The Missouri Supreme Court in Jefferson City heard arguments Wednesday in a wrongful death lawsuit over an incident that occurred nearly a decade ago.

Missouri Supreme Court – Image courtesy of Missouri Courts

Timothy Hill, whose father died from complications after falling near the entrance to a St. Louis area health clinic, claims the hospital either intentionally or in bad faith failed to preserve video evidence of the mishap. A jury sided with the hospital, which led to the Supreme Court appeal.

But Hill’s case before Missouri’s high bench is largely a challenge to lower court decisions made before the trial.

He claims to have presented overwhelming evidence that the health provider destroyed the video evidence in bad faith and contends the trial court should have instructed the jury that the video would’ve shown his father’s fall was caused when he tripped on an uneven walkway.

The court declined Hill’s request for those instructions to be given and denied his motion calling for the hospital to admit the video contained incriminating evidence against the business. It also denied Hill’s motion to exclude photos of the area where his father fell that were apparently taken after uneven concrete slabs were removed from the pathway.

Hill’s father, Irvin Hill, fell faced first to the ground while approaching the doors to the facility in early September 2009. He was admitted to the hospital where he suffered an intracranial bleed the same night. He subsequently fell into a coma and died the next month.

The day after his father’s fall, Hill took photos of the area where the mishap occurred. The images appeared to show two concrete slabs that were raised and uneven. That same day, Hill’s mother asked to see the security video footage of the incident, but the staff could not locate it.

The parties disputed whether Hill’s father lost his balance or tripped over the slabs, and were also at odds over why the video no longer existed.

The health provider, SSM Health Care St. Louis, contends the video footage was inadvertently destroyed because of complications with the technology being used at the time of the mishap in 2009.

It points out that the facility where the incident took place, St. Clair Hospital in Fenton, had only been open about five months. It claimed video footage which should have been saved for 10 days ended up being erased after three days because the video system lacked the capacity to store all the various activities being recorded.

St. Louis Attorney Jeffery McPherson, who represented SSM Health Care before the Supreme Court, told the judges that the lower court made the proper decision in denying Hill’s motion for jury instructions.

“There was ample evidence that there never had been any intentional effort to keep this video from being shown to anyone,” said McPherson.

Representing Hill before the high bench was St. Louis attorney Doug Dowd. He dismissed SSM’s claim over the video system’s lack of storage space as hearsay.

Dowd also noted that SSM upgraded its hard drives at the hospital and reformatted them in October 2009, which removed any previous data.

“October 22nd of ’09, seven weeks after this fall and this man’s death…shortly after he died, within a week…they went and had the computer hard drive removed, wiped out, completely eliminated,” said Dowd.

McPherson, arguing for SSM, showed the Supreme Court judges the photos Hill tried to have excluded before the trial. McPherson acknowledged they were taken after the uneven walkway where Hill’s father fell had been leveled out, but noted they included a person who had observed Hill’s father moments before the fall. That person, Dr. Brennen, was pictured in the photos standing in the spot where he’d seen Hill’s father. McPherson then introduced an exhibit which he said indicated that the father was actually beyond the uneven portion of the walkway and up to the doors of the building before he actually fell.

Dowd then rejected that interpretation and pointed out that the photos of Dr. Brennen were taken in April of 2011, the same morning that Brennen gave a deposition about where he observed Hill’s father standing two years earlier.

But McPherson produced notes before the Supreme Court that were taken by the doctor who treated Hill’s father in the hospitals’ emergency room after the fall. The doctor’s notes include the statements, “Patient states he reached for the door but fell” and “Patient says he came to hospital here today to have labs drawn as an outpatient, and when he reached to open the door he fell, striking his head.”

Dowd closed his presentation before the high bench claiming the trial court was wrong to overrule his objection to testimony offered by an expert witness for SSN, Dr. Randall Huss. Dowd noted Dr. Huss said in his deposition that dehydration “could have been” a contributing factor to Mr. Hill’s fall, but altered his opinion in court, saying that Mr. Hill’s fall was likely a result of a preexisting dehydration condition. Dowd said he was wrongly overruled on the “crucial issue in the case”.

By Dowd’s estimate, the litigation which started in 2009 has involved 22 depositions, 50 witnesses and “hundreds of thousands of dollars”. In court documents, he noted the medical bills for Hill’s father had totaled $500,000.

