macdl spring 11 layout 1 · and parol. one of the benefits ... don cooley s springfield kevin...

NewsletterP.O. Box 1543

Jefferson City, MO 65102Ph: 573-636-2822

www.MACDL.net

MACDLMissouri Association of Criminal Defense Lawyers

Spring, 2011

MACDL President’s Letterby Travis Noble

2011 is shaping up to be both an exciting and challenging year in thearea of criminal law. With the economy in such a precarious state, wefind ourselves having to do more with less. Prosecutors find themselvesin the same economic situation. We can seize on this situation to cometo a consensus with prosecutors to forge legislation to relieve the budgetcrunch being placed on the state by over incarceration. There will alwaysbe battle lines over which we will not be able to come together, but thisshould not deter us from working together when we can agree. Tworecent bills show where these lines are drawn.

House Bill 159 is an example where we can come together. The MissouriProsecutors Association and MACDL recently testified in support of HouseBill 159 to allow courts to sentence offenders to house arrest in lieu ofincarceration. Courts have been reluctant to use home detention insteadof incarceration. Allowing judges to use home detention enables thecourt to consider a particular defendant’s age, family responsibility, andemployment, relieving the cost of incarceration on the State.

There are also areas that we differ with the Missouri Association ofProsecutors. House Bill 257 attempts to eliminate the sentencingcommission and the sentencing guidelines. The Missouri Association ofProsecutors’ position at the Judiciary Hearing on House Bill 257 was thatjudges are mislead by the “lenient” recommended sentences in theMissouri sentencing guidelines. MACDL’s position was that thesentencing commission provides relevant, up-to-date, information onsentencing practices, risk assessments, and the overall fairness andequality of sentences throughout the state to both courts and probationand parol. One of the benefits of the sentencing guidelines is to provideto the court risk analysis to help judges decide which persons should goto prison and which can be safely diverted to community based programs,saving the state valuable resources as proposed in House Bill 159.

I would like to thank Randy Scherr, Brian Bernskoetter, and SarahGoldman for their support and assistance in preparing MACDL’s positionon pending legislation.

The 2011 Annual Conference will be held April 15-16, 2011 at Chateauon the Lake in Branson, MO. We look forward to seeing everyone at theupcoming Conference.

In This Issue

MACDL President’s Letter 1

MACDL Board Members 2

Thank You Sponsors 2

MACDL Awards 2

Welcome Aboard! 3

DWI and Traffic Law 4Update

Lawyer Assistance Task 9Force

MACDL ListServe 9

Missouri’s Drug Laws 10May Need to Change

Indentification Instructions 12in Missouri Criminal Cases

Post-Conviction News 14from 2010

Missouri State Public 16Defender Update

Legislative Update 17

Amicus Curiae Committee 19

The MACDL Newsletter is asemi-annual publication of the

Missouri Association of CriminalDefense LawyersP.O. Box 1543

Jefferson City, Missouri 65102Phone: 573-636-2822Fax: 573-636-9749

Email: [email protected]: www.MACDL.net

Your comments andsuggestions are welcome!

MACLD Newsletter Spring, 2011

The Missouri Association of Criminal Defense Lawyers(MACD) recognizes outstanding service andperformance by dedicated criminal defense attorneys.

Some of our awards are divided into the various areasof the state. Not all awards are given each year. Theaward ceremony takes place at MACDL`s AnnualMeeting, typically held in April of each year.

Please take the time to make a nomination foroutstanding criminal defense attorneys that youknow, see and work with throughout the state.For more information on MACDL’s awards includinghow to nominate an attorney please visit ourwebsite’s (www.macdl.net) Awards page.

MACLD Awards!

MACDL would like tothank our

2010 Fall CLE Sponsors

Semke Forensic

Missouri Lawyers Media

The Bar Plan

Assisted RecoveryCenters

of America, LLC

Gore Perry Reporting

Thank You!

2010-2011

Officers & Board

Officers

PresidentTravis Noble s St. Louis

Vice PresidentBrian Gaddy s Kansas City

SecretaryJeff Eastman s Gladstone

TreasurerKim Benjamin s Harrisonville

Past PresidentMichael C. McIntrosh s Independence

Board Members

Robert Childress s Springfield

Jason Coatney s Springfield

Don Cooley s Springfield

Kevin Curran s St. Louis

Sarah Jane Foreman s St. Louis

Bruce Galloway s Ozark

Herman Guetersloh s Rolla

Carol Hutcheson s Springfield

Matthew D. Lowe s Clinton

Staci McNally s Osage Beach

Michelle Monahan s St. Louis

Patrick (P.J.) O’Connor s Kansas City

J. Martin Robinson s Jefferson City

John Simon s St. Louis

Carl Ward s Washington

James Witteman, Jr. s Independence

Executive DirectorRandy J. Scherr s Jefferson City

Lifetime MembersDan Dodson

Joseph S. Passanise


Spring, 2011 MACDL Newsletter

Michael Lowry s Hillsboro, MO

Stacey Schwartz s Union, MO

Heath Stuart s Leawood, MO

Richard Holtmeyer s Osage Beach, MO

Timothy Hogan s St. Louis, MO

John Edmiston s Warrensburg, MO

Jeremy Richey s Charleston, IL

Mark Williams s Kirksville, MO

Susan Faust s Mountain Grove, MO

Kevin Babcock s Ava, MO

Ben Borgmeyer s West Plains, MO

Tracy Brown s St. Charles, MO

Rick French s Jefferson City, MO

Tom Gabel s Troy, MO

Jon Hoover s Hannibal, MO

Jeannette Igbenebor s Kansas City, MO

Brent Labovitz s Sedalia, MO

Theresa Lininger s St. Joseph, MO

Steven Lynxwiler s Poplar Bluff, MO

Joshua Menez s Kansas City, MO

Erin Milligan s St. Louis, MO

Dewayne Perry s Bolivar, MO

Stephen Ranz s West Plains, MO

Dane Roper s St. Louis, MO

Kayja Stanley s Monett, MO

Bobbi Urick s Lebanon, MO

Paola Velasquez s Poplar Bluff, MO

Heather Vodnansky s Jefferson City, MO

Matt Ward s Columbia, MO

Kevin O’Brien s Columbia, MO

Zane Williams s Sunrise Beach, MO

Cynthia Black s Marshfield, MO

Carley Correa s Gladstone, MO

Holly Davis s Clayton, MO

Jeannean Wells s Clayton, MO

Andrew Lyskowski s Camdenton, MO

Crime Scene Analysis s South Sioux City, NE

Joby Raines s Marshall, MO

Andrew Garnett s Mexico, MO

Anthony Sicola s Kansas City, MO

Evita Tolee s St. Louis, MO

Gary Lauber s St. Louis, MO

Nicholas Hergott s Liberty, MO

Robert Ciuffa s Olivette, MO

Jeff Walters s St. Charles, MO

MACDL On The Move!

We’d like to welcome the following new members!

Welcome Aboard!

MACDL sincerely appreciates your support. We can’tfunction without you! Your dues pay for postage,printing, MACDL’s interactive website, this newsletter,travel expenses of CLE speakers, lobbying efforts in theMissouri General Assembly, among other things.


Bender v. DOR320 s.w.3D 167 (Mo.App. E.D. 2010)

Driver arrested for DWI and requested to submit to ablood test. When he refused, LEO obtained searchwarrant and two draws were subsequently performed.Driver challenged the revocation of his licenseoccasioned by reason of his alleged refusal, arguingthat he ultimately did submit to a chemical analysis ofhis blood which allowed LEO to obtain his BAC. Thetrial court disagreed and the Eastern District affirms.

