Case Summary for September 30, 2009

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Case Summary for September 30, 2009

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.

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Wednesday, Sept. 30, 2009

_________________________________________________________________

SC89832
State of Missouri v. John L. Richard
Mississippi and Scott counties
Constitutional validity of statute affecting right to bear arms
Listen to the oral argument:

The state was represented during argument by Karen Kramer of the attorney general's office in Jefferson City, and Husband was represented by Craig A. Johnston of the public defender's office in Columbia.

In November 2006, Wife told Husband she was leaving him. Husband then told Wife that he was going to shoot himself in the head with his gun and that if she called the police, he would go outside with his gun and make the police shoot him. He then took some of his prescribed morphine pills and a drug prescribed for migraines or depression. Wife called the police. By the time the police arrived, Husband was sitting unconscious in a chair with his loaded 9mm gun and an additional loaded clip in his shoulder holster. In March 2007, the state charged Husband with possessing a loaded firearm while intoxicated pursuant to section 571.030(5), RSMo. Husband moved to dismiss the charge, arguing the statute violated his Second Amendment rights. The circuit court dismissed the charge, finding the statute is unconstitutional to the extent it prevents a citizen from possessing a firearm in his or her home while he or she may be legally intoxicated. The state appeals.

The state argues the circuit court erred in dismissing the charge on the grounds that section 571.030.1(5), is unconstitutional, arguing the statute does not violate the Second Amendment of the United States Constitution or article I, section 23 of the Missouri Constitution. It contends the statute is a valid exercise of the state's police power in regulating gun possession for the purpose of protecting the health, safety and welfare of Missouri citizens. The state asserts the statute was constitutional as applied to Husband because he was intoxicated and in possession of a loaded firearm, had threatened himself and others, and was not using the gun in self-defense.

Husband responds section 571.030.1(5) is unconstitutional because it violates his Second Amendment right from the United State Constitution and article I, section 23 of the Missouri Constitution. He asserts the statute is overbroad and is unconstitutional as applied to him, who was asleep at home while holding a firearm after taking prescription medicine.

SC90080
Mark Karscig v. Jennifer M. McConville, American Family Mutual Insurance Company
Johnson and Pettis counties
Stacking automobile insurance policies
Listen to the oral argument:

Karscig was represented during argument by William Dirk Vandever of The Popham Law Firm in Kansas City, Mo., and American Family was represented by David R. Frye of Lathrop & Gage, L.C. in Overland Park, Kan.

Mark Karscig was injured in an automobile accident with Jennifer McConville in October 2005. At the time of the accident, McConville lived with her parents and was driving her parents' car, which is insured by American Family Insurance. McConville has her own motor vehicle policy with American Family that lists her car, but not her parents' car. The insurance company agreed McConville's parents' policy provided coverage to McConville but determined McConville's policy did not provide additional coverage. Karscig sued American Family for a declaratory judgment as to whether McConville's insurance covered the accident. American Family filed a counterclaim asking the trial court to find no additional coverage was owed to Karscig under McConville's insurance policy. The trial court granted summary judgment for American Family, holding that only one insurance policy provided coverage and that McConville's policy did not provide her with coverage for Karscig's injury claims. Karscig appeals.

Karscig argues the trial court erred in finding no coverage under the policy to McConville. He contends the motor vehicle financial responsibility law and this Court's decision in American Standard Insurance Company v. Hargrave, 34 S.W.3d 88 (Mo. banc 2001), require that every owner's and operator's motor vehicle liability policy issued in this state provides minimum liability limits. Karscig asserts that he was entitled to recover under both of the policies.

American Family responds that McConville's policy does not provide liability coverage for an accident involving a different vehicle. It argues the motor vehicle financial responsibility law mandates that insured persons may collect damage awards and that the insurance company fulfilled this mandate through McConville's parents' policy. The insurance company asserts this Court, in First National Insurance Company v. Clark, 899 S.W.2d 520 (Mo banc. 1995), rejected the injured party's ability to "stack" policies when a liability insurance policy was sufficient to meet the minimum requirements of the state financial responsibility law. It argues McConville's policy for her car includes an anti-stacking provision that states it will pay $25,000 required by the motor vehicle financial responsibility law, but McConville's parents' policy met the $25,000 minimum and it is not required to pay more.

The Missouri Association of Trial Attorneys argues, as a friend of the Court, that the motor vehicle financial responsibility law requires American Family to pay the statutory minimum for injuries McConville caused pursuant to her $25,000 policy liability limit. The association contends McConville's policy did not clearly state whether it was an operator's policy or an owner's policy and that, in the association's opinion, the policy appears to be an operator's policy. It asserts that any ambiguity should be construed against the insurer and that coverage should extend to the accident at issue.

