author: VANMETER, Judge.

text:
    Terry FORD, Appellant, v. Bill RATLIFF, Individually; Bill Ratliff, d/b/a Ratliff Drilling; and Scottsdale Insurance Company, Appellees.
    No. 2004-CA-000022-MR.
    Court of Appeals of Kentucky.
    Jan. 13, 2006.

      Gerald Derossett, Johnny Ray Harris, Prestonsburg, KY, for appellant.
    Lee A. Smith, Prestonsburg, KY, for appellee Scottsdale Insurance Company.
    Before TAYLOR and VANMETER, Judges; POTTER, Senior Judge.

      . Senior Judge John Woods Potter sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

VANMETER, Judge.

Terry Ford appeals from an order of the Knott Circuit Court dismissing her complaint against Scottsdale Insurance Company. For the following reasons, we affirm.

Ford filed a complaint against Vernon Smith for damages arising from an August 18, 1998, automobile accident in Hindman, Kentucky, involving a vehicle driven by Smith and owned by his alleged employers, defendants Ward Ratliff, Bill Ratliff, and Ratliff Drilling, collectively referred to as the Ratliffs. Appellee Scottsdale Insurance Company maintained a general liability insurance policy on behalf of Ward and Bill Ratliff.

On March 8, 2002, Ford, Smith, and the Ratliffs entered into a Settlement Agreement and Partial Release which stated, in part, that in consideration of Ford’s claims and the payment of $100,000 under an automobile liability policy,

the receipt of which is hereby acknowledged Ford does release and discharge Releasees, their successors in interest, heirs, assigns, past, present, and future officers, directors, stockholders, attorneys, agents, representatives, employees, administrators and executors from any and all past, present and future claims except to the extent that there is any other insurance coverage applicable to said claims under a certain policy of insurance issued by Scottsdale Insurance Company to Ward Ratliff and Bill Ratliff, d/b/a Ratliff Drilling Company, that being policy of insurance number CLS449942. This Release includes all demands, actions, and claims which Ford may have or which may hereafter accrue against Releasees, arising out of or relating to the automobile accident herein described and which is the subject matter to the above styled action. This Release includes all demands, actions, and claims which Ford may have or which may hereafter accrue, including without limitation, claims of property damage, personal injury, medical expenses, pain and suffering, disability, loss of earnings, loss of earning capacity, uninsurance coverage, underinsurance coverage, or any other allegation arising out or relating to the motor vehicle accident herein described and which is subject to the above styled civil action, except as hereinabove setforth....
Notwithstanding any judgment or verdict that may be rendered for Releasor and/or for her heirs, administrators, executors, and successors in interest in the aforementioned civil action, Releasor covenants that she or her successors in interest, heirs, administrators and/or executors shall not levy for execution or otherwise effect collection, or seek to proceed further in the suit against the Releasees, except for enforcement against Scottsdale Insurance Company of any part of any Judgment covered by that policy of Insurance issued by Scottsdale Insurance Company, being policy of insurance number CLS449942. Releasor further agrees not to levy or sue for execution, attachments or other legal remedies against Releasees as a result of any judgment which may be entered against Releasees in the aforementioned civil action except as herein-above setforth. Releasor agrees to accept the aforementioned sum of One Hundred Thousand ($100,000.00) Dollars in full and complete satisfaction of any judgment which may be entered against said Releasees in the aforementioned civil action or any other civil action or proceeding arising out of the motor vehicle accident which is the subject matter of this litigation, except as hereinabove set forth.

Subsequently on April 30 an agreed order was entered which stated in full as follows:

The Plaintiff, Terry Ford, and the Defendants, Vernon Smith, Ward Ratliff, D/B/A Ratliff Drilling, and Bill Ratliff, D/B/A Ratliff Drilling having agreed, and the Court being fully and sufficiently advised;
IT IS HEREBY ORDERED AND ADJUDGED that any and all claims of the Plaintiff, Terry Ford, against the Defendants, Vernon Smith, Ward Ratliff, D/B/A Ratliff Drilling, and Bill Ratliff, D/B/A Ratliff Drilling, be and the same are hereby dismissed with prejudice, as settled.

Thereafter, on July 31, Ford amended her complaint to include a count against Scottsdale. Scottsdale filed a motion to dismiss Ford’s amended complaint, arguing that a Kentucky plaintiff must file suit directly against his tortfeasor, not against the tortfeasor’s insurance company. After a hearing, the court indicated that it would dismiss Ford’s claim against Scottsdale unless Ford could produce the assignment of rights which she claimed she was given as part of the settlement. When Ford was unable to locate the alleged assignment, she moved the court to enforce the settlement agreement and compel Smith and the Ratliffs to execute an assignment. In support thereof, Ford claimed that an assignment of rights was a material part of the settlement agreement, the settlement agreement required Smith and the Ratliffs to execute an assignment, and they had previously executed an assignment which could not be located. Smith and the Rat-liffs responded that they had fully complied with the settlement agreement but they had never executed an assignment because it was not part of the settlement agreement. The court ultimately dismissed Ford’s claim against Scottsdale on August 19, 2003.

Ford then moved the court to alter, amend or vacate its order of dismissal, alleging that an assignment of rights was a material part of the applicable settlement agreement, that Smith and the Ratliffs had refused to execute a written assignment, and that the court should compel them to do so. The court denied Ford’s motion. This appeal followed.

Ford obviously was unable to produce the assignment of rights which she alleged to have been given below. Nevertheless, she maintains on appeal that the circuit court erred in granting Scottsdale’s motion to dismiss, because the court should have compelled Smith and the Ratliffs to provide the assignment of rights contemplated by the settlement agreement. We disagree.

A settlement agreement is a type of contract which is governed by contract law. Accordingly, we must first determine whether the settlement agreement is ambiguous, or “capable of more than one different, reasonable interpretation.” If so,

then extrinsic evidence may be resorted to in an effort to determine the intention of the parties; if not, then extrinsic evidence may not be resorted to. The criterion in determining the intention of the parties is not what did the parties mean to say, but rather the criterion is what did the parties mean by what they said.

Additionally, if the language of a contract “is unambiguous, the meaning of the language is a question of law, and the intent of the parties must be discerned from the words used in the instrument.” Here, we find that the settlement agreement is unambiguous in that it settles Ford’s claims against Smith and the Ratliffs to the extent of any coverage provided under the automobile policy issued by Kentucky Farm Bureau. In Kentucky, “the release of one joint tortfeasor releases all, provided there is no agreement to reserve the claimant’s rights against the others.” The settlement agreement in the matter now before us reserved Ford’s right to pursue a suit against Smith and the Rat-liffs to the extent of any coverage provided under the policy issued by Scottsdale.

However, after entering into the settlement agreement, the parties also entered into an agreed order which unequivocally dismissed “any and all” of Ford’s claims against Smith and the Ratliffs with prejudice. Contrary to direct action jurisdictions, in Kentucky “an injured person cannot sue the insurance company in his original action against the insured.” Thus, Ford could not voluntarily dismiss “any and all” of her claims against Smith and the Ratliffs with prejudice and then proceed directly against Scottsdale.

Ford contends that “[t]he settlement agreement specifically reserves Ford’s rights to go against Scottsdale and requires Ratcliff [sic] to execute necessary paperwork to allow that.” Presumably, Ford makes this assertion based on Section Six of the settlement agreement, which provides that “[t]he parties agree to cooperate fully and execute any and all supplemental documents and to take all additional actions which may be necessary or appropriate to give full force and effect to the basic terms and intent of this Release.” We agree that the settlement agreement reserves Ford’s claims against Smith and the Ratliffs to the extent of any coverage by the Scottsdale policy. However, we do not believe that this language requires the execution of an assignment of rights. Further, there is no discussion of an assignment of any rights elsewhere in the settlement agreement or the agreed order of dismissal which would allow Ford to proceed directly against Scottsdale.

The order of the Knott Circuit Court is affirmed.

TAYLOR, Judge, concurs.

POTTER, Senior Judge, dissents.

      . The proceedings below also involved a third-party complaint against two other drivers on the road at the time of the accident, Andrew Rose and William Frazier; however, those allegations are not relevant to Ford’s claims on appeal.

      . Although Ford is the only party who signed the Settlement Agreement and Partial Release, defendants Smith and the Ratliffs acknowledged below that they agreed to the document. Moreover, both parties rely on the document in support of their positions on appeal.

      . Frear v. P.T.A. Industries, Inc., 103 S.W.3d 99, 105 (Ky.2003).

      . Central Bank & Trust Co. v. Kincaid, 617 S.W.2d 32, 33 (Ky.1981).

      . Id.

      . Luttrell v. Cooper Industries, Inc., 60 F.Supp.2d 629, 631 (E.D.Ky.1998) (quoting Taggart v. U.S., 880 F.2d 867, 870 (6th Cir.1989)).

      . Beech v. Deere & Co., 614 S.W.2d 254, 257 (Ky.App.1981).

      . Progressive Northern Ins. Co. v. Corder, 15 S.W.3d 381, 391 n. 8 (Ky.2000) (Cooper, J., dissenting).

      . Cuppy v. General Accident Fire & Life Assurance Corp., 378 S.W.2d 629, 632 (Ky.1964). The Cuppy court excepted cases of insolvency and bankruptcy from this rule. Id.


source: Caselaw Access Project

author: POTTER, Senior Judge.

license: Public Domain

text:
    COMMONWEALTH of Kentucky, Appellant, v. Orville Eugene SHOUSE, Appellee.
    No. 2005-CA-000071-MR.
    Court of Appeals of Kentucky.
    Jan. 13, 2006.
    Gregory D. Stumbo, Attorney General of Kentucky, Matthew D. Nelson, Thom A. Marshall, Assistant Attorneys General, Frankfort, KY, for appellant.
    No appellee brief filed.
    Before GUIDUGLI and HENRY, Judges; POTTER, Senior Judge.

