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State ex rel. Clemons v. Larkins

Supreme Court of Missouri, En Banc

November 24, 2015

STATE ex rel. REGINALD CLEMONS, Petitioner,
v.
STEVE LARKINS, SUPERINTENDENT, Respondent

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[Copyrighted Material Omitted]

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Clemons was represented by Joshua A. Levine, Andrew M. Lacy, Gabriel Torres, Gabriel Rottman, Donald Conklin, Meredith C. Duffy, Noah Stern and Bashiri Wilson of Simpson Thacher & Bartlett LLP in New York; and Mark G. Arnold of Husch Blackwell LLP in St. Louis.

The state was represented by Stephen D. Hawke of the attorney general's office in Jefferson City.

Stith and Teitelman, JJ., and Hardwick, Sp.J., concur; Wilson, J., dissents in separate opinion filed; Fischer and Russell, JJ., concur in opinion of Wilson, J. Draper, J., not participating.

OPINION

PATRICIA BRECKENRIDGE, CHIEF JUSTICE.

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ORIGINAL PROCEEDING IN HABEAS CORPUS

Reginald Clemons was convicted of two counts of first-degree murder and sentenced to death for the April 5, 1991 murders of sisters, Julie Kerry and Robin Kerry. Mr. Clemons filed a petition for a writ of habeas corpus in this Court, seeking to vacate his convictions because he claims that newly discovered evidence shows that he was prejudiced when the state violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by withholding material evidence. In the alternative, Mr. Clemons requests that this Court vacate his death sentences because his sentences are disproportional due to his age and lack of criminal record, new evidence that Mr. Clemons' confession was coerced, evidence that Mr. Clemons' did not directly murder the Kerry sisters but acted only as an accomplice, and because of the reduced sentence of a " more culpable" codefendant.

This Court appointed a special master under Rule 68.03 to take evidence and issue findings of fact and conclusions of law as to Mr. Clemons' allegations. After hearing multiple days of testimony and reviewing thousands of pages of record, the master issued a report in which he found that the state had violated Brady by failing to produce evidence favorable to Mr. Clemons that a witness observed an injury to Mr. Clemons' face shortly after a police interrogation and that the witness documented his observations of the injury in a written report that was later altered by the state. The master determined that the state's failure to disclose this evidence was prejudicial to Mr. Clemons because it could have led to the suppression of Mr. Clemons' confession, a critical part of the state's case against Mr. Clemons. Substantial evidence supports the master's findings that the state deliberately violated Brady and that, in the absence of the undisclosed material evidence, the jury's verdicts are not worthy of confidence. Accordingly, this Court vacates Mr. Clemons' convictions and sentences for first-degree

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murder.[1] Within 60 days from the date the mandate issues in this case, the state may file an election in the circuit court to retry him. If the state does not so elect, the case against Mr. Clemons shall be dismissed, and Mr. Clemons shall be discharged on this matter.

Facts and Procedural Background[2]

Around 11:35 on the evening of April 4, 1991, 20-year-old Julie Kerry and her 19-year-old sister, Robin,[3] took their visiting cousin, Thomas Cummins, to the Chain of Rocks Bridge in St. Louis.[4] The sisters wished to show Mr. Cummins a poem they had written on the bridge several years before. The cousins arrived at the bridge around midnight.

As the cousins began to walk east on the bridge, they saw a group of four men coming from the Illinois side. Mr. Cummins later identified the men as Reginald Clemons, Marlin Gray, Antonio Richardson, and Daniel Winfrey. The two groups had a brief conversation on the bridge. Mr. Winfrey asked the Kerry sisters for a cigarette. Mr. Gray demonstrated to the others how to climb over the bridge railing and come back up through a manhole in the deck of the bridge. He commented to Mr. Cummins that the manhole was a " good place to be alone and take your woman." The groups then parted ways.

The cousins continued walking toward the Illinois side when they heard footsteps approaching them from behind. It was the four men. Mr. Winfrey later testified that the four men decided to return to the cousins after Mr. Clemons suggested they rob them and Mr. Richardson suggested they rape the girls. At first, the four men were, again, friendly to the cousins. As all seven began walking together toward the Missouri side, Mr. Gray grabbed Mr. Cummins by the arm, walked him back a short distance, and ordered him to the ground. Mr. Cummins immediately complied and remained facedown after Mr. Gray warned Mr. Cummins that he would kill him if he looked up.

Mr. Cummins then heard his cousins begin to scream. Mr. Cummins believed he continued to be guarded by Mr. Gray, while the other men raped the Kerry sisters. Eventually, Mr. Gray left and Mr. Cummins was guarded by other members of the group. He heard one of the men say that he had never had the pleasure of " poppin' somebody." He did not know who said this but he did not believe it was Mr. Gray. Mr. Cummins heard sounds of a struggle and Julie continuing to scream. One of the men told one of the Kerry sisters to take off her pants and threatened to throw her off the bridge if she did not comply. One of the men returned to Mr. Cummins and asked Mr. Cummins if he had any money. The man then took $20 and a

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Swatch watch from Mr. Cummins.[5] When the man removed Mr. Cummins' wallet from his pocket, he discovered a badge and " freaked." Another man demanded to know if Mr. Cummins was a police officer and was told that Mr. Cummins was a firefighter, not a " cop." Several of the men approached Mr. Cummins. One told Mr. Cummins that he had Mr. Cummins' driver's license and would come and get him if Mr. Cummins told anyone what had happened. Mr. Cummins was then told to get up and to keep looking down as he was moved along the bridge toward the Missouri side. He was then forced to lie down again. Two of the men talked to Mr. Cummins about whether he would live or die and argued over whether to kill Mr. Cummins.

Mr. Clemons then approached Mr. Cummins and told him he had raped his girlfriend and asked how that felt. Mr. Cummins told him that she was not his girlfriend, she was his cousin. Mr. Clemons then told Mr. Cummins to get up and keep his head down. Mr. Clemons walked Mr. Cummins over to an open manhole in the bridge and had him sit on the edge of the manhole. Mr. Cummins was then told to go through the manhole onto a steel platform suspended about five feet below the surface of the bridge. When he did this, Mr. Cummins saw the Kerry sisters lying on their backs on the platform.

