Submitted: February 9, 2016
from United States District Court for the Western District of
Missouri - Springfield
RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.
2008, a Missouri jury convicted Zackary Stewart of murdering
David Dulin. On appeal, Stewart argued the trial court erred
in denying his motion for new trial based on newly-discovered
evidence. The Supreme Court of Missouri agreed, reversed the
conviction, and remanded for a new trial. State v.
Stewart, 313 S.W.3d 661 (Mo. banc 2010). The charges
were dropped when another person confessed to the murder.
Stewart then filed this civil damage action against five
individuals and Stone County, Missouri, asserting various
claims under 42 U.S.C. § 1983 and Missouri state law.
Defendants moved for summary judgment. The district court
granted summary judgment and dismissed Stone County, the
County Sheriff, and the Sheriff's criminal investigation
supervisor. The court denied the motions of Stone County
Prosecutor Matt Selby, lead investigator Karl Wagner, and
investigator Orville Choate, who has not appealed, rejecting
their claims of absolute, qualified, and official immunity.
Selby and Wagner appeal. We reverse in part and remand.
Jurisdiction and the Issues on Appeal.
interlocutory order denying qualified immunity is immediately
appealable to the extent that it turns on an issue of law. If
the order turns on issues of fact, rather than an abstract
issue of law, we lack jurisdiction over the appeal because
the decision is not a final order immediately appealable
under the collateral order doctrine." Aaron v.
Shelley, 624 F.3d 882, 883-84 (8th Cir. 2010) (citation
and quotations omitted). We also lack jurisdiction over
pendent interlocutory claims under state and federal law
unless those claims are "inextricably intertwined with
the collateral order that is properly appealed, or where
review [is] necessary to ensure meaningful review of the
properly appealed issue." Kincade v. City of Blue
Springs, 64 F.3d 389, 394 (8th Cir. 1995), cert.
denied, 517 U.S. 1166 (1996).
Selby properly appeals the denial of qualified immunity and
absolute prosecutorial immunity from Stewart's §
1983 due process claim based on the alleged fabrication of
false testimony by a witness at Stewart's preliminary
hearing. Selby and Wagner properly appeal the denial of
qualified immunity from Stewart's § 1983 Sixth
Amendment claims for actions that resulted in testimony by
jailhouse informants at his criminal trial. However, we
decline Selby's further invitation to review the district
court's denial of (i) § 1983 claims that Selby has
not briefed, such as Stewart's § 1983 conspiracy
claim; and (ii) Stewart's state law claims. This opinion
should not be construed as expressing our view on any of
these other claims, with the following exception:
claims that investigators Wagner and Choate violated his
right to due process as defined in Brady v.
Maryland, 373 U.S. 83, 87 (1963), when they caused the
prosecution not to disclose evidence that would have been
favorable to the defense at Stewart's trial. The summary
judgment record is replete with material fact disputes
regarding these claims, and Wagner has not appealed the
denial of qualified immunity. However, we note that, while a
prosecutor's duty to disclose is absolute, to recover
damages from other law enforcement officials for a
Brady violation, a § 1983 plaintiff must prove
the requisite mens rea. In denying investigators
Wagner and Choate summary judgment on this claim, the
district court adopted the amorphous "bad faith"
mens rea standard set forth in White v.
McKinley, 519 F.3d 806, 814 (8th Cir. 2008), rather than
the more precise standard adopted in our earlier, and
therefore controlling, opinion in Villasana v.
Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004) --
"Brady ensures that the defendant will obtain
relief from a conviction tainted by the State's
nondisclosure of materially favorable evidence, regardless of
fault, but the recovery of § 1983 damages requires proof
that a law enforcement officer other than the prosecutor
intended to deprive the defendant of a fair
trial." (Emphasis added.) The district court must
apply this controlling standard when the issue again arises
on remand, whether before, during, or after trial.
The "Fabricated Evidence" Claim.
November 29, 2006, Dulin called 911 from his home in Stone
County and reported that he had been shot with his own .22
caliber handgun by two men in their twenties or thirties, and
that one identified himself as the boyfriend of an "Eby
girl from Hurley." Dulin died at the scene. The Stone
County Sheriff's Office assigned Wagner as lead detective
in the homicide investigation.
investigation focused on Dulin's statement that the
boyfriend of an "Eby girl from Hurley" was
involved. Stewart, then eighteen years old, was the son of
Paula Eby of Hurley. His sisters were Candy Seaman, married
to but separated from Tim Seaman, and Christy Pethoud, then
living with her boyfriend, Leo Connelly. Though Pethoud's
last name was not "Eby, " the investigation treated
her as an "Eby girl." Interviewed on December 1,
Stewart told investigators that he spent the night in
question at the home of Pethoud and Connelly, and that Tim
Seaman was married to his sister, Candy Seaman.
March 15, 2007, Alicia Kimberling arrived at the Stone County
Judicial Center for a probation appointment. Wagner learned
that Kimberling had said Leo Connelly was involved in the
homicide. He arrested her for an unresolved probation
violation and interviewed her. Kimberling identified Connelly
and Pethoud as Dulin's killers but did not claim Stewart
was involved. Wagner told her Stewart was a suspect and
Stewart and Connelly were together that night. She agreed to
assist the investigation after learning about potential
rewards for cooperating. Wagner provided Kimberling with
devices to record conversations with Connelly, Candy Seaman,
and Stewart on March 16, 17, and 20. The recordings provided
no incriminating evidence.
March 27, after Selby had discussed a plea agreement with
Kimberling's attorney, Selby and Wagner interviewed
Kimberling. She incriminated Stewart for the first time,
claiming that she saw Stewart, Connelly, and Pethoud in a car
shortly after the homicide; that Connelly was covered in
blood; that Stewart was in the back of the car; and that she
saw a gun. At this point in the recorded interview,
Kimberling stopped answering questions and said:
"I'm scared. . . . I'm so scared to talk to you
guys." Selby responded:
You know, Alicia, you're not -- I don't think by
talking you're increasing anything that you have to be
scared of, you know what I'm saying? I mean, the things
that you've already talked about would put you in the
position of being a witness. Okay? So to tell everything you
know is not going to make things any ...