Case Summary for March 16, 2010

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Case Summary for March 16, 2010

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. Tuesday, March 16, 2010

_________________________________________________________________

SC90425
State ex rel. Carl Smith v. The Honorable Gary Witt and Sheriff Raymond Pace
Douglas and Wright counties
First amendment and contempt of court
Listen to the oral argument:

Smith was represented during argument by Bruce H. Galloway of Ozark, and the state was represented by Timothy W. Anderson of the attorney general's office in Jefferson City.

Carl Smith is an attorney who represented a client being prosecuted in March 2008. Smith moved to quash a subpoena from the grand jury for his secretary’s notary records relating to his client and moved for a continuance. Smith argued the subpoena was improper. He alleged that some of the handwriting on the subpoena was the prosecutor’s father (another attorney) and that the calling of the grand jury was in retribution for his client’s motion to disqualify the prosecuting attorney in the criminal case against the client. The motion to quash and motion for a continuance were both overruled. In April 2008, Smith sought a writ of prohibition challenging the trial court’s decision to overrule his motions. In the writ, Smith made allegations against the Douglas County prosecuting attorney, the circuit judge, the attorney general’s office, and other attorneys practicing in the 44th Judicial Circuit. He alleged personal interest, bias and criminal conduct of the judge, attorneys and members of the judicial system. The trial judge directed Smith to show cause why he should not be held in contempt for the statements about the judges and prosecuting attorneys he included in the writ of prohibition. Ultimately, the trial court sentenced him to 120 days in the county jail. He seeks habeas corpus relief (to be released from jail).

Smith’s argument

Smith argues he is entitled to an order discharging him from a conviction for criminal contempt. He contends the statements in his petition for writ of prohibition are protected by the first amendment. Smith asserts while he may have criticized a judge in his pleadings, he was using the judicial processes to allege an abuse of process by the grand jury over which an elected judge presided. He argues the content of the pleadings did not impact the grand jury process or the judge’s rulings and, therefore, there was no clear and present danger that posed an immediate threat to the administration of justice.

Smith asserts statutory contempt or common law contempt are overbroad and violate the free speech clause of the first amendment. He contends a more narrowly tailored means of sanction, such as attorney disciplinary action or judicially imposed withdrawal, would have adequately protected any compelling government interest.

Smith asserts his conviction violated his right to proceed pro se by imposing criminal sanction for his speech occurring in the course of an attorney representing himself. He argues the prosecution for criminal contempt violated his right to procedural due process because the state failed to file an information or indictment, failed to support the charging document by a statement of probable cause and failed to file a petition or pleading alleging criminal contempt; and no court or state agency served him with formal process, summons or warrant.

Smith argues that on the date of his arraignment for criminal contempt, the judge who was hearing his criminal contempt case had lunch with the judge who issued the show cause order, which would lead a reasonable person to question the trial judge’s impartiality. He further contends the judge for his criminal contempt case was required to recuse pursuant to Rule 2.03, canon 3E(1) because that judge also presided over Smith’s client’s perjury trial that implicated Smith in criminal conduct.

Smith asserts conviction for contempt arises out of a law that no longer exists because the legislature eliminated common law contempt as a crime. He argues the trial court lacked subject matter jurisdiction because criminal contempt is limited to a criminal case, and this was a civil case. Smith contends the trial court erred at trial in approving the state’s proposed verdict director because the state’s instruction failed to require findings of the essential elements of contempt. He asserts the evidence was insufficient to support the charge.

The state’s response

The state responds case law supports greater infringement on an attorney’s free speech in the interest of the administration of justice by a fair and impartial judiciary. It contends Smith made public allegations against the judge’s character in a public filing in an effort to affect a grand jury proceeding. The state argues Missouri’s rules and statute on criminal contempt are not overbroad and Smith did not show they were “substantially” overbroad in text or application. The state further responds the 120 days jail sentence was not vindictive and is provided for by the law. It contends Smith does not have a right to make statements in his own defense that he would not make in defense of a client. The state asserts Smith was provided all the required procedural due process and he was properly prosecuted pursuant to Rule 36.01(b). It argues the trial judge was not obligated to disqualify himself and one charged with criminal contempt does not have the right for a change of judge and, even if Smith did, Smith had the burden to prove the judge was unable to fairly preside over the matter. The state further responds “common law criminal contempt” pursuant to Rule 36.01 has not been eliminated or suspended. It asserts the Missouri criminal contempt statute and rule are not limited in application to criminal cases and criminal contempt can be had against any attorney or litigant, in civil or criminal matters. The state contends its verdict director appropriately tracked the allegations against Smith and the law in Missouri and there was sufficient evidence to show Smith committed indirect criminal contempt.

