State v. Mooney

• Decision Date: 21 February 1984
• Docket Number: No. 41254,41254
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Michael Eugene MOONEY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 510

670 S.W.2d 510

STATE of Missouri, Plaintiff-Respondent, v. Michael Eugene MOONEY, Defendant-Appellant.

No. 41254.

Missouri Court of Appeals,

Eastern District,

Division Four.

Feb. 21, 1984.

Timothy A. Braun, Public Defender, St. Charles, for defendant-appellant.

William J. Hannah, Pros. Atty., Kent Fanning, Asst. Pros. Atty., St. Charles, Kristie Green, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KELLY, Judge.

Michael Mooney, hereinafter appellant, was convicted of Molestation of a minor in violation of § 563.160 RSMo 1969 in the Circuit Court of St. Charles County and sentenced to a term of four years imprisonment. ¹ He contends that his conviction should be reversed or remanded for a new trial. As grounds for his request he contends the trial court erred (1) in overruling his objection to the prosecutor's personalizing the jury during voir dire examination, (2) in sustaining the state's objections to defendant's effort to recall a defense witness and permit her to testify concerning the victim's visit to her place of employment after she had testified in the case where he threatened her and did some damage to the premises.

Appellant does not challenge the sufficiency of the evidence to support the jury verdict; therefore a short statement of the facts supporting the verdict will be sufficient. According to the state's evidence, S.W., the victim, a 15 year old boy, was, at approximately 9:30 p.m. on June 19, 1978, molested by appellant. The scene of the molestation was in the rear of a building housing a Seven-Eleven Store on Briscoe Street in O'Fallon, Missouri.

The only witness who testified to the facts of the molestation was the minor, S.W., and his testimony was the only evidence to support the conviction. From the record it is clear S.W. is a troubled youth. In a pre-trial hearing on his competency to testify he admitted that he had been committed to St. Vincent's Hospital, a "mental health hospital" located in St. Louis County, Missouri, sometime in 1977 because his "mom" thought he was "getting in trouble a lot so she thought she would send him there for a while." He was committed to the hospital for "two or three months." He was under the care of a psychiatrist and was given some medication, but was no longer taking it on the date of the alleged molestation. He had also gone to the Juvenile Court at the time and was under supervision "in relation to that trouble."

At the pre-trial hearing S.W.'s mother also testified on the competency issue. She corroborated the fact that her son had been committed to St. Vincent's Hospital for a three month period between February and May in 1977, and that he was under the supervision of the Juvenile Court during this period. He used to lie to her but in the last year and a half he had not lied to her so far as she was able to ascertain. After he underwent psychiatric treatment he had not lied to her.

On July 12, 1979, more than six months after the time for the filing of a motion for new trial and the hearing on same, S.W. told Pamela Cook, one of appellant's alibi witnesses, that his testimony at the trial of appellant was false, and that he had made up the story. Ms. Cook taped this conversation and delivered it to appellant's counsel. On January 21, 1980, appellant's counsel filed in this court a Motion to Supplement the Record on Appeal pursuant to Rule 78.05 showing newly discovered evidence of appellant's innocence, viz, "a tape of the complaining witness saying that he had lied under oath at the defendant's trial and had made up his testimony at trial." On February 5, 1980, this motion was denied.

On November 23, 1982, appellant filed a motion, pursuant to Rule 29.11(f) or 78.05 and 20.04(a), to file as appellant's Exhibits A, B, C, and D ² as newly discovered evidence not available to appellant prior to the time for the trial court's ruling on motion for new trial to assist this court in resolving the issue of the complaining witness's recantation of his testimony at trial. This motion was ordered to be taken with the case.

The parties have ably briefed the question whether this court may consider this "newly discovered evidence." Appellant contends that the refusal of this court to consider these exhibits would deny him, (1) due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri State Constitution, (2) his right to justice without delay and (3) a remedy for every injury under Article I, Section 14 of the Missouri State Constitution because he did not become aware of the complaining witness's recantation until more than six months after the date for the filing of a motion for new trial, and, under the Missouri judicial system, has no other effective remedy. He further contends that the failure of this court to consider these exhibits would deny him equal protection under the law in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Missouri State Constitution because Rule 29.11(f) establishes two classes of post-trial defendants and constitutes a discrimination against those defendants who discover new evidence which could lead to a retrial or acquittal after trial but prior to the time within which they may file a motion for new trial, and those who discover this new evidence after trial and after the time allowed for the filing of the motion for new trial.