      . Senior Judge John Woods Potter sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

   OPINION

POTTER, Senior Judge.

The issue presented in this appeal is whether a defendant who has successfully completed a felony diversion program may have the records of his case expunged under KRS 431.076. We hold that under the facts of this case he can.

In December 1999, Mr. Shouse pled guilty to a class D felony and entered a pretrial diversion program. The agreement he signed with the Commonwealth prior to entering into the program provided in part:

I understand that upon successful completion of the terms and conditions of the Pretrial Diversion Program I may petition the Court for expungement of the dismissed-diverted charge.

The order granting pretrial diversion contained the following statement:

If the defendant successfully completes Pretrial Diversion, the charges will be designated as Dismissed-Diverted. The defendant has been advised that upon successful completion of the diversion he/she may petition the Court for ex-pungement of the record.

Both the agreement and the pretrial diversion order were completed on forms provided for that purpose by the Administrative Office of the Courts, presumably with the approval of the Supreme Court of Kentucky pursuant to KRS 533.260.

After successfully completing the diversion program, Mr. Shouse moved, under the terms of the pretrial order, for dismissal of all charges. By order entered in December 2001, the trial judge ordered the charge against Mr. Shouse “dismissed” and specifically directed that the record reflect that the charge was “ ‘dismissed-diverted’ pursuant to KRS 533.258(1).” Three years later, in October 2004, Mr. Shouse moved to have the record expunged. After the Commonwealth objected, the trial judge initially denied the motion to expunge and instead ordered that “Defendant’s arrest records are segregated pursuant to KRS 17.142.” Mr. Shouse asked the court to reconsider the denial of his motion to expunge the record and on December 28, 2004, the trial judge set aside his previous order and granted the motion for expungement. This appeal followed.

In Hyatt v. Commonwealth, 17 S.W.3d 121 (Ky.App.2000), this Court held that one who has successfully completed a diversion program may have his records segregated under KRS 17.142(1). That statute permits the segregation of records in the hands of public agencies where a defendant:

(a) Is found innocent of the offense for which the records were made; or
(b) Has had all charges relating to the offense dismissed; or
(c) Has had all charges relating to the offense withdrawn.

York v. Commonwealth, 815 S.W.2d 415 (Ky.App.1991) holds that court records do not fall within the purview of the segregation statute.

Mr. Shouse sought to have his record expunged under KRS 431.076, which is available to a “person who has been charged with a criminal offense and who has been found not guilty of the offense, or against whom charges have been dismissed with prejudice.... ” By its own terms, the statute applies to all records, including court records. To summarize the distinction between the two statutes, segregation applies to “dismissed” cases and does not affect court records; ex-pungement requires that a case be “dismissed with prejudice” and seals court records.

In granting Mr. Shouse’s motion for ex-pungement, the trial judge emphasized the fact that both the diversion agreement and the order approving the diversion program directly addressed the matter, advising the defendant “that upon successful completion of the diversion he may petition the court for expungement of the record.” The Commonwealth argues, however, that Mr. Shouse does not meet the statutory criterion for expungement because his charge was not dismissed “with prejudice.” It also points to a potential problem in allowing Mr. Shouse’s records to be expunged. A person may apply for pretrial diversion only once in every five years. Expungement might prevent the prosecution from adequately addressing whether a defendant qualifies for pretrial diversion. We find no merit in either contention.

First, KRS 533.258(1), the statute upon which the Commonwealth relies in support of its contention that Mr. Shouse cannot meet the requirements for expungement, specifies only that dismissal after a successful diversion program may be “listed,” whatever that means, as “dismissed diverted.” RCr 8.04(5), on the other hand, specifically and forcefully addresses the disposition of successful diversions:

Upon the expiration of the period of suspension of prosecution and upon the completion of the agreement and where there is no motion by the Attorney for the Commonwealth to terminate the agreement upon any grounds permitted under this Rule, the indictment, complaint or charges which are the subject matter of the agreement shall be dismissed with prejudice. (Emphasis added.)

Thus, the trial judge did not err in concluding that the action against Mr. Shouse was dismissed with prejudice and that he was therefore entitled to avail himself of the expungement statute.

As to the contention that the granting of expungement will preclude the Commonwealth from assessing a defendant’s eligibility for pre-trial diversion, the expungement statute specifically provides that the person affected may move the court to allow others to inspect his expunged record. KRS 431.076(6).

KRS 533.258(2) provides that after successful completion of a diversion agreement a defendant “shall not be required to list this disposition [of the diverted charges] on any application for employment, licensure, or otherwise unless required to do so by federal law.” In Hyatt, supra at 123, the Court addressed the purpose of pretrial diversion programs stating:

It is clear that the legislature intends for a successful pretrial diversion to, in effect, wipe the slate clean as to those charges. The legislature does not intend for the successful participant to be stigmatized....

This legislative goal would be thwarted to a significant degree if a successful participant’s record were readily available to the public through court records.

For these reasons, we are convinced that allowing a successful participant in a pretrial diversion program to expunge the record of his participation in that program best carries out the legislative intent. This approach conforms to the Supreme Court rules and does not violate any statutory prohibition.

We affirm the decision of the Breathitt Circuit Court allowing expungement of Mr. Shouse’s record.

ALL CONCUR.


author: RICHARD B. TEITELMAN, Judge.

text:
    Michael TISIUS, Appellant, v. STATE of Missouri, Respondent.
    No. SC 86534.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 2006.
    Rehearing Denied Feb. 28, 2006.

      Janet Thompson, J. Gregory Mermel-stein, Office of Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Andrea K. Spillars, Asst. Atty. Gen., Deborah Daniels, Asst. Atty. Gen., Nathan A. Arun-ski, Asst. Atty. Gen., Stephanie M. Mor-rell, Asst. Atty. Gen., Jefferson City, for Respondent.
   RICHARD B. TEITELMAN, Judge.

Michael Tisius was sentenced to death for the murders of two guards at the Randolph County jail. Tisius appeals a judgment overruling his Rule 29.15 motion for post-conviction relief. The judgment is affirmed.

FACTS

In June of 2000, Tisius was an inmate at the Randolph County Jail. Tisius’ sentence was thirty days. Tisius’ cellmate, Roy Vance, told Tisius that he was serving a fifty-year sentence. While incarcerated together, Tisius and Vance devised a plan in which Tisius would return to the jail and assist Vance with an escape plan.

After his release, Tisius contacted Vance’s girlfriend, Trade Bulington, who said that she wanted to carry out the escape plan. Bulington and Tisius visited the jail on several occasions. During some of these visits, Tisius carried a .22 caliber pistol that Bulington had taken from her parents’ home. On June 21, 2000, Tisius and Bulington decided to break Vance out of jail. Tisius told Bulington “he was going to go in and start shooting” and that he would go “in with a blaze of glory.” At 12:15 a.m. on June 22, Tisius and Buling-ton arrived at the jail.

Tisius and Bulington were admitted into the jail by officers Jason Acton and Leon Egley. Tisius had the pistol in his pants pocket. After making small talk for about ten minutes, Tisius drew the pistol from his pocket and, from a distance of two to four feet, shot Acton in the forehead. Officer Egley responded. Tisius shot him, Egley fell to the floor, and Tisius went to release Vance from his cell. Tisius could not open the cell and went to search for more keys. While Tisius was searching for keys, Egley, wounded and lying on the floor, grabbed Tisius’ leg. Tisius killed Egley by shooting him several more times.

Tisius and Bulington fled in her automobile and were apprehended by police. Ti-sius waived his Miranda rights and offered oral and written confessions to the murders. At trial, Tisius admitted he shot the two officers, but argued that he did so without deliberation. The jury convicted Tisius of two counts of first degree murder, and he was sentenced to death. This Court affirmed the convictions and sentence on direct appeal. State v. Tisius, 92 S.W.3d 751 (Mo. banc 2002), cert. denied 539 U.S. 920, 123 S.Ct. 2287, 156 L.Ed.2d 140 (2003).

Tisius timely filed his pro se Rule 29.15 motion for post-conviction relief, alleging several instances of ineffective assistance of counsel. Appointed counsel filed an amended motion. The motion court held an evidentiary hearing on the amended motion and remanded the case for a new penalty phase, but denied relief on Tisius’ guilt phase claims. Tisius appeals.

STANDARD OF REVIEW

Rule 29.15 sets forth the procedure for litigating claims of ineffective assistance of counsel where the defendant has been convicted of a felony. There are two components to a claim of ineffective assistance of counsel. First, a movant must show that counsel’s performance “did not conform to the degree of skill, care, and diligence of a reasonably competent attorney.” State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998)(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a presumption that counsel acted professionally and that any challenged action was part of counsel’s sound trial strategy. Id. Second, if the movant establishes that counsel’s performance was not reasonably competent, then the movant must demonstrate the he or she was prejudiced by counsel’s performance. Id. To demonstrate prejudice, a movant must show that, but for counsel’s poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different. Id.

“This Court will uphold the findings and conclusions of the motion court unless they are clearly erroneous.” Rule 29.15(k). Findings and conclusions are clearly erroneous if, after reviewing the entire record, the appellate court has the definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000).

ANALYSIS

I. Prosecutorial Misconduct

Tisius contends that the prosecutor knowingly presented false and misleading evidence and argument suggesting that he, not Tracie Bulington, had stolen the gun from Bulington’s mother’s residence. Tisi-us also contends that trial counsel was ineffective for failing to object properly to this evidence and that appellate counsel was ineffective for failing to raise the issue on direct appeal.

