Kern v. State

507 S.W.2d 8, 1974 Mo. LEXIS 735

• Court: Supreme Court of Missouri
• Decided: March 11, 1974
• Docket: No. 57053
• Status: Published

Opinions

BARDGETT, Presiding Judge.

Movant-appellant Joe Allen Kern (hereafter movant), appeals from the Circuit Court judgment denying relief sought by movant’s 27.26 motion following an eviden-tiary hearing. The motion sought the vacation of the judgment of conviction of movant of assault with intent to kill with malice, a felony, for which he received a 25-year sentence. Notice of appeal was filed prior to January 1, 1972. This court has jurisdiction. Mo.Const.Art. V, § 31, 1945 as amended, V.A.M.S.

The judgment which movant seeks to set aside was affirmed by this court on direct appeal. See State v. Kern, 447 S.W.2d 571 (Mo.1969) for facts and opinion. Thereafter the instant motion was filed; counsel was appointed for movant and an eviden-tiary hearing was held. Findings of fact were entered by the trial court and relief was denied.

On November 10, 1967, between 9:00 and 9:30 a. m., one Billy Wayne Myers, an inmate of the Missouri Training Center for Men at Moberly, Mo. (hereafter M.T. C.) was stabbed in the abdomen. This took place within the prison compound between the gym and the chapel. Myers identified movant as his assailant. Movant was also an inmate of that prison on the occasion in question. At the criminal trial Myers testified that Billy Boyer, another inmate, was present and assisted movant in the stabbing and that a fourth inmate, whose name Myers did not know, but whom Myers described as a short colored fellow who was supposed to be a boxer, joined the group and was standing about five or six feet from Myers when the stabbing took place. Myers could not identify the fourth person by name, but stated that he (the fourth person) would had to have seen the stabbing. Myers did not see the unidentified witness after the stabbing. He believed he told the prison Superintendent, Mr. Haynes, about the unidentified inmate witness. Myers was the only witness who testified to the actual stabbing although another witness testified to circumstances implicating movant. Movant testified in his defense and denied the stabbing, stating he was not at the place where the stabbing took place but was at or near the handball court. Six other inmates testified in support of movant’s alibi.

Subsequent to movant’s conviction mov-ant learned that the unidentified Negro inmate who was stated by the victim, Myers, to have been the fourth person present at the stabbing was an inmate registered under the name of Tommy Nelson Brown, a Negro, 5'8" tall and a boxer and whose true name, as reflected in the records of the Department of Corrections, is Joseph Brown.

It is movant’s contention that the prosecuting attorney and the officials at M.T.C. knew that this inmate was a possible eyewitness to the stabbing; that this information was withheld from movant and defense counsel; that this inmate would have testified that movant did not stab Myers and that, therefore, movant was denied due process under the U.S.Const. Amend. XIV as interpreted by the Supreme Court of the United States in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215, and is entitled to have this conviction set aside.

The Superintendent at M.T.C. testified at the Rule 27.26 hearing and stated that on November 14, 1967, four days after the stabbing, he wrote a letter to the Deputy Director of the Department of Corrections and sent a copy of the letter to the prosecuting attorney, who had charge of this prosecution. The letter stated, “There is a rumor that a colored inmate came to the rescue of Myers. He is Tommy Nelson Brown, 07976.” The Superintendent had no recollection of and generally denied ever speaking to Tommy Nelson Brown about the matter and did not recall the source of the rumor. On or about November 14, 1967 movant was transferred from M.T.C. to the Mo. State Penitentiary, (hereafter M.S.P.) at Jefferson City. On January 22, 1968, Tommy Nelson Brown was transferred to Church Farm, a facility of the M.S.P. near Jefferson City. Sometime before the criminal trial of April 4, 1968 the Superintendent received two writs of habeas corpus issued by the circuit court requiring the production at movant’s trial of persons named therein “by whatever names they may be known . . . ” One of the names appearing on the writ was Joseph Brown. The Superintendent had the records checked and produced at trial one Joseph Brown, Register No. 75527. When this Joseph Brown appeared in court, movant said that he was the wrong inmate.

The Superintendent testified that when an inmate leaves M.T.C. to either go home or to another institution, the file leaves M.T.C. except that they maintain a cardex file. This card has the inmate’s photograph, his chart, and where he went. In addition, there is another card maintained that has his aliases, his name, and how he was released.

Tommy Nelson Brown (true name — Joseph Brown) No. 07976 was not produced at the trial. According to the testimony of defense counsel and movant, the reason the name Joseph Brown was listed on the writ was because movant believed that this man could, along with other inmates whose names were listed, assist in substantiating his contention that he was not at the place where the stabbing was committed during the time it was done. They testified that they had no knowledge that there was an inmate, who saw the stabbing, named Brown. Movant testified that it was some time after his conviction that he learned that an inmate known to him as Joseph Brown (registered as Tommy Nelson Brown) saw the stabbing and would testify that movant did not stab the victim. Mov-ant’s trial counsel asked the prosecutor for the names of all possible eyewitnesses and that the prosecutor did not tell him about Tommy Nelson Brown.

