 

In the Missouri Com‘t of Appeals
Eastern District

DIVISION FOUR
STATE OF MISSOURI, ) No. ED103217
)
Respondent, ) Appeal from the Circuit Court of
) St. Charles County
vs. ) I311~CR05915-01
)
MICHAEL L. JOHNSON, ) Honorable .l on A. Cunninghani
)
Appellant. ) Filed: DecemberZO, 2016

QM

Michael L. Johnson was found guilty by a jury in the Circuit Court of St. Charles County
of one count of the class A felony of recklessly infecting another With human immunodeficiency
virus (“HIV”), one count of the class B felony of recklessly exposing another person to HIV, and
three countsof the class C felony of attempting to expose another person to I-IIV. Jolinson was
sentenced to concurrent terms for the offenses: 30 years in prison for the class A felony, 14 years
for the class B felony, and five and a half years each for the three class C feloniesl Johnson appeals
asserting two points of error: (l) that the trial court abused its discretion by admitting excerpted
recordings of phone calls Johnson made while in jail that Were not disclosed to the defense until
the morning of the first day of the trial, and (2) that Johnson’s sentence of 30 years in prison for
recklessly infecting another with HIV was grossly disproportionate to the crime and violated the

constitutional prohibition on cruel and unusual punishments Because We find that the trial court

 

abused its discretion with respect to Johnson’s first point on appeal, we reverse and remand for a
new trial.
Factual and Procedural Background

fn 2012, Johnson moved to St. Charles, Missouri, from Indianapolis, Indiana, to attend
Lindenwood University, which had recruited him for its wrestling team. On January 7, 2013,
Johnson visited the student health clinic at Lindenwood complaining of perianal watts and asked
to be tested for sexually transmitted diseases (STDs). The tests run by the clinic showed that
Johnson had gonorrhea and was HIV positive.

On January 26, 2013, Johnson and D.K.-L., a fellow Lindenwood student, engaged in
unprotected oral and anal sex. D.K.-L. testified at trial that Jolmson did not disclose to D.K.-L.
that he was HIV positive. About two weeks later, D.K.-L. went to a hospital emergency room
with severe stomach pain and a high fever. Tests revealed that he had contracted gonorrhea and
Was HIV positive. The HIV diagnosis was confirmed by subsequent testing on Fe‘oruary l3, 2013,
and doctors informed D.K.-L. that it was likely a recent infection D.K.~L. testified that prior to
his hospitalization, Johnson had been his most recent sexual partner, and that because he had not
engaged in sexual relations with anyone else for a year, Johnson was the only person who could
have infected him with HIV.

D.K.-L. contacted Johnson to inform him of his HIV diagnosis. They met in Johnson’s
dorm room, where D.K.-L. stated that he was HIV positive D.K.-L. testified that after being
informed of the diagnosis, Johnson again engaged in sexual intercourse with D.K.-L. without
disclosing to D.K.-L. that he too was HIV positive.

Months later,'D.K.-L. noticed that Johnson was continuing to use social networking and

dating internet applications like the one they had used to meet one another, but was not disclosing

on the applications that he was HIV positive. At that point, D.K.-L. decided to contact the St.
Charles Police Department.

As a result of the department’s investigation into Johnson’s sexual encounters with D.K.-
L., and into his sexual encounters in St. Charles with five other persons who also came forward,
Johnson was arrested and charged with two counts of the class A felony of recklessly infecting
another person with HIV, one count of the class B felony of recklessly exposing another person to
HIV, and three counts of the class C felony of attempting to expose another person to I-IIV.
Johnson was tried before a jury in May 2015.

At trial, Johnson admitted that on January 7, 2013, he was informed that he was HIV
positive As a result, the critical issue at trial was whether Johnson disclosed his HIV status to his
sexual partners who had come forward as victims Each of them testified that Johnson never
disclosed his status; Johnson, however, testified that he had informed each of them prior to
engaging in sexual relations, except for the one partner with whom he testified he had not had
sexual relations after November 2012, more than a month before he was informed on January 7,
2013 that he had tested positive for HIV. The State impeached Johnson’s testimony by playing
excerpts from recordings of phone calls he made while in jail that it argued cast doubt on whether
he made the disclosures he claimed to have made.

