Case Law Update: 2011-2014 Cumulative Edition

Facts: Petitioner was convicted at a jury trial of first degree murder of his mother. He lost his direct appeal and Rule 29.15 case. He won relief in U.S. District Court, but the 8^th Circuit reversed. He then filed a state habeas corpus case alleging various claims. The habeas court granted relief, and the State sought a writ of certiorari challenging the grant of relief.

Holding: The State argues that Petitioner’s claims are procedurally barred because he did not raise them in his direct appeal or Rule 29.15 case. However, claims are not barred in a habeas case if (1) the claim relates to a jurisdictional (authority) issue; or (2) the petitioner establishes manifest injustice because newly discovered evidence makes it more likely than not that no reasonable juror would have convicted him (a “gateway innocence” claim); or (3) the petitioner establishes the presence of an objective factor external to the defense, which impeded his ability to comply with the procedural rules for review of claims, and which worked to his actual and substantive disadvantage infecting his entire trial with constitutional error (a “gateway cause and prejudice” claim). Here, Petitioner’s claims fall under exception number three. He has shown that the State engaged in Brady violations because the Sheriff knew that another person had threatened the murder victim and law enforcement also failed to disclose that another witness had similar knowledge. Even though there may not have been written reports about this, Brady still required the State to disclose it, and even though the prosecutor may not have personally known about it, Brady makes the State responsible for police nondisclosure. Since these thing weren’t disclosed, Petitioner could not have known about them or raised them on direct appeal or in his Rule 29.15 case. Even though the Eastern District had held that Petitioner’s evidence at that time was insufficient to allow Petitioner to introduce evidence that another person did the crime, Petitioner has introduced new evidence in the habeas case directly linking another person to the crime, so all this evidence would now be admissible. Furthermore, the jury committed misconduct by seeking out a map that was not in evidence to use to convict Petitioner. The State contends that Petitioner has the burden to prove prejudice from this, but there is nothing in Missouri law that deprives a habeas petitioner of the benefit of the presumption of prejudice from such jury misconduct; Petitioner would have had such a presumption if this matter was raised on direct appeal. Here, the presumption applies and the State failed to rebut it. Grant of writ of habeas corpus affirmed.
* Smith v. Cain, 132 S.Ct. 627 (2012):

Holding: Brady violation occurred where State failed to disclose police files that contained statements by a witness which directly contradicted his trial testimony and the witness was sole eyewitness linking Defendant to crime.
* Wetzel v. Lambert, ___ U.S. ___, 90 Crim. L. Rep. 668 (U.S. 2/21/12):

Holding: State court did not unreasonably apply federal law in ruling that Brady was not violated where State failed to disclose ambiguous information that would not have materially furthered the impeachment of witnesses.
* Connick v. Thompson, ___ U.S. ___, 88 Crim. L. Rep. 805 (U.s. 3/29/11):

Holding: Even though prosecutor failed to disclose evidence, a wrongfully convicted plaintiff cannot recover civil damages on a failure-to-train-about-Brady theory without evidence of a pattern of similar discovery violations.
Johnson v. Folino, 2013 WL 163841 (3d Cir. 2013):

Holding: Remand of habeas case was required to determine materiality of prosecutor’s Brady violation in failing to disclose that State’s star witness was a suspect in multiple open police investigations.
Lambert v. Beard, 2011 WL 353209 (3d Cir. 2011):

Holding: Even though co-conspirator was impeached by other evidence at trial, State violated Brady in failing to disclose that co-conspirator had said that there was another participant in the crime; the undisclosed evidence would have allowed Defendant to open a new line of impeachment evidence.
Wolfe v. Clarke, 2012 WL 3518481 (4^th Cir. 2012):

Holding: Petitioner succeeded in establishing cause and a prejudice for procedurally defaulted Brady claim by concurrently establishing the elements of the Brady claim.
U.S. v. King, 628 F.3d 692 (4^th Cir. 2011):

