Date: 11-24-2015

Case Style: Reginald Clemons vs. Steve Larkins

Case Number: SC90197

Judge: Patricia Breckenridge

Court: SUPREME COURT OF MISSOURI

Plaintiff's Attorney: Mark G. Arnold

Defendant's Attorney: Gabriel Rottman

Description: Reginald Clemons was convicted of two counts of first-degree murder and
sentenced to death for the April 5, 1991 murders of sisters, Julie Kerry and Robin Kerry.
Mr. Clemons filed a petition for a writ of habeas corpus in this Court, seeking to vacate
his convictions because he claims that newly discovered evidence shows that he was
prejudiced when the state violated Brady v. Maryland, 373 U.S. 83 (1963), by
withholding material evidence. In the alternative, Mr. Clemons requests that this Court
vacate his death sentences because his sentences are disproportional due to his age and
lack of criminal record, new evidence that Mr. Clemons’ confession was coerced,
evidence that Mr. Clemons’ did not directly murder the Kerry sisters but acted only as an
accomplice, and because of the reduced sentence of a “more culpable” codefendant.
This Court appointed a special master under Rule 68.03 to take evidence and issue
findings of fact and conclusions of law as to Mr. Clemons’ allegations. After hearing
multiple days of testimony and reviewing thousands of pages of record, the master issued
a report in which he found that the state had violated Brady by failing to produce
evidence favorable to Mr. Clemons that a witness observed an injury to Mr. Clemons’
face shortly after a police interrogation and that the witness documented his observations
of the injury in a written report that was later altered by the state. The master determined
that the state’s failure to disclose this evidence was prejudicial to Mr. Clemons because it
could have led to the suppression of Mr. Clemons’ confession, a critical part of the state’s
case against Mr. Clemons. Substantial evidence supports the master’s findings that the
state deliberately violated Brady and that, in the absence of the undisclosed material
evidence, the jury’s verdicts are not worthy of confidence. Accordingly, this Court vacates Mr. Clemons’ convictions and sentences for first-degree murder.1 Within 60
days from the date the mandate issues in this case, the state may file an election in the
circuit court to retry him. If the state does not so elect, the case against Mr. Clemons
shall be dismissed, and Mr. Clemons shall be discharged on this matter.
1 On June 19, 2007, Mr. Clemons received a 15-year sentence for committing violence to a department of corrections employee to be served consecutively to his death sentence. Clemons v. Steele, No. 4:11CV379 JCH, 2011 WL 5912617, at *1 (E.D. Mo. Nov. 28, 2011). As such, Mr. Clemons shall remain in the state’s custody.
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Facts and Procedural Background2
Around 11:35 on the evening of April 4, 1991, 20-year-old Julie Kerry and her 19year-old sister, Robin,3 took their visiting cousin, Thomas Cummins, to the Chain of Rocks Bridge in St. Louis.4 The sisters wished to show Mr. Cummins a poem they had
written on the bridge several years before. The cousins arrived at the bridge around
midnight.
As the cousins began to walk east on the bridge, they saw a group of four men
coming from the Illinois side. Mr. Cummins later identified the men as Reginald
Clemons, Marlin Gray, Antonio Richardson, and Daniel Winfrey. The two groups had a
brief conversation on the bridge. Mr. Winfrey asked the Kerry sisters for a cigarette.
Mr. Gray demonstrated to the others how to climb over the bridge railing and come back
up through a manhole in the deck of the bridge. He commented to Mr. Cummins that the
manhole was a “good place to be alone and take your woman.” The groups then parted
ways.
The cousins continued walking toward the Illinois side when they heard footsteps
approaching them from behind. It was the four men. Mr. Winfrey later testified that the
four men decided to return to the cousins after Mr. Clemons suggested they rob them and
2 Portions of this opinion are taken without attribution from the Court’s opinion in State v. Clemons, 946 S.W.2d 206 (Mo. banc 1997), and the amended final report of the special master. 3 Because the two sisters share the same surname, they will be referred to by their first names for clarity. No disrespect is intended. 4 The Chain of Rocks Bridge is a former highway bridge that spans the width of the Mississippi River, connecting Missouri to Illinois. At the time of the crimes, it was abandoned.
4
Mr. Richardson suggested they rape the girls. At first, the four men were, again, friendly
to the cousins. As all seven began walking together toward the Missouri side, Mr. Gray
grabbed Mr. Cummins by the arm, walked him back a short distance, and ordered him to
the ground. Mr. Cummins immediately complied and remained facedown after Mr. Gray
warned Mr. Cummins that he would kill him if he looked up.
Mr. Cummins then heard his cousins begin to scream. Mr. Cummins believed he
continued to be guarded by Mr. Gray, while the other men raped the Kerry sisters.
Eventually, Mr. Gray left and Mr. Cummins was guarded by other members of the group.
He heard one of the men say that he had never had the pleasure of “poppin’ somebody.”
He did not know who said this but he did not believe it was Mr. Gray.
Mr. Cummins heard sounds of a struggle and Julie continuing to scream. One of
the men told one of the Kerry sisters to take off her pants and threatened to throw her off
the bridge if she did not comply. One of the men returned to Mr. Cummins and asked
Mr. Cummins if he had any money. The man then took $20 and a Swatch watch from Mr. Cummins.5 When the man removed Mr. Cummins’ wallet from his pocket, he
discovered a badge and “freaked.” Another man demanded to know if Mr. Cummins was
a police officer and was told that Mr. Cummins was a firefighter, not a “cop.” Several of
the men approached Mr. Cummins. One told Mr. Cummins that he had Mr. Cummins’
driver’s license and would come and get him if Mr. Cummins told anyone what had 5 Three days later, on April 8, 1991, the watch stolen from Mr. Cummins was found hidden in a residence where Mr. Gray had recently visited. On this discovery, Mr. Cummins returned from Maryland to Missouri to view a series of lineups. From the lineups, Mr. Cummins was able to identify Mr. Clemons, Mr. Gray, Mr. Richardson, and Mr. Winfrey as his assailants.
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happened. Mr. Cummins was then told to get up and to keep looking down as he was
moved along the bridge toward the Missouri side. He was then forced to lie down again.
Two of the men talked to Mr. Cummins about whether he would live or die and argued
over whether to kill Mr. Cummins.
Mr. Clemons then approached Mr. Cummins and told him he had raped his
girlfriend and asked how that felt. Mr. Cummins told him that she was not his girlfriend,
she was his cousin. Mr. Clemons then told Mr. Cummins to get up and keep his head
down. Mr. Clemons walked Mr. Cummins over to an open manhole in the bridge and
had him sit on the edge of the manhole. Mr. Cummins was then told to go through the
manhole onto a steel platform suspended about five feet below the surface of the bridge.
When he did this, Mr. Cummins saw the Kerry sisters lying on their backs on the
platform.
Other than the Kerry sisters, Mr. Cummins did not see anyone else on the metal
platform at that time. After laying down on the platform, he heard two thuds that he
believed were two sets of feet dropping onto the platform. He felt the cousin who was
lying next to him move back and forth, which he believed was caused by someone raping
her. Mr. Cummins and the cousins were then told to step down onto a concrete pier
about three feet below the platform. Although he could only see one of the men, he
believed two of them were still on the platform. Without warning, he saw an arm push
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Julie and then Robin off the bridge.6 He was told to jump by the man that he later
identified as Mr. Richardson, and he did.
When he surfaced in the Mississippi River, Mr. Cummins briefly had contact with
Julie but then lost sight of her. He never saw Robin. Authorities recovered Julie’s body
from the river near Caruthersville three weeks later. Robin’s body was never found.
Eventually, Mr. Cummins was able to reach the bank on the Missouri side of the river
south of the Chain of Rocks Bridge. He climbed up the bank and found a road. Shortly
before 2:00 a.m., Eugene Shipley was driving a truck south of the Chain of Rocks Bridge
near the St. Louis Waterworks when he saw Mr. Cummins step onto the road to flag him
down. Mr. Shipley observed that Mr. Cummins’ hair was wet and unkempt and he was
crying. Mr. Cummins told Mr. Shipley that he needed help, that his cousins had been
raped, and that he had been thrown off the bridge.
Officers from the St. Louis Metropolitan Police Department responded to the
scene after being contacted by Mr. Shipley. When the police officers arrived at the Chain
of Rocks Bridge, they questioned Mr. Cummins. After it got light, the police took Mr.
Cummins onto the bridge and he showed them where the events took place. The police
found a number of items on the bridge including a set of keys carried by Mr. Cummins,
an unused condom, a used condom, a pen, some change, and a cigarette butt. A black
flashlight engraved with “Horn I” was also discovered several hundred yards east of the
other items. 6 Mr. Cummins stated that he saw a “black” arm push Julie off the bridge and that the same or another black arm pushed Robin off the bridge. Mr. Clemons, Mr. Richardson and Mr. Gray were black and Mr. Winfrey was white.
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Even though Mr. Cummins was questioned at the scene, his first recorded
statement was taken at the police station around 9 a.m. by Detectives Raymond Ghrist
and Gary Stittum. While Mr. Cummins was being interviewed by Detectives Ghrist and
Stittum, another officer attempted to enlist assistance in searching the river for the Kerry
sisters. When he contacted the Missouri State Water Patrol, he spoke with an officer and
was told information about the river currents and the water temperature that caused him
to doubt Mr. Cummins’ statements. Other erroneous information, including the belief
that Mr. Cummins was lying because he could have simply fought off the four assailants
given that none of them ever pulled a weapon, caused the police to obtain another
recorded statement from Mr. Cummins.
Mr. Cummins’ second recorded statement was conducted by Detectives Richard
Trevor and John Walsh. This statement lasted until 12:40 p.m. and was largely consistent
with what Mr. Cummins had first told Mr. Shipley and the responding officers at 2:00
a.m. just after the police were contacted. Nevertheless, a May 31, 1991 incident report
that purportedly summarized Mr. Cummins’ statements in the second recorded
interrogation, materially mischaracterized his statements to indicate he said that he and
Julie had become close when they were both visiting Florida the year before and that they
were close to having sex. It also incorrectly stated that Mr. Cummins changed his story
and said that he had not jumped off the bridge and, instead, ran from the bridge and got
wet only when he jumped into the water from the bank to search for the Kerry sisters.
