Joplin MO Criminal Defense Lawyer Blog

Move to Mid-Missouri

These past few months have been interesting for me and my children.   We have moved to the mid-Missouri area that includes the beautiful Lake of the Ozarks.  This area includes Camdenton, Eldon,  Laurie, Lake Ozark, Osage Beach and Versailles.  For my children it means a new school and new friends.  Thankfully they have adjusted well and have made new friends.  For me, it means giving up my solo practice and joining a small firm that has five other attorneys.  I joined Curran & Sickal the first of the year and have been busy ever since.  Although the firm is a general practice firm and includes criminal law, I will, for the most part,  be getting out of the criminal law area and moving more into business and real estate.  Other attorneys in the office will be doing criminal law.  However, I still plan on keeping abreast of the law and changes that occur  and will continue posting on the blog.   After almost 18 years of practicing in criminal law, I can't see myself giving it up totally.  It was my first love in the area of law.   We are in the process of moving my blogs to a new site under the Curran & Sickal name and I will post the new sites here when completed. 

To those of you who have been patient with my not posting due to the changes taking place in my personal life, thank you.  I hope you will continue to find this blog helpful. 

Blawg Review #117

Jamie Spencer of the Austin Criminal Defense Lawyer has posted a blog review on his website.  This week he has focused on the Bill of Rights as well as other criminal issues.  To read about the review go to Blawg Review #117.

Case Review - Sentencing Guidelines & Double Jeopardy

In State v. Edwards the defendant was originally charged with first degree murder and armed criminal action. The jury found the defendant guilty of second degree murder and armed criminal action and sentenced him to 25 years on the murder charge and 5 years on the armed criminal action.  On appeal the appellate court upheld  the convictions but reversed the sentences because the trial court refused to allow the defendant to testify during the penalty-phase.  During the second penalty-phase the jury was unable to reach an unanimous decision and the trial court sentenced the defendant to concurrent sentences of 25 years on the murder charge and 5 years on the armed criminal action charge.  The defendant appealed on three grounds - failure of the trial court to allow the sentencing guidelines to be introduced as evidence; refusing his jury instruction; and a double jeopardy claim.

During the second penalty-phase the defendant attempted to introduce evidence through a parole officer's testimony of what the recommendation would be under  the Missouri Sentencing Advisory Commission's sentencing guidelines.  These guidelines would have recommended that the defendant be sentenced to 10 years or under the aggravated sentence to 15 years.  The trial court refused to allow the evidence in but did let the defendant give an offer of proof on the sentencing guidelines presumed sentence.  After the offer of proof the State objected to the offer and the trial court sustained the objection. 

On appeal the defendant stated the trial court erred in not allowing this evidence in before the jury because if the jury had heard the testimony it would have reached an unanimous verdict and would have assessed a sentence less than that which he received from the trial court, and that the jury was entitled to rely on the same resources as that of the trial court judge.    The appellate court disagreed with this and stated that allowing the jury to rely on the sentencing guidelines alone would create a risk that it would place too much emphasis on the guidelines and not treat them as the recommendations that they are; that the guidelines are only guidelines or recommendations which the trial court is not mandated to follow; the trial court is only mandated to stay within the statutory range of punishment for the crime convicted; and that the guidelines do not account for the history and character of the defendant  nor the circumstances of the crime.  Further, the appellate court ruled that the sentencing guidelines are beyond the scope of permissible evidence allowed under section 557.036, RSMo Cum.Supp. 2006, in the penalty-phase of a jury trial.

The defendant also alleged that by refusing to allow his instruction which limited the range of punishment the jury could consider violated the Double Jeopardy Clause.  The range of punishment for second degree murder is 10 to 30 years or life imprisonment.  The defendant sought to limit the range of punishment to 25 years, the number of years the first jury had recommended.   This was the instruction that he submitted and which was refused by the trial court.  Without going into the reasoning here, the appellate court found against the defendant on the jury instruction issue. 

The Double Jeopardy Clause forbids a retrial of a defendant who has been acquitted of a crime charged.  On this  issue the defendant contended that by allowing the second  jury to consider the full range of punishment during the penalty-phase was a violation of the Clause because the first jury had acquitted him of any conduct mandating a higher sentence than that of 25 years.  The appellate court rejected this argument and stated that the Double Jeopardy Clause is inapplicable to non-capital cases because the jury in a non-capital case does not have the requirement to make findings of fact beyond a reasonable doubt and, thus, the Clause is not implicated.

The judgment of the trial court was affirmed.

Source:  State v. Edwards, ED83320, 07/10/2007.

Case Law Update - Commercial Drivers' License

Recently the Eastern District of the Missouri Court of Appeals decided that sections 302.700 through 302.755, RSMo, do not violate the Missouri Constitution's prohibition on retrospective application of a law.  In Pearson v. Director of Revenue, Pearson, who held a commercial drivers' license, was convicted in Illinois in 2002 of driving while his license was suspended or revoked. He was driving a commercial vehicle at the time.   In December of 2005 Pearson received a notice from the Missouri Department of Revenue notifying him that because of his 2002 conviction of driving while license suspended or revoked, he would have his commercial license suspended for 1 year.  Pearson filed a petition for review and the trial court reinstated his license because sections 302.700 through 302.755 did not go into effect until September 30, 2005 and was not a disqualifying event at the time the conviction arose.  The Director of Revenue appealed the trial court's decision.

Article I, Section 13 of the Missouri Constitution prohibits the enactment of any law that is retrospective in its operation.  Laws that create a new obligation, imposes a new duty, or attaches a new disability with respect to transactions or considerations already past are retrospective in operation.  Because a drivers' license is not a vested right but a privilege, the statutes do not take away a vested right.

The Eastern District reversed and remanded the trial court's decision to reinstate Pearson's license.  It found the the sections applicable in Pearson's case, did not create any new duties on Pearson, only used his past conduct to determine future decision-making by the Department of Revenue.

This is another example of how your past conduct can come up to haunt you in your future. 

Source:  Pearson v. Director of Revenue, ED88625, 07/10/2007.

Recommendation - Missouri Criminal Defense Lawyer

I wanted to pass along a criminal law blog that I find very informative.   The Missouri Criminal Defense Lawyer blog is written by a friend of mine, Randy England.  I have known Randy for almost 20 years.  Randy, like many criminal defense attorneys, is a former assistant prosecuting attorney.  Randy was in Audrain County (Mexico area) and then later in Cole County (Jefferson City area).  Take a look at his site.   I'm sure you'll find useful information on it. 

'Castle Doctrine' Signed by Gov. Blunt

On July 2, 2007, Governor Matt Blunt signed the "Castle Doctrine" bill (SB62) in Joplin, Missouri. I have previously posted about this bill. It is designed to prevent criminal charges or lawsuits from being filed against those persons who use justifiable force to defend themselves or their property at their home or in their vehicle. Please note, the force has to be justifiable. There are some explanations in the bill that define the situation where deadly force is permissible. However, there will probably be many court cases in the future that will interpret whether deadly force is justifiable. I would interpret this to mean that you can only use as much force as necessary to protect yourself and your property. Does this mean that you can fatally shoot someone for attempting to steal a lawn ornament? I don't think so. Does it mean that you can fatally shoot someone that is attempting to kill you? I think that would be justifiable. Does it mean that you can fatally shoot someone that is attempting to do physical harm such as a rape to you or another family member? If it is a forcible felony, it appears to be included.

There will also be questions on what you should attempt to do before fatally wounding a person (deadly force). If a person is attempting to come through your home's window in the middle of the night, are you to warn this person that you have a gun and will shoot if he/she comes any further? Do you shoot first and ask questions later? Do you use something handy and club the person on the head as it comes through the window and attempt to knock the person unconscious? What happens if you hit the person so hard that the head injury is fatal? Is that justifiable?

