Case Summary for October 27, 2009

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Case Summary for October 27, 2009

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

9:30 a.m. Tuesday, Oct. 27, 2009

_________________________________________________________________

SC89948
State of Missouri v. Vanessa J. Severe
Gentry County
Driving while intoxicated
Listen to the oral argument:

Severe was represented during argument by Nancy A. McKerrow of the public defender's office in Columbia, and the state was represented by Richard A. Starnes of the attorney general's office in Jefferson City.

Vanessa Severe was driving on a highway in January 2007 when her car flipped into a ditch. The highway patrolman who came to the accident scene noted Severe's eyes were bloodshot and her speech was slurred. Severe did not pass the tests given by the patrolman, and she was arrested for driving while intoxicated. At trial, the state argued Severe had two prior alcohol-related convictions. Her previous convictions include a municipal violation in which she pleaded guilty to driving while intoxicated and received a suspended imposition of sentence and another case in which she pleaded guilty to a class B misdemeanor of driving while intoxicated and was sentenced to pay a fine. Due to the previous convictions, Severe was convicted of the class D felony of driving while intoxicated pursuant to sections 577.010 and 577.023, RSMo, as a prior and persistent DWI offender. She was sentenced to three years imprisonment. Severe appeals.

Severe argues the trial court violated her rights to due process under the Missouri Constitution and the fourteenth amendment of the United States Constitution. She contends in State v. Turner, 245 S.W.3d 826 (Mo. banc 2008), this Court held that prior municipal offenses resulting in a suspended imposition of sentence cannot be used to enhance a driving while intoxicated conviction under section 577.023. Severe asserts because one of the two prior convictions was her intoxication-related traffic conviction in the municipal division in 1999, resulting in a suspended imposition of sentence, it could not be used to enhance her punishment.

The state responds that it agrees Turner requires a remand for sentencing. It argues, however, because the state's proof and trial court's finding was sufficient to prove Severe's persistent offender status under the controlling law at the time of trial, the state should be given the opportunity on remand to present additional evidence to prove Severe is a persistent offender.

SC89951
John J. Hightower v. Melissa Ann Myers, et al.
Jackson County
Modification of child custody, visitation and child support
Listen to the oral argument:

Mother was represented during argument by Ronald Ribaudo of the attorney general's office in Jefferson City, and Father was represented by Michelle N. Higinbotham of Belton.

In August 1999, Father and Mother had a child. They were not married to each other at the time of the child's birth. In May 2001, Mother and Child moved to New Jersey and Father stayed in Missouri. Child returned to Missouri several times to stay with Father and, in January 2002, Father sought determination of child custody, visitation and other relief. In April 2003, the circuit court entered a judgment and order of paternity, parenting time and child support, granting joint legal and physical custody with Mother's address designated as the Child's address. In September 2006, Father moved to modify custody and visitation seeking residential custody of the child after Mother and Child relocated to Georgia with the intent to reside there permanently. In July 2007, the circuit court sustained Father's motion to modify custody, transferring residential custody from Mother to Father. Mother appeals.

Mother argues the trial court in Missouri never had subject matter jurisdiction over the custody of Child pursuant to section 452.450, RSMo. She contends the evidence showed Child moved with her to New Jersey in May 2001 and Child only went to Missouri to visit Father. Mother argues the trial court abused its discretion in finding it had subject matter jurisdiction over the custody of Child on September 2006 because the Child's home state was New Jersey and it was inappropriate for Missouri to exercise jurisdiction pursuant to any of the subsections of section 452.450. Mother asserts the trial court erred in finding the parties experienced a continuing change in their circumstances so substantial that a modification was necessary to serve the best interests of the Child. She argues the trial court's findings and judgments concerning custody were not supported by substantial evidence, were against the weight of the evidence, or were a result of the trial court's misapplication of the law in that a change in Child's residential custody from Mother to Father was unnecessary and not in the child's best interest.

Father responds the circuit court had subject matter jurisdiction in September 2006 because his September 2006 motion was to modify the trial court's earlier decisions in the same case. He contends the trial court had subject matter jurisdiction when he filed his petition for determination of custody, visitation and child support in January 2002 and when the circuit court issued its judgment in April 2003 pursuant to section 452.450. Father argues Missouri was, and has been, Child's "home state" because Child was in Missouri within six months of the commencement of the proceeding in January 2002 and Father continued living in Missouri. He contends Child was only removed from Missouri to New Jersey, then to Georgia, for temporary absences.

