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IN THE SUPREME COURT OF MISSOURI

NO. SC95443

In re LAWRENCE CALLANAN,

Petitioner,

v.

CINDY GRIFFITH,

Respondent.

MASTER’S REPORT TO THE MISSOURI SUPREME COURT

AND FINDINGS OF FACT AND CONCLUSIONS OF LAW

GAEL D. WOOD, SPECIAL MASTER

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IN THE CIRCUIT COURT OF FRANKLIN COUNTY

STATE OF MISSOURI

LAWRENCE CALLANAN, )

)

Petitioner, )

) Case No. 16AB-CC00286

vs. ) (Related Case No. SC95443)

)

CINDY GRIFFITH, )

)

Respondent. )

MASTER’S REPORT TO THE MISSOURI SUPREME COURT AND FINDINGS OF

FACT AND CONCLUSIONS OF LAW

Introduction

Petitioner Lawrence Callanan is an inmate at the Potosi Correctional Center. In 1996, a St.

Louis County jury found that Mr. Callanan shot John Schuh to death in the Spanish Lake

Community of St. Louis. The jury convicted Mr. Callanan of first-degree murder and armed

criminal action for Schuh’s homicide. The St. Louis County Circuit Court sentenced Mr. Callanan

to life without the possibility of probation or parole for murder and thirty years’ imprisonment for

armed criminal action.

Since the State charged Mr. Callanan, he has had numerous opportunities to challenge the

case against him. Mr. Callanan disputed the State’s evidence at trial and litigated his conviction

and sentence on direct appeal before the Missouri Court of Appeals and then in a Rule 29.15

proceeding before the St. Louis County Circuit Court and the Missouri Court of Appeals. Mr.

Callanan sought federal habeas relief from in the United States District Court for the Eastern

District of Missouri, the United States Court of Appeals for the Eighth Circuit, and the United

States Supreme Court. Mr. Callanan also sought state habeas review in the Washington County

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Circuit Court and the Missouri Court of Appeals. He is now seeking relief before the Missouri

Supreme Court.

On November 29, 2016, the Missouri Supreme Court appointed the undersigned as Master

in the above-referenced matter and directed the undersigned to “take evidence on the issues raised

in the pleadings filed herein” and to “hear and to determine all objections to testimony in the same

manner and to the same extent this Court might in a trial before it.” See (November 29, 2016 Order

Appointing Special Master). The undersigned was also directed to “report the evidence taken,

together with his findings of fact and conclusions of law on said issues,” to the Missouri Supreme

Court. Id.

To comply with the Order, the undersigned heard evidence on ten days between August of

2018 and April of 2019.1 During the hearing, Mr. Callanan testified and presented the testimony

of Harriett Ojile, John Hefele, Ronald Claggett, Tim Harper, Kara (Weinstein) Armbruster,2 Leo

McLaughlin, Daniel Diemer, Brad Kessler, Paul D’Agrosa, Rick Sindel, Detective Andrew

“Butch” Albert, Richard Healy, Sean O’Brien, Daniel Clark, Robin Corley, Christopher Boelhauf,

and Ronald Singer. Callanan also submitted deposition testimony from Linda Zeman, Patricia

McKenna, and William Losing. In addition to hearing testimony, the undersigned reviewed Mr.

Callanan’s prior court proceedings records and admitted exhibits from the hearing.3

The parties conducted extensive pre-hearing briefing and submitted proposed findings of

fact and conclusions of law. The undersigned has considered the parties’ pleadings and arguments.

The undersigned also received a letter from St. Louis County Prosecuting Attorney Wesley Bell

1 The Rule 91 hearing transcripts will be cited to by volume number and page. 2 At the time of John Schuh’s murder and Mr. Callanan’s trial, Kara Armbruster’s surname was Weinstein. (Vol. II, pp. 11–12). She is now married and known by Kara Armbruster. For consistency and ease of understanding, the

undersigned will refer to this witness as Ms. Weinstein. 3 Petitioner’s exhibits will be referred to as P. Ex. ___; Respondent’s exhibits will be referred to as R. Ex. ___.

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on behalf of Mr. Callanan dated August 30, 2019, which offers his opinion that there was a “clear

and prejudicial Brady violation” in this case. Mr. Bell’s letter is not admissible evidence. The

undersigned is treating it as an amicus brief.

Now on this 4th day of March, 2020, having considered the submissions, evidence and

arguments of the parties and the applicable law, and after assessing the credibility of the witnesses,

the undersigned makes my Report to the Missouri Supreme Court, including my findings of fact

and conclusions of law.

Based on the evidence presented during these proceedings and the record in this matter, the

undersigned finds that Mr. Callanan has not shown that he is actually innocent as alleged in Claim

1 or that he is entitled to relief under Claim 3. He has, however, demonstrated that he is entitled to

relief on Claims 2 and 4. The undersigned respectfully recommends the granting of habeas relief.

I. SUMMARY OF THE ISSUES

The Missouri Supreme Court authorized the undersigned to consider only the “issues raised

in the pleadings filed” before the Missouri Supreme Court. The “issues raised in the pleadings”

include the three grounds for relief filed in Mr. Callanan’s original petition and suggestions in

support filed on December 23, 2015, and ground four in the amended petition filed on July 13,

2018. See (July 12, 2018 Order (Granting Mr. Callanan Leave to Amend his Petition Only to

Include Claim 4 and Denying his Request to Include Claims 5 and 6)). In compliance with the

Missouri Supreme Court’s orders, the claims properly before the undersigned for consideration are

as follows:

1. A freestanding claim of actual innocence under State ex rel. Amrine v. Roper, 102

S.W.3d 541 (Mo. 2003) and a gateway claim of innocence under Clay v. Dormire, 37

S.W.3d 214 (Mo. 2000) to excuse his procedural default (Sugg. in Supp. at 104, 153);

2. The prosecutor violated Mr. Callanan’s due process rights when he failed to disclose

that Ms. Weinstein saw a second car leave the Lassen’s home after the shots were fired

and after she saw Mr. Callanan leave and did not correct Ms. Weinstein’s trial

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testimony when she denied seeing a second car (Sugg. in Supp. at 151–52, 154, 178,

211–12, 236); and

3. The cumulative effect of the following alleged instances of prosecutorial misconduct

violated Mr. Callanan’s due process rights (Sugg. in Supp. 150–52, 207–08):

a. The prosecutor did not disclose that defense witness Anna Weschke told police that

she saw two occupants in a blue Firebird car that passed by her house sometime

after the shooting (Sugg. in Supp. at 179, 227);

b. The prosecutor did not disclose that William “Bill” Losing was romantically

involved with Ms. Weinstein before and during Mr. Callanan’s trial in April 1996

(Sugg. in Supp. at 179, 235);

c. The prosecutor did not disclose that Ms. Weinstein was intoxicated when she

observed the victim and Mr. Callanan before the homicide and when she observed

Mr. Callanan leave the Lassen home after shots were fired (Sugg. in Supp. at 179);

d. The prosecutor did not disclose that Ms. Weinstein worked as a practicum student

intern at the St. Louis County Prosecuting Attorney’s Office from January 1999 until August 1999, three years after Mr. Callanan’s trial in April 1996 (Sugg. in

Supp. at 207, 236);

e. The prosecutor did not disclose Christopher Boelhauf’s complete criminal history

(Sugg. in Supp. at 20 n. 6, 25, 58);

f. The prosecutor did not disclose either the victim or his brothers, Bill and Russell

Losings’, criminal histories (Sugg. in Supp. at 234);

g. The prosecutor belatedly disclosed at trial Ms. Weinstein’s statement that she saw

Mr. Callanan in front of the home with Mr. Schuh immediately before the shooting

(Sugg. in Supp. at 235);

h. The prosecutor belatedly disclosed at trial Mr. Boelhauf’s statement that he saw

Mr. Callanan argue with Mr. Schuh after Mr. Callanan fell out of a lawn chair

(Sugg. in Supp. at 235);

i. The prosecutor did not correct Detective Andrew “Butch” Albert’s testimony regarding Detective Albert’s impression of St. Louis County’s process for issuance of arrest warrants (Sugg. in Supp. at 150, 207, 227–28, 229–30);

j. The prosecutor did not correct Detective Albert’s testimony that “several people” told him Mr. Callanan was in an altercation with Mr. Schuh that night before the

shooting (Sugg. in Supp. at 152, 208);

k. The prosecutor did not correct Detective Albert’s testimony that there were “no other leads” (Sugg. in Supp. at 150, 194, 234);

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l. The prosecutor allowed Bill Losing to be present in witness interviews and in the

trial witness room where he allegedly intimidated Ronald Claggett (Sugg. in Supp.

at 168, 179, 235);

m. The prosecutor intimidated Mr. Claggett in his pre-trial interview (Sugg. in Supp.

at 179, 216–17);

n. The prosecutor improperly urged the jury to infer consciousness of guilt because

Mr. Callanan did not accede to police questioning for six weeks after the shooting

and thus commented on Mr. Callanan’s pre-arrest and post-arrest silence (Sugg. in

Supp. at 207, 208, 227–28, 229–33, 240, 241);

o. The prosecutor referred to witness “Koltenbronn” in closing and referenced statements Mr. Koltenbronn made about gunpowder and blood in his testimony, but

the State did not call that witness (Sugg. in Supp. at 207);

p. The prosecutor told the jury Ms. Weinstein was not the kind of person who would

lie in closing, improperly bolstering her credibility (Sugg. in Supp. at 207, 237–38);

q. The prosecutor asked Mr. Claggett if he was lying because he was afraid of Mr.

Callanan and his family and implied that Mr. Claggett told the police that Mr.

Callanan was the perpetrator, but never called that officer. (Sugg. in Supp. at 207,

221);

r. The prosecutor implied that Mr. Callanan’s father, Thomas Callanan, had

connections to organized crime by asking Thomas Callanan if he contacted Sorkis

Webbe, Jr., and asked a police officer if he knew Thomas Callanan from previous

contacts, implying prior bad acts (Sugg. in Supp. at 207–08, 222–24);

s. The prosecutor challenged Mr. Callanan’s investigator’s testimony at trial by

stating “I’ve driven this” (Sugg. in Supp. at 208, 226);

t. The prosecutor argued Mr. Claggett and Mr. McLaughlin knew Mr. Callanan was

the murderer in closing, implying personal and police knowledge of the murder not

in evidence (Sugg. in Supp. at 208, 241);

u. The prosecutor referenced that Mr. McLaughlin made statements, but not the

contents of those statements, to Ms. Weinstein after she returned to the Lassen

home during her examination and in closing (Sugg. in Supp. at 151–52; 207–08);

v. The prosecutor interrupted defense counsel’s closing argument by asserting 13 objections when only one objection was sustained (Sugg. in Supp. at 226–27); and

w. The prosecutor falsely accused Lawrence Beck, Mr. Callanan’s cousin, of having

prior convictions during his cross-examination and accused Mr. Beck of “making up lies” in closing (Sugg. in Supp. at 238–40).

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4. The jury was exposed to extrinsic evidence that the murder weapon was not presented

at trial because it was “tied up” in another case involving Mr. Callanan (Amended Pet.

at 3).

II. FINDINGS OF FACTS

A. SUMMARY OF NEW EVIDENCE PRESENTED AT RULE 91 HEARING

In support of his innocence claim and his constitutional due process claims, Petitioner

presented substantial evidence that was unavailable or unknown at the time of his jury trial or his

state post-conviction proceedings under Rule 29.15. Prior to the Rule 91 hearing, this evidence

had not been presented in any courtroom. Other evidence emerged for the first time during the

Rule 91 hearing itself.

In reviewing the new evidence, controlling precedent requires this Court to consider “the

totality of all of the evidence uncovered over the years between various judicial reviews to

determine if a habeas petitioner established a claim of innocence.” Engel v. Dormire, 304 S.W. 3d

120, 126 (Mo. banc 2010). See also Schlup, 513 U.S. at 327-29. Evidence presented by Callanan

is also relevant to the “cause” and “prejudice” standard, which opens a door to consideration of

defaulted claims. Engel, 304 S.W.3d at 125-26.

For all of the reasons stated below, the Master concludes that Callanan has satisfied the

“cause and prejudice” standard. He is therefore entitled to consideration of the merits of his due

process claims, including his claim that the State violated Brady v. Maryland, 373 U.S. 83 (1983),

by failing to disclose material exculpatory and impeaching evidence.

a. Weinstein Testimony is Key at Trial

At trial, the State’s evidence was slim. Johnny Schuh was shot at 3:00 a.m. in front of a

houseful of young people socializing inside. They emerged shortly after hearing the shots to find

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Schuh lying on the front porch. None said they saw anyone fleeing the scene. Only one witness,

Weinstein, who was driving past a nearby intersection in her car, claimed to have seen Callanan

leaving the area. Of the nine people in the vicinity (seven partygoers and two neighbors), no one

else corroborated Weinstein’s account. The State’s case depended largely on Weinstein, who had

been out all night partying with her friends, including some of the people in the house.

At trial, the prosecution’s theory was that only Callanan had the opportunity to kill Schuh.

Referring to Weinstein, the prosecutor, Dan Diemer, stated in his opening:

Ladies and gentlemen, she’ll tell you when she came back to that scene, only two people were left, the victim and the defendant, and she saw no one else. She’ll tell you. . .that when she saw the defendant cross from the front of the Lassen house to

get into his car, she saw no one else. She’ll tell you…that when she drove back to the scene, she saw no other car leave, and she saw no one else running away

from that residence. (Trial Tr., p. 231).

(Trial Tr., p. 231) (emphasis added).

Weinstein was the first witness, and she testified just as the prosecutor stated she would.

Weinstein stated she dropped off Callanan, heard the “pop” of gunshots, turned her car around and

saw Callanan, and no one else, walking across the street. (Trial Tr., pp. 252, 289, 305). She then

claimed she saw him drive away in his truck. (Trial Tr., p. 253). When Diemer asked if she had

seen “any cars at all coming in any direction” other than Callanan’s truck, she responded: “No.”

(Trial Tr., p. 282). On cross examination, defense counsel circled back, asking Weinstein if she

saw anyone else “drive off from the scene other than. . .Larry Callanan? Did you see anyone else?”

Weinstein again responds “no,” but hesitates: “I don’t think – no.” (Trial Tr. 310).

b. Diemer Affidavit Discloses New Evidence: A “Second Car”

Several years after the 1996 trial, when Diemer was no longer a prosecutor, he signed an

affidavit admitting he failed to disclose evidence that would have severely undermined his case

against Callanan: Weinstein had in fact seen a “second car.” Diemer admitted that his case had

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been based on the theory of “exclusive opportunity” – i.e., that only Callanan could have shot

Schuh. Diemer then admitted in his sworn statement that Weinstein had told him “something

about seeing another car leave” the area and that he had instructed her to not “volunteer” this

information:

Although I did not tell Ms. Weinstein to lie or withhold information, I told her

simply to answer the questions that were asked and not to volunteer any information

about the second car unless she was specifically asked to do so. . . .

I was concerned that the presence of another vehicle in that time frame [near the

time of the crime] would raise the inference that another person was also present

and had equal opportunity to commit the crime. That is why I had asked Ms.

Weinstein not to volunteer this information prior to the grand jury proceeding.

She also did not volunteer that information to [defense counsel] D’Agrosa, nor did she do so at the time of trial.

(P. Ex. 13) (emphasis added).

Diemer also admitted that his case against Callanan was “entirely circumstantial” and

“depended very heavily” on Weinstein’s testimony. Id. The information about the “second car”

was never disclosed to defense counsel Paul D’Agrosa. At the hearing, D’Agrosa testified that

information about another vehicle would have been important for multiple reasons, most

importantly to suggest that someone other than Callanan shot Schuh. (Vol. IV, pp. 209:24-211:11).

c. Weinstein Agrees with Key Admission in Diemer Affidavit

During the Rule 91 hearing, Weinstein, although hesitant, corroborated key portions of the

Diemer affidavit. She admitted that she had discussed with Diemer a “second car” and told him

she may have seen one. (Vol. II, 106:4-14, 187:24-25). Their discussion occurred before the grand

jury proceeding or before trial. (Vol. II, 107:5-19). Weinstein testified: “I don’t remember exactly.

. .but I remember discussing [with Diemer] . . . whether I saw a second car.” (Vol. II, p. 106:17–

19). She added: “[H]e told me only say things if. . . you know that they’re facts. . . .I was like[,] I

think I may have saw another car.” (Vol. II, p. 187:20-24) (emphasis added).

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Weinstein testified that she agreed with her prior deposition testimony in which she stated

that Diemer told her not to “volunteer any information about the second car” unless she was

specifically asked. (Vol. II, p. 112:1-113:21; see also P. Ex. 183-22). Diemer instructed Weinstein

not to “bring it up” unless she was “a hundred percent sure.” (Vol. II, p. 107:15-19).

Weinstein testified that she discussed with Diemer whether the second vehicle could have

belonged to partygoer Ron Claggett, though at trial she denied knowing what kind of car Claggett

drove. (P. Ex. 13; Vol. II, p. 106:17-23; Trial Tr. p. 310-11). When the shots were fired, Claggett

was in the house talking on the phone, though he soon left. (Trial Tr. pp. 341, 355). During the

Rule 91 hearing, Claggett credibly testified that when he left, he did not see Callanan or his truck.

(Vol. I, p. 196:6-15) Based on Claggett’s testimony, it is highly unlikely that the “second car” was

his. However, if indeed Weinstein saw Claggett’s vehicle, she almost certainly would not have

seen Callanan’s, as the weight of the evidence indicates they did not leave the area at the same

time. Either way, the existence of the “second car,” whether driven by an unknown person or by

Claggett, gravely undermines the prosecutor’s case.

d. Diemer Disavows His Affidavit

The Diemer affidavit provides strong support for Callanan’s claim under Brady v.

Maryland, 383 U.S. 83 (1963). During the Rule 91 hearing, Diemer admitted that he signed the

affidavit, but he disavowed nearly the entirety of its contents, repeatedly claiming his sworn

statements were not true. (Vol. III, pp. 232-33, 273, 278, 288). For reasons stated more fully

below, the Master did not find Diemer’s testimony credible.

Although Weinstein’s trial testimony showed that she did not “volunteer” anything about

seeing a second car – an omission that corroborates Diemer’s affidavit – Diemer cited her trial

testimony as his basis for claiming his affidavit was “inaccurate.” (Vol. III, pp. 273, 274-75, 277-

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78, 288). He stated that Weinstein’s trial testimony was the “real evidence” and showed that his

affidavit was wrong. (Vol. III, p. 278; Vol. III, 230, 241, 247, 258). Diemer denied ever having

any pretrial discussion with Weinstein about a second car. (Vol. III, 239, 245, 247, Ex. 165). Yet,

in his opening statement at trial, he seems to know what she will state, telling the jury: “[S]he saw

no other car leave.” (Trial Tr. 231).

Diemer claimed that his affidavit had “inaccuracies” and he “probably guessed at some of

the stuff." (Vol. III, 275). He stated: “The reasons for it being inaccurate, I can’t explain.” (Vol.

III, at 278).

Diemer’s testimony, on its face, lacks credibility. Diemer’s testimony is contradicted by

other witnesses. Not only did Weinstein agree that she discussed a second car with Diemer, other,

more credible witnesses, including Callanan’s former attorney, Sean O’Brien, testified in detail

about their discussions with Diemer prior to his signing of the affidavit. The affidavit reflects

Diemer’s specific admissions to these witnesses. (P. Ex. 13; P. Ex. 117). The Master finds that

it is Diemer’s affidavit, and not his hearing testimony, which should be credited.

e. Weinstein Told Diemer She Saw Second Vehicle

The Master finds, by clear and convincing evidence, that: (1) Weinstein saw a “second car”

or a car other than Callanan’s following the gunshots; (2) She discussed this other vehicle with

Diemer; (3) Diemer instructed her not to “volunteer” information about the other vehicle “unless

she was specifically asked.” (P. Ex. 13); and (4) Diemer did not disclose the fact that she had

seen a second car to Petitioner’s trial attorney.

f. New Evidence: Weinstein Could Not See Who Crossed Bent Twig

The other pillar of Weinstein’s trial testimony was that, right after the gunshots, she saw

Callanan, and no one else, crossing the street. She testified: “I saw Larry walking to his truck.”

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(Trial Tr. p. 252). When the prosecutor asked her: “And you never saw anyone else other than the

defendant come out of that yard after you heard the shots, is that correct?” Weinstein responded:

“That is correct.” (Trial Tr. p. 289). Diemer depended on this testimony, stating in opening:

“[W]hen she saw the defendant cross from the front of the Lassen house to get into his car, she

saw no one else.” (Trial Tr. p. 231) (emphasis added).

At the Rule 91 hearing, Weinstein provided a new and sharply divergent account, admitting

that she did not know who she saw crossing the street. Weinstein stated it was too dark, that she

could not see the person’s face and could only see a “silhouette” of a figure. (Vol. II, p. 174:4-21).

Weinstein testified: “I don’t know who it was.” (Vol. II, p. 174:5-6). This change in Weinstein’s

account, unknown before the Rule 91 hearing, constitutes newly discovered evidence.

g. Other Evidence Relevant to Callanan’s Claims

No Motive

The evidence of motive at trial was very thin, consisting of: (1) testimony by Weinstein

that Callanan and McLaughlin “whispered” behind Schuh’s back at a party earlier in the evening;

and (2) testimony by Chris Boelhauf that Callanan fell out of a lawn chair at the party and then

appeared to angrily confront Schuh. (Trial Tr. p. 444). The reed-thin suggestion of motive

collapsed at the hearing, with Weinstein admitting her suspicions about Callanan and

McLaughlin’s whispering were “pure speculation,” (Vol. II p. 175:1-4) and Boelhauf stating that

when he asked Schuh about the apparent confrontation, Schuh said, “that was nothing.” (Vol VIII,

86:25-87:6). Detective Butch Albert, testifying at the hearing, stated he was not aware of any

motive for the shooting. (Vol. V, p. 128:3-17).

Detective Albert Acknowledges Flaws in the Investigation

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At the Rule 91 hearing, Andrew “Butch” Albert, the lead detective, acknowledged

numerous shortcomings in the police investigation. Albert testified that Weinstein was the sole

witness who tied Callanan to the shooting, but he formally interviewed her only once. (Vol. V, p.

106:1-18). According to the police report, there was one follow-up interview six weeks later, but

the police report stated merely that her statements were consistent with those she gave previously.

(P. Ex. 9, p. 38). Albert testified that police never attempted to document what could be seen from

Weinstein’s various vantage points, and they never documented distances or even the addresses at

the driveways where she described turning around. (Vol. V, pp. 128:18-130:23, 159:22-24, 135:8-

19). Police also did not ask the residents of those homes, who were awakened by the gunfire,

whether anyone had turned around in their driveways. (Vol. V, p. 149:15-150:9).

Police likewise did not investigate Schuh’s background despite indicators that he may have

been involved in drugs. (P. Ex. 63; P. Ex. 9, p. 33; Vol. V, p. 163:20-164:7). Albert acknowledged

that Schuh was found with cocaine in his back pocket and drugs in his system and that these were

clear indicators that he may have been involved with drugs. (Vol. V, p. 163:20-164:7). But police

investigated no suspects other than Callanan.

Although there was little activity in the case after the initial investigation, Detective Albert

did not submit the police report to the prosecutor’s office until January 1996, six months after the

homicide. During that time, almost no additional information was obtained. Albert testified that

detectives never obtained a warrant to search Callanan’s home because “no judge in St. Louis

County would have issued a search warrant based on the information [detectives] had…We could

have never gotten a search warrant for that house.” (Vol. V, p. 170:12-22).

h. Juror Exposed to Extrinsic Evidence From Unknown Source

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Linda Zeman, one of the jurors, testified that sometime after jury selection but before

deliberations, she was told the State was holding the gun used to kill Schuh in connection with

another crime involving Callanan. (Vol. IX, pp. 27:15-30:9). This information was both incorrect

and highly prejudicial. Zeman testified that all jurors were told this information in the courtroom

after they were sworn in. (Vol. IX, p. 29:5-11). However, neither the trial court nor counsel ever

made such assertions, indicating that the information came from an outside source. The State never

recovered the gun used to kill Schuh, and the State never presented any evidence that Callanan

was involved in another crime. (Vol. V, p. 169:12; Vol. IV, p. 219:18-23).

B. PROCEDURAL HISTORY

At 3:00 a.m. on July 2, 1995, John Schuh was shot and killed on the front porch of the home

of Tom Lassen. On August 22, 1995, Callanan was charged with and arrested for first-degree

murder and armed criminal action. (P. Exs. 118-30, 118-31).

On October 13, 1995, the Court conducted a bond hearing at which Diemer argued that the

“Court should know the possible allegiances of [Callanan’s] father,” and attempted to question

Callanan’s father about a car bombing in 1973 in which he lost his legs. (P. Ex. 16, p. 30). The

Court ultimately denied Callanan bond. (Vol. IV p. 182:19-21).

