State ex rel. Clemons v. Larkins

• Decision Date: 24 November 2015
• Docket Number: No. SC 90197,SC 90197
• Citation: 475 S.W.3d 60
• Parties: State ex rel. Reginald Clemons, Petitioner, v. Steve Larkins, Superintendent, Respondent.
• Court: Missouri Supreme Court

475 S.W.3d 60

State ex rel. Reginald Clemons, Petitioner,

v.Steve Larkins, Superintendent, Respondent.

No. SC 90197

Supreme Court of Missouri, en banc .

Opinion issued November 24, 2015

Clemons was represented by Joshua A. Levine, Andrew M. Lacy, Gabriel Torres, Gabriel Rottman, Donald Conklin, Meredith C. Duffy, Noah Stern and Bashiri Wilson of Simpson Thacher & Bartlett LLP in New York, (212) 455–2000; and Mark G. Arnold of Husch Blackwell LLP in St. Louis, (314) 480–1500.

The state was represented by Stephen D. Hawke of the attorney general's office in Jefferson City, (573) 751–3321.

Patricia Breckenridge, Chief Justice

Reginald Clemons was convicted of two counts of first-degree murder and sentenced to death for the April 5, 1991 murders of sisters, Julie Kerry and Robin Kerry. Mr. Clemons filed a petition for a writ of habeas corpus in this Court, seeking to vacate his convictions because he claims that newly discovered evidence shows that he was prejudiced when the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding material evidence. In the alternative, Mr. Clemons requests that this Court vacate his death sentences because his sentences are disproportional due to his age and lack of criminal record, new evidence that Mr. Clemons' confession was coerced, evidence that Mr. Clemons' did not directly murder the Kerry sisters but acted only as an accomplice, and because of the reduced sentence of a "more culpable" codefendant.

This Court appointed a special master under Rule 68.03 to take evidence and issue findings of fact and conclusions of law as to Mr. Clemons' allegations. After hearing multiple days of testimony and reviewing thousands of pages of record, the master issued a report in which he found that the state had violated Brady by failing to produce evidence favorable to Mr. Clemons that a witness observed an injury to Mr. Clemons' face shortly after a police interrogation and that the witness documented his observations of the injury in a written report that was later altered by the state. The master determined that the state's failure to disclose this evidence was prejudicial to Mr. Clemons because it could have led to the suppression of Mr. Clemons' confession, a critical part of the state's case against Mr. Clemons. Substantial evidence supports the master's findings that the state deliberately violated Brady and that, in the absence of the undisclosed material evidence, the jury's verdicts are not worthy of confidence. Accordingly, this Court vacates Mr. Clemons' convictions and sentences for first-degree murder.¹ Within 60 days from the date the mandate issues in this case, the state may file an election in the circuit court to retry him. If the state does not so elect, the case against Mr. Clemons shall be dismissed, and Mr. Clemons shall be discharged on this matter.

Facts and Procedural Background²

Around 11:35 on the evening of April 4, 1991, 20–year–old Julie Kerry and her 19–year–old sister, Robin,³ took their visiting cousin, Thomas Cummins, to the Chain of Rocks Bridge in St. Louis.⁴ The sisters wished to show Mr. Cummins a poem they had written on the bridge several years before. The cousins arrived at the bridge around midnight.

As the cousins began to walk east on the bridge, they saw a group of four men coming from the Illinois side. Mr. Cummins later identified the men as Reginald Clemons, Marlin Gray, Antonio Richardson, and Daniel Winfrey. The two groups had a brief conversation on the bridge. Mr. Winfrey asked the Kerry sisters for a cigarette. Mr. Gray demonstrated to the others how to climb over the bridge railing and come back up through a manhole in the deck of the bridge. He commented to Mr. Cummins that the manhole was a "good place to be alone and take your woman." The groups then parted ways.

The cousins continued walking toward the Illinois side when they heard footsteps approaching them from behind. It was the four men. Mr. Winfrey later testified that the four men decided to return to the cousins after Mr. Clemons suggested they rob them and Mr. Richardson suggested they rape the girls. At first, the four men were, again, friendly to the cousins. As all seven began walking together toward the Missouri side, Mr. Gray grabbed Mr. Cummins by the arm, walked him back a short distance, and ordered him to the ground. Mr. Cummins immediately complied and remained facedown after Mr. Gray warned Mr. Cummins that he would kill him if he looked up.

Mr. Cummins then heard his cousins begin to scream. Mr. Cummins believed he continued to be guarded by Mr. Gray, while the other men raped the Kerry sisters. Eventually, Mr. Gray left and Mr. Cummins was guarded by other members of the group. He heard one of the men say that he had never had the pleasure of "poppin' somebody." He did not know who said this but he did not believe it was Mr. Gray.

