Case summaries for May 17-23, 2024

Criminal | Evidence | Family | Post-conviction | Workers' compensation

Criminal

Persistent offender status found
Circuit court authority to try a felony charge came from the filing of the charge by indictment or information. The statutes provided for a preliminary hearing to determine probable cause to proceed, but the conduct of that procedure did not determine the circuit court’s authority, so whether the victim or the investigating law enforcement officer was the complainant made no difference. Statutes provided enhanced sentences and sentencing without jury on a finding of persistent offender status, defined by previous findings of guilt. Previous findings of guilt were not subject to collateral attack and there was no requirement that “the State, in a subsequent prosecution, long after the prior judgments were entered, must affirmatively prove, time and again, that prior courts did not err[.]”
(Overview summary)
State of Missouri vs. Rhamir Jaheim Washington
Missouri Court of Appeals-Western District - WD86417

Propensity evidence okay
On charges of a sexual nature against a child, constitutional provisions set forth the foundation for admitting propensity evidence, which included a nature more probative than prejudicial. Such evidence included uncharged offenses showing a “similarity of the acts and the ages of the victims” in detail, and an instruction to decide guilt on the offense charged only confined the jury to the charges. A statute provided the foundation for admitting a child victim’s out-of-court statements on circumstances supporting such statement’s reliability, including spontaneity, which the State showed despite a delay in disclosing the statement. An untimely objection and request for mistrial preserved only plain error. No plain error occurred when the circuit court allowed expert testimony that was sufficiently generalized and did not comment on witness credibility with instructions to disregard testimony objected to. Defendant proffered evidence, rejected under the Rape Shield Statute, under different theories than argued on appeal, and so did not preserve any such issue for appellate review.
(Overview summary)
State of Missouri, Respondent, vs. Michael George Smith, Defendant/Appellant.
Missouri Court of Appeals-Eastern District - ED111569

Sentencing on mistaken reading of law required remand
No plain error occurred when the circuit court accepted defendant’s repeated written waivers of counsel. On defendant’s waiver of counsel, the circuit court’s Faretta hearing was sufficient for the Missouri Court of Appeals to decline plain error review. Once defendant waived counsel during the guilt phase, no law required a second waiver of counsel for the sentencing phase. Asking for standby counsel did not negate the waiver or render the waiver equivocal. To deny standby counsel was open, evident, and obvious error, but defendant did not show that any manifest injustice of miscarriage of justice resulted, because overwhelming evidence of guilt prevented any showing that the lack of standby counsel was outcome-determinative. As to jury instructions, defendant preserved no matter for appeal by failing to make an objection including the lack of sudden passion language in the verdict director, and the Missouri Court of Appeals declined plain error review. As to the statute governing sentencing, an earlier version allowed consecutive sentencing and a later revision mandated consecutive sentencing. The later version controlled, the circuit court mistaken believed, and imposed consecutive sentences because it believed that there was no discretion. But the earlier version controlled because it was in effect when the events occurred, so the Court of Appeals remanded the judgment solely for the circuit court to exercise its discretion as to whether sentences shall be consecutive or concurrent.
(Overview summary)
State of Missouri, Respondent, vs. Dewey Austin Barnett, Appellant.
Missouri Court of Appeals-Eastern District - ED111041
 

Evidence

No prejudice from reference polygraph
On charges of statutory sodomy in the first degree, defendant offered evidence that victim had fabricated the events after hearing similar allegations from a third person. In support, defendant offered a witness to testify that the third person had made those allegations but no evidence that victim ever heard the allegations. No abuse of discretion occurred when the circuit court excluded the witness’s testimony. Evidence of a defendant’s offer or refusal to take a polygraph was inadmissible. A witness made a passing reference to defendant’s refusal of a polygraph but that did not require a mistrial, and defendant could show no prejudice, especially when defendant did not ask for a curative instruction.
STATE OF MISSOURI, Respondent vs. JONATHAN G. NEWTON, Appellant
Missouri Court of Appeals-Southern District - SD37917

Impeachment by collateral matter was limited
Plaintiff cross-examined an expert, who answered by reference to a post-operative x-ray, and plaintiff did not object to that answer. On re-direct, the expert again referred to the post-operative x-ray, and plaintiff objected to that testimony as beyond the scope of cross-examination. In overruling that objection, the circuit court did not abuse its discretion, because plaintiff had already opened the door to that matter. “If [plaintiff] believed the elicited testimony was non-responsive, the proper remedy was through a motion to strike.” On appeal, plaintiff argued that the expert offered a new and undisclosed expert opinion, which did not preserve the objection made at trial. A party could impeach a witness by reference to a collateral matter, like defendant’s practice in other cases, but was bound by the witness’s answers. The circuit court did not abuse its discretion in barring further impeachment as to those other cases because the circuit court had a duty to restrain the proliferation of issues.
(Overview summary)
Cherise Brock and Anthony Brock, Appellants, vs. Dr. Rishad Shaikh, Respondent.
Missouri Court of Appeals-Eastern District - ED111450

