Prosecuting Attorney, 21st Judicial Circuit, ex rel. Marcellus Williams, Movant/Petitioner v. State of Missouri, and State of Missouri v. Marcellus Williams

SUPREME COURT OF MISSOURI

en banc

PROSECUTING ATTORNEY, ) Opinion issued September 23, 2024

21ST JUDICIAL CIRCUIT, )

EX REL. MARCELLUS WILLIAMS, )

)

Movant/Petitioner, )

)

v. ) No. SC100764

)

STATE OF MISSOURI, )

)

Respondent. )

)

and )

)

STATE OF MISSOURI, )

)

Respondent, )

)

v. ) No. SC83934

)

MARCELLUS WILLIAMS, )

)

Appellant. )

APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY

The Honorable Bruce F. Hilton, Judge

MOTION FOR STAY OF EXECUTION

Introduction

Despite nearly a quarter century of litigation in both state and federal courts, there

is no credible evidence of actual innocence or any showing of a constitutional error

undermining confidence in the original judgment. Like every other court that reviewed

every appeal and every habeas petition, the circuit court in this case correctly concluded

there is no basis for setting aside Marcellus Williams' conviction and sentence. By

proposing findings of fact and conclusions of law abandoning the claim of actual innocence

and not appealing the circuit court's merits determination, the St. Louis County Prosecuting

Attorney ("Prosecutor") irrefutably demonstrates what every court has found – that there

is no clear and convincing evidence that Williams is actually innocent.

Prosecutor appeals a civil judgment overruling his motion to set aside or vacate

Williams' first-degree murder conviction and death sentence pursuant to § 547.031, RSMo

Supp. 2021. The circuit court's judgment is supported by substantial evidence, is not

against the weight of the evidence, and does not erroneously declare or apply the law. The

judgment is affirmed.

An appeal from a judgment denying relief under § 547.031 does not automatically

stay an execution date. See State ex rel. Bailey v. Sengheiser, 692 S.W.3d 20, 24 (Mo. banc

2024) (holding this Court's rules do not provide for an automatic stay of a judgment

disposing of a § 547.031 motion). Williams filed a motion to stay his September 24, 2024,

execution date during the pendency of this appeal from the judgment overruling

Prosecutor's § 547.031 motion. 1 Further, as explained in this Court's opinion, because this

Court rejects this appeal on the merits, the motion for stay of execution is overruled as

moot. Because Prosecutor failed to demonstrate by clear and convincing evidence

Williams' actual innocence or constitutional error at the original criminal trial that

1

Prosecutor's appeal from the judgment overruling the § 547.031 motion is denominated as

SC100764. The direct appeal from the criminal judgment convicting Williams of first-degree

murder and sentencing him to death is denominated as SC83934. Both pending matters are

resolved by this opinion, and all other pending motions are overruled.

2

undermines the confidence in the judgment of the original criminal trial, the judgment

overruling Prosecutor's § 547.031 motion is affirmed.

Facts and Procedural History

In 1998, Williams fatally stabbed Victim while burglarizing her home. Victim's

purse and her husband's laptop were found in Williams' vehicle. Further, Williams'

girlfriend and cellmate both testified Williams confessed to them. Following a jury trial in

2001, the circuit court entered a judgment finding Williams guilty of multiple criminal

offenses, including first-degree murder, and sentencing him to death. During the ensuing

23 years, this Court and the federal courts have repeatedly rejected Williams' claims of

actual innocence and constitutional error at trial.

Prosecutor filed the underlying § 547.031 motion in January 2024, following

Williams' direct appeal, postconviction relief appeal, multiple unsuccessful habeas

petitions, and the Governor's denial of executive clemency. Section 547.031.1 authorizes

a prosecuting or circuit attorney to file a motion to vacate or set aside the judgment "at any

time" upon information "the convicted person may be innocent or may have been

erroneously convicted." The statute further provides the circuit court "shall issue findings

of fact and conclusions of law on all issues presented" and shall "vacate or set aside the

judgment where the court finds that there is clear and convincing evidence of actual

innocence or constitutional error at the original trial or plea that undermines the confidence

in the judgment." § 547.031.2.3.

Prosecutor initially raised four claims: (1) Williams may be actually innocent of

first-degree murder; (2) Williams' trial counsel was ineffective for failing to impeach the

State's witnesses; (3) Williams' trial counsel was ineffective for failing to provide different

3

mitigation evidence regarding Williams' background; and (4) the State exercised

peremptory strikes of two venirepersons on the basis of race in violation of Batson v.

Kentucky, 476 U.S. 79 (1986).

On August 19, 2024, Prosecutor and Williams received the results of further DNA

testing on the murder weapon. The report indicated that DNA material found on the knife

was consistent with the DNA profiles of the original prosecutor from Williams' original

criminal trial and a criminal investigator. Prosecutor and Williams provided the report to

the attorney general the next day.

The attorney general filed a motion in limine, which opposed Prosecutor trying any

claims by consent that were not included in the original motion. In response, Prosecutor

filed a motion for leave to amend the motion to vacate or set aside to advance two additional

claims: (1) that the State had engaged in bad-faith destruction of fingerprints and DNA

evidence on the handle of the knife in violation of Arizona v. Youngblood, 488 U.S. 51

(1988); and (2) that the circuit court at Williams' original criminal trial violated Williams'

due process right when it overruled his motion for a continuance.

The circuit court sustained Prosecutor's recent motion to amend the pleadings to

allege a claim of bad-faith destruction of fingerprint and DNA evidence found on the

murder weapon, but it overruled Prosecutor's motion to amend the pleadings regarding

Williams' due process claim.

Following an evidentiary hearing, the circuit court issued a 24-page judgment with

extensive findings of fact and conclusions of law rejecting all of Prosecutor's claims and

4

overruling the motion to set aside or vacate Williams convictions and sentence. 2

Prosecutor filed a notice of appeal from this civil judgment directly with this Court,

claiming this Court has exclusive appellate jurisdiction because "[t]he punishment imposed

is death."

The circuit court's judgment, and Prosecutor's appeal, arise from a litigation history

as lengthy as it is thorough. In 2003, this Court affirmed the judgment on direct appeal,

specifically rejecting Williams' claim the prosecutor exercised discriminatory peremptory

strikes on two venirepersons in violation of Batson. State v. Williams, 97 S.W.3d 462, 471-

72 (Mo. banc 2003). This previously adjudicated Batson issue is essentially the same as

the fourth claim in Prosecutor's § 547.031 motion.

In 2005, this Court affirmed the denial of postconviction relief. Williams v. State,

168 S.W.3d 433 (Mo. banc 2005). This Court specifically rejected Williams' claim his trial

counsel was ineffective for failing to adequately investigate and impeach two witnesses

whose testimony tied Williams to Victim's murder. Id. at 440-43. This Court also

specifically rejected Williams' claim his trial counsel was ineffective for failing to provide

adequate mitigation evidence during the penalty phase. Id. at 443. These previously

adjudicated claims essentially are the same as the second and third claims in Prosecutor's

§ 547.031 motion.

Following the resolution of his direct appeal and his postconviction relief appeal,

Williams filed a petition for a writ of habeas corpus in federal court. The federal district

court granted relief, but the court of appeals reversed the judgment and denied habeas relief.

2

The circuit court's judgment is attached as an Appendix to this opinion.

5

Williams v. Roper, 695 F.3d 825, 839 (8th Cir. 2012). 3 The United States Supreme Court

denied Williams' petition for a writ of certiorari. Williams v. Steele, 571 U.S. 839 (2013).

This Court then set a January 28, 2015, execution date.

On January 9, 2015, Williams filed a petition for a writ of habeas corpus in this

Court. Out of an abundance of caution, this Court vacated the execution date, ordered

additional DNA testing and habeas proceedings, and appointed a special master to ensure

complete DNA testing. This Court denied Williams' habeas petition. The United States

Supreme Court denied Williams’ petition for a writ of certiorari. Williams v. Steele, 582

U.S. 937 (2017). This Court then set an August 22, 2017, execution date.

On August 14, 2017, Williams filed another petition for a writ of habeas corpus.

This Court denied relief, as did the United States Supreme Court. Williams v. Larkins, 583

U.S. 902 (2017). As the circuit court found, the net result of Williams' habeas litigation is

that this Court has heard and rejected all of his actual innocence claims based on DNA

evidence, except for his most recent claim that "touch DNA" testing matches an unknown

person and excluded Williams as the source.

On August 22, 2017, the Governor issued an executive order appointing a board of

inquiry pursuant to § 552.070 and staying Williams' execution pending an executive

3

On September 17, 2024, Williams filed a motion pursuant to Federal Rule of Civil Procedure

60(b)(6) to set aside that judgment in the district court, asking the court to relitigate his Batson

claim based on the prosecutor's testimony at the § 547.031 hearing. Williams v. Vandergriff, Case

No. 4:05-CV-1474-RWS (E.D. Mo. Sept. 19, 2024). The district court had already rejected

Williams' identical Batson claim on the merits in the original judgment. Id. at *3. The district

court rejected the motion as successive habeas petition. Id. at *3-4. The district court further noted

that Williams "mischaracteriz[ed]" the prosecutor's testimony at the § 547.031 hearing. Id. at *5.

Williams filed an application for a certificate of appealability, which the court of appeals denied.

Williams v. Vandergriff, No. 24-2907 (8th Cir. Sept. 21, 2024).

6

clemency decision. In 2023, the Governor rescinded the prior executive order, dissolved

the board of inquiry, and removed "any legal impediments to the lawful execution of

Marcellus Williams" arising from the prior executive order.

Williams filed a declaratory judgment action challenging the Governor's rescission

of the executive order appointing a board of inquiry and staying the execution. State ex

rel. Parson v. Walker, 690 S.W.3d 477, 482 (Mo. banc 2024). In June 2024, this Court

issued a permanent writ of prohibition barring the circuit court from taking further action

other than granting the Governor's motion for judgment on the pleadings and denying

Williams' petition for declaratory judgment. This Court held § 552.070, the statute

authorizing the board of inquiry process, does not limit the Governor's constitutional

clemency power. Id. at 489. This Court further held Williams alleged no cognizable liberty

or life interest restraining the Governor's absolute discretion to grant or deny clemency. Id.

This Court then set a September 24, 2024, execution date.

The only claims in Prosecutor's §547.031 motion not previously adjudicated on

appeal or in a habeas proceeding are his claims that recent touch DNA testing demonstrates

Williams' actual innocence and that trial prosecutors and investigators engaged in the bad-

faith destruction of DNA and fingerprint evidence found on the murder weapon. The

circuit court rejected the actual innocence claim in part because Prosecutor's own expert

testified the DNA on the murder weapon was consistent with and likely from a St. Louis

County investigator and the trial prosecutor rather than an alternate perpetrator. In his

proposed findings of fact, conclusions of law, and judgment, Prosecutor expressly

acknowledged this new DNA report and testimony further undermined any claim of actual

innocence. In fact, Prosecutor's proposed judgment filed with the circuit court after the

7

close of all the evidence expressly requested a finding that, "As a result of additional DNA

testing indicating that [the trial prosecutor's] and [an investigator's] DNA profiles were

consistent with the DNA left on the knife, [Prosecutor] abandoned the claim of actual

innocence. Thus, this Court need not address it here." Furthermore, the circuit court also

found, as a factual matter, the credible evidence demonstrated the killer wore gloves. The

circuit court rejected the fingerprint claims because a police detective credibly testified the

fingerprint lifts were of insufficient quality to be used for comparison and were destroyed

because they were "useless." This appeal follows.

