IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT STATE OF MISSOURI EX REL. CORNELL MCKAY Petitioner/Relator, v. HON.

ROBIN VANNOY, Circuit Court Judge, Circuit Court of the City of St. Louis Twenty-Second Judicial Circuit, Respondent, and DALE GLASS, Commissioner City of Saint Louis Justice Center 200 South Tucker Blvd Saint Louis, Missouri 63102 Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Missouri Court of Appeals, Eastern District, No.

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

WRIT SUMMARY I. Cornell McKay, Petitioner/Relator Parties and Attorneys James R. Dowd 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
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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, Respondent Circuit Court of the City of St. Louis Division 3 10 N. Tucker Blvd. St. Louis, Missouri 63101 City of St. Louis Justice Center 200 S. Tucker Blvd. St. Louis, Missouri 63102 Christine Krug Steven Capizzi Circuit Attorneys Office 1114 Market St., Suite 401 St. Louis, MO 63101 Phone: (314) 589-6335 krugc@stlouiscao.org capizzis@stlouiscao.org

Dale Glass, Respondent

St. Louis City Prosecuting Attorney

II.

Nature of Underlying Action

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, Petitioners 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. Petitioners sentencing is set for March 20, 2014. III. Action of Respondent Being Challenged

Petitioner challenges Respondent Vannoys ruling denying his request to stay the sentencing and his request to issue a writ of habeas corpus to correct his attorneys 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 Petitioners motions. IV. Relief Sought by Relator

Petitioner seeks a writ of prohibition directing Respondent Vannoy to postpone Petitioners 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.

IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT STATE OF MISSOURI EX REL. CORNELL MCKAY Petitioner/Relator, v. HON. ROBIN VANNOY, Circuit Court Judge, Circuit Court of the City of St. Louis Twenty-Second Judicial Circuit, Respondent, and DALE GLASS, Commissioner City of Saint Louis Justice Center 200 South Tucker Blvd Saint Louis, Missouri 63102 Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Missouri Court of Appeals, Eastern District, No.

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

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

of Leigh Deusinger on August 10, 2012. During the robbery, Deusingers 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 Petitioners case, and was Petitioners 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. Petitioners 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. Petitioners 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 defendants otherwise statutory right to an appeal.

All references to Respondent hereafter are to the Honorable Robin Vannoy. 2

10. Subsequent to missing the deadline for filing the motion for new trial, Petitioners 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 Petitioners 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, Petitioners 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 Petitioners 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. Petitioners 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 counsels failure to perfect the appeal.

b. That the remedy for failure to perfect the appeal amounted to such extraordinary inattention to the defendants 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, Petitioners probation officer, a photograph found on Deusingers 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, 4

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 Deusingers deposition testimony, the robbery had to have occurred at the earliest by 8:40 p.m. after sunset and without the benefit of streetlights. Deusingers cell phone records indicate that a call was made to Esters girlfriend, Perry at 9:10 p.m. This is established by Deusingers 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 5

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 Deusingers 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 Deusingers 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 victims 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 6

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 Deusingers cell-phone. Over the course of 10 days, Perrys 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 Perrys 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:

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 victims 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. Esters 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.

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 cant say nothing that gonna benefit him because in the end its gonna make me look bad. b. Time-wiseIm not going to go back down there and give them a confession because they would give me more time. c. Im not willing to help them just to help somebody else if it aint 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. Bokens murder occurred within four blocks of the Deusinger robbery.

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 Bokens murder, Deusinger had given 9th District detectives copies of phone logs which she had obtained from Sprint. 35. However, immediately after Bokens murder, homicide detectives quickly contacted unrecognized telephone numbers from Deusingers 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 victims cell phone. 38.The evidence was material and Petitioner was prejudiced in that the only evidence of Petitioners 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 Deusingers cell phone to Keith Esters. To Petitioners 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 Boettigheimers telling the victim before her deposition that Petitioner conveyed the victims 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 Courts 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. Petitioners 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 Petitioners Motion for New Trial; and/or f. Any other Orders appropriate under the circumstance which are reasonably necessary to restore Petitioners 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 Petitioners constitutional right to a direct appeal and to the effective assistance of counsel. 44.Respondent denied Petitioners 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 Petitioners 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 12

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 Deusingers 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 counsels 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 defendants 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 14

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 defendants 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, Petitioners 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 victims 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 prosecutions objections. Due to former counsels negligence, no motion for new trial was filed on Petitioners behalf within the deadline provided by Rule 29.11, effectively precluding appellate review of Respondents 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 defendants 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 counsels 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 16

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 wouldnt appear that they could have spared Bokens life if they had arrested Esters for the crime earlier, Esters stated: Tell you the truth, I cant say nothing that gonna benefit him [Petitioner] because in the end its gonna make me look bad. Time-wise . . . Im not going to go back down there and give them a confession because they would give me more time. Im not willing to help them [the police] just to help somebody else if it aint going to benefit me. In the end, he [Petitioner] gonna need my help in his case.

Esters statements are highly inculpatory and strongly corroborate Petitioners 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. Respondents actions constitute a manifest abuse 17

of discretion since jurisdiction remains in the circuit court and the existence of newly discovered evidence provides a valid basis for overturning Petitioners 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 18

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 movants knowledge after the end of the trial; (2) movants 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 19

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 declarants girlfriend but would not allow similar admissions to be testified to by Homicide Detective Jackson. By not allowing the corroborating testimony of Detective Jackson, Perrys testimony was deprived of substantial evidentiary force. Esters post-trial statements strongly corroborate Petitioners 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. Petitioners 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 prosecutions case may constitute the denial of due process. State v. Brown, 103 S.W.3d 923, 929 (Mo.App. W.D.2003).

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Respondents 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, Respondents 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 states case against Petitioner is flimsy. It consists solely of two identifications made under suggestive circumstances. In fact, David Bruns, the victims 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 21

description of the assailant. Esters called his girlfriend with Deusingers 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 Deusingers 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). 22

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. B. This Courts assumption of jurisdiction of this proceeding. 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) Petitioners 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 23

has ruled upon Petitioners Motion for New Trial; and/or (e) any other Orders appropriate under the circumstance which are reasonably necessary to restore Petitioners 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 24

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 Attorneys Office 1114 Market St., Suite 401 St. Louis, MO 63101

/s/

James R. Dowd

25

IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT STATE OF MISSOURI EX REL. CORNELL MCKAY Petitioner/Relator, v. HON. ROBIN VANNOY, Circuit Court Judge, Circuit Court of the City of St. Louis Twenty-Second Judicial Circuit, Respondent, and DALE GLASS, Commissioner City of Saint Louis Justice Center 200 South Tucker Blvd Saint Louis, Missouri 63102 Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Missouri Court of Appeals, Eastern District, No.

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

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 1

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

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