No._______ IN THE SUPREME COURT OF THE UNITED STATES CECIL CLAYTON Petitioner, v. STATE OF MISSOURI Respondent. ON PETITION FOR WRIT OF CERTIORARI TO THE MISSOURI SUPREME COURT APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS COMES NOW the petitioner and moves the Court for its order permitting him to file the attached petition for a writ of habeas corpus in forma pauperis. Petitioner has proceeded in forma pauperis at all stages of this proceeding in the courts of the United States, and is represented by undersigned counsel Carlyle and Hunt pursuant to the Criminal Justice Act. He is representated by counsel Willibey and Carter by designation of the Missouri Public Defender System. Respectfully submitted, /s/ Elizabeth Unger Carlyle Elizabeth Unger Carlyle *Counsel of Record P.O. Box 866 Columbus, MS 39703 (816)525-6540 FAX (866) 764-1249 ATTORNEY FOR PETITIONER No._______ IN THE SUPREME COURT OF THE UNITED STATES ***** CECIL CLAYTON Petitioner, v. STATE OF MISSOURI Respondent. ***** ON PETITION FOR WRIT OF CERTIORARI TO MISSOURI SUPREME COURT ***** CAPITAL CASE: EXECUTION SCHEDULED FOR MARCH 17, 2015 AT 6:00 P.M. CDT PETITION FOR WRIT OF CERTIORARI IN A CAPITAL CASE ***** ELIZABETH UNGER CARLYLE (Counsel of Record) 6320 Brookside Plaza #516 Kansas City, Missouri 64113 (816) 525-6540 elizabeth@carlyle-law.com (Additional counsel on next page) Susan M. Hunt Livestock Exchange Building 1600 Genessee, Suite 806 Kansas City, MO 64102 Missouri Bar No. 36130 816-221-4588 FAX (816) 222-0856 Jeannie Willibey, Mo Bar No. 40997 Office of the Public Defender 920 Main Street, Suite 500 Kansas City, MO 64105 Tel: 816-889-7699 Fax: 816-889-2001 e-mail: Jeannie.Willibey@mspd.mo.gov Pete Carter, #31401 Office of the Public Defender Woodrail Center 1000 West Nifong, Bldg. 7, Ste. 100 Columbia, MO 65203 Phone: 573-777-9977 Fax: 573-777-9973 email: Pete.Carter@mspd.mo.gov ATTORNEYS FOR CECIL CLAYTON QUESTIONS PRESENTED Petitioner Cecil Clayton, who is seventy-four years old, lost one-fifth of his frontal lobe in an accident at a sawmill twenty years before the alleged offense, when he was 32 years old. The injury caused a precipitous drop in his IQ and left him totally disabled. Mr. Clayton’s IQ is consistent with intellectual disability. A psychologist and psychiatrist have recently explained that his brain damage and dementia have rendered him Ford incompetent. Without a hearing, the Missouri Supreme Court denied relief. The case thus presents the following questions: I. Having presented expert opinions of incompetence and a substantial history of brain damage and resulting mental impairment, has Mr. Clayton met the “substantial threshold” requirement to litigate his competence to be executed? II. May the Missouri Supreme Court resolve the ultimate question of competence on a paper record without giving Mr. Clayton the opportunity to present or cross-examine witnesses? III. Does the Cruel and Unusual Punishment Clause of the Eighth Amendment prohibit the execution of an individual rendered intellectually disabled by a severe brain injury suffered after the age of eighteen but before the commission of the homicide for which he was convicted? i TABLE OF CONTENTS Table of Contents ........................................................................................................... ii Table of Authorities ....................................................................................................... v Opinion below ................................................................................................................ 1 Jurisdiction .................................................................................................................... 1 Statutory and Constitutional Provisions Involved ....................................................... 1 Statement of the Case ................................................................................................... 2 History of Mr. Clayton’s impairment before trial .............................................. 2 Mental health evidence through the end of habeas proceedings ...................... 7 Evidence of ineligibility to be executed ............................................................ 10 Assertions of ineligibility to be executed.......................................................... 13 Reasons for Granting the Writ .................................................................................... 15 I. Mr. Clayton has met the Ford/Panetti threshold and is entitled to a hearing on his competence to be executed ................................................... 15 II. The Missouri Supreme Court’s ruling unconstitutionally narrows the definition of incompetence to be executed.. ................................................. 22 A. Incompetence under Ford and Panetti.. .......................................... 22 B. Mr. Clayton has a liberty interest in Missouri’s definition of competency, and has made a threshold showing under that standard. ................................................................................................. 27 III. Mr. Clayton is Entitled to Present Evidence that His Low Intellectual Functioning and Deficits in Adaptive Functioning Bar his Execution... ... 31 Conclusion .................................................................................................................... 37 ii Appendix Decision of the Missouri Supreme Court ......................................................... 1a State v. Clayton, 995 S.W.2d 468 (Mo. banc 1999) ........................................ 48a Clayton v. State, 63 S.W.3d 201 (Mo. banc 2001) .......................................... 81a Clayton v. Luebbers, 4:02-CV-8001-NKL order ............................................. 96a Clayton v. Roper, 515 F.3d 784 (8th Cir........................................................ 178a Reports of Dr. John Tsang, January 24 & 26, 1972 .................................... 194a Ozark Clinic evaluation January 24, 1979 .................................................. 198a Letter from Dr. George Klinkerfuss, January 30, 1978 .............................. 201a Extracts from Post-Conviction testimony of Dr. Daniel Foster .................. 204a Southwestern Human Services evaluation, October 31, 1983 ................... 207a Letter from Dr. James Bright, March 20, 1984 ........................................... 211a Affidavit of Post-Conviction Counsel Laura Martin .................................... 212a Report of Dr. Lea Ann Preston, USMCFP January 18, 2005 ..................... 215a Report of Dr. William Logan, Nov. 3, 2008 .................................................. 247a Report of Dr. William Logan, August 28, 2013 ............................................ 250a Report of Dr. William Logan, January 7, 2015 ............................................ 254a Report of Dr. Daniel Foster, November 17, 2008......................................... 258a Report of Dr. Daniel Foster, November 24, 2013......................................... 260a Report of Dr. Daniel Foster, January 15, 2015............................................ 264a 2009 Mandamus ............................................................................................ 279a 2012 Response to Motion to Set Execution Date ......................................... 391a 2014 Mandamus ............................................................................................ 419a 2014 Supplemental Show Cause Response .................................................. 455a 2015 Supplemental Show Cause Response .................................................. 487a Petition for Writ of Habeas Corpus .............................................................. 491a Wood v. Thaler, WDTX, unpublished order ................................................. 541a iii TABLE OF AUTHORITIES Cases Atkins v. Virginia, 536 U.S. 304 (2002) ................................................... 2, 31, 32, 33, 34, 35 Coker v. Georgia, 433 U.S. 584, 597 (1977) ................................................................................ 33 Danforth v. Minnesota, 552 U.S. 264 (2008) ...................................................................... 28 Ford v. Wainwright, 477 U.S. 399 (1986) ............... i, 2, 14, 15, 16, 17, 18, 19, 22, 23, 24, 27 Graham v. Florida, 560 U.S. 48, 62 (2010) ................................................................................. 34 Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 10 (1979) ...................................... 28 Gregg v. Georgia, 428 U.S. 153, 183 (1976) ............................................................................... 32 Hall v. Florida, 134 S.Ct. 1986 (2014)...................................................................... 2, 31, 32, 36 Hewitt v. Helms, 459 U.S. 460, 471-472 (1980) ................................................................. 28 Panetti v. Quarterman, 551. U.S. 930 (2007).... 2, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 27, 29, 37 Roper v. Simmons, 543 U.S. 551, 563 (2005) ......................................................................... 10, 33 State ex rel. Simmons v. Roper, 112 S.W.3d 397 (2003) ........................................................ 34, 35 State ex. rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014) ................. 22, 25, 29 Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009) ........................................................... 20, 22 Trop v. Dulles, 356 U.S. 86, 101 (1958) ....................................................................................... 31 Vitek v. Jones, 445 U.S. 480, 488-491 (1980) ..................................................................... 28 Weems v. United States, 217 U.S. 349, 378 (1910) ...................................................................... 31 Wood v. Thaler, 787 F.Supp.2d 458 (W.D. Tex. 2011)................................................ 21, 22 Statutes 28 U.S.C. §1257 ........................................................................................................................... 1 Mo. Rev. Stat. §552.060 ................................................................................................. 2, 27, 28 Mo. Rev. Stat. §565.030.6 ............................................................................................................ 34 United States Constitution, Amend. VIII ...................................... i, 1, 10, 15, 22, 24, 31, 33 United States Constitution, Amend. XIV.............................................................................. 1 Other Authorities Am. Ass’n on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Support, 27 (2010) ................................................................... 32 John H. Blume, et al., An Empirical Look at Atkins v. Virginia and Its Application in Capital Cases, 76 Tenn. L. Rev. 625, 636 (2009) ................................................................................. 