Case Summary for March 1, 2006

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Case Summary for March 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, March 1, 2006

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SC87206
James Hensel and Lori Hensel v. American Air Network, Inc., et al.
St. Louis County
Statute of limitations in case filed by out-of-state attorney

In August 2002, Florida resident James Hensel was co-piloting an airplane that crashed at a Kentucky airport. Hensel was injured in the crash. In September 2003, Kentucky attorney Liz Shepherd filed a Missouri lawsuit against a number of defendants on behalf of Hensel and his wife seeking damages for personal injuries and loss of consortium along with her motion for admission to practice law in the case as an out-of-state attorney. The circuit court did not accept her motion. Missouri attorney Spencer Farris filed the lawsuit on Shepherd's behalf. In October 2003, Farris entered his appearance in the case and Shepherd filed a certified motion for admission to practice. Shepherd was admitted to practice in November 2003. The defendants moved for summary judgment, asserting the applicable one-year statute of limitations. In August 2004, the Hensels filed their responses to the motions and moved for leave to amend their petition by interlineation. In November 2004, the circuit court granted summary judgment in favor of Thunder Aviation and American Air. The next month, the circuit court overruled the Hensels' motion for reconsideration. They appeal.

The Hensels argue the circuit court erred in granting summary judgment to the defendants based on the statute of limitations and Rule 9.03. They contend their petition was filed in a timely manner. They assert that August 30, 2003, the one-year anniversary of the plane crash, fell on a Saturday. The following Monday was Labor Day, so Shepherd filed their lawsuit on Tuesday, September 2, 2003. The Hensels argue that any failure to comply with Rule 9.03, which governs certain limited practice in Missouri by out-of-state attorneys, was cured or curable because they sought leave to amend to add Farris' signature to the petition. They contend the court abused its discretion in effectively denying their motion for leave to amend the petition by interlineation. They assert Rule 55.03(a) allows a party to correct the omission of a signature on a pleading. They argue no new matters were being added to the petition, they sought leave to amend promptly, and the defendants would suffer no prejudice or injustice by the amendment. The Hensels contend the defendants waived the affirmative defense of the statute of limitations because the defendants failed to specify the statute of limitations on which they relied as required by Rule 55.08.

American Air responds that the circuit court properly granted it summary judgment based on the expiration of the applicable Kentucky statute of limitations and Rules 9.03 and 55.03. It contends that the formal filing of the petition was not timely and that the Hensels' failure to comply with Rule 9.03 was not cured or curable. American Air asserts that the circuit court did not abuse its discretion in not granting the Hensels' motion for leave to amend by interlineation. It responds that the Hensels' failure to comply with Rules 9.03 and 55.03 were not curable by untimely adding an omitted required signature for the requested relief to relate back to the original lodging of the petition on September 2, 2003, because the petition was not formally and officially filed at that time. American Air argues it did not waive the statute of limitations affirmative defense. It contends it pleaded the applicable statute of limitations as a defense in its answers and specified the particular statute of limitations on which it relied.

Thunder Aviation responds that the circuit court did not err in granting summary judgment based on the statute of limitations. It argues this case is governed by the applicable Kentucky statute of limitations. It contends that, although the petition appeared to have been filed within the statute of limitations, it was not a proper filing because it was not signed in the name of an attorney licensed to practice in Missouri, was not signed by the Hensels acting pro se and was not accompanied by a proper motion for admission to practice pro hac vice. Thunder Aviation asserts that the circuit court did not abuse its discretion by not granting the Hensels' motion for leave to amend their petition by interlineation to allow their Missouri attorney to sign the pleadings because the court lacked authority to do so. It responds that, because the petition filed September 2, 2003, violated Rule 9.03, it was deemed a nullity. It argues, therefore, that there is no viable pleading filed before the statute of limitations expired that can be amended. Thunder Aviation contends it did not waive the statute of limitations defense because it pleaded the defense in its answers and in its summary judgment motion and suggestions.

SC87246
State of Missouri ex rel. Sandra Kemper v. The Honorable David Lee Vincent
St. Louis County
Challenge to grant of mistrial

In November 2001, a fire at Sandra Kemper's home killed her son, while she and four other residents survived. During a lengthy interrogation, officers told Kemper she had failed a polygraph test; in fact, she had not. At the conclusion of the interrogation, Kemper purportedly told two police detectives that she had started the fire. In March 2002, the state charged Kemper with first-degree murder, first-degree arson and three counts of first-degree assault. Testimony about the polygraph test was admitted during the September 2005 jury trial. The next day, the trial court told the parties it had realized that no information about polygraph tests may be admitted in front of a jury. It then declared a mistrial because the jury impermissibly had heard the results of the polygraph test. Kemper subsequently moved to dismiss the criminal case against her for lack of subject matter jurisdiction. In October 2005, the court overruled her motion. She now seeks a writ of prohibition from this Court.

Kemper argues the circuit court erred in granting a mistrial, on its own motion, and then in overruling, about three weeks later, her motion to dismiss for lack of subject matter jurisdiction. She contends this placed her in double jeopardy in violation of the federal and state constitutions. She asserts that no circumstances existed that made it manifestly necessary for the court to grant a mistrial. Kemper argues that neither the state nor she engaged in any activities during the trial that justified or created the need for a mistrial.

The state responds that Kemper is not entitled to an order prohibiting the circuit court from taking any action other than to vacate its October 2005 order. It argues the court did not err in granting the mistrial on its own motion because Kemper presented inadmissible evidence of polygraph test results. It contends the court determined that this evidence before the jury was so prejudicial and impressive that an admonishment or instructions to the jury to disregard it could not remove its improper influence. The state asserts that this created a manifest necessity warranting a mistrial and that, under this circumstance, double jeopardy dos not bar the state from retrying Kemper.

