*1 physical upon Mary Taylor abuse
killing unreasonably Joyce FISHER, was therefore brutal al., Appellants, et and, thereof, as a result the murder was vile, outrageously wantonly horrible and STATE HIGHWAY COMMISSION OF inhuman. MISSOURI, al., Respondents. et ample sup- There is more than evidence No. 79284. porting aggravators. both of these The evi- Taylor’s dence shows that Roberts went to Missouri, Supreme Court of property home to obtain he could sell or En Banc. and, fact, exchange for crack cocaine did June 1997. money take from the victim’s Aug. murder, Rehearing Denied brutality residence. As to the of the Roberts struck the victim numerous times hammer, her, her, kicked choked her, her, finally
stabbed slashed tried to
drown her. considering whether the death imposed proportion
sentence in this case is
ate, we imposed consider the death sentence
in other similar cases. Roberts’s case is
similar to other eases in which the defendant
invades a home and occupant murders
order to obtain something of value. State
Hunter,
1992). Appellant’s case is also similar to
those which the multiple defendant used
means to cause the victim’s death. State v.
Lingar,
Considering the strength
evidence, herein, and the defendant we do disproportionate
not find Roberts’s sentence imposed
to that that in other cases.
XX. guilt degree for first mur-
der, the sentence of death and the order
overruling appellant’s Rule 29.15 motion are
affirmed.
All concur. *2 Pulos, Jason C. Sehlapprizzi,
Donald L. Louis, Lebowitz, appellants. for Albert St. Tiemeyer, Zachary Cartwright, T. Rich Ward, Donald L. City, T. Michael Jefferson James, Buckley, K. Rahoy, Eugene P. John Louis, respondents. St. Nixon, Attorney (Jay) Gener- W.
Jeremiah Presson, Attorney al, L. Assistant Robert General, City, for intervenor. Jefferson BENTON, life, Judge. liberty, pursuit happiness 11, 1989, Joyce riding On June Fisher was industry....” motorcycle on St. Louis County. bridge On the over St. Charles The Missouri Constitution of 1820 did not *3 Road, motorcycle Rock her tires became enjoyment gains of the of reference “the trapped groove left the deterioration ap industry.” phrase their own This first expansion joint. of the seal lost She peared Rights Declaration of the the of motorcycle control of the and suffered seri- enjoy Missouri Constitution of 1865 as “the permanent injuries. ous ment of the fruits of their own labor.” Mo. Fisher sued the State Commis- I, Although art. sec. the Const. of Missouri, sion of contractor Millstone Con- wording the Constitution modified Company, struction and subcontractor Iron- enjoyment of the of their own Corporation, negligence master strict industry,” change in sub this was not a liability. Fisher, husband, Richard sued stance. 2 the Missouri Debates Constitu of trial, for loss of consortium. Before the cir- (Isidor tional Convention at 7 Loeb of cuit court summary sustained motions for Shoemaker, eds., 1932); Floyd Mo. Ironmaster, judgment by Millstone and leav- II, language Const. art. sec. ing the Commission as the sole defendant. unchanged in the 1875 Constitution continued jury percent assessed fault 90 to the in the 1945 Constitution. 5 Debates percent Commission and 10 to Fisher. The Missouri Constitutional Convention at $2,500,000 jury returned on the claim of Joyce $500,000 Fisher and on the consortium Drake, Charles D. the author of the Con claims, claim of Richard Fisher. both On stitution of studied the constitutions of trial court limited to a total of states, $100,000 particularly Maryland other pursuant Con to section 537.610.1 Be- March, validity issue, stitution of 1864. David D. cause the of a at Charles statute is this Const, V., jurisdiction. D. Court has Mo. Drake and the Constitutional Convention art. (1953), sec. 3. Affirmed. Mo. Hist. Rev. Drake, citing Autobiography Charles D. I. Constitutional Issues (date. unknown) D. Charles Drake 1054-55 (unpublished manuscript, on file with West The Fishers raise several constitutional Collection, Manuscript ern Historical Colum challenges validity to the of section 537.610. Missouri). bia, fact, language This Court held in High Richardson v. State Maryland prac Missouri and constitutions is way Commission, and Transportation tically Compare identical. Mo. Const. 