A refusal is the volitional failure to do what isnecessary in order that a test can be performed.Obtaining evidence of a driver’s blood alcohol contentunder the Missouri Implied Consent Law is distinctfrom obtaining evidence by a search warrant. TheImplied Consent law is directed to warrantless testingby consent which provides administrative andprocedural remedies for a refusal to comply.Submitting to a court-ordered search warrant forone’s blood is not the same as consenting or makinga volitional choice to submit.

Bland v. Director of Revenue324 S.W.3d 451 (Mo.App. S.D. 2010)

In this Section 577.041 proceeding, the trial courtfound all three issues to be in the affirmative yet setaside the Director’s revocation. The trial court ruledthat the basis for the stop, speeding, was not anindicium of intoxication. On appeal, the SouthernDistrict reversed. The appellate court found the trialcourt was correct in finding all issues to be in theaffirmative from the certified records submitted asevidence, but misapplied law when considering thebasis which prompted the initial stop. Trial court’sdecision reversed.

Southards v. Director321 S.W.3d 458 (Mo.App. S.D. 2010)

In this Section 577.041 proceeding, the trial courtdetermined that there was not probable cause toarrest driver because LEO lacked “sufficient indicia ofintoxication to determine it was more likely than not[driver] was intoxicated.” In its judgment, however,the trial court found that LEO’s observations weresufficient to provide the arresting officer with“reasonable suspicion” that driver was intoxicated.

The appellate court first noted that the Director failedto properly preserve in her brief its allegation that thetrial court erroneously stated the law as to whatconstituted probable cause. Not withstanding thesame, the Southern District found that the trial courtmisapplied the probable cause standard and thusreversed the trial court’s decision.

The Southern District held that probable cause is a“fluid concept” with no exact definition. Probablecause turns on the assessment of probabilities in aparticular factual context. “Although there must be a‘fair probability’ that a particular offense has beencommitted, probable cause ‘does not demand anyshowing that such a belief be correct or more likelytrue than false.’”

The appellate court held that “more likely than not” isan inaccurate rendering of the probable causestandard. Rather, there “simply must be a fairprobability - from the perspective of a prudent andcautious law enforcement officer - that a particularoffense has been committed based on the totality ofthe circumstances.” The facts, as found by the trialcourt, were sufficient for LEO to have had reasonablegrounds to believe driver was driving whileintoxicated. Refusal sanction affirmed.

REFUSAL

“DWI and Traffic Law Update” >p5

DWI and Traffic Law Updateby Jeff Eastman; Gladstone, MO

REFUSAL (Continued)


Mason v. DOR321 S.W.3d 426 (Mo.App S.D. 2010)

In this Section 577.041 action, the driver argued theillegality of his arrest alleging that a fourth class cityofficer initiated pursuit within his own jurisdiction butdid not effect the stop until inside a neighboringjurisdiction. Driver argued that his arrest was illegaland thus could not provide the requisite predicate forthe administrative revocation of his license when herefused to submit to a chemical analysis of his breath.The trial court agreed and affirmed the sanction.

On appeal, the Southern District reversed. Relyingupon Ross v. Director of Revenue, the SouthernDistrict held that the lawfulness of the driver’s arrestdoes not affect whether the driver was arrested forpurposes of Section 577.041.

Bieker v. DirectorSD30466December 23, 2010

The Director claimed the trial court erred in findingthat driver was not legally arrested. As to such issue,the Southern District agreed, reaffirming that thelawfulness of a DUI arrest has no impact the civilSection 577.041 proceeding.

The Director also claimed that the trial court erredbecause the arresting officer had probable cause tobelieve driver was driving while intoxicated. TheDirector argued that the trial court had erroneouslyfound that the undisputed evidence was insufficient toestablish probable cause. The Southern Districtdisagreed, noting that the Director relied upon thewrong standard of review.

A trial court’s probable cause determination involvesa two step analysis: 1) determination of the historicalfacts; and 2) the application of the law to those facts.An appellate court reviews the determination of thehistorical facts under an abuse of discretion standard,giving deference to the inferences the trial courtmakes, including credibility determinations.

In the present proceeding, the Director relied uponher certified records whereas the driver testified. Theappellate court found that the trial court chose tobelieve driver’s version of events which implicitlycasted doubt upon the officer’s credibility, includingthe indicators of intoxication the officer claimed to

observe. As the evidence as to whether the officerhad reasonable grounds to believe driver was drivingwhile intoxicated was contested, the trial court wasfree to believe driver’s version of events. Judgmentaffirmed.

Coble v. Director323 S.W.3d 74 (Mo. App. S.D. 2010)

In this Section 577.041 proceeding, the SouthernDistrict, following the Supreme Court’s opinion inRoss v. Director of Revenue, holds that the ninety-minute arrest rule, as found in Section 577.039, isinapplicable in a refusal proceeding.

The Southern District also reaffirms existing case lawthat the legality of an arrest is not an issue in arefusal proceeding. Thus, even though LEO arresteddriver for an offense which occurred outside theboundaries of his municipality, the civil refusalsanction was upheld and the trial court’s judgmentreversed.

Holloway v. Director324 S.W.3d 768 (Mo. App. S.D. 2010)

The sole issue for review in this Section 577.041appeal was whether the trial court was persuaded theofficer had reasonable grounds to believe driver wasdriving while intoxicated. Citing White v. Director ofRevenue, the Southern District recognized that thetrial court’s probable cause determination is reviewedin a two-step analysis: 1) a determination of thehistorical facts; and 2) the application of the law tothose facts. In the first part of the analysis, appellatecourt reviews the probable cause determinationunder an abuse of discretion standard and givesdeference to the inferences the trial court makes fromhistorical facts, including credibility determinations.In the second step, the appellate court mustdetermine, under de novo review, if those historicalfacts satisfy the relevant statutory standard.

In the present proceeding, the appellate court foundthat the trial court did not believe the officers’testimony enough, or enough of their testimony, tofind that the Director had carried her burden. Theappellate court found the trial court’s judgment inview of the evidence plausible and affirmed the sameextending the White v. Director rationale to Section577.041 proceedings.

DWI and Traffic Law Update (from page 4)


REFUSAL (Continued) REFUSAL (Continued)


Linhardt v. DOR320 S.W.3d 202 (Mo.App. E.D. 2010)

Driver’s license was sanctioned as a consequence ofher refusal to maintain financial responsibilitypursuant to Section 303.025. Eastern District holds ina sua sponte review of jurisdiction, that driver failedto first exhaust her administrative remedies by timelyrequesting a hearing as mandated by Section303.041.2. Since she failed to exhaust this remedy,she waived her judicial challenge. Sanction affirmed.

Prins v. DirectorWD71833November 16, 2010

The Director appealed the trial court’s judgmentwhich disallowed the arresting officer’s report andtestimony as a sanction for an alleged destruction ofa video capturing the incident. On appeal, theWestern District held the trial court erroneouslyapplied the spoilation doctrine.

This spoilation doctrine provides that if a partyintentionally spoliates evidence, the party is subjectto an adverse evidentiary inference. The standard forthe application of this doctrine requires that there beevidence of an intentional destruction of the evidenceindicating fraud and a desire to suppress the truth.The court noted that, although in some circumstancesthe destruction of evidence without a satisfactoryexplanation may give rise to an unfavorable inferenceagainst the spoilator, the party seeking the benefit ofthe doctrine must still show that the spoilatordestroyed the evidence “under circumstancesmanifesting fraud, deceit or bad faith.”

