Case Summary for April 3, 2002

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Case Summary for April 3, 2002

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DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Wednesday, April 3, 2002

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SC83186
In the Matter of the Care and Treatment of Eddie J. Thomas,
Eddie J. Thomas v. State of Missouri
St. Louis City
Constitutionality of sexually violent predator law

Eddie Thomas was convicted in St. Louis of three counts of forcible rape and two counts of forcible sodomy in 1982 and was sentenced to 23 years in prison. In April 1999, three months before his scheduled parole date, the multidisciplinary committee established to review sexually violent predator cases met regarding Thomas. On July 12, two days before Thomas was to be paroled, the committee voted that Thomas met the definition of a sexually violent predator. The next day, the state filed a petition alleging that Thomas was a sexually violent predator because he suffered from "a mental abnormality which makes it more likely than not to engage in predatory acts of sexual violence." Through the petition, the state sought to remand Thomas to the custody of the director of the department of mental health. The court found probable cause supporting the petition. At a jury trial in August 1999, the state presented evidence that Thomas had sexually abused several young girls, including extensive abuse of his daughter and stepdaughter. A certified forensic examiner who also was a psychologist with the department of mental health diagnosed Thomas with pedophilia and antisocial personality disorder. The psychologist also testified that, based on his evaluation of Thomas, he believed Thomas was more likely than not to commit sexually violent acts if released into the community. The jury found Thomas to be a sexually violent predator, and the probate division committed him to the department of mental health.

Thomas appeals, arguing the probate division erred in denying his motion to dismiss the state's petition or, alternatively, his objections to the verdict director because he argues the state's sexually violent predator laws, sections 632.480 through 632.513, RSMo, are unconstitutional. He contends the sexually violent predator law violates his due process rights because it permits the state to deprive a person of his liberty solely upon proof that he suffers from a mental abnormality that predisposes him to commit sexually violent offenses. He claims that under the Supreme Court's recent decision in Kansas v. Crane, 534 U.S. ____, 122 S.Ct. 867 (2002), the state must prove that the abnormality causes him serious difficulty in controlling dangerous behavior before involuntarily committing him. He argues there was no evidence in the trial below that he could not control his conduct or that he would reoffend if he remained in treatment. Thomas contends the sexually violent predator statutes violate his rights to equal protection because they permit him to be committed involuntarily to the department of mental health for placement in a secure facility, regardless of whether it is the least restrictive environment in which to treat him. Thomas claims the sexually violent predator statutes violate the constitutional guarantees against ex post facto punishment and double jeopardy because the statutes permit an additional penalty for offenses to which he already has pled guilty. In addition, Thomas argues the probate division violated his due process rights in not dismissing the petition because the St. Louis city circuit attorney did not participate in the prosecutors' review committee that voted to permit the state to institute sexually violent predator proceedings against him. He contends section 632.483.5, RSMo Supp. 1999, requires that one review team member be the prosecuting attorney of the county in which he was convicted and that the prosecutor cannot send a designee.

The state responds that the probate division did not err in denying Thomas' motion to dismiss its petition nor his objections to the verdict director. The state argues the sexually violent predator statutes do not violate due process because due process permits the state to place a person in involuntary custodial treatment if the person has a mental abnormality and is dangerous. The state contends the statutes do not violate Thomas' right to equal protection of the law. It argues Thomas failed to identify any similarly situated person who is treated differently. It also claims it is constitutional to require custodial treatment of sexually violent predators but not necessarily all other people with mental abnormalities that render them dangerous. The state contends that involuntary custodial treatment of sexually violent predator does not constitute an additional penalty and therefore is not in violation of the constitutional prohibitions against ex post facto laws or double jeopardy. The state argues the confinement is the result of a civil, not a criminal, proceeding and therefore is a proper exercise of its police power. The state further responds that the probate division correctly denied Thomas' motion to dismiss the petition because section 632.483.5 permits the St. Louis city circuit attorney to send one of her assistants to the prosecutors' review committee in her place.

SC84245
In the Matter of the Care and Treatment of Desi Edwards
St. Louis City
Constitutionality of sexually violent predator law

Desi Edwards pleaded guilty to raping an 8-year-old girl in November 1989 and was sentenced to 10 years in prison. He was released on parole in December 1996, but his parole was revoked and he was returned to prison within two years after violating his parole by using alcohol and failing to pay fees. In November 1999, before the completion of his sentence, the state filed a petition seeking to commit Edwards to the department of mental health as a sexually violent predator. At an October 2000 trial, the state introduced evidence that Edwards had been caught masturbating against a 1-year-old baby's vagina, as well as details of the forcible rape that led to his guilty plea. The state also presented expert testimony from a psychiatrist who evaluated Edwards. He diagnosed Edwards with pedophilia and found that Edwards had a history of continuous drug abuse, had failed to complete sex offender treatment and denied that the sexual assaults had occurred. He opined that there was a pretty high risk that Edwards' pedophilia would cause him to rape other children if released without treatment. The jury found Edwards to be a sexually violent predator, and the probate division committed him to the department of mental health for treatment.

