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Case summaries for Mar. 20 - Mar. 26


Each week, The Missouri Bar provides links to all hand downs published online during the past seven days by the Supreme Court of Missouri and the Missouri Court of Appeals. The Missouri Bar has created headings and summaries for each case. Summaries are not part of the opinions of the Court. They have been prepared for the convenience of the reader and should not be quoted or cited.

Appellate | CivilCriminal | Evidence | Post-Conviction


Judgment Ineligible for Certification
Appeal is available for a final judgment, and a judgment is a ruling that disposes of all “rights and liabilities” of all parties as to a set of allegations, with a few exceptions. Exceptions include a circuit court’s certification of no just reason for delay, but that applies only to a judgment, and no judgment exists when a circuit court disposes of allegations as to less than all parties. Because no judgment is before the Court of Appeals, that court need not review the certification, and dismisses the appeal.
Elizabeth Butala, et al. vs. The Curators of The University of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82810 (consolidated with WD82811, WD82812, WD82813, WD82814, WD82815, WD82816, and WD82817)

Argument Was Insufficient
Appellant’s failure to develop a point relied on in the argument section abandoned that point. Dismissed.
State of Missouri, ex rel: Department of Social Services, Family Support Division and Laura L. Gibbs vs. Michael Shipley
(Overview Summary)
Missouri Court of Appeals, Western District - WD83053


No Pleading, No Ruling
Circuit court did not err by omitting rulings on one theory never pleaded in circuit court, and another theory not pleaded until a motion for new trial. When plaintiff failed to state a claim against defendant, plaintiff also failed to state a claim against defendant’s transferee for fraudulent transfer. Judgment’s omission of duly requested findings of fact requires reversal only when that omission “materially interferes with [the court’s] ability to review the points on appeal. None of the requested findings . . . have any bearing on the issues raised in this appeal and do not impede our review.”
ROBERT S. WHITMORE, Duly Appointed Trustee for the Bankruptcy Estate of NANCY BILLOW, Plaintiff-Appellant v. BLH DEVELOPMENT COMPANY, LLC, et al., Defendants-Respondents
Missouri Court of Appeals, Southern District - SD36164


Inconsistent Verdicts Okay
A ruling omitted from a motion for new trial is still subject to plain error review at the circuit court’s discretion and, when defendant fails to seek plain error review in circuit court, defendant fails to preserve the point for appellate review. Plain error review remains within an appellate court’s discretion, but no manifest injustice occurred when circuit court denied a motion for new trial for untimely filing alone. Admitting guilt turns any error in the sufficiency of evidence into invited error. Invited error is not subject to appellate review. Appellate review under the plain error standard is available for a ruling that is unpreserved by failure to object because mere failure to object does not constitute invited error. The State argued in separate counts that defendant committed assault and armed criminal action, in each count by trying to drive into police officers, so a finding for the State on that allegation supported a State’s verdict as to both counts. The jury returned guilty verdict as to assault, and the record supported that verdict, with evidence that defendant drove straight at police officers after they pointed guns at him and told him to stop. Nevertheless, the jury returned a verdict of not guilty as to armed criminal action, but inconsistency would require reversal only upon verdicts of not guilty on an underlying charge, whereas acquittal on the additional charge might simply be “jury leniency.”
State of Missouri, Respondent, vs. Walter Nickels, Jr., Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107682


Blame-Shifting Was Not Hearsay
When the State’s opening statement, and reasonable inferences from that statement, describes evidence that does not substantiate the charges, even after the State has had the chance to cure that deficiency, circuit court may enter a judgment of acquittal; but no plain error occurred when circuit court denied a motion for acquittal after the State’s opening statement. No prejudice occurred when a witness testified to prior bad acts of defendant, because that testimony was cumulative and made without objection, so circuit court did not plainly err in not declaring a mistrial sua sponte. A question about a propensity hearing is not evidence of prior bad acts, so no manifest injustice or miscarriage of justice occurred when the circuit court denied defendant’s motion for mistrial. Defendant’s false explanation for his conduct—demonic possession—showed consciousness of guilt and constituted an admission, so a witness’s testimony about it was not hearsay.
State of Missouri vs. Shayne Lance Garretson
(Overview Summary)
Missouri Court of Appeals, Western District - WD82404

Other Persons’ Motive Irrelevant
A witness referred to defendant’s request for counsel, but the State neither sought nor used that testimony, so no mistrial was necessary. Circuit court did not err in excluding defendant’s evidence that other persons had motives to kill victim; that evidence was more confusing than helpful, not relevant to defendant’s motive to kill victim, and could not show that any other person was the real killer without a direction connection between such other person and the killing. Evidence that a witness was afraid to testify was relevant to the witness’s credibility, which outweighed the potential sympathy for the witness. A witness’s out-of-court statement, offered to show consistency in the witness’s narrative or to explain subsequent conduct, was not offered for the truth of the narrative so it was not hearsay. Failure to make an offer of proof as to excluded evidence preserves only plain error review, which did not occur when circuit court excluded statements by counsel for a witness. An untimely objection preserves nothing for review. Without some circuit court error, cumulative error cannot exist.
State of Missouri, Respondent, vs. Nathan Jerome Allen, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107222


Predicting Changes in Law Is Not Part of Effective Counsel
A “failure to anticipate a change in the law does not constitute ineffective assistance of counsel.” Trial counsel is not ineffective for failing to seek instructions on a lesser included offense before case law set forth when the law required submission of such instructions. Trial counsel was not ineffective for failing to call a witness whose testimony could have been damaging. “Counsel’s decision not to have [a witness] testify, ‘as a matter of trial strategy, is virtually unchallengeable.’”
GARY L. MITCHELL, JR., Appellant vs. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD36227

Counsel Not Shown Ineffective in Plea Bargain
Ineffective assistance of counsel in plea bargaining consists of “failing to communicate [or] providing bad advice about” the State’s offer. Movant alleged that viewing unhelpful evidence would have better-informed movant, before rejecting a plea offer, than discussing that evidence with counsel. The circuit court’s determinations of credibility on those issues merit deference in the Court of Appeals.
Missouri Court of Appeals, Southern District - SD36125