Jurisdiction

This Court has "exclusive appellate jurisdiction … in all cases where the punishment

imposed is death." Mo. Const. art. V, § 3. But, more importantly, a § 547.031 motion "'is

a new civil action' representing a 'collateral attack on the conviction and sentence.'" State

ex rel. Bailey v. Fulton, 659 S.W.3d 909, 914 (Mo. banc 2023) (quoting State v. Johnson,

654 S.W.3d 883, 891 n. 10 (Mo. banc 2022)). This civil judgment overruling Prosecutor's

§ 547.031 motion does not impose a death sentence. It simply rejects a collateral, civil

attack on the original 2001 judgment finding Williams guilty of first-degree murder and

sentencing him to death. Prosecutor's appeal from the circuit court's judgment overruling

the § 547.031 motion does not invoke this Court's exclusive appellate jurisdiction under

article V, § 3 of the Missouri Constitution.

Because Prosecutor's appeal does not invoke this Court's article V, § 3 jurisdiction,

this Court issued an order to show cause why the appeal should not be dismissed or

transferred to the court of appeals. In response, Prosecutor requested this Court assume

jurisdiction in light of the important issues presented. Article V, § 10 of the Missouri

8

Constitution authorizes this Court to transfer an appeal and assume jurisdiction "before or

after opinion because of the general interest or importance of a question involved in the

case[.]" 4 This Court accepted and has jurisdiction because of the general interest or

importance of the questions involved in the case. 5

Prosecutor's Appeal Does Not Automatically Stay Execution of the Judgment

Before turning to the merits, this Court must address Williams' motion asserting

Prosecutor's pending appeal requires this Court to stay the September 24, 2024, execution

date. It does not. As established, Prosecutor's § 547.031 motion is a civil action to

collaterally attack the final judgment entered against Williams in 2001. See Fulton, 659

S.W.3d at 914. As this Court made clear in Sengheiser, 692 S.W.3d at 24, no rule of civil

procedure provides for automatic stay of a judgment disposing of a § 547.031 motion. 6

Sengheiser further explained, because there is no authority "providing for an automatic stay

of a judgment entered pursuant to section 547.031[,]" the judgment in that case was

4

See also Rule 83.01(a) (providing this Court "on its own motion or on application of a party may

transfer to this Court from the court of appeals a case in which there has been no disposition …

for any of the reasons stated in Rule 83.02[,]" which authorizes transfer "because of the general

interest or importance of a question involved").

5

The attorney general correctly points out this Court would have to waive its rule regarding the

time limits pertaining to what constitutes a final judgment for this Court to have jurisdiction at this

early date. Because neither Prosecutor nor Williams have or would have been able to make a

showing sufficient for a stay of execution, the Court’s only alternatives were (1) waive its own

rule to allow for such appellate review or (2) carry out the execution with the appeal pending. In

the interest of justice, this Court chose the former.

6

In Sengheiser, this Court explained:

Rule 81.09 broadly applies to civil proceedings and provides for the circumstances

in which an appeal stays the execution of a civil judgment. Subdivision (a)(1)

provides an appeal shall stay the execution of judgment in certain enumerated cases,

not relevant here. Subdivision (a)(2) provides for the filing of a supersedeas bond

to stay the execution of a judgment. Rule 92 governs actions seeking injunctive

relief, and Rules 92.03 and 92.04 provide that either a circuit court or an appellate

court may stay injunctive relief pending appeal.

692 S.W.3d at 24-25 (footnotes omitted).

9

"immediately operative and enforceable." Id. at 24-25. Consequently, the "circuit court's

judgment [was] not automatically stayed during the pendency of the attorney general's

appeal[.]" Id. at 25.

The same is true here. The circuit court's judgment overruling Prosecutor's

§ 547.031 motion leaves Williams' murder conviction and death sentence undisturbed, and

Prosecutor's pending appeal does not automatically stay the scheduled execution. 7

Further, the provisions of Rule 30 governing procedure in death penalty cases do

not change this result. Rule 30.15(a) provides, "A sentence of death shall be stayed if an

appeal is taken." But this mandatory stay provision plainly refers to the direct appeal from

the judgment imposing a sentence of death, not an appeal from a judgment denying a

collateral attack.

Similarly, Rule 30.30(b) provides:

A date of execution set pursuant to Rule 30.30(a) shall be stayed upon the

receipt in this Court of proof of filing of a timely appeal or petition for writ

of certiorari in the Supreme Court of the United States. No other filing in

this or any other Court shall operate to stay an execution date without further

order of this Court or other competent authority.

Rule 30.30(b) imposes an automatic stay of the "date of execution set pursuant to Rule

30.30(a)[.]" Rule 30.30(a) provides:

The initial date of execution shall be set following the review of the sentence

required by statute and the affirmance thereof. If no timely motion for

rehearing is filed, the execution shall be set not fewer than 95 days from the

date of the opinion affirming the sentence. If a timely motion for rehearing

is filed, the execution shall be set not fewer than 95 days from the date the

motion is overruled.

7

This Court, out of an abundance of caution in the show cause order regarding jurisdiction, notified

the parties so they would not operate under the mistaken assumption an automatic stay of execution

was in effect.

10

Because Rule 30.30(a) governs the "initial date of execution … following the review

of the sentence required by statute[,]" the automatic stay imposed by Rule 30.30(b) is

triggered by a "timely appeal" from the judgment imposing a death sentence, not an appeal

from a judgment overruling a civil § 547.031 motion collaterally attacking the judgment

decades after it was imposed.

More importantly, Rule 30.30(b) provides: "[N]o other filing in this or any other

Court shall operate to stay an execution date without further order of this Court or other

competent authority." The plain language of Rule 30.30(b) confirms Prosecutor's appeal

of the judgment overruling the § 547.031 motion does not stay the execution date

automatically. 8 This Court now turns to the merits of Prosecutor's appeal.

Standard of Review

The circuit court conducted an evidentiary hearing on Prosecutor's civil § 547.031

motion collaterally attacking the final criminal judgment. When reviewing a civil

judgment entered after a bench trial, this Court will affirm the judgment "unless there is no

substantial evidence to support it, unless it is against the weight of the evidence, unless it

erroneously declares the law, or unless it erroneously applies the law." Lollar v. Lollar,

609 S.W.3d 41, 45-46 (Mo. banc 2020) (quoting Murphy v. Carron, 536 S.W.2d 30, 32

(Mo. banc 1976). If the issue is one of law, this Court's review is de novo to determine if

the circuit court misapplied the law. Murphy, 536 S.W.2d at 31.

8

The fact Prosecutor's appeal does not automatically stay enforcement of the underlying criminal

judgment and scheduled execution date further justified this Court granting transfer prior to

opinion by the court of appeals due to the general interest and importance of the issues in this

appeal.

11

"If the issue to be decided is one of fact, this Court determines whether the judgment

is supported by substantial evidence and whether the judgment is against the weight of the

evidence." JAS Apartments, Inc. v. Naji, 354 S.W.3d 175, 182 (Mo. banc 2011) (citing

Murphy, 536 S.W.2d at 31). This Court views "the evidence in the light most favorable to

the circuit court's judgment and defer[s] to the circuit court's credibility determinations."

Ivie v. Smith, 439 S.W.3d 189, 200 (Mo. banc 2014). "Appellate courts should exercise

the power to set aside a decree or judgment on the ground that it is 'against the weight of

the evidence' with caution and with a firm belief that the decree of judgment is wrong."

Murphy, 536 S.W.2d at 32.

In an action brought by a prosecuting attorney pursuant to § 547.031, the

prosecuting attorney must prove his or her allegations by clear and convincing evidence.

§ 547.031.3. “Evidence is clear and convincing when it instantly tilts the scales in the

affirmative when weighed against the evidence in opposition, and the fact finder’s mind is

left with an abiding conviction that the evidence is true.” State ex rel. Amrine v. Roper,

102 S.W.3d 541, 548 (Mo. banc 2003) (internal quotations omitted).

The circuit court is free to believe any, all, or none of the evidence presented at trial.

J.A.R. v. D.G.R., 426 S.W.3d 624, 627 (Mo. banc 2014). The circuit court in this case

made extensive findings of fact and conclusions of law. In addition, Rule 73.01(c)

provides: "All fact issues upon which no specific findings are made shall be considered as

having been found in accordance with the result reached." 9

9

The circuit court cited this rule in the judgment and specifically found all credibility issues in

accordance with the judgment.

12

Abandoned Claim of Actual Innocence Has No Merit

Prosecutor originally claimed Williams was actually innocent. Prosecutor makes

no claim on appeal that Williams is actually innocent. After the evidentiary hearing,

Prosecutor submitted proposed findings of fact, conclusions of law, and judgment to the

circuit court stating there is no clear and convincing evidence of actual innocence.

Prosecutor's proposed judgment states, "As a result of additional DNA testing indicating

that [the trial prosecutor's] and [an investigator's] DNA profiles were consistent with the

DNA left on the knife, [Prosecutor] abandoned the claim of actual innocence. Thus, this

Court need not address it here." Despite Prosecutor's concession earlier this month that

there is no clear and convincing evidence of actual innocence, the circuit court,

nonetheless, fully adjudicated Prosecutor's claim on the merits. As the circuit court found,

this Court had repeatedly rejected Williams' DNA-based actual innocence claims in prior

habeas proceedings. The circuit court found the only new evidence relevant to Prosecutor's

actual innocence claim are recently developed DNA profiles developed by Prosecutor's

own expert, which are consistent with the DNA on the murder weapon of the trial

prosecutor and a police investigator. This evidence undermined Prosecutor's claim of

actual innocence and fully supports the circuit court's finding that this evidence neither

shows the existence of an alternate perpetrator nor excludes Williams as the murderer. 10

10

Prosecutor no longer claims the evidence shows trial counsel violated Williams' Sixth

Amendment right to effective assistance of counsel and that this constitutional error undermines

confidence in the judgment. Specifically, Prosecutor had previously claimed trial counsel was

ineffective for failing to impeach two witnesses and for failing to provide different mitigation

evidence during the penalty phase. These claims of ineffective assistance of trial counsel were

rejected nearly 20 years ago. Williams, 168 S.W.3d 433. The circuit court's judgment denying

relief on these claims is supported by substantial evidence, is not against the weight of the

13

Batson Claim

Prosecutor claims the circuit court erred in failing to make statutorily required

findings of fact pursuant to § 547.031. In particular, Prosecutor alleges the circuit court

did not address Prosecutor's Batson claim because the circuit court did not make a factual

finding about the trial prosecutor's § 547.031 evidentiary hearing testimony regarding the

peremptory strike of Venireperson No. 64. But Prosecutor did not file a Rule 78.07(c)

motion to amend the judgment. Because this claim of error concerns the form and language

of the circuit court's judgment, Prosecutor waived this claim of error.

Rule 78.07(c) provides, "In all cases, allegations of error relating to the form or

language of the judgment, including the failure to make statutorily required findings, must

be raised in a motion to amend the judgment in order to be preserved for appellate review."

"The party appealing must object at the trial level to the failure to make a finding so the

circuit court has an opportunity to correct the error." T.T.G. v. K.S.G., 530 S.W.3d 489,

495 n.4 (Mo. banc 2017). In the absence of a Rule 78.07(c) motion, "the failure to make

such required findings is waived." Id. "[I]t would not be appropriate to criticize the circuit

court for failing to make any required finding." J.A.R., 426 S.W.3d at 626 n.5.

In any event, Prosecutor tacitly admits the circuit court issued findings of facts and

conclusions on law on his Batson claim but now claims these findings were not sufficient

because the circuit court did not make any explicit credibility findings or any findings about

the trial prosecutor's testimony. But the circuit court specifically found the trial prosecutor

evidence, and is not based on an erroneous declaration or application of the law. See Lollar, 609

S.W.3d at 45-46.

