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WD83688

IN THE MISSOURI COURT OF APPEALS

WESTERN DISTRICT

STATE OF MISSOURI ex rel. )

ERIC S. SCHMITT, )
)
Relator, )
)
v. ) No.____________________
)
THE HONORABLE DANIEL R. GREEN, )
Circuit Judge of Cole County, and )
)
DAWNEL DAVIDSON, Circuit Clerk, )
Cole County Circuit Court, )
)
Respondents. )

SUGGESTIONS IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI

This Court should issue a permanent writ of certiorari and quash the rec-

ord of the habeas court because it exceeded its authority and abused its discre-

tion when it ordered Petitioner Jonathan Irons’ convictions and sentences for

first-degree assault, first-degree burglary, and armed criminal action vacated.

The habeas court premised its order solely on a finding that the State failed to

disclose a fingerprint report before trial in violation of Brady v. Maryland, 373

U.S. 83 (1963). (Rel. Ex. E at 1633–34). 1 The habeas court exceeded its authority

and abused its discretion when granting relief because Irons cannot show cause

to excuse his default of this claim, because Irons cannot show that the finger-
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print report in question was not disclosed, and because even if the report was

not disclosed, Irons cannot show the report was material.

Grounds for Issuing the Writ of Certiorari

Standard of Review

When a circuit court exceeds its authority to grant habeas relief, or abuses

its discretion in issuing the writ of habeas corpus, then certiorari relief is proper.

State ex rel. Koster v. Fitzsimmons, 425 S.W.3d 166, 167 (Mo. App. S.D. 2014).

The reviewing court “is limited to determining whether the lower court acted be-

yond its authority in granting habeas relief, based solely on a review of the rec-

ord.” State ex rel. Hawley v. Heagney, 523 S.W.3d 447, 450 (Mo. 2017). “The suf-

ficiency of the evidence to support the habeas writ is a question of law and sub-

ject to certiorari review.” State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 518 (Mo.

2001). Because the circuit court exceeded its authority and abused its discretion

when granting the writ, this Court should issue a preliminary writ of certiorari,

to which Relator is entitled as a matter of right, State ex rel. Nixon v. Kelly, 58

S.W.3d 513, 516 (Mo. 2001), and then issue a permanent writ quashing the rec-

ord of the habeas court, see State ex rel. Beaird v. Del Muro, 98 S.W.3d 902, 906

(Mo. App. W.D. 2003).

1 Relator cites to the page numbers of the combined PDF of Relator’s ex-
hibits.
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I. The habeas court acted beyond its authority and abused its dis-
cretion when it granted habeas relief because Irons cannot show
cause to excuse the default of his claim.

Irons defaulted his Brady claim by failing to raise it on direct appeal or in

his Rule 29.15 litigation. The habeas court found that Irons established cause

and prejudice to excuse this default. Under Missouri law, a habeas petitioner

cannot show cause to excuse the default if he or she had reason to know of the

claim but failed to raise the claim on direct review or post-conviction relief. State

ex rel. Taylor v. Moore, 136 S.W.3d 799, 801 (Mo. 2004); Ferguson v. Dormire,

413 S.W.3d 40, 54 (Mo. App. W.D. 2013). The habeas court failed to correctly ap-

ply this standard. While the habeas court found that a fingerprint report was

not disclosed before trial, it failed to address the fact that the contents of the

fingerprint report were the subject of direct and cross-examination during Irons’

trial. In other words, the habeas court misapplied the legal standard because

Irons should have known about the fingerprint report given that Irons knew the

factual content of the report.

A. Factual Background

Irons’ Brady claim in his habeas petition centered around two fingerprint

reports. Irons admitted that one report (“Report A”) was disclosed. This report

stated that Irons’ prints were not identified at the crime scene. (Rel. Ex. B at

144). The other report (“Report B”) included the additional information that

Stanley Stotler’s fingerprint was identified at the crime scene. (Rel. Ex. B at 93).

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Stotler was the victim, and the crime scene was his home. Irons claimed that

Report B was not disclosed by the State.

