Case summaries for Aug. 13 - Aug. 19, 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.
Class Certification Affirmed
Court of Appeals reviews appellant’s brief despite deficiencies. Telephone Consumer Protection Act Rule bars transmission of automated ringless voicemails without express written consent. Rule governing class actions sets forth the elements of certification of class. Respondent showed that class representative received unlawful transmission, which shows the elements of typicality and common question predominance, because it shows the “identical claim” under the Act. Neither the state of the class representative’s residence, nor alleged variations in fact related to specific class members, changes the result.
Dennis N. Smith, Jr., et al. Respondents, vs. Leif Johnson Ford, Inc., Appellant, vs. Direct Marketing Advantage, LLC, Third-Party Defendant.
Missouri Court of Appeals, Eastern District - ED109494
Separate Convictions for Assault and Murder Affirmed
Double jeopardy does not bar multiple convictions when the General Assembly intends multiple punishments, which depends on the statutes, which provide a new unit of prosecution whenever a new intent forms. When appellant first shot victim, to facilitate a robbery, appellant committed assault. When appellant again shot victim, to kill victim, appellant committed murder. Appellant’s assertion of the right to silence was ambiguous as to whether it was comprehensive or limited to photographs of shooting, so officers did not have to cease questioning, and later responses were not inadmissible.
State of Missouri, Respondent, vs. Antonio Edjuan Muldrew, Appellant.
Missouri Court of Appeals, Eastern District - ED108938
Cross-Examination Does Not Waive Hearsay Objection
The elements of unlawful use of a weapon, by being a felon in possession of a firearm, includes control over a firearm. State witness relayed a hearsay statement that went beyond explaining subsequent conduct and constituted substantive evidence that defendant felon had control of firearms. When the defense objected, and cross-examined the witness to discredit the hearsay statement, the defense did not waive or cure error in admitting the statement. Prejudice resulted because remaining evidence only showed that defendant knew the firearms’ presence, not that defendant had control of the firearms. “[Defendant]’s proximity to the guns [was] outweighed by the facts he did not commingle his other property – including his antique guns – with the guns in the safe, made no admissions of ownership or possession, and engaged in no behavior indicating consciousness of guilt.” Because the State did not rely on the witness’s testimony to forego offering other evidence of control, no new trial could produce a different result, so the Court of Appeals enters judgment of acquittal.
State of Missouri, Respondent, vs. Eric G. Hollowell, Appellant.
Missouri Court of Appeals, Eastern District - ED108941
No Authority While Illinois Litigation Pending
After Illinois judgment expressly ruled on what name the child shall use, and pending related litigation in Illinois, appellant filed an action in Missouri circuit court to change child’s name. Circuit court dismissed, and Court of Appeals affirms, because appellant cited no law or fact authorizing the circuit court to grant the relief sought.
IN RE THE NAME CHANGE OF E.C.D. KRISTIN DAWN MASTERS, Movant-Appellant vs. CULLEN BRENT DACE, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD37042