The opinion of the court was delivered by: Cynthia L. Martin, Judge
ORIGINAL PROCEEDING IN CERTIORARI
Before Writ Division: Cynthia L. Martin, Presiding Judge, Mark D. Pfeiffer, Judge and Gary D. Witt, Judge
This is an original proceeding in certiorari to review the Honorable Warren McElwain's entry of a writ of habeas corpus to Dale Helmig.*fn1 Dale Helmig was convicted in March 1996, following a jury trial in Gasconade County of the first degree murder of his mother, Norma Helmig, whose body was recovered on Sunday, August 1, 1993, from the swollen flood waters at the confluence of the Maries and Osage Rivers. Dale Helmig was sentenced to life in prison without parole. The habeas court, following an evidentiary hearing, issued a writ of habeas corpus vacating Dale Helmig's conviction.
Although the writ of habeas corpus vacated Dale Helmig's conviction, it did not exonerate Dale Helmig. Dale Helmig remains a charged suspect in the murder of his mother eligible for retrial. The writ of habeas corpus ordered that Dale Helmig "be discharged from imprisonment for said conviction unless he is retried in Missouri circuit court for said offense within 180 days" of the writ of habeas corpus.*fn2
We uphold the writ of habeas corpus though on narrower grounds than the several alternative grounds articulated by the habeas court.
Procedural History--the Writ of Habeas Corpus The DeKalb County Habeas Corpus Proceedings
Dale Helmig filed a Petition for Writ of Habeas Corpus in the DeKalb County Circuit Court on July 17, 2009, pursuant to Rule 91.
Dale Helmig's Petition for Writ of Habeas Corpus asserted six claims involving constitutional infirmities which he contends deprived him of a fair trial:*fn3
Claim No. 1: Trial counsel was ineffective for failing to present the jury with the complete context of Dale Helmig's out-of-court statements, including evidence that Ted Helmig*fn4 threatened and abused his wife prior to her murder, which explains Petitioner's [Dale Helmig's] allegedly premature suspicion that his missing mother was the victim of foul play. Claim No. 2: Trial counsel was ineffective for failing to present persuasive defense evidence that [Norma Helmig] was going through a bitter divorce from her abusive husband, failed to rebut any of the false evidence and assumptions on which the State relied, and failed to present evidence corroborating [Dale Helmig's] statement that he slept in a Fulton, Missouri, hotel room the night his mother disappeared.
Claim No. 3: The prosecutor engaged in repeated instances of misconduct, including:
A. Failure to disclose evidence that [Norma Helmig] asked Sheriff Fowler to protect her from her abusive husband three months before she was murdered, and that Tina Ridenhour told the prosecution that [Norma Helmig] armed herself with a pistol out of fear of her husband.
B. The State knowingly presented false testimony that Dale threw hot coffee in his mother's face on the Sunday before she was murdered.
C. The State presented false evidence that Petitioner tacitly admitted to Trooper Robert Westfall that he killed his mother.
D. The State improperly argued [Dale Helmig's] failure to participate in a crime scene investigation proved consciousness of guilt, knowing that Deputy Paul Backus ordered him to stay away.
Claim No. 4: The issue of trial counsel's ineffectiveness should be reopened in light of trial counsel's drug-related conviction.
Claim No. 5: New evidence that checks recovered from [Norma Helmig's] purse didn't clear the bank until after her death establishes that someone other than Petitioner took her purse on the night of her murder and threw it in the water some time later.
Claim No. 6: During deliberations, jurors obtained a map of unknown origin that was used to persuade one or more hold-out jurors to vote guilty.
Dale Helmig's Claims were procedurally defaulted, as they had been previously raised in a Rule 29.15 motion filed by Dale Helmig, or they related to matters that should have been raised at trial, on direct appeal, or in his Rule 29.15 motion.
Dale Helmig claimed that the habeas court was nonetheless permitted to review his procedurally defaulted claims because: (1) he could establish by a preponderance of the evidence, and based on "new evidence," the probability that no reasonable juror would have convicted him (a "gateway claim of innocence"); and (2) he could establish that certain of his Claims were procedurally defaulted due to circumstances not fairly attributable to him (a "gateway cause and prejudice claim"). Dale Helmig also argued that he could establish by clear and convincing evidence a freestanding claim of innocence independently warranting issuance of a writ of habeas corpus.