Other than the Kerry sisters, Mr. Cummins did not see anyone else on the metal platform at that time. After laying down on the platform, he heard two thuds that he believed were two sets of feet dropping onto the platform. He felt the cousin who was lying next to him move back and forth, which he believed was caused by someone raping her. Mr. Cummins and the cousins were then told to step down onto a concrete pier about three feet below the platform. Although he could only see one of the men, he believed two of them were still on the platform. Without warning, he saw an arm push Julie and then Robin off the bridge.[6] He was told to jump by the man that he later identified as Mr. Richardson, and he did.

When he surfaced in the Mississippi River, Mr. Cummins briefly had contact with Julie but then lost sight of her. He never saw Robin. Authorities recovered Julie's body from the river near Caruthersville three weeks later. Robin's body was never found. Eventually, Mr. Cummins was able to reach the bank on the Missouri side of the river south of the Chain of Rocks Bridge. He climbed up the bank and found a road. Shortly before 2:00 a.m., Eugene Shipley was driving a truck south of the Chain of Rocks Bridge near the St. Louis Waterworks when he saw Mr. Cummins step onto the road to flag him down. Mr. Shipley observed that Mr. Cummins' hair was wet and unkempt and he was crying. Mr. Cummins told Mr. Shipley that he needed help, that his cousins had been raped, and that he had been thrown off the bridge.

Officers from the St. Louis Metropolitan Police Department responded to the scene after being contacted by Mr. Shipley.

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When the police officers arrived at the Chain of Rocks Bridge, they questioned Mr. Cummins. After it got light, the police took Mr. Cummins onto the bridge and he showed them where the events took place. The police found a number of items on the bridge including a set of keys carried by Mr. Cummins, an unused condom, a used condom, a pen, some change, and a cigarette butt. A black flashlight engraved with " Horn I" was also discovered several hundred yards east of the other items.

Even though Mr. Cummins was questioned at the scene, his first recorded statement was taken at the police station around 9 a.m. by Detectives Raymond Ghrist and Gary Stittum. While Mr. Cummins was being interviewed by Detectives Ghrist and Stittum, another officer attempted to enlist assistance in searching the river for the Kerry sisters. When he contacted the Missouri State Water Patrol, he spoke with an officer and was told information about the river currents and the water temperature that caused him to doubt Mr. Cummins' statements. Other erroneous information, including the belief that Mr. Cummins was lying because he could have simply fought off the four assailants given that none of them ever pulled a weapon, caused the police to obtain another recorded statement from Mr. Cummins.

Mr. Cummins' second recorded statement was conducted by Detectives Richard Trevor and John Walsh. This statement lasted until 12:40 p.m. and was largely consistent with what Mr. Cummins had first told Mr. Shipley and the responding officers at 2:00 a.m. just after the police were contacted. Nevertheless, a May 31, 1991 incident report that purportedly summarized Mr. Cummins' statements in the second recorded interrogation, materially mischaracterized his statements to indicate he said that he and Julie had become close when they were both visiting Florida the year before and that they were close to having sex. It also incorrectly stated that Mr. Cummins changed his story and said that he had not jumped off the bridge and, instead, ran from the bridge and got wet only when he jumped into the water from the bank to search for the Kerry sisters.

The police then obtained Mr. Cummins' consent to submit to a polygraph examination. Although Mr. Cummins' condition and the circumstances under which the polygraph was performed were such that its results should not have been given any credence, the police proceeded. When the test was completed, the examiner told Mr. Cummins that the test showed he was " deceptive." The police then talked with Mr. Cummins' father and told him information that temporarily convinced him that his son could not have survived a jump from the bridge and that his son's polygraph test was classified as deceptive. Mr. Cummins' father talked to Mr. Cummins and urged him to tell the truth. The police then claimed that Mr. Cummins changed his story to say he ran off the bridge, jumped in the water only up to his neck, and then ran for help. Later under oath, Mr. Cummins vehemently disputed having ever made these statements.

According to police reports prepared after Mr. Cummins had been cleared by the police for the deaths of the Kerry sisters, Lieutenant Steven Jacobsmeyer, deputy commander of the Crimes Against Peoples Unit, and Detective Chris Pappas and Detective Joseph Trevor interrogated Mr. Cummins again after they became aware of Mr. Cummins' allegedly changed of story. The report stated that, although Mr. Cummins refused to make a recorded statement, he told these officers that he tried to have sex with Julie but she was unwilling, they argued, he pushed her, and

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she lost her balance and fell off the railing of the bridge. When this happened, he became hysterical and blacked out, and he believed that either Robin jumped into the river to save her sister or he pushed her in. Following this alleged confession, the police arrested Mr. Cummins and announced to the media that the Chain of Rocks murders were solved.

Mr. Cummins later testified that after his father left the interrogation room, he was threatened by Lieutenant Jacobsmeyer that if he did not tell the police officers what they wanted to hear, " he was going to put [Mr. Cummins] in the hospital that night and he had witnesses that would say [Mr. Cummins] resisted arrest." Mr. Cummins stated that the police yelled and screamed at him and that he was told to sit on his hands, at which time one of the detectives twisted his neck while another gave him at least ten " hard blows" in the back of the head. Mr. Cummins stated that, despite this abuse, he did not make the statements reported by Lieutenant Jacobsmeyer and Detectives Pappas and Trevor.

About the same time as Mr. Cummins was being interrogated and charged with the murders, the police received a call from a woman who had seen a television news story about the search for the owner of a black flashlight engraved with " Horn I." She identified the flashlight as one that had been stolen a few days earlier. The information she gave eventually led to the arrest of Mr. Richardson. The police apprehended Mr. Richardson on April 6 and, during an interrogation, Mr. Richardson implicated both Mr. Gray and Mr. Clemons.[7]

On the evening of April 7, 1991, St. Louis police officers located Mr. Clemons and asked if he would accompany them to police headquarters because his name had surfaced in " the bridge case." Mr. Clemons agreed. At this time, Mr. Clemons was not under arrest. According to police, Mr. Clemons was advised of his rights, indicated that he understood his rights, and agreed to speak with the police. He was then interrogated for approximately 45 minutes, took a 20 break, and then was interrogated for another hour and 15 minutes by Detective Pappas and Detective Joseph Brauer.

