IN THE
Missouri Court of Appeals
Western District
STATE OF MISSOURI,
Respondent,
v.
TIMOTHY R. JACOBS,
Appellant.
Appeal from the Cole County Circuit Court
Nineteenth Judicial Circuit
The Honorable Jon E. Beetem, Judge
RESPONDENT’S BRIEF
CHRIS KOSTER
Attorney General
SHAUN J MACKELPRANG
Assistant Attorney General
Missouri Bar No. 49627
P.O. Box 899
Jefferson City, MO 65102
Tel.: (573) 751-3321
Fax: (573) 751-5391
shaun.mackelprang@ago.mo.gov
Attorneys for Respondent
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No. WD77931
TABLE OF AUTHORITIES................................................................................................... 2
STATEMENT OF FACTS...................................................................................................... 3
ARGUMENT ......................................................................................................................... 7
I. ....................................................................................................................................... 7
The trial court did not plainly err in failing to disqualify the Cole
County Prosecuting Attorney’s Office sua sponte or in denying Mr.
Jacobs’s pro se motion for judgement of acquittal. ........................................... 7
CONCLUSION.................................................................................................................... 18
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TABLE OF CONTENTS
Cases
State v. Lemasters, 456 S.W.3d 416 (Mo. 2015) ........................................passim
State v. Moore, 414 S.W.3d 580 (Mo.App. W.D. 2013) ................................... 8, 9
State v. Perry, 954 S.W.2d 554 (Mo.App. S.D. 1997).......................................... 8
State v. Reinschmidt, 984 S.W.2d 189 (Mo.App. S.D. 1998)............................ 16
State v. Ross, 829 S.W.2d 948 (Mo. 1992) ................................................... 15, 16
State v. Wilson, 195 S.W.3d 23 (Mo.App. S.D. 2006) ......................................... 8
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TABLE OF AUTHORITIES
Mr. Jacobs appeals his conviction of committing violence against an
employee of the department of corrections, § 217.385, RSMo 2000 (L.F. 7980). Mr. Jacobs asserts that “[t]he trial court plainly erred in failing to sua
sponte disqualify the Cole County Prosecuting Attorney’s Office from this
case and in denying Mr. Jacobs’ pro se ‘motion for judgment of acquittal
notwithstanding the verdict,’ ” because an attorney who represented Mr.
Jacobs earlier in his criminal case joined the Cole County Prosecuting
Attorney’s Office and “later appeared on the state’s behalf in the same case”
(App.Br. 9).
***
On February 6, 2011, Mr. Jacobs was incarcerated in administrative
segregation in the Jefferson City Correctional Center (Tr. 133, 135-136).
Officer Michelle Baumann was escorting offenders back and forth from the
showers, and, as she escorted Mr. Jacobs up the stairs, he stopped and
refused to go any further (Tr. 129, 139-140). Mr. Jacobs asked why Officer
Baumann was escorting him, and then he said that Officer Baumann was
“nothing but trailer park trash and he didn’t want [her] escorting him back”
(Tr. 150). Mr. Jacobs also told Sergeant Baumann that her “pussy stinks,”
and that she had been arrested for prostitution (Tr. 150).
Sergeant Baumann told Mr. Jacobs a couple of times to return to his
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STATEMENT OF FACTS
Jacobs to the ground, but he shoved his shoulder into her, and she fell down
and “slammed into the ground” (Tr. 129, 142-143). Sergeant Baumann stood
up and put Mr. Jacobs against a wall until another officer arrived to assist
her (Tr. 129-130, 143). Mr. Jacobs continued to resist the officers, but they
were able to return him to his cell (Tr. 143-144). Sergeant Baumann’s knee
was bruised by the concrete floor when she fell (Tr. 143). The incident was
captured on video (Tr. 145-148; State’s Ex. 1-A).
Mr. Jacobs later filed a complaint, alleging that he had been abused
(Tr. 171-172). An officer investigated the complaint and interviewed Mr.
Jacobs (Tr. 173). A recording was made of the interview (Tr. 174; State’s Ex.
