Case Summary for May 9-10 and 24, 2000

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Case Summary for May 9-10 and 24, 2000

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.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Tuesday, May 9, 2000

SC82151
Anita Kay Williams, et al. v. Sherman Kimes, et al.
Mississippi County
Property dispute following foreclosure sale

The Kimes bought property at a foreclosure sale. In previous appeals, the Supreme Court held that the sale was void and the parties should be restored to their positions before the sale. The Kimeses appeal the trial court's judgment purporting to place the parties in the position they were in before the foreclosure.

The Kimes argue: (1) The court should have placed an equitable lien on the property in the amount the Kimeses paid for it at foreclosure. (2) The court should not have entered judgment for the Williams for activities after the foreclosure.

The Williams respond: (1) The trial court correctly refused to impose an equitable lien. The judgment restores the parties to the positions they would have but for the void foreclosure. (2) The money judgment for the Williams was required to restore them to the position they would have but for the foreclosure. The Kimeses profited in the years they unlawfully possessed the land.

SC82304
In re: Harvey J. Schramm
Attorney Discipline

The Chief Disciplinary Counsel charges attorney Harvey Schramm with violating rules of professional conduct involving dishonesty, excessive fees, and misappropriation. The Disciplinary Hearing Panel recommended a private reprimand.

The CDC requests this Court suspend Schramm's license for dishonestly telling the court that he meticulously reviewed his bank and client records before seeking to keep funds from a client account, for charging an excessive fee, and for taking the client's money.

Schramm argues the CDC is asserting new claims in this appeal. Schramm performed only necessary work and charged reasonable fees. He was not dishonest in returning money. He unintentionally made a mathematical error in failing to return part of his client's money, but when it was called to his attention, returned it within an hour.

SC82168
Smith Gaddy, Jr., et al. v. Phelps County Bank and Phelps County Bancshares, Inc.
Callaway County
Reverse stock split of bank

The bank and bank holding company effected a reverse stock split, combining thousands of shares into 25 shares held by the bank holding company. The minority shareholders would not hold fractional shares but would be paid. Some minority shareholders appeal the court's refusal to grant injunctive relief, rescission, or damages.

The minority shareholders argue: (1) The reverse stock split was not authorized by statutes. Specifically, sections 351.085.2 and 351.390 do not apply to a banking corporation, and section 362.235 does not authorize the reverse split. (2) The forced sale violates article I, section 28 of the Missouri Constitution, as the taking of private property for private use without consent. (3) Fundamental principles of equity, fair dealing, and shareholder protection prohibit depriving the owners of property without their consent. (4) Section 362.170.2(3) prohibits a bank from being the purchaser or holder of its own shares.

The bank and bank holding company respond: (1) The court did not hold that the reverse stock split was effected under chapter 351. The minority shareholders' contention that section 362.235 does not authorize the reverse split is not in the record on appeal and cannot be heard. Section 362.235 authorizes the amendment for the reverse split. (2) The reverse split did not deprive the shareholders of property rights without consent or violate the Constitution. (3) The equitable arguments were never raised and cannot now be heard. The shareholders' interests were amply protected. (4) Section 362.170 does not apply because the bank did not purchase or hold its own stock. The Missouri Director of Finance correctly determined the reverse split complied with banking laws. The shareholders have no standing to bring a claim based on that statute and cannot raise it on appeal. (5) The shareholders have remedies at law, so equitable relief of rescission or restoration of shares is inappropriate.

The Missouri Bankers Association filed an amicus curiae brief. It argues: (1) The Missouri Banking Code authorizes the bank's reverse stock split. (2) The Constitution's prhibition on taking imposes restrictions only on government action. (3) The bank's actions do not violate section 362.170.2(3).

SC78466
State of Missouri v. Martin Link
St. Louis City
First degree murder, rape, kidnapping; death, life, and 15 years, respectively

In January 1991, Martin Link kidnapped, raped, and murdered an 11-year-old girl on the way to her bus in St. Louis. A jury recommended, and the court imposed, sentences including death. Link appeals his conviction and denial of post-conviction relief.

Link argues: (1) The state improperly told the jury to "get mad", calling on the jury to decide guilt based on emotion not evidence. (2) Detectives improperly testified a witness made a "false sighting" of the victim. Such testimony was improper comment on another witness's testimony and was opinion/conclusion evidence that invaded the jury's province. (3) The state's DNA expert improperly testified that the defense DNA expert lacked knowledge in interpreting mixed DNA results. This was improper comment on the proposed testimony of another witness. (4) The state's expert should not have been permitted to testify about the probability of Link and the victim's DNA meeting by chance. There was no foundation to show his testimony was scientifically or mathematically reliable. (5) An officer's testimony that other suspects were eliminated invaded the jury's province and allowed the officer to recite inadmissible hearsay.

