State Ex Rel. Chris Koster v. the Honorable Warren Mcelwain

Decision Date03 May 2011
Docket NumberNo. WD 73211.,WD 73211.
Citation340 S.W.3d 221
PartiesSTATE of Missouri ex rel. Chris KOSTER, Relator,v.The Honorable Warren McELWAIN, Circuit Judge of DeKalb County, and Julie Whitsell, Circuit Clerk DeKalb County Circuit Court, Respondents.
CourtMissouri Court of Appeals


Supreme Court Denied May 3, 2011.

Application for Transfer Denied

June 28, 2011.

Stephen D. Hawke, Jefferson City, MO, for relator.Sean D. O'Brien and Bronwyn Werner, Kansas City, MO, for Respondents.Before Writ Division: CYNTHIA L. MARTIN, Presiding Judge, MARK D. PFEIFFER, Judge and GARY D. WITT, Judge.CYNTHIA L. MARTIN, Judge.

This is an original proceeding in certiorari to review the Honorable Warren McElwain's entry of a writ of habeas corpus to Dale Helmig.1 Dale Helmig was convicted in March 1996, following a jury trial in Gasconade County of the first degree murder of his mother, Norma Helmig, whose body was recovered on Sunday, August 1, 1993, from the swollen flood waters at the confluence of the Maries and Osage Rivers. Dale Helmig was sentenced to life in prison without parole. The habeas court, following an evidentiary hearing, issued a writ of habeas corpus vacating Dale Helmig's conviction.

Although the writ of habeas corpus vacated Dale Helmig's conviction, it did not exonerate Dale Helmig. Dale Helmig remains a charged suspect in the murder of his mother eligible for retrial. The writ of habeas corpus ordered that Dale Helmig “be discharged from imprisonment for said conviction unless he is retried in Missouri circuit court for said offense within 180 days” of the writ of habeas corpus.2

We refuse to quash in part and quash in part the record of the circuit court which granted the writ of habeas corpus.3

Procedural History—the Writ of Habeas Corpus
The DeKalb County Habeas Corpus Proceedings

Dale Helmig filed a Petition for Writ of Habeas Corpus in the DeKalb County Circuit Court on July 17, 2009, pursuant to Rule 91.

Dale Helmig's Petition for Writ of Habeas Corpus asserted six claims involving constitutional infirmities which he contends deprived him of a fair trial: 4

Claim No. 1: Trial counsel was ineffective for failing to present the jury with the complete context of Dale Helmig's out-of-court statements, including evidence that Ted Helmig 5 threatened and abused his wife prior to her murder, which explains Petitioner's [Dale Helmig's] allegedly premature suspicion that his missing mother was the victim of foul play.

Claim No. 2: Trial counsel was ineffective for failing to present persuasive defense evidence that [Norma Helmig] was going through a bitter divorce from her abusive husband, failed to rebut any of the false evidence and assumptions on which the State relied, and failed to present evidence corroborating [Dale Helmig's] statement that he slept in a Fulton, Missouri, hotel room the night his mother disappeared.

Claim No. 3: The prosecutor engaged in repeated instances of misconduct, including:

A. Failure to disclose evidence that [Norma Helmig] asked Sheriff Fowler to protect her from her abusive husband three months before she was murdered, and that Tina Ridenhour told the prosecution that [Norma Helmig] armed herself with a pistol out of fear of her husband.

B. The State knowingly presented false testimony that Dale threw hot coffee in his mother's face on the Sunday before she was murdered.

C. The State presented false evidence that Petitioner tacitly admitted to Trooper Robert Westfall that he killed his mother.

D. The State improperly argued [Dale Helmig's] failure to participate in a crime scene investigation proved consciousness of guilt, knowing that Deputy Paul Backus ordered him to stay away.

Claim No. 4: The issue of trial counsel's ineffectiveness should be reopened in light of trial counsel's drug-related conviction.

Claim No. 5: New evidence that checks recovered from [Norma Helmig's] purse didn't clear the bank until after her death establishes that someone other than Petitioner took her purse on the night of her murder and threw it in the water some time later.

Claim No. 6: During deliberations, jurors obtained a map of unknown origin that was used to persuade one or more hold-out jurors to vote guilty.

Dale Helmig's Claims were procedurally defaulted, as they had been previously raised in a Rule 29.15 motion filed by Dale Helmig, or they related to matters that should have been raised at trial, on direct appeal, or in his Rule 29.15 motion.

