MACDL fall 11 Layout 1

NewsletterP.O. Box 1543

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

www.MACDL.net

MACDLMissouri Association of Criminal Defense Lawyers

Fall, 2011

MACDL President’s Letter

by Brian Gaddy

MACDL serves the vital role of providing a unified voice for criminal defenselawyers throughout Missouri. One important way in which MACDL’s voice is heardis through the amicus curiae process before Missouri courts. The MACDL AmicusCommittee responds to requests for assistance in appellate cases that involveimportant questions of criminal justice that are of general interest to the criminaldefense bar.

MACDL recently filed an amicus brief in support of the Defendant in State ex rel.Garcia v. Goldman, 316 S.W.3d 907 (Mo. 2010). The Missouri Supreme Courtheld the Defendant’s Sixth Amendment right to a speedy trial was violated andordered the circuit court to dismiss the indictment. John Davidson wrote theamicus brief on behalf of MACDL. Our organization also filed an amicus briefbefore the Missouri Supreme Court in Smith v. Pace, 313 S.W.3d 124 (Mo.2010). Smith was a criminal defense lawyer who was convicted of criminalcontempt for written comments he made in court pleadings that criticized a trialjudge. Smith was ordered to serve 120 days in jail for the contempt conviction.On a writ of habeas corpus, the Missouri Supreme Court ordered Smith’scontempt conviction to be discharged, finding that the judgment did not containthe necessary factual findings for criminal contempt. Smith is an importantdecision for all criminal defense lawyers, as the very concept of jailing defensecounsel for comments made in pleadings is chilling. Talmage Newton wrote theamicus brief for MACDL.

More recently, MACDL submitted an amicus brief in support of adequate fundingby the legislature for the Missouri State Public Defender System in State ex rel.Missouri Public Defender Comm’n. v. Waters, now pending before the MissouriSupreme Court. Professor Sarah J. Foreman, who also serves as a MACDL Boardmember, led the amicus brief effort. She received significant assistance fromthird year law student Kevin Roberts, who recently graduated from WashingtonUniversity and was selected as an Equal Justice Works Public Defender CorpsFellow to practice indigent defense in New Orleans. Professor Foreman alsoreceived assistance on the brief from MACDL Board members Bruce Gallowayand John Simon.

Please visit www.macdl.net to learn more about the amicus brief process and tolearn more about the MACDL Strike Force that is available to consult withmembers who may fall under attack for providing representation to the citizenaccused. Our thanks go out to Grant Shostak who chairs the Amicus Committee,as well as all of the volunteers who have researched, written and revised amicusbriefs for MACDL. Our amicus brief practice is just one example of how thisorganization impacts and shapes criminal law issues in Missouri.

In This Issue

MACDL President’s Letter 1

MACDL Board Members 2

Thank You CLE Sponsors 2

MACDL Calendar of Events 2

MACDL Awards 2

Welcome Aboard! 3

“On the Horizon” 3

Lawyer Assistance Task 3Force

MACDL Case Law Update 3

DWI and Traffic Law 4Update

MACDL ListServe 9

Amicus Curiae Committee 11

Legislative Update 13

“Bruce’s Top 10 Federal 14Cases”

“Post-Conviction Update: 18Waivers of Post-ConvictionRelief”

2011-2012 MACDL Officers 19

“Missouri State Public 20Defender Seeks New PanelAttorneys for Case Contracts”

The MACDL Newsletter is asemi-annual publication of the

Missouri Association of CriminalDefense LawyersP.O. Box 1543

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

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

Your comments and suggestionsare welcome!

Page 2 MACDL Newsletter Fall, 2011

2011-2012

Officers & Board

Officers

President

Brian Gaddy s Kansas City, MO

Vice President

Jeff Eastman s Gladstone, MO

Secretary

Kim Benjamin s Belton, MO

Treasurer

Kevin Curran s St. Louis, MO

Past President

Travis Noble s St. Louis, MO

Board Members

Robert Childress s Springfield, MOJason Coatney s Springfield, MO

Don Cooley s Springfield, MOSarah Jane Foreman s St. Louis, MO

Bruce Galloway s Ozark, MOHerman Guetersloh s Rolla, MO

Carol Hutcheson s Springfield, MOMarilyn Keller s Kansas City, MO

Cathy Kelly s St. Louis, MOMatthew D. Lowe s Clinton, MO

Staci McNally s Osage Beach, MOMichelle Monahan s St. Louis, MO

John Simon s St. Louis, MOCarl Ward s Washington, MO

James Witteman, Jr. sIndependence MO

Executive DirectorRandy J. Scherr s Jefferson City

Lifetime MembersDan Dodson

Joseph S. Passanise

MACDLMissouri Association of Criminal Defense Lawyers

MACDL Fall CLEOctober 21, 2011Holiday Inn Executive Center s Columbia, MO

MACDL Annual Meeting & Spring CLEApril 20 – 21, 2012Hilton St. Louis Ballpark s St. Louis, MO

Bernard Edelman DWI ConferenceJuly 13-14, 2012Tan-Tar-A s Lake Ozark, MO

MACLD Awards!The Missouri Association of Criminal Defense Lawyers (MACD)recognizes outstanding service and performance by dedicatedcriminal defense attorneys. Some of our awards are divided into thevarious areas of the state. Not all awards are given each year. TheAward Ceremony takes place at MACDL`s Annual Meeting, typicallyheld in April of each year.

Please take the time to make a nomination for outstandingcriminal defense attorneys that you know, see and work withthroughout the state. For more information on MACDL’s awards,including how to nominate an attorney, please visit our website’s(www.macdl.net) Awards page.

MACDL Calendar of Events

The Bar Plan

A-AdvancedBail Bonds

MACDL thanks our 2011 Spring CLE Sponsors:

Thanks!

Fall, 2011 MACDL Newsletter Page 3

Rebecca Kurz s Olathe, KS

Kelly Brunie s Clayton, MO

Susan Dill s Kansas City, MO

Jessica Hoskings s Washington, MO

Jeffrey Heater s St. Louis, MO

Ella Boone s St. Charles, MO

Srikant Chigurupati s St. Louis, MO

Michael Taylor s Lee’s Summit, MO

Cyril Wrabec s Independence, MO

Christopher Wade s Ava, MO

John Baker III s Kansas City, KS

Anthony Totta s Independence, MO

Christy Herkenhoff s St. Louis, MO

Brian Webb s Independence, MO

David Becker s Indpendence, MO

Steve Mirakian s Kansas City, MO

Chris Mirakian s Kansas City, MO

Debbie Kuhn s Washington, MO

Mary Jo Underwood s Rolla, MO

Jason Heany s Windsor, MO

We’d like to welcome the following new members!

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

Officials from the Missouri General Assembly, Governor’soffice and Judiciary are meeting in an effort to revampMissouri’s criminal sentencing practices with the hopes ofdiverting more nonviolent offenders to less expensivetreatment programs instead of prisons.

The Pew Center on the States is assisting the working groupto analyze Missouri’s current sentencing laws, prisonpopulations, probation programs and recidivism rates. Thiseffort has taken place in other states which resulted inmany states enacting laws that directed more nonviolentoffenders to enhanced probation and drug treatmentprograms. Such programs are less expensive than prisonand leave more space in Missouri’s already crowded prisonsfor the most serious and violent offenders.

Sen. Jack Goodman, Chairman of the Senate JudiciaryCommittee and Co-Chair of the working group had this tosay, “All too often, legislators legislate to the press releaseof the day – the biggest crime that comes about in themedia usually brings about a swifter, tougher penalty, forwhatever that conduct may be, and we have a piecemealcriminal code. What we are doing today, and through thecoming months, is working toward a holistic, data-driven,evidence-based approach.”

The group’s goal is to have a non-partisan plan in place foraction during the 2012 legislative session.

On the Horizonby Brian Bernskoetter, MACDL Office

Lawyer Assistance

Strike Force

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

Case Law Update

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

Welcome Aboard!


DENOVO

Schneider v. Director339 S.W.3d 533 (Mo. App. E.D. 2011)

Driver challenged admission of breath test result in trialde novo proceeding. Driver argued that Governor Blunt’sExecutive Order 07-05 transferred Missouri’s breathalcohol testing program from MDHSS to MoDOT. Sincethe testing of driver’s breath was performed under apermit issued by MDHSS on a device approved byMDHSS and maintained by one authorized by MDHSS viaregulations adopted by MDHSS subsequent to thetransfer, Driver argued the results were inadmissible.The trial court agreed and vacated the license sanction.

On appeal, the Eastern District reversed. The appellatecourt held that the Governor’s Executive Order merelyrequired that MDHSS and MoDOT “to cooperate totransfer.” In the Eastern District’s opinion, there was noevidence that the transfer had actually occurred. Thusthe trial court erred in excluding the test results.

REFUSAL

Bess v. DirectorSD30805July 28, 2011

In this refusal proceeding, the trial court vacatedDirector’s refusal sanction finding in part that MODOThad failed to adopt the necessary rules and regulationsto carry out its duties under the breath alcohol programin compliance with Governor Blunt’s Executive Order of2007. The Director appealed and the Southern Districtreversed. In its opinion, the Southern District first reliesupon the Schneider decision which had held that thelanguage of the 2007 Executive Order described whatwas to be transferred to the new department or division,not when the transfer was to occur. Absent evidence asto when the transfer occurred, responsibility for thebreath testing program remained with the Departmentof Health and Senior Services and not MODOT.Additionally, the Southern District noted that unlikeSchneider, where the driver submitted to a breath test,

here the driver did not submit to such testing. Underexisting case law, courts have repeatedly held that in arefusal case, the Director need not prove that the resultsof a breath test would have been otherwise admissiblehad the driver submitted to a test. The trial court thusmisapplied the law in rendering this judgment in favor ofthe driver and against the Director.

