Case Summary for December 1, 2005

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Case Summary for December 1, 2005

Attached to the following docketed cases are electronic copies of briefs filed by the parties. These electronic briefs have been converted to PDF to accommodate various word processors. If you do not already have Acrobat reader, which is necessary to open the PDFs, you may obtain it free at the Adobe website. (A set of free tools that allow visually disabled users to read documents in Adobe PDF format is available from access.adobe.com.) These briefs do not reflect any opinion of the Court about the appropriateness of the format of the briefs or the merits of the case, nor are they official court records. Copies of all briefs filed with the Court are available at the Supreme Court Building in the court en banc division.

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, December 1, 2005
_____________________________________________________________________________________________

SC86955
State ex rel. Michael Sanders, Prosecuting Attorney of Jackson County v. The Honorable Margaret L. Sauer
Jackson County
Challenge to paternity default judgment and subsequent order for DNA testing

In September 1990, a petition for declaration of paternity was filed in Jackson County, Missouri, alleging that Montae Perkins was the father of V.R. In July 1990, the child's mother signed a stipulation regarding blood tests. Perkins was sent several notices of scheduled blood tests but failed to appear at any of the scheduled appointments. In October 1991, the court entered a default judgment against Perkins, finding him to be V.R.'s father. In July 2004, the mother alleged that Perkins failed to provide adequate child support. In April 2005, Perkins moved to disclose the DNA of the custodial parent and the child. The next month, the circuit court ordered the state to produce the custodial parent and her child for genetic testing. The mother seeks a writ of prohibition.

The mother argues she is entitled to an order prohibiting the court from ordering the state to produce her and her child for genetic testing. She contends the circuit court exceeded its jurisdiction in granting Perkins' motion for disclosure of the DNA of her and her child. She asserts that the fact that the child may not be Perkins' biological child is irrelevant and immaterial because the child has been legitimated by legal process. The mother further argues a finding of biological non-paternity would not provide a defense to the crime of nonsupport.

Perkins responds that the mother has failed to carry her burden of showing that the child has been legitimated by legal process. He argues the mother is not entitled to an order prohibiting the circuit court from ordering her and the child to submit to DNA testing to determine paternity.

SC87028
Terry J. Woods v. State of Missouri
St. Louis County
Challenge to denial of postconviction relief without hearing

In March 2003, Terry Woods pleaded guilty to a class C felony offense of stealing, third offense. The court sentenced Woods to four years in prison, and he sought relief. The court denied relief without a hearing, and Woods appeals.

Woods argues the motion court clearly erred when it denied his postconviction relief motion without a hearing. He contends he alleged facts, not refuted by the record, that demonstrated the trial court improperly enhanced his charge for a class A misdemeanor stealing to that of the class C felony of stealing, third offense. He asserts the four-year sentence imposed exceeded the one-year maximum sentence allowed by law. Woods argues his sentence violates his constitutional right to due process and to be free from cruel and unusual punishment. He contends the state improperly pleaded and proved two prior stealing convictions obtained by guilty pleas entered at the same time before the same judge in the same court at which the state was represented by the same prosecutor and he was defended by the same attorney. Woods asserts the requirement of section 570.040, RSMo, that he had pleaded or been found guilty on two separate occasions was not met. Woods argues his counsel did not inform him that the state improperly pleaded and proved two prior convictions that were obtained at the same time. Woods contends that because he was misinformed, he did not enter into a knowing, voluntary and intelligent guilty plea.

The state responds that this Court should affirm the denial of Woods' request for postconviction relief. The state argues that the trial court properly charged Woods pursuant to section 570.040, RSMo, because he had committed two prior acts of stealing to which he pleaded guilty and had admitted under oath in open court. The state contends that the "two separate occasions" language of the statute refers to two separate acts of stealing. The state asserts that Woods waived his right to declare that he did not qualify for a third stealing charge because he admitted that he was a prior offender and because he first raised the issue in a collateral proceeding.

