Case Law Update:
September 6 – September 12
Criminal
Circuit Clerk Serves Notice in Action for Expungement
Statute governing expungement of certain records requires the circuit clerk, not plaintiff, to give notice to specified persons. That requirement constitutes a ministerial duty that transmission of summons to plaintiff does not satisfy. A ministerial duty is subject to enforcement by a writ of mandamus. Preliminary writ of mandamus made permanent.
STATE OF MISSOURI ex rel. W.D.C., II, Relator vs. JO MCELWEE, CIRCUIT CLERK, CAMDEN COUNTY CIRCUIT CLERK, Respondent
Missouri Court of Appeals, Southern District – SD36107
Propensity Evidence Okay in Child Sex Case
On charges of a sexual offense against someone under 18 years old, Missouri Constitution commits the admissibility of propensity evidence in the form of prior such offenses to the circuit court’s discretion. Discretion balances probative value and risk of convicting on propensity evidence alone. Defendant’s attack on State witnesses’ credibility enhanced the propensity evidence’s probative value. Judgment affirmed.
State of Missouri, Respondent, vs. Joe H. Banks, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District – ED106772
DWI
Consent Not Withdrawn
An objection to foundation does not preserve an issue of unlawful search or seizure, except for plain error, which did not occur when driver consented to a blood draw. That consent included testing. Objections to where, by whom, and how the testing occurred did not constitute withdrawal of consent. Ineffective assistance of counsel is not a claim for relief from a sentence that does not include incarceration and, if it were, trial counsel is not ineffective for choosing not to file a meritless motion to exclude evidence.
State of Missouri vs. Ronda Sue Reeter
(Overview Summary)
Missouri Court of Appeals, Western District – WD81725