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Case summaries for Oct. 22 - Oct. 28, 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.

Criminal | Employment | Evidence | Juvenile | Legislative | Local Government | Post-Conviction | Probate | Workers' Compensation


Right of Self-Representation Denied
Appellant failed to challenge the source of proof for victim’s age in circuit court and so waived that matter. Statute determining that life starts at conception applies only before birth, and so does not apply to calculations of age.  Constitutional protections for the right to counsel imply a right to self-representation when exercised timely, unequivocally, and knowingly and intelligently. Lawyer-level proficiency is not required. Exercised thus, circuit court has no discretion to deny self-representation. Evidence of appellant’s knowing and intelligent waiver included appellant’s understanding of the elements of the offenses charged, and defenses, and the consequences of conviction. Conviction reversed and remanded for a new trial.
State of Missouri vs. Gary Dale Lee
(Overview Summary)
Missouri Court of Appeals, Western District - WD83778

Barricaded Standoff Was Not Custodial
Miranda rights guard against coercion of a suspect in a police-controlled environment, which does not include appellant’s barricaded and armed stand-off with police. Police negotiator did not interrogate appellant. Appellant’s unsolicited and voluntary incriminating statements on the way to jail were not the result of an interrogation.
State of Missouri, Respondent, v. Jeffrey Reuter, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109731

Awareness Inferred
Statutes provide that the crime of distributing a controlled substance in a protected location includes the mental state of “knowingly.” Knowingly means with awareness. Identifiable structures of a high school were visible across the street from appellant’s porch, which supported an inference that appellant was aware of how close the high school was, so a reasonable juror could infer that the high school was within 2,000 feet of where appellant was distributing methamphetamine. 
STATE OF MISSOURI, Plaintiff-Respondent v. REGINA J. HILLEMAN, Defendant-Appellant
Missouri Court of Appeals, Southern District - SD36755


Burdens of Proof in Employment Discrimination Applied
Burdens of proof at trial shape burdens of proof on a motion for summary judgment. Amendments to the Missouri Human Rights Act “expressly abrogated ... the contributing factor standard” in actions against any employer, including the State, and replaced it with the standard of “motivating factor.” In claims of discriminatory denial of promotion, hostile work environment, and retaliation, the same evidence can be relevant. In an action for discrimination under the Act, on employer’s motion for summary judgment, defendant prevails if it establishes, beyond genuine dispute, a legitimate and non-discriminatory basis for the conduct alleged. Such basis includes “actual criteria for promotion which were consistently applied to all candidates.” Denial of promotion had a legitimate and non-discriminatory basis in plaintiff’s failure to provide all necessary paperwork. But employer’s evidence did not show a legitimate and non-discriminatory basis for imposing a performance plan on plaintiff. Rule on summary judgment requires an express admission or denial of each numbered paragraph’s allegation, and to produce support for any denial, which does not include a party’s challenge to that party’s own documents provided in discovery. With material facts in genuine dispute, or inferences unfavorable to defendant’s motion for summary judgment, defendant could not receive a favorable ruling.
Michael Eivins vs. Missouri Department of Corrections
(Overview Summary)
Missouri Court of Appeals, Western District - WD84321


Type of Expertise Need Was Not Technological
To admit GPS records required no expert testimony on how GPS works, only expert testimony on how law enforcement uses them, which the State provided. “The officer’s ‘training and experience qualified her to speak about the basic components and functioning of the device and her interpretation of the reports generated by such’ [while the] officer’s ‘limited knowledge as to the scientific principles underlying the device went to the weight of her testimony, not to its admissibility.’”  Statute provides that parole officer communications are confidential, but appellant could show no prejudice from the admission of such communications that were cumulative of other, overwhelming, evidence. Statute provides for an affidavit in lieu of live testimony to lay the foundation for business records, and late notarization did not affect the sufficiency of notice to appellant by timely service of a business records affidavit and attached telephone records. When an original document is unavailable through no fault of the sponsoring party, the best evidence rule does not bar secondary evidence that is trustworthy, so screenshots and photographs of texts from appellant to victim were admissible.
State of Missouri vs. Antoine L. Ellis
(Overview Summary)
Missouri Court of Appeals, Western District - WD83010


Hearsay Admissible for Certification
Rule applying the law of evidence to all adjudicatory hearings in circuit court does not apply to a hearing on whether to certify a juvenile as an adult to stand trial in circuit court, because that hearing is not adjudicatory and does not determine whether the juvenile is guilty of a crime - it focuses on the juvenile fitness for rehabilitation. The statutes governing juvenile certification require the juvenile officer to prepare a report of all relevant information to the juvenile division, which will necessarily include hearsay, and due process does not bar hearsay when certification will result in more due process if a criminal action follows. And, erroneously admitted evidence causes no prejudice when it is cumulative. Evidence favoring certification included the violence of the offense, prior referrals including referrals dismissed, the juvenile’s sophistication and unlikelihood of rehabilitation.  
In the Interest of: T.D.S., Jr.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109317

