March v. Midwest St. Louis, L.L.C.

• Citation: 417 S.W.3d 248
• Decision Date: 14 January 2014
• Docket Number: No. SC 92984.,SC 92984.
• Court: United States State Supreme Court of Missouri
• Parties: Phillip H. MARCH, Respondent, v. MIDWEST ST. LOUIS, L.L.C., Appellant.

417 S.W.3d 248

Phillip H. MARCH, Respondent,

v.MIDWEST ST. LOUIS, L.L.C., Appellant.

No. SC 92984.

Supreme Court of Missouri,

En Banc.

Jan. 14, 2014.

Patrick A. Bousquet, Russell F. Watters and Brad R. Hansmann of Brown & James PC, St. Louis, for Midwest.

Jonathan Sternberg, Jonathan Sternberg, Attorney, PC, Kansas City, for March.

PATRICIA BRECKENRIDGE, Judge.

Midwest St. Louis, L.L.C., appeals the trial court's order granting Philip H. March a new trial after a jury verdict in favor of Midwest. The trial court granted a new trial because it found that a key witness for Midwest, Louis L. Akin, deliberately testified falsely about a material issue at trial that likely resulted in an improper verdict and that, alternatively, newly discovered evidence merited a new trial. Midwest asserts that all of Mr. Akin's testimony was true and that, if there was false testimony, it was not material to the jury's verdict. Furthermore, Midwest claims that the evidence presented does not qualify as newly discovered evidence that merits a new trial. Because Midwest does not meet its burden of clearly demonstrating that the trial court abused its discretion in finding that Mr. Akin falsely testified and an improper verdict resulted therefrom, this Court affirms the trial court's judgment.

Factual and Procedural Background

The underlying case is a civil claim of premises liability, arising from a stabbing that occurred at approximately 2 a.m. April 24, 2007. The stabbing occurred on or near the property of a gas station and convenience store owned and operated by Midwest. Prior to the stabbing, there had been fifteen police reports of prior crimes on the property, and employees of the convenience store had been caught trying to sell illegal weapons to undercover FBI informants. Midwest had promised city officials that it would hire off-duty police to patrol the property, but it failed to do so.

Phillip H. March was the victim of the assault, and no one witnessed the incident. On the evening of the assault, Mr. March had been at a bar with his brother. After leaving the bar in the early morning hours, the brother began driving the two of them home and stopped for snacks at Midwest's convenience store on their way. After the two made their purchases, Mr. March decided he was not ready to go and told his brother to leave him at the store. After calling friends from the store's outdoor payphone, Mr. March walked across the front of the store to a dumpster on the east side of the building to urinate. He claims that the assailant approached him at this time.

Mr. March was intoxicated at the time of the assault and had no recollection of the incident immediately after it occurred due to extensive injuries that nearly caused his death. However, he later stated, and currently contends, that the assault occurred next to a dumpster located on Midwest's property. Midwest disputes the location of the assault, claiming it occurred in an alley behind Midwest's property, thereby negating any liability for the assault.

Several police officers responded to the incident and gathered evidence at the scene of the crime. At trial, the responding officers offered contradictory testimony as to where they spotted blood, either in the alley or near the dumpster. Detective Tonya Tanksley said that her investigation revealed a single trail of blood that she followed into the alley behind the store, where she found a pool of blood. She said that she did not recall seeing blood near the dumpster. Officer George Weindel also responded to the scene. He said he examined a pool of blood at the entrance of the convenience store and then followed a blood trail around the building to the alley. He did not remember having looked by the dumpster for blood; however, he saw nothing in his investigation that would rule out Mr. March's recollection that he was stabbed by the dumpster. Finally, Sergeant Thomas Majda testified that he remembered seeing blood by the dumpster and in the grass near the dumpster. He testified that one other officer saw “some blood on a fence or something near the dumpster” and then tracked it to the alley to a small pool of blood. The only other testimony concerning the location of the stabbing was provided by experts retained by each of the parties.

Mr. March's expert was Iris Dalley, a blood spatter analyst, who testified that there was not enough information to provide an expert opinion as to where the stabbing occurred. Conversely, Midwest's expert crime scene analyst, Louis L. Akin, testified that the stabbing occurred in the alley behind the gas station and not on the property owned by Midwest. Mr. Akin based his opinion on the results of the police investigation and photographs of the scene taken by the investigating officers.

