APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY. The Honorable Timothy W. Perigo, Judge.
Lemasters was represented by William J. Swift of the public defender's office in Columbia.
The state was represented by Adam S. Rowley of the attorney general's office in Jefferson City.
The Missouri Association of Prosecuting Attorneys, which filed a brief as a friend of the Court, was represented by Boone County Prosecuting Attorney Daniel K. Knight of Columbia, and Jason H. Lamb of the office of prosecution services in Jefferson City.
Paul C. Wilson, Judge. All concur.
Paul C. Wilson, Judge
Andrew Lemasters was convicted of one count of first-degree statutory sodomy. In this appeal, Lemasters argues that the trial court erred by: (1) denying his motion to disqualify the entire Newton County Prosecuting Attorney's Office (" NCPAO" ); and (2) entering a written judgment recording convictions on two counts of first-degree statutory sodomy even though he was tried and convicted of only one count. The Court finds merit in the second point but not the first.
Lemasters' former public defender went to work at the NCPAO prior to Lemasters' trial and, therefore, was disqualified from participating in his prosecution. Her conflict, however, was not imputed to the remainder of the office under the Rules of Professional Conduct, and a reasonable person would have no factual basis to find an appearance of impropriety in this case and doubt the fairness of Lemasters' trial. Accordingly, the Court affirms the judgment on one count of first-degree statutory sodomy but vacates the judgment as to the second count and remands this case to the trial court with instructions to correct the written judgment to reflect what actually occurred.
Lemasters' daughter (" HL" ) was born in 1992. In 2001, HL was living with Lemasters and his wife (" Wife" ). Wife was not HL's mother, but she raised HL, and the two were very close. Lemasters does not challenge the sufficiency of the evidence in this appeal, and the facts of his crime are not relevant to his appellate claims. Suffice it to say, therefore, that Lemasters subjected HL to acts of statutory sodomy in the spring of 2001 and beyond. HL did not tell anyone of this abuse until much later, however, because she was afraid she would be separated from Wife and the rest of her family. When HL did report Lemasters' conduct, he was charged with two counts of first-degree statutory sodomy under section 566.062, RSMo 2000.
On August 7, 2012, the trial court appointed the Missouri State Public Defender System (" MSPD" ) to represent Lemasters on these charges. The following day, the MSPD sent Lemasters an introductory
letter stating that an attorney would be assigned to defend him. On August 16, 2012, Ms. Cheney -- an employee of the MSPD -- entered her appearance on behalf of Lemasters.
After receiving telephone calls from members of Lemasters' family, Cheney instructed her secretary to return the calls and inform the family that Cheney could not speak with them about Lemasters' case without his permission. She also instructed her secretary to tell the family that Cheney could not help them obtain a power of attorney from Lemasters because that was a civil matter unrelated to her representation of Lemasters in the criminal case. The language Cheney used in these instructions was derogatory toward Lemasters' family, and the tone of her instructions indicated Cheney's frustration with them.
Cheney had little direct contact with Lemasters. She had one interview with him in August 2012, which lasted approximately 15 minutes. After this visit, Cheney asked one of her investigators to conduct a recorded interview with Lemasters because his extensive use of pronouns made it difficult for Cheney to " keep track of what he's talking about." Cheney also moved for a reduction of Lemasters' bond. She appeared in court to argue that motion, and it was overruled.
In September 2012, Cheney was hired by the NCPAO. Her last day with the MSPD was September 7, 2012. That day, Cheney wrote an interoffice " transfer memorandum" to the public defenders who were preparing for the preliminary hearing in Lemasters' case. Again, the language of Cheney's memo indicated her frustration with the case, and her memo was derogatory regarding the likelihood that Lemasters could mount a successful defense.
Cheney started work in the NCPAO on September 10, 2012. On February 7, 2013, Lemasters moved to disqualify the entire prosecutor's office due to Cheney's prior representation of him. The trial court held a hearing on Lemasters' motion the following day. Cheney testified that she did not participate " in the prosecution of any individuals where [she] previously represented them" and that she did not discuss any of those cases with others in the prosecutor's office except to identify the defendants she previously represented. The trial court overruled Lemasters' motion, and, in June 2013, the case was tried to a jury.
During the instruction conference, the trial judge noted that the " state has elected to dismiss one of the two counts." As a result, only one count of first-degree statutory sodomy was submitted to the jury. The jury found Lemasters guilty of only one count, and the trial court sentenced Lemasters to 31 years in prison for only one count. Nevertheless, the written judgment reflects that Lemasters was convicted of two counts of first-degree statutory sodomy. ...