In the present case, the appellate court found thatthe record indicated that the trial court did not believethat the officer intentionally destroyed the videounder circumstances indicating fraud, deceit or badfaith. Rather, the court’s judgment was based upon abelief that where drivers are held to strict adherenceto the law, a law enforcement officer should likewisebe held to their procedures. This finding of the trialcourt negated any finding of fraud, deceit or badfaith, rendering the spoilation doctrine inapplicable.

The court went on to note that, even if there wasevidence of fraud, deceit or bad faith, there was noevidence that the officer acted at the direction or

encouragement of the Director. Where a third personor agent of a party destroys evidence, there must beevidence that the “party” in bad faith directed,encouraged or in any other way took part in thedestruction. In the present case, there was noevidence that the officer acted in response to thedirection or encouragement of the Director. The trialcourt’s judgment was vacated and the matter wasremanded for further proceedings. See also Douglasv. Director of Revenue, (SD30207, November 19,2010), likewise holding the spoilation doctrineinapplicable in a license sanction proceeding.

Rohlman v. Director323 S.W.3d 459 (Mo. App. E.D. 2010)

Director appeals trial court’s decision which set asidea sixty-day suspension for points. On appeal, theEastern District reversed. On April 14, 2009, theDirector advised driver that he would experience athirty-day, point-based suspension effective May 15,2009. On May 4, 2009, driver was convicted ofanother speeding violation in Iowa. On May 22nd,after the initial thirty-day suspension hadcommenced, the Director received notification of thedriver’s second Iowa conviction and, thereafter,assessed an additional three points against driver’slicense. On June 2, 2009, the Director advised driverthat his license would be suspended for sixty days asa consequence of the additional point accumulation.

A commissioner found and the trial court affirmedthat the points from the driver’s second Iowaspeeding conviction were improperly assessed as todate of occurrence and the number of suspensionsand, as a consequence, ordered the second (sixty-daysuspension) to be removed from driver’s record.

On review, the Eastern District found that the trialcourt misapplied the law. The court reviewed bothSection 302.304.2 and 302.160. The court noted thatunder Section 302.160, the Director is not authorizedto assess points until she receives notice of theconviction from another state or from a federal court.In the present circumstance, the Director could notassess points for the second Iowa conviction until shereceived notification from the State of Iowa. Hence,the timing of the assessment was correct and the trialcourt erred in setting aside the point-based sanction.


MISCELLANEOUS


MISCELLANEOUS (Continued)


State v. Shelton320 S.W.3d 186 (Mo.App. E. D. 2010)

Driver sought to expunge records of his prior alcohol-related arrest and administrative sanction underSection 577.054. On the date of the hearing of hisexpungement petition, the court found that a pendingadministrative suspension was an alcohol-relatedenforcement contact, which disqualified driver fromthe requested relief. The Eastern District disagreed.In the instant proceeding, the court found that driverhad timely requested a hearing under Section302.525 such that the administrative sanction wasstayed pending the results of said hearing. TheEastern District distinguished both Fowler v. Directorand Russell v. Director from the present situation.The court noted in Fowler, the defendant hadpetitioned for an expungement for a prior DWIconviction one day after his administrative hearingduring which the DOR made a final determination tosuspend his license. In Fowler, the court held that thealcohol-related enforcement contact occurred whenthe DOR took formal action - by way of a finaldetermination - to withdraw a person’s license, not onthe future date when the suspension was to takeeffect.

In Russell, the driver petitioned for expungement of aprior DWI sanction following an administrativehearing during which the agency found there was noprobable cause to believe that driver had committedan alcohol-related traffic offense and made a finaldetermination not to suspend his driving privilege.

Here, the administrative action remained pendingwithout final determination at the time of the hearingon the petition for expungement and thus driver wasnot disqualified.

State v. Pesce325 S.W.3d 565 (Mo.App W.D. 2010)

The State relied upon Iowa aggravated misdemeanorconviction to enhance defendant to persistentoffender status, arguing that her two-year Iowasentence qualified the offense as a felony underSection 556.016 RSMo. Defendant appealed and the

Western District reversed as to classificationenhancement. Appellate court observes that Section556.016 defines the terms “felony” and“misdemeanor” as follows: “2. A crime is a ‘felony’ ifit is so designated or if persons convicted thereof maybe sentenced to death or imprisonment for a termwhich is in excess of one year. 3. A crime is a‘misdemeanor’ if it is so designated or if personsconvicted thereof may be sentenced to imprisonmentfor a term of which the maximum is one year or less.”

In the present situation, the Iowa offense qualified asboth a misdemeanor and a felony under Missouri law.The ambiguity could not be resolved by resort toother cannons of construction such that the rule oflenity applied. The statute must be interpreted infavor of the defendant such that he was improperlysentenced as a persistent felony offender.

State v. CollinsSC90839January 11, 2011

Defendant challenged the sufficiency of the evidenceoffered to prove he was a chronic offender. In the trialcourt proceeding, the state relied upon a certifiedcopy of the defendant’s driving history as evidence ofhis prior convictions. That certified record failed toreflect whether defendant had been represented bycounsel or waived his right to counsel. The stateconceded error. The sole issue was the appropriateremedy with the state arguing that it should bepermitted to present additional evidence to prove thatdefendant was a chronic offender. The state arguedthat State v. Emory, 95 S.W.3d 98 (Mo. banc 2003),State v. Teer, 275 S.W.3d 258 (Mo. banc 2009) andState v. Severe, 303 S.W.3d 640 (Mo. banc 2010)were not controlling because those findings weremade in jury trials.

The Supreme Court rejected the state’s argumentand, citing State v. Craig, 287 S.W.3d 676 (Mo. banc2009) held that the appropriate remedy is to vacatethe judgment and remand the case for re-sentencingon the record previously made, noting “precedentpersuades that, on remand, the state does notreceive a second opportunity to prove its case.”


MISCELLANEOUS (Continued)

CRIMINAL

CRIMINAL (Continued)



State v. RobertsonWD72529December 14, 2010

State files interlocutory appeal challenging the trialcourt’s judgment sustaining a motion to suppress.The trial court found that the evidence did notestablish that the PBT had been calibrated prior todefendant’s arrest and, therefore, no probable causeexisted for the arrest.

During the suppression hearing, defense counselobjected to the admission of the results of the PBTciting a lack of foundation. Counsel specificallyreferenced the lack of any evidence relating to theunit’s calibration and the scientific principle uponwhich it operated.

The appellate court agreed with the state that proofof calibration is not required for admission of theresults of the PBT under Section 577.021. However, inthe present case, admissibility was not the issuebecause the court had admitted the results in toevidence for purposes of the motion to suppress. Asthe Western District observed, “the state’s realcomplaint is that the circuit court did not accept andrely on the results of the PBT.”

In its opinion, the court referenced the SupremeCourt’s recognition in a driver’s license case that thelack of calibration of a portable breathalyzer machinemay impact the circuit court’s finding as to whetherthe results obtained from the same were credible.See York v. Director of Revenue, 186 S.W.3d 267. Inthe York case, the trial court had found that theofficer lacked the proper training to administer theportable breathalyzer machine and that no evidenceexisted to establish that the device was properlycalibrated, maintained or even working at the time itwas used. The court also referenced the EasternDistrict’s decision in Paty v. Director of Revenue, 168S.W.3d 625, where the court found that a trial courtcould disregard the results of a preliminary breathtest as unreliable. In the present case, the appellatecourt inferred that the trial court questioned thereliability of the “portable breath analyzer machine”and concluded the same was not credible. The trialcourt’s ruling on the motion to suppress wassustained.