On September 10, 2009, the Honorable Warren McElwain entered an Order to Show Cause why a writ of habeas corpus should not enter. Judge McElwain thereafter determined that Claims 1, 2, and 4 had been previously adjudicated by the Missouri Court of Appeals, Eastern District as a part of Dale Helmig's Rule 29.15 proceeding, and could not be revisited.*fn5 He thus dismissed Claims 1, 2, and 4 without prejudice to Dale Helmig's ability to re-file the Claims in the Missouri Court of Appeals. Judge McElwain determined that Claims 3, 5, and 6 were Claims that had not been adjudicated in the Rule 29.15 proceeding, permitting review of the Claims if a procedural gateway could be established. Judge McElwain also permitted Dale Helmig to file a First Amended Petition for Writ of Habeas Corpus to add Claim No. 7: that at the time of Dale Helmig's trial, Christopher Jordan, trial counsel, abused controlled substances to the degree that his professional judgment and performance were impaired and unreasonable.
An evidentiary hearing on Dale Helmig's Amended Petition for Writ of Habeas Corpus was conducted before Judge McElwain on July 6, 7, and 8, 2010, with the record left open at the conclusion of the hearing to permit the submission of additional evidence discussed by the parties. The transcripts from Dale Helmig's preliminary hearing and March 1996 trial were made a part of the habeas corpus record. The transcript from Dale Helmig's Rule 29.15 evidentiary hearing was also made a part of the habeas corpus record. The parties stipulated to the admission of the transcript of testimony taken in connection with a habeas corpus proceeding conducted in the Federal District Court, Eastern District of Missouri, relating to Dale Helmig's claim that a map that was not in evidence had been provided to the jury (Claim 6). In addition, the habeas court had the benefit of various affidavits and exhibits presented before the hearing, and the benefit of several deposition transcripts made a part of the record.
The Writ of Habeas Corpus
Judge McElwain issued a writ of habeas corpus on November 3, 2010, accompanied by 110 pages of findings of fact and conclusions of law. The writ of habeas corpus was issued on several grounds, each of which would have independently supported issuance of the writ.
First, Judge McElwain found that the gateway of cause and prejudice had been established permitting review of Claim 3(A) (relating to the nondisclosure of Norma Helmig's reports of abuse and the nondisclosure of the existence of Tina Ridenhour as a witness), and of Claim 6 (relating to the map being provided to the jury).*fn6 Judge McElwain then determined that Claims 3(A) and 6 were meritorious, and that Dale Helmig was a victim of a fundamental miscarriage of justice warranting the vacation of Dale Helmig's conviction.
Second, Judge McElwain found that Dale Helmig established the gateway claim of innocence by a preponderance of the evidence, permitting review of Claims 3(A), (B), (C), and (D), and Claims 6 and 7.*fn7 Judge McElwain then determined that each of these Claims was meritorious warranting the vacation of Dale Helmig's conviction.
Finally, Judge McElwain found that Dale Helmig established Claim 5, a freestanding claim of innocence, and held that:
Dale Helmig has established by clear and convincing evidence that he is innocent of the crime for which he was convicted and sentenced, and that his constitutional rights were violated at his trial in the manner described above. As stated in Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003), Petitioner having met his burden, the evidence supporting the conviction must be assessed in light of all the evidence now available. There was no physical evidence linking Petitioner to the murder. The thin circumstantial evidence has been substantially weakened by the newly discovered evidence previously discussed. This case presents the rare circumstance in which no credible evidence remains from the first trial to support the conviction. This Court determines based on the record that under these rare circumstances, there is clear and convincing evidence of Dale Helmig's innocence. As such his conviction and sentence cannot stand and must be set aside.*fn8
Judge McElwain issued the writ of habeas corpus and ordered that "[t]he conviction of Dale Helmig in the Circuit Court of Gasconade County, Missouri, for the first degree murder of Norma Helmig is vacated and Petitioner shall be discharged from imprisonment for said conviction, unless he is retried in Missouri circuit court for the said offense within 180 days of this order."
On November 22, 2010, the State filed its Petition for Writ of Certiorari in this court. We granted the writ of certiorari as a matter of right. "'When the Attorney General seeks a writ of certiorari [following the grant of a writ of habeas corpus], the writ issues as a matter of course and of right. . . .'" State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001) (quoting State ex rel. Taylor v. Blair, 210 S.W.2d 1, 3-4 (Mo. banc 1948)).
A writ of certiorari requires an inferior court to produce a certified record of a particular case for review for irregularities. BLACK'S LAW DICTIONARY 228 (6th ed. 1990). Our writ of certiorari thus ordered the Circuit Court of DeKalb County to return the record of the habeas corpus proceedings to this court for review. The record was returned on December 6, 2010.
