State of Missouri Ex Rel., Andrew Bailey v. The Honorable Ryan W. Horsman, Circuit Judge, and Jane Gann, Circuit Clerk
This text of State of Missouri Ex Rel., Andrew Bailey v. The Honorable Ryan W. Horsman, Circuit Judge, and Jane Gann, Circuit Clerk (State of Missouri Ex Rel., Andrew Bailey v. The Honorable Ryan W. Horsman, Circuit Judge, and Jane Gann, Circuit Clerk) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
In the Missouri Court of Appeals Western District
STATE OF MISSOURI EX REL., ) ANDREW BAILEY, ) ) Relator, ) WD87305 ) V. ) OPINION FILED: ) OCTOBER 22, 2024 THE HONORABLE ) RYAN W. HORSMAN, ) CIRCUIT JUDGE, AND ) JANE GANN, CIRCUIT CLERK, ) ) Respondents. )
ORIGINAL PROCEEDING IN CERTIORARI
Before Writ Division: Cynthia L. Martin, Presiding Judge, Karen King Mitchell, Judge and Thomas N. Chapman, Judge
This is an original proceeding in certiorari to review the record in Hemme v.
McBee, Circuit Court of Livingston County, Missouri, Case Number 23LV-CC00008,
where the Honorable Ryan W. Horsman ("habeas court") issued a writ of habeas corpus in favor of Sandra L. Hemme ("Hemme").1 The writ of habeas corpus vacated Hemme's
June 4, 1985 conviction of capital murder which had been entered in the Circuit Court of
Buchanan County, Missouri, in Case Number CR380-35F, following the November 12,
1980 homicide of P.J. ("victim").2
After a thorough review, we refuse to quash the habeas record. Hemme's
conviction of capital murder is vacated, and Hemme is ordered discharged subject to
retrial as set forth in this Opinion.
Factual and Procedural History3
Victim was murdered in her apartment in St. Joseph, Missouri on November 12,
1980, sometime between 5:00 p.m. and 7:00 p.m. Victim was stabbed, strangled, and
sexually assaulted. On the day of her murder, victim had worked at the St. Joseph Public
Library between 8:00 a.m. and 5:00 p.m. Victim's last known sighting was at
1 At the time Hemme filed her petition for writ of habeas corpus, she was incarcerated in the custody of the Warden of the Chillicothe Correctional Center in Livingston County, Missouri. A petition for writ of habeas corpus must be filed "in the first instance . . . to a circuit or associate circuit judge for the county in which the person is held in custody" unless the person has been convicted of a capital crime and sentenced to death. Rule 91.02(a), (b). All Rule references are to Missouri Court Rules, Volume 1--State, 2023 unless otherwise noted. 2 Throughout this Opinion, we refer to non-party witnesses or crime victims by their initials or by less than their full names, instead of by use of their full names, as required by section 509.520, which became effective August 28, 2023. 3 A "writ of certiorari 'presents only questions of law on the record brought up by the return and does not permit consideration of issues of fact.'" State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001) (quoting State ex rel. Reorganized Sch. Dist. R-9 v. Windes, 513 S.W.2d 385, 390 (Mo. 1974)). We therefore summarize facts as found by the habeas court, and recite procedure as is reflected in the record brought up by the return. 2 approximately 5:00 p.m. when she was seen by an acquaintance driving alone in her
small, two-seater, white sports car in downtown St. Joseph. Victim had reported to co-
workers her intention to attend a meeting at 7:00 p.m. on the evening of her murder but
never arrived.
When victim did not report to work on November 13, 1980, her employer called
victim's mother, who went to victim's home at 1502 Riverside Road, Apartment 1.
Victim's apartment was a stand-alone residence, as the apartments where victim lived had
been converted from a "cabin-style" motel. Victim's mother discovered victim deceased,
nude, and lying in a pool of blood on the bedroom floor. A pillow had been placed over
victim's face, and her hands were bound behind her back with a telephone cord. Two
lengths of cut television antenna wire were on the floor next to victim's body. Two black
hairs were recovered from victim's bedsheet. There were no signs of forced entry into
victim's home.
The murder was covered extensively in the local press. A newspaper
photographer was allowed inside victim's home to document the crime scene. Publicly
disseminated photographs of the crime scene showed victim's floral bedspread, and the
pillow that had been over victim's face, as well as a large blood stain on the floor in the
bedroom. Victim's address was listed in printed news articles along with a photograph of
the exterior of victim's apartment. News articles also showed the location of victim's
apartment on the street. News articles published on November 14, 1980, contained
details about the crime scene including that victim had been found nude, with a pillow
over her head, with her hands tied behind her back with a telephone cord, with pantyhose
3 as a ligature tied around her throat, and with wounds to her head caused by both blunt and
sharp objects.
Though no physical evidence of any kind connected Hemme to victim, the murder,
or the murder scene, Hemme was questioned about the murder on November 28, 1980,
by Detective S.F. with the St. Joseph Police Department ("SJPD"). Detective S.F. was
assigned to the crimes-against-persons unit, and was tasked with following up on leads as
directed by his superiors. Detective S.F. testified during the habeas hearing that he was
not in charge of the investigation into victim's death, that several SJPD officers were
working assigned leads in connection with the murder, that it would be uncommon for
officers working leads to know all information that was being investigated by other
officers, and that the overall control of the investigation was in the hands of the SJPD
Chief of Police, R.H. ("Chief R.H.")
When Detective S.F. interviewed Hemme on November 28, 1980, she was
receiving in-patient care at St. Joseph State Hospital, a mental health facility, having been
involuntarily committed there on November 27, 1980. Detective S.F. was directed by his
superiors to interview Hemme in connection with victim's murder because Hemme was
found on November 25, 1980, in a nurse's home, with a knife. Hemme had been
receiving inpatient treatment at St. Joseph State Hospital in the days before victim's
murder and left the hospital against medical advice at about 1:05 p.m. on November 12,
1980, the day of victim's murder.
Detective S.F. observed Hemme to be "not totally cognizant of what was going
on," and that she "tended to wander when responding to questions." He found Hemme
4 difficult to follow, to be suffering from memory lapses, and unable to focus. Nursing
records reflect that Hemme had been injected with antipsychotic medication and a
sedative shortly before she was questioned. During the questioning, Detective S.F.
showed Hemme a single photograph of victim. Hemme said she may have gotten high
with victim and caught a ride from her in a small brown car the day she left the hospital
on November 12, 1980. Hemme also reported that she thought a man may have been in
the back seat of the car, but that she was "pretty spacey" and did not "really remember
much of anything." When asked where she went with victim, Hemme said she was not
sure, but maybe to Dearborn, Missouri. Detective S.F. ended the interview because he
felt it was not productive in light of Hemme's condition at the time.
On December 1, 1980, Detective S.F. again interviewed Hemme while she
remained involuntarily committed at St. Joseph State Hospital. This time, Hemme said
that after she left the hospital on November 12, 1980, she got picked up by a man and a
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In the Missouri Court of Appeals Western District
STATE OF MISSOURI EX REL., ) ANDREW BAILEY, ) ) Relator, ) WD87305 ) V. ) OPINION FILED: ) OCTOBER 22, 2024 THE HONORABLE ) RYAN W. HORSMAN, ) CIRCUIT JUDGE, AND ) JANE GANN, CIRCUIT CLERK, ) ) Respondents. )
ORIGINAL PROCEEDING IN CERTIORARI
Before Writ Division: Cynthia L. Martin, Presiding Judge, Karen King Mitchell, Judge and Thomas N. Chapman, Judge
This is an original proceeding in certiorari to review the record in Hemme v.
McBee, Circuit Court of Livingston County, Missouri, Case Number 23LV-CC00008,
where the Honorable Ryan W. Horsman ("habeas court") issued a writ of habeas corpus in favor of Sandra L. Hemme ("Hemme").1 The writ of habeas corpus vacated Hemme's
June 4, 1985 conviction of capital murder which had been entered in the Circuit Court of
Buchanan County, Missouri, in Case Number CR380-35F, following the November 12,
1980 homicide of P.J. ("victim").2
After a thorough review, we refuse to quash the habeas record. Hemme's
conviction of capital murder is vacated, and Hemme is ordered discharged subject to
retrial as set forth in this Opinion.
Factual and Procedural History3
Victim was murdered in her apartment in St. Joseph, Missouri on November 12,
1980, sometime between 5:00 p.m. and 7:00 p.m. Victim was stabbed, strangled, and
sexually assaulted. On the day of her murder, victim had worked at the St. Joseph Public
Library between 8:00 a.m. and 5:00 p.m. Victim's last known sighting was at
1 At the time Hemme filed her petition for writ of habeas corpus, she was incarcerated in the custody of the Warden of the Chillicothe Correctional Center in Livingston County, Missouri. A petition for writ of habeas corpus must be filed "in the first instance . . . to a circuit or associate circuit judge for the county in which the person is held in custody" unless the person has been convicted of a capital crime and sentenced to death. Rule 91.02(a), (b). All Rule references are to Missouri Court Rules, Volume 1--State, 2023 unless otherwise noted. 2 Throughout this Opinion, we refer to non-party witnesses or crime victims by their initials or by less than their full names, instead of by use of their full names, as required by section 509.520, which became effective August 28, 2023. 3 A "writ of certiorari 'presents only questions of law on the record brought up by the return and does not permit consideration of issues of fact.'" State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001) (quoting State ex rel. Reorganized Sch. Dist. R-9 v. Windes, 513 S.W.2d 385, 390 (Mo. 1974)). We therefore summarize facts as found by the habeas court, and recite procedure as is reflected in the record brought up by the return. 2 approximately 5:00 p.m. when she was seen by an acquaintance driving alone in her
small, two-seater, white sports car in downtown St. Joseph. Victim had reported to co-
workers her intention to attend a meeting at 7:00 p.m. on the evening of her murder but
never arrived.
When victim did not report to work on November 13, 1980, her employer called
victim's mother, who went to victim's home at 1502 Riverside Road, Apartment 1.
Victim's apartment was a stand-alone residence, as the apartments where victim lived had
been converted from a "cabin-style" motel. Victim's mother discovered victim deceased,
nude, and lying in a pool of blood on the bedroom floor. A pillow had been placed over
victim's face, and her hands were bound behind her back with a telephone cord. Two
lengths of cut television antenna wire were on the floor next to victim's body. Two black
hairs were recovered from victim's bedsheet. There were no signs of forced entry into
victim's home.
The murder was covered extensively in the local press. A newspaper
photographer was allowed inside victim's home to document the crime scene. Publicly
disseminated photographs of the crime scene showed victim's floral bedspread, and the
pillow that had been over victim's face, as well as a large blood stain on the floor in the
bedroom. Victim's address was listed in printed news articles along with a photograph of
the exterior of victim's apartment. News articles also showed the location of victim's
apartment on the street. News articles published on November 14, 1980, contained
details about the crime scene including that victim had been found nude, with a pillow
over her head, with her hands tied behind her back with a telephone cord, with pantyhose
3 as a ligature tied around her throat, and with wounds to her head caused by both blunt and
sharp objects.
Though no physical evidence of any kind connected Hemme to victim, the murder,
or the murder scene, Hemme was questioned about the murder on November 28, 1980,
by Detective S.F. with the St. Joseph Police Department ("SJPD"). Detective S.F. was
assigned to the crimes-against-persons unit, and was tasked with following up on leads as
directed by his superiors. Detective S.F. testified during the habeas hearing that he was
not in charge of the investigation into victim's death, that several SJPD officers were
working assigned leads in connection with the murder, that it would be uncommon for
officers working leads to know all information that was being investigated by other
officers, and that the overall control of the investigation was in the hands of the SJPD
Chief of Police, R.H. ("Chief R.H.")
When Detective S.F. interviewed Hemme on November 28, 1980, she was
receiving in-patient care at St. Joseph State Hospital, a mental health facility, having been
involuntarily committed there on November 27, 1980. Detective S.F. was directed by his
superiors to interview Hemme in connection with victim's murder because Hemme was
found on November 25, 1980, in a nurse's home, with a knife. Hemme had been
receiving inpatient treatment at St. Joseph State Hospital in the days before victim's
murder and left the hospital against medical advice at about 1:05 p.m. on November 12,
1980, the day of victim's murder.
Detective S.F. observed Hemme to be "not totally cognizant of what was going
on," and that she "tended to wander when responding to questions." He found Hemme
4 difficult to follow, to be suffering from memory lapses, and unable to focus. Nursing
records reflect that Hemme had been injected with antipsychotic medication and a
sedative shortly before she was questioned. During the questioning, Detective S.F.
showed Hemme a single photograph of victim. Hemme said she may have gotten high
with victim and caught a ride from her in a small brown car the day she left the hospital
on November 12, 1980. Hemme also reported that she thought a man may have been in
the back seat of the car, but that she was "pretty spacey" and did not "really remember
much of anything." When asked where she went with victim, Hemme said she was not
sure, but maybe to Dearborn, Missouri. Detective S.F. ended the interview because he
felt it was not productive in light of Hemme's condition at the time.
On December 1, 1980, Detective S.F. again interviewed Hemme while she
remained involuntarily committed at St. Joseph State Hospital. This time, Hemme said
that after she left the hospital on November 12, 1980, she got picked up by a man and a
woman driving a "78 or 79 model, very light blue, two[-]door car," and that she was
dropped off by them at the Dearborn, Missouri exit. Hemme claimed the man's name
was "Joe," and that he was around twenty-eight years of age, white, knock-kneed, double
jointed, about 5'8'' tall, weighing about 125 pounds, and with a thick, black mustache.
Hemme's description very closely resembled a man, Bobby C., who would tell police
months later that he had given Hemme a ride to the Dearborn, Missouri exit,
approximately 20 miles south of St. Joseph, after picking her up in downtown St. Joseph
on the afternoon of November 12, 1980. During the December 1, 1980 interview,
Hemme told Detective S.F. that the woman in the car was wearing all blue. Hemme told
5 Detective S.F. that after she was dropped off in Dearborn, she hitchhiked to Concordia,
Missouri (where Hemme's parents live), arriving there between 8:30 and 9:30 p.m.
Detective S.F.'s notes from the interview indicated that Hemme's statement was "not
consistent with other witness statements and reports, i.e. times and locations."
On December 2, 1980, Hemme was interviewed by Detective S.F. a third time.
