Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri held that a defendant was deprived of his right to a fair trial when the state failed to disclose the alleged victim’s criminal convictions prior to her testifying at his trial. Missouri Supreme Court Rule 25.03 imposes an affirmative duty of good faith upon the state to find any information that may be in the possession or control of other government personnel. A search by the prosecutor of other databases that were available to the state would have revealed that the victim had a criminal record. Because the state failed to uncover and disclose those records to the defense prior to trial, the state had to show that it acted diligently in its search, and the court found that the state did not meet this burden. Because the state’s case rested entirely on the testimony of the victim, the state’s failure to uncover and disclose the criminal history of the witness prejudiced the defendant. The court affirmed the judgment of the circuit court.
I. Facts and Holding
At Merriweather’s trial, testimony revealed two distinct versions of what occurred. The victim, T.B., testified that on March 31, 2002, Merriweather forced her into his car at gunpoint while she was walking home from a St. Louis bus station.[2] According to T.B., Merriweather then drove to an alley where he sexually assaulted her.[3] Conversely, Merriweather testified that T.B. had flagged him down as he was driving and offered to exchange oral sex for drugs.[4] He alleged that after T.B. performed oral sex, he refused to pay her and she began screaming.[5] Merriweather was charged with forcible sodomy, armed criminal action, kidnapping, and attempted forcible rape.[6]
Prior to trial, Merriweather’s counsel ran T.B.’s name through the REJIS database to determine whether she had a prior criminal history.[7] Defense counsel also made discovery requests to the state for T.B.’s criminal history.[8] Although a prosecution investigator ran a background check on T.B., including a REJIS search, the state did not uncover any criminal records on her.[9] The state did not introduce any physical evidence at trial.[10] The jury acquitted Merriweather of three counts of the four counts against him but convicted him of forcible sodomy.[11]
Merriweather unsuccessfully appealed the conviction but was able to get a hearing on a Rule 29.15 post-conviction motion.[12] In his motion, Merriweather argued that the state had failed to disclose T.B.’s criminal record to the defense before trial in violation of Rule 25.03 and precedent from the Supreme Court of the United States.[13] At the evidentiary hearing for the post-conviction motion, the prosecutor stated that earlier that morning, she ran a record check on T.B. using a newer L.E. Web database instead of the older REJIS database.[14] The search of that database revealed that T.B. did indeed have three convictions in Illinois for theft and a pending charge in St. Louis County for fraudulent use of a credit device.[15] The prosecutor’s office began using the L.E. Web database after Merriweather’s trial and all of the discovered charges against T.B. preceded the trial.[16]
Additionally, the investigator testified that although he had access to other databases at the time of the trial, he only ran criminal checks on REJIS.[17] The investigator was also unable to explain why the pending St. Louis charge did not show up in the original REJIS search and could not remember whether he had searched using any of T.B.’s known aliases.[18] The motion court vacated Merriweather’s conviction, concluding that he had been deprived of his right to a fair trial.[19] The Missouri Court of Appeals for the Eastern District affirmed.[20] Transfer was then granted to the Supreme Court of Missouri pursuant to article V, section 10 of the Missouri Constitution.[21]
The court began its analysis with a brief review of the principles of applicable precedent from the Supreme Court of the United States.[22] However, the Supreme Court of Missouri stated that, while that 1963 case informed its opinion, Rule 25.03 and its progeny were controlling.[23] The court continued by stating that a failure to disclose potentially exculpatory material is a trial error that could be considered in a post-conviction motion because the issue is one of fundamental fairness.[24] Rule 25.03 imposes on the state an affirmative duty to discover information that is not in its possession or control, including that which is in the possession of “other government personnel.”[25] The state must make a diligent and good faith effort to locate and provide such materials to the defense.[26] It was a question of fact whether the state had fulfilled this duty.[27] Although the investigator had testified that it was his practice to run criminal histories of witnesses before trial and to print out any criminal history for the prosecutor, no such printout was found in the prosecutor’s file.[28] The investigator had also testified that although he had access to other databases, he had only run checks on the REJIS database.[29] Finally, the court noted that the state’s case was entirely dependent upon T.B.’s credibility and that, in light of the importance of T.B.’s criminal history, the state’s effort fell short of Rule 25.03’s requirements.[30] The Supreme Court of Missouri affirmed the motion court’s decision.[31]
