v. State, 81 S.W.3d 199, 207 (Mo. App. 2002).

        But in response, the Court notes that where the ACA conviction rests on some offense
other than the unlawful use of a weapon, conviction and punishment in the same trial of both
ACA and the unlawful use of a weapon arising out of the same act does not offend the principle
of double jeopardy or the prohibition against cumulative punishment set forth in Section
556.041. State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999).

       Here, Johnson’s conviction for ACA rests upon the offense of second degree assault of a
law enforcement office which is a Class C felony. So when Johnson pointed the gun at the
Sedalia police officer he committed assault on the police officer and therefore, he could be
charged with ACA in connection with that assault. And this is true even if his actions at the
scene of the traffic stop also constituted the separate violation of unlawful use of a weapon.
Convictions affirmed. Case not disposed as of February 29, 2008. WD67567.


CONSTITUTIONAL LAW - Signature modus operandi evidence constitutionally
impermissible as corroboration - overruling prior decisions

State v. Vorhees, ___ S.W.3d ___ (Mo. banc 2008)

        Defendant was convicted of statutory rape and statutory sodomy. At trial evidence of a
prior uncharged similar act was offered by the State under two theories; (1) pursuant to Section
566.025 which, at that time, permitted such evidence and (2) under the so-called signature
“modus operandi” exception to the general ban on evidence of prior bad acts. The trial court
allowed the testimony at trial, but did not specifically declare one reason or the other as the basis
for overruling the defense objection.

        Section 566.025 has since been ruled unconstitutional by the Supreme Court in State v.
Ellison (briefly discussed at p. 1 of these materials). The Supreme Court in Vorhees also rejects
the proposition that signature “modus operandi” evidence is appropriate because, at its base, it is
actually used as propensity evidence masquerading under the well recognized identity exception.
The Court observes that there are certain exceptions which allow evidence of prior bad acts (i.e.,

                                                                                                  39
motive, common scheme or plan, identity, the absence of mistake or accident, or impeachment).
But evidence falling under the signature “modus operandi” exception (while it has previously
been held to be regarded as part of the identity exception), really does not identify the particular
defendant at all. Rather, it tends to suggest that this defendant did something similar before, so
he must be guilty now. Stated another way, it is propensity evidence, which is no longer
permitted.

       The Court notes that by invalidating signature modus operandi evidence the Vorhees
ruling brings Missouri into conformity with the vast majority of sister states, as well as the
Federal Rules of Evidence. Thus, to the extent that State v. Bernard, 849 S.W.2d 10 (Mo. banc
1993) and State v. Gilyard, 979 S.W.2d 138 (Mo. banc 1998) conflict with the holding in
Vorhees, they should no longer be followed.       Case not disposed as of February 29, 2008.
SC88553.



SEARCH AND SEIZURE – Validity of consent to be judged by totality of circumstances

State v. Wood, 218 S.W.3d 596 (Mo. App. S.D. 2007)

        Wood appeals his conviction for possession of a controlled substance. His motion to
suppress was overruled, and the evidence was admitted at trial. On appeal he challenges the
ruling on the motion, and the subsequent admission of the evidence.

        First, a procedural reminder. At a suppression hearing, “The burden of going forward
with the evidence and the risk of nonpersuasion shall be upon the state to show by a
preponderance of the evidence that the motion to suppress should be overruled.” Sec. 542.296.6,
R.S.Mo.; State v. Franklin, 841 S.W.2d 639, 644 (Mo. banc 1992). And the testimony of the
defendant in support of the motion to suppress cannot be offered by the state as evidence of the
defendant’s guilt at trial. State v. Davison, 46 S.W.3d 68, 80, note 5 (Mo. App. W.D. 2001),
citing Simmons v. United States, 390 U.S. 377, 390 (1968).

        Now the facts. One night Springfield police officer Harold Millirons arrived at the scene
of a traffic stop (in a used car lot which was closed for the evening). The traffic stop had been
initiated by a different officer. The other officer was talking to the driver of the vehicle.
Millirons saw the defendant sitting nearby on the steps of the closed office. It was a high drug
use area, and Millirons observed the defendant’s behavior as being consistent with meth use.
Millirons approached the defendant and asked him about possessing weapons or drugs, and the
defendant denied both. Millirons had his pistol holstered, and was not threatening the defendant.
The officer then asked, “Would you mind if I search you for weapons or drugs?” Defendant
answered by saying, “Sure.”

       Millirons asked Wood to stand up (and Wood did so) and then Millirons began searching
the defendant. Defendant was completely cooperative. He did not protest, pull away, or

                                                                                                 40
otherwise say anything to the contrary, such as, “Wait a minute. I meant “sure” I mind the entire
search idea.” As memorably put by the prison road crew Captain while addressing an unruly
Paul Newman in Cool Hand Luke, “What we’ve got here is failure to communicate.”