There are also questions about whether this bill will apply to defending yourself and property in your business. When asked this question Governor Blunt and the bill's sponsors didn't know. Your business doesn't appear to be included in the bill but don't you think that at least Governor Blunt would want that question answered before he signed the bill into law? There are many questions that need to be answered.

I think the intent of this law is great. A person should be able to defend himself/herself in their home and in their vehicle. However, I would suggest caution to all until some of the mechanisms of this law have been resolved. You do not want to be the test case for what is reasonable force or justifiable or if you can use it at your business.

I am including the relevant portions of the bill below that was taken off the Senate website. The words in bold brackets are being omitted. Those in bold without brackets are additions.

"563.011. As used in this chapter the following terms shall mean:

(1) "Deadly force" [means], physical force which the actor uses with the purpose of causing or which he or she knows to create a substantial risk of causing death or serious physical injury[.];

(2) "Dwelling" [means], any building [or], inhabitable structure, [though movable or temporary, or a portion thereof, which is for the time being the actor's home or place of lodging.] or conveyance of any kind, whether the building, inhabitable structure, or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night;

(3) "Forcible felony", any felony involving the use or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping, assault, and any forcible sexual offense;

[ (3)] (4) "Premises", includes any building, inhabitable structure and any real property[.];

[ (4)] (5) "Private person" [means], any person other than a law enforcement officer;

(6) "Remain after unlawfully entering", to remain in or upon premises after unlawfully entering as defined in this section;

(7) "Residence", a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest;

(8) "Unlawfully enter", a person unlawfully enters in or upon premises when he or she enters such premises and is not licensed or privileged to do so. A person who, regardless of his or her purpose, enters in or upon premises that are at the time open to the public does so with license unless he or she defies a lawful order not to enter, personally communicated to him or her by the owner of such premises or by another authorized person. A license to enter in a building that is only partly open to the public is not a license to enter in that part of the building that is not open to the public.

563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he or she reasonably believes such force to be necessary to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful force by such other person, unless:

(1) The actor was the initial aggressor; except that in such case his or her use of force is nevertheless justifiable provided:

(a) He or she has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or

(b) He or she is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or

(c) The aggressor is justified under some other provision of this chapter or other provision of law;

(2) Under the circumstances as the actor reasonably believes them to be, the person whom he or she seeks to protect would not be justified in using such protective force;

(3) The actor was attempting to commit, committing, or escaping after the commission of a forcible felony.

2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless:

(1) He or she reasonably believes that such deadly force is necessary to protect himself or herself or another against death, serious physical injury, [ rape, sodomy or kidnapping or serious physical injury through robbery, burglary or arson] or any forcible felony; or

(2) Such force is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a dwelling, residence, or vehicle lawfully occupied by such person.

3. A person does not have a duty to retreat from a dwelling, residence, or vehicle where the person is not unlawfully entering or unlawfully remaining.

[ 3.] 4. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

[ 4.] 5. The defendant shall have the burden of injecting the issue of justification under this section.

563.041. 1. A person may, subject to the limitations of subsection 2, use physical force upon another person when and to the extent that he or she reasonably believes it necessary to prevent what he or she reasonably believes to be the commission or attempted commission by such person of stealing, property damage or tampering in any degree.

2. A person may use deadly force under circumstances described in subsection 1 only when such use of deadly force is authorized under other sections of this chapter.

3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.

4. The defendant shall have the burden of injecting the issue of justification under this section.

563.074. 1. Notwithstanding the provisions of section 563.016, a person who uses force as described in sections 563.031, 563.041, 563.046, 563.051, 563.056, and 563.061 is justified in using such force and such fact shall be an absolute defense to criminal prosecution or civil liability.

2. The court shall award attorney's fees, court costs, and all reasonable expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant has an absolute defense as provided in subsection 1 of this section."

Source: The Joplin Globe, July 3, 2007 and the Missouri Senate Bill 62

Follow-up - Megan's Law (Message for Tsand too)

I have received several comments on my posting about Megan's Law and the fact that I choose not to represent defendant's accused of abusing children.    Some comments have supported my decision but others chastise me for "assuming the defendant is automatically guilty."  I want to clear this up.  I do not automatically assume a defendant is guilty if he or she is charged with abusing a child.  I know there are circumstances when allegations are made that are not true.  This particularly happens when the defendant is involved in a custody case and the other party makes allegations that may or may not be true.  I have problems with a party making these allegations only when a custody battle starts to brew - where was the other party when the abuse was occurring?  But that is another matter. 

As I was stating, I do not automatically assume a defendant is guilty.  I just do not want to represent them for my own reasons and, being in private practice, I can do that.  In the past I have defended persons charged with child abuse.  I was at one time an appellate public defender.  I have represented defendants that were guilty - where a very young child was suffocated enough to leave her alive but in a vegetative state; some children suffered severe brain damage or physical deformities; etc.  These cases take a toll on you after a while.   

Also, just because I choose not to represent these defendants does not mean they will not have the benefit of a good lawyer.  There are many criminal defense lawyers that will represent defendants no matter what the charge is. Each defendant, no matter what the charge is, deserves to have a lawyer that will aggressively represent him or her and to not pass judgment.  On child abuse charges I am not sure I can do that any more and, therefore, I have taken myself out of that defense.  I do not want to question whether I did the best job I could for the defendant and I definitely do not want the defendant to feel that I did not do my best.   This explanation may not satisfy some of the people who have sent negative comments to me and that is okay.  I can live with my decision.

Message for Tsand - I understand you're feelings about what happened to your friend Paul.  I do not necessarily agree with charges being brought under the circumstances you have described (yes, I was a former assistant prosecuting attorney at one time).  I also think that if your friend was charged then something should have happened to the girl also.    Be that as it may, if your friend has to register under Megan's Law he may want to check to see if he can have his name removed from the registry at some point.  In Missouri if a defendant is 19 years of age or younger and the victim was 13 years of age or older at the time the offense was committed, after two years the defendant can petition the court to be removed from the registration requirements.  If what you stated is accurate, I find it hard to believe a court would deny his petition.  Good luck to him. 

Missouri's Sex Offender Registration Act (Megan's Law)

I'm a criminal defense attorney.  However, there are some cases that I choose not to take.  One type of case I will not take is child abuse - whether physical or sexual.  To me, there is no excuse for abusing a child.  I will defend a person accused of murder, drugs, etc., but not abusing a child.  I know that everyone deserves to be represented by an attorney.  I support that but I also know that I will not be that attorney.  Why?  Because the defendant deserves the best representation he or she can receive.  I am not that attorney because of my feelings on the subject.   

With that stated, I want to get to the subject of this post - Missouri's Sex Offender Registration Act (SORA), also known as Megan's Law.    This is the law that requires certain sexual offenders to register with the chief law enforcement official (usually the sheriff)  in the county where the offender resides. These offenders include any person who has been convicted or pled guilty to a felony offense under chapter 566, including sexual trafficking of a child and sexual trafficking of a child under 12, and any offense under chapter 566 where the victim was a minor.  The offender has to fill out a form that has been designed by the Missouri State Highway Patrol.  This information is then sent by the chief law enforcement official to the Missouri State Highway Patrol where the information is put into the Missouri Uniform Law Enforcement System  (MULES) to be viewed by other law enforcement officials and prosecuting attorneys.   Some of this information is also posted online and made available to the general public.  The public can look to see whether a certain individual may be a sex offender or if there are sex offenders living in a certain area.  I admit, I have looked to see whether there are sex offenders living near my residence.  Thankfully I found none.

