Call v. Heard

• Decision Date: 25 June 1996
• Docket Number: No. 78455,78455
• Parties: Mary Beth CALL, et al., Respondents, v. Joseph Allen HEARD, Appellant.
• Court: Missouri Supreme Court

Page 840

925 S.W.2d 840

Mary Beth CALL, et al., Respondents, v. Joseph Allen HEARD, Appellant.

No. 78455.

Supreme Court of Missouri En Banc.

June 25, 1996.

Rehearing Denied Aug. 20, 1996.

Susan Ford Robertson, Columbia, for appellant.

Ronald R. McMillin, Charles J. McPheeters, Jefferson City, for respondents.

LIMBAUGH, Justice.

Joseph Heard appeals from a judgment in this court-tried case awarding $9.5 million in compensatory damages and $9.5 million in punitive damages for the wrongful deaths of Richard, Beth, and Daniel Call. Our jurisdiction is based upon Article V, § 3, of the Missouri Constitution, because Heard challenges the validity of a state statute. ¹ We affirm in part and reverse in part.

I.

On June 22, 1993, Appellant Joseph Heard, then 19, purchased beer at Mike's Corner Pocket in Jefferson City using an altered driver's license. After drinking approximately two six-packs, he went to his pickup truck and began driving home along Cole County Route B. About the same time, Richard and Mary Beth Call and their three children, Beth, Daniel, and Heather, left a softball game and began their drive home. Their route took them along Cole County Route B as well, but in the opposite direction of Heard. The two vehicles collided when Heard's truck crossed the center line into the Calls' lane. As a result of the accident, Richard, Beth, and Daniel Call were killed, and Mary Beth and Heather Call were injured.

Heard was arrested and pled guilty to three counts of involuntary manslaughter. He was sentenced to seven years in prison. At all times during the pendency of this case he was incarcerated.

On June 25, 1994, Mary Beth and Heather Call filed suit against Heard for their own injuries and for the wrongful deaths of Richard, Daniel, and Beth Call. The Calls, with notice to defense counsel, but without leave of court, took Heard's deposition on August, 22, 1994. Defense counsel did not attend the deposition, and it was stricken for failure by plaintiffs to obtain leave of court as required by Rule 57.03(a).

The case was set for trial on July 18, 1995. One week before, on July 11, 1995, Heard requested a writ of habeas corpus ad testificandum in order to allow him to testify at the trial. The next day the trial court issued the writ. Thereafter, on July 17, 1995, the Department of Corrections, citing § 491.230.2, RSMo 1994, indicated its intention not to release Heard. Then on the day of trial, Heard requested a continuance until he could secure his release or until his videotaped deposition could be obtained. Despite allegations that he would be denied his constitutional rights, the motion was denied.

At trial, the Calls presented evidence that moments before the accident another driver had almost been run off the same road by someone in a truck matching the description of Heard's truck. Evidence was also introduced that Heard crossed the center line, that he was driving while intoxicated, and that he pled guilty to the criminal charges arising from the verdict. Heard called no witnesses, and the only evidence he presented was to read admissions against interest made by Mary Beth Call. The trial court, sitting without a jury, found in favor of the Calls, assessed 100% of the fault to Heard, and further found that Heard's actions warranted the imposition of punitive damages. The court then assessed damages in the following amounts:

Count I (wrongful death of Richard Call):

Compensatory Damages: $2.5 million

Aggravated/Punitive Damages: $2.5 million

Apportioned $2.5 million to each Mary and Heather Call

Count II (wrongful death of Beth Call):

Compensatory Damages: $2.5 million

Aggravated/Punitive Damages: $2.5 million

Apportioned $2.5 million to each Mary and Heather Call

Count III (wrongful death of Daniel Call):

Compensatory Damages: $2.5 million

Aggravated/Punitive Damages: $2.5 million

Apportioned $2.5 million to each Mary and Heather Call

Count V (personal injuries to Heather Call):

Actual Damages: $500,000

Punitive Damages: $500,000

Count VI (personal injuries to Mary Beth Call):

Actual Damages: $1.5 million

Punitive Damages: $1.5 million.

Heard now appeals, alleging as his primary points the following: 1) that § 491.230.2, RSMo 1994, pertaining to the attendance of incarcerated persons at civil proceedings, is unconstitutional; 2) that the imposition of punitive damages violates due process; 3) that Heather Call did not have statutory authority to pursue a claim for the wrongful deaths of her siblings; and 4) that prejudgment interest should not have been awarded.

II.