The police then obtained Mr. Cummins’ consent to submit to a polygraph
examination. Although Mr. Cummins’ condition and the circumstances under which the
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polygraph was performed were such that its results should not have been given any
credence, the police proceeded. When the test was completed, the examiner told
Mr. Cummins that the test showed he was “deceptive.” The police then talked with
Mr. Cummins’ father and told him information that temporarily convinced him that his
son could not have survived a jump from the bridge and that his son’s polygraph test was
classified as deceptive. Mr. Cummins’ father talked to Mr. Cummins and urged him to
tell the truth. The police then claimed that Mr. Cummins changed his story to say he ran
off the bridge, jumped in the water only up to his neck, and then ran for help. Later under
oath, Mr. Cummins vehemently disputed having ever made these statements.
According to police reports prepared after Mr. Cummins had been cleared by the
police for the deaths of the Kerry sisters, Lieutenant Steven Jacobsmeyer, deputy
commander of the Crimes Against Peoples Unit, and Detective Chris Pappas and
Detective Joseph Trevor interrogated Mr. Cummins again after they became aware of
Mr. Cummins’ allegedly changed of story. The report stated that, although Mr. Cummins
refused to make a recorded statement, he told these officers that he tried to have sex with
Julie but she was unwilling, they argued, he pushed her, and she lost her balance and fell
off the railing of the bridge. When this happened, he became hysterical and blacked out,
and he believed that either Robin jumped into the river to save her sister or he pushed her
in. Following this alleged confession, the police arrested Mr. Cummins and announced to
the media that the Chain of Rocks murders were solved.
Mr. Cummins later testified that after his father left the interrogation room, he was
threatened by Lieutenant Jacobsmeyer that if he did not tell the police officers what they
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wanted to hear, “he was going to put [Mr. Cummins] in the hospital that night and he had
witnesses that would say [Mr. Cummins] resisted arrest.” Mr. Cummins stated that the
police yelled and screamed at him and that he was told to sit on his hands, at which time
one of the detectives twisted his neck while another gave him at least ten “hard blows” in
the back of the head. Mr. Cummins stated that, despite this abuse, he did not make the
statements reported by Lieutenant Jacobsmeyer and Detectives Pappas and Trevor.
About the same time as Mr. Cummins was being interrogated and charged with the
murders, the police received a call from a woman who had seen a television news story
about the search for the owner of a black flashlight engraved with “Horn I.” She
identified the flashlight as one that had been stolen a few days earlier. The information
she gave eventually led to the arrest of Mr. Richardson. The police apprehended
Mr. Richardson on April 6 and, during an interrogation, Mr. Richardson implicated both Mr. Gray and Mr. Clemons.7
On the evening of April 7, 1991, St. Louis police officers located Mr. Clemons
and asked if he would accompany them to police headquarters because his name had
surfaced in “the bridge case.” Mr. Clemons agreed. At this time, Mr. Clemons was not
under arrest. According to police, Mr. Clemons was advised of his rights, indicated that
he understood his rights, and agreed to speak with the police. He was then interrogated
for approximately 45 minutes, took a 20 break, and then was interrogated for another
hour and 15 minutes by Detective Pappas and Detective Joseph Brauer.
7 Mr. Richardson was not able to identify the other male in the group, but police later ascertained that the man was Mr. Winfrey.
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During the first interrogation, Mr. Clemons admitted only to having been with
Mr. Richardson, Mr. Gray, and a person he did not know – later identified as
Mr. Winfrey – at the Chain of Rocks Bridge on the night of the murders but denied
having any involvement in the rapes and murders. During the second interrogation, when
Mr. Clemons was asked whether he knew Julie and Robin Kerry, he responded by asking
if they “were the two girls on the bridge with the white dude.” According to police,
Mr. Clemons then voluntarily agreed to give a recorded statement.
During the recorded statement, Mr. Clemons said that on the evening of April 4,
he went with Mr. Richardson, Mr. Gray, and the unidentified white male to the Chain of
Rocks Bridge. After they arrived, Mr. Richardson gave Mr. Clemons a large flashlight,
and the group began to walk across the bridge. During their walk, they approached two
white females and one white male and spoke with them briefly. Thereafter,
Mr. Richardson came up with the idea of robbing the male and raping the two females.
They all agreed to participate. Mr. Clemons admitted he robbed Mr. Cummins, raped one
of the girls and was on the metal platform below the bridge with the three victims and
Mr. Richardson. Mr. Clemons also admitted that Mr. Richardson told him that he was
going to push the sisters into the water because he did not want to leave any witnesses
and that Mr. Clemons made no comment to Mr. Richardson’s suggestion. Additionally,
he stated that the Kerry sisters were stripped by Mr. Richardson and Mr. Gray, that
Mr. Richardson hit one of the sisters in the face when she tried to fight him off, that the
Kerry sisters were conscious and screaming during the repeated rapes and when they
were pushed off the bridge, that one sister was forced to perform oral sex on
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Mr. Richardson, and that, after Mr. Richardson pushed one sister off, the other sister
grabbed the wrist of Mr. Richardson, who then punched her and pushed her off the
bridge. In Mr. Clemons’ recorded statement, he denied, however, that he pushed anyone
off the pier and stated that it was Mr. Richardson who pushed the victims into the water.
At the conclusion of his statement around 1:00 to 2:00 a.m. on April 8, Mr. Clemons was arrested and booked for murder. Booking photographs were taken at this time.8
While Detectives Brauer and Pappas were interrogating Mr. Clemons, Detectives
Trevor and Walsh located Mr. Gray at a friend’s house and brought him into custody. Mr. Gray was then interrogated by Detectives Trevor, Brauer, and Pappas.9 During a
recorded statement by Mr. Gray, he admitted to raping both sisters but denied being in
the manhole when the sisters and Mr. Cummins were pushed off the pier. When his
statement was complete, Mr. Gray was arrested and booked for murder. On April 8 at
2:10 p.m., approximately 14 hours after Mr. Clemons’ interrogation had ended, Officer
Warren Williams, who was the ex-husband of a cousin of Mr. Clemons’ mother and a
police officer for the city of St. Louis, visited Mr. Clemons in a holdover cell on the
request of Mr. Clemons’ mother. During the visit, Mr. Clemons told Officer Williams
that he got in with the wrong people, had gotten drunk before going to the Chain of
Rocks Bridge, had raped two girls on the bridge and had left his flashlight on the bridge
8 The master did not make a finding as to whether these booking photographs indicated trauma to Mr. Clemons’ face. 9 By the time of Mr. Gray’s interrogation, Detective Pappas had finished his interrogation of Mr. Clemons and began interrogating Mr. Gray with Detective Trevor. At some point during Mr. Gray’s interrogation, Detective Brauer replaced Detective Trevor and completed the interrogation with Detective Pappas.
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but that another boy had pushed the girls into the water. Officer Williams did not
observe any injuries to Mr. Clemons during his visit.
Mr. Clemons’ attorney, Michael Kelly, met with him shortly after Officer
Williams had visited. Mr. Kelly observed swelling and a small abrasion to Mr. Clemons’
right check, a small abrasion on the inside of his lip, and bruises on his chest. When Mr.
Clemons made his first court appearance the next day, his family also observed that there
was an injury to his face. At the court hearing, Mr. Clemons’ sister, Veronda Brown,
observed that the right side of his face looked lopsided and swollen. Donald Robinson,
Mr. Clemons’ cousin, saw that the right side of his face was swollen and his right eye
was swollen closed. Mr. Clemons’ mother, Vera Thomas, observed that the right side of
his face was swollen and stuck out. His stepfather, Reynolds Thomas, also saw that the
right side of his face was swollen and puffy. The judge who presided over that court
hearing ordered that Mr. Clemons be medically examined. He was taken to the
emergency room at Regional Medical Center, where Dr. Stephen Duntley diagnosed
Mr. Clemons with soft tissue swelling over the right sarcoma or cheek bone and
tenderness at that site.
Within a short time after Mr. Clemons and Mr. Gray were arrested and booked,
they both filed complaints with the police department’s Internal Affairs Division (IAD),
alleging that they had been beaten by the detectives who interrogated them. On April 9,
1991, at 3:13 p.m., two IAD investigators interviewed Mr. Clemons at the jail regarding
his allegations. In the transcript of that interview, Mr. Clemons told the investigators
that, on April 7, he was taken into an interview room and that the detectives started
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asking him questions. Mr. Clemons stated that he told the detectives that he had nothing
to do with the murders on the bridge and, after being advised of his constitutional rights,
stated that he wanted to talk to an attorney. Following the request, Mr. Clemons stated
that a detective slapped him in the back of the head twice, again advised him of his
constitutional rights, and threatened to bounce him off the wall if he did not talk.
Mr. Clemons again said he wanted a lawyer. Mr. Clemons said that at some point he was
told to scoot back from the table and to sit on his hands and one of the detectives
slammed the back of his head into the wall. When he still refused to talk, Mr. Clemons’
head was again slammed against the wall, he was choked, and he was hit in the chest by
one of the detectives. He told IAD investigators that both detectives continued to strike
him repeatedly until he eventually lost consciousness.
After regaining consciousness, Mr. Clemons agreed to make a statement to avoid
more physical abuse. The officers wrote out what they wanted Mr. Clemons to say and
had him read it over and over so he could remember it. The notes instructed
Mr. Clemons to declare that he was the one who pushed the women off the bridge. He
refused to make that admission, and the officers told Mr. Clemons to say that he raped
one of the sisters and restrained Mr. Cummins. After he made the recorded statement,
Mr. Clemons claimed that the police were unhappy with it, beat him some more, and
ordered him to make a new tape. In the second tape, Mr. Clemons again confessed to the
rapes and robbery, but not to the murders.
Mr. Gray’s complaint filed with the IAD alleged that his statement was coerced
because he had been beaten by the police. Mr. Gray was interviewed by the IAD
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investigator on April 9, 1991, a little before 5:00 p.m. Mr. Gray stated that he was not
advised of his rights and was told he could not have an attorney. When Mr. Gray refused
to talk, he was struck by one of the police officers. He was then uncuffed and told to sit
on his hands. He was then beaten in three different interrogation sessions. The
detectives wrote out the statement they wanted Mr. Gray to make, and he eventually gave
a tape-recorded statement confessing to robbing Mr. Cummins and raping the Kerry
sisters. He also denied pushing the Kerry sisters off the bridge.
