Opinion handed down May 1, 2012
Jermane Clark was convicted of first-degree murder and armed criminal action in connection with the shooting death of Morris Thompson. The trial court ruled that Clark’s attorney could not cross-examine one of the State’s key witnesses about bias. The witness had expressed a desire to testify against Clark with the hope it would result in leniency in his own potential sentencing for unrelated charges. The Supreme Court of Missouri held that the circuit court abused its discretion by not allowing cross-examination of the witness’s bias.
I. Facts and Holding
On December 28, 2008, a St. Louis Metropolitan police officer found Morris Thompson shot to death near the 4300 block of Lee Avenue.[2] Two days later, the same officer responded to the area on suspicion of a man named “Glenn” brandishing a handgun.[3] The officer arrested a man meeting the suspect’s description and identified him as Glenn Shelby.[4] The gun Shelby had been carrying matched the one used to kill Thompson.[5]
During interrogation, Shelby told police that he had lent Jermane Clark, the Defendant, the gun shortly before the murder of Thompson.[6] Shelby also claimed that Clark had admitted to killing Thompson to Maurice Payne, another man who had also been in the vicinity around the time of the shooting.[7] At trial, Shelby testified that Thompson had appeared at a house in the area looking to buy crack cocaine and Clark had tried to sell him “fake crack” before robbing and shooting him.[8]
Police also questioned Maurice Payne about Thompson’s murder.[9] Payne told police that he had seen Clark shoot Thompson to death.[10] Payne testified at trial that after selling Thompson $30 worth of “fake” crack cocaine, Clark had attempted to rob the victim before shooting him.[11]
During a pre-trial deposition by the defense attorney, Payne testified that he hoped he would receive a more favorable sentence in an unrelated burglary charge in exchange for testifying against Clark.[12] At trial, the circuit attorney argued that the defense could not cross-examine Payne for bias for two reasons.[13] First, the circuit attorney argued that the defense could not attempt to depict Payne as being dishonest merely because he was hoping for leniency in his own sentencing.[14] Second, it was uncertain whether Payne would ever undergo sentencing and that his hope was “too tenuous” to use it for impeachment purposes.[15] The judge sustained the circuit attorney’s objection.[16] Alternatively, the defense submitted an offer of proof questioning Payne about his subjective desire for leniency.[17]
The jury convicted Clark and he appealed, arguing that the trial court abused its discretion by not permitting the defense to cross-examine Payne on the subject of sentence leniency, which violated the Sixth Amendment’s Confrontation Clause.[18]
On appeal, the Supreme Court of Missouri decided the case under Missouri’s law of evidence without reaching the constitutional question.[19] The Court found that a reasonable jury could have determined that Payne’s hope for leniency was relevant because it could have been a basis for potential bias.[20] Furthermore, the Court determined that given the lack of physical evidence in this case, accompanied by credibility issues with both Shelby and Payne, the defense’s cross-examination of Payne’s potential bias could have tipped the scale of guilt in the jurors’ minds in favor of aquitting Clark.[21] Therefore, the Court held that the circuit court had abused its discretion and the defense’s cross-examination of Payne’s potential bias should have been permitted.[22]
II. Legal Background
Missouri’s long held evidence rule on allowing cross-examination for witness bias dates back to an 1878 Missouri Court of Appeals decision.[23] In Mueller, the appellate court held that “[w]hen a witness is cross-examined, he may … be asked any questions which tend to test his accuracy, veracity, or credibility, or to shake his credit by injuring his character.”[24] The court took its cue from a well-known evidence treatise that had offered this type of cross-examination as a “well-established practice of the courts.”[25] Today, cases such as Mitchell v. Kardesch illustrate this long-established precedent.[26]
In State v. JLS,[27] the court described “bias” as being any sort of hostility or prejudice against an opponent, be it a personal prejudice or prejudice that favors the proponent. Furthermore, the court stated that “[e]vidence showing bias includes circumstances of the witness’s situation that make it probable that he or she has partiality of emotion for one party’s cause.”[28]
Stemming from the JLS court’s definition of “bias,” the Supreme Court of Missouri held in State v. Winfrey[29] that while a trial court has discretion over the scope and extent of cross-examination for witness bias, it may not completely bar the subject.[30] The Winfrey Court specifically referenced a 1982 case, State v. Edwards[31] where the court found that “[t]he interest or bias of a witness and his relation to or feeling toward a party are never irrelevant matters.”[32]
III. Comment
The Court’s decision illustrates an example of a borderline harmless error reversal which favored the Defendant’s right to a fair criminal trial. The court erred on the side of caution in what they assumed a reasonable juror would have inferred from Payne’s testimony and what affect the additional cross-examination could have had. Furthermore, with the lack of physical evidence and witness credibility, the Court was arguably concerned about wrongfully convicting Clark in light of the circumstances as a whole.
