MMACJA Benchmark 10-2003

Jean Harmison

Description

M ISSOURI MUNICIPAL & ASSOCIATE CIRCUIT JUDGES ASSOCIATION 4721 S. STEWART S PRINGFIELD, MO 65804 October 2003 benchmark President’s Report By Marcia K. Walsh – City of Kansas City Inside this issue: Conference Summary: Project” envisions an “integrated court sys- We received your 2003 confer- tem that renders geography largely irrelevant President’s Report 1 ence evaluations, and are pleased to re- and presents a modern justice system with Board Meeting Updates 2 port that 95 percent of those who re- reduced cost…, greater efficiency, wider sponded rated the conference as good or access, and enhanced accountability.” Su-Past MMACJA Presidents 2 excellent. A record number of people— preme Court justices have updated us at vari-MMACJA Website Instructions 340—registered for the conference, and ous of our Annual Conferences on how this 3 at $125.00 per judge, the conference project is progressing in circuit courts MMACJA Bulletin Board 4 brought in $42,500.00 The conference throughout the state. We know that only Judicial Education Fund Law cost $44,123.95, an increase of approxi- after all circuit courts and other divisions are 5-6 mately $12,300.00 more than the previ- automated will municipal courts be ap-You Make The Ruling 7 ous year’s conference. We attribute this proached to see if and how automation may increase to three sources: first, Tan-Tar- benefit them. MMACJA Board of Directors 8 A’s bill was approximately $6,750.00 ...

Informations

• Publié par: Orga
• Nombre de lectures: 48
• Langue: English

Extrait

Driving While Revoked Requires Proof That Road was “Highway”

Answers to You Make The Ruling

MMACJA Board of Directors

No Right to Appeal Suppression of Evidence

MMACJA Website Instructions

Judicial Education Fund Law

Board Meeting Updates

Past MMACJA Presidents

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Inside this issue:

President’s Report

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You Make The Ruling

MMACJA Bulletin Board

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Upcoming Events

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All events will be held at Lodge of Four Seasons in in Osage Beach.

b e n c h m a r k

President’s Report By Marcia K. Walsh – City of Kansas City

October 2003

Project” envisions an “integrated court sys- tem that renders geography largely irrelevant and presents a modern justice system with reduced cost…, greater efficiency, wider access, and enhanced accountability.” Su- preme Court justices have updated us at vari- ous of our Annual Conferences on how this project is progressing in circuit courts throughout the state. We know that only after all circuit courts and other divisions are automated will municipal courts be ap- proached to see if and how automation may benefit them.  Section 476.056 RSMo allows mu- nicipalities to adopt ordinances which im- pose a surcharge on cases to provide for court automation through OSCA. What are your thoughts on this? It is some years from now before the Supreme Court’s Committee will be ready for municipal courts, but we would like to plan ahead to be of assistance to you. Judge Dennis Laster of Knob Noster chairs this Committee. You can contact him [e-mail] 660-563-5295. MMACJA History:  Reminder: the Board is compiling a history of MMACJA. Please gather any ma- terials from conferences, regional seminars, Board meetings, old newsletters, old “war stories,” and send them all to Judge Kevin Kelly, Historical Committee chair.  If you have questions about the As- sociation or the work of any Committee, please contact any Board member or Com- mittee chair. Elsewhere in this issue instruc- tions are provided to assist you in navigating the MMACJA website. We hope you will find these and the site itself helpful.

MMACJA Annual Conference – May 26-28, 2004

Benchmark Editor: Todd Thornhill 625 N. Benton Springfield, MO 65806 417-864-1376 417-864-1883 (fax) [e-mail]

Important Dates: ♦MMACJA Regional Seminars - March 26, 2004—Columbia, St. Louis, Springfield, Gladstone, Sikeston

