1

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

STATE OF MISSOURI )

EX REL. CORNELL MCKAY )

)

Petitioner/Relator, ) Missouri Court of Appeals,

) Eastern District, No.

v. )

)

HON. ROBIN VANNOY, )

Circuit Court Judge, ) Circuit Court of the City of St. Louis

Circuit Court of the City of St. Louis ) Case No. 1222-CR04627

Twenty-Second Judicial Circuit, )

)

Respondent, )

)

and )

)

DALE GLASS, )

Commissioner )

City of Saint Louis Justice Center )

200 South Tucker Blvd )

Saint Louis, Missouri 63102 )

)

Respondent. )

WRIT SUMMARY

I. Parties and Attorneys

Cornell McKay, James R. Dowd

Petitioner/Relator James R. Dowd, Attorney &

Counselor at Law, LLC

34 N. Brentwood Blvd., Suite 209

St. Louis, MO 63105

Phone: (314) 727-6777

Fax: (314) 727-6773

jim@dowdj.com

Robert B. Ramsey

Ezra & Associates

850 Vandalia St., Suite 310

2

Collinsville, IL 62234

Phone: (618) 346-1000

Fax: (618) 346-0650

bob@ezralaw.com

Thomas J. SanFilippo

Thomas SanFilippo & Associates, LLC

1010 Market St., Thirteenth Floor

St. Louis, MO 63101

Phone: (314) 669-5752

Fax: (314) 621-8843

thomas@tsalawoffice.com

Joseph F. Yeckel

Law Office of Joseph F. Yeckel, LLC

7710 Carondelet Ave., Suite 208

St. Louis, MO 63105

Phone: (314) 727-2430

Fax: (866) 873-5905

joe@yeckel-law.com

The Honorable Robin R. Vannoy, Circuit Court of the City of St. Louis

Respondent Division 3

10 N. Tucker Blvd.

St. Louis, Missouri 63101

Dale Glass, City of St. Louis Justice Center

Respondent 200 S. Tucker Blvd.

St. Louis, Missouri 63102

St. Louis City Prosecuting Attorney Christine Krug

Steven Capizzi

Circuit Attorney’s Office

1114 Market St., Suite 401

St. Louis, MO 63101

Phone: (314) 589-6335

krugc@stlouiscao.org

capizzis@stlouiscao.org

II. Nature of Underlying Action

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This writ proceeding arises from the criminal prosecution of the Petitioner/Relator

Cornell McKay for his alleged involvement in a robbery that occurred on August 10,

2012. On October 11, 2012, an indictment was returned charging Petitioner with first

degree armed robbery and armed criminal action. An arrest warrant issued at the time of

the indictment. Petitioner turned himself in on August 20, 2012, and has been

incarcerated in the St. Louis Justice Center ever since.

Petitioner was found guilty by a jury which returned the verdict on December 13,

2013. Subsequently, Petitioner’s trial counsel missed the deadline for filing a motion for

new trial provided in Supreme Court Rule 29.11. On February 3, 2014, said trial counsel

was permitted to withdraw.

Petitioner’s sentencing is set for March 20, 2014.

III. Action of Respondent Being Challenged

Petitioner challenges Respondent Vannoy’s ruling denying his request to stay the

sentencing and his request to issue a writ of habeas corpus to correct his attorney’s failure

to perfect his appeal. Petitioner also applied for Respondent Vannoy to bring an alleged

alternative perpetrator, Keith Esters, to court to testify about newly discovered statements

he made to a news reporter which were tantamount to an admission that he, not

Petitioner, committed the robbery.

Respondent Vannoy denied all of Petitioner’s motions.

IV. Relief Sought by Relator

Petitioner seeks a writ of prohibition directing Respondent Vannoy to postpone

Petitioner’s sentencing to allow Petitioner to file and have a meaningful hearing on a

motion for new trial, including claims based on newly discovered evidence, and thereby

perfect his direct appeal. Petitioner also seeks a writ of habeas corpus to correct the

negligent abandonment on appeal by his trial counsel. Petitioner further seeks a hearing

on his gateway claim of actual innocent that he has been the victim of a manifest

injustice, and that the circumstances are so rare and exceptional as to amount to a denial

of his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S.

Constitution.

1

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

STATE OF MISSOURI )

EX REL. CORNELL MCKAY )

)

Petitioner/Relator, ) Missouri Court of Appeals,

) Eastern District, No.

v. )

)

HON. ROBIN VANNOY, )

Circuit Court Judge, ) Circuit Court of the City of St. Louis

Circuit Court of the City of St. Louis ) Case No. 1222-CR04627

Twenty-Second Judicial Circuit, )

)

Respondent, )

)

and )

)

DALE GLASS, )

Commissioner )

City of Saint Louis Justice Center )

200 South Tucker Blvd )

Saint Louis, Missouri 63102 )

)

Respondent. )

PETITION FOR WRIT OF HABEAS CORPUS

AND FOR WRIT OF PROHIBITION

COMES NOW Petitioner Cornell McKay, by and through his counsel, and for his

Petition for Writ of Habeas Corpus and Writ of Prohibition, pursuant to Supreme Court

Rules 91 and 97, states as follows:

1. Petitioner Cornell McKay is in the custody of the St. Louis Justice Center, 200

South Tucker Blvd., St. Louis, Missouri. He is incarcerated pursuant to an

indictment and a December 13, 2013 jury verdict arising out of the armed robbery

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of Leigh Deusinger on August 10, 2012. During the robbery, Deusinger’s cell

phone and $50 were stolen.

