Lee v. Kemna, 534 U.S. 362, 11 (2002)

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Opinion of the Court

the absence of witnesses.4 By the State's reckoning, Lee's request did not show the materiality of the California witnesses' testimony or the grounds for believing that the witnesses could be found within a reasonable time; in addition, the prosecution urged, Lee failed to "testify that the witnesse[s'] absence was not due to his own procurement." App. 113.

The Missouri Court of Appeals affirmed Lee's conviction and the denial of postconviction relief. State v. Lee, 935 S. W. 2d 689 (1996); App. 123-131. The appellate court first noted that Lee's continuance motion was oral and therefore did not comply with Missouri Supreme Court Rule 24.09 (Rule 24.09), which provides that such applications shall be in written form, accompanied by an affidavit. App. 126-127.5

4 Rule 24.10 reads: "Misdemeanors or Felonies—Application for a Continuance on Account of Absence of Witnesses Shall Show What

"An application for a continuance on account of the absence of witnesses or their evidence shall show:

"(a) The facts showing the materiality of the evidence sought to be obtained and due diligence upon the part of the applicant to obtain such witness or testimony;

"(b) The name and residence of such witness, if known, or, if not known, the use of diligence to obtain the same, and also facts showing reasonable grounds for belief that the attendance or testimony of such witness will be procured within a reasonable time;

"(c) What particular facts the affiant believes the witness will prove, and that he knows of no other person whose evidence or attendance he could have procured at the trial, by whom he can prove or so fully prove the same facts;

"(d) That such witness is not absent by the connivance, consent, or procurement of the applicant, and such application is not made for vexation or delay, but in good faith for the purpose of obtaining a fair and impartial trial.

"If the court shall be of the opinion that the affidavit is insufficient it shall permit it to be amended."

5 Rule 24.09 reads: "Misdemeanors or Felonies—Application for Continuance—How Made "An application for a continuance shall be made by a written motion accompanied by the affidavit of the applicant or some other credible person

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