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April
2020
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Case summaries for Mar. 27 - Apr. 2

Summary

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.

Administrative | Criminal | Employment | Family | Health | Personal Injury | Post-Conviction

Administrative

Declaratory Judgment Action Premature
Until an agency makes its final decision, any controversy with the agency is unripe, so a warning of agency action does not show any justiciable action. Therefore, when the Department of Corrections informed appellant that fees were due, but did not attach any of appellant’s exempt Social Security disability funds, appellant’s petition for declaratory judgment was premature. Dismissal affirmed, but modified to dismissal without prejudice.
Randall Graves vs. Missouri Department of Corrections, The Division of Probation and Parole
(Overview Summary)
Missouri Court of Appeals, Western District - WD83027

Criminal

Multiple Purposes Do Not Constitute Multiple Acts
An affirmative statement of no objection waives even plain error review, but plain error review is still within the Court of Appeals’ discretion. On a charge of sodomy, the elements include specified conduct with either of two purposes, the approved instruction includes both purposes in the disjunctive, and submitting that instruction does not constitute submitting multiple acts. Multiple acts means multiple incidents, and only one incident is the subject of the charging instrument.
State of Missouri vs. Scott Evan Weyant
(Overview Summary)
Missouri Court of Appeals, Western District - WD82502

Discovery of Evidence Was Inevitable
Appellate courts presume that circuit judge disregards inadmissible evidence, like defendant’s statement solicited after defendant has invoked the right to counsel, and that no prejudice resulted in view of the other evidence against defendant. Evidence discovered in a search made without consent and without a warrant is still admissible if proper police procedures would have made that discovery inevitable. Evidence, supporting a conviction for unlawful use of a weapon by being a felon in possession, includes the same evidence that supported defendant’s conviction for murder in the second degree by shooting; the absence of any firearm from the State’s evidence notwithstanding.
State of Missouri, Respondent, vs. Harry Little, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107404

Dashcam Transcript Properly Used
State supported its peremptory strikes with race-neutral explanations, which defense did not challenge as pretextual, so circuit court did not err in allowing those strikes. Appellant failed to show any improper contact, or any prejudice from contact, between bailiff and jurors. Circuit judge’s statements during trial did not constitute “significant and consistent” attacks showing bias against the defense. No plain error occurred when jury used a transcript of dashcam audio, only to follow along while dashcam recording played, and circuit court directed jurors that the recording was evidence and the transcript was not. When a witness opined that defendant was racing, circuit court sustained defendant’s objection and ordered the jury to disregard that statement, which was an adequate remedy. Juror’s mention of the dashcam transcript did not require a mistrial. Continued deliberations after jury’s questions and comments did not show coercion of the verdict.
State of Missouri, Respondent, vs. Scott Bailey, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107394

Employment

Statute Barring Picketing Is Unconstitutional
Statute, barring employees of a public body from striking and “picketing of any kind,” is unconstitutionally overbroad because public employees’ have the right to speak freely over matters of public concern when inobtrusive to public services. Picketing in conjunction with a strike is not the only picketing prohibited, according to the statute’s plain language, and plain language makes statutory construction unnecessary. Injunction of the offending words is possible without striking the rest of the statute.
Rebecca Karney and Johnny Miller, Respondents, vs. The Department of Labor and Industrial Relations and Todd Smith, Appellants, and Darryl Forte and Jackson County, Missouri, Defendants.
(Overview Summary)
Supreme Court of Missouri - SC97833

Family

Custody Without Hearing Prohibited
A writ of prohibition may issue to prevent a court from acting in excess of its authority. Authority to award temporary custody follows from statutory procedure. That procedure includes determination on a hearing to resolve a disputed motion, or on affidavits if there is no dispute. Relator’s verified filings, objecting to temporary custody, necessitated a hearing notwithstanding the absence of a separate affidavit. Supreme Court issues its permanent writ of prohibition requiring circuit court to vacate its order of temporary custody.
State ex rel. Kelsey Koehler, Relator, vs. The Honorable Sandra Midkiff, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98308