Mr. Cummins heard sounds of a struggle and Julie continuing to scream. One of the men told one of the Kerry sisters to take off her pants and threatened to throw her off the bridge if she did not comply. One of the men returned to Mr. Cummins and asked Mr. Cummins if he had any money. The man then took $20 and a Swatch watch from Mr. Cummins.⁵ When the man removed Mr. Cummins' wallet from his pocket, he discovered a badge and "freaked." Another man demanded to know if Mr. Cummins was a police officer and was told that Mr. Cummins was a firefighter, not a "cop." Several of the men approached Mr. Cummins. One told Mr. Cummins that he had Mr. Cummins' driver's license and would come and get him if Mr. Cummins told anyone what had happened. Mr. Cummins was then told to get up and to keep looking down as he was moved along the bridge toward the Missouri side. He was then forced to lie down again. Two of the men talked to Mr. Cummins about whether he would live or die and argued over whether to kill Mr. Cummins.

Mr. Clemons then approached Mr. Cummins and told him he had raped his girlfriend and asked how that felt. Mr. Cummins told him that she was not his girlfriend, she was his cousin. Mr. Clemons then told Mr. Cummins to get up and keep his head down. Mr. Clemons walked Mr. Cummins over to an open manhole in the bridge and had him sit on the edge of the manhole. Mr. Cummins was then told to go through the manhole onto a steel platform suspended about five feet below the surface of the bridge. When he did this, Mr. Cummins saw the Kerry sisters lying on their backs on the platform.

Other than the Kerry sisters, Mr. Cummins did not see anyone else on the metal platform at that time. After laying down on the platform, he heard two thuds that he believed were two sets of feet dropping onto the platform. He felt the cousin who was lying next to him move back and forth, which he believed was caused by someone raping her. Mr. Cummins and the cousins were then told to step down onto a concrete pier about three feet below the platform. Although he could only see one of the men, he believed two of them were still on the platform. Without warning, he saw an arm push Julie and then Robin off the bridge.⁶ He was told to jump by the man that he later identified as Mr. Richardson, and he did.

When he surfaced in the Mississippi River, Mr. Cummins briefly had contact with Julie but then lost sight of her. He never saw Robin. Authorities recovered Julie's body from the river near Caruthersville three weeks later. Robin's body was never found. Eventually, Mr. Cummins was able to reach the bank on the Missouri side of the river south of the Chain of Rocks Bridge. He climbed up the bank and found a road. Shortly before 2:00 a.m., Eugene Shipley was driving a truck south of the Chain of Rocks Bridge near the St. Louis Waterworks when he saw Mr. Cummins step onto the road to flag him down. Mr. Shipley observed that Mr. Cummins' hair was wet and unkempt and he was crying. Mr. Cummins told Mr. Shipley that he needed help, that his cousins had been raped, and that he had been thrown off the bridge.

Officers from the St. Louis Metropolitan Police Department responded to the scene after being contacted by Mr. Shipley.

When the police officers arrived at the Chain of Rocks Bridge, they questioned Mr. Cummins. After it got light, the police took Mr. Cummins onto the bridge and he showed them where the events took place. The police found a number of items on the bridge including a set of keys carried by Mr. Cummins, an unused condom, a used condom, a pen, some change, and a cigarette butt. A black flashlight engraved with "Horn I" was also discovered several hundred yards east of the other items.

Even though Mr. Cummins was questioned at the scene, his first recorded statement was taken at the police station around 9 a.m. by Detectives Raymond Ghrist and Gary Stittum. While Mr. Cummins was being interviewed by Detectives Ghrist and Stittum, another officer attempted to enlist assistance in searching the river for the Kerry sisters. When he contacted the Missouri State Water Patrol, he spoke with an officer and was told information about the river currents and the water temperature that caused him to doubt Mr. Cummins' statements. Other erroneous information, including the belief that Mr. Cummins was lying because he could have simply fought off the four assailants given that none of them ever pulled a weapon, caused the police to obtain another recorded statement from Mr. Cummins.

Mr. Cummins' second recorded statement was conducted by Detectives Richard Trevor and John Walsh. This statement lasted until 12:40 p.m. and was largely consistent with what Mr. Cummins had first told Mr. Shipley and the responding officers at 2:00 a.m. just after the police were contacted. Nevertheless, a May 31, 1991 incident report that purportedly summarized Mr. Cummins' statements in the second recorded interrogation, materially mischaracterized his statements to indicate he said that he and Julie had become close when they were both visiting Florida the...