State v. Terry

• Decision Date: 10 February 2010
• Docket Number: No. SC 90332.,SC 90332.
• Citation: 304 SW 3d 105
• Parties: STATE of Missouri, Respondent, v. Antoine TERRY, Appellant.
• Court: Missouri Supreme Court

304 S.W.3d 105

STATE of Missouri, Respondent, v. Antoine TERRY, Appellant.

No. SC 90332.

Supreme Court of Missouri, En Banc.

February 10, 2010.

Kent Denzel, Office of the Public Defender, Columbia, for Appellant.

Chris Koster, Atty. Gen., James B. Farnsworth, Asst. Atty. Gen., Jefferson City, for Respondent.

MICHAEL A. WOLFF, Judge.

Antoine Terry, age 17 at the time of the alleged offense, was convicted of statutory rape in 2008. The alleged victim, A.W., age 12 at the time, said Terry had sex with her in the summer of 2007. Terry denied having sex. Terry was arrested and put on trial for first-degree statutory rape.¹ At trial, A.W. was pregnant and testified that Terry was the father because she had not had sex with anyone else during the summer of 2007.

The credibility of A.W.'s testimony that Antoine Terry had sex with her—including her contention that only Terry could be the father of her unborn baby—seems central to the case against Terry. The centrality of this contention is well illustrated by the prosecutor's opening statement, final argument and argument at sentencing². The prosecutor in final argument said that a lot of cases involve a "he-said-she-said" situation of "one person's word versus the other person's word" and that there is "no corroborating evidence." But, in this case, the prosecutor emphasized, "We have the fact that A.W.'s pregnant now. We have the fact that she told you he was the one she had sex with last summer when she got pregnant."

The only problem with the prosecutor's argument is that a DNA test done after the child's birth shows that Antoine Terry is not the father of A.W.'s child, assuming the test is accurate.

As a result, Terry has filed a motion in this Court to remand the case to circuit court to consider the newly discovered evidence that was not available at trial. The state opposes the motion and argues that the judgment should be affirmed.

Facts and Procedural History

The trial testimony was that Terry met A.W. in the summer of 2007 while Terry was in Jefferson City visiting his sister. On August 10, 2007, A.W. and Terry were at Terry's sister's house; when A.W. did not return home, her mother called the police. A.W. denied to police that she had a sexual relationship with Terry but did tell the police that he had penetrated her vagina with his fingers and had attempted to have sexual intercourse with her that night.

The next day, a detective with the Jefferson City police department interviewed Terry. According to the detective, when he told Terry that he was investigating a rape complaint made by a 12-year-old girl, Terry responded: "Oh, A.W.?" Terry then denied penetrating A.W.'s vagina with his fingers or having sexual intercourse with her the night of August 10. The detective testified that Terry said that he previously had sex with A.W. on August 7, that A.W. was a willing participant and that Terry did not use a condom. The detective testified that when he asked Terry why he had done it, Terry said he was only 17 and thought that he would get in trouble only if he was 18. The detective testified as to his memory of this conversation; there was no recorded statement or confession from Terry. Terry denies that he admitted having sex with A.W.

A.W. underwent a SAFE examination August 11, 2007, that revealed injuries to her hymen and surrounding tissue, indicating intercourse in the previous 72 hours. The test also revealed that A.W. was pregnant. After the examination, A.W. talked to police again and changed her story. She said that she had an ongoing sexual relationship with Terry from May through August 2007. At trial, A.W. testified that their relationship became sexual, that she and Terry had consensual sex more than six times during the summer and that Terry was the only one with whom she had had sex.

At trial, Terry denied having sex with A.W. Terry testified that the first time he met A.W. was July 29, 2007 at his niece's birthday party. He denied telling the Jefferson City detective that he had sex with A.W. but testified that he told the detective that he "almost had sex with her" August 7, 2007. Terry's sister testified that on August 7, 2007, she saw Terry in the living room with company and without a shirt and she told them to go outside. Terry did admit that he told the detective he thought it was okay to mess around with A.W. because he was only 17.³ The jury convicted Terry of first-degree statutory rape, and the court sentenced him to a seven-year prison term. Terry appealed.

