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Electronically Filed - SUPREME COURT OF MISSOURI June 16, 2021 11:02 PM IN THE SUPREME COURT OF MISSOURI STATE OF MISSOURI, ) ) Respondent, ) ) vs. ) No. SC98856 ) SAMUEL WHITAKER, ) ) Appellant. ) APPEAL TO THE SUPREME COURT OF MISSOURI FROM THE CIRCUIT COURT OF IRON COUNTY, MISSOURI FORTY-SECOND JUDICIAL CIRCUIT THE HONORABLE KELLY W. PARKER, JUDGE APPELLANT’S SUBSTITUTE REPLY BRIEF James Egan Mo. Bar No. 52913 Attorney for Appellant Woodrail Centre 1000 West Nifong Building 7 Suite 100 Columbia, Missouri 65203 Phone: (573) 777-9977 Fax: (573) 777-9974 Email: [email protected] Electronically Filed - SUPREME COURT OF MISSOURI June 16, 2021 11:02 PM INDEX Page TABLE OF AUTHORITIES .................................................................................... 3 JURISDICTIONAL STATEMENT ......................................................................... 4 STATEMENT OF FACTS ....................................................................................... 5 ARGUMENT ............................................................................................................ 6 CONCLUSION ....................................................................................................... 21 CERTIFICATE OF COMPLIANCE ...................................................................... 22 APPENDIX 2 Electronically Filed - SUPREME COURT OF MISSOURI June 16, 2021 11:02 PM TABLE OF AUTHORITIES Page CASES: State v. Avery, 120 S.W.3d 196 (Mo. banc 2003) ................................................... 13 State v. Barnett, 577 S.W.3d 124 (Mo. banc 2019) .......................................... 14-15 State v. Bruner, 541 S.W.3d 529 (Mo. banc 2018) ........................ 11, 12-13, 15, 20, State v. Hayes, 785 S.W.2d 661 (Mo. App. W.D. 1990) .......................................... 9 State v. Kendrick, 550 S.W.2d 117 (Mo. App. W.D. 2018) ................................... 20 State v. Ryan, 229 S.W.3d 281 (Mo. App. S.D. 2007) ..................................... 6-7, 8 State v. Waller, 816 S.W.2d 212 (Mo. banc 1991) ...............................................6, 8 State v. Westfall, 75 S.W.3d 278 (Mo. banc 2002) ........................................... 12-13 State v. Whipple, 501 S.W.3d 507 (Mo. App. E.D. 2016) ...................................... 20 CONSTITUTIONAL PROVISIONS: U.S. Const., Amend. VI ......................................................................................6, 11 U.S. Const., Amend. XIV ...................................................................................6, 11 Mo. Const., Art. I, § 10 .......................................................................................6, 11 Mo. Const., Art. I, § 18(a) ...................................................................................6, 11 STATUTES Section 563.031 RSMo. (Cum. Supp. 2010) ....................................................17, 18 Section 569.160 RSMo. (2000) .............................................................................. 18 Section 569.170 RSMo. (2000) .............................................................................. 18 3 Electronically Filed - SUPREME COURT OF MISSOURI June 16, 2021 11:02 PM JURISDICTIONAL STATEMENT Sam incorporates the Jurisdictional Statement from his initial brief here. 4 Electronically Filed - SUPREME COURT OF MISSOURI June 16, 2021 11:02 PM STATEMENT OF FACTS Sam incorporates the Statement of Facts from his initial brief here. 5 Electronically Filed - SUPREME COURT OF MISSOURI June 16, 2021 11:02 PM ARGUMENT I. The trial court erred in excluding Defendant’s Exhibit EE, which was a properly certified conviction of the victim for aggravated battery from 1991, because this action violated Sam’s right to a fair trial and the right to due process guaranteed by the Sixth and Fourteenth Amendment to the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution, in that the evidence was appropriate corroboration of Sam’s testimony about the conviction. Sam was prejudiced because his credibility about his version of events was critical to his defense of self-defense and any argument concerning the remoteness in time of the conviction was not relevant as Sam had already testified about the conviction. A. The State’s reliance on State v. Ryan, and State v. Waller is misplaced. In its brief, the State argued the case of State v. Ryan, 229 S.W.3d 281 (Mo. App. S.D. 2007) supported the exclusion of Defendant’s Exhibit EE (State’s Brief, pp. 21-22). However, Ryan does not support the State’s argument. In Ryan, the defense wanted to present certain acts of violence by the victim. Id. at 285. The trial court allowed the defendant to testify about the victim’s prior acts of violence towards himself and a woman named Rebecca, but