14

"denied systematically striking potential Black jurors." This Court presumes the circuit

court found the trial prosecutor's testimony to be credible. See Rule 73.01(c).

Further, the circuit court correctly found this Court already rejected on direct appeal

this Batson challenge to the same venirepersons. Williams, 97 S.W.3d at 471-72. There,

this Court rejected Williams' argument "that striking the venireperson based upon physical

appearance was inherently race-based because both he and Williams are African–

American." Id.

Prosecutor did not present any new evidence on this claim. Now, Prosecutor

attempts to twist the original prosecutor's race-neutral explanation into a showing of

purposeful discrimination. Prosecutor claims the original prosecutor testified at the

evidentiary hearing that "part of the reason" the original prosecutor struck that potential

juror was because of race. But that argument mischaracterizes that portion of the trial

prosecutor's testimony. He stated that "part of the reason" he struck that particular

venireperson was because the venireperson looked similar, had the same glasses, and the

same "piercing eyes" as Williams. 11 When Prosecutor specifically asked if part of the

reason he struck juror number 64 was because he was black, the trial prosecutor replied:

"No. Absolutely not." The circuit court was entitled to give that testimony weight, and this

Court presumes it did based on the judgment entered. And again, this Court already

rejected this argument with nearly identical testimony from the original prosecutor on

direct appeal. See Williams, 97 S.W.3d at 471-72.

11

As previously stated, the federal district court also found Williams "mischaracteriz[ed]" the

prosecutor's testimony at the § 547.031 hearing. Williams v. Vandergriff, Case No. 4:05-CV-1474-

RWS (E.D. Mo. Sep. 19, 2024).

15

In sum, Prosecutor's Batson argument cherry-picks the record, ignores the circuit

court's factual findings, and offers no persuasive justifications for reversing this Court's

previous merits determination of this claim. The circuit court's judgment denying relief of

the Batson claim is supported by substantial evidence, is not against the weight of the

evidence, and is not based on an erroneous declaration or application of the law. See Lollar,

609 S.W.3d at 45-46.

Spoliation of Evidence Claim

Prosecutor argues the circuit court erred in denying Williams' Youngblood claim

because Prosecutor presented "clear and convincing evidence" that "proved the Prosecuting

Attorney's Office engaged in the destruction of potentially favorable evidence in bad faith

violation of Williams' due process rights." Generally, "when the State suppresses or fails

to disclose material exculpatory evidence, the good or bad faith of the prosecution is

irrelevant: a due process violation occurs whenever such evidence is withheld." Illinois v.

Fisher, 540 U.S. 544, 547 (2004). "In Youngblood, by contrast, [the Supreme Court]

recognized that the Due Process Clause ‘requires a different result when [a court] deal[s]

with the failure of the State to preserve evidentiary material of which no more can be said

than that it could have been subjected to tests, the results of which might have exonerated

the defendant.’” Id. (quoting Youngblood, 488 U.S. at 57). In that scenario, the Supreme

Court stated that the "failure to preserve this 'potentially useful evidence' does not violate

due process 'unless a criminal defendant can show bad faith on the part of the police.'" Id.

at 547-48 (emphasis omitted) (quoting Youngblood, 488 U.S. at 58).

Common law spoliation of evidence occurs "when there is intentional destruction

of evidence, indicating fraud and a desire to suppress the truth." Brown v. Hamid, 856

16

S.W.2d 51, 56-57 (Mo. banc 1993). "A party who intentionally destroys or significantly

alters evidence is subject to an adverse evidentiary inference under the spoliation of

evidence doctrine." State ex rel. Zobel v. Burrell, 167 S.W.3d 688, 691 (Mo. banc 2005).

The circuit court's decision to not apply the spoliation doctrine is reviewed for abuse of

discretion. Brown, 856 S.W.2d at 57.

Prosecutor argues the circuit court erred by not applying the spoliation doctrine

because the DNA evidence was allegedly contaminated by the trial prosecutor, who

handled the murder weapon without gloves. A threshold problem with Prosecutor's

spoliation argument is that it glosses over the necessity of showing intentional mishandling

of evidence aimed at suppressing the truth. While the trial prosecutor testified he handled

the murder weapon without gloves in 2001, he did so only after the laboratory found there

was nothing of evidentiary value on the knife. The trial prosecutor further testified he had

been informed that "no one wanted to do any further testing on the knife." The evidence

showed that, in the 23 years since trial, the understanding of and the ability to develop

touch DNA profiles from trace amounts has advanced significantly. Thus, as the circuit

court found, the trial prosecutor credibly testified that, as of Williams' trial in 2001, he had

never heard of touch DNA. Williams' argument incorrectly imputes the current

understanding of DNA transmission back to 2001 in order to equate the necessary,

intentional act of handling the murder weapon with intentional spoliation. The fact the

protocols for handling evidence in 2001 differs from protocols today shows only that the

scientific understanding of DNA transmission has evolved over the last 23 years. On this

record, the circuit court did not abuse its discretion by declining to find spoliation of

evidence.

17

Further, Prosecutor's DNA spoliation argument also fails because it hinges on the

factually untenable proposition that the uncontaminated DNA evidence would have shown

it belonged to an alternate perpetrator. As the circuit court found, the actual evidence

clearly refuted Prosecutor's claim the DNA on the murder weapon belonged to the actual

killer, not Williams. Prosecutor's own expert testified the only touch DNA on the murder

weapon likely came from a St. Louis County investigator. But more importantly for

purposes of this claim, the circuit court found the trial prosecutor credibly testified the

killer wore gloves, thus severely undermining any argument that the lack of a conclusive

DNA match to Williams undermines confidence in the judgment. In sum, none of

Prosecutor's evidence regarding the supposed mishandling of evidence suggests an

alternate perpetrator or excludes Williams as the killer. Instead, it only supports the

unremarkable fact that the original prosecutor and an investigator handled the murder

weapon during the course of the investigation and trial.

Williams also argues the circuit court erred by not applying the spoliation doctrine

to discarded fingerprint evidence. The record refutes this claim. A police detective

testified he received fingerprint lifts that were of insufficient quality to be used for

comparison and that they were destroyed because they were "useless." As with the DNA

evidence, there was no evidence of bad-faith spoliation. The circuit court did not abuse its

discretion by declining to apply the spoliation doctrine.

Williams also asserts there was evidence that the trial prosecutor's voir dire notes

were destroyed intentionally, and that the circuit court, therefore, should have applied an

adverse inference supporting Williams' Batson claim. The circuit court, however,

expressly found the witness who testified at the evidentiary hearing regarding file retention

18

procedures credibly testified he had little recollection of file retention procedures during

Williams' trial. The circuit court, therefore, concluded the testimony had little "probative

value … as to any issue presently before this Court."

Finally, in his brief on appeal, Prosecutor now alleges the State suppressed certain

evidentiary materials before trial—including an additional statement made by the jailhouse

informant, the jailhouse informant's medical records, and Williams' Department of

Corrections file—and this demonstrates a pattern of "animus or a conscious effort to

suppress exculpatory evidence." Prosecutor did not include any of these claims in his

amended § 547.031 motion. "This Court generally will not convict a lower court of error

on an issue that was not put before it to decide." Star v. Burgess, 160 S.W.3d 376, 378 n.2

(Mo. banc 2005) (citing Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982)).

As such, the circuit court did not err in failing to address a claim that was not properly

before it.

Weight Given to Current St. Louis County Prosecutor "Concessions"

Prosecutor now asks this Court to disregard all of the circuit court's findings of facts

and conclusions of law because Prosecutor conceded "constitutional error" resulting from

"mishandling the evidence" at Williams' trial. In other words, Prosecutor now alleges that

he has conceded that his own claim is correct. Prosecutor filed his § 547.031 in support of

Williams; he cannot also represent the party with the burden of proof and satisfy that

burden by merely asserting his own claims are correct. This type of one-sided proceeding

cannot be squared with § 547.031 or this Court's case law.

This Court has repeatedly rejected the State's attempts to concede questions of law.

"[P]arties cannot stipulate to legal issues, and this Court is not bound by the [State's]

19

confession of error." State v. Hardin, 429 S.W.3d 417, 421 n.4 (Mo. banc 2014); see also

State v. Clark, 490 S.W.3d 704, 716 n.4 (Mo. banc 2016) (Wilson, J., concurring); State v.

Biddle, 599 S.W.2d 182, 186-88 (Mo. banc 1980); State v. Tipton, 271 S.W. 55, 61 (Mo.

1925). A prosecutor's confession of error is "entitled to and given great weight", but does

not "relieve [a] Court of the performance of the judicial function." Sibron v. New York,

392 U.S. 40, 58 (1968) (quoting Young v. United States, 315 U.S. 257, 258 (1942)). 12

Section 547.031.4 reinforces the conclusion that Prosecutor cannot concede

constitutional error. That provision grants the attorney general the right to participate in

this appeal. "The attorney general may file a motion to intervene and, in addition to such

motion, file a motion to dismiss the motion to vacate or to set aside the judgment in any

appeal filed by the prosecuting or circuit attorney." § 547.031(4). And Prosecutor's notice

of appeal listed the respondent as "State of Missouri." "The attorney general shall appear

on behalf of the state in the court of appeals and in the supreme court and have the

12

Prosecutor asserts Glossip v. Oklahoma, No. 22-7466 (2024), which is currently pending before

the United States Supreme Court, involves an identical issue. Glossip is readily distinguishable.

In Glossip, the Oklahoma attorney general conceded that constitutional errors undermined the

integrity of the petitioner's trial. Brief of Respondent Oklahoma in Support at 1, Glossip v.

Oklahoma, No. 22-7466 (July 5, 2023). Oklahoma framed the question presented to the United

States Supreme Court as: "Whether due process of law allows a capital conviction to stand where

a thorough and independent review of previously unavailable information compels the State's

chief law enforcement officer to confess error and conclude that a capital conviction was secured

through potentially outcome-determinative prosecutorial misconduct." Id. at i (emphasis added).

But here, the attorney general—Missouri's chief law enforcement officer—has defended and

continues to defend Williams' original criminal conviction as permitted by statute. Further,

Glossip abandoned his claim that Oklahoma's confession of constitutional error was dispositive in

his merits brief. Brief of Petitioner, Glossip v. Oklahoma, No. 22-7466 (Apr. 23, 2024). Glossip

now argues his case presents a straightforward case of prosecutorial misconduct. Id. at 21.

Similarly, Oklahoma does not argue its confession of error is dispositive or violates the Due

Process Clause of the Fourteenth Amendment. Brief of Respondent in Support of Petitioner,

Glossip v. Oklahoma, No. 22-7466 (Apr. 23, 2024). Indeed, Oklahoma admits its confession of

error is entitled only to "great weight." Id. at 32.

20

management of and represent the state in all appeals to which the state is a party other than

misdemeanors and those cases in which the name of the state is used as nominal plaintiff

in the trial court." § 27.050.

Prosecutor alleges the circuit court did not even consider Prosecutor's concession of

constitutional error, but that claim is refuted by the record. The circuit court's judgment

stated that the circuit court reviewed the parties' proposed findings of fact and conclusions

of law. Prosecutor and Williams' joint proposed judgment stated that Prosecutor

"acknowledged that the prior administration destroyed [DNA] evidence in bad faith in

violation of Williams's constitutional rights." Additionally, the circuit court's judgment

discussed Prosecutor and Williams' voided August 21, 2024, consent judgment. 13 In that

agreement, Prosecutor again attempted to concede his own claims.

