Case summaries for June 26 - July 1
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.
Change of Venue Too Late
Rule requires a movant to “join and present . . . in a single application” any motion for change of venue with any motion for change of judge. Movant failed to do so, but respondent nevertheless transferred the case from the circuit where originally filed to another circuit. Supreme Court makes permanent its preliminary writ of mandamus ordering the case re-transferred to the circuit where originally filed.
State of Missouri ex rel. Universal Credit Acceptance, Inc., Relator, vs. The Honorable Gloria Clark Reno, Respondent.
Supreme Court of Missouri - SC97872
No Plain Error When Disqualified Juror Seated
Statute disqualifies from any criminal jury any “kin . . . to the . . . prosecuting . . . attorney . . . within the fourth degree of consanguinity or affinity” in the case tried. “[A]ll errors—whether statutory, constitutional, structural, or based in some other source—are subject to the same treatment under this Court’s plain error framework.” Appellant did not show that any manifest injustice or miscarriage of justice resulted from seating on the jury a sister of the prosecutor who appeared for pre-indictment matters only. Appellant did not inquire on voir dire whether, nor allege or show that, the juror was less than fair and impartial. An investigator’s idea of the events, even when gathered in part from out-of-court statements, is not hearsay. When the circuit court sustained a defense objection to hearsay, no appealable error occurred. Evidence that victim committed an act of violence after the conduct charged was not relevant to show that defendant knew that victim had a reputation for violence. Cumulative evidence, even if erroneously admitted, cannot constitute plain error. Submitting erroneous instructions constituted invited error, which is not subject to plain error review, and appellant did not show any manifest injustice or miscarriage of justice resulted when the circuit court submitted the State’s proffered instructions to the jury without any sua sponte correction. The circuit court may define “knowingly” on its own, and must on any party’s motion, but need not when the jury asks.
State of Missouri, Respondent, vs. Mark C. Brandolese, Appellant.
Supreme Court of Missouri - SC97697
Public Defenders Have Official Immunity
Statutes governing the State Legal Expense Fund expressly provide that the Fund’s protection from personal liability does not affect defenses like immunity from suit. Sovereign immunity applies only to acts essential to governing. Official immunity protects public employees from any action for negligence in any discretionary act within the employee’s official duties. “As a practical matter, virtually any decision or action taken by an attorney during trial involves the exercise of professional judgment and is clearly discretionary in nature.” Respondent’s malpractice action against appellant public defenders was barred by official immunity.
Dwight Laughlin, Respondent, vs. Dewayne Perry and Ellen Flottman, Appellants.
Supreme Court of Missouri - SC98012
Probation Ended Before Revocation
For a defendant who has served at least two years of probation and paid restitution, statutes require discharge when defendant has earned compliance credits that, combined with time on probation, equal the term of probation. Statutes require notice that discharge is due, not as a condition precedent to discharge, but as an entitlement to discharge. After that, circuit court has no authority to revoke probation. Statute bars a challenge to the calculation of earned compliance credits under post-conviction rules, but not habeas corpus. Supreme Court issues its writ of habeas corpus ordering petitioner discharged.
State ex rel. Travis Jonas, Petitioner, vs. Dean Minor, Respondent.
Supreme Court of Missouri - SC97674
Retaliation Not Shown in Consecutive Sentences
Circuit court’s mention that defendant prevailed on some issue on appeal does not show that circuit court enhanced defendant’s sentence in retaliation for defendant’s pursuit of that remedy. When defendant made no record supporting his argument in circuit court, it does not matter whether he preserved that argument on appeal, and an appellate court will not consider any document merely because defendant files it in the appellate court. Remanded to correct sentence nunc pro tunc.
STATE OF MISSOURI, Respondent vs. GEORGE M. RICHEY, Appellant
Missouri Court of Appeals, Southern District - SD36153
Case.net Shows Persistent Offender Status
Appellant did not show plain error in a conclusion that appellant was a persistent offender based on convictions shown in Case.net records.
STATE OF MISSOURI, Respondent vs. JUSTIN P. GILLER, Appellant
Missouri Court of Appeals, Southern District - SD35980
Sanctions Upheld for Failure to Take Drug Test
Rules on discovery authorize circuit court to order physical examination and sanctions for failure to comply with discovery. On a motion to modify custody and child support, respondent alleged that child’s best interest depended in part on appellant’s alcohol and other drug use, circuit court ordered a physical examination, and appellant failed to comply. Circuit court sanctioned appellant by striking appellant’s pleadings and barring appellant’s evidence. That ruling is subject to review for abuse of discretion, which is the most deferential standard. No abuse of discretion occurred on appellant’s “persistent evasion and inaction in the face of a specific order from the circuit court [, which] represented a deliberate and contumacious disregard for the authority of the court [.]” Appellant did not show reversible error in the admission of respondent’s exhibits into evidence when appellant omitted those exhibits from the record on appeal. Respondent’s evidence supported the circuit court’s judgment.
In Re The Matter Of B.S.-S., A Minor Child By His Next Friend, Gabriel S. Snowden, and Gabriel S. Snowden, Individually, vs. Rebecca Ann Callahan
Missouri Court of Appeals, Western District - WD83294
No Substantive Control Over Planned Parenthood in Appropriations Bill
Missouri Constitution’s single subject clause bars appropriations bills from including substantive provisions. Statute unambiguously sets forth the services for which Missouri must pay Medicaid providers, so a change in that substantive law requires an amendment to the statute, and a substantive directive in an appropriations bill is void for that purpose. Statute governing severability of provisions from bills applies to substantively unconstitutional provisions, not procedurally unconstitutional provisions, but the offending provision is severable from the remainder of the bill because the remainder of the bill functions without the offending portion. Supreme Court vacates the provision of the judgment taxing of costs against the State, because no statute authorized such an award, and it was not part of the circuit court’s award of litigation expenses against the State.
Planned Parenthood of St. Louis Region, et al., Respondents, vs. Department of Social Services, Division of Medical Services, et al., Appellants.
Supreme Court of Missouri - SC98020
Appellate Court Reviews Record
On a claim against the Second Injury Fund, the Labor and Industrial Relations Commission must first determine the degree of the claimant’s disability. If the Commission concludes that the present injury alone renders the claimant permanently and totally disabled, the Fund has no liability. If the Commission concludes that claimant is less disabled, the Commission must determine whether the Fund is liable for preexisting disabilities. Whether any preexisting disabilities were symptomatic is irrelevant. On judicial review, “in the absence of fraud, the findings of fact made by the [C]ommission within its powers shall be conclusive and binding.”
JAMES ATCHISON, Claimant-Respondent vs. MISSOURI STATE TREASURER, CUSTODIAN OF THE 2ND INJURY FUND, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD36431
Weight of the Evidence Refutes Date of Maximum Medical Improvement
An award for temporary disability lasts until “further progress is not expected [,]” also known as the maximum medical improvement, after which point any remaining disability is permanent. Court of Appeals reviews the whole record to determine whether sufficient competent evidence supports the award. Evidence, unchallenged and not found to lack credibility, established that date more than 12 years earlier than the date found by the Labor and Industrial Relations Commission, which no evidence supported. Court of Appeals modifies award accordingly.
Thomas Williams, Appellant, v. Treasurer of the State of Missouri, as Custodian of the Second Injury Fund, Respondent.
Missouri Court of Appeals, Eastern District - ED108319