Case Summary for April 22, 2015

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Case Summary for April 22, 2015

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, April 22, 2015
____________________________________________________________________________________________________

SC94646
State of Missouri v. Anwar Randle
St. Louis County
Challenge to jury instruction issues in assault case
Listen to the oral argument:

SC94646.mp3
Randle was represented during arguments by Srikant Chigurupati of the public defender's office in St. Louis; the state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.

The state charged Anwar Randle with four crimes – first-degree burglary, first-degree assault and two counts of armed criminal action – alleging that, early one November 2009 morning, Randle unlawfully entered a residence where a woman with whom Randle previously had been in a romantic relationship lived with another man and her three young children, shattering a glass bottle over the man’s head in an attempt to kill him or cause him serious physical injury. The case was tried to a jury in August 2012. The court gave the jury instructions for; first-degree burglary and an associated count of armed criminal action; the lesser-included offense of first-degree trespass; first-degree assault and an associated count of armed criminal action; the lesser-included offense of second-degree assault and an associated count of armed criminal action; and self-defense. The court refused an instruction Randle proffered for the additional included offense of third-degree assault. The jury found Randle guilty of three crimes: the lesser-included offense of first-degree trespass; the lesser-included offense of second-degree assault and the associated count of armed criminal action. The court sentenced Randle in October 2012 to concurrent (running at the same time) terms of six months in the county jail for the trespass conviction and seven years in prison for each of the other two convictions. Randle appeals.

Randle argues the trial court erred in refusing to give the jury the third-degree assault instruction he proffered, violating his state and federal constitutional rights to due process and a fair trial. He contends third-degree assault is a lesser-included charge of the first-degree assault for which he was charged. He asserts there was a basis in the evidence for a verdict acquitting him of first- and second-degree assault and finding him guilty instead of third-degree assault. Randle argues the trial court committed plain error in holding a jury instruction conference in his absence and without him waiving his absence, violating his state and federal constitutional rights to due process, to a fair trial, and to appear and defend himself. He contends the court was aware he wanted to argue his own case to the jury and should not have held an instruction conference without his presence or a waiver of his appearance. Randle asserts this action by the court resulted in substantial prejudice because it deprived him of a meaningful opportunity to provide input regarding the jury instructions; failed to give him adequate notice of which instructions were and were not being given; and otherwise deprived him of the opportunity to present his own defenses as opposed to those his attorney would have presented.

The state responds that the trial court did not err in refusing Randle’s proffered instruction for third-degree assault. The state argues a trial court is obligated to instruct the jury regarding a requested included offense only if there is a basis in the evidence for acquitting the defendant of the immediately higher-included offense and for convicting the defendant of the requested lesser-included offense. The state contends that third-degree assault is not a “nested” offense of the greater offense of second-degree assault and that, although the statute provides a basis to convict of a “reckless” offense such as third-degree assault when the evidence proves a “knowing” offense such as second-degree assault, the trial court was not obligated to give an instruction for third-degree assault. The state asserts the evidence does not support an inference that Randle was merely “reckless” in shattering the bottle over the man’s head because a blow of that nature is practically certain to cause at least some physical pain. The state responds that the trial court did not plainly err in holding the instruction conference without Randle present. The state argues Randle waived his constitutional claim by failing to raise this argument in the trial court, either at sentencing or in his motions for a new trial. The state contends that, if this Court nonetheless chooses to review this argument, there was no plain error resulting in manifest prejudice. The state asserts that the record does not show Randle was prevented from attending the instruction conference and that it is well-settled that counsel may waive a defendant’s presence at an instruction conference, which involves only questions of law. The state argues there is no evidence that Randle complained he lacked notice of the conference, that, had Randle attended the conference, he would have requested different instructions or his trial would have resulted in a different outcome; or that he wanted additional time to prepare for his closing argument based on the instructions selected.

SC94646_Randle_brief.pdf

SC94646_State_brief.pdf

SC94646_Randle_reply_brief.pdf

SC94711
State of Missouri v. Brandon M. Roberts
Buchanan County
Challenges to jury instruction for domestic assault; joining of assault, tampering charges
Listen to the oral argument:

SC94711.mp3
Roberts was represented during arguments by Ellen H. Flottman of the public defender's office in Columbia; the state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.

