Case Summary for April 7, 2004

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Case Summary for April 7, 2004

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Wednesday, April 7, 2004
______________________________________________________________________________

SC85609
State of Missouri v. Anthony Finerson
St. Louis City
Challenge to sentence following probation violation and to revocation statutes

In November 1987, Anthony Finerson pled guilty to two counts of stealing and, the next month, was sentenced to two concurrent terms of five years each. These sentences were to run consecutive to his previous one-year sentence for a forgery conviction. Subsequently, the court suspended execution of the sentences in both the stealing and the forgery cases and placed Finerson on probation. In July 1989, the court found Finerson violated conditions of his probation, revoked Finerson's probation and verbally sentenced him to two concurrent one-year sentences on the stealing convictions to run concurrent to a one-year sentence in the forgery case. In October 1989, Finerson was sentenced to two concurrent 15-year sentences in a third case, to run consecutive to his sentences in the stealing case. In August 2002, Finerson filed, on his own, a motion asking the court to correct a "mistake" in his judgment, sentence and commitment, pursuant to Rule 29.12(c). In his motion, Finerson alleged that the sentence the court ordered him to serve did not reflect what it verbally told him his sentence would be. The court denied his motion, and Finerson appeals.

Finerson argues the court violated his due process and equal protection rights under the state and federal constitutions when it denied his motion to correct the judgment, sentence and commitment. He contends the court erred in stating, in its written order, that its verbal pronouncement of sentence did not differ materially from its written order revoking his probation. He asserts that there was no verbal rendition of the revocation proceedings on which the court could rely. Finerson further argues that sections 557.011 and 559.036, RSMo 1986, are unconstitutionally vague because they do not provide sufficient guidance as to recording revocation proceedings and, therefore, result in arbitrary imposition and execution of sentences.

The state responds that this Court cannot review Finerson's claims properly because Finerson failed to file a complete transcript of the plea and sentencing hearings. It further responds that this Court lacks jurisdiction to review Finerson's claims because his constitutional claims are not cognizable, real or substantial. It argues Finerson failed to raise these claims at the earliest possible time and, therefore, are waived. The state contends that Finerson failed to allege facts demonstrating that the statutes are unconstitutional as applied to him. To the extent this Court reaches Finerson's claims, the state asserts that the motion court properly denied Finerson's motion because an order nunc pro tunc only is available to correct a clerical error. The state argues there was no clerical error here because the record does not reflect that the verbal pronouncement of Finerson's sentences for stealing differed from the written judgment and sentence. The state further argues that sections 557.011 and 559.036 are not unconstitutionally vague.

Mr. Finerson's arguments are not available in electronic form.

SC85347
State ex rel. Wasim Aziz v. Donna McCondichie, Superintendent, and Missouri Parole Board
Mississippi County
Propriety of parole revocation

Wasim Aziz was convicted of first-degree tampering in March 1997 in St. Louis County and was sentenced to 15 years in the department of corrections. His tampering sentence was to be served consecutively to other sentences he was serving at the time. In July 2000, Aziz was released on parole. In January 2002, Aziz was arrested for possession of a controlled substance and possession of drug paraphernalia. In April 2002, Aziz was arrested for violating his parole. The Missouri board of probation and parole held a preliminary revocation hearing that month and a final revocation hearing about two months later. Following the second hearing, in June 2002 the board revoked Aziz's parole because of violations of condition 1 (certain violation reports and the drug arrests), condition 5 (his association with a convicted felon the night of his drug arrests) and condition 6 (allegedly testing positive for marijuana the night of his drug arrests). Aziz is incarcerated in the Southeast Missouri Correctional Center in Charleston, Missouri. In February 2004, the board rescinded its revocation of Aziz's parole, restored him to parole status, kept him in department of corrections custody based on a preliminary hearing and scheduled a new revocation hearing for March 2004. He seeks release and expungement of his parole violations through a writ of habeas corpus.