In most circumstances the sex offender must register for his or her lifetime.  However, under the statute (section 589.400) there are certain offenses  that allow for the offender to petition the court for removal from the registration requirements.  These include those who were convicted of promoting prostitution in the 2nd and 3rd degree, public display of explicit sexual material, statutory rape in the 2nd degree, and no physical force or threat of physical force was used.  Those convicted of these offenses may petition the court after 10 years to be removed from the registration requirements.  Also, those who were 19 years of age or younger and the victim was 13 years of age or older may petition the court after 2 years.  All who petition the court have to prove  that they fall into one of the categories that allow the petition, that they have complied with the provisions of the statute, and they are not a current or potential threat to public safety.  If the offender cannot prove these elements, the offender is not entitled to the removal.  And, even if the offender does prove these elements, the court does not have to grant the removal.  If the court denies the removal, the offender must wait for twelve months before petitioning the court again.

Why is this on my mind?    I have recently had to do research on this matter in order to keep an offender from being removed from the registration requirement.   The removal from the registration requirement is a civil matter and  I was hired to defend the registration.   This offender pled guilty to the class D felony of sexual abuse with a child, his child,  who was 6 years old at the time.  I do not want this man released from the requirement to register for the remainder of his life.  At this time the court hasn't made a ruling.  I will keep you posted.

Order of Protection - Stalking

Most cases involving orders of protection involve female vs. male or female vs. female.  You do not see too many involving just males.  Recently the Missouri Court of Appeals, Southern District, had an opportunity to review a case wherein a male sought and was granted a full order of protection under the Adult Abuse Act (sections 455.005 - .090, RSMo) against another male.  In his petition, the plaintiff alleged that the defendant had harassed and stalked him by forcing his vehicle to stop in August 2005 and threatening violence  and to kill him.  The trial court granted plaintiff an ex parte order of protection against the defendant based upon the allegations in the petition.  During the bench trial the plaintiff admitted that he was not a family member of the defendant, that he and the defendant had never resided together, that the threats against had occurred in August 2005 and again in October 2005.  Based upon this testimony the trial court permitted the plaintiff to amend his petition to include the October 2005 incident and it issued a full order of protection against the defendant.  The defendant appealed on three grounds - 1) the petition failed to state a cause of action; 2) the court erred when it allowed the petition to be amended; and 3) the judgment was not supported by the evidence.  The Court found that the first two grounds were moot but due to the repercussions of having a full order of protection on the defendant's record, the appellate court decided to hear this appeal on its merits on the third ground even though the order had expired.

Due to the plaintiff not being a family member of defendant nor having resided with the defendant, the plaintiff was only entitled to an order of protection for stalking.  Stalking is defined to occur when:

[A]n adult purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person's situation to have been alarmed by the conduct. As used in this subdivision:

(a) "Course of conduct" means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact;

(b) "Repeated" means two or more incidents evidencing a continuity of purpose; and

(c) "Alarm" means to cause fear of danger of physical harm.

Section 455.010(10). The plaintiff had to prove his case by a preponderance of the evidence.  The defendant contended that  the plaintiff failed to do this because there was no evidence that the defendant had engaged in conduct that caused alarm to the plaintiff.  The Court agreed.  The plaintiff had to prove that the defendant:  (1) purposely and repeatedly; (2) engaged in an unwanted course of conduct; (3) that caused alarm to plaintiff; (4) when it was reasonable in the plaintiff's situation to have been alarmed by the conduct. Section 455.010(10).   The Court went on to state:

As defined by this subsection of the Act, a "course of conduct" must be composed of repeated acts over a period of time that serves no legitimate purpose. Section 455.010(10)(a). "Repeated" is further defined to require two or more incidents demonstrating a continuity of purpose. Section 455.010(10)(b). Alarm requires proof that the petitioner was placed in "fear of danger of physical harm." Section 455.010(10)(c). The evidence in the case at bar was deficient in two respects.
First, proof of stalking involves both a subjective and an objective component. Thus, it was essential for Glover to present substantial evidence that: (1) Michaud's threats caused Glover to subjectively fear physical harm; and (2) a reasonable person under the same circumstances would have feared physical harm. Section 455.010(10); Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. 2007). At no point in Glover's testimony did he ever testify that he was afraid of Michaud or feared being physically harmed by him. Neither was there a sufficient factual development of the evidence to permit the trial court to reasonably determine whether an objective person in the same circumstances would have felt that way. In short, proof that Michaud threatened Glover during the course of an argument on August 21, 2005 does not, ipso facto, constitute proof that Glover took the threat seriously or that a reasonable person would have done so.
Second, there was insufficient proof that Michaud engaged in the requisite "course of conduct" that is an essential element of stalking as defined by Section 455.010(10). Glover testified, albeit in a most cursory and unsatisfactory fashion, about one incident that took place on August 21, 2005. Later, he testified that Michaud also "blocked the road" and "restrained" Glover on October 20, 2005. In the absence of any factual explanation of what actually occurred on the latter date, however, Glover's naked conclusions did not constitute substantial evidence from which the trial court could draw any reasonable inferences. See Hutchings v. Roling, 151 S.W.3d 85, 89 (Mo. App. 2004) (when devoid of any factual support, a lay witness' conclusions do not rise to the level of substantial and competent evidence). For example, the court was not presented with any facts from which it could determine whether Michaud's conduct on that occasion served a legitimate purpose or would have alarmed a reasonable person. The only facts concerning the events of that day came from Michaud, who testified that Glover's complaint involved nothing more than the ordinary act of slowing down on a highway in order to make a turn. Thus, the evidentiary support for the judgment falls short for this reason as well.
Based on our review of the record before the trial court, we conclude that insufficient evidence was presented to support the entry of a full order of protection against Michaud. This holding prompts us to repeat the following cautionary note from Wallace v. Van Pelt, 969 S.W.2d 380 (Mo. App. 1998):

The potential for abuse of the stalking provision of the Adult Abuse Act is great. And, the harm that can result is both real and significant, not the least of which will be the stigma that attaches by virtue of a person having been found to be a stalker. Moreover, such a finding could lead to criminal prosecution for violation of the criminal stalking statute, Section 565.225. Thus, it is incumbent that the trial courts exercise great vigilance to prevent abuse of the stalking provisions in the Adult Abuse Act and in making sure that sufficient credible evidence exists to support all elements of the statute before entering a protective order.

James B. Glover v. Wiatt Michaud, SD27565, Missouri Court of Appeals, Southern District, May 24, 2007

Escape - No Appeal

On May 22, 2007, the Eastern District of the Missouri Court of Appeals, decided the case of State of Missouri v. Darren K. Vaughn.  In this case the defendant was charged with two counts of first degree robbery and two counts of armed criminal action.  On the third day of his trial the defendant failed to appear.  After questioning the attorneys the court proceeded with the trial and the jury returned a verdict of guilty on all counts.  Four months later the defendant was recaptured and sentenced to 9 years on each count of armed criminal action and 20 years on each count of robbery.  His attorney had filed a motion for a new trial and the court denied it. 

The defendant appealed  his conviction and sentence.  His two points on appeal were that the court erred in denying his request for a mistrial when the prosecuting attorney asked him about a similar robbery in Mississippi during cross-examination and in denying his request for a mistrial and in proceeding with the case because the court did not establish that his absence was willful or voluntary.

The Court of Appeals restated the law as it pertains to the escape rule  - it operates to deny a defendant the right of appeal who escapes justice; it applies to errors that occur prior and up to the time of the escape but it does not apply to errors that occur after recapture.  The Court stated that the relevant inquiry is whether the escape adversely affected the criminal justice system and, if so, dismissal of the appeal is appropriate.

In this particular case, since the sentencing and the ruling on the motion for a new trial was delayed by the defendant's four month absence, dismissal of the appeal was determined to be appropriate because the delay adversely affected the criminal justice system.  None of the errors alleged occurred after the defendant's recapture.

