Case Summary for November 1, 2006

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Case Summary for November 1, 2006

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

9:30 a.m. Wednesday, November 1, 2006
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SC87787
State of Missouri v. Tyrone Cooper
St. Louis County
Challenge to jury instruction in first-degree burglary conviction

Tyrone Cooper and Joel Busby testified to competing stories at Cooper's jury trial on charges arising from an October 2003 fight at Busby's house after Cooper's nephew told Cooper that Busby sold him fake Ecstasy. During the fight, Cooper was bit on the legs and face by Busby's pit bull and was shot in the upper left arm, and a bullet grazed Busby's head, causing him to lose consciousness. Cooper subsequently was charged with first-degree burglary, first-degree assault and armed criminal action. At his trial, Cooper testified that he went to Busby's house and told Busby he wanted to talk with him about the Ecstasy that Busby sold the nephew. He testified that Busby gestured for him to enter the front door. He testified that as he walked inside he turned around and saw Busby pointing a gun at him and the two men struggled over the gun. Busby testified to a different version of events. He testified that he returned home and saw a masked man coming from the side of the house with a pistol. Busby testified that the man attempted to push his way into the house and then kicked in the door and shot at him, when a struggle for the gun ensued. Busby testified that the masked man told him to give him the keys to Busby's customized Yukon truck. At trial, Cooper objected to the instruction telling the jury about the conduct that constitutes first-degree burglary. The jury found Cooper guilty of first-degree burglary but acquitted him of first-degree assault and armed criminal action. The trial court determined Cooper was a prior and persistent offender and sentenced him to life imprisonment. Cooper appeals, seeking a new trial on the burglary charge.

Cooper argues that submitting the instruction to the jury violated his federal and state constitutional rights to due process, a fair trial and a properly-instructed jury. He contends the instruction did not contain all of the essential elements of first-degree burglary because it did not specify unlawful entry. He asserts that the verdict is unjust because the state did not have to prove the entry was unlawful. Cooper argues his intent in entering the house specifically was contested at trial when he testified that Busby invited him in and Busby testified that Cooper kicked down the door.

The state responds that the instruction required the jury to consider whether Cooper entered the house with the purpose of assaulting Busby, which constitutes an unlawful entry. It contends that because the jury was charged with considering whether Cooper entered the house to assault Busby, the instruction required the state to prove unlawful entry. It asserts that omitting an explicit reference to unlawful entry did not affect the verdict. The state argues the jury, in fact, did consider unlawful entry because it decided under the instruction that Cooper entered the house with the intent to assault Busby. The verdict, the state contends, indicates the jury considered and rejected Cooper's testimony.

SC87860
State of Missouri v. Brian Edwin Neher
Barton County
Challenge to search warrant and validity of conviction for lesser-included offense

The Barton County sheriff in August 2004 sought a search warrant for Brian Neher's home based on a confidential source's statements that Neher was making methamphetamine. Police executed the warrant at Neher's home and found: 33 grams of methamphetamine; methamphetamine residue on metal spoons, glass tubing, a plastic pen barrel and three glass pipes; bottles and coffee filters containing methamphetamine, ephedrine and pseudoephedrine; 24 capsules of Sudafed; seven blister packs of antihistamine tablets; iodine, starter fluid, camp fuel, muriatic acid, hydrogen peroxide, acetone and lye; plastic tubing and bottles; glassware; a handwritten recipe; two acetaminophen tablets; electronic scales; and marijuana and marijuana-related paraphernalia. After he was charged, Neher filed a motion to suppress the seized evidence. The sheriff testified that the informant told him he smelled an odor coming from Neher's mobile home, observed canisters of chemicals in Neher's trailer and saw a lot of traffic in and out of the trailer, including a man previously arrested for possession of a controlled substance. The sheriff did not identify the informant. The trial court denied the motion to suppress. On the day the bench trial began, Neher again contested admission of the evidence. At that time, Neher argued that his father was the confidential informant and that the sheriff's affidavit was false. Neher's father testified that he called the sheriff a few days before Neher's arrest and reported a chemical odor coming from his son's mobile home. His father testified he did not enter the trailer. Instead, he said, he told the sheriff what his wife said she had seen inside. The trial court denied Neher's motion and admitted the evidence. The court convicted Neher of manufacturing methamphetamine, possession of methamphetamine, possession of a methamphetamine precursor drug with intent to manufacture, possession of a chemical with intent to create a controlled substance and possession of drug paraphernalia with intent to use. The court, noting that it found no evidence of intent to deliver, convicted Neher of possession rather than possession with intent to deliver. The court sentenced Neher to prison on each charge and ordered the terms to be served concurrently, the longest term being 10 years. Neher appeals.