        At the suppression hearing the officer testified that he took the response “Sure” as
meaning “Sure, go ahead and search me.” As might be expected, the defendant testified that
what he meant was, “Sure, I mind being searched.” Court of Appeals sustains the search by
saying, “Consent is freely and voluntarily given if, considering the totality of all the surrounding
circumstances, an objective observer would conclude that the person giving consent made a free
and unconstrained choice to do so.” 218 S.W.3d at 603. Citing State v. Hyland, 840 S.W.2d
219, 221 (Mo. banc 1992). And the trial court could also consider the defendant’s non-verbal
actions on the consent issue. Hyland, 840 S.W.2d at 222. Because defendant was totally
cooperative as the search began, and he remained so throughout (never protesting or challenging
the officer’s actions), the trial court’s conclusion that the search was voluntarily submitted to is
sustained. Conviction affirmed.


CRIMINAL PROCEDURE – Detainer statute – applicable to municipal courts?

State v. Merrick, 219 S.W.3d 281 (Mo. App. S.D. 2007)

        This is a case involving the Uniform Mandatory Disposition of Detainers Law
(UMDDL), Section 217.450, R.S.Mo. et seq. The decision provides us with a starting point for
discussing the issue of the applicability of the UMDDL to municipal court proceedings. In brief,
the statute provides that an incarcerated defendant who has a detainer lodged against him may
write to the prosecutor and the appropriate court and demand that he be brought to trial within
180 days after the delivery of his written demand. If he is not tried within that time frame, the
charges must be dismissed. In this particular case, the defendant’s request for relief was denied
because of his failure to provide appropriate notice to the prosecutor. This seems to be a fairly
common shortcoming in these cases. The defendant will write a letter to the clerk of the court
but oftentimes he fails to write a similar letter to the prosecuting attorney. Such an omission
results in the rejection of his claim under the UMDDL. But the question to be examined today is
this: Is this statute applicable to municipal court charges that are pending against an
incarcerated defendant?

         First, how do these situations arise? Many times the municipal court clerk will receive a
letter from an incarcerated defendant who has city charges pending against him. The defendants
sometimes describe their demand by requesting “a 180 day writ.” What they are really seeking
is relief under the UMDDL.

       Although there are no appellate decisions directly so holding, it appears that the UMDDL
has no direct applicability to pending municipal court actions. The statute by its own terms
applies only to criminal cases which are pending against a defendant. But the violation of a
municipal ordinance is a proceeding that is civil, rather than criminal in nature. Frech v. City of

                                                                                                 41
Columbia, 693 S.W.2d 813, 814 (Mo. banc 1985). Further, an action for the violation of a city
or town ordinance is to be regarded as a civil action for the recovery of a penalty, not a
prosecution for a crime. City of Ferguson v. Nelson, 438 S.W.2d 249, 255 (Mo. 1969). The
violation of a city ordinance is not a criminal offense, but it is a civil action which lies to recover
a debt arising out of the penalty due the city for the infraction of an ordinance. Stokes v. Wabash
Railway Co., 355 Mo. 602, 197 S.W.2d 304, 308-09 (Mo. 1946). Therefore, even if the
incarcerated defendant follows all of the required procedural steps by sending appropriate notice
to both the court clerk and the prosecutor in question (which actually seems to very rarely
happen), it would appear that even when those steps are followed in the context of pending
municipal charges, the statute is simply unavailable to a defendant facing those city charges.

          As a practical matter, we know that when the municipal courts receive letters of this
type the defendants are essentially seeking resolution of their pending charges on a “time served”
basis. The Court may, at its option, either grant the request for “time served” (thereby clearing
the pending case from the Court’s ongoing docket), or the Court may leave the detainer in place.
That decision is within the discretion of the municipal court officials as a matter of internal
policy. But the defendant’s application for “a 180 day writ” would not seem to be any basis to
dismiss the charges or bring the defendant to trial on the municipal charges pursuant to a writ of
habeas corpus ad prosequendum.

           While it is perhaps obiter dictum, additional authority tending to suggest that the
UMDDL applies only to state charges may be found in State v. Sederburg, 25 S.W.3d 172 (Mo.
App. S.D. 2000) (“Where an inmate complies with section 217.450.1 and section 217.455, and
the State fails to bring him to trial within the time required by section 217.460, no court has
jurisdiction to try him thereafter, and the charge must be dismissed.”) (emphasis added) 25
S.W.3d at 174; and State ex rel Kemp v. Hodge, 629 S.W.2d 353 (Mo. banc 1982) (“The
Uniform Mandatory Disposition of Detainers Law (UMDDL) provides for the prompt
disposition of detainers based on untried state charges pending against a prisoner held within
this state's correctional system.”) (emphasis added) 629 S.W.2d at 354.