SC86857
State of Missouri v. Vincent McFadden
St. Louis County
Direct appeal of murder conviction and death sentence

In July 2002, Vincent McFadden and a second man encountered Todd Franklin and a fourth man in Pine Lawn in St. Louis County. An altercation ensued. The second man shot Franklin, and McFadden shot him as well. Franklin died at the scene from the gunshot wounds. The police interviewed the second man, who implicated McFadden. Police arrested McFadden in May 2003. The state charged McFadden as a prior offender with first-degree murder and armed criminal action. Following a March 2005 trial, the jury found McFadden guilty as charged, found the existence of five statutory aggravating factors and recommended the death penalty. In April 2005, the circuit court sentenced McFadden to death for the murder conviction and to life in prison for the armed criminal action. McFadden appeals.

McFadden argues, based on Batson v. Kentucky, 476 U.S. 79 (1986), that the trial court clearly erred in overruling his objections to the state's use of peremptory strikes to remove certain black individuals from the jury pool. He contends the state's reasons for striking these individuals were pretextual. He asserts that the state failed to strike similarly situated white jurors and failed to strike white jurors who, logically, seemed less favorable for the state than the black individuals who were removed. He also asserts the state engaged in disparate questioning of potential jurors based on their race, failed to question about the purported area of concern, and adopted justifications that were not logically relevant to the case or that were not supported by the record. McFadden argues the court clearly abused its discretion in excluding evidence of the nature of the charges that had been pending against a witness against him. He contends the witness opened the door to evidence directly relating to his credibility as a crucial state witness. He asserts the jury was entitled to consider the information about the charges in assessing the witness' credibility and bias. McFadden argues the court abused its discretion in admitting evidence and in permitting the state to argue, during the guilt phase, that he was a member of a criminal street gang. He contends this evidence constituted inadmissible evidence of uncharged crimes or bad character that served only to show the jury that he was a bad person who would commit the charged crimes. McFadden asserts the court abused its discretion in overruling his objections to certain segments of the state's guilt and penalty phase closing arguments and in failing to intercede, on its own motion, to other portions of argument. He argues the state's repeated, improper and excessive comments prejudiced him and resulted in manifest injustice. McFadden contends the court abused its discretion in striking for cause a potential juror who first said she would want the state to prove guilt beyond any doubt before she could impose death but who later explained she would abide by the reasonable doubt standard as instructed by the court. He asserts these views would not substantially impair her in performing her duties as a juror. McFadden argues the court erred in admitting evidence of various unadjudicated crimes during the penalty phase. He contends the state improperly inundated the jury with details of its allegations that he murdered the sister of his girlfriend while his girlfriend watched, that he later threatened his girlfriend, and that he was dealing crack. He asserts this evidence created an unacceptable risk of swaying the jury to impose death rather than life without parole. McFadden argues the court should not have admitted into evidence the purported recording of a telephone conversation between McFadden, his girlfriend and a third person. He contends the state failed to lay a proper foundation for the recording and its transcript; to establish its authenticity, completeness and correctness; and to give proper identification of the speakers. He asserts the recording contained impermissible hearsay. McFadden argues the court erred in sentencing him to death because the state did not plead in the indictment the facts the jury would have to find beyond a reasonable doubt before he could be sentenced to death. He contends the court failed to instruct the jury that, to find the "serious assaultive criminal conviction" aggravator, it had to find beyond a reasonable doubt that the crime was both serious and assaultive. McFadden asserts that the court should not have accepted the jury's recommendation of death or, alternatively, that the court failed to inquire into whether the jury made the requisite finding. He argues that although the jurors purported to find the "depravity of mind" aggravator, they failed to make the proper factual finding allowing it to do so and should not have considered it in determining what sentence to recommend.

The state responds that the court properly denied McFadden's Batson challenges because he did not prove the prosecutor's race-neutral explanations were a pretext to hide purposeful discrimination. It argues the prosecutors were not engaged in purposeful discrimination. The state contends this Court should decline to review McFadden's second point about the prior criminal acts of a state witness. It asserts the trial court never made the ruling that McFadden attributes to it. It responds that the claim lacks merit and cannot be reviewed because McFadden did not make an offer of proof or otherwise show that he could present any relevant evidence to impeach the witness' testimony. The state argues the court did not plainly err in admitting certain evidence about McFadden's alleged gang involvement. It contends the evidence was admissible to prove McFadden's motive and identity and to explain why a state's witness had changed his story and was adamant in refusing to testify. The state asserts the court did not plainly err in any of the claims McFadden raises about the guilt and penalty phase closing arguments. The state responds that because the potential juror could not consider the full range of punishment after a finding of guilt beyond a reasonable doubt, the trial court did not abuse its discretion in striking her for cause. It argues her views prevented or substantially impaired her ability to fulfill her duties. The state contends the court properly admitted evidence of McFadden's unadjudicated crimes during the penalty phase because it was relevant to the jury's determination of an appropriate sentence. The state asserts that the court properly instructed the jury about how to consider aggravating and mitigating evidence. The state responds that the court did not abuse its discretion in admitting evidence during the penalty phase of a taped conversation between McFadden and his girlfriend. It argues it laid a proper foundation for the tape's admission, and the statements it contained were not hearsay. The state contends it was not required to plead aggravating circumstances in the indictment. It asserts that the court properly instructed the jury as to the "serious assaultive conviction" aggravators and that it properly imposed a death sentence. The state responds that because the jury made the requisite factual findings in finding the "depravity of mind" aggravator beyond a reasonable doubt, the court did not plainly err in accepting the jury's verdict or in failing to conduct and inquiry to determine whether the jury made the requisite finding.