(6) An officer's testimony that the victim's sister said where she found the victim's umbrella was inadmissible hearsay. (7) Vaginal swabs from the victim were improperly admitted into evidence. The state failed to lay a foundation that the swabs were in the same condition at trial and when tested as when obtained. (8) Judgment regarding post-conviction relief should be summarily remanded. The court adopted the prosecutor's findings and judgment rather than drafting its own, indicating the court did not carefully review the matters. (9) Counsel was ineffective for failing to discover and present mitigating evidence of his abusive childhood and substance abuse.

The state responds: (1) The state did not ask the jury to decide on emotion but to send a message that criminal conduct would not be tolerated. In any event, the evidence of Link's guilt was overwhelming. (2) The detectives' testimony explained the concept of false sightings and presented specific facts that discredited a witness's sighting. The witness's own testimony showed she did not see the victim. (3) The state's DNA expert did not comment on the defense's DNA expert's credibility but explained, based on the report, the defense expert's lack of expertise as required to analyze the evidence. Other evidence established the defense expert's conclusions were wrong. (4) The joint probability testimony was admissible, because use of the product rule to calculate DNA frequency statistics is generally accepted. (5) The officer's testimony eliminating suspects only stated facts disproving the defense. It contained no hearsay. Link failed to object.

(6) The officer's testimony about the sister finding the umbrella was admissible because the sister testified. In any event, there was no prejudice. (7) The swabs' chain of custody was irrelevant. An expert identified the exhibit at trial. In any event, the chain was established. Other evidence also established similar facts as the swabs. (8) Link failed to show the motion court did not thoughtfully and carefully consider the prosecutor's proposed findings. (9) Counsel was not ineffective for failing to present certain mitigating evidence. Link failed to plead the witnesses' identity, anticipated testimony, or availability. His family and girlfriend contradicted such claims. His attorneys' decision was strategy to avoid evidence that Link was an anti-social pedophile.

Wednesday, May 10, 2000

SC82038
St. Charles County, and Eugene Zimmerman, in his official capacity as Assessor of St. Charles County, Missouri v. Curators of the University of Missouri, et al.
St. Charles County
Constitutional challenge to exemption from ad valorem tax

Various entities lease property in St. Charles (Research Park) from the Curators of the University of Missouri. The county assessor assessed ad valorem taxes on the tenants' leasehold interests, not the university. The tenants claimed exemption under section 172.273, which provides land owned by and leased from the university is exempt from property tax. The circuit court found the statute constitutional. The county and assessor appeal.

The county and assessor argue: (1) The statute's property tax exemption for certain leasehold interests violates the Missouri Constitution article X, section 6, which provides that "all laws exempting from taxation property other than the property enumerated in this article, shall be void." (2) The statute's property tax exemption for a select few in St. Charles violates article x, section 3, which requires taxes to be "uniform upon the same class or subclass of subjects within the territorial limits of the authority levying the tax."

Th university and its tenants respond: (1) The leasehold interests are not separate from the university's fee interest, which is exempt under article X, section 6. Even if the county could assess leaseholds in general, the statute specifically prevents taxing the university's leaseholders. (2) The contention that the statute is a local law should be rejected because it was not earlier presented for appellate review and was waived at trial. In any event, the statute is a general law. (3) The contention that the statute violates article x, section 3 was waived. The tenants' leaseholds are not similarly situated to other leaseholds.

SC81919
Dennis James Skillicorn v. State of Missouri
Lafayette County
First degree murder; death penalty

In 1994, a man gave Dennis James Skillicorn and his friends a ride when their car broke down near Kingdom City. For his part in shooting the man, Skillicorn was jury-tried and convicted of first degree murder and sentenced to death. The Supreme Court affirmed the conviction and sentence on appeal. Skillicorn now appeals denial of post-conviction relief.

Skillicorn argues he was denied effective assistance of counsel. Counsel failed to: (1) investigate and present records and testimony that Skillicorn was a good, compliant worker, unlike his angry and violent friend, to support his defense that he was under his friend's domination and control; (2) present mitigating evidence of his traumatic childhood, substance abuse, and dependent personality; (3) present jail records showing he was a non-violent, model prisoner; (4) present his friend's girlfriend's testimony that the friend confessed to shooting the victim and that there was no plan to kill the victim; (5) ensure that his friend's mental health records were in the file, identified, and sealed for this Court's review; (6) rebut evidence that Skillicorn knew his friend had no rope, despite claiming Skillicorn thought his friend was going to tie up the victim alive; (7) raise as error on appeal the admission of unadjudicated crimes in the penalty phase. Skillicorn also argues the court did not independently address the issues in his motion, as it adopted verbatim the state's proposed findings and conclusions.

