Missouri Criminal Law Update - mopoa.org

Missouri Criminal Law UpdateChris Koster, Attorney General

SEPTEMBER caSE law uPdaTE...

This month we focus on two federal cases and one Missouri case. In the first case, the Eighth Circuit considered whether a rental car company could give consent to search an “overdue” rental car. In the second case, the Eighth Circuit considered a defense witness’s attempt to invoke his Fifth Amendment rights on cross examination. Finally, the Missouri Court of Appeals, Eastern District, took another look at whether the Confrontation Clause permits a lab supervisor to testify about lab results obtained by a non-testifying technician.

Chris KosterAttorney General

November 2013 | Missouri Criminal Law Update 1

NovEMBER caSE law uPdaTE...

This month, we have five cases from the Missouri Court of Appeals — one from the Eastern District, two from the Southern District, and two from the Western District. The first case considers the State’s obligation to disclose record-ings of a defendant’s phone calls while incarcerated. The second concerns what pre-trial rulings the State may appeal. The third case involves the right of the public to observe voir dire. The fourth case dis-cusses what evidence about cell phone use requires an expert witness. The last case examines the burden of proof and stan-dard of proof on a motion to dismiss a driving while intoxicated charge when the BAC is below 0.08%.

Chris KosterAttorney General

State of MiSSouri v. Dale Gene CroSS, MiSSouri Court of appealS, Southern DiStriCt, Case No. sD 31974 (september 27, 2013)

KEy FacTS – Cross was detained in the county jail awaiting trial for murder, arson, and armed criminal action. Cross wrote a letter to the prosecutor asserting that “Jimmy” would provide an alibi for Cross. The prosecutor had an investigator listen to recordings of phone calls from the jail to see if Cross was trying to get any witnesses to change their testimony, but none of Cross’s phone calls contained relevant information. The State did not use any of the phone calls at trial. After the trial, defense counsel learned about the phone calls and claimed that the State violated the discovery rules by not providing a copy of the phone calls before trial.

HoldiNg – Without reaching the issue of whether the State must disclose the contents of recorded phone calls, the Southern District found that there was no prejudice as the State did not use the phone calls and nothing in them would have altered Cross’s defense in this case. Moreover, Cross had notice that he might be recorded because an automated message at the beginning of every jailhouse call warns offenders that their phone calls may be recorded.

cauTioNaRy NoTE – Many jails now have a system that automatically preserves phone calls made by inmates. Technically, Rule 25.03(A)(2) requires the disclosure of all recorded statements by the defendant, and Rule 25.03(A)(1) requires the disclosure of all recorded statements by a witness. It is likely that more defense attorneys (and post-conviction attorneys) will begin to assert claims based on the failure to disclose phone calls that are automatically recorded. Prosecutors should consider including a line in their discovery responses noting the existence of such recordings and setting up a mechanism to allow defense counsel to review those recordings on request.

State of MiSSouri v. Keith lilly, MiSSouri Court of appealS, WeStern DiStriCt, Case Number WD 76349 (oCtober 1, 2013)

KEy FacTS: Lilly filed a “motion to suppress” asserting that his statement to police was not admissible due to a violation of his miranda rights and the lack of a corpus delecti. The trial court

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Missouri Criminal Law UpdateChris Koster, Attorney General

2 November 2013 | Missouri Criminal Law Update

failed to carry his burden of proving that the public was excluded from his trial.

cauTioNaRy NoTE – As discussed by the Southern District, the United States Supreme Court recognized in 2010 that, except in very limited circumstances, the public has a right to be present during voir dire and that the exclusion of the public is structural error. In working with the court on jury selection procedures, prosecutors should ensure that there is some seating left open for people who want to watch the trial.

State v. Melvin patton, MiSSouri Court of appealS, eaStern DiStriCt, Case Number eD980451 (oCtober 8, 2013)

KEy FacTS – The State charged Patton with multiple offenses including two counts of murder in the first degree. The State introduced evidence of the cell towers used by Patton’s cell phone near the time of the offenses to show that Patton was near the crime scene at that time. The evidence included a map showing the cell tower locations and lay testimony that the phone would probably have used the nearest cell tower to its location.

