Case Summary for September 13, 2012

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Case Summary for September 13, 2012

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 a.m. Thursday, Sept. 13, 2012

____________________________________________________________________________________________________

SC92250
Rollan Williams v. State of Missouri
St. Louis city
Ineffective assistance of counsel

Listen to the oral argument:

Williams was represented during arguments by Loyce Hamilton of the public defender's office in St. Louis, and the state was represented by Timothy A. Blackwell of the attorney general's office in Jefferson City. Judge George W. Draper III did not participate.

Rollan Williams was convicted of robbery, armed criminal action and unlawful use of a weapon and was sentenced to a total of 30 years in prison for a June 2006 altercation at the home of his estranged wife. At trial, the prosecution introduced testimony of a witness who it claimed had good credibility and no motive to lie. Williams recommended a potential witness to his counsel to impeach (contradict or otherwise undermine) the prosecution’s witness, but his counsel chose not to call the witness. Williams filed a motion for post-conviction relief, claiming his counsel was ineffective for failing to call his witness and for failing to raise a sufficiency claim regarding the lethal capabilities of his weapon. The circuit court overruled the motion without an evidentiary hearing, finding the outcome would not have been different had the witness been called and the weapon was readily capable of lethal use. Williams appeals.

Williams argues the circuit court erred in overruling his motion for post-conviction relief without a hearing. He contends the facts he alleges in his motion were not contradicted by the record. Williams asserts he was denied his rights to due process and effective assistance of counsel because his trial counsel failed to call his proposed witness at trial. He argues that, had the witness been allowed to testify, the outcome of the trial would have been different. Williams contends his appellate counsel failed to raise a claim on appeal regarding the sufficiency of the evidence supporting the charge for unlawful use of a weapon. He asserts there is a reasonable probability that raising a sufficiency claim would have changed the appellate court’s decision.

The state responds that the circuit court did not err in overruling Williams’ motion for post-conviction relief without a hearing. It contends the court properly found Williams’ trial counsel was effective despite not calling an additional witness. The state asserts Williams failed to show the witness’ testimony would have been admissible or would have affected the outcome of the trial. The state responds that Williams’ appellate counsel was not ineffective for failing to raise a sufficiency claim on appeal. It asserts there was no reasonable probability the outcome of the appeal would have been different had the claim been raised.

SC92408
Nathaniel James Manner v. Nicholas Brian Schiermeier, Con-Tech Foundations, LLC, Helmet City, Inc., and Jafrum International, Inc., and American Family Mutual Insurance Company and American Standard Insurance Company
St. Charles County
Amount recoverable under underinsured motorist policies

Listen to the oral argument:

Manner was represented during arguments by Gretchen Garrison of Gray, Ritter & Graham PC in St. Louis, and Schiermeier, Con-Tech Foundations, Jafrum International, American Family Insurance and American Standard Insurance were represented by Robert J. Wulff of Evans & Dixon LLC in St. Louis. Judge George W. Draper III did not participate.

Nathaniel Manner was operating a Yamaha motorcycle when he was struck by a vehicle driven by Nicholas Schiermeier, causing $1.5 million in bodily injuries. Manner has three insurance policies: one from American Standard Insurance Company of Wisconsin, covering the motorcycle; and two from American Family Mutual Insurance Company covering other vehicles . Each policy provided underinsured motorist coverage of $100,000 per person. Manner’s father also had an American Family policy with $100,000 underinsured motorist coverage. Schiermeier’s insurance had a $100,000 per person policy limit. Manner sued Schiermeier for negligent operation of his vehicle. Manner also sued Jafrum International Inc., his helmet’s manufacturer, as well as Helmet City Inc., the helmet seller, alleging product defect and failure to warn . Manner received the $100,000 liability limit of Schiermeier’s insurance and settled with the helmet’s manufacturer and seller. Manner later added American Family and American Standard as defendants, seeking underinsured motorist coverage under both his policies and his father’s policy. The underinsured motorist provisions of all three policies are the same, and all three polieis limit coverage for each person to the maximum for damages sustained by all persons as the result of bodily injury to one person in any one accident, regardless of how many insured persons or vehicles are involved in the accident. They also provide that the limits of liability will be reduced by a payment made on behalf of any person liable for loss in an accident with an underinsured vehicle. Further, the policies provide that insurance for an insured person occupying a vehicle the policyholder does not own is excess over any other similar insurance. The policies also included an owned-vehicle exclusion for occupying a vehicle not insured under the policy if owned by “you” or “a resident” of your household. Manner attempted to “stack” his three policies along with his father’s policy – each of which provided $100,000 in underinsured motorist coverage – to collect a total of $400,000 underinsured motorist coverage. Manner asserted the Yamaha was titled in the name of his uncle and that, while he did stay with his father, he did not consider his father’s house to be his residence. The insurance companies filed a motion for summary judgment, refuting the underinsured motorist claims. Manner also filed for summary judgment. The trial court granted full summary judgment to the insurance companies. Manner appeals.