34 iv PETITION FOR WRIT OF CERTIORARI TO THE MISSOURI SUPREME COURT The Petitioner, Cecil Clayton, respectfully prays that a Writ of Certiorari issue to review the judgment and opinion of the Missouri Supreme Court, rendered in these proceedings on March 14, 2015. OPINION BELOW The Missouri Supreme Court denied Mr. Clayton’s petition for writ of habeas corpus without an evidentiary hearing. The opinion is not yet published. It is reprinted in the appendix to this petition at page 1a. Three of the seven justices of the Missouri Supreme Court dissented. App. pp. 36-48a. JURISDICTION The Missouri Supreme Court entered its judgment on March 14, 2015. The jurisdiction of this Court is invoked under 28 U.S.C. §1257. STATUTORY AND CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution, Amend. VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. United States Constitution, Amend. XIV, sec. 1 No state shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 1 STATEMENT OF THE CASE This capital case is before the Court on the petition of Missouri state prisoner Cecil Clayton, seeking relief from a decision of the Missouri Supreme Court denying him a writ of habeas corpus and a hearing on the issues of whether he is ineligible for execution either because he is incompetent to be executed or because he is intellectually disabled. Ford v. Wainwright, 477 U.S. 399 (1986); Atkins v. Virginia, 536 U.S. 304 (2002); Panetti v. Quarterman, 551. U.S. 930 (2007); Mo. Rev. Stat. §552.060; Hall v. Florida, 134 S.Ct. 1986 (2014). History of Mr. Clayton’s impairment before trial. Mr. Clayton suffered severe brain damage when, at his saw mill, a piece of wood broke off the log he was working on and pierced his head. App. p. 194a. When he arrived at the hospital, he was semi-conscious. Bone was imbedded inside his skull and could only be removed surgically. Id. Mr. Clayton spent nine days in the hospital. The frontal lobe damage from the injury, depicted here, is indisputable. 2 Nonetheless, Mr. Clayton received no long-term therapy. App. p. 197a. As depicted above, Mr. Clayton’s brain injury resulted in a loss of 20 percent of the frontal lobe and 7.7 percent of his entire brain. App. pp. 205-206a. Mr. Clayton came from a poor family farm in rural Purdy, Missouri. When he was a child, his home had neither electricity nor running water. All of the children, including Cecil Clayton, sang and played guitar. He grew up, married, and had five children. Around 1968, he “received Jesus as his savior,” stopped drinking, and became a preacher. He traveled with his family around the country, and sang gospel songs and played the guitar. According to another local minister, Carl Giesendorfer, as a minister Mr. Clayton was “Very talented, when it comes to singing and delivering the Word of God and being effective.” Mr. Clayton’s day job was a logger and sawmill operator. 3 After the 1972 sawmill injury, Mr. Clayton’s personality changed drastically and immediately. He suffered memory loss. He separated from his wife, returned to abusing alcohol and became depressed, impatient, and prone to violent episodes. After the accident, according to his ex-wife, it was hard to keep him “on target” in a conversation. Ozark Psychiatric Clinic records reflect the depth of his despair and desperation after the accident. After checking himself into the clinic, Mr. Clayton told Dr. William F. Clary, M.D. on January 24, 1978, “I can’t get ahold of myself. I’m all tore up.” The doctor described his “extreme anxiety” and “‘inability to cope with my own family.’” His wife was unable to “understand why he can’t stand to be around anyone because people make him nervous.” “He is sure his children don’t like him and his wife only puts up with him because she has to.” Dr. Clary noted that Mr. Clayton appeared to be “talking to himself in my presence rather than actually communicating.” The doctor found that Mr. Clayton displayed a “schizoid disposition” and “blunting of affect” and suffered from “severe ideas of reference and borderline paranoid delusions” as well as “spells of overpowering playing of emotion.” Dr. Clary concluded that Mr. Clayton was incapacitated and totally disabled by his disability.” and “just barely making it outside of the institution.” Mr. Clayton also suffered from visual and auditory hallucinations, “hearing voices and seeing visions of a man in the room with him.” He also heard doors and drawers open and close when no one was there. At times when he was alone, he 4 would see a man and woman next to his side. These images frightened him and he frequently followed his wife around from room to room to avoid being alone with his visions. He suffered severe vertigo and had accidentally driven through a neighbor’s mailbox and walked through a shower door. He would sit for long periods of time and stare, his wife uncertain whether he was even conscious. He also experienced profound memory loss and excitement with any outside stimuli. During this time doctors prescribed Mr. Clayton with antidepressant and antipsychotic medication. App. p. 198a. In 1983, testing completed in connection with social security disability placed Mr. Clayton in the range of Intellectual Disability, revealing a full scale score of 76 and a memory quotient of 62. They also found he had extreme paranoia and suicidal ideation: He admits to daily depression and frequently ruminates about shooting himself. He began crying as he talked about how it bothered him that no one will come around his family. He realizes that it is because of him. He feels very uncomfortable around people and avoids any social interaction. He states that he knows people will take advantage of him and that they are out to get him. He admits to ideas of reference when he hears people whispering. He also admits to feeling as if others are able to control his behavior. App. pp. 207-210a. Testing revealed that Mr. Clayton “suffers from chronic brain syndrome with some associated psychosis.” He read at the fourth grade level, and spelled at a third grade level. Neuropsychological testing revealed severe deficiencies across the 5 board. Historical testing showed that Mr. Clayton suffered from both a chronic brain syndrome, “with demonstrated deterioration in intellectual functioning, manifested by a marked memory defect for recent events (memory quotient of 62) and impoverished, slow, perseverative thinking with confusion,” as well as a “psychotic disorder, characterized by thought disorganization, depression, agitation, hallucinations and delusions, regressive behavior and some inappropriateness of affect.” App p. 201a. Historical observations demonstrate the extent of impairment. “He continued to have auditory and visual hallucinations. . . . I do not think Mr. Clayton is employable due to his psychiatric symptoms.” App. p. 211a. “There is presently no way that this man could be expected to function in the world of work. Were he pushed to do so he would become a danger both to himself and to others.” App. p. 210a. “He will not be able to work any time in the next twelve months. He will not be able to work doing anything. He will not be able to work doing any low stress jobs. He cannot work. He cannot work.” App. p. 211a. Mr. Clayton received disability benefits because of his brain damage. Throughout his life after the accident, Mr. Clayton struggled to cope. He obtained employment as a police officer, but had to quit. In 1996, he shot and killed Deputy Christopher Castetter, a patrolmen in Purdy, Missouri. Deputy Castetter had been dispatched on a call that Mr. Clayton was trespassing on the property of his girlfriend’s mother. Deputy Castetter was found in his patrol car at the bottom 6 of the driveway, the engine running, the car against a tree. Mr. Clayton was apprehended at his residence, and officers recovered a weapon after they saw him get out of his truck and place something in the yard. Interviewed after the offense, Mr. Clayton stated that Deputy Castetter “probably should have just stayed home” and that “he shouldn’t have smarted off to me.” Mr. Clayton then added “but I don't know because I wasn’t out there.” Mental health evidence through the end of habeas proceedings While Mr. Clayton was in jail, a physician’s assistant observed him to be depressed and irritable. Mr. Clayton was neglecting basic hygiene and smeared feces on the wall of his cell. Trial counsel was informed of this behavior, but did not request a competency exam. However, trial counsel did offer expert testimony at trial, that, as a result of his brain injuries, Mr. Clayton when agitated was incapable of deliberating or otherwise coolly reflecting on a murder, as required for a first degree murder conviction. However, trial counsel made the disastrous decision to offer this defense only as an alternative to an argument that the state had not proved that Mr. Clayton committed the murder. After the trial, counsel wrote to an expert death penalty litigator whom he had consulted, “It was not until the trial had been completed and some days had passed before I fully realized how inadequate and inept I was in attempting to spare Cecil from the death penalty. As you pointed out 7 to me, but I was unwilling to listen, our chances of succeeding in the first phase were minimal.” During post-conviction proceedings, Mr. Clayton’s counsel had serious concerns about Mr. Clayton’s competence. One of his lawyers described Mr. Clayton’s poor memory and inability to focus on topics relevant to the representation. “I noticed a deterioration of [Mr. Clayton’s] limited ability to focus and [his] memory. For example, there were more and more occurrences of Mr. Clayton not recalling what I had recently told him. In addition, I noticed that his inability to focus, or his ‘off’ days, became more frequent.” App. p. 212a. During federal habeas corpus proceedings, at the request of the state, the district court ordered an examination of Mr. Clayton at the U.S. Medical Center for Federal Prisoners (USMCFP), Springfield, Missouri. Mr. Clayton was evaluated at the facility for approximately six months. The evaluating team, led by Dr. Lea Ann Preston, found that Mr. Clayton was not competent to participate and assist his attorneys in the federal habeas corpus proceedings. App. p. 215a. The observations about Mr. Clayton’s interactions with them are revealing: [H]e frequently did not directly answer the question at hand. For example, when asked about medical history he denied any medical problems. However, a couple of minutes later, he began to speak of his open heart surgery two years ago and his high blood pressure. Additionally, he initially denied any mental health history, including hospitalizations. Later in the interview, he described psychotic symptoms he presently experiences, as well as past evaluations at a “mental hospital.” He did not appear to be attempting to deny symptoms and did not appear to 8 be responding to hallucinations during the evaluation. Rather, he appeared to have little insight that his answers were relevant to questions asked several minutes beforehand, but not to the question at hand. ... His judgment also appeared to be impaired. For example, he appeared irritated during a task when he was asked to explain “What is the Koran?” Mr. Clayton stated, “That’s where I split with them (Muslims). They were raised over there in the Arab Nations. They are taking over the prison.” Additionally, while the examiner was explaining testing instructions to Mr. Clayton. he stated that he did not mean to be disrespectful, but proceeded to instruct the examiner on the need to rub both sides of his forehead on a regular basis. Mr. Clayton stated that the rubbing would “bring back” hair growth, for what he perceived to be a receding hair line. Overall, it appeared that Mr. Clayton had significant difficulty remaining on task and inhibiting the expression of his thoughts even during structured testing and interview sessions. App. pp. 230-231a. Mr. Clayton’s 2005 intelligence testing at USMCFP revealed a full-scale IQ of 71, which is actually below 68 when assessed for error. App. p. 536a. His reading level was that of a fourth grade child. Mr. Clayton’s school records indicate an IQ in the normal range. The USMCFP neuropsychologist in 2005 believed, “His current WAIS-III score of 71 likely reflects a decrease in intellectual efficiency secondary to the traumatic brain injury.” App. p. 235a. With respect to Mr. Clayton’s “executive functioning,” which “involves planning, reasoning, concept formation, and judgment,” the neuropsychologist noted, “Mr. Clayton's testing results indicate severe executive dysfunction.” 