State ex rel. Mark Woodworth v. Larry Denney, Warden

Mark Woodworth was convicted of murder, assault, burglary and armed criminal action for the killing of Catherine Robertson and the serious assault of her husband, Lyndel Robertson. Mark1 has now filed a petition for writ of habeas corpus, petitioning this Court to vacate his convictions and grant him a new trial because newly discovered evidence shows that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding material, favorable evidence and further shows that that the lack of disclosure of this Brady material was prejudicial and resulted in a verdict not worthy of confidence. This Court appointed a special master under Rule 68.03 to take evidence and issue





To avoid confusing Mark with his father Claude Woodworth, Mark and Claude will

be referred to by their first names.





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findings of fact and conclusions of law as to the allegations Mark made. After hearing numerous days of testimony, the master issued a report in which he found that the State had violated Brady in at least two important and material respects and that the State's failure to produce this Brady material, particularly when considered in light of other newly discovered exculpatory evidence, was prejudicial because it bolstered a key defense theory that another person had committed the crime and that the prosecution had focused improperly on Mark to the exclusion of pursuing the person Mark contends is the real perpetrator. The judge had the opportunity to view and determine the credibility of witnesses and this Court affords his findings and conclusions the weight and deference given to the findings and conclusions entered by trial courts in court-tried cases. Here, substantial evidence supports the master's findings that Brady was violated and that the violations were prejudicial. Accordingly, this Court orders that Mark's convictions be vacated and orders him discharged from the custody of the department of corrections unless the State elects to retry him.



I.

FACTUAL AND PROCEDURAL BACKGROUND



The following facts were adduced either at the first and second trials of Mark Woodworth or at the special master's hearings. On the evening of November 13, 1990, Lyndel and Catherine Robertson were shot while sleeping in their rural Livingston County home. Mrs. Robertson was shot twice and died before paramedics arrived at the scene. Mr. Robertson survived three shots to the face and one to the shoulder. Investigators found no signs of forced entry, and there was no immediate indication at the scene as to the shooter might have been the shooter.2 The police did not find a murder weapon. Claude Woodworth and his family lived across the street from the Robertsons. Claude and Mr. Robertson were farming partners and shared equipment space in a machine shed on the Robertson property. The Woodworths had a son, Mark, then 16 years old, a quiet boy who struggled in school, was considered "slow,” and who lived at home with his parents and six younger siblings.



Investigators discovered a fingerprint on a partially full box of .22-caliber long rifle bullets allegedly located by Deputy David Miller on top of a workbench in the shed shared by the Woodworths and the Robertsons, but the print did not match any known prints on file at the time.3



Ballistics tests revealed that the bullet fragments recovered from Mr. and Mrs. Robertson had the same type of brass wash coating as the .22-caliber Remington bullets found in the machine shed. Investigators also learned that Claude Woodworth owned a .22-caliber Ruger pistol that he kept in his bedroom and that Mr. Robertson kept an identical Ruger pistol in his pickup truck. The investigators sent the two pistols and the bullet fragments to the Missouri State Highway Patrol crime laboratory for testing. The bullets were so damaged and distorted that it was impossible to conclude whether either gun fired the rounds.2 A more complete factual background of the shooting and subsequent investigation can be found in State v. Woodworth, 941 S.W.2d 679 (Mo. App. 1997).



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At the hearing before the master, a Linn County sheriff's deputy testified that Deputy Paul Frey told him that he, not Deputy Miller, had lifted the fingerprints from the box of bullets. Deputy Frey and Deputy Miller both denied at the hearing before the master that this was the case and again said that it was Deputy Miller who recovered the prints.



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The investigation then lay fairly dormant until July 1992, more than 18 months after the murder. At the master's hearing, evidence was presented showing that, as the months passed by without any arrests, Mr. Robertson became frustrated by the lack of progress in the investigation and hired a private investigator to conduct a separate examination of the case. This investigator, Terry Diester, had a prior relationship with the chief deputy in charge of the Robertson investigation. Mr. Diester, though not a member of law enforcement, was provided unfettered access to the sheriff's files regarding the Robertson case.



