State v. Stewart

• Decision Date: 29 June 2010
• Docket Number: No. SC 90503.,SC 90503.
• Citation: State v. Stewart, 313 S.W.3d 661 (Mo. 2010)
• Parties: STATE of Missouri, Respondent, v. Zackary Lee STEWART, Appellant.
• Court: Missouri Supreme Court

313 S.W.3d 661

STATE of Missouri, Respondent, v. Zackary Lee STEWART, Appellant.

No. SC 90503.

Supreme Court of Missouri, En Banc.

May 25, 2010.

Rehearing Denied June 29, 2010.

Rosalynn Koch, Public Defender's Office, Columbia, for Appellant.

Karen L. Kramer, Atty. General's Office, Jefferson City, for Respondent.

MARY R. RUSSELL, Judge.

Zackary Lee Stewart was convicted of first-degree murder and sentenced to life imprisonment without the possibility of parole. He appeals after being denied a new trial, asserting that a new trial is warranted because newly discovered evidence indicates that his brother-in-law, whose DNA was found on a bloody hat at the crime scene, stated that he had killed someone and that he was present at the victim's murder. Zackary argues that this new evidence, particularly considered in light of the DNA evidence, raises a substantial doubt as to his guilt. This Court agrees that the newly discovered evidence merits a new trial. The judgment is reversed, and the case is remanded.¹

I. Background

The evidence at trial showed that David Dulin (Victim) called 911 shortly after midnight November 29, 2006, and stated that two white men in their 20s and 30s had come into his home near Hurley and shot him twice in the head with a .22. While he lay dying, Victim told the 911 operator that he did not know who shot him, but he stated that the assailants were from Hurley and that one of the men said he was the "Eby girl's boyfriend."

Zackary was an 18-year-old high school senior at the time of Victim's murder. His mother is Paula Eby (Mother), and his sisters include Candy Seaman and Christy Pethoud. At the time of Victim's murder, Candy was married to Tim Seaman, and Christy was living with Leo Connelly.

When investigators contacted Zackary, he told them that he had no knowledge of Victim's murder, but he did volunteer non-public information (when the crime purportedly occurred and the caliber of weapon involved). He stated that if he was going to kill someone he would not use a.22 caliber weapon, "something he would have to shoot four or five times with to kill them."

Zackary again was interviewed regarding Victim's murder while he was jailed on a separate charge a few months later. A sheriff's detective told Zackary that a witness had seen him, his sister Christy, and Christy's boyfriend, Leo, in a car on a road near Victim's home the night of the murder. Zackary was asked if there might be a reason for his DNA to be at the crime scene.² He also was told that the murder weapon had been found.³ Zackary maintained that he was not involved, that he did not know anything, and that he had never left Christy's home that night.

Zackary was placed in an isolation cell while searches were conducted. He later requested to talk to the detective. Crying, scared, and upset, Zackary told the detective that he thought Leo was responsible for Victim's murder. Zackary did not say why he thought Leo was responsible, but he observed the short distance between Victim's and Leo's residences. He said he had been at Christy and Leo's home the night of Victim's murder and stated that he had not left the home that night.

After this interview, Zackary again was put in an isolation cell while searches were conducted. He continued to assert that he had no involvement in Victim's murder and said he had given the matter over to God.

Zackary eventually was returned to the cell he shared with Coty Pollard and Victor Parker. Pollard and Parker later approached investigators to report what Zackary had recounted to them about Victim's murder, and they both testified for the State at Zackary's trial. They offered the following account of the murder: Zackary went to Victim's home the night of the murder with Christy, Leo, Mother, and Mother's boyfriend (Mark Myers) and his son (Robert Myers); the group went there planning to "take his dope;" they arrived in two vehicles (Zackary, Christy, and Leo were in a white Ford Escort; Mother, Mark, and Robert were in a Jeep Cherokee); Zackary and Robert guarded Victim while the others searched for drugs; Victim pulled a gun; Victim and Zackary struggled before Zackary wrestled the gun away and shot Victim multiple times; the group panicked and left the scene (Leo and Zackary left in the Escort; the others left in the Cherokee); they changed their clothing and burned the clothes they had been wearing in a barrel that they threw in the river; and they decided Leo was to dispose of the gun.