She reported leaving the hospital at around 1:00 p.m. on November 12, 1980, and
claimed to have been picked up by a man and a woman in downtown St. Joseph. This
time, Hemme claimed the woman in the car was the same woman in the photograph that
Detective S.F. showed her on November 28, 1980, and claimed the woman was wearing a
"light blue suit." Victim would have been at work when Hemme claimed to have been
picked up by the man and woman. Victim was reported to have been wearing a black,
white, and grey three-piece suit when she left work on November 12, 1980. In this
statement, Hemme gave the name "Joe W."4 as the male driver of the vehicle. Hemme
claimed the woman introduced herself as "Pat,"5 that the three drove to a Skaggs
pharmacy, and then drove around more before stopping so the woman could go inside a
two-story red brick house. According to this statement, Hemme was then driven by Joe
W. to victim's home, where she waited in the car while Joe W. went inside with victim.
Joe W. returned to the car, according to Hemme, with blood on his shirt, and told Hemme
he had "killed the f***ing bitch." Hemme said she was then driven by Joe W. to an
4 Hemme gave a complete last name for "Joe W." though we are not including the last name here. 5 "Pat" is the shortened version of victim's first name. 6 overpass off of I-29, asked to perform a sex act, and then dropped off at Dearborn. Once
again, Detective S.F.'s notes taken during the interview observed that "[a]s before, . . .
Hemme's time reference and locations seemed inconsistent, so additional interviews will
be conducted."
On December 3, 1980, the eighth day of Hemme's involuntary commitment at St.
Joseph State Hospital, investigators took Hemme from the hospital to victim's apartment
where she was questioned a fourth time. Detective S.F. claimed that Hemme directed
them to victim's apartment. Hemme was not accompanied by any medical personnel, and
was gone from the hospital for nearly six hours. She did not receive her prescribed
antipsychotic medications while she was gone. Hemme was shown a photo lineup while
sitting in a police car, and identified Joe W. Hemme told investigators she knew about
"this incident because of ESP."
Detective S.F. took Hemme inside victim's now empty apartment. Detective S.F.
showed Hemme four photographs, which included images of victim's nude body; of
victim's hands bound behind her back with a telephone cord; of pantyhose around
victim's neck; of the flower print design of victim's bedspread and pillow; and of the two
lengths of television antennae wire on the floor above victim's head and by her side.
Detective S.F. claimed that Hemme then described how Joe W. committed the murder.
Hemme was taken to the police station where she gave a statement that contained a
significantly different version of events when compared to her previous statements. This
time, Hemme reported that victim was not a passenger in Joe W.'s car, and instead that
Joe W. was alone in the car when he picked Hemme up and drove Hemme to victim's
7 home. Hemme said she was inside victim's apartment when she witnessed Joe W.
sexually assault and stab victim upon her bed before dragging her body to the floor,
binding her wrists, and strangling her with pantyhose. Hemme also described details
about victim's home. She described a floral print pillow, an 8 x 10 graduation photo on
the wall, macramé on the couch, and a mahogany television set that stood on legs. She
also described a brown car in victim's driveway, and said that she observed a large white
cat walk into the house. No evidence ever confirmed that any of the items Hemme
claimed to have seen in victim's apartment were ever there, with the exception of the
floral print pillow that had been in the photograph Detective S.F. showed Hemme that
same day. Crime scene photographs of the interior of victim's small home, which
captured many angles of the home, did not show a graduation picture on the wall,
macramé on the couch, or a mahogany television set on legs. Crime scene photographs
showed a small television sitting atop a desk in victim's living room. Victim did not have
a cat, and instead had a small dog. Victim did not drive a brown car and instead drove a
small white, two-seater sports car, with no back seat.
On December 5, 1980, Detective S.F. questioned Hemme again. This time
Hemme claimed she cut television antennae wire for Joe W. to use to bind victim's hands.
She also described for the first time taking from victim's home a jacket, a blue and white
bandana, a Playgirl magazine, and a pair of red gloves, which she claimed to have left at
her parent's home in Concordia later that evening. These items had been retrieved by the
SJPD from Hemme's parent's home on December 1, 1980, and were catalogued into
evidence in victim's murder case on December 9, 1980.
8 On December 5, 1980, Hemme was arrested and charged with concealing an
offense. She was removed from St. Joseph State Hospital and placed in detention at the
Buchanan County jail. On December 5, 1980, Detective S.F. and other SJPD
investigators traveled to Topeka, Kansas to arrest Joe W., who was charged with capital
murder. Joe W.'s house was searched. No evidence linking Joe W. to victim's murder
was found.
Investigators quickly determined that Joe W. could not have murdered victim. He
was locked in a detoxification facility in Topeka, Kansas when victim was killed. The
capital murder charges against Joe W. were dismissed on December 10, 1980.
Hemme was questioned again on December 9, 1980. Detective S.F. told her that
Joe W. had a confirmed alibi and could not have participated in the crime. Hemme
reacted in disbelief and accused Detective S.F. of lying to her. Hemme said she was
going crazy. During the December 9, 1980 interview, Hemme repeatedly told
investigators that she did not remember the crime, but now claimed that victim picked her
up in downtown St. Joseph, Missouri, and took her back to victim's home so that victim
could "get cleaned up." Hemme expressed doubt about what happened, saying that "she
really didn't know if she killed [victim] or not." Detective S.F. later testified that a
written statement could not be taken from Hemme because of her emotional state.
Detective S.F. told a sheriff's deputy that Hemme had told him she attempted suicide
while being held at the Buchanan County jail. Detective S.F. told his commanding
officer that he could no longer question Hemme because he had reached his limit, was no
longer effective, and knew he was not "getting the truth."
9 Despite Detective S.F.'s expressed concern, Hemme was questioned again on
December 10, 1980. Detective S.F. did not participate in this interview. After speaking
with two SJPD detectives and an investigator for an undocumented amount of time, a
court reporter was brought in to take a statement from Hemme. The resulting transcribed
statement was relied on by the state as the "truth."6 Hemme v. State, 680 S.W.2d 734,
735 (Mo. App. W.D. 1984).
In the statement, Hemme claimed she was picked up by victim in downtown St.
Joseph shortly after she left the hospital, and that victim was driving a small brown car.
When asked how she knew victim, she claimed it was from the library. Hemme claimed
she told victim that she was on her way to Concordia, and that victim said she would give
Hemme a lift, only she was going to a class and wanted to go home and take a shower.
Hemme claimed she rode with victim to victim's house, and went inside and waited on
the couch while victim showered. Hemme claimed she then lost it and confronted victim
in the hallway after she got out of the shower, grabbed her by the throat and pushed her
into the bedroom where she hit her with "something." Hemme claimed she had a knife
with her in a black sheath that was on her belt or in her back pocket and that "I think I
stabbed [victim] with it, I don't know." Hemme then claimed she went back into the
living room and got the antenna wire from the television, which she then cut to use to tie
victim's hands, but it didn't work. Hemme claimed she went to the kitchen and "already
6 We noted in Hemme v. State, 680 S.W.2d at 735, that it appeared Hemme was first interrogated on December 5, 1980, based on a scant guilty plea hearing record. The habeas record establishes that Hemme was actually first interrogated on November 28, 1980. 10 had the knife from the kitchen," which she used to cut the phone cord. She claimed that
she then rolled victim over and tied her wrists. Hemme was asked to confirm if victim's
wrists were eight inches apart, and Hemme said "I think you are right, I don't know."
Hemme then said she tied pantyhose around victim's neck and pulled as hard as she
could. Hemme then said she threw a pillow over victim's face, and "ran a knife up her a
couple of times," referring to the handle. Hemme described victim's purse and reported
taking it with her when she left. Hemme once again reported taking a Playgirl magazine,
a CPO jacket, a pair of gloves, and a bandana from victim's apartment, and once again
reported seeing a white cat come into the apartment while she was leaving. Hemme
claimed she walked back to downtown St. Joseph, and that a younger man driving a blue
Trans Am drove her to I-29 where she started hitchhiking. She claimed she then got a
ride with a guy in a car she could not describe who took her to Dearborn, where she
caught another ride in "I think a truck," with an undescribed person who took her to 6th
Street near I-70 in downtown Kansas City, where she claimed to have discarded victim's
purse. Hemme claimed to have then caught another ride to Concordia, arriving at her
parents' home around 10:00 p.m. Hemme claimed to have discarded the knife she used to
stab victim in Battlefield Park, in Lexington, Missouri, a couple of days after the murder.
She reported that the other items she took from victim's apartment were left at her
parents' house. Hemme drew diagrams at the investigators' request to show the location
of the discarded purse and knife. The locations were searched, and the purse and knife
were not found.
11 Hemme was charged with victim's murder by grand jury indictment on December
23, 1980.
In the meantime, in the days immediately following victim's murder, a number of
eyewitnesses had reported seeing a white pickup truck parked near and next to victim's
apartment during the time frame between 5:30 p.m. and 7:30 p.m. on November 12,
1980. The white pickup truck lead was significant to the early investigation into victim's
murder.
On December 8, 1980, two days before Hemme's December 10, 1980 confession,
the SJPD learned that on November 13, 1980, a Black man with a badge had attempted to
use victim's credit card to purchase a camera lens at a Kansas City, Kansas camera store.
Detective S.F. was not aware of the unknown person's use of victim's credit card on
December 9, 1980, when he interviewed Hemme for the last time, before expressing the
belief that further interviews with Hemme would not be productive at securing truthful
statements.
On December 18, 1980, the SJPD opened up an investigation into M.H. for
insurance fraud. At the time, M.H. was a patrol officer for SJPD. M.H. had reported his
1978 Ford pickup truck stolen from the Kansas City airport on July 14, 1980. M.H.
received an insurance payout for the truck in the amount of $4,350. But, on December
18, 1980, M.H.'s training partner, Detective D.G., saw M.H. driving the reportedly stolen
truck as he was picking up his paycheck. Detective D.G. reported what he had seen, and
prepared a written report. M.H.'s "stolen" truck was then located and photographed in the
12 parking lot of the apartment complex where M.H. lived. M.H.'s truck was a white, 1978
Ford F-150 pickup with a brush guard, a roll bar, and a tonneau cover.
M.H. was questioned by the SJPD on December 18, 1980, and admitted he had
falsely reported the truck's theft because he needed the money. M.H. was terminated
from the SJPD and arrested on suspicion of insurance fraud.
One day later, on December 19, 1980, M.H. was positively identified as the Black
male who had attempted to use victim's credit card on November 13, 1980, the day after
victim was murdered. By that time, the SJPD had determined that the white truck seen
parked outside of victim's apartment on the night victim was killed was the truck that was
the subject of M.H.'s insurance fraud investigation.
M.H. was questioned by SJPD about victim's homicide on December 19, 1980.
He admitted he had parked his truck near victim's home about 5:30 p.m., but claimed he
did so because he was meeting a woman named "Mary" in order to have sex at the
Woodlawn Court Motel located adjacent to victim's apartment. M.H. claimed that he left
the motel at about 6:30 p.m., and found a purse in a ditch near where he had parked his
truck with victim's credit card inside. M.H. claimed he took the purse back to his
apartment complex and threw it in the trash dumpster. M.H. refused to give any further
details about "Mary," and refused to describe the inside of the motel room where he
allegedly met with "Mary" for the purpose of having sex.
On December 19, 1980, M.H.'s apartment was searched for evidence of "burglary
and homicide." The SJPD case number assigned to victim's murder was one of several
case numbers identified on a consent to search waiver form. The trash dumpster at
13 M.H.'s apartment complex was searched, but victim's purse was not found. Two jewelry
boxes were found in M.H.'s apartment. M.H.'s wife told the officers searching the
apartment that the jewelry was not hers, and that she had never seen the jewelry before in
her life. The officers conducting the search prepared a report about the search. This
report noted the address of the search but did not mention M.H.'s name as the occupant of
the apartment at the noted address.
On December 22, 1980, Detective S.F. was directed to follow up on the alibi M.H.
provided during his December 19, 1980 interview regarding the use of victim's credit
card. Before this date, Detective S.F. had not been assigned to do any work to investigate
M.H. as a lead in victim's murder. Detective S.F. went to a gas station near victim's
apartment, and to the Woodlawn Court Motel to investigate M.H.'s alibi. The motel
manager did not recognize M.H.'s photograph in a photo array as someone who had
stayed at the motel on November 12, 1980. A list of motel guests given to the SJPD on
November 14, 1980, did not show M.H.'s name as a guest on November 12, 1980.
The habeas court found that the December 19, 1980 SJPD report prepared after
M.H.'s interview about the attempted use of victim's credit card, and Detective S.F.'s
December 22, 1980 report documenting his unsuccessful attempt to verify M.H.'s alibi on
the night of victim's murder, were included in the prosecution file made available to
Hemme's attorney. The habeas court did not make a finding about whether the December
18, 1980 SJPD report prepared after M.H.'s interview regarding insurance fraud was
included in the prosecution file.
14 Later on December 22, 1980, at the request of Chief R.H., victim's parents came to
the police station to view jewelry seized during the December 19, 1980 search of M.H.'s
apartment. There is no indication that victim's parents knew where the jewelry came
from. Detective S.F. documented this interview. Victim's father signed a written
statement after the interview confirming that a pair of unique earrings found in the
recovered jewelry had been given to victim by him years prior, and that he had seen
victim wearing the earrings. Detective S.F. confirmed the details of the interview with
victim's father in a report he prepared, and catalogued the earrings as evidence under the
case number assigned by SJPD to victim's murder investigation. The physical evidence
custody report Detective S.F. prepared noted the earrings had been "received" from M.H.
The habeas record establishes that victim's father's December 22, 1980 written statement
identifying the earrings, Detective S.F.'s December 22, 1980 report about the interview
with victim's father, and Detective S.F.'s December 22, 1980 physical evidence custody
report for the earrings, were not included in the prosecution file made available to
Hemme's attorney.
By the time of the developments identifying M.H. as a potential suspect in victim's
murder, the SJPD had already secured the December 10, 1980 confession from Hemme,
and the prosecutor was just days away from securing the December 23, 1980 grand jury
indictment of Hemme for capital murder. The habeas record reflects very little effort was
undertaken by SJPD to further investigate M.H.'s involvement in victim's murder after
victim's father identified victim's earrings on December 22, 1980. M.H. was never
cleared as a suspect in victim's murder. Instead, on June 8, 1981, M.H. pled guilty to
15 insurance fraud in connection with the false report that his pickup truck had been stolen.