Aziz challenges both revocation hearings, arguing the board erred in finding he violated parole conditions 1, 5 and 6. As to condition 1, Aziz contends that the violation reports are unreliable and constitute impermissible hearsay and that the board failed to find that he was, in fact, in possession of a controlled substance or drug paraphernalia. He notes that condition 1 does not require him to avoid arrest. As to condition 5, Aziz asserts that the reference to police reports upon with the board relied constitute impermissible hearsay and that the board did not permit questioning of any witnesses regarding whether Aziz was associating with a convicted felon. Aziz argues that mere presence in the same location as a convicted felon does not constitute a violation of condition 5. As to condition 6, Aziz contends the board based its finding solely on lab reports without permitting him to confront and cross-examine those who conducted the lab tests. He also asserts he was not provided a copy of these lab reports before the revocation hearing.

Donna McCondichie, superintendent of the Southeast Missouri Correctional Center, responds that Aziz's case is moot because the board set aside its revocation of his parole and scheduled him for a new final revocation hearing. She argues this new final revocation hearing will cure any irregularities that might have existed in the June 2002 final revocation hearing. She contends that, to the extent Aziz challenges the preliminary revocation hearing, his claims are not pled properly and lack merit. McCondichie responds that the board properly revoked Aziz's parole under conditions 5 and 6. She asserts that the board properly found that Aziz had tested positive for marijuana based on a lab report that has sufficient indicia of reliability. She argues that the board properly found that Aziz was involved with drugs at the same location as a convicted felon. McCondichie further responds that, to the extent the board relied on parole violation reports or did not make sufficient factual findings to support revocation under condition 1, these errors are harmless.

SC85687
In re: Jeffrey L. Brown
Jackson County
Attorney discipline

In 1995, Ronald Heap, Edgar Banks and William Fox incorporated Tarmac Machinery Exchange, Inc. In January 1999, Heap and Banks gave Fox a letter terminating his employment as the company's president. Four days later, Fox started working as The Fox Group, Inc. A few days later, Tarmac sued Fox, and Fox hired Kansas City, Missouri, attorney Jeffrey Brown to represent him. Brown has been licensed to practice law in Missouri since January 1997. Brown advised Fox that he still was president of Tarmac and that the company could be required to pay for Brown's representation of Fox. Brown also advised Fox that he was a member of the company's board of directors and that he still had authority to write checks out of Tarmac's corporate account at the Bank of Jacomo. Brown told Fox that Brown's brother's accounting firm had a software program that could create checks for Fox to use. The accounting firm printed Tarmac checks for Fox, and during the last half of March 1999, Fox wrote abut 30 checks, most made payable to Fox or Brown, although several were payable to Brown's son for "consulting." Although Brown received more than $16,000 from these "fake checks," he believes he was underpaid for the work he was doing. In June 1999, Brown filed a lawsuit in Fox's name against Tarmac, the bank and others alleging tortious interference with business opportunities, breach of contract, defamation and civil conspiracy. Three months later, the court imposed sanctions against Brown and Fox for filing a frivolous lawsuit, and Brown was added as a defendant in a case the bank had filed against Fox alleging fraud and conversion for the checks written by Fox after his termination. In November 2000, Brown filed a lawsuit in federal court in his own name against many of the same entities the state court had sanctioned him for suing. He then told agents of the federal bureau of investigation that he thought Heap and Banks were evading paying income taxes and filing false loan applications with banks. He also gave a large number of Tarmac documents to the FBI and the Missouri secretary of state's office. In March 2001, the state court held a trial in the bank case in which Brown chose not to participate, and the court subsequently entered judgment against Brown and Fox. The next month, the federal court dismissed Brown's case because of his failure to prosecute it.