The Missouri Insurance Coalition argues, as friend of the Court, that the legislature imposed mandates through the motor vehicle financial responsibility law so that vehicle owners and operators must carry automobile insurance. The coalition asserts the law does not regulate the policy terms or conditions above the minimum requirements of $25,000 for bodily injury in an automobile accident. It contends this Court should follow Clark, which held an insurance company may limit is coverage based on its policy exclusions so long as it meets the requirements of the motor vehicle financial responsibility law, and, therefore, should enforce the exclusion in American Family's insurance policy.

SC90085
Steve Ritchie and Anita Ritchie v. Allied Property & Casualty Insurance Company
Jasper County
Stacking underinsured automobile insurance coverage
Listen to the oral argument:

Allied was represented during argument by Jared Robertson of Malkmus Law Firm, LLC in Springfield, and the Ritchies were represented by Glenn R. Gulick, Jr., of Gulick Law Office in Joplin.

Steve and Anita Ritchie's daughter was killed when she was a passenger in a vehicle that collided with another automobile. At the time of accident, Daughter was insured under her parents' automobile insurance policy through Allied Property & Casualty Insurance Company. The Ritchies' policy with Allied covered their three vehicles and provided underinsured motorist coverage for all three vehicles. The policy's underinsured motorist coverage listed a policy limit of $100,000 per person and $300,000 per vehicle. The Ritchies sued the drivers of both vehicles in the accident for the wrongful death of their daughter. In June 2005, the drivers were found to be negligent, and the circuit court awarded the Ritchies $1.8 million in damages. The drivers had automobile insurance, but the total amount provided pursuant to their policies was $60,000. Allied paid the Ritchies $40,000, bringing their total recovery to $100,000. The trial court determined that Allied's policy provisions were ambiguous and unenforceable and directed Allied to pay an additional $260,000, or $300,000 total. Allied appeals.

Allied argues that, because the trial court was required to enforce the anti-stacking provisions of the policy's underinsured motorist coverage, the court erred in requiring it to pay more than $40,000. Allied contends its policy provisions are clear and set the underinsured motorist coverage limit at $100,000 per person, regardless of the number of vehicles insured by the policy. Allied contends the trial court was required to enforce the setoff language in the policy's underinsured motorist coverage provisions, which reduced the coverage limit by the payments totaling $60,000 made by the drivers who legally were responsible for the damages.

The Ritchies respond their insurance policy with Allied provides at least $300,000 in underinsured motorist coverage for the death of their daughter caused by the negligence of two underinsured drivers. They contend their policy states that when the injured insured is occupying someone else's vehicle, and there are multiple underinsured motorist coverages, then each of the three underinsured motorist coverages are in excess to each other and, therefore, are "stacked." The Ritchies further respond the trial court properly ruled Allied was not entitled to deduct any amounts paid by the underinsured drivers from the limits of liability of the underinsured motorist coverage. Instead, they argue, Allied was liable to the Ritchies for the full amount of the limits of liability for each of the applicable underinsured motorists coverage. The Ritchies contend that the trial court should have found that they were entitled to $600,000 as the sum of $300,000 for each negligent underinsured driver and that this Court can, and should, enter judgment greater than the trial court's judgment.

The Missouri Insurance Coaltion argues, as a friend of the Court, that underinsured motorist coverage is separate from uninsured motorist coverage. It contends that uninsured coverage is mandated by statute and public policy, requiring the coverage to be "stacked," but that underinsured coverage is not mandated by statute or public policy and, therefore, the insurance contract's language controls. The coalition asserts Allied's contract has unambiguous language prohibiting stacking coverage for each of the three vehicles covered by the Ritchies' policy and, therefore, Allied did not owe additional money.

The Missouri Association of Trial Attorneys argues, as a friend of the Court, that denying the full amount of underinsured motorist coverage an insured purchased violates the public policy of Missouri. It asserts such a denial defeats the reasonable expectations of the insured by providing only illusory coverage in that the Ritchies purchased underinsured motorists coverage to protect themselves against drivers who fail to adequately insure against accidents.

SC89831
Mark Anthony Gill v. State of Missouri
Cape Girardeau and New Madrid counties
Postconviction relief from death penalty
Listen to the oral argument:

Gill was represented during argument by William J. Swift of the public defender's office in Columbia, and the state was represented by James B. Farnsworth of the attorney general's office in Jefferson City.

Mark Gill was living on Ralph Lape's property when he and Justin Brown murdered Lape in July 2002 and used Lape's ATM card to take Lape's money. Gill was charged with first-degree murder, kidnapping, armed criminal action, first-degree robbery and first-degree tampering. In August 2002, the trial court found he was a prior offender and sentenced him to death. State v. Gill, 167 S.W.3d 184 (Mo. banc 2005). Brown was charged for the same crimes but was sentenced to life. Gill filed a postconviction motion pursuant to Rule 29.15, which the circuit court overruled. Gill appeals.

