Opinion
No. ED90312
October 21, 2008
Appeal from the Circuit Court of the City of St. Louis, Honorable Thomas C. Grady.
Shaun Mackelprang, Jefferson City, MO, Attorneys For appellant.
Christine Krug, Co-Counsel for Appellant.
Jaime Corman, Co-Counsel for Appellant.
Nick Zotos, Saint Louis, MO, Attorneys For respondent.
Introduction
The State of Missouri appeals from a judgment in the Circuit Court of St. Louis County granting Jason Merriweather's ("Respondent") Rule 29.15 motion for post-conviction relief after an evidentiary hearing. We find no error and affirm.
All rule references are to Mo. Rules Civ. P. 2007, unless otherwise indicated.
Factual and Procedural Background
The State charged Respondent with forcible sodomy, kidnapping, armed criminal action and attempted forcible rape. The State alleged that Respondent sexually assaulted T.B. after forcing her, at gunpoint, to get in his car. Pursuant to Rule 23.05, Respondent requested all prior criminal records of the State's witnesses including that of T.B. during discovery. The State ran a criminal background check on T.B. but did not come up with anything. As a result, the State did not furnish Respondent with any of T.B.'s criminal records.
At various times, T.B. has been known by three other aliases.
At Respondent's trial, T.B. testified that she was walking home when Respondent pulled his car up in front of her, displayed a gun and told her to get into the car. She further testified that Respondent forcibly fondled her genitals and attempted to rape her.
Respondent testified that T.B. had flagged him down as he was driving, jumped in his car and agreed to perform oral sex on him in exchange for drugs. He further testified that after the oral sex, he did not give T.B. the promised drugs, which caused her to get upset and start cursing at him before exiting his car.
A jury found Respondent guilty of forcible sodomy but acquitted him on the remaining charges. Respondent was sentenced to ten years' imprisonment. This court affirmed Respondent's conviction in State v. Merriweather, 196 S.W.3d 636 (Mo.App.E.D. 2006). Respondent filed a timely Rule 29.15 motion for post-conviction relief and requested an evidentiary hearing. Respondent alleged, among other things, that the State's failure to furnish his trial counsel with T.B.'s criminal records deprived him of his rights to effective assistance of counsel and due process of law.
The motion court granted Respondent's request for an evidentiary hearing. The evidence adduced at the hearing revealed that at the time of trial, T.B. had three prior convictions for retail theft in Illinois. T.B. also had a three-count charge for fraudulent use of a credit device pending at the time of trial. The motion court found that while the failure to learn of and disclose T.B.'s criminal record may have been inadvertent, the absence of the evidence deprived Respondent of a fair trial and violated his due process rights. The motion court granted Respondent's motion to set aside his conviction and assigned the case for a new trial. The State appealed.
Standard of Review
Our review of the motion court's grant of post-conviction relief is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous if, upon review of the record, we are left with the firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo.banc. 2000).
Analysis
In its sole point on appeal, the State claims the motion court erred in concluding that the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it failed to discover and disclose, before trial, T.B.'s criminal records and thereby granting Respondent's motion for post-conviction relief. The State asserts that the motion court improperly applied or extended the scope of Brady by placing a duty on the State to disclose information that was not in the State's possession. The State also contends the motion court unreasonably required it to discover information that was not discoverable despite due diligence and reasonable inquiry. Finally, the State charges that the information about T.B.'s criminal record was not material because it was either inadmissible or its disclosure would not have changed the outcome of the trial.
"According to Brady, due process requires the prosecution to disclose evidence in its possession that is favorable to the accused and material to guilt or punishment. Evidence is material if there is a reasonable probability that had the evidence been disclosed to the defense, the result would have been otherwise. The issue is not whether the defendant would more likely than not have received a different verdict with the disputed evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A Brady violation occurs if: (1) the evidence is favorable to the accused because it is exculpatory or impeaching; (2) the evidence was suppressed by the state either willfully or inadvertently; and (3) the suppression must have prejudiced the defendant." State v. Goodwin, 43 S.W.3d 805, 812 (Mo. banc 2001) (internal citations omitted).
Rule 25.03 provides, in relevant part, that:
(A) Except as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel such part or all of the following material and information within its possession or control designated in said request:
(7) Any record of prior criminal convictions of persons the state intends to call as witnesses at a hearing or the trial;
(9) Any material or information, within the possession or control of the state, which tends to negate the guilt of the defendant as to the offense charged, mitigate the degree of the offense charged, or reduce the punishment.