Missouri's Executions

Missouri uses lethal injections during its executions.  An inmate has filed suit against the state claiming that the lethal injection process is unconstitutionally cruel.  Some of the problems alleged by the inmate and his attorney include the mechanism to deliver the lethal drugs, the Department of Correction's failure to perform the procedure consistently and its "disregard" for safety.  Earlier an order issued by U.S. District Judge Fernando Gaitan Jr. ordered Missouri to reform its lethal injection procedures, including the use of a doctor specializing in anesthesia.  Part of the problem with the executions and a part of the court case is that  Missouri has been using Dr. Alan Doerhoff for the lethal injections.  Dr. Doerhoff is allegedly dyslexic (he denies but says he sometimes transposes long numbers), a surgeon, and testified that he occasionally altered the amount of anesthetic given to the inmates during the executions.  He also has allegedly been sued for malpractice more than 20 times.

During oral arguments in January 2007 Missouri had not ruled out using Dr. Doerhoff for future executions.  Now the Attorney General for Missouri has notified the Court that the Department of Corrections has notified his office that it will no longer use Dr. Doerhoff for the executions. No explanation for this departure was given but a spokesman for the Department of Corrections stated that Dr. Doerhoff "can provide competent service." The letter by the Attorney General did not appease the inmate's attorney and a letter was filed in response  stating that the removal of Dr. Doerhoff "does not cure the systemic problems afflicting Missouri's lethal injection procedure;" and that "In the absence of any explanation of why (Doerhoff) is departing now, it would appear that the DOC simply hopes to lull the Court into thinking that is problems are now in the past."

The PLoS Medicine online journal has published a report that found that the drugs used to execute United State's prisoners sometimes fail to work as planned which causes slow and painful deaths that probably do violate constitutional bans on cruel and unusual punishment.  The report was based on a new medical review of dozens of executions.   

It should also be noted that the Missouri House has passed legislation that  will make it illegal for anyone, including newspapers and other publications, to knowingly disclose the identity of the members of the team that carries out the executions (such as Dr. Doerhoff, whose identity was kept secret for years).  The legislation still has to pass the Senate.

It will be interesting to see how this case ends and what Missouri will do with future executions.

Source:  Jefferson City News Tribune - State:  Missouri surgeon won't be used in future executions by Cheryl Wittenauer

Women Committing White-Collar Crimes

In the April.May 2007 edition of Pink magazine there is an article that addresses the progression of women committing more crimes as they move up in the workplace.    The FBI reports that embezzlement by women increased 80.5 percent from 1993 to 2002 and that the total number of women incarcerated increased 138 percent from 1994 to 2004.  This seems surprising to some people because of the belief that women are more ethical than men.  However, women may not be more ethical than men.  A study conducted by Rita Simon, Ph.D., professor at American University's School of Public Affairs and College of Law in Washington, D.C., studied women and crime and argued that as women move up in the workplace their likelihood to embezzle or commit fraud increases.  Women are not more ethical than men, they just didn't have the same opportunities in the past to commit these types of crimes as men were the ones in charge.

In 1995 women in corporate officer positions at the top 500 American companies was about 8.7 percent.  This increased to 16.4 percent in 2005.  In 2005 women accounted for approximately 45 percent of arrests for forgery and counterfeiting, fraud and embezzlement.   These crimes are costly.  According to the Association of Certified Fraud Examiners:

In 2002, fraud cost corporations 6 percent of their total revenue, or $600 billion.

Executives are 16 times more likely than employees to commit fraud.

About 42 percent of corporate victims recover nothing.  About 23 percent recover less than one quarter of their losses.

Small companies endure disproportionate losses from embezzlement.

Some of the more well-known names of women who have committed crimes and have been held accountable or charges are pending include: 

• Rebecca Hauck -former executive assistant who scammed an estimated $15 million from unwary homeowners with her co-conspirator Matthew Cox.  She was charged with bank and wire fraud, identity theft, money laundering and conspiracy and is serving a 6 year prison sentence, owes $1.2 million in restitution and proceeds from any potential book or movie deal.
• Lea Fastow (wife of Andrew Fastow) - Enron's former assistant treasurer  who has served a 1 year prison sentence for tax fraud.
• Cheryl I. Lipshutz - former CFO of Enron Energy Services  who was charged with violating anti-fraud laws and who has agreed to return $27,150 and pay a fine of $25,000.
• Kathleen M. Lynn - senior vice president of Enron International, also charged with violating anti-fraud laws.  Her case is pending.
• Wendy Feldman - former Rancho Santa Fe stockbroker who deposited clients' checks and wire transfers directly into her own accounts and forged client signatures.  Feldman cooperated with prosecutors and was sentenced to just over 2 years in prison and  restitution of $4.2 million.
• Linda Schrenko - first woman elected to statewide office in Georgia and the first to be convicted of money laundering and conspiracy.  After a plea of guilty she was sentenced to serve 8 years at the Tallahassee Federal Women's Prison.
• Joya Williams - former administrative assistant to the director of Coca-Cola's global brand marketing.  Williams was found guilty of attempting to sell trade secrets to arch rival PepsiCo and faces up to 10 years in prison.
• Patricia Dunn - board chairwoman of Hewlett-Packard, charged with identity theft and fraud charges surrounding Hewlett-Packard's secret efforts to expose board members who were talking to the press.  She has pleaded not guilty and is awaiting trial.
• Martha Stewart.

It will be interesting to see if this trend continues.

Source:  ladies in lockdown by Mickey Goodman, PINK, April.May 2007

Federal Attorneys Renege on Plea Bargain

In a disturbing opinion, eight Judges of the 8th U.S. Circuit  Court of Appeals ruled this past Monday that a plea bargain the Kansas City US Attorney's Office had made with a defendant could be reneged on.  The defendant had originally been charged in 2003 with conspiring to distribute more than 50 grams of crack cocaine in 2002.  The defendant's attorney negotiated a plea agreement with the US attorney for the defendant to plead guilty to one count of conspiracy and the prosecutor would not file any additional charges against the defendant arising from the investigation.  A day before the defendant was to plead guilty per the agreement, another US attorney decided that the plea agreement was too lenient and told the other attorney in that office that made the deal to make it clear at the plea hearing that the government would only limit additional charges from conduct in the time frame mentioned in the indictment (not from the whole investigative time period as  agreed upon).   When the US attorney changed the agreement at the plea hearing, the trial judge ordered the government to complete the plea agreement.  The US attorney appealed.   Originally a three-judge panel of the 8th US Circuit Court of Appeals ruled that the government had to go through with the agreement.  Then when heard by the full court, eight judges allowed the government to renege.  Four judges dissented, one being Judge Myron H. Bright, who stated:

"The government reneged on its word."

"That omission . . .  threatens to make the word of that office not worth the paper on which it is written.  Fortunately for the country, I do not believe that federal prosecutors in other districts are in the mold of the Western District of Missouri."

Harsh words but applicable.  When one attorney cannot trust the word of another attorney or his/her office in situations like this,  it makes for a very bad situation and leaves defendants in limbo wondering about a plea bargain agreement until the judge accepts the agreement and the agreement goes forward.  No one wants to have the plea bargain set aside at the very last minute.  By then there could be incriminating statements made by the defendant.  Not a good situation to be in.    I applaud Judge Bright for his words.

