State v. Parker

• Decision Date: 15 August 2006
• Docket Number: No. WD 52112.,WD 52112.
• Citation: 198 S.W.3d 178
• Parties: STATE of Missouri, Respondent, v. Tyrone G. PARKER, Appellant.
• Court: Missouri Court of Appeals

198 S.W.3d 178

STATE of Missouri, Respondent, v. Tyrone G. PARKER, Appellant.

No. WD 52112.

Missouri Court of Appeals, Western District.

August 15, 2006.

Mark A. Thomason & Phillip Ray Gibson, Blue Springs, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang and Evan Buchheim, Office of Attorney General, Jefferson City, for respondent.

PAUL M. SPINDEN, Judge.

We consider this case a second time. We first considered it in 1998 as a purported consolidated appeal of the circuit court's judgment convicting Tyrone G. Parker of second-degree murder and armed criminal action and of its judgment denying Parker's Rule 29.15 motion for a post-conviction remedy. Because Parker did not did not raise any contentions of trial error, we dismissed his direct appeal and considered only his appeal of the circuit court's denial of his Rule 29.15 motion. State v. Parker, 972 S.W.2d 508 (Mo.App.1998). This court recalled its mandate on December 21, 2004, after Parker alleged that the prosecuting attorney had not disclosed material, exculpatory evidence and that his appellate attorney had been ineffective in not raising any issues of trial error.

Parker raises two points in this second appeal. Both aver that the prosecuting attorney withheld material, exculpatory evidence. He asserts, on the authority of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and State v. Bebee, 577 S.W.2d 658 (Mo.App.1979), that the prosecuting attorney's withholding of evidence deprived him of his due process rights guaranteed by the United States and Missouri constitutions and that he should be granted a new trial. Parker has asked this court to remand the case to the circuit court to adjudicate his claims that the prosecuting attorney withheld material, exculpatory evidence.

The criminal charges against Parker grew out of a drive-by shooting in Kansas City on August 12, 1993, in which an 11-month-old infant was killed and three persons were wounded. We set out the details of the incident in our previous decision in Parker, 972 S.W.2d at 508. A jury convicted Parker of aiding and abetting in the infant's murder and the wounding of the three persons. In this appeal, Parker contends that he has discovered statements by witnesses that were not disclosed to him before his trial. He avers that the statements would have corroborated his contention that, while he was a passenger in a car that drove past the house on the night of the shooting, no one in the car was involved in the shooting and that the house was "black" and "dark" when he went by it.

A prosecuting attorney has a broad duty "to disclose evidence in [his or her] possession that is favorable to the accused and material to guilt or punishment." State v. Goodwin, 43 S.W.3d 805, 812 (Mo. banc), cert. denied, 534 U.S. 903, 122 S.Ct. 234, 151 L.Ed.2d 168 (2001) (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194). A prosecuting attorney violates due process if (1) he or she does not disclose evidence that is favorable to the accused because it is either exculpatory or impeaching (2) the prosecuting attorney has suppressed the evidence, either intentionally or inadvertently, and (3) the undisclosed evidence is material. Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

The courts have been less than articulate in describing what constitutes material evidence. The United States Supreme Court has declared that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985); Goodwin, 43 S.W.3d at 812. It has instructed that, in evaluating materiality, "the question is `whether the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Strickler, 527 U.S. at 290, 119 S.Ct. 1936 (citation omitted). But, it has explained that "[t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

The materiality standard is lower than the one that we would employ in cases of newly-discovered evidence in which we would reverse judgment and order a new trial only if the new evidence would have changed the outcome of the original trial. Hancock v. Shook, 100 S.W.3d 786, 798 (Mo. banc 2003). But the standard is higher than the typical "harmless error" standard applied in other cases. The United States Supreme Court has rejected the notion that every nondisclosure is automatic error. United States v. Augurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Instead, it has declared that a prosecuting attorney has a duty to disclose only evidence that is "so clearly supportive of a claim of innocence that it gives [him or her] notice" of an obligation to disclose the evidence to the defendant. Id. at 107, 96 S.Ct. 2392.

