MISSOURI COURT OF APPEALS-WESTERN DISTRICT
DIVISION 3 (PFEIFFER, P.J., WITT AND GABBERT, JJ.)
APRIL 2, 2015
UNIVERSITY OF MISSOURI AT COLUMBIA LAW SCHOOL
COLUMBIA, MISSOURI
WD77784
Matthew Wahl, Appellant
vs.
Watco Companies, LLC, Respondent
___________________________________________________
On or about July 19, 2010, Matthew Wahl (Appellant) sustained an injury
while working within the scope of his duties as a mechanic for Watco Companies,
LLC (Respondent). Specifically, Appellant was in the process of repairing a
railroad car when he felt sudden and intense pain in his back and left leg. In
Appellant’s first amended petition, he claimed that his injuries were due to
Respondent’s failure to provide a safe work environment. Appellant also alleged
that Respondent was a common carrier by railroad, and as such, filed his cause of
action in accordance with the Federal Employer’s Liability Act. Respondent filed
a motion for summary judgment on the basis that it is not a “common carrier by
railroad,” and therefore, could not be subject to liability under the Federal
Employer’s Liability Act. In July of 2014, the trial court granted Respondent’s
motion for summary judgment.
Appellant’s point on appeal:
The trial court erred in granting Defendant’s Motion for Summary
Judgment because Defendant was a common carrier by railroad, in that
Defendant is part of an integrated corporate family that includes common
carriers by railroad and Defendant constitutes a necessary link to those carriers.
WD77259
Jeffrey S. Sterling, Appellant,
vs.
State of Missouri, Respondent
___________________________________________________
On November 24, 2008, Jeffrey Sterling (Appellant) shot and killed Jerry
Thompson. Appellant was charged with first degree murder and armed criminal
action. At trial, Appellant presented evidence of self-defense and submitted a
self- defense instruction. The jury was also instructed on murder in the first
degree, murder in the second degree and involuntary manslaughter. The jury
was not instructed on voluntary manslaughter. Appellant was found guilty of
second degree murder and armed criminal action. He was sentenced to twenty
years for murder in the second degree and five years for armed criminal action, to
run consecutively. Appellant filed a direct appeal to this court in 2010. Appellant
voluntarily dismissed the appeal after his direct appeal counsel advised him that
the issue regarding the lack of a voluntary manslaughter instruction should be
raised in a post-conviction claim of ineffective assistance of counsel. After the
direct appeal was dismissed, Appellant filed a Rule 29.15 motion in which he
claimed: (1) trial counsel was ineffective for failing to request that the trial court
instruct the jury on voluntary manslaughter, (2) the trial court erred in failing to
submit a voluntary manslaughter instruction, and (3) direct appeal counsel gave
him bad advice when she told him he would be better off dismissing his direct
appeal and filing a Form 40. An evidentiary hearing was held on March 29 and
July 10 of 2013. In January of 2014, the trial court denied Appellant’s motion for
post-conviction relief.
Appellant’s points on appeal:
(1) The motion court clearly erred in denying Appellant’s Rule 29.15 motion
because a review of the record leaves a definite and firm impression that
Appellant was denied effective assistance of counsel under the Sixth and
Fourteenth Amendments to the United States Constitution and Article I,
§18(a) of the Missouri Constitution in that his trial counsel failed to act as
a reasonably competent attorney under same or similar circumstances
when he failed to submit, record and preserve a voluntary manslaughter
instruction on the record, because such instruction was supported by the
evidence and should have been given to the jury, and Mr. Sterling was
prejudiced because, if counsel had adequately submitted such instruction,
the result of his trial or appeal would have been different, in that a
reasonable probability exists that the trial judge would have been required
to submit the instruction and the jury would have found him guilty of
voluntary manslaughter instead of second degree murder, and had the
court erroneously failed to submit such instruction, the error would have
been preserved, raised and reversed on direct appeal.
(2) The motion court clearly erred in denying Appellant’s Rule 29.15 motion
because a review of the record leaves a definite and firm impression that
the trial court erred in refusing to instruct the jury on voluntary
manslaughter, because the evidence injected the issue of “sudden passion
arising from adequate cause” and gave the jury a basis to acquit Appellant
of second degree murder and find him guilty of voluntary manslaughter
and therefore the trial court’s ruling deprived Jeff of his rights to due
process and a fair trial, as guaranteed by the 5th, 6th, and 14th
Amendments to the United States Constitution and Article I, §§10 and
18(a) of the Missouri Constitution in that, during the encounter in the
driveway, Jerry Thompson threatened to beat Appellant to death, picked
up a shovel out of a pickup truck with anger on his face, and, knowing of
Jerry’s violent reputation, Appellant shot him out of fear. Since the trial
court failed to make the required record of the instruction, the issue could
not be adequately evaluated on appeal, and Appellant unintelligently
dismissed his appeal, thinking the issue could be raised as ineffective
assistance of counsel for failure to submit the instruction in his postconviction case, and these are “rare and exceptional” circumstances where
“fundamental fairness” requires review of trial court error in the postconviction setting.
