State v. Johnson

• Citation: 617 S.W.3d 439
• Decision Date: 02 March 2021
• Docket Number: No. SC 98303,SC 98303
• Parties: STATE of Missouri, Respondent, v. Lamar JOHNSON, Appellant.
• Court: Missouri Supreme Court

617 S.W.3d 439

STATE of Missouri, Respondent,

v.Lamar JOHNSON, Appellant.

No. SC 98303

Supreme Court of Missouri, en banc.

Opinion issued March 2, 2021

Johnson was represented by Lindsay J. Runnels of Morgan Pilate LLC in Kansas City, (816) 471-6694.

Tricia Bushnell and Rachel Wester of the Midwest Innocence Project in Kansas City, (816) 221-2166.

Matthew A. Jacober of Lathrop GPM LLP in Clayton, (314) 613-2845; and Alexander T. Brown and Alana McMullin of Lathrop GPM LLP in Kansas City, (816) 292-2000.

The circuit attorney, Kimberly M. Gardner of St. Louis, (314) 622-4941, represented herself; she also was represented by Daniel S. Harawa of the Washington University School of Law, (314) 935-4689.

The attorney general was represented by Solicitor General D. John Sauer, Shaun J. Mackelprang and Cris Stevens of the attorney general's office in Jefferson City, (573) 751-3321.

Zel M. Fischer, Judge

Following an internal investigation into Lamar Johnson's 1995 murder conviction, City of St. Louis Circuit Attorney Kimberly Gardner filed a motion for new trial¹ claiming there was newly discovered evidence demonstrating Johnson's innocence. The circuit court—concerned with potential problems arising from the unique scenario of a local, elected prosecuting attorney filing a motion for new trial more than two decades after the conviction—sua sponte appointed the Attorney General to appear on the State's behalf. Ultimately, the circuit court concluded that it lacked authority to entertain the motion for new trial because the State was not permitted to file such a motion and, in any event, it was untimely. The circuit court dismissed the motion. Notices of appeal were filed by both the Circuit Attorney on behalf of the State and by Johnson. The Attorney General filed a notice of dismissal of the State's appeal under Rule 30.13. The Circuit Attorney and Johnson opposed the dismissal. Because only the Attorney General "shall appear on behalf of the [S]tate" in appeals, the court of appeals permitted the Attorney General to dismiss the State's notice of appeal filed by the Circuit Attorney. See § 27.050.² Thus, the only appeal before this Court is Johnson's appeal.³

Factual and Procedural History

On July 12, 1995, Lamar Johnson was found guilty of first-degree murder and armed criminal action. The St. Louis circuit court sentenced Johnson to life without the possibility of parole on September 29, 1995. The judgment of conviction and the judgment overruling Johnson's Rule 29.15 postconviction motion after an evidentiary hearing were affirmed in 1999. State v. Johnson , 989 S.W.2d 238 (Mo. App. 1999). Johnson's petition for writ of habeas corpus in federal court was denied in 2003. See Johnson v. Luebbers , No. 4:00CV408CAS/MLM (E.D. Mo. 2003). In 2004 and 2005, Johnson sought and was denied writs of habeas corpus in the state courts. See Johnson v. Dwyer , No. 04CV746835 (33d Jud. Cir. 2004); State ex rel. Johnson v. Dwyer , No. SC86666 (Mo. 2005).⁴

The Circuit Attorney established the Conviction Integrity Unit ("CIU") in 2017 and began investigating Johnson's conviction in 2018. On July 19, 2019, the Circuit Attorney filed a motion for new trial on behalf of the State pursuant to Rule 29.11 "based upon evidence of prosecutorial misconduct that affected the reliability of the verdict and newly discovered evidence of actual innocence." Alternatively, the motion requested a hearing regarding the newly discovered evidence. The motion asserted four grounds for relief: (1) newly discovered evidence of innocence, including the confessions of two other men who admitted to murdering the victim and stated Johnson was not involved; (2) newly discovered evidence of perjury by material witnesses, including the sole eyewitness's recantation of his identification of Johnson as the shooter and false police testimony regarding Johnson's alibi location; (3) the State's repeated failure to disclose Brady material, including evidence that the sole eyewitness was paid to identify Johnson, as well as another witness's extensive criminal history and incentive for testifying; and (4) the State's knowing presentation of false and perjured testimony at Johnson's trial.⁵ Johnson joined and adopted the State's motion for new trial. Shortly thereafter, the circuit court entered an order appointing the Attorney General "to appear on behalf of the State" in this case. The circuit court also ordered briefing on the issue of its authority to entertain the motion for new trial.