Precisely where the Brady standard of materiality lies—somewhere between the newly-discovered evidence standard and the "harmless error" standard— is difficult to formulate. The United States Supreme Court seems to be prompting us to ask whether or not the purportedly undisclosed evidence would have been significant to the defendant in the way that he tried his case: Would it have provided him with plausible and persuasive evidence to support his theory of innocence or would it have enabled him to present a plausible, different theory of innocence? If either question can be answered affirmatively, the evidence is material under a Brady analysis.

Before considering the merits of Parker's claim, we consider the state's motion to dismiss a portion of the supplemental legal file in which Parker set out what he contends was undisclosed evidence. The state complains that, after Parker obtained an order from this court recalling its mandate and granting him an opportunity to raise issues of trial error, he submitted to the circuit court a motion for new trial to which he attached the allegedly undisclosed evidence. He then included the motion and the attached documents to the supplemental legal file in this appeal. The state contends that this court cannot consider the documents because they were not properly before the circuit court.

We concur that Parker's motion for new trial was improper, but we understand the reason for Parker's returning to the circuit court to seek its acting on his motion for new trial: He feared that we would not have a proper record to conduct a meaningful review. And, indeed, we do not have a proper record because a fact-finder has not determined any of the three elements of Brady. A fact-finder has not determined even whether or not the prosecuting attorney suppressed the disclosure of statements. Parker does not attempt to establish that the prosecuting attorney suppressed the statements beyond submitting an affidavit indicating that certain statements were not in the file of Parker's attorney.

Missouri's appellate courts have considered Brady claims raised for the first time on direct appeal but only when the appellate court had a proper record to consider or where the facts were uncontroverted. E.g., Hayes v. State, 711 S.W.2d 876 (Mo. banc 1986); State v. Patterson, 618 S.W.2d 664 (Mo. banc 1981). Indeed, as the Supreme Court noted in an ancillary comment in Weeks v. State, 140 S.W.3d 39, 42 n. 2 (Mo. banc 2004), "[A claim that the prosecutor purposely hid what he knew was exculpatory evidence] is more appropriately addressed in the context of a habeas corpus motion in which the prosecution's serious alleged violation of Brady . . . can be explored."

On their face, however, Parker's allegations make a palpable Brady claim. He contends that the prosecuting attorney did not disclose to him the statement of Kenneth Wesley to police on the night of the shooting that he saw the car from which the shooter fired his shots and that it was a dark blue car, possibly a 1988 Cadillac. This evidence could have been significant in supporting Parker's contention that, while he drove by the site of the shooting, he was not in the shooter's car. Parker also complains that the prosecuting attorney did not disclose to him the statements to police by three women who were inside the house where the shooting occurred. The women said that the victims of the shooting who were in the yard all went inside the house after the shooting. This evidence could have been significant in supporting Parker's testimony that, when he rode down the street past the shooting victims' house, the house was "black" and "dark" and that he did not see anyone outside.

"Where the submission of written affidavits raises genuine issues of material fact and where, as here, the Brady claims . . . are neither frivolous nor palpably incredible, an evidentiary hearing should be conducted." United States v. Dansker, 565 F.2d 1262, 1264 (3d Cir.1977). We, therefore, remand the case to the circuit court with instructions that it convene a hearing to consider Parker's Brady claims. It shall determine whether or not the prosecuting attorney suppressed disclosure of any statements to Parker. If it determines that the prosecuting attorney did suppress disclosure of statements, it shall determine whether or not the statements would have been favorable to Parker's defense—that is, whether or not they would have provided exculpatory evidence or a basis for impeaching the state's witnesses, and it shall determine whether or not the statements are material in accord with the standard set out above. If it decides these issues in the affirmative, it shall order a new trial of the state's charges against Parker. If it determines any one...