Case summaries for Aug. 12 - Aug. 18, 2022

DWI | Employment Security | Juvenile | Post-Conviction

DWI

Time of Intoxication Inferred 
On judicial review of the Director of Revenue’s decision to suspend appellant’s license, the Director has the burden of proving that appellant’s arrest for an alcohol-related driving offense was supported by probable cause and that appellant had at least .08% blood alcohol content. About three minutes after appellant crashed in a ditch, appellant tested at .257% blood alcohol content, which would be hard to achieve in that time. Those facts constitute probable cause to believe, in that they “demonstrate to the senses of a reasonably prudent person that [,]” appellant was already intoxicated when he crashed. 
Ruben Vasquez vs. Director of Revenue 
(Overview Summary) 
Missouri Court of Appeals, Western District - WD84700 

Employment Security

Insufficient Postage Loses Appeal Rights 
An appellate court must examine its jurisdiction sua sponte. For an appeal from the Labor and Industrial Relations Commission’s decision on employment security, statute determines the filing deadline without exception, and appellate rule allowing late filings does not apply to employment security. Appellant mailed the notice of appeal without sufficient postage, and so did not meet the deadline. Court of Appeals must dismiss the appeal. 
Hector Ruiz, Respondent, vs. Dotec Corporation, Appellant, and Division of Employment Security, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110201 

Juvenile

Interrogation with Juvenile Officer Okay 
Statute requires immediate delivery of arrested juvenile to juvenile officer, but not directly to the juvenile office, nor to the juvenile justice center. Arresting officer took arrested juvenile to the sheriff’s office to await the arrival of the juvenile officer and juvenile’s parent. Juvenile’s waiver of rights under the line-by-line guidance of the juvenile officer, who stayed during the ensuing interrogation, constituted sufficiently reasonable statutory compliance to support the circuit court’s denial of a motion to suppress the resulting statements. 
State of Missouri, Respondent, vs. Keyshawn Omari Burton, Defendant/Appellant. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109890  

Post-Conviction

Opposition to Lineup Identification Would Have Been Meritless 
Witness identification is subject to suppression only for unduly suggestive police conduct that made the identification unreliable, and the only suggestive conduct came from victim’s mother, not from police procedure. A motion to suppress would therefore have been meritless. Trial counsel’s decision against making a meritless motion does not show that trial counsel was ineffective. No hearing was necessary for the circuit court to deny post-conviction relief. 
John Billingsley, Appellant, v. State of Missouri, Respondent.         
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED110098

No Ruling on Extension of Time, So Motion Untimely, and Inquiry Required 
Timely filing is necessary for relief, so circuit court cannot rule on the merits of an amended motion untimely filed, unless an exception applies. Exceptions include abandonment, which means that appointed counsel filed the motion untimely, and with no fault of movant. Untimely filing by appointed counsel requires circuit court to inquire into whether abandonment occurred. Appointed counsel filed a motion for extension of time, on which the circuit court never ruled, then filed the motion outside the unextended time. That motion was untimely, but the circuit court made no inquiry into abandonment, and ruled on the abandoned motion. The Court of Appeals remands the action to circuit court for an inquiry into abandonment so that the circuit court will know whether to rule on the amended motion or on the initial motion. 
Donald Hornsey, Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109740  

No Viable Defense, No Prejudice 
On a claim of ineffective assistance of trial counsel, the elements are substandard performance and resulting prejudice. Prejudice results from trial counsel’s failure to call a witness only when that witness’s testimony would have supported a viable defense. The defense proffered in the motion was father’s influence on victim’s accusation. In support, the motion alleged that a witness would have testified in support. But the testimony, as alleged in the motion, was not relevant to the victim’s accusation so it did not support that defense. And, even if the motion had alleged testimony that supported a viable defense, the allegation had no support in the record, because nothing at the evidentiary hearing on the motion showed what the testimony would have been. Therefore, movant did not carry the burden of proof, and circuit court did not err in denying relief. 
Chauncy Taylor, Movant/Appellant, vs. State of Missouri, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District - ED109692 

COVID-19 No Excuse for Late Filing 
The elements of a claim for relief include timely filing, or a recognized excuse for late filing, which includes third party interference. Third party interference means that the movant did everything reasonably possible to file timely and “any tardiness results solely from the active interference of a third party beyond the [movant]’s control.” At a hearing on the State’s motion to dismiss, movant testified that COVID-19 lockdown denied him access to the prison law library, but the record also showed that movant had access before that. Movant did not carry his burden of proving timely filing, or a recognized excuse for late filing, so the circuit court did not err in granting the motion to dismiss. 
RICK LEE MCCARTNEY, Appellant v. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals, Southern District - SD37434