State v. Johnson

Decision Date20 December 2016
Docket NumberNo. ED 103217,ED 103217
Citation513 S.W.3d 360
Parties STATE of Missouri, Respondent, v. Michael L. JOHNSON, Appellant.
CourtMissouri Court of Appeals

Samuel E. Buffaloe, Columbia, Missouri, for appellant.

Chris Koster, Evan Joseph Buchheim, Jefferson City, Missouri, for respondent.

Anthony Edward Rothert, Abram D. Frey, St. Louis, Missouri, for amicus curiae.

OPINION

James M. Dowd, Presiding Judge

Michael L. Johnson was found guilty by a jury in the Circuit Court of St. Charles County of one count of the class A felony of recklessly infecting another with human immunodeficiency virus ("HIV"), one count of the class B felony of recklessly exposing another person to HIV, and three counts of the class C felony of attempting to expose another person to HIV. Johnson was sentenced to concurrent terms for the offenses: 30 years in prison for the class A felony, 14 years for the class B felony, and five and a half years each for the three class C felonies. Johnson appeals asserting two points of error: (1) that the trial court abused its discretion by admitting excerpted recordings of phone calls Johnson made while in jail that were not disclosed to the defense until the morning of the first day of the trial, and (2) that Johnson's sentence of 30 years in prison for recklessly infecting another with HIV was grossly disproportionate to the crime and violated the constitutional prohibition on cruel and unusual punishments. Because we find that the trial court abused its discretion with respect to Johnson's first point on appeal, we reverse and remand for a new trial.

Factual and Procedural Background

In 2012, Johnson moved to St. Charles, Missouri, from Indianapolis, Indiana, to attend Lindenwood University, which had recruited him for its wrestling team. On January 7, 2013, Johnson visited the student health clinic at Lindenwood complaining of perianal warts and asked to be tested for sexually transmitted diseases (STDs). The tests run by the clinic showed that Johnson had gonorrhea and was HIV positive.

On January 26, 2013, Johnson and D.K.–L., a fellow Lindenwood student, engaged in unprotected oral and anal sex. D.K.–L. testified at trial that Johnson did not disclose to D.K.–L. that he was HIV positive. About two weeks later, D.K.–L. went to a hospital emergency room with severe stomach pain and a high fever. Tests revealed that he had contracted gonorrhea and was HIV positive. The HIV diagnosis was confirmed by subsequent testing on February 13, 2013, and doctors informed D.K.–L. that it was likely a recent infection. D.K.–L. testified that prior to his hospitalization, Johnson had been his most recent sexual partner, and that because he had not engaged in sexual relations with anyone else for a year, Johnson was the only person who could have infected him with HIV.

D.K.–L. contacted Johnson to inform him of his HIV diagnosis. They met in Johnson's dorm room, where D.K.–L. stated that he was HIV positive. D.K.–L. testified that after being informed of the diagnosis, Johnson again engaged in sexual intercourse with D.K.–L. without disclosing to D.K.–L. that he too was HIV positive.

Months later, D.K.–L. noticed that Johnson was continuing to use social networking and dating internet applications like the one they had used to meet one another, but was not disclosing on the applications that he was HIV positive. At that point, D.K.–L. decided to contact the St. Charles Police Department.

As a result of the department's investigation into Johnson's sexual encounters with D.K.–L., and into his sexual encounters in St. Charles with five other persons who also came forward, Johnson was arrested and charged with two counts of the class A felony of recklessly infecting another person with HIV, one count of the class B felony of recklessly exposing another person to HIV, and three counts of the class C felony of attempting to expose another person to HIV. Johnson was tried before a jury in May 2015.

At trial, Johnson admitted that on January 7, 2013, he was informed that he was HIV positive. As a result, the critical issue at trial was whether Johnson disclosed his HIV status to his sexual partners who had come forward as victims. Each of them testified that Johnson never disclosed his status; Johnson, however, testified that he had informed each of them prior to engaging in sexual relations, except for the one partner with whom he testified he had not had sexual relations after November 2012, more than a month before he was informed on January 7, 2013 that he had tested positive for HIV. The State impeached Johnson's testimony by playing excerpts from recordings of phone calls he made while in jail that it argued cast doubt on whether he made the disclosures he claimed to have made.

