Case Summary for February 4, 2003

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Case Summary for February 4, 2003

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, February 4, 2003

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SC84856
John Doe, a/k/a Tony Twist v. TCI Cablevision, et al.
St. Louis City
Use of athlete's name in comic book

Former St. Louis Blues hockey player Anthony "Tony" Twist filed a six-count lawsuit against Todd McFarlane, the creator and author of the "Spawn" comic book, and other related corporations McFarlane owned and controlled. Twist alleged the defendants used, without his consent, his name and identity as a villain in the Spawn comic and related products that they distributed internationally. He alleged his ability to earn endorsements was hindered because of the negative image he says his name and identity acquired through the nonconsensual use of his name in Spawn products. Twist alleged McFarlane started using his name while he was playing professional hockey for a team in Quebec and that McFarlane, as a part-owner of the Edmonton Oilers national hockey league team, knew that he still was playing hockey. The court sustained a motion to dismiss or for summary judgment in favor of McFarlane and his corporations on two counts, and Twist chose not to submit two other counts to the jury. The jury returned a unanimous $24.5 million verdict against McFarlane and his corporations, and in October 2000, the court granted the defendants a new trial, holding that Twist failed to make a submissible case. Twist appeals.

Twist argues the court erred in finding he was required to prove, under First Amendment doctrine, that McFarlane and his corporations intentionally appropriated his name, that they intended to use his name for their economic benefit, or that they intended to injure his marketability of his name. He also contends that the evidence was sufficient for the jury to find in his favor on these points and that he made a submissible case, therefore, of the elements of the tort of wrongful appropriation. Twist asserts the court erred in requiring the verdict directing instructions to have a requirement that the jury find that the defendants specifically intended to use his name for their economic benefit or specifically intended to injure his marketability. He argues Missouri law specifically rejects a requirement that he show an appropriation of the commercial value of his name. Twist contends there was substantial evidence of the advantage to the defendants from using his name. He asserts that because the defendants were jointly and severally liable, the jury instructions as to damages were correct. Twist argues his experts properly testified about damages because there was proper foundation for their testimony and because McFarlane and his corporations did not object to the testimony at trial. He contends there was overwhelming evidence supporting the verdict. He asserts that the court should have issued an injunction to prevent McFarlane and his corporations from continuing to use Twist's name.

McFarlane and the companies respond that Twist failed to make a submissible case because he failed to prove they used his name as a symbol of his identity, where the comic book character is not "of and concerning" Twist and where they did not use Twist's likeness, image or identity. They argue the use of the name "Tony Twist" in the comic is an expressive work of art that is protected under the First Amendment and does not involve commercial use of the name under a right of publicity. McFarlane and the companies contend a right of publicity as broad as that Twist seeks would violate the federal commerce clause. They assert that they did not derive any benefit from or cause any harm to Twist from using his name. They respond that the court properly entered judgment notwithstanding the verdict in their favor because the verdict was against the weight of the evidence, was based on improper expert testimony and was rendered using improper verdict directing instructions and an improper verdict form. McFarlane and the corporations argue the court properly denied Twist injunctive relief because such relief was dangerously overbroad and would have constituted an illegal restraint on speech.

SC84656
State ex rel. Joseph Amrine v. Al Luebbers, Superintendent, Potosi Correctional Center
Cole and Washington counties
Habeas suit based on innocence claim

In September 1986, Joseph Amrine was convicted of first-degree murder and sentenced to death for the October 1985 stabbing death of fellow Jefferson City Correctional Center inmate Gary Barber. Amrine's conviction was based on the testimony of inmate informants Randy Ferguson, Jerry Poe and Terry Russell. This Court affirmed Amrine's conviction and sentence. State v. Amrine, 741 S.W.2d 665 (Mo. banc 1987). He subsequently sought post-conviction relief, which the motion court denied. This Court affirmed the denial of post-conviction relief. Amrine v. State, 785 S.W.2d 531 (Mo. banc 1990). Amrine now seeks a writ of habeas corpus from this Court.

Amrine argues he should be discharged from his conviction and sentence. He contends that he can prove he is actually innocent and, therefore, is entitled to a new trial based on newly discovered evidence. He asserts that he was convicted because the three inmate informants perjured themselves during his trial and that, since then, all three recanted. Amrine argues his trial attorney had a conflict of interest in representing him because the attorney also represented Ferguson on unrelated charges. He contends his attorney failed to cross-examine the inmate informants effectively, failed to investigate and present credible alibi witnesses and failed to present exculpatory evidence. Amrine asserts that had his attorney been effective, there is a reasonable likelihood he would have been acquitted.