Before trial, Callanan moved in limine to exclude: testimony that his father was tied to

organized crime; any evidence related to an unlawful use of a weapon case that allegedly occurred

in March of 1995; any testimony that Callanan had a propensity towards violence or that he carried

a gun; testimony that Callanan was “wanted” for unlawful use of a weapon or that he was on

probation for a weapons offense; any reference to Callanan exercising his right to remain silent

following his surrender to the police; evidence that it was “generally known” in the area that

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Callanan was a suspect in Schuh’s murder; and hearsay statements by Leo McLaughlin to Kara

Weinstein that “Larry did something stupid.” (P. Ex. 118-10). Callanan also moved in limine to

prevent the State from calling McLaughlin as a witness for the sole purpose of having him invoke

his Fifth Amendment privilege. (P. Ex. 118-10, pp. 172-191).

The State moved in limine to: prevent defense counsel from suggesting that someone else may

have committed the crime; exclude out-of-court exculpatory statements made by Callanan; permit

McLaughlin to testify at trial; and exclude any evidence that Schuh possessed and used cocaine.

(P. Ex. 118-10, pp. 192-200).

The State also moved to join Callanan’s case with the 1995 unlawful use of a weapon case in

which Callanan was charged. (P. Ex. 118-18). The State ultimately withdrew that motion. (P. Ex.

118-10 p. 174; Vol. IV, p. 203:13-21). The unlawful use of a weapon case was dismissed. (Vol.

IV, p. 173:9-14).

The Court did not permit the State to mention the unlawful use of a weapon case, did not permit

Weinstein to testify about hearsay statements McLaughlin purportedly made to her, and excluded

evidence of Callanan’s prior traffic offenses and a misdemeanor weapons possession conviction.

The Court also precluded the State from suggesting to the jury that the Callanan family was tied

to organized crime. (Trial Tr. p. 12).

Callanan’s trial lasted three and a half days—the only evidence that tied Callanan to the

shooting was the testimony of Weinstein, who claimed to have seen Callanan, and no one else,

flee the scene in his truck moments after the shooting. (Trial Tr. p. 252). Seven other witnesses

testified that they did not see Callanan in the moments after the shooting. (Trial Tr. pp. 367, 377,

388, 404, 414, 430-31, 641). On April 4, 1996, a jury found Callanan guilty on both counts. (P.

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Ex. 39, pp. 8-9). Callanan was sentenced to concurrent prison terms of life without parole and 30

years. (P. Ex. 38).

On June 3, 1996, Callanan appealed his convictions. (P. Ex. 95, p. 8). On appeal, Callanan

raised numerous issues of prosecutorial misconduct, including: Diemer suggested that Callanan’s

family was tied to organized crime, interrupted defense counsel during closing argument,

improperly referenced a statement made by McLaughlin to Weinstein, mischaracterized evidence

during closing, and improperly bolstered the testimony of State witnesses. (P. Ex. 119, p. 636-

644). Callanan also alleged that the trial court abused its discretion in admitting photos of Schuh’s

body at the crime scene, in excluding evidence identifying an alternate suspect, and in overruling

the defense’s objection to the State suggesting that Callanan was in “flight.” (P. Ex. 119, p. 659-

668). Callanan’s appeal was denied on August 26, 1997. (P. Ex. 95, p. 8).

On November 21, 1997, Callanan moved for post-conviction relief under Missouri Supreme

Court Rule 29.15. (P. Ex. 31). Callanan raised 32 issues, including claims of ineffective assistance

of trial and appellate counsel and prosecutorial misconduct. Callanan was granted an evidentiary

hearing on two claims; the remaining claims were dismissed. At the hearing, Callanan and his

defense counsel, Paul D’Agrosa, were the only two witnesses who testified. The motion was

denied on March 2, 1999. (P. Ex. 32).

On March 2, 2001, Callanan petitioned the United States District Court for the Eastern District

of Missouri for a writ of habeas corpus under 28 U.S.C. § 2254. (P. Ex. 33). This petition included

a claim that Callanan’s right to due process under Brady was violated by the State’s failure to

disclose that Weinstein saw a second car. Diemer’s 2003 affidavit was appended. A magistrate

judge recommended that Callanan’s petition be denied. The recommendation stated, “The Court

in no way condones the . . . prosecutor’s conduct in this matter.” (P. Ex. 34, p. 40). However, the

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magistrate judge found that Callanan was not prejudiced by Diemer’s failure to disclose that

Weinstein saw a second car, as the second car was necessarily Claggett’s. The magistrate judge

found that Weinstein’s testimony that she did not see a second car likely diminished her credibility

as it was undisputed that Claggett left the scene in his Camaro. (P. Ex. 34 p. 41). Callanan’s petition

was denied on March 3, 2004. (P. Ex. 121-18). Callanan applied for a certificate of appealability,

and that application was denied on October 14, 2004. (P. Ex. 121-23).

On May 12, 2005, Callanan petitioned the United States Supreme Court for a writ of

certiorari. (P. Ex. 150-2). The Supreme Court denied review on October 3, 2005. Callanan v.

Roper, 546 U.S. 816 (2005).

On January 25, 2007, Callanan petitioned the Washington County Circuit Court for a writ of

habeas corpus under Missouri Supreme Court Rule 91. The petition raised a claim of actual

innocence, claims of ineffective assistance of counsel, and claims of prosecutorial misconduct,

including: the State failed to disclose that Weinstein saw a second car leave the crime scene; the

prosecutor improperly permitted Bill Losing to intimidate witnesses; the prosecutor failed to

disclose Chris Boelhauf’s criminal history; the prosecutor improperly vouched for Weinstein’s

testimony; the prosecutor improperly attributed criminal convictions to a defense witness, knowing

the witness had no such convictions; the prosecutor improperly commented on Callanan’s pre and

post arrest silence; and the prosecutor suggested that Callanan’s family was involved in organized

crime and that witnesses were afraid of Callanan and his family. The Circuit Court denied relief

on April 30, 2007, without granting Callanan an evidentiary hearing. (P. Ex. 36, p. 3).

Callanan petitioned the Eastern District of the Missouri Court of Appeals for a writ of habeas

corpus on May 24, 2007. (P. Ex. 37). The Court summarily denied relief on June 13, 2007. (Id.)

18

C. EVIDENCE AT THE TRIAL

a. Events Preceding the Shooting

Around 7:00 p.m. on July 1, 1995, Callanan and McLaughlin met Weinstein and Schaefer at

the Lassen home to begin a night of drinking and party hopping. (Trial Tr. pp. 255-56). At Lassen’s

home, Weinstein began drinking a beer. (Trial Tr. p. 258). Callanan and McLaughlin were drinking

vodka. (Trial Tr. p. 259). The four left, with McLaughlin driving Weinstein’s car, to go to the V.P.

Fair in downtown St. Louis. (Trial Tr. pp. 256, 258). They all continued to drink on their way to

the fair. (Trial Tr. pp. 258-59).

At the fair, they met up with other friends—including Tim Harper—and continued to drink.

(Trial Tr. p. 261). After the fireworks ended, McLaughlin drove Weinstein, Callanan, and Schaefer

in Weinstein’s car to a party at Rachel Helvey’s house. (Trial Tr. pp. 261-62). At the party,

Weinstein’s boyfriend, Shannon Orr, exchanged words with Callanan, and while the altercation

did not turn physical, the group decided to leave the party. (Trial Tr. pp. 262-63, 320). They left

their alcohol, so they stopped for more on their way to another party at the Columbia Bottoms.

(Trial Tr. pp. 263-65). The group mingled and continued to drink at the Columbia Bottoms—an

open field where about 50 to 75 people had gathered. (Trial Tr. pp. 264-65, 443). After about an

hour and a half of being there, Schaefer became ill from alcohol consumption. (Trial Tr. pp. 265,

312). Weinstein took her home, with McLaughlin joining for the ride, and then returned to the

party. (Trial Tr. p. 265).

At some point, Callanan asked Weinstein to take him back to his truck, which was parked

across from the Lassen home. (Trial Tr. p. 317). Between 2:00 and 2:30 a.m., Weinstein, Callanan,

Schuh, and McLaughlin left the party, driven by Weinstein in her car. (Trial Tr. pp. 265-66, 69).

They stopped at Callanan’s home on the way, so that Callanan could check in on his father. (Trial

19

Tr. p. 269, 517). Callanan’s father was in a wheelchair, was very ill, and it was common for

Callanan to check in on him. (Trial Tr. p. 516-17). Weinstein pulled into the driveway, and

Callanan entered through the back. (Trial Tr. p. 269-70). Callanan gave his father a glass of water,

asked how he was feeling, and returned to the car. (Trial Tr. p. 517). Weinstein estimated that

Callanan was gone for “a minute or so.” (Trial Tr. p. 270). Weinstein then drove the three men

back to the Lassen home. (Trial Tr. p. 271).

b. Weinstein Alone Testified She Saw Callanan After the Shooting

Diemer told the jury during his opening statement that Weinstein would testify that she heard

shots fired and returned to the Lassen home to see Callanan driving away. (Trial Tr. p. 231).

Diemer told the jury that when Weinstein returned to the Lassen home, “she saw no other car

leave.” Id. Weinstein testified consistent with Diemer’s opening statement.

Weinstein testified that she met Schuh for the first time at the Columbia Bottoms party. (Trial

Tr. p. 266). She testified that Callanan and McLaughlin were “whispering when [Schuh] wasn’t

looking, and then when he would turn back around, they would talk to him normal.” (Trial Tr. p.

267). Weinstein testified, “I felt like they were talking behind his back, like, you know, they were

acting like they liked him but I got the feeling that they didn’t like him.” (Trial Tr. 268). She

testified that Callanan, McLaughlin, and Schuh were play fighting before they got into the car to

leave the Columbia Bottoms party. (Trial Tr. p. 268).

Weinstein testified that around 3:00 a.m., she dropped Callanan, Schuh, and McLaughlin off

at Tom Lassen’s home on Bent Twig. (Trial Tr. pp. 250-51). As she drove away, the three men

were walking up the driveway—McLaughlin in front, then Schuh, then Callanan. (Trial Tr. p.

251).

20

Weinstein circled around a cul de sac and drove back by the Lassen home. Id. She testified that

she was driving about 30 or 35 miles per hour. (Trial Tr. p. 281). Weinstein looked to her left and

saw Schuh “on the first step” of the house and Callanan “right by the bushes.” (Trial Tr. p. 251).

The lights were on in the house, and no one else was in the front yard. Id.

Weinstein turned left onto Meadowdale towards Old Jamestown Road. Id. Before she passed

the first house, she heard gunshots. (Trial Tr. p. 252). She pulled into the driveway of the second

house, turned around, and drove past Bent Twig. Id. Weinstein looked to her right as she passed

Bent Twig and saw Callanan walking to his truck. Id. She testified that she saw no one else. Id.

Weinstein then pulled into the first house on the left, turned around again, and drove back

towards Bent Twig. (Trial Tr. p. 253). At that point, Weinstein saw Callanan in his truck making

a right onto Meadowdale. Id. She did not see anyone other than Callanan leave the scene. (Trial

Tr. pp. 282, 310). Weinstein testified that Callanan’s headlights were off, that he was leaning up

on the steering wheel, and that he continued down Meadowdale after passing her. (Trial Tr. p.

253). Weinstein turned left onto Bent Twig and returned to the Lassen home. (Trial Tr. p. 253-54).

Diemer then questioned Weinstein about her prior statements:

Q: Did you tell Detective Albert exactly what you’ve told this jury here today?

A: Yes, I did.

Q: And you also told the grand jury that; is that correct?

A: Yes, I did.

Q: And you’ve told me that before?

A: Yes, I have.

Q: And you never saw anyone else other than the defendant come out of

that yard after you heard the shots; is that correct?

A: That is correct.

(Trial Tr. pp. 288-89).

On cross-examination, Weinstein was asked if she saw a second car—she answered, “I don’t

think—no.” (Trial Tr. p. 310).

21

The map below, introduced in Rule 91 proceedings as Petitioner’s Exhibit 1, depicts the

neighborhood where the shooting occurred:

c. Seven Witnesses Testified They Did Not See Callanan

Witnesses Tom Lassen, Tim Harper, Jason Chrisco, James Walkenhorst, and Ronnie Claggett

were all inside the Lassen home at the time of the shooting. The front door was open. (Trial Tr.

pp. 356, 377, 388, 404, 414). None of them saw Callanan after shots were fired. (Trial Tr. pp. 356,

377, 388, 404, 414).

Claggett testified that he was on the phone in the living room when he heard gunshots. (Trial

Tr. p. 342). He testified that he walked to the kitchen, and when he turned from the kitchen to walk

towards the door, he saw Schuh’s body on the front porch. (Trial Tr. p. 348). Claggett testified that

he did not see Callanan, Callanan’s truck, or anyone at all when he walked outside. (Trial Tr. p.

22

367). He testified that he left the scene in his purple Camaro because he was afraid. (Trial Tr. pp.

356, 358). Claggett testified that, as he left, he passed a small car “that was coming back towards

Tom’s house.” (Trial Tr. p. 361).

Harper testified that when he walked outside, he saw Claggett but did not see Callanan. (Trial

Tr. pp. 382, 388).

Walkenhorst, Lassen, and Chrisco testified that they did not see Callanan or his truck when

they walked outside. (Trial Tr. pp. 377, 403, 418).

William Michalski, a neighbor on the southeast corner of Bent Twig and Meadowdale, watched

the Lassen home for several minutes after the shooting. (Trial Tr. pp. 633, 640-41). Michalski lived

in the house where Weinstein claimed to have turned around the second time on Meadowdale.

(Trial Tr. pp. 253, 632) Michalski testified that a car’s headlights would penetrate the “very cheap”

vinyl blinds on his front windows whenever a car turned into his driveway. (Trial Tr. pp. 633-34).

Michalski testified that he did not see any cars leaving the scene, and that no car pulled into his

driveway—“I would swear to it anywhere.” (Trial Tr. pp. 633, 641).

Earl Tippett testified at trial that, on the night of the shooting, he woke up to the sound of

gunshots around 3:00 a.m. (Trial Tr. p. 429). Tippett testified that he saw from his window a “late

model Camaro, burgundy in color” drive away from the front of the Lassen home about 90 seconds

after the shooting. (Trial Tr. p. 430). Tippett did not see or hear any other cars driving in the first

minutes after the shooting. (Trial Tr. p. 430). Tippett did not see anyone drive away in a pickup

truck. (Trial Tr. p. 434).

Neighbor Anna Weschke testified that when she heard shots fired, she looked out the window

and saw nothing. (Trial Tr. p. 571). She testified that she went downstairs and walked out onto the

patio to see what was happening. (Trial Tr. p. 571). When she opened the patio door, she saw a

23

dark blue car resembling a Pontiac Firebird speed by towards Meadowdale with its lights off. (Trial

Tr. p. 572).

d. The State Did Not Present Motive Evidence

Boelhauf testified that he saw Callanan and Schuh argue and bump chests at the Columbia

Bottoms party after Callanan fell out of a lawn chair. (Trial Tr. p. 444). Detective Albert testified

that he was not aware of this incident before trial. (Trial Tr. p. 552). Albert also testified that he

was not aware of any motive for Callanan to kill Schuh. (Trial Tr. p. 552).

24

D. RULE 91 HEARING TESTIMONY

This Court heard ten days of testimony and received other testimony by transcript and video

deposition.

a. Table of Rule 91 Hearing Witnesses

Witness Relevance Type of Testimony

Albert, Andrew “Butch” Detective that investigated the homicide Court

Boelhauf, Christopher Present at events preceding the homicide and knowledge

of the case players.

Court

Callanan, Lawrence Petitioner Court

Claggett, Ronald Present at the scene of the homicide Court

Clark, Daniel Investigator Court

Corley, Robin Investigator Court

D’Agrosa, Paul Petitioner’s trial counsel Court

Diemer, Daniel Trial prosecutor. Testified regarding the pretrial and trial

period and to information relating to an affidavit he signed

in 2002 regarding his conduct before and during trial,

including undisclosed information that Weinstein had

seen a second car leave the scene.

Court

Harper, Tim Present at the scene of the homicide Court

Healy, Rich Present at events preceding the homicide and knowledge

of the case players

Court

Hefele, John Investigator Court

Kessler, Bradford Former law partner of trial prosecutor. Testified to events

and conversations relevant to trial prosecutor’s affidavit. Court

Losing, William “Bill” Victim’s brother, present at the scene shortly after the

homicide, involved in the pretrial investigation.

Video deposition

McKenna, Patricia Juror Video deposition

McLaughlin, Leo Present at the scene of the homicide and knowledge of

case players

Court

O’Brien, Sean Petitioner’s counsel during prior federal habeas

proceedings. Testified regarding his investigation as well

as events and conversations relating to the trial

prosecutor’s affidavit.

Court

Ojile, Harriet Petitioner’s mother, testified to Callanan’s whereabouts after the homicide.

Court

Sindel, Rick Petitioners counsel during prior Rule 91 proceedings.

Testified to his investigation and information relevant to

trial prosecutor’s affidavit.

Court

Singer, Ronald Expert witness, criminalist, Technical Director of the

Tarrant County Medical Examiner’s Office

Court

25

Weinstein, Kara Present at the scene before and shortly after the homicide.

State’s key witness at trial. Court

Zeman, Linda Juror Video deposition

b. Credibility Findings

The Court will address conclusions of law in connection with Petitioner’s claims. Before

turning to the specific claims for relief, this Court makes general observations and findings of fact

about the credibility of key witnesses, followed by other factual findings.

Throughout the hearing, the Master had the opportunity to view and assess the demeanor and

credibility of all of the witnesses. The majority of the witnesses were extremely credible and had

adequate to good recall of the events in question. The Court specifically noted that some were

able to recall relevant details and recount events in sequence. Only a couple of witnesses lacked

credibility. Of all of the witnesses, Daniel Diemer was the least credible. Kara Weinstein also

lacked credibility on key points but was credible on a few matters.

Dan Diemer

Throughout most of his testimony, Diemer was resistant and evasive. He provided dubious and

often illogical answers, and repeatedly claimed his lack of memory caused him to sign an affidavit

that had “inaccuracies.” (See Vol. III, pp. 272-79, 282, 286, 289; Vol. IV pp. 67-69, 77, 95-98,

159). The Master finds that the term “inaccuracies” fails to capture the import of Diemer’s claims

about his affidavit. Diemer disavowed nearly all of the material portions of the affidavit, and, at

the request of Petitioner’s counsel, crossed out the sentences he disagreed with or stated were not

true. When he finished, there was little substance remaining to the affidavit; any references to the

“second car” or to Diemer’s directions to Weinstein with regard to the “second car” were crossed

out. (P. Ex. 165; Vol. III, pp. 244-261). Absent those statements, the affidavit has minimal value,

and there would have been little reason for obtaining it.

26

Diemer agreed that he reviewed various drafts of the affidavit, and then signed it two different

times, with the second signature made in the presence of a notary, thus turning it into a sworn

statement. (P. Exs. 13, 116-1, 116-2, 117, 165). Although minor changes were made as the drafts

evolved, the following sentence appeared in each draft: “Although I did not tell Ms. Weinstein to

lie or withhold information, I told her simply to answer the questions that were asked and not to

volunteer any information about the second car unless she was specifically asked to do so.” (Vol.

IV, pp. 55, 57, 62, 65; P. Ex. 13). During his testimony, Diemer crossed out the last half of that

sentence where it refers to the second car. (Ex. 165)

Diemer, sometimes evasive or resistant during his testimony, seemed to claim that he signed a

sworn statement either without knowing its contents or without understanding that “inaccuracies”

were supposedly in it. (See Vol. III, pp. 272-79, 282, 286, 289; Vol. IV 67-69, 77, 95-98, 159) His

explanation for this was that he “probably guessed at some of the stuff,” that he hadn’t had “the

luxury” of reviewing underlying documents even though he admits he never asked for them and

that he had “difficult[y]” explaining what happened. (Vol. III, pp. 275-279, 282, 286-88).

Diemer’s testimony made little sense. Although Weinstein’s trial testimony showed that she

did not “volunteer” anything about seeing a second car – an omission that corroborates Diemer’s

affidavit – Diemer cited her trial testimony as his basis for claiming his affidavit was “inaccurate.”

(Vol. III, pp. 273, 274-75, 277-78, 288). He stated that Weinstein’s trial testimony was the “real

evidence” and her denial of seeing any other car showed that his affidavit was wrong. (Vol. III, p.

278; Vol. III, pp. 230, 241, 245, 247, 258). Diemer denied ever having any pretrial discussion with

Weinstein about a second car. (Vol. III, pp. 239, 245, 247, P. Ex. 165). Yet, his claim is undercut

by his opening statement at trial, where he seems to already know precisely what she will state.

He informed the jury: “[S]he saw no other car leave.” (Trial Tr. p. 231).

27

Other, more credible, witnesses also contradict Diemer’s testimony: Brad Kessler and Sean

O’Brien, who were very credible, spoke directly with Diemer about the facts in the affidavit and

corroborated that the representations were made by Diemer. (Vol. II, pp. 41-45, Vol. IV, p 156; P.

Ex. 12). Further, Diemer’s efforts to disavow his affidavit were undercut by his own

correspondence, in which he states, after reviewing and signing the affidavit, that he had made

only “minor changes.” (P. Ex. 117). The affidavit also has other details in it, that were not disputed

by Diemer or which were corroborated by other evidence, including the pre-trial interview of

Weinstein by Paul D’Agrosa and that Diemer’s prosecution of the case depended heavily on the

elements of “time, distance and speed to demonstrate Larry Callanan’s presence at the scene of the

crime and exclusive opportunity to have been the shooter.” (P. Ex. 13; Trial Tr. p. 231). The

affidavit accurately describes Diemer’s approach at trial. In addition, Weinstein corroborated a

key element of Diemer’s affidavit – that they had met sometime before trial and had discussed the

issue of a “second car.” (Vol. II, p. 106:17-19).

For all of the reasons stated, the Master finds that Diemer’s hearing testimony lacked

credibility. His testimony is contradicted by other, more credible witnesses and by the trial record,

including Diemer’s own opening statement. The Master finds that it is Diemer’s affidavit, and not

his hearing testimony which should be credited.

Kara Weinstein

At the time of trial, Kara Weinstein was young, 19 years old. She was testifying about a

traumatic event under circumstances where she was the only witness who linked the defendant to

the crime. She met with the prosecutor, and he gave her specific instructions – not to volunteer

information about a “second car” unless she was specifically asked. (P. Ex. 13). As it turned out,

she was specifically asked, and she hesitated in responding. During cross examination, defense

28

counsel Paul D’Agrosa asked her if she had seen anyone else drive off from the scene other than

Callanan. She denied that she had, but hesitated: “I don’t think – no.” (Trial Tr. p. 310).

During the Rule 91 hearing, Weinstein confirmed that she’d had a conversation with Diemer

before trial about a “second car.” (Vol. II, p. 113:13-21). She was asked about her deposition

testimony displayed on the screen:

(P. Exh. 183-22).

After reviewing it, Weinstein stated: “Yes, I agree with that. It was on the deposition, yes.”

(Vol. II, p. 113:13-20) This portion of Weinstein’s testimony was credible and was consistent

with the admissions in Diemer’s affidavit.

Although Weinstein testified at trial without qualification that she saw Callanan cross Bent

Twig after hearing shots, she gave a different account at the Rule 91 hearing. In fact, her ability to

accurately perceive anyone on Bent Twig seemed very questionable. She remembered being

“afraid…and just kind of glancing down” the street as she passed Bent Twig (Vol. II, p. 92:23-

93:6) (emphasis added).

29

Initially at the hearing, Weinstein claimed that the person she saw was Claggett, who is about

10 inches shorter than Callanan and has a far smaller build. (Vol. VI, p. 127:24-128:10) Weinstein

testified that she thought the person was Claggett “because [of] his body type. . .I just saw a figure

walking across the street and it just matched what [Claggett] looked like.” (Vol. II, p. 115:12-15)

(emphasis added). Callanan is tall and large-boned, and Claggett is relatively diminutive. (Vol.

VI, p. 127:24-128:10). The Master observes that the size and shape of these two individuals are

in no way similar.

After stating she thought she saw Claggett, she then admitted it was dark outside, that she could

not see the individual’s face, and that she could only see a “silhouette.” (Vol. II, p. 174:4-21).

Weinstein stated: “I don’t know who it was.” (Vol. II, p. 174:5-6). Weinstein's testimony that she

thought she saw Claggett, then stating she saw an unknown person directly contradicts a central

component of her trial testimony, in which she testified without qualification that the man she saw

crossing the street was Callanan. (Trial Tr. p. 252).

Her testimony before the Master seemed generally credible, although her memory of the events

was limited.

Paul D’Agrosa

Paul D’Agrosa represented Callanan at trial. (Vol. IV, p. 173:1). D’Agrosa was an assistant

public defender for a short time after graduating law school in 1989 and then went into private

criminal defense practice. (Vol. IV, p. 169:19-107:3). D’Agrosa is now an Assistant U.S. Attorney

in St. Louis. (Vol. IV, p. 169:10). D’Agrosa testified about his investigation, interactions with

Diemer, and the trial. D’Agrosa appeared committed to presenting a truthful and complete

account. His memory of the trial was corroborated by the record and documents in his file, and he

30

answered questions sincerely and forthrightly. His demeanor while testifying was honest, sincere,

and professional. He answered questions directly and fully.