1993), (“the I, enjoyment art. sec. of the section 537.610 does not equal protec violate labor”) tion, process law, fruits of due their own with Md. Const. of trial (“the by jury proceeds art. 1 under the Fourteenth of the Amendment labor”). provision the United States Constitution and under their own This 22(a) article sections apply of the intended to to the condition of the Missouri Constitution. The Fishers in recently here Hinkley, slaves freed. Edward Otis provisions voke other of the Missouri Consti Maryland The Constitution the State tution. (John Murphy & Co. The voters approved who the 1865 Constitution would Enjoyment A. of the Gains provision have understood the on “fruits of Industry of Their Own apply recently their own labor” to provision in freed slaves. No other the 1945 capping The Fishers claim that their dam- $100,000 expressly prohibits Missouri ages violates Constitution their slavery involuntary section 2 of the servitude. See 1 Missouri Constitu- persons tion: “... that all a natural have Journal the Constitutional Convention statutory 1. All references are to RSMo 1994. $100,000 tort (82d cap only on certain claims 1943-1944, ing a day, Feb. at 13-14
Missouri the law. equal rights under 14, 1944). them denies “enjoyment of the origin protection equal Under workplace industry” phrase is in rationally clause, if survives a classification this Court slavery. Equally, the cases of interest. Asher legitimate state related to a labor, occupa discussing phrase concern this Lombardi, tions, marketplace. See professions, and apply if test does This traditional this Only three times has Appendix A im suspect class or burdens a the statute a law: phrase this to invalidate Court invoked “A Id. statute pinges a fundamental individuals to government forced twice when right nor a fundamental that neither touches rel. compensation, State ex work without will with suspect classification involves a *4 (Mo. Roper, 688 768-69 Scott v. challenge if a ra equal protection stand Whisman, Moler v. banc legislative classification for the tional basis and once when 987-88 S.W. Richardson, 863 S.W.2d can be found.” selling from a prevented the state individuals Kinsey, rel. Knese v. product, lawful State ex a sus Cf. not reference The Fishers do Federal Labor Union Baue v. Embalmers negli government pect class. Victims (Mo. 234-35 banc No. suspect class. members of gence are not purpose home for 1964)(picketing of funeral University Mis Batek v. Curators See owner-partners from embalm preventing (Mo. 1996). souri, banc establishment, against held ing in their own however, Fishers, attempt refer- 2). I, in section public policy article the Missouri right under a fundamental ence provision Clearly, this constitutional enjoyment Constitution to “the immunity. sovereign Sover negate not not industry.” Richardson does own joined when Missouri eign immunity Fishers, existed control, because the according to the City, City Kansas Findley v. the Union. a fundamental Richardsons did not reference 1990). (Mo. Sover banc Richardson, at 879. The recognized in Missouri eign immunity facts, whether, the term on these issue is phrase was “enjoyment gains” before gains of their enjoyment of the to the Missouri Constitution added under industry” a fundamental creates immunity prevailed when the sovereign Missouri protection clause of the equal 1865, 1875 and 1945 constitutions of Missouri Constitution. approving adopted. Missouri’s When were above, this constitutional outlined As constitutions, never have the citizens could applies only to conditions provision enjoyment of the thought that “the Further, implicitly marketplace. this Court abrogated sov industry” provision their own rights argument rejected a fundamental immunity. Equally, “the ereign readoption of legislature’s holding that partial to a phrase has no relevance gains” immunity, limited waiver sovereign immunity. Section sovereign waiver of equal protection violate immunity, did not 2 of article section not violate 537.610 does or Missouri States the United under either Semble, Schu Constitution. Reorganized See Constitutions. Winston Comm’n, Hwy Transp. mann v. Missouri R-2, District School (Mo.App.1995). 1982), and sec. citing sec. 537.600 required, scrutiny is thus 537.610. Strict Equal Protection B. if it is rational upheld statute will be and the that section 537.610 Fishers assert state interest. legitimate ly related to a section of part of article another violates Assembly rational ba- has a per- “The General “... that all the Missouri Constitution: monetary responsibility that full sis to fear are entitled equal created sons are insolvency risk of entails the for tort claims opportunity equal rights and law_” Restricting the burdens. intolerable tax impos- that contend The Fishers
fill
Against
limiting recovery
amount recoverable—like
II. Claim
Millstone
to certain enumerated torts—allows for fiscal
The Fishers contend that the trial court
planning
orderly stewardship
consonant with
summary
judgment
erred in
funds,
governmental
permitting
while
Millstone. This Court reviews the record
something.”
