Case Summary for December 1, 2010

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Case Summary for December 1, 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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The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9:30 a.m. Wednesday, Dec. 1, 2010

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SC90996
In re the Marriage of Tanya L. Lindhorst and Eric J. Lindhorst; Tanya L. Lindhorst, n/k/a Tanya L. Templeton v. Eric J. Lindhorst
St. Louis County
Challenge to modification of maintenance and child support

This case was moved Nov. 30, 2010, to the Jan. 12, 2011, docket.

SC91012
Eric Webb v. State of Missouri
Franklin County
Ineffective assistance of counsel
Listen to the oral argument:

Webb was represented during arguments by Ellen H. Flottman of the public defender's office in Columbia, and the state was represented by John W. Grantham of the attorney general's office in Jefferson City.

In June 2008, Eric Webb pleaded guilty to first-degree involuntary manslaughter and one count of armed criminal action for driving while intoxicated and colliding with another vehicle, killing its occupant. In exchange, the prosecutor agreed to dismiss one count of failure to drive on the right half of the roadway and to recommend that Webb be sentenced to two concurrent 10-year sentences. The circuit court found Webb’s pleas were voluntary, knowing and intelligent; however, the court deferred accepting Webb’s pleas and ordered a sentencing assessment report (SAR). After the SAR was completed and filed, the circuit court informed Webb that it intended to reject the plea agreement because of the sentencing recommendation in the SAR. The court informed Webb that if he persisted in pleading guilty, it would sentence him to 12 years on each count to run concurrently with one another. Webb pleaded guilty and was sentenced as the court had indicated. Webb subsequently sought post-conviction relief alleging his guilty plea was involuntary and unknowing because he was denied the right to effective assistance of counsel. The circuit court overruled Webb’s motion without an evidentiary hearing. Webb appeals.

Webb argues the circuit court erred in denying his motion without an evidentiary hearing because he pleaded factual allegations that, if proved, warrant relief. Webb contends counsel misadvised him as to the effect of his guilty plea on his parole eligibility because counsel informed him that he would be required to serve only 40 percent of his sentence before becoming eligible for parole. Webb asserts he later learned, however, that he would have to serve 85 percent of his sentence before becoming eligible for parole. Webb argues this ineffective assistance from his counsel renders his plea involuntary because, without counsel’s misadvice, Webb would have gone to trial.

The state responds that the circuit court did not clearly err in overruling Webb’s post-conviction motion without an evidentiary hearing. It argues the record refutes Webb’s allegation that he was promised he would need to serve only 40 percent of his sentence before becoming eligible for parole. The state contends the circuit court’s finding is supported by Webb’s testimony at the plea hearing, when Webb said the state had not promised him anything in addition to the prosecutor’s recommendation; further, the SAR informed Webb that he would have to serve “far in excess” of 40 percent of his sentence. The state asserts the issue of whether counsel is ineffective for failing to advise Webb about parole eligibility is not properly before this Court because Webb’s request is either an assertion of a new basis for relief or an issue that is not presented by the facts of the case. Finally, the state argues, in any event, Webb’s guilty plea is not rendered involuntary by his counsel’s failure to inform him about parole eligibility.

SC90963
Utility Service Co., Inc. v. The Department of Labor and Industrial Relations, and the Labor and Industrial Relations Commission of Missouri
Cole County
Applicability of statutory exemption
Listen to the oral argument:

The department of labor and industrial relations, and the labor and industrial relations commission of Missouri were represented during arguments by Deputy Solicitor General Jeremiah J. Morgan of the attorney general's office in Jefferson City, and Utility Service was represented by Charles W. Hatfield of Stinson Morrison Hecker in Jefferson City.

Utility Service Co. Inc. entered into a “water tank maintenance contract” with Monroe City. The contract provides that professional services are needed to maintain and care for the city’s 250,000-gallon elevated water-storage tower and tank. In August 2007, Utility Service sought a declaration against the state’s labor and industrial relations department and commission (the state) that work done under the contract is purely “maintenance work” and, therefore, that it falls under an exception to Missouri’s prevailing wage act. In February 2009, the trial court granted summary judgment in favor of Utility Service. The state appeals.

The state argues the trial court erred in granting summary judgment in favor of Utility Service. The state contends the trial court erroneously interpreted the act. It asserts that the parties’ contract is not subject to the act’s narrow “maintenance work” exception, which applies only to limited repair work. The state argues that even if the exception does apply, the work in this case does not meet the definition of “maintenance work” because the work described in the contract changes “the size, type or extent” of an existing facility or involves the “replacement” of “existing facilities.” The state, therefore, contends the trial court erred in concluding that the work described by the contract is “maintenance” work. It asserts the court incorrectly defined “facilities” in terms of the entire structure instead of by the water tower’s component parts.

Utility Service responds that the trial court did not err in granting it summary judgment. It argues the work under the contract was “maintenance work” that did not change “the size, type, or extent” of an existing facility. Utility Service contends the trial court did not err in granting summary judgment because “maintenance” work cannot alter an “existing facility” and the ordinary meaning of “facility” means the entire water tower and tank. Utility Service argues the work called for by the contract did not alter the “existing facility,” and, therefore, is maintenance work, not construction work.

