Joplin MO Criminal Defense Lawyer Blog

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).

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.