Case summaries for Sept. 16 - Sept. 22, 2022
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.
Appellant’s Briefing Violations Require Dismissal
Points relied on give notice of, and ensure that the courts decide correctly, the matters appealed. The description of how appellant preserved a point shows the standard of review for the point. The argument develops the point. The statement of facts gives unbiased context to the point. Failure to comply with these rules governing those components of appellant’s brief preserved nothing for review. Appeal dismissed.
Jack Murphy v. Neil Steiner, et al.
Missouri Court of Appeals, Western District - WD85006
Circumstantial Evidence Sufficient
Witness credibility is for the jury to determine and is not a basis for appeal. Circumstantial evidence has the same weight on appeal as direct evidence and will support a conviction if it supports all elements of the offense for which the jury finds defendant guilty. Evidence supporting denial of a motion for acquittal included the following. Defendant stole a phone found at the crime scene, someone matching defendant’s description ran from the crime scene, ran to a vehicle matching the description of defendant’s vehicle and sped away, and defendant was found soon after in Tennessee. Convictions for second-degree murder and armed criminal action affirmed.
State of Missouri, Respondent, vs. Casey Lowery, Appellant
Missouri Court of Appeals, Eastern District - ED110259
Substantial Risk of Death Shown
The elements of class A felony first-degree domestic assault include serious physical injury, which includes substantial risk of death, which includes asphyxiation to unconsciousness. That definition shall be the subject of a separate instruction as directed by the Missouri Approved Instructions, and as submitted, so no error occurred. Curative admissibility supported the entry into evidence of voicemail messages, in that such evidence rebutted unfavorable inferences as to a witness, raised in cross-examination. Defendant’s history of violence was admissible, and more probative than prejudicial, to show a pattern of harmful intent and provide a complete picture of the events at issue.
State of Missouri, Respondent, vs. Juan Madrigal, Jr., Appellant
Missouri Court of Appeals , Eastern District - ED110073
Closing Argument Okay
In closing argument during the guilt phase, the State must not speculate about defendant’s potential to re-offend. The State asked the jury to protect victim and similar persons from the likes of defendant. The circuit court did not sua sponte declare a mistrial. Those facts did not show plain error, because those arguments were simply a call to uphold the law through public safety. And such brief and isolated remarks were not decisive, so no prejudice occurred. During the sentencing phase, in retaliation to defendant’s discussion of possible sentence structures, the State discussed the same issue. The circuit court did not sua sponte declare a mistrial and did not sua sponte issue an instruction on the subject. Those facts did not show plain error because both sides got to make arguments on what the jury could do.
State of Missouri, Respondent, vs. Gary L. Blue, Appellant
Missouri Court of Appeals, Eastern District - ED109911
No Appeal from Permanency Plan
The statutes allowed termination of parental rights after reasonable efforts at re-unification. The record supports a finding that the Children’s Division offered services in support of re-unification, and that the appellant did not make use of those services, which supported a conclusion that reasonable efforts occurred. Whether the weight of the evidence was against that finding, the Court of Appeals will not decide, because appellant did not brief that challenge correctly. A parent may appeal from a judgment that terminated parental rights pursuant to a permanency plan, but the permanency plan is not subject to appeal, because no appeal is provided by statute.
In the Interest of L.S.H., L.H., L.H., Juvenile Officer vs. C.H., T.S.
Missouri Court of Appeals, Western District - WD84939
Advice on Deportation Okay
Movant alleged that plea counsel was ineffective for failing to advise movant that a guilty plea was likely to result in deportation. Plea counsel testified that plea counsel advised movant that deportation was “highly likely” and that advice was sufficient. Even without express credibility determinations, the circuit court’s judgment shows that the circuit court found plea counsel credible, and an appellate court will not re-determine credibility of evidence. No rational person would have rejected a plea bargain that kept them out of prison, potentially for life, with deportation to follow anyway. So, even if plea counsel had been ineffective, movant showed no prejudice.
Hector Montes, Appellant, vs. State of Missouri, Respondent
Missouri Court of Appeals, Eastern District - ED109883