               In the Missouri Court of Appeals
                       Eastern District
                                            DIVISION ONE

MONTAGUE SIMMONS, et. al.,                       )    No. ED103304
                                                 )
       Appellants,                               )    Appeal from the Circuit Court
                                                 )    of St. Louis County
vs.                                              )
                                                 )    Honorable Joseph L. Walsh III
ROBERT MCCULLOCH,                                )
                                                 )
       Respondent.                               )    FILED: May 31, 2016

       Montague Simmons, Redditt Hudson, Juliette Jacobs, and Tara Thompson (collectively,

"Appellants") appeal from the trial court's judgment granting St. Louis County Prosecuting Attorney

Robert McCulloch's ("Respondent's") Motion to Dismiss for Failure to State a Claim Upon Which

Relief Can Be Granted. We affirm.

                                             I. Background

       On January 15, 2015, Appellants all filed similar affidavits alleging Respondent conducted the

grand jury investigation in State of Missouri v. Darren Wilson "in an arbitrary manner and in bad

faith." Appellants were dissatisfied with the grand jury returning a "no true bill," leading to no

indictment of Officer Wilson. As Appellants were not present at the grand jury proceedings, the

substance of their claims comes from review of the publicly released transcripts and related evidentiary

exhibits of the grand jury proceedings.

       Appellants wanted the trial court to appoint a special prosecutor to investigate Respondent's

conduct during the grand jury proceedings. If appointed, the special prosecutor would have the
authority to file a writ of quo warranto action seeking Respondent's removal from his elected office of

St. Louis County Prosecuting Attorney.

          Respondent filed his Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be

Granted on February 23, 2015. In the interim before a hearing could take place, the United States

Department of Justice ("DOJ") issued a report on March 4, 2015, which determined that Officer

Wilson had not violated 18 U.S.C. Section 242, a federal civil rights statute, when he shot and killed

Michael Brown.

          On April 24, 2015, the trial court conducted the first hearing in this case. The trial court then

continued the hearing until May 29, 2015, giving the parties time to file supplemental briefs on the

issue of whether Respondent was subject to impeachment or recall. On July 2, 2015, the trial court

granted Respondent's motion to dismiss, finding Appellants had not alleged facts which constituted a

willful or fraudulent violation or neglect of Respondent's official duty, and had not alleged facts which

showed Respondent knowingly or willfully failed or refused to perform any official act or duty to

execute or enforce the criminal laws of the state. Appellants timely filed their appeal on August 19,

2015.

                                                II. Discussion

          Appellants raise one multifarious point on appeal that alleges the trial court abused its

discretion by denying their request for appointment of a special prosecutor, with six sub-points

alleging specific examples of the trial court's abuse of discretion. "A single point relied on that groups

multiple, disparate claims is multifarious, does not comply with Rule 84.04, and generally preserves

nothing for review." Stone v. Stone, 450 S.W.3d 817, 820 (Mo. App. W.D. 2014) (quoting Rouse v.

Cuvelier, 363 S.W.3d 406, 419 (Mo. App. W.D. 2012)). While it would be "well within our discretion

to dismiss [Appellants'] appeal on this basis[,]" we will exercise our discretion to review Appellants'

claims.


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A. Standard of Review

         "When a petition is dismissed under Rule 55.27(a)(6) for failure to state a claim upon which

relief may be granted, the standard of review is de novo." Anderson v. Union Elec. Co., 463 S.W.3d

783, 786 (Mo. banc 2015) (citing Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008)). This Court

reviews Appellants' initial petition to determine whether the facts alleged meet the elements of a

recognized cause of action. Anderson, 463 S.W.3d at 786, citing Foster v. State, 352 S.W.3d 357, 359

(Mo. banc 2011).

         A motion to dismiss for failure to state a cause of action is solely a test of the adequacy
         of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and
         liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to
         weigh any facts alleged as to whether they are credible or persuasive. Instead, the
         petition is reviewed in an almost academic manner, to determine if the facts alleged
         meet the elements of a recognized cause of action, or of a cause that might be adopted
         in that case.

State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009). "[W]e may affirm the trial

court's dismissal on any ground before the trial court in the motion to dismiss[.]" Willits v. Peabody

Coal Co., LLC, 400 S.W.3d 442, 448 (Mo. App. E.D. 2013).

B. Analysis

         Appellants' sole multifarious point on appeal contains six sub-points, all of which allege

different ways in which the trial court abused its discretion when it denied Appellants' request for

appointment of a special prosecutor by granting Respondent's motion to dismiss for failure to state a

claim.

