MACDL fall 10 Layout 1 · DWI and Traffic Law- 14 Update MACDL Calendar 20 of Events MACDL Web Traffic 20 Report The MACDL Newsletter is a semi-annual publication of the Missouri

NewsletterP.O. Box 1543

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

www.MACDL.net

MACDLMissouri Association of Criminal Defense Lawyers

Fall, 2010

MACDL President’s Letterby Travis Noble

In This Issue

MACDL President’s Letter 1

MACDL Board Members 2

MACDL Awards 2

Thank You Sponsors 2

Welcome Aboard! 3

Membership Services 4

Missouri Election Update 4

MACDL Successful in 5Defense of Member

Motioin to Dismiss 6

Bruce’s Top 10 Federal 8Cases

DWI and Traffic Law- 14Update

MACDL Calendar 20of Events

MACDL Web Traffic 20Report

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!

This year we have experienced significant progress both within MACDLitself and in the legal community.

We are continuously being exposed to developments in current DWIregulations. In turn, defense attorneys must adapt their means ofworking the criminal justice system accordingly.

The new legislation provides harsher punishments for offenders withbreath tests at .15% or higher, prior offenders, and/or persistentoffenders. This legislation provides the authority to establish DWI/DUIcourts for offenders that meet this criteria. This will mimic the drugcourts which are currently in effect. It has become apparent that jailtime may be ineffective in some instances, the DUI court will focus onfactors such as treatment for alcoholism as well as other substanceabuse, in order to reduce the recidivism of persistent offenders. Thisdivision would specialize in alcohol monitoring, judicial supervision,substance abuse testing, and community service among otherrequirements.

Aside from the DWI/DUI courts, mandatory jail time has been increasedand the standard SIS given will be limited. Also, the new legislation hasadded some restrictions to the expungement policy of a DWI/DUIoffenses.

In an effort to keep repeat drunk drivers off the road, the new legislationwill require counties and municipalities to maintain a constantdistribution of information in regards to prior offenses. A databasesystem will serve as a cross-referencing tool for officials to employ whileinvestigating offenders. This database goal is an effort to establishconsistency in penalties and punishments given for drunk drivers acrossthe state.

The 2010 April Annual Conference proved to be successful this year. Theseminar honed in on “Eyewitness Identification,” making the topic itstheme. A range of speakers addressed topical issues regarding judicialvariances. The sessions were quite informative.

MACDL appeared at the 2010 Small Firm and Solo PractitionerConference again this year. Thank you to all who stopped by the booth.Sarah was able to provide information about MACDL and hadapplications on hand.

“President’s Letter >p2

Page 2 MACLD Newsletter Fall, 2010

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


Thank You!

Metropolitan Court Reporters

Law Offices of Dee Wampler & Joseph Passanise

Central Bank-Jefferson City

Southern Missouri Judicial Services

The Bar Plan

First Track GPS

Please get applications from Sarah and have them available forinterested attorneys. We are on a membership drive.

The 3rd Annual Bernard Edelman DWI conference took place on July24th and July 25th at the Lake of the Ozarks. This seminar was a hugesuccess as always thanks to Carl and Jeff.

Please join us on October 22, 2010 at Harrah’s in St. Louis for the AnnualMACDL Fall Seminar. I look forward to seeing you all in October.

President’s Letter (from page 1)

The Missouri Association of Criminal Defense Lawyers(MACDL) 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. Formore information on MACDL’s awards including howto nominate an attorney please visit our website’s(www.macdl.net) Awards page.

MACLD Awards!

MACDL would like tothank our 2010 Spring

CLE Sponsors:

Fall, 2010 MACDL Newsletter Page 3

Sue Rinne s St. Joseph, MO

Chad Oliver s Springfield, MO

Shane Batchelor s Hillsboro, MO

Becky Winka s St. Charles, MO

David Wallis s Columbia, MO

Melinda Troeger s Chillicothe, MO

Brian Smith s Monett, MO

Mike Sato s Caruthersville, MO

Alexandra Johnson s St. Louis, MO

Jill Porter s Bolivar, MO

Lisa Morrow s Troy, MO

Charlie Moreland s Columbia, MO

Morris Mettler s Springfield, MO

Laura Martin s Kansas City, MO

Maleaner Harvey s St. Louis, MO

James Frazier s St. Louis, MO

Brice Donnelly s Kennett, MO

Maleia Cheney s Carthage, MO

Karen Klingbell s Carthage, MO

David Lloyd s Warrensburg, MO

Ross Nigro s Kansas City, MO

Lisa Hurley s Kansas City, MO

Christine Blegen s Lee’s Summit, MO

Kellie Duckering s Nixa, MO

Lindsey Phoenix s St. Louis, MO

Dave Healy s Springfield, MO

Travis Jacobs s Columbia, MO

Jackie Hunt s St. Louis, MO

Chris Banks s Blue Springs, MO

Andrew Apathy s Liberty, MO

Joshua Sindel s Clayton, MO

Michael Mahon s Jackson, MO

Lance Thurman s Rolla, MO

Daniel Miller s Lee Summit, MO

Lori Hoodenpyle s Prairie Village, KS

Michael Sharma-Crawford s Overland Park, KS

Michele Marxkors s Rolla, MO

David Lowe s Waynesville, MO

Matt Decker s Columbia, MO

Michael Reid s St. Louis, MO

W. B. Schock s St. Louis, MO

Matthew Gould s Hillsboro, MO

Diana Hilliard s St. Louis, MO

Christina Carr s Union, MO

Steven P. Kuenzel, Jr. s Washington, MO

Jeremy Hollingshead s Washington, MO

Jonathan Eccher s Washington, MO

Megan Leary s Washington, MO

Alexandria Stroup s Washington, MO

Marolyn Pinnell s Washington, MO

Theodore Hoefle s Harrisonville, MO

R. Brent Hankins s Kansas City, MO

J. Randal Howell s Branson, MO

Geoffrey Clark s Pittsburg, KS

Michael Lutke s Springfield, MO

Steven Waterkotte s St. Louis, MO

John Newsham s Crestwood, MO

Rodney Mckinney s Union, MO

Brad Wooldridge s Booneville, MO

MACDL sincerely appreciates your support. We can’t functionwithout you! Your dues pay for postage, printing, MACDL’sinteractive website, this newsletter, travel expenses of CLEspeakers, lobbying efforts in the Missouri General Assembly,among other things.

Welcome Aboard!We’d like to welcome the following new members!