Source:  Kansas City Star, Prosecutors changed deal with Jamal T. Norris after they decided it was too lenient, by Mark Morris

Case Review - Public Defender Eligibility

In State vs. Lewis the defendant was convicted of child molestation in the 1st degree.   He appealed his conviction on the basis that the trial court failed to appoint an attorney to represent him.  The trial court set defendant's bail at $50,000.  This bond was posted by someone other than the defendant.  The defendant told the trial court that he did not have the money to hire private counsel but after review of his financial situation the public defender's office and the trial court determined that the defendant was ineligible for the public defender's services.  The trial court advised the defendant about the perils of representing himself and gave him time to hire counsel but defendant failed to do so.  The appellate court ruled that the trial court did not err in its ruling. 

Some of the guidelines the court followed are:

A person is eligible for representation by a public defender when it appears from all of the circumstances of the case including his ability to make bond, his income and the number of persons dependent on him for support that the person does not have the means at his disposal . . . to obtain counsel in his behalf and is indigent. Section 600.086.1.

A court’s finding of non-indigency renders a defendant ineligible for public defender services and places on him the burden of obtaining counsel. State ex rel. Tanzey v. Richter, 762 S.W.2d 857, 858 (Mo.App.E.D. 1989).

A "[d]efendant’s refusal to sign a written waiver will not, however, provide him with a means to avoid a trial on the charge against him." Id. Accordingly, "[a] non-indigent defendant who wants counsel but refuses to hire one will be allowed to proceed pro se." Id. Nevertheless, the defendant should be warned of the perils of self-representation so that he may knowingly make the choice to proceed pro se. Id.

A criminal defendant is guaranteed the right to counsel. State v. West, 949 S.W.2d 914, 915 (Mo.App.E.D. 1997). The right to counsel can be impliedly waived by a defendant who fails to retain counsel within a reasonable time. Id.

The guidelines for determining indigency, as it relates to one’s eligibility for public defender services, states: "A defendant may be considered indigent if his/her gross pay and other sources of income do not exceed the federal poverty guideline as issued in the Federal Register by the U.S. Department of Health and Human Services." 18 CSR 10-3.010(2)(A)(2002).(FN3) The federal poverty guidelines for the year 2003 for a one-person household are $8,980 per year and for a two-person household are $12,120 per year. Annual Update of the HHS Poverty Guidelines, 68 Fed. Reg. 6456 (Feb. 7, 2003). The federal poverty guidelines for the year 2004 for a one-person household are $9,310 per year and for a two-person household are $12,490 per year. Annual Update of the HHS Poverty Guidelines, 69 Fed. Reg. 7336 (Feb. 13, 2004). The federal poverty guidelines are not dispositive in determining indigency, but rather are one of several factors the trial court should consider.

Those additional factors to consider when determining if a defendant is indigent are the defendant’s debts, bond, spouse’s income, parent’s income, mortgage, and assets. 18 CSR 10-3.010(2)(B). Regarding the bond factor, "[i]f the defendant has been released on bail on any case in the amount of five thousand dollars . . . or more, a presumption is created that the defendant is not indigent and the ability of the defendant to meet the bail must be given consideration." 18 CSR 10-3.010(2)(B)(2).

The defendant made $300 - $400 per week and paid child support in the amount of $74.00 per month.  This exceeded the federal poverty guidelines.  In addition to this, the fact that the defendant posted the $50,000 bond was a big strike against him.  There is a presumption that if a defendant posts his bond, he has the financial means to hire private counsel and it is up to the defendant to overcome this presumption.  Here the defendant failed to do so.

Source:  State of Missouri vs. Mark E. Lewis, ED86961 (Mo. App. E.D. 04/03/2007)

New Blog

I came across a new blog today.  Okay, it is probably not a new blog but it is new to me.    It is the Public Defender Stuff and it contains various articles by attorneys on serious and not so serious issues.   If you have a chance, take a look at it.  Maybe it will give you some insight into how attorneys view some situations. 

Proposed Legislation - Sex Offenders' Licenses

The Jefferson City News Tribune today included an article regarding proposed legislation by Rep. Ward Franze from West Plains, Mo. that would allow a new special code to be included on the front of driver's licenses issued to convicted sexual offenders.  This new code would identify the driver as a sexual offender, just like codes now identify restrictions on the licenses (eyeglasses, not after dark, etc).  Supposedly it would also allow law enforcement officials to keep better track of the offenders.  This legislation needs one more vote before it can be sent to the Senate.  The bill number is HB224 and can be reached by going to the government website. 

Source:  Jefferson City News Tribune, 04/04/2007, Sex offenders' licenses would be marked under bill

"Castle Doctrine" Bill

In the Sunday's edition of the Jefferson City News Tribune there is an article discussing legislation regarding people who use lethal force to defend their homes and cars.  Both the House and Senate have passed a bill regarding this issue and the differences between the two will need to be worked out before it goes to the Governor for consideration. This bill has become known as the "castle doctrine" and has been proposed in the House by Rep. Kenny Jones of California, Mo (a former sheriff).  Under the House version  it is presumed that a person who has used lethal force in defending his home, car, tent, etc. held a "reasonable fear of imminent peril of death or great bodily harm" when the intruder "unlawfully and forcibly entered."  The bill also gives this presumption when the person uses lethal force when defending another person against an intruder  who was attempting to remove the other person against his or her will.  The person using the lethal force is also presumed to have known or had reason to believe that an unlawful act was being committed at the time.

To those of us who own homes and want to defend ourselves and our loved ones while there, this "castle doctrine" bill sounds good.  The prosecuting attorneys and some law enforcement officials do not like it, however.  The article contains quotes from the Jefferson City prosecuting attorney who is finding the presumption in the bill "worrisome."   He and others believe the current law provides adequate protection to homeowners under the self-defense laws.  They gave examples of the bill going too far - a person enters a home announcing himself and pleading for help; a drunk neighbor stumbles into the wrong house; two teenagers outside a bowling alley getting into a fight inside of a car - all examples of perhaps an innocent incident ending in death.  Rep. Jones disagrees with these examples and says the legislation is "tightly drafted." 

The Senate bill, which passed last week, is similar to the House bill but it cleans up ambiguities in the current law.  Basically it makes it clear that a person who is lawfully someplace has no "duty to retreat" if they feel there are in imminent physical injury or death.

To read more on this go to the article, What can you do to defend your castle?

Source:  News Tribune, March 11, 2007, What can you do to defend your castle?  by Kris Hilgedick

Case Review - Commercial Driver's License Not Eligible for Expungement of Alcohol-Related Conviction

Any person who has been issued a commercial driver's license is ineligible to have an expungement of an alcohol-related driving offense pursuant to section 577.054.  This statute allows for a person convicted of an alcohol-related driving offense, first offense, to have the record expunged after ten years if the person has not been convicted of any other offenses during that time.   However, subsection 2 of the statute states that the expungement shall not apply to a person who "has been issued" a commercial driver's license.  In State v. Owen, the defendant received a conviction of driving with excessive blood alcohol content on August 21, 1981.  This offense did not involve a commercial vehicle and the defendant did not receive any other convictions.  After ten years he filed a petition to have the record expunged.  The Director of Revenue objected because the defendant had been issued a commercial driver's license and had only surrendered it right before the petition had been filed.  The Director contended that this made the defendant ineligible to have his record expunged.  The defendant contended that because he did not have a commercial driver's license at the time he filed the petition, he was eligible for the expungement.  The trial court and the appellate court agreed with the Director of Revenue's interpretation of the statute and the defendant's record was not expunged.

