Scott v. Jones, 88-0183-CV-W-JWO-P.

Citation688 F. Supp. 510
Decision Date22 June 1988
Docket NumberNo. 88-0183-CV-W-JWO-P.,88-0183-CV-W-JWO-P.
PartiesArlester E. SCOTT, Petitioner, v. Jim JONES, Respondent.
CourtUnited States District Courts. 8th Circuit. Western District of Missouri

Arlester Eugene Scott, Moberly, Mo., pro se.

William L. Webster, Atty. Gen., State of Missouri, Jefferson City, Mo., for respondent.


JOHN W. OLIVER, Senior District Judge.


The first of the seven grounds alleged in the pending State prisoner habeas corpus petition presents the question of whether the petitioner was tried and convicted at a second trial in violation of the prohibition of the Double Jeopardy Clause of the Fifth Amendment that no "person shall be subject for the same offense to be twice put in jeopardy of life or limb." Petitioner was convicted of first degree robbery at his first trial. That conviction was reversed by the Missouri Court of Appeals, Western District, on February 15, 1983 in State v. Scott, 647 S.W.2d 601 (Mo.App.1983) (hereinafter Scott I) and the case was remanded "for further proceedings consistent with this opinion." Id. at 611. Scott I expressly noted that:

The parties have not raised or briefed double jeopardy implications of retrial and a second attempt to establish as competent the fingerprint exhibits. No opinion is expressed here on the subject.

Id. at 608.

Petitioner was thereafter again tried and convicted of the same offense at a second trial. Petitioner's motion to dismiss based on double jeopardy grounds was denied by the second trial court. Petitioner's second conviction was affirmed by a different panel of the Missouri Court of Appeals, Western District, on September 3, 1985 in State v. Scott, 699 S.W.2d 760 (Mo.App.1985) (hereinafter Scott II).

The pending petition for habeas corpus was filed March 3, 1988. Application of controlling federal standards, see Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), requires that we find and conclude that petitioner is entitled to federal habeas corpus relief under the first ground alleged in his pending petition.


The factual circumstances in regard to petitioner's first trial were established by the Missouri Court of Appeals' decision that reversed the conviction obtained at that trial. Scott I reliably found that "in the main, the facts of the crime were uncontroverted, the sole issue being whether the accused, Scott, was one of two men who committed the robbery." 647 S.W.2d at 603. Scott I accurately added that:

The state's evidence initially established that in the early afternoon of March 27, 1981, a robbery was committed at a Milgram's food market in a Kansas City shopping center. The robbers were two black men, one short and the other tall with a full dark beard. Both men wore gloves but were otherwise undisguised.

Id. at 603-04.

After stating that the "hypothesis of the prosecution was that Scott was the taller of the two robbers," Scott I found that "none of the four store employees, however, made any positive identification of Scott" and that "Scott's implication in the crime rested entirely on a fingerprint comparison."1 Id. at 604. Scott's fingerprint "was allegedly recovered by an evidence technician, William Fortner, from a scrap of cardboard retrieved from the floor of the Milgram store manager's office." Id.

It was not until after the first prosecution witness had completed his testimony did the prosecutor disclose to the trial court and to defense counsel that "Fortner, the evidence technician, could not be located." Id. Scott I stated that "Officer Fortner still had not been located by the third day of trial" and that he never testified at petitioner's first trial.2 Id. at 605.

Rather than requesting a recess in order to obtain the presence of Fortner, the State elected to call and rely on the testimony of two witnesses it had failed to endorse as prosecution witnesses as required by State law. In addition, the prosecution had also failed to disclose the names of those witnesses in response to a defense request made pursuant to Rule 25.03 of the Missouri Rules of Criminal Procedure.3

Scott I reliably found that at "a side bar conference when defense counsel pointed out that disclosure of witnesses Burns and Worlan had only occurred as trial began, the state candidly acknowledged that defense counsel had been unintentionally misled as to the witnesses who would be called." 647 S.W.2d at 606. Scott I also found that the "trial court conceded the merit of defendant's objection to use of state's witnesses Burns and Worlan without prior disclosure and that the state agreed that the context of pre-trial discovery had misled the defense as to prosecution witnesses." Id. Scott I stated, however, that the State trial "court denied a motion to disqualify Burns as a witness but did declare a recess to permit defense counsel to interview Burns before he testified." Id. at 604. In like manner, the State trial court refused "to bar the use of Worlan as a surprise witness but provided the defense an opportunity to interview Worlan before he testified." Id.