2. Respondent Dale Glass, the warden/custodian of the jail facilities at the St. Louis

Justice Center where Petitioner is incarcerated.

3. Respondent Honorable Robin Vannoy1 is a Twenty-Second Judicial Circuit Judge

who has jurisdiction over Petitioner’s case, and was Petitioner’s trial judge.

STATEMENT OF FACTS

4. No petition for the relief sought has been made to any higher court to the one to

which the petition is presented.

5. A copy of the arrest warrant and indictment under which Petitioner is held is

attached as Exhibits 1 and 2.

6. Petitioner’s jury trial began on December 10, 2013 and concluded on December

13, 2013 with a jury verdict of guilty.

7. Petitioner was represented before and during the trial by James Hacking and

Jennifer Shoulberg, neither of whom had ever tried a criminal jury trial.

8. Petitioner’s attorneys failed to file a motion for new trial within the fifteen days

required by Rule 29.11, nor did they file a request for an extension.

9. This deadline is mandatory and its violation preserves nothing and fails to perfect

a convicted defendant’s otherwise statutory right to an appeal.

1 All references to “Respondent” hereafter are to the Honorable Robin Vannoy.

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10. Subsequent to missing the deadline for filing the motion for new trial, Petitioner’s

attorney represented him at a probation revocation hearing in the St. Louis Circuit

Court, wherein he advised Petitioner to waive his right to a hearing.

11. The Circuit Court, on January 3, 2013, revoked Petitioner’s probation for a prior

burglary and stealing, and imposed concurrent sentences of 7 years in the Missouri

Department of Corrections.

12. On February 3, 2014, Petitioner’s former lawyers, realizing that they had

negligently missed the deadline for filing a motion for new trial, made an oral

motion before Respondent for leave to withdraw as Petitioner’s attorneys.

Respondent granted the motion after counsel represented to her that he had been

negligent in confusing the deadlines for filing motions for new trial in civil and

criminal cases. See Exhibit 12, Affidavit of James Hacking.

13. Petitioner’s sentencing is presently set for March 20, 2014.

14. Present counsel for Petitioner entered their appearances on February 18, 2014, and

March 12, 2014, respectively, have only recently obtained and began to review

trial files from the previous attorneys.

15. On February 25, 2014, present counsel filed a motion to stay the March 20

sentencing. See Exhibit 3, Motion for Stay of Proceedings.

16. The motion alleged, inter alia, the following:

a. That counsel needed additional time to prepare for sentencing and to pursue

remedies for former counsel’s failure to perfect the appeal.

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b. That the remedy for failure to perfect the appeal amounted to such

extraordinary inattention to the defendant’s interests as to be ineffective

assistance of counsel as a matter of law. State ex rel. Hahn v. Stubblefield, 996

S.W.2d 103 (Mo.App. E.D.1999).

c. The remedy for failure to perfect an appeal in a criminal case is either a writ of

habeas corpus or a motion for post-conviction relief remedy under Rule 29.15,

the latter being neither adequate nor available. Flowers v. State, 618 S.W.2d

655 (Mo. 1981); Wolf v. Steele, 290 S.W.3d 136 (Mo.App. S.D. 2009).

d. That the trial court erred and abused its discretion by preventing Petitioner

from presenting fully the defense that an alternative perpetrator, Keith Esters,

committed the robbery.

e. A potential Brady violation exists due to the suppression or destruction of

critical exculpatory evidence. Specifically, according to information provided

by the prosecutor to Joe Spence, Petitioner’s probation officer, a photograph

found on Deusinger’s cell phone, was not recognized by her, but was later

somehow determined by police to be a photograph of Petitioner. That

photograph was suppressed, destroyed, or fabricated but, in any case, would be

Brady material never disclosed to Petitioner. See Exhibit 13, Probation

Violation Report, August 24, 2012; Exhibit 14, Redacted Probation Violation

Report, August 29, 2013.

17. After a hearing on the motion for stay on March 13, 2014, Respondent denied the

motion and refused to allow Petitioner to bring the alternative perpetrator, Esters,

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to the hearing to discuss recent admissions about the robbery to a news reporter.

See Exhibit 4, St. Louis Post Dispatch Article, March 5, 2014. Taken in their

totality and the trail of facts and circumstances implicating Esters as the actual

perpetrator, these newly discovered statements are admissions against Esters penal

interest.