STATUTORY INTERPRETATION – Conviction for driving while revoked upheld even
where driver did not have a driver’s license

Nelson v. State, ___ S.W.3d ___ (Mo. App. E.D. 2008)

         Eastern District decides a novel issue of law: Whether an individual, who has never had
a driver’s license (and therefore argues that he has never had a “driving privilege”) may
nevertheless stand convicted of driving while his driving privilege is revoked. This point was
raised by defendant on post-conviction motions claiming there was no factual basis to support his
earlier guilty pleas to five separate charges of felony driving while revoked. Eastern District
rejects the argument and affirms the convictions.


                                                                                                    42
        In the motion court, the defendant argued that because he had never held a driver’s
license or a driving privilege, he could not have had his license or privilege canceled, suspended
or revoked so as to become eligible for criminal liability under Section 302.321. Thus, no
factual basis for his plea.

        The motion court acknowledged that movant had never held a Missouri driver’s license,
but reasoned that the State had not charged him with driving while his driver’s license was
revoked or suspended, but rather, had charged the movant with driving while his operating
privilege was revoked or suspended. The Court specifically noted that Section 302.321
authorizes prosecution of any such individual who drives when his privilege has been revoked.

        A careful reading of Section 302.321 supports the trial court’s action and the Eastern
District’s affirmance. The statute provides that “[a] person commits the crime of driving while
revoked if he operates a motor vehicle on a highway when his license or driving privilege has
been canceled, suspended or revoked . . . .” (emphasis added). Applying the well known rule of
statutory construction that every word, clause, sentence or provision of a statute should have
effect (citations omitted) and indeed, following the presumption that the legislature does not
insert idle verbiage or superfluous language in the statutes (citations omitted), the appeals court
reasons that if a “license” and a “driving privilege” were one and the same, such a construction
would render the statute redundant. Thus, the use of the disjunctive term “or” indicates an intent
by the legislature to distinguish a “license” from a “driving privilege.” That is to say, a person
may have a driving privilege even if he does not have a driver’s license.

        Another principle of statutory construction is the Court’s requirement to examine the
words of the statute with a view towards the problem the legislature sought to address (citations
omitted). Here it was clear that the purpose of the statute is to ensure the safety of the roads of
Missouri. Under defendant’s view, “. . . the statute would only punish those who had an actual
vested privilege to drive [i.e. those who hold a driver’s license]. But the legislature has made
plain that the Director may deny driving privileges to an unlicensed driver. To hold that the State
cannot prospectively forbid a driver from driving in this State simply because the driver has
refused or failed to obtain a license or limited driving privilege is nonsensical. Such a holding
would fly in the face of common sense and undermine the very purpose of the statute.”
(emphasis added). ___ S.W.3d at ___. Stated another way, the privilege to drive may be denied
or revoked even if it has not been yet awarded. Convictions affirmed.          Not disposed as of
February 29, 2008. ED88797.


CONSTITUTIONAL LAW – Right to counsel in contempt proceeding

Smith v. Kintz, ___ S.W.3d ___ (Mo. App. E.D. 2008)

       This was a mandamus action to vacate an order of civil contempt in a domestic case. It is
included in these materials as a reminder of the likely necessity for defense counsel in cases


                                                                                                43
involving defendants charged with indirect contempt. This point is addressed in detail in Section
15.8 of the Municipal Court Bench Book, but a brief review here is worthwhile.

       In Smith, the relator faced contempt charges for arrearage in his child support obligation.
On the scheduled hearing date he sought a continuance to obtain counsel. The request was
denied, the hearing took place, and the relator was found in contempt and incarcerated.

        Retained counsel thereafter filed a writ of mandamus which the appeals court treated as a
writ of habeas corpus. Writ granted and relator discharged.

        The Eastern District notes that in cases of indirect contempt, whether they be civil or
criminal, unless the Court has predetermined that there will be no imprisonment, an
unrepresented accused must be advised of his or her right to counsel and, absent a knowing and
intelligent waiver thereof, must be given an adequate opportunity to obtain representation. The
appeals court cites not only Hunt v. Moreland, 697 S.W.2d 326, 328-29 (Mo. App. E.D. 1985)
(which is also cited in the Municipal Court Bench Book materials), but also the more recent case
of Cheatham v. Cheatham, 101 S.W.3d 305, 309 (Mo. App. E.D. 2003).

       Comment: In the municipal court setting, instances of indirect contempt (i.e.,
contemptuous action occurring outside the Court’s presence) are perhaps not nearly as
commonly seen as are instances of direct contempt (i.e., disruptive behavior in open court in the
presence of the municipal judge). However, in the event an indirect contempt action is before
the municipal court (such as, for failure to make restitution as ordered, or to pay fines as
promised), the defendant’s right to counsel if there is a likelihood of incarceration must be
observed and protected in accordance with the guidelines set forth in this case. Mandate issued
February 28, 2008. ED90472.



SEARCH AND SEIZURE – High crime area and matching suspect description not enough
for Terry search

United States v. Hughes, ___ F.3d ___ (8th Cir. 2008)

        Defendant was convicted of being a felon in possession of ammunition. He appeals the
trial court’s overruling of his motion to suppress.