But the State had not disclosed the recordings to Johnson until, effectively, the first day of
trial, Monday, May l 1, 2015. Although the State had delivered the recordings to defense counsel’s
office on the Friday before trial began, the office was closed that Friday for a state holiday and the
State did not notify the defense of the delivery. . This was approximately a year and a half after
Johnson had on November 26, 2013, served on the State his Rule 25.03 discovery request for

“[a]ny written or recorded statements and the substance of any oral statements made by the

 

defendant[.]” The 24 hours of recordings that the State disclosed on the first day of trial were
made over a period of about two years, and the clips the State planned to play from them were
recorded on October 17, 2013, and November 23, 2013.

The jury acquitted Johnson of one of the charges of the class A felony of recklessly
infecting another with HIV, which related to his sexual conduct with the partner with whom he
claimed not to have had relations after being informed in January 2013 of his HlV~positive
diagnosis However, the jury convicted Johnson of all the other charged offenses Johnson was
sentenced to the following concurrent terms for the offenses: 30 years in prison for the class A
felony against D.K.-L., 14 years for the class B felony, and five and a half years each for the three
class C felonies This appeal follows

Discussion

In his first point on appeal, Johnson contends that the trial court erred by admitting the
excerpted recordings of the phone calls Johnson made while in jail that the State did not disclose
to the defense until the morning of the first day of the trial. Johnson argues that the State’s
disclosure of the recordings was untimely under Missouri Supreme Court Rule 25.031 and rendered

his trial fundamentally unfair.2 We agree.

 

' All rules references are to Missouri Supreme Court Rules (2016) unless otherwise indicated

2 Without specifically referencing Rule 25.03, Johnson objected at trial on grounds of untimely
disclosure and included the objection in his motion for a new trial. Under Missouri Supreme Court
precedent, we find that Johnson has sufficiently preserved this point for review. Rule 78.07(a).
We reject the State’s argument that by neglecting to specifically reference Rule 25.03, Johnson
failed to preserve this issue for appeal, because “trial judges are presumed to know the law and to
apply it in making their decisions.” State v. Amick, 462 S.W.3d 413, 415 (Mo.banc 2015). As the
Missouri Supreme Court noted in Amick, our rules for preservation of error for review are applied
not to enable the couit to avoid the task of review, nor to make preservation of error difficult for
the appellant, but to enable the court-the trial court first, then the appellate court_to define the
precise claim made by the defendant Id. (citing State v. Pointer, 887 S.W.Zd 652, 654
(Mo.App.W.D. 1994)). Thus, where a defendant’s objection “plainly and unequivocally”
informed the trial court of the defendant’s position that a particular decision or action of the court

4

 

Rule 25.03 provides that the State shall, upon written request by defendant’s counsel,
disclose to the defense certain classes of materials and information within the State’s possession
or control that are designated in such request, including any written or recorded Statements and the
substance of any oral statements made by the defendant State v. Henderson,410 S.W.3d 760, 764
(Mo.App.E.D. 2013) (citing Rule 25.03(A)(2)). Requests shall be answered within ten days after
service of the request Rule 25.02. The rule establishes an ongoing duty requiring the State to
supplement its response in the event it acquires or learns of additional responsive material. See
Rule 25.08. 'i`he duty to disclose includes not only information actually known by the State, but
also information it may obtain through reasonable inquiry. State v. Smirh, 491 S.W.3d 286, 298
(Mo.App.E.D. 2016) (citing State v. Mabry, 285 S.W.3d 780, 787 (Mo.App.E.D. 2009)).