The circuit court's judgment denying relief on Prosecutor's spoliation claim is

supported by substantial evidence, is not against the weight of the evidence, and is not

based on an erroneous declaration or application of the law.

Due Process Claim

Finally, Prosecutor asserts that the circuit court violated Williams' right to due

process because Prosecutor and Williams were not given adequate time to prepare for the

§ 547.031 evidentiary hearing and that Prosecutor and Williams were not given adequate

time to prosecute Prosecutor's § 547.031 motion at that hearing. 14 But Prosecutor and

13

In that agreement, Prosecutor made his first attempt to concede his own claims. This Court

entered a permanent writ ordering the circuit court to set aside that agreement and hold the hearing

required by statute. State ex rel. Bailey v. Hilton, SC100707 (Mo. banc Aug. 21, 2024).

14

This Court assumes, without deciding, that Williams has some due process rights once

Prosecutor filed the motion pursuant to § 547.031. Prosecutor's point relied on only raises a claim

relating to the length of the hearing, not the timing of the hearing. The argument section of this

21

Williams never presented these distinct constitutional claims to the circuit court and,

therefore, waived appellate review.

"It is firmly established that a constitutional question must be presented at the

earliest possible moment 'that good pleading and orderly procedure will admit under the

circumstances of the given case, otherwise it will be waived.'" Callier v. Dir. of Revenue,

State, 780 S.W.2d 639, 641 (Mo. banc 1989) (quoting Meadowbrook Country Club v.

Davis, 384 S.W.2d 611, 612 (Mo. 1964)). To properly raise a constitutional question, one

must:

(1) raise the constitutional question at the first available opportunity;

(2) designate specifically the constitutional provision claimed to have been

violated, such as by explicit reference to the article and section or by

quotation of the provision itself; (3) state the facts showing the violation; and

(4) preserve the constitutional question throughout for appellate review.

United C.O.D. v. State, 150 S.W.3d 311, 313 (Mo. banc 2004).

Prosecutor and Williams did not present to the circuit court any claim of error

relating to the time or manner of the evidentiary hearing. Prosecutor claims these

arguments were preserved by its motion for leave to amend his pleading. That motion

provided:

The statute permits the Prosecuting Attorney to file a motion pursuant to

Section 547.031 "at any time." Unfortunately, the Attorney General's refusal

to seek a stay of Williams' execution date (which is currently less than one

month away) pending the resolution of this matter leaves the Prosecuting

Attorney with no option but to amend its motion in the interest of justice. If

the Attorney General would not object to a stay of Williams' execution date,

the Prosecuting Attorney would consent to re-opening discovery for further

point, however, presents both claims of error. "Claims of error raised in the argument portion of

a brief that are not raised in a point relied on are not preserved for our review." Hale v. Burlington

N. & Santa Fe Railway Co., 638 S.W.3d 49, 61 (Mo. App. 2021) (internal quotation omitted).

This Court, nonetheless, elects to exercise its discretion and review both claims of error. See

Griffitts v. Old Republic Ins. Co., 550 S.W.3d 474, 478 (Mo. banc 2018).

22

fact-finding and investigation of these amended claims. However, the

Prosecuting Attorney and Marcellus Williams have not been afforded the

privilege of time.

Due to the compressed timeline created by the Attorney General and the

Missouri Supreme Court, and in the interest of justice, this Court should

permit the Prosecuting Attorney to amend its motion to conform to the

evidence.

Nothing in this pleading arguing why Prosecutor should have been allowed to amend his

pleadings—which the circuit court permitted—preserves the argument made in the

appellant's brief. Prosecutor did not object to the time or manner of the hearing anywhere

in the motion. Further, the motion never mentioned any specific constitutional provisions

the circuit court allegedly violated. Prosecutor's constitutional claims of error are

unpreserved. Nevertheless, the circuit court provided for meaningful participation by both

Prosecutor and Williams. Section 547.031 does not dictate the time or manner of the

hearing. The statute merely requires the circuit court to hold a hearing, provide notice to

the attorney general of that hearing, and then issue findings of facts and conclusions of law

"on all issues presented." § 547.031.2. 15

Prosecutor's own conduct at the evidentiary hearing undercuts his claim that he was

not given enough time to present evidence at the evidentiary hearing. Neither Prosecutor,

who was given two hours, nor Williams, was given two hours, used their full allotted time.

In fact, a substantial amount of the combined time allotted was not used. And even then,

15

Additionally, Prosecutor's motion for leave expressly told the circuit court that Prosecutor was

not seeking a continuance. Rather, the motion for leave only asked for leave to file an amended

motion because of the circumstances surrounding the impending hearing. A party cannot complain

on appeal when he or she receives all the relief requested, and that party may not assert the circuit

court failed to do more than requested. McConnell v. Stallings, 955 S.W.2d 590, 594 (Mo. App.

1997).

23

Prosecutor does not allege on appeal what additional evidence he would have presented to

the circuit court.

The circuit court did not err, plainly or otherwise, as to setting the date and the

duration of the Prosecutor's § 547.031 evidentiary hearing in this case.

Conclusion

The circuit court's judgment is affirmed and the motion to stay execution is

overruled as moot. No Rule 84.17 motions shall be filed in this matter, and the clerk of the

Court is instructed to issue the mandate immediately. 16

__________________________

Zel M. Fischer, Judge

All concur.

16

Attorney General's motion regarding Prosecutor's failure to properly redact is overruled as

moot.

24

IN THE 21ST JUDICIAL CIRCUIT, COUNTY OF ST. LOUIS

STATE OF MISSOURI, FAMILY COURT

FILED

In re the matter of: SEP 1 2 2024

Prosecuting Attorney, 2i st Judicial JOAN M. GILM ER

-r:!l1T C:IJ=RK. ST /OIJIS r.nw

Circuit, ex rel. Marcellus Williams

Movant/Petitioner, Cause No. 24SL-CC00422

v.

Division 13

State of Missouri

Respondent.

FINDINGS OF FACT, CONCLUSIONS OF LAW, ORDER AND

JUDGMENT

The Court having called this matter for hearing on August 28, 2024,

Movant Prosecuting Attorney appears through counsel, Matthew Jacober, Realtor;

Marcellus Williams appears in person and with special counsel, Tricia J. Rojo

Bushnell and Jonathan Pott;, State of Missouri appears through Assistant

Attorneys General, Michael Spillane, Kelly Snyder, Andrew Clarke, Katherine

Griesbach and Kirsten Pryde.

The Court having considered the record consisting of over 12,000 pages;

heard the evidence presented by the Prosecuting Attorney, Attorneys General, and

Relator; given proper weight and credibility to the evidence, admitted exhibits and

heard arguments; reviewed Proposed Findings of Fact and Conclusions of Law

submitted by the parties; None of the parties requested specific Findings of Fact

and Conclusions of Law. All fact issues upon which no specific findings are made

shall be considered as having been found in accordance with the results reached.

Rule 73.01(c). Any finding of fact herein equally applicable as a conclusion of law

is adopted as such and any conclusion of law herein equally applicable as: a finding

of fact is adopted as such. The Court now being fully advised in the premises,

hereby makes the following Findings of Facts, Conclusions of Law, Order and

Judgment pursuant to§ 547.031.2 R.S.Mo.

PROCEDURAL HISTORY

Following a 14-day jury trial, the Circuit Court for St. Louis County on

August 27, 2001 entered its judgment finding Marcellus Williams guilty of first­

degree murder for the August 11, 1998 killing ofF.G., as well as first-degree

burglary, two counts of armed criminal action, and robbery and fixing punishment

at death. The Missouri Supreme Court affirmed Williams' conviction, Statev.

Williams,97 S.W.3d -'462(Mo. bane 2003), and affirmed the judgment denying

postconviction relief. Williamsv. State, 168 S.W.3d 433(Mo. bane 2005).

Williams filed a petition for a writ of habeas corpus in federal court. The

federal District Court granted relief, but the 8th Circuit Court of Appeals reversed

the judgment and denied habeas relief. Williamsv. Roper, 695 F.3d 825, 839(8th

Cir. 2012). The United States Supreme Court denied Williams' petition for a writ

of certiorari. WilliamsvSteele, 571 U.S. 839(2013).

In December of 2014, The Missouri Supreme Court issued a warrant of

execution setting a January 28, 2015 execution date. Williams then filed a petition

for a writ of habeas corpus in the Missouri Supreme Court alleging he was entitled

to additional DNA testing to demonstrate actual innocence. That same Court

vacated Williams' execution date and appointed a special master to ensure

complete DNA testing and to report the results of the additional DNA testing.

The special master provided the Missouri Supreme Court with the results of

additional DNA testing conducted onhair and fingernail samples from the crime

· scene and of the knife used in the murder. The parties fully briefed their

arguments to the master. The Missouri Supreme Court, after reviewing the

master's files, denied Williams' habeas petition because the additional DNA

testing did not demonstrate Williams' actual innocence. The United States

Supreme Court denied Williams' petition for a writ of certiorari. Williamsv.

Steele,582 U.S. 937, 137 S.Ct. 2307, 198 L.Ed.2d 737(2017).

In 2017, Williams filed another petition for writ of habeas corpus, again

alleging DNA testing demonstrated his actual innocence by excluding him as a

contributor of DNA found on the knife used in the murder. The Missouri Supreme

Court denied relief. The United States Supreme Court denied Williams' petition

for writ of certiorari. Williamsv. Larkin, 583 U.S. 902, 138 S.Ct. 279, 199

L.Ed.2d 179 (2017).

In 2023, Williams filed a petition for a declaratory judgment alleging

Governor Parson lacked authority to rescind an executive order issued by

Governor Greitens on August 22, 2017 appointing a board of inquiry pursuant to §

552.070 RSMo and staying execution until the final clemency determination. On

June 29, 2023 Governor Parsons rescinded said executive order, thereby

dissolving the Board of Inquiry established therein. On June 4, 2024, the Missouri

2

Supreme Court issued a permanent writ of prohibition barring the Circuit Court

from taking further action other than granting the governor's motion for judgment

on the pleadings and denying Williams' petition for declaratory judgment. State

ex rel. Parson v. Walker, No. SC100352, -S.W.3d - at 2-3. (Mo. bane June 4,

2024).

On June 4, 2024 The Missouri Supreme Court issued its order and warrant

for execution setting a September 24, 2024 execution date for Williams.

Williams filed a motion to withdraw the Missouri Supreme Court's June 4,

2024 warrant of execution setting the September 24, 2024 execution date,

claiming the warrant was premature because on January 26, 2024 the St. Louis

County Prosecutor filed a motion to vacate Williams' first-degree murder

conviction and death sentence pursuant to§ 547.031, R.S.Mo. Supp. 2021. The

Missouri Supreme Court overruled said motion. State ofMissouri v. Marcellus

Williams, No. SC83984 (Mo. bane July 12, 2024).

LEGAL STANDARD

Does this Court have jurisdiction or authority to hear a Motion to Vacate or

Set Aside Judgment pursuant to§547.031.1 R.S.Mo (2021), if the Supreme Court

issues its order and warrant for execution before the motion is heard and ruled on?

The Legislature has expressly provided that a§ 547.031 R.S.Mo (2021)

motion collaterally attacking a judgment may be filed at any time in circuit court,

and the statute likely does not impermissibly conflict with controlling Supreme

Court rules pertaining to capital crimes for which a sentence of death has been

imposed.

In 2021, due in part to Judge Draper's concurrence in State v. Johnson, 617

S.W.3d 439, 446 (Mo. bane 2021), the Legislature enacted§ 547.031 R.S.•Mo

(2021) which provides:

1. A prosecuting or circuit attorney, in the jurisdiction in which the person

was convicted of the offense, may file a motion to vacate or set aside the

judgment at any time if he or she has information that the convicted

person may be innocent or may have been erroneously convicted. The

circuit court in which the person was convicted shall have jurisdiction

and authority to consider, hear, and decide the motion.

