Case Summary for September 11, 2001

Your Missouri Courts - Supreme Court

Home

Case Summary for September 11, 2001

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 DOCKET SUMMARIES ARE ELECTRONIC COPIES OF THE BRIEF(S) FILED BY THE PARTY OR PARTIES. THESE ELECTRONIC BRIEFS HAVE BEEN CONVERTED TO PDF BY THE COURT'S STAFF TO ACCOMMODATE VARIOUS WORD PROCESSORS. (If you do not already have the Acrobat reader, you may obtain it free at the Adobe website.) THE ATTACHMENTS MAY NOT REFLECT ALL BRIEFS FILED WITH THE COURT, THE COMPLETE ELECTRONIC FILING, OR THE FORMAT OF THE ORGINAL FILING. GENERALLY, ONLY THE APPELLANT'S SUBSTITUTE, RELATOR'S, AND RESPONDENT'S SUBSTITUTE BRIEFS WILL BE POSTED; IF AVAILABLE, REPLY BRIEFS ALSO WILL BE POSTED. BRIEFS FROM THE COURT BELOW, APPENDICES, AND OTHER ATTACHMENTS WILL GENERALLY NOT BE POSTED HERE. (To determine whether or which briefs have been filed in a particular case, visit Case.net.) POSTING OF THE BRIEFS DOES NOT REFLECT ANY OPINION OF THE COURT ON THE APPROPRIATENESS OF THE FORMAT OF THE BRIEFS OR THE MERITS OF A CASE. THESE POSTINGS ARE NOT OFFICIAL COURT RECORDS. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, September 11, 2001
________________________________________________________________________

SC83477
Michael A. Fisher v. Waste Management of Missouri and RSK Company
Labor and Industrial Relations Commission
Admissibility of surveillance videotape; modification of disability award

Michael Fisher injured his right shoulder while working as a trash hauler for Waste Management of St. Louis. He first injured his shoulder in June 1997 and apparently reaggravated it three months later. Because Waste Management did not disclose during discovery surveillance videotapes of Fisher working without exhibiting pain, the administrative law judge excluded the tapes. The judge denied Fisher's claim for the September injury but granted him a 30-percent permanent partial disability award due to the June injury. On review, the commission determined the administrative judge improperly excluded the videotapes and reduced Fisher's disability award to 10 percent.

Fisher argues the administrative law judge's 30-percent disability finding and award are supported by competent and sufficient evidence, including the expert testimony of the doctor who testified on Fisher's behalf. Fisher also argues the language of section 287.215, which includes any statement "electronically recorded . . . or otherwise preserved", would apply to the videotapes, and, therefore, Waste Management should have disclosed the videotapes to him during discovery.

Waste Management and its insurer, RSK Company, respond that the appropriate judgement to be reviewed is that of the commission, not the administrative law judge. They argue that because the videotapes did not contain any audio, they could not constitute "statements" under section 287.215 and, therefore, were not subject to disclosure and properly were admitted into evidence by the commission. They also argue that the evidence, including the expert testimony of the doctor who testified on the employer's behalf and the surveillance videotapes of Fisher, supports the commission's reduction of the disability award.

SC83324
The Mary S. Riethmann Trust, and Louis W. Riethmann, Jr., and John D. Schaperkotter, Trustees of the Mary S. Riethmann Trust and Statutory Personal Representatives of the Estate of Mary S. Riethmann, Deceased v. Director of Revenue
Administrative Hearing Commission
Interpretation of Missouri estate tax law

Mary Riethmann inherited nearly $22.5 million and became entitled to the benefit of a $1 million trust after her father, George Schock, died in November 1995. Fewer than two years later, Riethmann died. Her estate claimed a prior transfers tax credit under the Internal Revenue Code and reported no federal or Missouri estate taxes due. In 1999, the Director of Revenue determined that, based on section 145.011, RSMo, Riethmann's estate owed more than $3 million in deficient state estate tax, plus interest and penalties. The next year, the Internal Revenue Service determined the estate owed no federal estate tax and had a state death tax credit of zero. The Administrative Hearing Commission determined the estate was obligated to pay the state estate tax.

In this case of first impression in Missouri courts, the estate argues that both the plain language of and the General Assembly's intent behind section 145.011 show that the statute should be construed to divert estate tax revenues from the federal government to the state. The estate argues that because it owed no federal estate taxes, it should owe no estate taxes to Missouri either.

In response, the director argues that section 145.011 does not absolve an estate from its obligation to pay Missouri estate tax just because it owes no federal estate tax. The director argues that the statute's calculation is based on the amount of federal credit an estate could have taken, not the amount actually taken, and, thus, the commission was correct in determining that the Riethmann estate owes taxes.

SC83508
Angel Dequesne v. State of Missouri
Jackson County
Ineffective assistance of counsel

Angel Dequesne was convicted of second-degree murder and armed criminal action, and he was sentenced to consecutive terms of life imprisonment for each count. The court overruled, without hearing, his Rule 29.15 motion for post-conviction relief.

Dequesne argues his trial counsel was ineffective in failing to call as witnesses several people who could have helped prove Dequesne's self-defense claim. He also argues his counsel either should have elicited testimony from Dequesne's girlfriend that the victim had a knife or should have objected to the deletion of her comments about the knife from her videotaped testimony. Dequesne argues his attorney also failed to object to the prosecutor's reference, during closing argument, to actions of the girlfriend that were not admitted in evidence. He further argues his trial counsel failed to offer the lesser-included offense instruction of voluntary manslaughter. Dequesne also argues the court should have determined whether he was abandoned by his post-conviction counsel because his amended motion was not filed in a timely fashion.