Within the next six months, W.K. Jenkins hired Brown to represent him in two cases involving Jenkins's businesses, Green Acres Farms and Green Acres Land & Cattle Company, Inc. One of the cases was in Jackson County, Missouri, and the other was in Wyandotte County, Kansas. Jenkins also hired Brown to research a federal land conservation issue and gave him some files concerning the matter. In December 2001, Jenkins fired Brown and asked Brown to return his files. One of Jenkins's sons wrote Brown a letter asking Brown to withdraw from the Wyandotte County case. Brown decided the discharge letter was not valid, so he appeared for a deposition on the Jenkinses' behalf in the Wyandotte County case in January 2002. The judge in that case ultimately entered an order removing Brown from the case. Brown subsequently submitted to the Jenkinses a bill for services he performed after Jenkins's son fired him and apparently subpoenaed financial information from several of Jenkins's financial institutions to help Brown defend other clients he still represented. Brown never returned the files, and ultimately the new attorney the Jenkinses had hired obtained a court order directing Brown to deliver the files to her. At some point, Brown allegedly told the federal drug enforcement administration that someone was bilking the Jenkinses out of money and that this same person was threatening to kill Brown. Brown also allegedly reported that Jenkins was planning to defraud the federal department of agriculture. Brown gave copies of about 35 documents from the federal land conservation issue to his DEA contact before returning all these documents to Jenkins in May 2002.

The chief disciplinary counsel argues that this Court should disbar Brown for violating certain rules of professional conduct, including Rule 4-1.5 regarding fees; Rule 4-1.6 regarding confidentiality of information; Rules 4-1.7, 4-1.8(b) and 4-1.9(a) regarding conflict of interest; Rule 4-1.15(b) regarding safekeeping property; Rule 4-1.16(a)(3) regarding withdrawing from representation after being discharged; Rule 4-3.1 regarding meritorious claims and contentions; Rule 4-4.4 regarding respect for rights of third persons; and Rules 4-8.4(c) and (d) regarding misconduct. The chief disciplinary counsel contends that, during his representation of Fox, Brown purported to be representing Tarmac at the same time he represented its ex-president contrary to its interests, filed frivolous lawsuits in state and federal courts for no substantial purpose other than burden and delay, and engaged in a fraudulent check-writing scheme. The chief disciplinary counsel asserts that, during his dealings with Jenkins, Brown billed Jenkins for unauthorized services, provided parts of Jenkins's files to government authorities without Jenkins's knowledge or consent, sought to use information about Jenkins to his former client's disadvantage, refused to comply promptly and voluntarily with Jenkins's request for the return of his files, and refused to withdraw after being discharged. The chief disciplinary counsel argues that Brown's conduct as to Jenkins was prejudicial to the administration of justice. She further contends that Brown should be disbarred because he knowingly provided Fox with check forms with which to make unauthorized withdrawals from a bank account and was the recipient of more than $16,000 in unauthorized withdrawals from that account.

Brown responds that this Court should dismiss the case against him. He argues he has not violated any rules of professional conduct in the course of his representation of Fox, Green Acres Farm, Green Acres Land & Cattle Company or Jenkins. Brown contends the chief disciplinary counsel has failed to establish the truth of any of her allegations by a preponderance of the evidence. He further responds that the allegations arising from his representation of Fox are barred by the three-year statute of limitations and that complainant Heap failed to appear to testify before the disciplinary hearing panel.

SC85473
State ex rel. Union Planters Bank, N.A., et al. v. The Honorable Larry L. Kendrick, Judge, Division 17, Circuit Court of St. Louis County
St. Louis County
Challenge to class certification

