Integrity of Justice

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MO Constitution: Right to depose witness denied

August 27, 2018, the Boone County Court denied the accused his Missouri Constitutional right to take a discovery deposition in a felony – impeding the search for truth. Proposed deponent Sheriff Carey claimed no knowledge about the crucial defense evidence “lost” by his department. Sheriff Carey further asserted he was too busy and important to answer questions about the conduct of his deputies and jail personnel relevant to the search for truth.

Sheriff Carey avoids being deposed in discovery deposition about "lost" evidence

Sheriff Carey avoids being deposed in discovery deposition about “lost” evidence

Boone County Sheriff Department & Jail

IN THE CIRCUIT COURT OF BOONE COUNTY, STATE OF MISSOURI  

State of Missouri,

                                       Plaintiff,

           vs.

 BRIAN KELLEY,

                                       Defendant.

   

 

 

Case No. 18BA-CR00018-01

 

Division: I

AMENEDED MOTION FOR LEAVE TO TAKE A DISCOVERY DEPOSITION OF SHERIFF CAREY

COMES NOW, Defendant Brian Kelley, by and through counsel Stephen Wyse prays that this Honorable Court reconsider its order quashing the discovery deposition and grant him leave to take a discovery deposition of Boone County Sheriff Dwayne Carey for the following reason(s):

  1. Sheriff Carey as the duly elected Sheriff of Boone County Missouri is the supervisor of the entirety of the Boone County Sheriff’s Department, and
  2. The Boone County Sheriff’s Department lost, concealed and/or destroyed evidence crucial to the Brian Kelley’s defense in the above entitled matter, and
  3. Boone County Sheriff Dwayne Carey was on May 18, 2018, by faxed letter advised by Defendant’s attorney of the crucial nature of the Defendant’s clothing and the need to have it analyzed by a laboratory to determine the type of toxic substances contained in the Wasp Killer and the saturation points of these poisons in his clothing, and
  4. The Boone County Sheriff’s Department had tasked Corrections Captain Jenny Atwell with reviewing the issue of the lost evidence from the Kelley case. Captain Atwell was unable to determine the location of the evidence or how said evidence was lost and she issued a report on May 23, 2018, and
  5. The entire Boone County Sheriff’s Department is subordinate to Sheriff Carey to include the entirety of the Jail and Road (Law Enforcement) sides of the Sheriff Department, and
  6. Corrections Captain Jenny Atwell admitted in deposition on July 19, 2018, that she has no supervisory authority over the road-side of the Sheriff’s Department, and
  7. In Atwell’s investigation the only road-side staff of the Sheriff Department personnel contacted by Captain Atwell were Sheriff Carey and Detective Chinn who initially notified her of the missing evidence, and
  8. Numerous other road-side deputies involved in the Kelley case were not contacted during Captain Atwell’s effort to determine the location of the missing evidence in the Kelley case, and
  9. Both road-side deputies and corrections staff are supervised by Boone County Sheriff Carey, and
  10. The Kelley evidence was lost, misplaced, concealed and/or destroyed and is/was essential to Brian Kelley’s Constitutionally protected trial rights.
  11. As the supervising authority for the Boone County Sheriff’s Department only Sheriff Carey has the command authority over all personnel to determine from his subordinate personnel the disposition of the Kelley evidence in question, and
  12. Boone County Sheriff Carey is an essential witness in explaining to a Boone County jury the events that transpired by which essential evidence in the search for truth was denied to the defendant Brian Kelley in violation of his Constitutional rights, and
  13. Captain Jenny Atwell on July 19, 2018, at her deposition agreed to produce: 1. How many times in last ten years property had been lost at the jail ( Depo page 12: Lines 15-25); 2. The email containing the date that she transmitted the May 23, 2018, report on Brian Kelley’s “missing” property to Sheriff Carey (Depo. P 20: Lines10 through Page 21 line 17); Email to Prosecutor’s Office investigator Johnathan Kersha about missing clothing (Depo p. 24: Lines 8-13) TO DATE NONE OF THESE ITEMS HAVE BEEN PRODUCED BY THE SHERIFF’S DEPARTMENT.
  14. Deputy Eran Eaton testified that the Dash Cam may have recorded the body microphone interactions from this incident,
  15. Deputy testimony that Sheriff Department has test body cameras and is evaluating their usage.
  16. Former Deputy Cara Curtis testified that based upon her training and experience in responding to the incident on December 31, 2017, that she didn’t consider the possibility that Brian Kelley could be the crime victim. (Depo p. 69: Lines 5-17; and p 67: Lines 2-22) and that determination impacted her investigation and determinations of who were the victim and criminal.
  17. Assistant Boone County Prosecutor advised instant counsel by email on July 27, 2018, that one of the complaining witnesses was purporting to be in possession of 2d can of “Hotshot Wasp and Hornet Spray.  I have advised Detective Luntsford and asked him to seize it and place it into evidence first thing Monday morning.” To date Defendant’s inquires about these late discovered toxins has been met with silence. The evidence gathering training and supervision of Boone County Deputies is also a relevant inquiry defendant wishes to pursue