       At about 9:30 a.m. a Kansas City police officer was dispatched to an apartment complex
on a call of “suspicious parties on the property” in response to an anonymous complaint. The
apartment complex was in a high crime area known for substantial narcotics trafficking. The
dispatch described the subject parties as two black males, one without a shirt, the other wearing a
brown shirt and having braids. There was also mention in the dispatch of a red bicycle.



                                                                                                44
        Upon his arrival in the general area of the apartment complex, the officer observed the
defendant (along with another male and a female) standing a few feet from a bus stop across the
street from the complex. There was no evidence of a red bicycle in the officer’s testimony.
Defendant and the other male fit the description given in the dispatch. The officer approached
both males and conducted a Terry patdown search, finding the ammunition in question.

        The Eighth Circuit reverses the conviction based on Fourth Amendment violations. The
trial court had found reasonable suspicion to justify the Terry stop because (1) the area was a
high crime area and (2) defendant matched the description given by dispatch. The officer,
however, admitted that when he approached defendant and the others, they were not engaged in
any suspicious activity, nor was there any other evidence that would support a reasonable
suspicion that a crime was currently taking, or about to take, place. The Eighth Circuit cites
Brown v. Texas, 443 U.S. 47, 52 (1979) as establishing that mere presence in a high crime area,
without more, does not create reasonable suspicion for a Terry stop. By way of contrast, the
Court in Hughes points out that a different result was reached in United States v. Bailey, 417
F.3d 873, 877 (8th Cir. 2005) cert. denied, 547 U.S. 1104 (2006). There, presence in a high
crime area plus the officer’s observation of suspicious behavior, created a reasonable suspicion
for a Terry stop. But there was just no such behavior in this case. Docket No. 07-2213, decided
February 25, 2008. Procedural posture of the case as of February 29, 2008 is not known.

       Comment: This case illustrates the principle that Terry stop cases are very difficult ones
in which to find any bright line rules to follow. All such cases are extremely fact dependent.
This particular decision is somewhat similar to Florida v. J. L., 529 U.S. 266, 272 (2000) where
the search of a fellow standing across the street from the bus station dressed in a shirt that
matched the description of a “suspicious individual” was held to be an unlawful intrusion and
was in violation of the principles set forth in Terry.



SELF INCRIMINATION – The “public safety exception” to Miranda

United States v. Liddell, ___ F.3d ___ (8th Cir. 2008)

       Defendant was convicted of being a felon in possession of a firearm. On appeal he
challenges the denial of his motion to suppress with respect to a post-arrest statement which was
made by him prior to receiving the Miranda warnings.

        In Liddell, defendant was stopped for a traffic violation, and almost immediately arrested
when it was determined that he was barred from driving. The arresting officer gave defendant a
patdown search and placed him in the patrol car. Another officer arrived and searched the
defendant’s car incident to the arrest. When the second officer found an unloaded .38 cal. pistol
under the front seat, he inquired of the first officer whether Liddell had been thoroughly
searched. Liddell was ordered out of the patrol car and he was asked, referring to Liddell’s car,
“Is there is anything else in there we need to know about?” The second officer added, “That’s

                                                                                               45
gonna hurt us? Since we found the pistol already.” Defendant laughed and said, “I knew it was
there but . . . it’s not mine.” This admission established the elements of knowing possession of a
firearm by a felon, and Liddell was convicted. Affirmed. Docket No. 07-1337, February 25,
2008.

        General Comment: Liddell’s conviction was upheld because the custodial questioning
that elicited Liddell’s damaging admission fell within the “public safety exception” to Miranda
as established in New York v. Quarles, 467 U.S. 649 (1984). Because this particular exception to
the Miranda rule is perhaps not as commonly seen as several of the other Miranda exceptions, a
brief review of the “public safety exception” is in order.

        In Quarles the police had been chasing a rape suspect through a supermarket. They knew
he was armed. The officer who first caught up with the suspect saw that Quarles was wearing an
empty shoulder holster, but the officer could not see the weapon. The officer arrested Quarles,
frisked and handcuffed him, and asked him where the gun was. Quarles answered that it was in
an empty carton nearby, and the officer immediately located the gun. At that point, Quarles was
then read his Miranda rights. He later waived counsel, and admitted ownership of the gun.
Quarles was eventually charged with unlawful possession of a firearm. The New York courts
suppressed the first statement as having been obtained in violation of Miranda, and the later
admissions as being tainted by the first admission. The state petitioned for certiorari.

        The Supreme Court held that on these facts “ . . . there is a ‘public safety’ exception to
the requirement that Miranda warnings be given before a suspect’s answers may be admitted into
evidence.” 467 U.S. at 655. And this public safety protection includes not only the members of
the general public, but police officers as well. 467 U.S. at 658-59. Further, the “public safety”
exception does not depend upon the subjective motivation of the officers involved, but rather,
depends on the objective standard evidencing a legitimate concern for public safety. 467 U.S. at
656.