The Attorney General and the Circuit Attorney both filed briefs on behalf of the State but took opposing positions. The Attorney General argued the Circuit Attorney had no authority to file the motion for new trial and the circuit court had no jurisdiction to consider the motion because it was untimely. The Circuit Attorney argued she had a duty to file the motion under these circumstances despite its untimeliness and the circuit court had implied authority to consider it. Johnson joined the Circuit Attorney's brief.

The circuit court ultimately entered an order dismissing the motion for new trial, finding it lacked authority to entertain the motion. The circuit court's order first addressed whether the State was permitted to file a motion for new trial. It concluded Rule 29.11 "is silent as to which party or parties may file such a motion" and found no other authority for the Circuit Attorney to file such a motion on the State's behalf. Regardless, the court's order concluded, even if the state could file a motion for new trial, the motion filed in this case was untimely. Rule 29.11 motions, as duly noted by the circuit court's order, are due no more than 25 days after the return of the verdict, and this motion was filed decades after the verdict and judgment were entered in this case. The circuit court also found it did not have implied authority to consider the State's untimely motion and it was bound by Rule 29.11 and the timelines therein. The circuit court considered, but ultimately rejected, arguments that those timelines could be waived by the party filing the motion or that they applied only when a defendant filed a motion for new trial. Likewise, the circuit court concluded there was no merit to the contention that it could review Johnson's conviction under Rule 29.12 because, according to this Court's holding in State ex rel. Zahnd v. Van Amburg , 533 S.W.3d 227, 230 (Mo. banc 2017), a trial court's authority to review for plain errors resulting in manifest injustice or a miscarriage of justice under Rule 29.12 is exhausted once the defendant is sentenced.⁶

In short, the circuit court concluded that, when the sentence was imposed in 1995, jurisdiction over the matter was exhausted, and none of the sources the Circuit Attorney cited authorized the circuit court to consider a motion for new trial at this late date. However, the circuit court pointed out that Johnson was not without a remedy in this case, noting the possible availability of habeas relief based on his claim that the State failed to disclose exculpatory or impeaching evidence. The Attorney General also suggested another avenue of relief would be for Johnson to seek an executive pardon.

At the parties' request, the circuit court also explained why it had sua sponte appointed the Attorney General. The circuit court cited its concern about "problematic conduct" by the Circuit Attorney and The Innocence Project, which represented Johnson in these proceedings, noting the improper contact with jurors from Johnson's trial and the potential conflict of interest from the CIU's review of a previous Circuit Attorney's conduct. The circuit court found it necessary under these unusual circumstances to appoint the Attorney General "to protect the integrity of the legal process." The court clarified that its order appointing the Attorney General did not disqualify the Circuit Attorney or relieve her of any obligations. Instead, it was meant only to direct the Attorney General to give input on the issue of the circuit court's authority.

The Circuit Attorney was allowed to remain in the case as an intervenor in Johnson's appeal. The only two rulings Johnson appeals from in this case are the circuit court's order appointing the Attorney General and the circuit court's order dismissing the motion for new trial.

Johnson Does Not Have Statutory Authority to Appeal

"This Court has an obligation, acting sua sponte if necessary, to determine its authority to hear the appeals that come before it." First Nat'l Bank of Dieterich v. Pointe Royale Prop. Owners' Ass'n, Inc. , 515 S.W.3d 219, 221 (Mo. banc 2017). The right to appeal derives solely from statute. State v. Waters , 597 S.W.3d 185, 186 (Mo. banc 2020). "If a statute does not give a right to appeal, the appeal must be dismissed." Id. Section 547.070 governs the defendant's right to appeal in criminal cases: "In all cases of final judgment rendered upon any indictment or information, an appeal to the proper appellate court shall be allowed to the defendant." Final judgments in criminal cases occur when the court enters a judgment of guilt and sentence. State v. Craig , 287 S.W.3d 676, 679 (Mo. banc 2009).

The final judgment in this criminal case was entered in 1995. Johnson does not purport to appeal from that 1995 judgment. He already exercised his right to appeal from that judgment, and the court of appeals affirmed the judgment in an unpublished memorandum. See Johnson , 989 S.W.2d at 238. Instead, Johnson appeals the circuit court's order dismissing his motion for new trial, an order entered more than 24 years after he was convicted and sentenced. Section 547.070 is clear that a criminal appeal lies only from final judgments "rendered upon any indictment or information." A criminal judgment is final once sentence is entered. State ex rel. Fite v. Johnson , 530 S.W.3d 508, 510 (Mo. banc 2017). "[O]nce judgment and sentencing occur in a criminal proceeding, the trial court has exhausted...