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

In this Section 577.041 proceeding, the trial court foundall three issues to be in the affirmative yet set aside theDirector’s revocation. The trial court ruled that the basisfor the stop, speeding, was not an indicium ofintoxication. On appeal, the Southern District reversed.The appellate court found the trial court was correct infinding all issues to be in the affirmative from thecertified records submitted as evidence but misappliedthe law when considering the basis which prompted theinitial stop. Trial court’s decision reversed.

Cardenas v. Director339 S.W.3d 608 (Mo. App. S.D. 2011)

In this refusal proceeding, driver did not offer anyevidence at hearing but rather engaged in crossexamination of the arresting officer and objected to thereceipt into evidence of a copy of the Director’s certifiedfile. The trial court ruled in favor of the driver andagainst the Director. The trial court’s judgment read inpart “upon the evidence offered ... adjudged, the [trial]court finds [the Director] failed to show by competentand admissible evidence the time of the accident, theelapsed time between [the] accident and [LEO’s]encounter with [driver], whether or not [driver]consumed alcohol after the accident and whether or not[LEO] had reasonable grounds to believe [driver] wasdriving a motor vehicle while in an intoxicatedcondition.” In her appeal, Director asserted the trialcourt erred in reinstatement by erroneously declaringand applying the law arguing that the her evidence was“competent, admissible and sufficient” to show that LEOhad reasonable grounds to believe driver was drivingwhile intoxicated.

“DWI and Traffic Law Update” >p5

DWI and Traffic Law Updateby Jeff Eastman

On appeal, the Southern District first notes that the trialcourt never expressly ruled upon driver’s objections butinferred from the judgment that the court considered theexhibit since it took the matter with the case butrejected such evidence as not being “competent” andtherefore inadmissible. The appellate court also notedthat from their review of the judgment, the trial courthad determined that LEO’s testimony was not competentand therefore not admissible.

In reversing the trial court’s judgment, the appellatecourt held that the trial court erred as a matter of law inthat Missouri presumes that a witness is competent totestify except for a few statutory exceptions. Here, thetrial court abused its discretion in finding the officer’stestimony was not “competent” and not admissible, aswell as when it inferentially determined the recordssubmitted by the Director were not competent andtherefore not admissible. The judgment of the trial courtwas reversed and the matter was remanded for furtherproceedings.

Chamberlain v. DirectorSD30567April 25, 2011

In this refusal proceeding, the trial court sustained thedriver’s hearsay, foundational and non-responsiveobjections. Since the Director failed to make any offer ofproof as to the excluded evidence, the points were notpreserved for appellate review.

The Southern District also rejected the Director’s claimthat the trial court lacked subject matter jurisdictionbecause the action was filed in the wrong county.Because circuit courts have original jurisdiction over allcases and matters, civil and criminal, the appellate courtheld the circuit court had subject-matter jurisdictionover this civil proceeding. The court found the Directorconfused the concept of the trial court’s jurisdiction - amatter determined under Missouri’s Constitution - withthe separate issue of the circuit court’s statutoryauthority to grant relief. The court framed the Director’sclaim of error as one of improper venue based onSection 577.041.4. Since the Director failed to timelyobject, the same was waived.

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

In this Section 577.041 proceeding, the SouthernDistrict, following the Supreme Court’s opinion in Ross v.Director of Revenue, holds that the 90-minute arrestrule as found in Section 577.039 is inapplicable in arefusal proceeding.

The appellate court also reaffirms existing case law thatthe legality of an arrest is not an issue in a refusalproceeding. Thus, even though LEO arrested driver foran offense which occurred outside the boundaries of hismunicipality, the civil refusal sanction was upheld andthe trial court’s judgment reversed.

Covert v. Department of RevenueED95862June 21, 2011

Driver arrested for DWI. Driver refused breath test andwas served with notice of revocation. LEO thenrequested and received search warrant to draw blood.Test results showed drivers BAC between 0.144 & 0.123.MDOR sends driver notice of suspension under 302.505& 302.525 which sanction was affirmed afteradministrative hearing. Refusal and de novo consolidated.

Trial court found 1) MDOR had legal right to revoke forrefusing and 2) under Section 577.041, if a personrefuses testing, none shall be given and thus the resultsobtained were not admissible for purposes of thesuspension action. Trial court set aside the order ofsuspension because of the lack of BAC evidence butsustained the order of revocation.

MDOR appealed the trial court’s order setting asidesuspension, arguing that the court misinterpretedSection 577.037 and 577.041 in that it found thesesections required exclusion of blood alcohol evidenceobtained pursuant to court issued warrant. The EasternDistrict first addresses the propriety of MDOR’s actions inboth suspending and revoking license. Driver arguessanctions are exclusive such that driver cannot receivedouble sanction for a single incident. The appellate courtdisagrees, quoting Brown v. Director of Revenue whereappellate court said it was permissible to sanction forboth a refusal and points assessed because of DWIcriminal conviction as these were separatetransgressions occurring at separate times and placesallowing for separate penalties. Thus, two separatetransgressions allow for separate sanctions.

Next, the court considered whether the properprocedures were followed to allow for separatesanctions. Court finds analogous situation in State v.Smith, 134 SW3d 35, 38 (ED 2003). In Smith, appellatecourt held “none shall be given” language did notprohibit admission of results obtained pursuant to awarrant as “none shall be given” language applies onlyto law enforcement. Court rejects driver’s argument thatSmith’s holding only applied to criminal cases stating“We see no reason to bar the admission of evidenceobtained through a search warrant in compliance withSection 577.041 from an admin proceeding.”

Court, relying on Smith, says results were properlyadministered after LEO obtained warrant. Because testswere properly administered results were admissible inlicense case and court erred by misinterpreting 577.037and 577.041 so as to exclude results.


DWI and Traffic Law Update (from page 4)


www.MACDL.net


Comment/Observation - Smith held that in a criminalcase the “none shall be given” clause was restricted inapplication to law enforcement officers and did notdefeat a court’s ability to issue a search warrant toacquire the evidence - not withstanding the refusal.Smith did not say the search/seizure was in accordancewith 577.041 but rather 577.041's prohibition did notdeprive a court of its ability to issue a warrant to seizethe evidence. Simply stated, the Smith case held that awarrant could be issued to capture the evidence. Thiscase ignores the fact that the blood was not acquired asprovided in Section 577.041 - the warrant had nothingto do with 577.041 but for the driver’s initial refusal.

Davis v. DirectorED95538June 28, 2011

In this refusal proceeding, driver argued that he was notgiven the required 20 minutes to attempt to contact alawyer after being given the implied consent warning.The trial court disagreed and affirmed the revocation. Onappeal to the Eastern District, the trial court’s judgmentis affirmed.

In its opinion, the Eastern District noted that thearresting officer testified that appellant was given anopportunity to call his attorney after the implied consentwarning. Specifically, the officer testified “at 01:15 hewas given an opportunity to contact his attorney. I readthe implied consent. He refused. I checked the box. Atthe same time he stated he did not want to take the testhe wanted to talk to his attorney and at that point andtime I stopped everything, checked it at 01:15, and thengave him an opportunity to contact his lawyer.”

The trial court concluded that driver was given anopportunity to contact an attorney after the impliedconsent advisory.

The Eastern District recognized that the resolution ofcontested facts is a task for the trial court and that anappellate court must defer to the ability of the trial courtto judge the credibility of a witness and ascertain thefacts. The court noted that it was apparent from thejudgment that the trial court found the officer’stestimony most credible and that as the court of review,it must defer to that finding. Judgment affirmed.

Wei v. Director335 S.W.3d 558 (Mo. App. S.D. 2011)

In this refusal proceeding, the Director’s evidenceconsisted of a copy of her certified file. Driver introducedthe deposition testimony of the arresting officer, as wellas a video. The driver did not testify. The trial courtsustained the Director’s position and driver appealed.The appellate court rejected each point advanced bydriver.

In point I, driver argued that there was not substantialevidence to support the trial court’s finding that therewere reasonable grounds to believe driver had beenoperating a motor vehicle while in an intoxicatedcondition. Rejecting the point, the appellate court found

that the alleged inconsistencies or mistakes referencedby driver were “non-material” to the issues set forth inSection 577.041. The court stated that its standard ofreview required that it defer to the trial court’s view ofthe evidence such that the appellate court would notsecond guess the trial court on issues of contested facts.

In point II, driver claimed the trial court erred inoverruling her motion to reconsider arguing that thejudgment “condoned and sanctioned the use of false anduntrue statements and compromised the integrity ofadministration of justice.” Driver argued that herevidence revealed specific false and untrue statementsadvanced by the Director. Again, in rejecting driver’sarguments, the appellate court observed that the trialcourt’s reliance on the Alcohol Influence Report, as wellas the deposition testimony of LEO, did not constitutethe use of condoning, false and untrue statements nordid it compromise the integrity of the administration ofjustice. Again, the appellate court noted that itsstandard of review required it to defer to the trial court’sanalysis of contested evidence.

In point III, driver argued that the judgment was againstthe weight of the evidence in that the video of theincident demonstrated that LEO lacked reasonablegrounds to believe that driver had operated a motorvehicle in an intoxicated condition. The appellate courtlikewise rejected this point again acknowledging that itwas to defer to the trial court’s findings on contestedissues of fact. The appellate court also observed that inits independence review of the video, evidence of theallegations was inconclusive.

In her fourth point, driver claimed that the judgmentwas not supported by substantial evidence in that theDirector had presented no credible evidence that LEOproperly deemed driver to have refused the chemicaltest. In its review of the testimony, the appellate courtrejected said assertion noting that LEO had testified asto the insufficiency of the efforts made by driver toprovide a valid sample.

