SC97475
Business Aviation LLC and Vaughn C. Zimmerman, et al. v. Director of Revenue
Cole County
Challenge to use tax and interest assessed for leased airplane
Listen to the oral argument: SC97475 MP3 file
Business Aviation was represented during arguments by Lowell Pearson of Husch Blackwell LLP in Jefferson City; the director was represented by Emily Dodge of the attorney general’s office in Jefferson City.

Business Aviation LLC purchased an airplane outside Missouri. After the purchase date but before the closing date, Business Aviation entered into an agreement to lease the airplane to Burgess Aircraft Management LLC for use as a certified or licensed carrier under a particular section of the federal aviation regulations. Burgess picked up the airplane and transported it to Burgess’ operations in Springfield. Both Business Aviation and Burgess apparently believed the lease transferred all right of use to Burgess, retaining the right to charter the airplane and pay costs and expenses related to any Business Aviation operation of the airplane. The lease agreement allowed Business Aviation to pay less than actual cost for its members’ charter flights, but Burgess did not charge the members at all, nor did it pay Business Aviation for other charter flights. Business Aviation did not file any tax returns with or pay any taxes to the state’s department of revenue. The state’s director of revenue assessed unpaid use tax, plus statutory interest, to Business Aviation. Business Aviation appealed to the administrative hearing commission, which found Business Aviation failed to show the right to use the airplane was not transferred fully for valuable consideration; therefore, the lease did not constitute a sale for resale.

This appeal presents two questions for this Court. One involves whether Business Aviation’s transaction to Burgess lacked valuable consideration such that it cannot be considered a “sale” for resale or a “sale” to a common carrier and, if so, whether Business Aviation’s purchase of the airplane qualifies for a tax exemption. The other question involves whether Business Aviation is liable for interest added to any taxes it owes.

SC97475_Business_Aviation_brief

SC97475_Business_Aviation_reply_brief


SC97595
In the Interest of: D.C.M., a Minor v. Pemiscot County Juvenile Office
Pemiscot County
Challenges to adjudication of juvenile, effectiveness of counsel
Listen to the oral argument: SC97595 MP3 file
The juvenile was represented during arguments by Craig Johnston of the public defender’s office in Columbia; the juvenile office was represented by Christopher Wray of the attorney general’s office in Jefferson City.

A student reported overhearing a16-year-old juvenile, who had been attending a particular school only for a few days, making comments about wanting to blow up the school. A student sitting with the juvenile told police he did not recall hearing the juvenile making any threats. The juvenile told police he had not made any threats and was just joking with some students. The juvenile office filed a delinquency petition alleging the juvenile had threatened to blow up the school (an allegation that would have been charged as felony second-degree making a terrorist threat had he been an adult). The circuit court denied the juvenile’s request to continue his adjudication hearing so his attorney could subpoena witnesses. Not all students with whom the juvenile had been talking that day testified at the juvenile’s adjudication hearing. The circuit court found beyond a reasonable doubt the allegations were true and committed the juvenile indefinitely to the state’s division of youth services. The juvenile appeals.

This appeal presents several questions for this Court. A preliminary question involves whether a juvenile in a delinquency proceeding has a right to effective assistance of counsel and, if so, whether such ineffective assistance claims may be raised on direct appeal. If a juvenile may raise such claims, then additional questions involve whether the juvenile’s attorney was ineffective in failing to subpoena a particular student and failing to object to or eliciting testimony regarding the juvenile’s prior bad acts and the credibility of other witnesses. Further questions include whether the circuit court should have granted the juvenile’s request for a recess or continuance and whether the juvenile’s statements were sufficient to substantiate the allegations against him.

The National Juvenile Defender Center, which filed a brief as a friend of the Court, argues juveniles should have the right to effective assistance of counsel at every stage of delinquency proceedings; juveniles should have the right to challenge, on direct appeal, the effectiveness of their attorneys; and this Court should adopt a youth-specific standard for such claims.

SC97595_D.C.M._brief

SC97595_DCM_reply_brief

SC97595_National_Juvenile_Defender_Center_amicus_brief

SC97595_Juvenile_Office_supplemental_brief

SC97231
David R. Hosier v. State of Missouri
Cole County
Challenge to denial of postconviction relief in death penalty case
Listen to the oral argument: SC97231 MP3 file
Hosier was represented during arguments by Amy Bartholow of the public defender’s office in Columbia; the state was represented by Greg Barnes of the attorney general’s office in Jefferson City.

The state indicted David Hosier in the September 2009 shooting death of a married woman with whom he had been having an affair. As a result of the incident, the woman’s husband also died, but Hosier was not charged with his death. Hosier had a prior felony battery conviction from another state, and the married woman had obtained an order of protection against him after their breakup. He was charged with first-degree murder, armed criminal action, first-degree burglary and unlawful possession of a firearm by a felon. During the trial’s guilt phase, the state sought to admit an exhibit about Hosier’s prior battery conviction. Hosier’s counsel agreed to stipulate that Hosier had a prior felony conviction but not the conviction’s details. The circuit court permitted the state to admit a redacted document still containing information about the underlying battery. At the close of evidence, Hosier’s counsel moved to dismiss the charge for unlawful possession of a firearm by a felon and objected to the related jury instruction. The circuit court overruled both. During deliberations, the circuit court granted the jury’s request to see the redacted exhibit. The jury found Hosier guilty as charged. During the trial’s penalty phase, the state presented evidence regarding his prior battery conviction, his previous assault of his ex-wife and his violation of an order of protection. Victim impact evidence included testimony from the husband’s adult son. The jury found the evidence supported two statutory aggravating factors – one based on facts underlying the prior battery conviction, and one for killing the woman while also killing her husband – and recommended Hosier be sentenced to death. The circuit court sentenced Hosier to death for the murder charge and terms in prison for the other charges. This Court affirmed the judgment on direct appeal. Hosier then sought postconviction relief, alleging ineffective assistance by his trial and appellate counsel. He also alleged the trial judge should have been recused because she was an attorney of record for Hosier’s ex-wife in a prior case against Hosier. Hosier also moved to disqualify the trial judge from presiding over his postconviction proceedings. Following an evidentiary hearing before a different judge, the circuit court overruled the motion to disqualify the trial judge, who later held an evidentiary hearing in the postconviction proceeding. The circuit court ultimately denied relief. Hosier appeals.

This appeal presents a number of questions for this Court. Most involve whether Hosier’s trial counsel were ineffective, violated his various constitutional rights and prejudiced him as a result. These questions include trial counsel’s alleged failure to: strike from his jury two jurors allegedly so biased toward imposing death they realistically could not consider life imprisonment; sever the charge for unlawful possession of a firearm by a felon from the rest of the charges; stipulate more fully to his prior battery conviction; call a psychiatrist to provide mitigating evidence during the penalty phase about brain damage and lesions from a stroke Hosier had suffered; object to a witness’s victim impact testimony about his father, whose death Hosier was not charged with committing; and object properly to the prosecutor’s penalty phase closing argument about the number of defendants he had prosecuted who had been executed. Another question involves appellate counsel’s alleged failure to appeal the circuit court’s refusal to sever the firearm possession charge. Further questions involve whether the judge who presided over the trial and postconviction proceedings should have recused under Rule 2-2.11.

SC97231_Hosier_brief