Rule 91.01(b) provides that "[a]ny person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such restraint." Consideration of a petition for writ of habeas corpus is limited to determining the facial validity of the confinement. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002).
Certiorari is "available to correct judgments that are in excess or an abuse of jurisdiction, and that are not otherwise reviewable on appeal." State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 518 (Mo. banc 2001). However, our review is limited to a determination whether the habeas court exceeded the bounds of its jurisdiction. Id.; see also State ex rel. Nixon v. Jaynes, 61 S.W.3d 243, 245 (Mo. banc 2001) ("The chief purpose of certiorari is to confine an inferior court within its jurisdiction.").
Because of the Missouri Supreme Court's decision in J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc. 2009), we must assess the meaning of the word "jurisdiction" in the context of our standard of review. "Webb established that Missouri recognizes only two types of jurisdiction: personal and subject matter, both of which derive from constitutional principles relating to the circuit court's ability to exercise power over particular persons and categories of cases." State ex rel. Koster v. Jackson, 301 S.W.3d 586, 589 (Mo. App. W.D. 2010). As in Jackson, the State here "does not challenge the personal or subject matter jurisdiction" of the habeas court.*fn9 Id. Rather, the State challenges the "authority . . . of the court to resolve" Dale Helmig's Claims. Id. As a result of Webb, "jurisdictional competence," which has no constitutional underpinning, is no longer recognized as a basis for attacking an inferior court's "jurisdiction." Webb, 275 S.W.3d at 254. We thus view the State's Petition for Writ of Certiorari as questioning whether the habeas court exceeded its authority to grant habeas relief or abused its discretion in issuing the writ of habeas corpus. Jackson, 301 S.W.3d at 589.
Our review of whether the habeas court exceeded its authority or abused its discretion in granting habeas relief is limited to a review of questions of law presented by the record before the habeas court. Sprick, 59 S.W.3d at 518. An abuse of discretion occurs only 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." State v. Stewart, 313 S.W.3d 661, 665 (Mo. banc 2010).
We do not review findings of fact. Sprick, 59 S.W.3d at 518. However, the sufficiency of the evidence to support the writ of habeas corpus as a whole is a question of law subject to certiorari review. Id. "[E]very lawful intendment will be made in favor of the determination and the regularity of the proceeding below." State ex rel. Shartel v. Skinker, 25 S.W.2d 472, 478 (Mo. banc 1930). Upon the completion of our review, our options are to "either quash the writ or to uphold the actions of the habeas court," Jackson, 301 S.W.3d at 589, "in whole or in part." State ex rel. White v. Swink, 256 S.W.2d 825, 827 (Mo. App. 1953).
Where, as here, several avenues permitting habeas corpus review and several Claims of constitutional infirmities were found to have merit, we need only determine that at least one avenue permits habeas review, and that at least one Claim has merit. A writ of habeas corpus does not declare or determine the guilt or innocence of a defendant. A writ of habeas corpus merely operates to vacate a conviction where principals of justice and fundamental fairness require, permitting the State to retry the defendant should it so elect. Schlup v. Delo, 513 U.S. 298, 319 (1995) ("[H]abeas corpus is, at its core, an equitable remedy."). It is thus immaterial whether all of the grounds relied upon by the habeas court in fact support the issuance of the writ of habeas corpus. The effect of the writ of habeas corpus will be the same whether one or several grounds for its issuance are determined by this court to warrant upholding the actions of the habeas court.
The Evidence in the Habeas Record
Consistent with our standard of review, we have thoroughly reviewed the habeas corpus record. We summarize the habeas corpus record pertinent to our decision to uphold the issuance of the writ of habeas corpus. That includes a summary of the evidence presented at Dale Helmig's trial, a summary of the procedural events following Dale Helmig's conviction, and a summary of the evidence presented during the habeas corpus proceedings.
The Evidence Presented during the March 1996 Trial *fn10
Norma Helmig's body was found at the confluence of the Maries and Osage Rivers in Osage County, Missouri, on Sunday, August 1, 1993, during the Great Midwest Flood. Her body was found wearing only a nightgown and undergarments, with a concrete cinder block attached by a rope to her torso.
Norma Helmig was last seen at 12:30 a.m. on Thursday, July 29, 1993, at a Country Kitchen restaurant in Jefferson City, Missouri, where she had dined alone, according to her waitress, Carol McKinney. Immediately prior, Norma Helmig played Bingo at the American Legion Hall on Tanner Bridge Road in Jefferson City with her sister, Dorothy Bauer, a Wednesday night routine.
Norma Helmig returned to her home on Pointer's Creek in Osage County, south and east of Jefferson City, in the early morning hours of Thursday, July 29, 1993. The time of her return home is not clear.
