Case Summary for March 10, 2004

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Case Summary for March 10, 2004

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Wednesday, March 10, 2004
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SC85511
In re: Richard A. Koehler
Bates County
Attorney discipline

Butler, Missouri, attorney Richard Koehler has been licensed to practice law in Missouri since 1974. In December 1992, he served as a loan officer at the Bates County National Bank, to which Everett Grant was indebted on a series of loans. The bank also held a deed of trust on the restaurant Grant owned. Grant first met Koehler in early 1992 in Koehler's capacity as a loan officer. In December 1992, Koehler filed a chapter 11 bankruptcy petition on Grant's behalf in federal bankruptcy court. Although he knew it was required by federal law, Koehler did not apply to be appointed as Grant's counsel and did not file the required affidavit attesting to his status as a disinterested party to the bankruptcy proceeding. A creditor and the United States trustee subsequently moved to disqualify Koehler from representing Grant, alleging Koehler was not a disinterested party. In April 1993, the bankruptcy court disqualified Koehler from representing Grant and ordered him to return any attorney fees that Grant already had paid. During the next two years, Koehler continued to represent Grant in the bankruptcy proceeding and other matters and billed Grant more than $8,000 in attorney fees and costs. In March 1995, Koehler demanded payment from Grant and, the next month, began collection proceedings against Grant in the county circuit court. In May 1995, Grant filed, in the bankruptcy court, a motion to sanction Koehler. At a hearing on the motion, Koehler testified that the services he had performed for Grant were in the nature of paralegal services, although the bill he had sent Grant did not indicate any of the services were in the nature of paralegal services. In June 1997, the bankruptcy court found Koehler in contempt and ordered him to pay more than $15,000 in sanctions. Grant subsequently complained to the state's chief disciplinary counsel, who now seeks to discipline Koehler's license to practice law.

The chief disciplinary counsel argues that this Court should reprimand Koehler publicly because, during his involvement in the bankruptcy case, he violated Rule 4-1.7(a) regarding conflicts of interest, Rule 4-3.3(a) regarding testifying falsely, Rule 4-3.4(c) regarding disobeying a court order, and Rule 4-8.4(d) regarding engaging in conduct prejudicial to the administration of justice. She contends Koehler had a conflict of interest that precluded him from representing Grant. She asserts that he continued to be involved in the case even after the bankruptcy court ordered his disqualification and that Koehler misrepresented the nature of his involvement during testimony he gave in 1995. The chief disciplinary counsel argues that Koehler's willful violation of the court order and his testimonial misrepresentations unduly prolonged and exacerbated the cost of the bankruptcy case. She contends that, although Koehler's conduct was at least knowing, this Court should mitigate its sanction against Koehler because of his long experience as an attorney with no record of discipline and because of delay in prosecuting this disciplinary case.

Koehler responds that he testified truthfully before the bankruptcy court regarding the paralegal nature of his services and that the bankruptcy court did not disagree with that characterization. He argues that he does not know why nearly two years passed between the conclusion of the contempt proceeding and the bankruptcy court's imposition of sanctions. He contends that his conduct or testimony did not cause the prolonged nature of the bankruptcy proceeding. He asserts that he did not necessarily exacerbate the cost of Grant's bankruptcy case because he paid Grant money for "lost work" and "stress and anxiety," paid for Grant's attorney fees for the contempt proceeding and returned the money Grant previously had paid Koehler. Koehler further responds that he has agreed to accept a public reprimand in this matter.

SC85638
State ex rel. Hope House, Inc. v. Commissioner Molly M. Merrigan, Circuit Court of Jackson County, Missouri, Family Court Division
Jackson County
Compelling release of domestic violence shelter records for child abuse proceeding

The Jackson County juvenile officer filed a petition alleging that Maria Martinez abandoned her children in September 2002, and the children were placed in protective custody. In November 2002, Martinez stipulated to the petition, and her children were returned to her custody under the supervision of the division of family services. The juvenile officer later filed an amended petition, alleging that Martinez had failed to maintain stable housing because she had been evicted from three domestic violence shelters between October 2002 and January 2003, including the shelter operated by Hope House, Inc. In mid-January 2003, the juvenile officer served a subpoena on Hope House's chief operating officer, directing her to appear in the circuit court and to produce any and all records relating to Martinez and her children. Hope House moved to quash the subpoena, alleging any such records it might have are protected by federal and state law and, to the extent any records do exist, they cannot be released without the written consent of the person to whom they pertain. In June 2003, the court denied the motion to quash, and Hope House now seeks a writ of prohibition from this Court.