Prior to trial, Tracie testified that she had taken the gun. She repeated this testimony during the penalty phase. During the guilt phase, Patsy Bulington testified that a few days prior to the murders, she left Tisius at her home alone while she ran an errand. Patsy then testified that on the morning of the murders, her husband called and asked her to look for the .22 caliber pistol they kept in their bedroom. Patsy discovered that the gun and a box of ammunition were missing. The prosecutor referenced Patsy’s testimony during the guilt phase closing argument, arguing as follows: “Let’s talk about deliberation. This weapon was taken by stealth. We know that because Patsy Bul-ington told us that.” Tisius’ counsel objected that the argument was a “misstatement of the evidence” as it implied that Tisius had stolen the gun. The objection was overruled.

The motion court found that the reference to the gun being taken by stealth was relevant to deliberation by Tisius, Buling-ton, and Vance in planning the escape. The court also found that Tisius’ claim of ineffective assistance for failure to preserve this point was not cognizable and that there was no prejudice due to the strength of the guilt phase'evidence.

A freestanding claim of prosecu-torial misconduct is generally not cognizable in a Rule 29.15 proceeding. Rule 29.15 is not á substitute for direct appeal. State v. Carter, 955 S.W.2d 548, 555 (Mo. banc 1997). Claims of trial error will only be considered in a Rule 29.15 motion where fundamental fairness requires, and then, only in rare and exceptional circumstances. Schneider v. State, 787 S.W.2d 718, 721 (Mo. banc 1990). If the alleged misconduct was apparent at trial, then it is an issue for direct appeal, not a Rule 29.15 proceeding. Accordingly, this Court has reviewed claims of prosecutorial misconduct in a Rule 29.15 proceeding when the alleged misconduct was serious and would not be apparent during the trial. For instance, in Middleton v. State, the Court reviewed a Rule 29.15 claim alleging the state’s failure to disclose a “deal” with- a prosecution witness. 103 S.W.3d 726, 733 (Mo. banc 2003). Unlike a claim of withheld evidence, which would not be known to a movant during trial or direct appeal, a claim involving allegedly improper argument was apparent at trial and could have been raised on direct appeal. The motion court did not clearly err in concluding that Tisius’ freestanding claims of prosecutorial misconduct are not cognizable, as such claims involve allegedly improper argument that would have been apparent at trial.

Counsel was not ineffective for fading to object to the allegedly improper argument. The prosecutor’s evidence and argument was not false. The evidence and argument that the weapon was taken by stealth was, as the motion court found, relevant to the issue of deliberation as it indicated that taking the gun was part of the escape plan. Who actually took the gun is secondary. Moreover, there was substantial evidence of deliberation. The evidence showed that Tisius visited Vance at the jail on multiple occasions to plan the escape and test fired the gun prior to the escape attempt. Tisius carried on a conversation with one of the officers for several minutes before deciding to shoot officer Acton. He then shot officer Egley. When officer Egley, wounded and lying on the ground, grabbed Tisius’ leg, Tisius shot him again. There was overwhelming evidence of deliberation to support the jury’s verdict. Even if counsel would have had a meritorious objection to the prosecutor’s statement, the failure to make the objection was not prejudicial. The motion court did not clearly err in denying relief on Tisius’ claims of prosecutorial misconduct and trial counsel’s failure to object thereto.

Tisius’ argument that appellate counsel was ineffective for failing to raise the issue on appeal is also without merit. No objection was made, so the issue was not preserved. Appellate counsel is not ineffective for failing to raise unpreserved allegations of error. Honeycutt v. State, 54 S.W.3d 633, 650 (Mo.App.2001). The motion court did not clearly err in denying relief on this claim.

II. Failure to Call a Handwriting Expert

At trial, counsel attempted to introduce a letter allegedly written by Vance, which provided details of the escape plan. The letter was addressed to “Karl” and was signed by “Roy.” The letter stated that that there was no “button for help” at the jail and that “camera doesn’t even record anything so they wouldn’t even have a clue who did it.” The letter further stated that “[t]here isn’t any of them that work here with enough heart to play hero as long as it’s done right.” The letter contains no reference to any plan to use violence against the guards. The trial court ruled the letter inadmissible because there was no foundation that Vance actually wrote the letter.

Tisius argues that the letter was crucial to his defense that he only planned to assist Vance in escaping from jail and did not contemplate killing anyone. He asserts that trial counsel was ineffective for failing to retain a handwriting expert to authenticate the letter because it was crucial to his defense that he did not deliberate.

“When a movant claims ineffective assistance of counsel for failure to locate and present expert witnesses, he must show that such experts existed at the time of trial, that they could have been located through reasonable investigation, and that the testimony of these witnesses would have benefited movant’s defense.” State v. Davis, 814 S.W.2d 593, 603-604 (Mo. banc 1991). If the letter had been authenticated and admitted into evidence, it would not have benefited Tisius’ defense. The letter was not written by Tisius or addressed to him and, therefore, has little or no relevance to his state of mind at the time he shot the guards. The facts relevant to Tisius’ state of mind are, as discussed above, his participation in planning the escape attempt, his decision to bring the gun into the jail, and his decision to shoot each guard multiple times. The letter does not show that Tisius did not deliberate prior to murdering the guards or that he was under the control of Vance and Bulington. The motion court did not clearly err in denying relief on this claim.

III. Failure to Object to Admission of T-shirt

Tisius alleges that trial counsel was ineffective for failing to object to the admission of and references to a T-shirt emblazoned with the slogan “Guardians of Paradise” and the image of a “snarling, winged, tiger-like animal, his talons extended over the yin and yang sign, and his taloned wings encircling his body.” He alleges that the slogan and associated imagery improperly allowed the jury to speculate that Tisius was associated with an anti-social group. Trial counsel testified at the evidentiary hearing that he did not find the T-shirt objectionable because he “had no idea what the ‘Guardians of Paradise’ is” and had never heard of it. The motion court found that Tisius had introduced no evidence regarding the identity or existence of the Guardians of Paradise or how the jury would have concluded it was an anti-social group. Tisius bears the burden of proving his claims of ineffective assistance of counsel. Rule 29.15(1). Without evidence as to what, if anything, the shirt referenced or meant, the motion court could have only sustained Tisius’ point through speculation. Tisius did not carry his burden, and there is no reasonable probability that Tisius was convicted and sentenced based upon the images on the shirt. The motion court did not clearly err in denying relief on this claim.

IV. Failure to Object to Verdict Directors

Tisius alleges trial counsel was ineffective for failing to object at the instruction conference to the verdict directors for first and second-degree murder because the instructions failed to meaningfully distinguish between the two offenses. Tisius argues that the definition of “deliberation” in the first degree murder verdict director focuses on the passage of time and, “by that focus, eliminates consideration of ‘cool reflection,’ which is the essence of ‘deliberation.’ ”

The verdict director for first degree murder was patterned after MAI-CR 3d 313.02 and contained the following paragraph:

Third, that the defendant did so after deliberation, which means cool reflection upon the matter for any length of time no matter how brief.

The verdict director for second degree murder was patterned after MAI 3d 313.04 and was the same as the first-degree verdict director except that it omitted the deliberation instruction. The instruction properly states the statutory definition of “deliberation.” See, section 565.002(3). Similar challenges to this definition have previously been denied. State v. Middleton, 998 S.W.2d 520, 524 (Mo. banc 1999); State v. Rousan, 961 S.W.2d 831, 851-52 (Mo. banc 1998). Counsel is not ineffective for declining to raise an objection that is foreclosed by settled authority. Scott v. State, 741 S.W.2d 692, 693 (Mo.App.1987). The motion court did not clearly err in denying relief on this claim.

V. Failure to Object to Reasonable Doubt Instruction

Tisius alleges that trial counsel was ineffective for failing to object at the instruction conference to the instruction defining “reasonable doubt.” The instruction defined “proof beyond a reasonable doubt” as proof “that leaves you firmly convinced of the defendant’s guilt. The law does not require proof that overcomes every possible doubt.” Tisius maintains the that the term “firmly convinced” lowered the state’s burden of proof by allowing the jury to “equate its firmly convinced standard with the clear and convincing evidence standard of civil cases.” Similar attacks on MAI-CR 3d 302.04 have been repeatedly rejected by this Court. State v. Brown, 998 S.W.2d 531, 552 (Mo. banc 1999); State v. Harris, 870 S.W.2d 798, 811[28] (Mo. banc 1994), State v. Debler, 856 S.W.2d 641, 652 (Mo. banc 1993). Counsel is not ineffective for declining to raise an objection that is foreclosed by settled authority. Scott v. State, 741 S.W.2d 692, 693 (Mo.App.1987). The motion court did not clearly err in denying relief on this claim.

VI. Failure to Raise Issue on Direct Appeal

Tisius alleges that appellate counsel was ineffective for failing to raise on direct appeal issues regarding the admission and display on a large screen ten autopsy photos of the two victims. To prevail on a claim of ineffective assistance of appellate counsel, the movant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it. The claimed error must have been sufficiently serious to create a reasonable probability that, if it was raised, the outcome of the appeal would have been different. Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

At trial, the State’s first witness was the medical examiner. During the examiner’s testimony, the prosecutor moved to admit the ten autopsy photos. Trial counsel objected based upon an earlier motion in limine and argued that the cause of death was not at issue and the photos were unduly prejudicial. The photographs were admitted. At the evidentiary hearing, appellate counsel testified that while she believed the admission of the photographs may have “technically” been a good point, she did not believe a point on this issue “had much of a chance on appeal.” Counsel also noted that the State does not have to stipulate to facts and is required to prove the death of the victims. The motion court found that appellate counsel had a reasonable strategic motive for not raising the issue.