Dale Helmig claimed that the habeas court was nonetheless permitted to review his procedurally defaulted claims because: (1) he could establish by a preponderance of the evidence, and based on “new evidence,” the probability that no reasonable juror would have convicted him (a “gateway claim of innocence”); and (2) he could establish that certain of his Claims were procedurally defaulted due to circumstances not fairly attributable to him (a “gateway cause and prejudice claim”). Dale Helmig also argued that he could establish by clear and convincing evidence a freestanding claim of innocence independently warranting issuance of a writ of habeas corpus.

On September 10, 2009, the Honorable Warren McElwain entered an Order to Show Cause why a writ of habeas corpus should not enter. Judge McElwain thereafter determined that Claims 1, 2, and 4 had been previously adjudicated by the Missouri Court of Appeals, Eastern District as a part of Dale Helmig's Rule 29.15 proceeding, and could not be revisited.6 He thus dismissed Claims 1, 2, and 4 without prejudice to Dale Helmig's ability to re-file the Claims in the Missouri Court of Appeals. Judge McElwain determined that Claims 3, 5, and 6 were Claims that had not been adjudicated in the Rule 29.15 proceeding, permitting review of the Claims if a procedural gateway could be established. Judge McElwain also permitted Dale Helmig to file a First Amended Petition for Writ of Habeas Corpus to add Claim No. 7: that at the time of Dale Helmig's trial, Christopher Jordan, trial counsel, abused controlled substances to the degree that his professional judgment and performance were impaired and unreasonable.

An evidentiary hearing on Dale Helmig's Amended Petition for Writ of Habeas Corpus was conducted before Judge McElwain on July 6, 7, and 8, 2010, with the record left open at the conclusion of the hearing to permit the submission of additional evidence discussed by the parties. The transcripts from Dale Helmig's preliminary hearing and March 1996 trial were made a part of the habeas corpus record. The transcript from Dale Helmig's Rule 29.15 evidentiary hearing was also made a part of the habeas corpus record. The parties stipulated to the admission of the transcript of testimony taken in connection with a habeas corpus proceeding conducted in the Federal District Court, Eastern District of Missouri, relating to Dale Helmig's claim that a map that was not in evidence had been provided to the jury (Claim 6). In addition, the habeas court had the benefit of various affidavits and exhibits presented before the hearing, and the benefit of several deposition transcripts made a part of the record.

The Writ of Habeas Corpus

Judge McElwain issued a writ of habeas corpus on November 3, 2010, accompanied by 110 pages of findings of fact and conclusions of law. The writ of habeas corpus was issued on several grounds, each of which would have independently supported issuance of the writ.

First, Judge McElwain found that the gateway of cause and prejudice had been established permitting review of Claim 3(A) (relating to the nondisclosure of Norma Helmig's reports of abuse and the nondisclosure of the existence of Tina Ridenhour as a witness), and of Claim 6 (relating to the map being provided to the jury).7 Judge McElwain then determined that Claims 3(A) and 6 were meritorious, and that Dale Helmig was a victim of a fundamental miscarriage of justice warranting the vacation of Dale Helmig's conviction.

Second, Judge McElwain found that Dale Helmig established the gateway claim of innocence by a preponderance of the evidence, permitting review of Claims 3(A), (B), (C), and (D), and Claims 6 and 7.8 Judge McElwain then determined that each of these Claims was meritorious warranting the vacation of Dale Helmig's conviction.

Finally, Judge McElwain found that Dale Helmig established Claim 5, a freestanding claim of innocence, and held that:

Dale Helmig has established by clear and convincing evidence that he is innocent of the crime for which he was convicted and sentenced, and that his constitutional rights were violated at his trial in the manner described above. As stated in Amrine v. Roper, 102 S.W.3d 541 (Mo.2003), Petitioner having met his burden, the evidence supporting the conviction must be assessed in light of all the evidence now available. There was no physical evidence linking Petitioner to the murder. The thin circumstantial evidence has been substantially weakened by the newly discovered evidence previously discussed. This case presents the rare circumstance in which no credible evidence remains from the first trial to support the conviction. This Court determines based on the record that under these rare circumstances, there is clear and convincing evidence of Dale Helmig's innocence. As such his conviction and sentence cannot stand and must be set aside.9

Judge McElwain issued the writ of habeas corpus and ordered that [t]he conviction of Dale Helmig in the Circuit Court of Gasconade County, Missouri, for the first degree murder of Norma Helmig is vacated and Petitioner shall be discharged from imprisonment for said conviction, unless he is retried in Missouri circuit court for the said offense within 180 days of this order.”

The Writ of Certiorari

On November 22, 2010, the State filed its Petition for Writ of Certiorari in this court. We granted the writ of certiorari as a matter of right. ‘When the Attorney General seeks a...

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