The Supreme Court is now deliberating the case and could hand down a decision at any time.

Copyright © 2018 · Missourinet

The Missouri Supreme Court in Jefferson City is considering the case of a man who claims he was misled into a lengthy prison sentence for a DWI conviction. The high bench will determine whether a lower court should have struck down its original conviction against him because of a faulty plea arrangement.

Michael Williams is incarcerated at the Algoa Correctional Center in Jefferson City (Image courtesy of Missouri Department of Corrections)

Michael Williams pleaded guilty to driving while intoxicated as a chronic offender in the Warren County Circuit Court in eastern Missouri in 2016.  In doing so he accepted a plea arrangement offered by the prosecutor and recommended by his attorney, which was a sentence of eight years in prison with long-term treatment.  Going to trial and being found guilty would’ve carried a sentence of between five and 15 years.

The treatment program is offered to offenders with substance abuse addiction and consists of between one and two years during a prison sentence.  Once the program is successfully completed, the rest of the offender’s sentence is typically suspended and replaced with a period of probation.

But after the trial court accepted the plea deal and sentenced him, Williams learned after being incarcerated in July of 2016 that he was ineligible for the treatment program.  Although he had four DWI convictions, he did not have the required three felonies to qualify for the treatment.

So, Williams filed a request under a provision in Missouri law that allows those who’ve pleaded guilty and claim their sentences violate the law to have their complaints heard in court.

The request was granted in Warren County.  And with a new attorney, Williams claimed his plea was involuntary because his original lawyer falsely told him he’d be placed in a treatment program.  He further claimed he was denied due process because the trial court that sentenced him did so without ensuring that he was eligible for the program.

Williams contended he would not have pleaded guilty if he knew he was ineligible for the treatment.

But the court charged with reviewing his conviction complaint concluded he failed to prove his case.   It found his contention that he would not have pleaded guilty had he known he was ineligible for the program lacked credibility.  The court determined Williams accepted the plea offer of eight years to avoid a potentially longer sentence – up to 15 years – while hoping to participate in the long-term treatment program.

It also rejected his claim that he was denied due process when the trial court failed to ensure he was eligible for treatment, concluding that he relinquished any standing to object to the trial court’s pre-sentencing actions once he pleaded guilty.

Before the Supreme Court, Assistant Attorney General Robert Bartholomew argued on behalf of the state, essentially meaning he was representing the Warren County Court.

He noted that Williams’ trial attorney informed him that he would’ve been eligible for parole early in his sentence regardless of whether he entered the treatment program. 

“He would be eligible for parole without the treatment within two years,” said Bartholomew.  “This was a (Class) B Felony, and generally that requires approximately 25% of a sentenced served before a defendant is eligible for parole.”

Attorney Ellen Flottman of the Public Defender’s Office in Columbia represented Williams in front of the high court judges.  She said the Circuit Court in Warren County broke the law when it failed to check on Williams’ eligibility for the treatment program. 

“What the statute says is that the court has to check to see if the defendant is eligible, said Flottman.  “And no one checked to see if he was eligible.”

Flottman later added that she has another case with the same set of circumstances as with Williams.  She said courts are failing to fulfill their responsibilities on a regular basis. 

“This is a gotcha,” said Flottman.  “They’re sentencing people to something that they’re not eligible for, and they’re never checking to see if they’re eligible or not.”

Flottman is asking the high bench to strike down the circuit court’s findings against Williams and cancel out his conviction.  Williams is currently incarcerated in the Algoa Correctional Center in Jefferson City.

The Supreme Court, which heard arguments last Wednesday, is deliberating the case and could hand down a decision at any time.

Copyright © 2018 · Missourinet

The Missouri Supreme Court in Jefferson City is considering a challenge to a drug possession conviction over the admissibility of evidence.  The seven judges heard arguments last week over a claim that the state’s use of a jailhouse phone call was fundamentally unfair to the defendant.

Missouri Supreme Court – Image courtesy of Missouri Courts

Foristell police in eastern Missouri arrested Danielle Zuroweste after finding a plastic baggie containing a white powdery residue in her vehicle in September 2015.  Five days after being incarcerated, Zuroweste made a phone call to a friend from jail where she used phrases such as “I learned my lesson,” “I knew it was bad,” and “I knew it was wrong.”  At trial, the state characterized the call as Zuroweste confessing to her friend that she knew she had a problem with methamphetamine.  The state then used the call to argue that she was aware of the presence of a trace amount of methamphetamine found in the baggie.