Prior to trial, Mr. Clemons moved to suppress his statement to the police on the
ground that it was involuntary because police had obtained it by beating him, in violation
of his constitutional rights. The court conducted a hearing on the motion. Detectives
Pappas and Brauer testified that they were present for three interrogations of
Mr. Clemons and that neither of them hit Mr. Clemons or observed any injuries. Officer
Williams, who visited Mr. Clemons in his holdover cell on April 8, also testified for the
state. He, too, stated that he did not observe any injuries to Mr. Clemons when he saw
him approximately 14 hours after Mr. Clemons had been interrogated.
Mr. Clemons also called several witnesses, including the members of his family
and his attorney who had observed his injuries on April 8 and April 9. Additionally,
Mr. Clemons testified at the suppression hearing on his own behalf, stating that Detective
Pappas and another detective hit him in the head and chest while they were interrogating
him. To corroborate his testimony, Mr. Clemons made an offer of proof of the transcript
of Mr. Cummins’ testimony from Mr. Gray’s trial, in which Mr. Cummins said that he
was beaten by the police and then was alleged to have made statements that led to his
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arrest for the murders of the Kerry sisters.10 The state objected that Mr. Cummins’
statements were not relevant to whether Mr. Clemons had been beaten. After finding that
the transcript of Mr. Cummins’ testimony from Mr. Gray’s trial did not show any alleged
similarity in tactics employed by the police in interrogating Mr. Cummins and Mr. Clemons, the trial court sustained the state’s objection to the offer of proof.11
After hearing the evidence, the trial court overruled Mr. Clemons’ motion to
suppress his confession. The court held that “the basis for [its] ruling is there was not any
credible evidence to show how [Mr. Clemons] got those injuries if, in fact, he got them.
And that was other than [his] testimony.”
Mr. Clemons’ trial commenced on January 25, 1993, and lasted until February 18,
1993. The state’s evidence against Mr. Clemons included Mr. Clemons’ confession, the testimony of Mr. Cummins, and the testimony of Mr. Winfrey.12 Mr. Cummins testified
consistently with his prior statements to the police. Mr. Winfrey testified that
Mr. Clemons participated in the crimes by grabbing Mr. Winfrey and pushing him toward
the side of the bridge until Mr. Winfrey agreed that he would participate in the rapes;
ripping the clothes off one of the Kerry sisters and getting on top of her; getting on top of 10 Mr. Gray’s trial ended on October 23, 1992, before Mr. Clemons’ suppression hearing began on February 1, 1993. 11 While Mr. Clemons’ and Mr. Gray’s statements to the IAD officers mirrored Mr. Cummins’ testimony that the police had used the unusual tactic of requiring the suspects to sit on their hands while beating them during the interrogations, Mr. Clemons did not testify about this tactic during the motion to suppress hearing so the trial court could not have recognized this similarity. 12 Codefendant Mr. Winfrey, who was 15 years old at the time of the murders, pleaded guilty to two counts of second-degree murder, two counts of forcible rape, and one count of first-degree robbery, in exchange for a recommendation of a 30-year sentence from the state. Mr. Winfrey was released from prison in 2007.
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the other sister; taking one of the Kerry sisters to the manhole; robbing Mr. Cummins;
throwing the girls’ clothing over the side of the bridge; putting Mr. Cummins in the
manhole; sitting on the edge of the manhole when he sent Mr. Winfrey to find Mr. Gray;
and telling Mr. Gray and Mr. Winfrey, “We threw them off. Let’s go.”
At his trial, Mr. Clemons did not testify on his own behalf, but he did present
witnesses who testified they observed Mr. Clemons’ bruised face after he had been
questioned by the police. In addition to his family and his attorney, Dr. Duntley, the
emergency room doctor who examined him as ordered by the judge, testified for the
defense that Mr. Clemons had soft tissue swelling and tenderness on his right cheek
bones that could have been caused by Mr. Clemons’ cheek being hit against a solid
object, such as a wall or bar.
Before closing arguments, the state moved to prohibit argument by defense
counsel that the police beat Mr. Clemons because the only evidence presented was that he
had injuries but not how they were sustained. Because the trial court found the police
denied causing the injuries and Mr. Clemons did not dispute the officers’ testimony by
presenting competent evidence as to who was responsible for inflicting the injuries, the
trial court held that there was no evidentiary basis to support argument that the police
coerced Mr. Clemons’ confession. Accordingly, the trial court sustained the state’s
motion to prevent Mr. Clemons from arguing in his closing argument that his confession
was coerced because he was beaten by police. Nevertheless, the trial court submitted a
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jury instruction proffered by Mr. Clemons regarding the voluntariness of his confession.13
After deliberations, the jury found Mr. Clemons guilty of two counts of first-degree
murder.
During the sentencing phase of Mr. Clemons’ trial, the jury heard testimony from
more than 30 thirty witnesses – 13 called by the state and 18 called by Mr. Clemons.
Mr. Clemons again did not testify on his own behalf. During deliberations, the jury sent
a message to the judge asking for “[a]ll photographs, tape recorded tapes (audio),
statements of Winfrey, Cummins, Clemons[.]” The judge ordered that the jury receive all
photographs admitted into evidence and the transcripts of Mr. Winfrey’s and
Mr. Cummins’ statements. The jury was not allowed to hear audio recordings of
Mr. Winfrey’s and Mr. Cummins’ statements because these were not played at trial. The
jury was returned to the courtroom, where the court again played the recorded audio
statement of Mr. Clemons to the jury. While listening to the audio recording, the jury
13 Jury instruction number 27 stated:
Evidence has been introduced that the defendant made certain statements relating to the offense for which he is on trial.
If you find that a statement was made by the defendant, and that this statement was freely and voluntarily made under all of the circumstances surrounding and attending the making of the statement, then you may give it such weight as you believe it deserves in arriving at your verdict.
However, if you do not find and believe that the defendant made the statement, or if you do not find and believe that the statement was freely and voluntarily made under all the circumstances surrounding and attending the making of the statement, then you must disregard it and give no weight in your deliberation.
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was allowed to review a transcript of his statement. The jury was not able to take the
audio recording or the transcript of Mr. Clemons’ statement to the deliberation room.
The jury found 12 aggravating circumstances and recommended two death
sentences. Following the jury’s recommendation, the trial court sentenced Mr. Clemons to death for each of the murders.14
On November 1, 1993, Mr. Clemons filed a motion to vacate, set aside or correct
the judgment or sentence of the trial court pursuant to Rule 29.15. The trial court
overruled the motion after an evidentiary hearing. In a consolidated appeal, this Court
affirmed Mr. Clemons’ convictions and sentences and affirmed the trial court’s
overruling of Mr. Clemons’ motion for post-conviction relief. State v. Clemons, 946
S.W.2d 206 (Mo. banc 1997).
In his direct appeal, Mr. Clemons raised numerous claims of error, including that
the trial court erred by allowing into evidence his confession because it had been obtained
through physical force by police. In this Court’s opinion affirming his convictions, it
14 In separate trials, codefendant Gray was convicted of two counts of first-degree murder and sentenced to death on each count, and codefendant Richardson was convicted of one count of first-degree murder and one count of second-degree murder. Mr. Richardson was sentenced to death for first-degree murder and to life imprisonment for seconddegree murder. Their convictions and sentences were affirmed on direct appeal. State v. Gray, 887 S.W.2d 369 (Mo. banc 1994); State v. Richardson, 923 S.W.2d 301 (Mo. banc 1996). Mr. Gray’s sentence was carried out in 2005. Mr. Richardson’s capital sentence was summarily set aside by this Court in State v. Richardson, No. SC76059, order entered October 29, 2003, because of a constitutional violation arising from the trial judge’s sentencing following a jury deadlock. See State v. Whitfield, 107 S.W.3d 253, 257-58 (Mo. banc 2003) (applying the rule of law articulated in Apprendi v. New Jersey, 530 U.S. 466 (2000), that only the jury may determine the aggravating factors for sentencing in capital cases).
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determined that Mr. Clemons had not met his burden of proving that his confession was
involuntary. Id. at 218. In so ruling, this Court recited the evidence in the light most
favorable to the trial court’s ruling, particularly Officer Williams’ testimony that he did
not observe an injury to Mr. Clemons during his visit. Id. The Court noted that the trial
court had the opportunity to judge the credibility of the witnesses and obviously found
the state’s witnesses more credible than Mr. Clemons’ witnesses. Id. The Court found
that the evidence, other than Mr. Clemons’ testimony from his suppression hearing, did
not demonstrate either when or how Mr. Clemons incurred any injury and that the
evidence did not establish that an injury actually occurred at the hand of the police
officers conducting his interrogation. Id. The Court further found that, while there was
evidence of his physical injuries, his family’s observations of his injuries occurred 48
hours or more after his interrogation and confession. Id.
After his convictions and sentences and the overruling of his post-conviction
motion were affirmed, Mr. Clemons filed a writ of certiorari with the United States
Supreme Court, which denied the writ without comment on November 10, 1997. He
subsequently filed a petition for a writ of habeas corpus in the United States District
Court that included a claim that his confession was a product of coercion in violation of
his Fifth Amendment privilege against self-incrimination. The district court denied relief on this claim but granted the petition and vacated the death penalty on other grounds.15
15 The district court found that the trial judge had improperly excused some potential jurors during jury selection and, on that ground, ordered that Mr. Clemons’ death sentence be vacated and that he either be resentenced to life without parole or given a new trial.
20
Clemons v. Luebbers, 212 F.Supp 2d 1105 (E.D. Mo. 2002). The state appealed, and the
United States Court of Appeals for the Eighth Circuit, reversed. Clemons v. Luebbers,
381 F.3d 744, 757 (8th Cir. 2004).
On June 12, 2009, Mr. Clemons filed a petition for a writ of habeas corpus in this
Court pursuant to article V, section 4 of the Missouri Constitution, asserting that newly discovered evidence established his “actual innocence”16 and that he has a right to have
the proportionality of his death sentence reviewed, despite this Court’s previous finding
that his sentence was proportional.
As authorized by Rule 68.03, this Court appointed a special master to take
evidence and issue a master’s report on the claims in the habeas petition. The master presided over discovery in the matter.17 He heard three days of live and videotaped
testimony from 23 witnesses and conducted an in-depth review of the evidence and trial
record.