SC89830
State of Missouri v. Carman L. Deck
Jefferson County
Appeal of death penalty
Listen to the oral argument:

Deck was represented during argument by Rosemary E. Percival of the public defender's office in Kansas City, and the state was represented by Evan J. Buchheim of the attorney general's office in Jefferson City.

In February 1998, Carman Deck was convicted of two counts of murder in the first degree after he and his sister robbed and killed two people in July 1996. Deck was sentenced to two death sentences. That conviction and sentence was affirmed by this Court in State v. Deck, 994 S.W.2d 527 (Mo. banc 1999). Deck appealed from the circuit court's denial of Rule 29.15 postconviction relief, and this Court reversed the death sentences, but affirmed the finding of guilt for the murder charge and convictions for robbery, burglary and armed criminal action. Deck v. State, 68 S.W. 3d 418 (Mo. banc 2002). After the rehearing for sentencing, Deck again was given two death sentences. This Court again affirmed the sentences in State v. Deck, 136 S.W.3d 481 (Mo. banc 2004), but the United States Supreme Court found constitutional error and remanded the sentencing trial in Deck v. Missouri, 544 U.S.622 (2005). Subsequently, this Court ordered a third sentencing trial. At the third sentencing trial, Deck again received two death sentences. Deck appeals.

Deck's argument

Deck argues the trial court violated his rights to due process, equal protection and freedom from cruel and unusual punishment under the United States and Missouri constitutions in giving him two death sentences. He contends section 565.040.2, RSMo, mandates he should have been sentenced to life imprisonment without eligibility for parole because the death sentences imposed were held to be unconstitutional.

Deck asserts the trial court violated his right to a trial by a fair and impartial jury and abused its discretion in sustaining the state's motions, over his objections, to strike certain potential jurors for cause based on their reluctance to serve as the jury's foreperson. He contends these potential jurors were otherwise qualified to serve as jurors and their only "fault" was a reluctance to serve as foreperson and sign the verdict form for death.

Deck argues the trial court violated his right to confrontation in letting the state argue, over his objections, that his 23-year-old conviction for helping another person escape from a county jail could be considered evidence of Deck's bad prison conduct or future dangerousness to others. He asserts the state did not give him notice it would use this conviction and he, therefore, did not have an opportunity to rebut this aggravating evidence.

He contends the trial court erred in allowing the state to lead jurors to believe they had a duty to the victims' grandchildren to return sentences of death and erred in failing to intercede sua sponte (intervene on its own) during the state's closing argument because the state's arguments were improper and highly prejudicial. Deck argues the state's closing argument improperly appealed to the jurors' sympathy, engaged in improper personification, and misstated and reached beyond the evidence presented to obtain death verdicts.

He asserts the trial court erred in overruling his objections and motion to suppress physical evidence and statements he made during a police officer's illegal search and seizure of Deck's car. Deck contends that the evidence and statements were obtained in violation of Deck's right to be free from unreasonable searches and seizures and that their use at the penalty phase re-trial violated his rights.

He further argues the trial court violated his rights to presumption of innocence and proof beyond a reasonable doubt in submitting certain jury instructions. He contends the trial court did not read a mandatory instruction that was essential to the jury's ability to respond appropriately to questioning during the death qualification. Deck contends most lay people are not familiar with the steps jurors must follow to recommend a death sentence. He asserts the jury instructions failed to inform the jurors the state bore the burden of proving beyond a reasonable doubt that the aggravating evidence outweighed the mitigating evidence. Deck argues this prevented the jury from giving meaningful consideration and effect to mitigating evidence. He asserts the instructions erroneously required Deck, not the state, to prove the mitigating evidence outweighed the aggravating evidence, thereby establishing his eligibility for a life sentence.

Deck argues the trial court erred in sentencing him to death because the state never charged him with aggravated first degree murder, the only offense punishable by death in Missouri. He contends this Court should apply de novo review and consider similar cases where the death sentence was not imposed. Deck argues this Court should reduce his sentence to life imprisonment without parole, based on the substantial mitigating evidence and the nature of the crimes.

State's response

The state responds Deck was not entitled to an automatic sentence of life without parole pursuant to section 565.040, because that statute did not apply to Deck's case. It contends section 565.040 applies only if a court declares either capital punishment or the statutory scheme under which the death penalty is imposed to be unconstitutional, neither of which occurred in Deck's case.

The state argues the trial court properly removed potential jurors from the jury pool because those potential jurors' would have been unwilling or unable to consider the full range of punishment.

It contends the trial court properly overruled Deck's objection to the state's argument about Deck's prior conviction for aiding an escape because Deck knew the state would present evidence of this conviction during the penalty-phase proceeding.