State v. SchroederSC90738January 11, 2011

Defendant appeals conviction for failure to dimheadlights, DWI and DWR. Supreme Court holds thattaking the evidence in the light most favorable to thestate and granting the state all reasonable inferencesfrom the evidence stash, a reasonable fact findercould conclude that defendant’s headlights glared intothe eyes of the passing LEO when LEO was withinthree hundred feet of defendant’s vehicle.

Supreme court rejects defendant’s challenge to thetrial court’s ruling on defendant’s motion to suppressfirst noting that defendant was already stoppedalongside of the roadway when LEO passed. “Underthe Forth Amendment a law enforcement officer mayapproach a vehicle for safety reasons or if a motoristneeds assistance, so long as the officer can point toreasonable, articuable facts, upon which to base hisactions.” The court recognizes that LEO has acommunity caretaking function. Here, the court foundthe roadside situation “dangerous” making the initialencounter lawful.

Supreme Court also rejects defendant’s argumentsthat his Miranda rights were violated when he wasquestioned and field tested at roadside, holding thatLEO’s questions were limited and simply asked toconfirm LEO’s suspicions. Defendant’s participation inthe field testing process was voluntary and infurtherance of LEO’s investigation.

Finally, the Supreme Court rejects defendant’s voidfor vagueness challenge to Section 577.001 and577.010.

State v. LoydWD71692December 21, 2010

Defendant convicted of driving while intoxicated anddriving while revoked. Defendant argues that the trialcourt erred in overruling his motion to suppressbecause LEO did not have reasonable suspicion orprobable cause for the traffic stop. Defendantconcedes appellate review is for plain error in that hefailed to preserve his claim at trial through






appropriate objections. Rule 30.20 authorizes anappellate court to review, in their discretion, “plainerrors effecting substantial rights ... when the courtfinds that manifest injustice or miscarriage of justicehas resulted therefrom.”

During the suppression hearing, the state argued thatdefendant had committed three different trafficviolations. First, the state alleged that defendantfailed to signal when turning onto a publicthoroughfare from a private parking lot. The appellatecourt first observed that LEO admitted he was not ina position to see either the front or rear right handturn signal of defendant’s car either before or duringthe car’s turn. Rather, LEO assumed that defendanthad not used his signal solely on the basis that hebelieved that the signal would not have automaticallyturned off by the time he could see the right turnsignal light. The court observed that such belief “isbased solely on the assumption that Loyd was usinga turn signal with an automatic shut off that theautomatic shut off would not have engaged by thetime Loyd finished the turn so the office could see therear turn signal and that Loyd did not override theautomatic shut off and turn the signal off at somepoint during the turn.” The appellate court alsoobserved that the state had not charged defendantwith the crime of failing to signal and that, from thedash cam video, it was clear that there was noevidence to support such a charge. Finally, the courtnoted that even if there was evidence to supportdefendant’s failure to signal, neither state law(Section 302.019) nor the City’s ordinance (KCMOSection 70-454) were applicable in that they onlyapplied to motorists on a “roadway.” A private parkinglot is not within the statutory definition of roadway.

The Western District acknowledged its opiniondiffered from that in the Southern District Case ofState v. Moore, 271 S.W.3d 641 (Mo. App. S.D.2008).

The state also alleged that the stop was lawful in thatthe defendant failed to turn into the nearest turn lanewhen completing his turn. The court first observedthat LEO testified at the suppression hearing that hewas unaware of this alleged traffic violation until afterhe had reviewed the dash cam video of the incidentwhich was after LEO had detained and arresteddefendant. Since this information was not in LEO’spossession prior to the arrest, it could not provide thepredicate basis upon which to justify the arrest. Inaddition, the court noted that the state referenced nostatute or ordinance which made defendant’s actionsin turning into the far lane rather than the laneclosest to the intersection, a criminal violation.

Finally, the state alleged that the stop was justifiedbecause defendant’s vehicle’s tires touched the centerline prior to the stop. During the suppression hearing,LEO testified that prior to the stop, he observeddefendant’s car driving “with its right wheels on thecenter line as it went around the corner.” The dashcam video confirms that defendant’s tires touched,but did not cross the white stripes dividing the lanes.All defendant did was drive with his tires touching thecenter line which, alone, is an insufficient basis toconduct the traffic stop.

In conclusion, the Western District held that the trialcourt plainly erred in failing to grant defendant’smotion to suppress. The judgment of conviction wasreversed and the case remanded for furtherproceedings.



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Strike Force if they are threatened in any way forproviding legal representation to a client in a

criminal proceeding and are subpoenaed to provideinformation, cited for contempt, being disqualified fromthe representation, or who become the subject of a barcomplaint resulting from such representation. Pleasevisit the website for guidelines. (www.macdl.net)

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Developments in technologies often spur innovation.Recent technological developments in how we countmoney and how we do chemical analyses need tospur innovation in Missouri’s laws governingpossession, sale and distribution of controlledsubstances. Missouri’s laws make it a crime of varyingdegrees to possess, distribute, and sell controlledsubstances. However, many, many Missouri citizensapparently commit controlled substance crimesnearly every day.

A recent study by the University of Massachusetts andDartmouth College shows that over 90% of UScurrency is contaminated with cocaine.

The study supplants a prior study by the USComptroller of the Currency which had fixed thepercentage in the high 70’s. To the degree which onemay be aware of the contamination of the currency bydrugs, the contaminated currency may be the nexusof crimes by ordinary Missourians carrying out theirordinary daily lives. As we strive to make our “dailybread,” more and more of the US money supply iscontaminated with measurable amounts of cocainewhich under Missouri law are punishable with finesand/or imprisonment. How would this be so?

Let’s say one gives their children cocainecontaminated dollars for lunch money at school oreven just before they get on the school bus. Havethey committed a Class A felony?

A person commits the offense of distribution of acontrolled substance near schools if such personviolates section 195.211 by unlawfully distributing ordelivering any controlled substance to a person in oron, or within two thousand feet of, the real propertycomprising a public or private elementary orsecondary school, public vocational school, or a publicor private community college, college or university oron any school bus. Section 195.211.2 RSMo.

Distribution of a controlled substance near schools isa class A felony. Punishment for a class A felony is aminimum of 10 years imprisonment up to 30 years orlife imprisonment. Sections 195.211.2; 558.011.1(1)RSMo.

Those gifts of contaminated cash at holidays,birthdays and other celebrations could be a problem,too! The “barter, exchange, or gift, or offer therefor,”of the same contaminated cash exposes one toprosecution for sale of a controlled substance, a classB felony with punishment of a minimum of 5 and upto 15 (or more, depending upon the location of yourhome, the age of the recipients and any criminalhistory!) years in prison. Sections 195.010(38);195.211.3; 558.011.1 (2) RSMo.

