Case Summary for September 1-3, 1998

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Case Summary for September 1-3, 1998

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.

TUESDAY, SEPTEMBER 1, 1998

80463
State ex rel. Larry E. Smith, et al. v. The Honorable Jon R. Gray, Judge
Jackson County
Venue dispute

Larry Smith and his family were traveling on a highway a few miles south of the Missouri-Arkansas border. Smith left the road to avoid a stopped vehicle. A truck struck him. Larry and Karen Smith sued the truck's owner and driver as well as his own insurance company for uninsured motorist coverage of the stopped vehicle. All parties are Missouri residents. The Smiths reside in Christian County. The truck driver and owner/company are residents of Saline County. The insurance company has offices statewide. The Smiths sued in Jackson County where the insurance company has an office. The defendants sought to transfer the case. The trial court ordered the case transferred to Saline County.

The Smiths contend the case was proper in Jackson County because section 508.010(2), RSMo, authorized the suit in Jackson County. They also argue that there is common liability between the defendants because the two events (the stopped vehicle and the truck driving) were close in time, and the tortfeasors’ acts combined to cause injury. They contend an uninsured motorist claim exists against the insurance company so it is an appropriate defendant.

Respondent contends plaintiff have no right to venue in Jackson County because: (1) The insurance company was not a resident of Jackson County. (2) Alternative counts are on different theories against different defendants without joint or common liability and are not interdependent. (3) The insurance company was pretensively joined.

79968
State of Missouri v. Rufus James Ervin
Reynolds and Phelps Counties
Death penalty

Rufus James Ervin was involved in an altercation with Leland White in a trailer in Reynolds County. The trailer caught fire, Ervin drug White out of the trailer, hit White repeatedly in the head with a brick, and threw him back into the fire. The trial was transferred to Phelps County. The jury convicted Ervin of first degree murder. The jury was unable to agree on the sentence, and the trial judge imposed the death penalty.

Ervin contends: (1) A juror was improperly excluded because of his views on the death penalty. (2) A non-testifying co-defendant's statements should have been excluded. (3) Evidence of non-statutory aggravating circumstances should have been excluded in light of State v. Debler. (4) The evidence was insufficient to convict of first degree murder, showing at most a fight that spun out of control. (5) Ervin's statements should have been excluded because they were not voluntary or intelligent. (6) Gruesome, cumulative photos of the scene and victim should have been excluded. (7) The prosecutor engaged in improper argument during voir dire and opening and closing arguments in the guilt and penalty phases. (8) The death sentence is disproportionate considering the defendant, and the Court fails to engage in proper proportionality review. (9) Improper evidence was repeatedly placed before the jury, including statements about White's neck and thigh wounds, the fire's origin, and Ervin's assaults on officers in jail. (10) The statutory aggravating circumstance instruction was improper because the evidence did not support finding torture or depravity of mind, and the aggravator is impermissibly vague. (11) The burden of proof instruction was improper, lowering the state's burden of proof.

The State contends: (1) The state rightly challenged the juror for cause, because his death penalty views would have substantially impaired his performance as a juror. (2) Ervin waived or failed to preserve any challenge to the state's opening statement and various trial testimony by not objecting or raising it earlier. The jury was instructed the opening statement is not evidence. No plain error or manifest injustice resulted. (3) Prior post-arrest behavior and assault evidence was relevant to Ervin's character. (4) The evidence shows Ervin deliberated. He inflicted additional blunt trauma wounds when White showed signs of life after Ervin cut his throat and hit him repeatedly with a brick. Ervin showed consciousness of guilt by throwing White in the fire and attempting to flee. (5) Ervin's statement was voluntary, made after receiving his Miranda rights, and free of evidence diminishing his ability to understand. (6) The photos were relevant and not unduly prejudicial. (7) The challenges to the state's arguments are not properly explained and thus should be disregarded. In any event, Ervin's challenges lack merit. (8) The Court should affirm the death sentence under its independent statutory review. (9) Ervin waived or failed to preserve any challenge to statements and testimony by not objecting or raising it earlier. Certain testimony did not result in plain error and was not improper or inadmissible. (10) The aggravating circumstance of depravity of mind and that the murder was outrageously vile and horrible was supported because Ervin inflicted repeated and excessive acts of abuse. (11) The instructions defining reasonable doubt did not lower the state's burden of proof.