D’Agrosa made discovery requests of Diemer, including requests for Brady material. (P. Ex.

118-11). The police report was not disclosed to D’Agrosa until after he filed a motion to compel

and for sanctions. (Vol. IV, p. 192:19-193:3).

D’Agrosa testified that the case against Callanan was entirely circumstantial and depended

“exclusively” on Weinstein’s testimony that Callanan alone had opportunity to kill Schuh because,

according to Weinstein, she saw Callanan and “no other person and no other vehicle in the area at

the time.” (Vol. IV, p. 194:8, 195:2-3).

D’Agrosa testified unequivocally that he was “confident that was never disclosed to me, that

Kara Weinstein had saw another vehicle.” (Vol. IV, p. 209:7-8). D’Agrosa credibly testified about

what he would have done had Diemer disclosed that Weinstein had seen a second vehicle near the

scene. (Vol. IV, p. 210:13-212:3 (“Another vehicle leaving the scene, had Weinstein said that to

me or disclosed that to the grand jury… would have created the possibility, consistent with our

defense, that somebody else shot Johnny Schuh.”)). The Court finds these facts to be true. The

Court finds D’Agrosa to be a sincere and reliable witness and credits his testimony as truthful.

Sean O’Brien

Sean O’Brien represented Callanan from 1999 during his appeal from the 29.15 denial in

the Missouri Court of Appeals, Eastern District through federal habeas corpus proceedings

concluding in 2005. (Vol. VII, p. 8, 13).

Professor O’Brien is a tenured law professor, practicing attorney, and a nationally recognized

expert on the performance standard of counsel. The Court takes note that Professor O’Brien’s cases

set the Missouri legal standard for actual innocence, Amrine v. Roper, 102 S.W.3d 541 (Mo. banc

31

2003) and the gateway standard announced by the United States Supreme Court in Schlup v. Delo,

513 U.S. 298 (1995). Professor O’Brien is the regional habeas resource counsel for the Eighth

Circuit, a position through Office of Administration of the United States Courts to train public

defenders and private attorneys who are appointed to represent people under death sentence within

the Eighth Circuit. (Vol. VII, p. 5). Earlier in his career, Professor O’Brien was the chief public

defender in Jackson County, Missouri. Id. The Court finds his experience relevant and persuasive

to the finding that he is credible.

Diemer’s affidavit, the content of which provides the primary basis of Callanan’s Brady claim,

was signed by Mr. Diemer in 2002 (and again, before a notary in 2003), during Professor O’Brien’s

representation of Callanan. (P. Ex. 13).

Professor O’Brien testified about a meeting at Potosi Correctional Center on March 13, 2002,

attended by Professor O’Brien, Kessler, Diemer and Callanan. (Vol. VII, pp. 45-48; P. Ex. 116-

1). On the way back to St. Louis, Diemer told O’Brien and Kessler that Weinstein had seen a

second car leave the scene and discussed the importance of Weinstein’s testimony to the State’s

theory of “exclusive opportunity.” (Vol. VII, p. 41). Diemer agreed to sign an affidavit at the

meeting. (Vol. IV, p. 134). After correspondence and telephone calls between Diemer and

Professor O’Brien about the content of the draft, Diemer signed an affidavit which stated that

Weinstein had told him she saw a second car and that he had instructed her not to volunteer that

information. (P. Ex. 13). Diemer now disavows the relevant admissions in his affidavit—most

importantly he claims that Weinstein never told him she saw a second car leave the scene and,

therefore, he did not instruct her not to volunteer that information as his affidavit states. (Vol. III,

pp. 229-30).

32

Professor O’Brien’s demeanor while testifying was honest, genuine, and professional. He

answered questions completely and directly. His memory of his representation of Callanan and his

interactions with Diemer, was corroborated by Kessler, Callanan, the record, and documents in the

file—including detailed correspondence between Diemer and Professor O’Brien regarding the

contents of the affidavit. The Master believes that Professor O’Brien’s testimony regarding the

affidavit should be credited as truthful.

As to any other matter on which their testimony might conflict, this Court finds Professor

O’Brien to be a truthful, reliable witness.

Bradford Kessler

Bradford Kessler has been a practicing attorney since 1983, mainly as a criminal defense

attorney in the St. Louis area. Through an association with Emory University, Kessler also works

with NGOs to make their governments more transparent to encourage U.S. investment. (Vol. IV,

p. 125:22-126:24). Kessler and Diemer shared office space and eventually entered a partnership

in the early 2000s. (Vol. IV, p. 130:21-131:2). Kessler became acquainted with Callanan through

Kessler’s frequent visits to Potosi Correctional Center to visit clients. (Vol. 127:8-128:14; P. Ex.

12, p. 1). During Kessler’s association with Diemer, he and Diemer had conversations about

Callanan’s trial. (P. Ex. 12, p. 2). Diemer disclosed to Kessler that he “had specifically instructed

the State’s key witness, Kara Weinstein, not to mention the presence of a second automobile at the

time that she had seen in the vicinity of the Lassen home on Bent Twig when John Schuh was

shot.” Id. After learning from Diemer that Weinstein had told Diemer she saw a second vehicle

and that Diemer had instructed Weinstein not to mention the presence of the second vehicle,

Kessler told Diemer that he “should make this information available to Mr. Callanan and his

defense counsel, Sean O’Brien.” (P. Ex. 12, p. 2). As a result of those conversations Diemer,

33

Kessler and O’Brien—Callanan’s then counsel-- arranged to meet with Callanan at Potosi

Correctional Center. Kessler testified that during that meeting at Potosi Correctional Center on

March 12, 2002, Diemer agreed to “come clean about Kara Weinstein” and the presence of the

second car. (Vol. IV, p. 134:14-15l; P. Ex. 12, p. 2). Kessler testified that he would not have known

about Weinstein and her statements to Diemer about the presence of second vehicle at the scene

unless he obtained that information from Diemer. (Vol. IV, p. 136:16-19).

The Court carefully observed Kessler’s testimony and demeanor and finds him credible.

Kessler is corroborated by Diemer’s affidavit (P. Ex. 13), O’Brien, Callanan, Sindel, and the

record, including billing records, visitor logs, and correspondence. (P. Exs. 12, 13, 116-1, 116-2,

116-3, 117, 126-3, 166, 166-1). Kessler relied on his affidavit to refresh his recollection, and the

Court determines that he was genuine and forthcoming about his memory and the circumstances

and content of his conversations with Diemer. The Court notes that dissolution of Diemer and

Kessler’s partnership was not amicable and the Court considered that fact in making its credibility

determination. The meeting at Potosi Correctional Center predates the dissolution, as does

Diemer’s affidavit which corroborates Kessler. The Court finds that on matters in which Kessler

and Diemer differ Kessler is the more reliable and credible witness.

Lawrence Callanan

The Master relies on only limited portions of Callanan’s testimony, as almost all critical

testimony came from other witnesses. However, the Master finds that Callanan’s explanations

regarding his whereabouts immediately after and in the weeks following the shooting are credible

and are corroborated by other witnesses. (Vol. VI pp. 101-113). The evidence indicates that

Callanan indeed went to a pre-arranged conference at the Lake of the Ozarks with his father after

the shooting and that he continued to reside both at his father’s house and his mother’s house when

34

he returned. (Vol. VI pp. 101-113). The Master also observes that during his testimony, Callanan

was responsive and cooperative.

Tim Harper

Tim Harper testified regarding the events surrounding the shooting. (Vol. I, pp. 261-279).

Harper’s demeanor was candid, respectful, and non-evasive. His testimony was appropriately

succinct—he appeared to simply answer the questions asked of him to the best of his recollection.

Harper’s testimony is corroborated both by his testimony at trial and by the testimony of other

witnesses who were present at the Lassen home the night of the shooting. For these reasons, the

Master finds Harper’s testimony credible.

Leo McLaughlin

Leo McLaughlin also testified regarding the events surrounding the shooting. (Vol. III, pp.

18-38). The Master notes that McLaughlin is a long-time friend of Callanan and was convicted of

witness tampering in connection with Callanan’s case. (Vol. III, pp 9-10, 77-78). Despite this, the

Master still finds the bulk of McLaughlin’s testimony credible. McLaughlin’s recollection of the

events surrounding the shooting was consistent with that of other witnesses present at the scene.

Similarly, McLaughlin’s recollection of the Losing brothers appearing at the scene shortly after

the shooting is corroborated by other evidence. (Vol. III, pp. 37-38). However, the Master finds

that McLaughlin’s denial that he ever told Weinstein, “Larry did something stupid,” is not credible.

(Vol. III, p. 113). McLaughlin acknowledged that he was intoxicated and that his memory may

have been impaired accordingly. (Vol. III, p. 115-16).

Ron Claggett

Ron Claggett likewise testified regarding the events surrounding the shooting. (Vol. I, pp.

174-203). Claggett appeared visibly shaken by the memory of seeing Schuh’s body on the porch,

35

a response consistent with his testimony that he left the scene soon after shots were fired because

he was afraid. (Vol. I, p.230:19-25). Claggett appeared sincere and respectful. His testimony was

consistent with his trial testimony and with the testimony of other witnesses who were present at

the time of the shooting. Claggett carefully answered questions posed by the Master and clarified

to the best of his recollection details regarding the layout of the Lassen home, his position in the

living room at the time shots were fired, and the car he claimed to have seen as he left the Lassen

home. (Vol. I, pp. 244-245, 199). The Master finds that Claggett’s memory of the events was clear

on most points, that he testified honestly when his memory was not clear, and that his testimony

was credible.

Richard Healy

Richard Healy, a mutual friend of Callanan and Weinstein, testified about the events

preceding the shooting. (Vol. V pp. 248-255). Healy’s testimony that it was commonly known at

the time of trial that Weinstein and Losing were romantically involved is corroborated in part by

other witnesses. (Vol. VII, pp. 70:21-71:1) Similarly, Healy’s testimony that he did not know

Callanan to carry a firearm is consistent with the testimony of other witnesses. (Vol. V, p. 259:14-

15; Vol. I, p. 32:20-21; Vol. III, p. 113). Healy appeared to answer questions candidly and to the

best of his recollection. The Master finds his testimony credible.

Christopher Boelhauf

Christopher Boelhauf, a mutual friend of Callanan and Schuh, testified about events

preceding the shooting. (Vol. III, pp. 65-78). Boelhauf was forthcoming about his prior convictions

and about drug use among his friend group, and he acknowledged that it was difficult for him to

talk about Schuh’s death. (Vol. VIII, p. 86). He appeared to answer questions to the best of his

recollection. While Boelhauf did not recall every detail to which he testified at trial, his memory

36

was clear on most points. Boelhauf also credibly clarified for the Master that, when he asked Schuh

about the altercation between Callanan and Schuh at the Columbia Bottoms party, Schuh stated it

was “nothing.” (Vol. VIII, p.87:5-6). The Master finds Boelhauf’s testimony credible.

Ronald Singer

Ronald Singer has worked for 46 years as a criminalist in the field of forensics. (Vol. VIII, pp

90:24-91:1) He has a Bachelor’s and Master’s degree in science, and during his career, has

focused in specific areas, including firearm and toolmark identification and crime scene

investigation and reconstruction. (Vol. VIII, pp. 91:4-24) For 20 years, he was the crime lab

director for the Tarrant County Medical Examiner’s Office and more recently has been the

technical and administrative director for the Medical Examiner. (Vol. VIII, pp. 90:18-90:23)

Before providing opinions in this case, he reviewed the case record, including the crime scene

video, photographs, diagrams, police reports, lab reports, scientific testimony from the trial, and

the autopsy report. (Vol. VIII, pp. 120:18-128:8)

The Master finds that Singer was qualified by background and education and that he reliably

applied the principles and techniques of his field. The Master found his opinions well-grounded

and useful to understanding other possible scenarios for the shooting. (Vol. VIII, pp. 121:14-

122:22; 145:3-147:8)

John Hefele, Robin Corley, and Daniel Clark

The Master finds that Hefele, Corley, and Clark—the three defense investigators who

testified—were professional, respectful, and gave candid explanations of the work they performed

on Callanan’s behalf. The Master finds that their testimony aided in understanding critical issues

regarding Weinstein’s account and the police investigation. The Master finds their testimony

credible, but not persuasive.

37

Jurors Linda Zeman and Patricia McKenna

Jurors Linda Zeman and Patricia McKenna both appeared cooperative and candid. The

Master finds their testimony credible.

c. The Diemer Affidavit

First, the Master finds that Diemer’s 2003 affidavit undermines Weinstein’s testimony and

renders the State’s theory of exclusive opportunity false. Diemer swore in his affidavit that

Weinstein saw a second car leave the scene in the same time frame that she saw Callanan’s truck.

Diemer instructed Weinstein not to “volunteer” this information unless “specifically asked to do

so.” (P. Ex. 13). Diemer was “concerned that the presence of the second vehicle in that time frame

would raise the inference that another person was also present and had equal opportunity to commit

the crime.” (P. Ex. 13). The Master finds that the presence of a second car indeed raises the

inference that another person had equal opportunity to commit the crime and thereby undercuts

the sole basis of the State’s case against Callanan.

Diemer disavowed this affidavit at the Rule 91 hearing. It is therefore necessary to explain why

the Master credits the affidavit and not Diemer’s disavowal of it.

In early 2002, Sean O’Brien—Callanan’s counsel at the time—arranged to meet with Diemer,

Brad Kessler, and Callanan at Potosi Correctional Center. (Vol. VII, p. 36:21-37:15). Kessler was

Diemer’s former law partner and a friend of O’Brien, and he helped facilitate the meetings between

O’Brien and Diemer. (Vol. VII, p. 35:18-22). O’Brien testified that his hope was for Diemer to

arrange negotiations with St. Louis County Prosecutor Bob McCulloch. (Vol. VII, p. 76:19-23).

O’Brien never spoke with McCulloch. (Vol. VII, p. 77:1-3).

During Kessler’s conversations with Diemer, Kessler learned that Weinstein had seen a second

car and that Diemer instructed her not to mention this fact. (Vol. IV, p. 132:3-18; P. Ex. 12).

38

Kessler encouraged Diemer to share this information with O’Brien and arranged a visit at Potosi

with Callanan, Kessler, Diemer, and O’Brien. (P. Ex. 12). Kessler testified that the purpose of the

meeting was for Diemer to “come clean” about telling Weinstein not to disclose that she saw a

second car. (Vol. IV, p. 134:12-16).

O’Brien testified at the Rule 91 hearing that Diemer stated at the meeting that Weinstein had

seen a second car leave the scene. (Vol. VII, 40:12-18). On the ride back to St. Louis, O’Brien

took notes from Diemer’s point of view as Diemer discussed the second car and Weinstein’s

importance to the State’s theory of “exclusive opportunity.” (Vol. VII, p. 40:24-41:14, 44:17-25).

O’Brien took notes because he had spoken with Diemer about the possibility of providing a

statement or an affidavit, and he wanted to accurately capture Diemer’s own words. (Vol. VII, p.

41:5-18). Kessler testified that Diemer agreed to sign an affidavit. (Vol. IV, p. 134:20-24).

O’Brien testified that Diemer was “absolutely . . . concerned about that second car,” and

“understood the significance” and its “potential for injecting reasonable doubt into his case.” (Vol.

VII, p. 45:2-14). Diemer understood that O’Brien was going to append to a habeas petition any

statement or affidavit Diemer provided. (Vol. VII, p. 45:12-15).

On March 14, 2002, the day after their meeting at Potosi, O’Brien faxed a letter and a draft

affidavit to Diemer. (Vol. VII, p. 45:16-23; P. Ex. 116-1). The letter explained that in federal

habeas proceedings, pleadings must be supplemented with affidavits, and asked Diemer to review

the draft affidavit and “edit it for completeness and accuracy.” (Vol. VII, 46:19-47:6; P. Ex. 116-

1). The letter also asked Diemer to fax an invoice, as O’Brien had agreed to compensate Diemer

for his time. (Vol. VII, 47:7-23; P. Ex. 116-1).

39

(Excerpt of P. Ex. 116-1).

On March 15, 2002, O’Brien sent another letter to Diemer asking him to confirm that

everything in the affidavit was accurate. (Vol. VII, 49; P. Ex. 116-2). The letter indicates that

O’Brien had misstated the identity of the Losing brother involved in the Harper interview and

asked for clarification on when Weinstein saw the second car. (P. Ex. 116-2). They had a phone

conversation following this letter so that O’Brien could ensure the details of the affidavit were

accurate. (Vol. VII, p. 49:20-50:11). Diemer recalled having a phone conversation with O’Brien.

(Vol. III, p. 266).

On March 21, 2002, Diemer sent O’Brien a letter containing an invoice and signed affidavit

draft reflecting minor changes to the draft faxed to him by O’Brien. (Vol. VII, p. 51:12-24; P. Ex.

117)

40

(Excerpt of P. Ex. 17).

In light of the correspondence between O’Brien and Diemer that was introduced at the Rule

91 hearing which clearly indicated that Diemer read and edited his affidavit, the Court finds his

testimony disavowing the affidavit implausible and false.

Diemer edited the affidavit to clarify that Weinstein saw the second car around the same

time she saw Callanan’s truck. (Vol. VII, 53:4-9; P. Ex. 117). Diemer also edited the sentence, “I

was concerned that the presence of a second vehicle in that timeframe would raise the inference

that . . .” (Vol. VII, p. 54). Diemer changed the word “would” to “might.” (Vol. VII, 54:6-19; P.

Ex. 117). Diemer also edited the paragraph regarding the Losing brothers to reflect that Bill Losing

was the one present for the Harper interview and removed language about Russ being a large and

imposing figure who was present during at least one witness interview. (Vol. VII, 54:24-55:18; P.

Ex. 117). Finally, Diemer removed the final paragraph stating that O’Brien prepared the affidavit

on Diemer’s behalf and that Diemer was signing it because it was truthful. (Vol. VII, 56). Diemer

signed this version of the affidavit, but it is not notarized. It was mailed to O’Brien on March 21,

2002, according to Diemer’s correspondence to O’Brien. (Vol. VII, 57; P. Ex. 117). The critical

passages in the affidavit are:

41

(P. Ex. 117, pp. 1-2).

O’Brien appended that version to his motion for leave to amend Callanan’s federal habeas

petition. (Vol. VII, p. 57:20-25). The Court, in rejecting Callanan’s motion for an evidentiary

hearing, commented in footnote that the affidavit appended to Callanan’s motion for leave to

amend was not notarized. (Vol. VII, p. 60:4-12; P. Ex. 121-10, p. 4). Accordingly, O’Brien

requested that Diemer sign and notarize a new copy of the affidavit, which Diemer did without

objection. (Vol. VII, 61; P. Ex. 13). This version of the affidavit contains the word “would “ instead

of “might” in the sentence regarding the inference to be drawn from the second car, and it contains

the paragraph Diemer previously deleted, stating that O’Brien prepared the affidavit on Diemer’s

behalf and Diemer is signing it because it is the truth. (Vol. VII, 61:18-62:15; P. Ex. 13). O’Brien

testified that his administrative assistant prepared this version and that these differences were

mistakes in preparation. (Vol. VII, p. 62:18-63:41). The version that Diemer agreed to sign and

have notarized is nearly identical to the version Diemer signed seven days after visiting Callanan

at Potosi Correctional Center. (Compare P. Ex. 117 and P. Ex. 13). In both affidavits signed by

Diemer, the critical passages remain substantively intact:

42

O’Brien testified that Diemer has never contacted him regarding the affidavit or its accuracy.

(Vol. VII, p. 73:16-21). O’Brien testified that Diemer did not appear reluctant to sign the affidavit.

(Vol. VII, 73:22-25). O’Brien testified that Diemer’s affidavit destroyed the State’s theory of

exclusive opportunity, destroyed its timeline, and impeached Weinstein’s credibility. (Vol. VII,

68:16-69:15).

O’Brien testified that he did not include certain information in Diemer’s affidavit for fear that

Diemer would not sign it due to his representation of the Losing brothers. (Vol. VII, p. 69:19-

70:10). O’Brien testified that, for example, at the Potosi meeting, Diemer stated that Weinstein

and Bill Losing were romantically involved at the time of trial. (Vol. VII, p. 70:19-71:1). Kessler

signed an affidavit attesting to other information not contained in Diemer’s affidavit. (P. Ex. 12).

That affidavit was obtained by Rick Sindel. (Vol. V, p. 24:12-25:7).

Sindel is a criminal defense attorney who handles postconviction, federal habeas, and capital

cases. (Vol. V, p. 4:2-5:21). Sindel began representing Callanan in 2004 or 2005. (Vol. V, p. 7:14-

43

16). At the time, Kessler and Diemer worked together. (Vol. V, p. 24:20-22). Sindel testified that

the purpose of an affidavit was to provide information additional to Diemer’s affidavit regarding

statements Diemer had made. (Vol. V, p. 24:12-18). He testified that the affidavit was as factually

accurate as possible, as it would have been devastating to Callanan’s habeas corpus petition to

have an affidavit that was not. (Vol. V, p. 41:19-25).

Kessler signed his affidavit in 2006, reflecting his conversations with Diemer. (Vol. IV, p.

156:16-19; P. Ex. 12). Kessler stated that Diemer admitted that he believed that he would not have

been able to submit the case to a jury without Weinstein’s testimony and that Weinstein’s

credibility was “absolutely necessary in order for the State to meet its burden of proof.” (P. Ex.

12). Diemer admitted that “[t]estimony that another car was in the area would have undermined

[Weinstein’s] presence at the intersection of Bent Twig Lane and Meadowdale Drive, would have

seriously challenged the time line that was created by her testimony and undermined her

credibility.” (P. Ex. 12). Diemer also admitted that he had regular contact with the Losing brothers

throughout preparation for trial and during trial and represented them in several matters after trial.

(P. Ex. 12).

The Master finds that O’Brien, Kessler, and Sindel each testified credibly regarding their

conversations with Diemer and about Diemer’s affidavit.

On June 22, 2018, Diemer sent a complaint letter to the Office of the Chief Disciplinary

Counsel (“OCDC”), in which he alleged that Kessler, in signing his 2006 affidavit, committed

professional misconduct in the following respects: knowingly making a false statement; offering

evidence known to be false for the purpose of harassing Diemer; and failing to make a disciplinary

complaint against Diemer when he learned of Diemer’s alleged misconduct. (P. Ex. 182-1). In the

letter, Diemer denied that he ever coached Weinstein to withhold information. (P. Ex. 182-1).

44

On August 22, 2018, Kessler submitted a response to this complaint. (P. Ex. 182-6). Kessler

wrote, “I stand by everything contained in my Affidavit.” (P. Ex. 182-6). Kessler wrote that Diemer

disclosed to him that “he had specifically instructed a witness” not to offer information regarding

other potential suspects unless asked. (P. Ex. 182-6). Kessler stated that Diemer again “admitted

to the particulars of the exculpatory evidence that he withheld” from Callanan during the meeting

at Potosi with Kessler, O’Brien, and Callanan. (P. Ex. 182-6).

On the day Diemer was under subpoena to testify at the Rule 91 hearing, he failed to appear.

(Vol. III, 144). The Master directed the parties to contact Diemer’s attorney to ensure that he

appeared the following day. Diemer testified the following day. (Vol. III, 144). Diemer did not

produce documents responsive to his subpoena duces tecum at the time of his testimony. (Vol. III,

p. 145).

Diemer disavowed portions of his 2003 affidavit and testified that Weinstein never told him

she had seen a second car. (Vol. III, p. 229-30). Diemer’s testimony regarding the affidavit was

argumentative and evasive, which the Master finds undermines his credibility. Diemer at times

bloviated on this issue, making his testimony difficult to follow or discern. The Master finds that

this, too, undermines Diemer’s credibility.

Diemer testified that he did not dispute the authenticity of the second page, on which his

notarized signature appears. (Vol. III, p. 231). Diemer testified that the first page contained

statements that were not true and suggested that it may have been swapped out. (Vol. III, p. 235).

Diemer crossed out each statement in the affidavit he believed was incorrect. (Vol. III, 234).

Diemer claimed that much of the affidavit he signed in both 2002 and another notarized version in

2003, were incorrect. The excerpt below represents Deimer’s handwritten edits to his signed and

sworn affidavit:

45

Diemer denied that he was assigned the case prior to Callanan’s arrest. (Vol. III, pp. 232, 236).

Diemer denied that Weinstein was “flighty” but did not cross that out. (Vol. III, p. 237).

Diemer denied that he “prepared” Weinstein to testify before the grand jury. (Vol. III, 238).

Diemer denied that Weinstein ever told him she had seen a second car around the same time

that she saw Callanan’s truck. (Vol. III, p. 239).

46

Diemer denied that he assumed Weinstein would have told D’Agrosa about the presence of a

second car had he asked her about a second car. (Vol. III, p. 248). Diemer denied that he would

have suborned perjury. (Vol. III, p. 249).

Diemer agreed that he was concerned that the presence of a second vehicle could raise the

inference that another person had opportunity to commit the crime, but he denied that there was a

second vehicle. (Vol. III, p. 250).

