Case Summary for December 12, 2006

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Case Summary for December 12, 2006

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, December 12, 2006
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SC87837
State of Missouri v. Justin J. Walkup
Jackson County
Evidence of defendant's mental condition in first-degree murder trial

In 1996, Justin Walkup was hospitalized and treated for bipolar disorder after he destroyed property in his home during an argument with his wife. After hospitalization, he took medication for bipolar disorder for nearly three years. Walkup, now divorced, started dating Deborah Lilly during summer 2002 and lived with her at her Grandview apartment. The night of January 21, 2003, Walkup called a friend and told him he had killed Lilly. Apparently intoxicated and hysterical, he told his friend that he and Lilly had argued and that he had choked and stabbed her. Later that night, he drove Lilly's car off the interstate and crashed into a fence at a Kansas City home. He asked the couple who lived at the house not to call the police and, appearing drunk and disoriented, told them that he had killed his girlfriend. The woman saw him throw something in the snow behind a shed. Believing Walkup was drunk, the man drove him home. Finding the police at Lilly's apartment, the man returned Walkup to the accident scene. Walkup then used the couple's telephone to call Lilly's telephone number, leaving a message stating "you're laying in a pool of blood and nobody is going to help you." When police arrived, the couple forced Walkup out of their house. He approached the officers and said he had killed his girlfriend. During questioning by police at three different times during the subsequent 12 hours, Walkup initially seemed surprised Lilly was dead and, at times, appeared belligerent or aloof and passive. Walkup ultimately confessed on videotape and in writing. Lilly was found dead in the apartment. She had been stabbed or cut 13 times, including stab wounds to her heart and completely through her chest. After the snow melted a few days later, the woman found two knives, traced with Lilly's blood, in the yard. Walkup was charged with first-degree murder and armed criminal action. The day before trial, Walkup informed the state that he would present the expert testimony of a psychologist who had examined him. At trial, Walkup's counsel told the court the psychologist would testify that Walkup suffers from bipolar disorder, intermittent explosive disorder and substance abuse problems. Walkup argued the testimony was relevant to his state of mind because the psychologist would testify bipolar disorder amplifies emotional intensity. The court did not allow the testimony, deciding it would be unfair because the state should have received the psychologist's report earlier in the process and should have been given an opportunity to depose the psychologist before trial. The jury convicted Walkup of both charges, and the court sentenced him to concurrent sentences of life imprisonment without parole. Walkup appeals.

Walkup argues the court should have allowed the jury to hear his expert psychologist's testimony. He contends that the court's refusal to do so violated his constitutional rights to due process, a fair trial and to present a defense. He asserts that he did not violate Rule 25.05, which governs the exchange of information between the state and the defendant. He argues that his defense counsel told the state months before trial that the psychologist had been retained to evaluate Walkup. Alternatively, he argues that even if the rule was violated, the court's decision not to allow the psychologist's testimony is too harsh. Walkup contends that refusing the testimony results in fundamental unfairness because he was not able to present evidence supporting his defense that he did not deliberate before killing Lilly. Walkup contends that the court should refuse a criminal defendant's right to call a witness only in rare circumstances – which do not exist when the state actually is aware a defendant is consulting with an expert.

The state responds that the court was correct to refuse the psychologist's testimony because Walkup should have disclosed that he intended to call the expert witness earlier than one day before trial. The state argues that four months before trial, it requested that Walkup identify all witnesses he intended to call and to inform the state if he intended to rely on a defense of mental disease or defect. It contends that because Walkup disavowed a mental disease or defect defense, he could not present any evidence that he suffered from a mental disease. Alternatively, the state asserts that the psychologist's testimony properly was excluded because it was inadmissible and irrelevant. It contends that by offering the psychologist's testimony, Walkup hoped to present a diminished capacity defense, arguing that he lacked the capacity to deliberate, which is necessary for a conviction of first-degree murder. The state argues that Walkup could not present a diminished capacity defense without providing notice under section 552.030, RSMo.

SC87902
State of Missouri v. Robert D. March
Butler County
Admission of hearsay and uncharged bad acts testimony

After observing a house occupied by Robert March and Keva Davis, Poplar Bluff police acquired a search warrant and entered the home in the early morning of September 6, 2006. Police found March and Davis unclothed and in bed. The officers told March and Davis to put their hands above the covers and to get out of the bed. Police handcuffed March after he put on a pair of jeans. Police provided Davis a robe to wear before leaving the bed. Police observed that Davis' toes were clenched when she walked from the bedroom to the living room. They found under her foot a plastic bag containing off-white residue and "rocks" that the state argues tested positive for crack cocaine. Police also found more than $1,400 in March's jeans. While searching the house, police officers overheard March telling Davis to "take the rap" because he couldn't take the "weight." Police arrested March and Davis. Davis later agreed to plead guilty to a possession charge in exchange for her testimony against March and the prosecutor's agreement to recommend she serve no prison time. Before trial, Davis testified in a deposition that she did not tell police the drugs belonged to March because she was concerned about her safety. She stated she was happy with the plea agreement because she could "put the whole ordeal behind" her. At trial, Davis testified that after they were released from jail, March told her that he knew the police knew the drugs were his and he wondered who "ratted him out." When the prosecutor asked Davis to explain what she meant in her deposition when she said she was happy to put "the whole ordeal behind" her, March objected, arguing the testimony might lead to discussion of uncharged bad conduct. The court allowed the questioning, and Davis ultimately testified that she "stayed quiet" because March threatened her and that he is a "woman beater." The court instructed the jury to disregard those comments and rejected March's request to declare a mistrial. Also at trial, the state offered a laboratory report prepared by Dr. Robert Briner. The report stated that the plastic bag found under Davis' foot contained 2.7 grams of a substance that tested positive as crack cocaine. The state presented Pam Johnson, custodian of laboratory records, to testify about Briner's report. The state did not call Briner, who lives in North Carolina, to testify. March objected to the introduction of the report, arguing it is inadmissible because Johnson did not complete the tests and has no direct knowledge of the contents of the plastic bag. He also argued the report is inadmissible hearsay because he did not have an opportunity to confront and question Briner about the tests and his conclusions. The court permitted Johnson's testimony and admitted the report into evidence. The jury convicted March of second-degree trafficking. The court sentenced him, as a prior offender, to 15 years in prison. March appeals.