The ACLU argues, as a friend of the Court, that the trial court erred in failing to apply the proper first amendment standards to Smith’s advocacy on behalf of his client. It contends the trial court erred by imposing a punishment in this case that was excessive and an abuse of discretion.

The Missouri Association of Criminal Defense Lawyers argues, as a friend of the Court, that the trial court erred in allowing the prosecution of, upholding the conviction of and jailing Smith on criminal contempt. It contends Smith’s speech was not the type of speech sought to be prevented by Missouri’s criminal contempt statute, in that his speech did not directly threaten the administration of justice by the charging court.

SC90511
Robert D. Cain, et al. v. Sherri Porter
Jackson County
Bankruptcy proceedings and liability
Listen to the oral argument:

Porter was represented during argument by John R. Weist of Long, Luder & Gordan, P.A. in Overland Park, Kansas; and the Cains were represented by James H. Thompson Jr. of The Thompson Law Office, LLC, in Kansas City, Missouri.

In November 2000, Sherri Porter was in a motor vehicle accident in which Robert and Elizabeth Cain were injured. In March 2004, Porter filed for Chapter 13 bankruptcy protection. In May 2004, the bankruptcy court entered an order confirming Porter’s bankruptcy plan. In August 2005, the Cains sued Porter for personal injuries they sustained in the November 2000 motor vehicle accident. Porter amended the creditors in her bankruptcy proceeding to include the Cains. Porter and the Cains’s attorneys discussed a procedure for lifting the stay on Porter’s bankruptcy proceeding to pursue insurance coverage, but nothing was filed in the bankruptcy proceeding. In September 2006, the Cains appeared on their court date for their personal injuries lawsuit. Porter did not appear, and the trial court granted the Cains default judgment, awarding them more than $210,000. Porter moved to set aside the judgment arguing the trial court’s action violated the automatic stay of section 362(a) of the bankruptcy code. The trial court overruled Porter’s motion. Porter moved to reconsider and argued that the trial court’s judgment was void because it violated the automatic bankruptcy stay and that the Cains continued litigation violated the bankruptcy stay as they were notified of Porter’s bankruptcy action. In March 2007, the trial court overruled Porter’s motion to reconsider. Porter moved for relief pursuant to Rule 74.06(b)(4) again arguing the trial court’s judgment was void because it was entered in violation of the automatic stay in bankruptcy. In January 2008, the trial court overruled Porter’s motion to set aside the September 2006 judgment as void because she raised the same issues in an earlier motion for reconsideration or res judicata (the issue has already been litigated and decided). The trial court also held Porter waived her right to rely on the bankruptcy stay. Porter appeals.

Porter argues the trial court’s September 2006 entry of judgment is void ab initio (treated as invalid from the beginning) because the underlying judgment violated the automatic bankruptcy stay of 11 U.S.C. section 362(a) and must be set aside. She asserts the trial court erred in dismissing her motion for res judicata because res judicata is not possible when the original judgment was invalid.

The Cains respond the trial court’s overruling Porter’s Rule 74.06 motion for relief must be affirmed because the trial court judgment did not violate the bankruptcy proceeding’s automatic stay and was, therefore, not void ab initio. They contend that even if there was a violation, the trial court’s denial must be affirmed because judgments obtained in violation of the automatic stay are voidable, not void ab initio. The Cains assert the trial court’s decision denying Porter’s Rule 74.06 motion for relief must be affirmed because the doctrine of collateral estoppel (prevents a person from relitigating an issue) bars Porter from raising the issue of subject matter jurisdiction.

SC90536
Peoples Bank v. Stephen M. Frazee and Jennifer Frazee, and H.L. Frazee
Wright County
Personal jurisdiction in guaranty case
Listen to the oral argument:

The bank was represented during argument by Michael J. King of Winters & King, Inc., in Tulsa, Oklahoma; and Father was represented by Richard L. Schnake of Springfield, Missouri.

Husband and Wife live in Tulsa, Oklahoma. They took out a loan from Peoples Bank in Tulsa. Husband’s father lives in Wright County, Missouri. In April 2006, Husband and Wife were delinquent on their loan from the bank. Father agreed to sign a guaranty of Husband’s loan. The bank mailed a guaranty form to Father in Missouri, which Father signed and mailed back to the bank in Oklahoma. Husband and Wife again defaulted on their loan and, in May 2007, the bank sued Husband, Wife and Father in Oklahoma trial court. None of the three took any action, and the Oklahoma court entered default judgment for the bank against them for more than $73,600 plus interest. In January 2008, the bank filed its judgment from Oklahoma in Wright County against Father. Father moved to quash the foreign judgment arguing it was void in that he did not have sufficient contact with Oklahoma to support personal jurisdiction. The trial court quashed the judgment after it determined the Oklahoma court did not have personal jurisdiction and that it was the bank’s burden to prove jurisdiction over Father. The bank appeals.