WEDNESDAY, SEPTEMBER 2, 1998

80691
Dennis Wayne Emery v. Wal-Mart Stores, Inc.
St. Louis City
Personal injury

Dennis Emery slipped on dog food and fell in a Wal-Mart Store. He sued for damages in the amount of slightly over $700,000.00. The jury returned the verdict in his favor in the amount of $660,000.00 but found him 20% at fault for a net verdict of $528,000.00.

Wal-Mart contends: (1) Emery failed to show Wal-Mart had actual or constructive notice of the dangerous condition in time to prevent the fall and failed to show that it did not have adequate safety methods. (2) Jury instruction seven misstated the law by failing to submit that Wal-Mart could have known of the dangerous condition, had time to take remedial action, and failed to employ adequate safety methods. The evidence did not support the instruction. (3) Emery should not have been permitted to testify that he was raising his brother’s children because their parents died in a car accident. (4) Testimony as to the frequency of dog food spills should not have been admitted. (5) Certain expert deposition testimony concerning what would be involved with and the cost of future surgery on Emery's back should not have been permitted because the testimony was too speculative. (6) Emery should not have been permitted to testify that a doctor said traces of blood in his urine indicated he had a contused kidney. (7) Wal-Mart's motion for remittitur should have been sustained, because the verdict is excessive and the result of the cumulative effect of the various errors.

Emery contends: (1) Substantial evidence supported his claim. (2) Wal-Mart did not object to the jury instruction or offer its own. (3) Wal-Mart waived any objection to Emery's testimony about raising his brother's children, and it was relevant to show he had to care for them despite his injury. (4) Testimony of prior spills established constructive or actual notice of a potentially dangerous condition. (5) Wal-Mart waived objection to expert deposition testimony about future surgery, and the testimony was not speculative or prejudicial. (6) No plain error or manifest injustice resulted from Emery testifying about blood in his urine. (7) Wal-Mart's allegations of error were untimely, unpreserved, and without merit.

Emery contends that he was entitled to prejudgment interest pursuant to section 408.040. Wal-Mart argues his letter failed to comply with that statute's requirements.

80723
Dalton & Marberry, P. C. v. NationsBank, N.A.
Boone County
Embezzlement

A Dalton & Marberry employee embezzled over $130,000.00 from the firm's bank account, now a NationsBank bank. Dalton & Marberry sued the bank, claiming the bank was negligent in allowing the employee to embezzle the funds. The jury returned a verdict in favor of Dalton & Marberry. The Court of Appeals—Western District reversed the judgment.

The bank contends: (1) The bank was a holder in due course and not subject to claims of negligence. (2) Dalton & Marberry cloaked the employee with apparent authority to cash checks drawn upon the account, and the bank relied on that authority. (3) The defenses of contributory negligence and estoppel should not have been excluded where Dalton & Marberry’s negligence allowed the employee to embezzle the funds. (4) No evidence showed the bank knew the check proceeds were being used for an employee’s personal benefit. (5) The bank was entitled to credit for the amount of restitution the employee had paid to Dalton & Marberry.

Dalton & Marberry argues: (1) The bank was not a holder in due course. It had a duty to inquire about the checks and use reasonable care. The claim is not to the checks but rather breach of contract. (2) Dalton & Marberry did not cloak the employee with apparent authority by any of its own acts or acquiesce in the employee’s acts, and no evidence showed the bank’s teller relied upon alleged acts cloaking the employee with apparent authority. (3) Contributory negligence is inadmissible because it is not a direct and proximate cause of the loss. (4) Dalton & Marberry is not obligated to prove the bank had actual knowledge the employee used the checks for personal benefit. (5) The money the employee reimbursed Dalton & Marberry went to other losses the employee caused to Dalton & Marberry clients. Dalton & Marberry and the employee are not joint tortfeasors because the action is in contract not tort.

Dalton & Marbury contends it was entitled to prejudgment interest under section 408.040, RSMo. The bank counters that Dalton & Marberry did not meet the statutory requirements for prejudgment interest, demanding an indefinite sum in excess of the amount claimed.

