Merriweather v. State

• Decision Date: 01 September 2009
• Docket Number: No. SC 89846.,SC 89846.
• Citation: 294 S.W.3d 52
• Parties: Jason MERRIWEATHER, Respondent, v. STATE of Missouri, Appellant.
• Court: Missouri Supreme Court

294 S.W.3d 52

Jason MERRIWEATHER, Respondent, v. STATE of Missouri, Appellant.

No. SC 89846.

Supreme Court of Missouri, En Banc.

September 1, 2009.

Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Appellant.

Nick Zotos, Nick A. Zotos Law office, St. Louis, MO, for Respondent.

MICHAEL A. WOLFF, Judge.

Introduction

The jury found Jason Merriweather guilty of forcible sodomy based solely on the testimony of the complaining witness, T.B., who said Merriweather ordered her into his car at gunpoint and forced her to perform oral sodomy. Merriweather said T.B. flagged down his car and offered to exchange oral sex for drugs. T.B. and Merriweather were the only witnesses to the encounter; there was no physical evidence.

The state failed to disclose T.B.'s criminal record, which included convictions for theft. Upon Merriweather's Rule 29.15 post-conviction motion, the motion court ruled that Merriweather did not receive a fair trial and vacated the conviction, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); this Court's most recent Brady decision, State v. Goodwin, 43 S.W.3d 805 (Mo. banc 2001); and Rule 25.03.

The state appeals, asserting that its efforts to locate the criminal record were sufficient and, therefore, that it was not obligated to disclose T.B.'s criminal record. There is no contention that the state acted in bad faith; it appears that the record check made by the prosecutor's investigator failed to reveal the record, perhaps because of a technological glitch. There is no question that the record existed at time of trial; the prosecutor testified she found the record on the morning of the Rule 29.15 motion hearing.

The question posed is whether the state or Merriweather must bear the consequences of this error.

Facts and Procedural History

T.B. testified that she was walking home after dropping off her daughter at the Greyhound bus station in St. Louis on March 31, 2002, when Jason Merriweather pulled his car in front of T.B., brandished a handgun and ordered T.B. into the car. T.B. entered the car, and Merriweather drove to an alley where he sexually assaulted T.B. The state charged Merriweather with forcible sodomy, armed criminal action, kidnapping and attempted forcible rape.

Prior to trial, Merriweather's counsel ran T.B.'s name through the REJIS database to ascertain her criminal history and was unable to find any criminal record.¹ Merriweather's counsel also made discovery requests to the state for T.B.'s criminal record. The prosecutor's investigator ran criminal background checks on all of the witnesses, including T.B., using the REJIS system. The investigator was unable to find any criminal record.

At trial, Merriweather testified that T.B. had flagged him down as he was driving, entered his car and then offered to exchange oral sex for drugs. After T.B. had performed oral sex on Merriweather, he refused to pay her, and she got out of the car and began screaming at him. As previously noted, there was no physical evidence introduced at trial. The jury convicted Merriweather of forcible sodomy but acquitted him of attempted forcible rape, armed criminal action and kidnapping. Merriweather appealed his conviction, which was affirmed in State v. Merriweather, 196 S.W.3d 636 (Mo.App.2006).

At the hearing on Merriweather's Rule 29.15 motion for post-conviction relief, the prosecutor testified that on the morning of the hearing, she ran a criminal record check on T.B. using the L.E. Web system, an updated database the St. Louis circuit attorney began using after the time of Merriweather's trial. The search produced three prior convictions for retail thefts from Sangamon County, Illinois, and a pending charge for fraudulent use of a credit device in St. Louis County. All of the charges preceded the date of Merriweather's trial.

While there was no evidence that the state intentionally had failed to disclose T.B.'s criminal record, Merriweather contended that the failure to disclose T.B.'s criminal record to the defense was a violation of both Brady and Rule 25.03, which require that the state disclose any record of its witnesses' prior criminal convictions.

At the post-conviction hearing, the investigator testified that his REJIS search of T.B.'s name did not reveal the prior convictions in Sangamon County or the pending charge in St. Louis County. The investigator could not provide a definitive reason as to why REJIS failed to pick up those previous charges. The state's witnesses did not testify as to what, exactly, the state did to obtain the evidence, other than the REJIS search. Nor could the investigator recall whether he had searched for T.B.'s criminal record under any of the known aliases she used, even though the investigator knew she had used aliases.

The motion court vacated Merriweather's conviction, concluding that although the failure to disclose may have been inadvertent rather than intentional, the defendant was deprived of his right to fair trial. The state appealed the motion court's decision. After opinion in the court of appeals, this Court granted transfer pursuant to Mo. Const. art. V, sec. 10.

Standard of Review

"`This Court will uphold the findings and conclusions of the motion court unless they are clearly erroneous.' ... 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." Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005) (citing Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000)); see also Rule 29.15(k).

Brady v. Maryland

Brady holds that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. 1194. "There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). "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." Goodwin, 43 S.W.3d at 812.

Not before this Court is the question of interpreting the scope of the terms "government agents" or "possession" used in the Brady case law. In Kyles v. Whitley, 514 U.S. 419, 437, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), the Supreme Court held that "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Several federal courts have examined whether "the government" includes governments of other states or may be limited to government agents connected with the prosecuting body. See, e.g., United States v. Jones, 34 F.3d 596, 599 (8th Cir.1994) ("Brady requires the prosecution to disclose to the defendant only evidence in the prosecution's possession ... The government has no `affirmative duty ... to take action to discover information which it does not possess.' ... There is, therefore, no Brady violation if the government does not `possess' the material at issue. In addition, the `prosecutor has no duty to undertake a fishing expedition in other jurisdictions in an effort to find impeaching evidence.'") (internal citations omitted).

Although Brady informs this Court's judgment and states a basis for a finding of denial of due process, the law subject to interpretation here is Rule 25.03, which governs disclosure requirements in criminal proceedings.

Rule 25.03

Violations of the discovery rules are trial errors, which are cognizable in a post-conviction proceeding only in limited circumstances. See State v. Carter, 955 S.W.2d 548, 555 (Mo. banc 1997) ("The state's alleged failure to comply with [a] discovery request is a claim of trial error, which is outside the scope of a Rule 29.15 motion. 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.") (internal citations omitted). The due process implications of a failure to disclose potentially exculpatory material render Merriweather's claim of a Rule 25.03 violation an issue of "fundamental fairness."

Rule 25.03 outlines the disclosure requirements in a criminal proceeding as follows:

(A) ... 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 ...

(Emphasis added).

Rule 25.03 was a criminal discovery rule promulgated in 1973, after Brady was decided. Rule 25.03, unlike Brady, imposes an affirmative requirement of diligence and good faith on the state to locate records not only in its own possession or control but also in the control of other...