Health

Some Assisted Living Rooms Grandfathered In
Regulations governing long term care facilities, including residential care and assisted living, determine maximum occupancy in part by area per resident. Regulations allowed lesser area for multi-occupant rooms in long term care facilities licensed and operating before a certain date, which described respondent facility, so respondent facility’s multi-occupant rooms may have the lesser area. And that provision expressly applies to an existing facility upgrading to a higher level of care, which describes respondent facility. But regulations required greater area for private rooms in long term care facilities licensed and operating after a different date, which also described respondent facility, so respondent facility’s private rooms must have the greater area. Facility licenses are subject to periodic renewal, and no one has the right to an unchanging body of law, so those licenses are not vested rights and regulations imposing new obligations do not constitute retrospective laws. Applying that law to respondent facility does not cause any manifest injustice and does not constitute extraordinary circumstances, and at least one of those is necessary for equitable estoppel, so equitable estoppel does not prevent the regulation from applying. Court of Appeals enters judgment requiring the greater area in private rooms and remands to determine whether injunctive relief is necessary to enforce that requirement.
Union Manor, A Sole Proprietorship vs. Missouri Department of Health and Senior Services
(Overview Summary)
Missouri Court of Appeals, Western District - WD82776

Personal Injury

Genuine Dispute Remains on Asbestos Exposure
If summary judgment motion describes claims, pleadings do not limit the claims to which summary judgment applies. “Because [defending party] was made aware of the alleged extent of the [period of time alleged in the motion] before trial, we find [claimant party’s] claims were not limited to [period of time alleged in pleadings].” Plaintiff’s claim for asbestosis required proof of exposure to defendant’s product. Defendant’s evidence established that no such exposure occurred, but plaintiff raised a genuine dispute as to those facts with circumstantial evidence that plaintiff was likely exposed to defendant’s asbestos products. That evidence supported an inference that such exposure occurred, and that the exposure was a substantial factor contributing to causation, so Court of Appeals need not define “substantial factor.”
Mary Callanan, et al., Appellant, vs. A.W. Chesterton, et al., Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED108140

Continuing Care Discussed
Statute provides two years to file an action, charging that medical care was negligent, from the date of the care. When the care includes continuing care, continuing care tolls the time to file until necessity for continuing care ends, at the latest. Necessity for care ended when treatment was complete, so that last treatment date started the time for filing, not the date on which plaintiff discovered damages.
Sharon Newton and Brian Newton, Appellants, vs. Mercy Clinic East Communities d/b/a Mercy Clinic OB/GYN, and Christina Kay Meddows-Jackson, M.D., Respondents.
(Overview Summary)
Supreme Court of Missouri - SC97687

Post-Conviction

No Right To Choice of Public Defender
Movant had the right to effective counsel, which might not be movant’s choice of counsel, and substitution of counsel must have support in dissatisfaction that is justifiable. Justifiable dissatisfaction includes “conflict of interest, an irreconcilable conflict, or a complete breakdown in communication [.]” Justifiable dissatisfaction does not include a “[d]isagreement about trial strategy or a general dissatisfaction with the amount of time a defendant is able to spend with counsel [,]” which is all that movant alleged.
Jason L. Berry vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD82440

Mental Competence a Factor in Plea Bargain
Effective counsel investigates defendant’s mental state as of the time of events charged and advises defendant to plead not guilty by reason of mental disease or defect. When facts make defendant’s mental competence questionable, effective plea counsel investigates those facts before advising defendant to plead guilty. Prejudice results when defendant was probably not competent to participate in the plea hearing. Movant alleged that she was schizophrenic and not compliant with her medications at the time of the events charged and at the plea hearing, that plea counsel did not investigate movant’s mental state, and that expert testimony would show that she was not competent at her plea hearing. The record did not refute any of those allegations, so movant stated claims for relief and was entitled to a hearing on the merits of her motion. When circuit court has reasonable cause to question defendant’s mental competency, circuit court must sua sponte investigate. Reasonable cause included movant’s history of disturbed behavior and delusional declarations at sentencing, and circuit court’s failure to investigate requires Court of Appeals to vacate sentences.
Tinisha J. Washington, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED107683

More Evidence Would Not Have Helped
When committing his offenses, movant used a vehicle owned by a third person, but the prosecution referred to the vehicle as movant’s. Because the defense knew the true ownership of the vehicle, any prosecutorial misconduct was apparent at trial, and therefore subject to direct appeal, not post-conviction relief. Any inadequacy in a judgment’s findings of facts must be the subject of a motion to amend in circuit court, and a general charge that the judgment does not address all claims is insufficient for that purpose. State’s nondisclosure of evidence causes prejudice only when that evidence would have changed the outcome at trial; but the undisclosed evidence in movant’s case was the vehicle’s true ownership, which the defense already knew, and the true owner’s physical description, which did not connect any third party to the offense. Movant did not show that any further investigation by trial counsel would have helped. When circuit court committed no error, no cumulative error occurred.
RAMONE J. HICKS, Appellant v. STATE OF MISSOURI, Respondent
Missouri Court of Appeals, Southern District - SD35911