During the first interrogation, Mr. Clemons admitted only to having been with Mr. Richardson, Mr. Gray, and a person he did not know -- later identified as Mr. Winfrey -- at the Chain of Rocks Bridge on the night of the murders but denied having any involvement in the rapes and murders. During the second interrogation, when Mr. Clemons was asked whether he knew Julie and Robin Kerry, he responded by asking if they " were the two girls on the bridge with the white dude." According to police, Mr. Clemons then voluntarily agreed to give a recorded statement.

During the recorded statement, Mr. Clemons said that on the evening of April 4, he went with Mr. Richardson, Mr. Gray, and the unidentified white male to the Chain of Rocks Bridge. After they arrived, Mr. Richardson gave Mr. Clemons a large flashlight, and the group began to walk across the bridge. During their walk, they approached two white females and one white male and spoke with them briefly. Thereafter, Mr. Richardson came up with the idea of robbing the male and raping the two females. They all agreed to participate. Mr. Clemons admitted he

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robbed Mr. Cummins, raped one of the girls and was on the metal platform below the bridge with the three victims and Mr. Richardson. Mr. Clemons also admitted that Mr. Richardson told him that he was going to push the sisters into the water because he did not want to leave any witnesses and that Mr. Clemons made no comment to Mr. Richardson's suggestion. Additionally, he stated that the Kerry sisters were stripped by Mr. Richardson and Mr. Gray, that Mr. Richardson hit one of the sisters in the face when she tried to fight him off, that the Kerry sisters were conscious and screaming during the repeated rapes and when they were pushed off the bridge, that one sister was forced to perform oral sex on Mr. Richardson, and that, after Mr. Richardson pushed one sister off, the other sister grabbed the wrist of Mr. Richardson, who then punched her and pushed her off the bridge. In Mr. Clemons' recorded statement, he denied, however, that he pushed anyone off the pier and stated that it was Mr. Richardson who pushed the victims into the water. At the conclusion of his statement around 1:00 to 2:00 a.m. on April 8, Mr. Clemons was arrested and booked for murder. Booking photographs were taken at this time.[8]

While Detectives Brauer and Pappas were interrogating Mr. Clemons, Detectives Trevor and Walsh located Mr. Gray at a friend's house and brought him into custody. Mr. Gray was then interrogated by Detectives Trevor, Brauer, and Pappas.[9] During a recorded statement by Mr. Gray, he admitted to raping both sisters but denied being in the manhole when the sisters and Mr. Cummins were pushed off the pier. When his statement was complete, Mr. Gray was arrested and booked for murder. On April 8 at 2:10 p.m., approximately 14 hours after Mr. Clemons' interrogation had ended, Officer Warren Williams, who was the ex-husband of a cousin of Mr. Clemons' mother and a police officer for the city of St. Louis, visited Mr. Clemons in a holdover cell on the request of Mr. Clemons' mother. During the visit, Mr. Clemons told Officer Williams that he got in with the wrong people, had gotten drunk before going to the Chain of Rocks Bridge, had raped two girls on the bridge and had left his flashlight on the bridge but that another boy had pushed the girls into the water. Officer Williams did not observe any injuries to Mr. Clemons during his visit.

Mr. Clemons' attorney, Michael Kelly, met with him shortly after Officer Williams had visited. Mr. Kelly observed swelling and a small abrasion to Mr. Clemons' right check, a small abrasion on the inside of his lip, and bruises on his chest. When Mr. Clemons made his first court appearance the next day, his family also observed that there was an injury to his face. At the court hearing, Mr. Clemons' sister, Veronda Brown, observed that the right side of his face looked lopsided and swollen. Donald Robinson, Mr. Clemons' cousin, saw that the right side of his face was swollen and his right eye was swollen closed. Mr. Clemons' mother, Vera Thomas, observed that the right side of his face was swollen and stuck out. His stepfather, Reynolds Thomas, also saw that the right side of his face was swollen and puffy. The judge who presided over that

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court hearing ordered that Mr. Clemons be medically examined. He was taken to the emergency room at Regional Medical Center, where Dr. Stephen Duntley diagnosed Mr. Clemons with soft tissue swelling over the right sarcoma or cheek bone and tenderness at that site.

Within a short time after Mr. Clemons and Mr. Gray were arrested and booked, they both filed complaints with the police department's Internal Affairs Division (IAD), alleging that they had been beaten by the detectives who interrogated them. On April 9, 1991, at 3:13 p.m., two IAD investigators interviewed Mr. Clemons at the jail regarding his allegations. In the transcript of that interview, Mr. Clemons told the investigators that, on April 7, he was taken into an interview room and that the detectives started asking him questions. Mr. Clemons stated that he told the detectives that he had nothing to do with the murders on the bridge and, after being advised of his constitutional rights, stated that he wanted to talk to an attorney. Following the request, Mr. Clemons stated that a detective slapped him in the back of the head twice, again advised him of his constitutional rights, and threatened to bounce him off the wall if he did not talk. Mr. Clemons again said he wanted a lawyer. Mr. Clemons said that at some point he was told to scoot back from the table and to sit on his hands and one of the detectives slammed the back of his head into the wall. When he still refused to talk, Mr. Clemons' head was again slammed against the wall, he was choked, and he was hit in the chest by one of the detectives. He told IAD investigators that both detectives continued to strike him repeatedly until he eventually lost consciousness.

After regaining consciousness, Mr. Clemons agreed to make a statement to avoid more physical abuse. The officers wrote out what they wanted Mr. Clemons to say and had him read it over and over so he could remember it. The notes instructed Mr. Clemons to declare that he was the one who pushed the women off the bridge. He refused to make that admission, and the officers told Mr. Clemons to say that he raped one of the sisters and restrained Mr. Cummins. After he made the recorded statement, Mr. Clemons claimed that the police were unhappy with it, beat him some more, and ordered him to make a new tape. In the second tape, Mr. Clemons again confessed to the rapes and robbery, but not to the murders.

Mr. Gray's complaint filed with the IAD alleged that his statement was coerced because he had been beaten by the police. Mr. Gray was interviewed by the IAD investigator on April 9, 1991, a little before 5:00 p.m. Mr. Gray stated that he was not advised of his rights and was told he could not have an attorney. When Mr. Gray refused to talk, he was struck by one of the police officers. He was then uncuffed and told to sit on his hands. He was then beaten in three different interrogation sessions. The detectives wrote out the statement they wanted Mr. Gray to make, and he eventually gave a tape-recorded statement confessing to robbing Mr. Cummins and raping the Kerry sisters. He also denied pushing the Kerry sisters off the bridge.

