Case Summary for October 2, 2014

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Case Summary for October 2, 2014

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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The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Thursday, October 2, 2014

____________________________________________________________________________________________________

SC94050
In re: David S. Purcell
St. Louis County
Attorney discipline
Listen to the oral argument:

SC94050.mp3
Alan D. Pratzel, chief disciplinary counsel, presented the argument on behalf of his office in Jefferson City. Purcell did not present an argument.

St. Louis attorney David Purcell was a principal of Your Estate Matters LLC until his retirement and is now retained as a consultant and mentor of the firm. Purcell received an admonition in November 2001 for violating Rule 4-7.1 as to communication regarding lawyer services. The Office of Chief Disciplinary Counsel received a complaint against Purcell claiming he had his paralegal handling the client’s cases and he had little to no involvement in the cases until she sent a written complaint regarding Purcell’s representation. Another complaint alleged that Purcell continued to represent a client after the client stated he did not want Purcell to represent him any longer. It further claimed Purcell filed an appeal and accepted attorney’s fees from the client’s trust without the client’s knowledge. The third complaint alleged that Purcell drafted estate documents naming his client as power of attorney over two individuals. The individuals were in declining health and Purcell allegedly failed to ensure that they had the proper mental capacity to execute estate documents. Upon the individuals’ deaths the personal representatives of the estates filed a suit against Purcell’s client claiming the decedents had executed estate documents prior to Purcell’s powers of attorney, which Purcell had failed to check. The action demanded the return of assets which Purcell’s client had re-titled in her name. The personal representatives filed a separate action against Purcell’s firm and won as well. Purcell entered into a stipulation (agreement) with the Office of Chief Disciplinary Counsel regarding the facts and recommended discipline.

The disciplinary hearing panel found Purcell violated several Rules of Professional Conduct. The panel recommended that Purcell’s license should be suspended without leave to apply for reinstatement for at least two years. Purcell accepted the panel’s recommendation.

Chief Disciplinary Counsel and Purcell agree Purcell violated several Rules of Professional Conduct. They contend Purcell violated Rule 4-1.3 regarding diligence by failing to act with reasonable diligence and promptness in his representation and Rule 4-1.4 by failing to keep his client informed of her cases as well as failing to supervise a non-lawyer’s conduct. Disciplinary Counsel and Purcell also assert that Purcell violated Rule 4-1.2 by failing to follow a client’s directives; Rule 4-1.5(a) by charging an unreasonable fee; Rule 4-1.7 by engaging in a conflict of interest between current clients; Rule 4-1.8(f) by accepting money from a client’s trust account without their consent; Rule 4-1.16(d) by failing to surrender a client’s files; Rule 4-3.4 by failing to act in fair competition; and Rule 4-8.4(c) by acting with dishonesty, fraud, deceit or misrepresentation. They further contend Purcell violated Rule 4-1.1 by failing to provide competent representation; Rule 4-3.4(d) by failing to comply with a discovery request; and Rule 4-8.4(d) by acting in a way prejudicial to the administration of justice. Disciplinary Counsel and Purcell assert that suspension is proper in cases involving client conflict of interests and dishonesty, fraud, deceit or misrepresentation.

SC94050_Chief_Disciplinary_Counsel_brief.pdf

SC94050_Purcell_brief.pdf

SC94074
Shawn Stevens v. Markirk Construction, Inc., and Kirk Jones
Jackson County
Challenge to jury instructions
Listen to the oral argument:

SC94074.mp3
Stevens was represented during oral arguments by Margaret Lineberry of the Lineberry Law Firm PC in Kansas City; and Markirk and Jones were represented by Patrick A. Bousquet of Brown & James PC in Kansas City.

Shawn Stevens purchased a subdivision lot and built his home on land owned by Damar Development and developed by Markirk Construction, of which Kirk Jones is president. The property sits at the bottom of a hill, and frequently floods due to run off from houses up the hill. Stevens filed an action against Damar, Markirk and Jones claiming that Jones falsely represented that Markirk would take actions to prevent any water problems on his lot. Damar was later dismissed. At trial, the jury was given an instruction based on Missouri Approved Instructions 23.05 with a verdict director that required the jury to find that Jones knew his statement that the lot did not flood was false at the time he stated it in order to find fraudulent misrepresentation. Stevens argued that a verdict director should be given that Jones was not required to know whether his statement was true or false at the time he made it in order to find fraudulent misrepresentation. The court refused to submit Stevens’ instructions to the jury, and the jury returned a verdict in favor of the construction companies. Stevens appeals.