        Thus, Quarles established that where there is a confrontation between a police officer and
a defendant in which there is a legitimate concern for the safety of the officer or the surrounding
public, it does not violate Miranda to make inquiry of the suspect as to the location of a
dangerous weapon or instrumentality that might be located nearby or which might represent a
threat to the safety of the officer or the public. In Quarles, the police knew the suspect had the
gun in his possession only seconds before he was apprehended, and they could not immediately
see where Quarles had put it. Thus, they had no real way of being sure that he (or possibly an
accomplice) couldn’t grab up the weapon from its hiding place and begin shooting. Another
concern was that, if the gun could not be located and it was left behind, the public might suffer
injury from stumbling across the weapon later.

        Quarles seems to be the decision upon which police officers apparently base a fairly
consistent inquiry after the suspect has been arrested and handcuffed. Prior to the search of the
defendant’s person (or his car if nearby), but before the Miranda warnings, the officer usually
inquires, “Is there anything in your pockets (or in your car) that might hurt me – like guns or

                                                                                                46
needles or anything like that.” Whatever the defendant admits at that time is likely to avoid
suppression under Quarles.

        For a more detailed history of Quarles and its progeny, the concurring opinion of
Gruender, J. is recommended reading. In it Circuit Judge Gruender concurs in the result in
Liddell, but writes “. . . . separately to explain my concern that our decisions applying the public
safety exception to Miranda have strayed from the Supreme Court’s tethering of the exception to
the existence of exigent circumstances.” Slip opinion, p. 5.

        Recall that in Quarles there was a spirited chase through a crowded supermarket with
innocent citizens in the area, followed by apprehension of the suspect who was known to have
had a gun, the exact location of which had suddenly become a mystery. That clearly left the
officer (and the nearby citizenry) in potential danger until the gun was located and impounded.
This scenario might very reasonably be contrasted with a traffic stop and eventual arrest on the
open roadway, with no citizens in danger, with defendant locked in the back seat of the patrol
car, and a tow truck on the way to impound defendant’s car. Indeed, the concurring opinion of
Judge Gruender observes that:

               “The record in this case does not establish the existence of exigent circumstances.
       Here, the police had removed Liddell from his vehicle, handcuffed him, conducted a pat-
       down search, and placed him into their patrol car. After the officers had secured both
       Liddell and his car, they began searching his vehicle. Upon finding an unloaded .38
       caliber revolver under the front seat, the officers asked if anything else in the car could
       hurt them.” Slip opinion, p.8.

        The concurring opinion notes that, while looking for a firearm might be inherently
dangerous, the record does not establish any immediate danger because of the presence of the
pistol in the defendant’s car or that the public was in any danger, mainly because no one else was
nearby. But the concurring opinion concludes that, while the public’s well-being was not in
danger, the fact that the officers might have unexpectedly encountered or mishandled a weapon
hidden in Liddell’s vehicle, standing alone, was sufficient to justify the application of the
Quarles exception.

         Has this “unexpected encounter of a dangerous instrumentality” concept now become the
only requirement necessary to invoke Quarles? Or is the “exigent circumstances” requirement
still a part of the equation? There seems to be something of a division of opinion on this point in
the Circuit Courts of Appeal. The Fourth, Fifth and Sixth Circuits seem to require both the
elements of officer and/or citizen safety and a certain degree of exigency to invoke the “public
safety exception.” See, United States v. Mobley, 40 F.3d 688 (4th Cir. 1994); United States v.
Raborn, 872 F.2d 589 (5th Cir. 1989); and United States v. Williams, 483 F.3d 425 (6th Cir.
2007). The First Circuit, on the other hand, seems to line up with the Eighth Circuit in
apparently not requiring such a high degree of exigency before the exception applies. See,
United States v. Fox, 393 F.3d 52 (1st Cir. 2004). Perhaps the United States Supreme Court
might at some time in the future address these apparent variances in the application of Quarles.

                                                                                                 47
        What is the position of the Missouri courts on this point? It appears the Missouri
Supreme Court has not addressed this specific issue. For recent Court of Appeals decisions
interpreting and applying Quarles and the “public safety exception” see Anglin v. State, 157
S.W.3d 400 (Mo. App. W.D. 2005), State v. Duncan, 866 S.W.2d 510 (Mo. App. W.D. 1993),
and State v. Jackson, 756 S.W.2d 620 (Mo. App. E.D. 1988).

       Anglin mentions the concern for police/public safety, but also makes some reference to
circumstances of exigency. 157 S.W.3d at 404. Anglin also refers to State v. Turner, 716
S.W.2d 462, 466 (Mo. App. E.D. 1986) which involved “ . . . a brief question for the limited
purpose of neutralizing a potentially dangerous situation.” Id. So we see in Anglin at least some
reference to the element of exigency.