Prior to trial, Mr. Clemons moved to suppress his statement to the police on the ground that it was involuntary because police had obtained it by beating him, in violation of his constitutional rights. The court conducted a hearing on the motion. Detectives Pappas and Brauer testified that they were present for three interrogations of Mr. Clemons and that neither of them hit Mr. Clemons or observed any injuries. Officer Williams, who visited Mr. Clemons in his holdover cell on April 8,

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also testified for the state. He, too, stated that he did not observe any injuries to Mr. Clemons when he saw him approximately 14 hours after Mr. Clemons had been interrogated.

Mr. Clemons also called several witnesses, including the members of his family and his attorney who had observed his injuries on April 8 and April 9. Additionally, Mr. Clemons testified at the suppression hearing on his own behalf, stating that Detective Pappas and another detective hit him in the head and chest while they were interrogating him. To corroborate his testimony, Mr. Clemons made an offer of proof of the transcript of Mr. Cummins' testimony from Mr. Gray's trial, in which Mr. Cummins said that he was beaten by the police and then was alleged to have made statements that led to his arrest for the murders of the Kerry sisters.[10] The state objected that Mr. Cummins' statements were not relevant to whether Mr. Clemons had been beaten. After finding that the transcript of Mr. Cummins' testimony from Mr. Gray's trial did not show any alleged similarity in tactics employed by the police in interrogating Mr. Cummins and Mr. Clemons, the trial court sustained the state's objection to the offer of proof.[11]

After hearing the evidence, the trial court overruled Mr. Clemons' motion to suppress his confession. The court held that " the basis for [its] ruling is there was not any credible evidence to show how [Mr. Clemons] got those injuries if, in fact, he got them. And that was other than [his] testimony."

Mr. Clemons' trial commenced on January 25, 1993, and lasted until February 18, 1993. The state's evidence against Mr. Clemons included Mr. Clemons' confession, the testimony of Mr. Cummins, and the testimony of Mr. Winfrey.[12] Mr. Cummins testified consistently with his prior statements to the police. Mr. Winfrey testified that Mr. Clemons participated in the crimes by grabbing Mr. Winfrey and pushing him toward the side of the bridge until Mr. Winfrey agreed that he would participate in the rapes; ripping the clothes off one of the Kerry sisters and getting on top of her; getting on top of the other sister; taking one of the Kerry sisters to the manhole; robbing Mr. Cummins; throwing the girls' clothing over the side of the bridge; putting Mr. Cummins in the manhole; sitting on the edge of the manhole when he sent Mr. Winfrey to find Mr. Gray; and telling Mr. Gray and Mr. Winfrey, " We threw them off. Let's go."

At his trial, Mr. Clemons did not testify on his own behalf, but he did present witnesses who testified they observed Mr. Clemons' bruised face after he had been questioned by the police. In addition to his family and his attorney, Dr. Duntley, the emergency room doctor who examined him as ordered by the judge, testified for the defense that Mr. Clemons had soft tissue swelling and tenderness on his right

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cheek bones that could have been caused by Mr. Clemons' cheek being hit against a solid object, such as a wall or bar.

Before closing arguments, the state moved to prohibit argument by defense counsel that the police beat Mr. Clemons because the only evidence presented was that he had injuries but not how they were sustained. Because the trial court found the police denied causing the injuries and Mr. Clemons did not dispute the officers' testimony by presenting competent evidence as to who was responsible for inflicting the injuries, the trial court held that there was no evidentiary basis to support argument that the police coerced Mr. Clemons' confession. Accordingly, the trial court sustained the state's motion to prevent Mr. Clemons from arguing in his closing argument that his confession was coerced because he was beaten by police. Nevertheless, the trial court submitted a jury instruction proffered by Mr. Clemons regarding the voluntariness of his confession.[13] After deliberations, the jury found Mr. Clemons guilty of two counts of first-degree murder.

During the sentencing phase of Mr. Clemons' trial, the jury heard testimony from more than 30 thirty witnesses -- 13 called by the state and 18 called by Mr. Clemons. Mr. Clemons again did not testify on his own behalf. During deliberations, the jury sent a message to the judge asking for " [a]ll photographs, tape recorded tapes (audio), statements of Winfrey, Cummins, Clemons[.]" The judge ordered that the jury receive all photographs admitted into evidence and the transcripts of Mr. Winfrey's and Mr. Cummins' statements. The jury was not allowed to hear audio recordings of Mr. Winfrey's and Mr. Cummins' statements because these were not played at trial. The jury was returned to the courtroom, where the court again played the recorded audio statement of Mr. Clemons to the jury. While listening to the audio recording, the jury was allowed to review a transcript of his statement. The jury was not able to take the audio recording or the transcript of Mr. Clemons' statement to the deliberation room.

The jury found 12 aggravating circumstances and recommended two death sentences. Following the jury's recommendation, the trial court sentenced Mr. Clemons to death for each of the murders.[14]

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On November 1, 1993, Mr. Clemons filed a motion to vacate, set aside or correct the judgment or sentence of the trial court pursuant to Rule 29.15. The trial court overruled the motion after an evidentiary hearing. In a consolidated appeal, this Court affirmed Mr. Clemons' convictions and sentences and affirmed the trial court's overruling of Mr. Clemons' motion for post-conviction relief. State v. Clemons, 946 S.W.2d 206 (Mo. banc 1997).

In his direct appeal, Mr. Clemons raised numerous claims of error, including that the trial court erred by allowing into evidence his confession because it had been obtained through physical force by police. In this Court's opinion affirming his convictions, it determined that Mr. Clemons had not met his burden of proving that his confession was involuntary. Id. at 218. In so ruling, this Court recited the evidence in the light most favorable to the trial court's ruling, particularly Officer Williams' testimony that he did not observe an injury to Mr. Clemons during his visit. Id. The Court noted that the trial court had the opportunity to judge the credibility of the witnesses and obviously found the state's witnesses more credible than Mr. Clemons' witnesses. Id. The Court found that the evidence, other than Mr. Clemons' testimony from his suppression hearing, did not demonstrate either when or how Mr. Clemons incurred any injury and that the evidence did not establish that an injury actually occurred at the hand of the police officers conducting his interrogation. Id. The Court further found that, while there was evidence of his physical injuries, his family's observations of his injuries occurred 48 hours or more after his interrogation and confession. Id.

