Case Summary for October 17-19, 2000

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Case Summary for October 17-19, 2000

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
October 17-19, 2000

Tuesday, October 17, 2000

In sympathy for the deaths of Governor Mel Carnahan, Randy Carnahan, and Chris Sifford, Court for this morning has been canceled.
10/17/00

SC82619
Winbury Realty of K.C., Inc. v. Distribution Services and Storage, Inc.
Jackson County
Real estate rental commission dispute

*Removed from docket* 10/00

Winbury Realty sued a warehouse and trucking company, alleging the company failed to pay its contracted-for commission on finding a sublessee for the company's leased property and on the early termination of its lease. The court entered judgment in Winbury's favor, and the company appeals.

The company argues: (1) Winbury is not entitled to commission on the lease cancellation because no evidence showed that the company saved any rent or that Winbury procured the cancellation. (2) The court erroneously sanctioned charging a real estate commission for the cancellation or release of a lease. (3) Winbury failed to plead that it was a licensed real estate broker when the cause of action arose, which section 339.160 requires. (4) No substantial and properly admissible evidence shows Winbury was a licensed real estate broker when the cause of action arose. After Winbury rested its case, the court should not have re-opened it to hear evidence on the matter, which Winbury did not plead.

Winbury responds: (1) Winbury need not be the procuring cause of the release to be entitled to its commission because the contract was exclusive. (2) The court properly applied the law in charging a real estate commission on a lease's cancellation or release. (3) No violation of section 339.160 occurred. Although not specifically stated in its petition, Winbury offered evidence of its license at trial. (4) Substantial and proper evidence showed Winbury was a licensed real estate broker when the cause of action arose. Under Rule 55.33(b), the court may allow the parties to conform the petition to the evidence at any time, even after judgment.

SC82615
McNeill Trucking Co., Inc., et al. v. Missouri State Highway & Transportation Commission
Laclede, Camden and Greene Counties
Sovereign immunity

The Kramers collided with an overturned truck on I-44 in Laclede County. In two separate actions, they sued the driver and trucking company, who in turn sued the Missouri State Highway and Transportation Commission for contribution, alleging the highway was unreasonably dangerous. The trial courts granted the Commission's motions to dismiss based on sovereign immunity.

The driver and trucking company argue: (1) Sovereign immunity affects personal (not subject matter) jurisdiction and can be waived. The Commission waived it by omitting it from its first motion to dismiss. (2) Sovereign immunity is not a bar to a third-party action for contribution.

The Commission responds: (1) Sovereign immunity partakes of subject matter jurisdiction, may only be waived by the General Assembly, and was properly asserted. (2) Contribution is an independent action that is not grounded in tort or authorized by statute. The General Assembly has not consented or waived the state's immunity in such actions.

SC82205
State of Missouri V. Paul Goodwin
St. Louis County
First-degree murder; death

On March 1, 1998, in St. Louis County, Paul Goodwin pushed a widow in her sixties down her stairs and hit her several times with a sledgehammer, after he attempted to sexually assault her but could not maintain an erection. The jury convicted Goodwin of first-degree murder and recommended a death sentence, which the court imposed. Goodwin appeals.

Goodwin argues: (1) The state failed to disclose a person who said Goodwin did not earlier threaten the victim using a sledgehammer to strike a rock, contrary to a state witness. (2) The state improperly cross-examined an expert to elicit Goodwin's racist remarks about people at school and on the bus, which were not probative and inflamed the jury. (3) A transcript of Goodwin's confession included a police officer's reference to a similar unsolved crime, allowing the jury to speculate on uncharged, unrelated murders. (4) The state failed to prove beyond a reasonable doubt that Goodwin knew he was practically certain to cause death when he hit the victim with the sledgehammer. He only intended to incapacitate her. She was alive when he left and only died hours later due to heart failure in surgery. (5) The state improperly elicited evidence of unadjudicated bad acts, including prior arrests, to show propensity to commit violence.

(6) The victim's statement to police was hearsay, not a dying declaration because she did not know she was dying when she made the statement. Where there was no evidence of sodomy other than her statement, and it was used as an aggravator to impose death, admitting the statement was unjust. (7) The evidence did not support the aggravators that Goodwin killed the victim after she was rendered helpless and while he was attempting to commit another crime, sodomy. (8) One of the aggravators was not an approved aggravator under the statute. (9) This Court should vacate the sentence under its proportionality review. Goodwin suffers from reduced mental capacities and low intelligence, among other reasons.