        Duncan (866 S.W.2d at 511) and Jackson (756 S.W.2d at 621) contain references only to
the issue of officer safety. So it appears that while there is perhaps authority for the proposition
that officer safety would alone carry the day in a “public safety” situation, the existence of
exigent circumstances would certainly enhance the likelihood that an order denying a
suppression motion would be upheld.


March supplement – The following cases became available in March 2008 after
these materials originally went to press.


STATUTORY INTERPRETATION – No D.W.I. enhancement based on prior municipal
S.I.S. cases

Turner v. State, ___ S.W.3d ___ (Mo. banc, SC88651, decided March 4, 2008)

       Defendant seeks post conviction relief from his three year sentence on a Class D felony
D.W.I. He had been sentenced to three years as a persistent offender (meaning he had two prior
intoxication-related traffic offenses). Such guilty plea was entered on April 18, 2005.

         The issue was the interpretation of an inconsistency in Section 577.023 as it existed at the
time of the plea and sentencing. Subsection 1(2)(a) defined a “persistent offender” as any person
“. . . who has pleaded guilty to or has been found guilty of two or more intoxication-related
traffic offenses, . . .” where they occurred within the previous ten years.

        Paragraph 14 of the statute employs the term “conviction” in municipal or county cases
rather than the “guilty plea” language referred to immediately above.

       Paragraph 14 similarly refers to guilty pleas or findings of guilt “followed by a suspended
imposition of sentence, suspended execution of sentence, probation or parole or any combination
                                                                                                  48
thereof in a state court . . .” providing that they, too, shall be treated as prior convictions. There
is no reference at that point in the statute to similar treatment of an S.I.S. in a municipal case.

         In Turner, one of the defendant’s two priors was a municipal S.I.S. He therefore argued
that it should not have been counted because of the Paragraph 14 language quoted above (which,
by its terms, does not include city pleas with an S.I.S.). He claimed he should have been treated
only as a prior offender rather than as a persistent offender and therefore, sentenced only to the
Class A misdemeanor. The Supreme Court agrees that Section 577.023 is irreconcilable based on
the two portions of the statute quoted above. Early in the statute, “intoxication-related traffic
offenses” are described as D.W.I. or B.A.C. charges in violation of “state law or a county or
municipal ordinance,” whereas later in the statute the same scenario seems to be related only to
state offenses. The Court therefore employs the rule of lenity in holding that the statute must be
interpreted in favor of the defendant and thus, any prior municipal offenses resulting in an S.I.S.
cannot be used to enhance punishment under Section 577.023.

        Note: It will be observed that the version of Section 577.023 quoted by the Supreme
Court is not the version of the statute as it now exists. Turner pled guilty and was sentenced in
early 2005, before the recent revisions to the statute took effect on September 15, 2005.
However, this would appear to be a distinction without a real difference. The “persistent
offender” definition originally found in Section 1(2)(a) is now found in Section 1(4)(a) and the
old Section 14 language quoted by the Supreme Court is now found in new Section 16. One
thing the new statute did was to do away with the distinction between lawyer judges and non-
lawyer judges in defining the term “intoxication-related traffic offense” as seen in Section 11 of
the original statute (and Section 13 of the statute as revised in 2005). But no real difference
beyond that one.


CONSTITUTIONAL LAW – Confrontation Clause and custodial interrogation issues

State v. Hill, ___ S.W.3d ___ (Mo. App. E.D., ED89196, decided March 4, 2008)

       Defendant appeals his convictions for child molestation. His two points on appeal were
(1) that his Sixth Amendment right to confrontation was violated by the trial court having
allowed the prosecutor to move a podium so as to prevent the defendant from observing the two
minor witnesses on the witness stand and (2) there was a violation of his Fifth Amendment rights
based on what he regards as a custodial interrogation in violation of Miranda.

        I. Confrontation Clause.     As for the confrontation issue, at trial defense counsel
objected to the blockage of the view between the defendant and the witnesses, claiming that the
trial court would be required to determine some form of psychological trauma that would be
visited upon the youthful witnesses before extending such protection to them and, in the absence
of such a determination, blockage of the defendant’s view of the witnesses violated his Sixth
Amendment rights. It will be recalled that this point was raised in Guese v. State, cited at page
29 of these materials. In the discussion of Guese, the point was raised regarding the possibility

                                                                                                   49
of testimony by way of closed circuit television. Indeed, the Hill opinion points out that such
method of testimony was approved in Maryland v. Craig, 479 U.S. 836, 850 (1990). However,
one of the requirements of Craig was that the trial court would be required to make a case-
specific finding of necessity, and that to make such a finding, the trial court must hear evidence
and determine if the use of the procedure was truly necessary to protect the welfare of the
particular child witness.

        The Hill opinion further notes that Section 491.680, R.S.Mo. provides that, in certain
cases involving child victims, youthful witnesses may testify through in-camera video taped
depositions, and the defendant can actually be excluded from the deposition if there is a
significant emotional or psychological trauma to the child that could result from testifying in the
presence of the defendant. It is clear, however, that the trial court cannot make such a finding
without a case-specific inquiry. In this case, no such finding was made by the trial court, so the
Eastern District in Hill found a Sixth Amendment violation. However, the Confrontation Clause
violation was held to be harmless error, given the otherwise overwhelming strength of the State’s
case.