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Conference Summary:  We received your 2003 confer- ence evaluations, and are pleased to re- port that 95 percent of those who re- sponded rated the conference as good or excellent. A record number of people— 340—registered for the conference, and at $125.00 per judge, the conference brought in $42,500.00 The conference cost $44,123.95, an increase of approxi- mately $12,300.00 more than the previ- ous year’s conference. We attribute this increase to three sources: first, Tan-Tar- A’s bill was approximately $6,750.00 more (because of paying for our own luncheon on Thursday, because of room rental for breakout sessions, and because of increased audio/visual expenses); sec- ond, the cost of printing the conference materials increased by approximately $2,800.00; and third, outside speakers’ fees and expenses cost approximately $2,000.00.  Planning for the 2004 Annual Conference, May 26-28, 2004, is well under way. Vice-President Greg Bey- dler chairs the Committee in charge of this planning. He would welcome hear- ing from you. You may reach him at [e-mail] , or at 417-448- 1218. EC 2004:  MMACJA has a Committee called “EC 2004,” whose purpose is to work with the Missouri Supreme Court’s project of the same name, Electronic Courts 2004. The Missouri Supreme Court’s “Statewide Court Automation

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 4 7 2 1 S . S T E W A R T S P R I N G F I E L D , M O 6 5 8 0 4

M M A C J A N e w s l e t t e r

Board Meeting Update By: Larry Butcher—Kearney

May 23, 2003 Following the meeting of the general membership on Thursday, May 22, 2003, at the Annual Conference, newly elected President Marcia Walsh of Kansas City presided over the Friday morning Board meeting on May 23. New Board members include Judge David Ferman of Montgomery City , Judge Ray- mond Gordon of Anderson, and Judge Peggy McCartney of St. Louis. Judge Walsh introduced newly elected Association Vice President Greg Beydler of El Dorado Springs, and newly elected Treasurer Bob Adler of St. Louis. Judge Larry Butcher of Kearney continued to serve his second year as Secretary.  Following her welcoming remarks, Judge Walsh announced her selec- tions for committee chairs for the upcoming year. She also declared that Board meetings would be held on October 18, 2003, January 10, 2004, and March 20, 2004. She stated that the Annual Conference will be held on May 26-28, 2004, at The Lodge of Four Seasons. The 2004 conference marks the return of the Association to The Lodge after the last three conferences at Tan-Tar-A. As usual, the first Board meeting of the year was relatively brief, consisting mainly of welcoming remarks and committee chair assignments. Judge Walsh ex- pressed her sincere thanks to the Board and those committee chairs accepting their appointments, and stated that she looked forward to a positive and produc- tive upcoming year. October 18, 2003 The Association’s Board of Directors met at The Lodge of Four Sea- sons on October 18, 2003. Based on the reports of the officers and committee chairs, this year promises to be one with many new ideas and features. Presi- dent Marcia Walsh has suggested that we update our corporate status with the Missouri Secretary of State by appointing Executive Secretary Jean Harmison as our Registered Agent, and designating Jean’s Springfield address as the address of the Association. Treasurer Bob Adler has implemented a new and more re- fined bookkeeping and accounting system for the Association. Vice President (and annual conference chair) Greg Beydler, has come up with an annual confer- ence agenda that offers new and exciting features. The most notable of these on the May agenda will be the first ever of its kind for this Association. The Board is proud to announce that the annual conference will include an appearance by a panel of three appellate judges from the Missouri Court of Appeals, Southern District, who will preside over an actual argument of a case now pending before that court. The specific case has not yet been determined, but we hope to have a case involving a specific point of interest in the municipal and Associate Circuit courts . In addition, William Dressell, President of the National Judicial College in Reno, Nevada will address our group, and we will again get the Annual Case Law Update and the well received “20 Questions” presentation. Plus, the re- mainder of the annual conference agenda promises more breakout sessions on topics of particular interest. We will again close with a Friday morning presen- tation by our old friend and Search and Seizure expert, Cape Girardeau County Prosecuting Attorney Morley Swingle. But this year, the always entertaining Mr. Swingle will share with us his expertise in the trial and handling of DWI cases. The Association’s web site is now in full operation, and the Association will soon be circulating to the membership a “How To” document to assist you in gaining access to, and navigating within, the new site. Finally, mark your calendars now for the Regional Seminars which will be held on March 26, 2004. All in all, this year promises to be one of the best ever for your Association. We look forward to seeing all of you at the Regional seminars and the annual confer- ence.

