Case summaries for Jan. 7 - Jan. 13, 2022

Constitutional | Criminal | Elections | Evidence | Personal Injury | Post-Conviction | Real Estate

Constitutional 

Appearance by Video Violated Confrontation Clause         
Confrontation Clauses protect the right of an accused, including a juvenile, to confront State’s witnesses face-to-face. Orders of the Supreme Court and circuit court, addressing procedure during COVID-19 pandemic, barred in-person appearances only as otherwise allowed by law. Those provisions require “witness-specific findings” on “an enhanced risk associated with COVID-19 [,]” to restrict the appearance of appellant to remote means. In appellant juvenile’s adjudication hearing, the circuit court made no such findings as to danger, and the risk of transmitting COVID-19 from the juvenile detention facility was not so great as to bar appellant’s trial counsel, after a visit to that facility, from a personal appearance in “the courtroom with the circuit judge, the circuit judge's staff, [appellant]'s parents, the juvenile officer, a deputy juvenile officer, a victim services representative, and all the witnesses.” “Properly preserved confrontation clause violations are presumed prejudicial.” Judgment vacated and remanded.         
In the Interest of: J.A.T., Appellant, vs. Jackson County Juvenile Office, Respondent.         
(Overview Summary)       
Supreme Court of Missouri - SC99251       

Appearance by Video Violated Confrontation Clause         
Confrontation Clauses protect the right of an accused, including a juvenile, to confront State’s witnesses face-to-face. Statute allows child witness to appear remotely when the witness is unavailable and subject to cross-examination. Orders of the Supreme Court and circuit court, addressing procedure during COVID-19 pandemic, barred in-person appearances only as otherwise allowed by law. Those provisions require “witness-specific findings” on trauma, or on “an enhanced risk associated with COVID-19 [,]” to support the remote appearance of State witnesses. In appellant juvenile’s adjudication hearing, the circuit court made no such findings as to trauma or danger, and COVID-19 conditions generally were not so dangerous as to keep “the circuit judge, the judge's staff, [appellant], and [appellant]’s attorney” from appearing in person. “Properly preserved confrontation clause violations are presumed prejudicial.” Judgment vacated and remanded.         
In the Interest of: C.A.R.A., Appellant, vs. Jackson County Juvenile Office, Respondent.         
(Overview Summary)       
Supreme Court of Missouri - SC99231       

Appearance by Video Violated Confrontation Clause         
Confrontation Clauses protect the right of an accused to confront State’s witnesses face-to-face. Statute, allowing child witness to appear remotely when the witness is unavailable and subject to cross-examination, did not apply. In appellant’s criminal trial, the circuit court made no findings as to the availability of a witness testifying remotely. Prejudice resulted, because that witness sponsored the only physical evidence of guilt, and the complaining witness had recanted. “Properly preserved confrontation clause violations are presumed prejudicial.” Judgment vacated and remanded.         
State of Missouri, Respondent, vs. Rodney A. Smith, Appellant.         
(Overview Summary)       
Supreme Court of Missouri - SC99086       

Google Storage Violated FERPA Policies         
Family Educational Rights and Privacy Act, federal regulations, and school board policies protect confidential student information from disclosure. Disclosure means any access by anyone other than the record’s creator, or certain persons with a legitimate educational purpose. Legitimate educational purpose does not include appellant’s transfers of confidential student information, in records she did not create, for appellant’s lawsuit against the District. Those transfers constituted disclosures in violation of policies. Appellant’s knowledge of that policy, and disclosures in the thousands, showed that appellant’s violation was willful and persistent. Willful and persistent violation of policies is grounds for termination under the Teacher Tenure Act.         
Tammy Ferry, Respondent, vs. The Board of Education of the Jefferson City Public School District, Appellant.        
(Overview Summary)       
Supreme Court of Missouri - SC98959

Criminal

Self-Defense Instruction Was Due         
An instruction is due on request when substantial evidence supports it even where there is contrary evidence. Statutes allowed appellant to use deadly force if appellant “reasonably believe[d] that such deadly force [was] necessary to protect himself ... against ... any forcible felony[.]” An instruction that allowed self-defense for burglary, but not arson, deprived the jury of ruling on self-defense on the record in the light most favorable to the requested instruction. “It is all well and good to analyze the evidence on a moment by moment basis and claim the ability to parse these two individuals’ purposes and beliefs across each indivisible instant of time. Reality, however, is much different.”         
State of Missouri, Respondent, vs. Samuel Jerry Whitaker, Appellant.       
(Overview Summary)       
Supreme Court of Missouri - SC98856

No Sanction for Destroying Evidence Not Allegedly Exculpatory       
When the State destroys exculpatory evidence, it is liable for a sanction. But when the destroyed evidence is only potentially exculpatory, the State is liable for a sanction only on proof that the destruction occurred in bad faith, which appellant did not allege. Statute, providing a sentence of death or life imprisonment without parole, is constitutional when applied to persons over the age of 18 years.       
STATE OF MISSOURI, Plaintiff-Respondent vs. ANDREW JAMES VRBA, Defendant-Appellant       
Missouri Court of Appeals, Southern District - SD36916

