Attorney Gary Eugene Brotherton's Legal Cases

Family

Shemwell v. Arni, 223 S.W. 3d 216 (Mo.App., W.D. 2007)

May 29, 2007

OUTCOME: Reversed

The maternal grandparents, who lived in Kentucky, petitioned the trial court under Mo. Rev. Stat. § 452.402.1(4) (2000) for rights to visit their grandchildren, who lived in Missouri with their mother. ... The trial court granted the grandparents visitation rights. On appeal, the mother claimed that the trial court awarded a visitation schedule that infringed upon her parental rights to raise her children. The court found that the visitation order constituted more than a minimal intrusion to the mother's family, which consisted of her two children, her new husband, and her husband's two children, who were in college. The mother and her husband desired to develop relationships with each other's children and for their children to develop relationships with each other. Because the mother and her husband both worked, the weekends and holidays were their only opportunities to bond as a family. The frequency of the grandparents' visitation would leave fewer options for the family to socialize as a unit.

Criminal defense

State v. Gonzales, 153 S.W.3d 311 (Mo.banc 2005)

Jan 25, 2005

OUTCOME: Reversed

Defendant and the victim had an altercation that resulted in the stabbing of and ultimately the death of the victim. At trial, defendant claimed that the victim was the initial aggressor and that he st ... abbed the victim in self-defense. In support of his contention, defendant sought to introduce evidence of the victim's reputation for violent, turbulent, and bizarre behavior. The trial court excluded the evidence, reasoning that the victim's reputation was irrelevant as to who was the initial aggressor absent a showing that defendant was aware of the reputation. The jury found defendant guilty of second-degree murder and armed criminal action. The supreme court reversed, however, stating that neither defendant's belief that the victim was the initial aggressor nor the reasonableness of that belief bore on the determination of who actually "started it" because the inquiry was one of objective occurrence, not of subjective belief. His evidence sought to introduce testimony of the victim's reputation for violence to prove that the victim was the initial aggressor and that evidence was relevant and admissible on that issue, regardless of defendant's knowledge of that reputation.

Criminal defense

State v. Baumruk, 85 S.W.3d 644 (Mo.banc 2002)

Aug 27, 2002

OUTCOME: Reversed

Defendant shot his wife dead at a hearing in the St. Louis County Circuit Court and was wounded in the head by police gun fire. Massive media coverage ensued. Defendant was found incompetent to stand t ... rial and the charges against him were ordered dropped. After a second indictment issued, defendant was found competent to stand trial at a second competency hearing, notwithstanding his claim of amnesia. Defendant argued on appeal that it was error to find him competent after a previous judge had found him to be incompetent and the charges against him were ordered dropped. The court held that the initial incompetency determination did not bar a subsequent determination that defendant was competent to stand trial, and that amnesia was not a bar to the prosecution of an otherwise competent defendant. Defendant also argued that it was an abuse of discretion to deny his motion for change of venue in his second prosecution. The court agreed, holding that under the unique circumstances of the case it was inherently prejudicial to hold defendant's trial at the site where the shooting occurred, and that doing so denied defendant his right to a fair trial under the 6th and 14th Amendments.

Criminal defense

State v. Tilden, 988 S.W.2d 568 (Mo.App., W.D. 1999)

Mar 16, 1999

OUTCOME: Reversed

Defendant's appeal of his sodomy conviction involved his mental competence to stand trial. Defendant asserted that trial counsel was ineffective for failing to request a mental exam. He claimed that th ... e judgment must be set aside due to the trial court's failure to sua sponte order a mental exam and hearing pursuant to Mo. Rev. Stat. § 552.020. The court first determined that there was sufficient evidence in this record to sustain the conviction. While defendant had a history of severe psychological and mental problems, however, he never had a competency hearing. The court did not determine whether defendant was competent to stand trial, but whether he had been denied due process due to failure to hold a competency hearing. The court held that the failure of the trial court, sua sponte, to order the exam prior to imposition of sentence violated the defendant's procedural rights of due process. The post-sentencing order that defendant was incompetent during appeal and needed a guardian to aid him supported the finding that a mental exam should have been held previously. Thus, the case was reversed and remanded for a new trial once defendant was found competent to proceed.

