Case summaries for Aug. 4 - Aug. 10, 2023

Appellate | Attorneys | Criminal | DWI | Post-Conviction

Appellate

Partially final criminal judgment subject to partial appeal 
In a criminal action, judgment is final and subject to appeal when the circuit court imposes sentence, and not before. Circuit court found driver guilty on all counts and imposed sentence on all but one count. As to that one count, the circuit court suspended imposition of sentence, so the Court of Appeals dismisses the appeal as to that count and reviews the judgment on the remaining counts. A motion in limine to exclude evidence, without an objection to the evidence when offered, preserved no error in admitting that evidence. No plain error occurred when admitting that evidence because the evidence arose from an investigatory traffic stop that had support in defendant’s erratic driving and other conduct suggesting intoxication.  
State of Missouri, Respondent, vs. Paul W. Bodenhamer, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110766

Attorneys

No fee-splitting with non-lawyers 
Missouri courts do not enforce, for any party, any contract that contravenes Missouri law. Missouri law bars a law firm from sharing its fees for legal services with a non-lawyer. Appellants referred customers to a law firm for release from time share agreements. For some referrals, the parties’ contract provided for customers paying the law firm, and the law firm remitting a portion of those payments to appellants. That remission constituted unlawful fee-splitting, on which appellants had no right to any payment, so the circuit court did not err in denying appellants' relief. For other referrals, appellants paid the law firm a flat fee, but the parties’ contract did not define the facts on which the fee was due. Therefore, on appellants’ claim for unjust enrichment, appellants were unable to show how many fees the law firm inequitably retained.  
NATIONWIDE TRANSFER LLC, D/B/A NATIONWIDE SETTLEMENT SOLUTIONS, and YOUR TIME SHARE STOPS HERE, LLC, D/B/A AMERICAN SETTLEMENT SERVICES, Appellants vs. NEALLY LAW, LLC, and JOSHUA NEALLY, Respondents 
Missouri Court of Appeals, Southern District - SD37267

Criminal

Probation extended by scheduling of hearing 
Statute controls circuit court's authority during probation and provides how a circuit court may extend that authority: manifest an intent to convene a hearing on revocation, notify defendant, and make every reasonable effort to do both before the probation expires. Scheduling a probation hearing satisfied those requirements, so the circuit court extended its authority, and revoked probation. Judgment granting habeas corpus reversed and record quashed.  
State of Missouri ex rel. Andrew Bailey, Relator, vs. The Honorable Bruce F. Hilton, Circuit Judge of St. Louis County, and Joan M. Gilmer, Circuit Clerk, St. Louis County Circuit Court, Respondents. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED111501

Testing the elements shows no prejudice 
In a criminal action, an instruction on any lesser included offense supported by the evidence is due on request, but prejudice depends on “testing the elements.” On a charge of first degree murder, the circuit court submitted instructions on lesser included offenses, but without sudden passion arising from adequate cause. No prejudice resulted because the jury found defendant guilty on murder in the first degree, thus finding the element of deliberation, which negated the element of sudden passion in the refused instructions. Circumstantial evidence was sufficient to authenticate records stored and retrieved by computer. When an exhibit is computer generated without human entries, “records generated automatically by a computer are not hearsay because they do not contain the statement of any human declarant.” The authenticity of such documents depends on the accuracy of the computer system. For such records, there is no Confrontation Clause issue. Statute providing the sentence for armed criminal action provided a minimum time of imprisonment but no maximum, so a sentence of life imprisonment was authorized by statute.  
State of Missouri, Respondent, v. John M. Hamm, Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110472

Entrapment refuted 
Testimony and Google Earth exhibits showed that defendant knew that he was selling methamphetamine within 2,000 feet of a school. On a defense of entrapment, the elements include a defendant not willing and able to commit the solicited offense, but the State refuted defendant’s allegations with evidence of defendant’s efforts to coordinate and fulfill requests for methamphetamine. Also, “[e]vidence of a defendant’s prior use, possession, or sale of drugs, or ability to supply drugs upon request constitutes evidence of predisposition sufficient to negate a defense of entrapment.” 
STATE OF MISSOURI, Plaintiff-Respondent v. ALPHONSE D. AVILA, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37718

DWI

One wreck, multiple convictions, no double jeopardy 
When the General Assembly intends cumulative punishments, as shown by differing elements in each offense, one set of facts may constitute multiple offenses without double jeopardy. The statute defining leaving the scene of an accident provides that each injury to person or property constitutes a separate offense. So when defendant driver struck a person and then struck a car, without ever stopping, two convictions for leaving the scene of an accident were possible, without double jeopardy. A conversation between a juror and a State witness about youth volleyball did not constitute juror misconduct, and the circuit court did not err in denying a mistrial.  
STATE OF MISSOURI, Plaintiff-Respondent vs. BENNY LYNN JOHNSON, Defendant-Appellant 
Missouri Court of Appeals, Southern District - SD37373

Post-Conviction

Choice of no objection supported all-or-nothing defense 
“Failure to call a witness only rises to the level of ineffective counsel if that witness’s testimony ‘unqualifiedly support[s]’” a defense; and a witness to an argument that preceded a shooting did not exonerate defendant, so the choice not to call that witness did not show that trial counsel was ineffective. The State’s acquittal-first closing argument was objectionable, but defendant wanted an all-or-nothing defense, so trial counsel’s choice to make no objection was a sound strategy. No prejudice appeared because the jury had the correct instructions, with lesser included offenses, and still chose the greatest offense.  
Ray Johnson vs. State of Missouri 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD85293

Abandonment inquiry required 
In a claim for post-conviction relief, timely filing is an element, for both the initial motion and an amended motion. Rule governing time for filing an amended motion sets an original due date 60 days from the start date. Rule governing time generally does not count the last day if the last day is a Saturday, Sunday, or legal holiday; and continues the due date to the next day that is not a Saturday, Sunday, or legal holiday. The rule governing amended motions also allows an extension of 30 days. But that extension adds 30 days from the original 60 days, not 30 days from the original due date, so the general rule’s continuation of the original due date does not apply. Post-conviction counsel filed the amended motion one day too late. A late filed amended motion raises a presumption that post-conviction counsel abandoned movant, which forgives the late filing, and gives the circuit court authority to rule on the amended motion. It also necessitates an inquiry into whether abandonment occurred to determine whether the circuit court must rule on the amended motion or the initial motion. Judgment on the merits reversed and remanded for an inquiry into whether counsel abandoned movant. 
RANDALL OWENS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37515