some victims to recover
Rich
light
party against
most favorable to the
ardson,
raised in the trial court at the earliest bridge project. provid The Commission *5 Reed, tunity . Crittenton v. specifications, plans, drawings ed all and (Mo. 1996). 406 banc This not Court need project. accepted the The Commission the address the uniform taxation issue. project completed. when The trial court
granted summary judgment on the based doctrine, acceptance which relieves contrac Open Remedy D. Courts and Certain liability parties tors of those The Fishers assert that section 537.610 accepts contract after the owner the contrac violates their right fundamental of access to Co., tor’s work. v. Shell Gast Oil S.W.2d remedy the courts and to a certain (Mo. 1991). banc section of the Missouri Constitu- Fishers concede that the work The tion. accepted by the Commission and that normally preclude recovery. this would distinguished “This Court has be However, they exception invoke the that a tween impose procedural statutes that bars essentially contractor is for a liable defect access, change and statutes that the com imminently dangerous and to others that is (or of) by mon law the elimination limitation reasonably so hidden and concealed that Adams, a cause of action.” at S.W.2d it, inspection careful would not disclose and permitted; 905. The former are not the which was known to the contractor but not latter are a valid legislative exercise of a Id., citing Begley the owner. v. Adaber Re prerogative. right Id. “The constitutional (Mo. Co., alty and Inv. simply pursue of access means the in 1962). the courts the causes of action the substan Here, there was no such defect. Millstone recognizes.” tive Briggs, law Wheeler gap expansion joint the filled (Mo. banc sealant, by as directed the Commission. The expansion joint only dangerous years became Here, section 537.610 does not bar later after the Commission failed to maintain law, access. At common there was no the sealant. The defect was not hidden damages. to sue the State for tort The concealed, by as demonstrated the communi- action, legislature can create a but cause cations Millstone the between and Commis- Findley, limit it. See 396. exception apply in sion. The does not this Section 537.610 limits a cause of action case. capping damages against for tort claims State, genuine not violate article section The Fishers also claim issues of (1) material fact as to whether Millstone (2) IV. specifications, and
complied with the obviously were so specifications whether circuit court is af- judgment of the recog would competent that a contractor bad firmed. product would be grave that its nize a chance Art Bloemer v. dangerously unsafe. See ROBERTSON, LIMBAUGH, Co., (Mo.App. Welding WHITE, JJ., concur. COVINGTON support nothing to The record contains C.J., HOLSTEIN, part concurs in undisputed fact that the Com- Fishers. opinion filed. part separate dissents that Mill- accepted project shows mission J., PRICE, opinion concurs specifications. The complied with the stone HOLSTEIN, C.J. by obvi- not caused Fishers’ were by the Commis- ously specifications, but bad replace the seal- maintain or
sion’s failure to
A
APPENDIX
ant.
Roper, 688
rel.
State ex
Scott
any
(Mo.
dis-
[4,
1985);
Fishers have not established
In Inter
5]
respect
puted
J.Y.,
of material fact with
issues
673[7]
est of
Accordingly,
Newlon,
circuit court did
Millstone.
State v.
summary judgment.
denied,
granting
banc),
not err in
459 U.S.
cert.