Holding: Defendant made sufficient showing under Brady that grand jury transcript of witness may contain exculpatory evidence; hence court was required to conduct in camera review of transcript.
U.S. v. Tavera, 93 Crim. L. Rep. 449, 2013 WL 3064599 (6^th Cir. 6/20/13):

Holding: The “due-diligence” rule, which excuses Brady violations if the defendant could have found the exculpatory information on his own, is no longer valid in light of Banks v. Dretke, 540 U.S. 668 (2004); hence, Defendant had no due diligence duty to discover exculpatory statements of a co-defendant that should have been disclosed under Brady; court rejects State’s argument that counsel should have asked co-defendant if he had talked to the prosecutor.
U.S. v. Sedaghaty, 93 Crim. L. Rep. 712, 2013 WL 4490922 (9^th Cir. 8/23/13):

Holding: (1) Where affidavit supporting warrant for search of computer was only to investigate suspected tax fraud, Agents exceeded scope of search warrant when they went through computer files to collect evidence of terrorist activity that Defendant cheated on his taxes to fund terrorist causes; and (2) Gov’t committed Brady violation where they failed to reveal that FBI had paid persons who testified against Defendant $14,000 in “financial assistance.”
U.S. v. Thomas, 2013 WL 4017239 (9^th Cir. 2013):

Holding: Gov’t’s failure to disclose full history of drug dog’s search skills was not harmless where dog had been evaluated as having only “marginal” skills in certification program; thus, his behavior in touching Defendant’s toolbox provided an insufficient basis to search toolbox.
Mike v. Ryan, 92 Crim. L. Rep. 750 (9^th Cir. 3/14/13):

Holding: State court unreasonably applied federal law and unreasonably determined the facts in light of the evidence presented in the state court proceedings where State failed to disclose impeachment evidence concerning a key Officer-witness.
Phillips v. Ornoski, 2012 WL 899634 (9^th Cir. 2012):

Holding: Prosecution’s Napue violations in failing to correct a key witness’ and prosecutor’s own statements at trial that no immunity deal existed between them were material to a special circumstance finding.
Gonzalez v. Wong, 2011 WL 6061514 (9^th Cir. 2011):

Holding: Remand to district court was warranted, with instructions to stay habeas petition to allow state court to consider Brady claim, as the claim was colorable in light of psychological reports, but the reports could not be considered by federal courts until they were made a part of the state court record.
Pickard v. Dept. of Justice, 89 Crim. L. Rep. 690 (9^th Cir. 7/27/11):

Holding: After a drug informant has been identified in court, the DEA cannot refuse to provide records about the informant under Freedom of Information Act.
U.S. v. Kohring, 88 Crim. L. Rep. 778 (9^th Cir. 3/11/11):

Holding: Prosecutor was required under Brady and Giglio v. U.S., 405 U.S. 150 (1972), to disclose that one of its witnesses was under investigation for sex offense.
Maxwell v. Roe, 88 Crim. L. Rep. 293 (9^th Cir. 11/30/10):

Holding: Brady was violated where State failed to reveal that State had originally cut a far less favorable deal with jailhouse-snitch-witness to testify against Defendant; State made a better deal with snitch after snitch offered to testify that Defendant confessed to him.
Browning v. Trammell, 93 Crim. L. Rep. 203, 2013 WL 1867412 (10^th Cir. 5/6/13):

Holding: Prosecutor violated Brady in failing to disclose mental health records of key State’s witness which indicated witness had a tendency to blur reality and fantasy and shift blame on others; such records could have been used to question witness’ credibility.
Roth ex rel. Bower v. Dept. of Justice, 89 Crim. L. Rep. 621 (D.C. Cir. 6/28/11):

Holding: Death-sentenced Defendant is entitled to use FOIA to obtain records from FBI showing he is innocent; claim of innocence outweighs privacy rights of third parties mentioned in FBI investigative records.
Miller v. U.S., 2011 WL 721540 (D.C. 2011):