In exchange for his guilty plea, the state agreed to "dismiss all pending charges against
[M.H.] with the exception of the offense to which [M.H. was] pleading guilty and
otherwise not prosecute [M.H.] for any other criminal matters as to which [M.H. was]
now under investigation." By the time of his guilty plea, in addition to his potential
connection to victim's murder, M.H. was also being investigated for several burglaries,
trespass, and peeping Tom incidents. P.R.7 was the assistant Buchanan County
prosecutor who prosecuted the insurance fraud case against M.H. However, P.R. was not
involved in prosecuting Hemme at that time. The habeas record establishes that M.H.'s
insurance fraud investigation, his June 8, 1981 plea agreement, and the SJPD records
relating to the other criminal activity for which M.H. was contemporaneously under
investigation, were not included in the prosecution file in victim's murder case that was
made available to Hemme's counsel.
On January 23, 1981, one month after Hemme was indicted for capital murder,
Bobby C., (who matched the detailed description of the man Hemme described during
her December 1, 1980 interview with Detective S.F.), wrote a letter to Hemme in jail,
saying "Dear Sandy, do you remember me? I gave you a ride to the Dearborn exit on 12
Nov. 1980. Would it be possible to see you?" After receiving this letter, Hemme's
7 P.R. now serves as a Circuit Judge. 16 attorney, D.S.,8 told Detective S.F. that Hemme told him she did not kill victim, but was
present when two men did: Bobby C. and another man, C.W., Jr.
On February 2, 1981, Detective S.F. interviewed Bobby C., who described giving
Hemme a ride from St. Joseph to the Dearborn exit on the afternoon of November 12,
1980, after seeing Hemme hitchhiking by J.C. Penney Auto Center on Frederick Avenue
in downtown St. Joseph. Bobby C. said he was driving a 1980 two-toned tan-colored
Dodge Omni alone at the time, and that Hemme was "obviously under the influence of
something." Bobby C. denied playing any role in victim's murder, and denied knowing
C.W., Jr. Detective S.F. later testified that he had no reason to doubt Bobby C.'s account
that he picked up Hemme alone on the afternoon of November 12, 1980, dropped her off
miles away from St. Joseph in Dearborn, and never had any contact with victim. The
patent inconsistency between Bobby C.'s statement, which Detective S.F. credited as
truthful, and Hemme's December 10, 1980 confession was not further investigated, and
was effectively ignored by the SJPD.
In approximately February of 1981, allegations that the SJPD was covering up an
FBI Report that implicated someone other than Hemme in victim's murder were reported
in local television and print media. The publicized reports noted that a "man" had been
caught using victim's credit card the day after the murder. The publicized reports did not
identify the man as M.H. or note that the "man" had been an SJPD officer at the time he
used victim's credit card. The SJPD responded to the coverup allegations by stating that
8 Hemme was represented following her indictment and through the time of her guilty plea by D.S., an attorney who is now deceased. 17 the FBI Report in question, which it had just received, did not implicate any other
suspect, and in fact cleared all other suspects who had been investigated. An early March
1981 newspaper article addressing the SJPD's response to the coverup allegations was
headlined "FBI report reveals no other suspect," and noted that Hemme "is and likely will
remain the only person charged" with victim's murder. The newspaper article also noted
that Hemme's attorney would be in St. Joseph soon to "get a copy of the FBI written
report," and that Hemme's attorney "already had all other information which is in the
prosecutor's records concerning the crime and the investigation."
The habeas record establishes that the "FBI Report" that was the subject of the
rumored coverup and of the aforesaid newspaper article was dated March 4, 1981. The
March 4, 1981 FBI Report identified several persons, including M.H. and victim, but not
Hemme, for whom identified articles were to undergo chemical analysis, microscopic
analysis, and fingerprint analysis. Head and pubic hairs from M.H. were identified as
received by the FBI on January 19, 1981, under cover of a letter dated January 10, 1981.
Though the SJPD apparently advised the press that the leaked FBI Report revealed no
other suspects, in fact the March 4, 1981 FBI Report noted that a black head hair found
on victim's bedsheet "exhibits microscopic characteristics similar to the hairs" provided
by M.H. as specimens. The Report went on to note that "[t]he possibility that this hair
originated from the person represented by [the] specimen [M.H. provided] cannot be
eliminated." The Report noted that the racial characteristics of this particular black head
hair "are not well defined," but that a second black head hair fragment found on victim's
18 bedsheet was of "Negroid origin." The habeas record establishes that the March 4, 1981
FBI Report was included in the prosecution file made available to Hemme's counsel.
The prosecution file which was made available to Hemme's counsel included only
one other FBI Report, dated March 12, 1981. The March 12, 1981 FBI Report noted that
hairs recovered from a jacket, a pair of gloves and a bandana were Caucasian hairs, but
did not belong to victim. These were three of the four items Hemme claimed to have
taken with her from victim's apartment after victim was murdered, and that were retrieved
by the SJPD from Hemme's parents' home on December 1, 1980, four days before
Hemme first mentioned the items in her December 5, 1980 statement to Detective S.F.
No other FBI Reports were included in the prosecution file made available to Hemme's
attorney.
At around the time of the alleged SJPD coverup involving the March 4, 1981 FBI
Report, Hemme's counsel, D.S., was afforded access to the prosecution file. He would
have had access, therefore, to the December 19, 1980 SJPD report about the interview
with M.H. involving attempted use of victim's credit card. And he would have had
access to the December 22, 1980 report prepared by Detective S.F. after unsuccessfully
attempting to confirm M.H.'s alibi for the night of victim's murder. Neither of those
reports disclosed that M.H. was an officer with the SJPD. It appears that Hemme learned
of M.H.'s potential connection to victim's murder from her attorney.
On April 7, 1981, just three days before Hemme was scheduled to plead guilty to
murdering victim, Hemme gave yet another statement at the Buchanan County jail,
claiming that she had been picked up on the day of victim's murder by a male driver who
19 later killed victim. Hemme claimed the male driver was M.H. "Joe," who had been
mentioned by Hemme in earlier statements, was now reported by Hemme to be a twelve-
year-old boy who was accompanying M.H. Hemme told police that after murdering
victim, M.H. showed her photos of a second victim in a trash bag and claimed to have
killed and buried the woman along a river bank. Hemme could not identify M.H. when
shown a photograph of him in a mugshot array.
Hemme entered a guilty plea to the charge of capital murder on April 10, 1981.
Hemme v. State, 680 S.W.2d at 735. "No witnesses to the crime were reported and the
record of the plea hearing includes no description of the evidence the state would have
offered at trial, save only the statements obtained from [Hemme] herself." Id.
At the time of her guilty plea, Hemme:
was 21 years of age. She had first received psychiatric treatment in 1972 at age 13 when she attempted suicide. In the eight years which followed, [Hemme] was successively admitted to a number of treatment institutions in Kansas City, St. Louis, Jefferson City, Columbia and in the State of Maryland with the consequence that in the aggregate, she was hospitalized six of the eight years preceding [victim's death]. She attempted suicide three or four times and had a history of seven admissions to the St. Joseph State Hospital where she was a patient at the time of her arrest. According to the state's reconstruction of events, [Hemme] left the hospital the day of the killing and returned there that night.9
Id. At the beginning of the guilty plea hearing, Hemme "professed not to have a clear
recollection of the killing or any of the events that day." Id. Her guilty plea was refused.
9 The habeas record establishes that Hemme did not return to St. Joseph State Hospital on the night of victim's murder. She hitchhiked from Dearborn, Missouri to Concordia, Missouri to her parents' home, and arrived somewhere in between 8:30 p.m. and 9:30 p.m. 20 Id. "There is no indication in the record of the plea hearing that the trial court was given
any information about [Hemme's] history of institutional treatment or that concern about
[Hemme's] competence was at the root of the initial refusal to accept the plea." Id.
Rather, the court stated that "the testimony offered by [Hemme] was simply not
sufficient" to support the plea, and "the state made no offer to show what its proof would
be apart from [Hemme's] confession." Id.
The prosecutor10 sought a recess of the guilty plea hearing. Id. During the recess,
"the prosecutor and [Hemme's] attorney11 jointly instructed her as to how she should
respond to the court's questions to assure acceptance of the plea." Id. "The hearing
resumed after fifteen minutes, [at which time Hemme] described in some detail to the
court the killing of [victim] . . . and the plea was accepted." Id. at 735-36. Hemme was
sentenced to life imprisonment without parole for fifty years. Id. at 736.
Hemme filed a motion pursuant to Rule 27.2612 to set aside her conviction and
sentence on her plea of guilty.13 "The gist of the motion claim was that criminal trial
counsel had failed to make minimal preparation of the defense and had, instead, actively
promoted entry of a guilty plea notwithstanding [Hemme's] lengthy history of mental
illness induced by drug abuse." Id. at 735. During a hearing on the motion, trial counsel
10 P.R. was not the Buchanan County, Missouri assistant prosecutor assigned to handle Hemme's 1981 guilty plea proceedings. P.R. was not assigned to Hemme's case until 1984 when her guilty plea was permitted to be withdrawn. 11 Hemme was represented at her guilty plea hearing by D.S. 12 Rule 27.26 is the predecessor to current Rules 24.035 and 29.15. 13 Hemme's Rule 27.26 motion was filed by L.H., who later became a Circuit Judge. Judge L.H. is now retired from the bench. Judge L.H. testified as a witness on Hemme's behalf during the habeas proceedings. 21 acknowledged that he was "acquainted with [Hemme's] history of hospitalization during
the previous eight years and also with her record as a patient at the time the offense was
committed." Id. at 736. Trial counsel also admitted that Hemme's "history and condition
raised a doubt . . . as to her mental capacity at the time the crime was committed." Id.
Yet, despite his knowledge and doubts, trial counsel filed "no motions or pleadings of
any kind in the case," id. at 735, and "filed no motion for a mental examination, gave no
information to the court as to [Hemme's] history of hospitalization and treatment and . . .
gave no notice of intention to rely on the defense of mental disease or defect." Id. at 736.
The motion court denied Hemme's Rule 27.26 motion. Id. at 734. Hemme
appealed. Id. We found that the motion court committed clear error in denying Hemme's
claim of ineffective assistance of counsel:
[Hemme's] long history of treatment for mental problems, her repeated attempts at suicide, her then current status as a patient receiving treatment at St. Joseph State Hospital on the date the offense was committed and on the date of her arrest, and her confused initial plea testimony, psychologically described as derealization, were uncontested and, if fully known by the trial court, should have and no doubt would have prompted an inquiry to ascertain [Hemme's] actual mental condition before acceptance of her plea.
Id. at 736-37. We held that Hemme "was not afforded her due process right to effective
counsel," and reversed her conviction, with instructions that on remand, Hemme should
be allowed to withdraw her guilty plea. Id. at 737.
Nine months after our decision in Hemme v. State, Hemme's capital murder charge
was tried to a jury in Buchanan County, Missouri on June 4th and 5th, 1985. The
presentation of evidence was completed on the first day of trial. The state was
22 represented at trial by Buchanan County assistant prosecutor P.R. The state's evidence
centered around Hemme's December 10, 1980 "transcribed confession" which was read
to the jury. Hemme's trial counsel14 claimed that Hemme's confession was filled with
inconsistencies and contradictions and made no sense, and was a false confession. P.R.
countered that the evolving statements from Hemme simply represented a "cat-and-
mouse" game. Hemme's trial counsel argued that Hemme's confession was unreliable
because all that connected her to the murder was contained within the four corners of the
confession, and could not be independently verified or corroborated. P.R. responded
about details in the confession that "only the killer could know," including the flowered
bedspread, the telephone cord used to tie victim's hands, the strangulation with panty
hose, the flowered pillow that covered victim's face, the cut antenna wire next to victim's
body, and that victim was nude. P.R. also claimed that the items Hemme said she had
taken from victim's apartment had never been recovered, and argued by negative
inference that Hemme insured the destruction of these items to eliminate evidence that
tied her to the murder scene.
Hemme's trial counsel sought to cast suspicion on M.H. as victim's murderer. The
state stipulated to M.H.'s use of victim's credit card the day after Hemme's murder, and to
the March 4, 1981 FBI Report's reference to the testing of M.H.'s head hair specimen.
P.R. discredited the fact that M.H.'s head hair was microscopically consistent with a hair
14 Hemme was represented at trial by attorney R.D., who is now deceased. 23 found at the murder scene, and argued that a Black investigating officer at the scene,
Officer V.B., was the likely contributor of the hair.
Hemme was convicted of capital murder and sentenced to life in prison without
parole for fifty years. Hemme's conviction was affirmed by this Court in a per curiam
order. State v. Hemme, 709 S.W.2d 909 (Mo. App. W.D. 1986).
On April 20, 1988, Hemme file a pro se motion pursuant to Rule 29.15 seeking to
vacate her conviction. Appointed counsel filed an amended motion on April 15, 1992,
which alleged that Hemme's trial counsel was ineffective for failing to request a change
of venue, for failing to investigate potential defense witnesses, for failing to pursue
defenses to commission of the crime of insanity and diminished mental capacity, for
failing to request a mental examination, and for failing to introduce Hemme's medical
records. Following an evidentiary hearing, the motion was denied. The motion court's
denial of Hemme's Rule 29.15 motion was not appealed.
In 2012 and in 2022, attorneys representing Hemme secured SJPD records that
caused them to believe that Hemme had been wrongfully convicted. Hemme filed a
petition for writ of habeas corpus in the Circuit Court of Livingston County, Missouri on
February 21, 2023. The petition asserted five claims:
(1) gateway and freestanding claims of actual innocence, and the gateway of cause
and prejudice, based on exculpatory evidence that links M.H. to victim's murder, and
based on new evidence that Hemme's statements to police lacked credibility ("Claim 1");
24 (2) a claim that material, exculpatory evidence that implicated M.H. as victim's
murderer was suppressed in violation of Hemme's right to due process under Brady v.