The autopsy photographs were relevant to the issues of deliberation and intent because they showed the nature, location, and extent of the wounds. See, State v. Ervin, 979 S.W.2d 149, 159 (Mo. banc 1998)(multiple wounds support inference of deliberation). The graphic nature of the photographs does not necessarily compel the conclusion of undue prejudice. “Insofar as photographs tend to be shocking or gruesome, it is almost always because the crime is shocking or gruesome.” State v. Rousan, 961 S.W.2d 831, 844 (Mo. banc 1998). The projection of previously admitted photographs is permissible when the enlarged photographs serve legitimate purposes. State v. Wolfe, 13 S.W.3d 248, 263-264 (Mo. banc 2000). A claim of error regarding the admission or projection of the photographs would not likely have required reversal on appeal. The motion court did not clearly err in finding that appellate counsel was not ineffective.

VII. Improper Statements on Voir Dire and in Argument

Tisius alleges several instances during voir dire and in guilt phase closing argument in which the prosecutor committed misconduct and in which trial counsel was ineffective for fading to object.

A. Voir Dire

During voir dire, the prosecutor told the panel that a county prosecutor can request assistance from the attorney general in a case and that the Randolph County prosecutor had requested such assistance because the county “has not had the misfortune of having that many murders so it is not something with which he comes into contact regularly.” Trial counsel did not object to this statement. In his amended motion, Tisius alleged that this statement suggested to the jury panel that the case was among the worst in the county and warranted the death penalty. The prosecutor’s explanation did not suggest a qualitative difference between Tisius’ case and other murder cases. The motion court did not clearly err in finding that Tisius was not prejudiced by the comment and that trial counsel was not ineffective for failing to object.

Tisius also alleges that counsel was ineffective for failing to ask the panel whether they could consider the different mental states for first and second-degree murder. Tisius contends that counsel’s failure prevented him from discovering whether prospective jurors could impartially consider second degree murder in a case in which law enforcement officers were the victims. Jurors are presumed to follow the court’s instructions. State v. Gilbert, 103 S.W.3d 743, 751 (Mo. banc 2003). The jury was instructed on the difference between first and second-degree murder. Tisius’ speculative allegations do not overcome the presumption that the jury followed the instructions. The motion court did not clearly err in denying relief on this claim.

B. Closing Argument

Tisius alleges five instances in which counsel was ineffective for failing to object to statements made in closing arguments.

First, Tisius alleges that counsel was ineffective for failing to object to the following argument:

Did the defendant commit murder in the second degree? Yes. Because murder in the second degree is a lesser included offense. What does that mean? That means that if you commit murder in the first-degree, murder in the second degree has also been committed. You have to in order to commit murder in the first degree have done something more. And that was deliberation. That’s the only difference between murder in the second degree of one submission than the other, murder in the second. But keep in mind if you find that he did the three elements he shot these two men, he knew that he was doing was likely to kill. And he did it after deliberation, you don’t even have to consider the rest of it. You look at murder second if and only if you do not believe that we proved those things beyond a reasonable doubt. But we did.

Tisius claims that this was an improper “acquittal first” argument because it told the jury that it could only consider second degree murder if they first acquitted him of first degree murder. Missouri’s instructions on lesser-included offenses do not require that the defendant first be acquitted of the greater offense before the jury can consider the lesser offense. State v. Wise, 879 S.W.2d 494, 517 (Mo. banc 1994). Instead, MAI-CR3d 313.04 provides that juries are allowed to consider the lesser-included offense if they “do not find the defendant guilty” of the greater offense. Id. Therefore, an acquittal first argument is a misstatement of the law and can constitute reversible error.

Tisius’ claim is without merit. The jury was properly instructed on lesser-included offenses with an instruction tracking MAI-CR3d 313.04. The jury is presumed to have followed the trial court’s instructions. State v. Gilbert, 103 S.W.3d 743, 751 (Mo. banc 2003). Additionally, even if this argument were considered an “acquittal first” argument, the strength of the evidence of deliberation precludes a finding of prejudice.

Second, Tisius alleges that counsel was ineffective for failing to object to an improper argument that was contrary to the evidence. Deputy Willie White testified that, during the escape attempt, he returned to the jail and saw Tisius holding a gun. White then heard four popping noises and saw Tisius turn to Bulington and say, “Get him. Get him. Get him.” The prosecutor argued that: “He [Tisius] gave her [Trade Bulington] the directions for Willie White who’s outside at that point watching, saying, ‘Get him. Get him. Get him.’ ” However, in the penalty phase, Tracie Bulington testified that after Tisius fired the first shot at Deputy Acton, Deputy Egley ran around the counter and Tisius yelled “get him.” Although trial counsel testified at the evi-dentiary hearing that it was a mistake to not object, the record reflects that the prosecutor’s argument was not necessarily inconsistent with the evidence. The different accounts given by White and Bulington support the reasonable inference that Tisi-us yelled “get him” on two different occasions: first, directed at Egley prior to shooting him; and second, at White, who could see Tisius and thus making it possible that Tisius could also see him. A prosecutor may argue reasonable inferences from the evidence. Middleton v. State, 103 S.W.3d 726, 742 (Mo. banc 2003). Additionally, the uncontradicted testimony that Tisius, gun in hand and having just shot Acton, was yelling “get him,” is highly relevant to the Tisius’ deliberation on the murders. Whether he was referring to White or Egley is secondary. The motion court did not clearly err in denying relief on this claim.

Third, Tisius alleges that trial counsel was ineffective for failing to object to the use of photographs of the victims’ bodies during closing argument. The prosecutor used the photographs to show the number and location of gunshot wounds in order to support the inference that Tisius deliberated on the murders. As noted earlier, the photographs were admissible. Counsel is not ineffective for failing to make a meritless objection. Middleton v. State, 103 S.W.3d 726, 741 (Mo. banc 2003).

Fourth, Tisius alleges that trial counsel was ineffective for fading to object to a rebuttal argument in which the prosecutor argued that Tisius’ argument that he had not deliberated was “incredible sophistry” and an “attempt to fool” the jury. Tisius argues that this suggested that defense counsel was lying and that the prosecutor had personal knowledge of Tisius’ guilt. The prosecutor’s argument was response to defense counsel’s argument that Tisius had not deliberated because Deputy Egely was not killed immediately with a shot at point blank range. However, defense counsel had earlier argued that Tisius “certainly wasn’t coolly and calmly reflecting on whether or not to shoot Jason Acton.” The prosecutor’s ar-. gument was thus directed at pointing out a perceived inconsistency between the defense argument that an immediately fatal, point blank shot would have shown deliberation in one instance but not the other. Comments directed at the tactics of defense counsel are permissible. State v. Collins, 150 S.W.3d 340, 350 (Mo.App. S.D. 2004); State v. Hanson, 974 S.W.2d 617, 619 (Mo.App.E.D.1998). The motion court did not clearly err in denying-this claim.

Finally, Tisius alleges that counsel was ineffective for failing to object to the prosecutor’s argument that Tisius’ statement that he was sorry was “little consolation to deputy Acton and deputy Egley. He said he was sorry after he was caught.” Later, the prosecutor also argued that “[A]nd somehow because he shows remorse there’s no deliberation?” Tisius argues that this comment was inflammatory and was an improper comment on his right to remain silent. This claim has no merit. Tisius argued that his remorse indicated that he did not deliberate. A prosecutor is entitled to rebut a defense argument. State v. Jones, 979 S.W.2d 171, 177 (Mo. banc 1998).

CONCLUSION

The motion court did not clearly err in denying relief on Tisius’ amended motion for post-conviction relief on the guilt phase of his trial. The judgment'is affirmed.

All concur.

      . "Deliberation” is "cool reflection for any length of time no matter how brief.” Section 565.002(3).

      . The claims of prosecutorial misconduct for allegedly improper argument were claims for direct appeal. Unlike a claim of withheld evidence, which would not be known to an appellant during trial or direct appeal, a claim involving allegedly improper argument was apparent at trial and could have been raised on direct appeal. Rule 29.15 is not a substitute for direct appeal. The claims of prosecutorial misconduct are not cognizable.


author: RONNIE L. WHITE, Judge.

text:
    STATE of Missouri, Respondent, v. Earl M. FORREST, Appellant.
    No. SC 86518.
    Supreme Court of Missouri, En Banc.
    Jan. 10, 2006.
    Rehearing Denied Feb. 28, 2006.

      Janet M. Thompson, Office of Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Robert J. Ahsens, Asst. Atty. Gen., Jefferson City, for Respondent.
   RONNIE L. WHITE, Judge.

I.

A jury convicted Appellant, Earl M. Forrest, of three counts of first-degree murder and recommended three death sentences. Judgment was entered consistent with the jury’s recommendation. Appellant seeks reversal raising thirteen points of error. This Court has jurisdiction pursuant to Mo. Const, art. V, sec. 3. Affirmed.

II.

The facts, which this Court reviews in the light most favorable to the verdict, are: On December 9, 2002, Appellant, who had been drinking, and his girlfriend, Angelia Gamblin, drove to Harriett Smith’s home. Appellant and Smith apparently had a falling out over a dishonored agreement with Smith to purchase a lawn mower and a mobile home for Appellant in exchange for Appellant introducing Smith to a source for methamphetamine. Appellant demanded that Smith fulfill her part of the bargain. During the ensuing melee, Appellant shot Michael Wells, a visitor at the Smith residence, in the face killing him. He also killed Smith, shooting her a total of six times.

Appellant removed a lockbox from Smith’s home containing approximately $25,000 worth of methamphetamine and returned to his home with Gamblin, where a shootout with the police ensued. Appellant shot Sheriff Bob Wofford in the abdomen wounding him. He killed Deputy Sharon Joann Barnes, shooting her once in her chest and a second time in the back of her head. Appellant sustained a bullet wound to his face. Gamblin was shot twice, once in her shoulder and once in her back.

