State of Missouri v. Lamar Johnson ( 2019 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
STATE OF MISSOURI, ) No. ED108193
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Hon. Elizabeth B. Hogan
LAMAR JOHNSON, )
) Filed:
Appellant. ) December 24, 2019
Before Robert M. Clayton III, P.J., Robert G. Dowd, Jr., J. and Roy L. Richter, J.
PER CURIAM.
This is the first case challenging a conviction based on an investigation by the
recently-established Conviction Integrity Unit of the City of St. Louis Circuit Attorney’s
Office. Following an investigation into Lamar Johnson’s 1995 murder conviction, Circuit
Attorney Kimberly Gardner filed a motion for new trial claiming there was newly
discovered evidence demonstrating his innocence. The trial court—concerned with
potential problems arising from this unique scenario—sua sponte appointed the Attorney
General to appear on the State’s behalf. Ultimately, the court found that it lacked authority
to entertain the motion for new trial because the State was not permitted to file such a
motion and, in any event, it was untimely. The court dismissed the motion, and this appeal
followed. Despite the importance of this case of first impression, the orders challenged on
appeal are not appealable. Though we must dismiss the appeal, we transfer the case to
Missouri Supreme Court pursuant to Rule 83.02.
Background
Johnson was convicted after a jury trial in the City of St. Louis on one count of
murder in the first degree and one count of armed criminal action for the shooting death of
Marcus Boyd. He was sentenced to life in prison without the possibility of parole.
Judgment was entered on that conviction and sentence on September 25, 1995. That
judgment, and the judgment denying Johnson’s Rule 29.15 post-conviction motion after an
evidentiary hearing, were affirmed in 1999. State v. Johnson, 989 S.W.2d 238 (Mo. App.
E.D. 1999) (per curiam). Shortly thereafter, Johnson filed a petition for writ of habeas
corpus in federal court, which was denied in 2003. See Johnson v. Luebbers,
4:00CV408CAS/MLM (United States District Court for the Eastern District of Missouri).
In 2004 and 2005, Johnson sought and was denied writs of habeas corpus in the State
courts. See Johnson v. Dwyer, 04CV746835 (33rd Judicial Circuit) and State ex rel.
Johnson v. Dwyer, SC86666 (Missouri Supreme Court).
The Circuit Attorney established the Conviction Integrity Unit in 2017 and began
investigating Johnson’s conviction in 2018. On July 19, 2019, the Circuit Attorney filed a
motion for new trial on behalf of the State pursuant to Rule 29.11 “based upon evidence of
prosecutorial misconduct that affected the reliability of the verdict and newly discovered
evidence of actual innocence.” Alternatively to granting a new trial, the motion requested
a hearing on the newly discovered evidence. The motion asserted four grounds for relief:
(1) newly discovered evidence of innocence, including the confessions of two other men
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who admitted to shooting Boyd and stated Johnson was not involved; (2) newly discovered
evidence of perjury by material witnesses, including the sole eyewitness’s recantation of
his identification of Johnson as the shooter and false police testimony regarding Johnson’s
alibi location; (3) the State’s repeated failure to disclose Brady 1 material, including
evidence that the sole eyewitness was paid to identify Johnson and another witness’s
extensive criminal history and incentive for testifying; and (4) the State’s knowing
presentation of false and perjured testimony at Johnson’s trial. Johnson joined and adopted
the State’s motion for new trial. Shortly thereafter, the trial court—sua sponte and initially
without explanation—entered an order appointing the Attorney General “to appear on
behalf of the State” in this case. The court also ordered briefing on the issue of its authority
to entertain the motion for new trial.
The Attorney General and the Circuit Attorney both filed briefs on behalf of the
State, but took opposing positions: the Attorney General argued that the Circuit Attorney
had no power to file the motion for new trial and the trial court had no jurisdiction to
consider it at this late date, and the Circuit Attorney argued that she had a duty to file the
motion under these circumstances despite the timelines and the court had implied authority
to consider it. Johnson joined the Circuit Attorney’s brief. A group of prosecutors from
34 jurisdictions around the country led by the St. Louis County Prosecuting Attorney—
many of whom oversee CIUs in their respective offices—filed an amicus brief in the trial
court in support of the Circuit Attorney’s position.
The trial court ultimately entered an order dismissing the motion for new trial,
finding it lacked authority to entertain the motion. The court first addressed whether the
1
Brady v. Maryland, 373 U.S. 83 (1963).
