Case Summary for February 18, 2009

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Case Summary for February 18, 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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Wednesday, February 18, 2009

____________________________________________________________________

SC89610
Shonnie Newton, et al., Michael Nolte and Barbie Nolte v. Ford Motor Company
Jackson County
Negligence and strict liability of a motor vehicle company
Listen to the oral argument:

Newton was represented during argument by Edward D. Robertson, Jr., of Bartimus, Frickleton, Robertson & Gorny, P.C., of Jefferson City, and Ford was represented by Ann K. Covington of Bryan Cave LLP, of St. Louis.

Shonnie Newton’s husband was a highway patrol trooper. In May 2003, Newton's husband was sitting in his patrol car, made by Ford, with a person for whom he was writing a warning ticket. Another vehicle struck the patrol car, and, as a result, the patrol car burst into flames, killing Newton's husband and severely injuring the passenger. Newton sued Ford alleging negligence and strict liability for a defective fuel containment system. She argued Ford had notice of the danger of its fuel system because of previous accidents and fires and knew the location of the fuel tank in the "crush zone" was a dangerous and defective design. In October 2005, the trial court found in favor of Ford. Newton moved for a new trial, but her motion was overruled. Newton appeals.

Newton argues the trial court improperly restricted her closing argument from discussing similar instances of Ford vehicles exploding, when such instances had been admitted into evidence. She contends a Ford employee's written statement and a 1973 report written by Ford employees should not have been excluded from evidence. Newton asserts this was grounds for a new trial because the evidence should have been admitted as prior inconsistent statements or admissions of Ford. She further argues portions of the National Highway Traffic Safety Administration report should not have been admitted because it contained prejudicial opinions and conclusions that would not have been admitted if it had been offered as testimony. Newton asserts she should have been allowed to question a witness on his involvement in the design and investigation of the Ford Pinto as direct evidence of notice of the dangerous condition and for the purpose of impeaching Ford's other evidence. Newton asserts the cumulative prejudice from the errors constitutes the right to a new trial.

Ford responds the trial court did not err in restricting Newton's closing argument to incidents that pre-dated her husband's accident, and even if such restriction was error, the trial court did not abuse its discretion in concluding it did not warrant a new trial. Ford argues the trial court properly precluded use of an employee's written statement in cross-examination because there was no foundation for the notes and no showing of their relevance or materiality. It contends the trial court properly precluded use of the Ford employees' report in cross-examination because the report had not been admitted in evidence, there was no relevance or necessity to the cross-examination and no prejudice resulted to Newton but unfair prejudice to Ford could have resulted from its use. Ford asserts the trial court properly admitted the national report as authorized by section 490.220, RSMo, in that the record was kept in a public office of the United States, was relevant to the basis for Newton's claims, and was independently relevant to prove Ford's state of mind. It further respond the trial court properly refused to allow Newton to refer to the Pinto during her cross-examination because the reference was not material to the case and its use would have been unfairly prejudicial to Ford. Ford contends the trial court properly denied Newton's motion for a new trial on the basis of cumulative error because there was no cumulative error, and, even if there was error, it did not prejudice Newton.

SC88787
State of Missouri v. Jessica D. Reed
St. Charles County
Constitutional validity of hearsay statute
Listen to the oral argument:

Reed was represented during argument by Lawrence J. Fleming of Herzog Crebs LLP of St. Louis, and the state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.

In August 2007, Jessica Reed was convicted of attempting to manufacture methamphetamine, a controlled substance, and was sentenced to six years imprisonment. She was convicted in connection with a methamphetamine laboratory found in a horse trailer adjacent to her father’s residence. During trial, the prosecutor elicited out-of-court statements of various witnesses that Reed had been observed in the horse trailer "possibly cooking meth." The trial court overruled Reed's objections to the testimony and her motion for judgment of acquittal based on the admission of the testimony. Reed appeals.