Zackary's defense counsel cross-examined Parker and Pollard about their influence over Zackary,⁴ and she suggested that they had received favors from investigators or the prosecutor in exchange for testifying against Zackary.⁵ But Zackary called only one witness in his defense—his sister Christy—who testified that no one left her house the night of Victim's murder.⁶

Before Zackary's trial concluded, Victim's family informed the State that they had never seen Victim with the bloody hat that was found at the crime scene and introduced into evidence at trial.⁷ The hat was tested for DNA the third day of Zackary's trial, and the jury was provided the preliminary DNA results indicating that neither Zackary's nor Leo's DNA was found on the hat. The jury was told that the hat contained DNA from three people—Victim, Zackary's brother-in-law Tim, and another unknown person.

During closing arguments, the prosecutor argued that the preliminary DNA information from the bloody hat reflected a DNA "hit" to Tim made by an investigative database. He stressed that it was not a DNA "match" confirmed by comparing it with Tim's actual DNA. He also highlighted that Tim was not identified at trial as a person who was with Zackary during Victim's murder. The jury found Zackary guilty of first-degree murder, and he moved for a new trial.

Zackary's motion for a new trial included arguments that newly discovered evidence entitled him to a new trial because it would lead to a different result at a new trial. He asserted that, after his trial, new evidence was discovered indicating that Tim had told his brother that he had murdered Victim.

A hearing was held on Zackary's motion, but the defense was unable to locate Tim. Tim's brother failed to appear to testify, but the State agreed to waive hearsay objections to a detective testifying about what Tim purportedly told his brother.

The detective stated that, after Zackary's trial, he had received a tip that Tim had disclosed to his brother that he had "taken someone's life." Tim did not indicate whose life he took, but his brother stated that he had not taken Tim's statements seriously until after he heard about the bloody hat found by Victim's body. The brother stated it was Tim's hat or a hat identical to the one Tim had for a long period of time.⁸ The brother also indicated that Tim drove a light tan or white vehicle.

Tim's nephew also testified at the motion hearing.⁹ The nephew testified that Tim had confided to him the morning after Victim's murder that Tim and his friend, John Mills, were at Victim's house when Victim was killed.¹⁰

Zackary argued that the credibility of Tim's alleged statements to his brother and nephew were bolstered by the fact that the DNA evidence on the bloody hat was confirmed after trial as a match to Tim. He also asserted that the confirmed DNA evidence would have altered the jury's view of his case, as it would have obviated the prosecutor's closing arguments that the DNA evidence showed a "hit" but not a "match" to Tim.¹¹ The trial court, however, found that Tim's alleged statements were not exculpatory to Zackary, and it concluded that a new trial was not warranted.

II. Issue on Appeal

Zackary argues that the trial court's refusal to grant him a new trial denies him a fair trial. He maintains that the newly discovered evidence of Tim's statements to his brother and nephew, when considered with the now-confirmed DNA evidence, makes it likely that he would obtain a different result at a new trial. He asserts that the new evidence establishes a reasonable alternative theory of his innocence— that Tim killed Victim.

III. Standard of Review

Rule 29.11 provides that the court may grant a new trial "upon good cause shown." New trials based on newly discovered evidence are disfavored, and the trial court has substantial discretion in deciding whether a new trial should be granted. State v. Amrine, 741 S.W.2d 665, 674 (Mo. banc 1987). Because of this substantial discretion, the trial court's decision will be affirmed unless this Court finds it abused its discretion. State v. Rutter, 93 S.W.3d 714, 730 (Mo. banc 2002). An abuse of discretion occurs when the trial court's ruling is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Fleshner v. Pepose Vision Inst., 304 S.W.3d 81, 87 (Mo. banc 2010).

To obtain a new trial on the basis of newly discovered evidence, Zackary was required to show: (1) the facts constituting the newly discovered evidence came to his knowledge after the trial; (2) his lack of prior knowledge was not owing to want of due diligence on his part; (3) the newly discovered evidence is so material that it is likely to produce a different result at a new trial; and (4) the evidence is not merely cumulative evidence or evidence impeaching a witness's credibility. State v. Terry, 304 S.W.3d 105, 109 (Mo. banc 2010).

IV. Is a new trial warranted?

The parties agree that Zackary's newly discovered evidence meets three of the four prongs for assessing whether it merits a new trial: the evidence was not known at trial; its being unknown was not attributable to a failure of due diligence by the defense; and the newly discovered evidence is not merely cumulative or impeaching. The remaining issue is whether the newly discovered evidence is so material that it is likely to produce a...