Arch Leasing Corporation Trust was organized to issue bonds to raise money for a computer equipment leasing venture involving a related entity, St. Louis Leasing Corporation. The bonds were issued through the trust's underwriter, J.E. Liss & Co. The trust's bonds were created to raise money for a venture involving a related entity, St. Louis Leasing Corporation. The leasing corporation was to provide lease brokerage services to the trust and to remarket leased equipment. The bond proceeds were to be used to help buy new computers that then were leased to large companies for periods ranging from 28 to 42 months. The lease payments were paid toward the bank loans that made up the remainder of the purchase price of the computers and toward the interest due on the bonds. The leasing corporation oversaw the purchase of the computers and marketed them to the lessees. The bondholders were to receive interest-only payments for three years, after which the entire principal was to be repaid. The money for paying off the principal was to come from the computers' "residual value," which was the amount for which the computers could be resold or released at the expiration of the original lease. Marshall & Stevens, Inc., was to provide an appraisal or estimate of what the computers' residual value would be at the end of the lease. Arch Management Corporation, an affiliate of the leasing corporation that shared offices and personnel with the leasing corporation, was one of the trust's three trustees. The other two trustees were Delaware Bank and Magna Bank, now Union Planters Bank, N.A. (the bank). The management corporation had day-to-day responsibility for collecting and paying out the bond proceeds and for handling the trust's business affairs. Part of the duties of the bank, as indenture trustee, included issuing the monthly interest checks.

Between May and November 1995, the trust sold a little more than $14 million in collateralized trust bonds issued to raise capital for the computer equipment leasing venture. During 1995, the leasing corporation used $3.6 million of the bond proceeds for purposes other than the purchase of computers. After counsel for the underwriter allegedly advised the bank that the trust's financial statements showed that the leasing corporation was using the money improperly, nearly $9 million of the trust's bonds were issued through the underwriter. In January 1996, the leasing corporation filed for bankruptcy protection. The first bonds were to have been paid off in May 1998, but the trust did not have sufficient funds to pay those bondholders and the interest and principal due on other bonds scheduled for payoff later in the year. That month, therefore, the trust sued in equity to compel the bank to distribute available funds to all bondholders on a pro-rated basis. The bank filed a counterclaim and, when the first principal payment was missed, in June 1998 declared the bonds in default. In August 1998, three brokers who sold bonds to the public retained an attorney and his law firm to represent certain bondholders to oppose the sale of collateral in the equity case. Between October and December 1998, the attorney and his firm spent more than 85 hours collecting substantial information relating to the bonds, including soliciting information from the underwriter. In December 1998, the attorney offered to file a class action on behalf of the bondholders against all involved except the underwriter and the brokers. He also represented six bondholders in the equity case. The brokers and the underwriter identified nine potential class representatives, to whom class counsel sent an engagement letter in July 1999. Three months later, he sent a second letter telling the proposed class plaintiffs that he was not in a position to consider or pursue any claims against certain brokers or the underwriter because they were assisting with the case and helping to fund it. In November 1999, class counsel filed suit in circuit court on behalf of eight named bondholders and a class of about 650 similarly situated bondholders and, in June 2000, sought class certification. The bondholders seek to recover more than $15 million in losses and damages they allegedly suffered when the bonds went into default. The equity court ultimately authorized the bank to sell the collateral and pay approximately $5 million to the bondholders and, in 2002, discharged the bank from further duties as indenture trustee. Following a hearing, in May 2003, the circuit court certified the class. The bank seeks a writ of prohibition from this Court.

The bank argues that, by accepting payment from potential defendants, class counsel created a conflict of interest that prevents him from representing the absent class members fairly and adequately, even though he is controlling the litigation. The bank contends that the class counsel's relationship with potential defendants kept him from pursuing potential claims against those defendants, that the class counsel failed to protect his clients' confidential information and that the class counsel failed to get his clients' informed consent. The bank asserts that the class representatives cannot represent the absent class members adequately and fairly. It argues that the potential defendants chose the named plaintiffs and that, by agreeing to a deal the class counsel struck with potential defendants, the named plaintiffs tainted themselves with a conflict of interest. The bank contends the court improperly allowed this suit to proceed as a class action with representation so inadequate that any judgment would be void. It asserts the court failed to decide whether class counsel's ability to represent absent class members adequately is limited by the conflict of interest the counsel created when he agreed not to sue potential defendants in exchange for assistance in financing the litigation and soliciting class representatives. The bank argues the court also improperly required absent class members to decide for themselves whether counsel's conflict of interest and inability to pursue all potential class claims left the counsel unfit to represent their interests. The bank contends that class counsel's unwritten deal with potential class defendants abuses the class action process and violates the due process justification for class actions by creating a de facto settlement class exempt from judicial oversight.

