Case Summary for January 9 and 11, 2001

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Case Summary for January 9 and 11, 2001

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, January 9, 2001

SC83037
Jimmy Ballard v. Director of Revenue
Gentry County
Zero Tolerance Law

Ballard was under 21 when arrested for driving while intoxicated, with a BAC over .10%. He appeals the court's sustaining his driver's license suspension.

Ballard argues that pursuant to section 302.505, the zero tolerance law, because he was under 21, the Director had to prove the legality of the stop instead of merely the lawfulness of his arrest. The Director failed to prove he was stopped on probable cause to believe he violated a municipal traffic ordinance.

The Director counters that the zero tolerance law did not apply to Ballard. It requires proof for the stop only for those under 21 with a BAC of at least .02% but less than .10%. Those who are under 21 with a BAC over .10%, like Ballard, are treated the same as those over 21 with a BAC over .10%.

SC82900
Bradley Baldwin v. Director of Revenue
Lafayette County
Zero Tolerance Law

Baldwin was under 21 when arrested for driving while intoxicated with a BAC over .10%. He appeals the court's refusal to expunge his license suspension and requirement of proof of financial responsibility for reinstatement.

Baldwin argues that section 302.545 mandates expungment and section 302.541.2 negates filing proof of financial responsibility, as he was under 21 at his arrest. The statute confers different treatment based on age, without qualifying the treatment for those under 21 with a .10% limit.

The Director counters that Baldwin was not exempt and his records were not subject to expungment because the zero tolerance law allowing for preferential treatment applies only to underage drivers who are stopped on probable cause and whose licenses are suspended with a BAC between .02% and .10%.

SC82599
KV Pharmaceutical Co. v. Missouri State Board of Pharmacy
Cole County
License discipline

The Board of Pharmacy sought to discipline KV Parmaceutical Company's wholesale drug distributor's license based on KV's guilty plea for violating federal law by failing to file a certain report and shipping certain drugs without adequate support for their expiration date. The circuit court upheld discipline against KV's license, and KV appeals.

KV argues that the statute the Board relies on, section 338.055, does not apply to wholesale drug distributors, and if it did, its terms were not violated. KV's offenses do not reasonably relate to the qualifications, functions, or duties of any profession licensed under the applicable chapter and do not involve fraud, dishonesty, violence, or moral turpitude. In addition, a three-year probation is too harsh. KV corrected its manufacturing practices.

The Board contends the statute does relate to the qualifications, function, or duties of a wholesale drug distributor. The statute works with other sections to protect the public, applies to all licenses in the chapter, and applies to the offenses to which KV pled guilty. The Board can best determine the appropriate discipline based on the offenses' gravity as they relate to the profession.

SC82410
Andrew Lyons v. State of Missouri
Scott County
Two first-degree murders (death each count), involuntary manslaughter (7 years)

In September 1992, Andrew Lyons shot and killed his ex-girlfriend, her mother, and his son. The jury found him guilty of two first-degree murders and involuntary manslaughter for the deaths, respectively. Lyons was sentenced to death, death, and seven years. The Supreme Court affirmed his convictions and sentences on appeal. Lyons now appeals denial of post-conviction relief.

Lyon claims he was denied effective assistance of counsel because: (1) Counsel failed to present evidence that he was incapable of deliberating through doctors who treated him at the Fulton State Hospital and worked in the competency program Lyons attended. (2) Counsel failed to call family members in the penalty phase for mitigating evidence, including mental illness and developmental adversity. (3) Counsel failed to request a mistrial or quash a potential jury panel when one potential juror (who was discharged) said Lyons was guilty. (4) The court erred signing the state's proposed judgment. (5) Counsel failed to challenge penalty phase instructions, which jurors do not understand. (6) Counsel failed to challenge the Court's proportionality review.