9 Specifically, “During a. . . test of concept formation, the Wisconsin Card Sorting Test, he was unable to complete even one category correctly. Rather, he perseverated on an incorrect response 125 times in a row, despite feedback that his responses were incorrect. This score is considered severely impaired.” App. pp. 237238a. Dr. Preston concluded: “Mr. Clayton’s tangential speech, impaired judgment, and impaired reasoning abilities, will negatively affect his ability to communicate effectively with his counsel, testify relevantly, and make rational decisions regarding his habeas proceedings. Consequently, it is my opinion he is likely not competent to proceed.” App. p. 246a. Without granting an evidentiary hearing, or allowing Mr. Clayton’s counsel to obtain a full evaluation and report from their own expert, the district court denied Mr. Clayton’s claim that he was incompetent to proceed in habeas. 1 The Eighth Circuit affirmed. Clayton v. Roper, 15 F.3d 784, 789 (8th Cir. 2008). Evidence of ineligibility to be executed. The first opinion attempting to address Mr. Clayton’s competence to be executed is found in the 2006 report of Dr. Preston. Mr. Clayton raised a claim of incompetence to be executed in his initial habeas proceeding. Therefore, when she The district court and Eighth Circuit assumed, without deciding, that Mr. Clayton had a right to competence during his habeas proceedings. Since then, this Court has decided otherwise. Ryan v. Gonzales, 133 S. Ct. 696, 702 (2013). 1 10 sent Mr. Clayton to USMCFP, the district court included among her reference questions the following: “Does Mr. Clayton understand that he is to be executed and the reason for the execution (i.e., the killing of Officer Christopher Castetter)?” App. p. 246a. However, the district judge ordered the USMCFP evaluators not to discuss the facts of the offense with Mr. Clayton. Dr. Preston responded to this reference question as follows: “Yes. Mr. Clayton was fully aware of the fact that he had been convicted of murdering Officer Christopher Castetter. Additionally, he expressed the understanding that he had been sentenced to death for this crime. According to Mr. Clayton, the method of execution for the state of Missouri is lethal injection.” App. 246a. However, Dr. Preston qualified this opinion because she had not been able to discuss Mr. Clayton’s version of the offense with him, or review investigative material about the offense. She noted, “These two types of information are critical because they can reveal whether an individual possesses a rational appreciation of the evidence in the case, deficits in the ability to recall what occurred, or delusional beliefs about the offense.” App. p. 245a. She also observed, “Although Mr. Clayton did not express delusional ideation about his legal situation, he typically provided rationales for his answers which were irrational or failed to support his position.” Id. Over the past seven years, two other psychologists have evaluated Mr. Clayton. Dr. William Logan, M.D., evaluated Mr. Clayton in 2008, 2013 and 2015. Dr. Logan 11 concluded each time that Mr. Clayton is incompetent. He found that Mr. Clayton suffers from dementia and brain damage resulting in significant memory impairment, decreased judgment, decreased ability to process information or to grasp abstract concepts, a disorganized thought process, and delusions. App. pp. 247-248. Dr. Daniel Foster Psy.D, also examined Mr. Clayton in 2008, 2013 and 2015. Like Dr. Logan, Dr. Foster found Mr. Clayton incompetent each time he saw him. He also found that Mr. Clayton suffered from significant frontal lobe damage, which caused subsequent cognitive impairment with significant deficits in judgment, problem solving, mental flexibility, processing speed, and verbal disinhibition. Additionally, he noted that Mr. Clayton suffered from depressive episodes, insomnia, visual and auditory hallucinations, delusions, and paranoia. App. p. 258a. Both doctors found Mr. Clayton’s delusions surrounding his execution to be noteworthy. Specifically, Mr. Clayton believes that he was convicted because of a conspiracy against him and that he will be spared the death penalty when God intervenes on his behalf, after which time he will travel the country playing the piano and preaching the gospel. App. p. 255a. The doctors’ findings are corroborated by other prisoners incarcerated with Mr. Clayton who observe him daily. Two former cellmates of Mr. Clayton, John Johnston, 149663, and Brandon Swallow, 1140694, both have witnessed Mr. Clayton’s repeated inability to follow simple directions in the prison. For example, both have observed Mr. Clayton’s inability to order commissary from a kiosk on his own. Mr. Clayton needed to remember to enter his DOC number, hit “okay,” then enter a four-digit PIN number, but 12 he could not follow the prompts and complete these steps. Mr. Johnston showed Mr. Clayton several times how to use the system, however, Mr. Clayton remains unable to use the system. Both prisoners also noted that Mr. Clayton had severe memory problems. He was very impulsive and would change subjects frequently when he spoke. He would forget they were watching a movie and would change the television channel. Both men also observed Mr. Clayton’s delusions. When they talked about other inmates who had been executed, Mr. Clayton would tell Mr. Johnston that God would free him. Mr. Clayton would sit and think daily about how God would get him out of prison. Mr. Clayton told Mr. Johnston that he planned to come back to the prison and minister and sing to the inmates. Mr. Clayton believes his conviction, sentence, and execution is a conspiracy against him. He does not believe he will be executed. Rather, he believes divine intervention will set him free, so that he can travel the country preaching and singing the gospel. Assertions of ineligibility to be executed. Mr. Clayton first asserted his incompetence to be executed in his federal habeas corpus petition, filed in 2003. Since that time, he has asserted it in the Missouri Supreme Court a total of six times. On June 1, 2009, he asked the Supreme Court for a hearing on competency, providing the court with the reports of Drs. Logan and Foster. App. p. 279a. On May 22, 2012, in response to the state’s 13 motion to set an execution date, Mr. Clayton again provided the Missouri Supreme Court with the reports of Drs. Logan and Foster and alleged his incompetence to be executed. App. p. 416a. On February 10, 2014, Mr. Clayton filed a second writ of mandamus before the Missouri Supreme Court, requesting a hearing on his incompetence and attaching updated reports from Dr. Logan and Foster. App. p. 451a. On February 11, 2014, in response to the Missouri Supreme Court’s order to show cause why he should not be executed, asserted his incompetence and asked for a hearing. App. p. 486a. On January 9, 2015, Mr. Clayton filed supplemental suggestions in response to the Missouri Supreme Court’s order to show cause why an execution date should not be set, providing the court with the updated reports of Drs. Logan and Foster. App. 487a. Finally, on March 9, 2015, Mr. Clayton filed this cause of action. Following the filing of the state habeas corpus petition, the state responded with evidence allegedly showing Mr. Clayton’s competence to be executed, including the report of Dr. Reynolds. The Missouri Supreme Court, in a 4-3 decision, held that Mr. Clayton was not entitled to a hearing on his competence to be executed because he had not met the “substantial threshold” showing required by Ford and Panetti and that the State of Missouri is free to execute Mr. Clayton because he is not intellectually disabled. This petition follows. 14 REASONS FOR GRANTING THE WRIT I. Mr. Clayton has met the Ford/Panetti threshold and is entitled to a hearing on his competence to stand trial. In Ford v. Wainwright, 477 U.S. 399 (1986), this Court held that the Eighth Amendment to the United States Constitution forbids the execution of the “insane.” Justice O’Connor, concurring, pointed out that the Florida statute at issue in that case also creates a liberty interest in not being executed when the criteria of the Florida statute are met. Ford v. Wainwright, 477 U.S. 339, 428-429 (1986) (O’Connor, J., concurring.) The Court went on to hold that a prisoner’s right to due process of law extends to the issue of competency to be executed. The Ford opinion found that Florida’s procedure for determining competency to be executed did not meet basic due process requirements because it permitted the determination to be made by a member of the executive branch, rather than an impartial factfinder, and because it did not contain safeguards allowing the prisoner a full opportunity to present his own evidence of incompetence. To avoid frivolous, last-minute claims of incompetence, the Ford court found it appropriate to require a “substantial threshold showing” of insanity before a prisoner could invoke his due process right to a determination of incompetency. In Panetti v. Quarterman, 551 U.S. 930, 950 (2007), this Court clarified what a “substantial threshold showing” means, describing how Mr. Panetti had met this standard: 15 He made this showing when he filed his Renewed Motion To Determine Competency—a fact disputed by no party, confirmed by the trial court’s appointment of mental health experts pursuant to Article 46.05(f), and verified by our independent review of the record. The Renewed Motion to Determine Competency included pointed observations made by two experts the day before petitioner’s scheduled execution; and it incorporated, through petitioner’s first Motion To Determine Competency, references to the extensive evidence of mental dysfunction considered in earlier legal proceedings. Mr. Clayton has clearly met the Panetti requirements, and is therefore entitled to no further proceedings to determine his competency to be executed. Mr. Clayton’s six filings in the Missouri Supreme Court each included expert reports based on recent observations, and incorporated or attached “references to extensive evidence of mental dysfunction considered in earlier legal proceedings.” Panetti at 950. While the state has presented what it considers to be countervailing evidence, balancing the state’s evidence against that of Mr. Clayton would not be consistent with the purpose of the threshold requirement. Rather, Mr. Clayton is now entitled to a hearing, consistent with due process, at which an impartial factfinder can hear evidence from both sides and determine