II. Legal Background
The Supreme Court of the United States has stated that, where it is material to the defendant’s guilt or punishment, the suppression by the prosecution of requested evidence that is favorable to the defense constitutes a violation of due process, regardless of the prosecution’s good or bad faith.[32] The Court stated that society suffers when trials are unfair and that a prosecutor’s withholding of evidence does not comport with standards of justice, even if the actions were unintentional.[33]
Following the Supreme Court’s example, Missouri adopted Supreme Court Rule 25.03.[34] Under Rule 25.03(c), if the defense requests any material that would be discoverable if in the possession or control of the state but which is in the control or possession of other governmental personnel, the state has an affirmative duty to use “diligence and good faith” to make the materials available to the defense.[35] Thus, the duty imposed by Rule 25.03 is greater than that imposed by the Supreme Court, which requires only that the prosecution provide the defense with evidence that is within their immediate possession.[36]
In the instant case, the Supreme Court of Missouri determined that the prosecution had not fulfilled its duty to use diligence in finding evidence that was in the possession of other personnel.[37] Although the prosecution did not itself have possession of T.B.’s criminal record, the record was in the possession of other governmental personnel and was accessible through databases available to the prosecution. The determination of whether diligence was used is a question of fact and the court found that the actions and testimony of the prosecution’s investigator were sufficient to find that the prosecution did not exercise sufficient diligence.[38] The investigator could not recall under which names he had searched in the REJIS database, from which it could be inferred that T.B.’s aliases were not searched.[39] Additionally, although the prosecution had access to other databases, only REJIS was searched at the time.[40] The prosecution’s lack of diligent effort consequently deprived Merriweather of a fair trial.
III. Comment
In Merriweather, the state’s case rested entirely on the credibility of T.B., and had the jury known that she had a criminal history, it could have significantly impacted their assessment of her credibility. The question remains what the court would have done if there had been other evidence against Merriweather. The practical effect of the instant decision is that prosecutors will likely now search all databases at their disposal in order to show a diligent effort to find their witnesses’ criminal histories. However, it remains to be seen whether a lack of such diligence will warrant a reversal if the state introduces other evidence in addition to witness testimony.
-Neil D. Fossum
[1] Merriweather v. State, No. SC 89846, 2009 WL 2762467 (Mo. Sep. 1, 2009).
[2] Id. at *1.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id. The REJIS database (Regional Justice Information Service) is used by police departments, courts, and attorneys in the St. Louis Metro area and is used to search the criminal records of participating departments. Some persons, such as private attorneys, may have limited access to the database while others, such as prosecutors, are allowed greater access to the REJIS records.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id at *1-2.
[13] Id. at *2.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at *4.
[18] Id. at *2.
[19] Id.
[20] Id.
[21] Id.
[22] Id. at *2-3.
[23] Id. at *3.
[24] Id.
[25] Id. at *4.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] Id. at *5.
[31] Id.
[32] Brady v. Maryland, 373 U.S. 83, 87 (1963).
[33] Id. at 87-88.
[34] Mo. Sup. Ct. R. 25.03.
[35] Mo. Sup. Ct. R. 25.03(c).
[36] See, e.g., United States. v. Tierney, 947 F.2d 854, 864 (8th Cir. 1991).
[37] Merriweather, No. SC 89846, 2009 WL 2762467, at *4 (Mo. Sep. 1, 2009).
[38] Id.
[39] Id.
[40] Id.