The state further responds the trial court properly overruled Deck's objection to the state's closing argument and his motion to suppress the evidence found in his car and the statements he made confessing to the crimes. The state contends Deck's claim is precluded by the law-of-the-case doctrine in that an identical claim was already rejected by this Court in Deck's first direct appeal, State v. Deck, 994 S.W.2d 527 (Mo. banc 1999).

The state contends the trial court did not plainly err in failing to read certain instructions before the death qualification because this oversight did not result in manifest injustice in that the potential jurors were given the information contained in the instruction before the questioning began. Similarly, the state asserts the trial court did not err in giving mandatory instructions because those instructions were presumptively valid and they did not impermissibly shift the burden of proof to Deck. In addition, it argues, Deck's arguments are barred by the law-of-the-case doctrine because this Court rejected identical claims in previous cases and these are claims that Deck raised and this Court rejected, or are claims he could have raised, in a previous appeal.

The state argues the trial court did not exceed its jurisdiction in sentencing Deck to death because the state is not required to plead the statutory aggravating circumstances in the information. It contends this claim has been repeatedly rejected by this Court, including in one of Deck's previous appeals. The state further responds this Court should affirm Deck's death sentences because the sentence was not imposed under the influence of passion, prejudice or any other arbitrary factor; the evidence supports the jury's findings of aggravating circumstances; and the sentence is not excessive or disproportionate to those in similar cases considering the crime.

SC90131
Joseph Banks v. Sarah Steelman, Treasurer of the State of Missouri, Custodian of the Second Injury Fund
Cole County
Subrogation interest in workers' compensation claim
Listen to the oral argument:

The second injury fund was represented during argument by Kareitha A. Osborne of the attorney general's office in St. Louis, and Banks was represented by Ellen E. Morgan of Webster Groves.

In September 2000, Joseph Banks was driving a van for his employer when the driver of another vehicle hit the van. Banks sustained injuries to his neck and both shoulders. Due to Banks's injuries, he could no longer do his job. Banks sued the other driver's insurance company and settled for the policy limit of $100,000. Some of that money was kept in an account for attorney's fees and costs. Banks also filed a workers' compensation action against his employer and against the secondary injury fund for permanent total disability. In January 2008, an administrative law judge issued her award finding that Banks sustained a permanent partial disability and held Banks's employer liable for permanent partial disability benefits from October 2002 to May 2006. The judge also found that Banks was permanently and totally disabled as of October 2002. In January 2007, with an administrative law judge's approval, the employer settled with Banks, paying him more than $99,000. In October 2007, another administrative law judge held a hearing on Banks's remaining claim against the second injury fund. The judge ordered the fund to pay the permanent total disability benefits for the remainder of Banks's lifetime. The judge held the fund was not entitled to a subrogation recovery (credit the fund's future payments based on money paid to Banks from third party) from the proceeds of Banks's action against the other driver because the employer's subrogation recovery had not yet been determined. In January 2008, the second injury fund sought review with the labor and industrial relations commission arguing money Banks received from the other driver ($100,000 minus court expenses and attorney's fees) should have been treated as an advance payment by the fund. In July 2008, the commission affirmed the award. The second injury fund appeals.

The second injury fund argues it is entitled to subrogation recovery and the commission erred in ordering the fund to begin payments to Banks without determining its subrogation interest. It contends it has the right of subrogation to avoid duplicating payments for the same injury pursuant to the holding in Cole v. Morris, 409 S.W.2d 668 (Mo. 1966), in that money paid to Banks for his work injury by a third party is the same injury for which the second injury fund was ordered to pay. The second injury fund asserts the commission was able to determine the subrogation interest as set forth in Cole v. Morris, because it had jurisdiction to determine the credit owed to the fund, the commission was not required to first determine the subrogation rights of the employer, and the commission had a sufficient record to determine the subrogation rights of the fund such as the amount recovered, attorney's fees and expenses.

Banks responds the commission did not err in denying the second injury fund's request for a determination of its subrogation recovery because it did not have jurisdiction to do so. He argues the fund's subrogation right is equitable and does not arise under the workers' compensation act. Further, Banks asserts, the commission is an administrative agency, created by statute, and possesses jurisdiction granted to it only by the workers' compensation act. He contends, therefore, the commission does not have jurisdiction to determine the amount of the fund's subrogation recovery from the settlement in the third party action. Banks further responds if the second injury fund would like to secure a ruling as to the amounts of its subrogation recovery, it must do so in a circuit court.