Appellant finally surrendered and was charged with three counts of first-degree murder for the deaths of Smith, Wells and Barnes. The jury found Appellant guilty on all three counts. During the penalty phase, the jury found the presence of multiple statutory aggravators to support its unanimous recommendation for a death sentence for each of the three murders. With regard to the murder of Harriett Smith, the jury found that: (1) her murder was committed while Appellant was engaged in the commission of another unlawful homicide, that of Michael Wells; and (2) Appellant murdered Smith for the purpose of receiving something of monetary value. The statutory aggravator found in relation to Michael Wells’s murder was that he too was murdered for pecuniary gain. The murder of Joann Barnes carried the statutory aggravator of being committed against a peace officer while engaged in the performance of her official duty.

III.

Appellant raises three points claiming evidentiary errors; points I, II, and XIII. Appellant contends that the trial court erred when admitting the testimony of two police officers that Appellant believed was hearsay and improper bolstering of other testimony during the guilt phase trial. He also alleges error with the trial court’s admission of prior unadjudicated criminal conduct and victim impact testimony during the penalty phase trial.

“A trial court has broad discretion to admit or exclude evidence at trial.” “This standard of review compels the reversal of a trial court’s ruling on the admission of evidence only if the court has clearly abused its discretion.” “[T]hat discretion is abused when a ruling is clearly against the logic of the circumstances and is so unreasonable as to indicate a lack of careful consideration.” Additionally, on direct appeal, this Court reviews the trial court “for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” Trial court error is not prejudicial unless there is a reasonable probability that the trial court’s error affected the outcome of the trial.

The disputed testimony of the two officers involved their rendition of the shootout that occurred at Appellant’s residence. A review of the transcripts reveals that the officers’ testimony was repetitious when they were asked to describe some of the events that transpired when additional officers arrived on the scene and when Ms. Gamblin was shot. The statements involved whether other officers had stated if they heard gun shots coming from the house and whether Gamblin had stated that the Appellant was the first to shoot when the police arrived. Appellant objected to these statements at trial solely on the basis of being hearsay. Consequently, the Court applies abuse of discretion review to the hearsay argument but reviews the bolstering claim for plain error.

“A hearsay statement is any out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value.” The testimony in question was clearly hearsay. However, the admission of the testimony, while being error, was not so prejudicial as to require reversal. To the “extent a declarant is available for live testimony, under oath, the dangers of hearsay are largely non-existent.” The declarants in this instance did provide direct testimony and were subject to cross-examination. Moreover, Appellant offers nothing other than speculation in his attempt to claim prejudice, and there is no evidence to support the contention that the statements affected the outcome of trial.

“Improper bolstering occurs when an out-of-court statement of a witness is offered solely to duplicate or corroborate trial testimony.” “However, if the out-of-court statement is offered for relevant purposes other than corroboration and duplication ... there is no improper bolstering.” Even assuming, arguendo, that the statements in question constituted improper bolstering, and that they did not have independent value or were merely cumulative, Appellant fails to demonstrate how the admission of these two statements would have prejudiced his case. Not only would simple prejudice be required under plain error review for this claim, but that prejudice must rise to the level of manifest injustice or a miscarriage of justice to rise to the level of reversible error. Because the evidence of Appellant’s guilt was overwhelming, no manifest injustice or miscarriage of justice has been shown that would entitle Appellant to relief under the plain error rule.

Appellant also claims error with the trial court’s admission of evidence concerning his alleged drug possession and distribution of illegal drugs in California — alleged crimes that were never adjudicated. “[T]his Court has repeatedly held that both the state and the defendant may introduce any evidence pertaining to the defendant’s character in order to help the jury assess punishment in a penalty phase setting, even where that evidence constitutes unadjudicated bad acts.” Appellant’s claim of error is devoid of merit.

In his third claim of evidentiary error, Appellant claims multiple errors in association with the admission of the victim impact testimony from Joann Barnes’s family members. Appellant contends that the court admitted hearsay; evidence ascribing blame to Appellant for the unrelated deteriorating health of two brothers; inappropriate evidence of the family’s desire that Appellant receive the death penalty; and finally that the jury lacked instruction or guidance in how to consider and weigh this evidence or what standard of proof to apply to this evidence.

Victim impact evidence is admissible under the United States and Missouri Constitutions. “[J]ust as the defendant is entitled to present evidence in mitigation designed to show that the defendant is a uniquely individual human being, the State is also allowed to present evidence showing each victim’s uniqueness as an individual human being.” Victim impact evidence violates the constitution only if it “is so unduly prejudicial that it renders the trial fundamentally unfair.”

The alleged hearsay statements concerned the observations of one witness as to how Barnes’s nieces and nephews reacted to her death. The transcripts reveal that the witness stated that the nieces and nephews talked about their Aunt Joann’s death and that they couldn’t believe what happened. There is no testimony as to what exactly what the nieces and nephews stated. This testimony was not offered for the truth of the matter asserted and does not constitute improper hearsay.

With regard to the testimony mentioning Barnes’s brothers, one brother died subsequent to Ms. Barnes’s murder and one experienced multiple strokes, there was no testimony directly linking, or even suggesting, that their deteriorating health was in any way related to Ms. Barnes’s murder. “It is not necessary that every piece of victim impact evidence relate to the direct impact of the victim’s death on the witness.” The witness in question was testifying as to the many hardships the family endured following Barnes’s murder. There is no evidence that supports the proposition that the jury was incapable of understanding the court’s instructions during the penalty phase when it returned a recommendation for the death sentence. The jury found, beyond a reasonable doubt, the statutory aggravators necessary to support its recommendation. There is absolutely no evidence that these statements prejudiced the jury and no evidence that the admission of this evidence renders Appellant’s trial fundamentally unfair.

The statement calling for the imposition of the death penalty was made to the judge, after the penalty phase, during the sentencing hearing. There is no possible way that this statement could have influenced the jury’s recommendation. Even if the statement was improper, “judges are presumed not to consider improper evidence during sentencing,” and Appellant has provided no evidence to surmount that presumption.

Appellant’s last contention that the jury was not properly instructed on how to consider victim impact testimony or what standard of proof to apply to that evidence is also lacking in merit. Similar claims have been repeatedly rejected by this Court, and having ruled on these issues previously, and having examined this claim thoroughly and finding no error of law, an extended opinion on these issues would have no precedential value.

IV.

In Appellant’s points III and IX he raises several claims of trial court error in association with the guilt and penalty phase closing arguments. First, he asserts that sustaining the State’s objection to his penalty phase argument that Appellant’s family and friends would be “very, very, very distraught” if the jury recommended a death sentence deprived the jury of relevant evidence that would have rebutted or mitigated the victim impact evidence put on by the State. Appellant also claims that multiple statements made by the prosecution during the guilt and penalty phase closing arguments constituted prosecutorial misconduct and prejudiced his case.

“A trial court maintains broad discretion in the control of closing arguments.” “The rule is that unsworn remarks of counsel in opening statements, during the course of trials or in arguments are not evidence of the facts asserted.” “Although courts are to be careful to refrain from unduly restricting closing arguments, they have the power to confine the arguments to issues raised by the pleadings and the evidence.” “A party may argue inferences justified by the evidence, but not inferences unsupported by the facts.” “Review of the trial court’s rulings during closing argument is for abuse of discretion.” “An argument does not require reversal unless it amounts to prejudicial error.”

“Defense counsel should have wide latitude in drawing inferences from the record.” “If the court prevents defense counsel from making a point essential to the defense, the court has abused its discretion,” and “[t]he court should exclude only those statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury.”

Appellant’s claim that sustaining the State’s objection to his penalty phase argument somehow deprived the jury of evidence in mitigation is erroneous. The argument was not evidence. The argument was an attempt by Appellant to draw an inference from testimonial evidence that was properly admitted and before the jury to consider. While the trial court sustained the objection, the State did not request, and the court did not sua sponte deliver, a limiting instruction to the jury telling them that they could not consider Appellant’s argument. Even assuming, arguendo, that the trial court abused its discretion when sustaining the objection, the jury, having the argument to consider and having not been deprived of the actual evidence from which the inference was drawn, was not prejudiced towards Appellant’s case.

Appellant also contends that numerous statements made by the prosecutor during the guilt and penalty phase closing arguments constituted prosecutorial misconduct and prejudiced his case. In situations involving prosecutorial misconduct, the test is the fairness of the trial, not the culpability of the prosecutor. “Where prosecutorial misconduct is alleged, the erroneous action must rise to the level of ‘substantial prejudice’ in order to justify reversal.” “The test for ‘substantial prejudice’ is whether the misconduct substantially swayed the judgment.”