Manner argues the trial court erred in granting summary judgment to the insurance companies. He contends the court ignored the law and misinterpreted policy by finding the owned-vehicle exclusion does not apply or is ambiguous. Manner asserts the word “owned” should be interpreted strictly to mean “title.” He argues the insurance companies failed to submit material evidence proving the owned-vehicle exclusion did not apply to him because it was undisputed that he did not have the title to the motorcycle. Manner contends the owned-vehicle exclusion does not apply or is ambiguous. He asserts that his evidence that he was not a resident of his father’s household was undisputed by material evidence. Manner argues he is entitled to stack the insurance policies notwithstanding the limits of liability provision under another insurance policy. He contends the maximum-person liability limits of the policy do not apply here or are ambiguous. Manner asserts that he may stack policies to meet the underinsured vehicle requirement and that stacking any two policies here leaves the vehicle underinsured. He argues the limits of liability provision of the policy regarding set-off conflicts with the other policies’ provisions, causing the set-off provision to be ambiguous. Manner contends set-off here should be for amounts paid for loss caused by an underinsured vehicle not including amounts paid through another source. He asserts the director of insurance’s approval of the insurance companies’ policies does not preclude a finding that the language in the policies is ambiguous.

The insurance companies respond that the trial court correctly granted them summary judgment. They contend the owned-vehicle exception applied and prevented Manner from recovering underinsured benefits because he owned the motorcycle and the other insurance policies didn’t apply. The companies assert Manner was a resident of the household where the owner of another motorcycle insured under American Standard’s motorcycle policy resided. They respond that Manner was not permitted to stack the underinsured motorist coverage because he occupied an owned vehicle at the time of his accident. The companies contend the policy provisions limiting liability operate to limit recovery to the highest limit under any one policy. They assert Schiermeier’s vehicle did not meet the definition of an underinsured vehicle because he had $100,000 limits as did each of the policies at issue. The companies argue that because Manner failed to exhaust the limits of liability, they had no obligation to pay underinsured benefits. They contend the set-off provision is clear and unambiguous and allows set-off from the limit of liability not from the total damages incurred by the insured party. The companies assert they are allowed to set off the limit of liability against the amount paid by Schiermeier’s insurer and the other parties to the matter, reducing the liability to zero.

SC92432
Brandon L. Swallow v. State of Missouri
St. Louis County
Post-conviction relief

Listen to the oral argument:

Swallow was represented during arguments by Lisa M. Stroup of the public defender's office in St. Louis, and the state was represented by James B. Farnsworth of the attorney general's office in Jefferson City. Judge George W. Draper III did not participate.

Brandon Swallow pleaded guilty in March 2006 to first-degree assault and armed criminal action for a stabbing incident. The trial court sentenced Swallow to three years for armed criminal action and suspended his sentence for assault. He served the three-year sentence in the department of corrections, where he was diagnosed with schizophrenia and prescribed medicine. After serving that sentence, he was placed on probation for the assault conviction. While on probation, however, Swallow was unable to obtain health insurance for his medications. Probation was revoked in March 2010, and he was ordered into an institution treatment center in the department of corrections. Swallow did not receive antipsychotic medication at the treatment center and was terminated from the program because of negative actions and behavior. Six months after reentering the department, Swallow filed a motion for post-conviction relief, which the circuit court dismissed. Swallow appeals.

Swallow argues the motion court erred in dismissing his motion for post-conviction relief as untimely. He contends the dismissal violated his right to due process because he made his filing within 180 days of arriving at the department of corrections. Swallow asserts he was prejudiced by the court not ruling on whether his guilty pleas were involuntary, unknowing and unintelligent. He argues counsel failed to file a motion to suppress statements he made during interrogation, which he claims were obtained unconstitutionally. Swallow contends he made the statements when he was 17 without being advised of his right to remain silent or to have his parents present. He asserts counsel failed to ask the court for a psychological examination to determine if he required antipsychotic medications while in the department of corrections. Swallow argues that proper medication would have prevented his termination from the treatment center and would have allowed him to complete the program and be granted probation.

