Case Summary for September 11, 2007

Your Missouri Courts - Supreme Court

Home

Case Summary for September 11, 2007

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.

Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from access.adobe.com.) These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Tuesday, September 11, 2007

_____________________________________________________________________________________________

SC88390
State ex rel. Office of the Public Counsel v. The Public Service Commission of the State of Missouri, et al.
Electric company tariffs
Listen to the oral argument:

Empire District Electric Company sought to raise its rates by 10 percent in February 2006. The Public Service Commission began a hearing on Empire's proposed rate increase, and Empire filed proposed tariffs as well. The commission suspended the tariffs and continued the rate case. On Dec. 21, 2006, the commission decided the substantive rate case issues for Empire but rejected Empire's proposed tariffs. It directed Empire to file tariffs that reflected and conformed to its decision in the rate case. Empire filed new tariffs and asked the commission to approve them by Jan. 1, 2007. That same day, the Office of the Public Counsel filed its objection to the tariffs, arguing they did not conform to the commission's decision in the rate case. The public counsel further objected to the tariffs being approved by the first of the year. At 3:40 p.m. Friday, Dec. 29, 2006, the commission approved Empire's tariff to be effective Jan. 1, 2007. Because state offices are closed Jan. 1, electronic filing of a rehearing motion after 5 p.m. Dec. 29, 2006, or filing of a hard copy paper motion after 4 p.m. that same day would be deemed filed on Tuesday, Jan. 2, 2007 – one day after Empire's tariffs were to become effective. The public counsel sought a writ of mandamus to stop the commission's order. A preliminary writ was issued in May 2007. The public counsel now seeks an order in mandamus directing the commission to rescind its Dec. 29, 2006, order.

The public counsel argues he is entitled to an order in mandamus directing the commission to rescind its December 2006 order approving Empire's rate tariffs effective Jan. 1, 2007. He contends the commission's order is unlawful and unreasonable, fails to conform to its rate case decision, and violates his office's right to judicial review. He asserts that his office had fewer than 90 minutes to review the order and prepare and move for rehearing because the commission issued the order so close to its effective date. As a result, the public counsel argues, the commission violated its duty to provide a reasonable opportunity to seek judicial review. He further argues he is entitled to an order of mandamus because there is no other adequate and efficient remedy. The public counsel asserts an order in mandamus will not confer new authority to his office but rather will allow it to exercise its existing duty to represent the public through appeals.

The commission responds that the order in mandamus should not issue because it provided a reasonable opportunity, under the circumstances, for the office to file for rehearing or reconsideration. It contends the office was permitted to file anytime in the three days between December 29 and January 1. The commission asserts the office's motion would be deemed filed Jan. 2, but the office could have sought rehearing or reconsideration and moved for the commission to waive its procedural rules regarding the time a document is deemed filed. Under the circumstances, the commission responds, the time allotted was reasonable and sufficient. It argues that Empire requested the tariff almost a year earlier and that any additional delay would have been unreasonable. The commission contends an order in mandamus should not issue because the public counsel failed to seek other adequate and efficient remedies available, such as seeking further review from the commission and moving to suspend or reject the tariffs.

SC88501
Darrell J. Fick v. Director of Revenue, State of Missouri
Callaway County
Driver's license revocation
Listen to the oral argument:

A highway patrolman responded to a single-vehicle accident in March 2005. Darrell Fick had driven his pickup truck off the side of the road and overturned in the ditch. While medical personnel treated Fick for injuries, the patrolman spoke with him and smelled alcohol on his breath. The patrolman performed a standard field sobriety test by having Fick follow the patrolman's finger with his eyes. At the time of the test, Fick was in an ambulance, strapped to a backboard, and wearing a neck collar and oxygen mask; he only could do the test with his left eye because the oxygen mask partially covered his right eye. The patrolman concluded Fick failed the test, and Fick admitted to the patrolman and medical personnel that he had been drinking. The patrolman arrested Fick for driving while intoxicated, read him the implied consent and asked if Fick would submit to a blood test. Fick refused, and the director of revenue revoked Fick's driving privileges. At trial, Fick testified his first memory after the crash was waking up in the hospital the next day. In November 2005, the circuit court reinstated Fick's license. The director appeals.

The director argues the circuit court's judgment reinstating Fick's driving privileges is against the weight of the evidence and misapplies the law. She contends the patrolman's testimony, not refuted by Fick, established the patrolman arrested Fick based on reasonable grounds to believe Fick was driving while intoxicated. She asserts the evidence showed Fick was in a single-vehicle crash, exhibited two out of three clues of intoxication in the field sobriety test, and admitted to the patrolman and medical personnel that he had been drinking. The director argues the evidence also showed that the patrolman found an empty 12-pack of beer in Fick's truck and a cold, unopened beer in the debris from the crash and that Fick refused to submit to a blood test.

