MMACJA Benchmark 11-2004
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M ISSOURI MUNICIPAL & ASSOCIATE CIRCUIT JUDGES ASSOCIATION November 2004 benchmark “An Invaluable Experience . . . Into Human Nature” by Judge A. Rex Gabbert A municipal criminal and maintained his busy private practice Inside this issue: traffic docket usually consists of a while handling a morning session of Human Nature—Rex Gabbert 1& 2 high volume of cases with various the court that usually consisted of American Judges Association— 3 offenses and a diversity of per- 130 or more cases. With a high vol-Michael McAdam sons appearing before you as ei- ume of cases, the judge was compli-You Make The Ruling 4 ther defendants or witnesses. mented by the local media for his This high volume of cases, cou- “quick common sense judgment.” Premature Sentence Void 5 pled with the different offenses One reporter wrote: His face is a im-Board Update 5 and persons in each case and lim- mobile as the Egyptian Sphinx and ited time to thoroughly conduct no one can tell from his expression Admission of Dispatch Testimony 6&7 each case, may at times be frus- what is passing in his mind as he lis-Answers to You Make 8 trating or overwhelming to you as tens to testimony . . . then like a bolt The Ruling a judge. The experience is in it- from a clear sky he eases out ’90 and Board of Directors 9 self an education into human na- 100’ days [sentences] in a low and ture that you may not have en- modulated voice.” The docket con-Calendar of Events 10 countered ...
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Answers to You Make The Ruling
Board of Directors
Calendar of Events
6&7
Admission of Dispatch Testimony
b e n c h m a r k
Important Dates: ♦MMACJA Regional Seminars -March 25, 2005—Columbia, St. Louis, Springfield, Gladstone, Sikeston
Inside this issue:
Human Nature—Rex Gabbert
A municipal criminal and traffic docket usually consists of a high volume of cases with various offenses and a diversity of per-sons appearing before you as ei-ther defendants or witnesses. This high volume of cases, cou-pled with the different offenses and persons in each case and lim-ited time to thoroughly conduct each case, may at times be frus-trating or overwhelming to you as a judge. The experience is in it-self an education into human na-ture that you may not have en-countered in your private life out-side the municipal court. If this experience has ever caused one to question your decision to serve as municipal judge, consider the case of a former municipal judge in Birmingham, Alabama eighty-four years ago and the similar ex-perience he faced on the bench and how it influenced his life. This judge began his judi-cial career by stepping behind the bench in what one reporter called the “dingy, dank, dark, and dirty back room in the city hall that is mistermed a courtroom.” He
MI S S O U R I MU N I C I P A L & AS S O C I A T E CI R C U I T JU D G E S AS S O C I A T I O N
maintained his busy private practice while handling a morning session of the court that usually consisted of 130 or more cases. With a high vol-ume of cases, the judge was compli-mented by the local media for his “quick common sense judgment.” One reporter wrote: His face is a im-mobile as the Egyptian Sphinx and no one can tell from his expression what is passing in his mind as he lis-tens to testimony . . . then like a bolt from a clear sky he eases out ’90 and 100’ days [sentences] in a low and modulated voice.” The docket con-sisted mainly of persons arrested for “drinking, using dope . . . shooting craps, thievery, vagrancy, fighting, or marital disturbances . . .” Monday mornings brought a docket from ar-rests over the preceding weekend from police raids of saloons and gam-bling dens. The caseload on Mon-days was noted as “ . . . especially heavy and odor stifling.” On one occasion, a defendant appeared before him on assault charges against a furniture reposses-sor. The evidence showed that the victim wanted to repossess the furni-ture, apparently including the defen-
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November 2004
“An Invaluable Experience . . . Into Human Nature” by Judge A. Rex Gabbert
Benchmark Editor: Todd Thornhill 625 N. Benton Springfield, MO 65806 417-864-1376 417-864-1883 (fax) Todd_Thornhill@ci.Springfield.mo.us
♦MMACJA Annual Conference – May 25-27, 2005 All events will be held at Lodge of Four Seasons in in Osage Beach.
