In the Missouri Court of Appeals

Eastern District

DIVISION ONE

MONTAGUE SIMMONS, et. al., ) No. ED103304

 )

Appellants, ) Appeal from the Circuit Court 

 ) of St. Louis County

vs. )

 ) Honorable Joseph L. Walsh III

ROBERT MCCULLOCH, )

 )

Respondent. ) FILED: May 31, 2016

Montague Simmons, Redditt Hudson, Juliette Jacobs, and Tara Thompson (collectively, 

"Appellants") appeal from the trial court's judgment granting St. Louis County Prosecuting Attorney 

Robert McCulloch's ("Respondent's") Motion to Dismiss for Failure to State a Claim Upon Which 

Relief Can Be Granted. We affirm.

I. Background

On January 15, 2015, Appellants all filed similar affidavits alleging Respondent conducted the 

grand jury investigation in State of Missouri v. Darren Wilson "in an arbitrary manner and in bad 

faith." Appellants were dissatisfied with the grand jury returning a "no true bill," leading to no 

indictment of Officer Wilson. As Appellants were not present at the grand jury proceedings, the 

substance of their claims comes from review of the publicly released transcripts and related evidentiary 

exhibits of the grand jury proceedings.

Appellants wanted the trial court to appoint a special prosecutor to investigate Respondent's 

conduct during the grand jury proceedings. If appointed, the special prosecutor would have the 
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authority to file a writ of quo warranto action seeking Respondent's removal from his elected office of 

St. Louis County Prosecuting Attorney.

Respondent filed his Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be 

Granted on February 23, 2015. In the interim before a hearing could take place, the United States

Department of Justice ("DOJ") issued a report on March 4, 2015, which determined that Officer 

Wilson had not violated 18 U.S.C. Section 242, a federal civil rights statute, when he shot and killed 

Michael Brown.

On April 24, 2015, the trial court conducted the first hearing in this case. The trial court then 

continued the hearing until May 29, 2015, giving the parties time to file supplemental briefs on the 

issue of whether Respondent was subject to impeachment or recall. On July 2, 2015, the trial court 

granted Respondent's motion to dismiss, finding Appellants had not alleged facts which constituted a 

willful or fraudulent violation or neglect of Respondent's official duty, and had not alleged facts which 

showed Respondent knowingly or willfully failed or refused to perform any official act or duty to 

execute or enforce the criminal laws of the state. Appellants timely filed their appeal on August 19, 

2015.

II. Discussion

Appellants raise one multifarious point on appeal that alleges the trial court abused its 

discretion by denying their request for appointment of a special prosecutor, with six sub-points 

alleging specific examples of the trial court's abuse of discretion. "A single point relied on that groups 

multiple, disparate claims is multifarious, does not comply with Rule 84.04, and generally preserves 

nothing for review." Stone v. Stone, 450 S.W.3d 817, 820 (Mo. App. W.D. 2014) (quoting Rouse v. 

Cuvelier, 363 S.W.3d 406, 419 (Mo. App. W.D. 2012)). While it would be "well within our discretion 

to dismiss [Appellants'] appeal on this basis[,]" we will exercise our discretion to review Appellants' 

claims.
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A. Standard of Review

"When a petition is dismissed under Rule 55.27(a)(6) for failure to state a claim upon which 

relief may be granted, the standard of review is de novo." Anderson v. Union Elec. Co., 463 S.W.3d 

783, 786 (Mo. banc 2015) (citing Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008)). This Court 

reviews Appellants' initial petition to determine whether the facts alleged meet the elements of a 

recognized cause of action. Anderson, 463 S.W.3d at 786, citing Foster v. State, 352 S.W.3d 357, 359 

(Mo. banc 2011). 

A motion to dismiss for failure to state a cause of action is solely a test of the adequacy 

of the plaintiff's petition. It assumes that all of plaintiff's averments are true, and 

liberally grants to plaintiff all reasonable inferences therefrom. No attempt is made to 

weigh any facts alleged as to whether they are credible or persuasive. Instead, the 

petition is reviewed in an almost academic manner, to determine if the facts alleged 

meet the elements of a recognized cause of action, or of a cause that might be adopted 

in that case.

State ex rel. Henley v. Bickel, 285 S.W.3d 327, 329 (Mo. banc 2009). "[W]e may affirm the trial 

court's dismissal on any ground before the trial court in the motion to dismiss[.]" Willits v. Peabody 

Coal Co., LLC, 400 S.W.3d 442, 448 (Mo. App. E.D. 2013). 

B. Analysis

Appellants' sole multifarious point on appeal contains six sub-points, all of which allege

different ways in which the trial court abused its discretion when it denied Appellants' request for 

appointment of a special prosecutor by granting Respondent's motion to dismiss for failure to state a 

claim. 

