State v. Spencer

• Decision Date: 04 December 2018
• Docket Number: No. ED 106691,ED 106691
• Citation: 569 S.W.3d 477
• Parties: STATE of Missouri, Respondent, v. Frederick SPENCER, Appellant.
• Court: Missouri Court of Appeals

569 S.W.3d 477

STATE of Missouri, Respondent,
v.
Frederick SPENCER, Appellant.

No. ED 106691

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: December 4, 2018
Motion for Rehearing and/or Transfer to Supreme Court Denied January 14, 2019
Application for Transfer Denied April 2, 2019

FOR APPELLANT: Frederick Spencer, Pro Se, 11971 Rosevalley Lane, St. Louis, Missouri 63138.

FOR RESPONDENT: Karen L. Kramer, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Presiding Judge

Introduction

In 1999, Frederick Spencer ("Appellant") was found guilty by a City of St. Louis jury of forcible rape and forcible sodomy. Appellant was sentenced to 15 years imprisonment on six total counts and has fully served his time. Appellant filed a motion under § 547.037¹ and a habeas corpus claim under Rule 91² asserting re-examination of DNA testing would demonstrate his innocence and entitles him to release from custody and a new trial. The motion court found the § 547.037 motion must be denied because the required prerequisites under § 547.035 were not met. The court denied the Rule 91 argument because it had been "repeatedly rejected" and should not be reconsidered.

Appellant appeals both denials by

569 S.W.3d 479

the motion court.³ The first point on appeal is the motion court incorrectly applied prior § 547.035 rulings in denying the § 547.037 claim. The second point on appeal is the motion court should not have denied the Rule 91 habeas corpus claim without an evidentiary hearing. Because Appellant is no longer in state custody and no testing has been ordered or taken under § 547.035, the motion court’s denial of the § 547.037 motion is affirmed. Because "no appeal lies" from a habeas corpus decision, Appellant’s second point on appeal is dismissed.

Factual and Procedural Background

In August 1999, a St. Louis jury convicted Appellant of three counts of forcible rape and three counts of forcible sodomy against two victims. One of the victims, A.G., presented with DNA evidence at the hospital on the night of the alleged attack. The hospital tested the samples and could not confirm or deny Appellant’s DNA. No further testing was ordered or completed by the prosecution or Appellant before trial. Appellant was convicted of six counts at trial: four counts involving victim M.M. and two counts involving victim A.G. The DNA evidence relates to one count of forcible rape involving A.G. and does not relate to the other A.G. count or any of the M.M. counts. This Court affirmed Appellant’s conviction on direct appeal. State v. Spencer , 50 S.W.3d 869 (Mo. App. E.D. 2001). Appellant was sentenced to 15 years in the Missouri Department of Corrections.⁴ The count of forcible rape involving A.G., for which the DNA evidence was mentioned at trial, led to one five year sentence which ran concurrently to the five year sentence for forcible sodomy involving A.G. While still in custody, Appellant mounted several unsuccessful collateral attacks on his conviction. See State v. Spencer , 139 S.W.3d 604 (Mo. App. E.D. 2004) (affirming the denial of Appellant’s motion requesting court costs be taxed against the State); State v. Spencer , 139 S.W.3d 605 (Mo. App. E.D. 2004) (affirming the denial of Appellant’s motion for an order nunc pro tunc); Spencer v. State , 156 S.W.3d 365 (Mo. App. E.D. 2004) (affirming the denial of Appellant’s Rule 29.15 motion); Spencer v. State , 255 S.W.3d 527 (Mo. App. E.D. 2008) (affirming the dismissal of a Appellant’s motion to reopen Rule 29.15 proceedings).

With seven years left in his sentence, Appellant filed motions to retest the DNA samples under § 547.035. In 2007, Appellant filed his first § 547 motion which the motion court denied because Appellant failed to show why the DNA was not tested prior to or during trial as required by

569 S.W.3d 480

§ 547.035.2 (3) subsection (c).⁵ This Court affirmed the denial. See State v. Spencer , 323 S.W.3d 38 (Mo. App. E.D. 2010). In 2013, Appellant filed a second § 547 motion which the motion court denied because § 547.035 does not allow successive motions. This Court affirmed the denial. See State v. Spencer , 440 S.W.3d 579 (Mo. App. E.D. 2014).

Unrelated to Appellant’s § 547.035 motions, the City of St. Louis retested the DNA sample from Appellant’s case.⁶ In a letter dated August 27, 2014, the St. Louis Metropolitan Police Department contacted Appellant about a backlog of cases meant for re-examination and informed Appellant the DNA samples from trial had been retested. On October 5, 2014, Appellant was released from custody having fully served his sentence. In 2017, Appellant filed a third § 547.035 motion under Rule 74.06(b) relying on the re-examined DNA test results. The motion court denied the motion because Appellant was no longer in custody and § 547.035 does not allow successive motions. This Court affirmed the denial. See State v. Spencer , 529 S.W.3d 830 (Mo. App. E.D. 2017).

In January 2018, Appellant filed a fourth § 547 motion under § 547.037 and, in the alternative, for Rule 91 habeas relief from the original trial court judgment. In March 2018, the motion court denied Appellant’s § 547 claim and denied a writ for habeas relief. This appeal...