After his convictions and sentences and the overruling of his post-conviction motion were affirmed, Mr. Clemons filed a writ of certiorari with the United States Supreme Court, which denied the writ without comment on November 10, 1997. He subsequently filed a petition for a writ of habeas corpus in the United States District Court that included a claim that his confession was a product of coercion in violation of his Fifth Amendment privilege against self-incrimination. The district court denied relief on this claim but granted the petition and vacated the death penalty on other grounds.[15] Clemons v. Luebbers, 212 F.Supp.2d 1105 (E.D. Mo. 2002). The state appealed, and the United States Court of Appeals for the Eighth Circuit, reversed. Clemons v. Luebbers, 381 F.3d 744, 757 (8th Cir. 2004).

On June 12, 2009, Mr. Clemons filed a petition for a writ of habeas corpus in this Court pursuant to article V, section 4 of the Missouri Constitution, asserting that newly discovered evidence established his " actual innocence" [16] and that he has a

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right to have the proportionality of his death sentence reviewed, despite this Court's previous finding that his sentence was proportional.

As authorized by Rule 68.03, this Court appointed a special master to take evidence and issue a master's report on the claims in the habeas petition. The master presided over discovery in the matter.[17] He heard three days of live and videotaped testimony from 23 witnesses and conducted an in-depth review of the evidence and trial record.

Before the master had conducted a formal hearing on the matter, Warren Weeks, who now lives more than 1,000 miles away from St. Louis, contacted Mr. Clemons' counsel after learning about the special master proceeding. In response to Mr. Weeks' expected testimony and, apparently without objection, Mr. Clemons expanded his grounds for habeas relief to assert what is commonly called a " cause and prejudice" claim.[18]

At the time of Mr. Clemons' arrest in April 1991, Mr. Weeks was a bail investigator working for the Missouri Board of Probation and Parole. In that capacity, Mr. Weeks was responsible for screening individuals soon after their arrests to see if they qualified for release. Specifically, Mr. Weeks interviewed arrestees for the purpose of obtaining information for a court commissioner's consideration in deciding whether a prisoner should be given a pretrial release immediately or be held over until the prisoner could appear before a judge.

In a videotaped deposition presented in evidence by agreement after the three-day hearing before the master, Mr. Weeks testified that he conducted his interviews in a small room with three desks -- one for Mr. Weeks, one for his supervisor, and one for a court commissioner. A guard would bring one to four prisoners into the room. The prisoners would be seated about three feet across from the investigator's desk and were each interviewed for 5 to 10 minutes. Mr. Weeks was responsible for interviewing prisoners and filling out a three-page pretrial release form that included information about the prisoner's employment, residence, criminal background, and mental or physical problems.

Mr. Weeks testified he was on duty on the morning of April 8, 1991, and Mr. Clemons was brought to him for his pretrial release assessment around 5:25 a.m. His interview of Mr. Clemons took place approximately three hours after Mr. Clemons was booked and more than eight hours before Mr. Williams' visit with Mr. Clemons in the holdover cell. Mr. Weeks testified that, during this interview, he noticed a " bump" or a " bruise" on Mr. Clemons' right cheek that he described as being between the size of a golf ball and a baseball. He asked Mr. Clemons about the bump, but Mr. Clemons did not respond. Mr. Weeks made a record of Mr. Clemons' injury on the pretrial release form and believes that he wrote " bump" or " bruise" on the form.

Mr. Weeks testified that after he had completed the pretrial release form, he would have given it to the court commissioner,

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Yvonne Edwards, to review, and she would then record additional information on the form. Mr. Weeks testified he did not see the form again after giving it to the court commissioner for review. When Mr. Weeks viewed the pretrial release form during his deposition, he testified that his notation of a " bump" or a " bruise" had been scratched out and could not be read. He also stated that he recognized Ms. Edwards' handwritten " okays" written throughout the form, her notations of " asthmatic -- medication," " follow up for police report, submit," and " no bond," and her signature on the first page of the form. Mr. Weeks testified he had not scratched out " bump" or " bruise" and did not know who had.

Mr. Weeks further testified that he discussed Mr. Clemons' injury with his supervisor, Pete Lukanoff, after Mr. Clemons and the other prisoners left the room. Mr. Lukanoff's desk was situated right next to Mr. Weeks' during the time Mr. Clemons was seated across the desk from Mr. Weeks. After the prisoners left the room, he commented to Mr. Lukanoff that Mr. Clemons' injury might be from a spider bite. But, after speaking with Mr. Lukanoff who was a former St. Louis city police officer, Mr. Weeks testified he believed the injury occurred while Mr. Clemons was being interrogated by the police.[19] Mr. Weeks testified that his interview of Mr. Clemons was otherwise unremarkable.

Mr. Weeks further testified that several months after interviewing Mr. Clemons and filling out the form, Ben Coleman, another supervisor in the probation and parole office, called him into his office and questioned him regarding his ability to observe any injuries to Mr. Clemons. Mr. Weeks testified that he had never before been called to talk to Mr. Coleman or Mr. Lukanoff about his notations on a pretrial release form and had never heard of any of his colleagues being called to talk to the supervisors about such a matter. Mr. Coleman explained to Mr. Weeks that Nels Moss, the state's prosecutor in Mr. Clemons' case, wished to speak with Mr. Weeks about his evaluation of Mr. Clemons. Mr. Weeks testified that after his meeting with Mr. Coleman he felt pressured not to say anything about Mr. Clemons' injury.

Mr. Weeks then was called to meet with Prosecutor Moss. In that meeting, Mr. Moss also challenged the accuracy of Mr. Weeks' observations of the injury to Mr. Clemons' face and showed him pictures of Mr. Clemons taken shortly after Mr. Clemons' interrogation by the police that did not appear to show any injury to Mr. Clemons' face. Mr. Weeks testified that he had never before been called to talk to a prosecutor about an interview and had never heard of any of his colleagues being called to talk to the prosecutor.