Appellants' first sub-point alleges the trial court abused its discretion and evinced its confusion 

in the case by analyzing arguments Appellants never made. Appellants claim the trial court's 

discussion of a separate part of the relevant statute than the one upon which Appellants' argument was 

based shows the trial court so misunderstood the argument before it that it could not have properly 

exercised its discretion.
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Appellants' second sub-point alleges the trial court abused its discretion by failing to apply 

applicable Missouri Supreme Court precedent. Appellants' argue that the trial court's failure to apply 

precedent and address whether Respondent abused his discretion was an abuse of discretion by the trial 

court.

Appellants' third sub-point alleges the trial court abused its discretion by relying on an 

irrelevant report issued by the United States Department of Justice ("DOJ"). Appellants claim the DOJ 

Report applied different standards than those used by the grand jury, and ultimately had no bearing on 

Appellants' request for a special prosecutor, and thus should not have been considered by the trial 

court.

Appellants' fourth sub-point alleges the trial court abused its discretion when it determined 

Professor Bennett L. Gershman's ("Professor Gershman") affidavit was not persuasive. Appellants 

claim this affidavit alone suffices to meet Appellants' burden to show that an investigation should 

commence.

Appellants' fifth sub-point alleges the trial court abused its discretion by refusing to evaluate 

whether the facts Appellants alleged supported their request for appointment of a special prosecutor. 

Appellants claim the trial court's judgment simply stated legal conclusions without applying the facts 

to the relevant law.

Finally, Appellants' sixth sub-point argues that the facts Appellants alleged in their petition 

suggest Respondent failed to fulfill his duties of office by his conduct during the grand jury 

proceedings in State v. Darren Wilson. Appellants claim they alleged facts that Respondent acted 

arbitrarily and acted in bad faith, and that they met the burden required to start an investigation into 

Respondent's conduct.

As stated above, our standard for reviewing the dismissal of a petition under Rule 55.27(a)(6) 

for failure to state a claim upon which relief can be granted asks this Court to "review[]" the petition to 
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determine if the facts alleged meet the elements of a recognized cause of action." Anderson, 463 

S.W.3d at 786. However, five of Appellants' six sub-points do not address the content of their petition 

and whether the facts they allege in the petition meet the elements of a recognized cause of action. The 

first five sub-points all argue the trial court analyzed or discussed the wrong things in its judgment 

dismissing the petition, instead of focusing on the pertinent issue raised in sub-point six of whether 

Appellants allege sufficient facts whose elements constitute a recognized cause of action. Further, 

other than using sub-point two to point out two Missouri Supreme Court cases Appellants believe the 

trial court ignored in its decision, Appellants cite no relevant case law supporting their arguments.1 

For the sake of clarity, we will address Appellants' sixth sub-point first, as it is the most relevant to our 

analysis and the most proper basis for this appeal.

1. Whether Appellants' Petition Alleges Facts Constituting a Recognized Cause of Action

Appellants' petition sought the appointment of a special prosecutor, as provided by Section 

106.240, RSMo (2000)2, to investigate Respondent's conduct during the grand jury proceedings in the 

cause of State v. Darren Wilson. Section 106.220 provides that any elected official is subject to 

removal if he: (1) "fail[s] personally to devote his time to the performance of the duties of such 

office;" (2) commits "any willful or fraudulent violation or neglect of any official duty;" or, (3) 

"knowingly or willfully fail[s] or refuse[s] to do or perform any official act or duty which by law it is 

his duty to do or perform with respect to the execution or enforcement of the criminal laws of the 

state." Appellants filed affidavits as provided by Section 106.230, alleging that Respondent had 

violated duties of his office and should be subject to removal as provided by Section 106.220. Section 

106.240 then provides that after the filing of an affidavit under Section 106.230, "the [trial court] of 

said county may appoint a special prosecutor" to investigate and potentially file a complaint.

 1 Appellants' repeated citation to newspapers and websites in the place of legal authority is troublesome. "It is an 

appellant's obligation to cite appropriate and available precedent if [the appellant] expects to prevail." Rademan v. Al 

Scheppers Motor Co., 423 S.W.3d 834, 837 (Mo. App. W.D. 2014). 2 All further statutory references are to RSMo (2000), unless noted otherwise.
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Appellants submitted four affidavits under Section 106.230 in their attempt to demonstrate their 

knowledge that Respondent had violated duties of his office and that a special prosecutor should be 

appointed to investigate Respondent's conduct. These affidavits take issue with various ways 

Respondent presented the case to the grand jury,

3 such as his decision to allow Officer Wilson to 

testify and to put on evidence supporting his justification defense, as well as providing the grand jury 

with all the evidence rather than just evidence supporting a finding of probable cause. While 

Appellants may disagree with the methods Respondent used to present the case to the grand jury, none 

of their claims rise to the level required by the statute. To justify appointment of a special prosecutor, 

Appellants must show either a "willful or fraudulent violation or neglect of any official duty" or that 

Respondent "knowingly or willfully fail[ed] or refuse[d] to do or perform any official act or duty 

which by law it is his duty to do or perform." Section 106.220.