Source:  State v. Owen, WD66655, (Mo. App. W.D., 03/06/2007)

Case Review- DWI - Not Enough Evidence

On March 20, 2005 the respondent in Fick v. Director of Revenue was involved in a single-vehicle crash.  A trooper came to the site and saw the respondent being treated by medical attendants.  The trooper walked over to the respondent, who had an oxygen mask and neck collar on, and smelled a moderate odor of alcohol on the respondent.  The respondent admitted to having a few beers so the trooper administered a partial horizontal gaze nystagmus test on the respondent's left eye.  The trooper noticed a lack of smooth pursuit and nystagmus at maximum deviation.  The trooper was not able to perform the test on the right eye or any other physical tests due to the medical treatment the respondent was receiving.  The respondent was placed under arrest by the trooper and was asked to submit to a blood test.  The respondent refused.  The trooper did not give the respondent the written notice that his driving privileges were revoked for one year but sent the notice to the Department of Revenue with instruction to mail it to the respondent.  The Director revoked the respondent's driver's license for refusing to submit to the blood test.  The respondent requested a hearing before the trial court wherein the trial court ruled in favor of the respondent and ordered to Director to reinstate the respondent's driver's license.  The Director appealed to the appellate court on the grounds that uncontroverted evidence was presented that the respondent had been driving while intoxicated.    The appellate court ruled that at the trial court hearing the Director had to prove by  a preponderance of the evidence all of the following elements:

1. the driver was arrested;
2. the arresting officer had reasonable grounds to believe the driver was driving while intoxicated; and
3. the driver refused to submit to a test as authorized by section 577.020 to determine the amount of alcohol in the blood.

If any one of the three elements are found in the negative, the trial court must order reinstatement of the driving privileges.  Based upon the rulings in York v. Director of Revenue, 186 S.W.3d 267 (Mo. banc 2006) and Guhr v. Director of Revenue, WD657621, (Mo. App. W.D. 08/26/2006), now on transfer to the Missouri Supreme Court, the trial court is free to disregard any and all of the Director's evidence, even if it is uncontroverted, and if the appellate court finds that one or more of the elements could be found in the negative, it must affirm the trial court's ruling.  Here, the trial court found all three elements to be in the negative and  based this decision on the following:  the trooper gave the gaze nystagmus test wherein the respondent failed 2 0f the 3 parts and did not complete the test with the right eye or conduct any other physical tests, the trooper testified that he did not remember any other person being arrested for driving while intoxicated under such limited testing, the "field of debris" did not show clear evidence  of alcohol consumption, and there were no alphabet or other mental dexterity testing conducted. The trial court found that there were not enough grounds to conclude that the respondent was driving while intoxicated based upon this evidence.  The appellate court determined that the evidence could be interpreted this way so it affirmed the trial court's ruling against the Director.

Case Review - Retroactive Application of Section 211.038 (Cum. Supp. 2004)

Recently a case that involved  section 211.038 (Cum. Supp. 2004) was transferred to the Missouri Supreme Court to decide the issue of whether this statute should be applied retroactively.  In In the Interest of A.S.W. the Eastern District of the Missouri Court of Appeals decided that the general interest and the importance of this question should be decided by the Supreme Court of Missouri.

The background of this case is:  in 1998 A.S.W. was born.  His biological father suffered a brain injury from a fall at work in 2000 and had to spend time in rehabilitation.  In 2001 the juvenile office filed a petition to take jurisdiction and custody of A.S.W. because of neglect by the mother.  The juvenile court decided that the father was in no condition physically or mentally to be able to take care of A.S.W. at that time.  In 2002 the juvenile office petitioned to have the parental rights of both parents terminated.  The juvenile court did so.  The father thereafter appealed and the Missouri Supreme Court reversed the termination as to the father because the state had failed to present substantial evidence that additional services would not facilitate the return of A.S.W. to the father.  Thereafter the father filed a petition for writ of habeas corpus and alternative motion to modify the legal and physical custody of A.S.W.  At the same time the foster parents of A.S.W. filed their petition to obtain guardianship of A.S.W. and to change his name.  The juvenile court consolidated these two actions and ruled against the father and in favor of the foster parents.  The father appealed on four different grounds. 

The father alleged in the first ground that the juvenile court failed to follow the Missouri Supreme Court's mandate that A.S.W. be returned to his custody.  The appellate court determined that the Supreme Court did not mandate that the custody be returned to the father, only that the trial court should consider whether additional services could be provided so that the child could be returned to the father.  The trial court heard evidence from several psychologists that the father could not independently care for A.S.W. and that his sister, with  whom the father was living with, did not believe the father needed supervision.  The father also testified that he planned to move out of his sister's home and into one with just him and A.S.W.  The appellate court ruled that the trial court did follow the Supreme Court's order.  The second ground was that the juvenile court's jurisdiction was no longer proper.  The appellate court quickly ruled against the father on this ground because he had  consented to the jurisdiction of the juvenile court when the initial proceedings started.  The fourth ground by the father was that the ruling for the guardianship was against the weight of the evidence.  Based upon all the evidence that the trial court heard, the appellate court determined that there was substantial evidence for this ruling.

The third ground of the father and the one involving section 211.038 is the one that the transfer to the Missouri Supreme Court was made on.  Section 211.039, RSMo (Cum. Supp. 2004) prevents a child from being reunited or placed in the home of a parent who has been convicted of certain felony offenses where a child was involved.  In 1986, before the effective date of this statute, the father pleaded guilty to two counts of sexual abuse in 1st degree, one count of sodomy, and one count of rape.  These charges involved the father's nieces, ages 5 and 6.  The sodomy and the sexual abuse convictions are included in the felonies listed in the statute.  The trial court mentioned this statute in ruling against the father and the father argues that this statute should not be applied retroactively to him.  The appellate court found that the trial court did not rely solely upon this statute in denying the father custody of A.S.W.  The trial court found that the father was unfit and unable to assume duties of guardianship, that A.S.W. would suffer emotional harm if removed from his present home, that the father's physical and mental conditions prevented him from being able to handle A.S.W.'s needs that would result from the emotional harm, that A.S.W. started suffering from nightmares and behavioral changes after the visits with father resumed in 2005, and that several psychologists testified that the father could not independently care for A.S.W.  These findings were enough to rule against the father obtaining custody of A.S.W. but because the trial court mentioned section 211.038 in its determination, the appellate court considered  whether this statute should be applied retroactively.  It determined that it has been applied retroactively at least one time before in In re T.M.E., 169 S.W.3d 581 (Mo. App. 2005), and it agreed with this decision.  The appellate court determined that the trial court properly applied this statute to the father but because of the general interest and the importance of the question, it transferred the case to the Missouri Supreme Court for its decision on the retroactiveness of section 211.038.   It could be many months before the Supreme Court issues its decision.

Source:  In the Interest of A.S.W., ED88382, (Mo. App. E.D. 03/06/2007)

Case Review - Credit for Time Served

Under section 558.031.1 (2000) "a person shall receive credit toward the service of a sentence of imprisonment for all time in prison, jail, or custody after the offense occurred and before the commencement of the sentence, when the time in custody was related to that offense."  This has been interpreted to mean by the Missouri Court of Appeals, Western District, in Wallingford v. Mo. Dept. of Corrections, that if a defendant is ineligible for bond on a first offense and would have to remain in jail anyway, the the second offense is not related to the first and no credit on the second offense is given for the time served.   In this case the defendant was charged with three counts of delivery of controlled substance (offense I) and was convicted on March 17, 2000.  His bond for this conviction was set for $200,000.00, which he did not post so he remained in jail pending his appeal.   While out on bond and before being convicted on the first offense, the defendant was charged with three additional counts of delivery of controlled substance (offense II).  The defendant pled guilty to the second offense on May 11, 2001 and requested credit for the time served from March 17, 2000 to May 11, 2001.  The trial court denied the defendant credit and he appealed.  The appellate court found that since the defendant was eligible for bond on the first offense (offense I), the second offense (offense II) was related to the first and the defendant  was entitled to credit for the time he served.  This credit applied to both the first offense (offense I) and the second offense (offense II).