The purpose of Rule 25.03 is to grant the defendant a decent opportunity to prepare his
case in advance of trial and avoid surprise. Id. at 297. The broad rights of discovery afforded
criminal defendants by Rule 25 have constitutional underpinning rooted in due process, Srare v.
Wl`lkz`nson, 606 S.W.2d 632, 636 (Mo.banc 1980), and simple justice requires that the defendant
be permitted to prepare to meet what loom as the critical elements of the case against him. State
v. Jo)'msron, 957 S.W.2d 734, 748 (Mo.banc 1997) (citing State v. Harrington, 534 S.W.Zd 44, 47
(Mo.banc 1976)). The rules of criminal discovery are not mere etiquette nor is compliance

discretionary State v. Wi`llis, 2 S.W.3d 801, 806 (Mo.App.W.D. 1999).

 

was error for a particular reason-as Johnson’s objections did_the defendant need not cite in his
objection or motion for a new trial the specific rule or statute at issue. See id. (“[A] lthough defense
counsel did not cite section 494.485 in his objection or motion for a new trial, the objection [that
the court could not simply substitute an alternate juror more than five hours into jury deliberation
because it was late and would “create an enormous amount of error”] plainly and unequivocally
informed the trial court of Mr. Amick’s position that the proposed juror substitution was error.”).

5

 

The determination whether the State violated a rule of discovery is within the sound
discretion of the trial court. State v. Bynum, 299 S.W.3d 52, 62 (Mo.App.E.D. 2009). Likewise,
determining whether a sanction should be imposed for a discovery violation is within the court’s
discretion. State v. Neil, 869 S.W.2d 734, 738 (Mo.banc 1994); State v. Schnllon, 341 S.W.3d
795, 798 (Mo.App.E.D. 2011). In reviewing criminal discovery claims, we will overturn the trial
court only if “fundamental unfairness” to the defendant resulted and the court thus abused its
discretion. State v. Taylor, 944 S.W.Zd 925, 932 (Mo.banc 1997); Mabij), 285 S.W.3d at 787.

In the context of a violation of Rule 25.03(A), the question whether fundamental unfairness
resulted turns on whether there was a reasonable likelihood that timely disclosure of untimely-
disclosed evidence would have affected the result of the trial. Id. ; cf State v. Miller, 650 S.W.2d
619, 621 (Mo.banc 1983) (citing Chapman v. Cal!`fornia, 386 U.S. 18, 24 (1967)) (“[E]rror can be
declared harmless only if we are able to declare a belief that it was harmless beyond a reasonable
doubt.”). For example, fundamental unfairness may be found where the State's failure to disclose
resulted in the defendant's genuine surprise at learning of unexpected evidence and there was at
least a reasonable likelihood that the surprise prevented meaningful efforts by the defendant to
consider and prepare a strategy for addressing the State's evidence Johnsron, 957 S.W.2d at 750.

With these principles in mind, we now turn to the circumstances of this case. On Novernber
26, 2013, Johnson filed a request for discovery pursuant to Rule 25.03 asking for “[a]ny written or
recorded statements and the substance of any oral statements made by the defendant[.]”
Nevertheless, the State waited until the morning of the first day of trial, Monday, May 11, 2015,
to disclose more than 24 hours of recordings of phone calls Johnson made while in jail, of which
the State planned to play three clips_two from as far back as October 17, 2013, and one from

November 23, 2013-»~to impeach Johnson. In the clips, Johnson was recorded stating that he was

 

worried that people would not want to be his friend if they learned of his HIV status; that he was
only “pretty sure” he had disclosed his HIV status to his sexual partners; and that he was unsure
how to tell people about his HIV status

The State asserts that there is no evidence that it possessed or controlled the recordings at
any time before it turned them over, and argues that it thus has not been shown to have violated
Rule 25.03. We disagree. Rule 25.03 imposes “an affirmative requirement of diligence and good
faith on the state to locate records not only in its own possession or control but also in the control
of other governmental personnel,” State v. Clnrk, 486 S.W.3d 479, 485 (Mo.App.W.D. 2016)
(citing Merriwearher v. Stafe, 294 S.W.3d 52, 55 (Mo.banc 2009)), and there is nothing in the
record indicating that the State diligently and in good faith sought to locate the recordings_in the
control of the St. Charles County jail more than a year before trial_in time to comply with
Johnson’ s discovery request.