The ultimate issue in this case is whether the omission of cross-examination on Payne’s potential bias was harmless error. The Court held that it was not harmless error because the jury’s knowledge of Payne’s hope for leniency in exchange for his testimony could have caused the jurors to find him less credible and ultimately find the Defendant not guilty.[33] However, a closer look at the facts may suggest that what the jury knew about Payne and his credibility would not have changed by allowing this cross-examination by the defense.
The State’s brief submitted to the Court pointed to the testimony of Payne and his pending criminal case that had not yet reached sentencing.[34] It is possible that a reasonable juror could have inferred that a witness waiting for pending sentencing, testifying in an unrelated criminal trial, could be doing so with the hope or belief that it would have an effect of leniency on his upcoming sentencing. However, with so little evidence and so much at stake for Clark, it appears that the Court had no choice but to favor Clark’s rights and allow in any type of impeachment evidence that might be in his favor, regardless of what the jurors may have been aware of.
Going forward, it will be interesting to see how the Court might handle similar cases in which there is a plethora of evidence to support the conviction, unlike the case at hand. An important question may be whether the amount of evidence and the credibility of the eyewitnesses will play a role in whether a court finds an exclusion of impeachment evidence to be harmless error.
- Chantal Fink
[1] No. SC 92003 (Mo. May 1, 2012) (en banc), available at http://www.courts.mo.gov/file.jsp?id=54064. The West reporter citation is State v. Clark, 364 S.W.3d 540 (Mo. 2012) (en banc).
[2] Id. at 2.
[3] Id.
[4] Id.
[5] Id. at 2-3.
[6] Id. at 3.
[7] Id.
[8] Id. at 3-4.
[9] Id. at 4.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at 5.
[14] Id.
[15] Id. Payne's case had been transferred to the City of St. Louis drug court. Id. at 5. Participation in a drug court program was conditional on completing drug court requirements and following drug court rules. Id. If Payne failed these requirements his case would have been transferred to the circuit court for traditional sentencing. Id. Payne was never been offered a plea agreement in exchange for his testimony, and did so on his own recognizance. Id. at 2.
[16] Id at 5-6.
[17] Id. at 6.
[18] Id.
[19] Id. at 7.
[20] Id. at 9.
[21] Id.
[22] Id. at 10.
[23] Muller v. St. Louis Hosp. Ass'n, 5 Mo. App. 390 (1878)
[24] Id. at 401.
[25] Id.; see also Stephen's Dig. Law of Ev., 123.
[26] 313 S.W.3d 667, 670 (Mo. banc 2010)
[27] 259 S.W.3d 39 (Mo. App. 2008).
[28] Id. at 44.
[29] 337 S.W. 3d 1 (Mo. banc 2011).
[30] Id. at 8.
[31] 637 S.W.2d 27 (Mo. 1982).
[32] Id. at 29.
[33] Clark, No. 92003, at 4.
[34] Brief of Respondent-Appellee at 14-15, State v. Clark, 2011 WL 2143057 (Mo. App. E.D.).
