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State v. Johnson

Court of Appeals of Missouri, Eastern District, First Division

December 24, 2019


          Appeal from the Circuit Court of the City of St. Louis. Hon. Elizabeth B. Hogan

          Before Robert M. Clayton III, P.J., Robert G. Dowd, Jr., J. and Roy L. Richter, J.

          PER CURIAM.

         This is the first case challenging a conviction based on an investigation by the recently-established Conviction Integrity Unit of the City of St. Louis Circuit Attorney's Office. Following an investigation into Lamar Johnson's 1995 murder conviction, Circuit Attorney Kimberly Gardner filed a motion for new trial claiming there was newly discovered evidence demonstrating his innocence. The trial court-concerned with potential problems arising from this unique scenario-sua sponte appointed the Attorney General to appear on the State's behalf. Ultimately, the court found that it lacked authority to entertain the motion for new trial because the State was not permitted to file such a motion and, in any event, it was untimely. The court dismissed the motion, and this appeal followed. Despite the importance of this case of first impression, the orders challenged on appeal are not appealable. Though we must dismiss the appeal, we transfer the case to Missouri Supreme Court pursuant to Rule 83.02.


         Johnson was convicted after a jury trial in the City of St. Louis on one count of murder in the first degree and one count of armed criminal action for the shooting death of Marcus Boyd. He was sentenced to life in prison without the possibility of parole. Judgment was entered on that conviction and sentence on September 25, 1995. That judgment, and the judgment denying Johnson's Rule 29.15 post-conviction motion after an evidentiary hearing, were affirmed in 1999. State v. Johnson, 989 S.W.2d 238 (Mo. App. E.D. 1999) (per curiam). Shortly thereafter, Johnson filed a petition for writ of habeas corpus in federal court, which was denied in 2003. See Johnson v. Luebbers, 4:00CV408CAS/MLM (United States District Court for the Eastern District of Missouri). In 2004 and 2005, Johnson sought and was denied writs of habeas corpus in the State courts. See Johnson v. Dwyer, 04CV746835 (33rd Judicial Circuit) and State ex rel. Johnson v. Dwyer, SC86666 (Missouri Supreme Court).

         The Circuit Attorney established the Conviction Integrity Unit in 2017 and began investigating Johnson's conviction in 2018. On July 19, 2019, the Circuit Attorney filed a motion for new trial on behalf of the State pursuant to Rule 29.11 "based upon evidence of prosecutorial misconduct that affected the reliability of the verdict and newly discovered evidence of actual innocence." Alternatively to granting a new trial, the motion requested a hearing on the newly discovered evidence. The motion asserted four grounds for relief: (1) newly discovered evidence of innocence, including the confessions of two other men who admitted to shooting Boyd and stated Johnson was not involved; (2) newly discovered evidence of perjury by material witnesses, including the sole eyewitness's recantation of his identification of Johnson as the shooter and false police testimony regarding Johnson's alibi location; (3) the State's repeated failure to disclose Brady[1] material, including evidence that the sole eyewitness was paid to identify Johnson and another witness's extensive criminal history and incentive for testifying; and (4) the State's knowing presentation of false and perjured testimony at Johnson's trial. Johnson joined and adopted the State's motion for new trial. Shortly thereafter, the trial court-sua sponte and initially without explanation-entered an order appointing the Attorney General "to appear on behalf of the State" in this case. The court also ordered briefing on the issue of its authority to entertain the motion for new trial.

         The Attorney General and the Circuit Attorney both filed briefs on behalf of the State, but took opposing positions: the Attorney General argued that the Circuit Attorney had no power to file the motion for new trial and the trial court had no jurisdiction to consider it at this late date, and the Circuit Attorney argued that she had a duty to file the motion under these circumstances despite the timelines and the court had implied authority to consider it. Johnson joined the Circuit Attorney's brief. A group of prosecutors from 34 jurisdictions around the country led by the St. Louis County Prosecuting Attorney- many of whom oversee CIUs in their respective offices-filed an amicus brief in the trial court in support of the Circuit Attorney's position.