The state charged Brandon Roberts with second-degree domestic assault, alleging he knowingly caused physical injury to his girlfriend, who lived with him in St. Joseph along with his daughter and the girlfriend’s three children. The state alleged that Roberts punched his girlfriend during a June 2012 altercation stemming from an argument over whether she could use his truck to go to the grocery store. After his arrest, Roberts spoke several times with his girlfriend over the jail’s telephone, asking her to say he did not assault her, to “plead the Fifth” or to refuse to testify against him. The state later added a charge for victim tampering. Roberts’ counsel objected to the charges being joined together and moved to sever the counts. The trial court overruled both the objection and the motion to sever, and Roberts case was tried to a jury in January 2013. At the instruction conference, the trial court refused to give the jury an instruction Roberts’ counsel proffered for the lesser-included offense of third-degree domestic assault. The jury found Roberts guilty of second-degree domestic assault and victim tampering. In March 2013, the court sentenced Roberts to consecutive prison terms of five years for the assault conviction and two years for the tampering conviction. Roberts appeals.

Roberts argues the trial court erred in refusing to give the jury the third-degree domestic assault instruction he proffered, violating state law and his state and federal constitutional rights to due process of law. He contends third-degree domestic assault is a “nested” lesser-included offense of second-degree domestic assault. He asserts there was a basis in the evidence for the jury to acquit him of the higher offense and to convict him of the lesser offense because the jury could have found that he injured his girlfriend recklessly rather than knowingly in a case of imperfect self-defense. Roberts argues the trial court erred in permitting the prosecutor to join the charges of second-degree domestic assault and victim tampering and abused its discretion in overruling his motion to sever these charges, violating his state and federal constitutional rights to due process, a fair trial and to be tried only for the crime charged. Roberts contends the two alleged instances were not part of the same transaction, a common scheme or plan, or of the same similar character. He asserts the court’s failure to sever the offenses substantially prejudiced him because the jury was likely to consider the evidence of tampering in considering whether he was guilty of domestic assault. He further asserts the evidence of tampering was more prejudicial than probative (useful for proving a fact).

The state responds that the trial court did not err in refusing to give the jury the instruction for the lesser-included offense of third-degree domestic assault. The state argues a trial court is obligated to instruct the jury regarding a requested included offense only if there is a basis in the evidence for acquitting the defendant of the immediately higher-included offense and for convicting the defendant of the requested lesser-included offense. The state contends that third-degree domestic assault is not a “nested” offense of the greater offense of second-degree domestic assault and that, although the statute provides a basis to convict of a “reckless” offense such as third-degree domestic assault when the evidence proves a “knowing” offense such as second-degree domestic assault, the trial court was not obligated to give an instruction for the lesser assault charge. The state asserts the evidence does not support an inference that Roberts was merely “reckless” in punching his girlfriend because a punch of sufficient force is practically certain to cause at least some physical pain. The state argues that, even had Roberts punched his girlfriend in self-defense, he did so knowingly, not recklessly. The state contends Roberts was not prejudiced by the court’s refusal to instruct the jury regarding third-degree domestic assault because, in light of the jury’s verdicts, there is no reason to believe the jury had doubts about whether Roberts knowingly caused physical injury to his girlfriend. The state responds that the trial court properly joined the assault and tampering charges. The state asserts the two crimes plainly were connected because the tampering charge was dependent on and related to the domestic assault charge – it was while Roberts was in jail for the domestic assault charge that he tampered with the victim of that domestic assault by attempting to persuade her not to testify against him. The state responds that the trial court did not abuse its discretion in overruling Roberts’ motion to sever. The state argues the evidence was simple, and it would not have been difficult for the jury to consider the evidence of each offense and make an appropriate determination of Roberts’ guilt for each. Further, the state contends, there was no risk that the jury improperly considered evidence of crimes not properly related to the trial because the crimes with which he was charged were closely connected and the evidence of each would have been admissible to prove the other even had the charges been tried separately.