Finally, driver alleged that the trial court erred inentering judgment in favor of the Director because thejudgment violated driver’s constitutional right to dueprocess in that it denied her the right to confront andcross examine the arresting officer. Again, the appellatecourt rejected driver’s argument, first noting that thefacts necessary to establish the driver’s prima facie casecould be proven through the use of an Alcohol InfluenceReport and its narrative. The court also observed thatthe driver had every opportunity to cross examine LEOduring the course of its deposition and could havesubpoenaed him to testify at trial, as well. Judgment ofthe trial court was affirmed.

Williams v. Director of Revenue335 S.W.3d 70 (Mo. App. W.D. 2011)

In this refusal proceeding, the Director relied solely uponher certified records. According to those records, at thepolice station, LEO read driver his Implied Consent.Thereafter, driver refused to take a breath and a blood




test. LEO then began a 15-minute observation periodand read driver his Miranda rights. Approximately 15minutes after the initial refusal, LEO asked driver if hewas still refusing to take the test to which driver replied,“What test?” LEO then printed an evidence ticketindicating “Refused” from the DataMaster machine.

The trial court vacated the refusal sanction focusing onthe ambiguity of the events subsequent to the initialrefusal. On appeal, the Western District reversed notingthat the trial court had focused on the driver’s conductsubsequent to his alleged initial refusal. In so doing, thetrial court erroneously declared that the burden was onLEO to make it clear that he was asking driver to takethe test again and asking him if he was still refusing toprovide a breath or blood sample. Since all of theambiguity surrounding LEO’s second request occurredafter driver’s alleged initial refusal, the trial court erredin rescinding the revocation.

Because the trial court ruled at the close of the Director’scase, the matter was remanded to afford driver theopportunity to present evidence, should he so choose.

CRIMINAL

Bowers v. State of Missouri330 S.W.3d 832 (Mo. App. W.D. 2011)

In this proceeding, the appellate court distinguishes asuspended imposition from a suspended execution ofsentence and discusses the power of the court inprobation revocation proceedings. Most noteworthy, thecourt emphasizes that the validity of a judgment forpurposes of a probation violation proceeding is separateand distinct from the format required to prosecute anappeal from a final judgment.

State v. Acevedo339 S.W. 3d 612 (Mo. App. S.D. 2011)

In a bench trial, Defendant was convicted of drivingwhile revoked with punishment enhanced to class Dfelony status. Defendant challenged the sufficiencies ofthe prior predicates to enhance. On appeal, SouthernDistrict affirms. In a plain error review, the appellatecourt identified the prior predicate findings as follows:(1) a November 7, 2006 Lawrence County Judgmentwherein Defendant plead guilty to the class Amisdemeanor of driving while suspended in violation ofSection 302.321; (2) a January 26, 2004 LawrenceCounty Judgment wherein Defendant plead guilty to theclass A misdemeanor of driving while revoked inviolation of Section 302.321; (3) a January 26, 2004Lawrence County docket entry Judgment whereinDefendant plead guilty to the class B misdemeanor ofdriving while suspended in violation of Section 303.370[driving while suspended after ... operating privilege wassuspended for financial responsibility]; and (4) a July17, 2003 Judgment finding Defendant guilty of drivingwhile suspended after his operator’s privilege wassuspended for financial responsibility.

Section 302.321 provides that any person with no prioralcohol related enforcement contacts convicted a fourthor subsequent time of driving while revoked and wherethe three prior driving while revoked offenses occurredwithin ten years of the date of the present offense isguilty of a class D felony.

The Southern District notes that for purposes ofenhancement, Section 302.321 defines the act of drivingwhile revoked as driving while one’s privilege issuspended, revoked or cancelled. The act of drivingwhile suspended is the commission of driving whilerevoked irrespective as to why one’s privilege issuspended. The appellate court rejects Defendant’sargument that predicate suspension must have arisenunder Section 302.321, as said statutory section doesnot limit enhancement to only prior driving whilerevoked charges brought pursuant to or arising underSection 302.321. Thus, offenses arising under Chapter303 are properly included as prior predicates.

Note that the appellate court did not addressDefendant’s argument that since the legislature used thewords “driving while suspended or revoked” inconnection with county or municipal ordinanceviolations, as opposed to simply “driving while revoked”for state violations, it was the legislature’s intention thatonly driving while suspended convictions for county ormunicipal ordinance violations are available forenhancement.

State v. Beam334 S.W.3d 699 (Mo. App. E.D. 2011)

Defendant found guilty after bench trial of class D felonyof leaving the scene of a vehicular accident andmisdemeanor charges of failing to maintain financialresponsibility and improper turn on a divided highway.On appeal, Defendant challenges each conviction.

As to the felony charge of leaving the scene of anaccident, Defendant alleged that the record did notdemonstrate with unmistakable clarity that sheknowingly, intelligently and voluntarily waived her rightto trial by jury. The Eastern District agreed noting that acriminal Defendant has both a federal and stateconstitutional right to have a jury decide his guilt orinnocense. In felony cases, under both the MissouriConstitution and Rule 27.01(b), a waiver [of a trial byjury] by the accused and assent of the court mustappear from the record with unmistakable clarity. In theabsence of such an unmistakable clear waiver in a felonycase, a Defendant is entitled to remand for a new trialunder plain error review. In the instant proceeding, therecord lacked a written or oral waiver by Defendant of aright to trial by jury. Indeed, the record did not reflectthat Defendant, or counsel or the court even mentionedDefendant’s right to trial by jury or her decision to waivethat right. Accordingly, Defendant’s conviction andsentence for leaving the scene of a vehicular accidentwas reversed and the case remanded for new trial as tothat count.




In her second point, Defendant claimed the trial courterred in overruling a motion for judgment of acquittal atthe close of all the evidence and entering judgmentfinding her guilty of failing to maintain financialresponsibility. Specifically, Defendant alleged that thestate failed to show that she acted knowingly or withknowledge. The court found the evidence sufficient tosupport a finding of guilt noting the circumstantialevidence presented.

Finally, Defendant claimed the trial court erred inoverruling her motion for judgment of acquittal at theclose of all the evidence and entering judgment andsentence for improper turn on a divided highway underSection 304.015. Defendant alleged that she wascharged with turning “right not at an intersection,interchange, or designated location” whereas Section304.015 prohibits “any left turn or semi-circular or u-turn” at such location.

The Eastern District agreed and reversed and remandedon that charge. The Eastern District agreed that thewording of the charged offense did not effectively pleada violation of Section 304.015. Her conviction wastherefore reversed. The State’s request for remand wasan opportunity to amend the information to properlycharge a violation of Section 304.015 was granted.

State v. Brown332 S.W.3d 282 (Mo. App. S.D. 2011)

Defendant filed a motion to suppress, challenging thevalidity of the stop. The appellate court found thatweaving within one’s lane and twice driving on thecenter line within a four-mile stretch provided sufficientgrounds for the stop, affirming the trial court’s denial.The Southern District distinguishes State v. Abeln, 136S.W.3d 810 because in Abeln, the trial court hadrejected LEO’s testimony as to the basis for the stop forerratic driving. The Southern District also distinguishedMendoza, where there was a rational factual basis forthe lane transgression. Noteworthy, the SouthernDistrict recognized the Supreme Court’s recent referenceto the legitimate “community care-taking” function oflaw enforcement. The Southern District found that thetrial court properly denied the Defendant’s motion tosuppress and the conviction thereafter entered wasaffirmed.

State v. Burns339 S.W.3d 570 (Mo. App. W.D. 2011)

Pre-trial, State filed a “Notice of Filing Business RecordsPursuant to Section 490.692” wherein the Stateexpressed its intent to introduce Defendant’s medicalrecords at trial. In response, Defendant filed a “Motionto Suppress or in the Alternative Motion in Limine.” TheState filed its objections to Defendant’s motion. In itsorder overruling the State’s objections, the trial courtheld that it would “require the State to introduce thefoundation required by the Code of State Regulations forany lab tests concerning levels of alcohol or the presenceof drugs in a sample to be admissible.”

The State filed an interlocutory appeal pursuant toSection 547.200.1(3). Defendant filed a motion todismiss the State’s appeal, arguing that Section547.200.1(3) permits an interlocutory appeal where thetrial court has ordered the suppression of illegally seizedevidence. Defendant argued that the trial court’s orderwas merely a pre-trial in limine ruling with respect to theadmissibility of evidence pursuant to an evidentiary ruleor principle.

The Western District agreed and dismissed the appealnoting the suppression of evidence is not the same thingas the exclusion of evidence on the basis of some rule ofevidence. Suppression is a term used for evidence whichis not objectionable as violating any rule of evidence, butwhich has been illegally obtained. Case law hascircumscribed the State’s right to appeal to those caseswhere illegally obtained evidence is at issue. Since thetrial court’s order was based upon the application of arule of evidence Section 542.296.5 was not implicated.It necessarily follows that the State is afforded no rightto seek an interlocutory appeal from the trial court’sorder pursuant to Section 547.200.1(3).

The Western District also noted that the trial court’sdocket and the transcript reflected that Defendant’s trialwas continued to permit the State to pursue a writ ofprohibition, which the State did not seek. The courtobserved that a remedial writ is the proper route toreview interlocutory orders in a criminal case and theState remained free to seek a review of the trial court’sorder by way of a remedial writ.

State v. Collins328 S.W.3d 705 (Mo. 2011)

Defendant challenged the sufficiency of the evidenceoffered to prove he was a chronic offender. In the trialcourt proceeding, the State relied upon a certified copyof the Defendant’s driving history as evidence of hisprior convictions. That certified record failed to reflectwhether Defendant had been represented by counsel orwaived his right to counsel. The State conceded error.The sole issue was the appropriate remedy with theState arguing that it should be permitted to presentadditional evidence to prove that Defendant was achronic offender. The state argued that State v. Emory,95 S.W.3d 98 (Mo. banc 2003), State v. Teer, 275S.W.3d 258 (Mo. banc 2009) and State v. Severe, 303S.W.3d 640 (Mo. banc 2010) were not controllingbecause those findings were made in jury trials.