Criminal defense

State v. Scott, 943 S.W.2d 730 (Mo.App., W.D. 1997)

Feb 25, 1997

OUTCOME: Reversed

Defendant was charged under Mo. Rev. Stat. § 569.070 with breaking or causing a levee on the Mississippi River to fail, resulting in the flooding of 15,000 acres of land and the destruction of over 100 ... buildings. He was found guilty of causing a catastrophe. On appeal, the court reversed. At trial, the State informed the judge that it was disclosing to the defense inculpatory statements made by defendant to state witnesses about how he caused the levee to fail. Defense counsel immediately objected and requested a mistrial. The trial court ruled that if defendant took the stand and told of removing only four or five sandbags form the levee, the State could in rebuttal call the witnesses to testify as to defendant's statements to them. The court found that because the State sat on the evidence for one week and the first day and a half of the trial, it could not be considered newly discovered evidence. The court noted that defendant's inculpatory statements amounted to an admission of the charge. The court reasoned that the trial court's ruling prevented defendant from taking the stand as his strategy was at risk.

Criminal defense

Carr v. State, 934 S.W.2d 289 (Mo.banc 1996)

Nov 19, 1996

OUTCOME: Moore v. State was affirmed; Carr v. State was reversed

In two cases, defendants' motions for abandonment were overruled. On appeal, the court affirmed as to the first defendant but reversed as to the second defendant. In the first case, defendant filed a p ... ro se Rule 24.035 motion challenging the effectiveness of his plea counsel. The motion court appointed a public defender, who filed an affidavit indicating that he had reviewed the record, inquired of defendant regarding additional claims or facts, explained to defendant his rights, and determined that the pro se motion included all colorable post-conviction claims known. The court concluded that in this case, there was nothing in the record to support a claim that post-conviction counsel abandoned this first defendant. In the second case, defendant filed a Rule 24.035 motion, and the motion court appointed a public defender. Post-conviction counsel filed a statement that he had reviewed the file, but had not reviewed the transcripts of the plea hearing, the sentencing hearing, or defendant's pro se motion. The court held that the statement was tantamount to a confession of abandonment.

Criminal defense

State v. Jones, 914 S.W.2d 852 (Mo.App., E.D. 1996)

Feb 06, 1996

OUTCOME: Reversed

The jury convicted defendant, a church pastor, of sexually assaulting two boys who attended his church. Defendant argued on appeal that the trial court improperly overruled his objection to the State's ... evidence of uncharged misconduct. Noting that evidence of uncharged misconduct was inadmissible unless it fell within specific exceptions, the court ruled that testimony concerning defendant's sexual misconduct with other boys and other pastors did not fall within the signature modus operandi corroboration exception because, though similar to the crimes charged, the misconduct was not so unusual or distinctive as to be a signature. The court concluded that the erroneously admitted evidence was not harmless and that reversal was warranted.

Criminal defense

State v. Whardo, 859 S.W.2d 138 (Mo.banc 1993)

Aug 17, 1993

OUTCOME: Reversed

Defendant appealed a decision from the Court of Appeals, Southern District (Missouri), affirming the denial of post-conviction relief for his conviction on two separate counts of selling marijuana in v ... iolation of Mo. Rev. Stat. § 195.020.1 (1986), and imposition of two seven-year prison sentences to run concurrently. On direct appeal the appellate court remanded for a jury determination of the amount of marijuana sold. The court granted transfer.

Gary Eugene Brotherton's Legal Cases (8)

Shemwell v. Arni, 223 S.W. 3d 216 (Mo.App., W.D. 2007)

State v. Gonzales, 153 S.W.3d 311 (Mo.banc 2005)

State v. Baumruk, 85 S.W.3d 644 (Mo.banc 2002)

State v. Tilden, 988 S.W.2d 568 (Mo.App., W.D. 1999)

State v. Scott, 943 S.W.2d 730 (Mo.App., W.D. 1997)

Carr v. State, 934 S.W.2d 289 (Mo.banc 1996)

State v. Jones, 914 S.W.2d 852 (Mo.App., E.D. 1996)

State v. Whardo, 859 S.W.2d 138 (Mo.banc 1993)