SC94711_Roberts_brief.pdf

SC94711_State_brief.pdf

SC94711_Roberts_reply_brief.pdf

SC94680
Byrne & Jones Enterprises Inc. d/b/a Byrne and Jones Construction v. Monroe City R-1 School District
Monroe County
Legal authority to challenge public bidding process
Listen to the oral argument:

SC94680.mp3
Byrnes & Jones was represented during arguments by W. Dudley McCarter of Behr, McCarter & Potter PC in St. Louis; the school district was represented by Ira M. Potter of the Affinity Law Group LLC in St. Louis.

In 2013, the Monroe City R-1 school district solicited assistance in the design and construction of its sports stadium facility. The only two bidders were Byrne & Jones Enterprises Inc. and ATG Sports Inc. The district notified Byrne & Jones in January 2014 that it had awarded the contract to ATG, and Byrne & Jones filed a bid protest letter the next day. In March 2014, Byrne & Jones filed suit, asking the circuit court to enjoin the district from entering into the contract with ATG and to award Byrne & Jones its fees incurred in preparing its bid for the project. Byrne & Jones alleged that the district had colluded with ATG and that, from the beginning of the process, the district’s bidding procedures favored ATG at the expense of giving other bidders a fair opportunity to compete for the project on equal terms with ATG. The district moved to dismiss Byrne & Jones’ petition on the basis that Byrne & Jones did not have standing (legal authority) to challenge the district’s award of the contract as a “low bidder.” The circuit court sustained the motion to dismiss in May 2014. Byrne & Jones appeals.

Byrne & Jones argues the circuit court erred in dismissing one count of its suit. It contends it had standing to challenge the award of the district’s design-build contract to ATG and to seek to enjoin the award of the district’s contract to ATG. Byrne & Jones asserts state law required the district to provide all potential bidders a fair opportunity to compete to provide the services the district solicited in its public invitation to bid for its contract. Byrne & Jones argues that, in awarding such a contract, a public entity must exercise its discretion in good faith and in the public interest, without collusion or fraud or motives of personal favoritism. Byrne & Jones contends that it has standing under an appeals court decision as a participant in the competitive bidding process because its petition challenges the fairness and lawfulness of the district’s procurement process by which ATG was awarded a public contract and because it alleges the district awarded the public contract unfairly, arbitrarily and capriciously without giving other bidders a fair opportunity to bid and to compete on equal terms. Byrne & Jones asserts this Court should follow the case law from other states and allow it to recover its bid preparation costs from the district. It argues that, as a participant in the public bidding process, it is in the proper position to challenge the district’s procurement process and contract award and to protect the public’s interest. Byrne & Jones contends that allowing bid preparation costs as a limited remedy for violations of competitive bidding statutes serves the public interest the statutes seek to protect and encourages bidders to participate in the process.

The district responds that, because Byrne & Jones do not challenge the circuit court’s ruling with respect to two counts of its suit, the challenge is limited to whether Byrne & Jones has standing to pursue injunctive relief or damages under the one count it does challenge. The district argues this Court should dismiss Byrne & Jones’ appeal because its jurisdictional statement fails to satisfy the requirements of Rule 84.04(b). As to the merits, the district contends the circuit court did not err in granting judgment to the district, determining Byrne & Jones did not have standing to challenge the contract award because it admits it does not allege it has any special pecuniary interest in the award of the contract that would demonstrate a clear legal right to the relief sought. The district asserts that a state statute allows it to reject any and all bids and that, while the public may have standing to challenge a contract, a long line of cases provide that an unsuccessful bidder has no standing to attack the award of a public works contract. The district responds that the circuit court did not err in entering judgment in the district’s favor as to Byrne & Jones’ claim for recovery of its bid preparation costs. The district argues that nothing in the case law, statutes or regulations supports a claim to recover bid costs as damages and that one appellate decision notes that permitting such damages would not protect the public because then the district would be required to pay profits to both the unsuccessful bidder and the contractor that performs the work. The district contends Missouri courts lack authority to grant such relief.