In private conversations with the chief deputy, Mr. Diester suggested that Claude Woodworth's son Mark should be a prime suspect in the case due to his familiarity with and proximity to the Robertson home and machine shed. Shortly thereafter, the sheriff's office brought Mark in for questioning. Mark denied any involvement in the shooting and agreed to provide his fingerprints. A thumbprint lifted from the .22-caliber shell-casing box on the workbench in the shed shared by the Robertsons and the Woodworths was found to match Mark's thumbprint. At that point, investigators obtained a search warrant to reexamine Claude's pistol and, shortly thereafter, obtained a bullet fragment that just had been removed from Mr. Robertson's liver. Ballistics experts tested this fragment, as well as the fragments recovered from Mr. and Mrs. Robertson shortly after the shooting, and compared the fragments to the bullets found in the shed and to bullets test-fired from Claude's pistol. The experts found some similarities between the bullets test-fired from that pistol and the bullet fragments but concluded the evidence was insufficient to allow them to determine



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to a reasonable degree of certainty that the shooter used Claude's pistol to commit the crimes. Their tests did show, however, that his pistol was not excluded as the murder weapon, that three of the bullet fragments recovered from the Robertsons had individual characteristics that matched individual characteristics of bullets test-fired from Claude's pistol, and that one cartridge from the box of bullets the deputy said he found on the workbench had a mark consistent with a manufacturing defect that matched a similar manufacturing mark on the bullet fragment recovered from Mr. Robertson's liver. Following the thumbprint match and the return of the ballistics tests that could not exclude the Woodworth gun as the murder weapon, Mr. Robertson began to lobby the Livingston County prosecutor to charge Mark with the Robertson crimes. He also presented the prosecutor with written reports that detailed the evidence Mr. Diester had compiled against Mark. When the prosecutor did not act on the evidence within the next two months, Mr. Robertson asked the circuit judge, Kenneth Lewis, to present the evidence against Mark to a grand jury. Judge Lewis did just that, stating later that



Mr. Robertson's requests were what motivated him to convene a grand jury one month after Mr. Robertson's request and to appoint the attorney general's office to represent the State in the matter rather than the regular prosecutor, who withdrew when he learned that the judge and Mr. Robertson were insisting he proceed against Mark. On October 29, 1993, nearly three years after the shooting, Mark was charged by indictment with second-degree murder of Catherine Robertson, first-degree burglary and first-degree assault of Lyndel Robertson, and two counts of armed criminal action. Although Mark was only 16 years old at the time of the shooting, the juvenile division



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certified Mark for trial as an adult based on the violent nature of the crimes and the fact that Mark was by that time 19 years old. At trial, the evidence against Mark was entirely circumstantial. In addition to the matching thumbprint on the box of bullets and the bullet fragment evidence, investigators said Mark gave them conflicting information about how many times he had been in the shed, how often he shot his father's pistol and his feelings towards Mr. Robertson. Mark testified in his defense. He denied any involvement in the shooting and explained that his print may well have been on the ammunition box found in the shed shared by his family and the Robertsons because he and other farm employees used to target shoot using bullets from .22-caliber ammunition boxes in Mr. Robertson's truck. He also attempted to introduce evidence showing that another young man, Brandon Thomure, had motive and opportunity to commit the crime. Mr. Thomure was the former boyfriend of the Robertsons' daughter, Rochelle.4The day after the shooting, police examined Mr. Thomure and found evidence of gunpowder residue on his hands. The police received reports that Mr. Thomure had abused Rochelle physically, that he impregnated Rochelle, that Rochelle terminated the pregnancy and that, not long before the shooting, Mr. and Mrs. Robertson offered to buy Rochelle a new car if she would break up with him. There was also evidence that while in the hospital Mr. Robertson told numerous people that it was "Brandon” who shot him or that he thought that it was "Brandon”who shot him. This made Mr. Thomure an early 4 For reasons that are not entirely clear, Mr. Thomure also goes by the name Brandon Hagan. For purposes of consistency, this Court will refer to him as Brandon Thomure.



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focus of investigation,but he claimed as an alibi that he was not in the area at the time of the shooting, and the police eventually stopped actively pursuing him as a suspect. The trial court almost entirely excluded the evidence about Mr. Thomure and Rochelle and her family on the grounds that Mark could not show any direct evidence linking this young man with the crime. The jury only heard a single reference to Mr. Robertson's prior statement identifying Mr. Thomure. Mark, instead, based his defense on his belief that the evidence brought forth by the State against him was insufficient to establish guilt beyond a reasonable doubt.



The jury found Mark guilty on all counts, and he was sentenced to consecutive terms totaling 31 years. M



Mark appealed his convictions, arguing, among other things, that the prosecution failed to make a submissible case and that the trial court erred in excluding the evidence regarding Mr. Thomure. In the first appeal, the appellate court held that the evidence was very "thin” yet minimally submissible. State v. Woodworth, 941 S.W.2d 679, 690 (Mo. App. 1997).But the court agreed with Mark that trial court erred in excluding evidence pointing to Mr. Thomure as a suspect and held that in light of the weakness of the state's case, the exclusion of this evidence was prejudicial. The court noted that evidence of an alternative suspect is admissible so long as there is proof that the other person committed some act directly connecting him with the crime. Id. at 690. This standard was satisfied by the evidence that Mark had been precluded from introducing at trial, including statements by Mr. Robertson shortly after the attack accusing "Brandon” of being or probably being the shooter. The court said that this evidence should have been admitted



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both for purposes of impeaching Mr. Robertson and as direct evidence linking Mr. Thomure with the crime. Id.