,2. Upon the filing of a motion to vacate or set aside the judgment,: the court

shall order a hearing and shall issue findings of fact and conclusions of

law on all issues presented. The attorney general shall be given notice

of hearing of such motion by the circuit clerk and shall be permitted to

3

appear, question witnesses, and make arguments in a hearing of such

motion.

3. The court shall grant the motion of the prosecuting or circuit attorney to

vacate or set aside the judgment where the court finds that there is clear

and convincing evidence of actual innocence or constitutional error at

the original trial or plea that undennines the confidence in the judgment.

In considering the motion, the court shall take into consideration the

evidence presented at the original trial or plea, the evidence presented at

any direct appeal or post-conviction proceeding, including state or

federal habeas action; and the information and evidence presented at the

hearing on the motion.

4. The prosecuting attorney or circuit attorney shall have the authority and

right to file and maintain an appeal of the denial or disposal of such

motion. The attorney general may file a motion to intervene and, in

addition to such motion, file a motion to dismiss the motion to vacate or

to set aside the judgment in any appeal filed by the prosecuting or

circuit attorney.

By its express terms, this statute not only authorizes the appropriate circuit

court to decide the motion, but also requires said court to hold a hearing and to

issue findings of fact and conclusions of law. Nothing in the statute excepts

capital death sentence cases from the circuit court's authority, even those for

which the defendant has exhausted all right to seek relief before both the Missouri

State Supreme Court and United States Supreme Court. Thus, in order for the

Circuit Court to dismiss for lack of authority in the instant case, it would have to

find that a conflict exists between the statute and Supreme Court rules requiring

exclusive Supreme Court jurisdiction, and that the Supreme Court rules prevail

over the statute. See, Brickv. Koeppen,672 S.W.3d 62, 65-66 Mo. App. 2023).

Only three cases have interpreted this statute and none addresses a circuit

court's authority to hear the motion under the facts presented in the instant case.

In State v. Johnson, 654 S.W.3d 883 (Mo. bane 2022), none of the parties raised

the issue in what was an arguably more compelling case for restraining the circuit

court's authority. In Johnson, unlike in the case at bar, the Supreme Court's

warrant for execution was issued well before the§ 547.031 motion was filed in the

circuit court. Ultimately, the circuit court denied the last-minute motion on the

grounds that it had insufficient time to conduct a meaningful hearing on the merits.

However, rather than addressing the circuit court's authority to act after issuance

of its warrant for execution, the Supreme Court denied the motion for stay of

execution on the grounds that even if remanded for hearing, defendant could not

make the required showing of likely success on the merits under the injunctive

relief analysis also applicable when a stay is sought. Id. at 892-93. But in doing

4

so, a majority of the Supreme Court appears to have given at least tacit approval

for a circuit court to proceed with such a motion, notwithstanding the high court's

prior issuance of warrant for execution in that case. Judge Breckenridge wrote in

dissent that the circuit court in her view was in error in not scheduling the

§ 547.031 hearing as required by statute. Id. at 903. Defendant Williams likely

titled his Supreme Court filing as a "Motion to Withdraw Warrant of Execution"

in his direct appeal case to avoid confronting the uphill "likelihood of success on

the merits" argument faced when filing a motion to stay execution.

In its Motion to Dismiss the§ 547 .031 motion, the Attorney General

submits three colorable, but far from definitive, citations of authority in support of

its contention that the Supreme Court has exclusive jurisdiction over this matter.

Although not directly argued, the brief implicitly makes the argument that the

Supreme Court rules cited prevail over the conflicting statute, requiring the motion

to be heard by the Supreme Court.

The first is Article V, § 2 of the Missouri Constitution. However, that

section simply states that the decision of the Supreme Court shall be controlling in

all other courts. The second citation is Supreme Court Rule 30.03(b ), which

provides:

(b) A date of execution set pursuant to Rule 30.30(a) shall be stayed upon

the receipt in this Court of proof of filing of a timely appeal or petition for

writ of certiorari in the Supreme Court of the United States. No other filing

in this or any other Court shall operate to stay an execution date without

further order of this Court or other competent authority.

However, none of the parties have requested that the Circuit Court stay the

execution, as it is conceded that it lacks authority to do so. Accordingly, this rule

does not expressly preclude a circuit court from hearing a§ 547.031 motion.

Next, the Attorney General cites Supreme Court Rule 91.02(b), which

provides that, in capital convictions involving a sentence of death, any habeas

corpus petition may be filed in the Supreme Court in the first instance and, if first

filed in another court, shall be deemed to have been filed in the Supreme Court.

Although akin to a habeas petition, a§ 547.031 motion is made pursuant to

specific legislative enactment to prevent a prosecutor or circuit attorney to seek

relief in addition to, or apart from, the convicted defendant's right to seek post­

conviction and habeas relief. Thus, the statute does not directly conflict with the

mandate contained in Rule 91.02(b ), requiring a capital defendant to file his or her

habeas petition exclusively in the Supreme Court.

Finally, the Attorney General cites the following two cases, neither of

which directly supports its contention of exclusive Supreme Court jurisdiction in

5

this matter. State ex rel. Nixon v. Daugherty, 186 S.W.3d 253 (Mo. bane 2008)

involved a defendant's unprecedented use of a Supreme Court civil practice rule,

Rule 74.06(d), to collaterally attack the judgment denying his Rule 24.035 post­

conviction relief motion. In that case, the court held that Rule 74.06(d) applied

solely to civil actions and that permitting such a motion would eviscerate a post­

conviction relief motion's purpose of promptly and finally adjudicating claims

concerning the legality of the conviction or sentence of a defendant. In particular

the court stated:

In a death penalty case, a Rule 74.06(d) motion also frustrates the

purpose of Rule 91.02(b), Rule 29.08(d), and the Court's order of

June 16, 1988. All of these make clear that matters affecting a

sentence of death, once it is affirmed on direct appeal and except for

a motion filed under Rule 24.035 or Rule 29.15, are to be filed in

this Court and not another state court.

Id. at 254.

As an initial matter, it should be noted that the above quote expressly

exempts post-conviction relief motions from having to be filed directly in the

Supreme Court. Moreover, glaringly absent from the Attorney General's brief is

any mention that Daugherty, which was decided long before enactment of§

547.031, permits only (emphasis added) prosecuting attorneys to file a motion to

vacate/set aside a conviction if the defendant may be innocent or that

constitutional error at trial undermines the confidence in the judgment. Also of

significance is the provision in§ 547.031 for appellate review of a circuit court's

determination, meaning that the Supreme Court would have the last word in a

capital death sentence case in any event.

The second case cited is State ex rel. Amrine v. Roper, 102 S.W.3d 541

(Mo. bane 2003), which allowed capital offenders to raise free-standing claims of

actual innocence via habeas corpus. The Amrine court pointed to the deat]i. penalty

statute§ 565.035.2 R.S.Mo., as charging it with exclusive authority to review the

sentence as well as any errors enumerated by way of appeal. The Attorney

General argues that Amrine and§ 565.035 provide for exclusive Supreme Court

review in death penalty cases.

However, the statute does not give the Supreme Court exclusive authority

to hear collateral attacks on the judgment and sentence, such as those filed, under

Rule 29.15 or 24.035. See, e.g. Anderson v. State, 190 S.W.3d 28(Mo. bane

2006)(Post-conviction relief motion filed pursuant to Rule 29.15 in death sentence

case overruled by circuit court and reversed and remanded by supreme court for

re-trial of penalty phase.) And, in State ex rel. Bailey v. Fulton, 659 S.W.3d 909

(Mo. bane 2023 ), the Supreme Court recently held, "As previously stated,

6

however, like motions filed under Rules 29.15 and 24.035, a motion to vacate or

set aside a conviction under '§ 547.031 is a new civil action' representing a

'collateral attack on the conviction and sentence'" (quoting, State v. Johnson,

supra 654 S.W.3d at 891 n.10).

Accordingly,§ 547.031 does not conflict with any of the Supreme Court

rules cited by the Attorney General (24.035; 29.15; 29.08(d); 30.30(b); or

91.02(b)), because it is a legislatively created additional means for a prosecutor to

collaterally attack the judgment and sentence under a narrow set of circumstances.

For the foregoing reasons Attorney General's Motion to Dismiss is hereby

DENIED.

FINDINGS OF FACT

1. More than twenty-six years ago, on August 11, 1998,Williams murdered

F.G.. State v. Williams, 97 S.W.3d 462, 466 (Mo. bane 2003).

2. After a 14-day trial, a jury convicted Williams of one count each of first­

degree murder, first-degree burglary, and first-degree robbery, and two

counts of armed criminal action. Id. This Court sentenced Williams to

death for the first-degree murder conviction. Id.

3. While the Court has reviewed all of the relevant court records, the principle

cases affirming Williams' convictions and sentences are as follows:

Trial:

State y. Williams, 99CR-005297 (Judge Emmett O'Brien St. Louis County

Circuit Court 21st Judicial Circuit);

Direct Appeal:

State v. Williams, 97 S.W.3d 462 (Mo. bane 2023);

Direct Appeal Petition of Certiorari:

Williams v. Missouri, 539 U.S. 944 (2013);

Post-Conviction Motion Court Proceedings:

Williams v. State, 03CC-2254 (Judge Emmett O'Brien St. Louis County

Circuit 21st Judicial Circuit);

Post-Conviction Appeal:

Williams v. State, 168 S.W.3d 433,438 (Mo. bane 2005);

2015 State Petition for Writ of Habeas Corpus:

7

Williams v. Steele, SC94720 (Mo.);

2017 State Petition for Writ of Habeas Corpus:

Williams v. Larkin, SC96625 (Mo.);

Declaratory Judgment Action:

State ex rel. Parson v. Walker, 690 S.W.3d 477 (Mo. bane 2024).

4. Following the unanimous opinion denying Williams' appeal and affirming

this Court's judgment of conviction, Williams, at 466, 475, Williams

petitioned the United Supreme Court for a writ of certiorari to review the

decision of the Supreme Court of Missouri affirming the circuit court's

judgment of conviction. Williams, 539 U.S. at 944. The petition was

denied. Id.

5. Williams then filed a motion for post-conviction relief under Supreme

Court Rule 29.15. Williams, 168 S.W.3d at 139. In his amended motion

Williams asserted in excess of thirteen claims for post-conviction relief. Id.

at 438-47. The motion court denied Williams' motion for post-conviction

relief. Id. at 439. The Missouri Supreme Court, in a unanimous opinion,

affirmed the circuit court's denial of Williams' post-conviction motion. Id.

at 447.

6. Williams then filed a petition for a writ of habeas corpus in the United

States District Court for the Eastern District of Missouri. Resp. Ex.2.

7. After the federal District Court initially granted Williams' habeas relief, the

United States Court of Appeals for the Eighth Circuit reversed the District

Court's judgment and denied Williams' federal habeas relief. Williams v.

Roper, 695 F.3d 825, 839 (8th Cir. 2012).

8. Williams petitioned the United States Supreme Court for a writ of certiorari

to review the decision of the United States Court of Appeals for the Eighth

Circuit denying his petition for a writ of habeas corpus. Williams v. Steele,

571 U.S. 839 (2013).

9. On December 17, 2014, the Missouri Supreme Court issued an execution

warrant scheduling Williams to be executed on January 28, 2015.

10. On January 9, 2015, Williams filed a petition for a writ of habeas corpus in

the Missouri Supreme Court. Resp. Ex. 1-1. Williams alleged that further

DNA testing could demonstrate that he was innocent of the murder ofF.G..

