Appeals judges appear in Cape

A conviction for domestic assault, a disputed divorce and whether a state trooper too zealously enforced drunken driving laws are typical of the bill of fare served up to Missouri Court of Appeals judges.

But the scene of the daily drama of hearings for the Eastern District judges was a little different. On Wednesday, the appeals court sat in the Common Pleas Courthouse in Cape Girardeau.

Most appeals are heard in St. Louis, but the judges try to regularly visit outlying parts of the 25-county district, chief judge Glenn Norton said.

"It is part of an outreach to make sure people who are in the district far from St. Louis know we are out there," Norton said.

The sessions help litigants by saving them the cost of paying attorneys to drive to St. Louis, Norton said. And they are more likely to attend a hearing close to home, he said.

Judges benefit by getting a chance to see the people whose cases they are considering, he said. "We hardly ever see litigants," Norton said. "There won't be a party to a case there in one out of 10 cases we hear in St. Louis."

The judges heard four cases Wednesday. The first involved a Perry County woman, Vicky M. Welker, who was seeking to have her divorce decree overturned as well as questioning how child support was determined. If the judges grant her entire appeal, she would once again be married to Ricky T. Welker.

"My client apparently does want to be married to this man," attorney Michael Cohan told the three-judge panel of Norton, Nannette Baker and Kenneth Romines.

Ricky Welker emphatically does not wish to be married to Vicky Welker, his attorney, Thomas Hoeh, told the judges.

Norton cautioned Cohan not to expect too much from the decision. While the judges in some cases "like to let folks leave with some good feeling, we often also like to hand down opinions that make sense to the man in the street."

Next up was the case of a man challenging his conviction for second-degree domestic assault, a felony. If David W. Alcorn of Advance, Mo., loses his appeal, he must begin serving a three-year prison term.

Alcorn's case depends whether the judges believe a letter written by his former wife, Angela Alcorn, influenced Cape Girardeau Circuit Court Judge John Heisserer.

The letter was erroneously forwarded to an attorney representing Alcorn in another case. Alcorn did not learn of the letter until Heisserer found him guilty following a trial without a jury.

The existence of the letter, had it been known, might have led Alcorn to request a change of judge or a jury trial, attorney Richard Kuntze said. The letter's existence creates an appearance that Heisserer may not have been impartial, he said.

Assistant attorney general Evan Buchheim disagreed, arguing that sending the letter to the wrong attorney was an innocent error.

Alcorn was convicted June 16, 2004. He is out on bond awaiting the outcome of the appeal. If he had accepted the sentence, he would likely have been paroled already under state rules governing his conviction.

In the drunk driving case, the Missouri Department of Revenue is appealing a ruling that it could not revoke the license of Eric Duncan of Poplar Bluff. Duncan was pulled over in Cape Girardeau County and refused a breath test.

The Department of Revenue regularly appeals such rulings, attorney Jim Chenault said.

But during the hearing, the judges saw the trooper's video of the traffic stop and questioned his judgement. Duncan apparently did very well in the field sobriety tests, yet the trooper insisted on a breath test. "That videotape is brutal for your case," Norton told Chenault. "No one but an overzealous highway patrolman would think that guy is drunk."

In most cases, Norton said in an interview after adjourning, the court does not consider evidence directly. Appeals courts base their decisions on facts determined in lower courts.

The appeals court's job, he said, is to decide if the laws have been correctly applied to those facts. "We are a court of justice," he said.