Holding: Brady violated where Gov’t failed to disclose until night before opening statements the grand jury testimony of a gov’t witness that the shooter used his left hand; Defendant was right-handed and could have focused their investigation on an alternative suspect who had signed a police document with their left hand.
Pizzuti v. U.S., 2011 WL 3652293 (S.D. N.Y. 2011):

Holding: On their motions to vacate, set aside, or correct their sentences, defendants were entitled to all FBI reports concerning witnesses, as well as an explanation for any differences between the disclosed documents and the documents actually used at trial.
U.S. v. Edwards, 2011 WL 1454077 (E.D. N.C. 2011):

Holding: Brady v. Maryland applies to SVP proceedings.
Gillispie v. Timmerman-Cooper, 2011 WL 6258450 (S.D. Ohio 2011):

Holding: Petitioner was entitled to federal habeas relief as to his Brady claim because the state failed to disclose to the defense, prior to trial, supplemental reports written by the original investigating detectives that eliminated the petitioner as a suspect.
Dennis v. Wetzel, 2013 WL 4457047 (E.D. Pa. 2013):

Holding: Even if withheld documents individually would not have violated Brady, their cumulative non-disclosure violated Brady because documents would have allowed defense to attack adequacy of State investigation and impeached important witnesses, while corroborating Defendant’s alibi.
Munchinski v. Wilson, 2011 WL 3439270 (W.D. Pa. 2011):

Holding: Superior Court erred in denying habeas relief based on the discovery of alleged evidence in that the Court erroneously used a heightened standard of review (that prisoner must show that the new facts would have changed the outcome of the trial) (1) which did not take into account that evidence favorable to the petitioner could not be suppressed by the prosecution under Brady; and (2) required that petitioner show materiality by demonstrating that the evidence “would have changed the outcome” of the trial when all that is required is that petitioner shows there is a “reasonable probability” that it would have done so.
Swafford v. State, 2013 WL 5942382 (Fla. 2013):

Holding: Where State’s case was built on theory that Defendant’s motive in murder was to engage in sexual assault, Defendant was entitled to new trial for newly discovered evidence that no seminal fluid was found inside victim because this gave rise to reasonable doubt as to guilt.
Wyatt v. State, 2011 WL 2652195 (Fla. 2011):

Holding: FBI letters created after trial that said that an expert on bullet lead analysis testified beyond the science were “newly discovered” evidence.
DeSimone v. State, 2011 WL 3962862 (Iowa 2011):

Holding: Where witness’ timecard would have impeached their credibility, State’s failure to disclose it violated Brady.
Com. v. Scott, 2014 WL 815335 (Mass. 2014):

Holding: Where Gov’t forensic lab engaged in misconduct regarding representations on a drug certificate, the misconduct is attributable to the State and there is a conclusive presumption that misconduct occurred in this case; case must be remanded to determine if there is a reasonable probability Defendant would not have pleaded guilty if he had known of the misconduct.
Com. v. Murray, 90 Crim. L. Rep. 294 (Mass. 11/22/11):

Holding: Prosecutors violated Brady by not disclosing that murder victim was a member of a criminal gang; this could have been used to impeach various witnesses.
People v. Gutierrez, 2013 WL 940786 (Cal. App. 2013):

Holding: State’s duty to disclose Brady material applies at preliminary hearings.
People v. Corson, 2013 WL 174450 (Colo. App. 2013):

Holding: Juvenile adjudication of a Witness is required to be disclosed as Brady impeachment material.
Ex Parte Coty, 2014 WL 128002 (Tex. App. 2014):

Holding: Remedy in habeas proceeding for misconduct by crime lab technician at trial was to shift the burden of falsity to the State, but the burden of persuasion with respect to materiality remained with Petitioner.
Johnson v. State, 2011 WL 6157492 (Tenn. Crim. App. 2011):

Holding: In determining whether relief was warranted based on newly discovered evidence, the appellate court would take into account the entire record, including improperly withheld exculpatory evidence, rather than just the admitted evidence.
Pena v. State, 90 Crim. L. Rep. 8 (Tex. Crim. App. 9/28/11):

Holding: Even though State mistakenly thought audio had been erased, the audio of a videotape where Defendant denied the crime should have been disclosed under Brady.
Ex parte Ghahremani, 2011 WL 798640 (Tex. Crim. App. 2011):

Holding: Where State concealed a police report that would have shown that child sex victim’s parents gave false testimony at trial, this violated due process and excused Defendant’s failure to raise this on direct appeal; habeas relief granted.