To “Deliver” or the "delivery" of cash contaminated bya controlled substance under Missouri law is “theactual, constructive, or attempted transfer from oneperson to another of drug paraphernalia or of acontrolled substance, or an imitation controlled

http://www.msnbc.msn.com/id/21134540/vp/32446512

http://news.nationalgeographic.com/news/2009/08/090816-cocaine-money.html

http://www.nydailynews.com/money/2009/08/17/2009-08-17_new_study_finds_that_90_of_us_currency_has_cocaine_residue_on_it.html

“Missouri’ Drug Laws” >p11

Missouri’s Drug Laws

May Need to Changeby Timothy Hogan

St. Louis, MO


substance, whether or not there is an agencyrelationship, and includes a sale;” delivery is also aclass B felony, the same as a sale. Section195.010(8); 195.211.3; 558.011.1(2) RSMo.

The crime of possession of a controlled substanceoccurs when one knowingly and intentionallypossesses any (or we assert, cash contaminated byany) quantity of any controlled substance, knowing ofits presence and illegal nature. State v. Smith, 849SW2d 677, 679 (Mo. App. E.D. 1993); State v.Spraggins, 839 SW2d 599, 603 (Mo. App. E. D.1992).

Possession of a controlled substance is a class Cfelony, punishable by imprisonment of up to 7 years.Sections 195.202.2; 558.011.1(3) RSMo.

Possession of cocaine contaminated cash is a crimeand occurs when "a person, with the knowledge of thepresence and nature of a substance, has actual orconstructive possession of the substance. A personhas actual possession if he has the substance on hisperson or within easy reach and convenient control. Aperson who, although not in actual possession, hasthe power and the intention at a given time toexercise dominion or control over the substanceeither directly or through another person or personsis in constructive possession of it. Possession mayalso be sole or joint. If one person alone haspossession of a substance possession is sole. If two ormore persons share possession of a substance,possession is joint.” Section 195.010(34) RSMo.

How would this be so?

“It is unlawful for any person to manufacture,possess, have under his control, *** any narcoticdrug, except as authorized by law ... a modicum of anillegal drug is sufficient to bring the defendant withinthe purview of the statute.” State v. Young, 427SW2d 510, 512 (Mo. 1963).

There has been much litigation in Missouri on theissue of the import of the amount of drug found in anygiven situation where a crime has been charged but,courts continue to favorably cite this part of thedecision in Young, supra. Some courts have looked tothe decision where it noted that “so small a quantityof a narcotic might be present as to telltale or indicateonly that thee had been a prior possession of anarcotic but which could not be said to be reasonablyto constitute the object of possession.” Id.; State v.Baker, 912 SW2d 541, 544 (Mo. App. W. D. 1996).

The current state of technology has allowed minisculeamounts of drugs, narcotics or controlled substancesin amounts previously too small to test or detect to beused now to find the presence of such on currenciesin the US and abroad. Developments in gaschromatography-mass spectrometers now allow fortesting of amounts of cocaine and other drugs orcontrolled substances as fine as four grains of sand ona dollar.

If the presence of cocaine in trace amounts is soubiquitous that nearly every member of the Missouripublic could be said to know of such presence, evenin trace amounts, one may find themselves subject toarrest, prosecution and conviction for a felony. SomeMissouri courts have found trace amounts of cocainesufficient for sustaining a conviction of the possessionof such controlled substance where the state proveddirectly or indirectly that the defendant knew or wasaware of the presence of the drug and its illegalnature. State v. Smith, 808 SW2d 24, 26 (Mo. App.E. D. 1991).(But see, State v. James Lee Kopp, SW3dSD29987, decided September 17, 2010, slip opinion,p.12 (Mo. App. S.D. 2010)for the most recentanalysis of case law and a reversal and discharge ofthe defendant).

If the mere knowing possession of US currency whichis contaminated with residue of cocaine may form thebasis for a criminal offense where such knowingpossession is in the ordinary course of an ordinary lawabiding citizen’s life, the drug laws in Missouri may bein need of immediate change.

http://news.nationalgeographic.com/news/2009/08/090816-cocaine-money.html

http://www.nydailynews.com/money/2009/08/17/2009-08-17_new_study_finds_that_90_of_us_currency_has_cocaine_residue_on_it.html

http://en.wikipedia.org/wiki/Gas_chromatography-mass_spectrometry

http://www.youtube.com/watch?v=08YWhLTjlfo

Missouri’s Drug Laws (from page 10)

e


A recurring issue in some criminal cases maymandate a change in the approved instructions givenin criminal cases where the identity of the offender isthe chief issue and there is third party testimony asto an out-of-court identification made by acomplaining witness. The Missouri Supreme Courtaddressed the issue to the contrary in State v. Quinn,584 SW2d 599, 604-5 (Mo. banc 1980). (But see,Quinn, supra., at 606, Seiler, J. dissenting).

In criminal cases where a third party witness to anout-of-court identification by a complaining witness isallowed to testify to the fact of the identification,Missouri’s Constitution Article I, Section 18(a) andwhat is commonly known as the “ConfrontationClause” of the Sixth Amendment to the USConstitution may trump such a prohibition against anot in MAI criminal instruction on the issue ofidentification.

The issue of such third party identification testimonycame to the forefront in the case of State v.DeGraffenreid, 477 SW2d 57 (Mo. banc 1972). InDeGraffenreid, supra. a bright line prohibition againstsuch third party testimony was established and theviolation of such was reversible error.

“We therefore hold that the admission intoevidence of the testimony of Officer Smithconcerning the extrajudicial identification ofdefendant was, on the record before us, error.”

Id., at 64.

Over time, the rule articulated in DeGraffenreid hasbeen undermined by a series of decisions which makemuch of the assertion that the evidence of the guilt ofthe defendant was strong or very strong and that anysuch error as may have been caused by suchimproper evidence was harmless error. In nearly all ofthese cases, appellate counsel did not otherwisechallenge the sufficiency of the evidence and left thisdoor open to the reviewing courts. Also, some ofthese cases prompted strong concurring and

dissenting opinions which argued for a stricterstandard of what constitutes “harmless error” underMissouri law. (See, State v. Cook, 628 SW 2d 657,661 (Mo. banc 1982), Seiler, J., concurring. See also,Id., at 665, Donnelly, C.J., dissenting).

It is also curious to note that certain lower appellatecourt judges so disliked the decision in DeGraffenreid,supra. that some appellate courts have taken theextraordinary step of simply declaring the actualholding in DeGraffenreid “is no longer to be followed”and making the claim that mere cross-examination ofthe testifying witnesses is sufficient to remove thetaint of hearsay from the third party testimony as tothe out of court identification. State v. Kidd, 990Sw2d 175, 180 (Mo. App. W.D. 1999); Calvin v. State,768 SW2d 155, 158 (Mo. App. E.D. 1989).

Eventually, a case made its way to the MissouriSupreme Court where the Court made an attempt tooverrule DeGraffenreid, supra.

In State v. Harris, the Supreme Court held that wherethere was vigorous cross examination of the thirdparty witness, and where a curative instruction wasdeclined, it was not reversible error to allow a thirdparty witness to testify to the out-of-courtidentification of the defendant as the person who hadcommitted the offense charged.

“Defense counsel in this case conductedvigorous cross examination of both theeyewitness and the policeman. He chose not(my emphasis) to have the judge issue acurative instruction with regard to the evidencein dispute. Thus we determine it was not errorto have allowed the challenged testimony butcaution that this type of evidence, whilecorroborative, must stand the test of cumulativeevidence, accordingly the extent of suchtestimony and the number of such witnesses

Identification Instructions

in Missouri Criminal Casesby Timothy Hogan; St. Louis, MO

“Identification Instructions” >p13


should be carefully confined.” Id., at 885.

In DeGraffenreid, supra., defense counsel cross-examined vigorously but declined a curativeinstruction. What is a curative instruction?