Mr. Weeks testified he told Mr. Moss that the photos did not make him change his mind about Mr. Clemons' injury because " [he] saw what [he] saw and everybody saw what they saw who was in that interview room." Mr. Weeks testified that

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Mr. Moss " made it very clear that he didn't think that [Mr. Weeks] was describing [the injury] accurately based on the pictures." Nevertheless, Mr. Weeks maintained that he had observed the injury to Mr. Clemons as he recorded it on the pretrial release form. Mr. Weeks testified that Mr. Moss seemed irritated at his refusal to change his mind. Mr. Weeks was never contacted or interviewed by internal affairs investigators.[20] Mr. Weeks' reaction after meeting with Mr. Moss was that " there's something weird going on. I think they don't want to -- nobody wants to talk about the -- what really happened to this gentleman when he was being interviewed by the police."

At the habeas hearing before the master, Mr. Moss was called as a witness by Mr. Clemons. Mr. Moss testified that he recalled having met with Mr. Weeks before Mr. Clemons' trial and that Mr. Weeks had made some references to Mr. Clemons' face being swollen. When asked if a witness who had seen Mr. Clemons' injury immediately after the police interrogation would have been important to the defense, Mr. Moss answered, " I don't know. I would assume so."

On August 6, 2013, the master issued his report, in which he concluded that the state had violated Mr. Clemons' constitutional rights under Brady by suppressing material inculpatory evidence corroborating Mr. Clemons' claim that his confession was coerced by the police. Based on his finding that Mr. Weeks' testimony was credible, the master concluded that the state had deliberately concealed Mr. Weeks' observation of Mr. Clemons' injury and suppressed the information he recorded in the pretrial release form by altering Mr. Weeks' record of his observation. The master further concluded that this evidence corroborated both Mr. Clemons' claim of police abuse made to the IAD and his family members' and attorney's testimony that they had observed injuries to Mr. Clemons' face. Moreover, the master found that this evidence could have contradicted and impeached Officer Williams' testimony that he did not observe any injuries to Mr. Clemons' face. Accordingly, the master held that Mr. Weeks' testimony may have resulted in the trial court sustaining Mr. Clemons' motion to suppress his confession and, therefore, could reasonably have put the case in a different light so as to undermine confidence in the verdict. On September 25, 2013, the master overruled the state's exceptions to his report and filed an amended report with the Court.

Analysis

I. Standard of Review for Master's Report

In cases in which this Court appoints a master under Rule 68.03, the Court will sustain the master's findings and conclusions " unless there is no substantial

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evidence to support them, they are against the weight of the evidence, or they erroneously declare or apply the law." State ex rel. Lyons v. Lombardi, 303 S.W.3d 523, 526 (Mo. banc 2010); see also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The master's findings should receive the " weight and deference which would be given to a court-tried case by a reviewing court" due to " the master's unique ability to view and judge the credibility of witnesses." State ex rel. Woodworth v. Denney, 396 S.W.3d 330, 336-37 (Mo. banc 2013) (internal quotations omitted). In light of this deference, " [t]his Court should exercise the power to set aside the findings and conclusions [of the master] on the ground that they are against the weight of the evidence with caution and with a firm belief that the conclusions are wrong." Id. at 337.

II. Standard of Review for Habeas Relief

Habeas corpus relief is the final judicial inquiry into the validity of a criminal conviction and functions to relieve defendants whose convictions violate fundamental fairness. Id. A habeas petitioner has the burden of showing that the petitioner is entitled to habeas corpus relief. State ex. rel. Winfield v. Roper, 292 S.W.3d 909, 910 (Mo. banc 2009). " [A] writ of habeas corpus may be issued when a person is restrained of his or her liberty in violation of the constitution or laws of the state or federal government." Woodworth, 396 S.W.3d at 337 (internal quotations omitted).

The available relief under a writ of habeas corpus is limited and generally cannot be utilized to raise procedurally barred claims, such as those that could be raised on direct appeal or in a post-conviction proceeding. Id. Habeas corpus can provide relief even for procedurally barred claims if the petitioner can show:

(1) a claim of actual innocence or (2) a jurisdictional defect or (3)(a) that the procedural defect was caused by something external to the defense--that is, a cause for which the defense is not responsible--and (b) prejudice resulted from the underlying error that worked to the petitioner's actual and substantial disadvantage.

State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516-17 (Mo. banc 2010). Moreover, a petitioner may seek habeas relief for procedurally barred claims " in circumstances so rare and exceptional that a manifest injustice results." State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo. banc 1993); see also State ex rel. Engel v. Dormire, 304 S.W.3d 120, 125 (Mo. banc 2010).

Mr. Clemons seeks to overcome the procedural bar to his habeas corpus claim by showing " cause and prejudice." " To demonstrate cause, the petitioner must show that an effort to comply with the State's procedural rules was hindered by some objective factor external to the defense." Woodworth, 396 S.W.3d at 337. The factual or legal basis for a claim must not have been reasonably available to counsel or some interference by officials must have made compliance impracticable. Id. Evidence that has been deliberately concealed by the state is not reasonably available to counsel and constitutes cause for raising otherwise procedurally barred claims in a petition for a writ of habeas corpus. Amadeo v. Zant, 486 U.S. 214, 222, 108 S.Ct. 1771, 100 L.Ed.2d 249 (1988). Here, Mr. Clemons argues that he is entitled to a writ of habeas corpus because the state deliberately concealed Mr. Weeks' observation of an injury to Mr. Clemons' face and suppressed the information he recorded in the pretrial release form by altering Mr. Weeks' record of his

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observation (collectively, " the Weeks evidence" ).

Even though the master did not separately analyze whether Mr. Clemons established " cause" sufficient to overcome the procedural bar to his habeas claims, the master's findings and conclusions support the conclusion that Mr. Clemons has established sufficient cause. The master found that there was " no indication that the State ever informed the defense about what Weeks observed." This finding is consistent with the fact that the description of Mr. Weeks' report in Mr. Clemons' IAD report is misleading in that the description does not include Mr. Weeks' notation of a " bump" or " bruise" and, instead, notes that Mr. Weeks indicated that Mr. Clemons' only health problem was asthma. Additionally, while the state endorsed Mr. Weeks as a witness in a memorandum sent to Mr. Clemons' counsel on September 16, 1992, the state did not include the information that Mr. Weeks had observed that Mr. Clemons was injured. Although Mr. Clemons knew of his own injuries and that Mr. Weeks inquired about an injury, Mr. Weeks did not tell Mr. Clemons that he was recording Mr. Clemons' injury in his pretrial release report, so Mr. Clemons could not have known that this material existed.