 

SUGGESTIONS IN SUPPORT

Missouri Constitution Article 1, Section 18(b

) >Depositions in felony cases. Section 18(b).

Upon a hearing and finding by the circuit court in any case wherein the accused is charged with a felony, that it is necessary to take the deposition of any witness within the state,other than defendant and spouse, in order to preserve the testimony, and on condition that the court make such orders as will fully protect the rights of personal confrontation and cross-examination of the witness by defendant, the state may take the deposition of such witness and either party may use the same at the trial, as in civil cases, provided there has been substantial compliance with such orders. The reasonable personal and traveling expenses of defendant and his counsel shall be paid by the state or county as provided by law.

25.12. Misdemeanors or Felonies – Deposition by Defendant – How

Taken (a) In General. A defendant in any criminal case pending in any court may obtain the deposition of any person on oral examination or written questions. The manner of taking such depositions shall be governed by the rules relating to the taking of depositions in civil actions. . .
Discovery in criminal cases is based upon the proposition that the ends of justice will best be served by a system of liberal discovery which fully informs both sides with the maximum possible amount of information with which to prepare their cases and prevent surprises at trial.

RSMo 221.020. (2018)  Sheriffs to be jailers, exception, Clay County. Except as otherwise provided in this section and sections 221.400 to 221.420, the sheriff of each county in this state shall have the custody, rule, keeping and charge of the jail within his county, and of all the prisoners in such jail, and may appoint a jailer under him, for whose conduct he shall be responsible. . . . (emphasis added)

The Western District of the Missouri Court of Appeals in State v. Kelley, 693 S.W.2d 114, stated,   “Discovery in criminal cases is based upon the proposition “that the ends of justice will best be served by a system of liberal discovery which gives both sides the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial.” Wardius v. Oregon, 412 U.S. 470, 473, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82 (1973); and see, State v. Petree, 568 S.W.2d 546, 548 (Mo.App., K.C.D.1978). “The adversary system of trial is hardly an end in itself; it is not [Page 116] yet a poker game in which players enjoy an absolute right always to conceal their cards until played.” Williams v. Florida, 399 U.S. 78, 82, 90 S.Ct. 1893, 1896, 26 L.Ed.2d 446 (1970). The rules of discovery are intended to promote informed pleas, to expedite trials, to minimize surprise, and to increase the opportunity for effective cross-examination. State ex rel. Westfall v. Crandall, 610 S.W.2d 45, 47 (Mo.App.E.D.1980); State v. Dixon, 655 S.W.2d 547, 560 (Mo.App., E.D.1983).