Parties making arguments – as friends of the Court – in favor of the state

The Missouri State Building and Construction Trades Council, AFL-CIO argues the trial court erred in granting summary judgment to Utility Services because the act includes “painting” in the definition of construction. The council contends that the act broadly covers “construction” and that its references to “maintenance” and “repair” work should be given only the narrowest reading. The council asserts the trial court erred by transforming a narrow question between two parties into a broad application of the act that would affect all future parties proceeding under the act.

Parties making arguments – as friends of the Court – in favor of Utility Services

The Missouri Association of School Administrators argues the trial court did not err in granting summary judgment because the contract called for maintenance work, which is not subject to payment of prevailing wage rates under the act. The association also seeks this Court’s clarification of the terms “construction” and “maintenance.”

The Missouri Municipal League argues the trial court properly concluded that the facilities in this case were the water tower and tank and not the individual components. The league contends the trial court properly concluded the work called for in the contract was maintenance work exempt from the act’s prevailing wage requirements. The league asserts if this Court holds that the work contemplated by the contract is construction work, it will lead to an adverse impact on cities throughout the state.

The Missouri School Boards’ Association argues there was no error in affirming Utility Service’s motion for summary judgment because the work contemplated by the contract was “maintenance” work exempt from prevailing wage requirements under the act. The association contends that the act never was intended to increase the costs of maintaining facilities and that it goes against public policy if “necessary and regular” repairs are considered construction.

SC90618
State of Missouri v. Gregory Bowman
St. Louis County
Direct appeal in death penalty case
Listen to the oral argument:

Bowman was represented during arguments by Stephen B. Evans of the Evans Partnership in St. Louis, and the state was represented by Terrence M. Messonnier of the attorney general's office in Jefferson City.

In June 1977, the body of a young woman was discovered in St. Louis County. The cause of death was determined to be strangulation. It also was determined the victim had engaged in sexual activity just before her death, and DNA samples were taken. In 2006, the St. Louis County police crime laboratory received an evidence box related to the case. Testing of clothes found inside the box revealed DNA. Using this new evidence, the laboratory was able to develop a partial DNA profile. The DNA profile matched a DNA profile released by the Illinois state police crime lab that belonged to Gregory Bowman. An officer then took a current DNA sample from Bowman, which was compared with the DNA profile. Bowman was tried for and convicted of first-degree murder and was sentenced to death. Bowman appeals.

Bowman argues the trial court erred in denying his motion to suppress the admission of his DNA profile because he did not consent to Illinois’ release of his profile, which was limited to use in a separate homicide investigation. Bowman contends the release of his DNA profile by the Illinois state police crime lab violated the Illinois genetic privacy act, which prohibits disclosure of genetic information to anyone outside of the criminal investigation or prosecution for which the genetic information was obtained. Bowman asserts that the trial court abused its discretion in refusing to allow the defense to present evidence that there was another viable suspect during the initial homicide investigation and that this error violated Bowman’s due process rights. Bowman argues the trial court erred in allowing testimony about DNA evidence recovered from the scene of the crime because the state could not provide “reasonable assurances” that the evidence was in the same condition as it was in the past. Bowman contends the trial court should have allowed him to present evidence showing problems with the preservation of evidence in this case. Bowman asserts the trial court erred in overruling his motion to preclude the current medical examiner from testifying that she believed the victim had been sexually assaulted. Bowman further agues the trial court erred in denying his motion for judgment of acquittal because there was insufficient evidence to support a first-degree murder conviction. Bowman contends the trial court erred in overruling his motion to preclude the death penalty because it was disproportionate as compared with similar crimes. Bowman asserts the trial court erred in allowing the state to present victim impact testimony or, in the alternative, limit the testimony during the penalty phase of the trial because it prejudiced him.

The state responds that the trial court properly overruled Bowman’s motion to suppress DNA evidence because Bowman failed to plead sufficient facts to demonstrate his DNA profile was obtained unlawfully and because his DNA profile, which was obtained by Illinois police, was provided to Missouri police pursuant to a court order. The state argues the trial court did not abuse its discretion in excluding evidence that there was another suspect during the initial homicide investigation because the evidence did not demonstrate that the prior suspect killed the victim. The state contends the trial court did not err in permitting testimony regarding DNA testing because any claim of an “inadequate chain of custody” has been waived and because the chain of custody was adequate. The state asserts the trial court did not abuse its discretion or err in excluding cross-examination regarding problems with preservation of evidence because such testimony would have been hearsay and cumulative. The state responds that the trial court did not abuse its discretion in admitting the current medical examiner’s conclusion that the victim had been sexually assaulted. The state argues there was sufficient evidence that Bowman committed the murder. The state contends the trial court did not err in admitting evidence of Bowman’s prior crimes during the penalty phase and, to the extent the there existed victim impact testimony, it was not excessive. The state further asserts that Bowman failed to raise a cognizable (recognizable) objection to the state’s evidence of aggravating factors during the penalty phase.