Dale Helmig occasionally stayed with his mother at the home on Pointer's Creek, a pattern established in the months preceding Norma Helmig's death and after Ted Helmig, Norma Helmig's estranged husband, moved out of the marital home. At the time of Norma Helmig's death, Norma and Ted Helmig were in the midst of contested dissolution of marriage proceedings.
On Wednesday, July 28, 1993, Dale Helmig had been painting the Pizza Works in Holt's Summit, north of the Missouri River from Jefferson City. Alex Bauer, Dale Helmig's uncle, testified that Dale Helmig called while Norma Helmig and Dorothy Bauer were out playing Bingo looking for his mother, and indicating he was going to go home. At that time, Dale Helmig's "home" was Norma Helmig's house. Alex Bauer described Dale Helmig as sounding "excited or irrational." Though Dale had planned to go home that evening, flood waters washed a leaking propane tank against the base of the Missouri Highway 54 Bridge over the Missouri River at around 8:00 a.m. that morning, forcing its closure. As a result, Dale Helmig decided to stay in Fulton, Missouri, for the evening, and checked into the Travelier Motel. Dennis Hazelwood, a pizza delivery man for Mazzio's Pizza in Fulton, delivered a pizza to Dale Helmig in Room 49 at the Travelier Motel at around 10:30 p.m. Mr. Hazelwood observed a white Buick parked outside Room 49. Dale Helmig drove a white Buick.
John Lilleston of Jefferson City checked in to the Travelier Motel and was given Room 43. Mr. Lilleston left the motel at 5:00 a.m. on Thursday, July 29, 1993. He testified at trial on direct examination that he did not notice a white Buick parked outside of Room 49 when he left.
Dale Helmig reported that he slept Wednesday night in his hotel room in Fulton and checked out of the hotel on Thursday, July 29, 1993. He reported that he drove back to Holt's Summit at about 9:30 a.m. where he looked for a friend who was supposed to paint with him that day. He reported that he then drove across the Highway 54 Bridge and went to La Casa Restaurant on Missouri Boulevard in Jefferson City.
On Thursday, July 29, 1993, Dorothy Bauer called Norma Helmig's home but could not reach her. Sometime that morning, Dale Helmig called his Aunt Dorothy. He told her he had been unable to reach his mother. Dale Helmig asked Dorothy Bauer to relay a message to his mother that he planned to come home later.
Dale Helmig went to a bar in Jefferson City called The Jungle on Thursday evening, July 29, 1993. He encountered an acquaintance, Stacey Medlock. Dale Helmig decided to spend the night with Stacey Medlock at a motel in Eldon, Missouri.
On Friday morning, July 30, 1993, Mrs. Bauer again called her sister's home but received no answer. She got a message to Velda Party, Norma Helmig's cousin, who lived about three miles from Norma Helmig. Velda Party drove to Norma's house. She found Norma's car in the carport but received no answer when she knocked on the door. Mrs. Party called Dorothy Bauer. Mrs. Bauer suggested that Mrs. Party go back to Norma's house because "something's wrong if her car is there and she doesn't answer the door."
On Friday morning, July 30, 1993, Dale Helmig invited Stacey Medlock to come with him to his mother's home. Dale Helmig had explained to Ms. Medlock that he was going to have his kids for the weekend and that a barbeque was planned at his mother's. He was very excited at this prospect as he had not seen his kids in a while because of disputes he was having with his estranged wife. Dale Helmig and Stacey Medlock arrived at Norma Helmig's home at around noon. Dale Helmig determined that his mother was not there. He led Ms. Medlock into the house and remarked that the air conditioner had been left on, which his mother would never do, and that a small fan had been knocked over.
Mrs. Party and her husband arrived at Norma Helmig's home shortly after Dale Helmig and Stacey Medlock. The four walked out of the house, accidentally locking the door behind them. Dale Helmig noticed a window with a loose screen and commented that a large box fan he had installed in the window a few weeks before was gone.
Dale Helmig called several relatives looking for his mother, including Mrs. Bauer. Dale Helmig told Mrs. Bauer that his mother was missing and that a fan was missing from a window. At trial, Ms. Bauer testified that Dale Helmig mentioned that some of his mother's nightgowns were missing.
Mr. and Mrs. Bauer drove to Norma Helmig's house. Dorothy Bauer noticed that the clothing her sister had been wearing when she last saw her on Wednesday, July 28, 1993, at the American Legion Hall was in the bedroom. At trial, Mrs. Bauer testified that Dale Helmig again mentioned that some of his mother's nightgowns were missing and mentioned a gold chain. Alex Bauer testified that Dale Helmig mentioned that his mother's purse was missing.