During Irons’ trial, the State presented evidence that latent fingerprints

were lifted from the crime scene. (Rel. Ex. D at 986). The only identifiable prints

belonged to the victim, Stanley Stotler. Id. Then, on cross-examination, Irons’

trial counsel elicited that the latent prints were compared to Irons’ prints and

that they did not belong to Irons. Id. at 988–90. Irons was present for trial and

heard this testimony. Thus, the only additional evidence that was contained in

Report B, that the victim’s fingerprint was found in his own home, was disclosed

during trial. But on direct appeal and in post-conviction relief, Irons failed to

raise any claim about his alleged failure to receive the fingerprint report despite

hearing the fingerprint testimony at trial.

B. Irons cannot show cause to excuse his default because he had

reason to know of his claim.

Because “habeas corpus is not a substitute for appeal or post-conviction

proceedings,” a habeas petitioner who fails to raise his or her claims on direct

appeal or in a timely filed motion for post-conviction relief has procedurally de-

faulted those claims. State ex rel. Simmons v. White, 866 S.W.2d 443, 446 (Mo.

1993); State ex rel. Strong v. Griffith, 462 S.W.3d 732 (Mo. 2015). The habeas

court, despite Irons and trial counsel personally witnessing the testimony, ap-

plied the cause and prejudice exception and excused his default. (Rel. Ex. E at

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1628). But in so doing, the habeas court did not perform the correct legal analy-

sis.

Cause and prejudice are conjunctive criteria, thus, a petitioner must satis-

fy both criteria to obtain relief. Murray v. Carrier, 477 U.S. 478, 488 (1986).

Cause occurs when “some objective factor external to the defense impeded coun-

sel’s [or the petitioner’s] efforts to comply with the State's procedural rule.” State

ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 215 (Mo. 2001) (quoting Murray, 477 U.S.

at 488). “[A] petitioner with the factual knowledge for a legal claim cannot argue

that ignorance of the law is ‘cause’ for procedural default.” Taylor, 136 S.W.3d at

802 (emphasis in original).

While the “cause” prong of the cause and prejudice exception is “partially

co-extensive with the second element of a Brady violation… to fully establish

‘cause,’ however, [the petitioner] must also demonstrate that the nondisclosure

explains the procedural default of his Brady claim because he did not know or

have reason to know about the undisclosed [evidence.]” Ferguson, 413 S.W.3d at

54 (emphasis added). If the habeas petitioner shows that evidence was deliber-

ately concealed, then the petitioner would not have had reason to know of the

claim. State ex rel. Clemmons v. Larkins, 475 S.W.3d 60, 76 (Mo. 2015). But if

the petitioner did have reason to know of the factual basis for his claim within

the time limits for filing their direct appeal or post-conviction relief actions, then

he cannot show cause to excuse procedural default. Ferguson, 413 S.W.3d at 54.

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It is the petitioner’s burden of proof to show that he did not have reason to know

of his claim. Id. at 58.

Here, Irons presented no evidence that the existence of the fingerprint re-

port was deliberately concealed. On the contrary, as will be discussed further be-

low, the evidence presented at the habeas hearing actually suggests that Report

B was disclosed. Moreover, the record of Irons’ trial demonstrates that the fact

that law enforcement identified the victim’s fingerprint at the crime scene was

presented during the trial. (Rel. Ex. D at 986–90). So even if Irons did not pos-

sess Report B before trial, Irons should have had reason to know that the report

was not disclosed when this testimony was elicited during trial. In other words,

Irons had every reason to know of the existence of the report, and thus the fac-

tual basis for his current claim, when the information in the report was dis-

closed during trial. Irons presented no evidence to the contrary.

The habeas court mistakenly concluded that “[c]ause and prejudice exists

to overcome any procedural default” because the facts supporting his Brady

claim did not arise until the fingerprint report was “discovered years after

[Irons’] conviction.” (Resp. Ex. E at 1628). But as illustrated above, this is con-

tradicted by the trial record. The habeas court also found cause and prejudice

based on the facts underlying two completely separate Brady claims which Irons

raised in his petition. Id. But the habeas court did not grant relief on those

claims or even consider whether the evidence supporting those claims was sup-

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pressed. Id. at 1633. “[T]he gateway of cause of prejudice is claim specific,” so

this analysis was legally erroneous. McKim v. Cassady, 457 S.W.3d 831, 852

(Mo. App. W.D. 2015) (quoting State ex rel. Koster v.McElwain, 340 S.W.3d 221,

247 (Mo. App. W.D. 2011)). Factually speaking, whether or not Irons was aware

of any other evidence at the time of his direct appeal and Rule 29.15 litigation is

irrelevant to whether Irons had reason to know of his Brady claim regarding the

fingerprint report.

