Case Summary for May 6, 1999

Your Missouri Courts - Supreme Court

Home

Case Summary for May 6, 1999

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
Thursday, May 6, 1999

81394
In re: G. William Weier
St. Louis County
Attorney Discipline

The Chief Disciplinary Counsel asks the Supreme Court to suspend attorney William Weier's license to practice law indefinitely and without reinstatement for two years. The CDC alleges Weir violated professional rules 4-1.7(a) and (b) and 1.8 related to conflict of interest.

Specifically, the CDC contends: Weir created a partnership of St. Louis urologists to purchase medical equipment. He established a corporation that he partially owned to lease and manage the equipment with certain terms favorable to the corporation, and to determine the partnership's profits. He did this without disclosing his financial interest in the corporation and management to the partnership partners--except to two doctors who owned the corporation with him.

Weir counters that there was no conflict of interest. He represented only the two original doctors and the corporation they formed with him. He did not represent the partnership or the urologists who might or did join the partnership. (He sent form letters to all urologists, did not offer legal advice at informational meetings, and did not bill the individuals or partnership.) Because he was not their attorney, he had no duty to disclose his interest in the corporation to them. In any event, he disclosed his financial interest to the two main partners, whose knowledge is imputed by law to the partnership. The partnership received enormous financial benefits, not harm, and benefited from the arrangement, which was necessary to prevent federally-prohibited physician management of the equipment. Finally, if Weier violated the rules, a reprimand is more appropriate than suspension.

81345
John L. Blackstock and Rhonda S. Blackstock v. Michael Kohn, Joseph Mooney and Jerry Jaycox
St. Louis County
Professional negligence, fraud, conspiracy to commit fraud

John and Rhonda Blackstock bought boat slips from tax attorney Michael Kohn and Jerry Jaycox at the end of the great flood of 1993. Kohn and his partner Joseph Mooney amended the Blackstocks tax returns to claim casualty losses on the slips, as well as slips they owned previously. The Internal Revenue Service audited and disallowed the deductions because the Blackstocks did not have a binding agreement to buy the slips before the flood and did not suffer a loss. The IRS assessed the tax deficiency, interest and penalties. The Blackstocks claimed negligent misrepresentation, fraud, conspiracy to commit fraud, breach of fiduciary duty, and professional negligence against the tax attorneys and boat sellers. Defendants prevailed.

Essentially, the Blackstocks argue Jaycox and Kohn set up a deal to sell the Blackstocks docks so that the Blackstocks could take advantage of flood relief tax laws that Kohn identified. Kohn knew the Blackstocks did not own the docks before the flood.

The Blackstocks argue: (1) The court should not have instructed the jury that it could consider contributory negligence in a professional negligence case. A client's fault cannot bar the client from any recovery for an attorney's negligence. (2) The Blackstocks' conduct could not constitute contributory negligence. A client has no duty to make the legal determinations for which he employed the lawyer. The jury instruction failed to set out all elements of negligent misrepresentation. (3) The court should have instructed the jury on an alternate theory of negligence, namely that Kohn advised the Blackstocks to claim a loss that was not supported by adequate proof that the property's value declined. (4) Kohn testified falsely about a central issue. He prevented exposing his perjury by refusing to allow an IRS official to testify. (5) The court should not have awarded Jaycox summary judgment on the basis of a release. The release was a limited, not general, release pertaining to other dock deals. It did not discharge these claims, which had not yet accrued.

In response, tax attorneys Kohn and Mooney contend the Blackstocks gave them false information to file tax returns. The Blackstocks knew they had to own the docks before the flood to take the loss but agreed with a friend to claim they had agreed to buy the docks before the flood--and told that story to the lawyers. The Blackstocks blamed the lawyers when they got caught.