Scott I reliably found that at the time Burns was called as the State's first surprise witness, he was "portrayed as a routine witness describing the scene of the crime" and that "the state had made no disclosure that Fortner could not be found and that Burns would provide the sole link in the first chain of custody to the critical fingerprint exhibit." Id. at 607. Scott I accurately stated that "the trial court gave no consideration to granting Scott's motion to bar the state from using witnesses Burns and Worlan but viewed a mistrial or the opportunity to interview the witnesses as the full range of available sanctions." Id. at 606. The choice offered by the trial court was "between a mistrial declared sua sponte by the court or an opportunity to interview Burns and Worlan before they testified." Id.

Scott I makes clear, however, that "defense counsel informed the court Scott did not seek a mistrial" and that, for reasons he stated, Scott wanted "to pursue the trial then in progress in hope of a favorable verdict." Id. Scott I reliably found that Scott and his attorney "refused the proffered mistrial and made the best of the interview opportunity, conducted while the court and jury stood by awaiting resumption of proceedings."4 Id.


Scott I noted that the following questions were presented on appeal: "1 whether the state was entitled to use Burns and Worlan as witnesses after failing to disclose them in pre-trial discovery and, 2 whether the proof from these witnesses was sufficient to establish the integrity of the physical evidence." 647 S.W.2d at 605.

Scott I first discussed and ruled "Scott's complaint about both surprise witnesses." 647 S.W.2d at 605. It concluded that the trial court's failure "to sustain defendant's motion to exclude Burns and Worlan for failure of the state to provide timely discovery ... required that Scott's conviction must be reversed." Id. at 607. Scott I explained that "in no other way could the prejudice to Scott's due process rights be effectively removed."5 Id.

Scott I further concluded that the "fundamental unfairness of permitting the state to call previously undisclosed witnesses to prove vital elements of the prosecution's case can scarcely be debated." Id. at 606. It was further noted that at the time of trial "neither the court nor the prosecuting attorney entertained any doubt that some remedy was required to overcome the prejudice which summoning Burns and Worlan at the eleventh hour had produced." Id.

The Missouri Court of Appeals emphasized that "Scott did not seek and his cause was not furthered by a mistrial which, of course, would have aided the state in providing added time to locate the evidence witness, Fortner." Id. at 606-07. It therefore concluded that the due process prejudice suffered by the petitioner under the circumstances, was not eradicated by "the opportunity given defense counsel to interview the witnesses." Id. at 607.6

After answering the first question of "whether the state was entitled to use Burns and Worlan as witnesses" (id. at 605) in the negative, Scott I turned to the second question presented on appeal: "whether the proof from those witnesses was sufficient to establish the integrity of the physical evidence." Id. That question was also answered in the negative.

Scott I expressly held that "assuming, however, any doubt" as to whether "witnesses Burns and Worlan be disqualified, ... the conviction must nevertheless be reversed because petitioner's alternative contention is valid."7 Id. at 607. We turn now to the second question presented on appeal in Scott I.


Scott I's analysis of the sufficiency of the evidence adduced at petitioner's first trial was made in light of its reliable finding that "none of the four store employees ... made any positive identification of Scott" and its finding that "Scott's implication in the crime rested entirely on a fingerprint comparison." 647 S.W.2d at 604. Scott I stated that "the crucial nature of the evidence to be supplied by witnesses Burns and Worlan is self-evident" and concluded that "without both witnesses, the state plainly had no case." Id. at 606.

After a careful analysis of all of the evidence adduced by the state, Scott I held that:

The absence of testimony by Fortner left a material gap in the proof necessary to show with reasonable assurance the exhibit was in fact an article collected at the crime scene. That assurance was of particular importance here where Scott was not shown by other evidence to have had any connection with the exhibit and upon that exhibit alone depended the entitlement of the state to take the case to the jury.8

Id. at 608.

In support of that ultimate finding, Scott I emphasized that the "foundation for admission of the scrap of cardboard from which the fingerprint had allegedly...

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3 cases
  • Hernandez v. Dugger, 88-287-CIV-T-15A.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • December 8, 1993
    ...that is, an evaluation of the "case on the facts," contributes heavily to the issue of release pending appeal. 5 In Scott v. Jones, 688 F.Supp. 510 (W.D.Mo. 1988), rev'd on other grounds, 862 F.2d 1311, cert. denied, 490 U.S. 1111, 109 S.Ct. 3169, 104 L.Ed.2d 1031 (1989), the issue of relea......
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    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
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