Because the trial record demonstrates that Irons and trial counsel person-

ally were advised of the factual underpinnings of Irons’ Brady claim at trial, and

because Irons’ trial occurred before his direct appeal and Rule 29.15 litigation

commenced, the habeas court exceeded its authority and abused its discretion by

finding cause to excuse Irons’ default and by granting habeas relief.

II. The habeas court acted beyond its authority and abused its dis-
cretion when it granted habeas relief because Irons presented in-
sufficient evidence that the fingerprint report was not disclosed
and the fact that the victim’s fingerprint was found at the crime
scene was disclosed at trial.

Brady imposes a broad duty on the State “to disclose evidence in its pos-

session that is favorable to the accused and material to guilt or punishment.”

State v. Goodwin, 43 S.W.3d 805, 812 (Mo. 2001). This includes evidence that

may be used to impeach a witness. State v. Robinson, 835 S.W.2d 303, 306 (Mo.

1992). To show that a constitutional violation under Brady has occurred, a peti-

tioner must demonstrate that 1) the State failed to disclose evidence favorable to

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the petitioner, 2) the State suppressed the evidence, either intentionally or in-

advertently, and 3) the undisclosed evidence was prejudicial. Clemmons, 475

S.W.3d at 78; State v. Moore, 411 S.W.3d 848, 854 (Mo. App. E.D. 2013).

Irons’ Brady claim relied on his argument that Report B was not disclosed

before trial. The habeas court found that the report was not disclosed based on

trial counsel’s testimony during the evidentiary hearing and the testimony of

Reggie Williams during the evidentiary hearing. (Rel. Ex. E at 1624). But the

trial record demonstrates that the information contained in the fingerprint re-

port was discussed during trial and trial counsel made no objection or gave any

indication that the information had not been previously disclosed. (Rel. Ex. D at

986–90). Moreover, an investigator with the Missouri Attorney General’s Office

testified that part of the report was actually found in Irons’ trial file, which was

disclosed by Irons’ during discovery.

As discussed above, during Irons’ jury trial the State presented evidence

that the victim’s fingerprint was identified at the crime scene. (Rel. Ex. D at

986–90). There is no indication from the record that either Irons or his trial

counsel were surprised by this testimony.

During the habeas court’s evidentiary hearing on October 9, 2019, trial

counsel testified that if Report B was not in her trial file, then it was not some-

thing she would have seen before trial. (Rel. Ex. D at 1401). But trial counsel

candidly admitted to having very little recollection of the trial. Id. at 1423, 1433.

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She further admitted that her testimony that she did not remember receiving

Report B was based on Irons’ habeas counsel telling her the night before that the

report was not in the case file. Id. at 1427. Trial counsel viewed Report B during

the hearing and admitted that if someone told her Report B was found in her

case file, she would have no reason to dispute it. Id. at 1431.

In fact, Chris Horn, an investigator from the Missouri Attorney General’s

Office, testified that Report B was found in Irons’ public defender case file. Id. at

1549. Irons’ habeas counsel disclosed the public defender trial and appellate files

from Irons’ case before the hearing, and in those files a partial copy of Report B

was found. Id. at 1550. While part of the bottom of the report is missing, Irons’

trial counsel agreed that it could have been copied over when the case file was

transferred to the appellate office. Id. at 1456.

Irons also presented the testimony of Reggie Williams, who became inter-

ested in Irons’ criminal case after being introduced to Irons while Irons served

his sentences. Id. at 1341–42. Williams testified that he was familiar with the

file and had not seen the report in the public defender file before. Id. at 1561.