A jury convicted her of possession of a controlled substance and a trial court sentenced her to 7 years in prison and recommended she be placed in a 120-day institutional treatment program, which if successful, would allow for her release to serve a probation sentence.

Zuroweste had claimed that the jailhouse telephone call violated her right to a fair trial because she wasn’t informed until just before the trial that the prosecution planned to use it as evidence.

In June 2016, she had requested any written or recorded statements the state would be using against her.  Then in November, the prosecution informed her on the Thursday before a three-day Veterans Day holiday weekend that it intended to introduce the jailhouse call at the trial which was to begin the following Monday.

Zuroweste claimed the state violated a rule requiring it to disclose any written or recorded statements in its possession and diligently search for materials from other government personnel, and then respond to the request for the information from the defense within 10 days.  The state’s disclosure of the call came five months after Zuroweste’s request for the information.

During Wednesday’s Supreme Court hearing, Judge Brent Powell joined several other members of the bench in questioning the state’s lawyer, Assistant Attorney General Evan Buchheim, on why the prosecutor wouldn’t track down jailhouse phone calls that are a regular occurrence.

“These happen all the time on all these cases, all these cases,” said Judge Powell.  “So, it’s real hard for me to grasp how using diligence and good faith, that the prosecutor of the state shouldn’t be requesting this on a routine basis.”

The state argued that the attorney for Zuroweste had four days to review the call and that its late disclosure was not unfair because it was only a portion of the “consciousness of guilt” evidence against her which also included video showing her making secretive movements during her traffic stop.

Zuroweste contended the untimely disclosure of the telephone call left her without adequate time to investigate the call or place it in context and did not allow her sufficient time to decide whether she might plead guilty or testify in her own defense.  The State had offered her a plea agreement for a program through treatment court, in which the successful completion would result in the withdrawal of her guilty plea and dismissal of the felony drug charge.

Court records show that before the judge, Zuroweste was conflicted but declined the plea deal, saying she couldn’t fulfill the treatment court obligation because she was a single mother of two who lived hours away in southeast Missouri’s Imperial.

The attorney for the state then suggested that Zuroweste would likely not receive a conviction at trial because she didn’t have a criminal history.

The court denied Zuroweste’s motion before the trial to exclude the jailhouse call and later overruled her motion for a new trial after she was convicted.

Before the Supreme Court last week, Assistant Attorney General Buchheim claimed the defense’s attempt to exclude the call was an effort to suppress incriminating evidence against Zuroweste. 

“I think they wanted to use, and rightly so, they have the right to operate under the rules, to use the rules to try to exclude what they viewed as inculpatory statements,” said Buchheim.

Attorney Carol Jansen argued on behalf of Zuroweste before the high court, where she claimed the state willfully and intentionally violated the rules of disclosure in order to best accommodate its own schedule to review the jailhouse telephone calls. 

“The prosecutor had the duty to diligently search for them and basically just delayed that, basically said, ‘I have a really busy schedule. And so, I may have five months to prepare for this case but I’m going to delay requesting these records, to the extent that I’m only going to give defense counsel three days when her office is closed,” said Jansen.

In her written briefs for the Supreme Court, Jansen pointed out that the state had known that the defense counsel’s strategy at trial was to argue that the state failed to prove that Zuroweste knew about the baggy of methamphetamine residue that an officer found on the floorboard of her vehicle.  She claimed the state knew that the late disclosure of the jailhouse call would be “damning” evidence against the defense’s case.

In court last week, Jansen said the state should be sanctioned for its failure to follow the rules and be forced to retry Zuroweste’s case without the jailhouse phone call as evidence. 

“I think we need to send a message that there needs to be a fair playing field by the state and by the defense and that you can’t just ignore the rules,” Jansen said.

Jansen is asking the Supreme Court to return Zuroweste’s case to the circuit court in eastern Missouri’s Warren County for a new trial with an order to exclude jailhouse phone calls.

The high court will render its decision where it finishes deliberating, which could occur at any time.

Copyright © 2018 · Missourinet