1-B). A medical record showed that Mr. Jacobs had “a soft tissue injury to his
right elbow” (Tr. 184). After completing the investigation, the investigator
concluded that “there was no evidence to support the claim that Officer
Baumann abused Mr. Jacobs” (Tr. 184-185).
The State charged Mr. Jacobs with committing violence against an
employee of the department of corrections, § 217.385, RSMo 2000 (L.F. 17).
The case went to trial in June 2014 (Tr. 7). Mr. Jacobs presented the
testimony of Eugene Jones, another inmate (Tr. 196-199).
Mr. Jones initially testified that he did not think he was in the
Jefferson City Correctional Center on February 6, 2011 (Tr. 201-202). He
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cell, but Mr. Jacobs refused (Tr. 129, 141). She then attempted to take Mr.
203). He then testified that he observed an incident between Mr. Jacobs and
Officer Baumann (Tr. 204).
Mr. Jones testified that he heard Mr. Jacobs say to Officer Baumann,
“you know you ain’t supposed to be in contact with me because I filed a
complaint against you and I got a restraining order against you” (Tr. 204).
Mr. Jones said that Officer Baumann said she “didn’t care to hear that” or
she “wasn’t trying to hear that” (Tr. 205). He testified that Mr. Jacobs said,
“ ‘B,’ I’m going to find out what is going on” (Tr. 205). He said that Officer
Baumann responded, “N*****, shut up and keep walking” (Tr. 205).
Mr. Jones said that Mr. Jacobs stopped walking and said, “What did
you say? Say what you just said again,” and that Officer Baumann told him
to, “Move on, walk” (Tr. 205). Mr. Jones testified that Mr. Jacobs said, “No,
say what you just said,” but that Officer Baumann said, “I didn’t say
nothing,” or “I’m not trying to say nothing” (Tr. 205).
He testified that Mr. Jacobs would not move, so Officer Baumann “tried
to push him” or “force him to move” (Tr. 205-206). He said that one of Mr.
Jacobs’s shower shoes came off, and that he tried to put it back on (Tr. 206).
He said that Officer Baumann, “for some reason, caused herself to use her
feet and kick his leg out from under him, . . . but it messed around and
caused her to slip and fall on the floor, you know, and [Mr. Jacobs] just stood
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then agreed that he had told a defense investigator that he was there (Tr.
the floor” (Tr. 206). He testified that “[t]he inmates was laughing and calling
her dumb and stupid for even trying to do what she was doing and stuff like
that, you know” (Tr. 206).
Mr. Jones testified that Mr. Jacobs was “trying to prevent himself from
getting hurt more so than anything, you know, because she was pushing him
and she was trying to take his legs out from under him” (Tr. 207). He said
that Mr. Jacobs fell against a door (Tr. 208). He testified that the officers
then pushed Mr. Jacobs into his cell, and that Mr. Jacobs’s elbow was
bleeding (Tr. 208-209).
The jury found Mr. Jacobs guilty of committing violence against an
employee of the department of corrections (Tr. 249; L.F. 68). Thereafter, the
court sentenced Mr. Jacobs to five years’ imprisonment and ordered the term
to run consecutively to his current sentence (Tr. 275).
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there looking at her while she was, you know, struggling to get back up off
I.
The trial court did not plainly err in failing to disqualify the
Cole County Prosecuting Attorney’s Office sua sponte or in denying
Mr. Jacobs’s pro se motion for judgement of acquittal.
Mr. Jacobs asserts that the trial court plainly erred in failing to
disqualify the Cole County Prosecuting Attorney’s Office sua sponte and in
failing to grant Mr. Jacobs’s pro se motion for judgment of acquittal
notwithstanding the verdict (App.Br. 11). He asserts that his former public
defender, Mr. Aaron Maness, was employed by the Cole County Prosecutor
and “later appeared on the state’s behalf in” Mr. Jacobs’s criminal case
(App.Br. 11).