18. As a result of the denial of the Motion to Stay, Petitioner now brings this

necessary action in order to preserve his full right to appeal and question the

legality of his restraint.

19. A trial transcript has been ordered but the transcript was not received until the

afternoon of March 17, 2014.

EVIDENCE OFFERED AGAINST PETITIONER

20. The evidence against Petitioner is thin, consisting only of a cross-racial

identification made by Deusinger and her husband, David Bruns.

21. There is no physical or other evidence connecting Petitioner to the robbery.

22. The circumstances of the in-court and out-of-court identification are unreliable at

best, in the following particulars;

a. According to Deusinger’s deposition testimony, the robbery had to have

occurred at the earliest by 8:40 p.m. after sunset and without the benefit of

streetlights. Deusinger’s cell phone records indicate that a call was made to

Ester’s girlfriend, Perry at 9:10 p.m. This is established by Deusinger’s

deposition testimony that the last thing she did before leaving Tower Grove

Park to go home was to call her husband. Her phone logs indicate that call

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was made at 8:25 p.m. See Exhibit 5, Deusinger Deposition, at p. 8; Exhibit

6, Deusinger Phone Records.

b. Bruns, who passed the robber on the street earlier, was unable to pick

Petitioner out of a photo line-up.

c. Before Deusinger’s February 27, 2013 deposition, Detective Boettigheimer,

pursuant to the directions of the Assistant Circuit Attorney, reinforced the

identifications by re-showing the photos of Petitioner to Deusinger and

Bruns. In the 6 months between the crime and her deposition, the

investigators had never shown Deusinger a photo or lineup containing

Keith Esters. However, immediately prior to Deusinger’s deposition, the

detective showed her a photo of Keith Esters and falsely represented to her

that Cornell McKay was an associate of Esters and that McKay had sold

her stolen phone to Esters. Deusinger noted similarities between Esters and

her assailant. See Exhibit 5, Deusinger Deposition, pp. 84, 91.

d. Boettigheimer admitted in his pre-trial deposition that the state had no

evidence connecting Petitioner to Esters or establishing that Petitioner had

conveyed the victim’s cell phone to Esters. See Exhibit 7, Boettigheimer

Deposition, p. 104.

e. It is significant that without any supporting evidence, the state was allowed

permitted to argue to the jury that Petitioner had somehow conveyed the

phone to Esters shortly after the robbery. The significance and prejudice of

this is magnified by the weight of the evidence which the state had against

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Keith Esters (most of which was kept from the jury). That evidence

included the following:

EVIDENCE IMPLICATING KEITH ESTERS

23. Shortly after the robbery of Deusinger, Esters called his girlfriend, Kaylin Perry,

using Deusinger’s cell-phone. Over the course of 10 days, Perry’s number was

called a total of 17 times. See Exhibit 6, Deusinger Phone Records.

24. During the week of August 13, 2012, Esters gave the stolen cell phone to Kaylin

Perry. See Exhibit 8, Perry Deposition, p. 17.

25. Esters admitted to Perry that he obtained that cell phone and cash in a robbery. See

Exhibit 8, Perry Deposition, p. 17.

26. Respondent ruled that Petitioner could not introduce Perry’s testimony that

a. Esters owned a small silver handgun, the same type and color weapon

described by Deusinger.

b. That Esters had given the gun to a relative who got rid of it

c. That when she was to be questioned by police about Esters robbery and

murder of Megan Boken eight days after the Deusinger robbery, Esters

instructed her to lie and say that she had gotten the cell phone from

someone on the street, not from Keith Esters.

27. Respondent further prevented Petitioner from presenting the full testimony of St.

Louis Police Homicide Detective Jerone Jackson. Petitioner made the following

offer of proof:

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a. “Defendant intends to call homicide Detective Jerone Jackson to testify on

his behalf. Detective Jackson is expected to testify that: he conferred and

consulted with 9th

District Detective Anthony Boettigheimer, the

investigator on the case at issue, while he (Detective Jackson) was

investigating the murder of Megan Boken; that Det. Jackson told Det.

Boettigheimer that Mr. Esters had come home one day with $50 and a cell

phone after the robbery at issue had occurred ; that the victim’s phone in

the case at bar was used immediately after the Boken murder; that homicide

detectives called numbers on the phone logs for the phone stolen in this

case and contacted Kaylin Perry through those phone records; that Kaylin

Perry admitted that Mr. Esters had a small, silver handgun; that Kaylin

Perry told Detective Jackson that the phone she was using was the phone

stolen in this case; that Keith Esters told Det. Jackson that he was in the

area of the robbery when it occurred and that he knew who committed the

robbery; that Mr. Esters told Det. Jackson that the Defendant did not

commit the robbery; that police had executed a search warrant at the home

of Mr. Esters and seized clothing similar to the clothing described by the

victim in this case from Mr. Ester’s home; he knows of no connection

between Mr. Esters or Ms. Perry and the Defendant and related issues.” See

Exhibit 9, Motion to Admit Evidence of Alternative Perpetrator.