The bondholders respond that the court did not abuse its discretion in reaching its conclusions after full consideration of the arguments the bank raised. They argue the court properly concluded that class counsel would represent the interests of the absent class members fairly and adequately. They contend the court properly concluded that the named bondholders would represent the interests of absent class members fairly and adequately. The bondholders assert the court properly found that the class counsel did not improperly require absent class members to determine for themselves whether he adequately would represent their interests. The bondholders further respond that no de facto settlement class, exempt from judicial oversight, will arise from the circumstances of this case. They argue no other violation of the due process justification for class actions will arise from the circumstances of this case.

SC85235
State of Missouri v. Michael Taylor
St. Charles and Washington counties
Direct appeal of murder conviction and death sentence

Taylor first began receiving mental health services when he was about 8 years old. He claims to have begun having auditory and visual hallucinations when he was 5 years old. In January 1995, at age 15, Taylor raped and killed a female student in the girls' bathroom at McCluer North High School. He received psychological and psychiatric exams but was found competent to stand trial. When he was 19, he was convicted and sentenced to life in prison without the possibility of parole for the January 1995 crime. Ultimately he was imprisoned at the Potosi Correctional Center. In October 1999, Taylor's cellmate was found dead on the floor. The cellmate died from asphyxiation caused by compression of his neck. There also was evidence of sexual contact, and Taylor later admitted that he and his cellmate had engaged in sex. When Taylor was questioned that night, he said his "father of darkness" told him to send his cellmate to him. Taylor told authorities that he and his cellmate struggled for about 20 minutes and that he choked his cellmate. Taylor was charged with first-degree murder and, in November 1999, he was transferred to the maximum-security forensic psychiatric unit at Fulton State Hospital at the request of Potosi's psychiatrist. While at Fulton, Taylor was diagnosed with paranoid schizophrenia in partial remission and antisocial personality disorder. After about eight months, Taylor was discharged to Crossroads Correctional Center. A forensic psychiatrist was hired by the defense to determine Taylor's mental state at the time he killed the cellmate. This psychiatrist diagnosed Taylor with paranoid schizophrenia and antisocial personality disorder and concluded that, because of his schizophrenia, Taylor lacked the capacity to know and appreciate the nature, quality or wrongfulness of his conduct. A forensic psychiatrist for the state concluded that, although Taylor still is medicated for schizophrenia, Taylor did not have schizophrenia but rather was malingering (pretending to be mentally ill). This psychiatrist concluded that Taylor is a sexual sadist because he believed the crime was sexual in nature. Because sexual sadism is not a mental disease or defect under Missouri law, the psychiatrist concluded that Taylor was competent to stand trial and should be held responsible for his crime. Taylor was indicted in Washington County and tried in St. Charles County on a change of venue. Following a January 2003 trial, the jury found Taylor guilty of first-degree murder and recommended a death sentence, which the court imposed. Taylor appeals.