         Appellants' first sub-point alleges the trial court abused its discretion and evinced its confusion

in the case by analyzing arguments Appellants never made. Appellants claim the trial court's

discussion of a separate part of the relevant statute than the one upon which Appellants' argument was

based shows the trial court so misunderstood the argument before it that it could not have properly

exercised its discretion.


                                                      3
         Appellants' second sub-point alleges the trial court abused its discretion by failing to apply

applicable Missouri Supreme Court precedent. Appellants' argue that the trial court's failure to apply

precedent and address whether Respondent abused his discretion was an abuse of discretion by the trial

court.

         Appellants' third sub-point alleges the trial court abused its discretion by relying on an

irrelevant report issued by the United States Department of Justice ("DOJ"). Appellants claim the DOJ

Report applied different standards than those used by the grand jury, and ultimately had no bearing on

Appellants' request for a special prosecutor, and thus should not have been considered by the trial

court.

         Appellants' fourth sub-point alleges the trial court abused its discretion when it determined

Professor Bennett L. Gershman's ("Professor Gershman") affidavit was not persuasive. Appellants

claim this affidavit alone suffices to meet Appellants' burden to show that an investigation should

commence.

         Appellants' fifth sub-point alleges the trial court abused its discretion by refusing to evaluate

whether the facts Appellants alleged supported their request for appointment of a special prosecutor.

Appellants claim the trial court's judgment simply stated legal conclusions without applying the facts

to the relevant law.

         Finally, Appellants' sixth sub-point argues that the facts Appellants alleged in their petition

suggest Respondent failed to fulfill his duties of office by his conduct during the grand jury

proceedings in State v. Darren Wilson. Appellants claim they alleged facts that Respondent acted

arbitrarily and acted in bad faith, and that they met the burden required to start an investigation into

Respondent's conduct.

         As stated above, our standard for reviewing the dismissal of a petition under Rule 55.27(a)(6)

for failure to state a claim upon which relief can be granted asks this Court to "review[]" the petition to


                                                      4
determine if the facts alleged meet the elements of a recognized cause of action." Anderson, 463

S.W.3d at 786. However, five of Appellants' six sub-points do not address the content of their petition

and whether the facts they allege in the petition meet the elements of a recognized cause of action. The

first five sub-points all argue the trial court analyzed or discussed the wrong things in its judgment

dismissing the petition, instead of focusing on the pertinent issue raised in sub-point six of whether

Appellants allege sufficient facts whose elements constitute a recognized cause of action. Further,

other than using sub-point two to point out two Missouri Supreme Court cases Appellants believe the

trial court ignored in its decision, Appellants cite no relevant case law supporting their arguments. 1

For the sake of clarity, we will address Appellants' sixth sub-point first, as it is the most relevant to our

analysis and the most proper basis for this appeal.

1. Whether Appellants' Petition Alleges Facts Constituting a Recognized Cause of Action

         Appellants' petition sought the appointment of a special prosecutor, as provided by Section

106.240, RSMo (2000) 2, to investigate Respondent's conduct during the grand jury proceedings in the

cause of State v. Darren Wilson. Section 106.220 provides that any elected official is subject to

removal if he: (1) "fail[s] personally to devote his time to the performance of the duties of such

office;" (2) commits "any willful or fraudulent violation or neglect of any official duty;" or, (3)

"knowingly or willfully fail[s] or refuse[s] to do or perform any official act or duty which by law it is

his duty to do or perform with respect to the execution or enforcement of the criminal laws of the

state." Appellants filed affidavits as provided by Section 106.230, alleging that Respondent had

violated duties of his office and should be subject to removal as provided by Section 106.220. Section

106.240 then provides that after the filing of an affidavit under Section 106.230, "the [trial court] of

said county may appoint a special prosecutor" to investigate and potentially file a complaint.


1
  Appellants' repeated citation to newspapers and websites in the place of legal authority is troublesome. "It is an
appellant's obligation to cite appropriate and available precedent if [the appellant] expects to prevail." Rademan v. Al
Scheppers Motor Co., 423 S.W.3d 834, 837 (Mo. App. W.D. 2014).
2
  All further statutory references are to RSMo (2000), unless noted otherwise.
                                                              5
         Appellants submitted four affidavits under Section 106.230 in their attempt to demonstrate their

knowledge that Respondent had violated duties of his office and that a special prosecutor should be

appointed to investigate Respondent's conduct. These affidavits take issue with various ways

Respondent presented the case to the grand jury, 3 such as his decision to allow Officer Wilson to

testify and to put on evidence supporting his justification defense, as well as providing the grand jury

with all the evidence rather than just evidence supporting a finding of probable cause. While

Appellants may disagree with the methods Respondent used to present the case to the grand jury, none

of their claims rise to the level required by the statute. To justify appointment of a special prosecutor,

Appellants must show either a "willful or fraudulent violation or neglect of any official duty" or that

Respondent "knowingly or willfully fail[ed] or refuse[d] to do or perform any official act or duty

which by law it is his duty to do or perform." Section 106.220.

