Jennings v. Nash

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

BRAD JENNINGS,

Plaintiff,

v. Case No. 6:18-cv-03261-NKL

DANIEL F NASH, et al.,

Defendants.

ORDER

Plaintiff Brad Jennings moves to strike defendant Daniel Nash’s fifth defense. Doc. 107.

For the following reasons, Jennings’ motion is denied.

I. Background

Jennings’ wife, Lisa Jennings, died of a single gunshot wound in the early hours of

Christmas Day 2006. Despite early investigations concluding that her death was a suicide,

Missouri State Highway Patrol Sergeant Nash, in conjunction with the Dallas County Police

Department, re-opened the investigation at the urging of a family member. After a jury trial, where

Nash was the State’s key witness, Jennings was found guilty of killing his wife and sentenced to

prison. He appealed, State v. Jennings, 322 S.W.3d 598 (Mo. Ct. App. 2010), and moved for post-

conviction relief, Jennings v. State, 406 S.W.3d 52 (Mo. Ct. App. 2013), but neither challenge was

successful.

In 2015, Jennings’s new counsel discovered negative gunshot residue (“GSR”) test results

of the robe Jennings had been wearing on the night of Lisa Jennings’ death. Jennings petitioned

for habeas corpus, arguing in part that nondisclosure of the GSR results violated Brady v.

Maryland, 373 U.S. 83 (1963). The habeas court “credited Jennings’s evidence; concluded that

Brady had been violated; and ordered that Jennings’s convictions be vacated and he be released

from custody unless the Missouri Attorney General schedule[d] [Jennings] for retrial within 120

days.” State ex rel. Hawley v. Beger, 549 S.W.3d 507, 510 (Mo. Ct. App. 2018) (quotations

omitted).

After the Circuit Court granted Jennings habeas corpus, the State filed a writ of certiorari

in the Missouri Court of Appeals alleging that Jennings knew or should have known about the

undisclosed GSR results in time to raise it on his direct appeal or during Rule 29.15 post-conviction

relief proceedings. However, the Missouri Court of Appeals refused to quash the record of the

habeas court and found “no basis to charge Jennings with scienter of state-ordered, state-

conducted, and state-handled testing that was unknown to the prosecution team or its key trial

witness [Nash].” Beger, 549 S.W.3d at 512, n.8 (“The State’s admitted failure to ever, let alone

timely, disclose this critical evidence renders particularly repugnant the State’s argument that

[Jennings] should have earlier discovered the undisclosed [evidence] in time to raise it on direct

appeal or in his Rule 29.15 motion.” (quotations omitted)). The Missouri Court of Appeals

concluded that “Jennings’s Brady claim was not procedurally barred.” Id. at 512. In July 2018,

the Missouri Attorney General filed a nolle prosequi.

On August 16, 2018, Jennings filed this suit, seeking to hold Defendants liable for an

alleged conspiracy to fabricate evidence and suppress exculpatory evidence, including GSR

results. In his Answer to Jennings’ Amended Complaint, defendant Nash, in his fifth defense,

asserts: “Plaintiff failed to mitigate his damages in that he was aware of the issues that were

eventually ruled in his favor which resulted in the grant of habeas relief for years before he raised

these issues.” Doc. 98 (Nash Answer), p. 13. In response, Jennings filed the motion to strike

currently pending before the Court.

II. Discussion

Jennings asks the Court to strike Nash’s fifth defense on the grounds that he is “collaterally

estopped” from asserting a defense previously litigated and rejected by the Missouri Court of

Appeals. Doc. 107 (Plaintiff’s Motion to Strike), p. 2. Federal courts generally must give a state-

court judgment the same preclusive effect it would be given under the law of the state in which the

judgment was rendered. Migra v. Warren City. Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984).

Under Missouri law, collateral estoppel precludes the re-litigation of an issue when (1) the issue

previously decided is “identical to the issue presented in the present action”; (2) the “prior

adjudication resulted in a judgment on the merits”; (3) the “party against whom collateral estoppel

is asserted was a party or was in privity with a party to the prior adjudication”; and (4) the party

against whom collateral estoppel is asserted had “a full and fair opportunity to litigate the issue in

the prior suit.” Royal Ins. Co. of Am. v. Kirksville Coll. of Osteopathic Med., Inc., 304 F.3d 804,

807 (8th Cir. 2002) (quoting James v. Paul, 49 S.W.3d 678, 682 (Mo. 2001)).

Jennings argues that Nash is collaterally estopped from asserting his fifth defense because

the Missouri Court of Appeals rejected the identical argument in a judgment on the merits. See

Beger, 549 S.W.3d at 512 (finding “no basis to charge Jennings with scienter of state-ordered,

state-conducted, and state-handled testing that was unknown to the prosecution team or its key

trial witness who had sought such testing”). Jennings asserts that Nash is in privity with the State

because both the State and Nash “exhibited interests in the prior litigation because they both

endeavored to defeat Plaintiff’s habeas corpus claims and uphold his convictions for murder.”