Edwards appeals, arguing the probate division erred in denying his motion for a directed verdict or, in the alternative, in submitting the verdict director. He contends that because the state's sexually violent predator laws, sections 632.480 through 632.513, RSMo, do not require the state to prove he lacks the volitional capacity to control his behavior, it violates his due process rights. He claims the state failed to prove he could not control his conduct and that the probate division failed to instruct the jury about the level of proof required. Edwards contends the sexually violent predator statutes violate his rights to equal protection because they permit him to be committed involuntarily to the department of mental health for placement in a secure facility, regardless of whether it is the least restrictive environment in which to treat him. Edwards claims the probate division violated his due process rights by declaring a mistrial when his first jury could not reach a verdict as to whether he was a sexually violent predator, as required by the statute. He argues he should have been released immediately on his motion, rather than being detained and subjected to a second trial. He contends the state never had standing to proceed against him because it failed to have a multidisciplinary team determine that he met the definition of a sexually violent predator, as required by statute. He further claims the state failed to prove that his mental abnormality made it more likely than not that he would reoffend if not confined. Edwards argues the probate division erred in allowing a police officer to testify about the incident with the 1-year-old because this testimony was hearsay. He contends the probate division's interpretation that section 632.483.5 precludes testimony from any member of the multidisciplinary team violates his due process rights. He claims the probate division plainly erred in allowing the state to call him to the stand and testify as a witness against himself and allowing the jury to consider those statements, in violation of his due process rights and the constitutional protection against self-incrimination. In addition, Edwards argues the probate division violated his due process rights in not dismissing the petition because the St. Louis city circuit attorney did not participate in the prosecutors' review committee that voted to permit the state to institute sexually violent predator proceedings against him. He contends section 632.483.5, RSMo Supp. 1999, requires that one review team member be the prosecuting attorney of the county in which he was convicted and that the prosecutor cannot send a designee.

The state responds that the probate division did not err in denying Edwards' motion for a directed verdict or his objections to the verdict directing instruction. The state argues the sexually violent predator statutes do not violate due process because due process permits the state to place a person in involuntary custodial treatment if the person has a mental abnormality causing him to be dangerous. The state contends the statutes do not violate Edwards' right to equal protection of the law. It argues Thomas failed to identify any similarly situated person who is treated differently. It responds that the probate division did not err in denying Edwards' motion for immediate release when his first trial ended with a hung jury because section 632.495 requires that he be held in a secure facility until another trial was conducted. It contends the attorney general does not need the recommendation of the multidisciplinary committee to proceed because section 632.486 permits the attorney general to file a petition seeking commitment upon a majority vote of the prosecutors' review committee. The state argues the evidence was sufficient to establish that Edwards' pedophilia and antisocial personality disorder make it more likely than not that he will rape children if released without treatment. It contends the probate division did not err in permitting the police officer to testify because the statements were admissible under the excited utterance exception to the hearsay rule. The state argues that the probate division properly excluded testimony of the multidisciplinary committee members because their testimony would not have assisted the jury. There was no error in permitting the state to call Edwards to the stand to testify because the Fifth Amendment privilege against self-incrimination applies only in criminal proceedings, and this was a civil proceeding. The state further responds that the probate division correctly denied Thomas' motion to dismiss the petition because section 632.483.5 permits the St. Louis city circuit attorney to send one of her assistants to the prosecutors' review committee in her place.

