Case summaries for Apr. 23 - Apr. 29, 2021
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.
No New Trial for Lawyer Misconduct Without a Motion for Mistrial
Counsel’s “misconduct sufficient for the granting of a new trial” can include willfully and “[r]epeatedly asking improper questions, offering improper evidence, or displaying material not in evidence” if “the conduct substantially influenced the verdict [.]” Defendant committed such misconduct, but plaintiff did not seek a mistrial on that basis, and sought only a new trial on that basis. The circuit court had discretion to grant that motion, but plaintiff waived any abuse of that discretion on appeal by failing to seek a mistrial. When defendant argued an adverse influence from the absence of a witness, plaintiff objected only that the argument violated a ruling in limine, which did not preserve an objection that the witness was equally available to both parties. It makes no difference that it was the ruling granting defendant’s motion in limine when the circuit court sustained plaintiff’s objection, gave a limiting instruction, and explained why. An argument first raised in a reply brief is “ineligible for appellate review [.]”
James Maloney and Hadley Maloney vs. Benchmark Insurance Company
Missouri Court of Appeals, Western District - WD83411
Confidential Communications Admissible
Statutes provide confidentiality for documents related to probation officer’s work to foster candid communication between probationer and officer. Those statutes have an exception for “persons having a proper interest therein.” Such persons include a prosecutor filing charges of tampering with a judicial official by deception, and the privilege does not extend to communications that constitute an offense in themselves, like forged documents. Statute allows interlocutory appeal for suppression of evidence illegally obtained, but not for exclusion of evidence based on privilege. Appeal from a final judgment is also unavailable to the State because of double jeopardy. Therefore, an erroneous exclusion of evidence supports a writ of mandamus. Court of Appeals makes its preliminary writ in mandamus permanent.
State of Missouri, ex rel. Jessica J. Jones, Gentry County Prosecuting Attorney vs. The Honorable Roger Prokes, Judge of the Circuit Court of Gentry County, Missouri, Division 1
Missouri Court of Appeals, Western District - WD84255
No Warrants Based on Illegal Searches
Allegations about confidential informants did not describe reasonably trustworthy information. Information obtained by an unlawful search cannot support an application for a warrant, and when redacting the “untainted information” did not describe an offense, denying a motion to suppress was open and obvious error. That error was outcome-determinative, because all the evidence supporting appellant’s conviction was subject to suppression, so manifest injustice occurred. Plain error occurred, so the Court of Appeals reverses and remands appellant’s conviction.
State of Missouri vs. Gary Anderson
Missouri Court of Appeals, Western District - WD83626
Variance in Instructions Okay
Constitution requires dismissal of a criminal charge for State destruction of potentially useful evidence to the defense only on proof of bad faith. Evidence supporting an inference that defendant killed victim after deliberation included recent hostility, numerous wounds, and attempts to conceal evidence. First-degree tampering by operation of a car is not a lesser-included offense of stealing by taking, because one can take a car without operating it, so Double Jeopardy did not bar conviction on both offenses. Instructions submitted stealing victim’s car, while charging instrument charged defendant with robbing victim of other property, but defendant failed to show any prejudice to his defense from that variance; and that variance constituted invited error.
State of Missouri, Respondent, v. Paul L. Deroy, Jr., Appellant.
Missouri Court of Appeals, Eastern District - ED108643
Admissibility of Testimony by Zoom Transferred
Testimony, explaining why investigation and charges followed complaining witness’s recantation of an accusation against defendant, was not hearsay because it explained “subsequent police conduct and provided background and continuity to the jury [,]” and was not offered for the truth of it. Physical presence is not indispensable for Confrontation Clause purposes; and legitimate reasons, other than death or distance, can make necessary some lesser presence. In such a case, a two-way video can preserve the essence of confrontation, and laying a foundation for admitting a DNA report through report’s author by Zoom was not plain error. Appellant did not show prosecutorial misconduct in preparing that foundation. Transferred to Supreme Court of Missouri.
State of Missouri, Respondent, v. Rodney A. Smith, Appellant.
Missouri Court of Appeals, Eastern District - ED108626
Castle Doctrine Covers Cars
Victim punched defendant through an open car window and backed away immediately, so defendant shot victim, and victim’s sister. Defendant showed no prejudice in circuit court allowing questioning during voir dire, and an instruction, on self-defense generally instead of on the Castle Doctrine. Statute embodying the Castle Doctrine allows defendant to use deadly force against a person who unlawfully enters her vehicle, but no attempt to enter defendant’s car was in evidence, so no Castle Doctrine instruction was due. An objection to social media postings, based on relevance and probity, did not preserve an objection based on disclosure violations; and no plain error occurred in admitting posts unknown to the prosecution.
