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Case Summary for April 8, 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.


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 a.m. Wednesday, April 8, 2009

_________________________________________________________________


SC89820
State of Missouri v. Terrell C. Gaw
Newton County
Miranda challenge to statements made to police
Listen to the oral argument:SC89820.mp3
The Gaw was represented during argument by Emmett D. Queener of the public defender's office in Columbia, and the state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.

In September 2006, a police officer responded to a scene of a one-vehicle accident in which a truck rolled onto its side. Terrell Gaw was at the accident scene. The officer questioned Gaw, who said he owned the truck but that someone else wrecked it. The officer thought Gaw might be under the influence of alcohol and marijuana and asked Gaw for his marijuana. Gaw gave the officer a small bag of marijuana. The officer put Gaw in handcuffs, and Gaw took a breathalyzer test, which revealed a high concentration of alcohol. Gaw then admitted he was the driver of the truck. He was transported to a police station and, during the drive, he was advised of his rights under Miranda v. Arizona, 284 U.S. 436 (1996), for the first time. After he received the Miranda warning, he admitted he had consumed six to nine beers and had taken four hits of marijuana while driving earlier that day. The state charged Gaw with driving while intoxicated. Gaw moved to suppress the statements he made to the officer because the officer interrogated him while he in custody but before he was advised of his Miranda rights. The trial court denied Gaw's motion and convicted him of driving while intoxicated, sentencing him to five years as a chronic alcohol offender. Gaw appeals.

Gaw argues the trial court violated his right against self-incrimination guaranteed by the Missouri and the United States constitutions. He contends the court should not have admitted into evidence his statements before and after the Miranda warning. Gaw asserts the statements made after the warning should be excluded because a reasonable person would not have understood he had a choice about continuing to talk to the officer. He further argues the trial court violated his right to due process in that there was not sufficient evidence to establish the corpus delicti (being able to prove the offense had been committed) of the crime independent of the statements and, therefore, there was no substantive evidence on which to base a conviction.

The state responds that the trial court did not abuse its discretion in admitting Gaw's post-Miranda statements and that any error in admitting those statements was harmless beyond a reasonable doubt. It contends its evidence sufficiently established the corpus delicti of the crime of driving while intoxicated. The state asserts the trial court properly admitted into evidence and considered Gaw's incriminating statements in determining Gaw's guilt.

SC89820_Gaw_Brief_filed_in_SD.pdfSC89820_State_of_Missouri_Brief.pdf


SC89734
Robert E. Fast, M.D., et al. v. F. James Marston, M.D.
Buchanan County
Medical negligence and indemnification
Listen to the oral argument:SC89734.mp3
Fast was represented during argument by Paula L. Brown of Douthit Frets Rouse Gentile & Rhodes, LLC, of Kansas City, and Marston was represented by Peter Maharry of Fisher, Patterson, Sayler & Smith, LLP, of Overland Park, Kan.

After a surgery in which Dr. James Marston was the primary, or supervising, surgeon and in which Dr. Robert Fast assisted, an injured patient sued both doctors for medical negligence in May 2004. Marston entered into a settlement agreement with the injured patient, who signed a "release of all claims" against Marston, leaving only Fast as a defendant. In May 2006, the jury found that Fast had no fault and that Marston was 100 percent at fault. The trial court, nevertheless, entered judgment against Fast for the full amount of the verdict, $223,000, and ruled that Fast had no indemnification rights against Marston (Fast could not shift his liability to Marston, even though Marston was found 100 percent at fault). Fast appealed the judgment, which was affirmed. In September 2006, Fast sued Marston for indemnity. Both parties moved for summary judgment. Marston asserted the affirmative defense that he was discharged from liability. The trial court sustained Marston's motion in July 2007 and denied Fast's motion. Fast appeals.

Fast argues the trial court subjected him to disparate treatment and denied him due process because it ruled his petition for indemnity was not ripe. He asserts the trial court based its judgment on a partial and inconsistent application of sections 538.230 and 537.060, RSMo. Fast contends that the trial court erred in applying the "release of claims" from the settlement agreement pursuant to section 537.060, inappropriately and to his detriment, because the court deprived him of his right to indemnity as a fault-free party. He asserts that the trial court based the judgment solely on vicarious liability. Fast argues that he was found to have zero fault and that this finding should have operated to prevent any recovery against him.

Marston responds the record established that the trial court expressed concerns about ripeness but denied Fast's motion for summary judgment on the merits. He contends the record shows the matter was ripe and could be ruled on properly by the trial court. Marston argues the uncontroverted facts establish he was entitled to summary judgment as a matter of law because he was discharged from all liability for contribution or indemnity by operation of section 538.230.3 because he entered into a valid and enforceable written settlement with the injured party prior to trial.


SC89734_Fast_Brief_filed_in_WD.pdfSC89734_Marston_Brief.pdfSC89734_Fast_Reply_Brief.pdf


SC89294
State of Missouri v. Leonard S. Taylor
St. Louis County
Challenge to murder convictions and death sentences
Listen to the oral argument:SC89294.mp3
Taylor was represented during oral argument by Rosemary E. Percival of the office of the state public defender in Kansas City, and the state was represented during argument by Deputy Solicitor General Jeremiah Morgan of the attorney general's office in Jefferson City.