Diemer denied that he would ever instruct a witness to withhold exculpatory information. (Vol.

III, p. 255).

Diemer suggested that the version of the affidavit handed to him for markup may have been

“some other iteration.” (Vol. III, p. 260).

Diemer testified that he recalled receiving a draft of the affidavit but did not recall reviewing

it. (Vol. III, p. 263-64).

Diemer was shown correspondence between himself and Sean O’Brien reflecting Diemer’s

requested edits and drafts incorporating those edits. (Vol. III, pp. 264-65; P. Exs. 116-1, 116-2).

Diemer agreed that his signature appears on the updated affidavit. (Vol. III, p. 270). Diemer

then testified that he signed the affidavit believing it was true at the time but that after reviewing

the trial transcript, he does not believe the affidavit is accurate. (Vol. III, 276). Diemer testified

that he believes the affidavit is false because he asked Weinstein about a second car at trial, and

she denied seeing one. (Vol. III, p. 276).

Diemer testified that he may have discussed a second car with Callanan, O’Brien, and Kessler

but that it was without the benefit of documents and transcripts. (Vol. III, p. 289). Notably, the

trial transcript comports with, not contradicts, the content of Diemer’s affidavit—Diemer asked

Weinstein if she saw a second car, and she said no. (Trial Tr. 282).

47

e. Police Investigation

The Master finds that the police investigation was not thorough or complete, as evidenced by

the testimony of Butch Albert and Dan Clark and that a thorough investigation might have

undermined Weinstein’s uncorroborated account. The Master proceeds first, for context, with a

summary of the police investigation as represented in the police reports, and then with testimony

from the Rule 91 hearing.

Police received a call at 3:15 a.m. from Kedric Curtis, a neighbor, reporting shots fired at the

Lassen home. (P. Ex. 48, p. 1). Officers arrived at the Lassen home at 3:27 a.m. (P. Ex. 48, p. 1).

Schuh was found on the front porch with multiple gunshot wounds and was pronounced dead five

minutes after their arrival. (P. Ex. 9, p. 4-5).

A diagram of the scene was later prepared by Detective Schupp. (P. Ex. 9, p. 14).

Upon arriving at the Lassen home, officers videotaped and took still shots of Schuh and the

crime scene, including both the front of the home and its interior. (P. Ex. 9, p. 9, 13). The scene

was dark as depicted in a still from the video taken at the scene.

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(P. Ex. 6).

Officers seized the following items: video tape, an apparent bone fragment, a cigarette butt

from the edge of the porch, a projectile from the porch, a jacket fragment from the victim’s shirt,

fragments from the right side of the door frame, the base of the door, three beer bottles, and lead

and copper fragments. (P. Ex. 9, p. 13-14).

At the scene and over the course of the next few days, officers interviewed neighbors and those

who were present at the Lassen home that night. (P. Ex. 48, p. 17-33). There were no eyewitnesses

to the shooting.

Tom Lassen, Leo McLaughlin, Ronnie Claggett, Shane Meyerkord, Jay Chrisco, Tim Harper,

and Jami Walkenhorst were all inside the Lassen home when Schuh was killed. (P. Ex. 48, p. 17-

33).

49

Chrisco stated that, around 3:15 a.m., he heard shots fired outside the Lassen home. (P. Ex. 48,

p. 27). He and everyone else in the house walked outside, and he did not see Callanan. (P. Ex. 48,

p. 27).

Lassen stated that when he walked outside, he did not see any person or vehicle leaving. (P.

Ex. 48, p. 26). Lassen did not mention Callanan in his interview with police. (P. Ex. 48, p. 26).

Harper stated that when he walked outside after hearing shots fired, he never saw Callanan. (P.

Ex. 48, p. 27).

Walkenhorst stated when he walked outside after hearing shots fired, he did not see Callanan.

(P. Ex. 48, p. 28).

McLaughlin likewise stated that when he walked outside, he did not see Callanan. (P. Ex. 48,

p. 25).

Claggett was the first out the door after shots were fired. (P. Ex. 48, p. 31). Claggett did not

see anyone other than Schuh when he walked outside. (P. Ex. 48, p. 31). Claggett drove away in

his purple Camaro before police arrived. (P. Ex. 48, p. 31).

Meyerkord stated that when he walked outside, he did not see Callanan, but he did see Claggett

drive away. (P. Ex. 48, p. 28).

No one at the Lassen home that night could give police a potential motive for the shooting. (P.

Ex. 9, p. 32).

Earl Tippett was a neighbor whose backyard was adjacent to Lassen’s backyard. (P. Ex. 48, p.

20). Tippett told police that he woke up to the sound of gun fire and then looked out of a bedroom

window. (P. Ex. 48, p. 20). He then moved to another bedroom window, from which he could see

the Lassen’s front yard. (P. Ex. 48, p. 20). Tippett saw a maroon or purple Camaro style car leaving

50

Bent Twig a few minutes after the shots were fired. (P. Ex. 48, p. 20). Tippett gave no indication

that he saw a truck. (P. Ex. 48, p. 20).

An original report authored by Officer Kelly shortly after the shooting identifies Weinstein as

a “reporting party” but does not contain any statement from Weinstein. (P. Ex. 9, p. 4).

According to a supplemental police report Albert submitted six months after the shooting,

Weinstein told Albert in Kelly’s patrol car that after she dropped Callanan, McLaughlin, and Schuh

off at the Lassen house, she turned around in the cul de sac at the end of the street and then turned

left from Bent Twig onto Meadowdale. (P. Ex. 48, p. 23). She heard shots fired and turned around

in the “second driveway on the west side” and drove back toward the intersection of Bent Twig

and Meadowdale. (P. Ex. 48, p. 23). When Weinstein looked back toward the Lassen home, she

saw Callanan walking from the yard to his truck. (P. Ex. 48, p. 23). After passing the intersection,

she pulled into another driveway, turned around, and drove back toward Bent Twig. (P. Ex. 48, p.

23). When she did so, she saw Callanan’s truck turn right onto Meadowdale with the headlights

off. (P. Ex. 48, p. 23). Weinstein told Albert that, when she returned to the Lassen home,

McLaughlin told her, “Larry did something stupid.” (P. Ex. 48, p. 23).

Butch Albert acknowledged shortcomings in the police investigation.

Albert testified at the Rule 91 hearing that Weinstein was the State’s key witness and was

indeed the only witness who tied Callanan to the crime. (Vol. V, p. 105:7-12, 155:21-24). Albert

acknowledged that no one corroborated Weinstein’s account. (Vol. V, 157:5-9). Albert formally

interviewed Weinstein only once—on the night of the occurrence within two hours after the

homicide occurred. (Vol. V, p. 106:1-18). Albert “had other contacts with her as time went on,

especially by telephone,” but he did “not consider those to be long, in-depth interviews.” (Vol. V,

p. 106:5-7). Albert testified that no one formally conducted follow-up interviews with Weinstein;

51

officers spoke with her at her house and contacted her by phone. (Vol. V, pp. 106:23-107:13). At

a follow-up interview six weeks after the shooting, detectives indicated they learned no new

information; the police report merely states that Weinstein’s statements were “consistent with

those listed previously.” (Ex. 9 at 38).

Albert acknowledged that the homicide report not completed until six months after the

homicide occurred. (Vol. V, p. 99:22-25). Albert also acknowledged that, while the report was

being prepared, the case officer could continue to add to it until it was finalized. (Vol. V, p. 108:2-

6). Albert testified that he included in the report all significant statements made by witnesses, and

that if certain statements were not included, that is because the witness did not make those

statements. (Vol. V, p. 110:10-17). Albert testified that Weinstein did not provide any additional

information in follow-up interviews. (Vol. V, p. 123:11-14). Albert testified that Weinstein never

described seeing the three men (Callanan, Schuh and McLaughlin) in front of the Lassen home

after she dropped them off. (Vol. V, p. 124:7-10).

Albert testified that he did not recall ever asking Weinstein why she drove back towards

gunfire. (Vol. V, p. 137:5-23). Albert acknowledged that her motivation for turning around could

have been important. (Vol. V, pp. 137:24-138:3).

Although Albert interviewed Weinstein at 5:15 a.m. the morning of the homicide after she had

been partying and drinking all night, he did not ask her about when she had consumed the alcohol

she reported drinking. (Vol. V, p. 139:2-16).

Albert also acknowledged that Weinstein was experiencing trauma in addition to having

consumed alcohol, but he did not question her ability to perceive or retain information. (Vol. V, p.

140:7-22). Albert testified, however, that he was concerned about Weinstein driving herself home.

52

(Vol. V, p. 142:3-5) In fact, Officer Kelly drove Weinstein home at Albert’s suggestion. (Vol. V,

p. 141:11-19; P. Ex. 9, p. 25).

Albert testified that police never attempted to document what could be seen from Weinstein’s

various vantage points, even though her ability to view what she claimed was central to the case.

(Vol. V, p. 157:5-18).

Albert never took Weinstein to any location in the area to have her show where she had driven

on the night of the homicide. (Vol. V, p. 128:18-22). Albert also did not drive the route that

Weinstein described and did not document any of the distances or specific addresses along the

route. (Vol. V, pp. 129:12-18, 159:22-24). Albert also did not prepare or request that a diagram

be drawn to reflect Weinstein’s reported route. (Vol. V, p. 234:19-23).

Albert testified that the police did not take photos or video footage from Weinstein’s vantage

points. (Vol. V, pp. 132:22-133:4). Albert believed that such photos were taken by investigators

with the prosecutor’s office months after the shooting, when there was no foliage on the trees.

(Vol. V, p. 132:1-14).

Albert testified that police did not document the address for the driveway where Weinstein

turned around the first time and did not document how Weinstein knew which driveway she had

turned around in. (Vol. V, p. 135:8-19). Albert never took Weinstein to the location to confirm

which driveway she had turned around in. (Vol. V, p. 135:20-25).

Similarly, Albert did not ask Weinstein to show him the second driveway she had turned

around in after passing Bent Twig on Meadowdale. (Vol. V, p. 149:21-23). Albert did not contact

the resident of the house that Weinstein described and did not attempt to get the address of that

house. (Vol. V, p. 150:2-14).

53

Albert acknowledged that pine needles were found on Schuh’s body. (Vol. V, p.162:8-18). He

testified that police did not search the yard or the area around the bush on the right side of the

home. (Vol. V, p. 171:4-18). Police also did not search the right side of the home, opposite from

the driveway. (Vol. V, pp. 171:25-172:16).

Albert testified that when the police seized Schuh’s clothes, they found a bag of cocaine in his

back pocket. (Vol. V, p. 164:3-4). A toxicology report later revealed that alcohol, cocaine, and

marijuana were in Schuh’s system. (P. Ex. 63). Albert testified that these were clear indicators

Schuh may have been involved in drugs. (Vol. V, pp. 163:23-164:7). Albert testified that this was

a lead that could have been pursued, but that it was not. (Vol. V, p. 164:8-10). Albert testified

that, in his experience, drug disputes sometimes lead to violent encounters. (Vol. V, p. 163:13-19).

Albert considered the possibility that Schuh had been in a struggle near the hedge. (Vol. V, p.

172:17-22).

Albert testified that he “ran [Schuh’s] record.” (Vol. V, p. 164:15). Schuh’s criminal

background, according to an NCIC printout, included arrests or charges for selling a counterfeit

controlled substance, possession of a controlled substance, obstruction of justice, assault, burglary,

armed robbery, armed criminal action, and stealing. (P. Ex. 30).

The night of the shooting, Schuh came to Donna Losing’s house around 12:30 a.m. looking

for Russell Losing, but Russell was not home. (Vol. V, p. 174:8-16). Schuh then went to Bill

Losing’s house and borrowed $20.00. (Vol. V, 174:15-16; P. Ex. 9, p. 35). Albert testified that, in

his 29 years of experience, it would not surprise him if Schuh’s murder was drug related, and that

drugs and money were left on Schuh. (Vol. V, p. 228:21-25).

Albert testified that the warrant information sheet prepared by Detective Berra would have

been provided to the prosecutor’s office. (Vol. V, p. 114:2-115:17). Albert acknowledged that the

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warrant information sheet claimed that Callanan and Schuh had a history of arguments, fights, and

drug dealing. (Vol. V, p. 116:18-24). Albert testified that he was not aware of any history of drug

dealing involving Callanan with Schuh. (Vol. V, p. 118:21-25). Albert testified that, other than a

purported altercation at the Columbia Bottoms party that night, the police reports do not indicate

a history of altercations between Callanan and Schuh. (Vol. V, p. 117:9-118:20). Albert testified

that he was not aware of the source of the claims made in the warrant information sheet and agreed

that these claims do not appear in the police report. (Vol. V, p. 119:7-120:12).

Albert testified that they did not obtain a search warrant for Callanan’s home because “no judge

would have issued a search warrant based on the information [detectives] had.” (Vol. V, p. 170:17-

19).

Dan Clark Acknowledges Failures in the Police Investigation

Dan Clark likewise testified about what he viewed as shortcomings in the police

investigation based on his review of the case. (Vol. VII, 141). Clark testified that he is a semi-

retired private investigator with 25 years of experience and was security police for the Air Force,

an officer at the Clay County Sheriff’s Department and an investigator for the public defender’s

office before he became a private investigator. (Vol. VII, 134-35).

Clark testified that the police failed to adequately follow up on some of the statements that

Weinstein made. (Vol. VII, 158). Clark testified that, even though Weinstein identified the homes

of Tippett and Michalski as where she turned around, police merely identified the houses as the

first or second from the intersection. (Vol. VII, 159). Police made no efforts to document

Weinstein’s vantage point from that night. (Vol. VII, 159). No one took Weinstein to drive the

route she claimed to have driven. (Vol. VII, 160). Clark testified that it was important for police

to take her to drive the route and document where she remembered turning and what she saw. (Vol.

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VII, 160). Clark further testified that Michalski was never interviewed until just before trial, even

though Weinstein stated that she turned around in his driveway. (Vol. VII, 161).

Clark testified that, because many of the young witnesses at the scene that night had consumed

much alcohol, it was important to follow up with them when they were sober. (Vol. VII, 163).

While police did this with Claggett and McLaughlin, they did not interview Weinstein again until

two or three weeks later. (Vol. VII, p. 163:16-22).

f. Involvement of the Losing Brothers

The Master finds that the involvement of the Losing brothers undermines the credibility of the

police investigation and that Bill Losing’s romantic involvement with Weinstein undermines her

credibility at trial.

The Losings were involved with the case from the beginning—McLaughlin testified that,

shortly after officers arrived at the scene, the Losings showed up yelling in the front yard. (Vol.

III, 37-38). As McLaughlin waited in a patrol car to be interviewed, he heard an all-points bulletin

come over the radio stating that Schuh’s brothers could be on the street, armed and dangerous.

(Vol. III, 37-38).

Bill Losing later called McLaughlin at his home and implied that McLaughlin had shut the

door on Schuh and knew what had happened to him. (Vol. III, 47). After the call, both Russell and

Bill Losing went to McLaughlin’s house, where they threatened him and insisted he had shut the

door on Schuh. (Vol. III, 48-49). Multiple witnesses expressed concern about the Losings’

continued involvement and the fear it caused them. (Vol. III, 139; Vol. V, 201).

Claggett testified that, before trial, he was waiting in a witness room. (Vol. I, 212). Claggett

recalled that Bill Losing came into the room with crime scene photos of Schuh and shoved them

in his face. (Vol. I, 212-13). Claggett testified that Losing threatened him and said things like,

56

“You better cooperate,” and, “If you don’t say the right things, I’m going to follow you out to the

parking lot.” (Vol. I, 214).

Diemer allowed the Losings to be involved in his investigation. Bill Losing was present during

at least one interview that Diemer conducted, including that of Harper. (P. Ex. 13; P. Ex. 145). Bill

Losing picked up Harper and drove him to that interview. (Vol. VII, 105).

Bill Losing was also romantically involved with Weinstein at the time of trial. Rich Healy

testified that their romantic relationship was “common knowledge” before Callanan’s trial. (Vol.

V, 256).

Weinstein testified that she was not acquainted with any members of Schuh’s family at the

time of the homicide. (Vol. II, 56). Weinstein testified that, at the time of trial, she and Bill Losing

were “close” and spoke regularly. (Vol. II, 15-16). At some point, they kissed at his home, and she

met his mother and older brother. (Vol. II, 17-18).

O’Brien testified that Diemer stated at the Potosi meeting that Weinstein and Losing were

romantically involved at the time of trial. (Vol. VII, p. 70:19-71:1).

The day before Weinstein testified at the Rule 91 hearing, Losing comforted and consoled her.

(Vol. II, 13:11-14:5). Losing denied that he knew Weinstein or had ever spoken with her. (Vol. IX

pp. IX pp. 119:14-123:4). His testimony is contradicted by other witnesses and the evidence before

the Court.

g. Claggett’s Testimony Undermines Weinstein’s

Claggett testified at the Rule 91 hearing that he was at the Lassen home the night of the

shooting. (Vol. I, p. 181:8-15). Claggett testified that he heard shots between one and three minutes

after McLaughlin arrived at the Lassen home. (Vol. I, p. 193:6-193:6). Claggett testified that he

was sitting on the couch in the living room, on the phone with his girlfriend Rachel Heaton, when

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he heard shots fired. (Vol. I, p. 190:5-16; 182:14-21). Claggett was facing the back of the house.

(Vol. I, p. 184:14-17). The front door was closed. (Vol. I, 184:18-22). When he heard the shots,

he initially believed they were fireworks, but he felt frightened and hung the phone up. (Vol. I,

190:11-25). Claggett walked to the kitchen, and no one knew what the sound was. (Vol. I, 191:11-

25). Claggett then walked to the foyer, where he saw that the front door was open. (Vol. I, 191:1-

4). As he looked closer, he saw Schuh’s body on the front porch. (Vol. I, 191:5-6). Claggett

described this as the worst thing he’d ever seen. (Vol. I, p. 191:9:10). Accordingly, he got into his

car and drove home. (Vol. I, p. 191:). Claggett believed that he was the first one to see the body

and the first one to leave. (Vol. I, p. 191:16-192:1).

His car, a ’92 Camaro, was parked across the street. (Vol. I, p. 194:22-195:3). He ran to his car

after seeing Schuh’s body. (Vol. I, p. 196). He did not see Callanan or Callanan’s truck, and he did

not hear anything that made him think there was a fleeing vehicle. (Vol. I, p. 196:6-23).

Claggett recalled testifying at a deposition that, when he turned left onto Meadowdale, he

passed another car turning right onto Bent Twig. (Vol. I, pp. 197:11-199:22).

h. McLaughlin Contradicts Weinstein’s Statement to Detective Albert

McLaughlin testified at the Rule 91 hearing that he never told Weinstein that “Larry did

something stupid.” (Vol. III, p. 113). McLaughlin acknowledged that he was intoxicated at the

time he purportedly made the statement but testified that it was not possible that he made that

statement. (Vol. III, pp. 115-16). McLaughlin testified that within two days of the shooting, he

spoke to Callanan, and Callanan indicated that he had walked to his truck and left and did not know

who shot Schuh. (Vol. III, p. 41).

i. No Motive or Weapon

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The trial evidence indicates that there was no motive for Callanan to have killed Schuh.

Detective Albert testified to that end. However, to the extent that Boelhauf’s trial testimony is at

all suggestive of a motive, his Rule 91 testimony suggests otherwise. Boelhauf testified at the Rule

91 hearing that he asked Schuh what he and Callanan had been fighting about, and Schuh told him

it was “nothing” and blew Boelhauf off. (Vol. VIII, p. 86:25-87:6). That Schuh described the

incident as “nothing” dispels any suggestion to the contrary lingering from Boelhauf’s trial

testimony. Boelhauf further testified that he knew Callanan and Schuh to be friendly with each

other and never knew them to have any physical fight or problems. (Vol. VIII, pp. 77:17-78:21).

In any event, Boelhauf was the only witness who claimed to see Callanan and Schuh in any

kind of argument at the Columbia Bottoms party. At the Rule 91 hearing, Harper testified that he

did not recall any arguments or altercations at the Columbia Bottoms party. (Vol. I, p. 268:19-

269:7). Similarly, Healy testified at the Rule 91 hearing that he was not aware of any problems

between Callanan and Schuh or McLaughlin and Schuh at the Columbia Bottoms party. (Vol. V,

p. 254:17-21). Claggett testified at the Rule 91 hearing that he did not recall any altercations at the

Columbia Bottoms party. (Vol. I, p. 180:15-22).

Multiple witnesses also testified that they had never seen Callanan with a gun. Healy testified

that he has never seen Callanan carry a gun and did not know him to carry a gun. (Vol. V, p.

259:11-15). McLaughlin testified that he did not believe Callanan was armed that night and

testified that he did not know Callanan to carry a gun. (Vol. III, p. 112-13).

To the contrary, Callanan testified that, the night of the shooting, he had hoped to sleep with

Weinstein. (Vol. VI pp. 82:20-83:13). When she dropped them off at the Lassen home, Callanan

leaned in to kiss her. (Vol. VI pp.88:23-89:5). However, Weinstein offered only her cheek, and

Callanan realized that they would not be sleeping together. (Vol. VI p. 89:6-14). Weinstein

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likewise testified at the Rule 91 hearing that Callanan kissed her on the cheek when she dropped

him off at the Lassen home. (Vol. II 69:15-16).

j. The State’s Failure to Disclose Brady Evidence

The Second Vehicle

D’Agrosa testified at the Rule 91 hearing that he renewed his previous requests for discovery

just before trial because he did not believe that everything had been turned over in response to his

prior motions. (Vol. IV, p. 192:11-193:3).

D’Agrosa testified that it was never disclosed to him that Weinstein saw a second car and that

nothing in the State’s case revealed the presence of a second car. (Vol. IV, p. 209:1-8, 217:3-6).

D’Agrosa testified that a second car would have been of significant importance to his case because

other witnesses contradicted Weinstein’s testimony. (Vol. IV, p. 209:24-210:19). D’Agrosa

testified that, because there was testimony at trial that a vehicle not described by Weinstein sped

down the street, evidence that Weinstein saw a second car would have supported the defense theory

that someone else shot Schuh. (Vol. IV, p. 210:19-211:4). D’Agrosa testified that evidence of the

second car would have diminished the State’s theory of exclusive opportunity. (Vol. IV, p. 211:7-

11).

O’Brien testified that Diemer was “absolutely . . . concerned about that second car,” and

“understood the significance” and its “potential for injecting reasonable doubt into his case.” (Vol.

VII, p. 45:2-11). O’Brien testified that Diemer’s affidavit destroyed the State’s theory of exclusive

opportunity and destroyed its timeline. (Vol. VII, p. 68:12-69:5).

k. At Least One Juror Was Exposed To Extrinsic Evidence

In March of 1995, Callanan was charged with unlawful use of a weapon in an unrelated

shooting. (P. Ex. 118-10, p. 174). That case was ultimately dismissed. (Vol. IV, p. 173:9-14).

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Before trial, Callanan filed a motion in limine to exclude any references to the unrelated shooting.

(P. Ex. 43, p. 174). Diemer agreed not to present any evidence regarding the Arrow Point incident.

(Vol. IV, p. 203:13-21). No evidence regarding the Arrow Point incident was ever presented to the

jury. (Vol. IV, 204:12-16). Nor was any evidence presented tying Callanan to another incident in

which a gun was involved. (Vol. IV, p. 218:20-219:5).

Linda Zeman, a juror at Callanan’s trial, testified in a deposition that was presented in lieu of

live testimony at the Rule 91 hearing that she was interviewed by law students at her home in

April of 2018. (Vol. IX, pp. 17:24-18:1, 24:10-25:3). Zeman told the students and testified that

she was told Callanan was involved in another crime. (Vol. IX, p. 28:4-12). Zeman further

testified that she was told that the gun used to kill Schuh was being held for the other crime and

would therefore not be produced at trial. (Vol. IX, pp. 27:21-28:12). Zeman testified that she

learned this information after jury selection but before a verdict was reached. (Vol. IX, p. 30:1-

9). Zeman testified that she thought jurors were told this information “at the very beginning of

trial.” (Vol. IX, p. 28:24-29:8).

D’Agrosa testified that the first he heard of any juror’s exposure to another gun charge came

from contact with Callanan’s current attorneys. (Vol. IV, p. 218:20-219:23).

The State never recovered the gun used to kill Schuh. (Vol. V, p. 169:11-12).

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III. CONCLUSIONS OF LAW

A. Summary of Availability of the Writ of Habeas Corpus

On December 23, 2015, Callanan filed a Petition for Writ of Habeas Corpus in the Missouri

Supreme Court, pursuant to Rule 91, claiming that “evidence obtained since trial shows Callanan’s

actual innocence and that the convictions and sentences resulted from multiple claims of

prosecutorial misconduct, Brady, due process violations, the knowing use of false testimony, the

use of false evidence, and improper argument by the State, all in violation of the Fifth, Sixth,

Fourteenth Amendments of the United States Constitution and Article I §§ 10, 18(a), and 21.”