Kohn and Mooney argue: (1) The Blackstocks have abandoned their fraud and breach of fiduciary duty claims. They failed to make a submissible case of negligence.
(2) The court rightly instructed the jury. A client who misrepresents facts to his lawyer cannot recover from the lawyer for erroneous advice based on those facts. (3) The Blackstocks' conduct justified instructing the jury on contributory negligence, that the Blackstocks claim was barred if they negligently represented that they had an agreement to buy the docks before the flood. The instruction did not need to set out the elements of negligent misrepresentation. (4) The court need not instruct the jury on an alternate theory. The value of the casualty loss was irrelevant since Blackstock was not entitled to take a loss on the property he did not own before the flood. No expert testified that defendants were negligent in how they supported the loss' value, nor that the failure to prove value damaged the Blackstocks. (5) Rule 74.04(b) does not provide relief from a judgment for false testimony. (6) The Blackstocks discharged the claims against Jaycox in the release.

80043
State of Missouri v. John M. Middleton
Harrison and Adair Counties
First degree murder, death penalty

John Middleton shot Alfred Pinegar because he believed he was a snitch to police about methamphetamine activity. A jury found Middleton guilty and recommended the death sentence, which the court imposed.

Middleton argues: (1) The trial court should not have allowed a store clerk's testimony identifying Middleton as purchasing ammunition. The pre-trial identification procedures were so suggestive as to make misidentification likely. The clerk could not accurately describe Middleton or pick him out of photographs, identifying him only when seeing him handcuffed in the courthouse hall.

(2) Middleton should have been allowed to review the mental health records of his cellmate, who testified that Middleton confessed to him, to determine if he was competent to testify. (3) In closing argument, the prosecutor misstated evidence and drew impermissible inferences to describe the shooting. The prosecutor's assertion of facts not proven amounts to unsworn testimony. (4) Evidence from Middleton's home should not have been admitted. The search warrant was based on insufficient information. And the warrant only covered the house, so evidence from the driveway and a vehicle in the yard should have been excluded. (5) Evidence from his truck and a witness' testimony about it should not have been admitted.

(6) The court should have prevented a mental/psychological expert from testifying in the penalty phase that he did not believe Middleton denying he killed two others. (7) When a juror was excused for family difficulties after the guilt phase but before the penalty phase, Middleton should have received life in prison or a new trial. He has a right to have his guilt and punishment determined by the same jury. (8) The trial court should have instructed the jury that it could consider whether Middleton was under duress or dominated by his accomplice as a mitigating circumstance in fixing punishment. (9) Two prospective jurors' responses to voir dire questions did not justify striking them for cause. (10) The court should have allowed Middleton to question prospective jurors, including two on the jury, about their attitudes toward the justice system and death penalty.

(11) & (12) Crime scene video and pictures, and bone and teeth pieces, should have been excluded. They were irrelevant to any issue and taught the jury nothing. Prejudice outweighed probative value. (13) The court should have excluded a trace evidence analyst's testimony that matched physical evidence on the crime scene with evidence from Middleton's home and vehicle. It was not the proper subject of opinion testimony. (14) A Kirksville paper's lengthy, non-objective coverage, immediately before trial, which jurors read, created a substantial and unjustifiable risk that Middleton was tried in the press rather than on trial evidence. (15) Gruesome crime scene video and photographs of two murder victims in a collateral crime should have been excluded from the penalty phase. Prejudice outweighed probative value.

(16) Victim impact evidence should have been excluded. The victim's mother's testimony inflamed the jury as she and eight others in the courtroom wept. (17) Likewise, a photograph of the victim with his daughter should have been excluded. (18) The trial court should have given instructions that afford the jury a full opportunity to consider mitigating evidence. (19) This death sentence is disproportionate to the punishment in other cases. (20) Middleton has no guidance as to how proportionality review is to be conducted, denying him due process and effective assistance of counsel.
(21) The defense was prejudiced by the lack of time to prepare and the state's late disclosure of witnesses and evidence. The defense should have been allowed a continuance. (22) The court reporter's transcript of the trial contains omission. The record is insufficient to exercise Middleton's right to review. (23) The element of "deliberation" in first degree murder is vague and does not notify Middleton of the charge against him. (24) Exclusion of 18-21 year-olds from jury service deprived Middleton of a jury of his peers, and those jurors had a right to be represented. (25) The prosecutor's unreviewable discretion in whether to seek the death penalty renders the penalty arbitrary and capricious.