612-13[5]
74 L.Ed.2d
103 S.Ct.
Against Ironmaster
III. Claim
Maryland Heights
rel.
Concrete
ex
Ferriss,
Contractors,
Inc. v.
trial court
The Fishers assert
1979); Independent
91[2]
490 —
to Ir-
summary judgment
erred in
Higdon,
Inc.
Stave
subcontractor,
Ironmaster,
pro-
onmaster.
*6
1978);
[4,
ex rel.
State
5]
428-29
construction, and fabrica-
engineering,
vided
Girardeau,
Cape
507 S.W.2d
Lipps City
v.
of
joint. The
expansion
on the
tion services
(Mo.1974);
[4, 5,
v.
376,
Baue
6]
380-81
acceptance doctrine
contend that the
Fishers
21301,
No.
Federal Labor Union
Embalmers
it is a
apply
to Ironmaster because
[3,
230,
234-35
4]
376 S.W.2d
a contrac-
representative, not
manufacturer’s
Rolla,
City
348 S.W.2d
Riden v.
of
fabricator.
tor or
(Mo.1961);
[1,
Liqui
946, 948,
ABC
5]
950
acceptance
extends
doctrine
The
876,
dators,
City, 322 S.W.2d
Inc. v. Kansas
manufactured and install
custom
to “chattels
(Mo.1959);
City
882,
[5,
Ingle v.
13]
884
of
plans
the customer’s
in accordance with
ed
(Mo.1953);
666,
Fulton,
667-68[2]
260 S.W.2d
Bloemer,
specifications.”
and
547,
68,
Priest,
206
King
357 Mo.
S.W.2d
v.
Here,
establishes that Iron-
the record
Lawson,
(1947);
352 Mo.
v.
State
557[13]
from the
shop drawings
prepared
master
5,
(1944);
[4,
1168,
508,
6]
512
before
plans
specifications
and
Commission’s
Steelville,
413, 173
351 Mo.
City
v.
Zinn
joint.
Ironmaster
Ironmaster fabricated
(1943);
398,
[1,
Hammett v.
2]
400-01
it,
anchors to
expansion joint, welded
cut the
192,
70,
City, 351 Mo.
Kansas
loca
specifically determined
placed welds at
Williams,
(1943);
Mo.
345
Ex Parte
73[3]
sandblasted,
joint,
tions,
painted the
all
and
(1940);
485,
Poole
487-88[1]
Ironmaster su
according
specifications.
Breshears, 343 Mo.
v.
Market Co.
& Creber
by Millstone of
pervised the installation
(1938);
23,
[2,
1133,
3]
27-28
accepted by the Commis
joint,
was
which
107,
Co.,
107-
Moyer v.
Coal
Orek
sion.
(Mo.1934);
v.
ex rel. Becker Well
State
08[2]
988,
547,
Dist., Mo.
chattel,
332
ston Sewer
joint
custom-
expansion
Lamp
(1933);
v.
&
Mellon
Stockton
according
992[7]
and installed
manufactured
974,
129,
kin,
975[3]
326 Mo.
of the Commission.
plans
specifications
Kinsey, 314
(1930);
Knese v.
ex rel.
State
applies to Ironmas-
acceptance doctrine
(1926);
437, 439[5]
80,
Kusnetz
282 S.W.
Mo.
not err
The trial court did
ter.
143,
Co., Mo.
281 S.W.
Security
313
ky
Ins.
v.
summary judgment.
613
pensation.
Implement Co. v. Mo.
Heins
Comm’n,
Transp.
859
Highway &
47,
[5,
(1926);
51-52
6]
Cheek v. Prudential
(Mo.banc
principles,
these
Given
Co.,
387,
(Mo.1916);
Ins.
393[8]
S.W.
necessarily
negligent
it
follows that the
tak-
Lutz,
123,
704,
Heller v.
254 Mo.
164 S.W.
fundamental,
by
consti-
ing
the State of one’s
[4,
(1913);
Whisman,
125-27
6]
Moler v.
liberty
tutionally protected
571,
985,
[5,
(1912);
Mo.