SC94680_Byrne_&_Jones_brief_filed_in_ED.pdf

SC94680_school_district_brief_filed_in_ED.pdf

SC94680_Byrne_&_Jones_reply_brief_filed_in_ED.pdf

SC94641
Heath August Dunivan v. State of Missouri and Missouri State Highway Patrol
Laclede County
Right to intervene in sex offender registry case; eligibility for removal from registry
Listen to the oral argument:

SC94641.mp3
The state was represented during arguments by Deputy Solicitor General Jeremiah J. Morgan of the attorney general's office in Jefferson City; Dunivan was represented by Chris Rasmussen of Deputy & Mizell LLC in Camdenton.

Heath Dunivan pleaded guilty in October 1993 in Laclede County to one count of second-degree sexual abuse and, for many years thereafter, he registered as a sex offender. In March 2012, Dunivan filed a petition seeking to be removed from the state’s sex offender registry and to be relieved of his obligation to register as a sex offender on the ground that, at the time of his crime, he was 18 years old and the victim was 13 years old. His petition did not mention the federal sex offender registration and notification act, and he did not argue he should be relieved of his obligation to register under that federal law. Neither the state highway patrol nor the state attorney general was named as a party in the circuit court, nor was either notified of the petition. Following a hearing regarding the petition – at which the county prosecutor’s office presented no evidence or argument – the circuit court in May 2013 ordered that Dunivan be removed from the state sex offender registry and that he be relieved from his obligation to register as a sex offender. The court did not denominate the order as a “judgment,” did not direct its order to any person or entity, and sent copies of the order to the prosecuting attorney and Dunivan’s counsel. The state highway patrol and state attorney general’s office received copies of the order in July 2013 and, the next month, they filed a motion to intervene in the case. They also moved the court to set aside its order and to enter judgment in favor of the state and the highway patrol. The circuit court overruled both motions. The attorney general, highway patrol and state appeal.

The state argues the circuit court misapplied the law in denying the attorney general’s motion to intervene as of right, which he filed promptly after being made aware of the case. The state contends that the attorney general has broad powers under the common law, including significant statutory authority, to represent the state’s interests in court and that no statutes specifically limit his power in this case. The state asserts that section 27.060, RSMo, gives the attorney general the right to appear and defend in any case involving the state’s interests. The state argues Rule 52.12 also authorizes the attorney general to intervene because the statute authorizes him to do so and because he has an interest in the consistent application of laws relating to the sex offender registry. The state contends the circuit court misapplied Rule 52.12(a)(2) in denying the attorney general’s motion to intervene as of right on behalf of the state highway patrol and the state itself. The state asserts that – even if there were no statute or rule giving the attorney general a right to appear and defend – he has an absolute right to do so on behalf of the highway patrol and the state itself under Rule 52.12(a)(2). The state argues the patrol and state have an interest in maintaining the statewide sex offender registry as required by statute, including any requests to be removed from the registry, as it is the only organization that could remove an offender’s name from the registry, as contemplated by the circuit court’s order. The state contends that not being able to intervene will impede the patrol in discharging its responsibilities under state law, which it asserts precludes Dunivan’s petition for removal, and under federal law. The state argues the record does not show that any existing party presented arguments or evidence concerning Dunivan’s independent obligation to register under federal law, leaving the state’s and patrol’s interests not adequately represented. The state contends the circuit court misapplied Missouri law and failed to follow federal law in granting Dunivan’s request for removal from the state’s sex offender registry. The state asserts that Dunivan has an independent obligation to register in Missouri under federal law and, therefore, must register under Missouri law. The state argues that, under federal law, Dunivan is a sex offender because he was convicted of second-degree sexual abuse and because federal law defines a “sex offense” to include criminal sexual conduct toward a minor. The state contends that Dunivan admits in his petition that he was convicted as an adult of a sex offense involving a minor more than four years younger than him.