Maryland, 373 U.S. 83 (1963) ("Claim 2");
(3) a claim that the state used a statement Hemme made about discarding victim's
purse to argue Hemme's guilt though the state knew or should have known that the
statement was false ("Claim 3");
(4) a claim, asserted in the alternative to the argued Brady violations, that trial
counsel's failure to act upon evidence implicating M.H., if the evidence was known to
him, constituted ineffective assistance of counsel ("Claim 4"); and
(5) a claim that trial counsel was ineffective for failing to present evidence of
Hemme's psychiatrically vulnerable condition during her interrogations by police ("Claim
5").
The habeas court ordered the Warden at the prison where Hemme was
incarcerated to show cause why a writ of habeas corpus should not be issued. The
Attorney General for the State of Missouri ("Attorney General") represented the Warden
and filed a response to the show cause order. The habeas court later granted the Attorney
General's motion to dismiss Claim 3. After the completion of discovery, an evidentiary
hearing on Hemme's Claims 1, 2, 4, and 5 was conducted in mid-January 2024.
Numerous exhibits were admitted into evidence, nearly all by agreement. Testimony was
taken from several witnesses, including L.H. (the attorney who secured the appellate
decision permitting withdrawal of Hemme's guilty plea); Detective S.F.; J.T. (an expert
witness who is a retired career homicide detective and law enforcement trainer on
25 interrogation methods); P.R.; Detective D.G. (who had been M.H.'s training partner);
Detective H.J. (who had been assigned to the SJPD crimes-against-property unit in 1980);
Dr. J.E. (a board-certified forensic psychiatrist with expertise in factors that increase the
risk of a false confession); and N.B. (victim's close friend since childhood).
On June 14, 2024, the habeas court issued a writ of habeas corpus in a 118-page
memorandum, order, and judgment that included detailed findings of fact and
conclusions of law ("Judgment"). The Judgment granted habeas relief to Hemme on
Claims 1, 2, 4, and 5, and thus found in Hemme's favor on her claims of freestanding
actual innocence (Claim 1); her gateway claims of actual innocence and cause-and-
prejudice permitting habeas review of otherwise procedurally barred claims that Hemme's
due process rights were violated (Claim 1); her Brady violation claims (Claim 2); and her
claims of ineffective assistance of counsel, particularly with respect to the failure to
present evidence of Hemme's psychiatrically vulnerable condition during her
interrogations by police (Claims 4 and 5). With respect to Hemme's Brady claims, the
habeas court found the following evidence was suppressed in violation of Brady, such
that Hemme's due process rights were violated:
1. Earring Evidence: December 22, 1980 documents identifying victim's
earrings among jewelry found in M.H.'s apartment (Hemme's exhibits 1,
2, and 3)
2. FBI Report 1981.01.29: A fingerprint report noting a latent palm print
on the antenna wire found near victim's body that excluded victim and
26 Hemme as the source and that requested better prints from M.H. for
comparison (Hemme's exhibit 26)
3. FBI Report 1981.01.30: A fingerprint report excluding victim as the
source of prints on a Playgirl magazine allegedly taken by Hemme from
victim's home (Hemme's exhibit 27)
4. FBI Report 1981.04.24: A laboratory report excluding SJPD Officer
V.B. as the source of black head hairs found at the murder scene on
victim's bedsheet (Hemme's exhibit 66)
5. M.H. Crime Evidence: Documents regarding the investigation and
prosecution of M.H. for crimes, including insurance fraud, three home
burglaries, a stalking offense, and other crimes of dishonesty (Hemme's
exhibits 38, 39, 40, 41, 50, and 51; and the state's exhibits E and H)
The Judgment ordered Hemme discharged from custody "unless she is brought to trial
within 30 days of this order."
The Attorney General filed a petition for writ of certiorari on June 28, 2024, which
sought review of the habeas record. This court granted the state's request for a writ of
certiorari as a matter of right on July 8, 2024.15 State ex rel. Nixon v. Kelly, 58 S.W.3d
15 The grant of a writ of certiorari following a lower court's grant of habeas relief is not discretionary. State ex rel. Nixon v. Kelly, 58 S.W.3d 513, 516 (Mo. banc 2001). The delay in entering our writ of certiorari is attributable to the fact that the state's petition for writ of certiorari was electronically filed after the close of business on Friday, June 28, 2024, and over that weekend, an electrical fire at a data center triggered fire suppression systems that damaged key equipment controlling access to this court's case management system, phone system, email, and shared drives. 27 513, 516 (Mo. banc 2001). We ordered the Circuit Clerk of Livingston County to return
the record of the habeas court proceedings to this court for review, and we ordered the
parties to file briefs. We also remanded the habeas proceedings to the habeas court for
the limited purpose of determining the conditions that should be set for Hemme's
discharge pending our review of the writ of certiorari. State ex rel. Bailey v. Sengheiser,
692 S.W.3d 20, 24-26 (Mo. banc 2024) (holding that civil judgments, including those
resulting in the vacation of a criminal conviction, are operative from the date of their
rendition, and are not automatically stayed on appeal, and that following vacation of a
criminal conviction, "the criminal case and the charges as to which the conviction has
been vacated are reinstated, and the defendant is remanded to his detention status prior to
conviction," and is eligible for release pending retrial on appropriate conditions).
Hemme was released from custody on or about July 19, 2024, subject to conditions
imposed by the habeas court.16
Standard of Review
"A writ of certiorari requires an inferior court to produce a certified record of a
particular case for review for irregularities." State ex rel. Koster v. McElwain, 340
S.W.3d 221, 231 (Mo. App. W.D. 2011). Our review for irregularities does not
contemplate review of findings of fact, and is instead limited to review of questions of
16 Rule 91.14 provides that "[i]f the person for whose relief a writ of habeas court has been issued is charged with a bailable offense, the court in which the answer is to be filed shall set the conditions of release pursuant to Rule 33." Rule 33.01(a) provides that "[a] defendant charged with a bailable offense shall be entitled to be released from custody pending trial or other stage of the criminal proceedings." 28 law presented by the record before the habeas court. State ex rel. Koster v. Jackson, 301
S.W.3d 586, 589 (Mo. App. W.D. 2010)). Certiorari is thus available to correct habeas
judgments that exceed a habeas court's authority or abuse its discretion, and that are not
otherwise reviewable on appeal. State ex rel. Koster v. Green, 388 S.W.3d 603, 606, 606
n.6 (Mo. App. W.D. 2012) (citing State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 518 (Mo.
banc 2001); State ex rel. Koster v. McElwain, 340 S.W.3d at 231; State ex rel. Koster v.
Jackson, 301 S.W.3d at 589). A "habeas court will have exceeded the bounds of its
authority if the evidence as a whole does not support the grant of a writ of habeas corpus
in light of the applicable law." State ex rel. Koster v. Green, 388 S.W.3d at 606. And, a
"habeas court will have abused its discretion if its 'ruling is clearly against the logic of the
circumstances then before the court and is so arbitrary and unreasonable as to shock the
sense of justice and indicate a lack of careful consideration.'" Id. at 606-07 (quoting State
v. Stewart, 313 S.W.3d 661, 665 (Mo. banc 2010)).
After completing our review of the habeas record for irregularities, we "'either
quash the writ or uphold the actions of the habeas court,' 'in whole or in part.'" Id. at 607
(quoting State ex rel. Koster v. Jackson, 301 S.W.3d at 589, and State ex rel. White v.
Swink, 256 S.W.2d 825, 827 (Mo. App. 1953)); see also State ex rel. Nixon v. Jaynes, 61
S.W.3d 243, 246 n.1 (Mo. banc 2001) ("In certiorari, this Court is limited to either
quashing or not quashing the record of the lower court."). "Where, as here, several
avenues permitting habeas corpus review and several Claims of constitutional infirmities
were found [by the habeas court] to have merit, we need only determine that at least one
avenue permits habeas review, and that at least one Claim has merit." State ex rel. Koster
29 v. McElwain, 340 S.W.3d at 232. That is because the effect of a writ of habeas corpus
will be the same whether one or several grounds for its issuance have merit, as "[a] writ
of habeas corpus merely operates to vacate a conviction where principals of justice and
fundamental fairness require, permitting the State to retry the defendant should it so
elect." Id. (emphasis omitted).
Analysis
The Attorney General's petition for writ of certiorari sought review of the habeas
record, and identified twenty-eight alleged irregularities. However, the Attorney
General's brief, which was filed in this proceeding at our request, narrows the claimed
irregularities to thirteen, falling into three discrete categories. Two claimed irregularities
relate to Hemme's freestanding actual innocence claim,17 and contend that under binding
Missouri precedent, a freestanding actual innocence claim is not cognizable for state
habeas corpus relief in non-death penalty cases (Points One and Two). Three claimed
irregularities relate to the habeas court's determination that Hemme established that her
trial counsel was ineffective (Points Three, Four, and Five). And eight claimed
irregularities relate to the habeas court's determination that Hemme established Brady
violations (Points Six through Thirteen).
17 Unlike "traditional" claims for habeas relief which urge that a defendant received a constitutionally infirm trial and that a "gateway" permits review of the claimed constitutional violation even though it was not raised on direct appeal or in a timely post- conviction motion, a freestanding actual innocence claim does not challenge the constitutional fairness of a defendant's trial, and instead contends that new evidence clearly and convincingly establishes the defendant's actual innocence requiring vacation of the defendant's conviction and a new trial, even though the defendant had a fair trial. State ex rel. Amrine v. Roper, 102 S.W.3d 541, 546-48 (Mo. banc 2003). 30 Because we need not review all determined avenues for habeas relief if we conclude
as to even one avenue that the habeas record should not be quashed, we elect to first address
the eight irregularities raised by the Attorney General related to the determined Brady
violations.
I.
Habeas Review Is Permitted for Procedurally Defaulted Claims if a Gateway for Review Is Established, and the Habeas Record Supports the Habeas Court's Conclusion that Hemme Established the Gateway of Cause and Prejudice and the Gateway of Manifest Injustice/Innocence
"[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." State
ex rel. Engel v. Dormire, 304 S.W.3d 120, 125 (Mo. banc 2010) (quoting State ex rel.
Amrine v. Roper, 102 S.W.3d 541, 545 (Mo. banc 2003)). However, "habeas corpus is
not a substitute for appeal or post-conviction proceedings." State ex rel. Simmons v.
White, 866 S.W.2d 443, 446 (Mo. banc 1993). If a defendant "fails to raise a challenge to
his conviction on direct appeal or in a timely post-conviction proceeding" the defendant
"'is said to have procedurally defaulted on those claims.'" In re Ferguson v. Dormire,
413 S.W.3d 40, 52 (Mo. App. W.D. 2013) (quoting State ex rel. Nixon v. Jaynes, 63
S.W.3d 210, 214 (Mo. banc 2001), overruled on other grounds by State ex rel. Zinna v.
Steele, 301 S.W.3d 510 (Mo. banc 2010)).
Procedurally defaulted claims cannot be raised in a petition for writ of habeas corpus unless: (1) the claim relates to a jurisdictional issue; or (2) the petitioner establishes "a showing by the preponderance of the evidence of actual innocence, [that] would meet the manifest injustice standard for
31 habeas relief under Missouri law," (a "gateway of innocence claim")18; or (3) the petitioner establishes "cause for failing to raise the claim in a timely manner and prejudice from the constitutional error asserted,'" (a "gateway cause and prejudice claim").
Id. at 52-53 (Mo. App. W.D. 2013) (emphasis omitted) (quoting State ex rel. Amrine v.
Roper, 102 S.W.3d at 546). "Establishment of either 'gateway' does not [itself] support
habeas relief, but serves to permit habeas review of a constitutional challenge regarding
the fairness of the defendant's trial that is otherwise procedurally defaulted." Id. at 53
(quoting State ex rel. Amrine v. Roper, 102 S.W.3d at 546).
In Claim 2 of the habeas petition, Hemme argued that the state failed to disclose
exculpatory, material evidence in violation of her right to due process pursuant to Brady.
Hemme did not raise Brady violations on direct appeal or in her Rule 29.15 motion.
However, in Claim 1 of the habeas petition, Hemme alleged that her Brady claims were
eligible for habeas review through the gateway of manifest injustice based on evidence of
innocence, and through the gateway of cause and prejudice.
"To establish the manifest injustice/gateway of innocence, a defendant [must]
establish by a preponderance that newly discovered evidence suggests an innocent person
has been convicted." Id. at 54 n.22 (quoting State ex rel. Amrine v. Roper, 102 S.W.3d at
18 A gateway of innocence claim is distinct from a freestanding actual innocence claim as the former is not raised as an independent basis for habeas relief, but merely to authorize review of a claimed constitutional violation that, but for the gateway, would be procedurally defaulted. The gateway of innocence claim is largely established by the same "proof" as would be relevant to a freestanding actual innocence claim, but the burden of proof for the gateway of innocence claim is a preponderance of the evidence, where the burden of proof for the freestanding actual innocence claim is clear and convincing evidence. In re Ferguson v. Dormire, 413 S.W.3d at 54 n.22 (citing State ex rel. Amrine v. Roper, 102 S.W.3d at 546-48). 32 546). A manifest injustice is demonstrated if the defendant can "show that 'a
constitutional violation has probably resulted in the conviction of one who is actually
innocent'" because "'it is more likely than not that no reasonable juror would have
convicted him in light [of new evidence of innocence].'" Clay v. Dormire, 37 S.W.3d
214, 217 (Mo. banc 2000) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
"The 'cause' component of the gateway of cause and prejudice refers to the 'cause'
for the defendant's procedural default." State ex rel. Koster v. McElwain, 340 S.W.3d at
246. "That cause 'must ordinarily turn on whether the prisoner can show that some
objective factor external to the defense impeded counsel's efforts to comply with the
State's procedural rule.'" Id. (quoting State ex rel. Nixon v. Jaynes, 63 S.W.3d at 215
(itself quoting Murray v. Carrier, 477 U.S. 478, 488 (1986))). "[A] showing that the
factual or legal basis for a claim was not reasonably available to counsel, . . . would
constitute cause under this standard." Id. (emphasis omitted) (quoting Coleman v.
Thompson, 501 U.S. 722, 753 (1991)). "To establish the 'prejudice' necessary to
overcome procedural default, a petitioner . . . bears the burden of showing, not merely
that errors at his trial created [the] possibility of prejudice, but that they 'worked to [her]
actual and substantial disadvantage, infecting [her] entire trial with error of constitutional
dimensions.'" State ex rel. Nixon v. Jaynes, 63 S.W.3d at 215 (quoting United States v.
Frady, 456 U.S. 152, 178 (1982)).