The state counters counsel was effective in that: (1) Counsel did not call mental health experts to avoid Lyons being examined by potentially unfavorable experts. In any event, counsel obtained expert testimony. The mental health experts that Lyons names were not credible and would damage his defense. (2) Counsel adduced adequate testimony from family members and a forensic psychologist. More evidence would have been cumulative or inconsequential. (3) Lyons failed to earlier raise his claim regarding a mistrial or quashing the jury panel. Counsel may have had reason for his decision. Lyons was not prejudiced in that none of Lyons' jurors were biased. (4) There is no reason to believe the judge failed to independently reflect before adopting the state's proposed findings. (5) This Court has repeatedly rejected general claims that the jurors do not understand the penalty phase instructions. There is no reason to believe Lyons' jury misunderstood. (6) This Court has repeatedly rejected claims challenging the Court's proportionality review.

Thursday, January 11, 2001

SC82910
Jay Angoff, etc. v. Marion A. Allen, Inc., et al.
Jackson County
Insurance insolvency & setoff

The Receiver for Commonwealth General Insurance Co. sought payment for earned premium allegedly owed it by several Georgia insurance agents, the Allen entities. The court found that it had personal jurisdiction over the agents and that the agents were not entitled to setoff unearned premiums Commonwealth owed them. They appeal.

The Allen agents argue they did not purposefully establish minimum contacts with Missouri to support personal jurisdiction. In any event, any unpaid earned premium owed to Commonwealth should be offset against the unearned premium owed to them. Setoff of mutual debts or credits is required by section 375.1198, contemplated by section 375.1204, and consistent with the parties' contracts and course of dealing. Commonwealth agreed and usually credited the Allen agents for premiums it owed them.

Commonwealth responds that the Allen agents purposely availed themselves of Missouri's laws and had numerous contacts with Missouri. Commonwealth's records at insolvency show earned premium due for the Allen agents. The debts are not mutual so as to be setoff under section 375.1198. They are to and from different insureds.

Transit Casualty Company in Receivership filed an amicus curiae brief supporting the trial court's decision: The insolvency code is a self-contained and exclusive statutory scheme for insurance receiverships. Section 375.700.2 precludes offset, and section 375.1198 only provides for limited offset. Section 375.1154 confers personal jurisdiction. That statute is constitutional under the minimum contacts theory.

SC82716
City of Hazelwood, et al. v. Robert H. Peterson, et al.
St. Louis
Taxes, Hancock Amendment

Hazelwood contracted with Florissant Valley Fire Protection District for coverage of a certain section. Hazelwood paid a fee in a statutory formula based on a tax rate. An election increasing the tax rate was set aside, then the hike was defeated. Hazelwood sought a refund of the portion of the payments based on the invalid increase, as did certain individual taxpayers. The court certified the class of taxpayers, held the increase invalid from its inception under the Hancock Amendment, required the District to return the money to the taxpayers and city, and awarded costs and attorneys fees to the plaintiffs.

The District argues: (1) The tax increase was valid under the Hancock Amendment because it was approved by a majority and the election result was valid when the tax was levied. (2) Hazelwood is not entitled to a tax refund under Hancock or Chapter 139 because the District never taxed Hazelwood. Hazelwood paid the District pursuant to contract, not in payment of a tax. (3) Class actions are not available in tax refund cases. Certification of a class over two years after the case starts cannot contribute to the case's efficiency, increase the court's ability to resolve it, or protect non-parties' interests. (4) Hazelwood should not receive attorneys fees. The Hancock Amendment permits recovery only by taxpayers, and Hazelwood is not a taxpayer as to the contract payments. Also, a government entity is not within the Hancock Amendment's protection. (5) The taxpayers should not receive attorneys fees because the election and tax were valid at the time.

The taxpayers contend: (1) The refund is required under Hancock because the election contest determined the District failed to secure voter approval of the tax increase. The District attempted to retain the increase already collected and continued to collect the increase even after it was determined there was no valid election. (2) The class certification was proper because all the District's taxpayers were subject to the same illegal levy as the plaintiffs. Judicial economy is served by resolving all potential claims in one action. (3) The Hancock Amendment provides for attorney fees.