Don’t forget that MACDL has an Amicus Curiae Committeewhich receives and reviews all requests for MACDL toappear as amicus curiae in cases where the legal issues willbe of substantial interest to MACDL and its members. Torequest MACDL to appear as amicus curiae, you may fill outthe amicus request on the MACDL website(www.MACDL.net) or send a short letter to Grant J.Shostak, Amicus Curiae Committee Chair, briefly explainingthe nature of the case, the legal issues involved, and astatement of why MACDL should be interested in appearingas amicus curiae in the case. Please set out any pertinentfiling deadline dates, copies of the order of opinion appealedfrom and any other helpful materials.

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

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

E-mail: [email protected]

Amicus Curiae Committee

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

Case Law Update

The MACDL ListServ helps facilitate, via e-mail, all sorts ofcriminal defense law discussions, including recommendationsfor expert witnesses, advice on trial practices, etc.Subscription is free and limited to active MACDL members. Tosubscribe, please visit our website (www.macdl.net), enterthe member’s only page, and follow the listserv link.

MACDL ListServ

Member Services

As a benefit of membership, members have the opportunityto consult with MACDL`s Strike Force if they are threatenedin any way for providing legal representation to a client in acriminal proceeding and are subpoenaed to provideinformation, cited for contempt, being disqualified from therepresentation, or who become the subject of a barcomplaint resulting from such representation. Please visitthe website (www.macdl.net) for guidelines.

Lawyer Assistance Strike Force

Missouri’s mid-term elections are in full swingand, with the primaries recently completed, theGeneral Election looms in November. The racethat will garner the most attention statewide andone of the top races nationwide is the race forMissouri’s U.S. Senate seat being vacated by Sen.Kit Bond. This race pits two of Missouri’s mostpolitically influential families against each other …the Carnahans and the Blunts.

Secretary of State Robin Carnahan is runningagainst Congressman Roy Blunt for this Senateseat and it promises to be one of the most hotlycontested races in the country. The only other

statewide race up this year is for State Auditor.Current Missouri State Auditor Susan Montee isrunning for re-election against former U.S.Ambassador Tom Schweich.

In the Missouri Legislature, there will be a largeturnover this year because of term limits. Of the17 Missouri Senate seats up for election this year,10 will be open seats and in the Missouri Housethere are 64 open seats out of 163.

Polling indicates that this should be a good yearfor Republicans and it is anticipated that theRepublicans will maintain control of the MissouriHouse and Senate.

Missouri Elections Updateby Brian Bernskoetter


MACDL Successful in Defense of Member

by Randy Scherr

The MACDL Strike Force was activated in thedefense of Carl Smith, a MACDL member held inContempt for comments made in court in thedefense of a client.

The Supreme Court discharged Carl Smith,reversing his conviction for criminal contempt. Inso doing, the court clarified the law of criminalindirect contempt by requiring a jury beinstructed that: "The effect of the statementsconstituted an actual or imminent impediment orthreat to the administration of justice" andrequires the double protection of the judgemaking that finding as well. The case is a victoryfor the First Amendment by applying "the

imminent impediment or threat standard," thedecision makes clear that the First Amendmentprotects “lawyer's speech!" All attorneys shouldbe grateful for MACDL’s and the ACLU's support ofattorney speech.

MACDL would like to thank Board Member BruceGalloway, MACDL Member, Talmage Newton fordrafting the brief and all those involved for thesuccess in the Supreme Court.

It appears as though the court has laid out somegood law for future cases. The elements are setout below. For those of you who haven't read it,here is the Conclusion:

In a prosecution for indirect criminalcontempt of court, initiated by a judge whocites a lawyer for contempt for the lawyer'sstatements, the essential elements are:

(1) The lawyer's statements were false;

(2) The lawyer knew the statements werefalse or acted with reckless disregard forwhether the statements were true or false;

(3) The effect of the statements constitutedan actual or imminent impediment or threatto the administration of justice.

Limiting cases of indirect criminal contemptto those where these elements are provedwill satisfy constitutional protections forlawyer speech and will help to ensure thatthe courts of this state will use contemptpowers "sparingly, wisely, temperately andwith judicial self-restraint." In re Estate ofDothage, 727 S.W.2d at 928.

In addition to the deficient jury instructionand the lack of evidence as to the essentialelements of indirect criminal contempt, thetrial court's judgment fails to recite anyfindings of fact as to the three essentialelements listed above. In contemptproceedings "the facts and circumstancesconstituting the offense, not mere legalconclusions, must be recited in both thejudgment of contempt and the order ofcommitment." Ex parte Brown, 530 S.W.2d228, 230 (Mo. banc 1975); see section 21,476.140, RSMo 2000. Neither the judgmentof contempt nor the order of commitmentcontained the necessary factual findings.

Smith is ordered discharged.

Michael A. Wolff, Judge

CONCLUSION


In theCircuit Court of Cass County, Missouri

Seventeenth Judicial Circuit

STATE OF MISSOURI, ))

Plaintiff, )) Case No.

vs. ))

xxxx, ))

Defendant. )

Motion to Dismiss Second Degree Murder and the Class D Felony of Driving While Intoxicated

COMES NOW XX, defendant, through counsel and pursuant to the Fifth & Fourteenth Amendments tothe United States Constitution, Article I, § 10 of the Missouri Constitution, §577.010, RSMo, and Statev. Pike, 162 S.W.3d 464 (Mo.banc 2005), moves this Court to dismiss Count I of the indictment, whichalleges second degree (felony) murder, and Count II which alleges the class D felony of driving whileintoxicated. In support of this motion,

1. On February 20, 2009, the Grand Jurors returned an indictment charging XX, in Count I, withsecond degree (felony) murder, citing § 565.021, RSMo. Specifically, the Grand Jurors alleged that XXcaused the death of YY during the commission of the class D felony of driving while intoxicated, whichoffense was separately charged in Count II, citing § 577.010, RSMo.