The cause and prejudice prongs are largely coextensive with two of the essential
elements of a Brady violation. For example, "[e]vidence that has been deliberately
concealed by the state is not reasonably available to counsel [for the defense] and
33 constitutes cause for raising otherwise procedurally barred claims in a petition for writ of
habeas corpus." State ex rel. Clemons v. Larkin, 475 S.W.3d 60, 76 (Mo. banc 2015)
(citing Amadeo v. Zant, 486 U.S. 214, 222 (1988)). In short, if the state was obligated to
disclose evidence but failed to do so, and if a defendant did not have access to the
evidence prior to trial by the exercise of reasonable diligence, then it can be fairly said
that "cause" external to the defense prevented the defendant from complying with the
state's procedural rules. See, e.g., State v. Salter, 250 S.W.3d 705, 714 (Mo. banc 2008)
(observing that the state cannot be faulted for nondisclosure of exculpatory evidence if
the defendant had knowledge of the evidence at the time of trial). As for "prejudice," it is
a long settled-principle that "prejudice within the compass of the 'cause and prejudice'
requirement exists when the suppressed evidence is 'material' for Brady purposes."
Banks v. Dretke, 540 U.S. 668, 691 (2004).
The habeas court found that the state did not allege that Hemme's Brady claims
were procedurally defaulted until it raised the issue in its post-hearing brief. The habeas
court found that procedural bar is an affirmative defense that the state was obligated to
raise in advance of the habeas hearing, and that the state waived the defense by not timely
asserting it in response to the court's show cause order, or by the deadline for filing
dispositive motions set by the court's scheduling order. Trest v. Cain, 522 U.S. 87, 89
(1997) (holding that procedural default is not a jurisdictional matter, and is instead a
defense that must be raised by the state or it is lost). The Attorney General has not
claimed any irregularity with respect to this finding and conclusion, and is bound by the
34 habeas court's determination that the defense of procedural default precluding review of
Hemme's Brady claims was waived.
The habeas court alternatively found that the habeas record established both
gateways relied on by Hemme. With respect to the gateway of manifest
injustice/innocence, the habeas court found:
[T]he evidence shows that . . . Hemme's statements to police are so unreliable and . . . the evidence pointing to [M.H.] as the perpetrator of the crime so objective and probative that no reasonable juror would find . . . Hemme guilty, and this Court can thus reach the merits of . . . Hemme's claims because she is the victim of a manifest injustice.
The Attorney General has not claimed any irregularity with respect to the habeas court's
alternative finding that the gateway of manifest injustice/innocence was established by
Hemme, and is bound by the determination that this gateway permits review of Hemme's
Brady claims, even if deemed to have been procedurally defaulted.
With respect to the gateway of cause and prejudice, the habeas court noted the
substantial overlap between the cause and prejudice standard and the establishment of a
Brady violation, found that the state failed to disclose exculpatory evidence that was
material, and found that as a result, Hemme established cause and prejudice for not
presenting the Brady claims in previous proceedings. The Attorney General has not
claimed any irregularity with respect to the habeas court's alternative finding that the
gateway of cause and prejudice was established by Hemme, and is bound by the
determination that this gateway permits review of Hemme's Brady claims, even if
deemed to have been procedurally defaulted.
35 Because the habeas court found Hemme's Brady claims to be eligible for habeas
review, we turn our attention to a discussion of the essential elements of a Brady
violation, to the five Brady violations found by the habeas court, and to the irregularities
raised by the Attorney General with respect to the determined Brady violations.
II.
The Essential Elements of a Brady Claim
"Under Brady, due process requires that the prosecution disclose to the defendant
any evidence in its possession that is favorable to him and that is material to his guilt or
punishment." State ex rel. Engel v. Dormire, 304 S.W.3d at 127. "Brady provides that
'the individual prosecutor has a duty to learn of any favorable evidence known to the
others acting on the government's behalf in the case, including the police.'" Id. (quoting
Kyles v. Whitley, 514 U.S. 419, 437 (1995) (emphasis added)).
The prosecutor's lack of knowledge about information asserted in a Brady claim is not an impediment because the prosecutor is considered "the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done."
Id. (quoting Strickler v. Greene, 527 U.S. 263, 281 (1999)).
To prevail on her Brady claims, Hemme "must show each of the following: (1) the
evidence at issue is favorable to [her], either because it is exculpatory or because it is
impeaching; (2) the evidence was suppressed by the State, either willfully or
inadvertently; and (3) [s]he was prejudiced." Id. at 126. To determine "whether . . .
36 evidence meets the test for Brady prejudice, this Court must assess whether the evidence
at issue is material to [Hemme's] case." Id. at 128.
The materiality standard for Brady claims is established when "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Kyles, 514 U.S. at 435. "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 [s]he received a fair trial . . . resulting in a verdict worthy of confidence." Id. at 434.
State ex rel. Engel v. Dormire, 304 S.W.3d at 128. If materiality is established by this
standard, then "'the suppression . . . violates due process . . . irrespective of the good or
bad faith of the prosecution.'" Merriweather v. State, 294 S.W.3d 52, 54 (Mo. banc
2009) (quoting Brady, 373 U.S. at 87).
III.
The Brady Violations Found by the Habeas Court and the Irregularities Argued by the Attorney General with Respect to the Determined Violations
The habeas court found the following evidence was alleged by Hemme in her
post-hearing brief to have been suppressed in violation of Brady, and that the evidence
was, in fact, exculpatory, suppressed, and material, such that Hemme's due process rights
were violated: three December 22, 1980 documents that collectively operated to identify
victim's earrings among jewelry found in a search of M.H.'s apartment (Hemme's exhibits
1, 2, and 3) (hereinafter the "Earring Evidence"); FBI Report 1981.01.29, a fingerprint
report noting that a latent palm print on the antenna wire found near victim's body did not
belong to either victim or Hemme, and that requested better prints from M.H. for
comparison before he could be ruled out as the source of the palm print (Hemme's exhibit
37 26) (hereinafter the "January 29, 1981 FBI Report"); FBI Report 1981.01.30, a
fingerprint report excluding victim as the source of prints on a Playgirl magazine
allegedly taken by Hemme from victim's home (Hemme's exhibit 27) (hereinafter the
"January 30, 1981 FBI Report"); FBI Report 1981.04.24, a laboratory report excluding
SJPD Officer V.B. as the source of head hairs found at the murder scene on victim's
bedsheet (Hemme's exhibit 66) (hereinafter the "April 24, 1981 FBI Report"); and M.H.
crime evidence comprised of numerous documents regarding the investigation and
prosecution of M.H. for insurance fraud, and the investigation of M.H. for other crimes,
including three home burglaries, a stalking offense, and other crimes of dishonesty
(Hemme's exhibits 38, 39, 40, 41, 50, and 51; and the state's exhibits E and H)
(hereinafter "M.H. Crime Evidence").
The Attorney General's Eighth, Tenth, and Twelfth Points argue that the habeas
court committed legal error when it found Brady violations relating to the three FBI
Reports because their suppression was not raised in Hemme's habeas petition, and
because claims regarding their suppression were not tried by implied consent.
The Attorney General's Ninth Point argues (in part) that there was no substantial
evidence supporting a finding that the January 30, 1981 FBI Report was suppressed.
The Attorney General's Thirteenth Point argues (in part) that there was no duty to
disclose the M.H. Crime Evidence.
The Attorney General's Sixth, Seventh, Ninth (in part), Eleventh, and Thirteenth
(in part) Points argue that Hemme failed to demonstrate that the Brady evidence found to
have been suppressed was material.
38 We address the Attorney General's alleged irregularities in the order noted above.
We observe before doing so, however, that the Attorney General does not argue that the
evidence found to have been suppressed was known, or could reasonably have been
known, to Hemme or her counsel at the time of trial. Though the Attorney General
challenges whether the M.H. Crime Evidence had to be disclosed, the Attorney General
does not challenge that the Earring Evidence and the three FBI Reports were exculpatory
because they were favorable to Hemme. And though the Attorney General challenges
whether the January 30, 1981 FBI Report was suppressed, the Attorney General does not
challenge that the Earring Evidence, the January 29, 1981 FBI Report, the April 24, 1981
FBI Report, and the M.H. Crime Evidence were suppressed.
A.
The Habeas Court Did Not Exceed or Abuse Its Authority by Considering Brady Violations Involving Suppressed FBI Reports that Hemme Did not Learn About Until After Her Habeas Petition Was Filed (Points Eight, Ten and Twelve)
In Points Eight, Ten and Twelve, the Attorney General claims irregularities with
respect to the three FBI Reports found to have been suppressed, arguing their suppression
was not pled in the original petition for writ of habeas corpus, nor tried by implied
consent, rendering it legally erroneous for the habeas court to have considered the three
FBI Reports to support finding Brady violations. We disagree.
The three FBI Reports found to have been suppressed were not identified in
Hemme's petition for writ of habeas corpus relief as alleged Brady violations, but were
argued to be Brady violations supported by the evidence in Hemme's post-hearing brief.
The habeas court found that the "FBI Crime Lab evidence . . . was produced by [the state]
39 during discovery" conducted in connection with the habeas proceedings. The habeas
court found that the three FBI Reports were admitted into evidence without objection,
which our review of the transcript confirms. In addition, during the evidentiary hearing,
P.R., confirmed (without objection) that the January 29, 1981 FBI Report and the April
24, 1981 FBI Report were not in his prosecution file, and were not known to him at the
time of trial, and thus would not have been made available to Hemme prior to trial.19 The
habeas court concluded that the issue of suppression of the three FBI Reports in violation
of Brady was tried by implied consent, and that Hemme's petition for writ of habeas
corpus would be deemed amended to conform to the "newly elicited evidence" pursuant
to Rule 55.33(b).20
The Attorney General does not challenge the habeas court's finding that Hemme
did not learn about the three FBI Reports until they were produced during discovery
conducted in connection with the habeas proceedings, or that the three FBI Reports were
admitted into evidence during the habeas hearing without objection. It is patently
obvious that Hemme could not have made specific reference to the three FBI Reports in
her original habeas petition because she did not know about them. Nonetheless, the
Attorney General complains that the trial court's ruling permitting amendment of
Hemme's habeas petition by implied consent was improper because the three FBI Reports
19 P.R. was not expressly asked about the January 30, 1981 FBI Report during his habeas hearing testimony, a subject we address, infra, in connection with the Attorney General's Ninth Point. 20 Rule 91.10 addressing habeas petitions expressly provides that "[a]ny pleading may be amended or supplemented as provided in Rule 55.33." 40 were otherwise admissible on Hemme's freestanding actual innocence and gateway of
innocence claims (explaining the state's lack of an objection at trial), and the improper
amendment "allowed Hemme to try more Brady claims by ambush than those she
actually pled."
The irony of the Attorney General's contention is not lost on this Court. The
Attorney General's assertion that the state was ambushed by exculpatory evidence
Hemme did not know about until discovery was conducted after her habeas petition was
filed borders on the absurd. "[P]rosecutors are 'bound by the ethics of [their] office to
inform the appropriate authority of after-acquired or other information that casts doubt
upon the correctness of [a] conviction.'" State v. Johnson, 617 S.W.3d 439, 450 (Mo.
banc 2021) (Stith, J., concurring) (quoting Imbler v. Pachtman, 424 U.S. 409, 427 n.25
(1976)). That duty is not suspended by the filing of a habeas petition as to permit the
Attorney General to hide behind the cloak of Brady claims specifically pled in a habeas
petition. In fact, this Court unambiguously held in State ex rel. Koster v. Oxenhandler,
491 S.W.3d 576, 591 (Mo. App. W.D. 2016), that "it is not necessary that a writ of
habeas corpus be issued based on a claim pled in a habeas petition." We noted that Rule
91.06 provides that:
Whenever any court of record, or any judge thereof, shall have evidence from any judicial proceedings had before such court or judge that any person is illegally confined or restrained of liberty within the jurisdiction of such court or judge, it shall be the duty of the court or judge to issue a writ of habeas corpus for the person's relief, although no petition be presented for such writ.
41 Id. "A court's sua sponte obligation to issue a writ of habeas corpus 'although no petition
be presented for such writ' negates the State's contention that habeas claims must be
preserved in habeas pleadings as a condition of affording habeas relief." Id. (quoting
Rule 91.06).
It is therefore irrelevant whether the habeas court properly deemed Hemme's
habeas petition amended by implied consent. Any rule "'declaring prosecutor may hide,
defendant must seek,' is not tenable in a system constitutionally bound to accord
defendants due process.'" Banks, 540 U.S. at 696. "To suggest, as the State does, that
[Hemme] should be penalized for the State's failure to timely honor its legal disclosure
obligations by having [the three FBI Reports] entirely disregarded [because they were not
known to Hemme until after she filed her habeas petition] is repugnant to the concept of
fundamental fairness." In re Ferguson v. Dormire, 413 S.W.3d at 59 (quotation omitted).
It was not error for the habeas court to rely on the three FBI Reports to find
determined Brady violations. The Attorney General's Points Eight, Ten, and Twelve are
without merit and are denied.
B.
The Habeas Court Did not Exceed or Abuse Its Authority When It Concluded that the January 30, 1981 FBI Report Was Suppressed (Point Nine)
In Point Nine, the Attorney General claims irregularities with respect to the Brady
violation involving the January 30, 1981 FBI Report, a fingerprint report excluding
victim as the source of prints on a Playgirl magazine allegedly taken by Hemme from
victim's home. The Attorney General argues that the habeas court's conclusion that this
42 FBI fingerprint report was suppressed is "unsupported by any substantial evidence," and
that the report was not material. We focus our present discussion on the Attorney
General's challenge to the finding that this Report was suppressed, as we address the
Attorney General's materiality challenges to all of the suppressed evidence collectively,
infra.
"Substantial evidence is evidence that, if believed, has some probative force on
each fact that is necessary to sustain the circuit court's judgment." Ivie v. Smith, 439
S.W.3d 189, 199 (Mo. banc 2014). "To prevail on the substantial-evidence challenge,
[the Attorney General] must demonstrate that there is no evidence in the record tending to
prove a fact that is necessary to sustain the circuit court's judgment as a matter of law."