Leonard Taylor was charged with shooting and killing his live-in girlfriend, Angela Rowe, and her three children in March 2005 in St. Louis County. He was convicted in February 2008 and was sentenced to death for each murder count and to consecutive life sentences for each of his four convictions for armed criminal action. Taylor appeals.

Taylor argues the trial court violated his constitutional rights to due process, to confront and cross-examine witnesses, to present a defense, and to a fair trial. He contends a potential juror was excluded improperly on the state's motion because, although the potential juror had qualms about the death penalty, she expressed no views that substantially would impair the performance of her duties as a juror or her ability to follow the trial court's instructions. Taylor further argues the trial court violated his right to a speedy trial and lost jurisdiction. He assets he filed a request for a speedy trial in July 2005 and objected to all continuance requests while the 180-day speedy trial period was pending, but the trial court allowed all continuances including allowing his initial counsel to withdraw, and the final continuance, which he claims was caused solely by the state's unjustified two-year delay in obtaining DNA testing. Taylor argues the trial court should have admitted Rowe's calendar into evidence because she had marked when Taylor called her. He contends the calendar demonstrated that he did not call frequently, which would have rebutted the state's allegation that the reason for the lack of calls was that he knew Rowe was dead. He asserts Rowe's checkbook should also have been admitted into evidence because one of the checks was dated the day after Taylor contended he left town, indicating Rowe was still alive after he was out of town. Taylor contends the state's physical evidence from the DNA collected from his sunglasses lacked probative value and was unreliable, speculative and misleading because he and Rowe had lived together and her DNA could have been transferred onto his sunglasses at any time, in any number of ways. He contends a continuance was not sufficient to cure the state waiting two years to test DNA on his sunglasses and surprise him with the DNA results five weeks before trial. Taylor asserts the state did so knowing he would need additional time to review the test results and prepare to defense against them. He argues certain parts of Rowe's sister's deposition about talking to Rowe two days after Taylor left town should have been admitted. Taylor asserts the sister's statement should not have been excluded as hearsay because the testimony included Rowe's present sense impression when she told her sister she called from a payphone. He contends other testimony excluded as hearsay should have been admitted to show that Taylor's relative lived at Rowe's house to rebut the state's argument that no forced entry indicated only Taylor could have entered the house. He asserts a police officer's opinions and statement made on videotape about Taylor's brother not being the real perpetrator should have been excluded from evidence. Finally, Taylor contends that the trial court failed to intervene when the state repeatedly made improper comments during closing argument and that the court should have granted a mistrial after the bailiff handcuffed Taylor in front of the jury after the guilty verdict.

The state responds it removed a potential juror from the jury pool for cause because she was equivocal and refused to say directly whether she could set aside her personal beliefs, consider the full range of punishment and follow the court's instructions. It argues the trial court did not lose jurisdiction because any delays in Taylor's trial were for continuances Taylor sought for good cause shown or due to the withdrawal of Taylor's first attorney based on Taylor's failure to pay him. The state contends the trial court properly excluded testimony about or the interpretation of the notes on Rowe's calendar from evidence because the calendar's notations constituted hearsay and were speculative, as no one knew for sure what the notes meant and whether they were accurate. It asserts a checkbook from Rowe's residence was hearsay because Taylor wanted to use a date written on a carbon copy of a check proved Rowe she was alive after Taylor left town. The state further responds Taylor's sunglasses and the related DNA test was properly admitted as relevant evidence because the trial court also granted Taylor's motion for a continuance, changing the trial date to February 2008. It asserts testimony from Rowe's sister's deposition about Rowe calling from a payphone was inadmissible as hearsay because the sole source of that knowledge was based on a statement Rowe allegedly made out of court to her sister. The state argues the trial court properly prohibited a witness from testifying that someone related to Taylor may have lived in Rowe's basement because it was hearsay and derived solely from an out-of-court statement made by Rowe. It contends the trial court did not err in allowing the jury to hear Taylor's brother making a statement to police and that the police officer in the recording was only asking questions, not expressing opinions as to who he believed was the perpetrator. The state asserts Taylor failed to prove any improper argument had a decisive effect on the outcome of the trial or amounted to manifest injustice. It argues the trial court did not violate Taylor's constitutional rights when the jury briefly viewed him being handcuffed while being transported from the courtroom because it was after the jury had announced its guilty verdicts. The state asks this Court, in its independent proportionality review, to affirm Taylor's death sentences. The state argues the sentences were not imposed under the influence of passion, prejudice or any other arbitrary factor; that the evidence supports the jury's findings of aggravating circumstances; and that the sentences are not excessive or disproportionate to those in similar cases.


SC89294_Taylor_Brief.pdfSC89294_State_of_Missouri_Brief.pdfSC89294_Taylor_Reply_Brief.pdf



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