Child Support
State v. Holmes, 2013 WL 2631045 (Mo. banc June 11, 2013):

Holding: The pre-2012 child nonsupport statute, Sec. 568.040.1, is not unconstitutional because it does not shift the burden of proof to the defense to prove good cause for failure to pay. The Court notes, however, that the new 2012 version of the statute makes good cause an affirmative defense, and the Court expressly does not decide the constitutionality of the new statute.
Cafferty v. State, 2014 WL 5648639 (Mo. App. W.D. Nov. 4, 2014):
Even though guilty plea form stated that Movant understood the charge of child nonsupport, where Movant told judge during guilty plea that he didn’t pay his child support because he couldn’t find a job after being released from jail, Movant’s guilty plea (1) lacked a sufficient factual basis because he asserted “good cause” for not paying, and (2) was not knowing and voluntary because the record did not show that he understood the specific nature of the charge against him.

Facts: Movant pleaded guilty to criminal nonsupport. During the guilty plea hearing, the judge read the charge to Movant, asked if he had failed to pay child support as alleged, and asked “why was that?” Movant said, “Because I couldn’t find work. Ever since I got out of prison it has been hard to find work.” The Court accepted the plea.

Movant subsequently filed a Rule 24.035 motion.

Holding: Movant claims that no factual basis established that he failed to pay child support “without good cause.” At the time Movant pleaded guilty, Sec. 568.040 provided that a person commits the crime of nonsupport if he “knowingly fails to provide, without good cause, adequate support.” Given Movant’s explanation for why he failed to pay, he did not unequivocally state that he lacked good cause to provide support. Even though Movant signed a petition to enter a plea of guilty and stated that he fully understood the charges against him, a plea petition is not a substitute for a judge insuring that a defendant understands the charge. Movant’s answer as to why he didn’t pay required that the judge explore further to determine either that Movant had the ability to pay or purposely maintained his inability in order to avoid paying. Here, the record does not show that Movant understood the specific nature and elements of the charge. Conviction vacated and remanded.
State ex rel. State of Missouri Dept. of Social Services Family Support Division v. Campbell, No. WD75408 (Mo. App. W.D. 11/27/12):

Holding: Judge cannot order State to pay for paternity testing under Sec. 210.854, since statute says that petitioner (alleged father) shall pay for such testing.
State v. Buckler, No. WD72794 (Mo. App. W.D. 10/18/11):

Even though DNA testing showed that Defendant was not the father of child to whom child support was owed, where child had been legitimated by legal process, trial court did not err in excluding DNA test from trial and Court of Appeal must uphold conviction for failure to pay support, but Defendant has until Dec. 31, 2011, to avail himself of procedures of Sec. 210.854 to have himself declared not to be the father and have his conviction expunged.

Facts: Defendant was charged with criminal nonsupport. The child-support obligation stemmed from a court judgment entered in 2004 in which Defendant was declared to be the father. Defendant did not contest this finding in 2004 because he believed he was the father. However, he subsequently learned that he was not, and a subsequent DNA test showed that he was not the father. At trial, the trial court excluded the DNA evidence that he was not the father because the child had been “legitimated by legal process.” After conviction, he appealed.