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28. In early March 2014, after the time for filing the motion for new trial had expired,

Esters gave an interview to St. Louis Post Dispatch reporter Jennifer Mann in

which he stated:

a. “To tell you the truth, I can’t say nothing that gonna benefit him because in

the end its gonna make me look bad.”

b. “Time-wise…I’m not going to go back down there and give them a

confession because they would give me more time.”

c. “I’m not willing to help them just to help somebody else if it ain’t going to

benefit me.”

d. “In the end, [McKay] gonna need my help in his case.”

See Exhibit 4, St. Louis Post-Dispatch Article, March 5, 2014.

29. Esters matched the physical description given by Deusinger.

30. Esters was identified as the person who sold the cell phone to a gas station on

August 20, 2012, the day the cell phone was finally turned off, and 2 days after the

Boken murder.

THE MEGAN BOKEN MURDER AND THE CREDIBILITY OF THE

INVESTIGATION, INVESTIGATORS AND PROSECUTORS

31. Eight days after the Deusinger robbery, Megan Boken was robbed and murdered

by Keith Esters, aided and abetted by his cousin, Jonathan Perkins.

32. Boken’s murder occurred within four blocks of the Deusinger robbery.

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33. According to homicide detective Jackson, the investigation began by examination

of similar incidents in the area, leading homicide investigators to focus on the cell

phone taken from Deusinger.

34. During the week of August 13 and before Boken’s murder, Deusinger had given

9th

District detectives copies of phone logs which she had obtained from Sprint.

35. However, immediately after Boken’s murder, homicide detectives quickly

contacted unrecognized telephone numbers from Deusinger’s cell phone and

contacted Kaylin Perry.

36. Perry then implicated Esters in both the Boken murder and the Deusinger robbery.

37. The prosecution suppressed, destroyed, and/or failed to produce the exculpatory,

impeaching evidence of the photograph(s) on the victim’s cell phone.

38. The evidence was material and Petitioner was prejudiced in that the only evidence

of Petitioner’s guilt was the witness identifications. Said evidence seriously

undermines the identification testimony and supports the defense theory that the

9th district detectives made no serious attempt to ascertain the truth of who robbed

Deusinger.

39. The prosecution knew or should have known that there was no evidence that

Petitioner conveyed Deusinger’s cell phone to Keith Esters. To Petitioner’s best

knowledge and belief, the state argued to the jury that Petitioner did so, and that

there was no evidence that Petitioner and Esters were “associates” as

Boettigheimer told the victim.

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40. The prosecution knew, should have known, or actually participated in

Boettigheimer’s telling the victim before her deposition that Petitioner conveyed

the victim’s cell phone to Keith Esters and that Petitioner and Esters were

“associates.”

41. The prosecution knew or should have known that Homicide Detective Jackson had

testified that there was no evidence connecting Petitioner and Esters.

RELIEF SOUGHT

42. Petitioner seeks the following relief from this Court:

a. This Court’s assumption of jurisdiction of this proceeding.

b. A preliminary writ of prohibition staying the proceeding and restraining

Respondent from taking further action in the case until such time as this

Court rules on the petition.

c. An Order permitting Petitioner to file a Motion for New Trial out of time;

d. An Order directing Respondent to conduct a hearing on the Motion for New

Trial;

e. An Order prohibiting Respondent from sentencing Petitioner until such time

as:

i. Petitioner’s present counsel have at least thirty days to review the

nearly 500-page trial transcript which first became available to them

on March 17, 2014;

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ii. Petitioner has been accorded a reasonable opportunity to file a

Motion for New Trial, which includes allegations based on evidence

discovered after trial that did not exist at the time of trial;

iii. Petitioner has been accorded a hearing on his Motion for New Trial;

and

iv. Respondent has ruled upon Petitioner’s Motion for New Trial;

and/or

f. Any other Orders appropriate under the circumstance which are reasonably

necessary to restore Petitioner’s constitutional rights to a fair trial,

meaningful appellate review of his conviction, and effective assistance of

counsel.

REASONS WHY THE WRIT SHOULD ISSUE

43. Respondent refused to remedy a clear, known violation of Petitioner’s

constitutional right to a direct appeal and to the effective assistance of counsel.

44. Respondent denied Petitioner’s motion to stay sentencing and for the purpose of

conducting an evidentiary hearing as to whether his former counsel abandoned him

after the verdicts were returned, thereby causing the failure to file a timely motion

for new trial. See Exhibit 3, Motion for Stay of Proceedings. Respondent denied

the motion and has scheduled Petitioner’s sentencing on March 20, 2014.

45. Respondent prevented Petitioner from obtaining the testimony of Keith Esters to

develop his claim that he is entitled to a new trial on account of newly discovered

evidence. To obtain the testimony of Esters, who is confined in the Eastern

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Reception Diagnostic Correctional Center, Petitioner applied for a Writ of Habeas

Corpus Ad Testificandum. Despite making admissions against penal interest to a

news reporter by Keith Esters implicating himself and exonerating Petitioner,

Respondent refused to allow Petitioner to bring Esters from the State Penitentiary

to testify at the March 13, 2014 hearing. (See Exhibit 10, Application for Writ of

Habeas Corpus Ad Testificadum).