The State’s position is further gutted by the State’s admission on the record that it
intentionally withheld the recordings from the defense to gain a strategic advantage The State
explained: “If we disclose [the recordings] to the defense they’ll tell their client. And I’m not
impugning anyone’s integrity, i’d do the same thing: Hey, they’re listening to your conversations
shut up. So we don’t disclose them until towards the end.”

In keeping with its stated intent to surprise the defense, the State purported to serve the
tapes at defense counsel’s office on the Friday before trial while the office was closed for a state
holiday. In light of the State’s actions and admissions we conclude that it failed to comply with
Johnson’s discovery request and violated Rule 25.03; indeed, the State’s violation of Rule 25.03
was knowing and intentional and was part of a trial-by-ambuslr strategy that this Court does not

condone and that Rule 25.03 was specifically designed to avoid.

 

We note that the trial court made no explicit determination whether the State violated Rule
25.03 and instead withheld judgment on the issue of the State’s untimely disclosures until the
fourth day of trial, when the court denied Johnson’s objections to the admission of the recordings
because by then the defense had “had a chance to review” the recordings The court thus based its
ruling allowing the admission of the excerpted recordings solely on the basis that no fundamental
unfairness resulted, and made no determination whether Rule 25.03 had been violoated.

Turning to that analysis, we find that this discovery violation likely resulted in Johnson’s
genuine surprise at learning on the first day of trial that the State had prepared to use the untimely-
disclosed recordings against him, since at no earlier point had Johnson learned that the State_and
not just the county jail3_had the recordings in its possession, nor had he learned that the State
planned to use them at trial. The State argues that Johnson cannot have been surprised by its
untimely disclosure of the recordings because when he made phone calls in jail he knew he was
being recorded, but that fact indicates only that Johnson was not surprised the recordings existed_
not that Johnson was unsurprised by the State ’s possession of the recordings or by the State ’s plan
to introduce or the actual introduction of excerpts of them at trial despite failing to timely disclose

the recordings pursuant to Johnson’s proper request for discovery.

 

3 We acknowledge that “the State,” if understood as an umbrella term for Missouri government
institutions might properly be said to embrace institutions such as a county jail; however, upon
reviewing Missouri case law addressing discovery violations by “the State,” we have found that
such references in this area of the law are to the prosecutor as a representative of the State of
Missouri, and not to any other state official or entity. See, e.g., State v. Henderson, 410 S.W.3d
760 (Mo.App.E.D. 2013) (finding that the State had violated Rule 25.03(A)(2) by untimely
disclosing the defendant’s arrest booking form_which the State claimed it disclosed immediater
after receiving it from the police after the first day of trial_not because “the State,” defined
broadly to include the police department, had been in possession of the form since it was first
produced, but because “the State” was obligated to locate and disclose information regarding the
form since reasonable inquiry would have revealed it to be in the police department’s possession).

8

 

Yet, the State maintains that in Missouri a defendant’s knowledge of the existence of
improperly withheld evidence precludes a finding of fundamental unfairness That is not true. The
purposes of Rule 25.03 are not limited to preventing defendants from being surprised by the mere
existence of particular untimely-disclosed evidence, but rather extend more broadly to protecting
the defense against surprise at learning of the State’s possession of such evidence, or of the State’s
plan to introduce_or the actual introduction of_such evidence at trial, and Missouri courts have
found that such surprise has resulted in fundamental unfairness See, e.g. , State v. Henderson, 410
S.W.3d 760, 765 (Mo.App.E.D. 2013) (holding that the State’s introduction at trial of the
defendant’s previously-undisclosed statements from his arrest booking form unfairly surprised
him, and that the statements were erroneously admitted, because “if the State can be forgiven its
duty to disclose a statement of the accused on the basis that the accused must have already known
about the statement because he made it, then we will have eviscerated Rule 25.03(A)(2)” (citing
State v. Willis, 2 S.W.3d at 808).