Reed argues the witnesses' testimony admitted over her objections were hearsay (a statement made out of court, offered to show the truth of the matter asserted) and should not have been admitted as substantive evidence. She contends section 491.074, RSMo, which permits prior inconsistent statements as substantive evidence, such as the witnesses' testimony, violates her right to due process, the right of confrontation and cross-examination, and her right to equal protection of the law as established in Crawford v. Washington, 541 U.S. 36 (2004); Davis v. Washington, 547 U.S. 813 (2006); State v. Justus, 205 S.W.3d 872 (Mo. banc 2006); and State v. March, 216 S.W.3d 663 (Mo. banc 2007). Reed asserts these prior inconsistent statements were not made under oath, one witness denies making the statement, and the statements are not corroborated by other evidence. She further argues the trial court should have sustained her motion for judgment of acquittal because there was insufficient evidence she possessed any chemicals used in the manufacturing methamphetamine or that she made a substantial step toward making methamphetamine.

The state responds section 491.074 does not violate the confrontation clause. It asserts the statute pertains to witnesses who testify at trial, and since the witnesses testified at her trial, they were subject to her questioning them about their prior out-of-court statements. The state argues there was sufficient evidence to support Reed's conviction because she possessed a trash bag she dumped into a pond by her father's house that contained products to make methamphetamine and that she constructively possessed the items found in the horse trailer, to which she had routine access.

SC89431
MFA Petroleum Company v. Director of Revenue
Cole County
Right to tax credit against taxes owed
Listen to the oral argument:

MFA was represented during argument by Edward F. Downey of Bryan Cave LLP in Jefferson City, and the director of revenue was represented by Gary L. Gardner of the attorney general's office in Jefferson City.

From January 2001 through December 2003, MFA owned and operated convenience stores that sold cigarettes in Missouri. It incorporated state and local excise taxes into the price it charged for cigarettes. In April 2002, MFA determined it overpaid sales tax on cigarettes. From May 2002 through December 2003, MFA deducted state and local excise tax from the sale price before calculating the sales tax to be charged. The director of revenue audited MFA for the tax periods of January 2001 through December 2003, alleging it underpaid Missouri and local and state taxes by more than $99,000. MFA determined it overpaid taxes on cigarette sales from January 2001 through April 2002 by more than $90,800 and sought to have the director credit the overpayment against the underpayment of tax. MFA conceded it owed more than $8,200, but it did not pay that amount because the director refused to issue a separate assessment, and, pursuant to section 149.015.4, RSMo, the director also refused to allow MFA an overpayment credit for the sales tax it overpaid. The administrative hearing commission found in favor of the director. MFA appeals.

MFA argues the commission misinterpreted sections 149.015.4 and 144.190.2 and the result of the commission's interpretation amounts to a penalty against an innocent taxpayer. It contends section 144.190.2 requires that MFA's overpayment of tax be applied as a credit against its underpayment of tax. It contends section 149.015.4, which addresses whether a vendor who made net tax overpayments may claim a refund, does not alter or trump the credit provision of 144.190.2.

The director responds MFA is not entitled to a credit for erroneously collected sales tax on the sales price of cigarettes without first attempting to refund the sales tax to consumers. It contends the legislature intended for a retail seller to refund any illegally or erroneously collected sales tax on the cigarette tax to consumers and, when refunds can no longer be made, to remit the remaining sales tax to the state. The director asserts the legislature did not intend for the retail seller to recover, by refund or by credit, any sales tax on the cigarette tax the seller erroneously collected from the consumer.

SC89343
Earl Forrest v. State of Missouri
Platte County
Postconviction relief in death penalty case
Listen to the oral argument:

Forrest was represented during argument by Melinda K. Pendergraph of the public defender's office in Columbia, and the state was represented byAndrew W. Hassell of the attorney general's office in Jefferson City.