The Supreme Court rejected the State’s argument and,citing State v. Craig, 287 S.W.3d 676 (Mo. banc 2009)held that the appropriate remedy is to vacate thejudgment and remand the case for re-sentencing on therecord previously made noting “precedent persuadesthat, on remand, the State does not receive a secondopportunity to prove its case.”




State v. Dowdy332 S.W.3d 868 (Mo. App. S.D. 2011)

Defendant was charged with unlawful use of a weaponfor possessing a firearm while intoxicated. He moved tosuppress the results of a warantless breath test of hisblood alcohol content alleging that such search andseizure violated his federal and state constitutionalrights.

In this proceeding, a residential altercation culminatedin the Defendant fatally shooting a relative. Officerswere dispatched, with the Captain arrivingapproximately 30 minutes later. When the Captainarrived, Defendant was already under arrest and in theback seat of the patrol car. The Captain ordered theDefendant be transported to the jail and requested abreath test of his blood alcohol concentration.

Defendant arrived at the jail approximately 45 minuteslater where he was booked and advised that his bloodalcohol level was needed to ensure that medicaltreatment was not necessary. Defendant testified at thesuppression hearing that he was told and not asked toblow into the Breathalyzer. Defendant was not readMiranda warnings before the test or given an optionabout submitting and the officers never sought awarrant.

The trial court suppressed the breath alcoholconcentration results. The State appealed and theSouthern District, in a split decision, reversed. Themajority found that Schmerber v. California, 384 U.S.757 (1966) supported the general principal that thewarrantless extraction of a blood sample withoutconsent but incident to a lawful arrest was not anunconstitutional search and seizure in that the results ofa blood test so performed are admissible in evidence. Inconclusion, the majority found that Schmerber “hasestablished controlling constitutional standards fordetermining the admissibility of the results of a similarsobriety test as evidence in a criminal case.”

In her dissent, Judge Rahmeyer found that no exceptionto the warrant requirement applied in the presentproceeding. First, she found that Defendant did notvoluntarily consent to providing the breath sample, ashe was hand-cuffed and arrested, taken to jail, booked,where he was stripped of his clothes and required to puton jail uniform and was then told he had to provide abreath sample to determine whether he needed medicaltreatment. As such, there was no consent. Rather, therewas evidence that LEO admitted that Defendant had nochoice but to take the breath test.

Judge Rahmeyer likewise rejected any suggestion thatthe search was incident to an arrest. The Court firstnoted that the present proceeding was not an allegationthat the Defendant had been operating a motor vehiclewhile in an intoxicating condition. Secondly, indistinguishing the present case from State v. Setter, 721S.W.2d 11 (Mo. App. 1986), she noted that Defendantwas not Mirandized nor given an option about submittingto the test. Such was in contrast to the Setter decisionbecause in Setter, there was no showing that Setter was

denied the right to consult with counsel. Furthermore,here the Defendant was already under arrest when theCaptain arrived. He was told to take a breath test twohours after his arrest which made this search too remotein time to be incidental to the arrest and there was novalid reason for the delay offered.

Finally, Judge Rahmeyer rejected the exigentcircumstances exception. Exigent circumstances existwhen there is a compelling need for official action and notime to secure a warrant. Exigent circumstances aresituations where real immediate and seriousconsequences will certainly occur if a police officerpostpones action to obtain a warrant. Where there areexigent circumstances in which police action literallymust be now or never to preserve the evidence of thecrime, it is reasonable to permit action without priorjudicial evaluation. The government bears the burden ofproving the existence of an exigent circumstance tojustify a warrantless search. In the present case, in alight most favorable to the trial court’s ruling, the Statehad two hours to obtain a search warrant. The Statefailed to show any real immediate and seriousconsequences would certainly occur if they postponedaction to obtain a warrant and failed to secure a breathtest from the Defendant without obtaining a warrant.The facts as the trial court found them did not present aliteral “now or never” preservation of evidence issue.Finally, the dissent noted that the case law cited by themajority all involved the operation of a motor vehiclewhile intoxicated.

State v. Loyd338 S.W.3d 863 (Mo. App. W.D. 2011)

Defendant was charged with the misdemeanor offenseof driving while revoked. Defendant filed a motion tosuppress, arguing that LEO did not have reasonablesuspicion or probable cause to initiate a computer checkof the license plate of the vehicle he was operating. Hefurther alleged that even if such check was proper, theState failed to present evidence demonstrating that LEOhad specific aritcuable facts to indicate that Defendantwas in the vehicle.

On appeal, the Western District affirms. In aprecedential opinion, the court first finds that acomputer license plate check is not a search relyingupon unanimous federal precedent.


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Federal case law has established that there is noreasonable expectation of privacy in a license plate asthey are in plain view and intended to conveyinformation, such check is not intrusive, and isconsistent with Supreme Court rulings that individualshave no reasonable expectation of privacy in theirvehicle identification numbers.

The court also rejected Defendant’s argument regardingthe possible physiological invasion occasion by reason ofsuch checks and that the possibility of database error orofficer abuse do not create legitimate expectations ofprivacy where none previously existed.

The court held that LEO, seeing a license plate in plainview, may perform a computer check of that number toaccess non-private information about the car and itsowner in law enforcement databases.

The court also rejected Defendant’s argument as to alack of reasonable suspicion to justify stopping thevehicle because there was no indication that the vehiclewas owned by or registered to Defendant. The courtnoted evidence that in the MULES database, warrantsare assigned to the license plate numbers of vehicles inwhich an individual for whom a warrant has been issuedhas been previously stopped and ticketed or arrested. Inthe instant proceeding, Defendant’s name and warrantinformation appeared in MULES because the warrantwas issued on that license plate number based onDefendant’s having been stopped in the same vehiclepreviously. Thus, “under these circumstances, a lawenforcement officer receiving MULES computerinformation that there was an arrest warrant associatedwith that license plate has a reasonable suspicion tojustify an investigatory stop of the vehicle to see if theperson for whom the warrant was issued is presenttherein.”

State v. McNellyED96402June 21, 2011

In this criminal proceeding, the trial court suppressedthe blood sample seized from the Defendant’s personafter he was arrested for driving while intoxicated. Thesample was obtained without the Defendant’s consentand without a search warrant. The trial court found thecase did not involve exigent circumstances and thusdistinguished the situation from that presented inSchmerber v. California, 384 U.S. 757 (1966). The courtnoted that Schmerber was limited to the “special facts”of that case which include a delay of two hours while theofficer investigated the accident scene before deliveringthe Defendant to the hospital and the court’s specificfinding that there was insufficient time to seek out amagistrate to secure a warrant. In the presentproceeding, no such evidence was presented.

In response, the State argued the trial court erred insustaining Defendant’s motion because the legislatureeliminated the “none shall be given” language fromSection 577.041. Since said provision was the onlyprohibition under Missouri law barring law enforcementfrom obtaining a non-consensual and warrantless

sample, the State argued that the trial court erred insuppressing the evidence.

The Eastern District adopted the State’s argument.However, the panel transferred the case to the SupremeCourt in light of the general interest and importance ofthe issue involved.

State v. PfleidererWD73407June 14, 2011

Defendant involved in single vehicle accident.Transported to hospital for treatment during which timeblood was drawn and analyzed for medical purposes todetermine BAC. Defendant subsequently charged withDWI. At some point thereafter, the State obtained theresults from the blood alcohol analysis. Defendantmoved to suppress the blood test results alleging (1)hospital did not comply with Chapter 577, (2) the State’staking and use of sample violated the physician-patientprivilege - Section 491.060(5), (3) the Defendant was“searched” without probable cause.

Trial court had a hearing on motion without theintroduction of evidence and granted the motion solelyon the basis that “[t]he specimen was not seizedpursuant to requirements of Section 577 or CSR. TheState took interlocutory appeal.

WD dismisses appeal for reasons in State v. Burns, WD73127 - as the trial court’s order excluded rather thansuppressed the evidence.

State v. Robertson328 S.W.3d 745 (Mo. App. W.D. 2010)

State files interlocutory appeal challenging the trialcourt’s judgment sustaining a motion to suppress. Thetrial court found that the evidence did not establish thatthe PBT had been calibrated prior to Defendant’s arrestand, therefore, no probable cause existed for the arrest.

During the suppression hearing, defense counselobjected to the admission of the results of the PBT citinga lack of foundation. Counsel specifically referenced thelack of any evidence relating to the unit’s calibration andthe scientific principle upon which it operated.

The appellate court agreed with the State that proof ofcalibration is not required for admission of the results ofthe PBT under Section 577.021. However, in the presentcase, admissibility was not the issue because the courthad admitted the results in to evidence for purposes ofthe motion to suppress. As the Western Districtobserved, “the State’s real complaint is that the circuitcourt did not accept and rely on the results of the PBT.”

In its opinion, the court referenced the Supreme Court’srecognition in a driver’s license case that the lack ofcalibration of a portable breathalyzer machine mayimpact the circuit court’s finding as to whether theresults obtained from the same were credible. See Yorkv. Director of Revenue, 186 S.W.3d 267. In the Yorkcase, the trial court had found that the officer lacked the





proper training to administer the portable breathalyzermachine and that no evidence existed to establish thatthe device was properly calibrated, maintained or evenworking at the time it was used. The court alsoreferenced the Eastern District’s decision in Paty v.Director of Revenue, 168 S.W.3d 625, where the courtfound that a trial court could disregard the results of apreliminary breath test as unreliable. In the presentcase, the appellate court inferred that the trial courtquestioned the reliability of the “portable breathanalyzer machine” and concluded the same was notcredible. The trial court’s ruling on the motion tosuppress was sustained.