Stevens argues the trial court erred in overruling his motion for a new trial. He contends a jury instruction at trial was improper. Stevens asserts the instruction regarding fraudulent misrepresentation misdirected, misled or confused the jury and was prejudicial to him. He argues the verdict director for one instruction given to the jury suggested that Jones knew his statement was a false representation as opposed to an alternative instruction that Jones did not know whether his statement was true or false. Stevens contends that the trial court also erred in refusing to give a different instruction director for each element of the claim, one for the condition of the property and another for intent as to future performance. He asserts that Rule 70.02(a) requires jury instructions to be given or refused according to the law and evidence in the case. Stevens argues that in similar cases the same instructions he requested and their verdict directors were found proper by this Court.

Markirk responds that the trial court correctly overruled Stevens’ motion for a new trial. It argues that the verdict director for the jury instruction was proper. Markirk contends that Stevens has insufficient evidence to prove that the jury instructions were prejudicial. It asserts that the trial court did not abuse its discretion in refusing to submit additional or different verdict directors to the jury.

SC94074_Stevens_brief.pdf

SC94074_Markirk_Construction_&_Jones_brief.pdf

SC94074_Stevens_reply_brief.pdf

SC93785
State of Missouri v. Sylvester R. Sisco, II
Jackson County
Alleged violation of right to speedy trial
Listen to the oral argument:

SC93785.mp3
Sisco was represented during oral arguments by Clayton E. Gillette of the Gillette Law Office LLC in Kansas City; and the state was represented by Daniel N. McPherson of the attorney general's office in Jefferson City.

Sylvester Sisco was convicted of first-degree murder, first-degree assault and armed criminal action for the shooting death of one man and the severe injuries caused to another. His trial was originally set for August 2007. The state requested a continuance due to the lead prosecutor’s illness and the trial was rescheduled for December 2007. The court moved the trial date to March 2008 due to docket constraints, but then following a judge reassignment the parties agreed to June 2008. Sisco filed a request for a speedy trial in June 2008. The state requested another continuance to gather DNA evidence and the trial court set a hearing for October 3. Sisco asked for additional time to respond to the motion for his DNA and filed his response November 2008. The circuit court ordered Sisco to provide DNA and set a trial date for April 2009. After the state discovered evidence of Sisco’s fingerprints at the scene of the crime, it dismissed the case nolle prosequi (to abandon prosecution) and re filed the complaint that same day. Sisco filed another request for speedy trial May 2009 and Trial was set for July 2009. Sisco filed several motions prior to July 2009, including a motion to dismiss with prejudice, which pushed the trial date back to October 2009. Sisco was convicted and sentenced. Sisco appeals the circuit court’s decision overruling his motion to dismiss.

Sisco argues the circuit court erred in overruling his motion to dismiss. He contends the state failed to comply with his request for a speedy trial. Sisco further asserts that the prosecution entered a nolle prosequi (abandon prosecution), which should have been with prejudice (cannot re-file the proceeding). He argues his rights to due process and a speedy trial were violated by the delay in his trial. Sisco contends he was harmed by the state’s multiple requests for continuances because it hindered his ability to pursue defenses. He asserts the state used a nolle prosequi to gain strategic advantage over him.

The state responds the circuit court correctly overruled Sisco’s motion to dismiss. It argues Sisco has insufficient evidence to prove his right to a speedy trial was violated. The state contends there were justified reasons for the continuances in the trial. It asserts that Sisco has failed to bring a claim that his right to a speedy trial was violated prior to this proceeding. The state argues that it only dismissed the case nolle prosequi because the circuit court would not accept new evidence regarding Sisco’s fingerprint at the scene due to the close proximity of trial. It contends Sisco’s suggestions to modify the nolle prosequi procedure would cause the law to be in conflict with section 56.087, RSMo. Missouri law does not prohibit the dismissal and successive re-filing of a case. The state argues the circuit court correctly assigned the delays to those parties responsible for them.