Gill's argument

Gill argues he was denied his constitutional rights to due process, freedom from cruel and unusual punishment and effective assistance of counsel. He contends the state failed to disclose the sexual content it found on Lape's computer in violation of Brady v. Maryland, 373 U.S.83 (1963), and Rule 25.03. Gill asserts this evidence would have rebutted the state's portrayal of Lape as a "good Samaritan," "saint" and "Mr. Mom" and that there is reasonable probability that Gill would not have been sentenced to death. Gill argues he received ineffective assistance of counsel because his attorney did not interview or depose the police officer – a computer expert in charge of the investigation – and did not review the evidence carefully or request the content of Lape's computer report, as co-defendant Brown's counsel did, so that Gill's computer expert could have reviewed the computer for the purpose of impeaching the state's witness regarding Lape's good character. Gill contends the circuit court erred in finding there was a lack of foundation for admitting the evidence of sexual content found on Lape's computer. He asserts foundation was laid when the police officer in charge of the investigation testified his analysis showed that Lape authored sexual chats, that Lape was a "pervert," and that Gill could not have put the sexual content on the computer because it was done before Gill lived with Lape.

Gill argues the circuit court improperly signed the state's findings of fact and conclusions of law because the facts were expressly contrary to how multiple witnesses testified, showing the circuit court did not exercise independent judicial judgment.

Gill contends the prosecutor committed prejudicial prosecutorial misconduct by negotiating with Gill about potentially waiving the death penalty if Gill provided information about another person's involvement with Lape's death. He argues the prosecutor never intended to waive the death sentence because the prosecutor knew Gill did not have information that would implicate the other person. Gill asserts he was prejudiced because the prosecutor's disingenuous negotiations wrongly diverted Gill's attorney's attention from uncovering information about the sexual content on Lape's computer that could have been used at trial to discredit assertions of Lape's good character.

Gill argues his counsel failed to investigate and present a complete mitigation case in the penalty phase. Gill asserts his attorney did not call witnesses to testify about the abusive and dysfunctional environment in which Gill grew up, did not present complete evidence about mental health records documenting serious mental illness in Gill's family and did not use Gill's medical records to show he suffered from post-traumatic stress disorder. He contends he was prejudiced because, if the jury heard more about his background, he would have been sentenced to life.

Gill further argues that Missouri's lethal injection process is unconstitutional because the state cannot conduct executions that do not cause unnecessary and wanton infliction of pain and cannot conduct them without a substantial risk of maladministration.

State's argument

The state responds the circuit court properly denied Gill's claim that the state violated its Brady obligation to disclose evidence of the sexual content it found on Lape's computer that Gill stole. It contends Gill's defense counsel was not ineffective for failing to obtain the sexually explicit files because the files were not relevant to Gill's case, were non-exculpatory and did not have mitigating value. The state argues that, while the contents of the computer were available to Gill's attorney, his attorney reasonably chose not to spend time searching the computer.

The state further responds Gill failed to provide an adequate record to prove that the circuit court improperly adopted the state's proposed findings, failed to preserve this issue for appellate review by not objecting to the state's proposed findings or filing a timely motion to address any alleged errors in the circuit court's judgment, and failed to develop sufficient evidence to prove the circuit court did not "thoughtfully and carefully consider" his claims.

The state argues the circuit court did not err in denying Gill's claim that the prosecutor committed prosecutorial misconduct by discussing with Gill's attorney the possibility of not seeking the death penalty if Gill provided information that would lead to the prosecution of another person for Lape's death. The state contends the prosecutor participated in the negotiations in good faith but ultimately decided not to make an offer because Gill was unable to provide actionable information against the other person.

The state further responds the circuit court properly excluded additional evidence during the penalty phase about Gill's difficult childhood or to suggest that Gill suffered from post-traumatic stress disorder at the time of the murder because the additional witnesses and records would have been cumulative or contradictory to other records and witnesses that already had been presented.

It argues the circuit court did not clearly err in denying Gill's claim that Missouri's use of lethal injection is cruel and unusual punishment. It contends that his challenge is not ripe for consideration and that he did not present any evidence in support of this point at his evidentiary hearing. The state further asserts that this Court already has rejected this claim in State v. Forrest, No.SC89343, slip op. (Mo. banc June 16, 2009), holding a claim challenging the constitutional validity of Missouri's lethal injection method is not ripe for consideration in a Rule 29.15 motion for postconviction relief.