Id. at 200. We apply this standard, and its corresponding burden of proof, with particular
care on writ of certiorari, where "we do not review findings of fact," and determine "the
sufficiency of the evidence to support the writ of habeas corpus as a whole," as "a
question of law." State ex rel. Koster v. Oxenhandler, 491 S.W.3d at 590 (citing State ex
rel. Nixon v. Sprick, 59 S.W.3d at 518). In doing so, "[w]e assume the habeas court made
findings of fact warranted by the evidence sufficient to sustain the habeas judgment." Id.
(quoting State ex rel. Shartel v. Skinker, 25 S.W.2d 472, 478 (Mo. banc 1930)).
In arguing that the habeas court's conclusion that the January 30, 1981 FBI Report
was suppressed is unsupported by any substantial evidence, the Attorney General focuses
exclusively on the testimony of P.R. The Attorney General notes that the January 30,
1981 FBI Report (Hemme's Exhibit 27) was never shown to P.R., and that P.R. never
expressly testified about whether he had seen the Report. Both observations are true.
43 But, the Attorney General ignores that P.R. also identified state's Exhibit D as his
prosecution file, and testified that the file had been made available to Hemme's trial
attorney as a part of the prosecuting attorney's "open file" policy. P.R. was specifically
asked about the January 29, 1981 FBI Report (Exhibit 26) and the April 24, 1981 FBI
Report (Exhibit 66), and confirmed that he had not previously seen either Report, and that
neither was in the prosecution file that would have been made available to Hemme prior
to her trial. Though P.R. was not asked about the January 30, 1981 FBI Report, a simple
review of Exhibit D confirms that Report is also not included in the prosecution file,
supporting the conclusion that it was suppressed.
Moreover, although P.R. was not asked directly about the January 30, 1981 FBI
Report, he confirmed during his habeas hearing testimony that he argued a negative
inference during Hemme's 1985 trial based on the fact the items she told police she had
taken from victim's apartment (the CPO jacket, a Playgirl magazine, gloves, and a
bandana) were never recovered, suggesting Hemme had destroyed evidence that could
link her to victim's murder. In connection with other questioning, P.R. repeatedly
confirmed that he would never make an argument in a criminal case he knew not to be
true. The habeas court characterized P.R. as a candid and credible witness. We
consistently conclude, therefore, that when P.R. argued that Hemme destroyed items she
claimed to have taken from victim's home to prevent being connected to the crime scene,
P.R. did not appreciate that the SJPD had retrieved those items from Hemme's parents'
home on December 1, 1980; did not appreciate that those items had been sent to the FBI
for analysis; did not know about the January 30, 1981 FBI Report addressing fingerprints
44 found on the Playgirl magazine because that Report was not in the prosecution file; and
failed to appreciate that when read together, the only two FBI Reports that were in the
prosecution file, (the March 4, 1981 FBI Report and the March 12, 1981 FBI Report),
confirmed that victim's fingerprints were not found on the jacket, bandana, or gloves.21
In fact, during the habeas hearing, P.R. was shown the March 12, 1981 FBI Report, and
testified he had no recollection of ever seeing it before.
The January 30, 1981 FBI Report was important, as it noted that "[f]ifty-six latent
fingerprints and twelve latent palm prints . . . were developed on the 'PLAYGIRL'
magazine;" that forty-nine of the fifty-six fingerprints, and all twelve of the palm prints
belonged to Hemme, and that none of the fingerprints or palm prints belonged to victim.
Just as the March 12, 1981 FBI Report did with respect to the CPO jacket, the bandana,
and the red gloves, the January 30, 1981 FBI Report confirmed that the Playgirl magazine
did not connect Hemme to victim or to victim's murder.
The habeas record as a whole supports the habeas court's conclusion that the
January 30, 1981 FBI Report was suppressed. The Attorney General's Point Nine is
21 Evidence custody records that are a part of the prosecution file that was admitted into evidence during the habeas hearing noted a jacket, a pair of red gloves, and a bandana were "booked" into evidence on December 9, 1980 by SJPD officers. A Playgirl magazine is noted immediately above these entries. The habeas record establishes that these items were taken from Hemme's parents' home on December 1, 1980, four days before she first made any reference to them in a statement given to Detective S.F. on December 5, 1980. As previously noted, the March 12, 1981 FBI Report in the prosecution file notes that Caucasian hair found on 4 items of evidence (noted as Q31- Q34) did not belong to victim. Items Q31-Q34 are identified in the March 4, 1981 FBI Report in the prosecution file as a jacket, a pair of gloves, and a bandana, respectively. 45 denied to the extent it alleges that no substantial evidence supports the conclusion that the
January 30, 1981 FBI Report was suppressed.
C.
The Habeas Court Did Not Exceed or Abuse its Authority When It Concluded that Evidence About Other Crimes M.H. Was Accused of Committing Was Subject to the Disclosure Obligation Imposed by Brady (Point Thirteen)
In Point Thirteen, the Attorney General claims irregularities with respect to the
determined Brady violation involving M.H. Crime Evidence, which consisted of
documents regarding the investigation and prosecution of M.H. for other crimes,
including insurance fraud, three home burglaries, a stalking offense, and other crimes of
dishonesty. The Attorney General argues that it was error to conclude that this evidence
was subject to a disclosure obligation. The Attorney General also argues that in any
event, the evidence was not material. We focus our present discussion on the Attorney
General's contention that this evidence was not subject to a disclosure obligation, as we
address the Attorney General's materiality challenges to all of the suppressed evidence
collectively, infra.
The M.H. Crime Evidence involved numerous documents reflecting investigations
into and prosecutions of M.H. for several crimes during 1980 and 1981, many of which
were committed while M.H. was employed as an SJPD officer. The Attorney General
does not contest the habeas court's conclusion that this evidence was not disclosed to
Hemme. Instead, the Attorney General argues that the evidence did not have to be
disclosed. The Attorney General notes that in an April 26, 1985 disclosure, the state did
46 not endorse M.H. as a possible witness at Hemme's upcoming trial, and that the state has
no duty to provide evidence of criminal history for persons it does not intend to call as
witnesses at trial because impeachment evidence is of no value unless the person the
evidence would impeach is a witness. The Attorney General cites State v. Moore, 411
S.W.3d 848 (Mo. App. E.D. 2013), for this proposition. Moore does not stand for this
proposition.
Moore differentiated between the duty to disclose imposed on a prosecutor by
Rule 25.03(A)(7), and the broader duties to disclose exculpatory and impeachment
evidence imposed on a prosecutor by Brady. Moore, 411 S.W.3d 853-54. After
explaining the differences between the two disclosure standards, the Eastern District
found that a witness's prior suspended imposition of sentence did not constitute "prior
criminal conviction" impeachment evidence that had to be disclosed pursuant to Rule
25.03(A)(7) with respect to the state's witnesses, but that a suspended imposition of
sentence is impeachment evidence that must be disclosed under Brady. Moore, 411
S.W.3d at 853-54. Moore did not address whether the obligation under Brady to disclose
prior criminal conduct impeachment evidence is limited to whether the criminal conduct
involves a witness the government intends to call at trial.
Even if we accept the Attorney General's argument, it ignores that the M.H. Crime
Evidence was not merely impeaching. Instead, the M.H. Crime Evidence was required to
be disclosed because it was independently exculpatory irrespective of impeachment
because it supported the argument that M.H., and not Hemme, murdered victim. In an
effort to minimize the exculpatory nature of the M.H. Crime Evidence, the Attorney
47 General faults the habeas court for not "explain[ing] how the fact that M.H. committed
completely unrelated criminal offenses would connect him to the victim's murder or
create the motive or opportunity for the murder." However, the Attorney General's
assertion is disingenuous. The connections between the M.H. Crime Evidence and
victim's murder are facially obvious in light of the habeas court's uncontested factual
findings.
M.H. reported his white 1978 Ford F-150 pickup truck had been stolen on July 14,
1980, and received an insurance payout of $4,350. M.H. also reported his home had been
burglarized on the same day. On December 18, 1980, the SJPD opened an investigation
into M.H. for insurance fraud related to the reported theft of his truck. M.H. had been
seen driving the truck that same day by his then-training partner, Detective D.G., who
reported the incident.
This insurance fraud investigation began just over a month after victim's murder,
and just over a week after Hemme's December 10, 1980 confession to victim's murder.
Importantly, shortly after victim's murder, several eyewitnesses told investigators that
they had seen a white pickup truck parked near victim's home the night she was killed.
The truck was reported to be in the lane directly next to victim's apartment complex in
the 5:30 p.m. to 7:30 p.m. time frame. The eyewitness reports about the truck sighting
were significant during the early investigation into victim's murder. A Detective with the
SJPD testified during the habeas hearing that "it was well-known within the department
that the white pickup truck seen parked near [victim's] apartment the night she was killed
was the same truck [M.H.] reported stolen in July of that year." Yet, even though the
48 white truck seen near victim's apartment at the time of her murder belonged to M.H.,
M.H.'s insurance fraud investigation related to that truck was never reported to Hemme.
M.H. was arrested on suspicion of insurance fraud related to his truck on
December 18, 1980. That information was not reported to Hemme. His apartment and
storage locker were searched, and evidence that he had staged the burglary of his home
was discovered, as well as items stolen during a September 12, 1980 burglary at 1811
Gooding Avenue. M.H. admitted to the false report of the theft of his vehicle, and said
he committed the crime because he needed the money. His motivation for committing
crimes because he needed the money was not reported to Hemme. The fact that M.H.
was connected to a home burglary that occurred just two months before victim was
murdered, and her home was burglarized, was not reported to Hemme.
On December 19, 1980, the same day as M.H.'s interrogation about victim's
homicide, his apartment was searched a second time for evidence of "burglary" and
"homicide." Two jewelry boxes were found that M.H.'s wife said were not hers and that
she had never seen before in her life. This search and the results of the search were not
provided to Hemme, even though the search yielded earrings that were identified by
victim's father as belonging to victim. On December 22, 1980, the parents of victim
came to the police station to view jewelry recovered from the December 19, 1980 search.
Detective S.F. conducted the interview of Victim's parents. Victim's father identified a
pair of "two wishbone shaped pierced type earrings which have a small green stone in
them" as earrings he had purchased in Montana in 1962 or 1963 as a gift for his daughter,
and reported that he had seen his daughter wearing the earrings since that time.
49 Detective S.F. bagged and sealed the earrings and had victim's father initial the seal.
Detective S.F. prepared a police report noting that the earrings had been identified by
victim's father, and that the earrings were found by two other officers during a December
19, 1980 search at 3603 Genefield Apartment A13. Victim's father also made a written
statement about his identification of the earrings. And, Detective S.F. prepared an
evidence custody report documenting the earrings' entry into evidence under victim's
homicide investigation number. The evidence custody report notes that the earrings had
been retrieved from M.H. All three of these documents (Detective S.F.'s police report
and evidence custody report, and victim's father's written statement) were identified by
Detective S.F. during the habeas hearing. These documents are the Earring Evidence
found by the habeas court to have been the suppressed, a conclusion the Attorney General
does not challenge.
On June 8, 1981, M.H. pled guilty in connection with the insurance fraud charge
relating to the theft of his white pickup truck, the same truck spotted near victim's
apartment during the time frame of her murder. His petition to enter a guilty plea
reflected the state's promise "to dismiss all pending charges against me with the exception
of the offense to which I am pleading guilty and otherwise not prosecute me for any other
criminal matters now under investigation." P.R. testified during the habeas hearing that
he prosecuted M.H. in 1981, and that although he did not recall the M.H. plea agreement,
the agreement as written indicates that M.H. could not be prosecuted for victim's murder.
This plea agreement was not provided to Hemme.
50 While awaiting sentencing for insurance fraud, M.H.'s criminal conduct continued.
Records indicate that M.H. committed at least two more home burglaries in the summer
of 1981. On June 26, 1981, he took a purse with a cash card and a checkbook--
circumstances strikingly similar to M.H.'s admitted possession of victim's purse and
credit card. Several days later, M.H. used one of the stolen checks to purchase a Sony
Walkman from a store managed by his brother-in-law, a course of conduct very similar to
M.H.'s attempt to use victim's credit card to purchase a camera lens the day after her
murder. Later that same summer, M.H.'s brother-in-law caught M.H. inside his home
hiding in a basement closet. M.H. left after being confronted, and the brother-in-law then
found credit card information that had been in a file cabinet drawer wedged in his couch.
In addition, Detective D.G. was investigating reports by victims of recent sexual
assaults that a prowler was peering into their windows at night. A shirtless Black man
was spotted by Detective D.G. on June 27, 1981, but evaded apprehension. Then on June
30, 1981, Detective D.G. saw a Black man along the same path and observed the man
peeping into a lighted window of one of the apartments in the area. The man was
arrested, and immediately recognized by Detective D.G. as his former training partner,
M.H. M.H. offered an implausible explanation for his conduct that involved checking on
a friend's wife, rivaling his implausible and unverifiable explanation for being near
victim's apartment at the time she was murdered.
M.H.'s crime spree ended on August 12, 1981, when he was sentenced to two
years in the custody of the Missouri Department of Corrections for insurance fraud.
51 It is incredulous that the Attorney General believes this crime evidence is not
independently exculpatory in light of other evidence that connects M.H. to victim's
murder. The habeas record as a whole supports the habeas court's conclusion that M.H.'s
Crime Evidence was subject to disclosure pursuant to Brady.
The Attorney General's Point Thirteen is denied to the extent it alleges that the
state had no duty to disclose the M.H. Crime Evidence.
D. The Habeas Court Did Not Exceed or Abuse Its Authority When It Concluded that the Brady Evidence, Viewed Collectively, Was Material (Points Six, Seven, Nine, Eleven, and Thirteen) In Points Six, Seven, Nine, Eleven, and Thirteen, the Attorney General claims
irregularities with respect to all of the determined Brady violations, arguing that the
habeas court exceeded its authority by finding the suppressed evidence to be material.
The Brady materiality analysis requires consideration of suppressed items collectively.
Kyles, 514 U.S. at 436-37. Although "the tendency and force of . . . undisclosed
evidence" can be evaluated "item by item," the cumulative effect for purposes of
materiality is evaluated separately. Id. at 436 n.10.