Before the master had conducted a formal hearing on the matter, Warren Weeks,
who now lives more than 1,000 miles away from St. Louis, contacted Mr. Clemons’
16 Specifically, Mr. Clemons, in his actual innocence claim, alleges newly discovered evidence of the fact that $150,000 was paid to settle the lawsuit Mr. Cummins filed in 1993 against members of the police department, in which he alleged they assaulted him in an attempt to coerce a confession. He argues this newly discovered evidence supports his claim that his confession was physically coerced. Mr. Clemons, however, did not include this claim in the “Points Relied On” section of his brief to this Court. Accordingly, because Mr. Clemons did not include his “actual innocence” claim in his brief to this Court, it is considered waived and will not be addressed in this opinion. See Rule 84.04(d). 17 The evidentiary hearing was delayed for several years due to difficulty in obtaining DNA results and the parties’ requests for additional discovery. Both parties consented to these delays to fully develop the record in the case.
21
counsel after learning about the special master proceeding. In response to Mr. Weeks’
expected testimony and, apparently without objection, Mr. Clemons expanded his
grounds for habeas relief to assert what is commonly called a “cause and prejudice” claim.18
At the time of Mr. Clemons’ arrest in April 1991, Mr. Weeks was a bail
investigator working for the Missouri Board of Probation and Parole. In that capacity,
Mr. Weeks was responsible for screening individuals soon after their arrests to see if they
qualified for release. Specifically, Mr. Weeks interviewed arrestees for the purpose of
obtaining information for a court commissioner’s consideration in deciding whether a
prisoner should be given a pretrial release immediately or be held over until the prisoner
could appear before a judge.
In a videotaped deposition presented in evidence by agreement after the three-day
hearing before the master, Mr. Weeks testified that he conducted his interviews in a small
room with three desks – one for Mr. Weeks, one for his supervisor, and one for a court
commissioner. A guard would bring one to four prisoners into the room. The prisoners
would be seated about three feet across from the investigator’s desk and were each
interviewed for 5 to 10 minutes. Mr. Weeks was responsible for interviewing prisoners
and filling out a three-page pretrial release form that included information about the
18 A petitioner seeking habeas relief under a cause and prejudice claim must show that his failure to comply with procedural rules was due to a “cause” external to the defense and this Court’s failure to review this claim would “prejudice” him. Woodworth v. Denney, 396 S.W.3d 330, 337 (Mo. banc 2013).
22
prisoner’s employment, residence, criminal background, and mental or physical
problems.
Mr. Weeks testified he was on duty on the morning of April 8, 1991, and
Mr. Clemons was brought to him for his pretrial release assessment around 5:25 a.m. His
interview of Mr. Clemons took place approximately three hours after Mr. Clemons was
booked and more than eight hours before Mr. Williams’ visit with Mr. Clemons in the
holdover cell. Mr. Weeks testified that, during this interview, he noticed a “bump” or a
“bruise” on Mr. Clemons’ right cheek that he described as being between the size of a
golf ball and a baseball. He asked Mr. Clemons about the bump, but Mr. Clemons did
not respond. Mr. Weeks made a record of Mr. Clemons’ injury on the pretrial release
form and believes that he wrote “bump” or “bruise” on the form.
Mr. Weeks testified that after he had completed the pretrial release form, he would
have given it to the court commissioner, Yvonne Edwards, to review, and she would then
record additional information on the form. Mr. Weeks testified he did not see the form
again after giving it to the court commissioner for review. When Mr. Weeks viewed the
pretrial release form during his deposition, he testified that his notation of a “bump” or a
“bruise” had been scratched out and could not be read. He also stated that he recognized
Ms. Edwards’ handwritten “okays” written throughout the form, her notations of
“asthmatic – medication,” “follow up for police report, submit,” and “no bond,” and her
signature on the first page of the form. Mr. Weeks testified he had not scratched out
“bump” or “bruise” and did not know who had.
23
Mr. Weeks further testified that he discussed Mr. Clemons’ injury with his
supervisor, Pete Lukanoff, after Mr. Clemons and the other prisoners left the room.
Mr. Lukanoff’s desk was situated right next to Mr. Weeks’ during the time Mr. Clemons
was seated across the desk from Mr. Weeks. After the prisoners left the room, he
commented to Mr. Lukanoff that Mr. Clemons’ injury might be from a spider bite. But,
after speaking with Mr. Lukanoff who was a former St. Louis city police officer,
Mr. Weeks testified he believed the injury occurred while Mr. Clemons was being interrogated by the police.19 Mr. Weeks testified that his interview of Mr. Clemons was
otherwise unremarkable.
Mr. Weeks further testified that several months after interviewing Mr. Clemons
and filling out the form, Ben Coleman, another supervisor in the probation and parole
office, called him into his office and questioned him regarding his ability to observe any
injuries to Mr. Clemons. Mr. Weeks testified that he had never before been called to talk
to Mr. Coleman or Mr. Lukanoff about his notations on a pretrial release form and had
never heard of any of his colleagues being called to talk to the supervisors about such a
matter. Mr. Coleman explained to Mr. Weeks that Nels Moss, the state’s prosecutor in 19 During his deposition, Mr. Weeks testified that Mr. Lukanoff started laughing in response to his comment about Mr. Clemons’ injury possibly being from a spider bite. He testified that Mr. Lukanoff told him “that’s – that kind of bump gets there when a . . ..” The state then objected on the grounds of hearsay. His attorney voluntarily rephrased his question to Mr. Weeks, and instead asked him what Mr. Lukanoff’s reaction was. Mr. Weeks then testified without objection that Mr. Lukanoff was not surprised by the injury because “[h]e had seen them before” and that Mr. Lukanoff had been a police officer for five or 10 years. Mr. Lukanoff was not referenced in the IAD report so it is not known if he was interviewed during the IAD investigation. He did not testify at Mr. Clemons’ trial and, at the time of the master’s hearing, Mr. Lukanoff was deceased.
24
Mr. Clemons’ case, wished to speak with Mr. Weeks about his evaluation of
Mr. Clemons. Mr. Weeks testified that after his meeting with Mr. Coleman he felt
pressured not to say anything about Mr. Clemons’ injury.
Mr. Weeks then was called to meet with Prosecutor Moss. In that meeting,
Mr. Moss also challenged the accuracy of Mr. Weeks’ observations of the injury to
Mr. Clemons’ face and showed him pictures of Mr. Clemons taken shortly after
Mr. Clemons’ interrogation by the police that did not appear to show any injury to
Mr. Clemons’ face. Mr. Weeks testified that he had never before been called to talk to a
prosecutor about an interview and had never heard of any of his colleagues being called
to talk to the prosecutor.
Mr. Weeks testified he told Mr. Moss that the photos did not make him change his
mind about Mr. Clemons’ injury because “[he] saw what [he] saw and everybody saw
what they saw who was in that interview room.” Mr. Weeks testified that Mr. Moss
“made it very clear that he didn’t think that [Mr. Weeks] was describing [the injury]
accurately based on the pictures.” Nevertheless, Mr. Weeks maintained that he had
observed the injury to Mr. Clemons as he recorded it on the pretrial release form.
Mr. Weeks testified that Mr. Moss seemed irritated at his refusal to change his mind. Mr. Weeks was never contacted or interviewed by internal affairs investigators.20
20 The IAD report notes that Mr. Clemons was interviewed several hours after his arrest by non-department employees working in the Pretrial Release Office but it does not accurately state what Mr. Weeks recorded in his report. The IAD report notes that Mr. Weeks said in his report that he questioned Mr. Clemons regarding his general health and Mr. Clemons claimed his only health problem was asthma. The IAD report does not include the statement in Mr. Weeks’ report that Mr. Clemons had a “bruise” or “bump.”
25
Mr. Weeks’ reaction after meeting with Mr. Moss was that “there’s something weird
going on. I think they don’t want to – nobody wants to talk about the – what really
happened to this gentleman when he was being interviewed by the police.”
At the habeas hearing before the master, Mr. Moss was called as a witness by
Mr. Clemons. Mr. Moss testified that he recalled having met with Mr. Weeks before
Mr. Clemons’ trial and that Mr. Weeks had made some references to Mr. Clemons’ face
being swollen. When asked if a witness who had seen Mr. Clemons’ injury immediately
after the police interrogation would have been important to the defense, Mr. Moss
answered, “I don’t know. I would assume so.”
On August 6, 2013, the master issued his report, in which he concluded that the
state had violated Mr. Clemons’ constitutional rights under Brady by suppressing
material inculpatory evidence corroborating Mr. Clemons’ claim that his confession was
coerced by the police. Based on his finding that Mr. Weeks’ testimony was credible, the
master concluded that the state had deliberately concealed Mr. Weeks’ observation of
Mr. Clemons’ injury and suppressed the information he recorded in the pretrial release
form by altering Mr. Weeks’ record of his observation. The master further concluded
that this evidence corroborated both Mr. Clemons’ claim of police abuse made to the IAD
The IAD report concluded that Mr. Clemons’ and Mr. Gray’s allegations that they were physically abused by police were not substantiated because there was insufficient evidence to either prove or disprove the allegations. The IAD report further concluded that Mr. Clemons’ allegation that the police had thrown away his first recorded statement was unfounded. Additionally, the IAD concluded that Mr. Clemons’ and Mr. Gray’s allegations that they had requested, but were denied, an attorney during questioning were unfounded.
26
and his family members’ and attorney’s testimony that they had observed injuries to
Mr. Clemons’ face. Moreover, the master found that this evidence could have
contradicted and impeached Officer Williams’ testimony that he did not observe any
injuries to Mr. Clemons’ face. Accordingly, the master held that Mr. Weeks’ testimony
may have resulted in the trial court sustaining Mr. Clemons’ motion to suppress his
confession and, therefore, could reasonably have put the case in a different light so as to
undermine confidence in the verdict. On September 25, 2013, the master overruled the
state’s exceptions to his report and filed an amended report with the Court.