Hope House argues it will suffer irreparable harm, including a substantial loss in state and federal funding, if it complies with the circuit court's order to provide identifying information or records without the written consent of the individual served by the shelter. It contends it also will suffer irreparable harm because battered women and their children will be less inclined to seek shelter services if their communications with the shelter are not protected. Hope House asserts section 455.220, RSMo, specifically renders all its employees and volunteers incompetent to testify about any identifying information and/or records it may have relating to services provided to individuals served by the shelter. It argues that without Martinez's written consent, it cannot produce a custodian of records to testify regarding any records it may or may not have relating to Martinez or its children. Hope House contends that the rules of statutory construction show that section 455.220 was intended to provide absolute protection for the communications of battered women seeking advocacy services from domestic violence shelters. It asserts that any conflict between that statute and section 210.140, RSMo, upon which the circuit court relied in denying Hope House's motion to quash the subpoena, should be resolved in Hope House's favor. Hope House argues the records sought are irrelevant to the juvenile officer's initial allegations that Martinez abandoned her children, not that the children were at Hope House. It contends the applicable federal law preempts the state statute on which the juvenile officer relies.

The juvenile officer responds that Hope House has failed to show it would suffer irreparable harm if it turns over the records sought pursuant to the circuit court's order. The juvenile officer argues section 210.140 abolishes the privileges and confidentiality protected by section 455.220 when the communication involves cases of known or suspected child abuse. The juvenile officer contends that sections 210.011 and 211.014, RSMo, do not conflict with sections 455.220 and 455.215, RSMo, and, therefore, the public policy of the child's best interests requires Hope House to release the records sought. The juvenile officer asserts that Hope House's records pertaining to Martinez and her children are relevant to the juvenile officer's amended petition and that release of these records is necessary to ensure the safety and welfare of Martinez's children. The juvenile officer further responds that the federal law does not preempt section 2101.40 because there is no conflict between the state and federal laws.

SC85513
Emerson Electric Co. v. Director of Revenue
St. Louis
Use tax exemption available to common carriers

Emerson Electric Company is a Missouri corporation headquartered in St. Louis. It has major operations in more than 30 states, has offices in more than 22 countries and has a marketing presence in more than 150 countries. Through one of its divisions, Emerson transports, by truck, property for Emerson's affiliates and third parties. This transportation division is not separately incorporated, and it accounts for about 2 percent of Emerson's gross sales and gross profits. In December 1996, Emerson spent more than $27.47 million to buy a Falcon 900 EX aircraft from an out-of-state vendor. Emerson remitted more than $1.16 million in Missouri use tax on its purchase, but it paid no tax to any other state on its purchase of the aircraft. Emerson uses the aircraft for the interstate transport of employees of its divisions and subsidiaries, as well as its customers and potential customers, as part of its business operations. Emerson does not use the aircraft in its common carriage operations and hangars the aircraft in Missouri when not using it. In October 2001, Emerson sought a refund of the Missouri use tax it had remitted, claiming the aircraft purchase was exempt from use tax. The director of revenue denied the refund, and Emerson appeals.

Emerson argues the law under sections 621.189 and 621.193, RSMo, does not authorize the commission's decision. It contends that section 144.030.2(20), RSMo, exempts from tax all sales of aircraft to common carriers for storage or use in interstate commerce. Emerson asserts that, contrary to the commission's decision, this section does not require that the aircraft be used for common carriage for the common carrier to qualify for the exemption. Emerson argues that, because of its transportation division, it is certified by the state as a registered common carrier. Emerson asserts, therefore, that it should qualify for the tax exemption.

The director responds that the small portion of Emerson's business as a common carrier does not make the whole company a "common carrier" within the meaning of section 144.030.2(20). The director argues that because Emerson does not qualify as a common carrier within the meaning of the tax law, its purchase of the aircraft also does not qualify for the use tax exemption.