In 2001, Earl Forrest made a deal with a drug dealer that the dealer would buy his lawnmower in exchange for Forrest introducing her to a drug supplier. The dealer did not buy the lawnmower, and she and Forrest did not talk for a year. In December 2002, after drinking alcohol, Forrest confronted the dealer in her home. Forrest killed the dealer and another person in the home and subsequently shot and injured a sheriff and killed a deputy. He was convicted of three counts of first-degree murder and sentenced to death. He filed this postconviction action under Rule 29.15. The motion was overruled. Forrest appeals.

Forrest argues he was denied his right to due process, effective assistance of counsel, a fair trial and freedom from cruel and unusual punishment. He contends his counsel was ineffective for failing to investigate and present readily-available mitigating evidence including a PET scan of his brain; medical records documenting his brain damage, drug and alcohol use, suicide attempts and inpatient mental health treatment; introducing witnesses who would have given positive information about him; and testimony from Dr. Cunningham, an expert on future dangerousness and childhood factors creating a risk of violence. Forrest asserts if the jury had heard the mitigating evidence, they may have opted for a life sentence. He further argues this Court fails to engage in meaningful proportionality review and is therefore failing to comply with section 565.035.6, RSMo, because there are similar cases where brain-damaged defendants killed multiple people or a law enforcement officer, but still received a life sentence. Forrest contends his counsel was ineffective for failing to object to the state’s improper and misleading testimony and evidence of two knives found at this house. He asserts these weapons were unconnected to the charged offense but the state used the evidence in an argument Forrest should be sentenced to death because he would be dangerous to other prisoners, staff and guards. Forrest further argues his counsel should have objected to the state's exhibits from a California Department of Corrections’ record that did not have a judge’s certification and referenced charges not resulting in convictions. He argues his counsel was ineffective for not objecting to the prosecutor warning jurors that members of the community would be watching them when they returned their verdict, to the prosecutor’s improper personalization during the penalty phase opening statement and to the prosecutor engaging in improper closing argument in that he argued it was the jurors’ duty to convict and sentence Forrest to death. Forrest asserts Missouri’s method of lethal injection is unconstitutional and that Missouri’s clemency procedure is unconstitutional.

The state responds Forrest's trial counsel was reasonable in deciding not to obtain a PET scan of Forrest's brain because counsel could not order the examination ex parte and did not want the state to know about the scan, the doctors' testimony about the PET scan would have been cumulative and other testimony about the scan would have been inadmissible at the guilt phase. It argues trial counsel reasonably decided not to introduce evidence that Forrest had brain damage because the injury occurred during a violent drug deal. The state asserts trial counsel was reasonable in not introducing multiple witnesses to testify about good things about Forrest because each of those witnesses' testimony could have been harmful and other witnesses testified to the similar positive attributes. It argues Dr. Cunningham should not have been called as a witness because doing so would have opened the door to testimony about a past homicide in California that Forrest may have committed. The state further responds this Court's proportionality review was proper and this Court has repeatedly rejected claims similar to Forrest's. Glass v. State, 227 S.W.3d 463 (Mo. 2007); State v. Edwards, 116 S.W.3d 511 (Mo. 2003); Lyons v. State, 39 S.W.3d 32 (Mo. 2001); State v. Clay, 975 S.W.2d 121 (Mo. 1998). It asserts Forrest was not prejudiced by testimony that he had a large hunting knife on his belt when he was arrested after a shootout with police because it was legally and logically relevant to show his plan to harm law enforcement officers. It argues Forrest's prior convictions from California were properly admitted because the custodian of the records certified he was the legal custodian and that the records were correct, and he attached his seal to them. The state responds the prosecutor properly asked the jury pool whether they could return a death verdict in an open courtroom and the prosecutor's opening statement and closing arguments were proper. The state contends this Court has consistently held a legal injection claim is not cognizable in a Rule 29.15 proceeding, and Forrest cannot claim clemency because has not sought it.