       Note: The aforesaid Guese decision was suggested by the State in urging the State’s
contention that no Sixth Amendment violation had occurred, but the Eastern District notes in
footnote 1 of the opinion that Guese was not yet a final opinion.

        II. Custodial Interrogation. The Fifth Amendment challenge by Hill centered upon an
interview he gave to the Highway Patrol at police headquarters. He claimed that during the
interview he was in custody and he had not been given Miranda warnings.

        The trooper did not give formal Miranda warnings but rather, he began the interview by
informing the defendant that he was not under arrest; that the door was unlocked; and that he was
“free to go” if he wanted to leave. And at the conclusion of the interview he was indeed allowed
to leave. He was not detained, fingerprinted, processed or booked, and no arrest was made.

       The trooper later filed his report, the defendant was arrested, and the trial and conviction
followed.

        Defendant’s contention on appeal was that he had been the subject of a custodial
interrogation and therefore, Miranda warnings were required. The Eastern District notes that the
Missouri courts have long been guided by the so-called “Werner/Griffin” factors, which have
been set forth in State v. Werner, 9 S.W.3d 590, 595 (Mo. banc 2000) and United States v.
Griffin, 922 F.2d 1343, 1348 (8th Cir. 1990). These are the well known six factors which tend to
suggest either the presence or the absence of a custodial interrogation. In brief shorthand terms,
they are (1) whether the suspect was told the questioning was voluntary and he could leave if he
wanted to; (2) whether he had freedom of movement during the questioning; (3) whether he
initiated the contact or was responding to officer requests for questions; (4) whether strong-arm
tactics were used; (5) whether the atmosphere was police dominated; and (6) whether the
defendant was arrested at the conclusion of the questioning.

                                                                                                50
        The Eastern District notes that recent Eighth Circuit decisions have tended to rely less
and less on the six-point Werner/Griffin test and rather, seem to be gravitating toward a
preference to examine the totality of the circumstances without a ritualistic application of the six-
point test. Those recent Eighth Circuit decisions are cited in the Hill opinion. The Eastern
District also notes that the Missouri Supreme Court in State v. Glass, 136 S.W.3d 496 (Mo. banc
2004) recently analyzed a custodial interrogation question without any reference to Werner or
the Werner/Griffin factors. 136 S.W.3d at 508-09, 510-11.

        Thus, the Eastern District concludes that the current trend now seems to suggest that
perhaps it is not necessary or even always appropriate to determine custodial interrogation issues
by weighing the presence or absence of the six Werner/Griffin factors in all cases. Rather, a
careful look at the totality of the circumstances would seem to be in order. After a detailed
analysis of most of the leading cases on that point, the Eastern District concludes that Hill’s
interview with the trooper did not require Miranda warnings under all the circumstances.
Convictions affirmed.



SEARCH AND SEIZURE – Consent to vehicle search; standing to object; knowing
possession of small amounts

State v. Breese, ___ S.W.3d ___ (Mo. App. S.D., No. SD27858, decided March 14, 2008)

        Here is a recent decision out of the Southern District that provides a comprehensive
overview of some of the important considerations in automobile stops, along with a renewed
look at the question of knowing possession of miniscule amounts of contraband.

        Lawrence Breese was the right front seat passenger in a Thunderbird stopped for
speeding on I-44. The vehicle was being driven by Tonya Johnson. While the stop was in
progress the deputy noticed that both Johnson and defendant Breese were “tweaking,” a
condition indicating someone who is high on amphetamine. The symptoms include twitching
and uncontrolled movements of the body and mouth. Being suspicious that drugs were afoot, the
deputy sought permission from Johnson to search the car, and she granted such permission.
Leaving Johnson in the patrol car, the deputy returned to the Thunderbird and ordered Breese out
of the passenger side of the car, telling him he was about ready to commence a search.
Defendant protested the search, but the deputy advised defendant that he was not the owner and
that the driver had consented to the search.

        On the front floorboard immediately ahead of the right front seat (the defendant’s
location) the deputy found a black shower bag or gym bag. He began going through the bag and
while this was happening, the defendant never gave any indication of ownership, nor did he
protest the search. It was only after the drugs and paraphernalia were found that the defendant


                                                                                                  51
first denied ownership of the bag, then later admitted ownership of the bag, then later yet claimed
that someone else had packed it for him.

       Defendant was convicted of possession of methamphetamine because of a minute amount
of meth found on the scales which had been hidden in a plastic container inside the bag.