2. Under § 565.021.1(2), a person is guilty of second degree murder if he “[c]ommits or attempts tocommit any felony, and, in the perpetration or the attempted perpetration of such felony … anotherperson is killed as a result ….” This is referred to as felony murder. The felony murder rule derivesfrom common law and permits a homicide to be classified as murder, even though committedunintentionally, if it occurred during the pursuit of a felony. State v. Clark, 652 S.W.2d 123, 125-26(Mo. banc 1983). “‘The felony murder rule permits the felonious intent necessary to a murderconviction to be shown by the perpetration of or attempt to perpetrate a felony.’” Id. at 126 (citationomitted). As such, “‘the rule does not make the underlying felony an element of the felony murder;it merely provides an additional means of proving the requisite felonious intent for murder.’” Id.(citations omitted). “It is the intent to commit the underlying felony, not the intent to kill, that is thegravamen of the felony murder offense.” State v. Coleman, 949 S.W.2d 137, 142 (Mo. App. [W.D.]1997). State v. Williams, 24 S.W.3d 101, 110 (Mo.App., W.D. 2000) (emphasis added).


3. Here, the charge purporting to provide the “felonious intent for murder” is not, itself, a felony.Driving while intoxicated is a misdemeanor. § 577.010. While persistent offenders of § 577.010 maybe sentenced within the range for a class D felony, that enhancement does not transform driving whileintoxicated into a felony offense. See State v. Pike, 162 S.W.3d 464 (Mo.banc 2005). Letting theState transform the offense here would violate XX’s right to due process of law. See U.S. Const.,Amends. 5 & 14; Mo.Const., Art. I, § 10.

4. In Pike, the defendant argued that § 577.023 transformed a misdemeanor into a felony, but theMissouri Supreme Court flatly rejected that, holding, an enhanced sentence under § 577.023.3 is nota new offense. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219 (1998). Rather,proof of prior convictions under § 577.023 “merely serves to authorize enhanced punishment for theunderlying offense charged, if the defendant is found guilty.” State v. Cullen, 39 S.W.3d 899, 904(Mo.App. [E.D.] 2001) … Section 577.023 creates no new offense. Id. at 470 (emphasis added).Driving while intoxicated is a misdemeanor offense, which, under certain circumstances, may besentenced under a felony range of punishment. Pike, however, makes clear that that enhancementdoes not transform the misdemeanor into a new felony offense. Accord Goodloe v. Parratt, 605 F.2d1041, 1047 (8th Cir. 1979) (a statute that enhances a misdemeanor to a felony upon repetitioncannot create a “true” felony because it does not define an offense, but merely increases punishmentupon a second or subsequent conviction of the same offense).

5. Driving while intoxicated is created by § 577.010, and it is a misdemeanor offense. Its repetitioncan only subject an offender to an enhanced penalty for that offense; the repetition does not, itself,create a new offense. Pike, supra at 470. Consequently, driving while intoxicated cannot provide the“felonious intent” required for second degree (felony) murder, and this Court must dismiss Count I ofthe indictment.

WHEREFORE XX, defendant, respectfully prays that this Court dismiss Count I of the indictmentcharging him with second degree (felony) murder and Count II charging him with the class D felonyof driving while intoxicated.

Respectfully submitted,

___________________________

Kimberly BenjaminAttorney for DefendantBenjamin, McLaughlin & Benjamin, PC100 S. Independence St.Harrisonville, Missouri 64701(816) 380-8008 – Voice(816) 380-8007 – Fax

Certificate of Service

I, Kimberly Benjamin, hereby certify that on this ___day of ______, 2010, a true and correct copy ofthe foregoing was mailed, first class, postage pre-paid to, _____ County Prosecutor, _____..

______________________________Kimberly Benjamin


Bruce’s Top 10 Federal Casesby Brian Gaddy

Padilla v. Kentucky

130 S. Ct. 1473 (2010)

Advising Clients of Collateral

Consequences to Their Guilty Plea

The Petitioner was a lawful permanent resident whowas prosecuted for drug distribution. After pleadingguilty, the defendant faced deportation. Inpostconviction proceedings, the defendant claimedhis counsel did not advise him about possibledeportation, and even said that he should not worryabout it because he had lived in the United States forover 40 years.

The Supreme Court held that counsel must inform aclient whether his plea carries a risk of deportation.When this advice is not rendered, counsel’sperformance may be constitutionally defective.Changes to immigration laws have dramaticallyraised the stakes of a non-citizen’s criminalconviction. Because the drastic measure ofdeportation or removal is now virtually inevitable fora vast number of non-citizens, the importance ofaccurate legal advice has never been moreimportant. As a matter of federal law, deportation isan integral part of the penalty that may be imposedon non-citizens who plead guilty to specified crimes.The Court has never distinguished between directand collateral consequences in defining the scope ofconstitutionally required “reasonable professionalassistance.” The weight of prevailing professionalnorms supports the view that counsel must advisehis/her client regarding the deportation risk. If thedeportation risk is clear, the duty to give correctadvice is equally clear. If the deportation risk isunclear, the attorney must advise the client thatpending criminal charges may carry adverseimmigration consequences. “Top 10 Federal Cases” >p9

Maryland v. Shatzer

130 S. Ct. 1213 (2010)

Invocation of Miranda Right to Counsel

Shatzer became a suspect in a sexual assault whilehe was serving a prison sentence for another crime.A detective visited the prison attempting to interviewShatzer, but Shatzer invoked his Miranda rights.Several years later, the investigation was reopenedand another detective attempted to interviewShatzer. At this point, Shatzer waived his Mirandarights and confessed to the crime. The lower courtsheld that Shatzer’s statements were not admissibleas the passage of time does not end Edwardsprotections once invoked.

The Supreme Court held that because Shatzerexperienced a break in Miranda custody lasting morethan two weeks between the first and secondattempts at interrogations, Edwards does notmandate suppression of the confession. The Courtobserved that Edwards created a presumption thatonce a suspect invokes his Miranda rights, anywaiver of that right in response to a subsequentattempt at interrogation is involuntary. The Courtsaid that it was easy to believe that a suspect’s laterwaiver may have been coerced or badgered when hehas been held in uninterrupted custody since his firstrefusal to waive. But where a suspect has beenreleased from custody and returned to his normal lifefor some time before the later attemptedinterrogation, there is little reason to think that hischange of heart has been coerced. Because theEdwards presumption was created by the Court, theCourt can also specify the period of release fromcustody that will terminate its applicability. The Courtconcluded that 14 days constitutes a break, as that


Top 10 Federal Cases (from page 8)

period provides ample time for a suspect to getreacclimated to his normal life, consult with friendsand counsel, and shake off any residual coerciveeffects of the prior custody.