Taylor argues the jury instruction patterned after MAI-CR3d 306.04 violates his constitutional rights. He contends this instruction misled jurors to believe they should not consider statements made to psychiatrists about whether he was guilty of first-degree murder and impeded the jurors' consideration of the statutory mitigating factors submitted to them during the penalty phase. Taylor asserts that the court improperly permitted the prosecutor to disclose, during the guilt phase, graphic details of the crime he committed at the high school as a juvenile. He argues that he suffered manifest injustice when the state used the fact that Taylor killed his previous victim by thrusting her head into a toilet solely as an argument that Taylor had the propensity to kill his cellmate. Taylor contends the court should have ordered two psychiatric care centers to disclose the mental health records of a key state witness or at least conducted an in-chambers review of those records. He asserts that he was prejudiced by the court's failure to do so because he was denied the opportunity to challenge whether this key state witness had the ability to perceive and recollect events accurately and whether the witness had lied during his deposition. Taylor argues the court improperly let the state make speaking objections that amounted to improper testimony by the prosecutor during his attorney's guilt- and penalty-phase closing arguments. He contends these objections referred to or encouraged the jury to speculate about matters outside the record, disparaged defense counsel, and implied that defense counsel had hidden facts from the jury. Taylor asserts that the court should have let the jury take notes during the trial because the case was factually complex and the jury could not recall all pertinent information needed to decide the key issue of the case. He notes that the jury requested, and was denied, the right to review during deliberation the psychiatric and psychological reports Taylor had submitted into evidence. Taylor argues the court should have instructed the jury that it could not impose a death sentence if it found it was more likely than not that he was mentally retarded. He contends that the evidence would have supported such an instruction and that he suffered manifest injustice by the lack of the instruction. Taylor asserts that the court should not have allowed the state to strike a particular prospective juror for cause because she was not unequivocal in her opposition to the death penalty and gave an example of a situation in which she could vote to impose a death sentence. He argues the court failed to instruct the jury that the state had the burden to prove beyond a reasonable doubt that the aggravating facts and circumstances warranted death and that the aggravating evidence was not outweighed by the mitigating evidence. Taylor further contends that should not have been sentenced to death because, by failing to plead the aggravating factors in the indictment, the state failed to charge him with aggravated first-degree murder.

The state responds that the court properly gave the jury an instruction patterned on MAI-CR3d 306.04, concerning the jury's consideration of statements made by expert witnesses testifying about a defendant's mental condition. It argues that the notes on use for this pattern instruction require that it be given regardless of whether the defendant requests it and that this Court has held that this instruction properly states the law and does not confuse or mislead jurors. The state contends that the court properly permitted the prosecutor's objections because the jury already was aware of the circumstances surrounding Taylor's previous conviction and the prosecutor was permitted to test the witness's opinion about Taylor's mental condition. The state asserts that court properly refused to order release of the mental health records of a state witness because this witness was merely a rebuttal witness, not a "key" state witness. The state argues Taylor failed to make any showing that this witness was not competent to testify or that the records contained any specific evidence about the witness's competency to testify. The state contends that the court did not allow the prosecutor to make speaking objections and that the prosecutor did not improperly expose the jury to facts outside the record or accuse the defense counsel of lying or misleading the jury. The state asserts that the court properly exercised its discretion under Rule 27.08 in not allowing the jury to take notes during the trial to ensure that the jurors would not be distracted and would pay attention to the evidence. The sate responds that Taylor never asked for an instruction that he be sentenced to life if the jury found he was mentally retarded and that he did not present sufficient evidence from which a juror could find he was mentally retarded. The state argues that, at the time Taylor was tried, there was no model approved instruction on this issue and that the statute making mental retardation an issue in capital cases applied only to crimes occurring after the date of the murder in this case. The state contends that the court properly struck the proposed juror for cause because she stated she could not vote for the death penalty. The state notes that this prospective juror once suggested that she might be able to vote for the death penalty in the case of mass murder but then returned to her earlier statement that she never could vote for the death penalty. The state asserts that the curt properly instructed the jury during the penalty phase regarding the statutory aggravators. It argues that neither the pattern instructions on which these instructions were based, nor this Court's decision in State v. Whitfield, 107 S.W.3d 253 (Mo. banc 2003), nor the constitution require that the jury be instructed that it must make its determinations regarding the aggravating and mitigating factors beyond a reasonable doubt. The state further responds that the indictment was sufficient because the state is not required to plead the statutory aggravating circumstances or any other facts on which it intends to rely and that Taylor received notice before trial of what circumstances the state intended to use.