Case summaries for Nov. 5 - Nov. 11, 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.
Incomplete Point Dismissed
Rule governing points on appeal requires appellant to identify the ruling challenged, and the error of that ruling, which appellant did. But the rule also requires a description of the law against which the ruling was error, and facts relevant under that law.
Michaud Mitigation, Inc. d/b/a Puroclean Restoration Professionals, Respondent, vs. Ray M. Beckett, Appellant.
Missouri Court of Appeals, Eastern District - ED109587
Attorney-Client Privilege Waived
In a criminal action, the erroneous exclusion of State’s evidence supports mandamus, because double jeopardy bars re-trial. The circuit court barred from evidence a recording of incriminating statements made during an attorney-client meeting. But, when defendant disclosed that recording to a third person, by delivery to a third person who stored it with a fourth person, defendant waived the privilege as to that communication. The State need not prove that defendant intended to waive the privilege, and there is no evidence that shows common intent with any recipient to prepare a joint defense. Supreme Court makes permanent its preliminary writ requiring circuit court to rescind its order of exclusion.
State ex rel. John Garrabrant, Prosecuting Attorney of Ozark County, Relator, vs. The Honorable Calvin Holden, Respondent.
Supreme Court of Missouri - SC98875
Retrial Was Timely
Constitutional right to speedy trial appears in one provision, which appellant did not raise, and “[t]here is no need for [the Supreme] Court to craft a constitutional right to speedy trial” under the provision on time limits for re-trial. Re-trial was scheduled for a date within the next term of court, as required by the constitutional provision on time limits for re-trial, and continuances by inherent power or rule are not inconsistent with that provision. And, even if the circuit court had not violated that provision, dismissal would not result.
State of Missouri, Respondent, vs. Gregory Shegog, Appellant.
Supreme Court of Missouri - SC99103
Faretta Hearing Okay
When a criminal defendant waives counsel, waiver must be voluntary, knowing, and intelligent; but the defendant “cannot be expected” to object to the inquiry on that subject, so appellate courts review the inquiry de novo. “It is hard to imagine anything that could be presented in a current hearing that would have provided [appellant] any more effective knowledge of the dangers of self-representation.” Any error in considering appellant’s earlier pro se defenses constituted invited error because appellant referred to those events in support of the waiver. Circuit court issued sentence and judgment before a motion for new trial was due or determined, contrary to rule, but appellant waived error as to the premature issuance of judgment by failing to file a motion for new trial. A motion for new trial addresses issues at trial, not at sentencing, so appellant preserves errors in sentencing without raising them in a motion for new trial. But circuit court did not err in rejecting the parties’ recommendations pursuant to their non-binding plea agreement.
State of Missouri vs. Randy G. Teter
Missouri Court of Appeals, Western District - WD83999
Faretta Hearing Omitted
When a criminal defendant waives counsel, waiver must be voluntary, knowing, and intelligent; the circuit court ensures by receiving written waiver in the form set forth by rule, and by inquiry. No inquiry occurred, so the State agreed that the waiver was not effective, and the Court of Appeals remands the case for a new trial.
State of Missouri vs. Johnny D. Floyd
Missouri Court of Appeals, Western District - WD83890
Propensity Evidence Admitted
Constitutional provision governing propensity evidence allows evidence of an uncharged offense to show that defendant is likely to have committed the offense charged. Requirements include the availability of physical evidence supporting the offense charged, and the probity of the propensity evidence, meaning relation of the uncharged offense to the offense charged. The circuit court must balance probity with unfair prejudice to the defendant. Evidence of a witness’s prior false accusations is admissible, but the proponent bears the burden of showing that the prior accusations were false, and that the witness knew that they were false. Absent that showing, the accusation is inadmissible, without regard to the Rape Shield Statute.
State of Missouri vs. Cory A. Davison
Missouri Court of Appeals, Western District - WD83888
Arguments Not Preserved
Court of Appeals will not conduct plain error review of appellant’s detention without an order or warrant of commitment, because appellant did not challenge his detention in circuit court, and because no remedy is available anymore. An objection to evidence as prior bad acts does not preserve an objection to character evidence, and evidence that appellant’s license was revoked was relevant to motive and lack of mistake, so no plain error occurred in admitting it. An objection on changing the burden of proof is unpreserved by an objection of misstating the law, and the prosecutor’s closing argument did not misstate the law, once the prosecutor corrected it as appellant requested. The statute that excepts appellant’s offenses from appeal bonding does not constitute suspension of habeas corpus, so that statute is not unconstitutional, and the Court of Appeals may rule accordingly because that challenge is merely colorable.
State of Missouri vs. Christopher Lamar Jones
Missouri Court of Appeals, Western District - WD83812
Claimant Made Self Unavailable for Work
Statutes provide that the elements of a claim for employment security benefits include availability for work. Negating that element was appellant’s request of her employer not to schedule her for work during the COVID pandemic. “[L]imitations on the hours and days the employee is willing to work [divorce claimant] actually and currently from the general labor market.” No statutory policy, nor reasonable fear of COVID, nor reduced wages at other employment, change that result. Appellant’s points are multifarious, but Court of Appeals reviews them nonetheless.
Kathleen M. Vaughn, Appellant, v. Missouri CVS Pharmacy, LLC, and Division of Employment Security, Respondents
Missouri Court of Appeals, Eastern District - ED109383
Self-Insurance Did Not Waive Sovereign Immunity
A party may seek a change of judge for cause any time before submission of the case. But plaintiff filed a motion, for the entire circuit’s judges to recuse themselves from ruling on defendant’s summary judgment motion, after that motion was under advisement. Circuit court did not err in making no ruling on that motion for recusal. City established that City had no liability insurance covering facts that plaintiff alleged, and plaintiff failed to raise a genuine issue as to those facts, so City was entitled to summary judgment. Official immunity protects a public employee in the exercise of discretion, if done in good faith, which does not include a police officer using excessive force, and plaintiff offered evidence of excessive force, so circuit court did not err in denying defendant a directed verdict. Rule requires specific pleading of special damages, including litigation expenses, without which circuit court must deny such damages.
Kristine Hendrix, Appellant, vs. City of St. Louis, et al., Respondent.
Missouri Court of Appeals, Eastern District - ED108858
Active Interference with Filing Not Shown
Rules condition any relief on filing of an initial motion, either timely, or late with court-made exceptions. Those exceptions include active interference by a third party with filing, which movant alleged, but of which movant offered no evidence. Evidence may include docket entries, but not affidavits, and circuit court erred in taking movant’s allegations as true to rule on the merits of the motion.
Carl S. Goldberg, Appellant, vs. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED109430
Affidavit of Indigency Necessary for Appointed Counsel
Rule provides for appointment of motion counsel for movants showing indigency by affidavit, but initial motion neither alleged indigency nor included an affidavit, so circuit court was not required to appoint motion counsel.
Timothy Wolf, Appellant, v. State of Missouri, Respondent.
Missouri Court of Appeals, Eastern District - ED109326
Co-Worker Immunity Shown Under 2012 Amendments
Under 2012 amendments, the workers' compensation statutes immunized any co-worker for injuries to plaintiff. The only exception is if plaintiff shows that the co-worker committed negligence while, at least, trying to increase the risk of harm to plaintiff. Plaintiff offered no evidence of that purpose, and showed no co-worker conduct outside the employer’s non-delegable duty of providing a safe workplace, so plaintiff did not show that co-worker was liable for common-law negligence.
Danny Brock, Respondent, vs. Peter Dunne, in his Capacity as Defendant Ad Litem for Mark Edwards, Deceased, Appellant.
Supreme Court of Missouri - SC97542