State ex rel. Callanan v. Griffith, No SC95443 (Filed Dec. 23, 2015). Rule 91 provides that “any

person restrained of liberty within this state may file a petition for writ of habeas corpus to inquire

into the cause of such restraint.” Callanan raised two claims for relief, a “freestanding” claim of

actual innocence under Amrine v. Roper, 102 S.W.3d 541 (Mo. banc 2003), and constitutional

Brady claims reached through “gateway” claims of “cause and prejudice” and innocence. The

Supreme Court appointed this Court as Special Master to take and hear evidence on Callanan’s

three claims. On June 26, 2018, Callanan filed for leave to amend his petition to add a fourth claim

alleging that the jury was exposed to false and prejudicial information not in evidence in violation

of his Fifth, Sixth, and Fourteenth Amendment rights. The Supreme Court directed this Court to

hear evidence on Callanan’s fourth claim on July 11, 2018.

Habeas corpus is a “bulwark against convictions that violate fundamental fairness.” Amrine,

102 S.W.3d at 545 (quoting Engle v. Isaac, 456 U.S. 107, 126 (1982)). A writ of habeas corpus is

the proper remedy “when a person is restrained of his or her liberty in violation of the constitution

or laws of the state or federal government.” State ex rel. Woodworth v. Denny, 396 S.W.3d 330,

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337 (Mo. Banc 2013). It is the “last judicial inquiry into the validity of a criminal conviction.”

Amrine, 102 S.W.3d at 545. A habeas corpus petitioner bears the burden to show that he or she is

entitled to relief. State ex rel. Nixon v. Jaynes, 73 S.W.3d 623, 624 (Mo. banc 2002).

The availability of relief to prisoners who are unconstitutionally confined is limited by the need

“to avoid unending challenges to final judgments.” Amrine, 102 S.W.3d at 546. The Missouri

Supreme Court recognized, “There is a balance that must be struck between the need for finality

of judgments and the need to accommodate the claims of a purportedly innocent defendant

wrongfully convicted.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 215 (Mo. banc 2001).

Accordingly, claims that were raised on direct appeal or in postconviction proceedings should not

be considered in a habeas corpus action. State ex rel. Strong v. Griffith, 462 S.W.3d 732, 734 (Mo.

banc 2015).

Similarly, when a petitioner raises claims that could have been raised in prior proceedings but

were not, those claims are considered procedurally defaulted and will typically not be considered.

Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000). Habeas corpus review is limited to

jurisdictional issues or “circumstances so rare and exceptional that a manifest injustice results if

relief is not granted.” Id. However, this procedural bar does not apply when the petitioner

establishes a “gateway” through which he may proceed with his otherwise defaulted claim. Id. The

following two “gateways” will excuse the default of a petitioner’s claims and permit him to

proceed—(1) the petitioner shows by a preponderance of the evidence that he is innocent of the

crimes for which he was convicted; or (2) he demonstrates that “cause” excuses his failure to raise

the claims in prior proceedings, and that he was “prejudiced” by the underlying constitutional

violations he alleges. Clay, 37 S.W.3d at 217 (establishing innocence gateway); State ex rel. Engel

v. Dormire, 304 S.W.3d 120, 125 (Mo. banc 2010).

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In affirming the grant of habeas corpus relief, the Missouri Court of Appeals, Western District,

summarized the conditions under which the writ of habeas corpus is available to a petitioner such

as Mr. Callanan:

The cumulative effect of Simmons, Clay, and Jaynes is to permit review of

procedurally barred claims in a habeas proceeding if: (1) the claim relates

to a jurisdictional (authority) issue; or (2) the petitioner establishes manifest

injustice because newly discovered evidence makes it is more likely than

not that no reasonable juror would have convicted the petitioner (a “gateway of innocence” claim); or (3) the petitioner establishes the presence of an

objective factor external to the defense, which impeded the petitioner’s ability to comply with the procedural rules for review of claims, and which

has worked to the petitioner’s actual and substantive disadvantage infecting his entire trial with error of constitutional dimensions (a “gateway cause and prejudice” claim). Thus “[a] showing either of cause and prejudice or of actual innocence acts as a ‘gateway’ that entitles the prisoner to review on the merits of the prisoner's otherwise defaulted constitutional claims.” Amrine, 102 S.W.3d at 546.

State ex rel. Koster v. McElwain, 340 S.W.3d 221, 244-45 (Mo. App. 2011). This Court must apply

these principles to the procedural issues raised by Respondent.

A claim of “actual innocence” can either be a “gateway” claim of innocence, or a

“freestanding” claim of innocence. A “gateway” claim of actual innocence is a component of the

“manifest injustice” analysis set forth by the United States Supreme Court in Schlup v. Delo, 513

U.S. 298 (1995), and followed by the Missouri Supreme Court in Clay v. Dormire, 37 S.W.3d 214

(Mo. banc 2000). Under this analysis, a “manifest injustice” occurs which would justify habeas

corpus relief when a petitioner has demonstrated that “a constitutional violation has probably

resulted in the conviction of one who is actually innocent” by showing that “it is more likely than

not that no reasonable juror could have convicted him in light of new evidence of innocence.” Id.

at 217.

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Under this analysis, the proof of actual innocence is “a gateway through which a habeas

petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”

Id. Under the Schlup gateway standard “the fundamental miscarriage of justice exception seeks to

balance the societal interests in finality, comity, and conservation of scarce judicial resources with

the individual interest in justice that arises in the extraordinary case.” Schlup, 513 U.S. at 324. In

striking this balance, the Court “has adhered to the principle that habeas corpus is, at its core, an

equitable remedy.” Id. at 319. The Court observed that “the individual interest in avoiding injustice

is most compelling in the context of actual innocence,” id. at 324, and therefore concluded, “The

overriding importance of this greater individual interest merits protection by imposing a somewhat

less exacting standard of proof on a habeas petitioner alleging a fundamental miscarriage of justice

than on one alleging that his sentence is too severe.” Id. at 325.

The Schlup standard “is intended to focus the inquiry on actual innocence.” Id. at 327. To give

courts the greatest latitude in making this important determination, hearing courts “[are] not bound

by the rules of admissibility that would govern at trial.” Id. Consideration of all the evidence is

essential to achieving a just and reliable result:

The habeas court must make its determination concerning the

petitioner's innocence "in light of all the evidence, including that

alleged to have been illegally admitted (but with due regard to any

unreliability of it) and evidence tenably claimed to have been

wrongly excluded or to have become available only after the trial.”

Id. at 327-28 (emphasis added). Analysis of innocence gateway claims “must incorporate the

understanding that proof beyond a reasonable doubt marks the legal boundary between guilt and

innocence.” Id. at 328 (citing In re Winship, 397 U.S. 358 (1970)).

In addition, the Missouri Supreme Court has provided a “freestanding” claim of actual

innocence in order “to account for those rare situations…in which a petitioner sets forth a

65

compeling case of actual innocence independent of any constitutional violation at trial.” Amrine,

102 S,W.3d at 547. To make a “freestanding claim of actual innocence, a petitioner must “make

a clear and convincing showing of actual innocence that undermines the confidence in the

correctness of the judgment.” Id. at 548. A habeas corpus petitioner who proves innocence by a

preponderance of the evidence has established a “gateway” claim of actual innocence and must

also demonstrate that a constitutional violation occurred at trial, while a petitioner who proves

innocence by clear and convincing evidence has met the burden to establish a “freestanding” claim

of actual innocence and does not need to demonstrate that a constitutional violation has occurred

in order to obtain relief.

It is within this legal framework that the Master considered Callanan’s claims.

IV. Analysis of the Grounds Raised

For the purposes of clarity and consistency, the undersigned addresses Callanan’s grounds

in groups based on similar legal and/or factual subject matter.

A. Actual Innocence (Ground 1)

In his first ground, Mr. Callanan argues he is actually innocent of Mr. Schuh’s murder. He

raises both gateway and free-standing claims of innocence. The undersigned finds Mr. Callanan

has not established that no reasonable juror would have convicted him of Mr. Schuh’s murder by

a preponderance of the evidence. Therefore, he has not established his innocence under either

standard of review. See McKim, 475 S.W.3d at 843 (“It is thus axiomatic that if ‘new evidence’

fails to satisfy the preponderance standard required for a gateway actual innocence claim, it will

also fail to satisfy the clear and convincing standard required for a freestanding actual innocence

claim.”).

Freestanding Innocence

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A petitioner asserting freestanding innocence claims may obtain habeas relief even if he

receives a trial free from constitutional defect if he demonstrates by “clear and convincing

evidence” that he is actually innocent of murder. State ex rel. Amrine v. Roper, 102 S.W.3d 541,

548 (Mo. 2003) (recognizing a free-standing claim of actual innocence in a capital case). The

“clear and convincing” standard is higher than the preponderance of the evidence standard for

gateway innocence claims and difficult to meet:

The burden of establishing a fact by clear and convincing evidence is heavier than

the “preponderance of the evidence” test of ordinary civil cases and is less than the “beyond reasonable doubt” instruction that is given in criminal cases. 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.”

Id. Despite the different burdens of proof, both freestanding and gateway innocence claims depend

on the same “new evidence” of innocence for their proof. McKim, 457 S.W.3d at 843.

It is not clear whether Mr. Callanan can raise a freestanding innocence claim. In cases after

Amrine, the Missouri Court of Appeals has held that free-standing innocence claims are not

cognizable in non-capital habeas cases. See Lincoln v. Cassady, 517 S.W.3d 11, 22–23 (Mo. App.

W.D. 2016) (free-standing innocence claim in non-capital case was not cognizable because it was

“an open and unanswered question” by the Missouri Supreme Court and the appellate court would

not apply to non-capital case “[u]ntil the Supreme Court announces that free-standing claim of

actual innocence is a recognized basis for securing habeas relief because either the continued

incarceration or eventual execution of an actually innocent person violates principles of due

process.”); see also McKim, 457 S.W.3d at 847 n. 27 (rejecting free-standing innocence claim in

non-capital case assuming it was cognizable, but noting that Amrine could be limited to capital

cases and the Missouri Supreme Court has not “definitively address[ed] whether a free-standing

actual innocence claim is cognizable in a non-capital case.”). But the undersigned does not resolve

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this issue because I find that Mr. Callanan has not shown his innocence under the lower

preponderance of the evidence standard.

Analysis of the “New Evidence”

Mr. Callanan seeks to prove his innocence through three methods: First, by presenting

impeachment evidence against the State’s witnesses and attacking the adequacy of the police

investigation; Second, by offering evidence that Mr. Callanan did not commit the offenses and

speculating that another individual may have committed the crime under the alternative perpetrator

defense; and Third, through claims of alleged prosecutorial misconduct. The undersigned

addresses each topic below.

Impeachment Evidence

The majority of Mr. Callanan’s alleged “new” evidence seeks to impeach Ms. Weinstein.

In this proceeding, he challenged Ms. Weinstein’s sobriety, her familiarity with Mr. Schuh and his

family, her timelines, the locations where she turned around, her observations that night, and

ability to observe outside the Lassen home. He also sought to impeach Ms. Weinstein about what

he believed were inconsistencies between Ms. Weinstein’s deposition and hearing testimony in

this action, with her trial and grand jury testimony, as well as her prior statements to the police.

He has not shown that this impeachment evidence is “new” evidence under Schlup. The

undersigned finds that the majority of Mr. Callanan’s impeachment evidence is not “new” as it

was either known or available to Mr. Callanan or his counsel at trial or is cumulative to what was

already presented to the jury.4

4 Mr. Callanan knew of the “adequacy” of the police investigation before trial, as well as any statements Mr. Boelhauf made to the police regarding the dispute he saw at Columbia Bottoms. His evidence seeking

to impeach the police investigation and testimony disputing Mr. Boelhauf’s observations is not “new.” Even if Mr. Boelhauf’s criminal record was not disclosed, as he alleges in his claims below, he has not shown that such evidence is new reliable evidence that exonerates Mr. Callanan under Schlup. It would merely

serve as possible impeachment evidence that the jury could consider. The undersigned also finds that the

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Additionally, assuming the evidence is “new,” none of the impeachment evidence

establishes Mr. Callanan’s innocence. Instead, it merely presents additional matters for a jury to

consider in assessing the credibility of the evidence against him. Where new evidence simply sets

up a “swearing match” among witnesses, it does not establish that no reasonable juror could have

credited the testimony of the state’s witnesses and found the petitioner guilty beyond a reasonable

doubt. Moore-El v. Luebbers, 446 F.3d 890, 902–03 (8th Cir. 2006); Johnson v. Norris, 170 F.3d

816, 818 (8th Cir. 1999) (actual innocence exception inapplicable where there are discrepancies

between trial testimony and current statements, but new evidence was not exculpatory); Allen v.

Nix, 55 F.3d 414, 417 (8th Cir. 1995) (actual innocence exception inapplicable where evidence

only intended to impeach other testimony and only indirectly supported the petitioner’s version of

the facts).

Mr. Callanan challenged Ms. Weinstein’s sobriety at trial, throughout his prior legal

proceedings, and again in this proceeding. In the two decades since the homicide, Ms. Weinstein

has consistently maintained that while she did drink that night, she was not intoxicated when she

drove the men home from the Columbia Bottoms party, when she dropped the three men off at the

Lassen home, and when she saw Mr. Callanan walk to his car and drive off immediately after the

gunshots. The undersigned finds her testimony credible. Her testimony is also corroborated by

Detective Albert’s credible testimony that Ms. Weinstein did not appear intoxicated when he

interviewed her a few hours after the homicide. The only witnesses who testified that Ms.

Weinstein was intoxicated when she left the Columbia Bottoms party at the hearing was Mr.

Callanan and Mr. McLaughlin, who the undersigned does not find credible on this topic. Mr.

“new” evidence Mr. Callanan has acquired to impeach Ms. Weinstein’s observations by photos and videos taken years and decades after the homicide do not accurately depict the conditions at the time of the

homicide and do not constitute new reliable evidence of Mr. Callanan’s innocence.

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Callanan and Mr. McLaughlin’s evidence was known to the defense before trial and because

neither of them testified at trial, their knowledge was only available to the defense. The jury was

also aware that the homicide took place after the young adults attended various parties and were

drinking throughout the course of the evening. A reasonable juror could have found Ms.

Weinstein’s testimony credible that she was not impaired after the Columbia Bottoms party.

For these same reasons, Mr. Callanan’s challenges to Ms. Weinstein’s timelines and routes

are unpersuasive. These matters were well litigated at trial. The evidence presented in this

proceeding was not only known and available to Mr. Callanan at trial, it was presented at his trial

and rejected by the jury.

It is undisputed that Mr. Callanan stopped at his home and went inside for some brief period

on the way to the Lassen home. The length of time was challenged at trial. It is undisputed that

Ms. Weinstein dropped the three men off at the Lassen home afterwards and she turned around in

the cul-de-sac and went back to the intersection. Based on both Mr. Callanan and Ms. Weinstein’s

testimony, Mr. McLaughlin was inside when she passed the Lassen home heading to the

intersection and Mr. Callanan was still in the yard with Mr. Schuh. No other persons were seen. It

is also undisputed that shots were fired shortly after Mr. McLaughlin entered the home and at some

point Ms. Weinstein returned to the home after the gunshots were fired. It is also undisputed that

Mr. Claggett left the scene sometime after shots were fired and before police arrived. At trial, the

witnesses inside the home varied on how long Mr. McLaughlin was in the home before the shots

were fired (between ten seconds to one minute), how long they waited once shots were fired

(between a second to fifteen seconds), and how long it took them to go outside after shots were

fired (between fifteen to thirty seconds). The timing of when Mr. Claggett departed also varied.

Mr. Claggett testified he left “a couple minutes” after shots were fired. (Resp. Ex. R at 355). Mr.

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Harper testified Mr. Claggett left twenty seconds after the group went outside. (Id. at 385–86).

And Mr. Tippett testified that the burgundy Camaro he saw left “a minute to a minute and half”

after shots were fired. (Id. at 430, 442). The undisputed evidence also reflects Ms. Weinstein

traveled to the Lassen home twice after shots were fired – the first time she picked up Mr.

McLaughlin and the second time she returned with Mr. McLaughlin. As recognized in this

proceeding, these timelines were generated by individuals who were not staring at a clock as the

events took place. It was up to the jury to weigh and determine the relevant time periods. A

reasonable juror could have resolved these minor deviations and ultimately concluded that Mr.

Callanan shot Mr. Schuh just after Ms. Weinstein turned left on Meadowdale, and she was in the

vicinity to view Mr. Callanan walk to his truck and drive off shortly after the homicide and return

to the Lassen home in a matter of seconds and minutes, not minutes to hours.

Mr. Callanan challenged Ms. Weinstein’s familiarity with Mr. Schuh and his family at trial.

The evidence he presents in this proceeding was known or available to him and his counsel at trial.

As discussed in the claim below, the credible evidence in this proceeding is that Ms. Weinstein

had only just met Mr. Losing at the time of trial and developed a crush after trial. But assuming

arguendo this occurred before trial, Ms. Weinstein testified that her feelings did not persuade her

to testify differently or change her testimony. This is consistent with her trial testimony where she

denied that she had been influenced by Mr. Schuh’s family to change her testimony. (Resp. Ex. R

at 291). Mr. Callanan has not provided new reliable evidence to the contrary. Mr. Healy, who Mr.

Callanan offers in support, admits he has no firsthand knowledge about an alleged pretrial

relationship between the two and his testimony is based on “hearsay.” A reasonable juror could

have found Mr. Healy unpersuasive given his close friendship with Mr. Callanan and lack of first-

hand knowledge. Moreover, there has been no evidence to suggest that Ms. Weinstein knew Mr.

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Schuh or his family when she made her statements to Detective Albert two hours after the

homicide. Her testimony was substantially the same as the statements she made to Detective

Albert. A reasonable juror could have found Ms. Weinstein credible on this point, coupled with

the other corroborating evidence at trial, in addition to consciousness of guilt, and convicted Mr.

Callanan.

Mr. Callanan previously challenged Ms. Weinstein’s perceptions from her observations

between the men at the Columbia Bottoms party and perceived inconsistences at trial. At trial, Ms.

Weinstein testified that she observed whispering between the men when Mr. Schuh was not

present, that she asked Mr. McLaughlin about it but did not testify about what he said as it was

inadmissible hearsay, and expressed her observations and perception. (Resp. Ex. R at 267–68).

She agreed she formed these impressions after meeting Mr. Schuh for the first time that night. (Id.

at 321). She never testified that she heard any statement discussed by Mr. Callanan and Mr.

McLaughlin. Mr. Callanan offers only his testimony to support the allegation that he and Mr.

McLaughlin were whispering about Ms. Weinstein, not Mr. Schuh. But Ms. Weinstein’s

perceptions are further supported by Mr. McLaughlin’s response when he told her to “shut up”

and “some questions need to be left unanswered.” This testimony is consistent with her statements

to Detective Albert and the grand jury.

Mr. Callanan’s attempts to show his perceived inconsistent statements from Ms. Weinstein

in prior proceedings do not constitute new reliable evidence of innocence.

Ms. Weinstein’s testimony about the location of the men outside the the home was

challegend at trial. For example, at trial Ms. Weinstein testified that she saw the men walking

toward the front of the Lassen home when she dropped them off and saw Mr. Callanan up near the

home with Mr. Schuh shortly before she turned left on Meadowdale and heard the shots. Mr.

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D’Agrosa impeached her on these statements extensively at trial and argued she had told no one

these details before trial. Thus, the jury had this information already before it. This information is

not new evidence.

Mr. Callanan challenges Ms. Weinstein’s testimony about who she observed cross the

street after the shots were fired, but this is unpersuasive. Ms. Weinstein’s hearing testimony on

this point is not credible evidence of innocence. Instead, it only demonstrates that Ms. Weinstein

could not recall this detail over two decades after the homicide.

There is No Direct Connection to Another Individual

Mr. Callanan also speculates that another individual committed the murder based on

substantially the same theories and evidence presented during his offer of proof at trial. His

evidence is not “new.” At trial, he sought to implicate Carlos Perry, the individual who was

ultimately acquitted for Eugene Bonnard’s homicide at the WideFields home at nearly the same

time as Mr. Schuh’s homicide. After trial, he pointed to both Carlos Perry and Ronald Claggett,

suggesting Mr. Claggett also had the opportunity to kill Mr. Schuh.5 In this proceeding, Mr.

Callanan now points to Eugene Bonnard, the other homicide victim, or his brother Robert Bonnard,

as possible suspects. But he presented no reliable evidence to support his speculations and

conjecture at the hearing. Indeed, the evidence he offered in support at the hearing was even less

than the evidence he included in his offer of proof at the trial. The only connection between the

two incidents appears to be based on Mr. Callanan’s testimony that Mr. Schuh was allegedly

waiting to buy drugs that night, that Mr. Schuh and his family had connections to drugs and drug

5 Mr. Clark testified that he ruled out Mr. Perry as a suspect and Mr. Callanan presented no evidence that

Mr. Claggett killed Mr. Schuh. Mr. Callanan testified that he did not believe anyone in the Lassen home

killed Mr. Schuh and claimed in his post-conviction proceeding that some unidentified individual who was

the real killer called him after the homicide. If Mr. Claggett was that individual, Mr. Callanan would have

recognized his voice.

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sales, that Mr. Schuh may have possibly made a phone call to the WideFields home where Mr.

Bonnard was murdered before Mr. Schuh’s murder, and that Mr. Schuh’s father may have known

Eugene Bonnard decades before the homicide. Interestingly, Mr. Callanan did not tell his trial

counsel, Mr. D’Agrosa, or his federal habeas counsel, Mr. O’Brien, that Mr. Schuh was waiting

outside the Lassen home to buy drugs. And those same counsels testified that Mr. Callanan used

drugs that night, which he denied in this hearing. The undersigned finds Mr. D’Agrosa and Mr.

O’Brien’s testimony on this point credible. Mr. Callanan’s evidence does not satisfy Missouri’s

direct connection rule and therefore would not be admissible at trial. Thus, a properly instructed

juror could not consider it. But assuming this evidence could be considered under Schlup, Mr.

Callanan’s speculations are not new reliable evidence of innocence.

Callanan’s Testimony and Attempt to Bolster Evidence Rejected at Trial

Mr. Callanan offers his testimony that he did not murder Mr. Schuh, testimony from

himself and his mother that he did not evade the police, and testimony from others that he helped

care for his father. But this evidence is not “new” because it was known and available to Mr.

Callanan before trial and is not reliable evidence of innocence.

Ms. Ojile’s testimony regarding Ms. Callanan’s whereabouts after the homicide is

cumulative to the evidence presented at trial from Thomas Callanan and Tammara McClennan –

that Mr. Callanan did not evade the police. It could have also highlighted a possible inconsistency.

Both witnesses testified at trial that Mr. Callanan resided with his father. Ms. McClennan claimed

she saw Mr. Callanan almost every day at his father’s house during this time period. Evidence that

he stayed periodically with his mother after the homicide may suggest that he was seeking to evade

police by staying at a different residence when the police were looking for him. Ms. Ojile also

testified that she did not tell the police her son’s whereabouts when he was with her. Similarly,

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Ms. Ojile’s testimony and the testimony he offers from other friends regarding Mr. Callanan’s

habits of caring for his father is also cumulative to the evidence already offered to the jury and

does not establish his innocence. None of these individuals witnessed Mr. Callanan’s actions inside

his home shortly before the homicide.

Mr. Callanan’s self-serving statements of innocence, without corroboration, are not reliable

evidence of innocence. See Weeks v. Bowersox, 119 F.3d 1342, 1351–55 (8th Cir. 1997) (rejecting

petitioner’s claim of actual innocence based solely on petitioner’s affidavit where petitioner failed

to offer evidence in support of his own allegations of innocence to the district court). The

undersigned does not find Mr. Callanan’s testimony to be credible. A reasonable juror could have

found his testimony and evidence on these points not to be credible and convicted him of Mr.

Schuh’s homicide in light of the other evidence of guilt.

Ronald Singer’s Opinion

Mr. Singer’s opinion regarding two possible scenarios where the shooter may have

approached Mr. Schuh at the Lassen home is not new reliable evidence of Mr. Callanan’s

innocence. As a preliminary matter, the undersigned questions whether Mr. Singer’s opinion

constitutes “new” evidence under Schlup. His opinion is based on information and evidence known

and available at trial and he did not testify that he relied on any scientific standards developed after

trial. See McKim, 457 S.W.3d at 846–47, n 26 (assuming without deciding whether new expert

opinions that relied on evidence available at trial constitute “new evidence,” but recognizing that

courts have found it is not new evidence under Schlup) (citing Hamborsky v. Winstead, No. CIV.A.

12-746, 2013 WL 3733480, at *7 (W.D. Pa. July 16, 2013) (new expert opinions based on evidence

admitted at trial is not new evidence); Griffin v. Stickman, No. CIV.A. 04-975, 2004 WL 1821142,

at *8 (E.D. Pa. Aug. 11, 2004) (new expert opinion based on autopsy report introduced at trial is

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not “new” evidence)); see also Harris v. Vasquez, 949 F.2d 1497, 1523 (9th Cir. 1990) (opinions

from new psychiatrists are not new evidence warranting habeas relief). Regardless, it is not reliable

evidence of innocence. Mr. Singer’s opinion is based entirely upon the location of a bone fragment

that may have been moved when the individuals in the Lassen home came outside and discovered

Mr. Schuh. There were also numerous factors he could not account for regarding the positions of

Mr. Schuh or the shooter. And his opinion could not rule out that Mr. Callanan could have simply

moved to a different location after Ms. Weinstein saw him when she passed the Lassen home. His

testimony is not reliable evidence on innocence.