SC84010
In re: Michael W. Sagan
Jackson County
Attorney discipline

In February 1995, truck driver Terence Anderson was seriously and permanently injured and his wife was killed in a vehicular accident in the state of California. Attorney Alan Fleming, who represented Anderson in a worker's compensation claim arising out of the accident, referred Anderson's children to Kansas City, Missouri, attorney Michael Sagan. Fleming made the referral because he believed the children should name their father as a co-defendant in a lawsuit for the wrongful death of their mother. Sagan agreed to take the case and agreed Fleming would be paid 60 percent of whatever attorney fee was collected if the case settled and 50 percent if the case went to trial. In April 1995, the children signed contracts for Sagan's representation that gave him 40 percent of any recovery. The next month, he signed an agreement letter memorializing the fee split Fleming negotiated. In May 1995, Sagan filed suit. A year later, Sagan's co-counsel, Gregory Grounds, settled the case for $75,000, and the Anderson children paid Sagan $31,000. Sagan in turn paid half that fee to Grounds. Because Sagan owed Grounds money for rent, Sagan agreed to let Grounds keep Sagan's share of the fee as payment for rent due and rent to come due in the future. When Fleming attempted to collect his share of the fee, Sagan had no money to pay him. When Sagan filed for Chapter 7 bankruptcy in June 1997, he sought to discharge the debt he owed to Fleming. The bankruptcy court determined the fee-splitting arrangement to be enforceable and found that Sagan owed Fleming $18,600 in non-dischargeable debt. Sagan since has satisfied the judgment to Fleming. In January 1998, Sagan admitted in bankruptcy court that he failed to file state and federal income tax returns for the years 1993, 1995 and 1996 because he did not have enough money to pay his taxes. He also allegedly failed to comply with his continuing legal education reporting requirements for the years ending in June 1997, 1999 and 2000. He since has rectified his delinquencies as to both the tax filings and the continuing legal education reporting requirements.

The chief disciplinary counsel asks this Court to suspend Sagan's license. She contends that Sagan engaged in conduct involving dishonesty and deceit. She argues he misrepresented his dealings with Missouri attorney Alan Fleming. She also contends that Sagan failed to file federal income tax returns and failed to comply with his continuing legal education reporting requirements.

Sagan responds that this Court should issue him a public reprimand. He contends he did not violate or breach any duty to a client, the public or the legal system. He argues none of his conduct was intentionally designed to deceive or mislead anyone. He also contends that his conduct did not cause serious injury to anyone other than himself. In addition, Sagan responds this Court should consider specified mitigating factors in making its decision.

SC83615
Walter Barton v. State of Missouri
Benton and Christian counties
Post-conviction relief in a death penalty case

In October 1991, the body of 81-year-old Gladys Kuehler was found in the bedroom of her mobile home in Ozark, Missouri. She had been struck about 65 times, including 41 stab wounds to her chest, face, head and neck, 11 slash wounds and blunt force injuries, and four defensive wounds on the back of her hands and arms. She died from a combination of blood loss, shock, and stab wounds to her throat and chest. Her left lung had collapsed and bled extensively into her chest cavity. Walter Barton, who had been in Kuehler's home earlier in the day and to whom she wrote a $50 check the day of her murder, was arrested and charged with first-degree murder. Barton sought a change of judge and of venue. After mistrials involving juries from Henry and Cooper counties, a Callaway County jury convicted Barton and sentenced him to death. This Court overturned that conviction in 1996, and, following a trial in Benton County, a jury again convicted Barton and sentenced him to death. This Court affirmed the conviction and sentence in 1999. He subsequently sought post-conviction relief on 68 grounds. After an evidentiary hearing on 52 of those grounds, the motion court denied the relief requested. Barton appeals.

Barton argues he should have been given a hearing before a different judge, claiming the judge who heard his post-conviction relief motion was not impartial because he had commended a trial witness. He contends he was entitled to relief because the prosecutor failed to disclose the criminal record of one of the state witnesses. He argues this violated his right to due process of law and the right to confront witnesses against him, particularly where the state dismissed charges against the witness in exchange for her testimony against Barton. He also claims the prosecutor knowingly presented perjured testimony from the same witness.

Barton argues his trial attorneys were ineffective in failing to request a mistrial before the jurors in the first case were sworn in because the state failed to endorse its witnesses. He contends his attorneys for the last trial failed to move to dismiss the charges on the grounds they violated double jeopardy, either at trial or in the request for a new trial. He claims his attorneys failed to quash the state's notice to seek the death penalty on the grounds that this Court's proportionality review violates due process. Barton argues his attorneys were ineffective during voir dire because he misstated the law on Barton's failure to testify, failed to ask questions about penalty issues and failed to object to the state's voir dire. He also argues his attorneys failed to use peremptory strikes to eliminate two venirepersons who might be biased against him and failed to request additional strikes due to pretrial publicity.

Barton contends his attorneys failed to evaluate the reliability of the state's various jailhouse informants before trial. He claims his attorneys should have investigated and adequately cross-examined two jailhouse informants who testified against him and should have presented a witness who could have impeached one of the informant's testimony. He argues his attorneys failed to offer into evidence the prior inconsistent statements of three of the state's witnesses. He contends his attorney was ineffective in failing to request an instruction about the inherent unreliability of jailhouse informants' testimony. Barton argues his attorneys should have investigated and presented the testimony of witnesses who could have helped establish an alibi for him and could have testified that he never changed clothes the day of the murder. He contends his attorneys failed to prepare a defense witness adequately and failed to move to strike his testimony after the witness mentioned that Barton had received a death sentence during an earlier trial.