HoldiNg – The evidence showing the location of cell towers on a map did not involve scientific testimony requiring a Frye hearing. However, the conclusion that Patton’s cell phone would have used the nearest cell tower is outside the scope of a lay witness’s expertise (as there are other factors involved) and requires expert testimony.

cauTioNaRy NoTE – This case recognizes that some aspects of cell phone operation are sufficiently common knowledge to allow conclusions to be drawn from phone records. However, other aspects still involve precise technical questions that require expert testimony to interpret those records. If you are using cell phone records to establish a broad location (e.g. a defendant was within a mile or two of the crime scene), then expert testimony is probably not required. If you are trying to establish a more exact location, expert testimony probably is required.

granted the motion based on the lack of a corpus delecti. The State then appealed.

HoldiNg – The State’s right to appeal is limited to orders suppressing evidence on the ground that it was illegally obtained. As the motion to suppress was granted on a different ground, the State does not have the right to appeal.

cauTioNaRy NoTE – There is a distinction between a proper motion to suppress (asserting that evidence should not be admitted because it was illegally obtained) and a motion in limine (asserting that the evidence is inadmissible for other reasons). Even if the defense mislabels its motion, the Court of Appeals will look at the substance of the motion. If the motion to suppress is really a motion in limine, the proper mechanism for challenging the ruling is by writ, not by appeal.

State of MiSSouri v. eDDie Salazar, MiSSouri Court of appealS, Southern DiStriCt, Case Number sD32032 (oCtober 2, 2013)

KEy FacTS – Before trial, Salazar objected to the trial court’s plan to use large panels during voir dire that would fill all available seats in the courtroom as violating his right to a public trial (specifically noting that it would make it impossible for Salazar’s family to observe jury selection). The trial court went ahead with its plan, and no evidence was introduced at any time that any person was excluded from the courtroom during voir dire.

HoldiNg – While there is a constitutional right to a public trial that extends to voir dire, a defendant has to prove that the right was actually violated. In the absence of evidence that members of the public (including members of a defendant’s family) were excluded, there is no violation of the right to a public trial. Thus, while the trial court failed to justify its refusal to alter the size of the voir dire panels to leave seats available for potential observers, defendant

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State of MiSSouri v. Keith lilly, MiSSouri Court of appealS, WeStern DiStriCt, Case Number WD 76349 (oCtober 1, 2013)

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Missouri Criminal Law UpdateChris Koster, Attorney General

for additional information on these cases please contact Sue Boresi, Chief Counsel, public Safety Division at 573-751-4418; Shaun Mackelprang, Chief Counsel, Criminal Division at 573-751-0272;

or terrence Messonnier, assistant attorney General, public Safety at 816-889-5031.

3 November 2013 | Missouri Criminal Law Update

State of MiSSouri v. anthony MiGnone, MiSSouri Court of appealS, WeStern DiStriCt, Case No. WD75654 (oCtober 22, 2013)

KEy FacTS – A Highway Patrol Officer arrested Mignone for driving while intoxicated. About 90 minutes after his arrest, Mignone gave a breath sample that showed a BAC of 0.075. An hour later, Mignone gave a second breath sample that showed a BAC of 0.051.

After the State filed a charge of driving while intoxicated, Mignone filed a motion to dismiss under Section 577.037. At the hearing on that motion, the State presented the evidence as to the timing of the tests and also the physical observations of the Trooper supporting his conclusion that Mignone was under the influence of alcohol.

HoldiNg – Section 577.037 creates a presumption that a DWI charge should be dismissed if tests show a BAC under 0.08. Because that section permits a pre-trial motion, it implies that there should be an evidentiary hearing on such a motion. Furthermore, in light of the presumption, it is not enough for the State to demonstrate that, notwithstanding the low BAC, it still has a submissible case that the defendant is intoxicated. Instead, the trial court is permitted to weigh the credibility of the State’s evidence and to determine what inferences are appropriate in determining if there is “substantial” credible evidence to overcome the presumption.

cauTioNaRy NoTE – This case appears to be one of first impression even though this provision was first adopted in 1983. Previous cases have dealt with post-trial challenges to conviction at which the normal test for sufficiency of the evidence was applied. This case suggests that the trial court can dismiss a DWI case with a low BAC even if the evidence is technically sufficient to go to a jury with the State having the burden of persuading the trial judge that the evidence is sufficiently credible and compelling to warrant a trial.