The materiality standard for Brady claims is established when "the favorable
evidence could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict." State ex rel. Engel v. Dormire, 304 S.W.3d at 128
(quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)). "The question is not whether the
defendant would more likely than not have received a different verdict with the
[suppressed] evidence, but whether in its absence [s]he received a fair trial . . . resulting
52 in a verdict worthy of confidence." Id. (quoting Kyles, 514 U.S. at 434); see also
Strickler, 527 U.S. at 292 (holding that the "materiality inquiry is not just a matter of
determining whether, after discounting the inculpatory evidence in light of the
undisclosed evidence, the remaining evidence is sufficient to support the jury's
conclusions").
In Hemme's case, the evidence supporting her conviction was limited to her
December 10, 1980 confession. P.R. (who prosecuted the case for the state) testified at
the habeas hearing that without Hemme's confession there "was zero evidence connecting
her to the offense." Though Hemme's confession was sufficient evidence to support her
conviction, the suspect reliability of Hemme's confession is central to a Brady materiality
analysis. That is particularly so given Hemme's defense strategy at trial to argue that
M.H. murdered victim. All of the suppressed evidence identified by the habeas court is
exculpatory because it supports the conclusion that despite Hemme's confession, Hemme
had no connection to the murder scene, and that someone other than Hemme, namely
M.H., murdered victim.
The habeas record reveals a troubling realization. All of the suppressed evidence
became known to the SJPD shortly after Hemme's December 10, 1980 confession had
been extracted, and reported to the public. The M.H. Crime Evidence began
accumulating on December 18, 1980, when he was first interviewed about insurance
fraud involving his reportedly stolen truck. It became widely known within the SJPD at
about that same time that the white truck seen near victim's apartment at the time of her
murder was the truck M.H. had fraudulently reported stolen. On December 19, 1980, the
53 day after the insurance fraud investigation involving M.H. was initiated, the SJPD
learned that the person who attempted to use victim's credit card the day after victim was
murdered was M.H. M.H. was interviewed that same day about victim's murder. The
alibi M.H. provided for being near the scene at the time of the murder could not be
confirmed. M.H.'s claim to have found victim's purse with the credit card inside near
where his truck was parked at the scene, and his claim that he took the purse and threw it
in a dumpster at his apartment complex, was in irreconcilable conflict with Hemme's
December 10, 1980 confession that she took victim's purse and threw it in a ditch near
6th Street in Kansas City, Missouri. Yet, M.H.'s claim about having been in possession
of victim's purse had to be true, as there is no other explanation for how he happened to
be in possession of victim's credit card.
A December 19, 1980 search of M.H.'s apartment led to the discovery of two
jewelry boxes unrecognized by his wife. When the jewelry was shown to victim's
parents, victim's father identified a unique pair of earrings as a gift he had given his
daughter years before and that he had seen her wearing. The police report about this
interview, the interview itself, and the evidence custody report logging the earrings as
evidence in victim's murder, and noting the earrings had been "retrieved" from M.H. were
exculpatory and connected M.H. to victim's murder. But this critical Earring Evidence
was suppressed. The Attorney General argues the Earring Evidence was not material for
Brady purposes because other records suggested an unrelated third person also claimed
the wishbone-shaped earrings found in M.H.'s apartment might be theirs. That the
ultimate ownership of the earrings might be subject to contradictory evidence makes the
54 suppressed Earring Evidence no less material to Hemme, especially when viewed
cumulatively to the other evidence linking M.H., and not Hemme, to victim's murder.
During the habeas hearing, P.R. said that he thought he was aware, generally, that
earrings had been found in M.H.'s apartment, but vaguely recalled that they could not be
affirmatively identified as victims. P.R. acknowledged, however, that the Earring
Evidence was not in the prosecution file, and therefore would not have been provided to
Hemme. P.R. testified that had Hemme's trial counsel known about the Earring
Evidence, there is every reason to believe that counsel would have used the evidence to
further the defense strategy that M.H. murdered victim, not Hemme.
The SJPD submitted fingerprint, palm print, and hair samples from M.H. to the
FBI after the mid-December revelations connecting M.H. to victim's murder. FBI
Reports that should have sharpened the focus on M.H. were ignored. The January 29,
1981 FBI Report that asked for a clearer palm print from M.H. because the palm print he
had provided was not clear enough to permit him to be excluded as the source of the palm
print on the antennae wire found next to victim's body at the scene of the murder was
ignored. That same Report confirmed that Hemme's fingerprints were not found on the
antennae wire, a potentially exculpatory result given her December 10, 1980 confession
to removing the wire from victim's television, to cutting the wire with a knife, and to
attempting to use the wire to bind victim's hands. Because the January 29, 1981 FBI
Report was never given to Hemme, her counsel did not know that Hemme's prints were
not found on the antenna wire, despite her confession. Because the January 29, 1981 FBI
Report was never given to the prosecutor, P.R. argued during Hemme's 1985 criminal
55 trial that her discussion about the antennae wire in her December 10, 1980 confession
was something only the killer would know. P.R. testified at the habeas hearing that had
he known about the January 29, 1981 FBI Report, he would never have made that
argument and he would have insisted on securing a better palm print from M.H. as had
been requested by the FBI. P.R. also testified during the habeas hearing that he was very
troubled by the fact that after Hemme's 1981 guilty plea, but while her appeal following
the guilty plea was pending, someone with the SJPD directed that all of the crucial crime
scene evidence be destroyed, including the antennae wire with the unidentified palm
print.
The April 24, 1981 FBI Report that confirmed Officer V.B. was not the source of
the black hairs found on victim's bedsheets was ignored by the police. Because the
Report was never given to the prosecutor, it was never made available to Hemme. P.R.
argued during Hemme's 1985 trial that the jury should not be concerned that the March 4,
1981 FBI Report indicated that M.H. could not be ruled out as the source of the black
head hairs found on victim's bedsheets. P.R. noted that the hairs could easily have been
deposited by Officer V.B., a Black officer who was present in victim's bedroom during
the crime scene investigation. P.R. testified at the habeas hearing that he did not know
about the April 24, 1981 FBI Report, and that had he known about the Report, he would
never have argued that Officer V.B. could have been the source of the head hairs found at
the scene.
The January 30, 1981 FBI Report that found none of the many fingerprints and
palm prints on the Playgirl magazine Hemme purportedly took from victim's apartment
56 belonged to victim was ignored by the police. Because the January 30, 1981 FBI Report
was never given to the prosecutor, the Report was never made available to Hemme.
Unaware of the January 30, 1981 FBI Report, P.R. argued during Hemme's 1985 trial that
all of the items Hemme claimed to have been taken from victim's apartment, including
the Playgirl magazine, the CPO jacket, the bandana, and the red gloves, were never
recovered, and that Hemme must have destroyed the items because they would have
connected her to the murder scene.22 Though P.R. was not directly asked about the
January 30, 1981 FBI Report, his candid response to questions about other evidence he
had never before seen supports a conclusion that he would not have argued that Hemme
destroyed items she claimed to have taken from victim's apartment to hide her connection
to the murder had he known the items had, in fact, been recovered by the police, and
analyzed, to confirm that no connection between the items and victim could be
established.
The habeas record strongly suggests that the SJPD buried its investigation into
M.H. as victim's potential murderer, and intentionally failed to follow up on information
revealed by FBI Reports that failed to clear M.H. as a suspect in victim's murder while
diminishing the reliability of details provided in Hemme's December 10, 1980
confession. There is no indication that the SJPD made any effort, for example, to
conduct a forensic search of M.H.'s truck seen parked near victim's apartment on the
22 As noted, supra, in footnote 21, P.R.'s argument was not accurate. However, the habeas record supports the conclusion that P.R. was unaware of that fact at the time of Hemme's 1985 trial. However, the inaccurate argument is nonetheless properly considered as we weigh the materiality of the suppressed Brady evidence. 57 night of the murder. There is no indication that the SJPD made any effort to interview
M.H.'s friends, family, or others who could have provided information about M.H.'s
whereabouts or his demeanor around the time of victim's murder. The SJPD's failure to
meaningfully investigate M.H. as a suspect in victim's murder, demonstrated in part by
the failure to perform these seemingly obvious investigative steps, is relevant in assessing
Brady materiality, as we are to take into "'account . . . not only . . . the precise evidence
suppressed but also . . . such additional evidence to which a skillful counsel would be led
by careful investigation.'" In re Ferguson v. Dormire, 413 S.W.3d at 55 (quoting State v.
Thompson, 610 S.W.2d 629, 633 (Mo. 1981)).
Adding cruel insult to this inexcusable injury, on June 8, 1981, M.H. pled guilty to
insurance fraud in connection with the fraudulently reported theft of the truck parked by
victim's apartment during the timeframe of her murder in exchange for the state's promise
not to prosecute him for any other criminal matters for which he was under investigation.
P.R. testified during the habeas hearing that M.H.'s plea agreement likely meant he could
never be prosecuted for victim's murder. This plea agreement is a part of the large
volume of M.H. Crime Evidence that was not disclosed to Hemme. Evidence that M.H.
had been relieved of criminal responsibility for victim's murder, despite never having
been cleared of the crime, would have been of the utmost value to Hemme during her
trial as she sought to explain why the state would be motivated to cling to Hemme's ever
evolving, contradictory, inaccurate, and unsubstantiated confession, while ignoring
M.H.'s direct ties to victim's murder. Evidence that M.H. had been engaged in a pattern
of home burglaries, of fraudulent use of stolen checks, and of trespass and peeping Tom
58 incidents in the months preceding and immediately following victim's murder would have
been of value to Hemme during her trial as well, given the similarities between those
crimes and victim's murder.
We are left with the same unmistakable impression possessed by the habeas court
that the SJPD ignored and buried evidence coming into its possession that M.H. was
directly tied to victim's murder. P.R. candidly testified during the habeas hearing that any
evidence tying M.H. to victim's murder was important information because "the puzzle in
the case was [M.H.]" SJPD Detective H.J. testified during the habeas hearing that based
on M.H.'s truck having been parked by victim's apartment at the time of her murder,
M.H.'s use of victim's credit card a day after her murder, the possibility that a hair found
in victim's bed belonged to M.H., and M.H.'s other similar criminal activity close in time
to the murder, he expected that the inculpatory information would be "walked across the
street for the prosecuting attorney to review," and that he was "disgusted and angry"
when that did not happen. We agree that the suppressed evidence demonstrates "a
remarkably uncritical attitude" by police toward the possibility that Hemme's confession
was false, and the possibility that M.H. was victim's killer. Kyles, 514 U.S. at 445.
Whether the SJPD ignored (and suppressed) evidence to avoid the embarrassment that
victim may have been murdered by one of its own officers, or the embarrassment that it
had extracted a potentially false (and ever-changing) confession from Hemme just days
before M.H.'s direct ties to victim's murder came to their attention may never be known.
But, there is no doubt from the habeas record that the suppressed evidence was material,
as in its absence, Hemme did not receive a fair trial resulting in a verdict worthy of
59 confidence. The implication of the SJPD's decision to destroy crime scene evidence,
including the antenna wire, while Hemme's appeal following her guilty plea was pending
is difficult to ignore under these circumstances.
We reach this conclusion notwithstanding Hemme's confession. As previously
noted, the Attorney General has not claimed any irregularities with respect of the habeas
court's findings that the habeas record established the gateway of manifest
injustice/innocence, permitting review of Hemme's Brady claims, even if they were
procedurally defaulted. We are thus bound by (and in any event, agree that the habeas
record supports) the habeas court's conclusion that the gateway of manifest
injustice/innocence was established because Hemme's "statements to police are so
unreliable and that the evidence pointing to [M.H.] as the perpetrator of the crime so
objective and probative that no reasonable juror would find . . . Hemme guilty."
Regardless, we can independently confirm from the habeas record that the habeas
court did not exceed or abuse its authority by concluding the Hemme's December 10,
1980 confession was not reliable. That conclusion is self-evident from the statements
themselves, and is supported by the credited testimony of Dr. J.E., a forensic psychiatrist.
With respect to the facial unreliability of Hemme's confession, the habeas record
establishes that Detective S.F. noted after at least two of Hemme's multiple interrogations
that her statements were "inconsistent with other witness statements and reports" as to
times and locations. For example, it is documented that Hemme left the hospital on
November 12, 1980, at approximately 1:05 p.m. She claimed in one statement she had
gotten a ride from victim when she left the hospital, which was an impossibility as victim
60 was still at work, where she remained until almost 5:00 p.m. Though victim had gone to
a pharmacy at 11:30 a.m. on the day of her death, she was back at work before Hemme
left the hospital. During one of her statements, Hemme claimed she and victim had gone
to the Skaggs pharmacy together, but victim went to Melmed Pharmacy, and again, did
so ninety or more minutes before victim left the hospital. Hemme described victim's car
as light blue, and then later as brown, but always with a back seat. Victim's car was a
white, two-seater sports car. Hemme described victim wearing an outfit that was not at
all similar to the one she was reported wearing on the day of her murder. Hemme stated
on at least two occasions that she saw a white cat in victim's apartment, but victim did not
own a cat and instead owned a dog. Hemme described items she claimed to have seen
inside of victim's apartment that could not be verified as having ever been there, and
described other items she claimed to have seen in in victim's apartment that were in
explicit crime scene photographs Hemme had been shown. Hemme's fingerprints were
not found on any of the items found at the crime scene, including the antennae wire found
by victim's body. And, victim's fingerprints were not found on any of the items Hemme
claimed she took from victim's apartment. Hemme allegedly led investigators to victim's
apartment in advance of one of her statements, though victim's address and the exterior of
her home had been widely disseminated by the press in advance of that crime scene visit.