Analysis I. Standard of Review for Master’s Report In cases in which this Court appoints a master under Rule 68.03, the Court will
sustain the master’s findings and conclusions “unless there is no substantial evidence to
support them, they are against the weight of the evidence, or they erroneously declare or
apply the law.” State ex rel. Lyons v. Lombardi, 303 S.W.3d 523, 526 (Mo. banc 2010);
see also Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). The master’s findings
should receive the “weight and deference which would be given to a court-tried case by a
reviewing court” due to “the master’s unique ability to view and judge the credibility of
witnesses.” State ex rel. Woodworth v. Denney, 396 S.W.3d 330, 336-37 (Mo. banc
2013) (internal quotations omitted). In light of this deference, “[t]his Court should
exercise the power to set aside the findings and conclusions [of the master] on the ground
that they are against the weight of the evidence with caution and with a firm belief that
the conclusions are wrong.” Id. at 337.
27
II. Standard of Review for Habeas Relief Habeas corpus relief is the final judicial inquiry into the validity of a criminal
conviction and functions to relieve defendants whose convictions violate fundamental
fairness. Id. A habeas petitioner has the burden of showing that the petitioner is entitled
to habeas corpus relief. State ex. rel. Winfield v. Roper, 292 S.W.3d 909, 910 (Mo. banc
2009). “[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.”
Woodworth, 396 S.W.3d at 337 (internal quotations omitted).
The available relief under a writ of habeas corpus is limited and generally cannot
be utilized to raise procedurally barred claims, such as those that could be raised on direct
appeal or in a post-conviction proceeding. Id. Habeas corpus can provide relief even for
procedurally barred claims if the petitioner can show:
(1) a claim of actual innocence or (2) a jurisdictional defect or (3)(a) that the procedural defect was caused by something external to the defense— that is, a cause for which the defense is not responsible—and (b) prejudice resulted from the underlying error that worked to the petitioner's actual and substantial disadvantage.
State ex rel. Zinna v. Steele, 301 S.W.3d 510, 516-17 (Mo. banc 2010). Moreover, a
petitioner may seek habeas relief for procedurally barred claims “in circumstances so rare
and exceptional that a manifest injustice results.” State ex rel. Simmons v. White, 866
S.W.2d 443, 446 (Mo. banc 1993); see also State ex rel. Engel v. Dormire, 304 S.W.3d
120, 125 (Mo. banc 2010).
Mr. Clemons seeks to overcome the procedural bar to his habeas corpus claim by
showing “cause and prejudice.” “To demonstrate cause, the petitioner must show that an
28
effort to comply with the State’s procedural rules was hindered by some objective factor
external to the defense.” Woodworth, 396 S.W.3d at 337. The factual or legal basis for a
claim must not have been reasonably available to counsel or some interference by
officials must have made compliance impracticable. Id. Evidence that has been
deliberately concealed by the state is not reasonably available to counsel and constitutes
cause for raising otherwise procedurally barred claims in a petition for a writ of habeas
corpus. Amadeo v. Zant, 486 U.S. 214, 222 (1988). Here, Mr. Clemons argues that he is
entitled to a writ of habeas corpus because the state deliberately concealed Mr. Weeks’
observation of an injury to Mr. Clemons’ face and suppressed the information he
recorded in the pretrial release form by altering Mr. Weeks’ record of his observation
(collectively, “the Weeks evidence”).
Even though the master did not separately analyze whether Mr. Clemons
established “cause” sufficient to overcome the procedural bar to his habeas claims, the
master’s findings and conclusions support the conclusion that Mr. Clemons has
established sufficient cause. The master found that there was “no indication that the State
ever informed the defense about what Weeks observed.” This finding is consistent with
the fact that the description of Mr. Weeks’ report in Mr. Clemons’ IAD report is
misleading in that the description does not include Mr. Weeks’ notation of a “bump” or
“bruise” and, instead, notes that Mr. Weeks indicated that Mr. Clemons’ only health
problem was asthma. Additionally, while the state endorsed Mr. Weeks as a witness in a
memorandum sent to Mr. Clemons’ counsel on September 16, 1992, the state did not
include the information that Mr. Weeks had observed that Mr. Clemons was injured.
29
Although Mr. Clemons knew of his own injuries and that Mr. Weeks inquired about an
injury, Mr. Weeks did not tell Mr. Clemons that he was recording Mr. Clemons’ injury in
his pretrial release report, so Mr. Clemons could not have known that this material
existed.
Additionally, although the state produced the pretrial release form, Mr. Weeks’
record of Mr. Clemons’ injury was scratched out. The master found Mr. Weeks’
testimony that he had recorded his observations on the pre-release form credible and that,
although it was not known who had scratched out the notation, “it had to be someone
who [did] it on behalf of the State.” The master concluded that the state had deliberately
concealed the Weeks evidence.
The existence of a written record created by an employee of the board of probation
and parole noting a significant injury to Mr. Clemons’ face less than three hours after he
was booked that was altered after the lead prosecutor for the state had knowledge of the
report’s content and attempted to get the author of the report to change his statements is
substantial evidence in support of the master’s conclusion that the state deliberately
concealed the Weeks evidence and that this evidence was not, therefore, reasonably
available to defense counsel due to an objective factor external to the defense.
Accordingly, Mr. Clemons has established the cause needed to overcome the procedural
bar to review of his habeas claim by showing that this evidence was not reasonably
available to counsel because of a reason external to the defense.
Under the “cause and prejudice” standard, however, Mr. Clemons must also show
“that he is entitled to habeas review because this Court’s failure to review his claims
30
would prejudice him.” Engel, 304 S.W.3d at 126. The determination of whether
prejudice resulted from the underlying error under a cause and prejudice standard is
identical to this Court’s assessment of prejudice in evaluating Mr. Clemons’ Brady
claims. Id. If Mr. Clemons “establishes the prejudice necessary to support his Brady
claims, he will have shown the required prejudice to overcome the procedural bar for
habeas relief.” Id. Accordingly, this Court turns to Mr. Clemons’ claims of the state’s
Brady violations.
III. Brady Violation Analysis In his claim, Mr. Clemons asserts that the state willfully violated Brady by failing
to disclose the Weeks evidence to the defense. Brady holds that “the suppression by the
prosecution of evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment, irrespective of the good faith or
bad faith of the prosecution.” Brady, 373 U.S. at 87. Brady was extended to hold that
prosecutors have a duty to disclose Brady material that is not conditioned on a
defendant’s request for such material. Banks v. Dretke, 540 U.S. 668, 696 (2004) (“A
rule thus declaring ‘prosecutor may hide, defendant must seek,’ is not tenable in a system
constitutionally bound to accord defendants due process.”). To prevail on his Brady
claim, Mr. Clemons must show that: (1) the evidence at issue is favorable to him either
because it is exculpatory or impeaching; (2) the evidence was, either willfully or
inadvertently, suppressed by the state; and (3) he suffered prejudice as a result of the
state’s suppression. Woodworth, 396 S.W.3d at 338 (citing Strickler v. Greene, 527 U.S.
263, 281-82 (1999)).
31
In determining the materiality of the evidence to guilt or punishment and,
therefore, prejudice, it is not required that the disclosure of the suppressed evidence
would have ultimately resulted in the defendant’s acquittal. Woodworth, 396 S.W.3d at
338; Kyles v. Whitley, 514 U.S. 419, 434 (1995). A defendant is prejudiced by the
suppressed evidence if the “favorable evidence is material” and “there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.” Kyles, 514 U.S. at 433 (internal quotations
omitted). According to the United States Supreme Court:
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 he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government’s evidentiary suppression undermines confidence in the outcome of the trial.
Kyles, 514 U.S. at 434 (internal quotations omitted); see also Woodworth, 396 S.W.3d at
338.
A. The Warren Weeks Evidence
In seeking habeas relief, Mr. Clemons asserts that the state violated his due
process rights pursuant to Brady when it failed to disclose to the defense Mr. Weeks’
observations of the injury to Mr. Clemons’ face and the pretrial release form he prepared
stating that Mr. Clemons had a “bump” or “bruise” on his face. Though Mr. Weeks was
endorsed as a witness by the state in a memorandum sent to Mr. Clemons’ counsel on
September 16, 1992, the state failed to include any information regarding Mr. Weeks’
observation of Mr. Clemons’ injury or his record of the injury on the pretrial release
32
form. For Mr. Clemons to prevail on his Brady claim, he is required to show that the
Weeks evidence was favorable to his defense; that it was suppressed by the state; and that
its suppression was prejudicial. Woodworth, 396 S.W.3d at 338 (citing Strickler, 527
U.S. at 281-82).
B. Evidence Favorable to the Defense
The first Brady prong is whether the evidence of Mr. Weeks’ observation of an
injury to Mr. Clemons’ face and his report documenting that observation was favorable to
the defense either because it is exculpatory or impeaching. Evidence is exculpatory if it
is “material either to guilt or to punishment[.]” Brady, 373 U.S. at 87. Impeachment
evidence is evidence that “affect[s] [the] credibility” of a witness. Giglio v. United
States, 405 U.S. 150, 154 (1972). It is favorable to the accused “[w]hen the reliability of
a given witness may well be determinative of guilt or innocence.” Id. (internal quotations
omitted). To be favorable, the evidence should “ha[ve] some weight” with a “tendency”
to be favorable. Kyles, 514 U.S. at 451. The master determined that Mr. Clemons had
presented substantial evidence that the Weeks evidence was favorable to the defense. In
reaching this conclusion, the master found especially significant this Court’s findings in
its review of Mr. Clemons’ conviction and sentence in his direct appeal and the
overruling of his motion for post-conviction relief.
During Mr. Clemons’ suppression proceedings, he claimed that the police used
physical force to coerce his confession, but his evidence supporting his claims was only
the testimony of his family members and attorney and was without the benefit of
testimony from an unrelated witness who was employed by the state. Clemons, 946
33
S.W.2d at 218. This Court, in rejecting Mr. Clemons’ assertion, emphasized the
significance of the evidence presented and the testimony heard at the hearing on
Mr. Clemons’ motion to suppress his confession. Id. Specifically, this Court found that
Mr. Clemons’ witnesses could “not demonstrate either when or how [he] incurred any
injury” because of: (1) the delayed timing of the witnesses’ observations of
Mr. Clemons’ injury and (2) the credibility of the witnesses testifying on Mr. Clemons’
behalf. Id.