(26) The Missouri Approved Instruction defining reasonable doubt lessens the state's burden of proof.

The State responds: (1) The clerk's identification of Middleton was reliable and not a product of impermissibly suggestive pretrial procedure. The clerk saw Middleton shortly before and after the murder, when Middleton bought an unusually large amount of ammunition and some of a rarely sold kind with cash, then returned part of it the same day. The clerk picked Middleton from 15-20 people in the hall, not based on the handcuffs.

(2) The state moved to temporarily remand for in camera review of the cellmate's mental health records, and the court found nothing. (3) The prosecutor's arguments were reasonable inferences from the evidence and, in any event, could not have had a decisive effect on the jury. (4) The court correctly admitted evidence from Middleton's house, driveway, and vehicle. The search warrant was based on probable cause; the informant's account was extensively corroborated. The officers reasonably and in good faith relied on the warrant. Property outside the house was seized because it was in plain view. (5) The automobile exception to the warrant requirement supports admission of evidence from Middleton's truck in a field. It appeared to be connected to the crime and was mobile, creating exigent circumstances.

(6) Whether experts believed Middleton's statements denying two other murders relates to what information the experts relied on in reaching their conclusions, not Middleton's credibility as a witness. No prejudice resulted because the defense elicited the same testimony. (7) Substituting an alternate for an excused juror was proper. Middleton has no right to be sentenced by the same jurors who found him guilty. (8) The court rightly refused a mitigating instruction for duress or domination because the evidence did not support it. (9) Two jurors who were rightly stricken for cause. One said he could not follow the law; another's responses indicated she would be substantially impaired in sentencing. (10) Inquiries about prospective jurors feelings on various issue of law were, at best, marginally relevant to their ability to serve. Defense counsel was permitted to rephrase the questions in a more relevant form.

(11) & (12) Crime scene video, photographs, and bone evidence was properly admitted. It showed the victim's location, position, and injuries. Bone fragments' location corroborated testimony. (13) The "physical match identification" of evidence was a proper subject of expert opinion. Matching the evidence at the crime scene with evidence from Middleton's property involved microscopic examination and comparison. (14) Middleton could receive a fair trial despite publicity. The record does not show publicity was so pervasive or corrupting to presume prejudice. The jurors said they could be fair. (15) Video and pictures of other murders corroborated Middleton's cellmate's testimony and related to Middleton's culpability for the killings.

(16) & (17) The victim's mother's testimony and the photograph of the victim with his daughter were relevant to show the harm caused by the murder Middleton committed. (18) Claims raised in Middleton's points 18, 29, 23, 25, and 26 have been considered and rejected repeatedly in this state's decisional law. (19) Middleton's sentence was proportional. It was not imposed under the influence of passion, prejudice, or other abitrary factor. The evidence supports the statutory aggravating circumstances. (20) The defense had more than adequate time to prepare for trial, which began one year and four months after the information was filed. Defense had one continuance. Three lawyers represented Middleton, one from the day after the information was filed and all more than five or six months before trial. Late-endorsed witnesses were mere chain-of-custody, had already been deposed or testified or endorsed by the state or were known to the defense.

(21) Middleton's claim to be prejudiced by transcript omissions is conclusory, and the transcript refutes prejudice. The few inaudible words in the 4,000 page transcript were irrelevant to any issue.