Indeed, this Court and the Missouri Supreme Court have found discovery violations and
unfair surprise necessitating reversal where, prior to the untimely disclosure of particular evidence,
the defendant knew of the existence of such evidence_whether of jail phone recordings other
records or statements or even physical evidence--but reasonably did not expect the evidence to
be introduced at trial, since he or she was unaware of the State’s possession thereof or plan to
introduce it. See Harrington, 534 S.W.2d at 46-48 (holding that the trial court’s failure to redress
the State’s introduction at trial of the defendant’s untimely-disclosed prejudicial statement was
reversible error); State v. Scoft, 479 S.W.Zd 438 (Mo.banc 1972) (sarne).

Here, too, we find that there was at least a reasonable likelihood that Johnson’s genuine

surprise at the State’s introduction at trial of excerpts of the intentionally withheld and untimely-

disclosed recordings of his jail phone calls prevented him from preparing a meaningful defense in
this case.

Johnson was forced to make critical strategic decisions_-such as whether to seek to avoid
trial by pursuing a plea bargain, whether to waive his right to silence and testify, and what
particular defense to raise_without being timely furnished highly prejudicial, properly-requested
discovery. See Henderson, 410 S.W.3d at 766 (“[F]ailure to produce a statement made by the
defendant is uniquely prejudicial compared to failure to disclose a witness or photograph, for
example, because of the great weight that the defendant’s inculpatory statements carry.”). The
State had more than a year and a half to prepare its case with the benefit of its chosen excerpts of
Johnson’s jail phone recordings but failed, in violation of Rule 25.03, to disclose to Johnson before
the morning of the first day of trial any part of the more than 24 hours of recordings Even as an
inadvertent mistake, such untimely disclosure would be suspect under Missouri law, but here the
State admitted that it purposely withheld the recordings from Johnson so as not to tip off defense
counsel that her client was being recorded making incriminating statements

The importance of these recordings to the State’s case was made clear during the trial. The
State introduced the statements on cross-examination of Johnson to impeach his testimony that
contrary to the victims’ claims he had not failed to disclose to them before engaging in sexual
relations with them that he was HIV positive. Thus, the excerpts the State used went to the critical
issue in the case: whether Johnson had disclosed to the victims his HIV status One such statement,
in particular_that Johnson was only “pretty sure” that he had disclosed his HIV-positive status to
his sexual partner's_was the only evidence in the record of Johnson stating to anyone that he was
not certain about whether he disclosed his I-IIV status to all his sexual partners As such, the

statement was profoundly prejudicial.

10

 

The impeachment Johnson suffered as a result of the introduction of this statement
demonstrates undeniably that there is at least a reasonable likelihood that the State’s discovery
violation prevented Johnson from preparing a meaningful defense_i.e., one that was not
sabotaged by the State’s deliberate untimely disclosure of highly prejudicial evidence_and that
timely disclosure of the statement would have affected the result of Johnson’s trial. As it happened,
Johnson was deprived by the State’s discovery violation of a decent opportunity to put his recorded
statements into context and thus meet the critical element that loomed against him: whether he
disclosed his HIV status to his sexual partners With enough time to meaningfully review the more
than 24 hours of untimely-disclosed jail phone recordings and make strategic decisions in light of
them, Johnson_if he still wanted to forgo the State’s plea offer, stand trial before a jury, testify,
and raise the same defense-might have, once the State opened the door to evidence relevant to
putting his recorded statements into context, elected to call as a witness the person to whom he
made his most prejudicial statement in the recordings or might at least have chosen to introduce
other relevant and admissible statements that the State did not play at trial. But the State
intentionally denied him»-~and as a result, he never received_a fair opportunity to make such
preparations

