Case Summary for March 7 and 8, 2001

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Case Summary for March 7 and 8, 2001

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.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

Wednesday, March 7, 2001

SC82897
Robert R. and Signa M. Hermann v. Director of Revenue
Cole County
Corporate income tax

The Hermanns filed federal and Missouri income taxes as a S corporation. Hermann Companies also did business in Arkansas, and the Hermanns filed as a C corporation in Arkansas. The Administrative Hearing Commission determined they were not entitled to tax credit for income taxes paid to Arkansas. They appeal.

The Hermanns argue that section 143.081 grants a tax credit to resident shareholders of S corporations for their distributive share of income taxes that the corporation pays to other states on the shareholders' behalf. Here, Hermann is a resident shareholder of a Missouri S corporation, and the Herman companies filed a composite return and made composite payments in Arkansas on behalf of its shareholders.

The Director of Revenue responds that the Hermanns are not entitled to credits. Although Arkansas permits corporations to use the S corporation election, the Hermanns did not make that election, nor file a composite return or a return on behalf of Mr. Hermann for personal income taxes that would be due from him in Arkansas.

SC83033
In re: Daniel J. Kazanas
St. Louis County
Attorney discipline

Attorney Daniel Kazanas pled guilty to a federal felony of underreporting his income, following diverting client payments to himself rather than the firm in which he was a partner.

The Chief Disciplinary Counsel requests Kazanas be disbarred. Kazanas pled guilty to the federal felony of willfully filing a materially false tax return and has failed to comply with a condition in the plea agreement of surrendering his license. He is guilty of a crime of moral turpitude and has not filed a Rule 5.25 application to voluntarily surrender his license.

Kazanas responds that he should be suspended because there are exculpatory explanations such that his federal law violation does not rise to the level of moral turpitude that mandates disbarment. And, Kazanas strictly adhered to counsel's advice in his law license disciplinary proceedings.

SC83044
State of Missouri v. Freada P. Carroll
Dunklin and Pemiscot Counties
Passing a bad check (6 counts-no account, 3 counts-insufficient funds/over $150), forgery

Freada Carroll opened a bank account but continued to write checks after it had a negative balance. At one point, the bank closed the account but then permitted a deposit. Carroll also cashed a check originally made to someone else. Carroll appeals her convictions of passing bad checks and forgery.

Carroll challenges the sufficiency of the evidence. She argues: (1) The state failed to prove that she intended to defraud when she passed the "no account" checks, had no account, knew she had no account, or knew the checks would not be paid. (2) The state failed to prove she passed the "insufficient funds" checks to her boyfriend, and if she did, that she did so to defraud. (3) As to the forgery, the state merely put on evidence that Carroll deposited an altered check, not that she altered it.

The state counters: (1) There was evidence Carroll passed the checks when she did not have an account and knew the checks would not be paid. (2) The evidence showed Carroll acted in concert with her boyfriend to pass bad checks to a bank. (3) The evidence supported a permissible inference that Carroll altered the check.

SC82402
State of Missouri v. Robert Driscoll
Phelps County
Capital murder; death penalty

Robert Driscoll stabbed to death a correctional officer at the Missouri Training Center for Men in 1983 during a riot. After a federal court reversed his first conviction, on retrial, a jury found Driscoll guilty of capital murder and recommended the death penalty, which the court imposed. He appeals.

Driscoll argues: (1) Evidence and argument of his alleged connection with the Aryan Brotherhood and its violence should have been excluded. He should have also been permitted to waive reading of cross-examination of a state's witness whose testimony from the first trial was read at the second trial. (2) The evidence was insufficient and too unreliable to support the conviction and sentence. The sentence was disproportionate given the strength of the evidence. The evidence failed to show Driscoll deliberated; the jury was not instructed that it could consider Driscoll's intoxication in determining his intent; testimony and evidence from state witnesses conflicted; and one of two other inmates involved was not given the death penalty. (3) The court should have instructed the jury that it could consider voluntary intoxication in intent. (4) Driscoll should have been permitted to question an officer about a chain of custody form for a knife, to help show the knife belonged to another inmate who stabbed the victim. (5) The defense should have been allowed to impeach a state's witness with his prior inconsistent statement describing the knife another inmate used.

(6) The defense should have been permitted to elicit a state witness's testimony that he was told he was a suspect, to show his motive to shift suspicion to Driscoll. (7) The defense should have been permitted to ask potential jurors in voir dire if they ever expressed an opinion on the death penalty. (8) The defense should have been permitted to present a witness to testify as to the poor reputation for truthfulness of a witness who implicated Driscoll. (9) The jury was improperly instructed on mitigating circumstances.