Source:  Wallingford v. Mo. Dept. of Corrections, WD66366, (Mo. App. W.D. 03/06/2007)

Case Review - Ink Pen as Dangerous Instrument

The Southern District of the Missouri Court of Appeals recently decided that an ink pen can be used as a dangerous instrument.  On March 5, 2007, the court handed down its decision in State v. Arnold.  In this case the defendant was being held in the Miller County Adult Detention Center.  He and another inmate were in a holding area conducting legal research.  When they were left alone with one guard they rushed the guard and held her captive.  The defendant handcuffed the guard and used an ink pen against her neck underneath her jaw bone.  The defendant took her to various places in the detention center trying to negotiate with the other guards to let him leave or he would kill the guard.  Eventually the defendant and the other inmate were captured and the defendant was charged and found guilty of attempted escape from confinement, armed criminal action and kidnapping.  The defendant appealed the verdict stating that an ink pen could not be a dangerous instrument as required in the escape and the armed criminal action charges.  The court defined a "dangerous instrument" as an object not designed to be used as a weapon and may have a normal function under ordinary circumstances.  The determining factor on whether the object is a dangerous instrument is whether the object can kill or seriously injure someone under the circumstances for which it is being used.  Under the circumstances of this case the court found that the ink pen was being used as a dangerous instrument when the defendant held it up to the guard's throat and he was threatening to kill the guard unless he was allowed to leave the detention center.  The defendant also appealed the kidnapping charge, stating that he had not used the guard as a hostage and a shield.  The court found that he had kidnapped the guard - he held her against her will, he handcuffed her, and he negotiated with other guards for her life.  The court affirmed the conviction and sentencing from the trial court.

Source:  State v. Arnold, #27406, (Mo. App. S.D.  03/05/2007)

Case Review- Another "Fruit of the Poisonous Tree" Case

On 2/13/2007 the Missouri Court of Appeals, Western District, handed down another decision regarding the "fruit of the poisonous tree."  In this case the police officers went to a house to conduct a drug investigation and a "well-being check."  Upon knocking at the front door a radio message was sent to the officers at the scene that someone was going out the back door.  Upon arriving in the back yard an officer noticed the defendant leaning against the outside of the house with his hands in his pockets.  After ordering the defendant to remove his hands from the pockets, the office requested that he be allowed to do a pat down search of the defendant.  The defendant agreed and two knives were found upon his person.  He was arrested and charged with unlawful use of a weapon.  The trial court sustained the defendant's motion to suppress the evidence  because the defendant was not in a public place when the police approached and there was no reasonably articulable reason for the stop; any information obtained a a result of the stop was illegally obtained and subject to suppression.  The state appealed the ruling on the ground that the defendant did not live at the house and, therefore, did not have standing to object to the seizure.  The appellate court did not agree with this argument.  It stated that the Fourth Amendment applied to people, not places and that the defendant had an expectation of privacy.  The court further stated that due to the circumstances of the stop, the defendant was "seized" by the officer and there was no reasonable, objective grounds for doing so.

The state also argued that the seizure was lawful because the defendant consented to the search. The appellate court did an analysis of the fruit from the poisonous tree to see whether the consent was sufficiently independent from the illegal stop to purge it of that taint.  Because the consent was made immediately after the stop and there were no intervening circumstances between the two, the court found that the taint was not purged.  It affirmed the trial court's suppression of the evidence.

Source:  State v. Gabbert, WD66350, (Mo. App. W.D. 02/13/2007)

Case Review: Criminal NonSupport & Paternity

Recently the Missouri Court of Appeals, Western District, handed down its decision in State v. Salazar.  The defendant had appealed his conviction for criminal nonsupport based upon: violation of his due process rights by the trial court refusing to order blood testing, by the responsibility to pay child support being based upon an administrative order of paternity as opposed to a court determination, and that his 28-day sentence amounts to cruel and unusual punishment in that the sentence is disproportionate to the wrongful act he allegedly committed.

During the defendant's marriage his wife became pregnant but both admitted that the child was not the defendant's.  His name was put on the birth certificate due to the insistence of a hospital clerk since they were still married at the time of the birth. Subsequently the Division of Child Support Enforcement (DCSE) served its "Notice and Finding of Financial Responsibility" on the defendant and he and the mother contested the paternity.  After the defendant's failure to show at the hearing a default decision and order was entered finding the defendant to be the father of the child and ordered him to pay child support.  Defendant did not seek a judicial review of the order and he did not  pay the child support. The defendant was charged with criminal nonsupport.  After a trial to the judge the defendant was found guilty and sentenced to 28 days in the county jail.

The appellate court found that the defendant's due process rights were not violated by the trial court's failure to order DNA testing because the biological paternity is not a required element of proof in a criminal nonsupport case.  Further, his rights were not violated because it was based upon an administrative order rather than a court order.  An administrative order of paternity is given the same force and effect as those made in a court.  The fact that the defendant failed to request judicial review of the administrative order does not change this.  The appellate court also found that the 28-day sentence was not "cruel and unusual punishment" when the defendant could have received a jail sentence of up to one year. The judgment of the trial court was affirmed.

Of particular note in this case is the dissenting opinion by Judge Ronald R. Holliger.  In this dissenting opinion Judge Holliger attacked the process of how the defendant was determined to be the legal father of the child and stated that the defendant should have been allowed to contest the paternity issue in the criminal proceeding.   Judge Holliger stated:

This court finds that Salazar is guilty of criminal non-support not based on biological paternity, ad adoption or dissolution decree or any finding by a court of law but because the child ("A.S.") had been "legitimated by legal process" for the purposes of the criminal statute by an administrative order filed with the circuit court of Buchanan County.  The DCSE order was not a judicial judgment under article V of the Missouri Constitution, was not conclusive on the issue of paternity and fails to support his conviction.  I would therefore reverse.

Source:  State v. Salazar, WD65099, (Mo. App. W.D. 02/13/2007).

Case Review - Illegal Stop for DWI

The Missouri Court of Appeals, Western District, recently threw out a DWI conviction  because the the evidence of the intoxication was inadmissible as "fruit of the poisonous tree."  The defendant was initially observed by a municipal officer swerving his pickup truck while in the city limits.  However, the officer waited until the defendant had crossed the city-limit line before activating his stop lights and pulling the defendant over.  The officer then had the defendant wait in his patrol car until a state trooper could arrive at the scene to complete the arrest.  The trial court denied the defendant's motion to suppress the evidence based upon an unlawful stop and the defendant was convicted  of the DWI.  Upon appeal the appellate court found that the stop by the municipal officer was unlawful because it was outside of his jurisdiction and he was not in fresh pursuit.  The question then became whether this tainted the evidence collected by the state trooper.  The court stated that there are three doctrines used to determine whether there are "means sufficiently distinguishable to be purged of the primary taint" and they are:  (1) the temporal proximity of the illegality and the unlawful activity; (2) the presence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.   The court then overruled prior case law in State v. Neher, 726 S.W.2d 363 (Mo. App. W.D. 1987), which was directly on point, and stated that the independent source rule must be carefully examined in order the prevent it from becoming an "illusory source requirement." After examination, the court found that the evidence in this case did not meet the requirement that it was obtained from a source "separate and distinct" from the initial unlawful stop and that there was no exception  to the fruit of the poisonous tree doctrine in this case.  The appellate court reversed the ruling and remanded the case back to the trial court to sustain the motion to suppress.

Source:  State v. Renfrow, WD66102, (Mo. App. W.D. 02/27/2007).