the ultimate question of Mr. Clayton’s competence. It is clear from this Court’s decisions that the “substantial threshold” showing is just that—a prerequisite to a full determination of competency. This Court explained the requirement in Ford as “a necessary means to control the number of nonmeritorious or repetitive claims of insanity.” Ford at 417. The 16 Missouri Supreme Court, however, essentially required Mr. Clayton to prove his incompetency in order to obtain a hearing on his incompetency. After incorrectly citing the Ford/Panetti standard, the Missouri Supreme Court then rejected Mr. Clayton’s “evidentiary offerings” as not establishing the “substantial threshold.” It characterized the evidence as showing [A] man who suffers from some cognitive impairment but who understands that he has been found guilty of killing Deputy Castetter and sentenced to death for that act. . . . neither the fact that Clayton believes he should not have been convicted nor the fact that he believes he will be spared execution are sufficient to make a threshold showing that he is incompetent. App. p. 18a. The court explained that this Court’s “rational understanding” requirement in Panetti does not apply where “the inmate knows he has been convicted of firstdegree murder and sentenced to death but labors under the genuine (even delusional) belief that he will not be executed because some outside force – whether judicial, gubernatorial, or supernatural – will intervene and save him.” App. p. 18a, emphasis added. Turning to the expert opinions, the court rejected the statement of Dr. Daniel Foster, saying, Dr. Foster’s opinions are not credible because the issue is not whether Clayton is competent in the sense of whether he can care for himself, or even whether Clayton suffers from deficits in comprehension, judgment, memory, or intelligence. The issue is whether Clayton can comprehend the reasons for his death sentence and its implications. App. p. 21a. 17 The court also rejected the statement of Dr. Logan that Mr. Clayton believes “he is the victim of a conspiracy. . . He still engages in delusional denial that his execution will take place. . . .” because Dr. Logan acknowledges that God may work through Mr. Clayton’s defense team. App. p. 24a. Finally, the court credits the six month old evaluation of Dr. Reynolds, not referring to his own qualification of his opinion as only his impression as of the time of his evaluation. App. p. 28-29a. Joined by two other judges, Judge Laura Stith dissented. She began by explaining that the holding of the majority was incorrect as to the competency standard established by this Court: [T]he majority acknowledges that Ford requires a competency hearing when the defendant makes a showing that he does not understand the reason for his execution. But, it says, that is the only circumstance in which Ford or Panetti require a competency hearing. The majority opinion is wrong. In Panetti, the Supreme Court explicitly held that merely being aware of the rationale for the execution – a murder – is not adequate to meet the required standard of competency, the prisoner must also understand the rationale for his execution. App. p. 45a. Judge Stith went on, The record before this Court presents reasonable grounds to believe that Mr. Clayton can meet the Panetti or section 552.060.1 standard. As Dr. Logan noted after his examination of Mr. Clayton in January of this year: Mr. Clayton due to his delusional denial, lacks the capacity to understand matters in extenuation, arguments for executive clemency or any reasons his attorneys might present as to why his sentence should not be carried out. 18 Another report states: While Mr. Clayton knows the State plans to execute him for killing Deputy Castetter, he believes his legal situation is instead a test of his faith and that God will not allow the punishment to occur as God has chosen him for another mission. Hence, he has no concept of a need for clemency, or capacity to understand matters in extenuation, arguments for executive clemency or rational reasons why the sentence should not be carried out. And Dr. Foster, whose testimony the majority much discusses, states that Mr. Clayton: … remains, as he has been since I first met him, unable to fully participate, cooperate or comprehend his legal status, process and final, pending deliberations. While he can superficially seem intact, extended contact or observation exposes his multiple deficits, which continue their slow deterioration, despite the structured, secure setting in which he has resided over the past two decades. He is not simply incompetent legally, he would be unable to care for himself or manage basic self care, were he not in a structured environment that takes care of him. He can shower, groom, eat, walk, it is his comprehension, judgment, memory, limited intelligence and social deficits that plague him. I do not find him competent to appreciate the purpose of his pending execution as addressed in Panetti v. Quarterman and Ford v. Wainwright, should it not be stayed by the State of Missouri or the Federal Court. He can replicate elements of the fact that an execution follows a conviction for first degree murder, though still does not comprehend, appreciate nor understand its approaching date for him. The special master may or may not believe these experts, or Mr. Clayton’s other evidence and experts, but Dr. Foster’s expert opinion, particularly as supported by Mr. Clayton’s 2004 IQ score of 71, presents reasonable grounds for a hearing. Mr. Clayton should be allowed the opportunity to convince the special master that he is ineligible for execution because he is intellectually disabled or because he does not have a rational understanding of the reasons for his 19 execution and does not have the capacity to understand matters in extenuation, arguments for executive clemency or rational reasons why the sentence should not be carried out. The denial of such a hearing deprives Mr. Clayton of a fair opportunity to show that the Constitution prohibits his execution. App. p. 47a. As the dissent points out, the Missouri Supreme Court’s analysis of Mr. Clayton’s competence goes far beyond the “substantial threshold” requirement. In Panetti, this Court held that a combination of expert opinions and historical evidence of mental instability unquestionably met that requirement. Mr. Clayton has presented that and more—concrete evidence that his incompetence is due to a brain injury over which he cannot conceivably have any control. The Missouri Supreme Court’s ruling that Mr. Clayton did not meet the “substantial threshold” requirement is in conflict with the decisions of other courts. In Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009), the court held, Regardless of whether Thompson’s incompetency petition should be granted, his evidence has at least created a genuine issue about his competency, and therefore warrants an evidentiary hearing. Thompson included extensive evidence of his incompetency in his petition, including (1) the reports of three medical experts, two of whom had recently examined Thompson on multiple occasions; (2) a long documented history of delusions and psychosis; and (3) the state’s previous effort to appoint a conservator to make medical decisions on his behalf—essentially an acknowledgment by the state that Thompson was mentally ill. The conservatorship was terminated less than five months prior to Thompson’s competency petition filing, and only because a court found Thompson had become voluntarily compliant with his drug program. The evidence Thompson submitted was undoubtedly a “substantial threshold showing,” and therefore an evidentiary hearing should have been held. 20 Mr. Clayton has likewise met the “substantial threshold” requirement. Like Mr. Thompson, he has submitted the reports of medical experts who had recently examined him as well as a “documented history of delusions and psychosis.” His historical showing, which the court in Thompson explicitly held relevant to the threshold requirement, is even stronger that Mr. Thompson’s. Mr. Clayton presented to the Missouri Supreme Court graphic evidence that he has a large piece of his brain missing. An example of the correct application of this Court’s decisions is found in the unpublished order of the U.S. District Court for the Western District of Texas. Wood v. Thaler, 787 F.Supp.2d 458 (W.D. Tex. 2011). In Wood, the district court ultimately found that Mr. Wood was competent to be executed. But, before doing so, it found that he had met the “substantial threshold” requirement. After describing the evidence presented that Mr. Wood had emotional difficulties as a child, had at one point been found incompetent to stand trial, and had made delusional 21 comments to prison medical staff and his lawyers, the court explained that this evidence was sufficient to trigger due process protection even though it was not sufficient to establish incompetence. App. p. 552a. The contrast between the approach of the Missouri Supreme Court in State ex. rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014), and in Mr. Clayton’s case and that of the courts in Thompson and Wood makes clear the need for this Court to again address the threshold requirement, and to find that Mr. Clayton is entitled to the full protection of the due process right established in Ford and Panetti. II. The Missouri Supreme Court’s ruling unconstitutionally narrows the definition of incompetence to be executed. A. Incompetence under Ford and Panetti. The Missouri Supreme Court cited its decision in State ex. rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014), in defining competence to be executed: In Panetti, the Supreme Court explains that the gravamen of an Eighth Amendment incompetence claim is not that an inmate is delusional, but that the inmate suffers from some “mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced.” Id. at 960. The delusions must be such that “they so impair the prisoner’s concept of reality that he cannot reach a rational understanding of the reason for the execution.” Id. at 958. In Panetti, the inmate had a “genuine delusion involving his understanding of the reason for his execution .... [that] recast petitioner’s execution as ‘part of spiritual warfare ... between the demons and the forces of the darkness and God and the angels and the 22 forces of light.’” Id. at 954 (citations omitted). As a result, even though “petitioner claims to understand ‘that the state is saying that [it wishes] to execute him for [his] murder[s],’ he believes in earnest that the stated reason is a ‘sham’ and the State in truth wants to execute him ‘to stop him from preaching.’ ” Id. at 954–55[]. App. p. 16a. In Panetti, this Court held, “Petitioner’s submission is that he suffers from a severe, documented mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced. This argument, we hold, should have been considered.” Panetti at 960. The Missouri Supreme Court seized on this language as a limitation on the definition of incompetence, rather than an example of it. But this Court did not hold that incompetence could only be established by the showing of delusions like Mr. Panetti’s. It simply held that the Fifth Circuit had erred in not considering whether his delusions rendered him incompetent. And this Court so held only after finding that Mr. Panetti had made the required threshold showing. The Missouri Supreme Court, on the other hand, used this language to find that Mr. Clayton had not made the threshold showing. The Missouri Supreme Court’s ruling unconstitutionally narrows the standard of Ford and Panetti to those with “gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced.” At a minimum, the Missouri Supreme Court must re-examine whether 23 Mr. Clayton has made a “substantial threshold showing” in light of the correct definition of incompetence. In Panetti v. Quarterman, 551 U.S. 930 (2007), this Court held that the record showed that Mr. Panetti suffered from delusions. Id. at 956. The legal inquiry was whether those delusions rendered him incompetent to be executed. The Fifth Circuit Court of Appeals held they did not because Mr. Panetti knew he had a death sentence and knew the offense of which he had been convicted. The United States Supreme Court concluded that the Fifth Circuit’s analysis was too restrictive, rested on a flawed interpretation of Ford, and did not afford Mr. Panetti the protections guaranteed by the Eighth Amendment. Id. at 957-958. The Court explained: The Court of Appeals’ standard treats a prisoner’s delusional belief system as irrelevant if the prisoner knows that the State has identified his crimes as the reason for his execution. . . .Yet the Ford opinions nowhere indicate that delusions are irrelevant to “comprehen[sion]” or “aware[ness]” if they so impair the prisoner’s concept of reality that he cannot reach a rational understanding of the reason for the execution. If anything, the Ford majority suggests the opposite. Id. at 958. The Court held that “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Ford v. Wainwright does not foreclose inquiry into the latter.” Id. at 959. Under Panetti, it is not enough for a condemned prisoner to be able to identify the stated reason for his execution. To be competent, he must have a 24 rational understanding of the “real interests the state seeks to vindicate.” Id. at 959. The Court observed that executing an insane person serves no retributive purpose: [I]t might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole, including the surviving family and friends of the victim, to affirm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed. The potential for a prisoner’s recognition of the severity of the offense and the objective of community vindication are called into question, however, if the prisoner’s mental state is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole. Id. at 958-959. While gross delusions like those of Mr. Panetti are one way in which a prisoner’s mental state might be “so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole,” the Panetti opinion does not say that “gross delusions” are required for a prisoner to be incompetent. The Missouri Supreme Court’s opinion in State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014), suggests that Panetti actually narrowed the definition of incompetence to be executed. It did not. This Court overturned the Fifth Circuit’s finding of competence because it was narrowly based on the answers to two questions: Does Mr. Panetti know he has been convicted?” and “Does Mr. Panetti know he has been sentence to death?” This Court held that a person might be able to provide the 25 correct answers to these questions without being competent to be executed, and that a “rational understanding” of the underlying concepts was required for competence. Mr. Clayton is entitled to show that, in addition to his delusions, his general confusion renders him unable to appreciate the process in which the state is engaged to try to kill him, or the fact that execution will actually occur. For example, Dr. Foster found in 2013, His thinking is disorganized and he is easily distracted, making assessment difficult. He seldom responded to questions directly, becoming tangential and addressing topics of personal interest. He was cheerful and pleasant. His memory is inconsistent, with some long term memory intact, albeit inconsistently accessed. He often inserted decades old information inappropriately into his monologue, as if it were germane. App. p. 261a. Dr. Foster concluded after his most recent interview with Mr. Clayton earlier this year, He is unable to inform me of his current medications, his current medical conditions, his presiding Judge at his trial and at his Appeal, the legal strategy presented by [trial] Attorney Rhodes at his initial trial, the current status of his case, what has been done on his behalf and what fate awaits him. He cheerfully leaves it in the Lord's and his Attorney’s hands. He remains, as he has been since I first met him, unable to fully participate, cooperate or comprehend his legal status, process and final, pending deliberations. While he can superficially seem intact, extended contact or observation exposes his multiple deficits, which continue their slow deterioration, despite the structured, secure setting in which he has resided over the past two decades. He is not simply incompetent legally, he would be unable to care for himself or manage basic self care, were he not in a structured environment that takes care of him. App. p. 265a. 26 It is clear that these symptoms are relevant to whether Mr. Clayton has a “rational understanding” of what will happen to him, absent court interference or clemency, on March 17. But the Missouri Supreme Court refused to consider them, holding that Mr. Clayton must be competent because he knows that he has been sentenced to death for killing Christopher Castetter. This action violates the United States Constitution, and will result in the execution of one who is incompetent. B. Mr. Clayton has a liberty interest in Missouri’s definition of competency, and has made a threshold showing under that standard. In addition to misstating the Ford/Panetti standard, the Missouri Supreme Court misconstrues Missouri’s requirement that a prisoner not be executed if he “lacks capacity to understand the nature and purpose of the punishment about to be imposed upon him or matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out.” Mo. Rev. Stat. §552.060. While this criterion for competence to be executed is not included in the definition of “insanity” set out in Ford v. Wainwright, 477 U.S. 339 (1986), it is still binding upon the Supreme Court of Missouri and upon this Court. The United States Constitution mandates that when a state statute requires, with “language of an unmistakable mandatory character,” that state action adverse to an individual will not occur “absent specified substantive predicates,” the statute creates a liberty interest protected by the Due Process Clause. Hewitt v. Helms, 459 U.S. 460, 47127 472 (1980); See also Vitek v. Jones, 445 U.S. 480, 488-491 (1980); Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 10 (1979) (liberty interest created where state law provides “there is [a] set of facts which, if shown, mandate a decision favorable to the individual”). See Ford v. Wainwright, 477 U.S. 339, 428 (1986) (O’Connor, J., concurring.) It is difficult to imagine language of a more “unmistakable mandatory character” than “No person condemned to death shall be executed. . . .” See also Danforth v. Minnesota, 552 U.S. 264 (2008) (State may grant broader rights than U.S. Constitution). The Missouri Supreme Court examined this standard as though it related to competence to assist counsel. the court finds that “Clayton provides no evidence that. . . his counsel have been unable to prepare a clemency application on his behalf.” App. p. 29a. The court then analyzed the standard of Mo. Rev. Stat. §552.060 as if it referred to a prisoner’s competence to assist in his defense, rather than his appreciation of what is about to happen, citing the ruling of the United States District Court on the question of whether Mr. Clayton was competent to proceed in habeas corpus: As the District Court held, the question of whether an inmate is competent to assist in his defense must be analyzed in light of the proceedings underway at the time and the demands those proceedings place on the inmate’s memory and ability to communicate. Competency Order, at 13-15. Greatest prior to and during trial, these demands fall off markedly throughout the appellate, post conviction, and federal habeas proceedings. At the end of this process, when the issue turns to clemency, there is very little that depends on the defendant suddenly recollecting some new fact that will result in a new argument or ground for clemency. 28 App. p. 30a. But the Missouri standard does not say that a prisoner shall not be executed if he “is unable to assist his counsel in presenting “matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out.” It says that a prisoner who does not have this understanding shall not be executed. As the dissenting judge notes, the majority simply ignores this requirement. App. p. 45a. Prior to Mr. Clayton’s case, the Missouri Supreme Court has never addressed this requirement of Missouri law. The issue was apparently not raised in State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014). And while Missouri is free to interpret its own laws, it may not simply read language into them that is not there. [cites needed] Moreover, the Missouri Supreme Court’s interpretation of this language is inconsistent with this Court’s rationale for the requirement that an “insane” prisoner may not be executed. This is not because an “insane” prisoner may not be able to assist his counsel, but because The potential for a prisoner’s recognition of the severity of the offense and the objective of community vindication are called into question, however, if the prisoner’s mental state is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole. Panetti at 958-959. 29 Mr. Clayton has certainly presented evidence to meet the “substantial threshold” showing that he does not understand “matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out.” As early as 2005, Dr. Preston noted that “Although Mr. Clayton did not express delusional ideation about his legal situation, he typically provided rationales for his answers which were irrational or failed to support his position.” App. p. 241a. She concluded, “Mr. Clayton’s tangential speech, impaired judgment, and impaired reasoning abilities, will negatively affect his ability to communicate effectively with his counsel, testify relevantly, and make rational decisions regarding his habeas proceedings.” The same is clearly true now with respect to the clemency process. Both Dr. Logan and Dr. Foster observed Mr. Clayton’s tangential and uninhibited speech, which make it impossible to conduct a focused, rational conversation with him. They, along with his counsel and fellow prisoners, have also observed his irrational paranoia of others. As a result, he does not understand the purpose and nature of the punishment to be inflicted, or why it might be possible for extenuating circumstances to exist. The lack of general competence observed by Dr. Foster is particularly relevant to these rather technical aspects of the execution end process. Mr. Clayton has thus made a threshold showing that he meets both the federal and Missouri standards for competence to be executed. He is entitled to a hearing. 