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American Judges Association— Michael McAdam
Board Update
Premature Sentence Void
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You Make The Ruling
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M M A C J A N e w s l e t t e r
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dant’s bed, which the defendant begged him not to do since his wife was very ill and bed-ridden. The defendant struck the victim when he refused to stop the repossession. Further evidence revealed that the furniture was worth $50.00 and the defendant had already paid $94.00. The judge told the defendant to go home to his wife. “If I hear of you paying any more on the furniture I’m going to put you in jail – not for beating this man, but for – well, contempt of court.” He told the victim repos-sessor to go to his doctor and threatened to jail the victim if he again bothered the defendant. In another case, he fined a man con-victed of being drunk in public. This first con-viction resulted in a $2.00 fine, which the de-fendant borrowed the money from the judge to pay the fine. The record showed that the de-fendant was subsequently convicted a second time for the same offense. The judge doubled the fine for the second conviction, but again found himself loaning the money to the defen-dant to satisfy the fine. The judge was thought to have run out of money (or patience) because when the defendant was convicted a third time for the same offense, he was jailed rather than fined. his retirement as municipal judge Upon a year later, the judge commented that this ex-perience had been an “invaluable experience and afforded me a broad insight into human nature.” This former municipal judge did not again serve in any other judicial position until twenty-five years later when he was appointed by President Roosevelt to the United States Supreme Court. Birmingham’s former munici-pal judge now became known as Mr. Justice Hugo Black, who went on to serve some thirty-four years on the Nation’s Highest Court.
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Justice Black authored numerous opinions during his long tenure on the bench that dealt with some of the most momentous social, po-litical, and economic conflicts in American history. He became known as one of the strongest advocates for the guarantee of the Bill of Rights being applicable to the states th under the 14 Amendment of the United States Constitution. He has been ranked by the late Justice William O. Douglas and many court historians as one of the five greatest jus-tices of all times. Yet, despite the fact that Justice Black, after having resigned the mu-nicipal judgeship, went on to serve as the County Prosecuting Attorney, United States Senator, and then as Associate Justice of the United States Supreme Court for thirty-four years, it was his experience on the municipal bench of Birmingham, Alabama that most in-fluenced Black. In one of his last interviews shortly before his retirement in September, 1971, and his subsequent death eight days later after leaving the Court, Justice Black said of his experience as municipal judge: “I learned much about life in that position.” [This is the next in a series of “oldiesEditor’s note: but goodies” from past editions of Benchmark. This article first appeared in October 1996 and is reprinted with permission of the author, formerly a board mem-ber of MMACJA, and now Circuit Judge of Division 2 of the Seventh Judicial Circuit, Clay County.]
[Editor’s note: This is reprinted in tribute to our own Judge Michael McAdam of the Kansas City Municipal Court who has served as president of the American Judges Association the past year. Congratulations Mike!!!]
M M A C J A N e w s l e t t e r
YOU MAKE THE RULING By: Judge Todd Thornhill—Springfield
1. Driver was arrested with probable cause for DWI. At police department, driver was mirandized and read the implied consent law. Police officer testified that checklist was followed, blank test given before driver’s test read .000, breath sample was valid, instrument functioned properly, test re-sult was printed out, and blank test after driver’s test read .001. Prosecutor moves to introduce evi-dence of driver’s breath test, and defendant objects on basis that “the results of the second blank test showed the machine had malfunctioned and that [Missouri Department of Health] rules and regula-tions required immediate suspension of use of a breath analyzing machine that is malfunctioning.” You make the ruling. 2. At trial for possession of marijuana and meth with intent to distribute, prosecutor asks investigat-ing officer what a confidential informant told the officer. Defendant objects on basis of hearsay. Prosecutor responds that statement not offered for truth but rather to explain officer’s subsequent con-duct. The statement at issue is that a confidential informant said that defendant was selling drugs from his home at 1624 Virginia. You make the rul-ing. 3.Pro sedefendant, whose first trial resulted in a mistrial, cross examines witness in second trial as follows: “Do you recall last time [first trial] when I asked you how far you were from the vehicle when you observed the vehicle...do you recall the dis-tance I asked you, you—the point from where you were to the vehicle. I asked you that question. I remembered the answer.” Prosecutor objected on basis of improper form of impeachment. You make the ruling.