         In order to have "willfully neglected" an official duty, Respondent would have had to

intentionally fail to act, contrary to a known duty. State ex inf. Fuchs v. Foote, 903 S.W.2d 535, 539

(Mo. banc 1995) (abrogated on other grounds by State v. Olvera, 969 S.W.2d 715 (Mo. banc 1998)).

Respondent clearly did not fail to act, intentionally or otherwise, during the grand jury proceedings

here. The previously empaneled grand jury was used and two experienced assistant prosecutors

presented evidence over the course of four months to the grand jury so they could make an informed

decision as to whether probable cause existed to indict Officer Wilson. Appellants allege that the way

Respondent conducted the grand jury demonstrates he was acting arbitrarily and in bad faith, and thus

he willfully or knowingly failed to perform his official duty.

         Appellants' arguments essentially claim that Respondent's exercise of his prosecutorial

discretion was arbitrary and in bad faith. Prosecutors, when performing their duties, are authorized "to




3
 Respondent did not personally present the case to the grand jury, that task was handled by assistant prosecutors. At oral
argument, Appellants contended that Respondent is liable under a respondeat superior theory
                                                             6
exercise a sound discretion." State, on Inf. McKittrick v. Wymore, 132 S.W.2d 979, 986 (Mo. banc

1939).

         The duty of a prosecuting officer necessarily requires that he investigate, i.e., inquire
         into the matter with care and accuracy, that in each case he examine the available
         evidence, the law and the facts, and the applicability of each to the other; that his duties
         further require that he intelligently weigh the chances of successful termination of the
         prosecution, having always in mind the relative importance to the county he serves of
         the different prosecutions which he might initiate. Such duties of necessity involve a
         good faith exercise of the sound discretion of the prosecuting attorney. "Discretion" in
         that sense means power or right conferred by law upon the prosecuting officer of acting
         officially in such circumstances, and upon each separate case, according to the dictates
         of his own judgment and conscience uncontrolled by the judgment and conscience of
         any other person. Such discretion must be exercised in accordance with established
         principles of law, fairly, wisely, and with skill and reason. It includes the right to
         choose a course of action or non-action, chosen not willfully or in bad faith, but
         chosen with regard to what is right under the circumstances. Discretion denotes
         the absence of a hard and fast rule or a mandatory procedure regardless of
         varying circumstances.

State on inf. McKittrick v. Wallach, 182 S.W.2d 313, 318-19 (Mo. banc 1944) (emphasis added).

         As applied here, Respondent was faced with a situation where community interest in the

outcome of the grand jury was very high, and his stated purpose in presenting all the evidence to the

grand jury was to be as transparent as possible in the proceedings. Appellant may disagree with

whether this was the best possible approach for securing an indictment against Officer Wilson, but

Respondent properly exercised his discretion and decided that the need for transparency in the

proceedings was in the best interest of serving justice. None of Appellants' allegations against

Respondent rise to the level of "knowingly or willfully" failing to perform an official duty.

Respondent on the contrary performed his duty the best way he saw fit, and the grand jury ultimately

decided not to return an indictment. It is not a failure of Respondent's duty as a prosecutor to not

secure an indictment in every case. "[U]nder our law, the prosecutor has a 'duty to serve justice, not

just win the case.'" State ex rel. Kinder v. McShane, 87 S.W.3d 256, 262 (Mo. banc 2002) (quoting

State v. Storey, 901 S.W.2d 886, 901 (Mo. banc 1995)).



                                                      7
       The facts alleged by Appellants do not rise to the level to meet the elements required for

a finding that Respondent either willfully or fraudulently violated or neglected an official duty,

nor that he knowingly or willfully failed or refused to perform an official duty. Further, even if

we had found more compelling evidence that Respondent had violated some official duty, the

statute provides that the trial court "may" appoint a special prosecutor. Section 106.240. While

we hold that Respondent properly exercised his prosecutorial discretion, we further hold that

the trial court was well within its discretion in deciding not to appoint a special prosecutor.

Appellants' sixth sub-point on appeal is denied.

2. Appellants' Other Arguments Regarding the Trial Court's Decision

       As previously stated, the proper issue for our review is whether "the facts alleged [in the

petition] meet the elements of a recognized cause of action." Anderson, 463 S.W.3d at 786.