In relevant part, § 491.230.2, RSMo 1994, states:

No person detained in a correctional facility of the department of corrections shall appear and attend or be caused to appear and attend any civil proceeding, regardless of whether he is a party, except in those instances in which the offender is a respondent in a chapter 211 proceeding to terminate parental rights. ²

In three separate points relied on, Heard challenges § 491.230.2, RSMo 1994, as violative of the Missouri Constitution. He cites Article I, § 14 (open access to the courts), Article I, § 12 (writ of habeas corpus shall never be suspended), Article II, § 1 (separation of powers), and Article I, § 10 (due process). He also contends that the statute is unconstitutional under the 14th Amendment of the United States Constitution (due process and equal protection). In evaluating these issues, we are mindful of the rule of construction that statutes are presumed constitutional. State v. Schleiermacher, 924 S.W.2d 269, 275 (Mo. banc 1996).

Initially, we note that Heard failed to present an offer of proof regarding the substance of his testimony. Appellate courts will not guess at what the evidence will show, but are instead bound by what the "cold record" reflects. Without an offer of proof, we cannot ascertain how Heard was prejudiced by the operation of the statute, if at all. For this reason alone, we cannot find that Heard's claims of error warrant reversal.

Heard first claims that the statute prevents him from gaining access to the courts. Certainly, there is no question that a constitutional right to access to the courts exists and that the prison system may not unduly interfere with a prisoner's access to the courts. Bounds v. Smith, 430 U.S. 817, 821-23, 97 S.Ct. 1491, 1494-96, 52 L.Ed.2d 72 (1977). However, this does not mean that a prisoner is entitled to perfect access; a prisoner is entitled, instead, to meaningful access. Id. at 823, 97 S.Ct. at 1495-96. For that reason, it does not automatically follow that the right of access to the courts encompasses a right to personally appear at a civil trial. Fruit v. Norris, 905 F.2d 1147, 1150 n. 6 (8th Cir.1990); State ex rel. Kittrell v. Carr, 878 S.W.2d 859 (Mo.App.1994). Of the dozens of cases, both state and federal, that have addressed this issue, none has ruled otherwise. Jay M. Zitter, Annotation, State Prisoner's Right to Personally Appear at Civil Trial to which he is a Party-State Court Cases, 82 A.L.R.4th 1063 (1990) (citing cases). Moreover, it is well-established that constitutionally sufficient access can be afforded by means other than the live presence at trial of the person in question. See, e.g., State ex rel. Taylor v. Dorsey, 81 Wash.App. 414, 914 P.2d 773, 777 (1996); Throndset v. Hawkenson, 532 N.W.2d 394, 397 (N.D.1995); In the Interest of C.G., 885 P.2d 355, 357 (Colo.App.1994). In Missouri, prisoners can testify either by conventional deposition or by videotaped deposition. Rule 57.07(a)(3)(B). In fact, on a prisoner's request, the trial judge may, in his or her discretion, conduct a bench trial within the prison in cases where the prisoner is a party. § 544.275, RSMo 1994. Given the significant alternatives to a prisoner's live presence at the courthouse, we hold that § 491.230.2 does not deprive a prisoner of meaningful access to the courts.

Heard argues alternatively that the trial judge denied him meaningful access by failing to afford him the alternatives to a personal appearance mentioned above. This claim is more properly couched as an objection to the denial of the day-of-trial motion for continuance. The record shows that Heard had almost thirteen months from the date the case was filed and three months from the date the trial setting was announced to secure a deposition or to request that the trial be held where he was incarcerated. Instead, just one week before trial, Heard requested a writ of habeas corpus which, although granted by the trial judge, was not honored by the Department of Corrections. As stated, after failing to obtain his release pursuant to the writ, he then requested a continuance to take his deposition. A decision to grant a continuance is within the sound discretion of the trial court. State v. Brown, 902 S.W.2d 278, 289 (Mo. banc) cert. denied --- U.S. ----, 116 S.Ct. 679, 133 L.Ed.2d 527 (1995). This Court will not disturb the exercise of that discretion where it is apparent, as here, that the party should have been more diligent in preserving his or her testimony, having had ample time to do so. Although we find no abuse of discretion in this case, we observe that as a general proposition, trial judges should make reasonable and practicable efforts to accommodate the needs of prisoners for alternatives to live testimony.

In the next sub-issue, Heard states that the statute violates both the equal protection and due process clauses in two respects: (1) that the statute unlawfully draws a distinction between prisoners and other types of "legally disabled" persons by denying prisoners access to the courts, while affording access to those other persons; and (2) that the statute acts to deny him the right of access to the courts, which is a fundamental right.

Heard cites no authority that prisoners constitute a suspect class. By all accounts, the status of suspect class in the law of equal protection is reserved for classifications of race, national...