The state responds: (1) The Aryan Brotherhood evidence was relevant to Driscoll's motive and guilt, and rehabilitated an impeached state witness. It was not outcome determinative. Also, waiver of the witness's cross-examination would not have precluded the state from reading the redirect examination with relevant evidence. (2) The jury could infer from the evidence that Driscoll deliberated. The sentence is not excessive or disproportionate to similar cases considering the crime, strength of evidence and defendant. (3) The court did not err in refusing the voluntary intoxication instruction, which submitted the theory that a defendant could be unable to act "purposely" as a result of intoxication. The instruction was wrong in including "purposely," which is not an element of the crime. Regardless, no evidence showed Driscoll was so intoxicated he did not know what he was doing. (4) The chain of custody form was not impeaching evidence. It did not constitute a declaration that another inmate rather than Driscoll wielded the knife. (5) Evidence of a witness's prior inconsistent statement was properly excluded. It was not a "statement," and it was inadmissible as hypnotically refreshed.

(6) Despite the state's objection, a witness answered the defense question of whether the witness was accused of the murder, saying he didn't remember, which was not impeachment. In any event, Driscoll was later permitted to ask the witness whether he had been threatened with prosecution. (7) The question of whether any potential juror had made any statement about the death penalty was open-ended and minimally relevant to whether the person could currently follow the law. (8) Driscoll's offer of proof on a witness's veracity included inadmissible testimony, and Driscoll failed to lay a foundation for reputation testimony. (9) The punishment-phase instruction could not have misled the jury. It was not a verdict director and was not required to list all elements of the sentencing process. The jury was instructed that it was required to find the aggravators outweighed mitigators to return a death sentence.

Thursday, March 8, 2001

SC83068
State ex rel. Director of Revenue v. The Honorable Glenn A. Norton
Ralls County
Driving privileges

Jerry Robinson's driving privilege was permanently denied pursuant to section 302.060 in 1984. In 2000, he requested limited driving privileges pursuant to section 302.309, RSMo (1996), which permitted such privileges if more than ten years elapsed since the last traffic conviction. The court granted such privileges.

The Director of Revenue argues that the court lacks subject matter jurisdiction to grant such privileges because Robinson is statutorily ineligible for such privileges pursuant to section 302.309, RSMo Supp. 1999, the statute in effect at the time of the application for the driving privilege.

Respondent's brief is due March 2, 2001.

SC83086
Dwight B. Wampler v. Director of Revenue
Andrew County
Driving privileges

Dwight Wampler's driving privilege was revoked for one year for points accumulation and denied for ten years pursuant to section 302.060 for multiple DWIs. The circuit court reinstated his driving privileges and ordered his license issued. The director of revenue complied and appeals.

The director argues: (1) The director did not waive his right to appeal by issuing the license. He involuntarily complied to avoid contempt and received no benefit from complying. (2) The director was not obligated to offer certified records or other evidence supporting its action in the circuit court hearing. The court was required to review the certified administrative record filed before the hearing, which supported the director's action. Wampler presented no contrary evidence.

Wampler responds: (1) The director acquiesced in the court's judgment by voluntarily reinstating Wampler's driving privilege. (2) The director was obligated to offer Wampler's driving records into evidence to sustain its burden and failed to do so. (3) Even if the court was required to review the administrative record, the director did not submit sufficient evidence to show Wampler accumulated enough points or had specifically been convicted of DWI more than twice.

SC82582
State of Missouri v. John Kelly Crow
Boone County
Failure to file Mo individual income tax return (2 counts)

John Kelly Crow did not file income taxes for two years. He was convicted of failing to file returns and appeals.

Crow argues: (1) The Department of Revenue denied him notice and an opportunity to be heard regarding whether he was required by section 143.481 to file income tax returns and an estimated liability assessment before referring him for criminal prosecution. He did not believe he was required to file a federal return, and therefore not a state return, in large part because "income" was not defined in the federal law or regulations to include the money he received (as a lawyer practicing mostly estate planning). (2) Crow should have been permitted to call a Department liaison to the IRS to testify that the Department had no information that the IRS required Crow to file a federal return. (3) The court should have allowed Crow's testimony about statutes, regulations, and IRS information that he relied on to form his belief that he was not required to file a federal return. (4) The court should have permitted a witness to testify as an expert on the federal laws. He was qualified by practical experience.

The Director responds: (1) Crow was put on notice that he could face criminal charges. The prosecutor had sole discretion to determine whether to bring such charges regardless of Department actions or omissions. (2) The court rightfully excluded a Department employee's testimony. She could not testify as to Crow's treatment or classification by the IRS. (3) Crow was permitted to offer certain testimony about items on which he based his belief that he was not required to file a federal tax return. He failed to make an offer of proof as to the remainder of excluded testimony. The documents he sought to introduce were hearsay. He failed to show any prejudice from exclusion. (4) The proposed witness was not qualified as an expert on tax laws and their applicability to Crow. He had no special knowledge or experience that would have assisted the jury.

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