The state responds: (1) The undisclosed witness would not have impeached the state witness as there was no evidence the two observed the same incident. In any event, the state witness's testimony was cumulative; the undisclosed witness's testimony would not have changed the outcome; and the undisclosed witness would have testified to the same ultimate fact as the state witness. (2) & (5) The state properly cross-examined the expert on the connection between Goodwin's race-based hostility toward the school and his low test scores to impeach her diagnosis of Goodwin as having borderline intellectual functioning that prevented deliberation. The state also properly cross-examined her on Goodwin's prior crimes in that she admitted she took Goodwin's statements as true to render her opinion as to his mental condition. Moreover, the jury was instructed not to consider Goodwin's statements in determining guilt. In any event, he concedes he killed the victim. (3) The error in transcription that included the police remark could not have prejudiced Goodwin. It did not associate Goodwin with other crimes. The jury was instructed the transcript should be disregarded to the extent it conflicted with the tape, which did not include the remark. Goodwin conceded he killed the victim. (4) Beating the elderly woman, pushing her down the stairs, and hitting her repeatedly with a sledgehammer sufficed to show Goodwin knew his conduct was practically certain to cause her death.

(6) Goodwin did not object to the victim's statement at trial. In any event, the victim's statement was cumulative in all significant details to Goodwin's confessions. (7) The evidence supports all the aggravators, although any one supports the sentence. (8) The incorrect numbering of an aggravator's limiting construction could not have been construed as a separate aggravator. (9) This Court should affirm under its proportionality review.

Wednesday, October 18, 2000

SC82636
State ex rel. Nixon, etc. v. Beer Nuts, Ltd., etc.
Cole County
Internet sale of beer

Beer Nuts is an out-of-state company that sells microbrewery beer through memberships by telephone, mail, and Internet. The Attorney General filed claims Beer Nuts' practices violate Missouri's merchandising practices act and liquor control law. The trial court entered judgment against Beer Nuts for unfair trade practices, permanently enjoined it, and imposed a civil penalty.

Beer Nuts argues: (1) Under the Uniform Commercial Code and Missouri case law, and by agreement, the sale of the membership occurs in North Carolina. Therefore, it does not violate Missouri liquor laws. (2) The sale is not an "unfair practice" because the statute makes certain methods of selling merchandise illegal, but it does not make the actual sale illegal. (3) The court had no personal jurisdiction over Beer Nuts, either under the Missouri long arm statute or due process. Internet advertising and receiving calls for sales in North Carolina does not constitute transacting business or contracting in Missouri, or constitute the requisite minimum contacts with Missouri.

The state counters: (1) The court correctly applied the broad definitions in the consumer protection statute under which the action was brought, rather than focusing on where the sale took place. (2) Beer Nuts' conduct constituted unfair practices since it offended the public policy behind liquor control laws and presented a risk of substantial harm to Missouri consumers. The court was obligated to apply a regulation that provides the practices are unfair if they violate not only the letter of such laws but their public policies. (3) Missouri has personal jurisdiction under both the long arm statute and due process. Beer Nuts continually and repeatedly advertised its beer club to Missourians and entered continuing commercial obligations with almost 350 such consumers, shipping more than 12,000 bottles of beer into the state, with revenue of nearly $30,000.

The Missouri Beer Wholesalers Association filed an amicus curiae brief in support of the state. The association contends that shipping beer directly to consumers violates the three-tier system of intoxicating liquor distribution in liquor control laws. The beer does not pass through a licensed wholesaler or retailer and lacks safeguards to protect the public, such as testing. It is an unfair practice by offending the public policy behind the three-tier system.

SC82685
American Standard Insurance Co. v. Jeanette Hargrave, et al.
Henry County
Insurance dispute

Jeanette Hargrave was driving her parents' truck when she had an accident that injured her son and killed a man. Her and her husband's car insurer, American Standard, denied claims against it, alleging its household exclusion voided liability coverage. The trial court found the motor vehicle financial responsibility law required American Standard's owner policy to provide the minimum liability coverage of $25,000, invalidating the household exclusion up to $25,000. American Standard appeals.

American Standard argues that the household exclusion is enforceable. The MVFRL's requirement was satisfied by another insurer's payment of $25,000.

The Hargraves contend the household exclusion in unenforceable. The MVFRL requires every owner and operator's insurance policy to provide for the $25,000 minimum. Other appellate cases and public policy support this result. The clause also violates the excess insurance clause of its own policy. The court should abolish the household exclusion; motor vehicle insurance policies are really contracts of adhesion such that the owner cannot get a policy without the exclusion.