In order to have "willfully neglected" an official duty, Respondent would have had to 

intentionally fail to act, contrary to a known duty. State ex inf. Fuchs v. Foote, 903 S.W.2d 535, 539 

(Mo. banc 1995) (abrogated on other grounds by State v. Olvera, 969 S.W.2d 715 (Mo. banc 1998)). 

Respondent clearly did not fail to act, intentionally or otherwise, during the grand jury proceedings 

here. The previously empaneled grand jury was used and two experienced assistant prosecutors 

presented evidence over the course of four months to the grand jury so they could make an informed 

decision as to whether probable cause existed to indict Officer Wilson. Appellants allege that the way 

Respondent conducted the grand jury demonstrates he was acting arbitrarily and in bad faith, and thus 

he willfully or knowingly failed to perform his official duty. 

Appellants' arguments essentially claim that Respondent's exercise of his prosecutorial 

discretion was arbitrary and in bad faith. Prosecutors, when performing their duties, are authorized "to 

 3 Respondent did not personally present the case to the grand jury, that task was handled by assistant prosecutors. At oral 

argument, Appellants contended that Respondent is liable under a respondeat superior theory
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exercise a sound discretion." State, on Inf. McKittrick v. Wymore, 132 S.W.2d 979, 986 (Mo. banc 

1939). 

The duty of a prosecuting officer necessarily requires that he investigate, i.e., inquire 

into the matter with care and accuracy, that in each case he examine the available 

evidence, the law and the facts, and the applicability of each to the other; that his duties 

further require that he intelligently weigh the chances of successful termination of the 

prosecution, having always in mind the relative importance to the county he serves of 

the different prosecutions which he might initiate. Such duties of necessity involve a 

good faith exercise of the sound discretion of the prosecuting attorney. "Discretion" in 

that sense means power or right conferred by law upon the prosecuting officer of acting 

officially in such circumstances, and upon each separate case, according to the dictates 

of his own judgment and conscience uncontrolled by the judgment and conscience of 

any other person. Such discretion must be exercised in accordance with established 

principles of law, fairly, wisely, and with skill and reason. It includes the right to 

choose a course of action or non-action, chosen not willfully or in bad faith, but 

chosen with regard to what is right under the circumstances. Discretion denotes 

the absence of a hard and fast rule or a mandatory procedure regardless of 

varying circumstances.

State on inf. McKittrick v. Wallach, 182 S.W.2d 313, 318-19 (Mo. banc 1944) (emphasis added). 

As applied here, Respondent was faced with a situation where community interest in the 

outcome of the grand jury was very high, and his stated purpose in presenting all the evidence to the 

grand jury was to be as transparent as possible in the proceedings. Appellant may disagree with 

whether this was the best possible approach for securing an indictment against Officer Wilson, but 

Respondent properly exercised his discretion and decided that the need for transparency in the 

proceedings was in the best interest of serving justice. None of Appellants' allegations against 

Respondent rise to the level of "knowingly or willfully" failing to perform an official duty. 

Respondent on the contrary performed his duty the best way he saw fit, and the grand jury ultimately 

decided not to return an indictment. It is not a failure of Respondent's duty as a prosecutor to not 

secure an indictment in every case. "[U]nder our law, the prosecutor has a 'duty to serve justice, not 

just win the case.'" State ex rel. Kinder v. McShane, 87 S.W.3d 256, 262 (Mo. banc 2002) (quoting 

State v. Storey, 901 S.W.2d 886, 901 (Mo. banc 1995)). 
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The facts alleged by Appellants do not rise to the level to meet the elements required for 

a finding that Respondent either willfully or fraudulently violated or neglected an official duty, 

nor that he knowingly or willfully failed or refused to perform an official duty. Further, even if 

we had found more compelling evidence that Respondent had violated some official duty, the 

statute provides that the trial court "may" appoint a special prosecutor. Section 106.240. While 

we hold that Respondent properly exercised his prosecutorial discretion, we further hold that 

the trial court was well within its discretion in deciding not to appoint a special prosecutor. 

Appellants' sixth sub-point on appeal is denied.

2. Appellants' Other Arguments Regarding the Trial Court's Decision

As previously stated, the proper issue for our review is whether "the facts alleged [in the 

petition] meet the elements of a recognized cause of action." Anderson, 463 S.W.3d at 786. 

