State v. Perry, 61338
| Decision Date | 10 May 1994 |
| Docket Number | No. 61338,61338 |
| Citation | 879 S.W.2d 609 |
| Parties | STATE of Missouri, Respondent, v. Patrick PERRY, Appellant. Patrick PERRY, Movant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Judith C. LaRose, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Cheryl A. Caponegro, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals from his convictions by a jury of second degree burglary and stealing over one hundred fifty dollars and his consecutive sentences of fifteen and ten years respectively as a prior and persistent offender. He also appeals from the denial of his post-conviction motion pursuant to Rule 29.15. We reverse and remand. In view of our disposition defendant's appeal of the denial of his Rule 29.15 motion is moot.
The burglary involved the business premises of Work Now located in Maplewood. On the morning of June 30, 1988, an owner of the business, James Quinn, found the office vandalized. Property from the pawn shop next door was missing and had apparently been removed from overhead. Entry to the pawnshop from the drop ceiling could be made by entry to the drop ceiling of the Work Now premises. The state presented the testimony of defendant's former girl friend, Anna Briscoe, that defendant had confessed to her having committed the break-in. Evidence was also adduced that at the time of his arrest he confessed his participation to the arresting police officers. The evidence was sufficient to support the verdict and defendant makes no claim to the contrary.
Defendant testified to the following. He had been in business with David Pero. Pero was the owner of an employment agency called Job Mart. He was also a police officer in the third district in the City of St. Louis subsequently terminated by the Police Department. Quinn had worked for Pero and defendant and signed a non-compete agreement. He left Job Mart to work for Work Now, a competing business to Job Mart. Defendant obtained a temporary restraining order preventing Quinn from continuing such employment. Pero was to pay defendant for his activities in preventing Quinn from continuing with Work Now but did not do so. Defendant quit his employment with Job Mart and went to Kansas City with Briscoe to begin another employment agency under the name of Job Mart of Kansas City. Someone from Job Mart in St. Louis was responsible for causing the Kansas City company's telephones to be disconnected and its advertising suppressed. Defendant was contacted by Quinn and the other owner of Work Now to help them with that company. He met with them on June 29 for three or four hours to discuss the business and then left. He did not burglarize or vandalize the premises or steal property from the pawn shop. Defendant's testimony would support an inference that Pero had "framed" defendant in the burglary and stealing.
Defendant was arrested at Briscoe's home by three police officers, one from Maplewood and two from the third district of the City of St. Louis in which Briscoe's home was located. When the police arrived defendant hid in an upstairs stairwell. Briscoe advised the police that defendant was upstairs. Defendant testified that when he was arrested he was beaten by the St. Louis police officers and advised that this was a "favor" from Pero. He further testified that he did not confess to Briscoe and that the written confession he gave to the police officers was the result of beatings and threats made at the time of arrest and in the police department. In her testimony Briscoe denied being aware of any beatings at the time of the arrest and denied having told the police about any beatings.
On August 1, 1988, Briscoe went to Internal Affairs Division (IAD) of the St. Louis Police Department to make a statement in an investigation about David Pero. The statement is 27 pages in length most of it relating to an incident occurring on the Tuesday before the statement was made in which Pero and another man beat up Perry. At the end of the interview the following appears:
Sgt. Roth: How long ago was that now? [Referring to a prior arrest of Briscoe]
Anna Briscoe: Last month. First part of July, I guess. I'm not really sure. No, yeah, it was around, it was like right after Pat had got arrested the first time at my house when the police came and beat him at my house that first time.
Sgt. Roth: Beat him at your house?
Anna Briscoe: Yeah, the two police officers came and they searched my house and uh, they told him, they told me ... yeah, oh, it was terrible. Two police officers came to my house for a warrant for Pat's arrest, something to do with the Maplewood offense, two city cops and a Maplewood detective came to my house and uh, they kind of made me feel like I was held hostage and under arrest in my house and told me that they went there to meet over there for Pat Perry and that they knew he was in the house.
