Case summaries for Nov. 23 - Dec. 1, 2022

Appellate | Employment Security | Evidence | Post-Conviction

Appellate

Briefing Deficiencies Bar Review 
Rules govern the composition of appellant’s brief to ensure notice, to appellate courts and respondents, of the matters under review. Appellant’s statement of facts does not set forth the findings to which the trial-level tribunal applied the law. Appellant’s point relied on does not announce a theory in support of reversal—what is the reason and why it requires reversal. Appellant’s argument consists solely of conclusory statements. References to the record are inadequate throughout. Appellate courts prefer to review appeals on the merits but must not rule on a theory that they construct. Dismissed. 
Latice Hicks vs. Saint Luke's Northland-Smithville                
(Overview Summary) 
Missouri Court of Appeals, Western District – WD85135 

Employment Security

Reasonable Assurance of Returning to Work Explained 
Employment security statutes disqualify from benefits any academic employee who has a reasonable assurance of returning to work. When COVID-19 closed schools, bus drivers were not needed during the school year or summer. School district expressed a hope of resuming in-person schooling and bus routes, but only through a letter of intent, and offered no contract. “[If the district] did not appear to know whether in-person school would resume in the fall with the resulting need for bus drivers like [claimant], how was [claimant] supposed to have such assurance?” Award of benefits affirmed. 
Patricia A. Thiemann, Respondent, vs. Parkway School District, Appellant, and Division of Employment Security, Respondent. 
(Overview Summary) 
Missouri Court of Appeals, Eastern District – ED110402

Evidence

Expert Testimony on Tire Tracks Okay 
In a criminal action, the admissibility of expert testimony is subject to statutory standards, including reliability. Reliability is subject to the Daubert standard, which is flexible, and may consider many factors. Expert’s testimony on methods used for identifying tire tracks have been subject to scientific testing, peer review, and have a tiny error rate. Circuit court did not err in entering tire track evidence into the record.    
State of Missouri vs. James Addie 
(Overview Summary) 
Missouri Court of Appeals, Western District – WD84656 

Post-Conviction

Stay of Execution Denied 
Appellant defendant and appellant special prosecutor filed motions for stay of execution: one in connection with defendant’s direct appeal of conviction, and the other in connection with special prosecutor’s statutory action to vacate conviction for constitutional error that undermines confidence in the judgment. Neither of appellants have shown any purpose for a hearing on their respective motions because their allegations, even if true, do not support relief. Under the standard for an injunction generally, appellant offers only arguments already rejected. Under the statute, the special prosecutor does not offer clear and convincing evidence. The special prosecutor offers an oversimplified statistical analysis suggesting racial animus in general, not specifically to the defendant, and only as to the charging instrument, and not as to the conviction. Appellants do not argue actual innocence. Motions for a stay of execution denied.    
State of Missouri, Respondent, vs. Kevin Johnson, Appellant. and State of Missouri, Plaintiff/Appellant, vs. Kevin Johnson, Defendant/Appellant.   
(Overview Summary) 
Supreme Court of Missouri - SC89168 and SC99873

Claim Not Abandoned on Direct Appeal 
Rules on post-conviction relief constitute the exclusive remedy for a claim of ineffective assistance of counsel, which, “even if compelling, is not cognizable on direct appeal.” Therefore, movant does not abandon that claim by failing to raise it on direct appeal, and circuit court erred in dismissing the motion. Remanded to issue findings of fact and conclusions of law. 
MICHAEL SHAWN LEE, Appellant vs. STATE OF MISSOURI, Respondent 
Missouri Court of Appeals, Southern District – SD37214