3
State was permitted to file a motion for new trial. It found that Rule 29.11 “is silent as to
which party or parties may file such a motion” and found no other authority for the Circuit
Attorney to file such a motion on the State’s behalf. Regardless, the court said, even if a
motion for new trial could be filed by the State, the motion filed in this case was untimely.
Rule 29.11 motions, the court noted, are due at most 25 days after the return of the verdict,
and this motion was filed decades after the verdict and judgment in this case. The trial
court also found that it did not have implied authority to consider the State’s untimely
motion and it was bound by Rule 29.11 and the timelines therein. The court rejected
arguments that those timelines could be waived by the party filing the motion or that they
only applied when a defendant filed a motion for new trial. Likewise, the trial court found
no merit to the contention that it could review Johnson’s conviction under Rule 29.12
because according to State ex rel. Zahnd v. Van Amburg, 533 S.W.3d 227, 230 (Mo. banc
2017), a trial court may only review plain errors resulting in manifest injustice or a
miscarriage of justice under Rule 29.12 prior to sentencing. Moreover, to the extent CIUs
in other jurisdictions have obtained relief for wrongfully-convicted defendants, the court
noted they may have been acting under a statute authorizing that relief, citing to numerous
provisions from other states permitting a defendant to petition a trial court for relief based
on actual innocence. But, the court said, “the Missouri General Assembly has failed to
pass such enabling legislation for circuit courts.”
In short, the trial court concluded that when the sentence was imposed in this case
in 1995, the trial court’s jurisdiction over the matter was exhausted and none of the sources
cited by the Circuit Attorney provided authority for the trial court to consider a motion for
trial at this late date. The court pointed out that Johnson was not without a remedy in this
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case, noting the possible availability of habeas relief based on his claim that the State failed
to disclose exculpatory or impeaching evidence. 2 “In fact,” the court added, Johnson “has
unsuccessfully sought habeas corpus relief raising many of the same claims he raises here,
multiple times.”
At the parties’ request, the trial court also set forth an explanation for why it had
sua sponte appointed the Attorney General. The trial court cited its concern about
“problematic conduct” by the Circuit Attorney and The Innocence Project, which
represented Johnson in these proceeding, noting the improper contact with jurors from
Johnson’s trial and the potential conflict of interest attending the CIU’s review of a
previous circuit attorney’s conduct. The trial court found it necessary under these unusual
circumstances to appoint the Attorney General “to protect the integrity of the legal
process.” The court clarified that the order appointing the Attorney General did not
disqualify the Circuit Attorney or relieve her of any obligations; instead it was meant only
to direct the Attorney General to give input on the issue of the court’s authority.
Notices of appeal were filed by both the Circuit Attorney on behalf of the State and
by Johnson. The Attorney General filed a notice of dismissal of the State’s appeal under
Rule 30.13. The Circuit Attorney and Johnson opposed the dismissal. Because only the
Attorney General “shall appear on behalf of the [S]tate” in appeals, this Court permitted
the Attorney General to dismiss the State’s notice of appeal filed by the Circuit Attorney.
See Section 27.050 of the Missouri Revised Statutes. Thus, we are left with only Johnson’s
appeal, in which the State is the respondent. The Circuit Attorney was allowed to remain
2
It has also been suggested by the Attorney General that another avenue of relief would be for Johnson to
seek an executive pardon.
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in the case as an intervenor in Johnson’s appeal. 3 The only two rulings Johnson appeals
from in this case are the trial court’s order appointing the Attorney General and the trial
court’s order dismissing the motion for new trial. These orders are not appealable.
Statutory Authority for Appeal
“No right of an appeal exists without statutory authority.” State v. Craig, 287
S.W.3d 676, 679 (Mo. banc 2009). Section 547.070 governs the defendant’s right to appeal
in criminal cases: “In all cases of final judgment rendered upon any indictment or
information, an appeal to the proper appellate court shall be allowed to the defendant.”
Final judgments occur when the court enters a judgment of guilt and sentence. Craig, 287
S.W.3d at 679. Here, the final judgment was entered in 1995. Johnson does not purport
to appeal from that 1995 judgment, but from orders of the trial court entered decades later.
“Orders entered in criminal cases after the judgment has become final which deny motions
requesting various types of relief are not appealable.” State v. Payne, 403 S.W.3d 606, 607
(Mo. App. S.D. 2011); see also State v. McCauley, 496 S.W.3d 593, 595 (Mo. App. S.D.