The state responds that Amrine is not entitled to habeas relief under Rule 91. It argues he cannot assert that he is actually innocent because the evidence he wishes to present to this Court already was presented and rejected in his post-conviction proceedings in state and federal courts. The state contends that both Ferguson and Russell recanted during Amrine's post-conviction proceedings, and the only new evidence is Poe's recantation, which is not credible. The state asserts that Amrine has failed to establish that the prosecutor presented perjured testimony. The state responds that this Court previously ruled on Amrine's ineffective assistance of counsel claims and that, to the extent Amrine did not raise those claims before, the claims lack merit.

SC84903
In the Interest of: E.L.B., a Minor
St. Louis County
Termination of parental rights

In October 1999, the mother's infant child, E.L.B., was removed from her custody and placed in foster care. Three months later, the child's father died. A division of family services home study recommended that the child stay in the mother's home with division supervision, but the child never was returned to the mother's custody. While her child was gone, the mother used crack cocaine and had very few visits with her child. She also was incarcerated for writing bad checks and failing to pay restitution. In April 2001, the juvenile officer filed a petition seeking to terminate the mother's parental rights. Ultimately, the court terminated the mother's parental rights to her minor children, finding that she had abandoned her child without good cause, as defined by section 211.447.4, RSMo. She appeals.

The mother argues there was not clear, cogent and convincing evidence sufficient to support the court's finding that she had abandoned her child because her intermittent incarceration and drug treatment prevented her from being with her child or providing for him financially. She contends there was not sufficient evidence to support the court's finding that she abused or neglected her child. She asserts that the division's home study contradicted the court's finding that she could not provide a proper and stable home. The mother argues there was no evidence to support the court's finding that she is unstable and unfit as a parent. She further contends that the presumption of section 211.447.4 that a parent is unfit if a child has been in foster care for 15 of the previous 22 months puts the statute in violation of the substantive due process guarantees of the state and federal constitutions.

The juvenile officer responds that there was clear, cogent and convincing evidence to support the court's findings that termination of parental rights was in the best interest of the child. The juvenile officer argues that the child appeared to have been abandoned and neglected. The juvenile officer contends that the mother had a long history of substance abuse, that she had failed to provide a stable and permanent home, and that she was unfit to raise her child. The juvenile officer further asserts that the statute is constitutional.

SC84884
John Smith v. State of Missouri
Audrain and St. Louis counties
Competency of death row inmate

John Smith was arrested for the July 1997 stabbing deaths of his ex-girlfriend and her stepfather at their home near Canton, Missouri. Following several mental examinations, Smith was found competent to proceed to trial, where he was convicted of two counts of first-degree murder and two counts of armed criminal action. He was sentenced to death on both murder counts and to consecutive terms of 20 years each for the armed criminal action counts. This Court affirmed his convictions and sentences, State v. Smith, 32 S.W.3d 532 (Mo. banc 2000), and he subsequently sought post-conviction relief. While incarcerated at the Potosi Correctional Center, Smith was diagnosed with bipolar disorder with psychotic features, and he was placed on medication. Smith's attorneys again sought mental examinations of their client, who later tried to dismiss his Rule 29.15 motion for post-conviction relief. In January 2002, Smith filed a pro se writ in this Court asking that his appeals be stopped and that an execution date be set. This Court deferred ruling on that action. During a July 2002 hearing, Smith told the motion court that he wanted to dismiss his Rule 29.15 motion because he was unhappy with the way his attorneys had been handling his case. He told the court he understood that if he dismissed his motion, he would lose the opportunity to have the post-conviction claims brought in that action reviewed. The court subsequently dismissed Smith's post-conviction relief case, and his attorneys appeal.

Smith's attorneys argue the motion court erred in denying their request for a mental examination to determine whether Smith was competent to waive his rights to post-conviction relief. They contend Smith's competency is called into question by new evidence that arose after Smith was incarcerated at Potosi -- including psychotic behavior, the new bipolar diagnosis, a suicide attempt and problems with his psychiatric medication. Smith's attorneys assert that a mental evaluation was required because, had the court considered his opinion, Potosi's chief of mental health services would have recommended that Smith be evaluated for his competency to waive his Rule 29.15 rights. They argue this professional was qualified to render such an opinion even though he is not a certified forensic examiner because he is a licensed professional counselor and chief of mental health services at Potosi.

The state responds that the court did not err in denying the motion for a mental examination to determine Smith's competency to waive his post-conviction remedies because the evidence presented at the hearing showed that Smith was competent. It argues the court did not abuse its discretion in refusing to consider the opinion of Potosi's chief of mental health services. The state contends this individual's status as a licensed professional counselor does not qualify him legally to offer a mental health diagnosis or render an expert opinion regarding Smith's competency. The state further responds that, even had the counselor's opinion been considered, the evidence still supported the court's finding that Smith was competent.