State v. Schroeder330 S.W.3d 468 (Mo. 2011)

Defendant appeals conviction for failure to dimheadlights, DWI and DWR challenging the sufficiencyevidence to find Defendant guilty. Supreme Court holdsthat taking the evidence in the light most favorable tothe State and granting the State all reasonableinferences from the evidence stash a reasonable factfinder could conclude that Defendant’s headlights glaredinto the eyes of the passing LEO when LEO was withinthree hundred feet of Defendant’s vehicle.

Supreme Court rejects Defendant’s challenge to the trialcourt’s ruling on Defendant’s motion to suppress firstnoting that Defendant was already stopped alongside ofthe roadway when LEO passed. “Under the FourthAmendment, a law enforcement officer may approach avehicle for safety reasons or if a motorist needsassistance, so long as the officer can point toreasonable, articuable facts, upon which to base hisactions.” The court recognizes that LEO has a communitycare-taking function. Here, the court found the roadsidesituation “dangerous” making the initial encounterlawful.

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

Finally, the Supreme Court rejects Defendant’s void forvagueness challenge to Section 577.001 and 577.010.

State v. WilsonED95423July 12, 2011

Defendant found guilty of felony driving whileintoxicated after jury trial. In plain error review,Defendant argued the trial court erred in sentencing himas a chronic offender in that the trial court failed to findfacts establishing his chronic offender status prior to thesubmission of the case to the jury. The Eastern Districtagreed. Although the State introduced exhibits showingprior convictions before the case was submitted to thejury, the trial court made no finding as to whetherDefendant was a chronic offender as required by Section

577.023.7(3) and Sections 577.023.8. The trial court’sactions were thus deficient requiring remand for re-sentencing Defendant without any enhancement.

In his second point, Defendant argued the evidence wasinsufficient to prove he was operating a vehicle asrequired by Sections 577.001 and 577.010. TheSouthern District disagreed. Here, the Defendantclaimed the evidence did not show that he was“physically driving or operating a motor vehicle.” Rather,he contended that he was merely sleeping in a parkedvehicle.

In rejecting his argument, the court noted that bothdirect testimonial evidence and circumstantial evidenceshowed that he had operated his vehicle shortly beforeofficers had found him semi-conscious in his parkedtruck. The State’s evidence had Defendant pulling upand parking his truck approximately 30 minutes beforethe police arrived. There was no evidence that anyonegot out of the vehicle thereafter. When LEO arrived, theyfound Defendant still sitting behind the wheel with theengine running. Such was sufficient to sustain theState’s burden. Case remanded for re-sentencing.


Don’t forget that MACDL has an Amicus CuriaeCommittee which receives and reviews all requestsfor MACDL to appear as amicus curiae in cases wherethe legal issues will be of substantial interest toMACDL and its members. To request MACDL toappear as amicus curiae, you may fill out the amicusrequest on the MACDL website (www.MACDL.net) orsend a short letter to Grant J. Shostak, Amicus CuriaeCommittee Chair, briefly explaining the nature of thecase, the legal issues involved, and a statement ofwhy MACDL should be interested in appearing asamicus curiae in the case. Please set out anypertinent filing deadline dates, copies of the order ofopinion appealed from and any other helpfulmaterials.

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

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

E-mail: [email protected]

Amicus Curiae

Committee



State v. Yarbrough332 S.W.3d 882 (Mo. App. S.D. 2011)

Defendant convicted after jury trial of first degreeinvoluntary manslaughter and second degree assault. Ina plain error review challenge, Defendant first arguedthat the trial court erred in permitting a police officer totestify as to the results of a portable breath test. Inrejecting Defendant’s argument, the Southern Districtholds that Defendant had no constitutional or statutoryright to consult with an attorney before submitting to aPBT. The implied consent provisions of Section 577.020were inapplicable pursuant to Section 577.021 whichexpressly recognized the ability of an officer, prior toarrest, to administer a chemical test to a personsuspected of driving while intoxicated. Additionally,Defendant need not be given an implied consent warningbefore a PBT test is administered as such warning is tobe provided an arrestee who has been requested tosubmit to a chemical test pursuant to Section 577.020,not 577.021.

Defendant also complained his due process rights wereviolated when the med tech was allowed to testify as tothe results of blood and urine tests administered for thepurposes of determining Defendant’s diagnosis andtreatment. Defendant argued that Section 577.020 to577.041 provide the exclusive method of admittingevidence of chemical testing to prove intoxication. CitingState v. Todd, 395 S.W.2d 55 (Mo. App. E.D. 1996), theSouthern District holds that according to the plainlanguage of the statute and regulations, therequirements and protections provided by the impliedconsent law do not apply to all blood tests offered asevidence but only those offered pursuant to Chapter577. The implied consent provisions were enacted tocodify the procedures for obtaining bodily fluids fortesting by consent without a search warrant and theyare “directed only to warrantless tests authorized by lawenforcement officers.” Chapter 577 is not the exclusivemeans to obtain chemical test results for use asevidence in a criminal trial.

Since the sampling and testing was not done at therequest and direction of a law enforcement officer, therestrictions of 577.020 to 577.041 are inapplicable.Further, Section 577.037.3 provides that the impliedconsent law shall not be construed as limiting theintroduction of any other competent evidence bearing onthe question of whether the person was intoxicated. Thejudgement of the trial court is affirmed.

MISCELLANEOUS

Bowers v. Director338 S.W.3d 876 (Mo. App. S.D. 2011)

Driver challenged Director’s 60-day CDL disqualificationpredicated upon convictions for two serious trafficviolations arising from incidents occurring within athree-year time frame. Trial court vacated sanction andDirector appealed. On appeal, the Southern District

reverses. Appellate court notes that if one is found guiltyof an offense, placed on probation and receives asuspended imposition of sentence, Missouri law, ingeneral, does not consider the same a conviction.However, the term conviction as used in the UniformCommercial Driver’s License Act, is specifically definedso as to include unvacated adjudications of guiltregardless of whether the penalty is suspended.

Driver’s unvacated adjudication of guilt on the driving ofa commercial motor vehicle without a license charge forwhich he received a suspended imposition of sentenceconstitutes a conviction for purposes of a CDLrevocation. Since such conduct constitutes a serioustraffic violation as that term is defined in Section302.700.2(30)(a) and (d), the Director was authorizedand required to disqualify driver’s commercial driverslicense privileges for a period of 60 days.

Mayfield v. Director335 S.W.2d 572 (Mo. App. E.D. 2011)

After suffering a ten-year denial of his driving privilege,driver sought reinstatement pursuant to Section302.060.1(9). The Director challenged petitioner’srequest arguing that his conviction for possession ofparaphernalia rendered him ineligible. The trial courtdisagreed and ordered reinstatement. The Directorappealed.

The Eastern District reversed. The court noted that as acondition precedent to reinstatement, a trial court mustfind that a petitioner has not been convicted of anyoffense related to alcohol, controlled substances ordrugs during the ten years immediately preceding theaction for reinstatement and that the driver’s habits andconduct show that he no longer poses a threat to thepublic safety of this State. The court found that aconviction for possession of paraphernalia is an offenserelated to controlled substances or drugs under Section302.060.1(9). Hence, the trial court erred in orderingreinstatement as such drug paraphernalia convictionoccurred within the ten years immediately preceding thefiling of the petition.

Morse v. DirectorSD30653April 18, 2011

Driver, at 19 years of age, was arrested for violatingSection 577.010. She suffered an administrativesuspension under Section 302.505. After serving herperiod of administrative sanction, she satisfied thereinstatement requirements of Section 302.304.15 andwas reinstated. At age 21, the Director expunged therecord of driver’s administrative suspension pursuant toSection 302.545.

Driver was also criminally prosecuted. She received asuspended imposition of sentence with probation. Driverlater violated her probation, had her probation revokedand was subsequently convicted of driving whileintoxicated in April, 2008.




Upon receipt of notification of this conviction, Directoradvised driver that, based upon the eight pointsassessed to her record, her privilege would again besuspended for 30 days pursuant to Section 302.304. TheDirector advised driver that she had to again completeSATOP, file an SR-22 and pay a reinstatement fee so asto secure reinstatement of her privilege. Driverchallenged the Director’s action in a proceeding pursuantto Section 302.311.

In the trial court proceeding, the Director conceded thatdriver must be given credit for her previous time ofsuspension pursuant to Section 302.525.4. The Directorcontended, however, that driver was not entitled toreinstatement unless and until she paid additionalreinstatement fees, filed SR-22 and completed SATOP.The trial court disagreed finding that such requirementwould violate Section 302.525 as said requirementswould not give driver credit for her previous period ofsuspension and all the requirements following thatperiod of suspension.

On appeal, the Southern District affirms. The SouthernDistrict rejects the Director’s argument that Section302.525.4 applied only to the “period of suspension” and

not to any associated reinstatement requirementswhich, the Director argued, were specified in separatestatutes.

The Director argued that these reinstatementrequirements were “additional checks on the personsability to safely operate a motor vehicle on Missouri’shighways.”

In rejecting the Director’s argument, the SouthernDistrict noted that if the Director’s assessment oflegislative intent were valid, one would expect thelegislative scheme to prohibit driver from receivingcredit for her prior completion of a SATOP. Indeed, thelegislature has done just the opposite in Section 302.540by providing that court ordered participation in SATOPshall satisfy the reinstatement requirements of Section302 if the court action arose out of the same occurrencethat resulted in the administrative license sanction. TheSouthern District concluded that the legislature intendedthat the reinstatement requirements need only besatisfied once where the per occurrence credit mandatedby Section 302.525.4 is equal to the length ofsuspension time required by Section 302.340.

Note - Supreme Court has accepted transfer.

Governor Jay Nixon called the Legislature into a SpecialSession which began September 6th to address a numberof issues in the hopes of stimulating Missouri’s economyand creating jobs.