SC82554
Kansas City Royals Baseball Corp. v. Director of Revenue
Jackson County
Taxes on promotional items and year books

At baseball games, the Royals Corp. sometimes offered free, promotional items to increase attendance. The corporation paid taxes when it bought the items from out-of-state vendors. It also sold yearbooks at concession stands and paid sales tax on gross receipts. The corporation sought sales tax refunds under a "resale" exemption. The Administrative Hearing Commission held the promotional items were not purchased for resale because they were given away, and the yearbook claim did not satisfy the statutory specificity requirement. The corporation appeals.

The corporation argues: (1) A resale is a transfer of title for consideration. The promotional items were resold by distributing them to fans who paid admission at certain games. (2) The Commission misconstrued the "specific basis" requirement to deny refunds even though the corporation resold the yearbooks and asserted the purchase for resale exclusion in its refund claim. (3) The corporation received consideration for the promotional items because the items' cost, like other overhead such as electricity, was factored into ticket prices, and the promotional items increased paid attendance.

The Director of Revenue counters: (1) The corporation did not resell the promotional items but rather gave them away. Giveaways are not resales in the regular course of business. Increased attendance is not consideration for the giveaways because there is no obligation to attend games. (2) The statute requires that every claim for a refund state the specific grounds for the claim. The corporation bundled the one reference to the 1996 yearbooks in an attachment to its refund application among the giveaways. (3) The corporation failed to demonstrate that the giveaways were the source of increased ticket sales or that increased ticket sales constitute consideration for tangible personal property.

SC82406
William Rousan v. State of Missouri
St. Francois, St. Genevieve, and Greene Counties
First-degree murder (two counts); death and life without parole

In September 1993, Charles and Grace Lewis were shot to death when William Rousan, his brother, and his son went to their farm to steal cattle. His jury convictions of first-degree murder and his sentences of death and life without parole were affirmed on appeal to this Court. He now appeals denial of his post-conviction motion.

William Rousan argues his counsel was ineffective: (1) & (2) Counsel failed to present (a) prison records to show Rousan adjusted well to prison life, and (b) his former employer to show he was a productive worker. This information would have encouraged the jury to sentence Rousan to life without parole. (3) Counsel failed to object to the argument that the death penalty was necessary to protect people in prison. There was no evidence Rousan was violent in prison. (4) Counsel failed to call Rousan to testify. His testimony would show that he did not plan the killings and would provide a defense to first-degree murder. (5) Counsel failed to call his son who would have testified that Rousan did not kill the Lewises or direct that they be killed but simply went to the farm to steal.

(6) Counsel failed to present evidence of Rousan's request for an attorney before police questioned him. His statement should have been suppressed. Without his statement, the state's case relied on a contradictory snitch and would not have produced his conviction. (7) The court erred in refusing Rousan the disciplinary files of investigating officers. These officers repeatedly disregarded defendants' requests for attorneys, and their credibility is key. (8) Counsel failed to remove references to Rousan's prior convictions from his confession. (9) Counsel failed to call a witness who would have testified as to what Rousan told him about the murders, contradicting the state's witness and supporting the defense that Rousan was guilty of only second-degree murder. (10) Counsel failed to object to submitting duplicate aggravators to the jury, namely committing a murder to receive money and committing a murder during a robbery. Thus the jury could double-count the same conduct in determining that the aggravators outweighed the mitigators.

(11) Counsel failed to object to the aggravator that Rousan killed a victim when she was bound. No evidence showed he killed her--it showed his son killed her. (12) Counsel failed to present Rousan's brother's statement to police that omitted that Rousan directed him to wait. This statement rebutted the theory that Rousan led the killings and supported that he was only guilty of second-degree murder. (13) Counsel failed to present employment records to show Rousan was working and had little time to plan the murders. (14) Counsel failed to object to Rousan's brother's testimony, which the state improperly obtained in exchange for a fifteen-year sentence. (15) Counsel failed to object to the death penalty. The Eighth Amendment prohibits death for one who aids and abets in a felony where death results but who does not kill the victim.

The state responds that counsel was effective: (1) Harmful outweighed beneficial information in Rousan's prison records. (2) Good job performance would not have been received favorably or overcome the aggravators. (3) The prosecutor's argument on future dangerousness was proper. (4) Rousan decided not to testify on counsel's reasonable advice. Rousan's implausible and impeachable account would not have been believed. (5) Rousan's son did not want to testify. His testimony would not have provided a viable defense.

(6) Rousan presented no credible evidence at the post-conviction hearing to establish that he requested counsel before questioning. (7) Rousan failed to show officers' confidential personnel files contained material, admissible information helpful to the defense. (8) Other-crimes evidence in Roussan's confession was admissible. (9) An omitted witness's testimony was cumulative to evidence from a more favorable witness. (10) Objection to the aggravators as duplicative was without merit.