         I. Consent to search:         Defendant first challenges the validity of the search of the
vehicle, claiming that the deputy unreasonably concluded that Johnson had authority to consent
to the search. It seems that the deputy had already been advised by dispatch that the car was
titled to the father of a juvenile in the back seat. So Johnson was not the owner – just the driver.
After first recognizing the presumptive invalidity of searches without warrants, the Southern
District notes that routine traffic stops for violation of a traffic law represent justifiable seizures
under the Fourth Amendment. State v. Jackson, 186 S.W.3d 873, 879 (Mo. App. W.D. 2006).
Also, consent is certainly one of the recognized exceptions to the warrant rule. State v. Wood,
218 S.W.3d 596, 603 (Mo. App. S.D. 2007). (Note: The Court does not squarely address the
consent issue (i.e., driver vs. owner) but it would seem that the driver is the presumptively proper
person to give consent in most cases. After all, what would be done about company owned
vehicles or rental cars? Or vehicles loaned between and among fellow lawbreakers? Here
Johnson was the “captain of the ship” whether she owned it or not. Surely she is the proper one
to give consent to a search unless, of course, the actual owner was right there on the scene with
an objection.)

        II. Standing to object: While addressing the search and seizure issue the Court of
Appeals observes that the State challenges the defendant’s standing to contest the search of the
vehicle. It is noted that the capacity to claim the protection of the Fourth Amendment depends
on whether the person who claims such protection has a legitimate expectation of privacy in the
invaded space (State v. Lane, 937 S.W.2d 721, 722 (Mo. banc 1997), quoting Rakas v. Illinois
(439 U.S. 128, 143 (1978). However, the mere status of being a passenger in a vehicle does not
rise to a justifiable or legitimate expectation of privacy that would entitle the passenger to
challenge the search of it. State v. Shoults, 159 S.W.3d 441, 445 (Mo. App. E.D. 2005). Not
only is the defendant in a weak position as a mere passenger in the vehicle, he affirmatively
disclaimed ownership of the searched item (meaning the gym bag found on the front floorboard
of the vehicle) at the time the search was underway. After doing so, one cannot later claim an
expectation of privacy. State v. Toolen, 945 S.W.2d 629, 632-33 (Mo. App. E.D. 1997).

        But even if the defendant had preserved his right to claim an expectation of privacy by
immediately declaring ownership of the bag, no constitutional violation occurred because under
the automobile exception to the warrant requirement, the police are allowed to search an
automobile and the containers in it where they have probable cause to believe contraband or
other incriminating evidence is contained. California v. Acevedo, 500 U.S. 565, 580 (1991).
The Southern District then points out that where the totality of the circumstances at the time of
the search would lead a reasonably prudent individual to believe that contraband was located in
the automobile, the search will be sustained. State v. Irvin, 210 S.W.3d 360, 362 (Mo. App.
W.D. 2006). The facts here indicated a fairly typical I-44 drug corridor type stop with suspicious

                                                                                                    52
individuals acting as if they were under the influence of narcotics and behaving in a generally
suspicious way. So once that degree of probable cause arises, a search of the vehicle, along with
any containers located within it where narcotics might be found, would be upheld. Wyoming v.
Houghton, 526 U.S. 295, 302 (1999). The search and seizure point is denied.

        III. Miniscule amount of contraband: It appears that there was a very slight amount of
methamphetamine on the scales. Elements necessary to sustain a conviction for possession of
contraband are (1) that the defendant consciously and intentionally possessed the substance and
(2) the defendant was aware of the presence and nature of the substance. The leading case is
State v. Purlee, 839 S.W.2d 584, 587 (Mo. banc 1992). Because there was such a tiny amount of
contraband found on the scales, defendant argued that the amount of the controlled substance
was so miniscule as to constitute a mere trace, virtually immeasurable. He argues that in a case
where so little evidence is found, and indeed it is actually consumed in the performance of the
basic test necessary to identify the substance as contraband, such a scenario amounts to a failure
of proof that the accused was knowingly, intentionally and consciously in possession of the
contraband. In this particular case there was not enough meth to scrape off the scales for testing.
Rather, the lab technicians had to rinse the scales with water and then test the water to find the
presence of the residue.

        However, the Southern District notes a defendant can knowingly possess trace amounts
of contraband which might otherwise be classified as mere residue. State v. McKelvey, 129
S.W.3d 456, 459 (Mo. App. S.D. 2004). Thus, even though there is a very small amount of the
drug, the Court notes that the focus should not be solely and exclusively on the amount involved
but rather, based on all of the surrounding circumstances in determining whether the defendant
was in knowing possession of the contraband. The defendant in this case had first denied
possession of the bag, then admitted possession of it, then blamed his sister for having packed
the bag. Also, while talking to the deputy at the scene, defendant had admitted to the use of
methamphetamine, and that he was high when the search was conducted. Defendant also
volunteered his defense that he was not “selling” drugs, when the deputy himself had not even
mentioned that possibility. Thus, taking into account all the surrounding circumstances, the
miniscule amount of contraband which might otherwise result in an acquittal was sufficient to
sustain the conviction.




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