The state responds that we are precluded from considering this alleged recantation of the prosecuting witness's trial testimony because it is not a part of the record of the proceedings in the trial court, it consists of hearsay assertions surreptitiously transcribed by an interested party, and the state cannot verify the truth of the statements contained on the tape. It further argues that there is no merit in appellant's contention that a constitutional question is involved with respect to the availability of a forum to air his claim after the time for filing his motion for new trial based on newly discovered evidence has expired, because there must be some finality of judgments in criminal cases. The state contends that the only relief available to appellant is to apply to the Governor for a pardon.

Appellant's motion for new trial was filed on December 11, 1978, after the trial court, pursuant to the provisions of Rule 27.20(a), ³ extended the time for filing his motion for new trial for an additional thirty days after the ten day period allowed for the filing of said motion. One of the grounds for which the trial court might grant a new trial was "newly discovered evidence." Rule 27.19(a)(1). However, appellant did not learn of the fact that S.W. had recanted his trial testimony until sometime after July 12, 1979, when the disavowal of his testimony was tape recorded. Appellant had filed his notice of appeal to this court on January 15, 1979, and the trial court had no jurisdiction to entertain any after-trial motions in the cause. State ex rel. Brooks etc. v. Gaertner, 639 S.W.2d 848, 850 (Mo.App.1982).

Once the time for filing a motion for new trial has expired, our rules, unlike Federal Rule of Criminal Procedure 33, makes no provision for the filing of a motion for new trial based on the grounds of newly discovered evidence. In the federal courts a motion for new trial based on the grounds of newly discovered evidence may be made only before or within two years after final judgment.

The state, in support of its position that appellant's only remedy under these circumstances is an appeal for executive clemency, cites State v. Johnson, 286 S.W.2d 787 (Mo.1956), and our research has revealed State v. Sadowski, 256 S.W. 753 (Mo.1923) reaching the same conclusion.

In Johnson the appellant filed in the Supreme Court an affidavit of one of his co-defendants in the trial court wherein the affidavit stated that he had committed the crime with two accomplises and eliminated the appellant of all participation in the crime. The court said that it decided the case on appeal solely on the record made in the trial court and upon assignments of error preserved in a motion for new trial and therefore the affidavit would not be regarded; that if such facts as were contained in the affidavit were true, they could only be presented in an application for executive clemency.

In Sadowski, the appellant, one month after filing his motion for a new trial filed a statement with an affidavit from one Frances Norvicky, wherein Norvicky claimed that he murdered the man for whose murder the appellant had been convicted. He gave as his reasons for giving the affidavit that he was induced to confess to the murder was to save an innocent man, and to relieve his conscience. The motion for new trial was denied and four days thereafter Sadowski filed a motion in arrest of judgment on the grounds the murder was committed by Norvicky, and that Norvicky was willing to so testify.

The court held: (1) that the affidavit had no place in a notice in arrest of judgment, § 4080 RS 1919; (2) the motion for new trial did not contain any mention of the newly discovered evidence; (3) the trial court could not be convicted of error in refusing to grant him a new trial on account of the newly discovered evidence, and (4) that the appellant might be able to convince the pardoning board that there is merit in his contention, but that the Supreme Court could only consider the question as a court of review, and therefore could not consider it.

In State v. Worley, 353 S.W.2d 589 (Mo.1962), appellant, during the pendency of the case in the appellate court filed a "Motion to File and Admit Exhibit of Evidence." The evidence sought to be filed was affidavits to the effect that Pall Mall cigarettes bearing the identical serial number as those found in defendant's car were purchased from Patterson's Drug Store, in Spickard, Missouri, in November, 1961. Evidence during...