30 III. Mr. Clayton is Entitled to Present Evidence that His Low Intellectual Functioning and Deficits in Adaptive Functioning Bar his Execution. Atkins v. Virginia, 536 U.S. 304, 321 (2002), recognized the national consensus against the death penalty for those suffering from, as the condition was then known, mental retardation. Hall v. Florida, 134 S.Ct. 1986, 1990 (2014), repeated that the Eighth Amendment’s prohibition against the infliction of cruel and unusual punishment “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.” Id. at 1992, quoting Weems v. United States, 217 U.S. 349, 378 (1910). Hall expressly considers that in order “[t]o enforce the Constitution’s protection of human dignity, this Court looks to the ‘evolving standards of decency that mark the progress of a maturing society.’” Hall, 134 S.Ct. at 1992, quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). Hall presented the question of “how intellectual disability must be defined in order to implement these principles and the holding of Atkins.” Hall, 134 S.Ct. at 1993. Atkins noted three traditional criteria for the medical community’s definition of “mental retardation” and these were recapitulated in Hall: [T]he medical community defines intellectual disability according to three criteria: significantly subaverage intellectual functioning, deficits in adaptive functioning (the inability to learn basic skills and adjust behavior to changing circumstances), and onset of these deficits during the developmental period. Id. at 1994. 31 The “age of onset” was “not at issue” in Hall. Id. In contrast, the present petition raises just that issue: for the purposes of the Cruel and Unusual Punishment Clause: Does the age of onset have any proper bearing on whether the states are prohibited from executing the functionally intellectually disabled? The age of onset is simply a diagnostic criterion used in the medical community in order to distinguish intellectual disability with childhood onset from otherwise indistinguishable disability that arises after the developmental period. The age of onset requirement has simply served the medical community in determining the course of clinical treatment for individuals. See Am. Ass’n on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Support, 27 (2010). The concerns driving the medical community’s reliance on an age of onset are wholly divorced from the rationale behind the legal prohibition on executing the intellectually disabled. Underlying the prohibition of executing the intellectually disabled is the recognition that doing so would serve neither of the recognized purposes of capital punishment: retribution and deterrence. Gregg v. Georgia, 428 U.S. 153, 183 (1976) (joint opinion of Stewart, Powell, and Stevens, JJ). Unless the death penalty “measurably contributes to one or both of these goals, it is nothing more than the purposeless and needless imposition of pain and suffering, and hence an unconstitutional punishment.” Atkins, 536 U.S. at 318 (internal quotations omitted). In Atkins, this Court prohibited executing the intellectually disabled because doing so would not further either of these 32 goals. Executing someone who, but-for the age of onset of his disabilities, is “Atkins ineligible” for execution does not serve any legitimate goals of capital punishment. The impairments are what make the intellectually disabled undeserving of death. Just as the characteristics of the intellectually disabled make them less culpable— and therefore eliminate any retributive basis here—their characteristics also undermine any deterrence rationale. That rationale for the death penalty does not apply to the intellectually disabled with the force it does for the able-minded offender: The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable—for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses—that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Atkins, 536 U.S. at 320, 122 S. Ct. at 2252. Whether this impairment manifested before age eighteen or, as with Mr. Clayton, as the product of a tragic accident in adulthood, makes no difference for the total absence of any deterrent value in executing him. “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Roper v. Simmons, 543 U.S. 551, 563 (2005) (quoting Atkins, 536 U.S. at 312 (quoting Coker v. Georgia, 433 U.S. 584, 597 (1977) (plurality opinion). Following 33 this Court’s decision in Atkins, the states have used age of onset as part of their prohibition on executing the intellectually disabled. Nonetheless, it is the rare and “isolated” case that does not receive exemption from the harshest punishment our nation hands down simply because of a lack of evidence of pre-eighteen age of onset. John H. Blume, et al., An Empirical Look at Atkins v. Virginia and Its Application in Capital Cases, 76 Tenn. L. Rev. 625, 636 (2009). 2 Thus, the lack of an actual practice of executing persons with intellectual disability, regardless of age of onset, indicates a rejection of the death penalty for such persons. Graham v. Florida, 560 U.S. 48, 62 (2010) (few life without parole sentences for nonhomicide offenses by juveniles, despite legislative authorization, demonstrates consensus against such sentence). In Simmons, the Court affirmed the Supreme Court of Missouri’s decision embracing “that the reasoning of Atkins established that the Constitution prohibits the execution of a juvenile who was under 18 when the crime was committed.” Simmons, 543 U.S. at 559, citing State ex rel. Simmons v. Roper, 112 S.W.3d 397 (2003) (en banc) (Stith, J.). In the present case, the four-judge majority below relied on the Missouri statute, Mo. Rev. Stat. §565.030.6, to deny Mr. Clayton relief, finding that it “considers 2 This study examined every case making a claim of Atkins ineligibility from 2002 to 2008. It found only two petitioners lost an Atkins claim based on age of onset. Those petitioners lost because they lacked IQ scores prior to age eighteen. The study described these two cases as “patently wrong, but . . . thus far, isolated.” Id. Executing Mr. Clayton would add a third case to this grim list. 34 intellectual disability as an immutable characteristic which manifests at or shortly following birth and, therefore, is necessarily present at the time the defendant committed the crime.” App. p. 34a. The sawmill accident that caused the loss of a considerable portion of Mr. Clayton’s brain occurred decades before the crime in question, but after age eighteen. Because of the tragic accident’s timing, Mr. Clayton arbitrarily faces execution. However the author of State ex rel. Simmons v. Roper, 112 S.W.3d 397 (Mo. 2003), Judge Stith, writing in dissent and joined by Judges Draper and Teitelman, forcefully explained the irrelevance of the age of onset criterion to the very reasons for prohibition: “The Atkins mandate that it is unconstitutional to execute someone who is intellectually disabled does not depend on when an intellectual disability manifested, but on whether an intellectual disability exists.” App. p. 44a. (emphasis in original). Further, the dissent pointed out that: the presumptive purpose of requiring a disability to manifest itself by age 18 is to preclude later faking of intellectual disability. Here, there is no factual dispute that Clayton suffered a brain injury and lost 20 percent of his frontal lobe, and that his IQ went down thereafter and long prior to the murder, so those concerns are not present. Id. Thus, this Court is faced, perhaps for the first time, with the question of whether a person who otherwise meets the definition of intellectual disability may nonetheless be executed, simply because, through no fault of his own, that impairment manifested after 35 age eighteen. Four basic facts are uncontroverted. First, Mr. Clayton has severe brain damage as a result of the sawmill accident. Second, Mr. Clayton has IQ scores that could make him ineligible for the death penalty. Third, Mr. Clayton has deficits in adaptive functioning. And, fourth, Mr. Clayton’s impairments did not arise until after the age of eighteen. Thus, the question for this Court is whether Mr. Clayton, who, like the famous Phineas Gage in 1848, suffered a major change in personality and functioning as the product of a major brain injury, is the “worst of the worst.” At a minimum, Mr. Clayton should be provided with an opportunity to present evidence of his impairments at a hearing. As the dissent recognized “Mr. Clayton’s score of 71 is within the standard error of measurement and Hall constitutionally requires that he be given a hearing to present evidence of impairments in both his intellectual and adaptive functioning.” Id. at 8. As to his intellectual functioning, Mr. Clayton argued in the court below that, when evaluated under the Flynn effect and the measurement of error, his IQ scores fall below 70. The majority did not address his argument. 3 Nor did they address the evidence of his adaptive deficits. Mr. Clayton has been incarcerated on death row for nearly two decades. Nevertheless, he is consistently unable to adapt to multiple routines of daily living in prison. App. pp. 511-512a.. As Mr. Clayton argued The majority incorrectly asserts that Mr. Clayton “does not make a margin of error argument.” App. (Opinion at 35n5). In fact, Mr. Clayton’s petition to the Missouri Supreme Court included a lengthy discussion of the standard measurement of error and the Flynn effect. App. pp. 533-538a. He argued that, when assessed for error, his IQ scores fall below a 70 and that he deserved the right to present such evidence at a hearing. App. p. 537a. 3 36 below, his inability to recall or follow simple instructions is evidence of his adaptive deficits under the DSM and AAID Diagnostics Manual. App. p. 538a. This Court should remand this case and afford Mr. Clayton the “opportunity to prove [his] intellectual disability before a fact-finding body . . . at which he is entitled to present ‘other factors regarding an individual’s adaptive functioning that must be considered in addition to IQ, such as evidence of past performance, environment, and upbringing.” App. 43a. CONCLUSION For these reasons, a Writ of Certiorari should issue to review the judgment of the Missouri Supreme Court. Alternatively, this Court should grant certiorari, reverse the decision of the Missouri Supreme Court, and remand for reconsideration in light of Panetti v. Quarterman 551 U.S. 930 (2007). Respectfully submitted, /S/ ELIZABETH UNGER CARLYLE Elizabeth Unger Carlyle 6320 Brookside Plaza #516 Kansas City, MO 64113 (816)525-6540 elizabeth@carlyle-law.com /s Susan M. Hunt Susan M. Hunt Livestock Exchange Building 1600 Genessee, Suite 806 Kansas City, MO 64102 Missouri Bar No. 36130 816-221-4588 37 /s/ Jeannie Willibey Jeannie Willibey, Mo Bar No. 40997 Office of the Public Defender 920 Main Street, Suite 500 Kansas City, MO 64105 Tel: 816-889-7699 e-mail: Jeannie.Willibey@mspd.mo.gov /s/ Pete Carter Pete Carter, #31401 Attorney for Appellant Office of the Public Defender Woodrail Center 1000 West Nifong, Bldg. 7, Ste. 100 Columbia, MO 65203 Phone: 573-777-9977 E-mail: Pete.Carter@mspd.mo.gov ATTORNEYS FOR CECIL CLAYTON 38 SUPREME COURT OF MISSOURI en banc STATE EX REL. CECIL CLAYTON, Petitioner, v. CINDY GRIFFITH, in her capacity as WARDEN, POTOSI CORRECTIONAL CENTER, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. SC94841 ORIGINAL PROCEEDING IN HABEAS CORPUS On February 6, 2015, this Court scheduled the execution of Petitioner Cecil