The centerpiece of the legislative call is the creation of anAerotropolis tax credit program to incentivize the Chineseto make Lambert Airport a major distribution hub in theUnited States. Along with the Aerotropolis tax credit, theGovernor has asked the Legislature to enactcomprehensive tax credit reforms to scale back, cap oreliminate many of these programs.

Other features of the Special Session Call aimed ateconomic development include: the creation of theMissouri Sciences and Innovation Reinvestment Act,consolidating current business incentive programs in theDept. of Economic Development, tax incentives fordevelopment of certain data centers, and the creation ofa tax credit program to attract large sporting events.

The Governor has also included a few other items in theSpecial Session Call that do not directly relate to jobcreation or economic development. Those include:returning control of the St. Louis Police to the Mayor ofSt. Louis, creating a tax amnesty program for the Dept.of Revenue, and moving Missouri’s Presidential Primaryfrom February to March.

The session will coincide with the Veto Session that isscheduled for September 14th.

On other legislative fronts, MACDL is working withleaders in the Missouri Senate to lay the groundwork fora push to enact a comprehensive expungement bill nextsession. Along with researching other states’ statutes onthe subject, we are soliciting our members for real-lifeexamples of the need for an expungement law. If any ofyour clients would like to offer their stories (if the bill isheard - in person during testimony or written accounts)that would be very helpful as we build a coalition andjustify the need for this type of law.

Missouri’s 96th General Assembly

Legislative Updateby Brian Bernskoetter, MACDL Office


Bruce’s Top 10 Federal Cases

by Brian Gaddy, MACDL President

Kentucky v. King131 S. Ct. 1849 (2011)Warrantless Entry – Exigent Circumstances

The police followed a suspected drug dealer to anapartment complex. They smelled marijuana outside anapartment door, knocked loudly, and announced theirpresence. The police were knocking on the wrongapartment door, as the suspected drug dealer enteredanother apartment across the hall. After the knock, theofficers heard “noises” coming from the apartmentconsistent with the destruction of evidence. The officerskicked in the door. They observed drugs in plain viewduring a protective sweep.

The Supreme Court affirmed the warrantless searchunder the exigent circumstances exception to thewarrant requirement. This rule applies when the policedo not create the exigency by engaging or threateningto engage in conduct that violates the FourthAmendment. Although warrantless searches of a homeare presumptively unreasonable, the presumption maybe overcome when the exigencies of the situation makethe needs of law enforcement so compelling that awarrantless search is objectively reasonable. One suchexigency is the need to prevent the imminentdestruction of evidence. A warrantless search based onexigent circumstances is reasonable when the police donot create the exigency or threaten to engage in conductthat violates the Fourth Amendment. Here, there was noevidence that the officers violated the FourthAmendment or threatened to do so, as the knock andannounce were lawful. The case was remanded for thelower courts to determine whether an exigency actuallyexisted due to the “sounds” consistent with thedestruction of evidence.

Davis v. United States131 S. Ct. 2419 (2011)Fourth Amendment Exclusionary Rule

The Defendant was arrested during a traffic stop forproviding a false name. After Defendant was handcuffedand the scene was secure, the police searched the carand found a gun, which supplied the basis for a felon inpossession of firearm charge. The search and thesuppression hearings occurred prior to the SupremeCourt decision in Arizona v. Gant, 129 S. Ct. 1710(2009), which held that a search of a vehicle incident to

lawful arrest can only occur where the arrestee isunsecured and within reaching distance of the passengercompartment of the vehicle at the time of the search.Prior to Gant, courts had generally ruled that automobilesearches incident to arrests could occur regardless ofwhether the arrestee was within reaching distance of thecar at the time of the search and regardless of whetherthe arrestee was handcuffed or secured.

The Supreme Court concluded that the gun should notbe suppressed. Searches conducted by the police inobjectively reasonable reliance on binding appellateprecedent are not subject to the exclusionary rule. Theexclusionary rule’s sole purpose is to deter future FourthAmendment violations. When considering theapplicability of the rule, the courts should weigh thedeterrence benefits of suppression against the “heavycosts” of the rule. The analysis turns on the flagrancy ofthe police misconduct at issue. If the police exhibitdeliberate, reckless, or grossly negligent disregard forthe Fourth Amendment, the benefits of exclusionoutweigh the costs. According to the Court, when policeact with an objectively reasonable good-faith belief thattheir conduct is lawful, or when their conduct onlyinvolves simple, isolated negligence, the deterrent valueof suppression is diminished and exclusion cannot “payits way.” Although the search in this case wasunconstitutional under Gant, the Supreme Court heldthat the evidence will not be suppressed because thepolice were following binding precedent at the time. Theremedy of exclusion does not automatically flow from aFourth Amendment violation.

Michigan v. Bryant131 S. Ct. 1143 (2011)Confrontation Clause

A gunshot victim told police that he had been shot by theDefendant outside the Defendant’s house and thendrove himself to a gas station. He identified anddescribed the shooter. The victim later died, but thevictim’s statements were offered through police officertestimony. The Defendant was convicted of seconddegree murder. The lower appellate courts reversed theconviction, holding that the victim’s statements violatedthe Confrontation Clause.

Bruce’s Top Ten >p15


The Supreme Court held that there was no ConfrontationClause violation. The victim’s identification anddescription of the shooter were not “testimonial”because they had a primary purpose to enable police tomeet an ongoing emergency. In Crawford v. Washington,the Court held that “testimonial” evidence is onlyadmissible if the witness is unavailable and there was aprior opportunity for cross examination. After Crawford,the analysis often turns on whether a statement is“testimonial.” Statements are non-testimonial whenmade in the course of police interrogation undercircumstances objectively indicating that the primarypurpose of the statement is to enable the police to meetan ongoing emergency. A statement is testimonial ifmade when there is no ongoing emergency and theprimary purpose of the statement is to establish orprove past events potentially relevant to later criminalprosecution. To make the primary purpose determination,the Court must objectively evaluate the circumstances ofthe encounter between the parties and the parties’statements and actions. The determination is anobjective test. The existence of an “ongoing emergency”at the time of the encounter is among the mostimportant circumstances informing the interrogation’sprimary purpose. In this case, there was an ongoingthreat to the police and to the public at large. The victimmay want the threat to end but may not envision afuture prosecution. According to the Court, thestatement’s primary purpose was to enable police tomeet an ongoing emergency which is non-testimonial.The statement was admissible without violating theConfrontation Clause.

Bullcoming v. New Mexico131 S. Ct. 2705 (2011)Confrontation Clause

The Defendant was charged with driving whileintoxicated. A forensic laboratory report certifying thathis blood alcohol content was above the threshold wasoffered into evidence. The lab analyst did not testify, butsigned the report and certified that the report and thetest results were accurate. The report was validated andoffered through another lab analyst who was familiarwith the testing device and procedures, but did notparticipate in the particular testing. In Melendez-Diaz v.Massachusetts, the Supreme Court held that a forensiclaboratory report was testimonial for purposes of theSixth Amendment and could only be admissible either bystipulation or if the witness (lab analyst) is unavailableand the accused had a prior opportunity to crossexamine the witness. The lower courts held that despiteMelendez-Diaz, the report in this case is still admissiblebecause the analyst was a mere scrivener who simplytranscribed the machine-generated test results andbecause the analyst who testified at trial could describehow the machine operates and what procedures areused in the lab.

The Supreme Court reversed, holding that the admissionof the report without the testimony of the analyst whoprepared the report violates the Confrontation Clause.

The accused has the right to be confronted with theanalyst who signed the certification and made thereport. The signed certification is not an adequatesubstitute for testimony. The certification reported morethan a machine generated result. The certification alsorepresented that the analyst received the blood sampleintact with the seal unbroken, that the analyst checkedto make sure the forensic report number and the samplenumber corresponded, that he performed a particulartest on the sample, that he adhered to protocols, andthat he left the report’s remarks section blank indicatingthat no circumstances or conditions affected thesample’s integrity or the validity of the test. Theserepresentations are not revealed in machine-produceddata. Also, the testifying lab analyst who did not performany of the testing was not an adequate substitutebecause he could not convey what the examininganalyst observed or knew about the reported events.

Turner v. Rogers131 S. Ct. 2507 (2011)Right to Counsel–Civil Contempt

Turner was ordered to pay child support. Turner missedrepeated support payments and was the subject ofseveral contempt hearings. Due to an arrearage, thefamily court issued a show cause order for anothercontempt hearing. Turner was not represented bycounsel. The court found Turner in willful contempt andsentenced him to 12 months in jail. The court did notmake any findings whether Turner was able to pay.Turner appealed arguing that the federal constitutionprovided him a right to counsel at the contempt hearing.The South Carolina Supreme Court rejected theargument, declaring that civil contempt does not requireall of the constitutional safeguards that a criminalcontempt proceeding does. At time of the lower courtdecision, Turner had completed his 12-month sentence.

The United States Supreme Court first held that itsreview of the case was not “moot.” Although Turner hadcompleted the 12-month sentence and there were noalleged collateral consequences, the case is not mootbecause 1) the challenged action is in its duration tooshort to be fully litigated prior to its cessation orexpiration and 2) there is a reasonable expectation thatthe same complaining party may be subjected to thesame action again. Because the 12-month sentencedoes not allow meaningful review through the SupremeCourt, and because Turner may be subject of futurecontempt hearings, the dispute is kept alive and not“moot.”

The Court observed that the Fourteenth AmendmentDue Process Clause does not automatically require astate to provide counsel at a civil contempt proceedingeven if the individual faces incarceration. The SixthAmendment right to counsel governs criminalproceedings but does not apply to civil cases. The Courtalso observed that civil contempt is different from

Bruce’s Top Ten (from page 14)



criminal contempt, in that a court may not imposepunishment in a civil contempt proceeding when it isclearly established that the alleged contemnor is unableto comply with the terms of the order. The Court haspreviously adopted specific factors to determine whatspecific safeguards are required to make a civilproceeding fundamentally fair under due process. Thefactors are 1) the nature of the private interest that willbe affected; 2) the comparative risk of an erroneousdeprivation of that interest with and without additional orsubstitute procedural safeguards; and 3) the nature andmagnitude of any countervailing interest in not providingadditional or substitute procedural safeguards.