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Past Presidents of the Missouri Municipal and Associate Circuit Judges Association

The first four presidents of our asso- ciation were inadvertently omitted from the April, 2003Benchmarklist of past presidents. In the interest of accuracy and respect, the first four presidents of our association are listed here. 1965 McCormick Wilson 1966 Lou Davis 1967 Louis Houston 1968 Temple Morgett 1969 McCormick Wilson 1970 Reginald Smith 1971 Roger Hines 1972 George Pittman 1973 W. Henry Wilson 1974 Jack Koslow 1975 Clifford Spotsville 1976 James May 1977 McCormick Wilson 1978 Thomas Sims 1979 Lloyd Wion 1980 Pat Horner 1981 Joanne Mayberry 1982 Gary Titus 1983 Joseph Cambiano 1984 Earl Drennen 1985 William Lewis 1986 Mike Frank 1987 Mike Svetlic 1988 Timothy Kelly 1989 Larry Dimond 1990 Joe Lott 1991 William Buchholz 1992 Fred Kidd 1993 Frank Vatterott 1994 Polly Shelton 1995 Charles Curry 1996 James Tobin 1997 David Evans 1998 Jess Ullom 1999 Frank Vatterott 2000 Chuck Curry 2001 Todd Thornhill 2002 Kevin Kelly 2003 Mark Levitt

Directions to Access the MMACJA Website:

1. Type in the website address: www.mmacja.org(hit enter or go)

2. Click one of the five options:News, About Us, Forms, Events, Courts & Judges(Feel free to click any of the news flash items. Important information will be posted on this page.) 3. Drop down lists include: (To view any of these features move your cursor over the name and click) News:Case Law Updates, Legislation Updates, Newsletters (Benchmark)

AboutUs:MMACJAOfficers & Directors, Committees, Members, By-Laws, Bench Guide

Forms:Forms Book that was distributed at the 2001 MMACJA Annual Conference Events:List of Upcoming MMACJA Events Courts & JudgesJudge, District, Judicial District,: This Search options include: page includes a Missouri map. County, Court. To search, click one of the options and a drop down list will appear. Select choice and clickGO. Follow the screen instructions to search for a name in alphabetical order.

The website has a special feature for“members only”and can only be accessed by members of MMACJA. Mem- bers include: alljudgesthat attended the 2003 Annual Conference orjudgesThe “membersthat paid $75 dues. only” section includes a list of all judges including address, phone, fax, and e-mail address.

To access the“members only”area please complete the following steps: 1. Clickloginat the top right hand side of the screen. 2. The login code is your e-mail address that was submitted to MMACJA. The password is mmacja2003.If you do not have an e-mail address, the login code is your first name.last [e-mail] (For example: [e-mail] (login) and mmacja2003 (password )

3. If you have any questions, feel free to contact Jean Harmison at 417-886-8606 or e-mail at [e-mail]

Missouri Municipal & Associate Circuit Judges Association 4721 S. Stewart Springfield, MO 65804

Website Committee: Judge Chuck Curry Judge William Piedimonte

To update information please contact: Jean Harmison at 417-886-8606 or e-mail [e-mail]

Missouri Municipal & Associate Circuit Judges Association

M M A C J A N e w s l e t t e r

MMACJA Bulletin Board MMACJA Website: www.mmacja.org

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Have you ever had a question regarding municipal law and wondered what other judges would do? Then you should sign-up for the MMACJA Bulletin Board. It isFREEto all MMACJA members* and requires a few minutes to set up your bulletin board account. *You areIn order to set up an account on the MMACJA Bulletin Board, you must be a member of MMACJA. automatically a member if you attended the 2003 MMACJA Annual Conference at Tan-Tar-A in May 2003 or if you paid your $75 dues during 2003. Follow these easy set-up instructions: 1. Please type in www.mmacja.org and go to the MMACJA website. Click on one of the listed topics on the main page (News, About Us, Forms, Events, Courts & Judges). On the upper right hand corner of the page, click “login” and type in your login name and password. Your login name is your e-mail address (if you do not have an e-mail address, the login name is your first.last name.mmacja and the password is MMACJA2003). Double click “Bulletin Board” and click “Missouri Judges Bulletin Board” and you will see a page called Yahoo Groups. 2. Follow the screen instructions to set up your sign-in name and password (please write down your name & password and keep for future reference). 3. Once you have set-up your account, you can send messages, view previous messages, chat on-line with other members, view calendar, etc. 4. If at any time you would like to discontinue this service, go to “Edit Membership” and click “leave group” and you will be removed from the bulletin board. 5. If you have any questions, feel free to contact one of the following internet committee members:  Chuck Curry – 816-761-7575  Bill Piedimonte – 816-838-8900  Jean Harmison - 417-886-8606 (call for membership status, log-in codes and website updates)