With respect to Shatzer, his release back into generalpopulation of prison constitutes a break in Mirandacustody. Lawful imprisonment does not create thecoercive pressures produced by investigativecustody. An inmate released back to generalpopulation returns to their accustomed surroundingsand daily routines. They live among other inmates,guards and workers, and often can receive visitorsand communicate with people on the outside by mailor telephone. The inmates can visit the library eachweek, have regular exercise and recreation periods,and can participate in basic adult education. Thus,the inherently compelling pressures of custodialinterrogation ended when Shatzer returned to hisnormal life.

Berghuis v. Thompkins

130 S. Ct. 2250 (2010)

Fifth Amendment and MirandaThe defendant was interrogated about a shooting.The officers advised the defendant of his rights in fullcompliance with Miranda and presented a Mirandawaiver form. Although the defendant read out loud aportion of the form, the defendant refused toverbally waive or invoke his rights, refused to signthe written waiver form, and sat almost completelysilent for close to 3 hours. The interview wasdescribed by police as “one-sided” and nearly a“monologue.” At the 2 hour and 45 minute mark, oneof the officers asked Thompkins if he believed in Godto which he answered yes. The officer asked him if heprayed to God and he answered yes. The officer thenasked if he prayed for forgiveness for the shootingand the defendant answered yes. The defendantsought to suppress his statements claiming that hehad invoked his right to remain silent previouslyduring the interview and that he had not waived hisrights.

The Supreme Court held that the defendant’s silenceduring the interrogation did not invoke his right toremain silent. Although the defendant remainedsilent for nearly 2 hours and 45 minutes, that silence

is not sufficient to invoke Miranda, which must beinvoked “unambiguously.” If an accused makes anambiguous or equivocal statement or no statementat all, the police are not required to end theinterrogation or ask questions to clarify thedefendant’s intent. According to the Court, anunambiguous invocation of rights results in anobjective inquiry that avoids difficulties of proof andprovides clear guidance to police officers. If anambiguous act, omission or statement is allowed,police would be required to make difficult decisionsabout the accused’s unclear intent and face theconsequences of suppression if they guess wrong.

The Court next addressed whether it had been shownthat the defendant had voluntarily waived his rights.A Miranda waiver must be a knowing and voluntarywaiver. The Court held that waivers can beestablished even absent a formal or express writtenwaiver form or a clear verbal statement. Theprosecution does not need to show an expresswaiver. An implied waiver is sufficient if theprosecution shows that the accused understood hisrights. Miranda does not require a formalistic waiverprocedure. In this case, the defendant waived hisrights. There was no contention that he did notunderstand his rights, as he was presented a waiverform, the officer read the form out loud, and thedefendant read out loud a portion of the form. Thedefendant’s response to the questions regarding Godis a course of conduct indicating a waiver. If hewanted to remain silent, he could have invoked orsaid nothing in response to those questions. The 2hour and 45 minute time frame is irrelevant. Therewas also no evidence the statement was the productof any police coercion. The police are not required toobtain a waiver first before they question a suspect.The police may interrogate a suspect who has neitherinvoked nor waived his rights. The police are notrequired to obtain a written Miranda waiver form.

Justice Sotomayor authored a strong dissentingopinion, indicating that the case was “troubling.”Citing to Miranda and other opinions, she noted thatwhether someone waives Miranda cannot bepresumed from silence of the accused or because theaccused eventually gave a statement. Miranda itselfindicates that a lengthy interrogation orincommunicado incarceration before a statement ismade is strong evidence that the accused did not

“Top 10 Federal Cases” >p10



validly waive his rights. Miranda also holds that avalid waiver will not be presumed simply from thefact that a confession was ultimately obtained.According to Justice Sotomayor, the Thompkinsdecision “turns Miranda upside down. Criminalsuspects must now unambiguously invoke their rightto remain silent–which, counterintuitively, requiresthem to speak. At the same time, suspects will belegally presumed to have waived their rights even ifthey have given no clear expression of their intent todo so. Those results, in my view, find no basis inMiranda or our subsequent cases and areinconsistent with the fair-trial principles on whichthose precedents are grounded.”

Michigan v. Fisher

130 S. Ct. 546 (2009)

Fourth Amendment –

Warrantless Search of Home

The police were called to investigate a neighborhooddisturbance and were directed to a house where aman “was going crazy.” The officers observed apickup truck with the front end smashed, damagedfenceposts, three broken house windows, and bloodon the pickup truck and on the front door of thehouse. The officers observed the defendant insidethe house screaming and throwing things. Thedefendant refused to answer the door. The officersobserved that the defendant had a cut on his hand.One of the officers attempted to enter the house, butobserved the defendant pointing a long gun at thedoor upon his entry. The defendant was charged withassault with a dangerous weapon based on theofficer’s observations from the entryway of thehome.

The Court held the officer’s entry into the house wasreasonable under the Fourth Amendment. Theultimate touchstone is reasonableness. Althoughwarrantless searches and seizures inside a home arepresumptively unreasonable, the presumption can beovercome. An example is the exigency of thecircumstances which may make the needs of lawenforcement so compelling that a warrantless searchis objectively reasonable. One such exigency is theneed to assist persons who are seriously injured orthreatened with such injury. Law enforcement may “Top 10 Federal Cases” >p11

enter a home without a warrant to render emergencyassistance to an injured occupant or to protect anoccupant from imminent injury. Since the officerssaw signs of a recent injury outside the house, andthey observed the defendant screaming andthrowing things, it would be objectively reasonableto believe that the defendant’s projectiles might havea human target or that the defendant would hurthimself in the course of his rage. Officers do not need“ironclad” proof of a likely serious, life-threateninginjury to invoke the emergency aid exception.

Florida v. Powell

130 S. Ct. 1195 (2010)

Scope of Miranda Warnings

The Tampa Florida Police Department uses Mirandawarnings where the suspect is informed that he hasthe right to talk to a lawyer before answering any ofthe questions and that he has the right to use any ofthese rights at any time during the interview. Thedefendant sought to suppress his confession byclaiming that Tampa’s warnings did not adequatelyconvey his right to the presence of counsel duringthe interrogation.

The Court held that advising a suspect that he hasthe right to talk to a lawyer before answeringquestions and that he can invoke that right at anytime is sufficient to satisfy Miranda. The Mirandadecision requires that a suspect be warned prior toquestioning that he has the right to the presence ofan attorney. While the warnings prescribed byMiranda are invariable, the Court has not dictatedthe precise words in which the essential informationmust be conveyed. In determining whether policewarnings were satisfactory, reviewing courts are notrequired “to examine [them] as if construing a will ordefining the terms of an easement. The inquiry issimply whether the warnings reasonably conve[y] to[a suspect] his rights ....” The warnings in this casesatisfy the standard. Because the defendant waswarned that he could invoke his rights any timeduring the interview, this confirmed he couldexercise his right to consult an attorney while theinterrogation was underway.