(C) If the defense in its request designates material or information which would be discoverable under this Rule if in the possession or control of the state, but which is, in fact, in the possession or control of other governmental personnel, the state shall use diligence and make good faith efforts to cause such materials to be made available to the defense counsel, and if the state's efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court, upon request, shall issue suitable subpoenas or orders to cause such material or information to be made available to the state for disclosure to the defense.
In the case before us, the motion court did not err in concluding that the State violated Brady and Rule 25.03 by failing to disclose T.B.'s criminal records upon Respondent's request. First, evidence of criminal records of the prosecution's witnesses constitutes impeachment evidence. Crivens v. Roth, 172 F.3d 991, 996 (7th Cir. 1999). Impeachment evidence is favorable evidence which the prosecution is required to reveal to the defendant. Goodwin, 43 S.W.3d at 812. Thus, evidence of T.B.'s criminal records, which could have been used to impeach her, was favorable to Respondent, and the State was required to disclose these records to him.
Second, Rule 25.03 outlines the State's duties attendant to a defense request for the criminal records of the State's witnesses. Both Rule 25.03 and Brady imposed an affirmative duty on the State to learn of and reveal evidence of T.B.'s criminal record to the Respondent. The State did not fulfill its duty. Rule 25.03 mandates that where the records are not in the possession or control of the State but rather in the possession of other governmental entities, the State shall exercise due diligence in obtaining the records for the defense. It is unclear why the State did not discover T.B.'s criminal records. At the 29.15 evidentiary hearing none of the State's witnesses testified as to what exactly the State did in order to obtain the requested evidence. The State's investigator could not recall if he had searched for T.B.'s criminal records under any of her aliases despite knowing of those aliases.
The State alludes to the possibility that its failure to discover the criminal records may have been the result of a technological glitch or some human error that was beyond the control of the State. Because of this, the State argues, the criminal records at issue were not within its possession or control and, as such, it could not have suppressed or withheld the evidence. This argument is without merit because the State is liable for both willful and inadvertent suppression/withholding of favorable evidence. Goodwin, 43 S.W.3d at 812.
Third, given the allegations involved and the nature of T.B.'s prior criminal infractions/pending charges, there is a reasonable probability that the undisclosed evidence would have affected the outcome of Respondent's trial. The State had charged Respondent with kidnapping, armed criminal action and rape, relating to the Respondent's encounter with T.B. T.B. was the State's primary witness, and her claims were denied by Respondent. Therefore, T.B.'s credibility was a pivotal issue in Respondent's trial. The criminal records evidence would have been favorable to Respondent's defense because it could have been used to impeach T.B.'s testimony and question her motivation.
The State's assertion that the criminal records would not have been admissible or would not have affected the outcome of the trial is without merit. The evidence was admissible for impeachment purposes and material to testing the credibility of T.B. .
In the absence of the criminal records evidence, we cannot be confident that Respondent received a fair trial. As the State's primary witness, T.B.'s credibility was important in the Respondent's trial. However, her credibility was not adequately tested due to the non-disclosure of the records of her criminal history. There is a reasonable probability that the jury would not have found T.B. credible given her three previous convictions for theft, her three pending charges for fraudulent use of a credit device and her use of several aliases. Respondent was therefore prejudiced by the State's failure to disclose T.B.'s criminal records. Point I is denied.
Conclusion
The motion court did not err in finding that the State violated both Rule 25.03 and Brady by failing to discover and disclose T.B.'s criminal record despite a request from the Respondent. The decision of the motion court is affirmed.
Patricia L. Cohen, J., and Lawrence E. Mooney, J., concur.
OPINION SUMMARY
The respondent, Jason Merriweather, was convicted by a jury of forcible sodomy, and he filed a Rule 29.15 motion for post-conviction relief. After an evidentiary hearing, the circuit court concluded that the State of Missouri violated Rule 25.03 and Brady v. Maryland, 373 U.S. 83 (1963), when it failed to discover and disclose all of the State's witnesses' criminal records, and the circuit court granted the respondent's Rule 29.15 motion. The State appeals.
In its sole point on appeal, the State claims that the circuit court erred in granting the respondent's Rule 29.15 motion because (1) it improperly applied or extended the scope of Brady by placing the duty on the State to disclose information that was not in the State's possession, (2) it unreasonably required the State to discover information that was not discoverable despite due diligence and reasonable inquiry, and (3) it incorrectly found that the missing criminal records were material.
AFFIRMED.
DIVISION V HOLDS: The trial court did not err in finding that the State violated both Rule 25.03 and Brady by failing to discover and disclose its witnesses' criminal records.
Nannette A. Baker, C.J. (author), Lawrence E. Mooney, J., and Patricia L. Cohen, J., concurring.