46. Respondent further denied Petitioner the opportunity to present evidence strongly

suggestive of Brady violations, such as the unexplained disappearance of a

photograph on Deusinger’s cell phone that Deusinger did not recognize and that

the police claimed was Petitioner while the cell phone was in police custody.

47. Petitioner will suffer irreparable harm if the writ is not granted for the following

reasons:

a. Petitioner will be denied due process by virtue of his trial counsel’s failure

to file a timely motion for new trial, thereby preserving nothing for his

direct appeal;

b. Petitioner will be denied the opportunity to present compelling newly

discovered evidence and Brady issues that demonstrate he is actually

innocent of the crime charged.

c. Petitioner will be subject to unjust confinement until such time as these

claims are finally heard and adjudicated.

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SUGGESTIONS IN SUPPORT OF PETITION

A. Standard for Writ of Habeas Corpus

Habeas corpus “serves as a bulwark against convictions that violate fundamental

fairness.” State ex rel. Engel v. Dormire. 304 S.W.3d 120, 125 (Mo. 2010). “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.” Id. Petitioner has the

“burden to show that he or she is entitled to habeas corpus relief.” State ex rel. Nixon v.

Jaynes, 735 S.W.3d 623, 624 (Mo. 2002). A petitioner is required to show either: (1) a

jurisdictional defect; (2) cause for failing to raise ineffective assistance or other

constitutional defect and prejudice resulting from the defect; or (3) manifest injustice

such as either a freestanding or a gateway claim of actual innocence. Amrine v. Roper,

102 S.W. 3d 541 (Mo. 2003).

B. Entitlement to Habeas Corpus Relief

1. Petitioner should be permitted to file a motion for new trial because his prior

attorney abandoned him and, consequently, deprived him of his constitutional right to

effective assistance of counsel.

It is well established that a defendant in a criminal case is “entitled to effective

assistance of counsel in the trial court and on appeal” and that a defendant’s failure to

receive effective assistance is “a denial of constitutional rights under the Sixth and

Fourteenth Amendments of the Constitution of the United States.” State ex rel. Hahn v.

Stubblefield, 996 S.W.2d 103, 108 (Mo.App. E.D.1999). Moreover, a defendant

convicted of a crime “may not be unconstitutionally deprived of his direct appeal and the

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effective assistance of counsel because of the failure of counsel to file a timely notice of

appeal.” Id.

Where ineffective assistance of counsel results in the failure to meet a deadline

imposed by the Supreme Court Rules, appellate courts are empowered to fashion a

remedy to preserve the defendant’s right to appellate review and effective assistance of

counsel. Wolf v. Steele, 290 S.W.3d 136, 138 (Mo.App. S.D.2009); State v. Nylon, 311

S.W.3d 869, 876 (Mo.App. E.D.2010) (“Despite the lack of a provision in the rules, this

Court has the ‘responsibility to avoid a perversion of justice.’”) (quoting State v. Terry,

304 S.W.3d 105, 110 (Mo. 2010)).

Here, Petitioner was convicted of armed robbery on December 13, 2013. During a

four-day trial, Petitioner’s former counsel sought to admit evidence indicating that

another individual committed the robbery. This evidence would have established a

stronger case of guilt of Keith Esters, the alleged alternative perpetrator, including that a

call was placed from the victim’s cell phone to Esters’ girlfriend twenty-five to thirty

minutes after the robbery and Esters connection to a handgun matching the description of

the gun used in the robbery.

Respondent excluded the vast majority of the alternative perpetrator evidence

based on the prosecution’s objections. Due to former counsel’s negligence, no motion for

new trial was filed on Petitioner’s behalf within the deadline provided by Rule 29.11,

effectively precluding appellate review of Respondent’s rulings, including the exclusion

of the alternative perpetrator evidence. In State v. Brock, this Court stated that an

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untimely motion for new trial “preserves nothing for review.” 113 S.W.3d 227, 234

(Mo.App. E.D.2003) (emphasis added).

In analogous circumstances, Missouri appellate courts have invoked their inherent

power to remedy the procedural default that would vitiate the defendant’s right to

meaningful appellate review and the right to receive effective assistance of counsel.

These courts were not deterred by the absence of a provision authorizing an appeal after

the deadline for perfecting an appeal had expired.

In Hahn, defense counsel failed to file a timely notice of appeal. Twenty-six

months after the trial concluded, counsel filed a motion for leave to file a late notice of

appeal and attributed the failure to negligence that was not the fault of defendant. While

this Court denied the motion, it granted relief by issuing a writ of habeas corpus. It

remanded the case with directions to vacate the sentence imposed and to resentence the

defendant, after which time “the petitioner may take a timely appeal to this court.” Id. at

108-09. In granting relief, this Court reasoned that “fundamental fairness requires

appropriate relief be accorded petitioner” when he “was effectively abandoned by

counsel, a deprivation of his constitutional rights, and denied an appeal in a criminal

case.” Id. at 108.