Evidence in Support of Individual Claims

Mr. Callanan also seems to suggest that the undersigned should consider evidence in

support of his individual claims of prosecutorial misconduct, not discussed above, in the context

of his actual innocence. While this evidence may be relevant to the individual claims, it does not

fall within the categories of “new reliable evidence” of innocence Schlup contemplates (i.e.,

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence).

See, e.g., id. at 324. Therefore, it will not be considered.

In conclusion, much of the evidence adduced by Mr. Callanan is neither new nor reliable

evidence of innocence. But even considering the effect of all the “new evidence” with “all the

evidence old and new, incriminating and exculpatory,” without considering the additional

inculpatory evidence of Mr. Callanan’s guilt, Mr. Callanan has not demonstrated that no

reasonable juror would have convicted him of Mr. Schuh’s homicide if the evidence was presented

at trial by a preponderance of the evidence.

B. Callanan is entitled to relief under Brady v. Maryland (Ground 2)

Recommendation

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The Master finds that Callanan’s right to due process was violated by the State’s failure to

disclose favorable, material evidence that Weinstein saw a second car leave the scene around the

same time she purportedly saw Callanan’s truck. The State has an obligation under Brady to

disclose favorable, material evidence to the defendant. When the State withholds favorable

evidence and the defendant is thereby prejudiced, his conviction cannot stand. That is the case

here. The State concealed from Callanan evidence that would have undermined its case against

him—Weinstein’s testimony that Callanan alone drove away from the scene after shots were fired.

The Master therefore recommends that Callanan’s convictions be vacated.

Callanan overcomes any procedural default.

The Missouri Court of Appeals has noted that where a petitioner satisfies the “cause-and-

prejudice” standard for reaching a claim, and the merits of the claim justify habeas corpus relief,

that in itself is sufficient to issue the writ of habeas corpus, McElwain, 340 S.W.3d at 257-58.

Callanan satisfies the cause and prejudice gateway. The Missouri Supreme Court described the

cause-and-prejudice standard as:

The United States Supreme Court explained that the “cause” of procedural default “must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel's efforts to comply

with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488

(1986).

To establish the “prejudice” necessary to overcome procedural default, a petitioner seeking to vacate, set aside, or correct a conviction or sentence in

federal habeas bears the burden of showing, not merely that errors at his

trial created possibility of prejudice, but that they “worked to his actual and substantial disadvantage, infecting his entire trial with error of

constitutional dimensions.” United States v. Frady, 456 U.S. 152, 170

(1982). See also, Strickland v. Washington, 466 U.S. 668, 695 (1984) and

Schlup v. Delo, 513 U.S. at 332-334 (O'Connor, J.).

Jaynes, 63 S.W.3d at 215-16.

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Typically, the State’s concealment of evidence on which a claim is based constitutes “cause”

to excuse the petitioner’s failure to raise the claim in prior proceedings. Murray v. Carrier, 477

U.S. 478, 479 (1986); State ex rel. Woodworth v. Denney, 396 S.W.3d 330, 337 (Mo. banc 2013).

That is because a petitioner should not be faulted for the State’s failure to disclose evidence it had

a duty to disclose. The petitioner is not required to search for evidence the State has kept hidden;

it is incumbent on the State to disclose it. Banks v. Dretke, 540 U.S. 668, 696 (2004). Notably, that

duty continues after the trial is over. Indeed, cause is established where the petitioner shows that:

“(a) the prosecution withheld exculpatory evidence; (b) petitioner reasonably relied on the

prosecution’s open file policy as fulfilling the prosecution’s duty to disclose such evidence; and

(c) the State confirmed petitioner’s reliance on the open file policy by asserting during state habeas

proceedings that petitioner had already received everything known to the government.” Banks, 540

U.S. at 692-93.

The following cases illustrate the kinds of circumstances that constitute cause to excuse a

claim’s procedural default. In State ex rel. Clemons v. Larkins, 475 S.W.3d 60 (Mo. banc 2015),

the State failed to disclose that a probation-and-parole employee had altered a report to conceal

injuries indicating that Clemons had been beaten during his police interrogation, in which he gave

self-incriminating statements. The Missouri Supreme Court found that this constituted cause to

excuse his failure to raise a Brady claim based on that evidence in prior proceedings. Clemons,

475 S.W.3d at 77. Similarly, in Banks, the United States Supreme Court found that the State’s

failure to disclose to defense counsel—both before and after trial—that prosecutors coached a

witness constituted cause for the petitioner’s failure to timely raise a Brady claim based on that

evidence. Banks, 540 U.S. at 697, n. 16.

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Here, it was not until Diemer signed his affidavit in 2003 that the State disclosed that Weinstein

saw a second vehicle. The affidavit makes clear that the State did not disclose the second car to

defense counsel, as Diemer instructed Weinstein not to volunteer anything about it. (P. Ex. 13).

Further, Diemer expressly represented to the trial judge that he had turned over all Brady material,

thereby deceiving both the Court and defense counsel as to the presence of the second car. (Trial

Tr. p. 18). And Diemer failed to set the record straight prior to signing his 2003 affidavit. Indeed,

in the 29.15 proceedings, the State denied that Diemer suborned perjury from Weinstein. (P. Ex.

120, p. 804). The State’s concealment of the second car precluded Callanan from raising his Brady

claim on direct appeal or in a postconviction motion under Rule 29.15. For that reason, the State’s

concealment constitutes “cause” excusing Callanan’s failure to raise the claim in those

proceedings.

Respondent contends that Callanan could have raised the claim in a Rule 29.15 motion because

he suspected at the time he filed that motion that Diemer knew Weinstein’s testimony was false.

Notably, the State does not attempt to legitimately defend Diemer or his actions in Callanan’s trial,

instead relying on what it argues is a procedural bar to Callanan’s Brady claim. This reliance is

misplaced and unsupported by the case law. First, a mere suspicion is not the same thing as a

signed, sworn affidavit from Diemer stating that he instructed Weinstein not to “volunteer” that

she saw a second car. Callanan could not have raised a Brady claim based on suspicion without

evidentiary support. Indeed, as the United States Supreme Court noted in Strickler v. Greene, 527

U.S. 263, 286 (1999), suspicion or speculation that “some exculpatory material may have been

withheld” should not “suffice to impose a duty on counsel to advance a claim for which they have

no evidentiary support.” The Master therefore rejects Respondent’s argument in this regard.

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Furthermore, Respondent’s position is inconsistent with the equitable nature of habeas corpus.

Schlup, 513 U.S. at 319. ([H]abeas is, at its core, an equitable remedy.”). The Supreme Court has

observed, in adopting the cause-and-prejudice standard for habeas cases, that “equity has always

been characterized by its flexibility and regard for the necessities of each case. Wainwright v.

Sykes, 433 U.S. 72, 96 n. 4 (1977) (Stevens, J., concurring).

Callanan was prejudiced by the underlying Brady violation. A petitioner establishes

“prejudice” by showing that the Brady claim at issue is meritorious. Engel, 304 S.W.3d at 126. As

explained below, Callanan’s claim is meritorious. He therefore satisfies the “prejudice” prong,

permitting him to proceed.

Merits

A defendant is denied his due process right to a fair trial when the State conceals favorable,

material evidence. State ex rel. Engel v. Dormire, 304 S.W.3d 120, 126 (Mo. banc 2010). Evidence

is “favorable” when it is exculpatory or can be used to impeach a witness. Id. Evidence is

“material” when there is a reasonable probability that, but for the State’s concealment of the

evidence, the outcome of the proceeding would have been different. Id. at 128. The failure to

disclose such evidence violates due process regardless of whether the defendant requested it and

is irrespective of the good faith or bad faith of the prosecution. Merriweather v. State, 294 S.W.3d

52, 54 (Mo. banc 2009) (quoting Brady, 373 U.S. at 87); Clemons, 475 S.W.3d at 77. Put simply,

when the State possesses favorable evidence that could affect the outcome of the trial, it must

disclose that evidence to the defense.

The evidence was favorable.

Evidence that Weinstein saw a second car was favorable to Callanan. Again, the State’s

case was based on the theory that Callanan alone had the opportunity to kill Schuh. This theory

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depended entirely on Weinstein’s testimony that she saw no car but Callanan’s leave the scene in

the moments after shots were fired. Therefore, evidence that Weinstein saw a second car is

exculpatory, as it suggests that someone other than Callanan had equal opportunity to kill Schuh.

Defense counsel could have used this evidence to create reasonable doubt and to attack the State’s

theory of exclusive opportunity. Further, the evidence could have been used to impeach Weinstein,

as it undermines her testimony that she saw only one car—Callanan’s truck—leave the scene after

shots were fired. Had the State disclosed that Weinstein told Diemer she saw a second car, defense

counsel could have introduced that as a prior inconsistent statement to highlight that she had given

two completely different accounts of what she saw and therefore should not be believed.

The State did not disclose the evidence.

Despite its duty to disclose favorable evidence, the State did not disclose to defense counsel

that Weinstein saw a second car. D’Agrosa testified at the Rule 91 hearing that he was never

given information about a second car. (Vol. IV, p. 209:1-4). And according to Diemer’s affidavit,

he did not disclose to the defense that Weinstein saw a second car; rather, he instructed Weinstein

to keep silent about it. (P. Ex. 13). The affidavit is consistent with Diemer’s conduct at trial—he

told the jury during opening statement that Weinstein would testify that she saw only one vehicle—

Callanan’s—and then after she testified accordingly, he vouched for her credibility during closing

argument. (Trial Tr., pp. 231, 706). The State’s concealment of the second vehicle continued after

trial until Diemer signed his affidavit in 2003. Indeed, in state postconviction proceedings, the

State continued to assert that Weinstein’s testimony was truthful. (P. Ex. 120, p. 804).

The evidence was material.

The Master finds that this evidence was material—but for the State’s nondisclosure, there is a

reasonable probability the outcome of the trial would have been different.

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The question for materiality is “not whether the defendant would more likely than not have

received a different verdict with the evidence, but whether in its absence he received a fair trial,

understood as a trial resulting in a verdict worthy of confidence.” (Emphasis added.) Engel, 304

S.W.3d at 128 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Put another way, the question

is whether “the favorable evidence could reasonably be taken to put the whole case in such a

different light as to undermine confidence in the verdict.” Engel, 304 S.W.3d at 128 (quoting Kyles,

514 U.S. at 435). In making this assessment, courts must consider how a competent defense

attorney would have used the evidence in defense of his or her client. See, e.g., Kyles, 514 U.S. at

442-51. If the “undisclosed evidence would have been significant to the defendant in the way he

tried his case . . . the evidence is material” for Brady purposes. Ferguson, 413 S.W.3d at 55

(quoting Wallar v. State, 403 S.W.3d 698, 707 (Mo. App. W.D. 2013)). Whether the State’s failure

to disclose favorable evidence resulted in prejudice depends in part on the strength of the evidence

presented at trial—“if the verdict is already of questionable validity, additional evidence of

relatively minor importance might be sufficient to create a reasonable doubt.” United States v.

Agurs, 427 U.S. 97, 113 (1976).

The Master finds that Callanan’s conviction is of “questionable validity,” as it was based

primarily on Weinstein’s testimony that Callanan’s truck was the only vehicle she saw leave the

scene after shots were fired. As the Court in Agurs noted, even evidence of “relatively minor

importance” can tip the scales in the defendant’s favor when the State’s case is based on weak

evidence. Here, the evidence that was not disclosed was more than “relatively minor”—it could

have significantly undermined the State’s case.

Had the State disclosed to defense counsel that Weinstein saw a second car, defense counsel

could have argued, contrary to the State’s theory, that Callanan did not have the exclusive

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opportunity to kill Schuh. D’Agrosa testified at the Rule 91 hearing that he would have done just

that. (Vol. IV, p. 211). D’Agrosa testified that he also could have used evidence of the second car

to bolster the credibility of witnesses who contradicted Weinstein’s testimony, such as Weschke’s

testimony that she saw a car speeding down the street with its lights off (Vol. IV, 210; Trial Tr. p.

572). As Diemer himself noted in his 2003 affidavit, the presence of a second car could have raised

“the inference that another person was also present and had equal opportunity to commit the

crime.” The State’s theory of exclusive opportunity depended on Weinstein seeing Callanan—and

no one else—leave the scene. Therefore, evidence that she saw a second car could have fatally

undercut their entire theory. The Master finds that the presence of a second car could have created

a reasonable doubt in the mind of some jurors.

Similarly, defense counsel could have used evidence that Weinstein saw a second car to

impeach her credibility. If Weinstein had persisted in saying she saw Callanan alone leave the

scene of the shooting, defense counsel could have introduced her prior statement to Diemer that

she, in fact, had seen a second car. Based on Weinstein’s prior inconsistent statement that she saw

a second car, the jury likely would have concluded that Weinstein was not telling the truth at trial.

Indeed, such evidence would have shown that Weinstein had given two completely different

versions of what she saw. Because the State’s case rested almost entirely on Weinstein’s statement,

powerful impeachment evidence such as this would likely have changed the outcome of the trial.

The Master notes that, although defense counsel attempted to impeach Weinstein with other

inconsistencies in her testimony, that has no bearing on whether the second car was material.

Indeed, in assessing whether undisclosed evidence was material, courts must consider the unique

impeachment value of that evidence “coupled with the impeachment information presented at the

time of trial.” Engel, 304 S.W.3d at 128. In Engel, defense counsel attempted to impeach a key

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witness by “noting inconsistencies in his pre-trial and trial testimonies” and by also highlighting

his criminal past as a drug dealer and that he testified in exchange for not being charged in the

kidnapping for which Engel was charged. The jury was not persuaded by this impeachment

evidence. Yet, the Court found that, if the State had disclosed that the witness was paid for his

testimony, defense counsel could also have used that to impeach him, and the outcome of the trial

would have been different. The Master finds that Callanan’s case is analogous—had his defense

counsel been able to impeach Weinstein with evidence that she saw a second car, there is a

reasonable probability he would not have been convicted.

Respondent denies that Weinstein saw a second car but contends that, even if she did, it would

not have changed the outcome of Callanan’s trial because the car was necessarily Claggett’s. This

position was taken by the Court in Callanan’s federal habeas action, and the Master respectfully,

but strongly, disagrees with it. First, the second car was not necessarily Claggett’s. Diemer stated

in his affidavit that he assumed the car was Claggett’s, but Weinstein did not tell him she saw

Claggett’s car. (P. Ex. 13). The jury should have been able to make that determination. Second,

even if the car Weinstein saw was Claggett’s, that would have undermined her credibility, as

Callanan and Claggett could not have left at the same time. Claggett was the first out the door and

did not see Callanan when he walked to his car. Similarly, Tippett and Harper both saw Claggett

but not Callanan. Put simply, if the second car was Claggett’s, then Weinstein did not see

Callanan. 6

Importantly, materiality must be considered in the context of all evidence of Callanan’s

innocence uncovered since his trial. Engle, 304 S.W.3d at 126. Weinstein’s Rule 91 testimony that

she did not see Callanan walking across Bent Twig further erodes her trial testimony.

6 For a more expansive critique of the federal magistrate’s conclusions regarding the second car, see pp. 30-33 of

Petitioner’s Objections to Magistrate’s Report and Recommendation. P. Ex. 121-17

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Further, Diemer stated during opening and argued during closing that testimony from a

ballistics examiner named Koltenbronn supported his theory of the case. No witness named

Koltenbronn testified at trial. Diemer also suggested that Claggett told Detective Albert that he

saw the shooter standing over Schuh, even though Detective Albert’s testimony did not suggest

that.

These acts indicate that Diemer was attempting to create evidence of guilt where it did not

exist. They underscore the lack of legitimate evidence of Callanan’s guilt and are consistent with

Diemer coaching Weinstein not to volunteer information that would have undermined his case. In

light of all these improper acts, the State’s failure to disclose that Weinstein saw a second car—

and that Diemer coached her not to “volunteer” that she had seen it—deprived Callanan of a fair

trial.

C. Callanan is entitled to relief because his conviction was obtained through the

knowing use of perjured testimony (Ground 2 cont’d).

Recommendation

The Master finds that Callanan’s right to due process was violated because the State

obtained a conviction by eliciting false testimony from Weinstein that she saw no car other than

Callanan’s leave the scene after shots were fired. A conviction obtained through the knowing use

of perjured testimony cannot stand. For the reasons explained below, the Master recommends that

Callanan’s convictions be vacated.

Callanan overcomes any procedural default.

Callanan satisfies the cause and prejudice standard for the same reasons he satisfies that

standard for his Brady claim. Callanan cannot be faulted for the State’s failure to disclose that

Diemer instructed Weinstein not to disclose that she saw a second vehicle. In short, the State’s

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concealment of that evidence precluded Callanan from raising this claim on direct appeal or in a

Rule 29.15 motion. The claim’s default is therefore excused by cause.

Likewise, Callanan was prejudiced, as developed below.

Merits

The United States Supreme Court has made abundantly clear that due process cannot tolerate

deception by the prosecutor at a criminal trial. “[D]eliberate deception of a court and jurors by the

presentation of known false evidence is incompatible with ‘rudimentary demands of justice.’”

Giglio v. United States, 405 U.S. 150, 153-54 (1972) (quoting Mooney v. Holohan, 294 U.S. 103,

112 (1935)). In Napue v. Illinois, 360 U.S. 264, 269 (1959), the Supreme Court likened failing to

correct false evidence when it appears to concealing exculpatory evidence, noting that both

produce the “same result.” In Pyle v. Kansas, 317 U.S. 213, 216 (1942), the Supreme Court found

that a defendant who was convicted based on perjured testimony knowingly used by the State was

deprived of basic constitutional rights and was entitled to release from custody.

In Missouri, a prisoner is entitled to relief if he shows that a witness’s trial testimony was false,

the prosecution used the testimony knowing it was false, and the conviction was obtained because

of the perjured testimony. Williams v. State, 536 S.W.2d 190, 193 (Mo. App. 1976); Duncan v.

State, 520 S.W.2d 123, 124 (Mo. App. 1975). A petitioner may establish the latter requirement by

showing “the false testimony could . . . in any reasonable likelihood have affected the judgment of

the jury.” Giglio, 405 U.S. at 154 (quoting Napue, 360 U.S. at 271).

When a prosecutor coaches a witness how to testify, that can support an allegation that a

prosecutor knowingly used perjured testimony to obtain a conviction. In DeClue v. State, 579

S.W.2d 158 (Mo. App. E.D. 1979), the victim provided a sworn statement that the prosecutor had

coached her how to testify at trial. The appellate court granted the movant an evidentiary hearing

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on his allegation that the prosecutor knowingly used perjured testimony to obtain a conviction,

suggesting that a prosecutor’s coaching of a witness can constitute grounds for relief on that claim.

Id.

Similarly, in Alcorta v. Texas, 355 U.S. 28 (1957), the prosecutor instructed a witness not to

volunteer that he’d had sexual intercourse many times with the defendant’s wife, whom the

defendant killed after seeing her kiss the man. The witness’s testimony suggested that his

relationship with the defendant’s wife was merely a casual friendship, thereby concealing that the

murder resulted from a “surge of sudden passion.” Id. at 31. The United States Supreme Court

reversed the defendant’s conviction indicating that a defendant is denied due process when a

witness complies with a prosecutor’s instructions to withhold a fact that disproves an element the

prosecutor must prove. Id. at 31-32.

Here, there is no question that Diemer knowingly elicited perjured testimony. His affidavit is

clear on this point—Weinstein told him she saw a second car, and he instructed her not to

“volunteer” this information. (P. Ex. 13). Asked at trial whether she saw a second car, Weinstein

testified, “I don’t think—no.” (Trial Tr. p. 310). At trial, not only did Diemer not correct this false

testimony, he made numerous efforts to bolster it. Diemer told the jury during opening: “Ladies

and gentlemen, she’ll tell you when she came back to scene, only two people were left, the victim

and the defendant, and she saw no one else. She’ll tell you, ladies and gentlemen, that when she

saw the defendant come from the front of the Lassen home to get into his car, she saw no one else.

She’ll tell you, ladies and gentlemen, that when she drove back to the scene, she saw no other car

leave, and she saw no one else running away from that residence.” (Trial Tr. p. 231). Diemer later

vouched for Weinstein’s credibility during closing. “Why would [she] come here and point-blank

lie to you people? She just wouldn’t do it.” (Trial Tr. pp. 661-62). “Why is she so inventive to

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make that up? She told you under oath. How smart is this girl to make this type of stuff up?” (Trial

Tr. p. 706).

The Master finds that there is more than a “reasonable likelihood” that Weinstein’s false

testimony affected “the judgment of the jury.” In a case such as this, where the “reliability of a

given witness may well be determinative of guilt or innocence,” deceptive evidence from that

witness can shift balance decidedly against the defendant. Napue, 360 U.S. at 269. For the

following reasons, the Master does not find that Weinstein’s false testimony was “harmless beyond

a reasonable doubt.” United States v. Bagley, 473 U.S. 667, 680 (1985).

The State’s case depended almost entirely on Weinstein. As O’Brien opined at the Rule 91

hearing, the State had no case without Weinstein. (Vol. VII, p. 69:1-2). The State presented no

physical evidence tying Callanan to the shooting, no evidence of motive, and no other witnesses

who could place him at the scene just after shots were fired. Without Weinstein’s false testimony

that she saw no car but Callanan’s leave the scene after shots were fired, the State had essentially

no case. Indeed, had Weinstein testified truthfully that she saw a second car, the jury could have

reached one of two conclusions, and the State’s case would have collapsed: (1) the driver of the

second car was an unidentified person with equal opportunity to commit the crime; or (2) the car

was Claggett’s, and Weinstein therefore could not have seen Callanan in the same time frame, as

Claggett was in the house talking on the phone when shots were fired, and when he walked to his

car, he did not see Callanan. Similarly, others who saw Claggett leave (Harper and Tippett) did

not see Callanan. There is no scenario under which they would have been seen at the same time.

Weinstein’s false testimony precluded the jury from finding that someone else had equal

opportunity to kill Schuh. Diemer stated in his affidavit—and it is apparent from the trial

transcript—that his theory of the case was that Callanan had the “exclusive opportunity” to kill

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Schuh. That is why he instructed Weinstein not to “volunteer” information about a second car—

he was concerned that such testimony would “raise the inference that someone else had equal

opportunity” to kill Schuh. (P. Ex. 13). For the State to argue that Callanan was the only person

who could have killed Schuh, Weinstein could not testify that she had seen a second car leave the

scene in the relevant time frame.

Similarly, because Weinstein testified that she did not see a second car, and there was no

independent evidence that she did, her false testimony precluded the jury from finding that she

saw Claggett and therefore could not have seen Callanan. Indeed, Claggett was the first out the

door and testified that he did not see Callanan. (Vol. I, p. 196:6-23). And Harper and Tippett both

saw Claggett but did not see Callanan. (Trial Tr. pp. 388, 438).

The jury could only have believed that Weinstein saw Callanan while others did not if they

found Weinstein saw Callanan well before Claggett left. However, Weinstein told Diemer that she

saw the second car leave the scene around the same time she purportedly saw Callanan. (P. Ex.

13). If Callanan had been in the area around the time that Claggett was leaving, Claggett would

have seen Callanan, and so would the other witnesses who saw Claggett leave, such as Harper and

Tippett.

Whether the second car was Claggett’s or not, the fact that Weinstein saw a second car would

have given the jury ample reason to find reasonable doubt. The Master therefore finds that there is

more than a “reasonable likelihood” that Weinstein’s false testimony affected the jury’s decision

making.

D. Cumulative Effect of Prosecutorial Misconduct (Ground 3)

In his third claim, Mr. Callanan argues that the cumulative effect of alleged instances of

prosecutorial misconduct violated his right to due process. To support his claim, he cites to twenty-

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three instances, in addition to the allegations raised in ground 2, of alleged nondisclosures, belated

disclosures, perjured testimony, and allegations that the prosecutor made improper comments

before and during trial. The undersigned will address each category of claims below.

The undersigned rejects Mr. Callanan’s allegation that he is entitled to relief based on the

“cumulative error” of allegations of misconduct, without regard to whether those allegations are

independently meritorious. That claim is not a cognizable basis for relief. See State v. Gray, 887

S.W.2d 369, 390 (Mo. 1994) (Explicitly rejecting the “cumulative error” theory on direct appeal

stating that “[n]umerous non-errors cannot add up to error.”)(quotation omitted); see also State v.

Long, 972 S.W.2d 559, 563 (Mo. App. W.D. 1998); see also Middleton v. Roper, 455 F.3d 838,

851 (8th Cir. 2006). Instead, to obtain relief, Mr. Callanan must demonstrate that he is entitled to

habeas relief on the individual claims of misconduct. Gray, 887 S.W.2d at 390. Only if he

establishes that multiple errors occurred, then the prejudicial effect could be considered

cumulatively. Id. The undersigned will consider the cumulative effect of any material evidence

that was not disclosed along with alleged false testimony cumulatively to determine whether Mr.