Earlier Indictment Subject to Earlier Statute on Authority, Not Later Amendment
The allegations in an indictment, not the filing date of the indictment, determine which statutes control. When the offenses occurred as alleged, the statute then in effect provided the juvenile division with no authority over respondent, and it was error for the circuit court to apply a later amendment granting the juvenile division authority over respondent. That amendment was not effective until funded. Dismissal of the indictment, even without prejudice, rendered futile any re-filing of the indictment outside the juvenile division. Therefore, that dismissal constituted a final judgment, from which the State may appeal.
State of Missouri, Appellant, vs. R.J.G., Respondent.
(Overview Summary)
Supreme Court of Missouri - SC99034


Amendment on Authority Ineffective Until Funding
Relator sought a writ of prohibition barring circuit court from judging a criminal complaint, arguing that only the juvenile division has authority over relator. The allegations in a complaint determine the applicable statutes. The complaint described offenses as occurring after the emergency effective date of a statutory amendment providing the juvenile division with authority over relator. But that amendment was not yet effective because its effect was contingent on funding: one statute “sets the earliest date the [amendment] could take effect, while [another statute] provides that the expansion of services would not take effect at that earliest date if the general assembly had not yet appropriated sufficient funds for the expansion of services.” Therefore, the unamended statute applies, the juvenile division has no authority over relator, and the Supreme Court denies relator’s petition for a writ of prohibition.
State ex rel. T.J., Relator, vs. The Honorable Terry Cundiff, Respondent.
(Overview Summary)
Supreme Court of Missouri - SC98951

Local Government

Interstate Compact Agency Was Immune
Rule provides that a petition that shows all the elements of an affirmative defense on its face supports a motion to dismiss for failure to state a claim; no further pleading of facts was necessary. Entities created by interstate compacts are subject to one State’s statutes when all States party to the compact have enacted “complementary or parallel” statutes. Missouri’s Human Rights Act had no complement or parallel in Kansas’s Act Against Discrimination because the burdens of proof and damages available were different.  Compact’s silence on employment discrimination does not constitute consent to any State’s unilateral burden on matters of employment discrimination. Missouri does not recognize the unmistakability doctrine, under which a State may change the law related to its contracts unless the contract unmistakably promises not to, and no contract with appellant is involved anyway. Admitting that defendant was an employer did not support the application of estoppel, equitable or judicial, to subject defendant to the Human Rights Act.  
Edgar Alfonzo Banks vs. Kansas City Area Transportation Authority
(Overview Summary)
Missouri Court of Appeals, Western District - WD84186


Circuit Court Determines Whether Sentences Are Concurrent with Federal Sentences
“Both state and federal courts have the authority to decide whether a sentence should run concurrently with or consecutively to a defendant’s other sentences [,]” and a State sentence concurrent with a federal sentence would erase the federal sentence, so the circuit court did not err in ordering movant’s State sentence to run consecutively to movant’s federal sentence. Making no argument to the contrary did not show that counsel was ineffective because such argument would have been meritless.
Zeno Sims vs. State of Missouri
(Overview Summary)
Missouri Court of Appeals, Western District - WD84050

Plea Offer Not Confidential
A plea offer is not a confidential or privileged communication, so plea counsel violated no rule of professional conduct in contacting movant’s parents for their help in persuading movant to take the plea offer. The motion alleges that movant would have accepted the State’s plea offer but for plea counsel’s disclosure of the plea deal to movant’s parents, but the record refutes that allegation, by showing that movant never even considered the plea offer.  
Marcus Greer, Appellant, vs. State of Missouri, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109340


First Preference for Guardian and Conservator Denied
Though appellant’s points relied on are deficient, the Court of Appeals understands appellant’s arguments, and reviews them. Statute sets forth the preferences among petitioners seeking guardianship and conservatorship: protectee’s choice first, holder of protectee’s durable power of attorney second, a sibling third. Circuit court’s judgment in favor of the second preference—respondent—was not against the weight of the evidence, which included the protectee’s incapacity to name her own guardian and conservator, and protectee’s choice of respondent to assist her before losing capacity. That the durable power of attorney became effective only on disability and incapacity, and that appellant was protectee’s brother, does not alter that result.
Lee Allen Fisher vs. Nina M. Slinger and Keith A. Mayer
(Overview Summary)
Missouri Court of Appeals, Western District - WD84058

Workers’ Compensation

MMI Irrelevant to Pre-Existing Injury
Statutes provide that Second Injury Fund is liable when a primary injury combines with a qualifying earlier injury, and whether the earlier injury has reached maximum medical improvement is not among the qualifications. Undisputed medical evidence negates any need for remand for findings of fact. Remanded solely to enter an award for claimant.
Alan Marberry, Appellant, v. Treasurer of Missouri as Custodian of the Second Injury Fund, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED109554