A. Preservation, waiver, and the standard of review
Mr. Jacobs concedes that this claim was not preserved (App.Br. 14-15),
and the record shows that there was no timely request to disqualify the
prosecutor’s office. The issue was first raised after the verdict, at sentencing,
when Mr. Jacobs asserted in his pro se motion for judgment of acquittal that
“[t]he trial court abused its discretion in allowing the Cole County
Prosecutor’s Office to proceed with prosecuting the case while a conflict of
interest required that office to disqualify from prosecuting the case” (L.F. 73).
The record shows, however, that Mr. Jacobs and his attorney were
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ARGUMENT
the trial court’s attention. At sentencing, Mr. Jacobs informed the court that
“the day before trial,” his attorney told him that Mr. Maness was “no longer
working at the Public Defender’s Office, he [was] working at the Cole County
prosecutor’s office” (Tr. 257-258). Thus, an objection to this potential conflict
plainly could have been raised before a verdict was rendered.
As such, this Court should decline to review for plain error. “Since
Defendant and [his] trial lawyer knew of the alleged conflict of interest claim
before and during the trial, yet chose to remain silent, they cannot use that
alleged conflict as a basis for obtaining a new trial.” See State v. Wilson, 195
S.W.3d 23, 25 (Mo.App. S.D. 2006). “Defendant simply cannot remain silent,
roll the dice via a trial, and then complain about an alleged error that was
essentially committed at [his] instance.” Id.
Even if the Court elects to exercise its discretion and review for plain
error, Mr. Jacobs is not entitled to relief. Plain errors affecting substantial
rights may be considered when the court finds that manifest injustice or
miscarriage of justice has resulted. State v. Perry, 954 S.W.2d 554, 559
(Mo.App. S.D. 1997). “ ‘ “[U]nder Missouri law, plain error can serve as the
basis for granting a new trial on direct appeal only if the error was outcome
determinative[.]” ’ ” State v. Moore, 414 S.W.3d 580, 583 (Mo.App. W.D.
2013). “ ‘Manifest injustice is determined by the facts and circumstances of
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aware of this potential conflict before trial, and that they failed to bring it to
injustice.’ ” State v. Moore, 414 S.W.3d at 582.
B. The trial court did not plainly err
Mr. Jacobs was originally represented by Mr. Jan King (L.F. 2). In June
2012, Mr. Maness entered appearance for Mr. Jacobs by filing a motion on
Mr. Jacobs’s behalf (L.F. 4). Over the next year, Mr. Maness appeared on Mr.
Jacobs’s behalf on several occasions (see L.F. 4-8). According to the docket
sheet, Mr. Maness was released from representing Mr. Jacobs on August 22,
2013, because he was “No Longer in Office/Position,” i.e., he was no longer
employed by the public defender (L.F. 1).
On August 21, 2013, Mr. Stokely entered appearance for Mr. Jacobs by
filing a motion for continuance (L.F. 9). Mr. Jacobs was represented by Mr.
Stokely for the remainder of his criminal case, and Mr. Jacobs was sentenced
on July 15, 2014 (L.F. 14).
After Mr. Jacobs was found guilty, he alleged in a pro se motion that
the Cole County Prosecutor’s Office should have been disqualified from
prosecuting his case because Mr. Maness had joined that office while Mr.
Jacobs’s case was pending (L.F. 73-74). Mr. Jacobs alleged that Mr. Maness
“remained on this case over one year and acquired knowledge about the case
from [Mr. Jacobs], the defendant, while acting as [his] appointed counsel”
(L.F. 74). Mr. Jacobs alleged that the prosecutor’s office was “disqualified
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the case, and the defendant bears the burden of establishing manifest
Maness revealed no confidences and did not himself participate in the
prosecution” (L.F. 74).
At sentencing, Mr. Jacobs argued in support of his motion that Mr.
Maness had “received knowledge of information about [his] case and then he
went and joined the prosecutor’s office” (Tr. 261). He argued that this created
“the appearance of improprieties” (Tr. 261). When asked if he had anything to
add, defense counsel (Mr. Stokely) stated, “I have nothing, Judge” (Tr. 265).