Hazelwood contends: (1) The District violated Hancock by increasing the tax, license or fee without voter approval, requiring a refund. Election laws do not allow the District to retain the increase after final judicial determination of its unconstitutionality. To the extent section 115.595 is inconsistent with the Constitution, the Constitution controls. (2) Hazelwood's payments to the District are a tax or fee, entitling it to recovery as a payer of the fees, under the statutory process for recovery of improperly collected taxes, and under the theory of money had and received. (3) The Hancock Amendment provides for attorney fees.

SC82406
William L. Rousan v. State of Missouri
St. Francois County
Two first-degree murders; death and life without parole

William Rousan was convicted of two first-degree murders for the September 1993 deaths of a St. Francois County couple and sentenced to death and life without parole. The Supreme Court affirmed his convictions and sentences on appeal. He now appeals denial of post-conviction relief.

Rousan claims he was denied effective assistance of counsel: (1) & (2) Counsel failed to present prison records and Rousan's former employer in the penalty phase to show he was a good student, worker, and prisoner so as to make a good adjustment to serving life in prison. (3) Counsel failed to object to closing argument that the jury should protect the community and prison workers from Rousan, unsupported by evidence. (4) Counsel failed to present Rousan's own testimony to show he did not plan the killings, and to counter his statement to police and otherwise rebut the state's theory. (5) Counsel failed to present Brent Rousan's testimony that William Rousan did not kill, direct anyone to kill, or plan to kill the victims but, rather, planned to steal.

(6) Counsel failed to present Rousan's attorney request form to show he requested counsel before questioning, so his statement should have been suppressed. (7) The court refused to disclose or review highway patrol disciplinary files to show officers disregarded defendants' attorney requests and to diminish their credibility. (8) Counsel failed to redact references to Rousan's prior convictions from his police statement. (9) Counsel failed to present a witness to say Rousan intended only to steal and to otherwise dispute the state's theory. (10) Counsel failed to object to the duplicate aggravators of committing murder for money and in a robbery.

(11) Counsel failed to object to the aggravator that Rousan killed a victim when bound or helpless. Another person did the killing. (12) Counsel failed to present a witness statement omitting that Rousan told the person to wait while Rousan secured the premises. (13) Counsel failed to present employment records to show Rousan had little time to plan the crime. (14) Counsel failed to object to a witness's testimony that was obtained for a reduced sentence. (15) Counsel failed to object to Rousan being subject to death. The Eighth Amendment prohibits death for one who aids and abets a felony where death results but does not kill the victim.

The state counters counsel was effective: (1) Rousan's prison records contained damaging information about his past. (2) Rousan's job performance would not have been received favorably or overcome the aggravators. (3) The state's argument on future dangerousness was proper. (4) Rousan decided not to testify on counsel's advice because his account was implausible and impeachable. (5) Brent Rousan did not want to testify, and his incredible testimony would not have provided a defense.

(6) Rousan presented no credible evidence that he requested counsel before questioning. (7) Rousan failed to show officers' files contained material, helpful information; they were not discoverable. (8) The prior crimes evidence in Rousan's confession was admissible. (9) An uncalled witness's testimony that Rousan intended only to steal was cumulative to evidence presented through a more favorable witness. (10) The aggravators were not duplicative.

(11) The depravity of mind aggravator was not prejudicial. (12) Counsel did impeach Robert Rousan on his statement's omission and inconsistencies. (13) The employment records did not establish that Rousan could not have "cased" the victim's farm. (14) The case related to testimony secured by a promise of leniency was decided after Rousan's trial. Counsel is not required to anticipate changes in the law. In any event, the case is irrelevant to these facts. (15) Counsel challenged the sufficiency of the evidence, but it was meritless.

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