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4. At trial, rape defendant attempts to present evidence from 3 witnesses that alleged victim had earlier made 3 separate false allegations of assault (two non-sexual, one sexual) against another person. The State objects. You make the ruling. 5. In order to investigate a possible domestic assault, police officer walked up to parked car in which defendant was sitting with a woman. Defendant passed sobriety test by police offi-cer who then asked defendant for permission to search him. Defendant said that if police offi-cer had probable cause to search, “then go ahead.” Officer knew that he did not have probable cause to search defendant, but searched defendant anyway and found a joint, a plastic bag with meth residue, and a pipe for ingesting drugs. Defendant is charged with possessing controlled substance and parapher-nalia and moves to suppress the contraband found during the search. You make the ruling. Answers on page 8...
MMACJA Newsletter
PREMATURE SENTENCE VOID By:Shawn R. McCarver Municipal Judge, Cities of Park Hills, Desloge, Bismarck, Leadwood and Bonne Terre
Defendant was charged with speeding. The mu-nicipal case was certified to the circuit court of Jefferson County for trial de novo. A trial was held on August 21, 2003. Defendant was found guilty on September 19, 2003. The same day, defendant was sentenced to pay a fine of $53.00 plus court costs. Defendant appeals alleging that the judgment and sentence were void. A trial de novo of a municipal case is governed by the rules of criminal procedure applicable to misde-meanors. Rule 37.74;City of Richmond Heights v. Buehler, 644 S.W.2d 390, 391 (Mo.App.E.D. 1982). Rule 29.11(c) provides that judgment may not be rendered until the time for filing a motion for new trial has expired. Defendant has a right to file a motion for new trial within fifteen days after the trial court finds the defendant guilty. Rule 29.11(b) and (e). The right to file a motion for new trial is a valu-able right, and the right cannot be denied unless it is ex-pressly waived. This rule applies even in a court-tried case.State v. Braden, 864 S.W.2d 8, 9 (Mo.App.E.D. 1993). Any judgment and sentence rendered by the trial court prior to the expiration of the period for the filing of a motion for new trial is premature and void.State v. Hauser, 101 S.W.3d 320, 321 (Mo.App.E.D. 2003). In this case, the record does not show the defen-dant expressly waived his right to file a motion for new trial. As a result, the judgment and sentence is void. The appeal is dismissed and the matter is re-manded to the trial court. The trial court is directed to grant defendant the opportunity to file a motion for new trial or to waive his right to do so. City of Byrnes Mill v. Rice, ED835558 (Mo.App. E.D. 5-18-2004).
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MMACJA Board Update
The Association’s Board of Directors met at The Lodge of Four Seasons on October 9, 2004. The meeting focused on our continuing efforts to improve municipal judge education and plans to streamline our Association’s operations. Highlights of the meeting included plans for the forthcoming 2005 Annual Courts Conference and steps taken to make our Association’s operations more efficient. Planning for the 2005 Annual Courts Con-ference in May is well underway. Larry Butcher, this year’s Conference Chair, is organizing an excit-ing and interesting educational program. Presenters for this year include U.S. District Judges Ortrie Smith and Fernando Gaitan, and a general session on current issues in criminal law presented by Judge Frederic Rodgers. Interesting break-out sessions are also planned. A review of last year’s conference evaluations demonstrated the popularity of the ses-sion with the Missouri Court of Appeals, Southern District, and efforts are underway to repeat the ses-sion again this year. The Board took up several housekeeping items on the meeting agenda, including the Associa-tion’s tax exempt status and a modification of the duties of the Executive Secretary. President Bey-dler announced that the Association had been re-stored to tax exempt status, and he thanked Shawn McCarver and the Ad Hoc Tax Exempt Committee for their hard work and effort in accomplishing this task. The Board also consolidated and modified various duties of the Executive Secretary in regard to budgeting, accounting and financial reporting, and record keeping. The Board reminds all MMACJA members that this isyour Association. Officers and Board members always welcome your comments and sug-gestions. Your officers and Board members are listed on the Association’s website at www.mmacja.orglook forward to hearing. We from you, and to seeing all of you at the Regional seminars and the 2005 Annual Courts Conference. Your Board of Directors.
