Appearing in person at the St. Francois County Courthouse on Wednesday, the rural Bonne Terre man charged with the 2012 murder of Sam “Tick” Francis heard Judge Sandra Martinez consider several motions entered by his defense counsel.
Melvin Scherrer’s two-week jury trial is currently scheduled to begin on May 14.
Among the more than 20 motions presented by the defense of Scherrer, Judge Martinez overruled more than half.
First, Judge Martinez sustained a motion for the state to produce arrest records of witnesses to the defense in the next 30 days. A motion was also sustained giving both the state and defense 30 days to endorse witnesses for the penalty phase of the trial.
The defense also filed a motion for the court to order Scherrer to receive medical treatment for an illness the defense said Scherrer suffers from, called hemochromatosis, which results in iron buildup in the bloodstream.
Scherrer’s attorney, Cynthia Dryden said progress had been made that might make the court’s order unnecessary. Judge Martinez deferred ruling on the motion, saying the defense could return within 30 days if the order was needed.
Next, Dryden described the reasoning for a motion filed to suppress evidence obtained during a January 2013 search of Scherrer’s home. Dryden said the search warrant that authorized the search was obtained by the Missouri State Highway Patrol in connection with Francis’ disappearance.
Dryden said that in addition to the patrol conducting the search, federal agents with the FBI, ATF, DEA and possibly other agencies also took part in the search, likely in connection to a separate drug investigation.
Scherrer was sentenced to 30 years in prison on federal meth conspiracy charges in April of 2015 as a result of that investigation.
Dryden said the returned search warrant had not been correctly filed with the circuit court clerk after the search was executed, apparently by mistake. The return warrant was apparently located in the clerk’s office, having been marked that it had been received late in the evening on Jan. 29, 2013.
Judge Martinez said the defense was presenting two concerning issues, being whether the return warrant was filed at all and whether the conducted search exceeded the scope of the warrant. She said she perceived an additional third issue, being whether the federal agents had confiscated any evidence during the search that might aid either the defense or the prosecution.
Dryden pointed to a subsequent April 2013 search which apparently produced “Gorilla Tape” taken from Scherrer’s home that reportedly did not match the tape used to bind Francis. She said it is important to know if further exculpatory evidence, or evidence pointing to Scherrer’s innocence, exists.
Dryden said she had attempted to obtain information about confiscated evidence from the federal agencies but had no luck. Martinez ordered St. Francois County Prosecuting Attorney Jerrod Mahurin to attempt to obtain information from the federal authorities about materials confiscated in the search. Mahurin asked the judge for 30 days to make the inquiries, which the judge granted.
Next, Judge Martinez heard a motion to order the state to supply the defense with the arrest records of jurors before the trial.
“The state is not entitled to more information about the jury than the defense,” Dryden argued.
Mahurin said that according to state law, he can not provide the defense with full, printed information from the Missouri Uniform Law Enforcement System (MULES).
The judge said both the defense and prosecution had valid points. She sustained the motion and asked Mahurin to look into ways to efficiently and legally produce a form of the information for the defense.
Dryden next described a motion to submit a questionnaire for use in easily eliminating invalid jurors during initial jury selection. She said her firm had used the questionnaire in other capital cases, avoiding keeping potential jurors at the courthouse for hours during selection.
Judge Martinez and Dryden discussed specifics, with Judge Martinez saying she would like to get the questionnaire in the hands of potential jurors a month or month and a half before the trial to ensure time remains to bring in additional jurors if necessary.
Mahurin said he was fine with the questionnaire and the judge sustained the motion.
Dryden next introduced a motion for the state to provide the defense with the jury instructions at least a week before the trial so the defense could object to and suggest alternate instructions if necessary.
Mahurin again offered no objection and the judge sustained the motion.
Next, Dryden introduced a motion to find a state statute unconstitutional regarding claiming mistrial based on the need to strike jurors. Martinez said the law is very clear on the matter and overruled the motion.
Martinez sustained a motion for the state to disclose “non-statutory aggravating evidence” to the defense.
Dryden next explained a motion to exclude character evidence of the victim during the penalty phase of the trial. She said that at that point in the trial, the testimony and evidence given should be centered on Scherrer and not the victim.
Dryden said the defense had compiled negative character evidence about the victim in case the prosecution insisted on entering positive character evidence of the victim, though she asked the prosecution not to do so.
Mahurin said while some basic victim impact evidence is allowed, he does not intend to rely on such positive character evidence of the victim as to necessitate negative victim character evidence from the defense.
The defense next objected to the use of victim impact evidence, believing that the state should disclose such evidence it intends to use and to carefully write jury instructions in relation to hearing such evidence.
Mahurin said based on Missouri statutes, he is not required to disclose victim impact evidence. Judge Martinez overruled the objection based on the statute.
Dryden next argued that criteria for enhancing a sentence from life in prison to the death penalty, as is being sought in Scherrer’s case, must be based on proof beyond reasonable doubt. She said the allowance of “unadjudicated bad acts,” which will not be the focus of proof-based testimony, should not be allowed.
Mahurin argued that the court is bound to follow state statutes and that any testimony related to the crime could be brought before the court.
Dryden also argued that the burden is unfairly placed on the defense to prove that mitigating circumstances, or circumstances that would cause a jury to recommend a lesser penalty, outweighed the aggravating circumstances, or circumstances which would cause the jury to recommend a higher penalty.
Mahurin again said the court must follow state statutes which do not align with the defense’s interpretation. Judge Martinez overruled the objection.
Next, Dryden argued that all factors used in determining penalty should be raised to the standard of “beyond a reasonable doubt,” or else the defense would again hold the burden of proof. Judge Martinez overruled the objection.
Dryden then objected to the first phase instructions to jurors, saying only the first phase requires a unanimous decision, while all following phases should as well. Mahurin again said state statute does not agree with Dryden’s position. Judge Martinez overruled the objection.
Next, Dryden introduced a motion to quash Scherrer’s indictment due to the unconstitutional discretion of the prosecution in seeking the death penalty. Judge Martinez overruled the motion.
Dryden then introduced a motion to quash the indictment because the aggravating circumstances were not listed in the indictment. The judge overruled the motion.
Dryden finally introduced a motion to declare the death penalty unconstitutional in Scherrer’s case. The judge overruled the motion.
Next, Charles Hoskins, another defense attorney, introduced several motions to strike aggravating circumstances, beginning with the prosecution’s claim that Francis had been killed because of his status as a witness in a felony investigation.
Hoskins said there was no indication what felony investigation Francis had been a witness to. Mahurin said Francis could have been a witness in Scherrer’s federal drug investigation, but he would be able to provide a more formal response in the future. Judge Martinez denied striking the aggravating circumstance, but ordered the prosecution to specify to the defense what Francis had allegedly been witness to.
Next, Hoskins argued that the aggravating circumstance alleged by the prosecution and described in state statute as “outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind…” is unconstitutionally vague. Judge Martinez overruled the motion to strike.
Finally, Hoskins said the state alleges Scherrer killed Francis during the commission of another felony, although no specific felony is named that Francis would have been connected to. The motion was again overruled, with Judge Martinez ordering the state to provide more specificity to the defense.
Scherrer's next appearance in court is scheduled for April 13.