The court observed that if Mr. Maness had been “walled off” and
precluded from participating in the prosecution, then the court was going to
deny Mr. Jacobs’s claim of a disqualifying conflict (Tr. 265-266). The
prosecutor assured the court that Mr. Maness had “had no involvement in the
prosecution of this case” (Tr. 267). The prosecutor also assured the court that
“any time that Mr. Jacobs’ name was even mentioned in passing, [Mr.
Maness] excused himself from the meeting or walked away saying I have a
conflict and I can’t be part of any discussions” (Tr. 267).
Mr. Jacobs then argued that it did not matter whether Mr. Maness
revealed any confidential communications (Tr. 267). He argued that, under
the rules of professional conduct, Mr. Maness’s “continued involvement would
create an appearance of improprieties” (Tr. 267-268).
The court denied Mr. Jacobs’s motion and stated, “absent any evidence,
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from prosecuting this case irrespective of the assumed facts that Aaron
handling of your particular case” (Tr. 272). The trial court did not plainly err.
Mr. Jacobs is correct that Mr. Maness had a conflict that precluded him
from participating in the prosecution by the Cole County Prosecuting
Attorney’s Office (CCPAO). See State v. Lemasters, 456 S.W.3d 416, 420 (Mo.
2015). “[Mr. Maness] was a ‘public officer or employee’ when [he] worked with
MSPD; therefore, [he] was a ‘former’ governmental attorney for purposes of
Rule 4–1.11(a).” Id. Thus, “under Rule 4–1.11(a)(2), [Mr. Maness’s] defense of
[Mr. Jacobs] while employed by the MSPD prohibited [him] from
representing the state while employed in the [CCPAO] because it was the
‘same or a substantially related matter’ and because the MSPD and [Mr.
Jacobs] did not consent to [Mr. Maness’s] participation[.]” Id.
Moreover, “[a]s a ‘former’ governmental lawyer with MSPD, not only
did Rule 4–1.11(a)(2) prohibit [Mr. Maness] from participating in [Mr.
Jacobs’s] prosecution, Rule 4–1.11(a)(1) required [him] to comply with Rule
4–1.9(c) in [his] new position.” Id. “Rule 4–1.9(c),2 in turn, prohibited [Mr.
Maness] (except in circumstances not pertinent here) from revealing any
information relating to [his] representation of [Mr. Jacobs] or using such
information to his disadvantage.” Id.
Here, the information presented to the trial court showed that Mr.
Maness complied with his obligations under the rules. The prosecutor who
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I have State’s recitation that Mr. Maness was not involved at any time in the
in the prosecution of this case,” and that Mr. Maness did not discuss the case
or participate in discussions about the case (see Tr. 267). There was no
contrary evidence presented, and there was no evidence that Mr. Maness
provided any confidential information to the prosecutor who tried the case, or
that the State used any evidence or information that might have come from
Mr. Maness’s prior representation of Mr. Jacobs. Thus, there was no violation
of Rules 4-1.11(a)(2) and 4-1.9(c). See State v. Lemasters, 456 S.W.3d at 420.
Mr. Jacobs points out that, according to docket entry on March 11,
2014, Mr. Maness appeared on the State’s behalf at a hearing in his case
(App.Br. 19-20, citing L.F. 10). But that apparent appearance by Mr. Maness
was not brought to the court’s attention as proof that Mr. Maness violated a
rule or was involved in the prosecution; and, in any event, the docket entry
alone does not show a violation of any professional rule.
A review of the docket entries shows that, on October 24, 2013, there
was a “status hearing” in Mr. Jacobs’s case (L.F. 10). At that time, the State
appeared by “Assistant Prosecuting Attorney Aplin” (L.F. 10). Mr. Jacobs
appeared in person and by counsel, Mr. Stokely (L.F. 10). At that time, the
case was “set for plea or trial setting on 3-11-14” and defendant was released
on his own recognizance (L.F. 10).
On March 11, 2014, the State appeared by Mr. Maness (L.F. 10). Mr.
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tried the case informed the trial court that Mr. Maness “had no involvement
significant action was taken in the case, however, as the case was again set
for “trial setting on 3-25-14” (L.F. 10). In other words, the scheduled purpose
of the hearing was delayed until a date two weeks away (L.F. 10). Then, at
the next hearing—when Mr. Jacobs’s case was set for jury trial and other
issues were taken up—the State was represented by “Assistant Prosecuting
Attorney Stacey” (L.F. 10-11).