8

11. The Missouri Supreme Court appointed a special master to "insure DNA

testing of appropriate items at issue in this cause and to report to this Court

the results of such testing." Res. Ex. I-14 at 2.

12. On January 31, 2017, after reviewing the special master's report, the

Supreme Court of Missouri denied Williams' petition for a writ of habeas

corpus. Resp. Ex. I-15 at 1.

13. On April 20, 2017, the Supreme Court of Missouri issued an execution

warrant scheduling Williams to be executed on August 22, 2017. Resp. Ex.

K3 at 2.

14. Williams sought review of the Supreme Court of Missouri's denial by

filing a petition for a writ of certiorari with the United States Supreme

Court. On June 26, 2017, the petition was denied. Williams v. Steele, 582

U.S. 937 (2017).

15. On August 14, 2017, Williams filed another petition for a writ of habeas

corpus in the Supreme Court of Missouri. Resp. Ex. N-1.

16. On August 15, 2017, the Supreme Court of Missouri denied Williams'

petition for a writ of habeas corpus. Resp. Ex. N-5.

17. William again sought review of the Supreme Court of Missouri's denial by

filing for a writ of certiorari with the United States Supreme Court.

Williams v. Larkin, 583 U.S. 902 (2017). On October 2, 2017, the petition

was denied. Id.

18. On August 22, 2017, former Governor Eric Greitens issued Executive

Order 17-20, which included an executive stay of Williams' execution and

created a board of inquiry to investigate Williams' conviction. It is

unknown whether the Board of Inquiry reached a conclusion or issued a

report or recommendation.

19. On June 29, 2023, some 5 years and 10 months after former Governor

Greitens issued his executive order, Governor Michael L. Parson issued

Executive ·order 23-06, which dissolved the board and lifted the exJcutive

stay of Williams' execution.

20. On June 30, 2023, the Attorney General filed a renewed motion to set

Williams' execution date in the Supreme Court of Missouri. Resp. Ex. P-1.

9

21. On August 23,2023, Williams filed a petition for declaratory judgment in

the Cole County Circuit Court,naming Governor Parson and the Attorney

General as defendants. Resp. Ex. Q-1.

22. After the Cole County Circuit Court denied Governor Parson's motion for

judgment on the pleadings,Governor Parson sought a permanent writ of

prohibition or,in the alternative,a permanent writ ofmandamus from the

Supreme Court ofMissouri directing Judge S. Cotton Walker, Circuit Judge

of Cole County Circuit Court,to grant the motion for judgment on the

pleadings. Resp. Ex. Q-14.02.

23. After briefing and argument, the Supreme Court of Missouri made its

preliminary writ ofprohibition permanent on June 4, 2024,and directed

Judge Walker to grant Governor Parson's motion for judgment on the

pleadings. Resp. Ex. Q-14.17.

24. Clemency gives the Governor the power to extend mercy to prisoners,but

it is not another round ofjudicial review. See Ohio Adult Parole Authority

v. Woodard, 523 U.S. 272,284 (1998). Missouri's Constitution gives

Governor Parson the sole power to decide how he will consider clemency

applications and whether he will grant them. Governor Parson can grant

clemency "for whatever reason or for no reason at all." Olim v.

Wakinekona, 461 U.S. 238,250 (1983).

25. On January 26,2024, Movant filed a motion under§ 547.031 R.S.Mo.

2021, to vacate the first-degree murder conviction and death sentence of

Marcellus Williams.

26. Four claims were raised: (1) that Williams may be actually innocent of

first-degree murder; (2) that Williams' trial counsel provided ineffective

assistance in failing to better impeach two witnesses for the State who

testified that Williams confessed to them; (3) that Williams' trial counsel

provided ineffective assistance in failing to present different mitigating

evidence "contextualizing" Williams "'troubled background"; and (4) that

the State committed Baston v. Kentucky, 476 U.S. 79 (1986) violations by

allegedly exercising preemptory strikes of jurors on the basis ofrace.

27. It is ofutmost importance to this Court,that in denying Williams' motion

to withdraw the most recently issued execution warrant, the Missouri

Supreme Court held that it has already considered and rejected these four

claims. State ofMissouri v. Williams,2024 WL 3402597 at 3 n.3.

28. During the pendency ofthis case,the parties received a DNA report dated

August 19, 2024,from Bode Technology. Resp. Ex. FF. That report

indicated that Bode Technology had developed DNA profiles from Keith

Lamer (the assistant prosecuting attorney now retired who prosecuted

Williams' criminal case), and Edward Magee (a former investigator for the

St. Louis County Prosecuting Attorney's office). The August 19, 2024

report, when reviewed in conjunction with the previous DNA reports from

the handle ofthe knife used in the murder ofF.G., indicated that the DNA

material on the knife handle was consistent with Investigator Magee

(matching 15 of15 loci found by Fienup, who did the DNA testing on the

knife handle), and 21 of21 loci found by Dr. Norah Rudin in her

subsequent review ofFienup's results. Resp. Ex. 1-13.27 at 4 & Resp. Ex. 1-

13.29 at 20-23. Rudin and Fienup were Williams' retained experts. Resp.

Ex. 1-13.25 at 1; Resp. Ex 1-13.29 at 2.

29. This new evidence_ is not consistent with the Movant's theory that the

results found by testing the knife handle for Y-STR "touch DNA" in 2015

matched or could match an unknown person or that the results could

exculpate Williams.

30. In addition, the report is consistent with trial testimony by a crime scene

investigator, who indicated that the suspect wore gloves.

31. On August 21, 2024, the date on which the evidentiary hearing was

originally scheduled, Movant and Williams entered into a consent judgment

vacating Williams' first-degree murder conviction and death sentence in

exchange for a North Carolina v. Alford 400 U.S. 25 (1970) plea to first­

degree murder in exchange for a sentence oflife without parole.

32. The Attorney General objected after participating in discussions with this

Court, which included a phone conversation with a member ofF.G.'s

family.

33. The Missouri Supreme Court issued a preliminary writ ofprohibition

overturning the consent agreement and Alford plea and directing this Court

to conduct a hearing in this matter.

34. On August 25, 2024, Movant filed a motion for leave to amend the motion

to vacate or set aside in an attempt to advance two additional claims:. Claim

5 alleged a claim of bad-faith evidence destruction under Arizona v.

Youngblood, 488 U.S. 51 (1998). Claim 6 asserted a claim that the original

trial judge's denial ofa motion for a continuance violated Williams' right to

due process.

35. Over the State's objection, this Court granted Movant leave to amend the

motion to advance the Youngblood claim (Claim 5) ofbad-faith destruction

11

of fingerprints and bad-faith destruction of DNA evidence on the handle of

the knife that was used in the murder ofF.G.. This Court denied Movant's

motion for leave to amend as to the claim of a violation of due process

through the denial of a continuance (Claim 6). The Missouri Supreme

Court held that the trial court did not abuse its discretion in denying the

continuance. Williams v. State, 168 S.W.3d 433, 444-45. Under the law of

the case doctrine, the decision of a court is the law of the case for all points

presented and decided. State v. Graham, 13 S.W.3d 290 (Mo. bane 2000).

AUGUST 28, 2024 HEARING FINDINGS

36. The Prosecuting Attorney called six witnesses in support of its Motion to

vacate, including expert David Thompson; Judge Joseph L. Green,

Williams' lead penalty phase counsel at his original trial; Dr. Charlotte

Word, an expert witness in DNA testing; Judge Christopher E. McGraugh,

Williams' lead guilt phase counsel at his original criminal trial; Prosecutor

Keith Larner, the prosecuting attorney at Williams' original criminal trial;

and Patrick Henson, an investigator for Movant's Conviction and Incident

Review Unit.

DAVID THOMPSON

37. Thompson testified over the State's objection concerning the reliability of

witnesses H.C. and L.A. Hrg. Tr. At 25-64.

38. Thompson concluded, based upon evidence-based standards, that H.C. and

L.A. gave unreliable information to investigating officers. Id.

39. Thompson acknowledges that he did not review the trial transcript, which

included the trial testimony of the officers who interviewed H.C. or L.A., or

the trial testimony ofH.C. or L.A. themselves. Id. 53-55. Had he done so

he would have had the opportunity to confirm trial counsels' exemplary

efforts to discredit the testimony ofH.C. and L.A in the presence of the

jury. Despite trial counsels' efforts the jury found the testimony ofH.C.

and L.A. credible.

40. Thompson's testimony does not aide in deciding the issues currently before

this Court.

The Hon. Joseph L. Green

41. Judge Green testified that roughly one month before the Williams' trial, he

was co-counsel in another capital case representing Ken Baumruk, who was

also tried in the 21st Judicial Circuit. Id. at 69. He participated in a half-day

12

sentencing proceeding in the Baumruk capital case during Williams' trial.

Id. at 69-70.

42. Judge Green testified, which is supported in the record from the trial, his

complaints about the prosecutor's purported failure to disclose information

and evidence in a timely manner, including witness notes and the mental

history ofH.C and Williams' MDOC records that were used by the State in

the penalty phase. These issues were memorialized in a Verified Motion for

Continuance and a Supplemental Motion for a continuance filed and: argued

on the record and denied by the trial court. Id. at 78-79.

43. Judge Green testified that he did not recall one way or the other whether

anyone touched the knife without gloves during trial. Id. at 82-83.

44. This Court finds that Judge Green testified earnestly, compassionately,

honestly, and to the best of his recollection, but as he admitted his memory

was better at the time he testified in Williams' post-conviction relief case in

2004.

45. Despite Judge Green's testimony that he believes Williams "did not get our

best". Id. at 82, this Court disagrees. Based upon review of the trial

transcript, PCR transcript, and Judge Green's affidavit, Judge Green

without reservation performed his duties as trial counsel in an exemplary

fashion.

46. Judge Green's testimony before this Court does not support either of the

claims of ineffective assistance of counsel raised in Movant's motion to

vacate, which were already rejected by the Supreme Court of Missouri.

Williams, 168 S.W.3d at 440-42 (rejecting claim that counsel was

ineffective for not better investigating and impeaching H.C. and L.A.), 443

(rejecting claim that counsel was ineffective for not presenting more; or

different mitigation evidence).

47. With respect to Movant's motion to amend his motion regarding th� trial

court's denial of the motion for continuance which this Court denie4� the

Missouri Supreme Court has already found that the trial court did not abuse

its discretion in denying a continuance. Id.

Dr. Charlotte Word

48. Dr. Word, an expert witness in DNA testing, testified for Movant, Hrg. Tr.

At 98-152. This Court finds that Dr. Word's testimony established three

important facts, none of which were helpful to Movant.

13

49. First, the DNA material found on the knife handle likely belongs to

Investigator Magee (and also possibly Lamer), and not to some other yet

identified individual alleged by Williams and Movant to actually be

responsible for the murder ofF.G.. Id. at 152.

50. Second, if DNA material from the murderer was ever present on the knife

handle, any such material could have been removed by individuals

subsequently touching the knife handle without gloves. Id. at 152-53.

51. Third, Dr. Word has no idea what the procedures for evidence handling

were in the St. Louis Prosecuting Attorney's Office, or in any crime lab for

any St. Louis law enforcement entity at the time of the investigation into

F.G.'s murder or at the time of Williams' trial. Id. at 151.

52. This Court finds that Dr. Word's testimony did not bolster Movant's claim

of actual innocence.

53. Movant claimed that the DNA material of the "actual" killer was on the

knife handle. This theory was clearly refuted by Dr. Word's testimony. In

addition, Dr. Word's testimony provides no support for the theory of bad­

faith destruction of evidence. State v. Deroy, 623 S.W.3d 778, 791 (Mo.