The prosecutor testified that he had received the letter from the Superintendent stating that there was a rumor that Tommy Nelson Brown came to the rescue of Myers. He did not interview Tommy Nelson Brown but relied upon the prison authorities to do the investigation as he had no staff. The prosecutor remembered that he had a call from the Superintendent shortly after receiving the letter and was told that “It has already been checked out and Tommy Nelson Brown denied being anywhere near the place.” The prosecutor then testified “I had no more interest in the rumor. I assumed it to be an unfounded rumor or I assumed that Tommy Nelson Brown was not willing to tell what he— that he may have seen it. As far as I was concerned, it was an item that could serve nobody any useful purpose and it dropped from my memory.” He did not inform defense counsel of the contents of the letter, to his knowledge.

At the time of the stabbing there was an inmate registered as Tommy Nelson Brown, No. 07976, true name — Joseph Brown, 5'8" tall at M.T.C. He had previously been incarcerated in the Department of Corrections Algoa Reformatory under the name of Joseph Brown. It is routine to identify an inmate by the name under which convicted for the current commitment even though it is known that such is not his true name. This inmate had been received at M.T.C. under the name of Tommy Nelson Brown because that is the name under which he had been currently convicted.

The recreation director at M.T.C. testified that he knew inmate No. 07976 as Joe Brown; that he had requested of the Assistant Superintendent that Joe Brown, No. 07976, be permitted to engage in daily boxing training; that this man was addressed by others at M.T.C. as Joe Brown, and that he had never known an inmate there by the name of Tommy Nelson Brown.

The Superintendent and other prison officials testified that inmates usually hesitate to or refuse to give information that would implicate another inmate in a violation of the rules, and that this is ordinarily done by a denial of any knowledge of the incident. It would not be unusual for an inmate to respond to questions concerning a serious assault by saying “I don’t know anything about it” or “I didn’t see anything.”

The deposition of Tommy Nelson Brown (true name — Joseph Brown) was taken in July, 1970 and was read into evidence in the Rule 27.26 hearing. He testified that his name was Joseph Brown, a Negro; that he had been previously convicted and served time at the Department of Corrections facility at Algoa in the early 1960s as Joseph Brown; that he was subsequently convicted under the name of Tommy Nelson Brown and his inmate number was 07976; that he engaged in a boxing program while at Algoa and also while at M. T.C. later; that he was called either Brown or Joe Brown at M.T.C. but no one called him Tommy Nelson Brown or Tom Brown or Tommy Brown; that he was at M.T.C. in November, 1967 and was an eyewitness to the stabbing of Myers; that movant did not stab Myers; that he denied witnessing this stabbing to the Superintendent within a week after the stabbing and subsequently, but also within that first week, told the Assistant Superintendent that he did see the stabbing and that mov-ant did not do it; that the Assistant Superintendent told him that he, the Assistant Superintendent, was in contact with the prosecutor and that Brown would hear from him later; that Brown mentioned this again to the Assistant Superintendent but Brown never heard any more of it prior to the conviction of movant in April, 1968. After the movant was convicted was the first time Brown ever talked to movant since the stabbing and that was at the M. S.P. in Jefferson City, at which time Brown told movant that he had seen it and that movant did not do it and he would so testify.

The Assistant Superintendent testified that he took no part in the investigation of the stabbing of Myers, or at least that he did not recall doing so, other than to perhaps forward material from the officers on to the Superintendent; that he did not remember interviewing any persons who were allegedly eyewitness to the stabbing; that he may have interviewed somebody but he did not recall doing so; that if he had done so he would have forwarded the information to the Superintendent.

There are certain facts that are undisputed. They are that the stabbing took place within a prison compound in which all of the inmates, and therefore all witnesses, (except employees) are totally under the control of the State of Mo.; that free access to a prison or prisoners is not allowed; that the prosecuting attorney received a written communication from the Superintendent of the prison within one week of the assault that it was rumored in the prison that Tommy Nelson Brown, No. 07976, came to the defense of the victim, and therefore was a possible witness to the assault; that all investigation was done by prison personnel as the prosecutor had no staff to perform an investigation; that the defense attorney requested of the prosecutor the names of all possible witnesses; that the prosecutor did not give the defense attorney the name of Tommy Nelson Brown even though the prosecutor’s file contained the information referred to supra which indicated that Tommy Nelson Brown might be an eyewitness; that Tommy Nelson Brown was an inmate at M.T.C. at the time of the assault on Myers; that Tommy Nelson Brown, in July, 1970, did give exculpatory testimony in that he stated he saw the stabbing and that movant did not stab the victim; that the prison officials and the prosecutor recognized that it is usual for an inmate to deny seeing an offense committed because inmates do not want to get involved, even though the inmate did in fact see the occurrence; that Tommy Nelson Brown’s true name is Joseph Brown and the index system at M.T.C. so showed on a separate card even though the inmate had been transferred from M.T.C. on January, 1968 to M.S.P.-Church Farm near Jefferson City, Mo.; that the writ of habeas corpus which was issued from the court ordering the production of certain named inmates contained the name Joseph Brown and ordered them produced by whatever names they may be known; that a different Joseph Brown was produced at the criminal trial in April, 1968 and the correct Joseph Brown (Tommy Nelson Brown) was not produced because the prison officials or clerks.at M.T.C. did not check their full index system for names of designated inmates other than the names shown on the writ; that the testimony of Tommy Nelson Brown (true name — Joseph Brown), to the extent that it concerned the assault upon Myers and the non-participation of movant is material and relevant exculpatory evidence, and, is preserved in deposition form.

