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Law School Case Brief

State v. Terry - 304 S.W.3d 105 (Mo. 2010)


Once the time for filing a motion for a new trial has passed, Mo. Sup. Ct. R. 29.11(b), the Missouri rules have no provision for the granting of a new trial based on newly discovered evidence even if the evidence is available prior to sentencing. Additionally, new evidence that is not in the record should not be considered on appeal. Generally, an appellate court will not remand a case before an appeal is concluded if the lone fact of newly discovered evidence is not enough to grant a new trial. But the appellate court has the inherent power to prevent a miscarriage of justice or manifest injustice by remanding a case to the trial court for consideration of newly discovered evidence presented for the first time on appeal. The appellate court will exercise this power in its discretion. 


Defendant Antoine Terry, age 17 at the time of the alleged offense, was convicted of statutory rape in 2008. The alleged victim, A.W., who was age 12 at the time, said Terry had sex with her in the summer of 2007. Terry denied having sex. Terry was arrested and put on trial for first-degree statutory rape. At trial, A.W. was pregnant and testified that Terry was the father because she had not had sex with anyone else during the summer of 2007. However, a DNA test done after the child's birth showed that Terry was not the father of A.W.'s child. As a result, Terry filed a motion to remand the case to the circuit court to consider the newly discovered evidence that was not available at trial. The state opposed the motion and argued that the judgment should be affirmed because the motion was filed out of time.


Should the motion for new trial be granted?




The state supreme court held that even though the motion for a new trial was filed out of time, Terry was entitled to remand because the results of the DNA test did not become known until several months after trial, he had no way of determining the paternity during trial, the new evidence cast serious doubt on the conviction and was material to proving the key element of the crime of statutory rape--that Terry and the victim had sex--and although the DNA evidence would impeach the victim's testimony, it did not "merely" impeach, it conclusively showed that she perjured herself. Her testimony appeared to have been false, and the jury had no opportunity to weigh the evidence and determine the facts and credibility of the witnesses with the inclusion of the DNA test in evidence. Nor did the prosecutor, defense attorney and trial judge have the benefit of the DNA evidence at the time of the motion for a new trial. The court dismissed the appeal and remanded to the circuit court for Terry to file a motion for a new trial based on the new evidence; if the motion for a new trial was denied, Terry could file a notice of appeal and ask for reinstatement of the present appeal.

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