M M A C J A N e w s l e t t e r

UNDERSTANDING AND APPLYING THE JUDICIAL EDUCATION FUND LAW By The Honorable Jess Ullom St. Louis County Municipal Court

[Editor’s note: This is the next in a series of “oldies but goodies” from past editions of Benchmark. This updated arti- cle first appeared in March 1998 and is reprinted with per- mission of the author. The law examined here is arguably more timely today than in 1998 due to the serious budgetary problems facing many cities. Readers with past articles that merit reprinting are urged to contact the editor.] In 1997, the passage of SB 248 created a significant benefit for the municipal court system by authorizing any municipal court to establish a judicial education fund (JEF) under the control of the court to pay the ex- penses of judicial education and training for the judges, court administrators, and court clerks of the court. This was accomplished in existing section 479.260.1 RSMo, which provides for the assessment of the basic twelve dollar court cost, by an amendment adding this new lan- guage at the end of the section: “provided that, each municipal court may establish a Judicial Education Fund in an account under the control of the municipal court to retain one dollar of the fees collected on each case and to use the Fund only to pay for: (1) the continuing education and cer- tification required of the municipal judges by law or supreme court rule, and; (2) judicial education and training for the court administrator and clerks of the municipal court. Provided further, that no municipal court shall re- tain more than one thousand five hundred dollars in the fund for each judge, administrator or clerk of the municipal court. Any excess funds shall be transmit- ted quarterly to the general revenue fund of the county or municipal treasury.” Thus, the court is now authorized to retain one dollar ($1.00) from the basic court cost of $12.00 in each case to pay the expenses incurred for the continuing judicial education and training of municipal judges and court staff. Note that this law does not increase the amount of court costs. The purpose of the law is that a court no longer has to

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rely on a budget decision by the municipality’s governing body. Once the JEF is established and funded, judges and clerks no longer face the pros- pect of paying for educational and training pro- grams out of their own pockets. Starting a JEF The law clearly authorizes the court to establish the account on its own initiative. It does not re- quire any action by any other arm of municipal government, such as the Council, Board of Alder- men, Mayor or City Manager. To establish a JEF, it is suggested the judge open an account at a bank in the name of “Municipal Court of (city)” and have it designated as the “Judicial Education Fund Account” on all checks, deposit slips and other records. You must decide whether to have it be a single or double signature account, but one of the mandatory signatures should be the judge’s. After opening the account, the court can begin withholding one dollar from each case where the court costs are collected for deposit into the JEF bank account. All other moneys from fines and costs are handled in the normal manner before be- ing transferred to the municipal treasury or other earmarked agency. The court’s receipt book or other record used for the allocation of collected fines and costs should have a new column added to reflect which cases or collections have funded the JEF account. The effect of the JEF statutory cap on the collection procedure is discussed below. Eligible Persons Only eligible persons can have their expenses paid from the JEF account. Also, the number of eligi- ble persons for a court fixes the amount of the court’s cap for the JEF account. Continued on page 6….