Having already determined Appellants failed to allege facts which amounted to the elements of

a recognized cause of action, we will now quickly address Appellants' other extraneous

arguments relating to the process by which the trial court reached its decision.

       Appellants allege the trial court "evinced its confusion" by analyzing an argument

Appellants never made. Essentially, Appellants argue that because the trial court focused some

of its analysis on the second possible violation provided by Section 106.220 ("willful or

fraudulent violation or neglect of any official duty"), instead of the third possible violation

("knowingly or willfully fail or refuse to do or perform any official act or duty"), upon which

the Appellants focused their arguments. Section 106.220.

       This argument is without merit. First, Appellants cite no legal authority for the

proposition that the trial court is somehow deemed to be "confused" because it discusses a

portion of the relevant statute upon which Appellants chose not to focus. The trial court went

through both sections of the relevant statute in an attempt to be thorough in its analysis. The


                                                     8
trial court discussed Section 106.220 in great detail, going section by section and applying the

law to the facts of the case. The fact that Appellants had chosen to focus on only one section of

the statute does not preclude the trial court from analyzing and applying the entire relevant

statute to the case at hand. Appellants' first sub-point is denied.

        Appellants' second sub-point alleges the trial court failed to apply applicable Missouri

Supreme Court precedent in reaching its decision, specifically the cases State on inf.

McKittrick v. Wallach, 182 S.W.2d 313 (Mo. banc 1944), and State, on Inf. McKittrick v.

Wymore, 132 S.W.2d 979 (Mo. banc 1939).

        Appellants' argument confounds this Court, as the trial court explicitly cites to both of

those cases in its judgment. The trial court clearly applied the relevant law from those cases in

its decision. Appellants' second sub-point on appeal is denied.

        Appellants' third sub-point alleges the trial court abused its discretion by relying on an

irrelevant DOJ report. First, while the trial court did cite to the DOJ report in its judgment, this

citation was a part of a much larger discussion which went through the relevant statutory law,

the relevant case law, and how the law applied to the facts of the case. It is an unfair and

inaccurate representation to say the trial court "relied upon" the DOJ report in making its

decision. Second, as Respondent points out, Appellants brought up the DOJ report in their

Supplemental Memorandum of Law in Support of Their Request for Appointment of a Special

Prosecutor. The report can hardly be characterized as "irrelevant" when Appellants brought it

to the attention of the court, albeit to argue that it should not be a dispositive issue in the case.

As Appellants discussed the DOJ report in their submissions to the trial court, and as the trial

court did not solely rely upon the DOJ report in reaching its decision, Appellants' third sub-

point is denied.




                                                       9
       In Appellants' fourth sub-point, they allege the trial court abused its discretion in

determining that Professor Gershman's affidavit was not persuasive. Appellants claim that

Professor Gershman is the acknowledged authoritative expert on prosecutorial misconduct, and

thus his affidavit alone suffices to meet Appellants' burden.

       On its face this argument is without merit. First, no one expert's affidavit alone is prima

facie evidence sufficient to meet Appellants' burden of showing Respondent violated some

prosecutorial duty. Further, "[u]ncontradicted expert testimony is not binding upon the trier of

fact. The weight to be given such testimony is for the trier of fact." Halliday v. Boland, 813

S.W.2d 34, 37 (Mo. App. E.D. 1991) (internal citation omitted). The trial court analyzed

Professor Gershman's affidavit, noted that his conclusions were not supported by citations to

any standard, rule, statute or case law recognized in Missouri. Further, the trial court found that

even if Professor Gershman's declarations were somehow authoritative on the issue, they still

did not rise to the level of a knowing or willful failure or refusal to perform an official act or

duty or a willful or fraudulent violation or neglect of an official duty. The trial court properly

exercised its discretion and gave Professor Gershman's affidavit the weight it felt was deserved.

Appellants' fourth sub-point on appeal is denied.

       Finally, Appellants' fifth sub-point on appeal alleges the trial court abused its discretion

by refusing to evaluate whether the facts Appellants alleged supported their request for a

special prosecutor's appointment. Again, Appellants' argument confounds us, as this is exactly

what the trial court did in its judgment. The trial court discusses Appellants' allegations that

Respondent presented more information than Appellants deemed necessary to the grand jury,

and applied the applicable law to the facts alleged by Appellants. Once again, Appellants'

argument is without merit. Appellants' fifth sub-point on appeal is denied.




                                                     10
                                           III. Conclusion

       The judgment of the trial court is affirmed.




                                             ___________________________________
                                             ROY L. RICHTER, Judge

Robert G. Dowd, Jr., P.J., concurs.
Mary K. Hoff, J., concurs.




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