The state responds that selection of witnesses is a matter of trial strategy, and that the attorney's strategy in not calling witnesses Dequesne claims could have helped prove his self-defense theory was not ineffective. The state claims Dequesne did not argue to the motion court that his attorney even knew about two of the witnesses. Similarly, the state argues that the attorney's decision not to request a voluntary manslaughter instruction was a matter of trial strategy and that had such an instruction been given, it would have conflicted with Dequesne's self-defense theory. In addition, the state argues Dequesne's attorney was not ineffective regarding the girlfriend's testimony about the knife because the portions omitted from her videotaped statement were cumulative to Dequesne's testimony and were not relevant to show Dequesne acted in self-defense. The state further argues that the prosecutor's comments about the conduct of Dequesne's girlfriend were not improper because her conduct occurred in the jury's presence. The state also responds that, because the court considered and rejected all of Dequesne's claims on their merits, it is not necessary to remand the case for a hearing as to whether Dequesne's post-conviction counsel abandoned him.

SC83179
Herbert Smulls v. State of Missouri
St. Louis County
Ineffective assistance of counsel; claims that judges were racially biased

Herbert Smulls was convicted of first-degree murder, first-degree assault, two counts of first-degree robbery and two counts of armed criminal action for killing a man and wounding the man's wife during a robbery of the couple's business. He was sentenced to death for the first-degree murder charge and to concurrent life terms for the remaining offenses, and he filed a Rule 29.15 motion for post-conviction relief. This Court has affirmed Smulls' conviction and sentences. Matters relating to his Rule 29.15 motion have been heard three times in St. Louis County--first by Judge William Corrigan and next, pursuant to a remand order by this Court, by Judge Emmett O'Brien. This Court remanded again for a new judge to determine whether Judge O'Brien was biased against Smulls. That third hearing was held before Judge James Hartenbach, who determined that Judge O'Brien was not biased against Smulls.

Smulls raises fifteen points on this appeal. He argues that Judge Corrigan has shown racial bias in his past conduct and comments that prevented him from fairly considering, at Smulls' trial, Smulls' Batson challenges to the striking of certain venirepersons from the jury. Smulls also argues the motion court improperly excluded exhibits and expert testimony Smulls argues were necessary to determine whether there was bias in Judge Corrigan's ruling on Smulls' Batson challenges, and that it improperly admitted reputation evidence from Judge Corrigan's friends.

Smulls further argues that Judge Hartenbach should have disqualified all St. Louis County judges because they were present when Judge Corrigan allegedly made racially inappropriate comments and when this Court's opinion in the first appeal was being criticized. Smulls also argues that Judge O'Brien's ruling, permitting a deposition to be delayed, denied Smulls access to a witness he thought could have helped establish county-wide bias against Smulls because the witness died before his deposition could be taken.
Smulls argues the motion court improperly excluded documents that Smulls claims would have shown that Judge O'Brien also was biased against Smulls. Smulls argues that Judge O'Brien's bias was evident when he rejected several of Smulls' claims without granting a hearing on them. Smulls argues Judge O'Brien should have granted a hearing regarding Smulls' claims that his trial attorneys failed to present evidence that a trial witness had lied. He also argues Judge O'Brien improperly denied, without a hearing, Smulls' claim that the prosecutor sought the death penalty for racially discriminatory reasons, and that Smulls' trial counsel were ineffective in failing to investigate or raise this claim at trial. He also argues Judge O'Brien erred in denying claims that Smull's trial attorneys should have disqualified Judge Corrigan from the trial because retention concerns may have prevented Judge Corrigan from considering a sentence of life in prison rather than death.

In addition, Smull argues Judge O'Brien should not have rejected claims that Smull's trial counsel failed to present evidence regarding gunshot residue that Smulls argues would have shown he did not shoot the victim. He also argues Judge O'Brien failed to determine Smulls' counsel was ineffective in directing Smulls not to testify at his retrial because, when Smulls testified at his first trial, that jury was unable to reach a verdict on the murder charges. Judge O'Brien erred in rejecting his claims that his trial counsel failed to call certain mitigation witnesses.

The state responds that many of Smulls' claims should not be reviewed because he failed to plead them in his post-conviction motion; to allege facts supported by the record that would entitle him to relief; or to prove that his attorneys acted unreasonably and that he was prejudiced by his attorneys' actions. This includes Smulls' claims about his attorneys' failure to admit into evidence results of a gunshot residue test and his claims that his attorneys refused to let him testify at his retrial.

The state argues that Smulls failed to plead facts entitling him to an evidentiary hearing on his claims that the prosecutor used a racially discriminatory reason in striking a venireperson from the jury. The state further argues that Smull failed to allege facts supported by the record that would have proven the prosecutor was racially motivated in seeking the death penalty, and that such claims should have been raised during Smulls' trial or in the appeal of his conviction and sentence.

As to Smulls' claims regarding Judge Corrigan, the state responds that the allegedly racially inappropriate statements were made years before Smulls' criminal trial and that Smulls failed to prove Judge Corrigan was racially biased or that he was prejudiced by Judge Corrigan's actions. Similarly, the state responds that there was no factual basis on which a reasonable person could doubt the impartiality of Judge O'Brien. As to Smulls' claim that there should have been a blanket disqualification of all St. Louis County judges, the state responds that such a disqualification is improper without the agreement of all the affected judges, and that Smulls did not have their agreement.

In addition, the state responds that Judge Hartenbach did not abuse his discretion in dealing with evidence offered at the third hearing, particularly because many of the documents and testimony Smulls offered were irrelevant or contained inadmissible hearsay. The state argues the judge's rulings regarding the evidence offered did not prejudice Smulls. Similarly, the state argues Judge Hartenbach did not err in delaying the deposition of a potential witness until after he determined to what claims Smulls was entitled to an evidentiary hearing.