Sgt. Roth: Was he in there?
Anna Briscoe: He was in there. They found him in there but I thought he took off. And um, they found him upstairs and I heard a bunch of whoofing and ugh, you know, moans and groans, and I told the detective, because they didn't let me go upstairs, I told the detective, "They're up there, they're up there beating on him." He says,
Sgt. Roth: What detective?
Anna Briscoe: Uh, Detective uh, Matt Konovey 1 from Maplewood. And so I went out in front and then when Pat came down they told him not to talk to me and they told me not to talk to him and they found some stolen property or something in my house that it didn't belong to me. I turned it over to 'em and signed a search and seizure paper or whatever it was.
In March 1990, the defendant sought discovery from the prosecutor pursuant to Rule 25.03 which included the following request:
"All written or recorded statements of persons whom the state intends to call as witnesses at any hearing or at the trial, including but not limited to, all reports written by police officers whom the state intends to call as witnesses, and all existing memoranda reporting or summarizing part or all of the oral statements of persons whom the state intends to call as witnesses, including, but not limited to, all police reports containing such reports or summaries, and all police reports relating to said charge;"
The statement of Briscoe was not produced in response to that discovery request. In July 1991, a subpoena duces tecum was served by defendant on the custodian of records for the St. Louis City Police Department Internal Affairs Division. The custodian of records refused to comply. Defendant did not request the court to order production of the documents requested in the subpoena. Trial commenced on September 17, 1991. On September 19, 1991, defendant sought and obtained a late endorsement of defendant's sister, Cynthia Williams, as a witness. In the in-chambers conference the IAD interview was discussed. At trial, Williams testified that she had accompanied Briscoe to the IAD interview and had heard her tell an officer about the beating. Williams testimony closely paralleled the subsequently obtained transcript quoted above. On rebuttal Briscoe denied that Williams was present during the interview and again denied that defendant was beaten.
Prior to defendant's hearing for post-conviction relief he again served subpoenas seeking to obtain a transcript of Briscoe's IAD interview. The State moved to quash the subpoenas which motion was granted by the trial court. On September 30, 1993, a United States Magistrate Judge ordered the transcript produced pursuant to subpoena in a civil proceeding pending in District Court. The order of the magistrate judge, an affidavit by an attorney identifying the transcript as one produced pursuant to that order, and the transcript were attached to a motion to file them in this court which motion was taken with the case. The state does not directly challenge the authenticity of the attached documents but contends that because they were not part of the record below they should be stricken and cannot be considered by this court. Defendant's motion to file the exhibits is granted.
In Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Court stated:
"We now hold that the suppression by the prosecution of evidence favorable to an accused upon request...
To continue reading
Request your trial
-
State ex rel. Clemons v. Larkins
...which the credibility of this allegation turned exclusively on the weight of the evidence presented. See id. ; see also State v. Perry, 879 S.W.2d 609, 613 (Mo.App.1994). In light of the deference given to the master's credibility findings, there is substantial evidence to support the maste......
-
McLaughlin v. State
...may be afforded to documentary evidence over testimony from family members. In Black v. State, this Court discussed State v. Perry, 879 S.W.2d 609, 613 (Mo.App.1994), which rejected an argument that testimony from a family member was equivalent to internal police department records relating......
-
State v. Moore
...discovery obligations under Rule 25.03 and its constitutional obligations under Brady are separate and distinct.2State v. Perry, 879 S.W.2d 609, 614 (Mo.App.E.D.1994) (“ Brady is the law of the land. It requires disclosure of specified exculpatory information. Rule 25.03 is the law of the s......
-
State v. Myers, s. 19206
...involving discovery after trial of information which had been known to the prosecution but unknown to the defense. State v. Perry, 879 S.W.2d 609, 613 (Mo.App. E.D.1994). The State cannot be faulted for nondisclosure if the defendant had knowledge of the evidence at the time of trial. State......