Neher argues the trial court did not specify on what basis it determined he was not guilty of possession of methamphetamine with intent to deliver, so the court could not, moments later, find him guilty of the lesser-included offense of possession. He argues that even though his counsel at trial did not object to the prosecutor's request at sentencing that the court consider possession, he is entitled to object now because the conviction violates a fundamental constitutional right. Neher asserts that once the trial court announced he was not guilty of possession with intent to deliver, it could not decide he was guilty of possession. Doing so, Neher contends, violated his right to be free from repeated prosecution or multiple punishments for the same offense. Neher also argues that the trial court should not have considered evidence seized in the search because, he asserts, the sheriff based his affidavit on inadmissible statements that were not corroborated by any other source. Neher asserts the search was unreasonable and violated the federal and state constitutions because the request was based entirely on the unnamed informant's statements.

The state responds that Neher waived a double jeopardy argument when his lawyer agreed at sentencing that the court could convict him of possession after acquittal on the possession with intent to deliver charge. Alternatively, the state contends that even if Neher did not waive this argument, the trial court indicated only that it did not find evidence supporting intent to deliver and still could find the facts supported a possession conviction. The state argues that acquittal on one charge is not necessarily an acquittal on any lesser charge that might be part of the first charge. The state also argues the trial court correctly allowed the evidence seized from Neher's home because the warrant was supported by probable cause. It asserts that the implied admission of criminal conduct on the part of the informant, as well as the criminal history of those identified, provided a substantial basis for the warrant. Even if police did not have probable cause, the state contends, the evidence was admissible because police reasonably believed the search warrant was valid.

SC87995
Tamara Seeck v. Geico General Insurance Co.
St. Charles County
Challenge to denial of underinsured motorist coverage and legal effect of a release on an insurer's asserted right to sue

Tamara Seeck was injured as a passenger in a December 1999 automobile accident on Highway 40. She suffered a ruptured spine and other injuries that required surgery and treatment resulting in about $44,000 in medical bills. Her permanent injuries cause chronic pain. At the time of the accident, Seeck was insured by GEICO General Insurance Co. under a policy providing underinsured motorist coverage of up to $50,000. Kelli Whitmore, who drove the other vehicle involved in the collision, was insured by Farmers Insurance Company with a $50,000 liability policy. In August 2002, Farmers paid Seeck the $50,000 policy limit, and Seeck signed a document releasing Farmers and Whitmore from liability. In the release, Seeck agreed to reimburse Whitmore and Farmers for any amounts she subsequently recovered for her injuries, excluding the right to recover from GEICO. GEICO denied Seeck's claim, asserting that Whitmore was not an underinsured motorist under the policy. Seeck sued, and the trial court granted summary judgment for GEICO. Seeck appeals.

Seeck argues the trial court erred because the language of the GEICO policy clearly provides that her underinsured motorist benefits were triggered because her injuries are greater than the recovery available from Whitmore's policy. Seeck contends this Court should reject GEICO's excess coverage argument. She asserts that argument is based on an ambiguity in the policy that must be read in her favor. Seeck argues GEICO did not show it was damaged by her failure to obtain its prior written consent to settle with Whitmore, so the company cannot complain that she breached the policy. Seeck also contends that the release with Farmers and Whitmore specifically excluded the GEICO policy for the purpose of making a claim on that policy, so GEICO has no basis for claiming any damage from that release.

GEICO responds that summary judgment was proper. It argues Whitmore's vehicle was not an underinsured motor vehicle, so no coverage is available. It contends that Seeck's underinsured motorist coverage only provides excess coverage. It asserts that because Whitmore's liability policy was $50,000 and Seeck's underinsured motorist policy was also $50,000, there is no excess coverage available. GEICO responds that there is no ambiguity in the policy. It argues Seeck breached her underinsured motorist policy by releasing Whitmore and Farmers without GEICO's prior consent, which interferes with GEICO's asserted right of subrogation – the right to sue Whitmore and Farmers to recover any payment to Seeck. GEICO contends that the release only preserved Seeck's right to recover against GEICO but did not exclude that recovery from the release's reimbursement requirements, which would mean Seeck must reimburse Whitmore and Farmers if GEICO pays her.

The Missouri Association of Trial Attorneys argues, as a friend of this Court, that when a person with an underinsured motorist policy is injured in a car accident, the insurance company should be required to pay the policy benefits over and above any recovery from the party that caused the accident or that party's insurer. It contends that this Court should not recognize a right of subrogation in an underinsured motorist policy. The association asserts that subrogation under an underinsured motorist policy amounts to assignment of a personal injury claim, which is invalid under state law. It argues the general assembly has extended the right of subrogation to insurers of uninsured motorist policies but purposely has not extended the right in underinsured motorist policies.

The Missouri Organization of Defense Lawyers argues, as a friend of this Court, that an insurance company should be able to contract for a right of subrogation in an underinsured motorist policy. It contends that subrogation of underinsured motorist benefits is not an assignment of a personal injury claim because allowing the insurer to recover amounts paid on a claim does not constitute a complete transfer of an injured person's right to sue. It asserts that there is no harm to the public or the insured when an insurance company is allowed to recover from the person who caused the injury. The organization argues there is no need for a special law allowing subrogation in underinsured motorist policies, so the fact that no such statute exists should not persuade the Court.