Additionally, although the state produced the pretrial release form, Mr. Weeks' record of Mr. Clemons' injury was scratched out. The master found Mr. Weeks' testimony that he had recorded his observations on the pre-release form credible and that, although it was not known who had scratched out the notation, " it had to be someone who [did] it on behalf of the State." The master concluded that the state had deliberately concealed the Weeks evidence.

The existence of a written record created by an employee of the board of probation and parole noting a significant injury to Mr. Clemons' face less than three hours after he was booked that was altered after the lead prosecutor for the state had knowledge of the report's content and attempted to get the author of the report to change his statements is substantial evidence in support of the master's conclusion that the state deliberately concealed the Weeks evidence and that this evidence was not, therefore, reasonably available to defense counsel due to an objective factor external to the defense. Accordingly, Mr. Clemons has established the cause needed to overcome the procedural bar to review of his habeas claim by showing that this evidence was not reasonably available to counsel because of a reason external to the defense.

Under the " cause and prejudice" standard, however, Mr. Clemons must also show " that he is entitled to habeas review because this Court's failure to review his claims would prejudice him." Engel, 304 S.W.3d at 126. The determination of whether prejudice resulted from the underlying error under a cause and prejudice standard is identical to this Court's assessment of prejudice in evaluating Mr. Clemons' Brady claims. Id. If Mr. Clemons " establishes the prejudice necessary to support his Brady claims, he will have shown the required prejudice to overcome the procedural bar for habeas relief." Id. Accordingly, this Court turns to Mr. Clemons' claims of the state's Brady violations.

III. Brady Violation Analysis

In his claim, Mr. Clemons asserts that the state willfully violated Brady by failing to disclose the Weeks evidence to the defense. Brady holds that " the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment,

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irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. Brady was extended to hold that prosecutors have a duty to disclose Brady material that is not conditioned on a defendant's request for such material. Banks v. Dretke, 540 U.S. 668, 696, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (" A rule thus declaring 'prosecutor may hide, defendant must seek,' is not tenable in a system constitutionally bound to accord defendants due process." ). To prevail on his Brady claim, Mr. Clemons must show that: (1) the evidence at issue is favorable to him either because it is exculpatory or impeaching; (2) the evidence was, either willfully or inadvertently, suppressed by the state; and (3) he suffered prejudice as a result of the state's suppression. Woodworth, 396 S.W.3d at 338 (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).

In determining the materiality of the evidence to guilt or punishment and, therefore, prejudice, it is not required that the disclosure of the suppressed evidence would have ultimately resulted in the defendant's acquittal. Woodworth, 396 S.W.3d at 338; Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A defendant is prejudiced by the suppressed evidence if the " favorable evidence is material" and " there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles, 514 U.S. at 433 (internal quotations omitted). According to the United States Supreme Court:

The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government's evidentiary suppression undermines confidence in the outcome of the trial.

Kyles, 514 U.S. at 434 (internal quotations omitted); see also Woodworth, 396 S.W.3d at 338.

A. The Warren Weeks Evidence

In seeking habeas relief, Mr. Clemons asserts that the state violated his due process rights pursuant to Brady when it failed to disclose to the defense Mr. Weeks' observations of the injury to Mr. Clemons' face and the pretrial release form he prepared stating that Mr. Clemons had a " bump" or " bruise" on his face. Though Mr. Weeks was endorsed as a witness by the state in a memorandum sent to Mr. Clemons' counsel on September 16, 1992, the state failed to include any information regarding Mr. Weeks' observation of Mr. Clemons' injury or his record of the injury on the pretrial release form. For Mr. Clemons to prevail on his Brady claim, he is required to show that the Weeks evidence was favorable to his defense; that it was suppressed by the state; and that its suppression was prejudicial. Woodworth, 396 S.W.3d at 338 (citing Strickler, 527 U.S. at 281-82).

B. Evidence Favorable to the Defense

The first Brady prong is whether the evidence of Mr. Weeks' observation of an injury to Mr. Clemons' face and his report documenting that observation was favorable to the defense either because it is exculpatory or impeaching. Evidence is exculpatory if it is " material either to guilt or to punishment[.]" Brady, 373 U.S. at 87. Impeachment evidence is evidence that " affect[s] [the] credibility" of a witness.

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Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). It is favorable to the accused " [w]hen the reliability of a given witness may well be determinative of guilt or innocence." Id. (internal quotations omitted). To be favorable, the evidence should " ha[ve] some weight" with a " tendency" to be favorable. Kyles, 514 U.S. at 451. The master determined that Mr. Clemons had presented substantial evidence that the Weeks evidence was favorable to the defense. In reaching this conclusion, the master found especially significant this Court's findings in its review of Mr. Clemons' conviction and sentence in his direct appeal and the overruling of his motion for post-conviction relief.

During Mr. Clemons' suppression proceedings, he claimed that the police used physical force to coerce his confession, but his evidence supporting his claims was only the testimony of his family members and attorney and was without the benefit of testimony from an unrelated witness who was employed by the state. Clemons, 946 S.W.2d at 218. This Court, in rejecting Mr. Clemons' assertion, emphasized the significance of the evidence presented and the testimony heard at the hearing on Mr. Clemons' motion to suppress his confession. Id. Specifically, this Court found that Mr. Clemons' witnesses could " not demonstrate either when or how [he] incurred any injury" because of: (1) the delayed timing of the witnesses' observations of Mr. Clemons' injury and (2) the credibility of the witnesses testifying on Mr. Clemons' behalf. Id.

First, this Court found the fact that the majority of witnesses testifying that they had observed injuries to Mr. Clemons' face following his interrogation by the police had seen Mr. Clemons " some 48 hours or more" after the interrogation, making it difficult to establish when or how the injury occurred. Id. The only testimony in Mr. Clemons' favor based on an earlier observation came from his former attorney, Michael Kelly, who had seen Mr. Clemons approximately 14 hours after Mr. Clemons' interrogation had ended. Id. Mr. Kelly stated that he had observed injuries to the right side of Mr. Clemons' face at that time. Id. The Court concluded, however, that Mr. Kelly's testimony was impeached by the testimony of Officer Williams, who had seen Mr. Clemons shortly before Mr. Kelly and who testified that he did not observe any sign of injury. Id. Second, though Mr. Clemons' family offered corroborating testimony of his injury, this Court noted that " [t]he trial court had the opportunity to judge the credibility of the witnesses and obviously found the state's witnesses' testimony more credible than [Mr. Clemons']." Id.