Dale Helmig called the police. Deputy Paul Backus of the Osage County Sheriff's Department was dispatched to Norma Helmig's home. Dale Helmig told Deputy Backus that he had been staying with his mother but had been gone for several days until returning at noon that same day. Dale Helmig told Deputy Backus that when he arrived, the air conditioner was on and that his mother did not typically leave the air conditioner on when she left the house. Dale Helmig pointed out the missing window fan, a scuff mark on the house below the window where the fan had once been, the small fan knocked over in the living room, a wood stove that was moved a few inches off of its base, and pillows stuffed between the bed and nightstand. At trial, the State argued that Dale Helmig's behavior at the scene evidenced guilt because Dale Helmig was too quick to conclude that something had happened to his mother.
Sheriff Carl Fowler was called to the scene by Deputy Backus. Sheriff Fowler testified that Dale Helmig told him that his mother's purse, her keys, and a nightgown were missing.
Dale Helmig and Stacey Medlock left Norma's home while Sheriff Fowler and Deputy Backus were on the scene. Dale Helmig needed to return Ms. Medlock to Jefferson City and needed to make different arrangements for picking up his children. Stacey Medlock testified at trial that during the drive back to Jefferson City, Dale Helmig seemed worried and at one point said "someone must have gotten crazy drunk and killed her." After dropping Stacey Medlock off, Dale Helmig called his estranged wife. Teresa Helmig testified that during the call Dale Helmig discussed his mother's disappearance and mentioned that her purse, keys, and a nightgown were missing. He also mentioned the missing window fan and that his theory was that someone came in through the window. At trial, Teresa Helmig testified that "there were a couple comments made" and that Dale Helmig then angrily stated "are you trying to say I killed my own mother?" The State argued that the statements Dale Helmig made to Stacey Medlock and to Teresa Helmig evidenced guilt as they suggested Dale Helmig already knew that his mother was dead.
On Saturday, July 31, 1993, the police conducted an aerial search over Norma Helmig's home and up and down the Gasconade River. Mrs. Bauer testified that Dale Helmig was not at the house on Saturday. At trial, the State emphasized Dale Helmig's absence from his mother's home during the search efforts on Saturday, July 31, 1993, as evidence of his guilt and as inconsistent with his expressions of worry and concern the day before.
On Sunday, August 1, 1993, Robert Steele and his son Jerry were using their boat to check on property they owned near the Mari-Osa Delta, located at the confluence on the Maries and Osage Rivers. They noticed a body floating in the trees along the riverbank, about 100-150 yards from the Delta. The body was later identified by dental records as Norma Helmig.
On Sunday afternoon, and before the body had been positively identified, Sheriff Fowler gathered the family, including Ted Helmig, at Norma Helmig's home to report the discovery. Many of the family members responded emotionally and began crying. Sheriff Fowler testified that Dale Helmig did not cry. Sheriff Fowler said Dale Helmig looked surprised and began tapping his foot rapidly on the ground. At trial, the State suggested Dale Helmig's reaction evidenced guilt.
Mrs. Bauer testified that Sheriff Fowler "asked if anyone could identify the clothing, the gown" that Norma Helmig might have been wearing when she disappeared. According to Mrs. Bauer, Dale Helmig advised he believed his mother would have been wearing her white nightgown with blue flowers on it. Sheriff Fowler testified that he had no recollection of asking anyone about what Norma Helmig might have been wearing at the time he met with the family on Sunday, August 1, 1993. Nonetheless, the State argued that Dale Helmig was the first to mention that Norma Helmig disappeared in the very nightgown she was wearing when found, and that this knowledge suggested guilt as it indicated Dale Helmig knew too much about the crime.
In the evening of Sunday, August 1, 1993, Dale Helmig voluntarily went to the Sheriff's Department at Sheriff Fowler's request. Dale Helmig was Mirandized*fn11 and agreed to provide a written statement. In his written statement, Dale Helmig described his activities during the preceding week. At trial, the State argued that Dale Helmig had not been instructed to account for his activities throughout the week, and that by doing so, he was evidencing guilt by the need to establish an alibi.
Norma Helmig's stomach contents were consistent with the meal she had reportedly consumed at the Country Kitchen in the early morning hours of Thursday, July 29, 1993. This permitted an expert to opine that the time of death was between 4:00 a.m. and 6:00 a.m. on Thursday, July 29, 1993. The cause of death was officially noted as undetermined, though asphyxiation was opined to be the ...