(11) This Court held on direct appeal that the defective depravity of mind instruction would not have affected the outcome. (12) Counsel impeached Rousan's brother with many inconsistencies in his statement. (13) The employment records do not establish that Rousan could not have planned the killings. (14) Three years after Rousan's trial, a case held that testimony procured by a promise of lenience was objectionable. Counsel is not required to anticipate changes in the law. The case is irrelevant to this case's facts and has been overruled. (15) Counsel did challenge the sufficiency of the evidence to show Rousan deliberated on a vicitm's death, but the challenge was meritless.

Thursday, October 19, 2000

SC82611
State of Missouri v. Larna Lue Edwards
Caldwell County
Manslaughter; 5 years; Battered Wife Syndrome

Larna Edwards shot her husband of 43 years after he hit her, following a history of abuse. She was convicted by jury of voluntary manslaughter and sentenced to five years. She appeals.

Edwards argues: (1) The court should have submitted non-Missouri Approved Instructions on the issue of battered woman syndrome. The self-defense instructions do not address legal and factual issues necessary to the syndrome. (2) The court should have instructed the jury on the lesser included offense of involuntary manslaughter, since the jury could have concluded Edwards did not knowingly or purposely cause her husband's death. (3) The prosecutor improperly argued that it matters to him what the jury does in the community, the law requires one to flee rather than kill, Edwards spent one night in jail and bought a new truck, and there must be more than her word to show her husband would have killed her. (4) Edwards' statement should have been suppressed because police took it after she requested counsel. (5) Evidence that Edwards owned other weapons should have been excluded, especially since she was not permitted to explain why they were not in her husband's name.

The state responds: (1) The court properly modified the self-defense instruction to tell the jury to consider battered wife evidence in determining whether Edwards reasonably believed she was in imminent danger. Edwards' proposed instructions impermissibly directed attention to a witness's credibility and the manner in which testimony should be received. (2) The evidence would not acquit Edwards of second-degree murder but convict of involuntary manslaughter; no evidence showed she acted recklessly in shooting her husband. (3) Edwards did not object to the prosecutor's argument. In any event, the prosecutor did not imply special knowledge, warn the jury it would account to the community for acquittal, misstate the law, or shift the burden to the defense. The comments were of little consequence. (4) Edwards waived her right to counsel during police questioning. Her statements, such as "I will have a lawyer," were not requests for counsel during the interview. (5) Edward did not object to the guns testimony. In any event, the evidence refuted her claim that she had no control over business affairs and the inference that the victim might have had a gun. The gun reference was business-related, and her expert relied on the existence of many guns to reach her conclusions.

SC82648
Marie Doe v. Miles, Inc.
St. Louis City
HIV transmitted through blood products to hemophiliac

Miles Inc.'s blood product was used to treat Marie Doe's son's hemophilia. It infected him with HIV, resulting in his death from AIDS. Marie Doe sued Miles for wrongful death, claiming Miles failed to warn of the AIDS risk and breached an implied warranty of fitness for a particular purpose. The jury returned a verdict for her of $1.4 million dollars. Miles appeals.

Miles argues that it did not learn of HIV in the blood products, much less how to remove it, before Doe's son contracted HIV, and in any event, his need for the blood product outweighed the small (known at the time) risk of contracting HIV. Specifically, Miles argues: (1) As to breach of implied warranty, Doe failed to show the medicine was used for a particular purpose other than its ordinary purpose, that she relied on Miles to select a suitable product, or as required by the blood shield statute, that Miles could have detected or removed the defect (HIV) with reasonable scientific techniques. (2) As to failure to warn, Doe failed to show any fact Miles knew that her treating physician did not know, and failed to show a failure to warn caused the damages. (3) & (4) The jury instructions misstated the law. They did not require the jury to find that the physician, rather than Doe, relied on Miles' skill to choose the medicine and that Miles had a duty to warn solely the physician. (5) The Institute of Medicine report should have been excluded because it was not authenticated or authoritative, was an unverified out-of-court statement not subject to cross-examination, and invaded the jury's province in reaching conclusions on ultimate issues of liability.

Doe responds that Miles knew unidentified deadly viruses could contaminate blood products and that it was feasible to heat the products to kill known and unknown viruses before her son was infected. Specifically, she counters: (1) Doe proved all elements of a breach of warranty claim and met the requirements of the blood shield statute. (2) The breach of warranty instruction was properly modified for the blood shield statute and supported by the evidence. (3) Miles knew the magnitude of the risk of infection, which her son's physician did not know. Her son's physician testified that he would have acted differently if he knew the risk. (4) The failure to warn instruction was properly modified for the blood shield statute. The learned intermediary doctrine is a defense that was submitted in another instruction and not required to be in the verdict director. (5) The Institute of Medicine report was admissible as a public record and as a government document adopted by the U.S. Congress. Also, its foundation was laid in the pre-trial conference.