Fick did not file a brief in this case.

SC88438
State of Missouri v. David Salazar
Buchanan County
Administrative paternity finding
Listen to the oral argument:

David Salazar and Shannon McClure married in June 2000 and separated three months later. They could not afford to file a petition to dissolve their marriage. In November 2001, McClure had a baby. She and Salazar had not had any sexual relations with each other for 14 months prior to the child's birth. The hospital where the child was born insisted on placing Salazar's name on the birth certificate. In October 2003, McClure applied for public assistance. The Division of Child Support Enforcement served on Salazar a notice and finding of financial responsibility that he was the child's father and required him to support the child. Salazar did not give McClure or the child any financial support, and the county prosecutor's office charged Salazar with non-support. The trial court found Salazar guilty and sentenced him to 28 days in county jail. Salazar appeals.

Salazar argues the trial court erred in finding him guilty beyond a reasonable doubt when a critical portion of the evidence that he was responsible for child support came only from an administrative finding. He contends this deprived him of his right to due process because the paternity determination was made outside the court of law. Salazar asserts the trial court erred in refusing to order blood testing. He argues he should not have been sentenced to 28 days in jail because that amounts to cruel and unusual punishment and is disproportionate to the wrongful act he allegedly committed.

The state responds that the trial court properly found Salazar guilty beyond a reasonable doubt because his responsibility to pay child support was established by administrative order and that order legitimated the child by legal process. The state argues Salazar is guilty because there is not a law that requires genetic testing in this case. It contends that Salazar is the child's presumed father and that he did not comply with the statutory requirements to secure genetic testing. The state further responds the trial court properly sentenced Salazar to 28 days in jail. It asserts that he committed the offense of non-support when he failed to support his child adequately and that his sentence is within the range prescribed by statute.

SC88063
Michael D. Taylor v. State of Missouri
St. Charles and Washington counties
Postconviction challenge to death sentence
Listen to the oral argument:

While serving a life sentence without parole for the 1995 rape and murder of Christine Smetzer, Michael Taylor killed his Potosi Correction Center cellmate, Shackrein Thomas. In October 1999, Taylor was charged in Washington County with one count of first-degree murder. After a change of venue to St. Charles County, Taylor was tried in 2003. The only issue in the case was whether Taylor suffered from a mental disease or if he was faking mental illness. The state called an inmate, "Perschbacher," to testify that another inmate told Taylor to fake mental illness to beat his murder charge. Taylor impeached Perschbacher based on his criminal history, psychiatric treatment, conduct violations in prison, contact he had with prosecutors asking for favorable treatment and racism. The jury found Taylor guilty and sentenced him to death. This Court affirmed the conviction and sentence. State v. Taylor, 134 S.W.3d 21 (Mo. banc 2004). In September 2004, Taylor sought postconviction relief to vacate the death sentence. The circuit court overruled Taylor's motion. Taylor appeals.

Taylor's arguments:

Taylor argues the state violated Brady v. Maryland, 373 U.S. 83 (1963), by not disclosing the memo that would have led to critical impeaching evidence that Perschbacher falsely accused two deputies of crimes. He contends his trial counsel was ineffective in failing to uncover the exhibit and failing to impeach a Perschbacher through his corrections records showing he had many providing false information violations and failing to call corrections officials with respect to those allegations. Taylor asserts Perschbacher's corrections file that would have shown he gave false deposition testimony and was an attention-seeking and mentally ill inmate whose pattern of treating serious matters flippantly made him unbelievable and biased. He argues his trial counsel was ineffective for failing to introduce letters from the state's witness' deposition that would have impeached the witness and failing to call a highway man to impeach Perschbacher’s assertions that he helped solve a murder. Taylor contends that the state's witness incorrectly told the jury he was getting nothing for his testimony when in fact the state's attorney advocated leniency for Perschbacher on other charges. He asserts his counsel was ineffective for failing to call a witness to testify that he never sent Taylor material advising Taylor to act crazy to beat the case. He further asserts that staff at Potosi should have been called to provide evidence that the state's witness was unbelievable.

Taylor argues that the motion court erred in overruling a motion to reveal whether there was an investigation of certain deputies' behavior because, if there was never an investigation, this would contradict the prosecutor's claim that he did not disclose a memorandum because doing so might impede an investigation and, if there was an investigation, Taylor was entitled to know the results because the accusations did not result in any action against the deputy.