M M A C J A N e w s l e t t e r

Continued from page 5… The eligible persons include the judge, the provi- sional judge and each full-time court administrator and court clerk. If the court’s only clerk is part-time, they would be eligible. However, if the court em- ploys a second clerk who is only part-time, they should not be considered an eligible person unless they are actively seeking certification. The prosecutor is not an eligible person. Therefore, his expenses cannot be authorized for payment from the JEF even if he attends the same conference as the judge. Otherineligiblepersons include the bailiff and other municipal employees who only assist the judge or the court administrator occasionally. Record Keeping and Appropriate (and Inappro- priate) Expenses The JEF will be available to cover the expenses: (1) of the judge for the annual judicial education credits required by Rule 18; (2) of a new non-lawyer mu- nicipal judge to attend the instruction course pre- scribed by the Missouri Supreme Court under section 479.020.8 RSMo, and; (3) the court administrator and court clerks in attending educational and training seminars related to their duties for the court. A record-keeping system for all requests and ap- proved payments of funds from the JEF account must be established. It is suggested this include at the minimum an appropriate form for the itemizing of both the expenses requested and those approved with signature lines for the requesting party and the ap- proving authority, presumably the judge. All sup- porting receipts should be kept with the form. Usable or adaptable forms can be obtained through your city, local office store, et cetera. Appropriate and reasonable expenses should be sup- ported by a written policy and should include: 1. the registration fee for the program; 2. the actual cost of lodging at the special confer- ence rate or based on single occupancy; 3. the actual cost of reasonable meals (and non- alcoholic beverages). An option for meals would be establishing a fixed per diem amount toward their normal expense, regardless of what is spent. Presently the IRS authorizes $35 per day toward

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meals for business travel. 4. Travel expenses incurred to attend the program by car are best covered by establishing a fixed rate per mile round-trip. Accepted standards include the IRS deduction allowance of 36 cents per mile. Travel by public means should be covered at actual cost. JEF shouldnotbe used to cover: 1. indirect losses, such as wages lost due to missed work from your primary employment, car repairs incurred during the trip, et cetera, or; 2. unnecessary expenses, such as alcoholic bever- ages, gifts, hospitality and entertainment costs, an upscale hotel suite, or amenities like movie-in-the- room charges, et cetera. When these types of ex- penses are commingled on a bill with appropriate expenses, it should be clear from the JEF account records that these unnecessary expenses were paid from your personal funds. Understanding the Cap The law provides for a cap on the money retained in the JEF account at $1500.00 per eligible person. This cap is similar to that applied on court costs col- lected for police officer training; see section 590.140 RSMo. By example, in those municipalities where there is one judge and only one court clerk, no more that $3000.00 could be held in the fund at any time. The cap is a cumulative limitation, not an annual limitation. Obviously it will take at least 3000 col- lected cases to reach the cap in the example above. Thus, whenever the cap is reached, the court stops setting aside the one dollar for JEF and simply re- turns to the former procedure of paying the collected fines and the entire $12.00 basic court costs over to the municipal general revenue. Thereafter, when covered expenses for programs and seminars of eli- gible persons are again incurred and paid from the JEF, depleting the account below the cap, the court again can set aside one dollar from collected court costs until the fixed cap amount for the court is again reached.

MMACJA Newsletter

You Make The Ruling By: Todd Thornhill—Springfield

1. Around 12:30 a.m. on Feb. 23, 2001, police officer saw a pickup pull into shopping center, back into a space by the building, and turn off its lights. No busi- nesses were open, and the shopping center was well illuminated. Officer watched (for 15 seconds or 3 min- utes, he testified to both) to see if any crime was occur- ring. No one exited the truck, and the truck did not move. Officer switched positions and watched truck for 5 more minutes. The truck then turned on its lights, left “in a bit of a hurry,” but was not speeding or violat- ing any traffic laws. Officer followed truck and pulled it over for the sole reason, “I wanted to identify him, find out what he was doing in the parking lot at that hour, and at least to get a name in case a crime had been committed.” Officer approached the truck, was told by the driver that he was waiting for his girlfriend in the parking lot, and officer smelled odor of intoxi- cants coming from inside truck. After submitting to and failing FSTs and submitting to a PBT, driver ar- rested for DWI. Defendant moves to suppress state- ments and evidence collected as a result of the traffic stop. You make the ruling. 2.received anonymous tip that a gray Trooper Camaro with certain plate number was transporting drugs on I-70. Trooper located vehicle, followed for 4 miles, and saw vehicle veer onto shoulder twice. Trooper pulled over car and issued traffic citation to driver as driver sat in trooper’s patrol car. Trooper re- ceived consent from driver to search vehicle, radioed for backup who arrived, then trooper performed a pat- down search of driver. Trooper testified that he searched driver “because this was his routine practice before conducting a vehicle search or turning his back on anyone.” Driver was wearing stiff cowboy boots, and trooper lifted up bottom of driver’s jeans to see inside the boots. He used a flashlight to look into right boot and found nothing. When looking in left boot, he saw plastic bag containing a golf-ball amount of brown powdery substance, later determined to be meth. Driver is charged with possession of meth and moves to suppress the meth. You make the ruling. 3. Vehicle 1 hit vehicle 2 from the rear, pushing it into vehicle 3. Vehicle 2 was totaled as result. Vehicle 2’s driver saw one person in vehicle 1, identified vehi-