App. E.D. 2021).

Judge Christopher E. McGraugh

54. Judge Christopher E. McGraugh is a circuit judge for the City of St. Louis

and was Williams' lead guilt-phase counsel along with the Hon. Joseph

Green. Hrg. Tr. at 158-66.

55. Judge McGraugh testified he does not remember anyone touching the

evidence "outside the evidence bag" without gloves. Id. at 162.

56. Judge McGraugh testified that he was not told prior to trial that an

"investigator" had been handling the knife without gloves. Id. at 164.

57. This Court finds that Judge McGraugh testified credibly as to his

recollection of events. But the Court notes that he had difficulty

remembering the events of the trial in 2001, roughly twenty-three years

ago. Resp. Ex. D-1 at 47-48, 50, 59, 63, 67, 71, 83. This Court also finds

that his memory, that no one handled the knife without gloves, is not

consistent with the record and the evidence before this Court, including the

fact that he was present in the courtroom when the knife handle was held

without gloves. Resp. Ex. A at 2262-64, 2314.

14

Keith Larner

58. Keith Larner was the lead prosecutor in the Marcellus Williams case. Hrg.

Tr. at 166-67. Larner testified that the two- informant witnesses, H.C and

L.A., were the "strongest" witnesses he ever had in a murder case. Id. at

172. Larner testified that H.C. knew things that only the killer could know.

Id. at 239. Larner testified that H.C. knew the knife was jammed into

F.G.'s neck, that the knife was twisted, and that the knife was left inF.G.'s

neck when the murderer left the scene, details which were not public

knowledge. Id.

59. Larner testified that L.A. was "amazing." Id. Larner testified that she led

police to where Williams pawned the computer taken from the residence of

the murder scene, and that the person there identified Williams as the

person who pawned it. Id. at 240. Larner testified that L.A. also led police

to items stolen in the burglary in the car Williams was driving at the time of

the murder. Id. at 240-41.

60. Larner testified that he knew from talking to Detective Vaughn Creach that

the killer wore gloves. Id. at 183-85.

61. Larner testified that he believed it was appropriate to handle the knife

without gloves after the crime laboratory had completed their testing, after

he was informed that no one wanted any more testing on the knife, and

after he was informed the laboratory found there were no fingerprints and

nothing to link any individual to the crime. Id. at 192-93.

62. Larner testified he handled the knife without gloves at least five times prior

to trial. Id. at 180-87. He showed the knife to four witnesses (two

detectives, F.G.'s husband, and the medical examiner) and affixed an

exhibit sticker on the knife for use at trial. Id. at 180-81.

63. Larner testified credibly that he had never heard of touch DNA in 2001 and

probably did not hear of it until 2015. Id. at 241. Larner testified that the

standard procedure in the St. Louis Prosecuting Attorney's Office at the

time of Williams' trial was not to wear gloves when handling fully tested

evidence because there was no reason to. Id.

64. Larner testified that he did not open untested fingernail clippings at trial

without gloves because he did not want to contaminate them. Id. at 246.

65. Larner recalled that he had used three peremptory challenges on African

Americans because the Missouri Supreme Court opinion listed three Baston

challenges addressed in Williams' direct appeal. Id. at 220. The additional

15

3 preemptory strikes of Black jurors were not challenged in William�'

direct appeal. State v. Williams, 97 S.W.3d 462, 471-72 (Mo. bane 2003).

66. Lamer denied systematically striking potential Black jurors or asking Black

jurors more isolating questions than White jurors.

67. This Court finds that Larner had a good faith basis and reasons for handling

the knife without gloves, despite Dr. Word's testimony that agencies that

collected evidence at or near the time of this murder knew about the

importance of properly collecting evidence to preserve any biological

substance. (PA's Ex.80).

Patrick Henson

68. This Court heard testimony from Patrick Henson, an investigator for

Movant's Conviction and Incident Review Unit. Hrg. Tr. at 263-71.

69. Henson testified that he did not find Lamer's notes from jury selection in

the file retained by the St. Louis Prosecuting Attorney's Office during his

review of the file sometime in 2024. Id. at 266.

70. Henson testified he had no knowledge of where or how long the file was

stored, nor what the file did, or did not contain, at anytime prior to 2024. Id.

at 268.

71. Henson reviewed the Williams file and did not find any notes from the

prosecutor pertaining to voir dire. Id. at 265-66.

72. Henson also testified that he never reviewed the State's trial exhibits,

which were in the possession of the Missouri Supreme Court, and that no

attorney from Movant's office ever asked him to retrieve those exh�bits. Id.

at 270-72.

73. This Court finds that Henson testified credibly and to the best of his ability,

but that his limited knowledge of relevant facts with what procedures were

in place for file retention during the years in question, undercuts the

probative value of his testimony as to any issue presently before this Court.

CONCLUSIONS OF LAW

This Court makes the following conclusions of law:

74. In his first claim on behalf of Williams, Movant asserts that Williams'

"may be" actually innocent of first-degree murder. Mot. at 29-36.

16

75. Generally, in support of his claim that Williams is innocent, Movan(

alleged that DNA testing excludes Williams as the person whose DNA was

found on the knife used in the murder. Mot. 22-24; that members ofH.C.'s

family would provide testimony that H.C. is a liar and "known" informant,

Mot. at 24; that L.A.'s friends would provide testimony that she is a liar

and "known informant[,]" Id.; and that G.R., to whom the stolen laptop

was sold, was prevented "from testifying about where he learned Mr.

Williams obtained the laptop." Id at 35.

76. Prior to the enactment of§ 547.031, offenders who were sentenced to death

could raise a freestanding claim of innocence in the Supreme Court of

Missouri. State ex rel. Armine v. Roper, 102 S.W.3d 541, 547 (Mo. bane

2003). Williams asserted such a claim before the Supreme Court of

Missouri. Williams v. Steele, SC94720 (Mo. 2017), Resp. Ex. I-1 at 6. The

Supreme Court of Missouri has heard the majority of the DNA evidence

Movant now asks this Court to consider, with the exception of the recent

DNA results that weakens Movant's claim and demonstrates that

Investigator Magee is the likely source of the DNA on the knife. Fmther,

the Supreme Court has already denied that claim. Williams 2024 WL

3402597 at 3 n.3. Further, the Supreme Court of Missouri has already

determined that the other evidence underpinning Movant's first claim

allegations of the existence of impeachment material concerning H.C. and

v.

L.A. was at least in part not admissible at Williams' trial. Williams State,

168 S.W.3d 433, 439-42 (Mo. bane 2005). The same is true about tµe self­

serving hearsay concerning the location of the laptop. Williams v. State, 97

S.W.3d 462, 468-69 (Mo. bane 2003).

77. In his second claim on behalf of Williams, Movant asserted that Williams'

trial counsel provided ineffective assistance of counsel by failing to,

investigate and impeach witnesses H.C and L.A .. Mot. at 41-43. Williams

has raised these claims before. The Supreme Court of Missouri rejected

Williams' claims that his counsel provided ineffective assistance regarding

investigating and impeaching H.C. and L.A .. Id. at 440-43. After

considering the entire record, the Supreme Court of Missouri denied each

of these claims. Id.

78. In his third claim, Movant alleges on behalf of Williams that penal�y-phase

counsel provided ineffective assistance by not presenting a penalty-phase

defense based on Williams' allegations that he experienced an abusive

childhood. Mot. at 44-53.

79. At the post-conviction hearing, Judge Green testified that it was the trial

team's defense strategy to present Williams in a positive light as a person

who had good qualities and was a positive influence on his children, rather

17

than an "inhuman beast," and to combine that strategy with a residual doubt

strategy. Resp. Ex. D-1 at 122-23.

80. Once again Williams presented this claim to the Supreme Court of

Missouri during his Rule 29.15 post-conviction proceedings. Williams v.

State, 168. S.W.3d 433, 443 (Mo. bane 2005). And, as with the other

claims, the Supreme Court ofMissouri denied Williams' claim of

ineffective assistance and affirmed the motion court's decision that

presenting an abusive childhood strategy would have been contrary to the

chosen defense strategy and would not have changed the outcome. Id. The

Court went on to hold that the motion court did not clearly err in denying

this claim without an evidentiary hearing. Id.

81. In relation to claims two and three, the Missouri Supreme Court ha�

already rejected these claims when it considered them under Strickland v.

Washington, 466 U.S. 668 (1984). Movant cannot repackage these claims

into actual innocence claims to receive relieffor Williams, especially when

the actual innocence standard is much harder to meet than the Strickland

prejudice standard. Id. at 703.

82. In his fourth claim, Movant alleges two Baston challenges on behalfof

Williams. Mot. at 53-63. Specifically, Movant alleges that the State

exercised discriminatory peremptory strikes oftwo members ofthe·venire.

Venireperson 64 and Venireperson 65. Mot. at 53-62.

83. The Supreme Court ofMissouri rejected Williams' Baston challenges to

these same venirepersons on direct appeal. State v. Williams, 97 S.W.3d

462, 471-72. The Supreme Court ofMissouri found that the State had

provided race neutral reasons to support its strikes ofVenirepersoll'64, Id.,

and Venireperson 65. Id. at 472.

84. Our Missouri Constitution vests the State's judicial power in "a supreme

court, a court ofappeals ... and circuit courts." Mo. Const. art. V, § 1. It

further provides, "The supreme court shall be the highest court in the

state .... Its decisions shall be controlling in all other courts." Mo. Const.

art. V, § 2; see also State ex rel. Strong v. Griffith, 462 S.W.3d 732, 734

(Mo. 2015) (stating that it is not appropriate to raise a post-conviction claim

in habeas corpus that the court has already rejected in ordinary course).

This Court, therefore, cannot reverse, overrule, or otherwise decline to

follow the previous decisions ofthe Supreme Court ofMissouri th�t

populate the long procedural history in Williams' case. See Mo. Const. rt.

V. § 2; see also Strong, 462 S.W.3d at 734.

18

85. Because Movant's first, second, third, and fourth claims before this Court

have previously been denied by the Supreme Court of Missouri when the

very same claims were raised by Williams in his § 547.031 motion, this

Court must now deny them. See State v. Williams, 2024 WL 3402597 at 3

n.3; see also State v. Johnson, 654 S.W.3d 883, 891-95 (Mo. 2023).

86. Movant's fifth claim in his amended motion which this Court granted leave

to file shortly before the hearing, over the States objection, alleged that the

State had engaged in bad-faith destruction of evidence under Arizona v.

Youngblood, 488 U.S. 1051 (1988).

87. Movant alleged that the bad faith destruction of evidence occurred when

police destroyed fingerprint lifts determined to be without evidentiary

value, and when the prosecutor and his investigator touched the handle of

the murder weapon without wearing gloves.

88. The United States Supreme Court has "held that when the Sta�e suppresses

or fails to disclose material exculpatory evidence, the good or bad faith of

the prosecution is irrelevant: a due process violation occurs whenever such

evidence is withheld." Illinois v. Fischer, 540 U.S. 544, 547 (2004). "[I]n

Youngblood, by contrast, [the Court] recognized that the Due Process

Clause 'requires a different result when [a court] deal[s] with the failure of

the State to preserve evidentiary material of which no more can be said than

that it could have been subject to tests, the results of which might have

exonerated the defendant." Id. quoting Youngblood, 488 U.S. at 57). The

Court stated that the "failure to preserve this potentially useful evid.ence

does not violate due process 'unless a criminal defendant can show bad

faith on the part of the police. "'Id. at 547-48.

