Special Master named in Healea case

Retired Circuit Judge Hadley E. Grimm, of Macon, has a new assignment: Advise his successor, Judge Frederick P. Tucker, on a legal point raised by Moniteau County Prosecutor Shayne Healea, who faces a trial on charges stemming from a Columbia traffic accident nearly two years ago.

Healea's attorney, Shane Farrow, of Jefferson City, argued in a four-page "memorandum of law" motion filed last week that Columbia police in 2014 violated Healea's constitutional rights.

"No remedy short of dismissal of all pending charges is sufficient to repair the intentional harm done by the government in this matter," Farrow wrote. "Additionally, no remedy short of dismissal with prejudice" - so the case couldn't ever be refiled - "is sufficient to prevent similar future harm to others."

Assistant Attorney General Julie Tolle is the special prosecutor in the case, after Boone County Prosecutor Dan Knight recused himself and his office because Knight and Healea work together as officers of the Missouri Prosecuting Attorneys Association.

Nanci Gonder, the attorney general's spokeswoman, said last week Tolle expects "to file a response within the next few weeks" but didn't offer any other comment about the case.

Grimm last Wednesday was named a "special master" in the case, "for the single purpose of hearing and ruling on issues arising from (Healea)'s memorandum," Tucker wrote in a docket entry.

Tucker also canceled Healea's trial scheduled for Oct. 27 and 28 in Shelbyville. It still can be rescheduled if Grimm recommends the case go to trial.

After being indicted by a Boone County grand jury in November 2014, Healea faces five felony charges, including leaving the scene of an accident where there was an injury or property damage and four counts of second-degree assault for operating a vehicle while intoxicated, resulting in injury.

The four assault charges are Class C felonies, which - if there is a conviction - could result in a prison sentence of up to seven years on each count.

The leaving-the-scene charge is a Class D felony, which could result in a prison sentence of up to four years.

The grand jury indictments followed allegations that on Saturday, Oct. 25, 2014, Healea backed his pickup truck, with the tailgate down, into a glass-block window in the back of Addison's Restaurant, 709 Cherry St. in downtown Columbia.

Four people inside the restaurant were hurt by the broken glass.

The Columbia Daily Tribune reported two of the four sued Healea in Boone County Circuit Court, but their case was moved to federal court and now is set for trial about a year from now.

Columbia police said at the time of the accident Healea left the scene and parked his truck in front of the Tiger Hotel, nearby on Eighth Street.

Healea said in a statement released the next day he had not noticed his tailgate had hit the restaurant's glass-block window, and he stopped his truck and returned to the scene once a witness told him what had happened.

Officers also said after he was arrested Healea refused a breath-alcohol test, and they later secured a warrant to take his blood for a toxicology screen.

Healea eventually was released from the Boone County Jail after posting a $22,500 bond.

The trial was moved to Shelbyville on a change of venue.

But Farrow's motion argued Healea's basic rights were violated while he was in custody immediately after the accident - when Healea asked to speak with his attorney.

"The arresting officer attempted to force (Healea) to speak to his attorney in the officer's presence, to which the defendant objected," Farrow wrote in his memorandum of law. "The arresting officer then allowed the defendant to speak to counsel in a holding cell, in which the officer had the ability to electronically observe the defendant visually and audibly and recorded the entire conversation.

"Both sides of the conversation between (Healea) and counsel were captured by the department camera and microphone."

And that's where the Constitution was violated, Farrow argued.

"A defendant's right to counsel and a fair trial, guaranteed through the (U.S. Constitution's) 6th Amendment, is likely the most sacrosanct tenet of our legal system as it exists today," Farrow wrote near the end of his four-page memorandum. "To permit the government to intentionally invade the attorney-client relationship at the inception of an investigation and then proceed to prosecute the individual whose rights were violated would render the protections guaranteed under the 6th Amendment meaningless and constitute a miscarriage of justice."

In the motion, Farrow outlined several problems stemming from the illegal recordings.

"The case file, which included (Healea)'s conversation with his attorney, was recorded, burned to disc and given to the Office of the Missouri Attorney General, who subsequently presented evidence before a grand jury and indicted the defendant on the now pending charges," Farrow wrote. "The Office of the Attorney General has been in possession of defendant's 15- to 20-minute conversation with his attorney since before this case was presented to a grand jury.

"Furthermore, the attorney general has failed to make the Court aware of the violation."

Farrow noted he had complained about the "the State and her agents violating defendant's attorney-client privilege" during a July 14, 2016, hearing with Tucker, and Tolle "at that time assured the Court no such violation occurred and that she had verified no violation occurred through the arresting officer and (Columbia's) Chief of Police."

But, Farrow wrote, Healea "now provides proof the violation occurred and that the conduct violates defendant's 6th Amendment right to counsel and a fair trial."

Farrow noted Missouri's Supreme Court has not decided any case involving the issue Farrow raised but pointed to two other states' Supreme Court rulings - Connecticut and Nebraska - that have addressed the issue.

"While not controlling, their reasoning should be applied (here)," Farrow wrote, noting the Connecticut court determined in 2011 its "case is irreversibly tainted by the prosecutor's intrusion into the privileged communications (and) the only available appropriate remedy is dismissal of the charge of which he was convicted."

Farrow said the Nebraska court made the same finding in a case last January.

In Healea's case, Farrow argued, "The police and attorney general have continuously possessed the privileged information for nearly two years while building their case.

"This most egregious invasion allowed police and the attorney general the opportunity and ability to decide not only whether or not to pursue charges, but whether or not to pursue evidence through search warrants, what charges to file, the degree of charges to file, how to prepare witnesses for grand jury testimony, for suppression hearing testimony, for deposition testimony and trial testimony."

There's no indication when Grimm will hold his hearing on the question or how long it will take him to decide what advice Tucker should have for ruling on Farrow's motion - and however the state responds.