The prosecutor’s statements that Appellant claims constitute prejudicial misconduct are:

Guilt Phase:
(1) “Did he deliberate — did he deliberate after the first shot? He had time. Did he deliberate after the second shot? He had time again. After the third? He had adequate time then. He kept shooting, didn’t he?”
(2) “Now, is the fact that you knowingly shoot somebody enough to be deliberation? In and of itself, no. But certainly if you pull the trigger twice, was there time to deliberate? You bet there was. And he shot Harriett Smith five or six times.”
Penalty Phase:
(1) “I submit to you when you — when you get shot in the leg, and shot in the palm, and shot in the wrist, and shot in the torso, and then twice in the head, and again, there is no reason to keep shooting somebody if they’re already dead.”
(2) “Your second option is — the second thing is you must find that the statutory — that the aggravating circumstances, that is, all the facts in the case taken as a whole are not outweighed by the mitigating circumstances. And if you find unanimously that that is so, then you will have that final point of decision we talked about, with all options open.”
(3) “Society, just like each one of us as an individual has the right to self-defense, even if that right of self-defense includes lolling in order — against an unprovoked attack ... Society has the right to defend itself ... you are society. We look to to defend us.”
(4) “He says putting him in prison is enough, for life. You know, well, unfortunately, there are people in prison too: prisoners and staff and guards. It’s not like he going to be inside a concrete box with no access to anybody so society is still at risk.”
(5) “Remember the incidents described by Lt. Trudeau and Officer Ridenour high speed chases ...”
(6) “... the defense made a rather eloquent plea for mercy, but I want you to understand what mercy is. Mercy is something that is given by the powerful to the weak and the innocent. You have power. He’s not innocent.”
(7) “I’m tempted to say and I think I will. How many people do you get to kill before you stop them cold? If not now, when? If not here, where?”
(8) “I was struck when I read some of what Edmond Burke had to say, English philosopher ... All that is necessary for evil to triumph is for good men to do nothing. You could send him to prison. He knows all about prison. I suggest to you that that’s tantamount to doing nothing.”
(9) “Show me remorse in this case. Remember what Officer Belawski said? He said he simply asked how Joann was. Why? Because he knew that shooting a cop is one thing, killing a cop is something else altogether and he knew it.”

The State, just like the defense, has wide latitude in drawing inferences from the record when presenting its closing argument. A review of the record and trial transcripts confirms that the prosecutor’s guilt phase arguments were appropriate inferences based upon the facts in the record. Similarly, of the penalty phase arguments listed above, statements 1, 5, and 9 are appropriate inferences based upon the factual record. Statement 2 references the law in terms of statutory aggravators and it too was made without error.

Statements 3 and 4, putting forth the argument of societal self-defense, has previously been upheld by this Court and the United States Supreme Court as being permissible and not violative of a defendant’s rights to a fair trial. Statements 6, 7, and 8 all interrelate with the concept of whether the jury should be merciful to Appellant. “Prosecutors may discuss the concept of mercy in their closing arguments because mercy is a valid sentencing consideration, and in that connection may argue that the defendant should not be granted mercy.” Appellant provides nothing other than speculation that exclusion of these statements would have changed the outcome of his trial. Appellant’s point alleging prosecutorial misconduct is denied.

V.

Appellant’s points IV, V, XI, and XII raise claims of error with numerous jury instructions. Appellant contends that the written guilt phase instruction 4 and penalty phase instruction 19, as well as the oral instruction, defining reasonable doubt and patterned after MAI-Cr3d 300.02, were defective, thus, subjecting him to conviction and sentencing based upon a lower quantum of guilt. He also challenges penalty phase instructions 28-30, patterned after MAI-Cr3d 314.44; and penalty phase instructions 34-36, patterned after MAI-Cr3d 814.48, claiming these instructions failed to inform the jury that the State bore the burden of proving aggravating circumstances beyond a reasonable doubt. Finally, Appellant contends that guilt phase instruction 5, on voluntary intoxication patterned after MAI-CR3d 310.50, shifts the burden of proof to the defense. Appellant believes the wording of these instructions allowed the jury to infer that the burden of proof was not beyond a reasonable doubt. Appellant also claims that the State’s information was defective for failing to plead the statutory aggravating circumstances it intended to submit at trial.

On claims of instructional error, “[a]n appellate court will reverse only if there is error in submitting an instruction and prejudice to the defendant.” MAI instructions are presumptively valid and, when applicable, must be given to the exclusion of other instructions.

This Court has previously rejected these and similar arguments concerning these MAI patterned instructions and the defective information allegation. The information was not defective, and these instructions in no way preclude the jury from giving proper effect to the overall burden of proof or the burden with proving aggravating circumstances and properly weighing the mitigating evidence. None of these instructions shifts the burden of proof to the defense. Having ruled on these issues previously, and having examined these claims thoroughly and finding no error of law, an extended opinion on these issues would have no precedential value. The jury was instructed properly, and jurors are presumed to follow the court’s instructions.

VI.

In Appellant’s point VI, he claims the trial court plainly erred by failing to sua sponte admonish the prosecutor and declare a mistrial when the prosecutor objected to recognizing two of Appellant’s witnesses as being experts. During penalty phase, Appellant offered the testimony of doctors Michael Gelbort, an expert in neuropsychology, and Lee Evans, an expert in psychiatric pharmacology. The State objected to certifying them as experts, but the trial court overruled the objections and certified them as experts for the testimony they offered. Appellant requests plain error review, acknowledging that he did not preserve his claim by objecting to the prosecutor’s statements.

“Issues that were not preserved may be reviewed for plain error only, which requires a finding that manifest injustice or miscarriage of justice has re-suited from the trial court error.” Appellant’s claims that the prosecutor’s objections amount to pronouncements of legal conclusions that prejudiced his case are purely speculative and not supported by the record. The doctors were certified as experts and the jurors were properly instructed that objections are not evidence. Jurors are presumed to follow the court’s instructions. The trial court did not err for not admonishing the prosecutor and for not declaring a mistrial.

VII.

In point VII, Appellant claims trial court error with accepting the jury’s penalty phase verdicts, arguing that the verdicts were inconsistent. Appellant contends that because the murders of Harriett Smith and Michael Wells were committed in close proximity to each other in terms of time and location, that for the jury to find that the murder of Smith was committed during the murder of Wells but fail to issue a reciprocal finding creates inconsistent verdicts that must be overturned. Appellant also challenges the sufficiency of the evidence supporting the verdict that Smith’s murder was committed during Wells’s murder. Because Appellant failed to preserve these claims at trial with an appropriate objection, this Court reviews for plain error.

Appellant’s assertion that the jury was required to find identical statutory aggravators for the murders of Smith and Wells is erroneous. Wells was murdered first, and it was reasonable for the jury to find that Smith’s murder was committed during another unlawful homicide, but not visa versa because Wells was presumably dead at the time of Smith’s murder. Moreover, even assuming arguendo that the verdicts were inconsistent, “[a]n inconsistent verdict ... does not require a reversal provided there is sufficient evidence to support the jury’s finding of guilt.”

The gravamen of Appellant’s sufficiency of the evidence argument is that because Wells was killed first, Smith could not have been killed during the commission of another unlawful homicide. Appellant provides no authority to support the proposition that multiple murders must be committed simultaneously, as opposed to being committed during the same criminal transaction, in order for sufficient evidence to exist to establish this statutory aggravator. This Court has' already held to the contrary. To succeed on a claim for plain error review “requires a finding that manifest injustice or miscarriage of justice has resulted from the trial court error.” The evidence was sufficient to support the jury’s finding. There was no trial court error to warrant proceeding to the second prong of plain error review.

VIII.

Appellant’s point VII claims error with the trial court’s striking two venire-persons for cause. Appellant contends that these individuals only indicated that they would have difficulty signing a death verdict, not that they were incapable of objectively considering giving a recommendation for the death penalty.

“A juror may be stricken for cause if it appears that he or she cannot consider the entire range of punishment, apply the proper burden of proof, or otherwise follow the court’s instructions in a first degree murder case.” “The qualifications of a prospective juror are not determined conclusively by a single response, but are made on the basis of the entire examination.” “The trial court is in the best position to evaluate a venireperson’s commitment to follow the law and is vested with broad discretion in determining the qualifications of prospective jurors.” A trial court’s “ruling on a challenge for cause will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion.”

During voir dire, the venirepersons in question indicated they would have extreme difficulty in voting for the death penalty. This was not a simple matter of these individuals being unable to sign a recommendation for death. A full review of the transcripts indicates that the trial court did not abuse its discretion when striking these potential jurors, because objectively they appeared to be unable to consider the full range of punishment.

IX.

In point X, Appellant argues that the trial court erred when overruling his motion for acquittal and by failing to sua sponte declare a mistrial when the prosecutor argued that the facts supported a determination that he deliberated while committing the homicides. Appellant also claims that section 565.020, defining first-degree murder, is unconstitutionally vague for faffing to adequately distinguish first from second-degree murder.

Contrary to Appellant’s contentions, the prosecutor did not improperly define or argue the issue of deliberation. The record reveals that the State argued that the evidence of multiple victims, multiple wounds, and the timing between shots warranted a proper inference of deliberation. The prosecutor did not equate these facts with the definition of deliberation, thus making the determination for the jury as Appellant asserts.

Regarding Appellant’s constitutional claim of vagueness that section 565.021 does not adequately distinguish first from second-degree murder, this Court has rejected this claim numerous times before. Having examined this claim thoroughly and finding no error of law, an extended opinion on these issues would have no precedential value.

X.

This Court independently reviews the proportionality of all death sentences. Under section 565.035.3, RSMo 2000, this Court is required to determine whether:

(1) the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;
(2) Whether the evidence supports the jury’s or judge’s finding of a statutory aggravating circumstance as enumerated in subsection 2 of section 565.032 and any other circumstance found;
(3) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence, and the defendant.

Having thoroughly reviewed the record, this Court concludes that there is no evidence to suggest that the punishment imposed was a product of passion, prejudice, or any other arbitrary factor.

The trial court’s findings are next reviewed to determine if the evidence supports, beyond a reasonable doubt, the existence of an aggravating circumstance and any other circumstance found. In this case, the jury unanimously found three statutory aggravating circumstances as a basis for considering the death sentence. The evidence supports, beyond a reasonable doubt, a finding that the Appellant murdered Harriett Smith while committing another unlawful homicide and for the purpose of receiving something of monetary value. Appellant also murdered Michael Wells for pecuniary gain, and he murdered Joann Barnes while she was engaged in the performance of her official duty.

Finally, this Court has upheld sentences of death in similar cases where the defendant committed multiple murders. The death sentence in this case is neither excessive nor disproportionate to the penalty imposed in similar cases, considering the crime, the strength of the evidence, and the defendant.