Similarly, in Wolf v. Steele, 290 S.W.3d 136, 138 (Mo.App. S.D.2009), the court

determined that defense counsel’s failure to file a timely notice of appeal constituted

ineffective assistance “because such action is professionally unreasonable.” The court

held that the defendant could “avail himself of the cause and actual prejudice ground for

habeas corpus relief” due to the prejudice occasioned by the denial of his right to appeal

17

his criminal case.” Id. Accordingly, the court issued a writ of habeas corpus vacating the

sentence and directing the circuit court to enter a new sentence so that the defendant

could file a timely notice of appeal. Id. at 139.

2. Petitioner should be permitted to file a motion for new trial based on evidence

discovered after the filing deadline had expired.

In March 2014, Keith Esters, who Petitioner maintained actually committed the

crime for which Petitioner was convicted, was interviewed by a reporter of the St. Louis

Post-Dispatch. When asked about claims that the police pursued Petitioner so it wouldn’t

appear that they could have spared Boken’s life if they had arrested Esters for the crime

earlier, Esters stated:

• “Tell you the truth, I can’t say nothing that gonna benefit him [Petitioner]

because in the end it’s gonna make me look bad.”

• “Time-wise . . . I’m not going to go back down there and give them a

confession because they would give me more time.”

• “I’m not willing to help them [the police] just to help somebody else if it ain’t

going to benefit me.”

• “In the end, he [Petitioner] gonna need my help in his case.”

Esters’ statements are highly inculpatory and strongly corroborate Petitioner’s

defense that someone else committed the offense. This evidence did not exist when a

timely motion for new trial could be filed. Nonetheless Respondent quashed a subpoena

directed to Esters to obtain his testimony for use in a motion challenging the conviction

based upon newly discovered evidence. Respondent’s actions constitute a manifest abuse

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of discretion since jurisdiction remains in the circuit court and the existence of newly

discovered evidence provides a valid basis for overturning Petitioner’s conviction.

Thirty years ago this Court held that a defendant should be permitted to file a

motion for new trial challenging his conviction based on newly discovered evidence even

though the deadline for filing such a motion had passed. In State v. Mooney, 670 S.W.2d

510 (Mo.App. E.D.1984), the defendant learned that the accusing witness had recanted

his trial testimony six months after the deadline for filing a motion for new trial. The

defendant filed a motion in the court of appeals to include this newly discovered evidence

in the record on appeal. The court of appeals observed that the Supreme Court Rules

“make[] no provision for the filing of a motion for new trial based on the grounds of

newly discovered evidence.” Id. at 513. The state, in opposing the motion, argued that

the defendant had a remedy of seeking executive clemency. Id. at 513. Even though the

Supreme Court Rules made no provision for remanding the case and the deadline for

filing a motion for new trial had long since passed, this Court concluded that it had “the

inherent power to prevent miscarriages of justices in a proper case by remanding the case

to the trial court with instructions that the appellant be permitted to file a motion for new

trial upon the grounds of newly discovered evidence.” Id. at 515-16.

In State v. Terry, 304 S.W.3d 105 (Mo. 2010), the court remanded the case to

allow the defendant to file a motion for new trial based on newly discovered evidence

even though the time for filing such a motion had expired. The court held that even

though the evidence did not exonerate the defendant, unlike the newly discovered

evidence here, remand was still appropriate because the evidence “cast serious doubt on

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the validity of the conviction.” Id. at 108. In Mooney, the court noted, the newly

discovered evidence “did not completely exonerate the defendant; it impeached the prior

testimony of the victim witness.” Id. at 110. The court reasoned that “Mooney shows that

there are exceptional circumstances in which impeachment provided sufficient cause to

remand to the trial court to grant a new trial at the appellate court's discretion.” Id.

To obtain a new trial on the basis of newly discovered evidence, the movant must

show: (1) the facts constituting the newly discovered evidence have come to the movant’s

knowledge after the end of the trial; (2) movant’s lack of prior knowledge is not owing to

any want of due diligence on his part; (3) the evidence is so material that it is likely to

produce a difference result at a new trial; and (4) the evidence is neither cumulative only

nor merely of an impeaching nature. Terry, 304 S.W.3d at 109.

All of the elements are satisfied here. Petitioner did not become aware of Esters’

statements until the interview appeared in an article in the newspaper in March. Petitioner

could not have known or reasonably expected that Esters would make statements against

his penal interest. The only evidence available at trial tying Esters to the crime came from

Kaylin Perry, Esters’ girlfriend.

Finally, admissions against penal interest should never be considered cumulative

because each must be evaluated as to whether or not it is in fact an admission against

penal interest and if so each and every one of them should be admissible into evidence.