The State relies on State ex rel. Westfall v. Crandall, supra, wherein the court sustained a request for mental examination by interpreting broadly the provisions of Rule 25.06(B) to minimize the advantage either side might have in the discovery process. Rule 25.14 provides, in part, that “[u]pon a hearing of an application of counsel for the state duly served upon defendant or his counsel, and a finding by the court having jurisdiction to try the case wherein the defendant is charged with a felony, that it is necessary to take the deposition of any witness within the state, other than defendant and spouse, in order to preserve the testimony, and on condition that the court make such orders as will fully protect the rights of personal confrontation and cross-examination of the witness by defendant, the state may take the deposition of such witness and either party may use the same at the trial, subject to Rules 25.13 and 25.15 provided there has been substantial compliance with such orders.” (Emphasis added.) Rule 25.14 is basically a re-script of Mo. Const. Art. I, Sec. 18(b), and, in enacting the rule, the Supreme Court can be presumed to have been aware of the constitutional provision it tracked. See, Mo. Const. Art. V, Sec. 5; State ex rel. R-1 School District of Putnam Co. v. Ewing, 404 S.W.2d 433, 436-37 (Mo.App.1966). Art. I, Sec. 18(b), adopted in the 1945 constitution, gave the State the right, under certain limitations, State v. Jackson, 495 S.W.2d 80, 85 (Mo.App.1973), to take depositions of witnesses (not the defendant and spouse) in felony cases. Research has disclosed no cases wherein the limitation on the taking, as opposed to the use, of such depositions has been discussed.” Id., at 117 (emphasis added)

In the instant matter, the loss of Brian Kelley’s clothing by the officials with the Boone County Sheriff Department is a  major surprise. This denial of the ability to analyze the quality and nature of the toxins contained in the insecticide used against him by the purported victims in this matter denies Defendant a fair trial. Defendant has maintained that events of the evening of December 31, 2017, were initiated by his receipt of an elbow blow to his mouth followed thereafter by exchanges of physical blows with the two senior residents of the home. During which time these senior residents employed the insecticide(s) toxins against him and before he attempted escape only to be forced to surrender by use of a firearm. The ability to have a laboratory analysis of these toxins and an expert witness’s testimony about their impact on humans and concentration with which they were used on Defendant were essential to Defendant’s right to a fair trial.

The incompetence with which the Sheriff Carey’s department conducted this investigation evidences a complete lack of accountability and responsibility at the Sheriff’s department. The Boone County Sheriff’s Department has two distinct divisions, with separate chains of command, that only meet at the top of the department’s hierarchy in Sheriff Carey. Detention Captain Atwell has no supervisory authority over personnel in the law enforcement division of the sheriff’s department.

The determination whether to designate an item as evidence vs. property is principally a designation reserved to law enforcement personnel. The sheriff’s department has a detainee’s property storage operation and a separate evidence room. Sheriff Carey received notification by fax transmission from Defendant’s counsel about the “lost” evidence on May 18, 2018. Reports are that he was aware of the lost evidence as early as May 14, 2018. Sheriff Carey received the report from Detention Captain Atwell on May 23, 2018, detailing that the lost evidence was not located and remained a mystery. For some undetermined reason he chose not to investigate further or to respond to Defendant’s counsel’s inquiry regarding the lost evidence until after he was subpoenaed to testify. Captain Atwell’s report was apparently sent to the County Counselor’s Office on June 29, 2018, and then provided to Defendant’s counsel on July 10, 2018. During which time period Defendant was conducting depositions and other discovery which would have been aided by this information in the possession of Sheriff Carey. But without explanation, this report was concealed by Boone County for more than six weeks from Defendant’s counsel.

RSMo 545.390. (2018)

  Depositions to be taken and read

as in civil cases. — Interrogatories to be annexed to such commission shall be settled and such commission shall be issued, executed and returned in the manner prescribed by law in respect to commissions in civil cases, and the depositions taken thereon and returned shall be read in like cases and with the like effect as in civil suits.

RSMo 545.400. (2018)  Conditional examination of witnesses.

— The defendant in any criminal cause may also have witnesses examined on his behalf, conditionally, upon a commission issued by the clerk of the court in which the cause is pending, in the same cases and upon the like notice to the prosecuting attorney, with the like effect and in all respects as is provided by law in civil suits; provided, that the notice in such case to the prosecuting attorney shall state the name or names of the witness or witnesses whose depositions are desired or will be taken.