MMACJA Newsletter
ADMISSION OF DISPATCH TESTIMONY REQUIRES REVERSAL By: Shawn R. McCarver Municipal Judge, Cities of Park Hills, Desloge, Bismarck, Leadwood and Bonne Terre
Officers Tott and Lombardo, Kansas City Police, were on routine patrol when they received a dispatch th to go to 59 Street and Prospect to investigate a “party slumped over the wheel” of a parked vehicle. Upon arrival, the officers discovered a Ford Bronco, parked, with the passenger side tires up over the curb. The passenger front tire was flat. The engine was run-ning, and the brake lights were on. When one of the officers approached, the Bronco be-gan to move backward towards the patrol car. The other officer sounded the siren to get the attention of the occupant. The vehicle came to a stop, pulled slightly forward, and eventually came to a complete stop. The occupant was ordered out, and when exiting the driver’s door, stumbled, and one of the officers caught the occupant. The officer noticed bloodshot eyes, slurred speech and a strong odor of alcohol. Upon investigation, it was determined that his driver’s license was revoked. He was place under ar-rest for DWI, and transported to the station. He was asked by two different officers to perform field sobri-ety tests, which he refused. He was further asked to submit to a breathalyzer test, which he also refused. Defendant was charged with DWI, DWR and Care-less and Imprudent Driving. At his jury trial, Defen-dant sought a motionin limineseeking to preclude admission of the dispatch. The state argued the evi-dence of the dispatch would not be offered for the truth of the matter asserted, but merely to establish the officers’ conduct in going to the scene. The judge denied the motionin limine.At trial, Officer Lombardo merely testified that the th officers took a call for service at 59 Street and Pros-pect to check a parked vehicle. No objection was made to that testimony. Officer Tott, on the other hand, testified that the officers received a “call for a party slumped over the wheel of a dark colored . . .” to which an objection was made. The objection was
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overruled, and Officer Tott then responded to the next question by saying the officers had received a call for service that a “party was behind the wheel of a dark th colored SUV at the intersection of 59 and Prospect.” The officers testified as to their observations of Defen-dant, and Officer Lombardo testified he saw Defendant place the vehicle in reverse and try to back up. At trial, Defendant testified that he had not been drinking, had not operated the vehicle, that the vehicle was driven by his nephew, that the front tire had blown out, that the nephew left to find a jack, that Defendant remained in the passenger’s seat, and did not move until ordered out of the vehicle by the officers. Defendant testified the passenger door was broken and that he had to exit on the driver’s side to comply with the officers’ request, and that, when doing so, he acci-dentally knocked the vehicle into neutral causing it to “rock backwards.” The jury asked, during its deliberations, to see the “dispatch report.” The report was not given to the jury as it had not been admitted into evidence. Defendant was convicted. Defendant appealed, alleg-ing error in admission of the statements of Officer Tott related to the dispatch about a party being “slumped behind the wheel” and that a party was “behind the wheel.” Hearsay statements are out of court statements offered to prove the truth of the matter asserted. Hearsay is generally inadmissible.State v. Bennett, 980 S.W.2d 297, 306 (Mo. bancThe hearsay rule is predi- 1998). cated on the right of Defendant to confront and cross-examine a witness. The indispensable feature of con-frontation is cross-examination.State v. Kirkland, 471 S.W.2d 191, 193 (Mo. 1971). This allows a testing, in court, of the credibility of the witness in order to secure trustworthiness by requiring statements to be made in court subject to cross-examination.Id. Continued on page 7...
MMACJA Newsletter
Admission of Dispatch Testimony Requires Reversal Continued from page 6...