Having already determined Appellants failed to allege facts which amounted to the elements of 

a recognized cause of action, we will now quickly address Appellants' other extraneous 

arguments relating to the process by which the trial court reached its decision.

Appellants allege the trial court "evinced its confusion" by analyzing an argument 

Appellants never made. Essentially, Appellants argue that because the trial court focused some 

of its analysis on the second possible violation provided by Section 106.220 ("willful or

fraudulent violation or neglect of any official duty"), instead of the third possible violation 

("knowingly or willfully fail or refuse to do or perform any official act or duty"), upon which 

the Appellants focused their arguments. Section 106.220.

This argument is without merit. First, Appellants cite no legal authority for the 

proposition that the trial court is somehow deemed to be "confused" because it discusses a 

portion of the relevant statute upon which Appellants chose not to focus. The trial court went 

through both sections of the relevant statute in an attempt to be thorough in its analysis. The 
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trial court discussed Section 106.220 in great detail, going section by section and applying the 

law to the facts of the case. The fact that Appellants had chosen to focus on only one section of 

the statute does not preclude the trial court from analyzing and applying the entire relevant 

statute to the case at hand. Appellants' first sub-point is denied.

Appellants' second sub-point alleges the trial court failed to apply applicable Missouri 

Supreme Court precedent in reaching its decision, specifically the cases State on inf. 

McKittrick v. Wallach, 182 S.W.2d 313 (Mo. banc 1944), and State, on Inf. McKittrick v. 

Wymore, 132 S.W.2d 979 (Mo. banc 1939). 

Appellants' argument confounds this Court, as the trial court explicitly cites to both of 

those cases in its judgment. The trial court clearly applied the relevant law from those cases in 

its decision. Appellants' second sub-point on appeal is denied.

Appellants' third sub-point alleges the trial court abused its discretion by relying on an 

irrelevant DOJ report. First, while the trial court did cite to the DOJ report in its judgment, this 

citation was a part of a much larger discussion which went through the relevant statutory law, 

the relevant case law, and how the law applied to the facts of the case. It is an unfair and 

inaccurate representation to say the trial court "relied upon" the DOJ report in making its 

decision. Second, as Respondent points out, Appellants brought up the DOJ report in their 

Supplemental Memorandum of Law in Support of Their Request for Appointment of a Special 

Prosecutor. The report can hardly be characterized as "irrelevant" when Appellants brought it 

to the attention of the court, albeit to argue that it should not be a dispositive issue in the case. 

As Appellants discussed the DOJ report in their submissions to the trial court, and as the trial 

court did not solely rely upon the DOJ report in reaching its decision, Appellants' third subpoint is denied.
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In Appellants' fourth sub-point, they allege the trial court abused its discretion in 

determining that Professor Gershman's affidavit was not persuasive. Appellants claim that 

Professor Gershman is the acknowledged authoritative expert on prosecutorial misconduct, and 

thus his affidavit alone suffices to meet Appellants' burden. 

On its face this argument is without merit. First, no one expert's affidavit alone is prima 

facie evidence sufficient to meet Appellants' burden of showing Respondent violated some 

prosecutorial duty. Further, "[u]ncontradicted expert testimony is not binding upon the trier of 

fact. The weight to be given such testimony is for the trier of fact." Halliday v. Boland, 813 

S.W.2d 34, 37 (Mo. App. E.D. 1991) (internal citation omitted). The trial court analyzed 

Professor Gershman's affidavit, noted that his conclusions were not supported by citations to 

any standard, rule, statute or case law recognized in Missouri. Further, the trial court found that 

even if Professor Gershman's declarations were somehow authoritative on the issue, they still 

did not rise to the level of a knowing or willful failure or refusal to perform an official act or 

duty or a willful or fraudulent violation or neglect of an official duty. The trial court properly 

exercised its discretion and gave Professor Gershman's affidavit the weight it felt was deserved. 

Appellants' fourth sub-point on appeal is denied.

Finally, Appellants' fifth sub-point on appeal alleges the trial court abused its discretion 

by refusing to evaluate whether the facts Appellants alleged supported their request for a 

special prosecutor's appointment. Again, Appellants' argument confounds us, as this is exactly 

what the trial court did in its judgment. The trial court discusses Appellants' allegations that 

Respondent presented more information than Appellants deemed necessary to the grand jury, 

and applied the applicable law to the facts alleged by Appellants. Once again, Appellants' 

argument is without merit. Appellants' fifth sub-point on appeal is denied.
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III. Conclusion

The judgment of the trial court is affirmed.

___________________________________

ROY L. RICHTER, Judge

Robert G. Dowd, Jr., P.J., concurs.

Mary K. Hoff, J., concurs.