The State does not dispute this, other than to say that it has no knowledge of when or if this disclosure took place. It is clear from the record, including Brewer's testimony, that Buck and his attorney were not aware of Braddy's prior convictions during the tampering trial. Nevertheless, the State argues that Buck should have raised this nondisclosure on direct appeal, and that this claim is not cognizable in a Rule 29.15 motion for post-conviction relief. Assuming Buck knew about the prior convictions, he could not have raised the nondisclosure on direct appeal. Once the trial concluded, Buck lacked any means to prove Braddy's prior convictions.
Appellate courts consider only the record made in the trial courts.
Our jurisdiction is appellate, and we cannot receive nor consider new evidence. Documents that were never presented to nor considered by the trial court cannot be included in the record on appeal. Buck's Rule 29.15 motion represents his only opportunity to correct the prosecution's nondisclosure. The prosecution's nondisclosure, for the reasons discussed above, violated Buck's constitutional right to due process under Brady, Lee and Bebee. The State argues that Buck's claim is one of trial error, and is therefore not cognizable in a Rule 29.15 motion except where fundamental fairness requires, and then only in rare and exceptional circumstances.