Taylor contends that the prosecutor failed to correct the witness' false testimony and that his trial counsel was ineffective for failing to impeach the witness with documents that showed the testimonial assertions were objectively false. He asserts adopting the state's findings when those findings expressly contradicted the state's prior vouching for the witness' credibility showed a lack of independent judicial judgment by his trial attorney. Taylor argues the state committed misconduct when it did not disclose certain letters had been destroyed because this information would have impeached the state's witness.

Taylor argues his trial counsel was ineffective in failing to call certain witnesses to testify about the severity of Taylor's mental health problems and failing to introduce records in both phases confirming Taylor's longstanding mental illness. Taylor contends his counsel failed to object to guilt-phase evidence from a witness that he found Taylor competent to proceed in another case because this evidence was prohibited by statute. Taylor asserts his counsel failed to call a witness who would have presented evidence that tests showed Taylor was genuinely schizophrenic and failed to present further evidence establishing the genuineness of Taylor's mental illness. He argues his trial counsel failed to request a mental retardation instruction. He contends his trial counsel was ineffective for failing to object properly and request appropriate relief as to numerous other arguments and statements by the prosecutor. He asserts his counsel was ineffective in developing evidence as to Taylor's family abuse background and educational history.

Taylor asserts that appellate counsel was ineffective for failing to challenge the admission of the state's witness hearsay testimony as to the content of certain alleged notes. He argues appellate counsel also was ineffective for failing to raise a hearsay objection to one witness' hearsay testimony about an autopsy conducted by another person, which he contends violates Crawford v. Washington, 541 U.S. 36 (2004). He contends the jurors did not understand the penalty instructions properly. Taylor further argues that he is incompetent and should not be executed and that the method of execution constitutes cruel and unusual punishment.

State's arguments:

The state responds that Taylor was not denied a fair trial. It contends it did not disclose an investigator's memorandum concerning an interview of Perschbacher because this omission was not prejudicial to Taylor's defense. The state argues all attorneys concluded that Perschbacher was impeached thoroughly and effectively, lacked any credibility with the jury, and did not affect the jury's verdict. The state asserts, therefore, that any further impeachment evidence was unnecessary and would not have affected the trial's outcome.

The state responds that Taylor's trial counsel was not ineffective in failing to impeach Perschbacher with corrections records or collateral matters because Taylor was not prejudiced by this alleged failure. The state argues Taylor made a strategic decision to use certain evidence for impeachment and did so with sufficient effect such that Perschbacher was impeached thoroughly and was not credible as a witness and, for this reason, his testimony played no role in the outcome of his case.

The state contends Taylor was not prejudiced by an investigator destroying letters he received from Perschbacher because, in addition to the destruction being made in good faith, Taylor was not prejudiced. It asserts Taylor's trial counsel thoroughly impeached Perschbacher and any prior inconsistent statements or impeachment contained in those letters was not necessary for Taylor's attorney to impeach Perschbacher.

The state responds that Taylor was not denied his right to effective appellate counsel. It argues Taylor's counsel accurately decided that an appeal asserting error in admitting Perschbacher's testimony would not prevail. The testimony was not offered for the truth of the matter asserted, the state contends, but was offered as evidence about advice Taylor received from a fellow inmate as how to defend his case and, therefore, was not objectionable as inadmissible hearsay.

The state argues trial counsel was effective in making a conscious decision not to introduce certain records at trial. It contends counsel believed some portions of these records contained unfavorable information, did not want to introduce records "piecemeal" and made the strategic decision not to try to introduce only portions of records.

The state argues Taylor's counsel was not ineffective in failing to object to the expert testimony of its psychiatrists because their testimony was relevant and admissible in determining whether Taylor suffered from a mental disease or defect at the time he murdered Thomas.

The state further responds Taylor's trial counsel was not ineffective for deciding not to call certain expert witnesses. It argues that trial counsel has no constitutional duty to "shop" for certain experts and that trial counsel made a reasonable decision to call certain expert witnesses after careful consideration and review of all the evidence. The state contends Taylor's attorneys were competent in their choice of experts used at trial and in the presentation of evidence in support of Taylor's claim that he lacked responsibility for the murder due to schizophrenia.

The state asserts Taylor's trial counsel was effective for not objecting to certain arguments and questions by the prosecution during trial. It argues that the questions and argument did not deny Taylor a fair trial and that it was within the discretion of Taylor's counsel to decide not to raise an objection.

The state contends the motion court properly overruled Taylor's claim that he is incompetent to be executed because Taylor failed to present significant evidence establishing he is incompetent

The state responds Missouri's method of execution is not unconstitutional. It argues that Taylor failed to present sufficient evidence that Missouri's method of execution is cruel and unusual and that the U.S. Court of Appeals for the Eighth Circuit has held that Missouri's method of execution is constitutional. The state argues this Court consistently has discredited the argument that the jury did not comprehend the jury instructions.