Clayton (“Clayton”) for March 17, 2015. On March 10, 2015, Clayton filed a petition for writ of habeas corpus claiming that he is not competent to be executed under Ford v. Wainwright, 477 U.S. 399 (1986), Panetti v. Quarterman, 551 U.S. 930 (2007), and section 552.060.1, RSMo 2000. Addressing the merits of Clayton’s petition, this Court finds that he has failed to make the threshold showing required by Ford and Panetti to justify staying his execution so that his competence can be determined after an evidentiary hearing. Background Clayton’s conviction and death sentence were affirmed by this Court in State v. Clayton, 995 S.W.2d 468, 472 (Mo. banc 1999) (Clayton I). His motion for post-conviction relief was overruled, and this Court affirmed that decision as well. Clayton v. State, 63 S.W.3d 201 (Mo. banc 2001) (Clayton II). The United States District Court for the Western District of Missouri, Judge Laughrey presiding, denied Clayton’s federal petition for a writ of habeas corpus, Clayton v. Luebbers, 2006 WL 1128803 (April 27, 2006) (Clayton III), and that decision was affirmed by the United States Court of Appeals in Clayton v. Roper, 515 F.3d 784 (8th Cir. 2008) (Clayton IV). I. Clayton’s Crime Clayton’s petition does not claim that he is innocent of the crime for which he has been sentenced to death. In 1996, Clayton became angry at his girlfriend in a convenience store in Purdy, Missouri. Clayton I, 995 S.W.2d at 473-74. When Clayton pushed his girlfriend, a clerk in the store phoned the sheriff’s department. The Purdy police chief arrived and waited there until Clayton and his girlfriend left separately. Id. at 473. Within an hour, Clayton drove his truck to his girlfriend’s residence. She was not there, but her sister called the sheriff’s department when she saw Clayton sitting in his truck in their driveway. Id. Deputy Castetter was dispatched and arrived at the residence at 10:03 p.m. Three or four minutes later, two other deputies arrived to help Deputy Castetter deal with Clayton. When they arrived, however, they found Deputy Castetter in his patrol car, bleeding profusely from a point-blank gunshot wound to his forehead. Id. 2 His gun was still in his holster. Deputy Castetter was taken to the hospital but soon died of his wound. Id. at 474. Within 15 minutes of this murder, Clayton arrived at a friend’s house, brandished a pistol, and exclaimed “would you believe me, if I told you that I shot a policeman, would you believe me?” Id. Clayton told his friend he needed him to provide an alibi. Clayton then drove his friend to Clayton’s house. Less than a half hour after the crime, the two arrived at Clayton’s home just as the police were arriving there to question him about Deputy Castetter’s murder. Clayton asked his friend “should I shoot them?” His friend answered “No.” Id. Clayton got out of his truck and, claiming he could not hear the officers, walked away from them and toward the side of his house with his right hand in his pocket. The officers saw him take something out of the pocket and put it in a stack of concrete blocks next to his house. The officers arrested Clayton and later found his gun among the concrete blocks. Id. In a subsequent interrogation, Clayton stated that Deputy Castetter “probably should have just stayed home” and that “he shouldn’t have smarted off to me.” Clayton added, however, “I don’t know because I wasn’t out there.” Later, Clayton admitted his involvement in Deputy Castetter’s murder to a cellmate. Clayton II, 63 S.W.3d at 204. II. Clayton’s Brain Injury Clayton was 56 years old in 1996 when he killed Deputy Castetter. Approximately 24 years before he committed that crime, Clayton was injured while working in a sawmill. A piece of wood broke off a log he was sawing and lodged in Clayton’s head. Surgery was required to remove the object, and this procedure resulted 3 in the loss of nearly eight percent of Clayton’s brain and 20 percent of a frontal lobe. Clayton II, 63 S.W.3d at 205. At trial, Clayton’s brother Marvin testified that, after the injury, Clayton changed. “He broke up with his wife, began drinking alcohol and became impatient, unable to work and more prone to violent outbursts.” Id. at 204. Another brother, Jerry, testified during the penalty phase about Clayton’s “childhood and life as a part-time pastor and evangelist prior to the sawmill accident and, after the accident, his marital breakup, drinking alcohol and his antisocial personality.” Id. III. Impact of Clayton’s Injury on his Culpability and Competence From the beginning of this prosecution, Clayton has argued that the effects of his 1972 accident left him blameless for the 1996 murder of Deputy Castetter and/or incompetent to proceed in some – but not all – stages of his case. A. Trial During the guilt phase of his trial, Clayton argued that the accident rendered him incapable of deliberating or forming the intent necessary for the jury to find him guilty of first-degree murder. Clayton II, 63 S.W.3d at 204. In addition to the testimony from his brother, two experts testified that he was not capable of “deliberating, planning, or otherwise coolly reflecting on a murder when agitated” and that his inculpatory statements to the police should be discounted because his injury made him unusually “susceptible to suggestion.” Id. The jury rejected this evidence and found Clayton guilty of first-degree murder. In the penalty phase of his trial, Clayton argued that his injury was a mitigating factor that should make the death penalty inappropriate in his case. Id. 4 at 209-10. The jury rejected this as well and recommended that Clayton be sentenced to death. Clayton did not argue at trial that he was insane at the time of the murder or that he was incompetent to stand trial. When he later claimed that his trial counsel was constitutionally ineffective for failing to challenge his competence to be tried, this Court held: “Counsel has no duty to investigate a client’s mental condition where the client appears to have the present ability to consult rationally with the attorney and understand the court proceedings.” Id. at 209. Because “Clayton was able to intelligently discuss his legal options with his attorney, and even carry on correspondence with him about the case, [his] attorney could reasonably conclude that [Clayton] was competent to stand trial.” Id. In addition, this Court held there was no evidence that Clayton actually was incompetent. Noting that the motion court had good reason to reject Clayton’s expert witness’s testimony in denying Clayton’s motion for post-conviction relief, this Court stated that “Dr. Foster’s determination is especially questionable because even though he said Clayton was incompetent at the time of his trial, he admitted that Clayton understood the role of the prosecutor, the judge, the juror, and even his own attorney in the process.” Id. More important, when this expert examined Clayton three years after his trial, Dr. Foster admitted that “Clayton knew what he was charged with, that he was facing the death penalty, and that he was able to discuss his various options with his attorney.” Id. Accordingly, this Court held: “The judge, who had also presided during Clayton’s trial, 5 had more than a reasonable basis to concluded [sic] that Dr. Foster’s testimony was not credible and that Clayton was competent at the time of his trial.” Id. B. Federal Habeas Clayton raised numerous claims in his federal petition for a writ of habeas corpus, including many based on the impairments created by his 1972 accident and resulting brain injury. Though not conclusive of the question now before this Court, these claims and the District Court’s rejection of them are relevant because Clayton’s competence argument relies on a condition that existed throughout his legal proceedings and – even though his experts refer to the condition worsening with age – neither Clayton nor his experts identify any evidence to support the fact that his competence is materially worse now than in 2005 and 2006 when his federal habeas petition was litigated and rejected. 1. Dual Defense Theories In 2006, as part of his petition for habeas relief in the federal courts, Clayton claimed that his trial counsel was ineffective for arguing both that Clayton was not the murderer and that, even if Clayton did kill Deputy Castetter, Clayton’s brain injury precluded him from forming the necessary intent and deliberation. Clayton III, 2006 WL 1128803, at *5-8. The District Court noted that this Court had rejected this claim, in part, because this Court earlier had reached the conclusion that Clayton “did not have a good defense under either theory.” Id. at *7 (citing Clayton II, 63 S.W.3d at 206-07). The District Court held there was “ample evidence” to support this conclusion. Id. at *8. 6 2. Additional Evidence of Impairment at Trial The District Court also rejected Clayton’s claim that his trial counsel should have introduced voluminous records from his extended hospital stay after his injury. “The records Clayton now complains about would have complicated [the simple] picture [that counsel wanted to present] and shown the jury that Clayton was also a violent man with a criminal record even before the accident occurred.” Clayton III, 2006 WL 1128803, at *8 (quoting Clayton II, 63 S.W.3d at 208). Similarly, the District Court agreed with this Court’s decision that Clayton’s counsel was not ineffective for electing not to present a witness who, on cross-examination, would have had to admit “that Clayton had a violent temper even before his accident, undercutting Clayton’s diminished capacity defense.” Id. at *11 (quoting Clayton II, 63 S.W.3d at 209). 3. Clayton was Competent to Stand Trial The District Court also agreed with this Court’s conclusion that Clayton’s counsel had no reasonable basis to challenge Clayton’s competence to stand trial. Noting that, even though Clayton’s expert psychologist had not been retained specifically to evaluate his competence, Clayton’s expert testified that defense counsel had asked her to “let him know if there was a problem with Clayton’s competency.” Clayton III, 2006 WL 1128803, at *12. “Dr. Back stated that she believed in June 1997 that Clayton was competent to stand trial and that, had she thought otherwise, she would have told [defense counsel] he was not competent.” Id. Not only was counsel reasonable in relying on this expert, the District Court agreed with this Court’s holding that Clayton failed to show that he actually was 7 incompetent to be tried. Id. at *14. Clayton’s claim was based on the testimony of Dr. Foster, but the District Court held that the “Missouri courts’ decision to give no weight to Dr. Foster’s testimony is well supported by the evidence in the record[.]” Id. “Dr. Foster testified that Clayton understood the proceedings, the charges against him and that he faced the death penalty, that he had the right not to testify, and the role of different participants in the trial, including his attorneys, the prosecutor, the judge, and the jury.” The District Court concluded that these concessions contradicted Dr. Foster’s assertion Clayton was not competent and justified this Court’s (and the post-conviction motion court’s) decisions not to give any weight to it. Id. 4. Clayton was not Mentally Retarded The District Court also rejected Clayton’s claim, based on Atkins v. Virginia, 536 U.S. 304 (2002), that due process prohibited his being sentenced to death. Even though Atkins holds that the constitution prohibits the execution of mentally retarded criminals, the District Court noted that Atkins is limited to “mentally retarded individuals who satisfy state standards for retardation.” Clayton III, 2006 WL 1128803, at *43 (citing Atkins, 536 U.S. at 317). The District Court held that Clayton’s claim must fail, therefore, because he “has not presented evidence that any of his symptoms manifested before the age of eighteen – a necessary requirement under the [Missouri] statutory definition.” Id. (citing § 565.030.6, RSMo Supp. 2013). In addition to this shortcoming, the District Court also noted that Dr. Back, Clayton’s expert during his post-conviction proceedings, admitted that Clayton “was not retarded when she evaluated him in 2000.” Id. at *44. “Dr. Back evaluated Clayton less 8 than one year after he killed Castetter and his IQ scores placed Clayton within the low average range of intellectual functioning.” Id. Dr. Black’s conclusion was reinforced by the 2005 psychiatric evaluation that the District Court ordered be conducted by Dr. Preston of the Medical Center for Federal Prisoners. When given tests designed to show the degree of impairment among mentally retarded persons, Clayton “received scores that were consistent with presumed competent individuals without mental retardation.” Id. (citing Dr. Preston’s Report at p. 26). Accordingly, the District Court held that “the record refutes his claim that at the time of the murder, or at any time since, [Clayton] functioned at the level of a mentally retarded person.” Id. at *43. 