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Southern District draws line on jury-direction error claim

Scott Lauck//November 30, 2018

Southern District draws line on jury-direction error claim

Scott Lauck//November 30, 2018

The Court of Appeals Southern District on Nov. 26 ordered a new post-conviction hearing for a criminal defendant — a move that won’t mean much to the defendant himself but could be a relief to criminal defense lawyers.

Colby L. Sanders was convicted in 2012 in Christian County of a series of sex crimes against his child and stepchildren. He was sentenced to three 40-year prison terms and two 15-year terms, all to be served concurrently.

In a post-conviction motion, Sanders argued that one of his convictions was improper. The jury found him guilty of molesting one of his stepdaughters based on allegations that he had touched her with his genitals on four occasions. But the verdict director didn’t ask jurors to identify which instance or instances they believed had occurred, leaving the possibility that the verdict wasn’t unanimous.

Based on recent Missouri Supreme Court precedent, Judge Laura J. Johnson vacated the conviction, noting that doing so would “have little practical effect” as his overall prison term would still be 40 years.

Nonetheless, the Southern District reversed Johnson’s ruling and sent the case back for a new hearing, saying in a footnote that “we cannot lend our imprimatur” to a legal interpretation “that erroneously constrains a PCR-motion court’s important fact-finding role, responsibility, and authority.”

The issue stems from a 2011 ruling, State v. Celis-Garcia, in which the high court threw out the conviction of a woman accused of multiple acts of statutory sodomy against two girls because the verdict directors didn’t specify the variety of locations in her home where the acts allegedly occurred. Five years later, the court extended that ruling in Hoeber v. State, which held that a man’s defense attorney had been ineffective for failing to seek more specific verdict directors.

Sanders’ post-conviction motion sought the benefit of the 2016 Hoeber precedent. But Judge Daniel Scott, writing for the Southern District, said there was evidence that it was a reasonable strategy for Sanders’ trial attorney to have gone with vague verdict directors.

Sanders was represented at trial by veteran Springfield criminal defense attorney Nancy Price, who was out of the office last week and couldn’t be reached for comment. According to transcripts quoted in the Southern District’s opinion, she testified that her failure to object to the jury instructions was “pure oversight.”

But she also told the motion court that it “would have been horrible” if she had asked for all of the alleged incidents by her client to be listed in the verdict director, comparing it to “sending back trial testimony with the jury instruction.” Sanders had claimed in his defense that the victims were lying.

The Southern District, saying “we do not read Hoeber as seeking to bind all fact-finders in all cases and circumstances,” remanded the case to Christian County for the judge to determine whether the trial attorney’s choices were objectively reasonable, which would determine whether Sanders’ post-conviction claims can succeed. Judges William Francis Jr. and Mary Sheffield concurred.

Mark Allen Grothoff, an attorney with the Missouri State Public Defender’s Office who represented Sanders on appeal, said the ruling means that the “possibility still exists” that Sanders’ original defense will be found reasonable.

“You have to determine whether the choice to not object to that was reasonable or not,” he said.

In a footnote, Scott noted that the Hoeber case itself split 5-2 on the issue of reasonable trial strategy, which “demonstrates that reasonable minds could — and did — differ in evaluating those facts.” In the 2016 ruling, now-Chief Justice Zel M. Fischer and Judge Paul C. Wilson argued that highly specific jury instructions might increase a defendant’s chances of being convicted. They noted that, upon retrial, the defendant in the original Celis-Garcia case wound up being convicted on more charges and was given a far longer prison sentence.

The Nov. 26 ruling marks the second time the Southern District has remanded Sanders’ procedurally convoluted claim. The Christian County judge originally denied the claim in March 2016, two months before the Supreme Court issued Hoeber. Last December, the Southern District sent it back for the judge to take that precedent into account.

The case is Sanders v. State, SD35368.

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