Doc. 108 (Suggestions in Support of Motion to Strike), p. 4. Jennings also asserts that because the

State “is obligated to insure Defendant Nash for his liability” pursuant to the state legal expense

fund, Mo. Rev. Stat § 105.71, the State “stands in the shoes of” Nash such that privity exists. Doc.

123 (Plaintiffs’ Supplemental Suggestions), p. 8.

However, for Nash to be in privity with the State for collateral estoppel purposes the State

must have “represented the same legal right” in the underlying proceedings. Gamble v. Browning,

379 S.W.3d 194, 199 (Mo. Ct. App. 2012) (“Parties are in privity for collateral estoppel purposes

if the interests of the non-party are so closely related to the interests of the party, that the non-party

can be fairly considered to have had his day in court.” (quotations omitted)). “[P]rivity does not

exist merely because a person ‘happen[s] to be interested in the same question, or in proving or

disproving the same state of facts.’” Duncan v. Clements, 744 F.2d 48, 52 (8th Cir. 1984) (quoting

Am. Polled Hereford Assoc. v. Kansas City, 626 S.W.2d 237, 241 (Mo. 1982)).

The Eighth Circuit Court of Appeals has concluded that “[t]he interests of the State of

Missouri in a criminal proceeding are not identical to those of an individual officer such as [Nash].”

Duncan, 744 F.2d at 51–52; see also Moore v. City of Desloge, Mo., 647 F.3d 841, 847 (8th Cir.

2011) (concluding offensive collateral estoppel was not appropriate against an officer).1 In

Duncan, the plaintiff, who successfully suppressed evidence in a prior criminal proceeding

because of an illegal search and seizure by the defendant police officer, sought to prevent the

1 Although neither party referenced Duncan or Moore in their briefing, the Court provided the

parties the opportunity to do so through supplemental briefing. See Doc. 121 (July 21, 2019 Order)

(“In light of Duncan v. Clements, 744 F.2d 48 (8th Cir. 1984) and Moore v. City of Desloge, Mo.,

647 F.3d 841 (8th Cir. 2011), if either party wishes to supplement their briefing regarding

Plaintiff’s motion to strike defendant Nash’s fifth defense, Doc. 107, they should do so on or before

July 29, 2019.”). In his reply, Jennings asserts for the first time that “Nash lacks standing to re-

litigate the procedural default issue.” Doc. 123, p. 2. However, this argument not only lacks merit

but also is foreclosed because it was not raised in the original motion papers. See United States v.

Meyer, 914 F.3d 592, 596 (8th Cir. 2019) (“We need not consider these claims because they appear

for the first time in a reply brief.”); Myers v. KNS Dev. Corp., No. 2:17-CV-04076-NKL, 2017

WL 4202242, at *5 (W.D. Mo. Sept. 21, 2017) (“Because this argument was raised for the first

time on reply, the Court will not address it.”).

officer from relitigating the constitutionality of the plaintiff’s arrest and search in a subsequent

section 1983 action. 744 F.2d at 51. However, collateral estoppel was not appropriate because

the officer against whom it was asserted, “was neither a party nor in privity with a party to the

prior state criminal proceeding.” Id. The court reasoned: “‘[T]he purpose of a criminal court is

not to provide a forum for the ascertainment of private rights. Rather it is to vindicate the public

interest in the enforcement of the criminal law.’” Id. at 52 (quoting United States v. Standefer,

447 U.S. 10, 25 (1980)). Thus, “[o]nly the State of Missouri, not [the officer], had an interest in

the outcome of the criminal proceeding against [plaintiff].” Id. It was simply “not enough that

both the state and [the officer] were interested in proving that probable cause existed.” Id. The

officer also had not had a full and fair opportunity to litigate the issue, despite acting as a witness

for the prosecution, because he “had no control over” the State’s presentation of its case, nor could

he appeal. Id.

Similarly, collateral estoppel is not appropriate here because Nash was neither a party nor

in privity with a party to the prior state proceedings. See id. at 51. Although Jennings attempts to

distinguish this case from Duncan and Moore on the grounds that the underlying ruling comes

from habeas corpus proceedings, not a criminal court, and that he is not seeking to establish the

unconstitutionality of Nash’s conduct through collateral estoppel, neither of these differences

change the fact that the State, not Nash, was a party to the underlying proceedings. Despite his

role as a prosecution witness, Nash did not have a full and fair opportunity to litigate the issue in

the underlying proceedings as he had no control over the State’s presentation of the case. See id.

at 52.

III. Conclusion

For these reasons, Jennings’ motion to strike, Doc. 107, is denied.

s/ Nanette K. Laughrey

NANETTE K. LAUGHREY

United States District Judge

Dated: August 12, 2019

Jefferson City, Missouri