Family

Investigation and social study conducted as ordered
In an action to terminate parental rights, a statute mandated the circuit court to order an investigation and study. The circuit court first issued five orders, one for each of the five children, by the Children’s Division Ozark County office. The circuit court then issued a sixth order for all five children by the Children’s Division without restriction. The report submitted did not comply with the first five orders. But the report complied with the sixth order. “Mother presents no challenge to the [sixth order], or argument that [the] preparation of the report was not responsive therewith.” The Court of Appeals affirmed the judgment of termination.
IN THE INTEREST OF A.R.S., J.D.S., J.E.S., L.K.S., and T.E.S., MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Respondent vs. G.D.S., Appellant
Missouri Court of Appeals-Southern District - SD38292, SD38293, SD38294, SD38295, and SD38296 Consolidated

Post-conviction

No evidence of alibi
The elements of a claim for ineffective assistance of counsel included counsel’s substandard performance and resulting prejudice. Where the performance was investigation, movant must show that the information not found “would have aided and improved the defense.” On charges of stalking, movant claimed that trial counsel failed to show an alibi through employment records. But the employment records did not contradict the State’s evidence because movant’s diary showed that movant committed the acts of stalking on days that the claimant worked. Trial counsel’s decision not to make use of the employment records had a soundly strategic purpose.
(Overview summary)
Sheila A. Wallis vs. State of Missouri
Missouri Court of Appeals-Western District - WD85887

Unprofessional conduct did not prove ineffective assistance
The elements of a claim for post-conviction relief based on ineffective assistance of counsel include counsel’s substandard performance to a degree that undermines confidence in the verdict. On charges of first degree murder and armed criminal action, movant’s theory was that he shot victim in the back in self-defense. Movant alleged that movant returned fire after victim had shot movant through the arm from behind and that trial counsel was ineffective for procuring no expert to prove that defense. But movant identified no available expert to support the defense. And movant’s wound was from front to back, as shown by uncontradicted expert testimony at the hearing on the motion, so no expert would have helped that defense at trial. Evidence on victim’s wounds was not part of the motion so it was not an issue on appeal. Evidence of how trial counsel spent resources, leaving no “money to hire any such expert [wa]s irrelevant” even if it showed a violation of the rules of professional conduct, so the circuit court did not err in excluding that evidence. And such evidence was cumulative, so its exclusion did not prejudice movant.
DAVID K. HOLMAN, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals-Southern District - SD37744

Limits of investigation discussed
On a claim for ineffective assistance of counsel, movant must show prejudice resulting from substandard performance. When the performance at issue is investigation and choice of witnesses, the movant must show that the omitted actions would have changed the outcome at trial. At trial, movant argued that contraband found in movant’s residence belonged to movant’s brother. Nevertheless, trial counsel had soundly strategic reasons for choosing not to call the brother at trial: brother’s testimony was unnecessary to advance the defense: it appeared unlikely that brother would have taken the blame; and, even if brother took the blame, any presentation less than credible would have done more harm that good. Those considerations supported trial counsel’s strategy even when unconfirmed. In support of the motion, the brother’s deposition stated that brother would have taken the blame. But the circuit court found that testimony not credible.
(Overview summary)
Jovan Tyler, Appellant, vs. State of Missouri, Respondent. 
Missouri Court of Appeals-Eastern District - ED111751

Impeachment strategy discussed
The elements of a claim of ineffective assistance of counsel include substandard performance and resulting prejudice. “Trial counsel will not be found ineffective for failing to present inadmissible evidence [,]” like prior bad acts to impeach a witness. Sound strategy supported trial counsel’s decision not to call a witness whose testimony was uncertain, unhelpful, and cumulative. Movant claimed in effective assistance of trial counsel for failure to cross-examine one witness about another witness’s practice, but the Court of Appeal need not rule on trial counsel’s performance, because other overwhelming evidence of guilt negated any prejudice.
(Overview summary)
Ralph Gilcrease, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals-Eastern District - ED111503
 

Workers’ compensation

Record supported findings on psychological condition
Statutes governing the Second Injury Fund provide an award for a claimant with a preexisting condition who acquired another work-related condition resulting in permanent total disability. The claimant showed pre-existing psychological conditions and alleged a psychological injury and disability from later work-related accident. The commission’s award was subject to judicial review for “sufficient competent and substantial evidence to support the award, i.e., whether the award is contrary to the overwhelming weight of the evidence.” Appellate courts reviewed the award objectively, not in the light favoring the award, but with deference to the commission’s credibility determinations. The commission’s credibility determinations could reasonably have included a rejection of claimant’s evidence because claimant’s evidence did not address claimant’s failure to employ prescribed treatments for the pre-existing conditions, claimant settled the later work-related accident for physical disability only and offered no record of any psychological condition resulting from the later work-related accident.
(Overview summary)
Norma Huffman vs. Treasurer of the State of Missouri - Custodian of the Second Injury Fund
Missouri Court of Appeals-Western District - WD86436