Charges against assistant attorney general dismissed

VAN BUREN, Mo. -- A case originally filed by Carter County Prosecuting Attorney Rocky Kingree against an assistant attorney general ended last week when a special prosecutor dismissed the charges.

Earlier this month, Associate Circuit Judge Don Henry appointed Howell County Prosecuting Attorney Michael Hutchings and his assistants, including Rizwan Ahad, to prosecute Steven Ray Berry, an assistant attorney general, charged with tampering with a public record and making a false declaration.

Berry was accused of falsely entering his appearance March 25 as attorney for the state in Lance Shockley v. State of Missouri, a post-conviction relief case filed in Carter County's Circuit Court. Berry also was accused of misleading Circuit Clerk Cathy Duncan Terry and deputies by entering his appearance when he knew "the document lacked authenticity, as he was not an attorney" representing the state in Shockley's case.

Henry made the appointment on the day he was to hear a motion filed April 28 by the attorneys representing Berry, who sought to disqualify Kingree from the case.

The hearing on that motion was not held after Kingree filed his own motion asking the court appoint a special prosecutor as requested by Berry.

"We were appointed a couple of weeks ago," Ahad said. " ... I reviewed the case, and I don't believe the state can proceed with the criminal charges, so I dismissed the case."

Leawood, Kansas, attorney Michael C. Rader, who along with Edward "Chip" Robertson Jr., represented Berry, said his client is "extremely relieved that the charges against him have finally been dismissed."

"This entire matter has been very difficult for him both professionally and personally, especially, considering that he did absolutely nothing wrong as evidenced by the quick dismissal of the charges by the Howell County prosecutor," Rader said.

Rader said there was "no question that the charges levied against Steven Berry by Rocky Kingree were completely meritless. We were confident that once Mr. Kingree was removed from the case that a reasonable review of the facts would result in a speedy dismissal."

This "senseless matter" originated by Kingree, Rader said, is "troubling to say the least. Due to the malicious nature of the charges filed by Mr. Kingree, Mr. Berry plans to fully consider his options for a civil action."

Kingree had charged Berry on March 31 for the alleged actions by Berry in Shockley's case.

Shockley, 37, of Van Buren was convicted in March 2009 of first-degree murder in connection with the March 2005 death of Missouri State Highway Patrol Sgt. Carl Dewayne Graham Jr.

Claiming ineffective assistance of trial and appellate counsel, Shockley, who sits on death row, filed a post-conviction relief motion Jan. 23 on his own behalf seeking to vacate, set aside or correct the judgment and sentence in his case.

Berry, according to earlier reports, entered an appearance and filed a motion to set aside orders Circuit Judge Kelly Parker had entered in Shockley's case.

Attorneys representing Shockley asked the court to unseal documents surrounding an earlier motion to withdraw involving Shockley's then-attorneys with the Capital Public Defender's Office, order the highway patrol lab to provide specific photographs and ballistics evidence, lift a prior court order prohibiting contact with jurors and order the state to give them an opportunity to view all evidence and files.

Kingree, who was elected and took office after the conclusion of Shockley's case, had told Parker the state "had no objections to any" of the requests made by Shockley's attorneys or to Parker's proposed orders.

Among the reasons Berry cited in his motion was that Shockley was prosecuted by the attorney general's office with "no participation on the part of the Carter County Prosecuting Attorney's Office."

Berry also cited that Kingree did not take office until after the conclusion of Shockley's case and the AG's office was not served with a copy of Shockley's motion and was not involved in the earlier phone conference.

Kingree, "despite having no role in the underlying prosecution, and without notifying the prosecutors who did, asserted to the court during the conference that the state had no objection" to Shockley's motion, Berry said.

"Kingree's actions were done without consulting the Missouri Attorney General's Office," said Berry.

In their motion to disqualify, Rader and Robertson said, Missouri law and justice "require that Mr. Kingree be disqualified as the prosecutor (from Berry's case), for two distinct, but equally compelling, reasons."

The attorneys said Kingree was the "only person" who could substantiate the facts contained in the probable-cause statement, thus "rendering him a necessary witness."

The second reason cited was Kingree's earlier disqualification from handling the "very case giving rise to the current charges."

Following an April 18 hearing, Parker cited multiple conflicts of interest in removing Kingree from prosecuting Shockley's case. The Greene County prosecuting attorney and his office were appointed to handle further proceedings.

Parker, the attorneys said, cited five explanations for Kingree's disqualification, four of which "relate to clear conflicts of interest and one for again making himself a necessary witness."