First, this Court found the fact that the majority of witnesses testifying that they
had observed injuries to Mr. Clemons’ face following his interrogation by the police had
seen Mr. Clemons “some 48 hours or more” after the interrogation, making it difficult to
establish when or how the injury occurred. Id. The only testimony in Mr. Clemons’
favor based on an earlier observation came from his former attorney, Michael Kelly, who
had seen Mr. Clemons approximately 14 hours after Mr. Clemons’ interrogation had
ended. Id. Mr. Kelly stated that he had observed injuries to the right side of
Mr. Clemons’ face at that time. Id. The Court concluded, however, that Mr. Kelly’s
testimony was impeached by the testimony of Officer Williams, who had seen
Mr. Clemons shortly before Mr. Kelly and who testified that he did not observe any sign
of injury. Id. Second, though Mr. Clemons’ family offered corroborating testimony of
his injury, this Court noted that “[t]he trial court had the opportunity to judge the
credibility of the witnesses and obviously found the state’s witnesses’ testimony more
credible than [Mr. Clemons’].” Id.
34
Based on this Court’s reliance on the witnesses’ testimony and its emphasis on the
timing and credibility of those witnesses’ observations of Mr. Clemons, the master
determined that “the testimony by [Mr. Weeks] that he saw Mr. Clemons less than three
hours after he was booked, and more than eight hours before Williams, could serve to
contradict Williams” and impeach Mr. Williams’ credibility. The master reached this
conclusion especially “in light of the fact that – unlike the other defense witnesses who
testified for Clemons on this issue – Weeks had no ties to Clemons.” The master noted
that Mr. Weeks’ testimony would have lent substantial credibility to Mr. Clemons’ claim
that his confession was coerced because Mr. Weeks was a witness not related to
Mr. Clemons and was without apparent cause to fabricate his observations. This is
significant.
Much has been made of the fact that Mr. Williams was the ex-husband of a cousin
of Mr. Clemons’ mother. Little has been made of the fact that Mr. Williams was
employed by the city of St. Louis as a police officer. In contrast, Mr. Weeks was
employed by the state as a bond investigator for the board of probation and parole, so he
was the only witness regarding Mr. Clemons’ injury who did not have a potential bias
either in favor of Mr. Clemons or in favor of the St. Louis police. Mr. Weeks’ testimony
was not, therefore, merely cumulative of the testimony of Mr. Clemons’ family members
and attorney. Evidence is not cumulative “when it goes to the very root of the matter in
controversy or relates to the main issue, the decision of which turns on the weight of the
evidence.” Black v. State, 151 S.W.3d 49, 56 (Mo. banc 2004) (internal quotations
omitted). Mr. Weeks’ testimony offered an independent corroboration of Mr. Clemons’
35
allegation that the police beat him in which the credibility of this allegation turned
exclusively on the weight of the evidence presented. See id.; see also State v. Perry, 879
S.W.2d 609, 613 (Mo. App. 1994).
In light of the deference given to the master’s credibility findings, there is
substantial evidence to support the master’s conclusion that the undisclosed evidence
from an objective, impartial witness corroborating Mr. Clemons’ testimony was favorable
to Mr. Clemons. Mr. Weeks’ testimony would have provided the most immediate
account of Mr. Clemons’ physical appearance following his interrogation. The
evidentiary value of the most immediate account of Mr. Clemons’ appearance was made
evident on direct appeal when this Court ultimately concluded that because
Mr. Williams’ observation of Mr. Clemons took place before Mr. Kelly’s, Mr. Williams
impeached Mr. Kelly. The credibility of the state’s witnesses is further discredited by the
evidence of the misleading description of Mr. Weeks’ pretrial release report in the IAD
report, the conduct of Mr. Weeks’ supervisor and the prosecutor in attempting to
convince Mr. Weeks to change his report, and the subsequent alteration of Mr. Weeks’
report. Again, the courts must “consider the effect of all of the suppressed evidence
along with the totality of the other evidence uncovered following the prior trial.”
Woodworth, 396 S.W.3d at 345. This evidence, considered in the totality of the
circumstances, supports the master’s conclusion that Mr. Weeks’ observations of
Mr. Clemons’ injury, which occurred more than eight hours before Mr. Williams’
observations, and his report would be favorable to corroborate Mr. Clemons’ testimony
36
and impeach Mr. Williams’ testimony. Additionally, this evidence may have led the trial
court to sustain Mr. Clemons’ motion to suppress his confession.
Mr. Clemons’ confession included the only direct evidence that he was on the
platform below the bridge when the sisters were pushed into the water, as well as
evidence that the rapes were planned, the Kerry sisters were repeatedly struck on the face
during the rapes, Mr. Richardson forced one of the sisters to perform oral sex, and both
sisters were conscious and aware of what was happening, all of which likely would have
influenced the jury’s decision in sentencing Mr. Clemons to death. Though the state presented circumstantial evidence that Clemons was on the platform, 21 “[a] confession is
like no other evidence” because it “is probably the most probative and damaging
evidence that can be admitted against [a defendant].” Arizona v. Fulminante, 499 U.S.
279, 296 (1991) (internal quotations omitted). Moreover, a defendant is prejudiced by a
coerced confession admitted into evidence “[p]recisely because confessions of guilt,
whether coerced or freely given, may be truthful and potent evidence[.]” Lego v.
21 During the habeas hearing, Mr. Clemons asserted his Fifth Amendment privilege against self-incrimination in answering whether he: raped and/or assisted in raping the Kerry sisters; put one of the sisters and/or Mr. Cummins down the manhole; went down on the platform after the sisters and Mr. Cummins were placed there; forced the sisters and Mr. Cummins to get on the concrete pier; and told Mr. Gray and Mr. Winfrey that he “threw them off the bridge.” The master stated that he drew an adverse inference from Mr. Clemons’ refusal to answer these questions and “infer[red] . . . if he were truthful, Clemons’ answers to every one of those questions would have been damaging to him.” At trial, Mr. Clemons has a constitutional right to choose not to testify, and “the Constitution further guarantees that no adverse inferences are to be drawn from the exercise of this privilege.” Carter v. Kentucky, 450 U.S. 288, 305 (1981). As such, Mr. Clemons’ silence in response to these questions cannot factor into this Court’s determination whether the suppression of the Weeks evidence would have prejudiced Mr. Clemons at trial. See Carter, 450 U.S. at 305.
37
Twomey, 404 U.S. 477, 483 (1972). In admitting a coerced confession into evidence, a
defendant is “compelled to condemn himself by his own utterances” in violation of his
constitutional right to due process of law. Id. at 485.
Certainly, evidence that may have resulted in the trial court suppressing
Mr. Clemons’ damaging confession is evidence favorable to Mr. Clemons because it may
have made “the difference between conviction and acquittal,” United States v. Bagley,
473 U.S. 667, 676 (1985), or a death sentence and a sentence of life without parole.
Contrary to the argument in the dissent, the Weeks evidence need not be sufficient to
produce this result but need only be such that if used effectively “would have had some
weight and its tendency would have been favorable” to Mr. Clemons. Kyles, 514 U.S. at
451.
Additionally, even if the trial court were to continue to deny Mr. Clemons’ motion
to suppress, the Weeks evidence would be favorable to the defense at trial because it may
have led the trial court to overrule the state’s motion in limine to prohibit argument in
closing by defense counsel that the police beat Mr. Clemons to coerce his confession.
Before closing argument, Mr. Clemons stated he intended to argue “that Clemons’ face
was swollen after the interrogation, and he was seen by a number of people, and . . .
Cummins said he got hit.” The state objected, arguing that because the officers denied
hitting Mr. Clemons and because Mr. Clemons did not take the stand to refute the
officers, there was no reasonable inference that the police beat Mr. Clemons during the
interrogation. The court agreed, stating “there’s no evidence that the police [beat
Mr. Clemons]” because “he could have been hurt anywhere along the line.”
38
But, if Mr. Clemons had called Mr. Weeks to testify at trial regarding his
observations and record of Mr. Clemons’ injury on the pretrial release form and the
efforts of the supervisor and the prosecutors to convince Mr. Weeks to change his report,
the Weeks evidence would have been significant to the court in its ruling. The Weeks
evidence included Mr. Weeks’ observations and record of Mr. Clemons’ injury;
Mr. Weeks’ testimony that, after a conversation with his boss, Mr. Lukanoff, Mr. Weeks
believed the police caused Mr. Clemons’ injury; his conversations with his supervisor
and the prosecutor during which they attempted to convince him to change his report; the
alteration of the report by the state; and the failure of the IAD report to accurately
describe Mr. Weeks’ pretrial release report or include Mr. Lukanoff as a witness to
Mr. Clemons’ condition at the time of the pretrial release interview. Together this
evidence supports a reasonable inference that Mr. Clemons was beaten by the police
during his interrogation.
Mr. Weeks’ testimony also would have independently supported Mr. Clemons’
claim that his confession was not voluntary because it was physically coerced. This is
significant given that jury instruction 27 instructed the jury to disregard and “give no
weight in your deliberation” to the statement if they did not believe it was freely and
voluntarily made.
The master’s conclusion that the suppressed evidence would have been favorable
to Mr. Clemons is supported by substantial evidence, and this Court adopts the master’s
findings as to first prong of Brady.
39
C. Failure to Produce Brady Material
The second Brady prong is whether the state failed to produce the favorable
Weeks evidence to the defense. Although it does not matter whether the failure was
willful or inadvertent, Brady, 373 U.S. at 87, after completing his exhaustive review of
the evidence and trial record and after assessing the credibility of witnesses at the
September 2012 hearing, the master found that the state deliberately failed to produce the
favorable Weeks evidence to Mr. Clemons.
The master “believed Weeks when he testified that he recorded his observations of
Clemons on the Pretrial Release Form.” The master concluded that the pretrial release
form completed by Mr. Weeks had been altered and, while it was uncertain exactly who
had crossed out the description of Mr. Clemons’ injury, “it had to be someone who had
[done] it on behalf of the state.” The master found that there was no indication that the
state ever informed the defense of Mr. Weeks’ recorded observations or of his oral
statements of those observations, noting at the very least, even in the absence of the
pretrial release form, Mr. Clemons could have called Mr. Weeks as a witness at trial to
provide oral testimony of his observations of Mr. Clemons’ injury. Based on these
determinations, the master concluded that Mr. Clemons has, indeed, satisfied the second
element of Brady by proving that the state suppressed the Weeks evidence from the
defense.