 

The Southern Division of Missouri Court of Appeals in State ex rel. Chaney v. Franklin, 941 S.W. 2d 790 (Mo App. 1997) said, “Generally, the taking of depositions has been described as a “right.Norkunas v. Norkunas, 480 S.W.2d 92, 94 (Mo.App. E.D.1972); State ex rel. Houser v. Goodman, 406 S.W.2d 121, 125 (Mo.App. S.D.1966). That right, however, is subject to the power [Page 793] of the trial court to issue protective orders to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including an order that discovery not be had. State ex rel. Houser v. Goodman, 406 S.W.2d at 125. Here, Defendant sought to preclude the taking of these depositions by attempting to quash the subpoenas, partially on the theory that they would be unreasonable and oppressive.

Our courts have previously referred to federal authority in saying that they are most reluctant to interfere with a party’s right to take a deposition. Id. at 126. In 8 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE: CIVIL 2D § 2037 (2d ed.1994), it is said that most attempts to deny discovery by way of depositions are denied, “[s]ince the notice for taking a deposition is not required to specify the subject matter of the examination, the need for protection usually cannot be determined before the examination begins, and the moving party can be adequately protected by making a motion under Rule 30(d) 4 if any need for protection appears during the course of the examination.” Id., at 793 (emphasis added)

The Franklin case involved depositions of attorneys who had spoken with a witness invoking his Fifth Amendment protection and the court said,  “Although federal courts have noted a reluctance to prohibit the taking of depositions, they have also noted that an attempt to depose a party’s attorney constitutes a circumstance which may justify a departure from the general rule. N.F.A. Corp. v. Riverview Narrow Fabrics, 117 F.R.D. 83, 84 (M.D.N.C.1987). While they have noted that there is no absolute prohibition against taking the deposition of a party’s attorney, federal courts have held that an attempt to do so calls for a special scrutiny, noting that such depositions inherently constitute an invitation to harass the attorney and parties, and to disrupt and delay the case. West Peninsular Title Co. v. Palm Beach County, 132 F.R.D. 301, 302 (S.D.Fla.1990). But see, Scovill Mfg. Co. v. Sunbeam Corp., 61 F.R.D. 598, 603 (D.Del.1973). When the issue is whether a party should be permitted to depose an attorney about his involvement in the case, it is appropriate to require that party to establish a legitimate basis for requesting it, and demonstrate that it will not be overly disruptive or burdensome. N.F.A. Corp. v. Riverview Narrow Fabrics, 117 F.R.D. at 85.

In the instant case, the State’s expressed purpose for deposing the attorneys is to lay a foundation for the admission of McQueen’s preliminary hearing testimony. The depositions in question will not alter the fact that McQueen has asserted his rights under the Fifth Amendment. The trial court [Page 794] has ruled that by reason of McQueen’s refusal to testify based on the Fifth Amendment, he is unavailable as a witness. Under the authorities noted above, that is a foundation for the admission of prior sworn testimony where, as apparently was the case here, the Defendant was represented and had an opportunity to cross-examine the witness.

The State has not established why the depositions in question are needed in light of the ruling already made by the trial court. Under the circumstances presented in connection with this request for an extraordinary writ, and because of the special scrutiny which should be applied to an attempt to depose attorneys concerning their involvement in cases, we are persuaded that the depositions should not be permitted. Our preliminary order in prohibition is made absolute.” Id., at 794 (emphasis added)

Franklin involved a redundant deposition of an attorney to establish a point made moot by prior ruling of the court. In the instant matter Sheriff Carey’s department lost, misplaced, destroyed or concealed evidence crucial to Defendant’s defense and essential for his fair trial. Sheriff Carey responds that his willful blindness limits his utility as a witness, but that is not the case. Sheriff Carey possesses far more information than he presently purports in regard to his conduct,  the conduct and training of his deputies listed on disclosed law enforcement reports. Whether the Sheriff Department maintains records of any dashcams of the responding deputies or if the department’s internal reporting system reflects the involvement, dispatch or assistance of other deputies, officers from another department, emergency medical personnel or others that may lead to corroborating evidence to mitigate the “lost” evidence if it is not recovered before trial. Further what actions, if any, Sheriff Carey took upon learning that Detention Captain Atwell had failed to determine the location and/or disposition of the crucial evidence in this matter. Sheriff Carey’s actions after being notified by Defendant’s counsel on May 18, 2018, about the “lost” evidence and the operations of the Sheriff’s Department after Captain Atwell submitted her report and Sheriff Carey was subsequently subpoenaed to testify in this instant matter.