Hearsay is admissible if it falls within a recognized exception.State v. Mozee, 112 S.W.3d102, 108 (Mo.App. 2003). To constitute hearsay, the state-ment must be offered for the truth of the matter asserted.State v. Bell, 62 S.W.3d 84, 89 (Mo.App. 2001). Thus, an out of court statement offered not for the truth, but to explain subsequent police con-duct, is not hearsay, and thus admissible, assuming it is relevant.Id. If, however, an out of court state-ment goes beyond what is necessary to explain sub-sequent police conduct, the statement is hearsay. Kirkland, at 194-195. In this case, Officer Lombardo’s testimony ade-quately explained the conduct of the officers in go-ing to the scene. The evidentiary detail added by Officer Tott (that a party was slumped over the wheel or behind the wheel) was totally unnecessary to explain the officers’ conduct in going to the scene, and was, therefore, hearsay. Reversal will only occur if admission of hearsay is prejudicial.BellFurther in order to require, at 92. reversal, admission of the erroneous evidence must be outcome-determinative.State v. Barriner, 34 S.W.3d 139, 150 (Mo.banc2000). The Supreme Court has made a distinction be-tween evidence-specific prejudice and outcome-determinative prejudice. When the prejudice re-sulting from erroneous admission of evidence is only evidence-specific, reversal is not required. However, when the prejudice is outcome-determinative, reversal is required. Outcome-determinative prejudice occurs when the court finds that the evidence so influenced the jury that, when balanced against all of the properly admitted evidence, the jury would have reached a different conclusion had it relied only on the properly admit-ted evidence.
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The fact that there is evidence upon which Defen-dant could have been convicted is not the test for outcome-determinative prejudice. The test is whether there is a reasonable probability that the jury relied on the inadmissible evidence such that, had it been excluded, a different outcome would have occurred. The only evidence putting Appellant behind the wheel was the testimony of Officer Tott, in which the officer repeated the dispatch. The court holds that on the contested issue of whether Defendant was operating the vehicle, the jury relied in part on the hearsay dispatch testimony. This makes the admission outcome-determinative, requiring reversal and remand for a new trial. A limiting instruction is only appropriate where evidence, otherwise admissible, is to be consid-ered for a limited purpose. In this case, the evi-dence was inadmissible, therefore a limiting in-struction was not appropriate. State v. Douglas, WD61815 (Mo.App.W.D. 3-9-2004).
MMACJA Newsletter
Answers to You Make the Ruling (from page 4)
Answer: Question 1. Objection sustained. “[N]othing in the MDH rules or regulations al-lows for any variance in a blank test or estab-lishes an acceptable deviation from the expected reading of .000 in a blank test. [I]f there is a malfunction in the administration of the breath analysis test, even a minor one, the tests are in-admissible.” A case to the contrary, Reckner v. Fischer, 121 S.W.3d 296 (Mo. App. W.D. 2003), is “not…persuasive authority.” Vernon v. DOR, No. 25932 (Mo. App. S.D. July 29, 2004). 2.Answer: Question Objection sustained. There is an exception to the hearsay rule “that allows for the supplying of relevant background and continuity to an officer’s recital of events. [But] this exception is susceptible to abuse [as occurred here]. It would have been more than sufficient…for officer to have testified that he approached defendant or went to 1624 Virginia by stating that he did so ‘upon information re-ceived.’” State v. Garrett, 139 S.W.3d 577 (Mo. App. S.D. 2004). See similar issue with same holding at State v. Douglas, 131 S.W.3d 818 (Mo. App. W.D. 2004). Answer: Question 3.“The proper Sustained. procedure that must be followed to impeach a witness with a prior inconsistent statement from a deposition or trial transcript is well-established. The party attempting the impeachment should: (1) show the document to the witness if he asks to see it; (2) read the impeaching questions and answers, and; (3) ask the witness if he did not so testify previously.” Defendant’s method of im-peachment by paraphrasing the prior testimony from memory is improper. State v. Douglas, 132 S.W.3d 251 (Mo. App. S.D. 2004).