(3) The motion court clearly erred in denying Appellant’s Rule 29.15 motion
because a review of the record leaves a definite and firm impression that
Appellant was denied effective assistance of appellate counsel under the
Sixth and Fourteenth Amendments to the United States Constitution and
Article I, §18(a) of the Missouri Constitution in that his appellate counsel
failed to act as a reasonably competent attorney under same or similar
circumstances when she advised Appellant to dismiss his direct appeal
before investigating and correcting the trial record to reflect that a
voluntary manslaughter instruction had been requested and denied off the
record, because such instruction was supported by the evidence and
should have been given to the jury, and Appellant was prejudiced because,
a reasonable probability exists that if appellate counsel had adequately
investigated the record, she would not have advised Appellant to dismiss
his appeal, this issue would have been raised on direct appeal and this
Court would have reversed for a new trial.
WD77869
State of Missouri, Appellant,
vs.
Kraig J. Walker, Respondent
___________________________________________________
In April of 2014, the State filed an information charging Kraig J. Walker
(Respondent) with possession of a controlled substance with intent to distribute,
a Class B felony. On October 29, 2013, close to midnight, Sergeant Jason Payne
of the Jefferson City Police Department was contacted by a bondsman with the
location of Damien Rotter, who had a felony warrant. The bondsman told Sgt.
Payne where to find Mr. Rotter and that he would be driving a white Dodge
Charger. When Sgt. Payne located the white Charger, it was about to run into a
Chevy Suburban. Sgt. Payne activated the emergency lights on his car to conduct
a traffic stop. As Sgt. Payne approached the white Charger, he noticed Mr. Rotter
trying to hide in the backseat. Sgt. Payne told the driver of the car (Respondent)
that he was a police officer twice, as Respondent was doing something with his
hands underneath the steering wheel. Sgt. Payne drew his weapon and ordered
Respondent to show his hands. Meanwhile, another officer got Mr. Rotter out of
the backseat and placed him in handcuffs. When Respondent did not respond,
Sgt. Payne opened the driver’s side door. Respondent’s hands were still under
the steering wheel and a gun was lying at his feet. After Sgt. Payne removed
Respondent from the vehicle, another officer took control of him, and Sgt. Payne
went around to the passenger side to remove Lindsay Rotter. When Sgt. Payne
removed Ms. Rotter from the car, he noticed a little bag on her knees that was
covered in a white residue. The rest of the interior of the car was searched and
they found marijuana on the floorboards and several small empty baggies in the
center console. A search of the trunk uncovered a book bag that contained
several more baggies, a digital scale and marijuana.
Respondent filed a motion to suppress the physical evidence, claiming the
search and seizure were made without a warrant and without other lawful
authority or justification. After a suppression hearing, the trial court granted
Respondent’s motion, finding that the officers were not authorized to conduct a
search incident to arrest because there was no reason to believe that the officer
would find further evidence of the crime for which Respondent was arrested,
possession of a firearm.
Appellant’s point on appeal:
The trial court clearly erred in granting Defendant’s motion to suppress
the physical evidence because the search of Defendant’s vehicle by police was
justified under the automobile exception in that the baggie covered in what
appeared to be methamphetamine residue was legally sufficient to support
probable cause that Defendant’s car contained contraband, which was also
supported under the totality of the circumstances, based upon the fact that a
wanted fugitive was hiding in Respondent’s back seat, Respondent failed to
respond to the officer’s instructions that he raise his hands so they were visible,
and the police found a gun on the floorboard of Respondent’s car.
WD77399
Fay Kunce n/k/a Faye Graham, Respondent,
vs.
Jeffrey J. Kunce, Appellant.
__________________________________________________
Appellant and Respondent were married in 1979. In 2010, the parties
divorced. Pursuant to the judgment, Appellant was ordered to pay Respondent
$1,800 a month in maintenance. After the parties divorced, Respondent began
dating Jesse Biddle. In June of 2o11, Respondent and Mr. Biddle participated in
a “celebration of relationship” ceremony in Vermont. Respondent maintained it
was not a legally recognized marriage. Appellant filed a motion to terminate, or
in the alternative to reduce maintenance. The trial court denied Appellant’s
motion to terminate maintenance, finding that Respondent had not remarried.
The trial court also found that there had not been a substantial and continuing
change to modify the prior maintenance award and ordered Appellant to pay
$34,200.oo in back maintenance payments. The court also gave Appellant a
credit of $2,400 for overpayment of child support and ordered him to pay
$1,500.oo of Respondent’s attorney’s fees.
Appellants’ points on appeal:
(1) The trial court erred in denying Appellant’s motion to terminate
maintenance, because said judgment is not supported by substantial
evidence, is against the weight of the evidence, erroneously declares
and applies the law, and is an abuse of discretion in that the
respondent remarried and her maintenance should have terminated
upon remarriage pursuant to Rsmo 452.075 and Rsmo 452.370.
(2) The trial court erred in denying Appellant’s motion to modify
maintenance because said judgment is not supported by substantial
evidence, is against the weight of the evidence, is against the logic of
the circumstances, and is arbitrary and unreasonable in that Appellant
proved a substantial and continuing change in circumstances and the
Respondent did not adduce evidence to support a continued award of
$1800 per month from Appellant and the court improperly included
rental and health insurance expense when calculating Respondent’s
reasonable expenses.
(3) The trial court erred in entering its judgment awarding $1,500.00
attorney’s fees to Respondent because said judgment is not supported
by substantial evidence, is against the weight of the evidence, is against
the logic of the circumstances, and is arbitrary and unreasonable in
that the evaluation of totality of the circumstances does not support an
award of attorney’s fees.