SC82844
In re: James L. Thomas
Pulaski County
Attorney Discipline

The Chief Disciplinary Counsel argues that attorney James L. Thomas violated rules of professional conduct by filing a false pleading, failing to safeguard his client trust account, and failing to diligently represent a client. The CDC recommends suspension with no leave to apply for reinstatement for six months, based on a history of prior discipline, intent in much of the misconduct, and the quantity of misconduct.

Thomas suggests public reprimand. He states that the false pleading was made when he was emotionally upset, was dismissed almost immediately, and harmed no person or legal proceeding. He took reasonable steps to safeguard his client account by hiding the checkbook from his wife who took the funds, and he protected his clients by personally replacing the money. Thomas' lack of diligence did not harm his client. Mitigating circumstances should be considered.

SC82324
State of Missouri v. Walter T. Storey
St. Charles County
First-degree murder; death

In February 1990, in St. Charles County, Tim Storey climbed into his neighbor's apartment and cut her throat. He was convicted of first-degree murder and sentenced to death, among other crimes and sentences. His conviction was affirmed on appeal to this Court. His death sentence was twice vacated and remanded for new penalty phases. In December 1999, the court sentenced Storey to death. He appeals his sentence.

Storey argues: (1) In response to a juror's concern, the court told the jury in voir dire that appeals and clemency are always possible. This diminished the jury's sense of responsibility and suggested only death would ensure Storey would never be released. (2) The state improperly characterized the mitigators as attempts to justify and excuse the murder, which encouraged the jury to disregard the instructions and law. (3) The state improperly argued that the jury would be weak in rejecting death and should not base the decision on mercy or sympathy, and that studies showed 20% of them had been abused. (4) & (5) Improper victim impact testimony included (a) witnesses--one of whom did not know Frey--who testified about their personal problems and offered no insight into Frey's life, and (b) exhibits and witnesses--undisclosed until opening arguments--relating to her funeral and her friends' and family's mourning.

(6) Submitting the "murder for money or monetary value" aggravator constituted double jeopardy because two juries had rejected it. The evidence did not support it or the "outrageously or wantonly vile" aggravator. (7) A juror who believed in a life-for-a-life and a juror who could not impartially consider graphic material should have been removed for cause. A juror who preferred life but could consider death should have remained. Storey had to use his peremptory challenges to remove the unqualified jurors. The statute that says grounds for reversal exist only if the juror served on the jury is unconstitutional. (8) An expert's testimony that Storey would remain in maximum security for life should have been admitted. (9) The court failed to instruct the jury that it must consider all circumstances in deciding whether to assess the punishment at life imprisonment without parole. (10) The court's instructions failed to include all steps the jury must follow in sentencing, specifically the weighing: that if each juror determined the mitigators outweigh the aggravators, the jury must return a verdict of life without parole.

(11) The Court should reduce the sentence under its proportionality review.
Storey is the only defendant sentenced to death for killing a single victim (other than prison murders), with severe child abuse, and no violent crime record.

The state responds: (1) None of the venire who heard the court's response to the juror's question about the meaning of life in prison served as jurors. (2) The state's characterization of the mitigators as excuses was permissible comment on the weight of the evidence and had no decisive effect. (3) The state's argument regarding mercy did not equate mercy with weakness. The overall theme was proper. A comment outside the record was isolated. (4) & (5) Victim impact evidence from witnesses and in exhibits was relevant and admissible in depicting the harm caused by the crime. It showed the victim's contribution to society and the loss felt by those who knew her. Late disclosure did not prejudice Storey in that he failed to show he would have prepared differently.

(6) Previous juries' failure to find an aggravator does not constitute acquittal for jeopardy purposes. The evidence supported the aggravators. The jury could find Story murdered the victim for money or other value and repeatedly, excessively physically abused her. (7) Statute forecloses Storey's claim regarding the two challenged jurors. The third juror expressed an inability to consider death as a possibility here. (8) The court properly excluded testimony about Storey's classification because the witness's opinion was speculation based on the faulty premise that the sentence could never change and that the department of corrections would never alter its classification system. (9) The instruction did not preclude considering mitigators and informed the jury it must consider all circumstances. Storey's proffered language was superfluous. (10) The court properly instructed in compliance with MAI-CR 3d. The proffered instruction contained a modification that violated the notes on use and a modification that was unnecessary.

(11) The sentence passes proportionality review.

end