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cle 1 as white on direct examination but couldn’t re- member the color on cross examination, and could not identify the make of vehicle 1 or identify driver 1. Vehicle 1 backed up and turned into the parking lot of a store. Driver 2 informed a parking lot security guard of these events, and the guard called police. At least 5 minutes after the accident, guard went to park- ing lot, saw a small white truck, saw defendant in the truck, and saw defendant exit from the driver’s side. Guard spotted fresh-damage dents in the front of the white truck. Defendant denied to guard that he had been driving, denied the truck belonged to him, and claimed he parked his vehicle on the other side of the store. However, keys in defendant’s pocket fit the ignition of the truck. Defendant admitted he had been drinking but denied driving and did not know how his truck came to be parked in the lot. There is substan- tial evidence of intoxication, but Defendant claims there is not sufficient evidence of driving to convict him. You make the ruling. 4. At 10 p.m., Defendant drove from a bachelor party where alcohol was present. His friend left 5-10 minutes later in the same direction. 15-16 miles down the road, friend saw defendant’s vehicle off the road. It had hit a tree. Defendant was in the front seat of the truck unconscious. No one else was around. Around 10:30 to 10:45, a neighbor saw de- fendant in the front seat unconscious, saw two beer cans fall out of the car, and smelled alcohol in the car. The driver’s side airbag had deployed, and there was blood on it and on defendant. The owner of the prop- erty where the accident occurred arrived and saw de- fendant standing outside of the truck and could tell defendant was drinking. As defendant crawled up an embankment, he saw a trooper’s vehicle approaching and ran away. Troopers found defendant hiding un- der a truck. Trooper observed that defendant was ex- tremely intoxicated, his speech slurred, and his breath smelled of intoxicants. Defendant claims there is no evidence that he was operating a motor vehicle or that he was doing so while intoxicated. You make the ruling. Answers on Page 9.

MMACJA Newsletter

Position President 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 2003-2004 NameCourtPhone Number Marcia Walsh Kansas City Municipal 816-513-3847 Greg Beydler El Dorado Springs 417-448-1218 Robert Adler St. Louis County 314-918-8900 Larry Butcher Kearney 816-628-4887 Mark Levitt314-725-7878Rock Hill Jean Harmison [e-mail] 417-886-8606  417-886-3685 (fax) District Directors Margaret McCartney St. Louis Traffic Court 314-909-1297 Jack Duepner, Jr. Black Jack/Jennings 314-385-4670 William Wegge Jefferson County Associate 636-797-5365 Robert Hershey Perryville 573-547-2594 Dennis Laster Knob Noster 660-563-2595 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 McHugh Kevin Kelly Ray Gordon Shawn McCarver William Piedimonte Todd Thornhill Polly Shelton Cotton Walker

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  Oak Grove/Odessa/Hardin/  Wellington/Henrietta/Higginsville  Springfield  Versailles/Stover  Russellville/Lohman

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

800-435-9302 636-532-4244 636-797-5376 816-453-0695 314-421-1222

314-838-2800 417-223-4755 573-756-0990

816-838-8900 417-864-1376 573-374-5610 573-635-9200

636-949-3094 636-532-0042 816-761-7575 314-863-7033 636-379-5514 314-862-6000 314-770-2100

MMACJA Newsletter

Answers to You Make the Ruling (from page 7)