Between the time of trial and sentencing, A.W. gave birth to the child. A subsequent DNA test—not a part of the trial record but a copy of which is attached to Terry's motion on appeal—shows a zero-percent chance that Terry is the father.⁴

After receiving the results of the DNA test, Terry filed a motion to remand due to newly discovered evidence when the case was pending in the court of appeals. Following opinion in the court of appeals, this Court granted transfer. The Court has jurisdiction. Mo. Const. Art. V, section 10. Terry's motion to remand is also before this Court.

Analysis

The overriding issue is what this Court should do to ascertain whether there may be a miscarriage of justice—a conviction based largely on perjured testimony. The state argues that it is improper for this Court to remand the case based on new evidence that is not in the record and that even if the Court does consider it, its only value is to contradict a single, "immaterial" statement by A.W.—that she had had sex with only one person that summer. It also contends that, even if A.W.'s statement has lost its probative value, it still is corroborated by additional evidence.

Terry argues that he should be discharged from his sentence or in the alternative, that this Court should remand his case to the circuit court for a hearing on the newly discovered evidence. According to Terry, remand is necessary because the DNA test establishes that: 1) Terry did not have sex with A.W. because she testified that she only had sex with one person during the summer of 2007; or 2) that A.W. lied about not having sex with anyone other than Terry, which is crucial evidence that the jury did not hear, and that they must hear, in determining A.W.'s credibility.

The DNA test report result, if accurate, does not exonerate Terry. It does, however, cast serious doubt on the validity of the conviction. The state acknowledged at oral argument that it has done nothing to investigate whether the DNA test report is accurate.⁵

Terry's motion is not within the time limits for filing a motion for a new trial pursuant to Rule 29.11(b) because that limit is 25 days after the verdict.⁶ Once the time for filing a motion for a new trial has passed, the Missouri rules have no provision for the granting of a new trial based on newly discovered evidence even if the evidence is available prior to sentencing.⁷ Additionally, new evidence that is not in the record should not be considered on appeal. Benton v. State, 128 S.W.3d 901, 904 (Mo.App.2004). Generally, this Court will not remand a case before an appeal is concluded if the lone fact of newly discovered evidence is not enough to grant a new trial. But an appellate court has the inherent power to prevent a miscarriage of justice or manifest injustice by remanding a case to the trial court for consideration of newly discovered evidence presented for the first time on appeal. Id. An appellate court will exercise this power in its discretion. State v. Davis, 698 S.W.2d 600, 603 (Mo.App.1985).

To obtain a new trial on the basis of newly discovered evidence, this Court has held that the movant must show:

1. The facts constituting the newly discovered evidence have come to the movant's knowledge after the end of the trial;

2. Movant's lack of prior knowledge is not owing to any want of due diligence on his part;

3. The evidence is so material that it is likely to produce a difference result at a new trial; and

4. The evidence is neither cumulative only nor merely of an impeaching nature.

State v. Whitfield, 939 S.W.2d 361, 367 (Mo. banc 1997).

The motion in this case appears to satisfy each element. The first and second elements are met because the results of the DNA test did not become known to Terry until several months after trial and he had no way of determining the paternity during trial as A.W. was still pregnant with the child. The third element is satisfied because, as discussed below, the new evidence casts serious doubt on Terry's conviction and is material to proving the key element of the crime of statutory rape, that Terry and A.W. had sex because the victim was pregnant and testified that she had sex only with Terry. The fourth element also is satisfied. Although the DNA evidence would impeach A.W.'s testimony, it does not "merely" impeach—it conclusively shows that she perjured herself. Generally, the jury decides the effect of impeachment evidence in making its factual conclusions and, even with impeachment evidence, still may choose to believe the witness. But here, the jury has nothing to weigh because, if verified, the DNA test proves that A.W. committed perjury as to a material part of her testimony.

There are two notable cases in the court of appeals in which remand was ordered based on new evidence. In State v. Mooney, 670 S.W.2d 510, 511 (Mo.App.1984), the defendant was convicted of child molestation with the statements of the alleged victim being the only evidence in the case. Id. at 511. Mooney appealed and discovered new evidence during the appeal but after his time to file a motion for a new trial had expired. Id. at 512. The new evidence was a taped statement of the alleged victim admitting that his testimony was false and that he had made up the story. Id. The court determined that it had "the inherent power to prevent miscarriages of justice in a proper case by remanding the case to the trial court with instructions that the...