2016) (collecting cases) (“Nearly all rulings after the judgment and sentence are non-
appealable). Because there is no statutory right to appeal these orders, this Court must
dismiss the appeal. See State v. Smiley, 478 S.W.3d 411, 414 (Mo. banc 2016). 4
3
In addition to the parties’ and the intervenor’s briefs, the Court accepted briefs from the following amici,
all of which were filed in support of the Circuit Attorney’s position on appeal: the group of “34 Prosecutors”
who filed a brief in the trial court, the “American Civil Liberties Union of Missouri, American Civil Liberties
Union Foundation and The Innocence Project” and groups of “Legal Post-Conviction Scholars” and “Legal
Ethics Scholars” from law schools around the country.
4
Contrary to the intervenor’s suggestion at oral argument, Section 547.200 does not provide statutory
authorization for this appeal. That statute provides the State—not the defendant—the right to appeal.
Because the State’s notice of appeal was dismissed, this appeal is before us only on Johnson’s notice of
appeal.
6
Johnson and the Circuit Attorney assert a number of arguments for why we can and
should hear the merits of this appeal, pointing to cases discussing various powers of an
appellate court—to determine a trial court’s authority, to conduct plain error review and to
remand for a new trial under exceptional circumstances. Those various powers are wholly
distinct from the statutory right to bring the appeal in the first place, and reliance on the
cases discussing them is entirely misplaced.
For instance, Johnson and the Circuit Attorney cite to Dorris v. State, which was a
consolidated appeal of several post-conviction cases transferred to the Supreme Court, each
of which originated in the courts of appeals on appeals from final judgments denying post-
conviction motions on the merits. 360 S.W.3d 260, 263-65 (Mo. banc 2012). The courts
of appeals had found that the post-conviction motions were untimely, and the question
before the Supreme Court was whether the motion courts had authority to decide the merits
of an untimely post-conviction motion. The Court noted the distinction between the motion
court’s constitutionally-based subject matter jurisdiction over “all cases and matters, civil
and criminal,” and the separate question of the motion court’s statutory authority to grant
relief in any given case. Id. at 265 (citing J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d
249, 253 (Mo. banc 2009)). Having concluded that the motion court had subject matter
jurisdiction, the Court stated that it too had “subject matter jurisdiction”—citing the
constitutional provision regarding appellate jurisdiction—“to determine whether the
motion court correctly or incorrectly exercised its authority.” Id. But the existence of the
Supreme Court’s subject matter jurisdiction in Dorris does not answer whether there is
statutory authority for the right to appeal in this case. The right to appeal was not even
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addressed in Dorris. 5 Johnson’s argument that Dorris and Webb somehow override the
principle that the right to appeal is statutory demonstrates a fundamental misunderstanding
of those cases and the difference between constitutional jurisdiction and statutory authority.
Both before and after Webb, an appellate court must dismiss any appeal that is not
authorized by statute, irrespective of the existence of constitutionally-based appellate
jurisdiction over the subject matter of the appeal. See First Community Credit Union v.
Levison, 395 S.W.3d 571, 576 (Mo. App. E.D. 2013) (applying Webb and distinguishing
statutory authority for appeal of final civil judgment under Section 512.020 from concept
of “jurisdiction”).
Equally unavailing is Johnson’s and the Circuit Attorney’s reliance on a line of
cases recognizing that, under certain “exceptional circumstances,” an appellate court “has
the inherent power to prevent a miscarriage of justice or manifest injustice by remanding a
case to the trial court for consideration of newly discovered evidence” discovered while
the appeal is pending but after the time for filing a motion for new trial has expired. State
v. Terry, 304 S.W.3d 105, 109 (Mo. banc 2010); see also State v. Mooney, 670 SW.2d 510
(Mo. App. E.D. 1984); State v. Williams, 673 S.W.2d 847, 848 (Mo. App. E.D. 1984). But
that “inherent power” only exists if the case is otherwise properly before the appellate court
because there was a statutory right to bring the appeal in the first place. Because the
5
Notably, the appeals in Dorris were filed by the movants from final judgments on the merits of their civil
post-conviction motions, not from an order of dismissal entered after a final judgment in a criminal case like
here. Johnson’s contention that this order, like the judgments in Dorris, “wholly disposed of the underlying
case” and therefore is appealable is not well-taken. He cites civil cases holding that when an order of
dismissal has the practical effect of terminating the litigation it can be deemed an appealable judgment,
despite not being a “final judgment” as required by the statute governing appeals in a civil case. See, e.g,
House Rescue Corporation v. Thomas, 328 S.W.3d 267, 272 (Mo. App. W.D. 2010) (citing Section 512.020).