The state responds that the circuit court did not err by dismissing Swallow’s motion as untimely. It argues Swallow was advised of his right to appeal the conviction and sentence within 180 days of arriving at the department of corrections following sentencing. It contends that by waiting until after his probation was revoked to file his motion, Swallow was more than four years past the 180-day time limit. The state asserts Swallow’s sentences should not be considered separately for purposes of litigation. It argues the time limit is on the judgment, not each individual conviction underlying the judgment.

SC92166
Leonard S. Taylor v. State of Missouri
St. Louis County
Post-conviction relief in a death penalty case

Listen to the oral argument:

Taylor was represented during arguments by Jeannie M. Willibey 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.

Leonard Taylor was convicted in February 2008 of four counts of first-degree murder and armed criminal action for the December 2004 shooting deaths of his live-in girlfriend, Angela Rowe, and her three children at their home in Jennings. He was sentenced to death for each of the murder convictions. Telephone records presented at trial were used to trace calls made from Rowe’s home and from Taylor’s cell phone, as well as calls made to Taylor from various family members and friends. Records custodians for Charter and Sprint testified regarding the telephone records. Six calls in Charter’s records were highlighted in yellow. The custodian testified those designated incoming calls provided to Charter by other carriers for billing for which Charter did not have all of the information. The custodian testified those calls likely went to voicemail after comparing them to other calls that did go to voicemail. On direct appeal, this Court upheld the convictions. State v. Taylor, 298 S.W.3d 482 (Mo. banc 2009). Taylor subsequently sought post-conviction relief. The trial court granted an evidentiary hearing for some of his claims and overruled the remaining claims without a hearing. The circuit court ultimately denied relief. Taylor appeals.

Taylor argues the circuit court erred in overruling his claim for ineffective assistance of counsel. He contends counsel failed to examine the telephone records properly and to elicit evidence of the records’ omissions and inaccuracies. Taylor asserts his rights to due process, a fair trial, effective assistance of counsel, and freedom from cruel and unusual punishment were violated because the jury did not have the opportunity to hear evidence that the telephone records were incomplete and potentially inaccurate. He argues the outcome of trial would have been different with more extensive evidence of the telephone records because the state used them to prove certain calls were not made and to discredit witness statements. Taylor contends the telephone records custodian who testified was not sufficiently familiar with outside carriers’ practices to interpret their data as to whether records of the highlighted calls meant the calls went to voicemail. He asserts his counsel was ineffective for failing to obtain favorable evidence from the telephone records through cross-examination of the state’s witnesses. Taylor argues counsel was ineffective in failing to object to the prosecutor’s statements that the jury could lean toward the death penalty when children were involved and that the telephone records did not support a witness’s testimony. He contends that, because his post-conviction relief motion alleged facts that entitled him to relief, the court’s judgment overruling his motion violated his rights to due process, a fair trial, effective assistance of counsel, and a fair and impartial jury and subjected him to cruel and unusual punishment.

The state responds that the circuit court correctly overruled Taylor’s claims for ineffective assistance of counsel. It contends Taylor failed to prove that counsel did not have valid trial-strategy reasons for not undercutting the reliability of the telephone records and that counsel did not know discrepancies in the records existed. The state asserts that almost all discrepancies in the records had logical explanations and that those lacking explanation did not affect the outcome of the trial. It argues that Taylor’s claim rests on speculation and that any proposed cross-examination merely would have been impeachment (contradicting a witness’s testimony) on a minor point. The state contends impeaching the witness with the telephone records would not have diminished the credibility of the testimony. It asserts the evidence of Taylor’s guilt was overwhelming. The state argues Taylor failed to prove the records custodian’s testimony was false; he proved only that a discrepancy existed but not that any discrepancy affected the outcome of the trial. It contends counsel was not ineffective for not objecting to the custodian’s testimony regarding the highlighted calls. The state asserts Taylor failed to prove counsel did not have trial-strategy reasons for not objecting, noting the custodians testified the records may be incomplete. It argues the record refutes any favorable evidence from the telephone records Taylor suggests. The state further responds that, of the prosecutor’s statements about which Taylor raises issues, the first was not a misstatement of the law and the second was ruled, on appeal, not to constitute plain error.