*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, 840 S.W.2d 850 Ervin, 835 S.W.2d 905

1992). Appellant’s case is also similar to

those which the multiple defendant used

means to cause the victim’s death. State v.

Lingar, 726 S.W.2d 728 crime,

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, 863 S.W.2d at 879. 537.610 Section summary judgment ITT whom was entered. equal protection does not violate the clause of Corp. Commercial Finance v. Mid-America the Missouri Constitution. Supply Corp., Marine essentially is Review de novo, propriety summary judg Uniformity of Taxation purely ment is an issue of law. Id. Sum argue imposing The Fishers also mary judgment proper genuine is when no cap principle on violates the moving issue of material fact exists and the taxation, IV, citing uniform section party is entitled to as a matter of 30(b) of the Missouri Constitution. The 74.04(c); law. Rule Truck Krause U.S. point Fishers did not raise this below. A question constitutional is unless waived general Millstone was the contractor for oppor

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 3 L.Ed.2d 1377 I II sent as to Part I. concur Parts Weatherproofing, United opinion. principal III of the analogous situation, negli- this Court has held that the

gent highway construction of a so as to flood taking farmer’s land pay just obliged

which the State was com-