The habeas court found Williams’ testimony credible, but it did not actually re-

solve the conflict between Williams’ testimony and the other evidence that sug-

gests the report was disclosed. (Rel. Ex. E at 1625) (finding Williams’ and trial

counsel’s testimony credible, but without any explanation). Williams may ear-

nestly believe that Report B was not in the trial file, and thus appear credible,

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but the other facts demonstrate that he is mistaken. Williams’ mistake is under-

standable given that Irons’ habeas counsel also did not see the report in the file.

Irons never presented any evidence to explain why part of Report B was in his

public defender file.

Though this Court “assume[s] the habeas court made findings of fact war-

ranted by the evidence sufficient to sustain the habeas judgment[,]” the evidence

does not warrant that assumption here. State ex rel. Hawley v. Spear, 544

S.W.3d 267, 272 (Mo. App. W.D. 2018). Indeed, this assumption should only be

had “in the absence of a contrary showing[.]” State ex rel. Shartel v. Skinker, 25

S.W.2d 472, 478 (Mo. banc 1930). Here, the habeas court’s finding that Report B

was not disclosed before trial is counter to the trial record, to trial counsel’s evi-

dentiary hearing testimony, and to the Missouri Attorney General’s investiga-

tor’s testimony.

Additionally, the habeas court’s decision is contrary to the law because

where the allegedly suppressed information is disclosed during trial, there is no

Brady violation. State v. Salter, 250 S.W.3d 705, 714 (Mo. 2008); United States v.

Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996).2 Here, the habeas court found that

Report A, which Irons possessed before trial, “indicated only that there were un-

2Federal decisions interpreting the Due Process Clause also provide guid-
ance for Missouri courts. Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. 2006) (the
Due Process Clause of the Missouri Constitution is co-extensive with the United
States Constitution).
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identified fingerprints collected from the crime scene.” (Rel. Ex. E at 1630). 3 It

next found that Report B “clarified that an unidentified fingerprint not belong-

ing to petitioner or the victim was lifted from the glass.” Id. But as discussed

above, the fact that the only identifiable prints belonged to the victim was

brought out during trial. (Rel. Ex. D at 986–90). And as the habeas court itself

found, Irons was already aware that there were unidentified latent fingerprints

lifted from the crime scene. (Rel. Ex. E at 1630). Therefore, the only “new infor-

mation,” i.e., that the victim’s fingerprint was identified, was disclosed no later

than during trial, in Irons’ and trial counsel’s presence. The habeas court could

not, as a matter of law, find that this information was suppressed under Brady.

Salter, 250 S.W.3d at 714.

III. The habeas court acted beyond its authority and abused its dis-
cretion when it granted habeas relief because even if the finger-
print report was not disclosed, the information in the report was
not exculpatory or material.

As discussed above, part of Report B was found in the public defender file

by the Missouri Attorney General’s Office, although some of the report may have

been cut off at some point by a photocopier. (Rel. Ex. D at 1330). And the sub-

stantive information contained in Report B, that the victim’s fingerprint was

found at the scene, was elicited during trial. (Rel. Ex. D at 986–90). The evi-

dence in this case shows that Report B and its contents were actually disclosed

3 The report that Irons admitted was disclosed actually also stated that
Irons’ fingerprint was not identified as one of the latent fingerprints found at the
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before trial, and certainly no later than during trial. It is understandable that

trial counsel did not remember the report over twenty years after Irons’ trial,

particularly because Irons’ habeas counsel failed to see the report in the file. But

even if this fingerprint report was suppressed, Irons could not be entitled to ha-

beas relief because the only information this report adds is that the victim’s fin-

gerprint was identified on his own front door. Compare (Rel. Ex. B at 93) with

(Rel. Ex. B at 144).