89. Our state courts have similarly applied Youngblood, finding that when the

State fails to preserve evidence that "might have exonerated the defendant

[,]" a defendant must show that the State acted in "bad faith" in order to

establish a due process violation. State v. Deroy, 623 S.W.3d 778, 790 (Mo.

App. 2021). When the State acts in good faith in accordance with its

normal practice, no due process violation lies when potentially useful

evidence is destroyed. Id. at 791. The requirement to show that bad faith

has no exceptions. See Id. (citing cases from the Missouri Supreme Court

holding that there is a bad faith requirement and holding that those cases

must be followed).

90. Movant and Williams have made arguments before this Court indicating

that the knife handle was central to the State's case or that, without

additional unblemished testing, Williams has no avenue to prove his actual

innocence. The United States Supreme Court has specifically refuted

19

similar arguments that have also attempted to change or remove the bad

faith requirement of Youngblood. See Illinois v. Fisher, 540 U.S. at 547.

91. Here, neither Movant nor Williams presented any evidence from which this

Court could find that the State destroyed potentially useful evidence in bad­

faith, let alone clear and convincing evidence of the same.

92. The record before this Court refutes the allegation of bad-faith destruction

of latent fingerprints. Indeed, the trial transcript indicates that latent

fingerprints of insufficient quality for comparison were destroyed. Resp.

Ex. A at 95-96, 3241. Specifically, Detective Thomas Krull testified that

he received fingerprint lifts that were of insufficient quality to be used for

comparison and those were destroyed after it was determined that the lifts

were useless. Id. at 2324, 2340-41. No evidence was presented that this was

done in bad faith. Because Movant has failed to met his burden ofproof,

this Court finds the claim of bad-faith destruction of fingerprint evidence to

be without merit.

93. In addition, Movant did not carry his burden to demonstrate bad-faith

destruction ofwhatever genetic material, if any, was present on the handle

ofthe murder weapon prior to the knife handle being touched by Larner,

Investigator Magee, and any other individuals.

94. Larner testified that he believed it was appropriate to handle the knife

without gloves after the crime laboratory had completed their testing, he

was informed that no one wanted any more testing on the knife, an1 the

laboratory found there were no fingerprints and nothing on the knife to link

any individual to the crime. Id. at 192-93. Larner stated that this belief was

bolstered by the information provided by Detective Creach indicating that

the killer had worn gloves, which, in turn was supported by the testimony

ofH.C. Id. at 192-93.

95. Larner testified that he carried the knife around without gloves dur,ing

Williams' trial and handed it to a witness who was not wearing gloves and

"[n]o one said anything." Id. at 247.

96. This Court finds that Larner testified credibly concerning the touching of

the knife and that his testimony, as well as the other evidence in the state

court record, refutes a claim that he, or any other State-actor, acted in bad

faith by touching the knife handle without gloves and Movant's theory has

no probative value.

97. Because Movant failed to prove his claim by clear and convincing

evidence, this Court finds Movant's fifth claim to be without legal merit.

20

See Fisher, 540 U.S. at 547-48; see also Youngblood, 488 U.S. at 57-58;

Deroy, 623 S.W.3d at 790. Movant's fifth claim is denied.

98. The State argues that Movant is judicially estopped from proceeding on

Movant's first claim, which alleges Williams may be actually innocent of

first-degree murder. This Court rejects this argument as the State has failed

to show that Movant' s position is clearly inconsistent with his earlier

position. In addition, Movant's attempt to enter an Alford plea did not

create an unfair advantage or impose an unfair detriment on the State if not

estopped. Vacca v. Mo. Dep 't ofLabor & Ind. Reis., 575 S.W.3d 233, 236-

37 (Mo. 2019).

99. "To make a free-standing claim of actual innocence, [Movant] must make a

clear and convincing showing of [Williams'] innocence. State ex re{.

Dorsey v. Vandergriff, 685 S.W.3d 18, 25 (Mo. 2024). Clear and

convincing evidence "instantly tilts the scales in the affirmative when

weighed against the evidence in opposition, and the fact finder's mind is

left with an abiding conviction that the evidence is true." Id. (quoting

Armine, 102 S.W.3d at 548). In Dorsey, the Supreme Court of Missouri

found that new expert opinions that Dorsey could not deliberate did not

meet this test in light of the facts of the crime. Id. at 25-26.

100. The Supreme Court of Missouri has emphasized that the first step in

actual innocence analysis is considering whether the "new" eviden�e is new

in the sense that it was "not available at trial." State ex rel. Barton v.

Stange,597 S.W.3d. 661 n.4 (Mo. 2020); accord Dorsey, 685 S.W.3d at 24-

25 (Both gateway and freestanding claims of actual innocence require "new

evidence to support the claim that was not available at trial ...."). Other

appellate courts have expressed a similar requirement. State ex rel. Nixon v.

Sheffield, 272 S.w.3d 277, 284-85 (Mo. App. 2008) (stating evidence is

only "new" if not available at trial and could not have been discovered

through the exercise of due diligence.) Additionally, when considering

whether excluded evidence supports innocence only, evidence "tenably

claimed to have been wrongfully excluded" may be considered in a claim

of innocence. Schlup v. Delo, 513 U.S. 298,328 (1995).

101. A claim that cannot meet the gateway standard of showing by a

preponderance of the evidence that no reasonable juror would convict in

light of new evidence, necessarily cannot meet the higher freestanding

innocence standard of proof by clear and convincing evidence. Barton, 597

S.W.3d 661, 665 (Mo. 2020) ("Because the evidence is insufficient to make

a gateway claim of actual innocence by a preponderance of the evidence, it

necessarily is also insufficient to support a freestanding claim of actual

innocence, which requires clear and convincing evidence of actual

21

innocence."); State ex rel. McKim v. Cassady, 457 S.W.3d 831, 843 (Mo.

App. 2015).

102. Here, Movant's evidence regarding Williams' freestanding innocence

claim fails.

103. As herein above described, the freestanding innocence claim pied in

Movant's original motion unraveled during the pendency of this case, when

the parties received a DNA report, dated August 19, 2024, from Bode

Technology. Resp. Ex. FF.

104. In light of this report, Movant cannot demonstrate that the genetic.

material on the knife handle can form a basis for "a clear and convincing

showing" of Williams' innocence. Dorsey, 685 S.W.3d at 25. Movant

failed to present "clear and convincing evidence of actual innocence ...that

undermines the confidence in the judgment [,] and his claim must be

denied.§ 547.031.3 R.S.Mo.

105. Movant's remaining evidence amounts to nothing more than re-packaged

arguments about evidence that was available at trial and involved in

Williams' unsuccessful direct appeal and post-conviction challenges. That

repackaged material cannot form the basis for relief under§ 547.031.3 or

theArmine standard. See Johnson, 554 S.W.3d at 895 (denying a stay for

claims that were "largely just re-packaged versions of claims [the convicted

individual] ha[d] brought (and seen rejected) many times before"); see also

Barton, 597 S.W.3d at 664 n.4 (describing the required threshold showing

that the proffered evidence is new).

106. As stated above, in support of his claim of innocence on behalf of

Williams, Movant alleged that members ofH.C.'s family would provide

testimony that H.C. is a liar and "known informant." Mot. at 24. Movant

alleges that L.A.'s friends would provide testimony that she is a liar and

"known informant." Id. Movant further alleged that G.R., to whom the

stolen laptop was pawned, was prevented by objection "from testifying

about where he learned Mr. Williams obtained the laptop." Id. at 35.

Movant asserted that Williams "had not himself secured the laptop, but

rather had gotten it from his 'girl'[L.A.]." Id. Movant alleges that this

information makes a clear and convincing showing of actual innocence. It

does not.

107. None of this evidence is "new" as it was available at tria�. And, in relation

to the evidence found to be inadmissible by the Missouri Supreme Court,

Movant cannot now claim that the purported evidence was wrongfully

excluded under Missouri law because the Missouri Supreme Court, the

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highest authority on Missouri law, has held that the evidence was properly

excluded. Mo. Const. art. V,§ 2; Schlup, 513 U.S. at 328.

108. Movant alleged in his motion that Williams' trial counsel provided

ineffective assistance in not presenting the evidence he inconsistently

alleged was new. See Mot. at 29-36, 36-43. But setting that aside, the

record demonstrates that the evidence allegedly impeaching H.C. and L.A.

was available at the time of trial. See Williams v. State, 168 S.w.3d at 440-

42. And Movant's assertions that L.A.'s purported unreliability, "was

similarly not presented to the jury [,]" Mot. at 34, is summarily refuted by

the Supreme Court of Missouri. See Williams v. State, 168 S.W.3d at 441.

In denying Williams' ineffective-assistance-of-counsel, the Supreme Court

of Missouri stated: "As the motion court correctly found, this testimony

would have been cumulative to the evidence at trial because the record

contained evidence of [L.A.]'s drug addiction, prostitution, and that she

might receive reward money for testifying at trial. Counsel will not be

found ineffective for deciding not to introduce cumulative evidence'." Id.

109. As for G.R.'s laptop testimony, the Supreme Court of Missouri found the

circuit court properly excluded the evidence as self-serving hearsay. State v.

Williams, 97 S.W.3d at 468. Movant has not explained why this Court

should now consider evidence that remains inadmissible in considering

whether Williams has made a showing of innocence, and this Court may

not second-guess the Supreme Court of Missouri's ruling on the issue of

admissibility. See Mo. Const. art. V,§ 2; see also Strong, 462 S.W.3d at

734.

110. Further, contrary to Movant's argument that the jury did not hear this

evidence, the Missouri Supreme Court, in discussing the rule of

completeness objection from Williams, found that, "Williams was not

precluded from showing that [L.A.] once had possession of the laptop. He

introduced evidence from two witnesses who said they saw [L.A.] with the

laptop during the summer of 1998." State v. Williams, 97 S.W.3d at 468-69.

The substance of the evidence concerning G.R. was before the jury in

Williams' trial and they nevertheless found him guilty. Id. Thus Movant

cannot now use that same evidence to mount a freestanding innocence

challenge. Barton, 597 S.W.3d at 664 n. 4; Sheffield, 272 S.W.3d at 284-85.

111. Movant's remaining evidence in support of Williams' claim of

freestanding innocence amounts to nothing more than old evidence, self­

serving hearsay, and evidence the jury could never hear. The evidence

presented fails under the standard enumerated in§ 547.031.3 or in Amrine.

Movant has failed to demonstrate any basis for this Court to find Williams

actually innocent of first-degree murder.

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112. As the Supreme Court of the United States recognized nearly fifty ,years

ago, the trial occupies a special role in our constitutional tradition:

A defendant has been accused of a serious crime and this is the time

and place set for him to be tried by a jury of his peers and found

either guilty or not guilty by that jury. To the greatest extent possible

all issues which bear on this charge should be determined in this

proceeding: the accused is in the court-room, the jury is in the box,

the judge is on the bench, and the witnesses, having been

subpoenaed and duly sworn, await their turn to testify. Society's

resources have been concentrated at that time and place in order to

decide, within the limits of human fallibility, the question of guilt or

innocence of one of its citizens.

Wainwright v. Sykes, 433 U.S. 72, 90 (1977).

113. Every claim of error Williams has asserted on direct appeal, post-,

conviction review, and habeas review has been rejected by Missouri's

courts.

114. There is no basis for a court to find that Williams is innocent, and no

court has made such a finding. Williams is guilty of first-degree murder,

and has been sentenced to death.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that:

Movant's motion to vacate or set aside Williams' conviction and sentence

is hereby DENIED.

Honorable Bruce F. Hilton

Circuit Judge, Division 13

September 12, 2024

Cc: Attorneys of record e-filed pursuant to Rule 103

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