It does not appear to be disputed that movant did not know, prior to his criminal trial, that the man known to him as Joseph Brown (registered as Tommy Nelson Brown) was supposed to be an eyewitness to the assault. It appears to be accepted that the reason movant gave the name Joe Brown to his attorney to incorporate in the writ was that movant believed that he (Brown), and several others who were listed saw movant on the handball court during the time the assault took place and would support movant’s alibi, but not that any one of them saw the assault. Six inmates did so testify.

In the State’s closing argument the prosecutor told the jury, “ * * * I would have been guilty of very improper conduct if I had withheld from the witness chair a man who I understood or even remotely believed was an eyewitness to the case. It is absolutely necessary to put on all the testimony and evidence that I have knowledge of and not to withhold any.”

Movant’s position is, among others, that Brady v. Maryland, 372 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) requires that this conviction be set aside because the prosecutor did not give the name of Tommy Nelson Brown to the defense counsel when requested to do so.

The court need not reach the question of whether Brady requires that the sentence and judgment be vacated as the issues in this case are controlled by and can be decided under existing Missouri law.

In State v. Berstein, 372 S.W.2d 57 (Mo.1963) the court held that it was the right and obligation of defense counsel to fully investigate the case and to interview and examine as many as possible of the eyewitnesses to the offense. The court in Berstein, supra, reversed and remanded the case for a new trial because the prosecution prevented defense counsel from interviewing a witness who was being held in jail and thereafter the trial court overruled the defense motion to interview the witness.

It seems evident that the defense attorney in the instant case could not interview a witness such as Tommy Nelson Brown who was being held in prison unless the prosecution, in response to the defense request, told defense counsel that such a potential witness existed. In the circumstances of this case, where the prison officials and the prosecutor acknowledge that inmates are very reluctant to admit seeing what they actuallly saw, it was not the prerogative of the prosecutor to finally determine that the witness who was rumored to have seen the offense did not see it, and on that determination refuse to divulge the name to the defense.

Additionally, the prosecutor argued to the jury that it was his obligation to bring in all witnesses who were even remotely believed to have been an eyewitness. In State v. Thompson, 396 S.W.2d 697 (Mo. banc 1965) the court reversed and remanded for new trial a conviction of murder in the first degree because there were certain shell casings found at the scene which were determined to have come from a gun other than the defendant’s gun, which shell casings were not produced in evidence, and the prosecutor argued to the jury that shell casings were not found at the scene. The court held the argument of the prosecutor grossly exaggerated the situation. The court held that the non-production and the argument placed defendant in a constitutionally unfair position and for that reason the judgment and sentence were vacated.

The instant case presents a situation that is a combination of State v. Berstein, supra, and State v. Thompson, supra, and additionally involves the apparent confusion with respect to the prison records and the inadvertent non-production of the inmate Joseph Brown who was registered under the alias of Tommy Nelson Brown. The court, of course, neither has nor indicates any view with respect to the credibility of Brown’s testimony. Had he testified at trial that question would have been for the jury as it will be on retrial.

For the reasons stated supra the court holds that movant was placed in a constitutionally unfair position and therefore the judgment and sentence must be vacated and a new trial ordered. State v. Thompson, supra.

The judgment of the trial court denying defendant’s motion to vacate is reversed for the reasons stated herein; the original judgment of conviction and sentence are vacated and set aside, and the cause is remanded to the Circuit Court of Randolph County for a new trial.

PER CURIAM:

The Division One opinion by BARD-GETT, P. J., is adopted as the opinion of the Court en Banc.

MORGAN, J., concurs. DONNELLY, C. J., concurs in separate concurring opinion filed. SEILER, J., concurs and concurs in separate concurring opinion of DONNELLY, C. J. FINCH, J., dissents in separate dissenting opinion filed. HOLMAN and HENLEY, JJ., dissent and concur in separate dissenting opinion of FINCH, J.