it would not allow any other evidence of this, including cross-examination of Rebecca. Id. at 285-86. In the offer of proof, Rebecca testified there had been between two and ten incidents of physical abuse. Id. The trial court also excluded another witness’ testimony regarding the victim’s abuse 6 Electronically Filed - SUPREME COURT OF MISSOURI June 16, 2021 11:02 PM towards Rebecca. Id. In an offer of proof, this witness testified that Rebecca had told her that the victim had abused her in the past. Id. The Court of Appeals held that the trial court did not abuse its discretion because the evidence of victim’s abuse towards Rebecca was not relevant to show why the defendant was afraid of the victim. Id. Specifically, the trial court noted that the defendant’s own testimony about the victim’s abuse towards Rebecca was not specific, and the type of abuse towards Rebecca was not “of a similar quality as those allegedly committed by [v]ictim preceding the attack.” Ryan is not applicable to Sam’s case. Sam was not seeking to have any witnesses testify as to prior acts of Streeval against another person. Nor was Sam trying to introduce any evidence as to the specifics of the past event. Rather, Sam was wanting to present the conviction to corroborate that Streeval had, in fact, gone to prison for assaulting someone. The defense made it clear that the purpose of the evidence was for corroboration, not to show that Sam was afraid of Streeval. Moreover, as Sam discussed in his initial brief, Sam testified that he knew Streeval had gone to prison for a long period of time, and that Streeval said that he “bashed a homosexual” (TR 545). This is certainly the type of act that is “of a quality of contributing Sam’s fear of the victim.” This incident showed that Streeval was a violent man who would use any pre-text to act aggressively against a person. Moreover, the fact that Streeval continued to brag about this incident in the present raises the inference that when he bragged about this past behavior, he was threatening to repeat it in the present. This implied threat of repeating the behavior in the present 7 Electronically Filed - SUPREME COURT OF MISSOURI June 16, 2021 11:02 PM makes the past behavior relevant as to what Sam reasonably believed Streeval was going to do in the present. The State, in its brief, also cited to this Court’s holding in State v. Waller, 816 S.W.2d 212, 216-18 (Mo. banc 1991), as support for the trial court’s ruling. The State noted that Waller cautioned against allowing into evidence prior acts of the victim that are too remote in time and also that trial courts should not “permit matters of questionable relevance” (State’s Brief, p. 23). Waller, however, is just as unhelpful to the State as Ryan for two reasons. First, the issue of the conviction being too remote in time is not applicable here as Streeval bragged about it in the present and implied he would repeat this behavior in the present. Second, the State conveniently ignored Waller’s holding that a defendant “should be permitted to substantiate his claim of justification[.]” Id. at 216. The independent proof of Streeval’s conviction was necessary to help Sam substantiate his claim of justification by helping to show that Sam was testifying honestly when he testified that Streeval had an assault conviction and that he went to prison for it when he was younger. Sam testified about Streeval’s conviction from 1991 (TR 545). Sam was also allowed to testify that Streeval went to prison for ten to fifteen years when he was young (TR 545). Defendant’s Exhibit EE showed that Streeval was born in 1971. Therefore, Streeval would have been in his twenties when he went to prison. Defendant’s Exhibit EE would have corroborated Sam’s testimony that Streeval had a conviction that he went to prison for when he was young. This corroboration would 8 Electronically Filed - SUPREME COURT OF MISSOURI June 16, 2021 11:02 PM have substantiated Sam’s claim of justification by showing the jury his testimony could be trusted. It cannot be overstated that Sam’s credibility was crucial to his defense, and the only evidence of Streeval’s conviction was Sam’s own testimony. As Sam noted in his initial brief, Missouri courts have acknowledged that a defendant’s testimony is viewed with skepticism, and that corroboration is critical. See State v. Hayes, 785 S.W.2d 661, 663 (Mo. App. W.D. 1990). The State argued that Hayes does not stand for the proposition that a trial court must allow “any evidence the defendant claims is corroborative” (State’s Brief, p. 25). Sam is not suggesting that it does. But it would defy logic to ignore the likely scenario that at least some jurors were wondering why the defense did not provide proof of this conviction.

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