The State argues that Johnson waived any objection to its introduction of the three excerpts
from the jail phone recordings because he only requested the exclusion of the evidence and did not
also ask for a continuance to review the untimely-disclosed recordings The State cites State v.
Bymnn, 299 S.W.Bd 52, 62 (Mo.App.E.D. 2009), for the assertion that “[a] defendant’s failure to
ask for a continuance can be properly considered by the appellate court in determining whether the
trial court abused its discretion.” But in the cases most similar to this one, Missouri appellate

courts have declined to hold it against the defendant that he failed to ask for a continuance See,

ll

 

e.g., Willis, 2 S.W.3d at 807 (finding that the defendant’s failure to request a continuance “ha[d]
no bearing on whether the State’s discovery violation resulted in fundamental unfairness” where,
as here, “[a] continuance of a few hours could not remedy the problem created by the State's failure
to abide by the discovery rules” and the State’s discovery violation was to be “examined with
` grave suspicion” because the State failed to timely disclose the defendant’s inculpatory
statement(s), which categorically carry great weight with the jury and demand disclosure);
Henderson, 410 S.W.3d at 766 (rejecting the State’s argument--that the defendant’s failure to ask
for a continuance “discredits his claim of prejudice”-~because the State failed to timely disclose
an inculpatory statement, which by its nature is “uniquely prejudicial”).

Because here the State went a step beyond Willis and Henderson and intentionally failed
to timely disclose inculpatory statements by Johnson that exposed him to unique prejudice we
find that Johnson’s failure to ask for a continuance has no bearing on whether the State’s violation
and introduction of the recording excerpts resulted in fundamental unfairness

We are also unpersuaded by the State’s argument, based on State v. Ccn'h‘sle, 995 S.W.2d
518, 520 (Mo.App.E.D. 1999), and State v. Merrick, 677 S.W.2d 339 (Mo.App.E.D. 1984), that
Johnson had enough time during the first three days of trial to prepare a meaningful defense in
light of the 24 hours of untimely-disclosed recordings The State’s assertion in this regard actually
further demonstrates the prejudice and unfairness of what occurred in this case The solution to
the State’s blatant discovery violation should not be to put the defense at an additional
disadvantage by forcing the defense to spend its time during trial analyzing improperly-withheld
discovery instead of preparing for the next witness next day of trial, or the other work-intensive

matters a trial lawyer must deal with.

12

 

We hold, therefore, that the State’s blatant discovery violation here is inexcusable should
not be r'epeated, cf State ex rel. Joyce v. Mullen, ED104226 (Mo.App.E.D. Nov. 15, 2016)
(ordering that a “Circuit Attorney’s practice of routinely withholding [1'equested] information . . .
in direct contravention of the mandates of [Rule 25.03] . . . . should stop immediately”), and
supports a finding of fundamental unfairness in this case. We note that in addressing a similar sort
of violation of Rule 25 .03»-the late endorsement of a witness_the Missouri Supreme Court has
held on numerous occasions see, e.g., State v. Sto)'ey, 40 S.W.3d 898, 906 (Mo.banc 2001), State
v. Johns, 34 S.W.3d 93, 114 (Mo.banc 2000), State v. Chcmey, 967 S.W.2d 47, 57 (Mo.banc 1998),
that in determining whether the trial court abused its discretion by permitting testimony in violation
of Rule 25.03 that resulted in fundamental unfairness to the defendant, Missouri appellate courts
consider multiple factors including whether the State intended surprise or acted deceptiver or in
bad faith, with the intention to disadvantage the defendant Here, the State admitted that by failing
to timely disclose Johnson’s jail phone recordings it intended to keep defense counsel from
learning of them and preparing for their introduction at trial. The State’s bad-faith strategy was
successfiil, and its withholding of the recordings clearly was intended to disadvantage Johnson.

Accordingly, we find that the trial court abused its discretion by admitting the excerpted
recordings of the phone calls Johnson made while in jail. Johnson’s first point is granted, and we
reverse and remand for a new trial. In light of this holding, we do not consider Johnson’s second
point on appeal, which relates solely to the constitutionality of Johnson’s punishment for an

offense for which he must now be retried

13

 

Conclusion
For the reasons stated above, we reverse the judgment of the trial court and remand for a

new trial.

   
 

James M.

Gary M. Gaertner, Jr., J., and
Lisa P. Page, J., concur.

14

 