A curative instruction in such a case is one where theissue of the identity of the defendant as theperpetrator of the offense is in dispute. In any casewhere the prosecutor has put on a witness, usually apolice officer, to bolster through hearsay statementsthe identification of the defendant by the complainingwitness, you are entitled to either a mistrial or acurative instruction on the issue of the identity of theperson who had actually committed the offensecharged. But, what does such a curative instructionlook like? In the Harris case, supra. the Court decidedthe proffered testimony was not strictly hearsaybased upon precedents from the US 9th Circuit Courtof Appeals. Harris, supra. at 884-5.

When such an issue is before any District Court in the9th Circuit, the following instruction is mandatorywhere the trial court declines to allow experttestimony on the deficiencies of eyewitnesstestimony:

You have heard testimony of eyewitnessidentification. In deciding how much weight togive to this testimony, you may consider thevarious factors mentioned in these instructionsconcerning credibility of witnesses.

In addition to those factors, in evaluatingeyewitness identification testimony, you mayalso consider:

(1) the capacity and opportunity of theeyewitness to observe the offenderbased upon the length of time forobservation and the conditions at thetime of observation, including lightingand distance;

(2) whether the identification was theproduct of the eyewitness’s ownrecollection or was theresult of subsequent influence orsuggestiveness;

(3) any inconsistent identifications made by the eyewitness;

(4) the witness’s familiarity with the subject identified;

(5) the strength of earlier and lateridentifications;

(6) lapses of time between the event andthe identification[s]; and

(7) the totality of circumstancessurrounding the eyewitness’sidentification.

The Ninth Circuit has approved the giving of acomprehensive eyewitness jury instruction where thedistrict court has determined that proffered expertwitness testimony regarding eyewitness identificationshould be excluded. See, e.g., United States v. Hicks,103 F.3d 837, 847 (9th Cir.1996) (“The district courtmay exercise its discretion to exclude experttestimony if it finds that . . . the trier of fact . . .[would] be better served through a . . .comprehensive jury instruction.”); United States v.Rincon, 28 F.3d 921, 925-26 (9th Cir.1994).

It is most important to point out here that asJudge Welliver pointed out concurring;

“I concur in the result. I do not believe that thevoluntary consideration of and attemptedoverruling of State v. DeGraffenreid, 477 SW2d57 (Mo. banc 1972) is necessary for thedisposition of this case.”

State v. Harris, supra. at 885.

So, in cases which you may have where a prosecutorputs on evidence which otherwise is inadmissibleunder State v. DeGraffenreid, 477 SW2d 57 (Mo.banc 1972), you are entitled to either a mistrial or acurative instruction on the issue of identification suchas used in the Ninth Circuit Court of Appeals.

Finally, in cases where the prosecutor offers the thirdparty hearsay and where expert testimony on theissue of identification is offered and refused by thetrial court, I assert such an instruction is mandatoryelse the Defendant’s rights to confront witnesses asagainst him under Article 1, Section 18(a) of theMissouri Constitution and the Sixth Amendment tothe US Constitution will be irreparably harmed. Statev. DeGraffenreid, 477 SW2d 57, 64 (Mo. banc 1972).

Identification Instructions (from page 12)

Ninth Circuit Model Criminal JuryInstructions

4.11 EYEWITNESS IDENTIFICATION

e

Good NewsCases where post-conviction or habeascorpus relief was granted, and why.

Where the state attempts to prosecute for conductthat occurs in the sole jurisdiction of the federal court,this is a jurisdictional defect warranting habeascorpus relief. State ex rel. Laughlin v. Bowersox, 318S.W.3d 695 (Mo. banc 2010). The conduct at issuewas burglary of a U.S. Post Office.

To render effective assistance of counsel, absent astrategic justification for failing to do so, trial counselshould present available psychological evidence at thesentencing phase of a bifurcated non-capital trial.Vaca v. State, 313 S.W.3d 331 (Mo. banc 2010)(Remanded for new sentencing phase).

Where newly discovered Brady violations wereprejudicial to the petitioner under the Brady standard,he was entitled to habeas corpus relief. State ex rel.Engel v. Dormire, 304 S.W.3d 120 (Mo. banc 2010).(Case remanded for new trial.)

Where the oral pronouncement of sentence does notindicate that it is consecutive, the sentence isconcurrent. Habeas relief is available because theconsecutive sentence exceeded the court’s authority.State ex rel. Zinna v. Steele, 301 S.W.3d 510 (Mo.banc 2010).

Where, after Atkins v. Virginia, a death-sentenceddefendant demonstrates that he is mentally retarded,he is entitled to mandamus and commutation to a lifesentence. State ex rel. Lyons v. Lombardi, 303S.W.3d 523 (Mo. banc 2010).

If a PCR motion is timely filed but in the wrongcounty, that county must transfer it to the correctcounty, and it will be deemed timely. Sabatucci v.State, 326 S.W.3d 540 (Mo. App. S.D. 2010).

A waiver of the right to file post-conviction motionswill not be lightly inferred. In Chaney v. State, 323S.W.3d 836 (Mo. App. E.D. 2010), the stateattempted to have a defendant waive his post-conviction rights after the court had already acceptedhis plea and sentenced him. The record showed thatthe waiver was not discussed prior to that time. Thewaiver was not enforced, but relief was denied.

When the court refers to sentencing guidelines for thewrong grade of offense, and defense counsel doesn’tobject, the defendant is entitled to resentencing. InHead v. State, 322 S.W.3d 151 (Mo. App. E.D. 2010),the sentencing court quoted a guideline range for aClass A felony when the offense was actually a ClassB felony. Defense counsel agreed that the guidelineswere correctly cited. This resulted in a sentence“passed on the basis of a materially false foundation”which “lacks due process of law.”

Probation can’t be revoked if proceedings don’t beginuntil the probation has expired. Starry v. State, 318S.W.3d 780 (Mo. App. W.D. 2010).

Circuit judges can’t let people opt out of jury serviceby allowing them to pay $50 and do six hours ofcommunity service. Where neither trial nor appellatecounsel were aware of this practice at the time of histrial or appeal, the defendant was entitled to relief.Preston v. State, 325 S.W.3d 420 (Mo. App. E.D.2010).

Where the defendant was told that he would get jailtime credit for the time he spent on bond and enteredhis plea of guilty based on that understanding, he wasentitled to withdraw his plea. (Missouri law foreclosessuch an agreement.) Johnson v. State, 318 S.W.3d313 (Mo. App. E.D. 2010)


Post Conviction News from 2010by Elizabeth Unger Carlyle © 2011

“Post-Conviction News” >p15

Here is the wisdom I’ve gleaned from successful post-conviction and state habeas corpus cases decided in2010. Cases without S.W.3d cites are not yet final. Missouri Supreme Court cases are listed at thebeginning of each section.

When a defendant is sentenced to a term ofimprisonment, the sentencing court cannot orderrestitution as a condition of parole. Zarhouni v. State,313 S.W.3d 713 (Mo. App. W.D. 2010).

The statute prohibiting sex offenders from residingwithin 1000 feet of a school is unconstitutionalbecause it imposes additional punishment onoffenders convicted before its effective date. Brand v.State, 313 S.W.3d 226 (Mo. App. E.D. 2010), citingF.R. v. St. Charles County Sheriff's Department, 301S.W.3d 56 (Mo. banc 2010).