147 S.W.
987-88
9]
engage
employment
pro-
in lawful
is
right to
Co.,
338,
State v. Missouri Pac. R.
242 Mo.
just compensation
payment
hibited absent
118,
[10,
(1912);
122-25
S.W.
Ex
11]
process
of law.
other due
Smith,
111,
parte
607,
231 Mo.
132 S.W.
principal opinion’s
Even the
narrow view
(1910); City
Liessing,
609[3]
St. Louis v.
2,
of Missouri Constitution article
sec.
464,
611,
(1905);
190 Mo.
89 S.W.
613[1]
proves
opin-
I
too much. As understand the
692,
926,
Labsap,
Allen v.
188 Mo.
87 S.W.
ion,
it
holds that
(1905);
928-29[4]
State v. Missouri Tie &
industry” only
of [one’s]
Co.,
536,
933,
Timber
181 Mo.
80 S.W.
prohibits involuntary
interfering
servitude or
(1904);
Galt,
City
8,
St. Louis v.
179 Mo.
person’s right
keep
dispose
876,
(1903); City
77 S.W.
St. Louis
878[2]
property acquired through employment. Ac-
McCann,
1016,
v.
157 Mo.
57 S.W.
true,
cepting that
I
(1900);
as
believe the State’s
City
Meyrose
1017[1]
St. Louis v. F.
imposition
disabling injury
plain-
Co.,
upon
of a
p-Manuf'g
Lam
139 Mo.
tiff
(1897);
compulsory
is a form
servitude from
Daggs
S.W.
245-46
v. Orient
Moreover,
plaintiff
escape.
[4,
which the
cannot
Ins.
136 Mo.
38 S.W.
5]
(1896);
Julow,
plaintiff
deprived
previously
will be
ac-
State
129 Mo.
31 S.W.
(1895);
Loomis,
quired earnings
in-
meager
782-83
and whatever
State
(1893);
Henry
may
capable
producing
S.W.
come she
now be
351-53
Evans,
by
pay
Coatsworth
being
Co.
forced to
medical and rehabili-
S.W.
Addington,
expenses
upon
by
culpa-
872-73[3]
State v.
77 tation
thrust
aff'g Mo.App.
Mo.
agents.
ble conduct of the State’s
She is
thereby deprived by the
of the right
HOLSTEIN,
Justice,
Chief
dissenting
enjoy
industry.
of her own
part
concurring
part.
possible
may
It is
the State
limit its liabili-
majority
fails to mention the full
case,
ty.
plaintiff
only
In this
seeks
econom-
range
rights protected by
ic
in excess of that authorized
Constitution,
provides:
sec. 2.
It
*7
compensation
sec. 537.610. Just
and due
persons
“[T]hat all
have a
right
natural
to
process require
payment
plain-
at least the
life, liberty,
pursuit
happiness
tiffs actual economic loss attributable to the
of their own indus-
agents.
or its
try.”
together,
provisions give
Taken
these
persons in
right
this state a fundamental
my separate opinion
As noted in
in Rich-
hold,
lawfully acquire,
enjoy
dispose
Transportation
ardson v. State
property.
City
Jefferson,
Commission,
Stone v.
(1927).
necessary
293 S.W.
1993)(Holstein, J.,
result),
A
concurring
adjunct
that right
pursue
is the
sovereign immunity
doctrine
is of
business,
any
calling,
profession.
lawful
questionable
origin
common law
and is not
Indeed,
business,
pursue
a citizen’s
a
supported by sound reason. When the doc-
calling,
profession
liberty
is both a
trine
into
comes
direct conflict with funda-
property right
guarded
zealously
to be
as
as
rights,
mental constitutional
it is the doctrine
any
other
fundamental
Greene
way,
give
that should
not the constitution.
474, 492,
McElroy, 360 U.S.
79 S.Ct.
reasons,
respectfully
For the
I
above
dis-
(1959); Downey
gent highway construction of a so as to flood taking farmer’s land pay just obliged
which the State was com-