The Eastern District of the Missouri Court of Appeals said in State of Missouri, ex rel., Carl D. Kinsky v The Honorable Kenneth Pratte, 994 S.W.74 (Mo. App 1999) said, “This Section of the constitution allows the state, with certain restrictions, to take depositions of witnesses in the state in criminal cases to preserve testimony and gives any party the right to use the deposition at trial: §18(b). Depositions in felony cases. Missouri law grants the government and the accused equal dignity under the law in the usage of discovery depositions.

Upon a hearing and finding by the circuit court in any case wherein the accused is charged with a felony, that it is necessary to take the deposition of any witness within the state, other than defendant and spouse, in order to preserve the testimony, and on condition that the court make such orders as will fully protect the rights of personal confrontation and cross-examination of the witness by defendant, the state may [Page 77] take the deposition of such witness and either party may use the same at the trial, as in civil cases, provided there has been substantial compliance with such orders. The reasonable personal and traveling expenses of defendant and his counsel shall be paid by the state or county as provided by law.

This constitutional provision has been interpreted as giving the state a “right”, under certain limitations, to take depositions. State v. Owens, 391 S.W.2d 248, 252 (Mo.1965).” Id., at 77 (emphasis added)

The Court in Kinsky held,  “This statute is broadly worded. However, this statute cannot change the substantive law set out in Article I, Section 18 or the procedures set out in Rule 24.15 applicable to depositions to preserve testimony. [Page 78] Such depositions are subject to those provisions. But, to the extent that Section 545.415 confers on the state a new substantive right to take discovery depositions of any person in criminal cases and procedures to implement that right, it does not conflict with or contradict Rule 25.14, or violate Article I, Section 18(b) of the constitution, because neither the constitution nor the rule prohibit discovery depositions. Rather, as held in Kelley, these provisions do not provide for such discovery. The legislature could validly give the state the right to take discovery depositions in criminal cases and mandate procedures therefore without violating Article I, Section 18(b) or annulling or amending those parts of Rule 25.14 not mandated by the constitution.        Under Section 545.415 the state could take a discovery deposition upon notice as set out in Rule 57. The state’s notice of deposition should not have been quashed.”

CONCLUSION

Defendant’s believes his Missouri Constitutional right to conduct a discovery deposition has been violated. Further that this discovery deposition is vital to his preparation of his defense and that information vital to his defense is in the possession of Sheriff Carey and/or information that will likely lead to discoverable information necessary to preserve his rights to the due process of law, discovery and/or a fair trial. That only by this Court granting leave to take Sheriff Carey’s discovery deposition, as permitted by the Missouri Constitution. Defendant has no reasonable alternative source of information as Sheriff Carey has critical access to information within his office and supervisory authority that makes him an essential witness in this matter.  Sheriff Carey’s claims of willful ignorance in this matter are insufficient and by facts cited above, he has been sufficiently advised to provide necessary information crucial to preservation of Defendant’s rights as specified above. Defendant should therefore be granted leave from this Honorable Court’s denying a discovery deposition and leave granted to take a discovery deposition of Sheriff Carey and for such other and further relief as this Honorable Court deems reasonable and just.

Respectfully submitted,

__/s/ Stephen Wyse________________

Stephen Wyse, MO Bar # 49717 – Wyse Law Firm, P.C. – Attorney for Brian Kelley -= 609 East Broadway – Columbia, MO 65201 – (573) 449-7755 – (573) 449-7557 Fax

 

Certificate of Service

I hereby certify that a true copy of the above and foregoing was served by filing with the Clerk of the Court and thereafter by automatic transmission to the Office of Boone County Prosecutor on this 15th day of August 2018.

___/s/ Stephen Wyse_       Stephen Wyse

 

 

 

 

 

 

 

 

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