Callanan could demonstrate materiality. See Kyles, 514 U.S. at 437 n. 10 (A reviewing court first

evaluates the “tendency and force of the undisclosed evidence item by item” and then evaluates

the “cumulative effect” of the suppressed evidence). Absent a showing that the State actually

withheld favorable evidence or knowingly suborned perjury, no “cumulative review” is done.

a. Nondisclosures (Grounds 3(c), 3(a), 3(b), 3(d), 3(f), 3(e))

1. Ms. Weinstein’s sobriety (Ground 3(c))

Mr. Callanan alleges the State “likely suppressed evidence” that Ms. Weinstein was

“extremely intoxicated” at the time of the homicide. (Sugg. in Supp. at 179).

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The undersigned finds Mr. Callanan did not raise this nondisclosure claim on direct appeal

or in his Rule 29.15 proceeding. It is therefore defaulted. He cannot overcome this default. As

discussed above, he failed to establish a reasonable probability of his innocence. Nor can he

establish “cause and actual prejudice” to overcome his default. The record reflects that the factual

basis for this claim was known or readily available to Mr. Callanan in order for him to have raised

it during the ordinary course of review. The claim is also without merit.

Mr. Callanan has repeatedly challenged Ms. Weinstein’s sobriety at each stage in his

proceedings. At trial, defense counsel extensively cross-examined Ms. Weinstein about her level

of intoxication and argued to the jury that Ms. Weinstein had consumed more than four beers that

night and was not being truthful. (Resp. Ex. R at 235–36, 311–15, 320, 683–84). Mr. Callanan

discussed Ms. Weinstein’s alleged intoxication in his direct appeal brief. (Resp. Ex. C at 2–3, 30,

41). He also presented two claims on this topic in his Rule 29.15 Motion. In that proceeding, he

argued that counsel was ineffective for not presenting “readily available evidence” to establish that

Ms. Weinstein was intoxicated and failed to call Richard Healy and Stephanie Schenk to testify

about their knowledge on this topic. (Resp. Ex. F at 28, 29). The motion court rejected Mr.

Callanan’s claims, finding that he failed to allege that he was prejudiced by counsel’s alleged

misconduct. (Id. at 234–35). The motion court also found that Mr. Callanan did not plead what

Mr. Healy and Ms. Schenk would have testified to if called and that the information asserted, even

if true, does not establish a valid defense (Id. at 236–37). Mr. Callanan unsuccessfully reasserted

these claims in his post-conviction appeal (Resp. Ex. G at 38–43, Resp. Ex. I at 6–8) in his federal

habeas proceedings (Pet. Ex. 33 at 33–34; Resp. Ex. J), and in his prior state habeas actions (Pet.

Exs. 35 and 36).

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Although Mr. Callanan disputes Ms. Weinstein’s testimony on this point, he did not allege

in his pleadings and failed to demonstrate at the hearing that the prosecutor knew Ms. Weinstein

was extremely intoxicated at the time of the homicide and failed to disclose this evidence to the

defense. Consistent with her trial testimony, Ms. Weinstein denied being intoxicated at the time of

the homicide in this proceeding. Mr. Callanan presented no credible evidence refuting this

testimony. Claim 3(c) is denied.

2. Anna Weschke’s statements to the police (Ground 3(a))

Mr. Callanan argues that the prosecutor failed to disclose that defense witness Anna

Weschke allegedly told the police she saw two occupants in a blue Firebird that passed by her

house sometime after the shooting. (Sugg. in Supp. at 179, 227). The undersigned finds that this

claim is also procedurally defaulted and without merit.

Ms. Weschke was Mr. Callanan’s witness at trial. Ms. Weschke would have known what

she told the police and presumably shared this information with Mr. Callanan’s investigator or

counsel before trial. With the exception that Ms. Weschke heard gunshots, the police report

attributes no statements to Ms. Weschke. Thus, any statement Ms. Weschke made before trial was

based on what she discussed and disclosed to Mr. Callanan’s counsel before trial. Trial counsel

testified in this proceeding that Ms. Weschke’s trial testimony was consistent with what she shared

with Mr. Callanan’s investigator before trial. (Vol IV, p. 229). There is no Brady violation if the

defendant could reasonably have obtained the material himself. United States v. Ladoucer, 573

F.3d 628, 636 (8th Cir. 2009) (government’s failure to produce transcript of state court testimony

not a Brady violation because the transcript was equally available to the defense); United States v.

Albanese, 195 F.3d 389, 393 (8th Cir. 1999); United States v. Jones, 160 F.3d 473, 479 (8th Cir.

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1998) (“There is no Brady violation if the defendant[ ], using reasonable diligence, could have

obtained the information [himself].” (internal quotation omitted)).

Mr. Callanan had access to the police reports and Ms. Weschke before and after trial. If

he believed the State violated Brady by not disclosing any of Weschke’s comments to the police,

the factual basis for that claim was known to Mr. Callanan before trial and he was required to raise

the claim on direct appeal. See Ivory v. State, 422 S.W.3d 503, 507 (Mo. App. E.D. 2014) (claims

of prosecutorial misconduct must be raised on direct appeal unless the alleged misconduct was

serious and would not have been apparent at trial). He chose not to. The claim is defaulted and he

cannot overcome this default.

Ms. Weschke, who is now deceased, did not testify at the evidentiary hearing and the

undersigned sustained Respondent’s objection to the admissibility of her affidavit, made fifteen

years after the homicide, on the basis of hearsay. (Vol. VII, pp. 186–87). Mr. Clark was permitted

to testify about his conversations with Ms. Weschke, but he did not state that Ms. Weschke told

him she saw two occupants in the car. (Id. at 82–83). Mr. Clark also agreed that Ms. Weschke’s

account to him was “basically what she testified to at trial.” (Id. at 184). The undersigned does not

accept the contents of the affidavit for the truth of the matter asserted but notes that Ms. Weschke’s

trial testimony, that she observed no one in the blue Firebird, conflicts with the affidavit’s

statement that she “thought” she saw “two people in the car” as it drove past her. Compare (Resp.

Ex. R at 573) with (Pet. Ex. 23). Nor did Mr. Callanan present any evidence that the prosecutor or

police were aware of this statement but failed to disclose it. Claim 3(c) is denied.

3. William Losing’s alleged relationship with Ms. Weinstein (Ground 3(b))

Mr. Callanan alleges the prosecutor failed to disclose that the victim’s half-brother,

William Losing, had a personal and romantic relationship with Ms. Weinstein before and during

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Mr. Callanan’s trial. (Sugg. in Supp. at 179, 235). He raised this claim in his Rule 29.15

proceeding, but did not do so on direct appeal. See (Resp. Ex. F at 5–6, 10, 20–21 (Claim 8(h)(viii);

Resp. Exs. C and E). Because he did not raise his claim on direct appeal, it is defaulted. See Ivory,

422 S.W.3d at 507. He cannot overcome this default.

Mr. Callanan did not establish that the factual basis of his Brady claim was not known or

unavailable to him in order for him to timely raise the claim on direct appeal. To the contrary, Mr.

Callanan raised this claim in his post-conviction motion and offered no explanation in this

proceeding why he failed to do so on direct appeal. Indeed, Mr. Callanan’s direct appeal counsel

also represented Mr. Callanan in his Rule 29.15 proceedings and filed the amended Rule 29.15

motion. (Resp. Ex. C at 1; Resp. Ex. F at 53). The motion court found that the claim was not

cognizable in the Rule 29.15 proceeding because it was not raised on direct appeal and in the

alternative, Mr. Callanan failed to plead that he was prejudiced. (Resp. Ex. F at 240–41). Mr.

Callanan did not appeal the denial of this claim in his post-conviction appeal. (Resp. Ex. I).7

The claim is also meritless. Mr. Callanan has not shown the prosecutor knew this

information and failed to disclose it. Nor has he shown a reasonable probability of a different

verdict.

Ms. Weinstein testified that she developed a friendship with Mr. Losing and had romantic

feelings towards him at some point, but this did not occur until after Mr. Callanan’s trial. Although

7 Mr. Callanan also raised a related claim of ineffective assistance of counsel regarding Ms. Weinstein’s purported relationship with Mr. Losing in his Rule 29.15 proceeding, alleging counsel was ineffective for

not discovering and presenting “readily available evidence” that Ms. Weinstein had been in “a lengthy dating relationship” with Mr. Losing immediately before trial and that Stephanie Schenk knew of this relationship. (Resp. Ex. F at 29–30, 44–45(Claim 8(c)(v)). The court found Mr. Callanan failed to allege

prejudice and the information asserted, even if true, did not establish a valid defense. (Id. at 234–35, 236–37). The court also found the failure to investigate the allegation was refuted by the record which showed

that counsel and his investigator spent numerous hours investigating Mr. Callanan’s case (Id. at 235). Mr.

Callanan appealed this claim but not the Brady claim. (Resp. Ex. I at 6–8).

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Ms. Weinstein could not originally recall when this friendship occurred in this proceeding two

decades after the trial, her recollection was refreshed with her trial testimony that she had just met

Mr. Schuh’s family at trial. (Vol. II, pp. 125–27, 154, 200). She stated that she testified truthfully

at trial. (Id. at 127–28). She testified in this proceeding she did not know Mr. Losing when she was

interviewed by Detective Albert after the homicide or before she testified before the grand jury.

(Id. at 155). Mr. Healy testified he thought the two were involved in a relationship before Mr.

Callanan’s trial, but admitted he had no first-hand knowledge about the relationship and his belief

was based on “hearsay” among his friends. (Vol. V, pp. 256, 262). Mr. Diemer testified in this

proceeding he never knew Mr. Losing had a relationship with Ms. Weinstein and did not recall

anyone ever telling him that. (Vol. III, pp. 152–53). Mr. O’Brien testified that he first learned about

the romantic relationship from Mr. Diemer, but he did not testify when Mr. Diemer purportedly

knew this information or identify when the relationship occurred. (Vol. VII, p. 94). The

undersigned finds Mr. Diemer and Ms. Weinstein’s testimony on this point to be credible. The

undersigned does not find Mr. O’Brien’s testimony on this point credible because Mr. O’Brien

represented Mr. Callanan in the Rule 29.15 proceedings where this very claim was raised and he

testified he did not have discussions with Mr. Diemer until after those proceedings concluded.

Assuming this purported relationship was common knowledge in the friend group, then Mr.

Callanan would also have been aware of this rumor given his communications with the same

friends and would have been known to the defense at trial. Regardless, Mr. O’Brien’s testimony

does not refute Ms. Weinstein’s credible testimony that no relationship was developed until after

trial. The undersigned gives Mr. Healy’s hearsay testimony no weight.

Moreover, even if the relationship occurred before trial Ms. Weinstein testified it would

not have influenced her testimony or caused her to testify differently. (Vol. II, pp. 154–55). The

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undersigned finds Ms. Weinstein’s testimony to be credible. Ms. Weinstein’s trial testimony was

consistent with the statements she gave Detective Albert the morning of the homicide, before she

could have been introduced to Mr. Losing. Further, Mr. Callanan did not demonstrate what Ms.

Weinstein’s testimony would have been absent the alleged relationship. Claim 3(b) is denied.

4. Ms. Weinstein’s post-trial internship (Ground 3(d))

Mr. Callanan argues that the prosecutor failed to disclose that Ms. Weinstein was promised

a future internship at the prosecutor’s office in exchange for her testimony. Mr. Callanan raised

this claim for the first time in this proceeding. The claim is defaulted and meritless.

Even if Mr. Callanan could demonstrate “cause” to excuse his default because the factual

basis did not occur until January 1999, nearly three years after Mr. Callanan’s trial, he cannot show

“actual prejudice” for the same reasons his claim is without legal merit. Mr. Callanan offered no

evidence to support his speculation that the prosecutor secured this future position for Ms.

Weinstein in exchange for her testimony. His speculation is refuted by Ms. Weinstein’s credible

evidence to the contrary. Ms. Weinstein testified she did not have any discussion with anyone in

the prosecutor’s office or the police about participating in a future internship in exchange for her

testimony against Mr. Callanan. (Vol. II, p. 166). Claim 3(d) is denied.

5. Criminal histories of the victim and victim’s family (Ground 3(f)).

Mr. Callanan argues that the prosecutor violated his due process rights by failing to disclose

the complete criminal histories of the victim and his half-brothers Billy Schuh, Billy Losing, and

Russell Losing. (Sugg. in Supp. at 234). He argues that this alleged failure “deprived the jury of

relevant evidence for Johnny Schuh’s active participation in the illegal drug trade.” (Id.). Mr.

Callanan raises this claim for the first time in this proceeding. The undersigned finds the claim is

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procedurally defaulted and meritless. Mr. Callanan cannot establish a due process violation

because this evidence would have been inadmissible and was equally available to both parties.

Trial counsel knew of the victim’s family member’s prior convictions for possession and

sales of narcotics and the victim’s prior drug use because he included it in his offer of proof on his

third-party-perpetrator theory to the trial court. (Resp. Ex. R at 628–31). Counsel also argued to

the trial court that “it is possible that because John Schuh may have been indebted to those who

supplied him with drugs or his family member with drugs that that was a motive for his murder.”

(Id. at 630). Thus, Mr. Callanan was already investigating and learned of the victim and his family

member’s prior drug convictions before trial. Although Mr. Callanan has not established that the

State was required to disclose these records based on the facts in this case, he would have been

aware before trial that no criminal histories were disclosed by the state. Therefore, the factual basis

for his Brady claim was known to him in order for him to raise it on direct appeal or post-conviction

proceeding. He chose not to. He cannot overcome this default.

Mr. Callanan has not established that the State was required to produce the criminal

convictions of the victim and the victim’s family members under the facts present in this case. The

prosecutor has no obligation to provide convictions for non-testifying victim family members. The

victim’s drug use and reputation evidence was properly excluded at trial. Evidence of the victim’s

prior arrests, bad acts, or specific allegations of immorality are irrelevant and inadmissible. State

v. Wise, 879 S.W.2d 494, 510 (Mo. 1994); State v. Schupp, 677 S.W.2d 909, 913 (Mo. App. E.D.

1984); State v. Brown, 604 S.W.2d 10, 15 (Mo. App. E.D. 1980); State v. Michalski, 725 S.W.2d

620, 622 (Mo. App. E.D. 1987). Inadmissible evidence cannot be used to establish that the State

suppressed evidence in violation of Brady. See Wood v. Bartholomew, 516 U.S. 1, 8 (1995);

Madsen v. Dormire, 137 F.3d 602, 604–05 (8th Cir. 1998). Even if this evidence was admissible,

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which it was not, the record demonstrates that this evidence was equally available to both parties.

See Ladoucer, 573 F.3d at 636; Jones, 160 F.3d at 479. There is no Brady violation. Claim 3(f) is

denied.

6. Criminal history of Christopher Boelhauf (Ground 3(e)).

Mr. Callanan argues the prosecutor failed to disclose Christopher Boelhauf’s “full arrest

and conviction record.”8 (Sugg. in Supp. at 20 n. 6, 25, 58). It is not clear from Mr. Callanan’s

record if the prosecutor disclosed some or all of Boelhauf’s convictions, but not his arrests.

Regardless, the claim is denied because it is both procedurally defaulted and meritless.

Mr. Callanan did not raise this claim on direct appeal. Instead, he raised it for the first time

in his Rule 29.15 proceeding. (Resp. Ex. F at 53). The motion court denied the claim finding that

it was not cognizable in the Rule 29.15 proceeding and alternatively found that Mr. Callanan failed

to allege facts demonstrating he was entitled to relief. (Id. at 240, 241). Mr. Callanan appealed.

The Missouri Court of Appeals found the motion court did not err in denying the claim because

Callanan did not plead prejudice. (Resp. Ex. I at 6, 10).9 The rejection of his claim appears to be

based on a procedural ruling, not a merits decision. Therefore, it is not barred under the Missouri

Supreme Court’s decision in Strong. However, he cannot cure his deficiencies in the post-

conviction proceeding by reasserting his claim here.

8 He also contends that the State failed to disclose that Boelhauf “was a confederate of Johnny Schuh and

the Losings.” (Sugg. in Supp. at 58). This claim is defaulted because it was not raised on direct appeal. Moreover, Callanan has not established a nondisclosure.

9 Mr. Callanan also raised this claim in his federal habeas proceeding. (Resp. Ex. J; Pet. Ex. 33). The federal

courts found that the state courts’ adjudication was a reasonable application of federal law. (Pet. Ex. 34 at 40, Resp. Ex. J at 19, 21). The district court further found that the State’s alleged nondisclosure did not

violate Brady, noting that the information was equally available to both the State and defense. (Resp. Ex.

J at 20–21).

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He cannot overcome his default. Mr. Callanan cannot blame direct appeal counsel for this

failure because he did not raise that specific claim of ineffective assistance of direct appeal in his

Rule 29.15 motion. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000); Tokar v. Bowersox, 198

F.3d 1039, 1051 n.13 (8th Cir. 1999); Williams v. Kemna, 311 F.3d 895, 897 (8th Cir. 2002).

Assuming arguendo that the factual basis of his Brady claim was not readily available to direct

appeal counsel in order to raise the claim on direct appeal, post-conviction counsel’s pleading

deficiency renders the claim defaulted. He cannot overcome his default by blaming post-conviction

counsel. See Barton v. State, 486 S.W.3d 332, 336 (Mo. 2016). Even if the factual basis was not

known by Mr. Callanan before his trial, it was discoverable through due diligence. Mr. Callanan

would have known before his trial if the prosecutor failed to disclose any (or partial) conviction

information regarding Mr. Boelhauf and could have utilized public information to investigate his

claim. Undersigned also notes that Mr. McLaughlin impeached Mr. Boelhauf with his prior

conviction at his trial that occurred in 1997, as Mr. Callanan discussed in his petition. (Sugg. in

Supp. at 140 n. 40). It seems unlikely this information would not have been known to both men at

or before that time. Assuming that Mr. Callanan could demonstrate “cause,” he cannot demonstrate

“actual prejudice” because this evidence is not material.

Testimony that Mr. Boelhauf had prior convictions for third-degree assault in 1988,

interfering with a police officer in 1991, and resisting arrest in 1993, would have only been

tangential to his testimony as a whole as it related to his observations at Columbia Bottoms party,

and there was other impeachment evidence presented. See Dye v. Stender, 208 F.3d 662, 667.

Specifically, that Mr. Boelhauf never told Detective Albert that Mr. Schuh pulled a chair out from

underneath Mr. Callanan. In light of the impeachment evidence presented to the jury and the other

evidence of Mr. Callanan’s guilt, Mr. Callanan has not shown a reasonable probability that the

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outcome of the proceeding would have been different. This is true when this evidence is viewed

individually and cumulatively with any other undisclosed evidence. There is no Brady violation.

Claim 3(e) is denied.

b. Belated Disclosures (Grounds 3(g) and 3(h)).

Mr. Callanan alleges the prosecutor belatedly disclosed (a) Ms. Weinstein’s statement that

she saw Callanan walk to the front door of the house with Schuh just before the shooting at trial

(Sugg. in Supp. at 235); and (b) Mr. Boelhauf’s statement regarding the lawn-chair incident

between Mr. Callanan and Mr. Schuh shortly before the murder (id. at 235). He concedes that both

statements came out at trial. This argument is improper because the claims independently fail both

procedurally and on the merits

The factual basis for both claims was known to Mr. Callanan at trial; therefore, he could

have raised his claims on direct appeal. He did not. He does not allege that direct appeal counsel

was ineffective for not raising the claim. Nor could he overcome this default by blaming appellate

counsel because he did not raise that specific claim of ineffective assistance in his Rule 29.15

proceeding. See Edwards, 529 U.S. at 452. Thus, he cannot demonstrate cause and his claim is

defaulted. Alternatively, Mr. Callanan cannot demonstrate a Brady violation. The evidence was

not favorable to Mr. Callanan. Instead, it was additional evidence tending to prove Mr. Callanan’s

guilt, and Mr. Callanan had knowledge of this evidence at trial. State v. Bynum, 299 S.W.3d 52,

62 (Mo. App. E.D. 2009) (State did not violate Brady because evidence was inculpatory and was

disclosed at trial); see also States v. Gonzales, 90 F.3d 1363, 1369 (8th Cir. 1996) (“[W]here

disclosure of exculpatory evidence is delayed, but the evidence is nonetheless disclosed during

trial, Brady is not violated.”). Grounds 3(g) and 3(h) are denied.

c. False Testimony Claims (Grounds 3(i), 3(j), and 3(k))

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In addition to claim two, Mr. Callanan argues the prosecutor either solicited or failed to

correct three additional instances of alleged false testimony during Detective Albert’s testimony

involving: (1) St. Louis County’s process for issuance of warrants (Sugg. in Supp. at 150, 207,

227–28, 229–30); (2) that “several people” told Detective Albert that Callanan had been in an

altercation with the victim (Id. at 152, 208); and (3) that no other leads existed before trial (Id. at

150, 194, 234). The claims are raised for the first time in this proceeding. The undersigned finds

that each claim is procedurally defaulted and without merit.

Mr. Callanan’s claims are based on Detective Albert’s testimony given at trial, which Mr.

Callanan attended. The factual basis for his claims was known or reasonably available to Mr.

Callanan and his counsels. Mr. Callanan could have raised these claims on direct appeal. He chose

not to. No factor external to the defense prevented him from raising the claims. Thus, he fails to

demonstrate “cause” to excuse his default. Mr. Callanan suggests that he was unaware of the

factual basis to excuse the procedural default on the claim regarding St. Louis County’s warrant

practice because Rick Sindel, Mr. Callanan’s prior state habeas counsel, discovered the alleged

falsity during Mr. Sindel’s representation. (Sugg. in Supp. at 230 n. 41). But Mr. Callanan offers

no explanation why his trial counsel and direct appeal counsel, experienced defense lawyers in St.

Louis County, failed to make the same discovery. Further, Mr. Sindel, who purportedly made this

discovery, did not raise this claim in Mr. Callanan’s prior state habeas petitions during Mr. Sindel’s

representation. Even if prior counsel did not recognize the factual basis for the claim in time, that

is not “cause” to excuse the default. “[T]he mere fact that counsel failed to recognize the factual

or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute

cause for procedural default.” Murray v. Carrier, 477 U.S. 478, 486 (1986); see also Zeitvogel v.

Delo, 84 F.3d 276, 279 (8th Cir. 1996). All three claims are defaulted.

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Even if Mr. Callanan could overcome his default, which he cannot, he has not shown a due

process violation. To prove that the prosecutor’s failure to correct false testimony violated due

process rights, a petitioner must demonstrate that (1) the statement was actually false; (2) the

prosecutor knew it was false; and (3) the conviction was obtained as a result of the perjured

testimony. State v. Albanese, 9 S.W.3d 39, 50 (Mo. App. W.D. 1999); see also State v. Cummings,

400 S.W.3d 495, 504 (Mo. App. S.D. 2013) (utilizing a three-part test). For testimony to be

perjured, it must not only be false, but must relate to a “material fact” in the case. Mo. Rev. Stat.

§575.040.1 (emphasis added); see also Cummings, 400 S.W.3d at 504. “A fact is material,

regardless of its admissibility under rules of evidence, if it could substantially affect, or did

substantially affect, the course or outcome of the cause, matter or proceeding.” Cummings, 400

S.W.3d at 504 (quoting Mo. Rev. Stat. §575.040.2).

St. Louis County’s Warrant Process

During his direct examination, Mr. Diemer had Detective Albert explain the difference

between a “wanted” and the request for a “warrant” in St. Louis County. (Resp. Ex. R at 541–42).

Detective Albert explained that a “wanted” was not a warrant and is only directed to all law

enforcement in the State of Missouri. (Id. at 541). Mr. Callanan takes issues with the following

testimony:

Q: [By the prosecutor] And what is the prosecuting attorney’s policy in St. Louis

County with regard to issuing warrants?

A. Generally, it’s when the person is in custody and or has been in custody with an opportunity to make a statement. If they are at large, we have not come across them

yet, we have to show that we know that the person has left the State and a wanted

teletype would not apply.

(Id. at 542).

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Even if Mr. Sindel disagreed with Detective Albert’s testimony, Mr. Callanan did not

establish that Detective Albert’s testimony, which was based on Detective Albert’s impressions

and observations of the St. Louis County Prosecuting Attorney’s Office’s practice at the time of

Callanan’s trial, was false. Mr. Callanan did not establish that Mr. Diemer knew that Detective

Albert’s testimony was false. Finally, Mr. Callanan cannot show that the conviction was obtained

as a result of this testimony. There is no reasonable likelihood that this alleged false testimony

affected the verdict.

“Several people” Saw an Altercation between Mr. Callanan and Mr. Schuh

During cross-examination, Mr. D’Agrosa questioned Detective Albert about possible

motive regarding Schuh’s homicide and the following exchange occurred:

Q. (by Mr. D’Agrosa) Did you talk to any of the witnesses in this case regarding a possible motive?

A. Well, sure. We always do that.

Q. And none was provided; is that a fair statement?

A. Not a specific motive for that evening, no.

Q. Meaning not something specifically that happened between Larry Callanan and

Johnny Schuh?