Trial counsel must advise clients of plea offers fromthe state during the time available for acceptingthem. Frye v. State, 311 S.W.3d 350 (Mo. App. W.D.2010) (Plea vacated, reversed and remanded).

Where the defendant could not have known of asubsequent Missouri Supreme Court case at the timeof his appeal and post-conviction proceeding, he wasentitled to habeas corpus relief. State ex rel. Koster v.Jackson, 301 S.W.3d 586 (Mo. App. W.D. 2010) (Theissue was whether the defendant’s previous municipalcourt SIS DWI counted as a prior offense; thesubsequent case was Turner v. State, 245 S.W.3d826 (Mo. banc 2008).

Old NewsIn case you need a recent cite to somethingjudges should all know ...

Post-conviction courts still haven’t figured out thatthey are supposed to make findings of fact andconclusions of law on PCR cases. Hollingshead v.State, 324 S.W.3d 779 (Mo. App. W.D. 2010); Merrickv. State, 324 S.W.3d 469 (Mo. App. S.D. 2010); Bottv. State, 307 S.W.3d 223 (Mo. App. S.D. 2010)(findings required even though the defendant hadcompleted his incarceration because his convictionstill stood); Rebstock v. State, 315 S.W.3d 371 (Mo.App. S.D. 2010); Howard v. State, 302 S.W.3d 739(Mo. App. E.D. 2010) (Along the way, the courtrejected a claim that Howard was abandoned by hisPCR counsel who filed a Rule 29.15(e) statementinstead of an amended motion.)

And they still haven’t figured out when they aresupposed to grant evidentiary hearings in PCR cases.Legendre v. State, 320 S.W.3d 716 (Mo. App. E.D.2010) (Hearing required on trial counsel’s allegedmisrepresentations to the defendant); Hickey v.State, 2010 WL 2663024 (Mo. App. E.D. 2010)(hearing required on allegation that defense counsel

improperly induced the defendant to waive his rightto testify at trial); Lane v. State, 317 S.W.3d 125 (Mo.App. S.D. 2010) (Hearing required on ineffectiveassistance of counsel allegation concerning failure toadvise the defendant that his guilty plea would waivehis right to complain that he was not tried within 180days of his request under the Uniform MandatoryDisposition of Detainers Law).

Bad NewsThese cases may be helpful in avoiding PCRpitfalls.

If an issue was not raised in the post-convictionmotion, it cannot be reviewed, even for plain error, onappeal from the denial of relief. The express languageof Sup. Ct. R. 24.035 trumps the “plain error”language in Sup. Ct. R. 84.13. Hoskins v. State, 2010WL 5123813 (Mo. banc 2010); Goodwin v. State, 313S.W.3d 161 (Mo. banc 2010).

The 180 period for filing a motion if there is no appealbegins to run when the defendant is initially deliveredto DOC, rather than the date he is returned to DOCafter revocation of his 120 day shock probation. Bondv. State, 326 S.W.3d 828 (Mo. App. E.D. 2010).

The time periods for post-conviction motions cannotbe waived by the state’s failure to object. Swofford v.State, 323 S.W.3d 60 (Mo. App. E.D. 2010).

Post-conviction counsel must make certain that therecord on post-conviction appeal includes the relevantdocuments from the direct appeal (in this case thedirect appeal legal file and transcript) to avoiddismissal. Walters v. State, 306 S.W.3d 208 (Mo.App. W.D. 2010).

HeroesCongratulations to the successful attorneys in thecases discussed in this article:


Post-Conviction News (from page 14)

John Cozean

Kent Denzel

Frederick Duchardt

Kent Gipson

Mark Grothoff

Loyce Hamilton

Susan Hogan

Alexandra Johnson

Craig Johnston

Margaret Johnston

Nancy McKerrow

Alexa Pearson

Melinda Pendergraph

Emmett Queener

Gwenda Robinson

Scott Thompson

S. Kate Webber


Changes in leadership, along with ongoing caseload litigation, have been the center of focus at theMissouri State Public Defender System.

Director Marty Robinson retired at the end of February. He began his career with MSPD in 1988 asan assistant public defender in the Rolla office. He was promoted to district defender in Rolla in 1989and then became the MSPD Interim Director in March 1994. He was sworn in as the Director sixmonths later and served as MSPD Director for 16 years.

Starting March 1, Cat Kelly has been chosen to take over the reins.

“Cat brings energy. She is a great communicator,” Robinson said. “She leads by example. She hasvision. She can see things in the future and work toward them.”

She was sworn in at 3p.m. on Feb. 28 at the Missouri Supreme Court.

Congratulations also to MSPD’s new district defenders, Tom Crocco and Kevin Babcock. They bothassumed their new roles on Jan. 1, and will lead the Troy and Ava offices, respectively. The Troy andAva offices are two of the eight offices currently placed on limited availability because of excessivecaseloads requiring the offices to put clients on a waiting list for services.

MSPD has also announced that Joel Elmer, the district defender in the Kansas City trial office, will bethe new Division Director. He has been the district defender in the Kansas City trial office for morethan 20 years, is a member of the Missouri Bar’s Board of Governors and serves as a representativedefender on the Sentencing Advisory Commission. As Division Director, he will supervise about 10trial offices in the western part of Missouri.

MSPD – along with the rest of the criminal justice system -- has also been waiting on pins andneedles for some movement in the ongoing caseload litigation in the Missouri Supreme Court. After a wait of three months, the Special Master filed his report on February 9, but surprisingly, the report did not make many actual findings – other than that MSPD did follow its own regulations in certifying the Springfield office as overloaded and placing it on limited availability. Mostly it reviewed the issues facing the Supreme Court and discussed the evidence presented at the November hearing, without offering any opinionson reasonableness or lack thereof of the caseloadstandards adopted by the Public Defender Commission. At any rate, the case can now move ahead with a briefing schedule.

MISSOURI STATE PUBLIC DEFENDER SYSTEMDirector’s OfficeWoodrail Centre1000 West Nifong, Building 7, Suite 100Columbia, Missouri 65203Telephone: 573-882-9855 Fax: 573-882-9740

MSPD Update for Missouri Association of

Criminal Defense Lawyers Newsletter


The 96th General Assembly of the MissouriLegislature is well under way and, as always, it will bean interesting session to watch. This session will bemarked by two very different circumstances. The firstis the huge revenue shortfall the state is experiencingand the second is the huge number of new legislators.

The projected budget shortfall for fiscal year 2012 isprojected to be around $500 million. This amount issmall compared to other states, but is following acouple of years of overall revenue shrinkage andcompounded by the fact that federal aid to states hasmostly run out. This shortfall affects all aspects oflegislation and is on the forefront of legislators’ mindsas they consider any new or expanded governmentrole.

This session also marks the second largest freshmanclass of legislators since term limits were put intoplace. There are 79 new freshman legislators out of163 in the Missouri House of Representatives. TheSenate has 34 seats and of those 12 are newfreshman Senators. This influx of new members hasits own inherent challenges and makes the process ofcrafting reasoned and thoughtful legislation moredifficult in the light of the fact that many have little tono legislative experience to draw from.

There are a few bills filed that are of particularinterest to the criminal defense community that arehighlighted in detail below.

The first bill would allow all restitutions to be paidthrough the prosecutor’s office and for theprosecutors to collect an administrative handling feefor this service. This bill would also allow restitutionto be charged for any offense and make the fullpayment of all restitution owed a condition of anindividual’s parole. MACDL has taken a position inopposition to this bill.