Here, the private interest at stake is a loss of libertythrough imprisonment, which is at the core of the libertyprotected by due process. Turner’s incarceration violateddue process because he received neither counsel nor thebenefit of alternative procedural safeguards, which mayinclude notice to the Defendant that his ability to pay isa critical issue in the contempt proceeding, the use of afinancial form to determine financial status, anopportunity to respond at the hearing regarding financialstatus, and an express finding by the court that theDefendant has an ability to pay. In this case, Turner hadno clear notice that ability to pay is the critical questionfor civil contempt, nor was he provided a financial formdesigned to determine financial status. Also, the courtdid not make a specific finding regarding ability to pay.In these circumstances, Turner’s incarceration violateddue process and his contempt judgment was vacated.

J.D.B. v. North Carolina131 S. Ct. 2394 (2011)Miranda Warning – Children

The juvenile petitioner was 13 years old. He was stoppedand questioned by the police when he was observednear two home break-ins. Several days later, a digitalcamera matching the description of the stolen propertywas found at the juvenile’s school and had been seen inhis possession. A detective visited the school, where auniformed police officer escorted the juvenile from hisclassroom to a conference room. Police and schooladministrators questioned the juvenile for 30 minutes.They did not read him his Miranda rights beforequestioning him, and they did not tell him he could callhis guardian or that he was free to leave. After thejuvenile confessed to the crime, he was told by thedetective that he could refuse to answer questions andwas free to leave. The juvenile was later charged andmoved to suppress his statements. The lower courts allfound that the statement was admissible and that thejuvenile’s age is not relevant to the determination ofwhether he was in custody.

The Supreme Court held that a child’s age is part of theMiranda custody analysis. Custodial police interrogationentails inherently compelling pressures that can inducea “frighteningly high percentage” of people to confess tocrimes they never committed. That risk is all the moreacute when a juvenile is the subject of the interrogation.

Whether a suspect is “in custody” is an objectivedetermination involving the circumstances surroundingthe interrogation and whether a reasonable personwould have felt free to terminate the interrogation andleave. A child’s age may affect how a reasonable personwould have perceived his ability to leave. Since childrenare generally less mature and responsible than adults,they are more vulnerable or susceptible to outsidepressures. Because there is a history of laws and judicialrecognition that children cannot be viewed as miniatureadults, there is no justification for a different approachwith the Miranda inquiry. If the child’s age was known tothe officer at the time of the interview, or would havebeen objectively apparent to the officer, age should be afactor for making “in custody” determinations. Accordingto the Court, a child’s age will not be determinative andmay not be significant in every case. But the child’s ageis a factor that courts cannot ignore. The case wasremanded to the lower courts for a determination ofwhether the juvenile was “in custody,” taking intoaccount all relevant circumstances of the interrogation,including the age of the juvenile.

Pepper v. United States131 S. Ct. 1229 (2011)Sentencing Remand – Consideration of New Factors

The Defendant was facing an advisory guidelines rangeof 97 to 121 months. The government filed a 5K1.1departure motion and argued for a sentence with a 15%reduction from the range due to the Defendant’scooperation. Despite the government’s recommendation,the district court sentenced the Defendant to 24 monthsimprisonment. The government appealed the sentenceand the Eighth Circuit remanded for a re-sentencinghearing. At the re-sentencing, the Defendant hadalready served the 24 month sentence and commencedsupervised release. He offered evidence that he was nolonger a drug addict, had completed a 500-hour drugprogram while in custody, was enrolled in communitycollege, achieved good grades, and that he was workingpart-time. The district court again imposed a 24 monthsentence. The government appealed a second time, andthe Eighth Circuit reversed and remanded, holding thatpost-sentencing rehabilitation efforts could not beconsidered as a factor supporting a variance from thesentencing guidelines range. At a third re-sentencinghearing, the Defendant received a 65-month prison termwhich was affirmed by the Eighth Circuit.

The Supreme Court held that when a Defendant’ssentence has been set aside on appeal, a district courtat re-sentencing may properly consider evidence of theDefendant’s post-sentencing rehabilitation. This isconsistent with the concept that the punishment shouldfit the offender and not merely the crime. This is alsoconsistent with 18 U.S.C. § 3661, which states thatthere is no limitation placed on the information asentencing court may consider concerning the




Defendant’s background, character, and conduct. Post-sentencing rehabilitation evidence may support adownward variance from the advisory guideline range.

DePierre v. United States131 S. Ct. 2225 (2011)Definition of cocaine base

Federal law defines cocaine-related drug offense bydistinguishing those crimes involving a “mixture orsubstance containing a detectable amount ... of cocaine,its salts, optical and geometric isomers, and salts ofisomers” from those crimes involving “cocaine base.”The amount or weight of cocaine base that will triggermandatory minimum sentences is far less than theweight required when cocaine is involved. The statutedoes not refer to “crack cocaine” in any provision. Theterm “cocaine base” has been equated with “crackcocaine” in many instances.

The Supreme Court reviewed whether the term “cocainebase” as used in the federal drug statute referred tococaine in its chemically basic form or exclusively to“crack cocaine.” The Court noted that cocaine is derivedfrom the leaf of a coca plant that is processed withwater, kerosene, sodium carbonate and sulphuric acid toproduce a paste-like substance.The coca paste whendried can be vaporized and inhaled. Coca paste can alsobe dissolved in water and hydrochloric acid to producecocaine hydrochloride which is a salt (not a base) andgenerally comes in powder form, or “powder cocaine.”Cocaine hydrochloride can be converted into cocaine inits base form by combining powder cocaine with waterand base (such as sodium bicarbonate), which forms asolid substance that can be cooled and broken into smallrock-like pieces and smoked (commonly referred to as“crack cocaine”). Alternatively, powder cocaine can bedissolved in water and ammonia, and with the additionof ether, a solid substance separates and can be smoked(known as “freebase”). Freebase, coca paste, and crackcocaine all are cocaine in its basic form, while powdercocaine in its salt form is different. For purposes of thefederal drug laws, “cocaine base” means not just crackcocaine, but any cocaine in its chemically basic form.Cocaine base reaches more broadly than just crackcocaine.

Abbott v. United States131 S. Ct. 18 (2010)Federal Firearm Offenses

This case involved two petitioners who were eachcharged with drug and firearm offenses. One of thecharges was for using or carrying a firearm during adrug crime or a crime of violence in violation of 18U.S.C. § 924(c), which carries a five-year, mandatoryminimum sentence that must run consecutive to anyother sentence, except to the extent that a greaterminimum sentence is otherwise provided by 924(c) orby any other provision of law. One of the petitionersreceived a mandatory minimum of 15 years on acompanion felon in possession of firearm count, the

other petitioner received a mandatory minimum of 10years for his underlying drug offense. Both argued thatthey should not be subjected to the consecutiveminimum sentence under 924(c) since they receivedhigher minimum sentences on companion charges.

The Supreme Court rejected the Petitioners’ arguments.The Court held that a Defendant is subject to the highestmandatory minimum specified for his conduct in section924(c), unless another provision of law directed toconduct proscribed by 924(c) imposes an even greatermandatory minimum. The “except clause” of 924(c)refers only to a greater minimum sentence otherwiseprovided by section 924(c) or to any other provision oflaw that proscribes the same conduct that is proscribedin 924(c) – possessing a firearm in connection with apredicate crime. The Court rejected the argument thatthe “except clause” applies whenever any count ofconviction requires a greater minimum sentence thanthe sentencing provisions of 924(c).

Swarthout v. Cooke131 S. Ct. 859 (2011)Parole and Federal Habeas Review

California has a parole statute that requires the paroleboard to set a release date unless it determines thatpublic safety requires a more lengthy period ofincarceration. If parole is denied, the inmate may seekjudicial review in a state habeas petition. In this case,the petitioner challenged a denial of parole through theCalifornia state courts. He then sought federal habeasrelief challenging the parole board’s determination. The9th Circuit reversed, holding that California’s parole lawscreated a liberty interest protected by the Due ProcessClause and that the state courts had made anunreasonable determination of the facts in light of theevidence.

The Supreme Court reversed, holding that federalhabeas review is not available to review the Californiastate parole board determination. Federal habeas reliefdoes not lie for errors of state law. The federal habeasstatute provides for review only if the state prisoner is incustody in violation of the United States Constitution orlaws of the United States. As for due process, the libertyinterest is a state interest created by California law.There is no right under the federal Constitution to beconditionally released before the expiration of a validsentence. The state is required to provide fairprocedures when it creates a liberty interest in paroledeterminations, but those procedures are minimal. Thefederal appellate court should have only reviewed theprocedures offered by California – it should not havereviewed the state court decisions on the merits.


e

Instead of discussing the most recent set of post-convictiondecisions, I want to discuss a live issue in the post-conviction world: The propriety of waivers of post-conviction rights. (I’ll pick up the recent substantive post-conviction decisions in the next issue of the newsletter.)

Recently, prosecutors in a number of Missouri jurisdictionshave required, as a condition of a plea bargain agreement,that the Defendant waive his right to file a post-convictionmotion, which would typically be a motion under SupremeCourt Rule 24.035. The matter is now before the MissouriSupreme Court in the cases of Krupp v. State, and Cooperv. State, discussed below.