80647
Georgia J. Carlson v. K-Mart Corporation
Jackson County
Personal injury

Georgia Carlson was shopping at a K-Mart store when shelved merchandise fell on her, striking her in the face and on her head, knocking out a tooth, and causing other injuries. She developed neck and back pain. Doctors diagnosed a degenerative disk disease. About six months later, a speeding drunk driver crashed into the rear of her car. She then complained of worsened neck and back pain. She eventually underwent back surgery, which failed to mitigate her symptoms. She sued K-Mart. There was a factual dispute as to the cause of her injuries, particularly as to the precise effect of the K-Mart incident on the development of her problems. The jury returned a verdict for Carlson for $100,000.00.

Carlson claims the award was smaller than it should have been because of instructional error and defense counsel's closing arguments. Specifically, she contends the damage instruction should have been modified so that the jury should award damages directly caused or contributed to be caused by the K-Mart accident rather than only those that directly resulted from it. She also argues her injury was incapable of division. Finally, she contends counsel's statement that no one ever has an accident anymore was outside the evidence and injected anti-lawsuit bias.

K-Mart argues it is liable only for those damages that occurred as a direct result of its negligence. K-Mart also argues the facts did not support finding the injuries were indivisible. Lastly, K-Mart contends its closing argument was not improper or prejudicial.

79985
State of Missouri v. David Barnett
St. Louis County
Death penalty

After trial in March 1997, David Barnett was convicted of stabbing to death his adoptive grandparents. Barnett was convicted of two counts of first degree murder and sentenced to death on both counts. He was also convicted and sentenced to consecutive life sentences on two counts of armed criminal action and one count of first degree robbery.

Barnett contends: (1) An exhibit chronicling his traumatic and painful life experiences should have been sent to the jury on their request to allow full consideration of mitigating events warranting a sentence less than death. (2) The prosecutor’s argument injected religious references and matters outside the record. (3) Certain women were improperly excluded from the jury on the basis of gender. (4) The family wishes that Barnett not be sentenced to death were ignored. (5) An elementary school counselor should have been allowed to testify that she considered reporting Barnett’s father when Barnett brought allegedly his father’s marijuana to school. (6) Testimony concerning Barnett’s shoes should not have been admitted into evidence when not properly disclosed before trial. (7) A defense witness was improperly cross-examined. (8) A potential juror was improperly excused for cause because of her views on the death penalty. (9) The jury should have been instructed on second degree murder under the felony murder theory and on voluntary manslaughter. (10) The jury should have been given an instruction on listed non-statutory mitigating circumstances. (11) The death sentence is disproportionate given David’s traumatic history. It should not have been imposed over the family’s wishes. The Court does not engage in meaningful proportionality review. (12) The jury was improperly instructed on the reasonable doubt burden of proof. (13) The death penalty is unconstitutional in light of the prosecutor’s discretion and lack of retributive purpose. Alternatively, the aggravating circumstances failed to narrow the class of individuals subject to the death penalty and are vague and duplicative.

The state argues: (1) The exhibit the jury requested was testimonial. Its absence did not preclude the jury from fully considering Barnett’s evidence. (2) One religious reference was not inflammatory and was cumulative. A curative instruction followed a police officer’s testimony, which was not argument or evidence. The prosecutor did not make excessive scripture references, relying instead on fair inferences from the record. (3) The prosecutor gave gender-neutral, non-pretextual reasons for striking certain jurors. (4) The Missouri Constitution does not require the wishes of crime victims to be followed as to punishment. (5) A counselor’s statements about what Barnett said about the marijuana he brought to school would have been hearsay, and Barnett was not prejudiced because the evidence was presented through another witness. (6) Barnett showed no discovery violation, and no objection was made, regarding testimony about his shoes. (7) Cross-examination of a defense witness was not improper. (8) A prospective juror’s views on the death penalty would have impaired her juror duties. (9) A second degree murder instruction was submitted to the jury. The jury found deliberation, and no reasonable basis suggests the jury would have reduced Barnett’s conviction for a lesser-included offense. (10) Listing evidence in mitigation of punishment is not required, and Barnett’s suggested instructions contained legally improper matters. (11) The Court engages in meaningful proportionality review, and under that review, Barnett’s sentence should be affirmed. (12) The death penalty is not unconstitutional because of prosecutorial discretion. The aggravating circumstances of robbery and pecuniary gain are not improperly duplicative.