Answer: Question 1. Motion to suppress granted. The State argues that Officer possessed reasonable suspicion under Terry before he made the stop. “No exact formula exists to define what constitutes reasonable suspicion. Each case must be analyzed on its own facts.” Officer “wholly failed to point to any specific and articulable facts giving rise to reasonable suspicion. We can only conclude that [officer] was acting upon the type of inarticulate ‘hunch’ that [Terry] rejected….” State v. Schmutz, No. 24742 (Mo. App. S.D. March 31, 2003). Answer: Question 2.to suppress Motion granted. First, “the State contends law enforce- ment officers should, as a matter of routine, be allowed to pat-down any driver prior to conduct- ing a vehicle search. This argument is contrary to Terry’s” requirement that an officer have “a rea- sonable, particularized suspicion that the suspect is armed” before conducting a pat-down search. Second, the State argues the pat-down search was reasonable because Trooper received a radio mes- sage that driver’s vehicle might contain drugs. However, there was no required corroboration of the anonymous tip. Third, “the State claims that [driver’s] consent to search a vehicle automati- cally constituted consent to search his person.” “Consent to search a vehicle does not automati- cally equate to consent to a pat-down search, how- ever. No authority is cited by the State for the proposition that one’s consent to search a vehicle impliedly authorizes a search of the consenting person.” State v. Haldiman, No. WD61019 (Mo. App. W.D. May 6, 2003). Answer: Question 3. Not guilty. “In non-engine running cases, significant additional evidence of driving…is required….” Further, “there was no evidence that [defendant’s] truck was…the one that hit [vehicle 2] and that he was driving the truck.” While vehicle 2’s driver saw the truck pull into the parking lot, he didn’t see it stop, and nei- ther he nor guard saw defendant driving the vehi- cle even though guard saw defendant exit the

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driver’s side. No one saw defendant park his vehicle, and there was no testimony whether any- one felt the hood of the truck to see if the engine was warm. “Nor was there any demonstrative evidence presented at trial linking the observed dents on [defendant’s] truck with [vehicle 2].” No one identified defendant’s vehicle as the one involved in the accident. “[T]he record is devoid of sufficient evidence from which a reasonable trier of fact could have found [defendant] guilty….” State v. Anderson, No. 24899 (Mo. App. S.D. April 24, 2003). Answer: Question 4.Guilty. “[Defendant] suggests we infer from the evidence that, in that short time between leaving the party and being found, he switched drivers with some unknown person along the road, who, after crashing [defendant’s] truck into a tree, positioned [defendant] to appear to have been the driver and fled before anyone arrived. While this inference is not factually impossible, [it is not likely].” Further, “[Defendant] argues that the time of driving was too remote from the time he was de- termined to be intoxicated to support an inference of intoxicationwhile driving.” (emphasis added) However, “evidence of [defendant]’s intoxication at the accident scene within fifteen minutes of the accident and a short distance from the accident scene shortly thereafter supports an inference that his condition was the same at the time of the ac- cident.” State v. Scholl, No. ED82159 (Mo. App. E.D. June 17, 2003).

MMACJA Newsletter

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NO RIGHT TO APPEAL SUPPRESSION OF EVIDENCE  BY R. McCARVER, MUNICIPAL JUDGE SHAWN  CITIES OF PARK HILLS, DESLOGE, BISMARCK, LEADWOOD  AND BONNE TERRE The Missouri Court of Appeals, Southern District, has ruled that the City of Springfield is not entitled to appeal the decision of the Municipal Court suppressing evidence which resulted in the court entering a judgment of acquittal. InCity of Springfield v. Stoviak, SD25276 (Mo.App.S.D. 7-30-2003), the Defendant was charged in Springfield Municipal Court with driving while intoxicated and failure to properly illuminate his rear license plate, both city ordinance violations. The Court suppressed all evidence obtained fol- lowing the traffic stop and entered a judgment of acquittal. Appellant, the City of Springfield, filed an appeal. On appeal, the City alleged that the court erred in granting Respondent’s motion to suppress because the arresting officer had probable cause to stop Respondent based on the facts and circumstances perceived by the officer at the time of the traffic stop. “Missouri has not provided for an appeal from a municipal court to any other court acting in an appellate capacity.”Kansas City v. HendersonUnder the current, 468 S.W.2d at 50 (Mo. 1971). scheme, it is not possible to have an appeal to another court acting in an appellate capacity from a mu- nicipal court because the municipal court is not a court of record. Since the municipal court is not a court of record, there is no transcript of testimony for use in appellate review.Kansas City v. Hender- son, 468 S.W.2d at 50. A trial de novo is distinguishable from an appeal. A trial de novo results in a new prosecution of a quasi-criminal case.State ex rel. Streeter v. Mauer, 985 S.W.2d 954 (Mo.App. 1999). “The court in a trial de novo does not sit as an appellate court to consider alleged irregularities in the lower court”. Kansas City v. Johnney, 760 S.W.2d 930, 931 (Mo.App. 1988). A trial de novo, unlike a traditional ap- peal, provides the Defendant with a second trial.Jackson v. Southard, 869 S.W.2d 280, 281 (Mo.App. 1994). The City maintained that Rule 30.01(a) accords to the City the right of appeal from the decision of the municipal court sustaining Respondent’s motion to suppress. The City further asserted that be- cause a final judgment has been rendered and because the City is a party, the City is entitled to appeal the decision of the municipal court. Finally, the City claimed that the judgment suppressing evidence is a question of law related to whether the fourth amendment has been violated. The Court of Appeals disagreed holding that there is no right to appeal without statutory author- ity.City of Springfield v. Stoviak,Id, (citingMaplewood v. Erickson, 80 S.W.3d 477, 479 (Mo.App. 2002)). Continued on page 11...