Based on this Court's reliance on the witnesses' testimony and its emphasis on the timing and credibility of those witnesses' observations of Mr. Clemons, the master determined that " the testimony by [Mr. Weeks] that he saw Mr. Clemons less than three hours after he was booked, and more than eight hours before Williams, could serve to contradict Williams" and impeach Mr. Williams' credibility. The master reached this conclusion especially " in light of the fact that -- unlike the other defense witnesses who testified for Clemons on this issue -- Weeks had no ties to Clemons." The master noted that Mr. Weeks' testimony would have lent substantial credibility to Mr. Clemons' claim that his confession was coerced because Mr. Weeks was a witness not related to Mr. Clemons and was without apparent cause to fabricate his observations. This is significant.

Much has been made of the fact that Mr. Williams was the ex-husband of a cousin of

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Mr. Clemons' mother. Little has been made of the fact that Mr. Williams was employed by the city of St. Louis as a police officer. In contrast, Mr. Weeks was employed by the state as a bond investigator for the board of probation and parole, so he was the only witness regarding Mr. Clemons' injury who did not have a potential bias either in favor of Mr. Clemons or in favor of the St. Louis police. Mr. Weeks' testimony was not, therefore, merely cumulative of the testimony of Mr. Clemons' family members and attorney. Evidence is not cumulative " when it goes to the very root of the matter in controversy or relates to the main issue, the decision of which turns on the weight of the evidence." Black v. State, 151 S.W.3d 49, 56 (Mo. banc 2004) (internal quotations omitted). Mr. Weeks' testimony offered an independent corroboration of Mr. Clemons' allegation that the police beat him in which the credibility of this allegation turned exclusively on the weight of the evidence presented. See id.; see also State v. Perry, 879 S.W.2d 609, 613 (Mo. App. 1994).

In light of the deference given to the master's credibility findings, there is substantial evidence to support the master's conclusion that the undisclosed evidence from an objective, impartial witness corroborating Mr. Clemons' testimony was favorable to Mr. Clemons. Mr. Weeks' testimony would have provided the most immediate account of Mr. Clemons' physical appearance following his interrogation. The evidentiary value of the most immediate account of Mr. Clemons' appearance was made evident on direct appeal when this Court ultimately concluded that because Mr. Williams' observation of Mr. Clemons took place before Mr. Kelly's, Mr. Williams impeached Mr. Kelly. The credibility of the state's witnesses is further discredited by the evidence of the misleading description of Mr. Weeks' pretrial release report in the IAD report, the conduct of Mr. Weeks' supervisor and the prosecutor in attempting to convince Mr. Weeks to change his report, and the subsequent alteration of Mr. Weeks' report. Again, the courts must " consider the effect of all of the suppressed evidence along with the totality of the other evidence uncovered following the prior trial." Woodworth, 396 S.W.3d at 345. This evidence, considered in the totality of the circumstances, supports the master's conclusion that Mr. Weeks' observations of Mr. Clemons' injury, which occurred more than eight hours before Mr. Williams' observations, and his report would be favorable to corroborate Mr. Clemons' testimony and impeach Mr. Williams' testimony. Additionally, this evidence may have led the trial court to sustain Mr. Clemons' motion to suppress his confession.

Mr. Clemons' confession included the only direct evidence that he was on the platform below the bridge when the sisters were pushed into the water, as well as evidence that the rapes were planned, the Kerry sisters were repeatedly struck on the face during the rapes, Mr. Richardson forced one of the sisters to perform oral sex, and both sisters were conscious and aware of what was happening, all of which likely would have influenced the jury's decision in sentencing Mr. Clemons to death. Though the state presented circumstantial evidence that Clemons was on the platform,[21] " [a] confession is like no

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other evidence" because it " is probably the most probative and damaging evidence that can be admitted against [a defendant]." Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (internal quotations omitted). Moreover, a defendant is prejudiced by a coerced confession admitted into evidence " [p]recisely because confessions of guilt, whether coerced or freely given, may be truthful and potent evidence[.]" Lego v. Twomey, 404 U.S. 477, 483, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). In admitting a coerced confession into evidence, a defendant is " compelled to condemn himself by his own utterances" in violation of his constitutional right to due process of law. Id. at 485.

Certainly, evidence that may have resulted in the trial court suppressing Mr. Clemons' damaging confession is evidence favorable to Mr. Clemons because it may have made " the difference between conviction and acquittal," United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985), or a death sentence and a sentence of life without parole. Contrary to the argument in the dissent, the Weeks evidence need not be sufficient to produce this result but need only be such that if used effectively " would have had some weight and its tendency would have been favorable" to Mr. Clemons. Kyles, 514 U.S. at 451.

Additionally, even if the trial court were to continue to deny Mr. Clemons' motion to suppress, the Weeks evidence would be favorable to the defense at trial because it may have led the trial court to overrule the state's motion in limine to prohibit argument in closing by defense counsel that the police beat Mr. Clemons to coerce his confession. Before closing argument, Mr. Clemons stated he intended to argue " that Clemons' face was swollen after the interrogation, and he was seen by a number of people, and . . . Cummins said he got hit." The state objected, arguing that because the officers denied hitting Mr. Clemons and because Mr. Clemons did not take the stand to refute the officers, there was no reasonable inference that the police beat Mr. Clemons during the interrogation. The court agreed, stating " there's no evidence that the police [beat Mr. Clemons]" because " he could have been hurt anywhere along the line."

But, if Mr. Clemons had called Mr. Weeks to testify at trial regarding his observations and record of Mr. Clemons' injury on the pretrial release form and the efforts of the supervisor and the prosecutors to convince Mr. Weeks to change his report, the Weeks evidence would have been significant to the court in its ruling. The Weeks evidence included Mr. Weeks' observations and record of Mr. Clemons' injury; Mr. Weeks' testimony that, after a conversation with his boss, Mr. Lukanoff, Mr. Weeks believed the police caused Mr. Clemons' injury; his conversations with his supervisor and the prosecutor during which ...


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