Two bills have been filled to make changes to theMissouri Non-Partisan Court Plan. House Joint

Resolution 18 and Senate Joint Resolution 17 goabout changing the court plan differently but the neteffect of both is to give the Governor and theLegislature more control of the selection of judges.MACDL has a long-standing policy of opposing billsthat inject more politics into the selection of judgesunder the Missouri Non-Partisan Court Plan.

House Bill 159 is a bill that would encourage andexpand the use of electronic monitoring in lieu of jailtime and save the counties money on the cost ofincarceration. MACDL supports the former conceptand has drafted a substitute for the bill which wasoffered by the sponsor at the hearing on HB 159.

The list of bills below is a snapshot of all the bills thatMACDL is tracking and the Board’s position on thesebills if they took one. Some of the bills listed belowwere filed after the last Board meeting in late Januaryso no official position has been taken.

House Bill 51 – OPPOSEAuthorizes a $2 surcharge to be collected in allcriminal cases involving a state traffic lawviolation to be disbursed equally for lawenforcement and fire safety training.

House Bill 65Requires the Department of Corrections toestablish the Shock Time for FelonyProbationers Program to give courts analternative to imposing a sentence fornonviolent offenders who have violated theirprobation.

House Bill 66 – SUPPORTAllows the court to suspend imposition of anadult sentence in cases where there is dualjurisdiction and the offender has beentransferred from juvenile court to a court ofgeneral jurisdiction.

“Legislative Update” >p18

Missouri’s 96th General Assembly

Legislative Updateby Brian Bernskoetter, MACDL Staff


House Bill 75 – SUPPORTAuthorizes expungement of certain criminalrecords including convictions for nonviolentfelonies and misdemeanor, municipal, or trafficoffenses.

House Bill 111Specifies that the public interest exception tothe mootness doctrine will apply to an appeal ofa full order of protection which has expired butsubjects the person to significant collateralconsequences.

House Bill 159 – SUPPORTAllows for house arrest with electronicmonitoring or shackling for certain nonviolentoffenders and requires the state to providereimbursement for the total cost of house arrestin certain cases.

House Bill 164Changes the age when the juvenile court willhave jurisdiction over a child involving a state orlocal traffic violation from a child up to 15 1/2years of age to a child up to 15 years of age.

House Bill 178 – SUPPORTAuthorizes the expungement of certain criminalrecords.

House Bill 199Specifies that a prior or persistent offender ofan intoxication-related offense must perform aspecified minimum number of hours ofcommunity service as an alternative toimprisonment.

House Bill 218Allows a senior judge or senior commissioner toelect to forgo his or her regular salary andreceive only the minimum wage during times ofbudget stress.

House Bill 247Creates the crime of false identification to a lawenforcement officer.

House Bill 253Authorizes a prosecuting attorney, uponagreement with an accused or defendant, todivert certain cases to a prosecution diversion

program and changes the penalties for variousfirst offense misdemeanors.

House Bill 254 – OPPOSERequires restitution to be paid through theoffice of the prosecuting or circuit attorney andauthorizes certain administrative costs to beassessed and restitution to be taken from aninmate's account.

House Bill 255Establishes the Private Attorney Retention Actwhich specifies the procedures state agencies oragents must follow when retaining a lawyer orlaw firm to perform legal services under certainconditions.

House Bill 257 – OPPOSERepeals the provisions regarding the SentencingAdvisory Commission.

House Bill 395Expands the crime of operating a motorizedvessel with excessive blood alcohol contentwhen a person operates a motorized vessel onany navigable waterway with a blood alcoholcontent of .08 of 1% or more.

House Bill 396Removes the provision specifying that the $4surcharge assessed in certain criminal cases willnot be collected from any person who has pledguilty and paid a fine through the centralviolations bureau.

House Bill 413Expands the crime of making a false declarationwith the purpose to mislead a public servant inthe performance of his or her duty.

House Bill 516Prohibits any state agent from seeking thedeath penalty on the basis of race and permitsthe use of statistical evidence in certain criminaland post-conviction relief proceedings in deathpenalty case.

House Bill 517Changes the law regarding clemency in deathpenalty cases.

Legislative Update (from page 17)

“Legislative Update” >p19


House Bill 589Increases the penalty for making a false report

if the crime which is falsely reported was afelony.

House Bill 623Changes the penalty for persons with prior DWIconvictions who cause an accident in whichanother person is killed and increases theinsurance liability limits for persons with priorDWI convictions.

House Bill 634Authorizes the court to impose prosecutorialand investigative costs on persons convicted ofmisdemeanors or felonies or whose probation orparole is revoked.

House Bill 650Requires the board of probation and parole tomake periodic reviews of certain convictedoffenders serving sentences of more thanfifteen years or life without parole.

House Bill 663Revises law regarding a $2 surcharge oncriminal cases by making it mandatory andallows the money collected to be used forinformation sharing, as well as biometricverification systems.

House Bill 692Revises the law concerning the Supreme Court’sreview of death sentences.

House Joint Resolution 18Proposes a constitutional amendment changingthe composition of nonpartisan judicialcommissions and increases the number ofcandidates it nominates to the Governor forcertain judicial vacancies.

Senate Bill 89 – OPPOSEAbolishes the state public defender system andrequires circuit courts to provide legal defensefor indigents.

Senate Bill 225Provides for nonpartisan elections of judicialcandidates and forbids certain judges andcandidates from engaging in political activities.

Senate Bill 227Makes the results of certain types of field testsfor controlled substances admissible asevidence in certain preliminary hearings andapplications for arrest warrants.

Senate Bill 338Modifies requirements of the Supreme Court toaccumulate and review certain types of cases.

Senate Bill 349Abolishes the sentencing advisory commission.

Senate Joint Resolution 17Modifies the selection process for certainjudgeships and the composition of judicialnominating commissions.

Legislative Update (from page 18)

Don’t forget that MACDL has anAmicus Curiae Committee whichreceives and reviews all requests

for MACDL to appear as amicus curiae incases where the legal issues will be of

substantial interest to MACDL and its members. Torequest MACDL to appear as amicus curiae, you mayfill out the amicus request on the MACDL website(www.MACDL.net) or send a short letter to Grant J.Shostak, Amicus Curiae Committee Chair, brieflyexplaining the nature of the case, the legal issuesinvolved, and a statement of why MACDL should be

interested in appearing as amicus curiae in the case.Please set out any pertinent filing deadline dates,copies of the order of opinion appealed from and anyother helpful materials.

Committee Chair: Grant J. ShostakShostak & Shostak, LLC8015 Forsyth Boulevard

St. Louis, MO 63105Phone: (314) 725-3200Fax: (314) 725-3275

E-mail: [email protected]

Amicus Curiae Committee


Missouri Association of Criminal Defense LawyersP.O. Box 1543Jefferson City, MO 65102www.macdl.net

Case Law UpdateFor up-to-date Case Law Updates, please visit the MACDL website’s “Newsletter” page andcheck out the link to Greg Mermelstein’s Reports located at the bottom of the page.(http://www.macdl.net /newsletter. aspx)

MACDL Annual Meeting & Spring CLEApril 15 - 16, 2011

Chateau on the Lake; Branson, MO

Bernard Edelman DWI ConferenceJuly 22 - 23, 2011

Tan-Tar-A, Lake Ozark; MO

MACDL Fall CLEOctober 21. 2011

Holiday Inn Executive Center; Columbia, MO

MACDL Meeting Schedule

macdl spring 11 layout 1 · and parol. one of the benefits ... don cooley s springfield kevin...

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