Barton claims that the court erred in finding that evidence of how well he had done in prison before would not have affected the outcome of the penalty phase of the trial. He argues his attorneys failed to present certain expert testimony during the penalty phase that could have helped mitigate his sentence. He contends his attorneys failed to develop adequately and to present certain mitigating testimony from witnesses including family members, a doctor and a minister. He claims the pleading rules for post-conviction proceedings are unconstitutionally restrictive and that the motion court should have let him present affidavits from certain mitigating witnesses. He argues his attorney should have objected to the trial court's failure to allow argument at his final sentencing.

Barton contends the attorney who filed his direct appeal was ineffective in failing to raise issues of the trial court's limitations on the death penalty voir dire, argument before sentencing and double jeopardy claims. He also argues his direct appeal attorney failed to argue that this Court's proportionality review process is fatally flawed and that an indictment for first-degree murder does not give the accused sufficient notice to prepare a defense. Barton claims the cumulative effect of these errors prejudiced him. He argues Rule 29.15 violates his rights to due process because it does not allow for enough time and resources in which to plead and raise all the issues in the case. He further contends that his death sentence is cruel and unusual because the clemency process is arbitrary and capricious.

The state responds that the judge who presided over the post-conviction relief proceedings was correct in not recusing himself. The letter he sent to an Indiana judge returning custody of one of the state's witnesses expressed no bias, prejudice or opinion about Barton or the merits of his case, nor did his knowledge of the witness pertain to any of Barton's post-conviction claims. The state argues the prosecutor disclosed the criminal record of this witness, the jury heard that she had been found guilty of crimes of deception, and Barton failed to prove this witness perjured herself. The state contends that this Court cannot review Barton's claim that the prosecutor failed to disclose a plea bargain made with the witness in exchange for her testimony because he failed to plead this error in his post-conviction motion.

The state responds that Barton's trial attorneys were not ineffective for requesting a mistrial after the jury was sworn because they exercised reasonable strategy and there is no reasonable probability that the outcome would have been different had they not requested the mistrial. The state argues Barton's claim that his retrial resulted in double jeopardy has no merit. The state contends that Barton's attorneys were not ineffective in filing to move that the state's death penalty notice be quashed because this Court repeatedly has rejected claims that its proportionality review violates due process. The state claims that Barton's allegations about his attorneys' actions during voir dire either lacked merit or did not affect the verdict. The state responds that Barton's claim that his attorneys should have requested a pretrial evaluation of the reliability of the jailhouse informants who testified for the state is meritless. The state argues Barton failed to prove that it was not reasonable trial strategy for his attorneys not to call certain witnesses, cross-examine certain state witnesses or impeach another state witness, or that he was prejudiced by his attorneys' actions. The state contends doing so would not have helped Barton's case. Similarly, the state claims Barton's attorneys were not ineffective in not introducing certain prior statements of state witnesses, as these statements were not inconsistent or related to only minor points that would not have affected the outcome of the case. The state contends Barton's attorneys were not ineffective in not requesting an instruction about the inherent unreliability of informant testimony because the proposed instruction was improper. The state argues Barton failed to show that his attorneys were ineffective in handling the witness who mentioned that Barton had received a death sentence in an earlier trial, and the statement did not affect the verdict.

The state responds that Barton's attorneys were not ineffective for failing to present certain mitigating evidence because the information about Barton's previous behavior in prison would not have supported their defense theory and would have been damaging to Barton's case. Similarly, evidence of prison conditions would have been irrelevant, was not credible and would have damaged Barton's case. The state argues Barton's attorneys were not ineffective in not calling certain mitigating witnesses because these witnesses would have damaged his case. The state contends Barton's attorneys were not ineffective for failing to prepare and elicit further testimony from certain mitigating witnesses because the additional testimony at best would not have affected the outcome of the case and at worst would have been damaging to Barton's defense. The state claims Barton failed to show what the testimony would have been from various family members and other people his trial attorneys did not call as witnesses. The state argues that Barton also failed to plead or present evidence of what argument his attorneys should have made had the trial court allowed argument at final sentencing.

The state responds that Barton's claims that his appellate counsel was ineffective are meritless. The state contends all his attorneys were effective and, because Barton was not prejudiced by any single alleged error, there could not have been a cumulative prejudicial effect on him. The state further responds that this Court repeatedly has rejected claims that the time limitations of Rule 29.15 violate due process.