XI.

The judgment is affirmed.

All concur.

      . State v. Taylor, 134 S.W.3d 21, 24 (Mo. banc 2004).

      . State v. Madorie, 156 S.W.3d 351, 355 (Mo. banc 2005).

      . Id.

      . State v. Gonzales, 153 S.W.3d 311, 312 (Mo. banc 2005).

      . State v. Middleton, 995 S.W.2d 443, 452 (Mo. banc 1999).

      . State v. Barriner, 111 S.W.3d 396, 400-01 (Mo. banc 2003).

      . Smulls v. State, 71 S.W.3d 138, 148 (Mo. banc 2002).

      . State v. Link, 25 S.W.3d 136, 145 (Mo. banc 2000).

      . State v. Wolfe, 13 S.W.3d 248, 257 (Mo. banc 2000).

      . Id.

      . Rule 30.20; State v. Cole, 71 S.W.3d 163, 170 (Mo. banc 2002).

      . State v. Jaco, 156 S.W.3d 775, 781 (Mo. banc 2005); State v. Jordan, 627 S.W.2d 290, 292-93 (Mo. banc 1982).

      . State v. Winfield, 5 S.W.3d 505, 515 (Mo. banc 1999).

      . State v. Roberts, 948 S.W.2d 577, 594 (Mo. banc 1997).

      . State v. Deck, 994 S.W.2d 527, 528 (Mo. banc 1999); Payne v. Tennessee, 501 U.S. 808, 822-25, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).

      . State v. Gill, 167 S.W.3d 184, 195 (Mo. banc 2005).

      . Id. at 195-197.

      . Middleton v. State, 103 S.W.3d 726, 743 (Mo. banc 2003).

      . State v. Smith, 32 S.W.3d 532, 555 (Mo. banc 2000).

      . Rule 30.25. See State v. Glass, 136 S.W.3d 496, 517 (Mo. banc 2004); State v. Ferguson, 20 S.W.3d 485, 500 (Mo. banc 2000).

      . State v. Edwards 116 S.W.3d 511, 537 (Mo. banc 2003).

      . State v. Dowell, 25 S.W.3d 594, 609 (Mo.App.2000); State ex rel. Horn v. Randall, 275 S.W.2d 758, 763 (Mo.App.1955); Hardwick v. Kansas City Gas Co., 352 Mo. 986, 180 S.W.2d 670, 673 (1944).

      . State v. Barton, 936 S.W.2d 781, 783 (Mo. banc 1996).

      . State v. Black, 50 S.W.3d 778, 787 (Mo. banc 2001); Barton, 936 S.W.2d at 783.

      . State v. Kinder, 942 S.W.2d 313, 329 (Mo. banc 1996).

      . Edwards 116 S.W.3d at 537.

      . Barton, 936 S.W.2d at 784.

      . Barton, 936 S.W.2d at 783.

      . State v. Williams, 922 S.W.2d 845, 851 (Mo.App.1996); Smith v. Phillips, 455 U.S. 209, 220, 102 S.Ct. 940, 71 L.Ed.2d 78, (1982).

      . State v. Peterson, 833 S.W.2d 395, 398 (Mo.App.1992).

      . Id.

      . Black, 50 S.W.3d at 787; Barton, 936 S.W.2d at 783.

      . State v. Kreutzer, 928 S.W.2d 854, 876 (Mo. banc 1996); State v. Chambers, 891 S.W.2d 93, 108 (Mo. banc 1994); Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994).

        . State v. Deck, 994 S.W.2d 527, 543 (Mo. banc 1999).

      . Id.

      . Rule 28.02(c); State v. Whalen, 49 S.W.3d 181, 188 (Mo. banc 2001).

      . See Gill, 167 S.W.3d at 195-197; Glass, 136 S.W.3d at 517, 520-21; Taylor, 134 S.W.3d at 30; State v. Tisius, 92 S.W.3d 751, 766-767, 770, (Mo. banc 2002); Cole, 71 S.W.3d at 171 and 176; Ferguson, 20 S.W.3d at 500; State v. Johnson, 22 S.W.3d 183, 192 (Mo. banc 2000); Wolfe, 13 S.W.3d at 264; State v. Armentrout, 8 S.W.3d 99, 111-112 (Mo. banc 1999); State v. Johnson, 968 S.W.2d 686, 694 (Mo. banc 1998); State v. Simmons, 944 S.W.2d 165, 180 (Mo. banc 1997); State v. Taylor, 944 S.W.2d 925, 936 (Mo. banc 1997).

      . Rule 30.25.

      . State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999).

      . State v. Strong, 142 S.W.3d 702, 710 (Mo. banc 2004); Rule 30.20.

      . Madison, 997 S.W.2d at 21.

      . State v. Clemons, 643 S.W.2d 803, 805 (Mo. banc 1983).

      . State v. Anderson, 79 S.W.3d 420, 442 (Mo. banc 2002); Deck, 994 S.W.2d at 545.

      . Strong, 142 S.W.3d at 710; Rule 30.20.

      . Middleton, 995 S.W.2d at 460.

      . Id.

      . Id.

      . Id.

      . State v. Middleton, 998 S.W.2d 520, 524 (Mo. banc 1999); State v. Rousan, 961 S.W.2d 831, 851-52 (Mo. banc 1998).

      . Rule 30.25.

      . Section 565.032.2.

      . State v. Gilbert, 103 S.W.3d 743 (Mo. banc 2003); State v. Tisius, 92 S.W.3d 751 (Mo. banc 2002); State v. Anderson, 79 S.W.3d 420 (Mo. banc 2002); State v. Mayes, 63 S.W.3d 615 (Mo. banc 2001).


author: LAURA DENVIR STITH, Judge.

text:
    STATE ex rel. LEBANON SCHOOL DISTRICT R-III, Relator, v. The Honorable Larry WINFREY, Respondent.
    No. SC 86873.
    Supreme Court of Missouri, En Banc.
    Jan. 31, 2006.

      Brett A. Williams, Lawrence B. Grebel, Joshua D. Margolis, St. Louis, for Relator.
    Eric Hutson, Lebanon, H. Lynn Henry, West Plains, for Respondent.
    Paul M. Rauschenbach, St. Louis, for defendant.
   LAURA DENVIR STITH, Judge.

Relator Lebanon School District R-III asks this Court to issue a writ prohibiting Respondent from transferring the underlying personal injury lawsuit to a different county. Relator argues that because section 508.050, RSMo 2000, permits a school district to be sued only in the county in which it is situated, then it must be error to grant a motion to change venue to another county. Relator is incorrect. While venue for commencement of suit was only proper in Laclede County, Rule 51.03 authorized transfer of the case to another county convenient to the parties for trial upon a showing that Laclede County had fewer than 75,000 inhabitants. The preliminary writ is quashed.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2004, Amanda Slover, an eighth-grade student at Lebanon Junior High School, sued the Lebanon school district and Jeff Lackey for personal injuries she alleges were sustained when the bleachers on which she was performing with the school’s choir collapsed.

Amanda commenced her suit in the Circuit Court of Laclede County, in accordance with section 508.050, which provides that suit against municipal corporations shall be commenced only in the county in which the entity is located. She then moved for a change of venue and a change of judge. Rule 51.03 provides that a party may apply for a change of venue where, as here, the county in which suit is filed has fewer than 75,000 inhabitants. Rule 51.06 provides the procedure for combining a motion for change of judge with a motion for change of venue, as was filed here.

The trial court granted Amanda’s motion and asked the parties to suggest convenient venues to which to transfer the case. The school district instead petitioned for a writ of prohibition to prevent transfer.

II. ANALYSIS

A. Standard of Review

Prohibition is an original proceeding brought to confine a lower court to the proper exercise of its jurisdiction. State ex rel. Linthicum v. Calvin, 57 S.W.3d 855, 857 (Mo. banc 2001). It is a discretionary writ that only issues “to prevent an abuse of judicial discretion, to avoid irreparable harm to a party, or to prevent exercise of extra-jurisdictional power.” Id. at 856-57. The writ is available to avoid useless lawsuits and to afford relief at the earliest possible moment in the litigation or where to do otherwise would deprive a party of an absolute defense. State ex rel. Police Retirement System of St. Louis v. Mummert, 875 S.W.2d 553, 555 (Mo. banc 1994); State ex rel. McDonnell Douglas Corp. v. Gaertner, 601 S.W.2d 295, 296 (Mo.App. E.D.1980).

B. Rule 51.03 Applies to Municipal Corporations

The key question is whether a party, plaintiff or defendant, can be granted a change of venue under Rule 51.03 in a case in which one or more of the defendants is a municipal corporation that has been sued in the county in which it is situated. Rule 51.03 provides in relevant part that:

(a) A change of venue shall be ordered in a civil action triable by jury that is pending in a county having seventy-five thousand or less inhabitants upon the filing of a written application therefor not later than ten days after answer is due to be filed ... The applicant need not allege or prove any cause for such change.

Rule 51.03(a). Rule 51.03 does not state that it does not apply where one or more defendants is a municipal corporation that could originally be sued only in the county in which suit was commenced. To the contrary, Rule 51.03(c) states, “If a timely application is filed, the court immediately shall order the case transferred to some other county convenient to the parties, first giving all parties the opportunity to make suggestions as to where the case should be sent.” That is exactly the procedure Respondent followed here.

Lebanon argues that this Court should nonetheless read an implicit exception into Rule 51.03 if a school district or other municipal corporation is a defendant because to do otherwise would contravene Rule 51.01, which states, “These rules should not be construed to extend or limit the jurisdiction of the courts of Missouri, or the venue of civil actions therein.”