Certainly if the State of Missouri had multiple admissions against penal interest made by

Petitioner, the prosecution would have sought to admit all of them and all of them would

have been admitted without any controversy. While Perry was allowed to testify that

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Esters told her that he obtained the cell phone and $50 in a robbery, she was subjected to

vigorous impeachment by the prosecution which undermined her credibility. She was the

worst kind of witness to convince the jury that Esters had in fact said that. However,

Esters’ statements to reporter Jennifer Mann implicating him in the robbery of Deusinger

directly are not susceptible to that type of impeachment. It is ironic in the extreme that

Respondent made a value judgment to allow the admissions to be offered by the

declarant’s girlfriend but would not allow similar admissions to be testified to by

Homicide Detective Jackson. By not allowing the corroborating testimony of Detective

Jackson, Perry’s testimony was deprived of substantial evidentiary force.

Esters’ post-trial statements strongly corroborate Petitioner’s alternative

perpetrator defense and cast serious doubt on the validity of the conviction. Fundamental

fairness dictates that Petitioner should be allowed to obtain this exculpatory evidence

immediately and to seek a new trial on that basis.

3. Petitioner’s Trial and Jury Verdict if Allowed to Stand Would Constitute a

Manifest Injustice

“The Constitution guarantees criminal defendants ‘a meaningful opportunity to

present a complete defense.’” Holmes v. South Carolina, 547 U.S. 319, 324 (quoting

Crane v. Kentucky, 476 U.S. 683, 690 (1986)). Denying a defendant the opportunity to

present relevant and competent evidence negating an essential element of the

prosecution’s case may constitute the denial of due process. State v. Brown, 103 S.W.3d

923, 929 (Mo.App. W.D.2003).

21

Respondent’s rulings prevented Petitioner from presenting a complete defense.

Petitioner was unable to fully develop his defense that an alternative perpetrator, Keith

Esters, committed the robbery. In addition to preventing Petitioner from obtaining newly

discovered evidence, Respondent’s refusal to allow Petitioner to present evidence of

Esters’ robbery and murder of Megan Boken eight days after the robbery in this case

deprived Petitioner of crucial evidence which the jury should have been allowed to

consider on the issue of the good or bad faith of the investigation.

In State ex rel. Woodworth v. Denney, 396 S.W. 3d 330, 347 (Mo. 2013), the court

issued a writ of habeas corpus and vacated a sentence for murder and reaffirmed that

“bias in the conduct of the investigation” can “undermine” a guilty verdict.

In a prior incarnation of Woodworth, the court reversed the conviction and

remanded the case for a new trial where the trial court precluded the defense from fully

presenting its evidence of an alternative perpetrator. State v. Woodworth, 941 S.W.2d 679

(Mo.App. 1999). The trial court refused to allow an alternative perpetrator defense where

a surviving shooting victim had previously identified an alternative shooter who had also

tested positive for gunshot residue within twelve hours of the shooting. That court found

that the trial court abused its discretion in excluding the evidence.

In the case at hand, the state’s case against Petitioner is flimsy. It consists solely of

two identifications made under suggestive circumstances. In fact, David Bruns, the

victim’s husband, was unable to identify Petitioner at all the first time he saw a picture of

him. There is no other evidence linking Petitioner to the robbery. On the other hand, the

evidence linking Keith Esters to the robbery is far stronger. Esters matched the physical

22

description of the assailant. Esters called his girlfriend with Deusinger’s cell phone

within 25 to 30 minutes of the robbery. Esters admitted stealing the cell phone and $50 in

a robbery. Esters told Homicide Detective Jerone Jackson that he was near the scene of

the robbery and knows that Petitioner did not commit the robbery. Eight days after and

four blocks away from the scene of the Deusinger robbery, Esters committed attempted

robbery and murder of Megan Boken and used Deusinger’s cell phone immediately after

the Boken crime.

In Woodworth the court held that evidence that another person committed the

crime “is admissible if there is also proof that the other person committed some act

directly connecting him with the crime, citing State v. Wise 879 S.W.2d 494 (Mo. 1994).

Again, the court held that it was an abuse of discretion to exclude the evidence.

Respondent abused her discretion in the instant case. She should be prohibited from

sentencing Petitioner under these circumstances. At the very least she should be

prohibited from proceeding further without Petitioner being afforded his right to appellate

review.

C. Standard for Writ of Prohibition

A writ of prohibition is available and appropriate in the following circumstances:

(1) to prevent usurpation of judicial power when the trial court lacks authority or

jurisdiction; (2) to remedy an excess of authority, jurisdiction, or abuse of discretion

where the lower court lacks the power to act as intended; or (3) where a party may suffer

irreparable harm if relief is not granted. State ex rel. Jackson County Prosecuting

Attorney v. Prokes, 363 S.W.3d 71, 75 (Mo.App. 2011).