Ontario v. Quon

130 S. Ct. 2619 (2010)

Right to Privacy – Text Messages

The City of Ontario, California, issued text pagers toits police officers. When the officers exceeded theircharacter limits for texting, the departmentresearched the transcripts of the text messages. Itwas discovered that many of the text messages werenot work related and that some were sexuallyexplicit. With regard to Officer Quon, few of his textssent during business hours related to official policebusiness. Quon was disciplined by the department.Quon filed suit, alleging that the police departmentviolated his Fourth Amendment rights to privacy.

The Supreme Court held that the department’ssearch of the text messages was reasonable under

the Fourth Amendment. The Court refused to answerwhether Quon had a reasonable expectation ofprivacy in the text messages. The opinion assumedthat he had a reasonable privacy expectation, thatthe review of the text transcripts were a search andthat the principles applicable to a governmentemployer’s search of an employee’s physical officeequally apply in the electronic sphere. Thewarrantless search of the text transcripts wasreasonable because it was motivated by a legitimate,work-related purpose and because it was notexcessive in scope. There were reasonable groundsto conduct the search as the police department wasauditing whether the text character limits were notsufficient to meet the city’s needs.

Graham v. Florida

130 S. Ct. 2011 (2010)

Imposition of Life Without Parole

Sentences for Juveniles

Petitioner was convicted of armed burglary when hewas 16 years old. He was tried as an adult andentered a plea of guilty that involved a deferredadjudication of guilt. He received 3 years probationand one year in the county jail. While on probation,Petitioner was arrested for a home invasion robberywith two accomplices. The evidence also establishedthat the Petitioner and his accomplices attempted asecond robbery that night where one of theaccomplices was shot. After finding a probationviolation, the range of punishment was 5 years to lifeimprisonment. The defense requested a 5 yearsentence, a presentence report recommended a 4year sentence, and the State requested a totalsentence of 45 years. The court sentenced him to lifeimprisonment. Since Florida law abolished the parolesystem, a life sentence gives no possibility of releaseexcept for executive clemency.

The Supreme Court held that the life sentence withno possibility of parole for a non-homicide offensecommitted by a juvenile violates the EighthAmendment. The Cruel and Unusual Punishment

Clause requires that the punishment for a crimeshould be graduated and proportioned to theoffense. The Court observed that cases involving theproportionality standard fall within two generalclassifications: 1) whether the length of a term-of-years sentence is unconstitutionally excessive for aparticular defendant’s crime; and 2) cases where acategorical rule has been applied against the deathpenalty. The Court has held previously that capitalpunishment is impermissible for non-homicidecrimes against individuals. The Court has alsoprohibited the death penalty for defendants whocommit their crimes before the age of 18, or fordefendants who are mentally retarded. In applyingthe categorical approach, the Court first considers“objective indicia of society’s standards.” Then theCourt will determine in its own judgment whether thepractice violates the Eighth Amendment. Theinadequacy of a penological theory to justify lifewithout parole sentences for juvenile non-homicideoffenders, the limited culpability of such offenders,and the severity of these sentences led the Court toconclude that a life sentence with no possibility ofparole for a non-homicide juvenile offense violatesthe Eighth Amendment.




United States v. Stevens

130 S. Ct. 1577 (2010)

First Amendment and

Federal Criminal Statutes

18 U.S.C. § 48 criminalizes the commercial creation,sale or possession of certain depictions of animalcruelty. The statute only addresses the “portrayal” ofharmful acts, not the underlying conduct or acts. Thestatute applies to any visual or auditory depiction inwhich a living animal is intentionally maimed,mutilated, tortured, wounded or killed if that conductviolates state or federal law where the creation, sale,or possession of the depictions took place. Thedefendant was indicted for selling videos ofdogfighting.

The Court found the statute was substantiallyoverbroad and therefore invalid under the FirstAmendment. Depictions of animal cruelty are not, asa class, categorically unprotected by the FirstAmendment, and any regulation of expression basedon content is presumptively invalid. While theprohibition of animal cruelty has a long history underAmerican law, there is no evidence of a similartradition involving “depictions” of such cruelty. TheCourt declined the Government’s invitation to add“depictions of animal cruelty” to the list of categoriesof speech that can be permissibly restricted underthe First Amendment based on content. Under theFirst Amendment, a law may be invalidated asoverbroad if a substantial number of its applicationsare unconstitutional. The Court concluded thatsection 48 creates criminal prohibitions of alarmingbreadth. Depictions of entirely lawful conduct in onestate may run afoul of the federal statute if thedepictions are found in another state where theunderlying conduct is unlawful. As an example,hunting is illegal in the District of Columbia. Section48 would apply to any magazine or video depictinglawful hunting that is sold or possessed in D.C. Thoseseeking to comply with the law face a bewilderingmaze of regulations from at least 56 jurisdictions.Although the Government pledged to enforce section48 in only “extreme” cruelty cases, the Court will notuphold an unconstitutional statute because theGovernment promises to use it responsibly.

Presley v. Georgia

130 S. Ct. 721 (2010)

Sixth Amendment Right to Public Trial

The defendant was tried and convicted of traffickingcocaine. On appeal, the defendant claimed that hisSixth and Fourteenth Amendment right to a publictrial was violated when the trial court excluded thepublic from the voir dire of prospective jurors. TheCourt observed that the Sixth Amendment directsthat in all criminal prosecutions, the accused shallenjoy the right to a speedy and public trial. The Courthas also held that public trial rights extend beyondthe accused and can be invoked under the FirstAmendment. The Court concluded that the SixthAmendment right to a public trial extends to the voirdire of prospective jurors. Trial courts are obligatedto take every reasonable measure to accommodatepublic attendance at criminal trials. If a court isconcerned about the public’s impropercommunication with potential jurors or other safetyrisks and closes proceedings to the public, theparticular concerns must be articulated in specificfindings so that a reviewing court can determinewhether the closure of proceedings was proper.

Skilling v. United States

130 S. Ct. 2896 (2010)

Mail Fraud

Jeffrey Skilling was one of the executives involved inthe Enron prosecutions. The grand jury indictedSkilling with a number of federal offenses, includinga conspiracy count which alleged that the defendantsconspired to commit wire and securities fraud andthat Skilling had sought to deprive Enron and itsshareholders of the “intangible right to his honestservices.”