State of Missouri, Respondent, v. Andrea Shaunte Straughter, Appellant.
Missouri Court of Appeals, Eastern District - ED108390
Improper Remedy Sought from Denial of Right-to-Sue Letter
When the Labor and Industrial Relations Commission denies a right-to-sue letter, the exclusive remedy is that set forth by rule and statute—filing petition for writ of mandamus—and no other filing secures the circuit court’s authority to review the Commission’s decision. Courts have discretion to treat a different filing as the correct filing, but disfavor such treatment when appellant is made aware of their mistake. Filing a petition for judicial review, instead of a petition for writ of mandamus, was grounds for the circuit court to dismiss appellant’s action.
Carol Vinson, Appellant, v. Missouri Commission on Human Rights, et al., Respondents.
Missouri Court of Appeals, Eastern District - ED109171
Conditions of SVP’s Release Considered
Release of a sexually violent predator is always conditional because the statutes governing confinement sets forth mandatory conditions for release. Expert witnesses expressly addressed, and judgment used, those conditions in applying the facts of appellant’s mental condition to appellant’s petition for release. Nothing “requires the [circuit] court to make specific findings as to the conditions” and, if such findings were necessary, appellant waived any error by failing to include it in a motion to amend.
In the Matter of the Care and Treatment of Wade Turpin vs. State of Missouri
Missouri Court of Appeals, Western District - WD83707
Meaningful Hearing Denied
Due process of law and statutes required an opportunity to be heard before the issuance of a full order of protection, and the circuit court denied that opportunity by issuing such order without hearing appellant’s case in chief. Circuit court’s questioning and appellant’s cross-examination were no substitute for an opportunity for appellant to present evidence. Remanded for further proceedings including determining whether circuit court still has authority over the petition.
E.H., Respondent, v. A.I., Appellant.
Missouri Court of Appeals, Eastern District - ED109097
Arguments on Adversary’s Counsel Discussed
Pleadings are admissible as to facts, but not as to conclusions like liability, so circuit court did not err in excluding an earlier pleading to impeach a party as to its current position. Defendant can contest plaintiff’s theory of causation with evidence of an earlier injury without expert evidence of causation, and the earlier injury is presumed to continue “until a change is shown.” Defense comment on plaintiff’s retention of counsel did not constitute an “attempt to connect [a]ppellant’s injuries with the pendency of her lawsuit or use of the judicial system [,]” so circuit court did not err in denying a mistrial. Circuit court also did not err in denying appellant’s “poorly drafted curative instruction that would have caused more harm than good” when the circuit court suggested an acceptable instruction. Evidence in rebuttal of such comment must be set forth in an offer of proof to preserve error its exclusion. In the absence of prejudice from any charged error, appellant cannot have suffered prejudice from cumulative error, and an award five times greater than prayed for negates any such argument.
Kayla Hurley, Appellant, v. Karen Burton, Respondent.
Missouri Court of Appeals, Eastern District - ED109062
Ineffective Assistance of Trial Counsel Supports a Motion to Withdraw Guilty Plea
A guilty plea waives all claims with only specific exceptions, except that a motion to withdraw a guilty plea filed before sentencing preserves a claim of ineffective counsel, and no post-conviction motion is necessary to preserve that issue for appeal. Movant alleged that ineffective assistance of counsel made his guilty plea less than voluntary and intelligent, but the circuit court did not have to believe him, especially when the record from the plea hearing alleged that claim.
State of Missouri vs. T'Oddre D. Hudson
Missouri Court of Appeals, Western District - WD83370
Factual Basis for Plea Not Cognizable
No constitutional provision requires a sufficient factual basis for a guilty plea, so the rule governing constitutional challenges to convictions does not apply, and an insufficient factual basis for a guilty plea does not make the guilty plea any less knowing or voluntary. “It is a misapplication of the law to improperly conflate those terms.” Whether trial counsel sufficiently advised movant on the elements of an offense charged, when deciding whether to plead guilty, was subject to the circuit court’s credibility determination, to which the Court of Appeals defers.
TIMOTHY EASLEY, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD36762