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Stewart v. Wagner

United States Court of Appeals, Eighth Circuit

September 12, 2016

Zackary Lee Stewart Plaintiff- Appellee
v.
Karl Wagner, Matt Selby Defendants-Appellants

          Submitted: February 9, 2016

         Appeal from United States District Court for the Western District of Missouri - Springfield

          Before RILEY, Chief Judge, LOKEN and BENTON, Circuit Judges.

          LOKEN, Circuit Judge.

         In 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.

         I. Jurisdiction and the Issues on Appeal.

         "An 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).

         Here, 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.[1] This opinion should not be construed as expressing our view on any of these other claims, with the following exception:

         Stewart 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.

         II. The "Fabricated Evidence" Claim.

         On 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.

         The 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.

         On 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.

         On 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 ...

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