SC86936
State ex rel. Alis Ben Johns v. The Honorable Greg Kays
Camden County
Challenge to death penalty after a finding of mental retardation

In February 1999, Alis Ben Johns was found guilty of first-degree murder and was sentenced to death in Pulaski County for one murder. After committing that crime, he evaded capture by law enforcement for six months and, during his flight, committed additional crimes, including murder. He pleaded guilty to first-degree murder on the Newton County charge and was sentenced to life in prison. In April 2001, the state charged Johns with one count of first-degree murder and one count of armed criminal action in Camden County. The state has given notice that it intends to seek the death penalty in that case. In July 2003, the Pulaski County circuit court ruled, in Johns' postconviction relief motion from that conviction, that Johns is mentally retarded. That court vacated Johns' death sentence in the Pulaski County case accordingly and sentenced him instead to life in prison without the possibility of probation or parole. In October 2004, Johns sought to prevent the state from seeking the death penalty against him in the Camden County case. This Court denied his request. In April 2005, the Camden County circuit court denied Johns' motion to dismiss the aggravating circumstances and ruled that the issue of whether he is mentally retarded will be determined by a jury. Johns seeks relief from this Court.

Johns argues that he is entitled to a writ or prohibition ordering the Camden County circuit court to take no action that would subject him to the death penalty or, alternatively, a writ of mandamus ordering the Camden County circuit court to dismiss the aggravating circumstances and to prohibit the state from seeking death as a punishment. Johns contends that no adequate remedy by appeal exists if the state is allowed to continue seeking his execution and that the court would act in excess of its jurisdiction if it allowed the state to do so. Johns asserts that the 14th amendment of the federal constitution prohibits the execution of a person who is mentally retarded. Johns argues the issue and burden of proof in the Camden County proceeding are identical to those in the Pulaski County proceedings. He contends the Pulaski County proceedings resulted in a final judgment from which the state did not chose to appeal. He asserts, therefore, that the Pulaski County circuit court's findings that he is mentally retarded prevent the state from seeking the death penalty in the Camden County proceedings. Johns argues the state had a full and fair opportunity to litigate the issue of Johns' mental retardation in the Pulaski County proceedings.

The state responds that a writ is not warranted because the Pulaski County findings do not operate to prevent it from seeking the death penalty in Johns' Camden County case. The state argues that it is within the Camden County circuit court's authority to try Johns for his crimes, to submit the factual issue of his alleged mental retardation to the jury and to impose any sentence authorized by law.

SC87027
Margaret Miller v. Rothschild Management Group
City of St. Louis
Challenge to denial of motion for rehearing and application to transfer

In March 2002, Margaret Miller filed a personal injury claim against Rothschild Management Group after she fell on a parking lot it owned. In January 2004, the circuit court entered a $3 million default judgment in Miller's favor. Later in the month, Rothschild moved to set aside the default judgment and amend its motion. Three months later, the court granted Rothschild's motion and set aside its judgment. Miller appeals.

Miller argues the trial court erred in setting aside the default judgment. She contends that the trial court lost jurisdiction over its judgment 30 days after it entered the default. She asserts that because Rothschild filed its motion within 30 days of the default entry, it was an authorized after-trial motion. Miller argues that the trial court's failure to rule on the motion within 90 days constituted a denial of the motion and that Rothschild failed to file a timely notice of appeal. Miller contends the circuit court abused its discretion by determining, without substantial evidence and against the weight of the evidence, that Rothschild's untimely answer was the result of excusable neglect. She asserts the evidence instead shows that Rothschild's conduct was reckless. She argues the evidence shows that her petition was served properly on the Rothschild employee responsible for handling the summons, the employee knew the location of the incident was one managed by Rothschild, the employee gave the summons to the insurance company without supplying information about the location, and Rothschild took no steps to ensure proper follow-up on the action.

Rothschild responds that the trial court had jurisdiction to set aside the judgment pursuant to Rule 74.05(d), which is outside the scope of the rules that deem overruled any after-trial motion not ruled on in a 90-day period. Rothschild argues that even if its first motion to set aside was overruled automatically, its amended motion – which alleged a different basis for relief – was within the one-year limit of Rule 74.05(d) and, therefore, gave the trial court jurisdiction. Rothschild contends it legally was entitled to have the default judgment set aside because it has a meritorious defense and there was good cause to set aside the default judgment. It asserts that it acted with diligence and respect for the legal process but that its insurance agent mistakenly failed to forward Miller's summons and petition to Rothschild's insurer.