MMACJA Newsletter

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Continued from page 10... The court noted that Article V Section 5 of the Missouri Constitution provides that supreme court rules may not change the right of appeal. Thus, while the Supreme Court may establish rules relating to prac- tice, procedure and pleading for all courts, the Supreme Court “may not, by rule, change the substantive right of appeal.”St. Louis County v. Glore, 715 S.W.2d 565, 567 (Mo.App. 1986). Further, the court noted that nothing in Rule 37 provides that the right of appeal in ordinance violation cases is governed by the criminal rules. The City of Springfield failed to cite any statutory or constitutional authority giving a municipality a right to appeal to the Missouri Court of Appeals directly from the judgment of a municipal court sustaining a motion to suppress. Finally, the court concluded that Section 547.200 does not apply to municipal prosecutions, but in- stead, to prosecutions by the state for a violation of state law. It should be noted that the decision of the Southern District of the Missouri Court of Appeals in this case was rendered despite the fact that Respondent filed no brief. The appeal was dismissed by unanimous decision of the three judge panel consisting of Presid- ing Judge Montgomery, Judge Garrison and Judge Barney. Apparently, the decisions of municipal judges on issues related to suppression of evidence, at least when the ruling goes against the city, are not reviewable by the traditional appellate method.

DRIVING WHILE REVOKED REQUIRES PROOF THAT ROAD WAS “HIGHWAY” By: Shawn R. McCarver Municipal Judge, Cities of Park Hills, Desloge, Bismarck, Leadwood and Bonne Terre A conviction for driving while revoked (DWR) has been overturned by the Eastern District of the Missouri Court of Appeals because the state failed to prove the character of the road on which the officer observed the defendant driving. State v. Thenhaus, ED82236 (Mo.App.E.D. 9-23-2003). In this case, the deputy observed defendant driving on a road. The deputy observed improper plates on the vehicle. When defendant spotted the deputy, she turned around and drove onto a dirt field road. After being stopped, defendant was unable to produce a driver’s license. A computer check revealed defendant was revoked. A citation was issued. At the close of the state’s case, the defendant moved for acquittal, claiming the state failed to prove the road was a “highway” as required by Section 302.321.1, RSMo. “Highway” is defined at section 302.010(6). The trial court took “judicial notice” that the area had been in use as a public road for at least twenty-five years. De- fendant was found guilty and ordered to serve two days in jail. Defendant appealed. The only evidence adduced by the state related to the road was that the officer spotted the defendant on the road. De- fendant raised a timely objection by moving for acquittal at the close of the state’s case. The trial court cannot take judicial notice of the character of the road or whether it has been in use as a public road because this is a question of fact to be determined by evidentiary proof. As the state failed to prove each element be- yond a reasonable doubt, the judgment is reversed and the conviction vacated. Based upon this opinion, each trial judge should remember that proof of the character of the roadway is as important as whether defendant was revoked, and acted with criminal negligence with respect to knowledge that defendant was revoked. Section 302.321.1, RSMo.