But the State had not disclosed the recordings to Johnson until, effectively, the first day of trial, Monday, May 11, 2015. Although the State had delivered the recordings to defense counsel's office on the Friday before trial began, the office was closed that Friday for a state holiday and the State did not notify the defense of the delivery. This was approximately a year and a half after Johnson had on November 26, 2013, served on the State his Rule 25.03 discovery request for "[a]ny written or recorded statements and the substance of any oral statements made by the defendant[.]" The 24 hours of recordings that the State disclosed on the first day of trial were made over a period of about two years, and the clips the State planned to play from them were recorded on October 17, 2013, and November 23, 2013.

The jury acquitted Johnson of one of the charges of the class A felony of recklessly infecting another with HIV, which related to his sexual conduct with the partner with whom he claimed not to have had relations after being informed in January 2013 of his HIV–positive diagnosis. However, the jury convicted Johnson of all the other charged offenses. Johnson was sentenced to the following concurrent terms for the offenses: 30 years in prison for the class A felony against D.K.–L., 14 years for the class B felony, and five and a half years each for the three class C felonies. This appeal follows.

Discussion

In his first point on appeal, Johnson contends that the trial court erred by admitting the excerpted recordings of the phone calls Johnson made while in jail that the State did not disclose to the defense until the morning of the first day of the trial. Johnson argues that the State's disclosure of the recordings was untimely under Missouri Supreme Court Rule 25.031 and rendered his trial fundamentally unfair.2 We agree.

Rule 25.03 provides that the State shall, upon written request by defendant's counsel, disclose to the defense certain classes of materials and information within the State's possession or control that are designated in such request, including any written or recorded statements and the substance of any oral statements made by the defendant. State v. Henderson , 410 S.W.3d 760, 764 (Mo.App.E.D. 2013) (citing Rule 25.03(A)(2) ). Requests shall be answered within ten days after service of the request. Rule 25.02. The rule establishes an ongoing duty requiring the State to supplement its response in the event it acquires or learns of additional responsive material. See Rule 25.08. The duty to disclose includes not only information actually known by the State, but also information it may obtain through reasonable inquiry. State v. Smith , 491 S.W.3d 286, 298 (Mo.App.E.D. 2016) (citing State v. Mabry, 285 S.W.3d 780, 787 (Mo.App.E.D. 2009) ).

The purpose of Rule 25.03 is to grant the defendant a decent opportunity to prepare his case in advance of trial and avoid surprise. Id. at 297. The broad rights of discovery afforded criminal defendants by Rule 25 have constitutional underpinning rooted in due process, State v. Wilkinson , 606 S.W.2d 632, 636 (Mo.banc 1980), and simple justice requires that the defendant be permitted to prepare to meet what loom as the critical elements of the case against him. State v. Johnston , 957 S.W.2d 734, 748 (Mo.banc 1997) (citing State v. Harrington , 534 S.W.2d 44, 47 (Mo.banc 1976) ). The rules of criminal discovery are not mere etiquette nor is compliance discretionary. State v. Willis , 2 S.W.3d 801, 806 (Mo.App.W.D. 1999).

The determination whether the State violated a rule of discovery is within the sound discretion of the trial court. State v. Bynum , 299 S.W.3d 52, 62 (Mo.App.E.D. 2009). Likewise, determining whether a sanction should be imposed for a discovery violation is within the court's discretion. State v. Neil , 869 S.W.2d 734, 738 (Mo.banc 1994) ; State v. Schallon , 341 S.W.3d 795, 798 (Mo.App.E.D. 2011). In reviewing criminal discovery claims, we will overturn the trial court only if "fundamental unfairness" to the defendant resulted and the court thus abused its discretion. State v. Taylor , 944 S.W.2d 925, 932 (Mo.banc 1997) ; Mabry , 285 S.W.3d at 787.

In the context of a violation of Rule 25.03(A), the question whether fundamental unfairness resulted turns on whether there was a reasonable likelihood that timely disclosure of untimely-disclosed evidence would have affected the result of the trial. Id.; cf. State v. Miller , 650 S.W.2d 619, 621 (Mo.banc 1983) (citing Chapman v. California , 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) ) ("[E]rror can be declared harmless only if we are able to declare a belief that it was harmless beyond a reasonable doubt."). For example, fundamental unfairness may be found where the State's failure to disclose resulted in the defendant's genuine surprise at learning of unexpected evidence and there was at least a reasonable likelihood that the surprise prevented meaningful efforts by the defendant to consider and prepare a strategy for addressing the State's evidence. Johnston , 957 S.W.2d at 750.

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