23

In addition to a writ of habeas corpus, this Court should issue a writ of prohibition

staying the circuit court proceeding. Respondent has indicated that she intends to

sentence Petitioner on March 20, 2014. It would constitute a manifest abuse of discretion

to proceed with sentencing without first affording Petitioner an evidentiary hearing on his

claim of abandonment by trial counsel and an opportunity to question Keith Esters under

oath regarding his involvement in the Deusinger robbery. This evidence would be

relevant to a motion for new trial as well as to establish a claim of actual innocence and

accompanying constitutional violations at trial.

CONCLUSION

Petitioner Cornell McKay requests the following relief:

A. This Court’s assumption of jurisdiction of this proceeding.

B. A preliminary writ of prohibition staying the circuit court proceeding and

restraining the Respondent from taking any further action until such time as this Court

rules on the petition.

C. Upon final review, an Order: (1) permitting Petitioner to file a Motion for

New Trial out of time; (2) directing Respondent to conduct a hearing on the Motion for

New Trial; (3) prohibiting Respondent from sentencing Petitioner until such time as: (a)

Petitioner’s present counsel have at least thirty days to review the nearly 500-page trial

transcript which first became available to them on March 17, 2014; (b) Petitioner has

been accorded a reasonable opportunity to file a Motion for New Trial, which includes

allegations based on evidence discovered after trial that did not exist at the time of trial;

(c) Petitioner has been accorded a hearing on his Motion for New Trial; (d) Respondent

24

has ruled upon Petitioner’s Motion for New Trial; and/or (e) any other Orders appropriate

under the circumstance which are reasonably necessary to restore Petitioner’s

constitutional rights to a fair trial, meaningful appellate review of his conviction, and

effective assistance of counsel.

Respectfully submitted,

/s/ James R. Dowd

James R. Dowd #28818

James R. Dowd, Attorney &

Counselor at Law, LLC

34 N. Brentwood Blvd., Suite 209

St. Louis, MO 63105

Phone: (314) 727-6777

Fax: (314) 727-6773

jim@dowdj.com

Robert B. Ramsey #28312

Ezra & Associates

850 Vandalia St., Suite 310

Collinsville, IL 62234

Phone: (618) 346-1000

Fax: (618) 346-0650

bob@ezralaw.com

Thomas J. SanFilippo #63212

Thomas SanFilippo & Associates, LLC

1010 Market St., Thirteenth Floor

St. Louis, MO 63101

Phone: (314) 669-5752

Fax: (314) 621-8843

thomas@tsalawoffice.com

Joseph F. Yeckel #45992

Law Office of Joseph F. Yeckel, LLC

7710 Carondelet Ave., Suite 208

St. Louis, MO 63105

Phone: (314) 727-2430

Fax: (866) 873-5905

joe@yeckel-law.com

25

CERTIFCATE OF SERVICE

I certify that on March 18, 2014, one copy of this petition for writ of habeas

corpus and writ of prohibition, together with one copy of the writ summary and one copy

of each of the exhibits submitted herewith, was hand-delivered to each of the following:

The Honorable Robin Vannoy

Circuit Court of the City of St. Louis

10 N. Tucker Blvd.

St. Louis, MO 63101

Commissioner Dale Glass

St. Louis Justice Center

200 S. Tucker Blvd.

St. Louis, MO 63101

Christine Krug

Circuit Attorney’s Office

1114 Market St., Suite 401

St. Louis, MO 63101

/s/ James R. Dowd

1

IN THE MISSOURI COURT OF APPEALS

EASTERN DISTRICT

STATE OF MISSOURI )

EX REL. CORNELL MCKAY )

)

Petitioner/Relator, ) Missouri Court of Appeals,

) Eastern District, No.

v. )

)

HON. ROBIN VANNOY, )

Circuit Court Judge, ) Circuit Court of the City of St. Louis

Circuit Court of the City of St. Louis ) Case No. 1222-CR04627

Twenty-Second Judicial Circuit, )

)

Respondent, )

)

and )

)

DALE GLASS, )

Commissioner )

City of Saint Louis Justice Center )

200 South Tucker Blvd )

Saint Louis, Missouri 63102 )

)

Respondent. )

EXHIBIT INDEX

Exhibit 1: Arrest Warrant

Exhibit 2: Indictment

Exhibit 3: Motion for Stay of Proceedings

Exhibit 4: St. Louis Post-Dispatch Article, March 5, 2014

Exhibit 5: Deposition of Leigh Deusinger

Exhibit 6: Deusinger Phone Records

Exhibit 7: Deposition of Anthony Boettigheimer

2

Exhibit 8: Deposition Kaylin Perry

Exhibit 9: Motion to Admit Evidence of Alternative Perpetrator

Exhibit 10: Application for Writ of Habeas Corpus Ad Testificandum

Exhibit 11: Photos of Cornell McKay and Keith Esters

Exhibit 12: Affidavit of James Hacking

Exhibit 13: Probation Violation Report, August 24, 2012

Exhibit 14: Probation Violation Report, August 29, 2013

Joe

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