The state responds that counsel was not deficient. (1) Counsel reviewed and investigated the evidence and made a strategic decision not to present it. There was no reasonable probability that the jury would have concluded the circumstances did not warrant death if the evidence had been presented. (2) Counsel investigated Skillicorn's mental health and retained an expert but decided not to present the testimony. Skillicorn failed to show that if counsel shopped for another expert, that expert would have presented testimony effecting a different sentence. (3) Counsel presented a witness as to Skillicorn's behavior in jail, so jail records would have been cumulative and, possibly, impeached his witness. (4) Counsel talked to the girlfriend, but she withheld information. Plus, her testimony was hearsay. (5) The claim regarding mental health records is not cognizable because it goes to the fairness of the appeal, and it was not presented to the motion court. (6) Skillicorn failed to address that counsel's argument was strategy. There is no support for an argument Skillicorn believes counsel should have made. (7) Counsel decided not to raise claims regarding unadjudicated criminal acts. Skillicorn waived argument about inadequate notice of penalty phase evidence. (8) There is no indication the findings and conclusions are not the independent judgment of the motion court. Adopting the state's proposal does not violate due process in a collateral post-conviction proceeding.

Wednesday, May 24, 2000

SC82282
Samuel D. Smith v. State of Missouri
Callaway County
Post-conviction motions after first degree murder/death penalty

Samuel Smith was convicted of first degree murder and sentenced to death, which this Court affirmed. He filed a motion to vacate the judgment pursuant to section 547.360 and Rule 29.07(b)(4). He appeals dismissal of that motion.

Smith argues section 547.360 provides a post-conviction remedy separate and distinct from Rule 29.15, contrary to this Court's decision in State v. Schleeper, and his motion alleged facts showing ineffective assistance of counsel. Even if the remedy is not separate, Rule 29.07(b)(4) still affords Smith the right to have appointed conflict counsel investigate, prepare and file his 29.15 motion. His trial counsel denied him this right by filing his transcript on appeal early without notifying him or his new conflict counsel, so time expired before Smith could file a Rule 29.15 motion. Furthermore, his post-conviction motion demonstrates he suffered from a mental illness, which interfered with his ability to pursue post-conviction relief within the time specified by Rule 29.15.

Generally, the state argues that section 547.360 did not create a separate post-conviction remedy apart from or different from Rule 29.15. Smith's filing was time-barred under Rule 29.15(b). Smith's filing constituted a successive petition under rule 29.15(k). (The state's brief is not yet due or filed. 5/2/00.)

SC81859
Joseph Paul Franklin v. State of Missouri
St. Louis County
Post-conviction motions after first degree murder/death penalty

Among other crimes and sentences, Joseph Paul Franklin was convicted of first degree murder and sentenced to death for his sniper attack on a St. Louis synagogue in 1977. The Supreme Court reviewed and affirmed his sentence on proportionality grounds, dismissing his direct appeal on his request. Franklin now appeals dismissal of his Rule 29.15 post-conviction relief motion.

Franklin argues: (1) Appellate counsel was ineffective for failing to ask the Missouri Supreme Court to stay Franklin's direct appeal for a competency determination after Franklin wrote to the Court asking that his appeal be dismissed. Franklin, who had previously been diagnosed as paranoid schizophrenic and not competent to stand trial, told counsel he waived appeal because a spirit guide told him to. (2) Trial counsel was ineffective for failing to present evidence of Franklin's obsessive/compulsive behavior and the danger Franklin experienced in federal prison. If counsel would have agreed to present this evidence, Franklin would not have waived his right to counsel at trial. (3) & (4) The court failed to make adequate findings and conclusions of law on Franklin's Rule 29.15 claims, including those stated above, as well as his claims regarding omission of mandatory penalty phase instructions, use of his pre-trial testimony from suppression and competency hearings, admission of double hearsay and other murder charges, the strike of all African-American and female venire persons, and a failure to redact evidence of other crimes from his statements and an officer's testimony.

The state responds: (1) Counsel was not ineffective for failing to challenge Franklin's competency. Counsel raised the issue in his brief. There was no evidence of incompetence beyond that considered and rejected by the trial court. Franklin's understanding of the proceedings and ability to assist counsel was conclusively established by his testimony at the competency hearing. (2) Franklin's claim that he would not have waived counsel if counsel presented his disorder and threats does not establish prejudice or a claim of ineffective assistance. It is also refuted by the record. Franklin testified he did not desire to present such a defense and rejected counsel's charge that he confessed because of threats. (3) & (4) The court's findings were sufficient for appellate review. The court provided an explanation on the ineffective assistance of counsel rulings. Franklin's challenges to pretrial counsel were meritless as a matter of law. Franklin's allegations of trial error were not cognizable in a Rule 29.15 proceeding, so no finding was required on these claims.

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