         The trial court ultimately entered an order dismissing the motion for new trial, finding it lacked authority to entertain the motion. The court first addressed whether the State was permitted to file a motion for new trial. It found that Rule 29.11 "is silent as to which party or parties may file such a motion" and found no other authority for the Circuit Attorney to file such a motion on the State's behalf. Regardless, the court said, even if a motion for new trial could be filed by the State, the motion filed in this case was untimely. Rule 29.11 motions, the court noted, are due at most 25 days after the return of the verdict, and this motion was filed decades after the verdict and judgment in this case. The trial court also found that it did not have implied authority to consider the State's untimely motion and it was bound by Rule 29.11 and the timelines therein. The court rejected arguments that those timelines could be waived by the party filing the motion or that they only applied when a defendant filed a motion for new trial. Likewise, the trial court found no merit to the contention that it could review Johnson's conviction under Rule 29.12 because according to State ex rel. Zahnd v. Van Amburg, 533 S.W.3d 227, 230 (Mo. banc 2017), a trial court may only review plain errors resulting in manifest injustice or a miscarriage of justice under Rule 29.12 prior to sentencing. Moreover, to the extent CIUs in other jurisdictions have obtained relief for wrongfully-convicted defendants, the court noted they may have been acting under a statute authorizing that relief, citing to numerous provisions from other states permitting a defendant to petition a trial court for relief based on actual innocence. But, the court said, "the Missouri General Assembly has failed to pass such enabling legislation for circuit courts."

         In short, the trial court concluded that when the sentence was imposed in this case in 1995, the trial court's jurisdiction over the matter was exhausted and none of the sources cited by the Circuit Attorney provided authority for the trial court to consider a motion for trial at this late date. The court pointed out that Johnson was not without a remedy in this case, noting the possible availability of habeas relief based on his claim that the State failed to disclose exculpatory or impeaching evidence.[2] "In fact," the court added, Johnson "has unsuccessfully sought habeas corpus relief raising many of the same claims he raises here, multiple times."

         At the parties' request, the trial court also set forth an explanation for why it had sua sponte appointed the Attorney General. The trial court cited its concern about "problematic conduct" by the Circuit Attorney and The Innocence Project, which represented Johnson in these proceeding, noting the improper contact with jurors from Johnson's trial and the potential conflict of interest attending the CIU's review of a previous circuit attorney's conduct. The trial court found it necessary under these unusual circumstances to appoint the Attorney General "to protect the integrity of the legal process." The court clarified that the order appointing the Attorney General did not disqualify the Circuit Attorney or relieve her of any obligations; instead it was meant only to direct the Attorney General to give input on the issue of the court's authority.

         Notices of appeal were filed by both the Circuit Attorney on behalf of the State and by Johnson. The Attorney General filed a notice of dismissal of the State's appeal under Rule 30.13. The Circuit Attorney and Johnson opposed the dismissal. Because only the Attorney General "shall appear on behalf of the [S]tate" in appeals, this Court permitted the Attorney General to dismiss the State's notice of appeal filed by the Circuit Attorney. See Section 27.050 of the Missouri Revised Statutes. Thus, we are left with only Johnson's appeal, in which the State is the respondent. The Circuit Attorney was allowed to remain in the case as an intervenor in Johnson's appeal.[3] The only two rulings Johnson appeals from in this case are the trial court's order appointing the Attorney General and the trial court's order dismissing the motion for new trial. These orders are not appealable.

         Statutory Authority for Appeal

         "No right of an appeal exists without statutory authority." State v. Craig, 287 S.W.3d 676, 679 (Mo. banc 2009). Section 547.070 governs the defendant's right to appeal in criminal cases: "In all cases of final judgment rendered upon any indictment or information, an appeal to the proper appellate court shall be allowed to the defendant." Final judgments occur when the court enters a judgment of guilt and sentence. Craig, 287 S.W.3d at 679. Here, the final judgment was entered in 1995. Johnson does not purport to appeal from that 1995 judgment, but from orders of the trial court entered decades later. "Orders entered in criminal cases after the judgment has become final which deny motions requesting various types of relief are not appealable." State v. Payne, 403 S.W.3d 606, 607 (Mo. App. S.D. 2011); see also State v. McCauley, 496 S.W.3d 593, 595 (Mo. App. S.D. 2016) (collecting cases) ("Nearly all rulings ...

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