A. Oh, well, no. That’s not – An earlier altercation was at the party on Columbia

Bottoms was told to me by several people. What the root of that was, what the cause

of that was, that to me meant motive, and, no, that was never established.

Q. The idea that maybe John Schuh had pulled a chair out from under Larry

Callanan and that angered him, you didn’t consider that a motive for him to kill Johnny Schuh?

A. This is the first I’ve heard of that.

Q. Chris Boelhauf’s testimony in that regard, you are not aware of his statement in that regard?

A. No. He didn’t tell me that, that he had witnessed that.

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(Resp. Ex. R at 552) (emphasis added). Mr. Callanan disputes that “several people” told Detective

Albert about an altercation because the police report only identifies that Mr. Boelhauf witnessed

an altercation. Again, Callanan has not established that Detective Albert’s trial testimony was

false. It is possible that other individuals told Detective Albert about the altercation at Columbia

Bottoms. The witnesses in this proceeding discussed that the night’s events were discussed

between various friend groups, and it is possible other individuals may have told Detective Albert

about the altercation, even if the individuals did not have firsthand knowledge. It is also plausible

that Detective Albert simply misremembered that he only reported this observation from Mr.

Boelhauf in his police reports, the same reports trial counsel had before trial and could have

impeached Detective Albert on this point. He did not. Assuming Mr. Callanan can demonstrate

that Detective Albert’s testimony was inconsistent with his report, a witness’s inconsistent

statement is insufficient to establish the knowing use of false testimony. See United States v.

Martin, 59 F.3d 767, 770 (8th Cir. 1995); Murray v. Delo, 34 F.3d 1367, 1375–76 (8th Cir. 1994)

(inconsistent statements are the subject matter for cross-examination but they do not establish

perjury). Nor did Mr. Callanan demonstrate that the prosecutor knew Detective Albert’s testimony

was false. Finally, Mr. Callanan cannot show that the conviction was obtained as a result of this

testimony. At trial, the prosecutor presented only the testimony from one witness, Mr. Boelhauf,

who observed an altercation. Because no other witnesses were presented, the jury could have

believed that only one individual did witness the fight. In light of the record, Mr. Callanan has not

established a reasonable likelihood the allegedly false testimony affected the verdict.

Police Had No Other Leads

During re-direct, Detective Albert testified that no other leads existed before trial:

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Q. (by Mr. Diemer) While the case was still under investigation, at that time you

stated that it was still under investigation, did you develop any leads to anyone else

as being responsible for this homicide?

A. Oh, no, never.

(Resp. Ex. R at 558). Mr. Callanan argues that Detective Albert testified falsely by stating that no

other leads existed. He also raises a related Brady claim alleging that the prosecutor failed to

disclose other leads. (Sugg. in Supp. at 194, 204). But Mr. Callanan cannot demonstrate a due

process violation on either claim.

Mr. Callanan did not establish that Detective Albert’s testimony on this point was false. He

appears to argue that because the State failed to investigate Mr. Callanan’s various theories

attempting to connect another individual to the murder—despite his failure to directly connect

another individual—Detective Albert lied, and the State knew he lied. But the fact that Mr.

Callanan thought other leads should have been pursued does not establish that Detective Albert’s

trial testimony was false. While Detective Albert investigated the homicide, additional evidence

against Mr. Callanan came to light that only strengthened the evidence against Mr. Callanan. Even

so, Detective Albert continued to seek out information on other leads, but none surfaced. Indeed,

the only individual who had purported information about another suspect or knowledge that Mr.

Schuh was allegedly waiting to buy drugs in the driveway was Mr. Callanan. Tellingly, he did not

tell his friends or his attorneys this information before trial, but he faults Detective Albert for not

locating it. In short, Mr. Callanan presented no evidence that Mr. Diemer knew this statement was

false or was ever aware other leads were investigated. In short, Mr. Callanan has not shown a

nondisclosure of favorable material evidence or the knowing use of false testimony. Both claims

are meritless.

d. Prosecutorial Misconduct (Grounds 3(l), 3(m), 3(n), 3(o), 3(p), 3(q), 3(r),

3(s), 3(t), 3(u), 3(v), and 3(w))

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Mr. Callanan argues that the prosecutor engaged in several instances of alleged misconduct

before and during his trial. Eight of these claims were raised and rejected on the merits by Missouri

courts during Mr. Callanan’s direct appeal and in his Rule 29.15 proceeding. The remaining four

claims are procedurally defaulted and without legal merit.

1. Grounds 3(n), 3(p), 3(q), 3(r), 3(t), 3(u), 3(v), and 3(w) are denied

because they were adjudicated on the merits on direct appeal or in

his post-conviction proceeding.

Seven of Mr. Callanan’s claims of prosecutorial misconduct were raised and rejected on

the merits by the Missouri Court of Appeals on direct appeal. Those claims are identified above

as 3(n), 3(p), 3(q), 3(r), 3(t), 3(u), and 3(v) and set forth below:

Ground 3(n): The prosecutor improperly urged the jury to infer consciousness of guilt

because Mr. Callanan did not accede to police questioning for six weeks after the

shooting and thus commented on Mr. Callanan’s pre-arrest and post-arrest silence

(Resp. Ex. C at 39, 53–54).

Ground 3(p): The prosecutor told the jury Ms. Weinstein was not the kind of person

who would lie, improperly bolstering her credibility (id. at 13, 38);

Ground 3(q): The prosecutor asked Mr. Claggett if he was lying because he was afraid

of Mr. Callanan and his family and implied that Mr. Claggett told the police that Mr.

Callanan was the perpetrator, but never called that officer. (id. at 37, 38–39);

Ground 3(r): The prosecutor implied that Mr. Callanan’s father, Thomas Callanan, had connections to organized crime by asking Thomas Callanan if he contacted Sorkis

Webbe, Jr., and asked a police officer if he knew Thomas Callanan from previous

contacts, implying prior bad acts (id. at 8–10, 37, 38);

Ground 3(t): The prosecutor argued Mr. Claggett and Mr. McLaughlin knew Mr.

Callanan was the murderer in closing, implying personal and police knowledge of the

murder not in evidence (id. at 11–12, 14–16, 39);

Ground 3(u): The prosecutor referenced that Mr. McLaughlin made statements, but

not the contents of those statements, to Ms. Weinstein after she returned to the Lassen

home during her examination and in closing (id. at 11–12, 38);

Ground 3(v): The prosecutor improperly interrupted defense counsel’s closing argument by asserting 13 objections and only one objection was sustained (id. at 10–11, 39–40).

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The Missouri Court of Appeals found “the contentions on appeal to be without merit.” (Resp. Ex.

E). That is a merits decision. The appellate court’s rejection of those claims on direct appeal

precludes subsequent habeas relief under Strong. Strong, 462 S.W.3d at 734–35 (“habeas review

does not provide ‘duplicative and unending challenges to the finality of a judgment,’ so it is not

appropriate to review claims already raised on direct appeal or during post-conviction

proceedings”). To allow otherwise, as Mr. Callanan urges, “would result in a chaos of review

unlimited in time, scope, and expense.” Simmons, 866 S.W.2d at 446. This unending review has

occurred here. Mr. Callanan attempted to relitigate Grounds 3(n), 3(q), 3(r), 3(t), 3(u), and 3(v) in

his Rule 29.15 proceeding, but the motion court properly denied the claims because they had

already been adjudicated on direct appeal. (Resp. Ex. F at 240–41). He then unsuccessfully sought

federal habeas relief on Grounds 3(n), 3(q), 3(r), and 3(t), and state habeas relief on Grounds 3(n),

3(q), and 3(r). (Pet. Ex. 33 at 43–50; Pet. Ex. 35 at 33–36; Pet. Ex. 35 at 33–36). State habeas

corpus is not a second (or third) appeal. These claims are not rendered “new” because Mr. Callanan

desires to present more evidence – none of which establishes a due process violation – after prior

courts already found Mr. Callanan’s claims unavailing. Strong controls here. Grounds 3(n), 3(r),

3(q), 3(t), 3(u), 3(p), 3(h), and 3(v) are denied.

The same is also true for Ground 3(w) which was adjudicated on the merits in the Rule

29.15 proceeding. In that proceeding, Mr. Callanan argued the prosecutor falsely accused Mr.

Beck of having a prior conviction and improperly accused Mr. Beck of “making up lies” during

the State’s closing argument. (Resp. Ex. F at 34). The motion court found that the claim was not

cognizable, but in an alternative holding found the claim was refuted by the record. (Resp. Ex. F

at 240, 241) (citing to Resp. Ex. R at 582–86 (Mr. Beck’s cross-examination)). Mr. Callanan

appealed the denial of this claim to the Missouri Court of Appeals, which affirmed the denial of

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post-conviction relief. (Resp. Ex. I at 6, 10–11). Mr. Callanan sought to relitigate this claim in his

two prior state habeas actions as well. (Pet. Ex. 35 at 36; Pet. Ex. 36 at 36). The motion court’s

alternative merits holding, and the Missouri Court of Appeals affirmance, bars habeas relief on

Ground 3(w) under Strong. Ground 3(w) is denied.

2. Grounds 3(l), 3(m), 3(o), and 3(s) are defaulted and meritless.

In his four remaining allegations, Mr. Callanan argues the prosecutor committed

misconduct by: (1) allowing Bill Losing to be present during pre-trial witness interviews and in

the witness room at trial where Mr. Losing allegedly intimidated Mr. Claggett (Ground 3(l)); (2)

allegedly intimidating Mr. Claggett during his pre-trial interview (Ground 3(m)); (3) referring to

witness “Koltenbronn” in closing and claiming Mr. Koltenbronn testified “that when a gun goes

off, stuff flies around” referencing powder and blood, but the State did not call that witness

(Ground 3(o); and (4) challenging Mr. Callanan’s investigator’s timeline at trial by stating “I’ve

driven this.” (Ground 3(s)).

Bill Losing’s Interactions

Mr. Callanan raised Grounds 3(l) in his Rule 29.15 proceeding. (Resp. Ex. F at 38). The

motion court found the claim should have been raised on direct appeal and was therefore not

cognizable. (Id. at 240). The Missouri Court of Appeals agreed on post-conviction appeal. (Resp.

Ex. I at 6, 10).

Mr. Callanan was certainly aware of the factual basis for his claims in his Rule 29.15

proceeding, when he first raised his claims. He did not establish why he was unable to assert this

claim on direct appeal in this proceeding. Mr. Callanan did not present any evidence on how and

when he first discovered the factual basis for these claims. The undersigned finds the factual basis

was known or reasonably available to Mr. Callanan to have been timely raised on direct appeal.

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Mr. Harper and Mr. Claggett were both friendly witnesses to Mr. Callanan, visited Mr. Callanan

in the county jail and had discussions with him and his counsels before and after trial. (Vol. VI,

pp. 156–57, 163–64) Mr. Harper was aware Mr. Losing drove him to the pre-trial interview and

attended the interview before trial. According to Mr. Claggett, he did not tell anyone, including

his parents or friends, about the alleged incident in the witness room. (233–34). While Mr. Claggett

testified that other witnesses were present (214, 233), Mr. Callanan presented no witness to

corroborated Mr. Claggett’s testimony on this point. Regardless, Mr. Callanan clearly learned this

information from someone to have raised it before. Mr. Callanan has not shown “cause” to excuse

his default.

Alternatively, both claims are meritless. In situations involving prosecutorial misconduct,

the test is the fairness of the trial, not the culpability of the prosecutor. State v. Zink, 181 S.W.3d

66, 71 (Mo. 2005). “Where prosecutorial misconduct is alleged, the erroneous action must rise to

the level of ‘substantial prejudice’ in order to justify reversal.” Id. “Substantial prejudice” means

whether the misconduct substantially swayed the judgment. Id.; see also Anderson v. Goeke, 44

F.3d 675, 678–80 (8th Cir. 1997) (To establish a due process violation, Petitioner must

demonstrate absent the alleged impropriety there is a reasonable probability the outcome of the

proceeding would have been different).

Mr. Harper was interviewed with Mr. Losing present before trial. But the interview was on

the Arrow Point incident, not the homicide. Mr. Losing did not make any comments during the

interview. In this proceeding, Mr. Harper denied that he ever felt threatened by Mr. Losing. (Vol

I, pp. 294–95). Mr. Harper never told Mr. D’Agrosa he felt threatened or pressured to talk to him

or anyone else. (Vol. IV, p. 246). Moreover, Mr. Harper was being shuttled back and forth to Mr.

Diemer and Mr. D’Agrosa by family members of both the defendant and the victim. Mr. Losing’s

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mere presence at the interview does not establish a constitutional violation. Mr. Callanan presented

no evidence that Mr. Harper’s trial testimony was impacted at all by Mr. Losing’s presence and no

evidence of what Mr. Harper’s testimony would have been had this not occurred. The same is also

true regarding Mr. Claggett.

Mr. Claggett testified that Mr. Losing threatened him in the witness room before trial. Mr.

Losing denied this occurred. No other witness observed this incident. Presumably Ms. Weinstein

and Mr. Harper would have been in the witness room at some point with Mr. Claggett because the

three testified on the first day of trial and only two witnesses testified in between the three. (Resp.

Ex. R at 2–3). Mr. Callanan did not call the other two witnesses who were present in the witness

room that day. The undersigned finds Mr. Losing’s testimony on this point credible. Regardless,

even if the event occurred, Mr. Claggett testified in this proceeding that it did not affect his trial

testimony. (Vol. I, p. 234). Mr. Callanan presented no evidence of what Mr. Claggett would have

testified to if this alleged incident did not occur. He offered no evidence establishing Mr. Diemer,

or anyone else knew, this occurred. Ground 3(l) is denied.

Ronald Claggett’s Pre-Trial Interview

Mr. Callanan unsuccessfully raised Ground 3(m) in his two prior state habeas actions. (Pet.

Ex. 35 at 33; Pet. Ex. 36 at 33). The undersigned also denies this ground.

The claim is procedurally defaulted. Mr. Callanan did not raise this claim on direct appeal

or in his Rule 29.15 proceeding. The factual basis for this claim was not known to him or

discoverable through the exercise of due diligence. Mr. Claggett’s pre-trial interview was

discussed at trial. Mr. Claggett had communications with Mr. Callanan and his counsel before and

after trial. Mr. Callanan has not shown “cause” to overcome his default.

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Nor has he established a constitutional violation. Mr. Diemer testified that his meeting

with Mr. Claggett was businesslike and professional and denied that Mr. Claggett asked him to

leave his home. (Vol. III, pp. 223–24). Even if this occurred, Mr. Claggett testified in this

proceeding that nothing the prosecutor said affected his trial testimony. (Vol I, p. 234). And Mr.

Callanan presented no evidence that Mr. Claggett’s trial testimony was changed or what he

testified to differently due to this alleged incident. Ground 3(m) is denied.

Mr. Diemer’s Reference to Koltenbronn in Closing

In Ground 3(o), Mr. Callanan complains about the prosecutor’s reference in closing to an

expert witness who did not testify. The factual basis for this claim was apparent on the face of the

record. But he did not raise the claim on direct appeal. It is defaulted and he cannot show “cause”

to excuse his default. It is also meritless.

John Koltenbronn and William Crosswhite both worked with the St. Louis County Police

Department Crime Lab and conducted the ballistic examinations in this case. (Vol. IV, pp. 102–

03). Mr. Diemer told the jury they would hear from Mr. Koltenbronn in opening, but ultimately

did not call him to testify. (Resp. Ex. R at 2–6, 228–29). Instead, the State called Mr. Crosswhite

to testify about the ballistics recovered from the homicide and how guns work generally. (Id. at

501–09). In this proceeding, Mr. Diemer testified he got the names confused in closing argument

and only mislabeled the “man,” not the evidence. (Vol. IV, pp. 105–06). The undersigned agrees.

Moreover, the jury was instructed that opening statements and closing arguments are not evidence

and were instructed to recall the evidence as presented and determine the facts based on the

evidence presented. (Resp. Ex. A at 86, 98; Resp. Ex. R at 656). There is no constitutional

violation. Ground 3(o) is denied.

“I’ve Driven This” Comment

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In Ground 3(s), Mr. Callanan complains that the Mr. Diemer should not have stated “I’ve

driven this,” when he challenged Mr. Callanan’s investigator’s timeline calculations during cross-

examination. Mr. D’Agrosa in fact objected to this statement at trial and the court sustained his

objection. (Resp. Ex. R at 617). He did not seek any further remedial action by the court. However,

the jury was instructed to disregard the entire question, testimony, or exhibit if an objection is

sustained by the court. (Resp. Ex. A at 86). The jury is presumed to follow instructions. State v.

Cornelious, 258 S.W.3d 461, 468 (Mo. App. W.D. 2008).

If Mr. Callanan wished to pursue this claim on direct appeal, despite his counsel’s

successful objection to this statement, he could have done so. He did not. Mr. Callanan’s claim is

defaulted. It is also meritless in light of the actions taken at trial and the instructions provided to

the jury. For the same reasons, he has not shown that he was prejudiced by this remark. Ground

3(s) is denied.

D. Callanan is entitled to relief because a juror was exposed to prejudicial extrinsic

evidence (Ground 4)

Recommendation

The Master finds that Callanan’s rights to due process, to counsel, and to confront and

cross-examine witnesses were violated when juror Linda Zeman was exposed to prejudicial

extrinsic evidence—namely, that the gun used to kill Schuh was not produced at trial because the

State was holding it in another case involving Callanan. (P. Ex. 179, pp. 16-19). The State never

recovered the gun used to kill Schuh, and the State did not present any evidence that Callanan was

involved in an unrelated shooting. A jury’s verdict must be based solely on the evidence before it.

Here, that was not the case. Accordingly, the Master recommends that Callanan’s convictions be

vacated.

Callanan overcomes any procedural default

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Callanan is entitled to proceed because he meets the cause and prejudice standard. Again, cause

for a claim’s procedural default typically “requires a showing of some external impediment

preventing counsel from constructing or raising the claim.” Murray v. Carrier, 477 U.S. 478, 479

(1986). “Cause” may be established where the petitioner did not raise the claim in prior

proceedings because he had not yet discovered its factual basis. State ex rel. Koster v. McElwain,

340 S.W.3d 221, 254 (Mo. App. W.D. 2011).

For example, in McElwain, the Court found that cause existed where the petitioner did not

discover until habeas corpus proceedings that a map not introduced at trial was provided to the

jury during deliberations. Importantly, the Court rejected the State’s argument that the petitioner

could have discovered this evidence earlier, noting that nothing suggested “he was earlier alerted

or should have been earlier alerted to the prospect of discovering that the jury had been provided

a map that was never introduced into evidence during its deliberations.” McElwain, 340 S.W.3d at

254.

Here, Callanan did not discover that Zeman learned about an alleged unrelated shooting until

April of 2018, when law student investigators interviewed jurors on his behalf. No evidence before

the Master suggests that Callanan should have known of Zeman’s exposure to this purported

evidence prior to the April 2018 interview. As in McElwain, Callanan had no reason to have “been

earlier alerted to the prospect that” Zeman had been exposed to this extrinsic evidence. This

constitutes “cause” to excuse Callanan’s failure to raise the claim in prior proceedings.

Further, Callanan was prejudiced by Zeman’s exposure to this evidence. When a habeas

petitioner shows that extrinsic evidence was introduced to the jury, prejudice is presumed, and the

burden shifts to the State to prove that the petitioner was not prejudiced. McElwain, 340 S.W.3d

at 255 (citing State v. Babb, 680 S.W.2d 150 (Mo. banc 1984)). Here, juror Zeman was exposed

113

to evidence that the gun used in the Schuh homicide was being held in connection with another

shooting involving Callanan. (P. Ex. 179, pp. 16-19). No such evidence was adduced at trial.

Neither party discussed another shooting during voir dire. Zeman’s exposure to this evidence

necessarily came from an outside source. Prejudice is therefore presumed.

The Master finds that the State has not rebutted this presumption. To the contrary, the Master

finds that this extrinsic evidence was highly prejudicial. The State never recovered the gun used

to kill Schuh. Yet, Zeman believed the gun used to kill Schuh was being held by police in another

case involving Callanan. Id. As developed below, this evidence is especially prejudicial in light of

the weak and circumstantial case presented at trial.

This is not an attempt by Petitioner to impeach the jury’s verdict by a juror’s testimony about

jury misconduct. Petitioner does not allege any jury misconduct. He alleges, and has proven to

the satisfaction of the Master, that at least one juror was exposed to prejudicial extrinsic evidence.

Merits

A jury’s verdict “must be based on the evidence developed at the trial.” Turner v. Louisiana,

379 U.S. 466, 472-73 (1965). Indeed, “[d]ue process means a jury capable and willing to decide

the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217 (1982). This

requirement “goes to the fundamental integrity of all that is embraced in the constitutional concept

of trial by jury.” State ex rel. Koster v. McElwain, 340 S.W.3d 221, 253 (Mo. App. W.D. 2011)

(quoting Helmig v. Kemna, 2005 WL 2346954 at *36-37 (E.D. Mo. Sept. 26, 2005)). It matters

not how many jurors were exposed to extrinsic evidence—when “a single juror is improperly

influenced, the verdict is unfair as if all were.” United States v. Delaney, 732 F.2d 639, 643 (8th

Cir. 1984).

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“Jury exposure to facts not in evidence” not only deprives a defendant of due process, it

“deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel

embodied in the Sixth Amendment.” McElwain, 340 S.W.3d at 253. Cross-examination is so

important to the discovery of the truth that a court may only allow a witness to testify when defense

counsel is given a “meaningful opportunity for effective cross-examination.” State v. Hughes, 497

S.W.3d 400, 405 (Mo. App. 2016). Indeed, it is “an essential right and one of the safeguards to a

fair trial.” Hughes, 497 S.W.3d at 405.

Here, Zeman was exposed to evidence that was not introduced through a witness that could be

cross-examined. Callanan therefore had no opportunity to challenge its veracity. No gun was ever

recovered in the Schuh homicide, but Zeman was told that the State recovered the murder weapon.

Similarly, the gun used to kill Schuh was not being held in connection with another case involving

Callanan, but Zeman was told that it was. The evidence to which Zeman was exposed was false.

Further, the only evidence that Callanan was purportedly involved in an unrelated shooting

was a charge that was later dismissed—the Arrow Point incident in which someone fired shots

into an unoccupied vehicle. The Court precluded the State in an in limine ruling from introducing

any evidence regarding that charge. It is unclear whether the unrelated shooting Zeman was told

about was the Arrow Point incident. Regardless, Zeman’s exposure to evidence that Callanan was

purportedly involved in another shooting contravenes the Court’s ruling excluding such evidence.

Again, a juror’s exposure to extrinsic evidence triggers a presumption of prejudice. Here, that

presumption is amply supported by the facts. Evidence that a gun was recovered in the Schuh

homicide and was being held in connection with another shooting involving Callanan strongly

suggests that Callanan was responsible for Schuh’s murder. While this evidence would be damning

to a defendant in any case, it is especially so here, as the evidence presented against Callanan at

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trial was thin. In other words, because there was so little evidence against Callanan, the false

evidence to which Zeman was exposed was more likely to prejudice him.

Further, the Court’s in limine ruling excluding evidence of the Arrow Point incident

underscores the prejudicial nature of evidence suggesting that Callanan participated in an unrelated

shooting. Indeed, the Court’s ruling indicates that such evidence is prejudicial even when presented

at trial, where defense counsel would have an opportunity to cross-examine witnesses and

challenge that evidence. Here, the evidence to which Zeman was exposed did not come through a

witness at trial; it came from an outside source. (P. Ex. 179, p. 32). The prejudicial effect is

therefore even greater in this context, as defense counsel had no opportunity to challenge the

evidence.

Respondent bears the burden to rebut the presumption of prejudice triggered by Zeman’s

exposure to extrinsic evidence. However, Respondent presented no evidence to rebut that

presumption. In the absence of any evidence from Respondent, and given the prejudicial nature of

the evidence to which Zeman was exposed, the Master finds that Callanan was prejudiced by

Zeman’s exposure to extrinsic evidence.

V. CONCLUSION

Callanan’s Petition for Writ of Habeas Corpus should be granted and his convictions should

be vacated due to the egregious Brady violation by the prosecutor, Mr. Diemer, and his failure to

correct Ms. Weinstein’s trial testimony when she denied seeing a second car. Callanan’s

conviction resulted, at least in part, from the presentation of false evidence at trial, the failure of

the prosecutor to disclose exculpatory and impeaching evidence that was material, and because at

least one juror was exposed to extrinsic, false and prejudicial information that was not evidence in

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the case. The clear result is a verdict not worthy of confidence, a verdict that has deprived

Petitioner of his liberty for life. At a minimum, Callanan deserves a trial free from constitutional

error.

Based on the foregoing, the Master finds that Callanan is entitled to the Writ of Habeas Corpus

and respectfully recommends that the Supreme Court of Missouri grant Callanan’s Petition for

Writ of Habeas Corpus and vacate his convictions forthwith.

Respectfully submitted,

___________________ _____________________________

Date Honorable Gael D. Wood

March 4, 2020

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