March argues the court should not have allowed into evidence the Briner report or Johnson's testimony because the report and testimony were inadmissible hearsay. He contends that because the state did not show that Briner was unavailable to testify and that March had no opportunity to cross-examine him, allowing the report into evidence violates his right to confrontation under the state and federal constitutions. March also asserts that the court should have declared a mistrial after Davis testified that he is a "woman beater" because the statement constituted evidence of an uncharged crime or prior bad act. He contends that as evidence of an uncharged crime, Davis' statement is not admissible because it is irrelevant and more prejudicial to March than probative of the issues in the trial.

The state responds that the court correctly admitted Briner's report and Johnson's testimony because the laboratory report is non-testimonial evidence admissible under the business records exception to the hearsay rule. It contends that laboratory reports are business records because the reports are prepared in the regular course of business and objectively state the results of well-recognized scientific tests, follow a routine manner of preparation to ensure accuracy, and do not contain an analyst's subjective opinions or conclusions. Alternatively, the state argues that even if the court should not have admitted the report, the error was harmless and does not justify a reversal. The state also argues that the extreme remedy of a mistrial was inappropriate to deal with the prejudice to March when Davis testified he is a "woman beater." It asserts that a mistrial was not necessary because Davis' statement did not answer the prosecutor's question, the prosecutor did not intend to elicit information about any prior bad acts, her statement was the only such evidence during the trial and the jury was instructed to disregard the comment. The state also argues that the prosecution's case was so strong that March would have been convicted even without Davis's comment.

SC87816
Richard D. Weinstein v. KLT Telecom, Inc.
St. Louis County
Enforceability of stock sale agreement after company's dissolution in bankruptcy

Richard Weinstein is the former majority shareholder, president, chief executive officer, secretary and chairman of the board of directors of DTI Holdings Inc. In December 2000, Weinstein agreed to sell more than 20 million DTI Holdings shares to KLT Telecom Inc. When the sale was complete in February 2001, KLT Telecom owned the majority interest in DTI Holdings, and Weinstein held the minority shares and sat on the board of directors. Also in December 2000, Weinstein and KLT Telecom agreed that KLT Telecom would buy Weinstein's remaining shares if he chose to exercise that option between September 1, 2003, and August 1, 2005. Under the agreement, Weinstein was to transfer a stock certificate evidencing his remaining DTI shares to an escrow agent selected by the parties. If Weinstein exercised his rights to sell the DTI shares, KLT Telecom agreed to pay a minimum of $15 million. In December 2000, Weinstein deposited a DTI stock certificate with an escrow agent. In December 2001, DTI Holdings filed for bankruptcy with the approval of the board of directors. In June 2003, the bankruptcy court extinguished and cancelled all equity interests in the company, including stocks. In September 2003, Weinstein exercised the option to sell. KLT Telecom declined to buy, arguing the shares were extinguished in bankruptcy. Weinstein sued, alleging breach of contract. The court granted summary judgment to KLT Telecom. Weinstein appeals.

Weinstein argues that KLT Telecom was bound by a valid contract because the sale of more than 20 million shares of stock was valid consideration for KLT Telecom's agreement to purchase Weinstein's remaining stock at his election. He contends that when KLT Telecom agreed to the sale, it accepted the risk that the stock's value would decline. Weinstein also asserts that, because he delivered the stock certificate representing his remaining shares to the escrow agent and later elected to sell those shares, he performed all acts necessary to compel KLT Telecom to buy the stock. He argues the bankruptcy court did not discharge KLT Telecom's obligations under the agreement. He contends the bankruptcy court could not interfere with KLT Telecom's obligation to buy. He argues that his involvement in the bankruptcy as a member of the DTI Holdings board of directors did not amount to a diminishment of his shares that prevents him from insisting on the sale. He asserts that the doctrine of frustration of purpose does not relieve KLT Telecom of its contract obligations because, he contends, the DTI bankruptcy was foreseeable. Weinstein argues that principles of equity do not apply to relieve KLT Telecom's contractual obligations because a court does not ordinarily protect a party from a bad bargain.

KLT Telecom responds that the contract to buy the remaining stock was not enforceable because, at the time Weinstein elected to sell, the stock had been extinguished in bankruptcy. It argues that because the stock no longer existed, the contract to sell was not enforceable. KLT Telecom contends that when it agreed to purchase the stock, if Weinstein made it available during a certain period, it was obligated simply to keep its offer open during that period – but had no obligation to purchase unless Weinstein actually delivered the stock. It argues that Weinstein is bound by the bankruptcy plan and that he impermissibly challenges the bankruptcy court's order by trying to enforce a sale of stock extinguished by that court. Alternatively, it argues that Weinstein disposed of all his shares in DTI when he participated in the bankruptcy process as a member of the board of directors, so he cannot bring a claim for breach of contract. KLT Telecom contends that even if an obligation to sell existed, the doctrine of commercial frustration relieves that obligation because the bankruptcy court's order destroyed the DTI Holdings stock. It also contends that it would be unfair to require KLT Telecom to pay $15 million for stock that does not exist.