SC93785_Sisco_Brief.pdf

SC93785_State_brief.pdf

SC93785_Sisco_reply_brief.pdf

SC93855
State of Missouri v. David Russell Hosier
Cole County
Challenge to murder conviction
Listen to the oral argument:

SC93855.mp3
Hosier was represented during oral arguments by Craig A. Johnston of the public defender's office in Columbia; and the state was represented by Gregory L. Barnes of the attorney general's office in Jefferson City.

David Hosier was convicted of first-degree murder, armed criminal action, first-degree burglary and unlawful possession of a firearm for the shooting death of a woman whom with he had been having an affair and her husband. Upon discovery of the victims, Jefferson City officers began investigating the murder and determined that Hosier was a suspect. The officers put out a nationwide report for Hosier’s apprehension and obtained an order to track his cell phone signal, both of which were received by officers in Oklahoma who ultimately apprehended Hosier. Officers obtained warrants for the search of Hosier’s car and apartment and found several weapons and ammunition including what was later determined to be the murder weapon. At trial, evidence of the weapons recovered from Hosier’s car and apartment was submitted along with a petition for order of protection obtained by the victim, a letter from the victim to the landlord regarding Hosier and a note seized from Hosier’s car regarding the victim’s actions towards Hosier. Hosier filed a motion to suppress the evidence seized from his car and apartment, which the circuit court overruled. He also filed a motion for judgment of acquittal (dismissal of charges) of a charge of burglary for entering victim’s apartment building, which the circuit court also overruled. Hosier appeals.

Hosier argues the circuit court erred in overruling his motion to suppress evidence. He contends his right to be free from unreasonable searches and seizures was violated by law enforcement using an order to track his cell phone signal in order to locate him without sufficient probable cause. Hosier asserts the Oklahoma law enforcement only stopped him because of the report of the Missouri law enforcement, not because he had committed any violations. He argues the gun seized in the officer’s search of his car was the only evidence connecting him to the murder scene and it was wrongfully seized. Hosier contends that law enforcement unlawfully obtained a search warrant for his apartment because the affidavit to support the warrant lacked probable cause that contraband or evidence would be located. He asserts the state should not have been permitted to submit evidence at trial of other weapons and ammunition seized from his apartment because none of these weapons were involved in the murder. Hosier argues the court should not have permitted evidence of an order of protection and statements made to the landlord to be submitted because he has a right to cross-examine all witnesses against him. He contends the petition for an order of protection constituted hearsay (out of court statements), contained the equivalent of the victim’s testimony and it along with the statements were made to establish or prove past events. Hosier asserts that the circuit court erred in overruling his motion for judgment of acquittal because there was insufficient evidence to convict him for burglary. He further argues that the circuit court should not have admitted a note found in his car as evidence because it was not properly authenticated as his handwriting and constituted hearsay.

The state responds the circuit court correctly overruled Hosier’s motion to suppress evidence. It argues that Hosier had no reasonable expectation of privacy in his cell phone signals. The state contends the cell phone itself was evidence because Hosier made threatening calls the day before the murder. It asserts that law enforcement had probable cause and reasonable suspicion to issue a report to stop Hosier because his flight from Missouri is evidence of his consciousness of guilt. The state argues that there was probable cause for a warrant to search Hosier’s apartment because there was a fair probability that law enforcement would find contraband or evidence of the crime. It contends the evidence of other weapons and ammunition was submitted as evidence of the offense of possession of a firearm by a convicted felon. The state asserts the petition and statements of the landlord were proper under a doctrine allowing evidence of wrongdoing and exceptions to hearsay. It further argues the full petition for an order of protection was not submitted to the jury and Hosier did not object at trial. The state contends there was sufficient evidence to find Hosier unlawfully entered the victim’s apartment building to murder her and was guilty of burglary. It asserts the note was properly admitted as evidence because there was circumstantial evidence to authenticate it and the handwriting was compared to another note Hosier wrote.

SC93855_Hosier_brief.pdf

SC93855_State_brief.pdf

SC93855_Hosier_reply_brief.pdf