Holding: The trial court did not err in excluding the DNA test at the criminal trial because under State ex rel. Sanders v. Sauer, 183 S.W.3d 238 (Mo. banc 2006), the State need only prove that the child was “legitimated by legal process,” not that the defendant is the actual father. Hence, whether Defendant was the actual father was irrelevant to the charge. Defendant also contends that since the DNA test shows he’s not the father, he was denied due process by his conviction. Under Sauer, however, he has no legal defense to the charge, and while the contention that something is “not fair” may be relevant to proceedings in equity, it is not a recognized legal defense to a criminal charge. However, there is a statutory remedy which Defendant can pursue: Sec. 210.854.1 and .8 provide that Defendant has until Dec. 31, 2011, to file an action to set aside the judgment that he is the father, and once that is done, he can have his conviction expunged under those sections. Defendant “is the ideal candidate under section 210.854 to have his conviction set aside and all records concerning his conviction expunged,” but he needs to follow the procedures set forth in that statute.

Editor’s Note: The statute provides that after Dec. 31, 2011, petitions under the statute have to be filed “within two years of the entry of the original judgment of paternity and support or within two years of entry of the later judgment in the case of separate judgments of paternity and support and shall be filed in the county which entered the judgment or judgments of paternity and support.”
Com. v. Marshall, 2011 WL 3760858 (Ky. 2011):

Holding: Before court can revoke probation for failure to pay child support, due process requires that court must consider whether Defendant is unable to pay through no fault of his own and if so, must consider alternatives to incarceration; this is true even if Defendant had agreed to pay support as condition of probation.

Civil Procedure
Shaefer v. Koster, No. SC91130 (Mo. banc 6/14/11):

Holding: (1) Criminal defendant cannot bring declaratory judgment action to challenge constitutionality of statute under which they are charged because there is an adequate other remedy, i.e., to raise the alleged unconstitutionality in their criminal case; (2) Sec. 516.500 which places a time limit on when a person can challenge the constitutionality of a statute does not apply to a criminal defendant who raises a challenge to the statute as a defense to the criminal case.

Editor’s Note: The dissenting opinion would allow the declaratory judgment action and would find that the 2008 version of Sec. 577.023.16 which enacted certain DWI penalty enhancements (since repealed and replaced by a new statute) violates the Missouri Constitution’s prohibitions about clear title, original purpose and single subject, Art. III, Secs. 21 and 23, Mo.Const. The bill’s title dealt with “watercraft,” the bill was originally only about “watercraft” and adding DWI provisions violated the title, original purpose and single-subject provisions. The majority opinion did not reach the merits of the case.
Dunivan v. State, 2014 WL 5471471 (Mo. App. S.D. Oct. 29, 2014):

Attorney General’s Office did not have unconditional or absolute legal right to intervene in an action to remove Petitioner from sex offender registry.

Facts: Pursuant to the procedures of Sec. 589.400.9, Petitioner sought to remove his name from the sex offender registry. He properly served County Prosecutor, who represented the State in the petition action. After the court removed Petitioner’s name, the Attorney General filed a motion to intervene on behalf of “the State” and the Highway Patrol, which maintains the registry. The trial court denied the motion. The Attorney General appealed.

Holding: The Attorney General appeals only the denial of the motion to intervene. The Attorney General claims that Sec. 27.060 confers an unconditional legal right to intervene. Sec. 27.060 provides that the Attorney General “may also appear and interplead, answer or defend, in any proceeding or tribunal in which the state’s interests are involved.” The language “may” is not synonymous with an unconditional or absolute right to intervene, especially where the State is already being represented by the County Prosecutor in a lawsuit. The statute on sex offender name removal does not require notice to the Attorney General, or mandate that the Attorney General be made a party. Instead, the statute requires the County Prosecutor be served. To be able to intervene under Rule 52.12, a person must show (1) an interest in the property or transaction that is the subject of the lawsuit, (2) disposition of the lawsuit may impair that interest, and (3) his interest is not adequately represented by other parties. The Attorney General claims an “interest” in the lawsuit because the Highway Patrol maintains the registry. However, the Highway Patrol has no input into whether Petitioner should be on or off the registry; the Highway Patrol’s sole duty is to maintain the registry. Thus, the Highway Patrol has no “interest.” Further, the State’s interests are represented by County Prosecutor.
T.T. v. Burgett, No. WD74467 (Mo. App. W.D. 6/26/12):