Based on this record, the trial court did not plainly err in failing to
disqualify the CCPAO sua sponte or in denying Mr. Jacobs’s pro se motion for
judgment of acquittal. From this record, it appears that Mr. Maness merely
nominally appeared on a law day, and that he took no significant action in
Mr. Jacobs’s case. This record is consistent with Mr. Maness informing the
court that he could not take any action in the case—not even to participate in
setting a date for trial; thus, Mr. Jacobs has failed to carry his burden of
proving either clear and obvious error or manifest injustice.
In addition, Mr. Maness’s appearance at a hearing where nothing of
any substance occurred did not give rise to any appearance of impropriety.
“Society’s confidence in the judicial system—and, in particular, the criminal
justice system—depends on society’s perception that the system is fair and its
results are worthy of reliance.” State v. Lemasters, 456 S.W.3d at 422. “For
that reason, it is essential that trials be fair.” Id.
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Jacobs did not personally appear, but he appeared by Mr. King (L.F. 10). No
satisfy the appearance of justice.’ ” Id. “A procedure that appears to be unfair
can jeopardize society’s confidence in the judicial system as a whole even if
the procedure is—in fact—fair.” Id. “Accordingly, this Court must pursue
fairness both in the law’s substance and in its appearance.” Id.
Of course, “an appearance of impropriety judged only from the
defendant’s perspective cannot be sufficient for relief.” Id. “Instead, the
touchstone for claims that present a real threat to the apparent fairness of
the system is what knowledge of all the facts and circumstances would
suggest to a reasonable person.” Id. As such, a “prosecutor’s office must be
disqualified if a reasonable person with knowledge of the facts would find an
appearance of impropriety and doubt the fairness of the trial.” Id.
Here, a reasonable person with knowledge of all the facts would not
find an appearance of impropriety in Mr. Jacobs’s case. The prosecutor who
tried the case assured the court that Mr. Maness had not participated in the
prosecution, and that Mr. Maness had not even discussed the case with his
co-workers at the office (see Tr. 267). The sole indication of any involvement
by Mr. Maness in Mr. Jacobs’s case was a “hearing” where nothing of any
substance occurred (see L.F. 10). There is no indication in the record that Mr.
Maness provided any information to the State, or that the State was privy to
information that only could have come from Mr. Maness. Thus, a reasonable
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But fairness alone is not sufficient. Id. at 423. “Instead, ‘justice must
the fairness of the trial.
The cases cited by Mr. Jacobs do not compel a different conclusion. In
Ross, a part-time assistant prosecutor brought criminal assault charges
against Mr. Ross, even though another lawyer in the assistant prosecutor’s
law firm (who also was a part-time prosecutor) was already representing Mr.
Ross in a civil action arising out of the same assault. State v. Ross, 829
S.W.2d 948, 949-950 (Mo. 1992). The concurrent representation of Mr. Ross
in those two cases violated Rules 4-1.7 and 4-1.10. Id. at 950-951.
In addition, the Court found that there were facts that would create an
appearance of impropriety and cast doubt on the fairness of the trial. Id. The
court stated that “the interconnections between the prosecuting attorney’s
office and the law firm handling [Ross’s] related civil case create . . .
suspicions and appearances of impropriety and show that members of the
prosecuting attorney’s office had the potential access” to confidential
information from Ross’s civil case that the prosecution could use against him
in the criminal case.” Id. at 951. In addition, Mr. Ross testified that he was
“chilled” from testifying as a result of not knowing what his lawyer may have
divulged to the prosecutor. Id. Moreover, there was “no evidence of steps
taken to insulate the actual prosecutor from the conflict.” Id. at 952.