During direct examination, prior to providing his opinion about the location of the stabbing, Mr. Akin testified about his education, training, and relevant experience that qualified him as an expert witness. When asked whether he was “currently involved in any major investigation where [he had] been retained by the U.S. Government,” he responded by stating, “I recently just finished reconstructing the Fort Hood shooting by Major Malik Hasan.” This testimony became the basis of the trial court's grant of a new trial.

The trial concluded with the jury returning a verdict for Midwest. Mr. March then filed a motion for a new trial, alleging that Mr. Akin committed perjury by falsely testifying about his credentials as an expert witness. Mr. March based his allegation on evidence he claims to have discovered after trial. This evidence consisted of a post on Mr. Akin's website, which was removed from his site shortly after he was retained by Midwest. The post, written by Mr. Akin, stated that he had recently been retained as an expert on behalf of the defense in the Fort Hood shootings case, not as an expert on behalf of the prosecution.

Following a hearing, the trial court sustained Mr. March's motion for a new trial in a 12–page judgment, finding that Mr. Akin's response indicating that he was retained by the United States government, rather than by Major Hasan's defense counsel, was perjury. The court, alternatively, found that Mr. March was entitled to a new trial on the ground that the evidence indicating Mr. Akin was retained by Major Hasan's defense team was newly discovered. Midwest appealed. Following an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.

On appeal, Midwest asserts that the trial court erred in granting Mr. March's motion for a new trial because Mr. Akin did not commit perjury and the evidence allegedly discovered following the trial did not amount to new evidence.

Standard of Review

A trial court's decision to grant a new trial under Rule 78.01 is reviewed for abuse of discretion, including when the trial court grants a new trial after determining that perjury occurred and that an improper verdict resulted therefrom. Hancock v. Shook, 100 S.W.3d 786, 801 (Mo. banc 2003); Nance v. Kimbrow, 476 S.W.2d 560, 561 (Mo.1972). An appellate court only will interfere in a trial court's decision to grant a new trial based on perjury when the evidence clearly demonstrates that the trial court has abused its discretion. Hancock, 100 S.W.3d at 801.

A trial court abuses its discretion when its “ruling is clearly against the logic of the circumstances then before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration.” Id. at 795 (quoting Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000)). “If reasonable persons can differ as to the propriety of the trial court's actions, then it cannot be said that the trial court abused its discretion.” Id.; see also Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519, 522 (1949). It is the appellant's burden to prove that the trial court abused its discretion by granting a new trial on the stated grounds. Precision Elec., Inc. v. Ex–Amish Specialties, Inc., 400 S.W.3d 802, 808 (Mo.App.2013). In reviewing a circuit court's ruling resulting in either the grant or denial of a new trial, appellate courts view the evidence in the light most favorable to the circuit court's order. Badahman v. Catering St. Louis, 395 S.W.3d 29, 39 (Mo. banc 2013).

False Testimony

After a hearing on Mr. March's motion for a new trial, the trial court determined that Mr. Akin willfully and deliberately had provided false testimony, that this testimony regarded a material matter and likely occasioned an improper verdict, and that a new trial was required as a result. Granting a new trial on the ground of perjury requires more than “a mere mistake in testimony.” A.M.S. ex rel. M.E.S v. J.L.B., 723 S.W.2d 891, 892 (Mo.App.1985) (quoting Humfeld v. Langkop, 591 S.W.2d 251, 254 (Mo.App.1979)) (internal quotations omitted). As found by the trial court, “the granting of a new trial on perjury grounds requires a showing that the witness willfully and deliberately testified falsely.” Hancock, 100 S.W.3d at 801. Because a reviewing court does not have the luxury of observing the witness, hearing the inflection in witness' voices, their manner of answering questions, and the pauses they might take in responding, this Court defers to the trial court's factual findings and determinations concerning witness credibility. Donati, 216 S.W.2d at 522;Lee v. Rudolph–Brady, 236 S.W.3d 658, 659 (Mo.App.2007). The significant deference given to the trial court is evidenced by the more than thirty reported Missouri decisions that have reviewed a trial court's grant or denial of a new trial based on perjury grounds.¹ In only two of those decisions did a reviewing court reverse a trial court's grant of a new trial because it found the trial court abused its discretion in ruling on the merits of a claim of perjured testimony. In Loveless v. Locke Distributing Co., this Court reversedt...