The bank argues the trial court erred in sustaining the motion to quash registration of a foreign judgment. It contends that Father did not overcome the presumption that personal jurisdiction existed and that Father had sufficient minimum contacts with Oklahoma for the court to have personal jurisdiction over him.

Father responds he did not have sufficient minimum contacts with Oklahoma to support its exercise of long-arm jurisdiction over him, so the Missouri trial court properly quashed the attempted registration of the Oklahoma judgment.

SC89833
State of Missouri v. Brian Joseph Dorsey
Boone County
Boone and Callaway counties
Death penalty
Listen to the oral argument:

Dorsey was represented during argument by Janet M. Thompson of the public defender's office in Columbia, and the state was represented by Shaun J. Mackelprang of the attorney general's office in Jefferson City.

Brian Dorsey killed his cousin and her husband in December 2006 while intoxicated. He allegedly also raped his cousin after the murders. Dorsey turned himself in and pleaded guilty to two counts of first-degree murder. A jury recommended the death penalty on each count finding statutory aggravators in the first count and second count. In December 2008, the trial court imposed sentence consistent with the recommendation. Dorsey appeals.

Dorsey’s arguments

Dorsey argues his sentences are disproportionate. He contends this Court should reduce his sentences to life in prison pursuant to a proportionality review under section 565.035, RSMo. Dorsey asserts Missouri’s death penalty denies due process, fundamental fairness, and freedom from cruel and unusual punishment. He contends the evidence was insufficient to support one of the statutory aggravators submitted on count II and the state submitted duplicative statutory aggravators on both counts. Dorsey argues the state’s photograph evidence submitted in the penalty phase of his trial and the prosecutor’s closing arguments were used to create prejudice and his sentences were imposed because of passion, prejudice and other arbitrary factors. He asserts a review of similar cases involving the killing of two people when the defendant was highly intoxicated would show a life sentence was appropriate and the death sentence was excessive and disproportionate.

Dorsey further argues the trial court erred in submitting instruction 10 to the jury and then accepting the jury’s death verdict on both counts. He asserts the instruction told the jury to consider the evidence as to both counts and allowed the jury to sentence Dorsey to death on each count based on evidence applicable on the other count.

Dorsey contends the trial court should have declared a mistrial sua sponte (without Dorsey needing to object and move for a mistrial) when the prosecutor engaged in improper arguments during voir dire (questioning the jury) and closing arguments.

He argues the trial court erred in submitting instruction 8 because the state did not present evidence that a sexual assault occurred before his cousin’s death, and the state conceded that no such evidence existed. He contends the statutory aggravator that the murder was committed while he was committing rape was invalid, was improperly considered by the jury and skewed the balance toward death.

Dorsey asserts the trial court improperly overruled his motions objecting to Missouri’s statutory death penalty scheme and Missouri’s death penalty instructions because the state failed to give notice of all evidence of unconvicted crimes it intended to introduce and did not disclose evidence relating to victim impact statements. He contends the trial court erred in submitting jury instructions that admitted evidence of non-statutory aggravating circumstances, and then accepting the jury’s verdicts. Dorsey argues the jury instructions improperly placed the burden of proof on him and should have required the state to prove an eligibility step beyond a reasonable doubt.

The state’s arguments

The state responds that Dorsey’s sentences are not disproportionate. It contends the trial court erred in not giving two separate instructions, but the error did not result in manifest injustice. The state asserts there was sufficient evidence to support the statutory aggravator that Dorsey murdered his cousin while committing rape. The state asserts Dorsey did not object to any of the prosecutor’s comments, the prosecutor did not misstate the law and correctly informed the potential jurors what they would be asked to do, and the closing arguments were not improper and did not mislead the jury to believe they could ignore the instructions. The state contends this Court has previously held identical arguments were proper. It further argues the trial court did not abuse its discretion in admitting the state’s exhibits of the photographs because the photographs of the crime scene were relevant and not unfairly prejudicial. The state contends the jury instructions accurately instructed the jury and the statutory aggravating circumstances contained in those instructions were not duplicative, and each aggravator served its purpose of legitimately narrowing the class of persons eligible for the death penalty. In addition, the state asserts, the aggravators were supported by sufficient evidence.