Here, by contrast, there was no concurrent representation in two cases;
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person would not have perceived any appearance of impropriety and doubted
Mr. Maness could not switch sides and prosecute Mr. Jacobs in this case, the
State assured the court—without any objection by defense counsel (or any
contrary evidence)—that Mr. Maness had not participated in the case in any
way. Cf. State v. Ross, 829 S.W.3d at 952 (timely objection was made to the
prosecutor’s statements, and the defendant testified that he was “chilled”
from testifying because of conflict). In fact, at the hearing where the State
gave its assurances, defense counsel stated that he had nothing to add, and
Mr. Jacobs rested on his claim that it did not matter whether Mr. Maness
provided any assistance in the case (see Tr. 265, 267-268). In short, unlike in
Ross, the record in Mr. Jacobs’s case does not show facts that would lead a
reasonable person to “find an appearance of impropriety and doubt the
fairness of the trial.”
Mr. Jacobs also cites State v. Reinschmidt, 984 S.W.2d 189 (Mo.App.
S.D. 1998), a case in which the Southern District of this Court applied Ross to
facts similar to the facts here, namely, a public defender representing the
defendant for a period of time before being hired by the prosecuting
attorney’s office handling the prosecution. There, the Court stated that it was
bound by Ross, and it stated that “the potential conflict presented by
Appellant’s
criminal
defense
attorney
becoming
affiliated
with
the
prosecuting attorney’s office creates the same suspicions and appearance of
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rather, there was merely a change of employment by Mr. Maness. And, while
In Lemasters, however, the Missouri Supreme Court made plain that,
in Ross, the concurrent nature of counsel’s representation (as opposed to a
successive representation) was the problematic circumstance that supported
disqualification of the entire prosecutor’s office. 456 S.W.3d at 423. The Court
specifically noted that the Court in Reinschmidt had “failed to recognize the
importance of this distinction from Ross.” Id. at 423 n. 7. Thus, the Court
held that “Reinschmidt and its interpretation of Ross should no longer be
followed.” Id. Thus, after Lemasters, the relevant questions in Mr. Jacobs’s
case are whether Mr. Maness actually assisted in the prosecution, and
whether a reasonable person aware of the facts and circumstances would find
an appearance of impropriety and doubt the fairness of Mr. Jacobs’s trial.
As discussed above, however, there was no evidence that Mr. Maness
participated in any substantive way in the actual prosecution, and there were
no facts that would lead a reasonable person to find an appearance of
impropriety or doubt the fairness of Mr. Jacobs’s trial. Accordingly, the trial
court did not plainly err in failing to disqualify the prosecutor’s office sua
sponte, and Mr. Jacobs has not demonstrated manifest injustice. This point
should be denied.
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impropriety as mentioned in Ross.” Id. at 192.
The Court should affirm Mr. Jacobs’s conviction and sentence.
Respectfully submitted,
CHRIS KOSTER
Attorney General
/s/ Shaun J Mackelprang
SHAUN J MACKELPRANG
Assistant Attorney General
Missouri Bar No. 49627
P.O. Box 899
Jefferson City, MO 65102
Tel.: (573) 751-3321
Fax: (573) 751-5391
shaun.mackelprang@ago.mo.gov
Attorneys for Respondent
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CONCLUSION
I certify that this brief complies with Rule 84.06(b) and Western
District Rule XLI and contains 3,596 words, excluding the cover, the table of
contents, the table of authorities, this certification, and the signature block,
as counted by Microsoft Word; and that an electronic copy of this brief was
sent through the Missouri eFiling System on this 31st day of August, 2015, to:
MARGARET M. JOHNSTON
Woodrail Centre, 1000 W. Nifong
Bldg. 7, Suite 100
Columbia, Missouri 65203
Tel.: (573) 777-9977
Fax: (573) 777-9974
maggie.johnston@mspd.mo.gov
CHRIS KOSTER
Attorney General
/s/ Shaun J Mackelprang
SHAUN J MACKELPRANG
Assistant Attorney General
Missouri Bar No. 49627
P.O. Box 899
Jefferson City, MO 65102
Tel.: (573) 751-3321
Fax: (573) 751-5391
shaun.mackelprang@ago.mo.gov
Attorneys for Respondent
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CERTIFICATE OF COMPLIANCE AND SERVICE