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Answer: Question 4. Objection overruled. “The bar on extrinsic evidence of prior, specific acts of misconduct [to prove a witness’ bad character for truth and veracity] furthers the general policy focusing the fact-finder on the most probative facts and conserving judicial resources by avoiding mini-trials on collateral issues.” However, where a “witness’ credibility is a key factor in determining guilt or acquittal,” this general policy “must yield to the defen-dant’s constitutional right to present a full de-fense.” “The current Missouri rule prohibit-ing extrinsic evidence of prior false allega-tions does not strike the appropriate balance. Therefore, a criminal defendant in Missouri may, in some cases, introduce extrinsic evi-dence of prior false allegations. This rule is not limited to sexual assault or rape cases.”State v. Long, 140 S.W.3d 27 (Mo. 2004). 5.Answer: Question Motion to suppress granted. Defendant’s “consent was conditional. He granted [officer] permission to search ‘if’ [officer] had probable cause. [Officer] knew that he did not have probable cause to search; hence, he could not have believed reasonably that [defendant] consented knowingly.” Fur-ther, “in conformity withBumper[v. North Carolina, 391 U.S. 543 (1968)], we conclude [defendant’s] consent was coerced and was, therefore, involuntary.” State v. Earl, 140 S.W.3d 639 (Mo. App. W.D. 2004).
MMACJA Newsletter
PositionPresident Vice President Treasurer Secretary Ex-Officio Executive Secretary
District 1 District 1 District 2 District 3 District 4 District 5 District 6 District 7 District 8 District 9 District 10 District 11 District 12
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MMACJA Officers & Directors 2004-2005 NameCourtPhone Number Greg Beydler El Dorado Springs 417-448-1218 Larry Butcher Kearney 816-628-4887 Robert Adler St. Louis County 314-918-8900 Dennis Laster Knob Noster 660-563-2595 Marcia Walsh Kansas City Municipal 816-513-3847 Jean Harmison jean@clubmanagementservices.com 417-886-8606 417-886-3685 (fax) District Directors Mark LevittRock Hill 314-725-7878 James Wahl St. Louis City 314-421-3100 William Wegge Jefferson County Associate 636-797-5365 Robert Hershey Perryville 573-547-2594 William Piedimonte Oak Grove/Odessa/Hardin/ Wellington/Henrietta/Higginsville 816-838-8900 Deborah Neal Kansas City Municipal 816-513-1068 Elizabeth Rohrs Bolivar 417-328-0233 James DeNeen Deunweg 417-623-0350 William Harrison Dixon 573-759-6610 David Ferman Montgomery City/Curryville 314-862-3535 Leneigha Downs Union 636-583-3600 Stan B. East, Jr. LaPlata 660-332-7166 Steve Sanders Lake Waukomis 816-741-2079
Vince Garufi Rick Brunk Mark Stoll Tom Fincham William McHughKevin Kelly Ray Gordon Shawn McCarver Todd Thornhill Cotton Walker Sally Slipian Hugh Ryan
At Large Directors Wellsville/New Florence Bellflower/Martinsburg Chesterfield Jefferson County Associate Oakview/Ferrelview/Richmond City of St. Louis Maryland Heights/Cool Valley Greendale Retired Park Hills/Desloge/Bismarck Springfield Russellville/Lohman Winchester Greenwood
President’s Standing Advisory Committee Joe Briscoe Eleventh Circuit, Division 4 Jess Ullom St Louis County Municipal Charles Curry Belton Bill Buchholz Country Club Hills Earl Drennen O’Fallon Joe Lott Charlack Frank Vatterott Overland Polly Shelton Versailles/Stover
800-435-9302 636-532-4244 636-797-5376 816-453-0695 314-421-1222
314-838-2800 417-223-4755 573-756-0990 417-864-1376 573-635-9200 314-961-0097 816-525-2400
636-949-3094 636-532-0042 816-761-7575 314-863-7033 636-379-5514 314-862-6000 314-770-2100 573-374-5610
M i s s o u r i M u n i c i p a l & A s s o c i a t e C i r c u i t J u d g e s A s s o c i a t i o n
Jean Harmison 4721 S. Stewart Springfield, MO 65804
Phone: 417-886-8606 Fax: 417-886-3685 Email: jean@clubmanagementservices.com
M M A C J A
www.mmacja.org
Mark Your Calendars: MMACJA Regional Seminars March 25, 2005 Columbia, Springfield, St. Louis, Gladstone, Sikeston Noon - 4:00 p.m. MMACJA Annual Conference Lodge of Four Seasons May 25-27, 2005 Call 1-800-The-Lake for hotel reservations!