Elections

Ballot Wording Appeals Explained  
Constitutional provisions control the Supreme Court’s jurisdiction, and a statute cannot expand that jurisdiction to include appeals from a judgment on ballot language, but that statute can expedite such an appeal. The statute allows an appeal from a judgment before the judgment is final, but only within ten days from issuance, or the appellant can wait for the judgment to become final. “This is the only construction of section 116.190.4 that respects the separation of powers set forth in Article V, section 5 of the Missouri Constitution, which, as we have already noted, affords the Supreme Court the authority to ‘establish rules relating to practice, procedure and pleading for all courts and administrative tribunals, which shall have the force and effect of law,’ but which prohibits those rules from ‘chang[ing] ... the right of appeal.’” Appellant filed the notice of appeal prematurely, so the Court of Appeals waited until the judgment became final to issue an opinion. Judgment on stipulated facts is subject to review de novo for legal error. No legal error occurred because, as a whole and in context, the title of the issue to appear on the ballot, and the phrasing of the issue for voting yes or no, were fair and accurate.  
Scott Fitzpatrick, in his official capacity as Missouri State Treasurer vs. John R. Ashcroft, in his official capacity as Missouri Secretary of State
(Overview Summary)
Missouri Court of Appeals, Western District - WD85060 

Evidence

Credibility Determined Agency        
Plaintiffs alleged that defendants were the principals of an agent who damaged plaintiffs’ property. “Agency is not presumed [,]” and defendants contested the matter in pleadings and at trial, so the Court of Appeals will defer to the circuit court’s findings. Even making a prima facie case with credible evidence at trial is not sufficient to prevail at trial because the party with the burden of proof must also persuade the factfinder to credit that evidence. “[A] fact-finder always can disbelieve all or any part of the evidence, just as it always may refuse to draw inferences from that evidence.” Circuit court did not believe plaintiffs’ evidence and did not err in applying the law.        
TINA M. PENNINGTON, Appellant vs. BRANDON WILSON and KRIS WILSON, Respondents      
Missouri Court of Appeals, Southern District - SD37144

Personal Injury

Sovereign Immunity Waived, But Instructions Misstated the Law, For Dangerous Property
In an action against a public entity, plaintiffs must show facts on which the statutes waive sovereign immunity, which include a dangerous condition of the public entity’s property. Statute waives sovereign immunity if the public entity knew of the condition in time to fix it, which plaintiffs showed with evidence that occupants considered stairs to courthouse basement dangerous. That the danger was open and obvious did not negate plaintiffs’ claim because the public entity knew that harm could still result. But “the public entity’s property” means property that the public entity either owns, or exclusively possesses and exclusively controls. The approved instruction misstated that law, requiring a remand and new trial on all defendants’ liability. Judgment against claim for loss of consortium did not appear in a motion for new trial, so it is unpreserved, and affirmed.         
Pamela S. Allen and Kelly D. Allen, Cross-Appellants, vs. State of Missouri, 32nd Judicial Circuit, Cross-Appellant, Cape Girardeau County and City of Cape Girardeau, Missouri, Respondents.        
(Overview Summary)       
Supreme Court of Missouri - SC98929

Post-Conviction

Pleading Requirements Discussed      
In a claim for relief based on ineffective counsel, the elements include failure to exercise the customary skill and diligence that a reasonably competent attorney would exercise under the same or similar circumstances, which is a legal conclusion. To support that element, movant must make a factual allegation, like “inadvertence or that it was not a matter of reasonable trial strategy [;]” and when the substandard performance charged is trial counsel’s failure to proffer a lesser included offense, movant must also allege a basis for acquittal on the greater offense. Such allegations are absent from the motion, and record refutes them, so no hearing was required as to the instructions. Movant did not show any prejudice from trial counsel’s failure to object to a general attempt instruction instead of a specific instruction for attempted assault. Whether the trial court applied an incorrect minimum when crafting movant’s sentence was a matter for direct appeal.       
Christopher Michael King vs. State of Missouri      
(Overview Summary)       
Missouri Court of Appeals, Western District - WD84079

Proof of Timely Filing Discussed   
Timeliness of the initial motion is indispensable to relief. Movant proves timely filing with the file stamp, or evidence of circuit court’s misfiling, or with evidence of an exception to the timely filing requirement. Movant may raise misfiling or an exception to the timely filing requirement in an amended motion, but not in any other filing, like appellant’s brief. Movant offered no justification for late filing, so the circuit court had no authority to rule on the amended motion. Judgment vacated, cause reversed and remanded for circuit court to dismiss the initial motion, and to deny the amended motion as moot.   
KENNETH STEWART, Appellant vs. STATE OF MISSOURI, Respondent   
Missouri Court of Appeals, Southern District - SD37020

Real Estate

Genuine Dispute Remains as to Broker’s Commission      
Plaintiff broker filed an action to collect a commission on a real estate contract, which named broker as the recipient of a commission on the sale, making broker a third-party beneficiary. Defendant seller’s motion for summary judgment included a termination agreement between the seller and buyer calling off the sale, which could end broker’s third-party beneficiary status. But the record also inferred that the broker had already changed its position, by performing services in reliance on the promise of the commission, in which case the termination agreement was too late to end broker’s rights as a third-party beneficiary. Therefore, a genuine dispute of material fact remained, so defendant seller did not show the right to judgment as a matter of law, and the Court of Appeals reverses the summary judgment.      
Hilliker Corporation, Appellant, vs. Watson Property, LLC, Respondent.      
(Overview Summary)    
Missouri Court of Appeals, Eastern District - ED109549 

Foreclosure Restored 
The Court of Appeals will correct errors and does not alter the law. Circuit court voided foreclosure sale because it concluded that the price “shocked the conscience.” But “[i]nadequacy of consideration alone will not justify setting aside a foreclosure sale that was fairly and lawfully conducted, without fraud or partiality and with full opportunity for competitive bidding.” Respondents did not plead or prove that any fraud or partiality affected the bidding. Reversed and remanded. 
ARVEST BANK, Defendant/Appellant vs. EMERALD POINTE, LLC, TIMBER RIDGE AT EMERALD POINT, LLC, GARY W. SNADON TRUST, PATSY A. SNADON, and PATSY A. SNADON TRUST, Plaintiffs/Respondents 
Missouri Court of Appeals, Southern District - SD36959