Dunivan responds that the circuit court did not err in overruling the attorney general’s motion to intervene. Dunivan argues the motion was untimely – not filed for 143 days after he filed his petition and 91 days after the court ordered his removal from the registry – and it was not unreasonable for the court to deny intervention. Dunivan contends he complied with all the statutory notice requirements, which do not require him to notify the attorney general or highway patrol. Dunivan asserts that the state was a party through the prosecutor’s office, which is the notice the statute requires to the state, and that he should not be punished unduly because the prosecutor’s office did not correspond with the attorney general regarding his case. Dunivan responds that the circuit court did not err in overruling the highway patrol’s motion to intervene. He argues that the motion was untimely, that the patrol’s interests were represented adequately by the county prosecutor’s office and that the patrol does not have an interest in the subject of the action. He contends the prosecutor’s office subpoenaed several witnesses, gave the victim the opportunity to attend and be heard if she wished, and represented the state during the May 2013 hearing. Dunivan asserts that, similar to the patrol, the prosecutor has a strong interest in maintaining the statewide sex offender registry as required by state law. Dunivan responds that the state is barred from arguing the circuit court misapplied the law because it failed to raise that point in its brief to the appeals court. He argues that Rule 83.08(b) precludes a substitute brief filed in this Court from altering the basis of any claim raised in the court of appeals brief and that the state did not raise the issue or seek to amend its brief in the appeals court.

SC94641_State_brief.pdf

SC94641_Dunivan_brief.pdf

SC94641_State_reply_brief.pdf

SC94716
State ex rel. Mark A. Richardson v. The Honorable Daniel R. Green
Cole County
Authority to reduce sentence for involuntary manslaughter, assault
Listen to the oral argument:

SC94716.mp3
Richardson, the Cole County prosecutor in Jefferson City represented himself during arguments; Welch was represented by James D. Barding, an attorney in Jefferson City.

Larry Welch drove on the wrong side of the road while intoxicated in November 2007, causing an automobile accident with a family’s vehicle. The mother and son were killed in the crash, and the father and daughter were injured. The state charged Welch with two counts of first-degree involuntary manslaughter and two counts of second-degree assault, and Welch pleaded guilty to all four counts in July 2008. The next month, the circuit court sentenced Welch to a total of 20 years in prison – two concurrent terms of 15 years each for the involuntary manslaughter convictions, to run consecutively to two concurrent terms of five years each for the assault convictions. Welch subsequently sought post-conviction relief, which the circuit court denied, and the appeals court affirmed that judgment. In July 2014, Welch sought to reduce his sentences pursuant to section 558.046, RSMo. At an August 2014 hearing, the state – through the county prosecutor – opposed any reduction in sentence, arguing the statute did not allow for any reduction. In December 2014, the circuit court reduced the sentences for the involuntary manslaughter convictions to two seven-year terms and rescinded the sentences for the assault convictions, suspending imposition of those sentences. Under the court’s order, Welch was due to be released from prison. The county prosecutor sought relief in this Court and now seeks to make permanent this Court’s preliminary writ (order) prohibiting the circuit court from reducing Welch’s sentence.

The prosecutor argues he is entitled to a writ prohibiting the circuit court from reducing Welch’s sentences. He contends the circuit court retains jurisdiction over the sentence only if a defendant can prove if the requirements of section 558.046 are met. The prosecutor asserts Welch does not satisfy those requirements because he was convicted of the serious assaultive offenses of involuntary manslaughter and assault – crimes involving violence or the threat of violence, causing the death of two people and the serious injury of two others. The prosecutor argues it is unreasonable to believe the legislature intended those who have killed or maimed to be eligible for a sentence reduction. He contends, therefore, that the circuit court lacked jurisdiction (authority) to reduce Welch’s sentences.

Welch responds that this Court should not grant a permanent writ of prohibition. He argues the circuit court retained jurisdiction over the sentence and did not abuse its discretion in determining the requirements of section 558.046 were satisfied. Welch contends he was convicted of crimes that did not involve violence or the threat of violence. Welch asserts that neither of his crimes involved the use of purposeful force against a victim, and even if a crime is a felony considered to be a “serious assaultive offense,” it does not necessarily mean the crime involved violence or the threat of violence. Welch responds that the legislature grants the sentencing court discretion to release offenders from lengthy prison terms.

SC94716_Richardson_Brief.pdf

SC94716_Welch_Brief.pdf

SC94716_Richardson_reply_brief.pdf