18 U.S.C. § 1346 defines a scheme or artifice todefraud under the federal mail and wire fraudstatutes to include “a scheme or artifice to depriveanother of the intangible right of honest services.”



Before the enactment of section 1346, the honestservices doctrine was developed through apatchwork of federal case law. Some cases involvedonly corruption of public officials, while other casesapplied the doctrine to private sector matters wherean employee breached a fiduciary duty or had aconflict of interest. In McNally v. United States, 483U.S. 350 (1987), the Supreme Court ruled that mailfraud only involves the protection of property rights,not intangible rights. Congress immediatelyresponded by enacting section 1346 the next year.

Twenty-two years later, the Court analyzed whethersection 1346 is constitutional. Skilling claimed that

the statute did not clearly define honest services andthat reported case law was inconsistent andcontradictory in attempting to define the parametersof the honest services doctrine. The Supreme Courtgenerally agreed, but refused to strike down thestatute as unconstitutional. Instead, it construedsection 1346 by looking at the pre-McNally cases,which largely involved bribes or kickback schemes.According to the Court, Congress must haveintended to refer and incorporate the pre-McNallycase law definition of honest services. To preservethe statute without transgressing constitutionallimitations, the Court held that section 1346 onlycriminalizes bribe and kickback schemes.

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White v. DirectorSC90400 s August 3, 2010

DWI and

Traffic Law Update

by Jeff Eastman s Gladstone, MO

“DWI and Traffic Law Update” >p15

Supreme Court reverses established precedent whichhad favored the Director’s evidence with a“presumption of validity.” The Court recognizes thatin a Section 302.535 proceeding the legislatureexpressly placed the burden of proof on the state toadduce evidence sufficient to sustain its burden. Theburden of proof is comprised of a party’s duty tointroduce enough evidence on an issue to have theissue decided by the fact-finder (proof) and a party’sduty to convince the fact-finder to view the facts in away that favors that party (persuasion). The Courtalso observes that the legislature expressly made therules of civil procedure applicable to theseproceedings.

The Court held in all court-tried cases the trier of factis free to believe or disbelieve all or any portion of awitnesses testimony; section 302.535 proceedingsare no different. A trial judge is free to disbelieve theDirector’s evidence and need not so expressly find inits judgment to be affirmed on appeal.

Henceforth, an appellate court will review de novo atrial court’s probable cause determination under anabuse of discretion standard and will give deferenceto the inferences the trial court may have made fromhistorical facts, including credibility determinations.

THIS CASE IS A MUST READ FOR THE DWIPRACTITIONER!

The Supreme Court holds that under the commercialdriver’s license act, a person is disqualified fromdriving a commercial motor vehicle for a period ofnot less than one year if “convicted” of a firstviolation. The act defines conviction as “anunvacated adjudication of guilt, including pleas ofguilt and nolo contendre, or a determination that aperson has violated or failed to comply with the lawin a court of original jurisdiction or an authorizedadministrative proceeding.”

A “conviction” which merits disqualification is“driving a motor vehicle under the influence ofalcohol.” Driving under the influence of alcohol is

statutorily defined to include “having any state,county or municipal alcohol-related enforcementcontact as defined in Section 302.525.” Alcohol-related enforcement contact includes any suspensionor revocation under Sections 302.500 to 302.540.Because the alcohol related license suspension ofdriver’s base privilege constituted a conviction ofdriving under the influence of alcohol as that term isdefined in the commercial driver license act, it was afirst violation which justified disqualification ofdriver’s commercial driver’s privilege for not lessthan one year.

Strup v. Director of Revenue

311 S.W.3d 793 (Mo. 2010)


DWI and Traffic Law Update (from page 14)


Snider v. Director of Revenue

SD 30072 s July 8, 2010

Driver was arrested for driving while intoxicated. Atthe jail she was advised of her rights pursuant toMissouri’s Implied Consent law. Driver requested tospeak to an attorney, was given a phone book andthen called her parents. Ten minutes after requestingto speak with an attorney, LEO again read Missouri’sImplied Consent law. When driver refused she wasdeemed to have refused.

The trial court found that driver had not abandonedher attempt to contact counsel when LEO deemedher to have refused.

The Southern District affirmed. The appellate courtfound that abandonment of an attempt to contactcounsel occurs where the person made all theattempts he or she wanted to make and reached adecision to refuse to submit before twenty minuteshas elapsed. It is the Director’s burden to show thatdriver abandoned her attempts to contact counselprior to the expiration of the twenty minute period.It is also the Director’s burden to show that driver didnot suffer actual prejudice as a result of being deniedher twenty minutes. In the present proceeding, theevidence was insufficient to overcome either of theaforementioned burdens.

Folkedahl v. Director of Revenue

307 S.W.3rd 238 (Mo. App. W.D. 2010)

LEO lists incorrect county as the county of arrest innotice of suspension under Section 302.500 as wellas in the alcohol influence report. Administrativehearing held in wrong county and decision adverse todriver rendered. Driver prosecutes appeal underSection 302.311 in proper county of arrest arguingthat privilege should be reinstated because directorcommitted procedural error by conducting anadministrative hearing in a county other than thecounty of arrest. Driver contended that due toDirector’s error, trial de novo was unavailable andthat trial court had jurisdiction to review and setaside sanction under 302.311. The trial court agreedand set aside sanction. Director appealed.

On review, the Western District holds that in achallenge under 302.311 to the director’s actions,driver bore the burden of proving facts that wouldauthorize the trial court to exercise its jurisdictionpursuant to Section 302.311. That is, driver had toestablish that a procedural defect caused by theDepartment rendered judicial review under 302.535unavailable.

Examples of procedural error include where theDirector failed to properly notify driver’s attorney ofthe hearing officer’s decision which caused thedriver’s petition for trial de novo to be untimely orwhere the Director wrongfully denied the driver’srequest for an administrative hearing.

In this proceeding, the Director’s error did notproduce the same result as the aforementionedprocedural defects. Driver was afforded anadministrative hearing in which he did not challengethe jurisdiction of the hearing examiner. Driver had aright to trial de novo and indeed filed the same aspart of his two count petition for relief. Thus, thestatutory prerequisites at both the administrativeand trial court level were met. The trial court actedwithout authority in reinstating driver’s privilege.