A. The evidence was not exculpatory or material.

The suppression of exculpatory evidence by the prosecution violates due

process “where the evidence is material either to guilt or to punishment.” Brady,

373 U.S. at 87; see also Merriweather v. State, 294 S.W.3d 52, 54 (Mo. 2009). Ev-

idence is material “if there is a reasonable probability that, had the evidence

been disclosed to the defendant, the result of the proceeding would have been

different.” United States v. Bagley, 473 U.S. 667, 682 (1985); State ex rel. Engel

v. Dormire, 304 S.W.3d 120, 128 (Mo. 2010). “A ‘reasonable probability’ of a dif-

ferent result is … shown when the government’s evidentiary suppression ‘un-

dermines confidence in the outcome of the trial.’” Ferguson, 413 S.W.3d at 55

(quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)); Clemmons, 475 S.W.3d at

78.

scene. This appears clearly from the face of the report. (Rel. Ex. B at 144).
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The habeas court found that Irons possessed Report A, which stated there

were unidentified latent fingerprints found at the crime scene. (Rel. Ex. E at

1630). That report also eliminates Irons as the source of those fingerprints. (Rel.

Ex. B at 144). The habeas court also found that Report B only “clarified that an

unidentified fingerprint not belonging to petitioner or the victim was lifted from

the glass.” (Rel. Ex. E at 1630). Report B also states that the identifiable latent

fingerprint belonged to the victim. (Rel. Ex. B at 93).

Because Irons already possessed a report that—at a minimum—stated

there were unidentified fingerprints at the scene, the only additional infor-

mation contained in the allegedly undisclosed report is the fact that one of the

victim’s prints was also identified. This information is not exculpatory—it would

be unsurprising to find the victim’s fingerprints in his own home.

On top of this, nothing in Report B is material. The habeas court found

that the report “would have given counsel unassailable forensic evidence to at-

tack the state’s case[.]” (Rel. Ex. E at 1631). But the habeas court found that

Irons already knew that there were unidentified latent fingerprints at the crime

scene based on Report A. Id. at 1630. Irons already had all of the evidence avail-

able to present his defense.

The additional testing conducted by the Missouri State Highway Patrol

(“MSHP”) during the pendency of Irons’ habeas petition further undercuts any

possibility of materiality. On order of the habeas court, MSHP examined the la-

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tent prints discussed in Report B. MSHP concluded that those latent prints

which did not belong to the victim were of “no value” and therefore not suitable

for comparison. Therefore, the latent prints could not have pointed to any alter-

native suspect. 4

B. The habeas court erroneously considered additional evidence

when reviewing materiality.

When reviewing materiality, the habeas court also considered the eviden-

tiary hearing testimony of Dr. James Lampinen regarding eyewitness identifica-

tion, statements made by Amber Boeckman to police immediately after the

shooting, and theorized that the State’s case against Irons could have been

weaker if no gun was admitted into evidence. (Rel. Ex. E at 1632–33). The habe-

as court undertook this analysis by stating that “newly discovered evidence,

even if it is not a direct component of the underlying Brady claim, must be con-

sidered in conjunction with the suppressed Brady material[.]” Id. at 1632. This

legal reasoning is erroneous for multiple reasons.

First, this Court has been critical of this type of analysis in the past. The

habeas court relied on State ex rel. Griffin v. Denney, 347 S.W.3d 73, 77 (Mo.

2011), and State ex rel. Woodworth v. Denney, 347 S.W.3d 73, 77 (Mo. 2013), to

support its analysis. But in Ferguson, this Court specifically noted that Griffin

4 The habeas court found that MSHP determined the prints “are not suita-
ble for submission to AFIS.” (Rel. Ex. E at 1616). This is only partially accurate.
MSHP’s report states that the latent prints have “no value” and are not suitable
for further analysis. (Rel. Ex. D at 1578).
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should not be read so broadly as to allow consideration of all newly discovered

evidence when considering Brady materiality. Ferguson, 413 S.W.3d at 72 n.49.

Instead, courts should only consider the undisclosed evidence that was in the

State’s possession. Id.

Second, this evidence was not “newly discovered.” Amber Boeckman made

her statement to police immediately after the crime and that statement was dis-

closed to the defense. 5 Likewise, the photographic lineup which Dr. Lampinen

examined was disclosed to the defense before trial. 6 And the habeas court’s con-

clusion that the gun “probably should not have been admitted into evidence”7 is,

again, not newly discovered evidence, and is not based on legally sound grounds.