Case Review - Hostage Defined

In State v. Agnew the defendant alleged that the trial court erred for failing to set aside the jury's verdict of finding him guilty of kidnapping.  His contention was that the state had not proved the element of the kidnapping statute, section 565.110, relating to using a person as a "hostage" because he did not request specific demands to negotiators for the victim's release and there was no evidence that the victim was confined in order to gain from her or anyone else.  The Eastern District of the Missouri Court of Appeals found that the term "hostage" in section 545.110 is to be defined by its plain and ordinary meaning.  It determined that the defendant held the victim "hostage" because he held her captive in her apartment and threatened to kill her if (a) her relatives did not leave the area of the door to her apartment, (b) the police officers did not leave the area of the door to her apartment, and (c) if the police officers did not get the defendant a negotiator.  The jury's verdict of  guilty on the kidnapping charge was upheld. 

Source:  State of Missouri v. Wayne Agnew, ED87758, Missouri Court of Appeals, Eastern District, February 20, 2007

New DNA Rule Proposed for Illegal Immigrants

The Divorce Law Journal's article "U.S. Set to Begin A Vast Expansion of DNA Sampling" discusses the proposed rules that would require DNA samples from illegal immigrants who are detained.  Normally the illegal immigrants would be fingerprinted but these new rules would go further and require the DNA samples.  Initially this doesn't sound too bad but consider what the DNA results could reveal - physical diseases, mental disorders, etc.  We don't need that information in order to identify the illegal immigrants.  It seems that immigration attorneys were taken by surprise when the measure was passed last year.  Now they are going to have to deal with the consequences and so are their clients.  Last year more than 1.2 million immigrants were detained last year.  That is a lot of DNA samples.  Questions arise as to how the samples and results are going to be kept in order to protect the privacy of the immigrants, who is going to have access to the results, what is the cost that the American people are going to have to pay to have this done, and the list goes on.  Regardless of how you feel about immigrants coming into the country illegally, requiring DNA samples automatically just isn't right.

Source:  Divorce Law Journal, 2/5/07

Preliminary Hearing Testimony Admitted at Trial

On January 23, 2007 the Missouri Court of Appeals, Western District, handed down its decision in  State of Missouri v. Terrese D. Aaron.  The defendant alleged that the trial court violated his rights under the Sixth and Fourteenth amendments to the United States Constitution and article I, sections 10 and 18(a) of the Missouri Constitution because it allowed the taped preliminary hearing testimony of a deceased witness to be played to the jury.

The abbreviated facts of this case are that the defendant, along with his co-defendants, allegedly shot and killed a man in Mexico (my hometown, which is part of the reason  why I paid attention to this case).  At the defendant's preliminary hearing one of the co-defendants offered as a witness the deceased man's girlfriend who was at the scene.  This testimony was offered to show that the co-defendant did not have a gun.  The witness subsequently died before the defendant's trial.  At trial the court allowed the prosecuting attorney to play the deceased witness' preliminary hearing testimony. Defendant objected because he did not believe he had adequate cross-examination of this witness at the preliminary hearing and this violated his rights pursuant to the United States Supreme Court ruling in Crawford v. Washington, which states that "prior trial or preliminary hearing testimony is admissible only if the defendant had an adequate opportunity to cross-examine."  541 U.S. 36, 57 (2004).

The appellate court went through the various issues raised by the defendant and found that:

• pre-Crawford decisions in Missouri have held that testimony of an unavailable declarant given at a properly held preliminary hearing affords substantial compliance with the confrontation requirement;
• Rule 22.09 and section 544.250 give criminal defendants in felony cases filed by way of a complaint the right to a preliminary hearing and are entitled to cross-examine witnesses and present their own evidence;
• although the right to cross-examine and the opportunity of the jury to observe the witness are part of the right to confrontation, the opportunity of the jury to observe the witness gives way to necessity when a witness is unavailable to testify if the defendant had the opportunity to cross-examine the witness in a "face to face" manner at an earlier hearing; this meets the requirements of the Missouri Constitution and the federal constitution;
• the lack of discovery prior to the preliminary hearing nor the brevity of the cross-examination of the witness violates  the constitutional protections;
• the purpose for which the testimony at the preliminary hearing is offered does not matter so long as the defendant had the opportunity to cross-examine the witness  and the testimony being offered at trial is on  substantially the same issue and with the same parties;
• the appellate court is bound to follow the current Missouri law absent a determination by the Missouri Supreme Court that those cases are inconsistent with the reasoning held in Crawford.

The appellate court found that the defendant's rights were not violated by the deceased witness' preliminary hearing testimony being played to the jury at his trial. 

One other thing I found interesting about this case was that the  appellate court stated "The facts of the present case thus present the odd possibility that a criminal defendant's confrontation rights may be more closely protected in Missouri by the law of evidence than by the specific command of the Sixth Amendment."   This shows that criminal defense attorneys should pay attention not only to the United States and Missouri Constitutions but also to the Missouri rules of evidence.  More protection may lie there.

Source:  State of Missouri v. Terrese D. Aaron, WD65362, 01/23/2007.

Sentencing Guidelines - Federal Court

In federal courts the judges are suppose to have discretion to vary upwards or downwards from the U.S. Sentencing Guidelines when sentencing a  defendant.  It has been approximately two years since the U.S. Supreme Court made this determination.  Yet,   judges are not always allowed this discretion.  Recently in the 8th U.S. Circuit Court of Appeals a trial court's (district court's) sentences for a brother and sister charged with conspiracy to possess pseudoephedrine knowing that it would be used to manufacture methamphetamine were vacated and remanded for new sentences more in compliance with the Sentencing Guidelines.

In sentencing the brother and sister the trial court departed downward on each sentence due to factors that the trial court listed.  In addition the trial court made statements regarding the Sentencing Commission policy on pseudoephedrine, which sets forth a formula based on the presumed amount of methamphetamine that could be produced from the amount of pseudoephedrine possessed.  The trial court indicated that the formula was not as "simple" as perhaps the Sentencing Commission believed.  The 8th Circuit reviewed the factors considered as well as the trial court's view on the formula and found them unreasonable and an abuse of discretion.

Bottom line - if the trial court departs downward from the U.S. Sentencing Guidelines and the district attorney isn't happy and appeals, your sentence may be vacated and your case remanded for resentencing in compliance with the Sentencing Guidelines.

Source:  U.S. v. Gentile, 2007 U.S. App. LEXIS 909 (8th Cir. Jan. 17, 2007); Missouri Lawyers Weekly, January 22, 2007

What To Do When Questioned or Arrested By Police

Do you know what to do when you are questioned by the police regarding a crime?  Do you know what to do if you are arrested for a crime?  Most people make the biggest mistake for their case during the first interview or questioning by the police.  What is this mistake?  They do not keep their mouth shut.  Surprising, huh?

A police officer is a figure of authority and can intimidate most people into answering their questions during an interview either before or after making an arrest for a crime.  Because of the authority figure, people feel obligated to answer the questions of the police officer.  If they decline, the officer uses the old standby "if you're not guilty, what do you have to hide by talking with me?"  Believe it or not, this phrase starts the person talking. 

What is wrong with answering the police officer's questions?  Plenty, especially if you have played a part in a crime.  If you are questioned by an officer you have the right to have your lawyer present.  You should have your lawyer present during any questioning.  If your lawyer is present he or  she can control the way the interview is conducted - no excessive badgering, coercion or forcing a confession, extraordinary length of time for the questioning.  Your lawyer can also decide which questions are safe for you to respond to and which may possibly hurt the defense of your case.  Your lawyer may also be able to help you in the way you answer a question.  Without an attorney present, people are more inclined to admit to something even if they did not do it just to stop the questioning by the officer or they believe they will be allowed to leave if they tell the officer what he/she wants to hear.  Big mistake.  It is difficult to undo what has been admitted to.

The bottom line is - if the police want to question you or if you are arrested and starting to be questioned or interviewed by the police, assert your right to have your lawyer present. Your lawyer may be good but even he/she cannot perform magic over most admissions to a crime that occur in an interview.