80941
State of Missouri v. John Middleton
Grundy, Harrison and Callaway Counties
Two death sentences on two counts first degree murder, two ten year sentences on two counts armed criminal action; consecutive

John Middleton and Margaret Hodges shot Randall Hamilton and his girlfriend Stacey Hodge, because he thought Hamilton might snitch on him about methampetamine dealings. Middleton was found guilty of two counts of first degree murder and two counts of armed criminal action. He received two death and two ten year sentences, consecutive.

Middleton contends: (1) An expert should not have been allowed to testify that Middleton's cellmate (who testified that Middleton confessed) did not have impaired ability to recall and tell the truth. The expert testimony improperly bolstered the witness. (2) Instructions to the jury to consider whether aggravating circumstances warrant the death penalty before considering mitigators deprived Middleton of his right to have all mitigating evidence fully considered. (3) The court should not have conducted pretrial proceedings without Middleton's presence or waiver. (4) The state diminished the jury's responsibility by arguing that Middleton had several levels of appeals. (5) The court should have excluded evidence that Middleton left the secure area of a jail. It was prejudicial and only tangentially related to consciousness of guilt.

(6) The court should have excluded one witness' hearsay testimony that cases against a prosecution witness had been dismissed because they were weak, rather than as a deal for testimony. (7) The court should not have limited Middleton's cross-examination of a witness as to statements he heard Middleton make indicating Middleton's delusional and paranoid thinking. The statements were not hearsay because they were not offered for the truth of the matter asserted. They were for mitigation, to show Middleton was under a severe emotional or mental disturbance from long-term drug use. (8) One aggravating circumstance--that Middleton had a prior murder conviction--was unsupported. He had not yet been convicted of the "prior" murder when he committed the charged murders. Even though other aggravating circumstances were found, without this circumstance, aggravators might not have outweighed mitigators. (9) These death sentences are disproportionate to the punishment in other cases. (10) The Court provides no guidance for proportionality review, violating due process.

(11) The element of deliberation is so poorly defined as to prevent Middleton from obtaining proper notice of the charge against him. (12) The prosecutor's unreviewable discretion in deciding whether to seek the death penalty renders the penalty arbitrary and capricious.

The state argues: (1) The court properly allowed the expert's testimony of the cellmate's ability to recall and tell the truth. The testimony related to mental condition, not credibility. Middleton put the cellmate's mental competency at issue. The state can respond. (2) The instructions to consider aggravating circumstances before considering death do not require the jury to decide to impose death without considering mitigation. (3) Middleton's claims that he was absent at pretrial proceedings were not raised at the first opportunity and are not preserved. He waived his right to be present through counsel. His presence did not relate to his opportunity to defend. (4) The prosecutor's statements that appeals are available was proper retaliation to defense argument that Middleton could only be killed once, that he was bound to be killed because of his other death sentences, and that convicts are only spared on rare occasion. The prosecutor's comments did not mislead the jury to believe responsibility for determining the sentence rested elsewhere. (5) Middleton's escape from his jail cell was relevant to show consciousness of guilt.

(6) The witness' testimony that charges against another witness had been dropped was offered to refute hearsay testimony and inferences that defense elicited on cross-examination. (7) Middleton did not make an offer of proof as to the testimony a witness would have given about Middleton's statements, so nothing is preserved for appellate review. Middleton presented evidence of his emotional or mental disturbance through the witness and others. (8) Middleton has a prior murder conviction at the time of sentencing, so the aggravating circumstance was supported. In any event, the jury could consider the first murder in sentencing. The two other aggravators also support death. (9) The death sentence was not imposed under the influence of passion, prejudice or other arbitrary factor. The evidence supports the aggravating circumstances. The sentence is not excessive or disproportionate. (10) Proportionality review is not constitutionally mandated. The Supeme Court has repeatedly rejected the claim that its proportionality review violates due process.

(11) Middleton received proper notice of the charge against him and could defend against it. Statute and case law adequately defines the element of deliberation in first degree murder. (12) Missouri's death penalty scheme, and the prosecutor's discretion, do not violate the U.S. or Missouri constitutions.