Due to the master’s unique ability to view and judge the credibility of witnesses,
this Court will uphold the master’s findings and conclusions so long as they are supported
by substantial evidence. In light of the master’s credibility determination, this Court’s
40
deference to that determination, and the evidence showing that the state intentionally took
steps to hide Mr. Weeks’ corroborative testimony from Mr. Clemons by attempting to
convince Mr. Weeks to change his report to prevent further reporting of Mr. Clemons’
injury; altering his record of the injury on the pretrial release form; and failing to disclose
the Weeks evidence to Mr. Clemons, this Court adopts the master’s findings and
conclusions that Mr. Clemons satisfied the second prong of Brady.
D. Prejudice from non-disclosure
In the third and final prong of Brady, Mr. Clemons must prove that his defense
was prejudiced by the state’s failure to disclose the Weeks evidence. In determining
prejudice, as noted, Mr. Clemons does not have to demonstrate that the state’s disclosure
of the evidence would have ultimately resulted in Mr. Clemons’ acquittal. Woodworth,
396 S.W.3d at 338. “[A] showing of materiality does not require demonstration by a
preponderance that disclosure of the suppressed evidence would have resulted ultimately
in the defendant's acquittal[.]” Kyles, 514 U.S. at 434. Rather, it is enough if the
defendant shows “a ‘reasonable probability’ of a different result[.]” Woodworth, 396
S.W.3d at 338 (quoting Kyles, 514 U.S. at 434).
A “reasonable probability” of a different result is shown when the government’s
evidentiary suppression “undermines confidence in the outcome of the trial.” Bagley, 473
U.S. at 678. In Kyles, the Supreme Court found that “[t]he question is not whether the
defendant would more likely than not have received a different verdict with the evidence,
but whether in its absence he received a fair trial, understood as a trial resulting in a
verdict worthy of confidence.” 514 U.S. at 434 (emphasis added). Importantly, this Court
41
must analyze “the possibility that such effect might have occurred in light of the totality
of the circumstances and with an awareness of the difficulty of reconstructing in a post
trial proceeding the course that the defense and the trial would have taken had the defense
not been misled by the prosecutor’s incomplete response.” Bagley, 473 U.S. at 683.
In his review, the master determined that Mr. Clemons satisfied the prejudice
prong of Brady. In so finding, the master once again noted this Court’s prior ruling
affirming the trial court’s denial of Mr. Clemons’ motion to suppress his confession on
the basis of Officer Williams’ testimony at the hearing on the motion to suppress. See
Clemons, 946 S.W.2d at 218. Mr. Weeks’ interview with Mr. Clemons took place only
three hours after he was booked, significantly closer to the time of the police
interrogation than the visit by Officer Williams, in which no injuries were purportedly
observed.
Here, the fact that the trial court denied Mr. Clemons’ claim in his motion to
suppress that his confession was physically coerced and allowed into evidence
Mr. Clemons’ confession without having the benefit of Mr. Weeks’ testimony
substantially supports the master’s finding that Mr. Clemons was not given a “fair trial.”
This is particularly true in light of the fact the trial court’s primary basis for not
suppressing Mr. Clemons’ confession was because Mr. Clemons could not prove at
whose hands and when he suffered his injury. As noted by the trial court at the hearing
on the motion to suppress, it believed “he could have been hurt anywhere along the line.”
Additionally, Mr. Weeks’ observations were consistent with and corroborate the
testimony of Mr. Clemons, his family members, his attorney, and the hospital records as
42
to the cause, timing and extent of Mr. Clemons’ injury. This testimony would have
provided the court with the most immediate account of Mr. Clemons’ appearance –
nearly eight hours before Officer Williams and long before any of the other defense
witnesses who observed injuries to Mr. Clemons – serving to both undermine the theory
that Mr. Clemons self-inflicted his injuries and serving to impeach the testimony of
Officer Williams that he observed no injuries. Accordingly, the proximity of Mr. Weeks’
interview to Mr. Clemons’ police interrogation as compared with Officer Williams’ visit
impeaches the testimony of Officer Williams. This impeaching and credible testimony,
concluded the master, may have led the trial court to sustain Mr. Clemons’ motion to suppress.22
The master’s conclusion that Mr. Clemons’ confession may well have been
suppressed if the Weeks evidence had been available at the suppression hearing is well
founded as there is convincing evidence that Mr. Clemons was beaten to confess. When
a defendant challenges the admissibility of a confession due to allegations of physical
22 The dissent states “there is no likelihood that the trial court would have been swayed” by the Weeks evidence even if it had been presented at the motion to suppress hearing. As the dissent notes, the trial court found the police officers’ testimony credible. However, as the dissent also notes, a trial court’s credibility findings are to be made after considering the reasonableness of the witness’s testimony in light of all the evidence in the case and whether the testimony may have been influenced by the witness’s interest, bias or prejudice. In this case, the trial court’s credibility findings as to the officer’s testimony were made without the benefit of the Weeks evidence. By suppressing the Weeks evidence – the only evidence from a neutral party that supported Mr. Clemons’ claim that his confession was coerced – the state denied the trial court the opportunity to determine the reasonableness of the officers’ testimony and their credibility in light of the Weeks evidence. The totality of the evidence that the trial court will consider on remand will include the Weeks evidence and, therefore, it is likely that the trial court’s credibility findings will not be the same.
43
coercion, the state has a burden to show by a preponderance of the evidence that the
confession was voluntary. State v. Johnson, 207 S.W.3d 24, 45 (Mo. banc 2006). The
United States Supreme Court states:
The test for voluntariness is whether, under the totality of the circumstances, the defendant was deprived of free choice to admit, to deny, or to refuse to answer and whether physical or psychological coercion was of such a degree that the defendant’s will was overborne at the time he confessed.
Id. (internal quotations omitted).
It is known that Mr. Cummins, the victim, made strikingly similar allegations of
restraint during the abuse by the police, as did Mr. Gray. All three men reported they
were instructed to sit on their hands before being struck by the police officer, a unique
tactic of restraint by the police. Mr. Clemons and Mr. Gray reported this unique method
of restraint to the IAD investigators within two days of their interrogations. While it
might be possible that Mr. Clemons and Mr. Gray colluded to create stories with the
same unique manner of restraint, there is no likelihood that they colluded with
Mr. Cummins. And it would strain credulity to suggest that it is a coincidence that
Mr. Cummins testified to the same unique manner of restraint during his interrogation.
Like Mr. Clemons, Mr. Gray subsequently confessed after alleging he was
physically abused. Mr. Cummins’ and Mr. Gray’s allegations of unique circumstances
during the physical abuse, plus Mr. Weeks’ testimony that both impeaches Officer
Williams and lends substantial credibility to Mr. Clemons’ testimony, is credible
evidence that Mr. Clemons’ will was overborne at the time of his confession and that his
confession should have been suppressed. The evidence supports the master’s conclusion
44
that there was a reasonable probability of a different result at Mr. Clemons’ trial if the
jury had never heard Mr. Clemons’ confession.
As discussed above, a defendant’s confession is highly probative evidence. State
v. Seibert, 93 S.W.3d 700, 709 (Mo. banc 2002) (Benton, J. dissenting). A jury may be
unable “to ignore the probative value of a truthful but coerced confession” and may,
therefore, be unduly “influenced by the reliability of a confession it considered an
accurate account of the facts” when judging the voluntariness of the confession. Lego,
404 U.S. at 483. Mr. Clemons’ confession, introduced at trial and presented again to the
jury in written and audio form during their sentencing deliberations, provided the jury
with the only direct evidence that he was on the platform below the bridge at the time the
Kerry sisters were pushed to their death. Neither Mr. Cummins nor Mr. Winfrey stated
that Mr. Clemons was on the platform with Mr. Richardson when the Kerry sisters were
pushed. Though other circumstantial evidence was presented, Mr. Clemons’ confession
was “the most probative and damaging evidence that [could] be admitted” against him.
Fulminante, 499 U.S. at 296. In addition to Mr. Clemons’ confession being the only
direct evidence placing Mr. Clemons on the platform, the confession also provided
disturbing details of Mr. Clemons’ rape of the Kerry sisters, which likely would have
influenced the jury’s decision in sentencing Mr. Clemons to death.
The master expressly stated that he believed that Mr. Clemons satisfied the Brady
materiality standard such that “the favorable evidence could reasonably be taken to put
the whole case in such a different light as to undermine confidence in the verdict.”
Notably, the master does not limit his conclusion to the result of the suppression hearing
45
but correctly extends his lack of confidence to the whole case, including the guilt and
sentencing phase.
Accordingly, Mr. Clemons was denied a fair trial not only because the state’s
suppression of the Weeks evidence prejudiced Mr. Clemons at the hearing on the motion
to suppress his confession but also because the jury was not able to hear Mr. Weeks’
testimony in determining whether his confession was voluntary. In this regard, even if
the trial court did not suppress Mr. Clemons’ confession, it is reasonably probable that
the Weeks evidence would have led the trial court to rule against the state’s motion in
limine and allow defense counsel to argue during closing arguments that Mr. Clemons’
confession was coerced. The trial court’s rationale for prohibiting this argument was
that there was no evidence at trial that Mr. Clemons’ had been beaten to confess.
Mr. Weeks’ credible testimony would have provided evidence to support the reasonable
inference that he was beaten.
Moreover, the jury would have been able to consider Mr. Weeks’ testimony while
deliberating on whether Mr. Clemons’ confession was freely and voluntarily made as
required by jury instruction 27. With both Mr. Clemons’ closing argument that he was
beaten and the Weeks evidence before the jury, it is reasonably probable that the jury
would have found Mr. Clemons’ statement was coerced. Had the jury found
Mr. Clemons’ statement was coerced, as required by jury instruction 27, it would have
had to disregard it and give it no weight during deliberations because the confession was
not freely and voluntarily made.
46
The state attempts to refute the master’s conclusion that Mr. Clemons was
prejudiced by the state’s suppression of the Weeks evidence by first arguing that even if
Mr. Clemons’ confession would have been suppressed, harmless error would protect the
verdict because of the weight of evidence presented at trial establishing Mr. Clemons’
guilt. The state’s argument, however, is meritless in light of the United States Supreme
Court’s holding in Kyles that once a Brady violation has been found, “there is no need for
further harmless-error review.” Kyles, 514 U.S. at 434. Such an error cannot “be treated
as harmless, since [there is] a reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been different,” which
“necessarily entails the conclusion that the suppression must have had substantial and
injurious effect or influence in determining the jury’s verdict.” Id. at 435 (internal
quotations omitted). Accordingly, harmless-error analysis cannot be used to protect the
trial court’s verdict.