See State v. Young, 701 S.W.2d 490, 496 (Mo. App. W.D. 1985) (An “unqualified

identification” is not required to make a weapon admissible, just connection with

the crime charged). If the habeas court believed the gun was not admissible, it

could have simply included that finding in its order. But it instead chose not to

decide that claim.

5 Crystal Boeckman, Amber’s sister, also gave a statement, which contra-

dicts her sister’s statement. Compare (Pet. Ex. 15) with (Resp. Ex. V).
6 Indeed, Irons made observations about the lineup during his Rule 29.15

deposition, and he never alleged that the lineup was not disclosed. (Resp. Ex. K
at 6); (Rel. Ex. A at 19–20).
7 The habeas court declined to address Irons’ claim that trial counsel was

ineffective for failing to object to the admission of the gun, but considered the
possibility that the gun could have been excluded from evidence as part of its
materiality analysis anyway. (Rel. Ex. E at 35, 36).
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C. The habeas court improperly relied on the other allegedly undis-
closed evidence.

Irons raised two other Brady claims in his habeas petition: That the State

failed to disclose a civil suit against a detective involved in Irons’ case and a blog

allegedly written by that detective, and that the State failed to disclose “en-

hancement” of Irons’ photographic lineup. Though the habeas court expressly

stated that it did not need to “address whether the State also suppressed” this

evidence, it considered these claims as part of its materiality analysis anyway.

(Rel. Ex. E at 1631–32, 1633–34). As discussed above, this Court has noted that

courts should not consider evidence that was not suppressed by the State when

deciding materiality, so this analysis was legally erroneous. Ferguson, 413

S.W.3d at 72 n.49.

But assuming that the habeas court intended to consider this evidence as

other undisclosed evidence in the State’s possession, Irons presented insufficient

evidence that the evidence was suppressed. As to the detective’s civil litigation 8

and alleged blog posts, Irons did not show that the State suppressed this infor-

mation. Information about the civil suit was publicly available, so there is no

Brady violation. United States v. Zuazo, 243 F.3d 428, 431 (8th Cir. 2001) (“The

government does not suppress evidence in violation of Brady by failing to dis-

close evidence to which the defendant had access through other channels.”) (cit-

8The detective was eventually dismissed as a party by the plaintiffs. (Rel.

Ex. D at 1193).
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ing United States v. Cheatham, 899 F.2d 747, 752–53 (8th Cir. 1990)). And Irons

could not demonstrate the blog posts existed at the time of his trial. Instead, he

could only show the blog page was last updated over a year after his trial. (Rel.

Ex. D at 1396); (Pet. Ex. 23 at 274). 9 As for the lineup, Irons never claimed that

the lineup was suppressed before trial. (Rel. Ex. A at 19–20). He did claim that

the fact that his face appeared larger than other faces was suppressed, but Dr.

Lampinen admitted that this fact could be discerned simply by measuring the

pictures with a ruler. (Pet. Ex. 7). None of this information was suppressed by

the State.

Conclusion

For the reasons herein stated, Relator respectfully requests that this

Court issue its writ of certiorari.

9 The habeas court stated in a footnote that the blog was created by Au-
gust 1, 1998. (Rel. Ex. E at 1618 n.23). But the part of the website that Irons’
exhibit states was last updated in 1998 is a different web address than the blog
entries. Compare (Rel. Ex. B at 269) with id. at 274. The web address for the
blog entries cannot be dated earlier than October 9, 1999, after Irons’ trial. (Rel.
Ex. D at 1396).
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Respectfully submitted,

ERIC S. SCHMITT
Attorney General

/s/ Patrick Logan

PATRICK J. LOGAN
Assistant Attorney General
Missouri Bar No. 68213
P. O. Box 899
Jefferson City, MO 65102
(573) 751-1508
(573) 751-3825 fax
Patrick.Logan@ago.mo.gov
Attorneys for Relator

CERTIFICATE OF SERVICE
I hereby certify that a true and
correct copy of the foregoing was
sent via electronic mail to Taylor
L. Rickard, Kent. E Gipson, the
Hon. Daniel R. Green, and
Dawnel Davidson this 23 day of
March, 2020.

/s/Patrick Logan
Assistant Attorney General

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