SC85128
State of Missouri v. Travis E. Glass
Boone, Callaway and Ralls counties

In March 2001, Travis Glass began working as a bartender in Hannibal, Missouri. The bar owner had a 13-year-old daughter who had come into the bar on several occasions. In May 2001, Glass was fired for failing to call or show up to work for two days. About two weeks later, the daughter's body was found near a boat ramp at the Salt River Indian Camp access area in Ralls County. The cause of death was from asphyxiation secondary to compression of the neck by a ligature. Two officers went to Glass's house in Palmyra, Missouri, and questioned him. Glass agreed to go to the Marion County sheriff's department, where he signed a waiver of his Miranda rights and then was questioned again. After several interrogations, Glass made incriminating statements. In August 2001, Glass was charged in Ralls County with one count of first-degree murder. Following a November 2002 trial conducted on a change of venue, a Callaway County jury sitting in Boone County convicted Glass and recommended that he be sentenced to death. The court sentenced Glass to death, and he appeals.

Glass argues the statements he made should have been excluded at trial. He contends that the officers who came to his home detained him without probable cause and questioned him without giving him the Miranda warning. He asserts that his subsequent statements should be excluded because they were elicited only after the officers at the sheriff's department used the unwarned statements in his interrogation. Glass argues the court should have excluded evidence during the penalty phase that, on two different occasions, he had walked into residences occupied by teenage girls. He contends that the officers only learned of this evidence through property they seized from his room without his consent or, alternatively, that the state has not shown it seized the property from another location. Glass asserts the court should have granted his motion for acquittal at the close of all evidence. He argues that the state did not prove he "coolly" reflected on killing Wilkins and that the death verdict is unreliable and should be vacated. He contends the court should have struck an aggravating circumstance alleging he committed the murder during the commission of another felony or, alternatively, should have required the state to specify during the pleading stage the particular felony he allegedly was committing at the time of the murder. Glass contends that the state failed to charge him with aggravated first-degree murder because it did not plead any aggravating circumstances in the information and, therefore, that he should have been sentenced to life in prison rather than death. He asserts the court should have instructed the jury on involuntary manslaughter because the evidence would have provided a basis to convict him of this crime and to acquit him of first- and second-degree murder. Glass argues two of the instructions violate State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003), because they did not instruct the jury that the state had to prove, beyond a reasonable doubt, that the aggravating facts or circumstances warranted death and that there were no mitigating facts or circumstances sufficient to outweigh the aggravating facts and circumstances. He contends that, because the jury only found one statutory aggravating factor, it is impossible to conclude that the incorrect instructions were harmless. Glass further asserts the court should have permitted him to admit certain mitigating evidence – including a poem he wrote, a family tree he made and a letter his grandmother wrote him -- during the penalty phase.

The state responds that Glass's statements were not obtained illegally and, therefore, were not improperly admitted and that admission of his statements did not prejudice him because there was overwhelming additional evidence of his guilt. The state argues Glass voluntarily spoke with the officers informally and voluntarily responded to investigatory questioning at the sheriff's department. The state contends that even if Glass had been "seized" by officers during their initial encounter, the officers had probable cause to arrest Glass before arriving at his home and before Glass went to the sheriff's department. The state asserts the court did not plainly err in admitting evidence of Glass's previous two break-ins in the penalty phase. It argues the evidence leading to this evidence was discovered in a common area or one in which officers had authority to search and that, even if it was found in Glass's bedroom, he did not have a reasonable expectation of privacy in that room. The state contends there was sufficient evidence presented at trial to establish that Glass deliberated on Wilkins' murder. It asserts that this Court should find, in its independent review, that Glass's death sentence was not imposed under the influence of passion, prejudice or other arbitrary factor and is not excessive or disproportionate. The state responds that the information and verdict director pertaining to the aggravating circumstance were proper because the state gave notice of its intent to seek the death penalty and gave sufficient notice to Glass of the aggravating circumstance on which the state intended to rely. The state argues the court did not plainly err in not submitting to the jury a verdict-directing instruction for involuntary manslaughter because the evidence would not have supported such a conviction and because the jury found evidence to convict Glass of first-degree murder and not the lesser-included offense of second-degree murder. The state contends Glass has not shown manifest injustice resulted from the court allowing the jury to consider, during the penalty phase, evidence and instructions pertaining to the previous two break-ins in its determination of whether the death penalty was warranted and whether mitigating factors outweighed aggravating factors. The state further responds that the court did not plainly err in excluding certain purported mitigating evidence because the poem, family tree and letter were either hearsay or cumulative to other evidence admitted at trial.