One important issue with regard to such waivers is theethical responsibility of prosecutors and defense counsel. Inresponse to a request by the Missouri Public DefenderSystem, the Advisory Committee of the Missouri SupremeCourt issued Formal Opinion 126 on May 19, 2009. Thatopinion states,

Waiver of Post–Conviction Relief

We have been asked whether it is permissible fordefense counsel in a criminal case to advise theDefendant regarding waiver of the right to seek post-conviction relief under Rule 24.035, including claimsof ineffective assistance by defense counsel. Weunderstand that some prosecuting attorneys haveexpressed intent to require such a waiver as part ofa plea agreement.

It is not permissible for defense counsel to advise theDefendant regarding waiver of claims of ineffectiveassistance of counsel by defense counsel. Providingsuch advice would violate Rule 4–1.7(a)(2) becausethere is a significant risk that the representation ofthe client would be materially limited by the personalinterest of defense counsel. Defense counsel is not aparty to the post-conviction relief proceeding butdefense counsel certainly has a personal interestrelated to the potential for a claim that defensecounsel provided ineffective assistance to theDefendant. It is not reasonable to believe thatdefense counsel will be able to provide competentand diligent representation to the Defendantregarding the effectiveness of defense counsel'srepresentation of the Defendant. Therefore, underRule 4–1.7(b)(1), this conflict is not waivable.

We have also been asked whether it is permissible fora prosecuting attorney to require waiver of all rightsunder Rule 24.035 when entering into a pleaagreement. We believe that it is inconsistent with theprosecutor's duties as a minister of justice and theduty to refrain from conduct prejudicial to theadministration of justice for a prosecutor to seek awaiver of post-conviction rights based on ineffectiveassistance of counsel or prosecutorial misconduct.See, Rules 4–3.8 and 8.4(d).

We note that at least three other states have issuedopinions consistent with our view.

We do not believe the Rules of Professional Conductprohibit a defense counsel and prosecutor fromentering into a plea agreement that involves waiverof other post-conviction rights, unless such a waiverviolates the Constitution or other laws. Analysis ofwhether it would violate the Constitution or otherlaws is beyond the scope of this opinion.

What Does this Mean for Daily Practice?

Under Supreme Court Rule 5.30(b), formal opinions arebinding on attorneys. The final determination aboutenforcing waivers will be made by the courts, and thecurrent crop of decisions is discussed below. But for thosewhose eyes will glaze over if they have to read about that,here’s my take on what to do when the prosecutor proposesa really good deal that requires a waiver of the right toassert claims of ineffective assistance of counsel andprosecutorial misconduct? The answer isn’t simple. We needto be mindful of our ethical responsibilities while preservingour clients’ interests. I suggest that if we can maintain aunited front on this issue, the problem is likely to be solved.Possible courses of action include:

1. Telling the prosecutor that under Formal Opinion 126, he/she is ethically barred from requiring a waiver as a condition of the plea agreement. (Remember that you have a responsibility to report ethical violations to the disciplinary counsel; you can tell the prosecutor you would HATE to have to do that.)

2. Telling the client that you cannot advise him/her on whether to accept the plea agreement, and assisting him/her to request new counsel from the court.


Post Conviction Update:

Waivers of Post-Conviction Relief

by Elizabeth Unger Carlyle © 2011

“Post-Conviction News” >p19

3. Asking the judge to enforce the plea agreement without the waiver, suggesting that he/she shouldn’t enforce an agreement that has been found to be unethical.

4. Finally, although this hasn’t come up in a case as far as I know, direct appeal counsel should not ask clients to waive possible claims of ineffective assistance of appellate counsel so that direct appeal counsel can handle the PCR. According to Formal Opinion 126, the conflict of interest created by asking a client to forego claims concerning the attorney’s ineffectiveness is not waivable.

Remember that the MACDL strike force can help you withethical issues, and that the Amicus Committee can helpwith briefing. ASK!

Here’s the Current Situation in the Courts:

Formal Opinion 126 was cited in a concurring opinion byJudge Wolfe in Burgess v. State, 2011 WL 2848393 (Mo.banc July 19, 2011). In Burgess, the court of appeals hadenforced the waiver. The Supreme Court remanded forfindings of fact and conclusions of law by the circuit court,thus punting the issue of enforceability of the waiver.However, the issue is directly before the Court now. TheEastern District Court of Appeals held, in Krupp v. State,2011 WL 795752 (Mo. App. E.D. March 8, 2011), that awaiver of post-conviction rights was proper, and went on tofind that Krupp’s waiver (made on the recommendation ofcounsel) was knowing and voluntary. The Court cited itsprevious decision in Jackson v. State, 241 S.W.3d 831 (Mo.App. E.D.2007), and noted that Krupp’s plea proceedingoccurred before the issuance of Formal Opinion 126. Thus,the Court reasoned, neither trial counsel nor the prosecutordid anything wrong. In light of the fact that the effect ofFormal Opinion 126 had not yet been addressed in Missouricase law, the Eastern District ordered the case transferredto the Missouri Supreme Court, where it is now pending,with the final brief filed July 18. (The Eastern District hadalso upheld a waiver of Rule 24.035 rights in Cooper v.State, 2011 WL 532213 (Mo. App. E.D. February 15, 2011.)As in Krupp, defense counsel in Cooper recommended thewaiver, and signed it along with the prosecutor. This casehas also been transferred.)

The case of Dunkin v. State, 2011 WL 3273474 (Mo. App.W.D. Aug. 2, 2011), presents a slightly different proceduralposture. In Dunkin, the Defendant was convicted of firstdegree murder after a jury trial. The state offered to allowthe court to sentence her for second degree murder if shewaived her rights to direct appeal and to file a motion underSup. Ct. R. 29.15. The court of appeals noted, “Dunkin'scounsel advised the court that while he discussed withDunkin waiver of her right to direct appeal, which sheagreed to do, for ethical reasons he did not discuss with hisclient waiver of her right to file a Rule 29.15 post-convictionrelief motion, especially as it may include ineffectiveassistance of counsel claims.” The trial court then examinedMs. Dunkin in open court concerning her waiver. The courtof appeals approved this procedure, and dismissed Ms.Dunkin’s Rule 29.15 motion as a result of the waiver. Thiscase is likely also on its way to the Missouri Supreme Court.

An issue none of the opinions appear to address directly iswhether the Defendant is entitled to new counsel to advisehim/her on the propriety of the waiver. It would appear thatif trial counsel cannot ethically advise the client on thepropriety of a plea agreement, the client has been deprivedof the right to counsel.

As Judge Wolfe noted, this issue has arisen in several otherstates. In addition to the states cited in his concurrence, thestate of Virginia recently issued a similar ethical opinion.Concurrently with the discussion of this issue on the MACDLlistserv, a discussion also arose on the same topic on thelistserv for capital habeas attorneys maintained by Prof. EricFreedman of Hofstra University. In federal court, the issuehas been percolating for some years. At least some federalplea agreements now provide that the waiver of post-conviction relief does not cover claims of ineffectiveassistance of counsel and prosecutorial misconduct. If youare in federal court in Missouri, you should remind theprosecutor that he/she is bound by the Missouri canons ofethics.

Watch this space for further developments on this issue.


Post-Conviction News (from page 18)

President

Brian GaddyGaddy Geiger & Brown PC

2345 Grand Blvd.,Ste. 675 s Kansas City, MO 64108Ph: (816) 221-8989 s Fx: (816) 221-8988

Em: [email protected]

Vice President

Jeff EastmanKeleher & Eastman

403 N.W. Englewood Road s Gladstone, MO 64118Ph: (816) 452-6030


Secretary

Kim BenjaminBenjamin Law Firm, LLC

8019 E. 171st Street s Belton, MO 64012Ph: (816) 322-8008 s Fx: (816) 322-8010


Treasurer

Kevin CurranAssistant Federal Public Defender

1010 Market St. #200 s St. Louis, MO 63101Ph: (314) 241-1255 s Fx: (314) 421-3177


MACDL 2011-2012Officers


The Missouri State Public Defender has significantly changed its private attorney contract program.

On July 1, 2011, the State Public Defender retained five Regional Contract Coordinators, privateattorneys, to assist in the assignment of cases to members of the private bar. As many of you are aware,our private contracting function outgrew our ability to timely and effectively assign private counselwithout dedicating more staff, which we do not have. We think this new use of Regional ContractCoordinators will help us bridge that gap.

The Contract Coordinators will be actively recruiting and assigning cases to private attorneys who haveagreed to serve as panel attorneys for the public defender system. They will also be monitoring thequality of panel attorney representation more than we have been able to do internally. The ContractCoordinator serves as the panel attorney contact for contract case assignments and for any problems thatmay arise concerning cases assigned to panel attorneys.

We encourage all members of MACDL toconsider signing up to become panelattorneys. Applications can be found on ourwebsite (www.publicdefender.mo.gov) orobtained by contacting the ContractCoordinator for your region. All panelattorney applicants agree to serve on a caseassignment rotation within selected judicialcircuits for those case types for which theyare qualified. Cases will be assigned as thepanel attorney’s name rotates on a list of allother panel attorneys who agree to takedesignated case types within a judicialcircuit.

The Contract Coordinators will also beresponsible for assigning cases to volunteerattorneys who have indicated a willingnessto take one or more public defender casespro bono. If you or anyone you know hasexpressed a willingness to take cases probono from the public defender system,please direct them to the ContractCoordinator covering your region.

We believe these changes to our privateattorney contract program will improve ourcontracting function and significantly reducethe time it takes to secure private counsel inpublic defender cases.

Daniel J. GralikeDeputy Director

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

Missouri Public Defender Seeks

New Panel Attorneys for Case Contracts

Region 1 - Michelle Monahan - 314-863-4675

Region 2 - Max Mitchell – 660-826-6222

Region 3 - Daniel Gralike – 573-882-9855

Region 4 - Martin/Vorhees – 417-782-5900

Region 5 - Sara Burton – 636-797-3004

Documents

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