The habeas court credited the testimony of Detective H.J. that police "are capable of
inadvertently leading a suspect to a scene while believing the suspect inadvertently
directed them, as [Detective H.J.] saw firsthand in the [M.R.] investigation." Detective
H.J. was referring to a late 1970's murder investigation where the SJPD arrested M.R. for
61 the murder of a child based on M.R.'s confession. That conviction was later set aside
because another person confessed to the crime.23
Hemme claimed she discarded victim's purse in downtown Kansas City, Missouri,
but M.H. claimed he found the purse almost immediately after victim's murder in a ditch
as he was walking back to his truck (which was parked next to victim's home) after
having allegedly been at the Woodlawn Court Motel, a claim that is the only way M.H.'s
possession of victim's credit card could be explained. Hemme consistently stated that
she had been dropped off by someone in Dearborn, Missouri on the day, and several
hours before, victim's murder. But authorities chose to ignore that exculpatory statement,
which was confirmed by the later statement of Bobby C. (a statement Detective S.F.
believed) that he picked Hemme up in downtown St. Joseph on the afternoon of
November 12, 1980, and dropped her off at the Dearborn exit well before the time frame
of victim's murder. Hemme's accounts about who picked her up in downtown St. Joseph
after she left the hospital at around 1:00 p.m. varied widely across her multiple
23 The similarities between M.R.'s "false" confession and Hemme's are noteworthy. Both were a result of multiple interrogations where the interrogated suspect gave ever- changing stories. Both involved situations where conduct completely unrelated to the murder under investigation put the suspect on the SJPD's radar. Both involved highly publicized crimes, with substantial crime scene information in the public domain. Both involved convictions that were exclusively based on the suspect's confession, despite the inability to corroborate information provided by the suspect. Both involved suspects who allegedly led investigators to the scene of the murder. And, both involved convictions secured under the direction of Chief R.H. P.R. became convinced after M.R.'s conviction that M.R. was innocent and had given a false confession, and worked to see that his conviction was vacated. P.R. testified that Chief R.H. was angry and outraged at P.R.'s efforts to secure M.R.'s release. P.R. testified during the habeas hearing that he never felt comfortable with Chief R.H., and was in fact mistrustful of him, feelings that had been fueled by information gathered from SJPD detectives. 62 interrogations, though she ultimately claimed in her December 10, 1980 confession that
victim picked her up and offered to drive her to Concordia, Missouri. Yet, the habeas
record establishes victim was at work until 5:00 p.m. and had a planned meeting at 7:00
p.m. If Hemme's confession is interpreted to suggest that victim picked her up sometime
after 5:00 p.m. (which Hemme never stated), it is highly suspect that victim would have
agreed to drive a complete stranger to Concordia (as Hemme claimed) in the limited time
she had available before her 7:00 p.m. meeting. The habeas court credited the testimony
of N.B., victim's lifelong friend, that victim was very safety conscious, and would never
have picked up a stranger, and would never have allowed a stranger into her home to wait
while she showered. On that point, no evidence ever established that victim appeared to
have just showered before she was murdered, though Hemme claimed to have attacked
victim as she came out of the shower.
Though Hemme did, after multiple interrogations, provide details that were
consistent with the facts of the crime and of the crime scene, all of those facts were in the
public domain, or were reflected in crime scene pictures Hemme was shown, or were
known to the police, who often interviewed Hemme "off the record" before capturing her
statements in their notes, or (ultimately) in her sworn (final) "confession." The habeas
court concluded that the record supports an inference that the police unintentionally
provided Hemme with information about the crime, and that Hemme incorporated that
information along with information widely disseminated in the press into her statements.
Detective J.T., a retired career homicide detective and law enforcement trainer on
63 interrogation methods, testified on Hemme's behalf during the habeas hearing, and noted
that the amount of information made public in victim's murder case was shocking.
The habeas court also pointed to Hemme's mental and physical condition at the
time she gave her statements. The habeas court credited the testimony of Dr. J.E., a
board-certified forensic psychiatrist who demonstrated her expertise in factors that
increase the risk of a false confession. Dr. J.E. reviewed all of Hemme's available
psychiatric records and the police records relating to her interrogation. She noted that
Hemme's records reflect a history of mental illness beginning in early childhood, as she
began hearing voices at age twelve. Hemme experienced delusional thinking, depression,
and substance abuse, and spent the majority of her days between the ages of twelve and
nineteen in psychiatric institutions. Her psychiatric records show her thoughts were
described as disorganized, and that she was reported by treating clinicians as being out of
touch with reality, and as experiencing auditory hallucinations and symptoms of
derealization. As a child, Hemme was treated with Electroconvulsive Therapy which
introduces an electrical current into the brain, inducing a grand mal seizure. This
treatment was demonstrated by Hemme's records to have had a deleterious effect on her
memory and cognitive function. Dr. J.E. testified that this procedure damages the
prefrontal cortex, which helps regulate memory, reasoning, and other executive functions.
In the days surrounding victim's murder and Hemme's statements to police, her
records reflect that Hemme sought admission to St. Joseph State Hospital seeking help
for amphetamine use on November 7, 1980. On November 12, 1980, Hemme was
discharged from the hospital against medical advice. She was reported to be "obviously
64 very high" according to a nurse's note. Hemme arrived at her parents' home in
Concordia, Missouri between 8:30 to 9:30 p.m., after hitchhiking over one hundred miles.
Hemme was then admitted voluntarily to the hospital on November 14, 1980 and spent
ten "volatile" days characterized by erratic behavior and drug use, before once again
being discharged against medical advice on November 24, 1980.
On November 25, 1980, police responded to the home of a nurse after receiving an
emergency call that a former patient was in her home with a knife, refusing to leave.
Hemme was found hiding in the nurse's closet with a knife. It was this incident that
placed Hemme on the SJPD's radar as someone who should be interviewed about victim's
murder. Hemme was taken to the St. Joseph State Hospital where she was subjected to
an involuntary 96-hour hold. At the time of her admission, she was not communicative,
had her head in her hands, and had to be forced to talk. Prior to being questioned for the
first time about victim's murder on November 28, 1980, Hemme had been in seclusion
and physically restrained. She had also been forcibly administered antipsychotic
medications via injections for more than forty-eight hours as a "chemical restraint," and
in an effort to "reorder thinking." Hemme had an uncommon, serious allergic reaction to
the medication and was found in her bed, eyes rolled back, with her muscles rigid and her
speech slurred. Her muscle spasm symptoms were extremely painful, and medication
given to relieve the symptoms was not effective. Her records reflect she was having a
dystonic reaction as a result of the extremely painful symptoms she was experiencing,
and that this was the condition she was in when she was first interviewed by Detective
S.F. Shortly before the November 28, 1980 interview, Hemme was administered Haldol
65 (an antipsychotic) and chloral hydrate (a hypnotic sedative). Treating nurses who were
present during Heme's November 28, 1980 interview observed that she was shaking and
said she felt "spacey."
Hemme's antipsychotic medication was changed on November 29, 1980, and she
began receiving Navane every six hours, which continued until her discharge from the
hospital on December 5, 1980, when she was charged with concealing an offense and
taken to jail. Her records reflect that during this time period, Hemme continued to
experience dystonic reactions, which included complaints of neck-drawing, and lying in
bed with her eyes rolled back, and muscle rigidity. Dr. J.E. testified that if a patient today
experiences a dystonic reaction it is treated as a medical emergency, and the medication
is immediately terminated. That did not happen with Hemme. Instead, during the period
between November 29, 1980, and December 5, 1980, Hemme was questioned again on
December 1, 1980 (where nurses notes show that she was complaining of neck-drawing
and that her speech was slurred); on December 2, 1980 (where nurses notes show that
Hemme's head was "falling back" and "drawn at intervals," and sometimes "forced
forwards"); and on December 3, 1980, when police removed Hemme from the hospital
for several hours to take her to the crime scene and then to question her at the police
station--a process that was not observed by medical personnel.
On December 5, 1980, when Hemme was charged with concealing an offense and
taken to the Buchanan County jail, she was discharged from St. Joseph State Hospital
with no treatment plan despite having been treated intensively for ten days with
significant psychiatric intervention. Hemme's discharging physician concluded that
66 Hemme was not suffering any mental illness, a conclusion Dr. J.E. testified was
"shocking," and at odds with the records which demonstrated a patient in clear
psychiatric crisis. Detective. S.F. questioned Hemme again on December 9, 1980, at
which time he reported to her that Joe W. could not have murdered victim. His notes
reflect that Hemme was visibly upset, that she was "clenching and unclenching her fist
and moving about in her chair," that she was speaking in equivocal, dissociated language,
and that she stated she did not really know if she had killed victim or not. It was at the
conclusion of this interview that Detective S.F. noted that did not believe further
interviews of Hemme would be productive in getting at the truth. Yet, Hemme was
interviewed again the following day, without Detective S.F.'s participation. After an
undocumented amount of time spent with SJPD officers and investigators, Hemme gave
the transcribed December 10, 1980 confession referred to by the state during at her 1985
trial as "the truth."
Dr. J.E. opined that Hemme was highly vulnerable to make false statements; that
she was interrogated as an adolescent whose thoughts were being chemically controlled
and while she was in acute pain; that she was sleep-deprived and in active withdrawal
from drug use; that she did not trust her own memory; and that her psychiatric condition
positioned her both to seek and try to hold attention by any means necessary. Dr. J.E.
opined that Hemme had a history of traumatic life events associated with increased levels
of suggestibility, compliance with police investigators, and ultimate false confessions
because trauma significantly reduces the ability to withstand interrogative pressure. Dr.
67 J.E. opined that Hemme's psychiatric condition likely caused her to "prioritize short-
terms goals such as ending acute distress rather than weighing long-term consequences."
The habeas court credited Dr. J.E.'s testimony as reliable and found "when
considering the factually inconsistent content of . . . Hemme's statements in combination
with her malleable mental state when questioned, that the evidence in totality supports a
conclusion that her statements connecting herself to [victim's] murder were unreliable
and, in many instances, untrue." The habeas court noted that people with borderline
personality like Hemme have "poor self-concept" and distrust the reliability of their own
memories and are more likely to believe, when they are presented with crimes by
interrogators, that they must have committed the crime even when they do not recall
having done so, such that they start to fill in information. The habeas court noted that its
conclusion was substantiated by the habeas hearing testimony of L.H., who successfully
represented Hemme in the effort to withdraw her guilty plea based on ineffective
assistance of counsel. L.H. testified that when he began interviewing Hemme in 1981,
she was confused, malleable, and would say and repeat just about anything suggested to
her.
Ultimately, the habeas court found that "the evidence as a whole establishes that . .
. Hemme's statements inculpating herself are inconsistent, contradicted by physical
evidence and accounts of reliable, independent witnesses, and that . . . Hemme's impaired
psychiatric condition when questioned substantially undermined the reliability of those
statements as evidence of guilt." The habeas court also found that "no evidence
68 whatsoever outside of . . . Hemme's unreliable statements connect[] her to the crime," and
that in contrast, "the evidence directly ties [M.H.] to this crime and murder scene."
The habeas court's findings support the habeas court's legal conclusion that
Hemme established the gateway of manifest injustice/innocence sufficient to permit
review of her Brady claims, even without regard to whether the Attorney General waived
the defense that the claims were procedurally barred. The Attorney General has not, as
we have noted, challenged the habeas court's legal conclusion about the gateway of
manifest injustice/innocence. Importantly, in the context of assessing Brady materiality,
"the cumulative Brady evidence alters the calculus on [Hemme's] confession," and
"bolster[s] [Hemme's] claims that [her] confession was involuntary" due to her
psychiatric circumstances. Wright v. State, 91 A.3d 972, 993 (Del. 2014).
The habeas court did not commit error when it concluded that the suppressed
evidence it identified was material, and that as a result, Hemme established Brady
violations supporting habeas relief. The Attorney General's Points Six, Seven, Nine
(relating to materiality), Eleven, and Thirteen (relating to materiality) are without merit
and are denied.
IV.
The Habeas Record Supports the Issuance of a Writ of Habeas Corpus
For the reasons explained, we refuse to quash the habeas record insofar as it grants
Hemme habeas relief based on the five identified Brady violations. We need not address,
therefore, the additional bases for affording habeas relief found by the habeas court,
including the finding that the habeas record supports Hemme's freestanding actual
69 innocence claim, and Hemme's claims of ineffective assistance of counsel. Even if we
were to address those bases for habeas relief, the outcome would be the same, as all bases
for affording habeas relief yield an identical result--the vacation of a prior conviction, the
restoration of the relator to the status of a pretrial detainee, and the state's opportunity to
retry the habeas relator subject to conditions as may be imposed by the habeas court or by
this court following certiorari review. State ex rel. Koster v. McElwain, 340 S.W.3d at
232.
Because we need not address the alternative bases for affording habeas relief, we
neither quash or refuse to quash the habeas record with respect to Hemme's claim of
freestanding actual innocence, and her two claims of ineffective assistance of counsel.
The Attorney General's claimed irregularities relating to these alternative bases for
habeas relief, Points One, Two, Three, Four, and Five, are therefore denied as moot.
Conclusion
The habeas court did not exceed or abuse its authority in concluding that Hemme
established the gateway of cause and prejudice and the gateway of manifest
injustice/innocence permitting the habeas court to review Hemme's Brady claims. The
habeas court did not exceed or abuse its authority in concluding that Hemme established
Brady violations in connection with the Earring Evidence, the three suppressed FBI
Reports, and the M.H. Crime Evidence. As a result, the habeas court did not exceed or
abuse its authority in concluding that Hemme established a violation of her due process
right to a fair trial, warranting the issuance of a writ of habeas corpus.
70 We therefore refuse to quash the record of the habeas court. Hemme's 1985
conviction of capital murder in Buchanan County, Missouri in Case Number CR380-35F
is vacated. The effect of habeas relief is to return Hemme to the status of a charged
pretrial detainee. Irvin v. Dowd, 366 U.S. 717, 728 (1961). Based on the habeas court's
Judgment, Hemme has already been released on pretrial conditions set by the habeas
court pursuant to Rule 91.14 and Rule 33.
We are authorized to "impose restrictions on the retrial of a defendant whose
conviction has been vacated by a writ of habeas corpus." State ex rel. Koster v.
McElwain, 340 S.W.3d at 258 (citing State ex rel. Amrine v. Roper, 102 S.W.3d at 544,
549; State ex rel. Engel v. Dormire, 304 S.W.3d at 130). Hemme shall be released from
the pretrial conditions set by the habeas court, and from the jurisdiction of the Buchanan
County Circuit Court over the offense for which Hemme was convicted in Case Number
CR380-35F, unless the state files a written election to retry Hemme in relation to the
offense within ten days from the date of the issuance of our mandate, and unless the state
thereafter commences to retry Hemme within 180 days of the date of its filed election
(with the trial date being subject only to extensions requested or consented to by
Hemme).
__________________________________ Cynthia L. Martin, Presiding Judge
All concur
Related
Cite This Page — Counsel Stack
State of Missouri Ex Rel., Andrew Bailey v. The Honorable Ryan W. Horsman, Circuit Judge, and Jane Gann, Circuit Clerk, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-of-missouri-ex-rel-andrew-bailey-v-the-honorable-ryan-w-horsman-moctapp-2024.