Wesley v. Director of Revenue

309 S.W.3rd 442 (Mo. App. S.D. 2010)

In this 302.505 proceeding, the Southern Districtaffirmed the trial court’s decision finding no probablecause. “As Guhr makes clear, the trial court is free todisbelieve even uncontradicted evidence andtestimony, and it is only where the facts areuncontested, and not where the evidence is notcontradicted, where no deference is due the trialcourt. Thus, even where the evidence is notcontradicted, unless the facts of the case are notcontested in any way, this [appellate] court mustgive deference to the trial court’s determination as towhether the evidence established reasonable causeto believe the individual whose license was revokedwas driving while intoxicated.”

The appellate court found that the facts in Wesleywere contested and that driver did not concede theDirector’s evidence. Instead, driver discreditedDirector’s evidence through cross examination of the




State v. Starnes

WD 69573 s June 15, 2010

After jury trial, defendant was found guilty of drivingwhile intoxicated. Prior to submission, the Stateintroduced conclusive evidence of defendant’s threeprior intoxication-related traffic offenses. The Statewas unsuccessful in its efforts to establish a fourth.Because the evidentiary hearing on the priors tookplace during the State’s case in chief, the trial courtruled that the State would be allowed further timeduring the course of the trial to rectify theevidentiary deficiencies. After the close of all theevidence and immediately prior to closingarguments, the trial court asked counsel whetherthere were any other issues that needed to bediscussed before the case was submitted. The Statereminded the Court of the issue pertaining to thepriors. The Court stated such was not a jury issueand allowed the case to be submitted.

After the jury’s finding, the Court held five hearingsall relating to the issue of the remaining prior. At theconclusion of the last hearing, the Court was “finallyand firmly convinced” as to the sufficiency of thisprior and thereafter sentenced defendant as achronic offender, a class B felony.

The Western District reviewed the tortured history ofthe State’s efforts and concluded the trial court erredin sentencing defendant as a chronic offender. TheCourt noted the specific language of Section 577.023which required that the facts establishing chronicoffender status be pleaded, established and foundprior to submission to the jury and outside of itshearing. Case was remanded for re-sentencing as anaggravated offender.

Director’s witnesses as well as presenting evidencewhich contradicted the Director’s.

Since the facts were contested, the appellate courtdeferred to the trial court’s determination of the factsbecause it was free to disbelieve any of the contestedevidence, even if it was uncontradicted. As the Courtobserved, simply stated, “the trier of fact has theright to disbelieve evidence, even when it is notcontradicted.”

State v. Carson

ED 91955 s May 25, 2010

Adopting a Turner type analysis, the Eastern Districtholds that the use of a prior municipal court bloodalcohol concentration conviction to enhancedefendant’s penalty for a present DWI was in error.

Moore v. State

ED 93295 s July 6, 2010

In a Rule 24.035 proceeding movant challenged,amongst other things, his conviction for felonydriving while revoked. Specifically, movant arguedthat the State failed to plead and prove that he wasrepresented by counsel or waived the right tocounsel in his prior driving while revoked convictionsand failed to prove that he had served ten days oneach such conviction. He contended that the Statewas required to plead and prove these facts in orderto charge and sentence him as a felon.

The Eastern District rejected each argument. Afterreviewing the legislative history of Section 302.321,the court found that the representation or waiver ofcounsel requirement was only applicable to county ormunicipal ordinance violations for driving whilesuspended or revoked. Such was not required ofstate law violations.

As to the ten day sentence requirement, the Courtfound that the 2005 amendment removed suchrequirement for defendants who had no prior alcoholrelated enforcement contacts. As this particulardefendant had no prior alcohol-related enforcementcontacts, the ten day sentence requirement wasinapplicable.

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State v. Severe

307 S.W.3d 640 (Mo. App. W.D. 2010)

In a follow up to Turner v. State, the MissouriSupreme Court holds that plain error review isavailable in a direct appeal where an offender allegesthat he was sentenced to a punishment greater thanthe maximum sentence for the offense. In Severe,the defendant was found guilty of the class D felonyof driving while intoxicated. While her case was onappeal, the Supreme Court decided Turner v. State.She then challenged use of a municipal finding ofguilt to DUI wherein she received a suspendedimposition of sentence.

The State argued that under controlling law at thetime of her trial, it presented sufficient evidence tosupport the Court’s finding that she was a persistentoffender and that both the Court and the State wereentitled to rely upon the then controlling law. TheSupreme Court held that Turner made no new law; itmerely clarified the language of the existing statute.The Court commented “though Sections577.023.1(3) and 577.023.16 may have beencontradictory, the State was on notice that, underSection 577.023.16, Severe’s guilty plea andsuspended imposition of sentence in municipal courtwas not to be treated as a prior conviction.Therefore, if the State had evidence of an additionalconviction that would have been treated as a priorconviction under the statute, the State should haveoffered it to the Court before the case was submittedto the jury.”

The Supreme Court also rejected the State’s requestthat the matter be remanded for additional evidence.The Court, again emphasizing the statutory schemefor sentencing, noted that the State had the burdenof proving up the priors before the case wassubmitted to the jury and it failed to do so. Givingthe State such a privilege would afford it “two bitesat the apple” when the statute allows only one bite.

Feldhaus v. State

311 S.W.3d 802 (Mo. 2010)

In a post conviction motion, movant alleged that hewas denied due process because Section 577.023which defined enhanced offender status violated the“void for vagueness doctrine.”

The Supreme Court first noted that movant did notraise the claim of void for vagueness argument untilhis motion for post conviction relief. As the issue wasnot raised at the earliest opportunity and prior tomovant’s plea of guilty, it was waived.

In dicta, the Court also rejected movant’sconstitutional challenge. Movant had argued that the“or more” language set forth in the enhancingprovisions of Section 577.023.1 encourageddiscriminatory or selective enforcement on anunjustifiable basis. The Court held that the statuteclearly defined a “chronic offender” and set forthspecific standards necessary for the application ofthe enhanced penalty sought by the State. Thewords “or more” were of common knowledge whichspoke for themselves and provided a person ofordinary intelligence with sufficient notice of theprohibited conduct and the enhanced penalty.

State v. Daws

SC 90444 s May 25, 2010

Defendant plead guilty to the charge of failing toyield to an emergency vehicle in violation of Section304.022. Thereafter, the State charged defendantwith the class D felony of resisting arrest in violationof Section 575.150. The circuit court dismissed thecharge of resisting arrest finding that the successiveprosecution of defendant violated his right to be freefrom double jeopardy. On appeal, the Supreme Courtreversed.