The court reversed and remanded for a new trial at which the defense could introduce evidence showing Mr. Thomure's opportunity and motive to commit the crimes. Id. at 692.On remand, a jury again found Mr. Woodworth guilty on all counts.



The trial judge, who presided over both trials, imposed four consecutive life sentences plus 15 additional consecutive years.



The court of appeals affirmed.



The trial and appellate courts denied post-conviction relief.



The trial court and court of appeals subsequently denied Mark's petition for writ of habeas corpus under Rule 91.01. Mark now seeks habeas relief in this Court, alleging serious violations of the State's duty under Brady v. Maryland, 373 U.S. 83 (1963),to disclose potentially exculpatory evidence to the defense.



This Court issued a writ of habeas corpus and, on November 2, 2010, appointed Boone County Circuit Judge Gary M. Oxenhandler to serve as special master to take evidence and issue a master's report on the claims in the petition for writ. In particular, Mark alleges that he discovered through a reporter's investigation after the second trial that the State had failed to disclose a trio of letters (the "Lewis letters”) involving an assistant attorney general, Judge Lewis – who originally had been assigned the case – and Mr. Robertson. He also alleges that the State did not disclose evidence that Rochelle Robertson reported to police several violations by Mr. Thomure of the ex parte order of protection she obtained against him after the murder of her mother. In addition, he alleges that the State concealed the testimony of two persons that discredited Mr.



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Thomure's alibi and so was material and favorable to his defense. Mark asserts that the State's failure to disclose this evidence violated Brady and that these violations, as well as substantial additional newly discovered evidence casting doubt on Mr. Thomure's alibi and on the sufficiency and impartiality of the sheriff's investigation, resulted in a "verdict not worthy of confidence.” The master conducted seven evidentiary hearings between November 2010 and November 2011 and filed his report with this Court on May 1, 2011. That report finds that the prosecution did violate its duty under Brady as alleged and that these violations resulted in prejudice to Mark of a degree that undermined the master's confidence in the verdict. The master strongly recommends to this Court that Mark's conviction be set aside and that the case be reviewed by an independent prosecutor before any decision is made as to retrial.



II. STANDARD OF REVIEW FOR MASTER'S REPORT



This Court affords the findings of fact, conclusions of law and recommendations made by a judge this Court has appointed as a master under Rule 68.03 the "weight and deference which would be given to a court-tried case by a reviewing court” in light of the master's unique ability to view and judge the credibility of witnesses. State ex rel. Winfield v. Roper, 292 S.W.3d 909, 910 (Mo. 2009). Accord, State ex rel. Lyons v. Lombardi, 303 S.W.3d 523 (Mo. banc 2010); State ex rel. Busch by Whitson v. Busch, 776 S.W.2d 374, 377 (Mo. banc 1989). As Lyons recently noted, in such cases, the master's findings and conclusions will be sustained by this Court unless there is no substantial evidence to support them. Id. at 525-26. This Court should exercise the



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power to set aside the findings and conclusions 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. III. STANDARD FOR HABEAS RELIEF "Habeas corpus is the last judicial inquiry into the validity of a criminal conviction and serves as 'a bulwark against convictions that violate fundamental fairness.'” State ex rel. Engel v. Dormire, 304 S.W.3d 120, 125 (Mo. banc 2010) (quoting State ex rel. Amrine v. Roper,102 S.W.3d 541, 545 (Mo. banc 2003)). It is the petitioner's burden to show that he or she is entitled to habeas corpus relief. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002). "[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.” Engel, 304 S.W.3d at 125. Habeas review, however, is not meant to serve as a substitute for post-conviction relief claims cognizable on direct appeal or in Rule 29.15 motions. To avoid "duplicative and unending challenges to the finality of a judgment,” habeas review of a challenge to the validity of a conviction requires that a petitioner show a jurisdictional defect, cause for failing to timely raise the ineffective assistance or other constitutional defect and prejudice resulting from the defect, or manifest injustice such as either a freestanding or a gateway claim of actual innocence. Id.; Amrine v. Roper, 102 S.W.3d 541 (Mo. banc 2003).Mark principally seeks to overcome the procedural bar to his habeas claims by showing "cause and prejudice.” To demonstrate cause, the petitioner must show that an effort to comply with the State's procedural rules was hindered by some objective factor



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