That principle has nothing to do with whether there is a statutory right to appeal the post-judgment orders in
this criminal case.
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appellate courts in the Terry, Mooney and Williams were reviewing timely appeals filed by
defendants from final judgments of conviction and sentence, they had the prerequisite
statutory authority necessary to exercise the inherent power to remand.
Johnson also cites State v. Williams, for the proposition that this Court can “always”
consider plain errors. 504 S.W.3d 194 (Mo. App. W.D. 2016). Again, like the other cases
discussed above, that case was before the appellate court on the defendant’s appeal from a
final judgment of conviction and sentence. See id. at 196. It was the second appeal in the
case, the original judgment having been vacated and remanded for resentencing. Id. On
remand, the defendant attempted to file a motion for new trial based on newly discovered
evidence, which was denied by the trial court as untimely. Id. The trial court then entered
a judgment on the conviction and sentence, and the defendant appealed. Id. The appeal
was, therefore, from a final judgment of conviction and sentence, which the defendant had
the right to appeal under Section 547.070. Because the appeal was properly before the
court, it could review the denial of the motion for new trial, although only for plain error
since an untimely motion for new trial did not preserve any issues raised therein for appeal.
See id. at 197. The power to review for plain error, like the “inherent authority” to remand
discussed above, depends on whether the prerequisite statutory authority exists for the
appeal in the first place. 6
In short, none of the cited cases answer whether there is statutory authority for the
right to appeal in this case. 7 None of the arguments raised by Johnson or the Circuit
6
Johnson also suggests that this Court has a “duty” to correct a manifest injustice under Rule 91.06. That
rule—regarding a court’s duty to issue a writ of habeas corpus upon being presented evidence that a person
is illegally confined—is wholly inapplicable to one’s statutory right to appeal.
7
After oral argument, Johnson called our attention to Finley v. State, 2019 WL 6711461 (Mo. App. S.D.
December 10, 2019). That case is not relevant to our Court’s statutory authority to hear this appeal. We note
that Johnson has also filed, based on Finley, a motion to recall the 1999 mandate in which this Court affirmed
9
Attorney overcome the fact that there is no statute authorizing an appeal by the defendant
from the post-judgment orders in this criminal case. We are bound by the rules regarding
the statutory right to appeal and cannot bend them for the convenience of expediently
reaching the merits of the important issues presented in this appeal. To do so would risk
disrupting established law, and we “should not, indeed cannot due to constitutional
restraints, establish some new rule pertaining to rights of appeal which would be contrary
to extant statutory authority.” State v. McCauley, 496 S.W.3d 593, 596 n. 4 (Mo. App.
S.D. 2016) (internal citation and quotation marks omitted).
Transfer to Supreme Court
Although we must dispose of this case by dismissal, we nevertheless have the
discretion to transfer the case to the Supreme Court:
A case disposed of by an opinion, memorandum decision, written order, or
order of dismissal in the court of appeals may be transferred to this Court
by order of a majority of the participating judges . . . on their own motion .
. . because of the general interest or importance of a question in the case or
for the purpose of reexamining existing law.
Rule 83.02.
The issues in this case are undeniably important and include questions fundamental
to our criminal justice system: whether and to what extent an elected prosecutor has a duty
to correct wrongful convictions in her jurisdiction; whether and to what extent there is or
should be a mechanism for her to exercise that duty; whether and to what extent the
limitations of any such mechanism (such as the Rule 29.11 timelines) impact a trial court’s
authority to consider the matter or the statutory right to appeal a trial court’s ruling on the
Johnson’s conviction and the denial of his post-conviction motion in case number ED69212. That motion to
recall is pending.
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matter; and whether and to what extent the Attorney General has or should have a role in
that process. The resolution of these issues is of obvious import and general interest
throughout this State. But the case has also garnered national attention given the numerous
jurisdictions with conviction integrity units facing similar questions of significance to the
administration of justice in those states. Moreover, resolution of these issues may require
reexamination of existing law. Under these circumstances, we find transfer appropriate.
Conclusion
The appeal is dismissed, and the case is ordered transferred to the Missouri
Supreme Court.
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