The state also attempts to refute the master’s finding of prejudice by alleging
Mr. Clemons misapplies the law by expanding the application of the Strickland v.
Washington standard of prejudice to the outcome of rulings on motions. 466 U.S. 668,
695 (1984). According to the state, Strickland is limited to the outcome of the trial and
the master improperly extends it to include the outcome of Mr. Clemons’ hearing on his
motion to suppress. Neither the United States Supreme Court nor this Court have previously stated whether Brady applies to suppression hearings.23 Here, however, it is
23 Federal circuits are split on this point. See United States v. Harmon, 871 F. Supp. 2d 1125, 1151-52 (D.N.M. 2012), aff’d by United States v. Harmon, 742 F.3d 451 (10th Cir.
47
not necessary to determine whether Brady would apply to all suppression hearings. The
Weeks evidence would have been admissible at trial, not just at the suppression hearing,
so the application of Brady, here, is not limited to the suppression hearing. In this
circumstance, the analysis of prejudice and whether there is “a ‘reasonable probability’ of
a different result” due to the state’s Brady violation extends to the evaluation of the
outcome of both the suppression hearing and the trial.
In a similar argument, the state asserts the master failed to properly apply
Strickland. The state contends that the master did not apply the “reasonable probability”
standard of prejudice articulated in Strickland but rather some lesser standard as indicated
in his statement that the Weeks evidence “may have resulted in the trial court sustaining
the motion to suppress.” After careful review of the entirety of the master’s legal
analysis, this Court finds that the master’s findings and conclusions do not erroneously
declare or apply the law. In its argument, the state ignores the master’s initial analysis of
the prejudice prong where he articulates the correct legal standard, noting that “Clemons
does not have to demonstrate that disclosure of Weeks’ knowledge of injury and the
2014) (“Circuit courts have split on the issue whether Brady v. Maryland’s restrictions apply to suppression hearings[.]”). The Fifth and Ninth Circuits have held that Brady applies to suppression hearings. See Smith v. Black, 904 F.2d 950, 965-66 (5th Cir. 1990), vacated on other grounds by Smith v. Black, 503 U.S. 930 (1992); United States v. Barton, 995 F.2d 931, 935 (9th Cir. 1993). The Fourth and Seventh Circuits have assumed that Brady would apply to suppression hearings but have declined to decide the issue based on the facts presented in the cases. United States v. Williams, 10 F.3d 1070, 1077 (4th Cir. 1993); United States v. Stott, 245 F.3d 890, 902 (7th Cir. 2001). The District of Columbia Circuit, the Sixth Circuit and Tenth Circuit have questioned whether Brady applies to suppression hearings but also have declined to decide the issue. United States v. Bowie, 198 F.3d 905 (D.C.C. 1999); United States v. Taylor, 471 F. App’x 499, 520 (6th Cir. 2012); United States. v. Dahl, 597 F. App’x 489, 491 n2 (10th Cir. 2015).
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obscured form would have resulted ultimately in [Clemons’] acquittal.” (Internal citations
omitted). Instead, the master correctly observed that, “it is enough if there is a
reasonable probability of a different result,” (emphasis added) and “[t]his element is
satisfied ‘when the favorable evidence could reasonably be taken to put the whole case in
such a different light as to undermine the confidence of the verdict.’” (Internal citations
omitted). In the very next sentence of his report, the master plainly states his finding on
the issue: “I believe Clemons has satisfied that standard.” Accordingly, it is clear that the
master indeed understood and applied the “reasonable probability” standard as articulated
in Strickland to find that Mr. Clemons has satisfied the prejudice prong of Brady.
As previously stated, this Court gives deference to the master’s finding of
prejudice because of the master’s unique ability to view and judge the credibility of
witnesses. Woodworth, 396 S.W.3d at 336-37. This Court will only set aside the
master’s findings if they are against the weight of the evidence and, even then, will only
do so “with caution and with a firm belief that the conclusions are wrong.” Id. at 337. In
other words, this Court will sustain the master’s findings “unless there is no substantial
evidence to support them.” Id.
As detailed above, substantial evidence exists to support the master’s findings and
conclusion that Mr. Clemons was prejudiced because of the state’s suppression of the
notation of “bruise” or “bump” in Mr. Weeks’ pre-release report and his observations of
Mr. Clemons’ injury. The record includes substantial, credible evidence that
Mr. Clemons’ confession was coerced by physical abuse inflicted by the police that
would require that his confession be suppressed. As such, this Court accepts that
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Mr. Clemons has demonstrated that the state’s suppression of the favorable evidence of
Mr. Weeks’ observations and recordings was prejudicial. Considering the effect that the
Weeks evidence may have during the suppression hearing and at trial, along with the
effect Mr. Clemons’ confession likely had during both the guilt and the penalty phase of
his trial, there is a reasonable probability of a different result either in Mr. Clemons’
conviction or sentence. Therefore, Mr. Clemons was prejudiced and did not receive a fair trial with a verdict worthy of confidence.24 Additionally, because Mr. Clemons has
established the prejudice necessary to support his Brady claim, he has also shown the
required prejudice to overcome the procedural bar for habeas relief. See Engel, 304
S.W.3d at 126.
Overall, the master found that Mr. Clemons met all three elements of his Brady
claim by showing that the Weeks evidence was materially favorable evidence; that it was
either willfully or inadvertently suppressed by the state; and that its suppression was
prejudicial. In making this determination, the master reviewed thousands of pages of
record, heard multiple days of testimony during which he could evaluate the credibility of
the witnesses, and, ultimately, submitted his findings to this Court in an official report.
After a thorough analysis of the evidence and legal analysis used by the master, this
Court finds the master’s findings and conclusions are supported by substantial evidence,
24 The dissent argues that there is overwhelming evidence of Mr. Clemons’ guilt and so there is no likelihood that a jury would not have found Mr. Clemons guilty or would have imposed a sentence other than death. With similar evidence, a jury did, however, find Mr. Clemons’ codefendant, Mr. Richardson, guilty of one count of first-degree murder and one count of second-degree murder and was unable to agree whether to sentence Mr. Richardson to death. State v. Richardson, 923 S.W.2d 301, 308 (Mo. banc 1996).
50
are not against the weight of the evidence, and correctly declare and apply the law. This
Court accepts the master’s conclusions with a firm belief that they are correct and holds
that Mr. Clemons has successfully proven the right to a new trial due to the state’s
violation of the principles of due process and the standards of justice, as outlined in
Brady.
IV. Proportionality Review
In his second claim for habeas relief, Mr. Clemons asserts that his death sentence
is disproportional due to his age and lack of criminal record, new evidence that his
confession was coerced, evidence that he did not directly murder the Kerry sisters but
only acted as an accomplice, and the reduced sentence of his “more culpable”
codefendant, Mr. Richardson. Because this Court reverses Mr. Clemons’ convictions and
sentences for the state’s violation of his due process rights as recognized in Brady,
Mr. Clemons’ proportionality claim will not be addressed.
Conclusion
After days of hearings and an extensive review of the case, the master concluded
that the state deliberately failed to disclose evidence favorable to the defense. The
testimony from Mr. Weeks, an employee of the board of probation and parole, regarding
injuries to Mr. Clemons’ face within a short time after being interrogated by police was
independent evidence that he was beaten and coerced to give an audiotaped confession
that included incriminating evidence, particularly that he admitted being on the platform
under the bridge when Julie and Robin Kerry were pushed to their deaths. Additional
evidence of improper conduct by officials handling Mr. Clemons’ case was Mr. Weeks’
51
testimony that one of his supervisors and the lead prosecutor in the case attempted to
convince him to change his written report of the injury and, despite his refusal, the report
was altered to redact any reference to the injury.
The master also determined that the state’s failure to disclose this evidence
prejudiced Mr. Clemons. The master found that the testimony of Mr. Weeks, who
interviewed Mr. Clemons less than three hours after he was booked, would have served to
contradict and impeach the testimony of the state’s witness, Officer Williams, who
testified that he did not observe injuries to Mr. Clemons more than 12 hours after the
interrogation.
The Weeks evidence would also have been significant to the court in its ruling to
prohibit defense counsel from arguing during closing arguments that police beat
Mr. Clemons to confess, as would the evidence that Mr. Cummins had similarly testified
that police physically abused him to confess. Additionally, the credibility of the police
officers’ testimony that they did not beat Mr. Clemons and coerce his confession is
further impeached by evidence that the manner in which Mr. Clemons claimed he was
beaten included the unique command to sit on his hands, which was identical to a
command given to the victim, Mr. Cummins, when he was beaten by the police in an
attempt to get him to confess. Finally, there is evidence that police officers investigating
the murders falsified a report to state that Mr. Cummins had admitted that he had sexual
desires for Julie, that he had tried to have sex with Julie the night of the murders and
when she refused had pushed her, causing her to lose her balance and fall off the bridge,
and that he had run off the bridge.
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The master concluded that the suppressed Weeks evidence along with the totality
of other evidence showed cause and prejudice sufficient to undermine confidence in the
outcome of the trial, resulting in a Brady violation by the state. This determination is
supported by substantial evidence and does not erroneously declare or apply the law.
This Court, therefore, adopts the master’s recommendation, and vacates Mr. Clemons’
convictions and sentences for first-degree murder. Within 60 days from the date the
mandate issues in this case the state may file an election in the circuit court to retry him.
If the state so elects, the new trial shall be held expeditiously. If the state does not so
elect, the case against Mr. Clemons shall be dismissed and Mr. Clemons shall be
discharged on this matter.

Outcome: The master concluded that the suppressed Weeks evidence along with the totality of other evidence showed cause and prejudice sufficient to undermine confidence in the outcome of the trial, resulting in a Brady violation by the state. This determination is supported by substantial evidence and does not erroneously declare or apply the law. This Court, therefore, adopts the master’s recommendation, and vacates Mr. Clemons’ convictions and sentences for first-degree murder. Within 60 days from the date the mandate issues in this case the state may file an election in the circuit court to retry him. If the state so elects, the new trial shall be held expeditiously. If the state does not so elect, the case against Mr. Clemons shall be dismissed and Mr. Clemons shall be discharged on this matter.

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