Lebanon’s argument confuses the substantive provisions of law governing where suit may initially be commenced with this Court’s procedural rules governing how such suits are to be tried once filed. Rule 51.01 merely recognizes that the initial venue in which a suit must be commenced is determined solely by statute. See also State ex rel. BJC Health System v. Neill, 121 S.W.3d 528, 529 (Mo. banc 2003). If a party believes that suit has been filed against it in a venue not permitted by statute, then Rule 51.045 provides the procedural mechanism by which the case may be transferred to a county in which suit would have been proper.

Here, however, all parties agree that suit was properly commenced against Lebanon in the Circuit Court of Laclede County, in accordance with section 508.050, which provides, “Suits against municipal corporations as defendant or codefendant shall be commenced only in the county in which the municipal corporation is situat-ed_” Sec. 508.050. Lebanon’s argument is nothing more than the syllogism that since under section 508.050 suit against it could only be commenced in Laclede County, that is where it must also be tried. It is based on the faulty premise that Missouri statutes contemplate (indeed require) that all lawsuits must be tried in a county in which suit initially could be commenced. This is not correct.

First, Missouri’s statutes have long expressly permitted transfer of suits to counties where they could not initially have been commenced. In fact, section 508.140 recognizes that transfer may be affected by the number of inhabitants of the county in which suit was initially filed. It provides for a hearing on a motion for change of venue in cases in which a change of venue is sought from “counties in this state which have a population of more than sixty-five thousand inhabitants and wherein the removal is asked on the ground of objections to or prejudice of the inhabitants of the county_” Sec. 508.140(2).

Even more tellingly, section 508.250 provides that:

The court to which any cause shall be transferred by change of venue shall have jurisdiction to hear and determine the same, and shall proceed to final judgment and execution therein; although such cause would not otherwise be cognizable in such court.

Sec. 508.250 (emphasis added). The legislature, thus, specifically recognizes that suits may be heard in a venue in which they could not be commenced.

Second, the legislature is well aware how to prohibit a change of venue, for it did so in the case of condemnation in certain instances in section 88.067. The legislature chose not to make such an exception in the case of suits against municipal corporations, however.

The procedures under which venue will be transferred are set out in the subdivisions of this Court’s Rule 51 governing transfer of venue for cause or where the county has less than a certain number of inhabitants. Bizzell v. Kodner Development Corp., 700 S.W.2d 819 (Mo. banc 1985), applied these rules to a case much like the instant one, in which it was alleged that a municipal corporation — in that case, a city — could be sued only in its home circuit. Bizzell specifically recognized that, under Rule 51.14, venue for trial of a suit against the city could be proper even though the case had been transferred to a county in which suit against the city could not have been commenced. Id. at 822.

More specifically, the Bizzell plaintiff initially sued various defendants in the Circuit Court of St. Charles County. Id. at 821. On motion, the court transferred venue to Lincoln County. Id. Thereafter, plaintiff filed an amended petition joining the City of St. Peters, a municipal corporation, as a defendant. Id. St. Peters moved to dismiss, arguing that, as it was located in St. Charles County, then under section 508.050, it could not be added as a defendant once suit had been transferred to Lincoln County. Id. Bizzell rejected this argument, stating:

Absent the presence of an entirely proper transfer, the City of St. Peters’ argument would be meritorious. However, after the case was transferred upon a proper change of venue the Lincoln County Circuit Court became empowered to proceed as if the cause had been originally and properly filed there.

Id.

Bizzell reasoned that, applying section 508.250 and Rule 51.14, “[t]he transferee court has jurisdiction to hear and determine any cause transferred, even if the action would not otherwise be cognizable in that court.” Id. at 822 (emphasis in original). This meant that “[bjecause the St. Charles County Circuit Court would have had authority [to add St. Peters as a defendant] ... the transferee court in Lincoln County was likewise empowered to do so.” Id.

The school district suggests that, regardless of the analysis in Bizzell, to permit changes of venue in the manner permitted by Rule 51.03 (and sections 508.140 and 508.250) would contravene the underlying purpose of section 508.050 because it would require school districts to defend suits all over the state. See State ex rel. Burlington N. R.R. Co. v. Forder, 787 S.W.2d 725, 726 (Mo. banc 1990) (purpose of limiting venue for commencement of suit to that of county in which municipal corporation is located is to avoid requiring it to defend lawsuits all over the state). The district further seems to assume that suit could be transferred only to counties having more than 75,000 inhabitants.

The premise of both arguments is invalid. As noted earlier, Rule 51.03 does not permit the transfer of a case to counties “all over the state.” Rather, it specifically limits the locations to which venue may be transferred, stating that the case shall only be transferred “to some other county convenient to the parties, first giving all parties the opportunity to make suggestions as to where the case should be sent.” Rule 51.03(c). The court here expressly gave the parties 10 days in which to make suggestions as to convenient alternative counties to which the case could be sent. Lebanon need not fear having to defend in some far and inconvenient corner of the state. Further, Rule 51.03 in no manner suggests that the transferee county must have more than 75,000 inhabitants, and indeed this is not the case.

Equally importantly, Lebanon’s argument fails to recognize the distinct purposes served by section 508.050 and Rule 51.03. Section 508.050 and other venue statutes are intended “to provide a convenient, logical and orderly forum for litigation.” State ex rel. Rothermich v. Gallagher, 816 S.W.2d 194, 196 (Mo. banc 1991). In this way, they do protect defendants from suit being filed against them in counties “all over the state” to which neither they nor the cause of action have any connection.

But, these statutes do not purport to address how a court should proceed where the selected venue becomes inappropriate for trial due to the small number of persons in the county, due to prejudice of the inhabitants against one of the parties as a result of, for example, undue publicity, or for other reasons. That problem is addressed by Rule 51’s change of venue provisions. As this Court noted in Moss v. State, 10 S.W.3d 508, 513 (Mo. banc 2000), in considering the criminal counterpart to Rule 51.03, these change of venue rules recognize that “a [party’s] ability to secure a fair trial in small counties is often contested and affords a defendant the right to change venue as a matter of convenience.”

Allowing an automatic change of venue upon timely application thus saves judicial resources that would otherwise be spent in determining whether a party could get a fair trial in the county in light of the prejudice that may have arisen in a particular case due to publicity or familiarity with the parties or the issues involved. See id. at 513-14. This avoids any potential unfairness yet protects the convenience of the remaining parties by expressly providing that the new venue must be convenient and by giving the parties input into the new location for trial. No reason is shown why a school district, unlike every other defendant, should not be subject to transfer under Rule 51.

C. Timeliness of Motion for Change of Venue

The school district also argues in its briefs that plaintiffs’ motion for change of venue was untimely because it was not filed within 10 days of when Lebanon’s answer originally was due. But, Rule 51.03 does not require that a motion for change of venue be filed within 10 days of when an answer hypothetically would have been due if no motions to dismiss had been filed or extensions of time sought. It provides that written application for a change of venue shall be made, “not later than ten days after answer is due to be filed; ...” Under Rule 55.25(c), if a defendant files a motion to dismiss or other motion provided for in Rule 55.27, this “alters the time fixed for filing any required responsive pleadings.” In the case of a motion to dismiss, “the responsive pleading shall be filed within ten days after notice of the court’s action.” Rule 55.25(c). Defendant Lackey filed a motion to dismiss; his answer was not due to be filed until 10 days after that motion was ruled on. The answer had not yet been filed at the time plaintiffs filed their motion for change of venue. Their motion, therefore, was timely under Rule 51.03.

D. Conclusion

Applying these principles here, Respondent did not exceed his jurisdiction in granting plaintiffs’ motion for change of venue from Laclede County. Because Laclede County has fewer than 75,000 inhabitants, such a transfer is permitted by Rule 51.03. The transferee court will proceed as if it were a court of Laclede County. This Court’s preliminary writ is quashed.

All concur.

      . All statutory references are to RSMo 2000 unless otherwise indicated. Although various other venue statutes were modified effective in August 2005, no changes were made to section 508.050, governing venue against municipal corporations.

      . Because both parties assume that school districts are municipal corporations for venue purposes, this Court does not reach that issue. Various decisions have held that school districts are municipal corporations for venue purposes, see, e.g., State ex rel. East Carter County R-II Sch. Dist. v. Heller, 977 S.W.2d 958, 960 n. 5 (Mo.App. S.D.1998); State ex

        rel. Santoya v. Edwards, 879 S.W.2d 775, 776 (Mo.App. E.D.1994), relying on dicta in State ex rel. Milham v. Rickhoff, 633 S.W.2d 733, 735-36 (Mo. banc 1982). Milham implied that local school districts are municipal corporations for venue purposes by distinguishing them from the University of Missouri, which it held was not a municipal corporation for venue purposes. Milham also noted that whether such districts are municipal corporations "may vary in meaning depending on the time, place and circumstance under which it is used.” Id. at 735. It further noted that Beiser v. Parkway Sch. Dist., 589 S.W.2d 277 (Mo. banc 1979), held that a municipal corporation is not a municipality for the purposes of sovereign immunity but that a school district had been held to be a municipal corporation in other contexts. Id. See also State ex rel. Caldwell v. Little River Drainage Dist., 291 Mo. 72, 236 S.W. 15, 16 (1921) (school districts are municipal corporations).

      . This Court’s Rule 51.14(b), in nearly identical language, similarly provides that the transferee court "shall have jurisdiction to hear and determine the same, and shall proceed to final judgment and execution therein, although such civil action would not otherwise be cognizable in such court.”

      . See also secs. 242.650 and 245.255, limiting changes of venue in suits involving drainage or levy districts.

      . As Rule 51.04(f) specifically recognizes, changes of venue may be sought by various classes of parties, including plaintiffs, defendants, third-party plaintiffs and third-party defendants.