The Court held that the proper test for assessingwhether successive prosecutions violate doublejeopardy is the Blockburger test, also known as the“same-elements test.” This test asks “whether eachoffense contains an element not contained in the

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other:” If not, the double jeopardy clause bars asuccessive prosecution.

A comparison of the elements of the two crimescharged demonstrates that failure to yield is not alesser included offense of resisting arrest. The crimeof failure to yield is premised on the failure to yieldto the approach of an emergency vehicle utilizingaudible sirens and lights. The elements of the crimeof resisting arrest make no mention of emergencyvehicles, lights or sirens. Instead, the resisting arreststatute is premised on resistance to a lawful arrest orstop, whether that stop is executed on foot, from avehicle or in any manner whatsoever. Committingthe crime of resisting arrest does not necessarilymean that one also commits the crime of failure toyield. Hence, double jeopardy does not apply.

The Court expressly overrules the Western Districtdecision in State v. Clark, 263 S.W.3d. 666 (Mo.App.W.D. 2008).

State v. Reando

WD 70472 s June 29, 2010

Appellate court rejects defendant’s claim of jeopardythat his misdemeanor plea to failure to drive on theright half of the roadway charged under 302.015 wasa lesser-included offense of involuntarymanslaughter in the second degree.

In its analysis, the Court held that it was to considerthe statutory elements of the offense, not theevidence adduced at trial. The misdemeanor offensecontains elements - driving on a public roadway andfailing to remain on the right half of the roadway -which are not necessary elements of either seconddegree involuntary manslaughter or second degreeassault. The felony offenses require proof of death orserious physical injury while the misdemeanorviolation did not. Because the misdemeanor haselements the felony offenses lacked and vise versa,the double jeopardy clause did not bar defendant’sfelony prosecution.

State v. Dienstbach

ED 93837 s June 15, 2010

In this interlocutory appeal, the State challenged thetrial court’s judgment sustaining defendant’s motionto suppress. At issue was whether a Missouri StateHighway Patrol trooper had jurisdiction and authorityto make a traffic stop on a city street after observinga state traffic law violation.

The appellate court held that the trooper was actingwithin his jurisdiction when patrolling a city street.The trooper was empowered to investigate or arrestany individual he observed violating any law of thestate including state laws relating to the operation ofa motor vehicle. The Court expressly rejected thedefendant’s argument that jurisdiction was limited to“highways constructed and maintained by thecommission.” The Court found it unnecessary for thetrooper to seek permission or authorization from anylocal law enforcement officer before initiating a trafficstop on a city street. The trial court’s decisionreversed.

State v. Varnell

WD 70957 s June 6, 2010

In his sufficiency of evidence challenge to hisconviction for driving while intoxicated, defendantargued that the State failed to establish that he wasunder the influence at the time of driving.Specifically, he alleged that the State failed toestablish the exact time of his accident and the timehis blood was drawn.

In dealing with the issue of remoteness, the WesternDistrict reaffirmed that proof of intoxication at thetime of arrest, when remote from the time ofoperation, is insufficient in itself to prove intoxicationat the time of driving. Remoteness as used in drunkdriving cases has two dimensions, remoteness intime from operating a vehicle and remoteness indistance from the vehicle.

In the present proceeding, defendant was foundwithin the vehicle such that remoteness of distancewas not an issue. Hence, the Court focused onremoteness in time from operation.

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State v. Seeler

SC 90583 s July 16, 2010

Defendant charged with Involuntary Manslaughter, aclass B felony in violation of 565.024.1(3)(a) whichproscribes acting with criminal negligence to cause“the death of any person not a passenger in thevehicle operated by the defendant, including thedeath of an individual that results from thedefendant’s vehicle leaving a highway ... or thehighway’s right-of-way ...” In its indictment the statealleged that the defendant operated a motor vehiclewhile under the influence of alcohol causing thedeath of another by striking him with a motor vehiclewith criminal negligence in that defendant wasdriving in a closed construction zone, thereby leavingthe highway’s right-of-way.

Although the time periods when defendant consumedalcohol and actually crashed his vehicle were notspecifically determined, the Court found thecircumstantial evidence provided the “showing ofmore” than necessary to support the convictionbeyond a reasonable doubt because: 1) whenemergency personnel arrived at the scene driver wastrapped in his vehicle and required the assistance ofan emergency personnel to be extracted; 2)immediately after driver was extracted, lawenforcement searched the vehicle and found noevidence of alcohol; 3) driver admitted to drinkingprior to the accident; 4) the manner in which theaccident occurred was consistent with the court’sconclusion that driver was intoxicated at the time ofthe crash; 5) driver appeared inebriated at the sceneand smelled strongly of alcohol; 6) driver’s bloodalcohol content was almost three times the legallimit; 7) the accident occurred on a frequentlytraveled thoroughfare; and 8) driver was seriouslyinjured at the crash and his wounds were stillbleeding when law enforcement first arrived.

From such, the Court concluded the crash occurred inclose proximity to the time of the officer’s arrival andthus remoteness of time was not an issue.

The Court also observed that where the driver’sblood alcohol content was more than three times thelegal limit issues as to absorption and eliminationwere inapplicable.

At trial, defendant’s theory was that he never left thehighway or highway right-of-way when he drovethrough construction cones and struck and killed ahighway worker. At the close of the State’s case, hemoved for judgment of acquittal or dismissal. Inresponse and over defendant’s objection, the Statesought and received leave to file a substituteinformation charging that defendant was criminallynegligent in that he “drove in a lane closed to traffic.”Defendant was eventually convicted and appealed.

In 4-3 opinion the Missouri Supreme Court held thatwhen the state was allowed to amend at the close ofits case-in-chief, the defendant was prejudicedbecause the defenses he had prepared for trial -which were relevant to the original charge specifiedin the indictment - were no longer relevant. The highcourt observed, the state must specify, and the jurymust find, the particular facts that lead to theconclusion that a defendant was criminally negligent.In the instant proceeding the state belatedlychanged its factual predicate for the criminalnegligence allegation to the defendant’s prejudice.

The dissent argued that the defense was a technicaldefense not amounting to prejudice because whetherdefendant was or was not on the highway or highwayright-of-way was not an element of the offense.Since the state need only show that defendant causethe death of a person not a passenger in the vehiclehe operated, a change in location where the deathoccurred could not occasion prejudice.

November 2, 2010

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