5. Clayton was not Insane at the Time of the Offense The District Court rejected Clayton’s claim that his conviction and death sentence violate due process because his brain injury meant he could not be criminally responsible for the murder of Deputy Castetter under section 552.030.1, RSMo 2000, which provides that “a person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect such person was incapable of knowing and appreciating the nature, quality, or wrongfulness of such person’s conduct.” Clayton III, 2006 WL 1128803, at *41. Again, Clayton based this claim on the opinions of Dr. Foster but, after reviewing this expert’s testimony, the District Court held “it is unlikely the jury would give it substantial weight.” Id. Even assuming that Dr. Foster’s testimony was credible, the District Court found that his testimony contradicted rather than supported Clayton’s claim because “Dr. Foster testified that Clayton knew his conduct was wrong and 9 understood the quality and nature of his act.” Id. Moreover, “at Clayton’s trial Dr. Back testified that Clayton had the ability to distinguish between right and wrong.” Id. “In short, Clayton’s own expert’s testimony shows that he did not meet the criteria for insanity” set forth in section 552.030.1. Id. 6. Clayton was Competent During his Habeas Proceeding Even though the District Court rejected Clayton’s claims that the brain injury he suffered in the 1972 accident absolved him of criminal liability for the 1996 murder of Deputy Castetter and/or rendered him incompetent to be tried for that crime, the District Court ordered that a new psychiatric evaluation be performed in 2005 to assist it in determining: (1) whether Clayton was competent to understand and assist with his federal habeas proceedings; and (2) whether Clayton was competent to be executed under the Eighth Amendment standard set forth in Ford. This psychiatric evaluation was performed by Dr. Preston of the Medical Center for Federal Prisoners, who prepared a forensic report for the District Court. Dr. Preston’s report concluded: Clayton demonstrated a good factual and rational understanding of the legal system and the process of adjudication. More specifically, during clinical interviews, he demonstrated an adequate rational understanding of the habeas corpus proceedings. He understood the roles of the various individuals involved in this process as well as the possible outcomes. His cognitive deficits did not appear to negatively impact his ability to understand his present legal proceedings. District Court Order dated April 27, 2006 (the “Competency Order”) at p. 15 (quoting Dr. Preston’s report at p. 30). Regarding Clayton’s ability to communicate with counsel and make rational decisions, the District Court noted that “Dr. Preston also acknowledged 10 that Clayton is capable of communication with his lawyer, but emphasized that it takes more time and effort than with a fully functioning client.” Competency Order at p. 15. See also Clatyon IV, 515 F.2d at 791 (“Clayton has the ability to understand the legal proceedings and communicate with counsel provided that his counsel is patient in eliciting information”). Moreover, neither Clayton’s federal counsel nor the two prior counsel who submitted affidavits complained they were unable to obtain relevant factual information from Clayton. In fact, Dr. Preston “concluded that Dr. Back’s earlier diagnosis of dementia was not correct” and she “did not find Clayton to have any significant impairment in memory.” Competency Order at p. 17 (citing Dr. Preston’s Report at pp. 26-28). The District Court noted that “Clayton consistently was found to be functioning above the level for a mentally retarded person, and his performance on tests assessing memory, although weak at times, did not suggest severe impairment.” Id. Accordingly, based on Dr. Preston’s Report, the District Court concluded that even though “Clayton’s judgment is impaired, he has failed to show that the impairment requires a stay” on the ground that he is incompetent to proceed. Id. at p. 18. This decision was affirmed. Clatyon IV, 515 F.2d at 790. The District Court reached this conclusion notwithstanding Dr. Preston’s “ultimate conclusion” that Clayton was incompetent to proceed. Competency Order at p. 18. As the District Court explained, competency is a legal determination that must be made by the court and not by experts. Id. See also Clatyon IV, 515 F.2d at 791 (“expert opinion on competency rises no higher than the reasons on which it is based”). 11 “Because Dr. Preston’s objective observations and the tests which she reviewed show that Clayton is competent to proceed with his habeas corpus action, the Court is not persuaded by Dr. Preston’s ultimate conclusion.” Competency Order at p. 18. See also Clatyon IV, 515 F.2d at 791 (“the court placed more emphasis on the objective findings from the tests the doctor performed than on her ultimate conclusion”) 7. Clayton was Competent to be Executed Regarding Clayton’s claims that he was not competent to be executed, the District Court first compared the standard for competence to stand trial, see Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (“a rational as well as functional understanding of the proceedings against him” and a “sufficient present ability to consult with [the defendant]’s lawyer with a reasonable degree of rational understanding”), with the standard for competence to be executed, which the District Court stated “required only that the convicted defendant be aware of the punishment the defendant was about to suffer and why the defendant was going to suffer it.” Competency Order at p. 11 (citing Ford, 477 U.S. at 422). The District Court concluded that, assuming competence is even an issue in federal habeas proceedings (an assumption proved wrong by Ryan v. Gonzales, 133 S. Ct. 696, 702 (2013)), the standard for such competence must require greater abilities than the standard for competence to be executed but fewer abilities than required by the standard of competence to stand trial originally. Id. at 11, 14. Accordingly, because Clayton was competent to proceed with his federal habeas petition, 12 the District Court needed no additional analysis to reject Clayton’s claim that he was incompetent to be executed: Clayton asserts that he is incompetent to be executed under the standard set forth in Ford v. Wainwright, 477 U.S. 399 (1986). His recent competency examination shows that he is competent to be executed. Clayton’s thirtieth claim is denied. Clayton III, 2006 WL 1128803, at *44. C. Clayton’s Current Petition Alleging He is Incompetent to be Executed Clayton filed this action on March 10, 2015, more than four weeks after this Court’s February 6 order scheduling Clayton’s execution for March 17. This delay is not attributable to any need to gather evidence because the most recent of Clayton’s exhibits is dated in early January 2015. Instead, this delay is due to the tactical decisions of Clayton’s counsel seeking to avoid litigating this claim in this Court. On January 9, 2015, Clayton filed a civil rights action and motion for a stay of execution in federal court claiming that he was not competent to be executed. This case was assigned to the same District Court that, in 2006, denied Clayton’s habeas petition and found that he was competent to be executed. Last year, John Middleton sought to litigate his competence in the federal courts without first raising the issue in this Court. The Eighth Circuit rejected that approach: The Missouri courts are the proper forum in the first instance for Middleton’s claim of incompetency to be executed. The likelihood of success of a Ford claim in a federal habeas petition depends on how the Missouri courts dispose of such a claim. See 28 U.S.C. § 2254(d); Panetti, 551 U.S. at 948, 127 S.Ct. 2842. Middleton thus far has declined, perhaps for tactical reasons in light of § 2254(d), to advance a Ford claim before the Supreme Court of Missouri. But that is where the claim must be presented in the first instance. Whatever might be said about possible justifications 13 for Middleton’s failure to bring a Ford claim until fewer than 48 hours before the scheduled execution, there is no reason why Middleton cannot present a Ford claim and a motion for stay of execution to the Missouri courts in light of this court’s decision of July 15. Middleton v. Roper, 759 F.3d 867, 869, (8th Cir. 2014) (Middleton II). Thereafter, Middleton filed his competency action in this Court, and that petition was denied for lack of merit. State ex rel. Middleton v. Russell, 435 S.W.3d 83 (Mo. banc 2014) (Middleton III). Here, finding no meaningful distinction between Clayton’s tactic and Middleton’s approach that was rejected by the Court of Appeals, the District Court dismissed Clayton’s federal suit on February 24, 2015: Clayton seeks a stay of the March 17, 2015 execution date set by the Missouri Supreme Court. In [Middleton v. Roper, 759 F.3d 833 (8th Cir. 2014) (Middleton I),] the Eighth Circuit held that the district court abused its discretion by staying the inmate’s execution for the purpose of holding a hearing on a Ford claim that had not been presented in the first instance to the Missouri state courts. 759 F.3d at 835-36. In [Middleton II)], issued the following day, the Eighth Circuit held that the district court had abused its discretion in granting an indefinite stay of execution, because the inmate had not shown a substantial likelihood of success on the merits of a Ford claim in his federal habeas petition. 759 F.3d at 869. And the likelihood of success in federal habeas depended on how the Missouri courts disposed of such a claim. Id. There was no reason why the inmate could not present both his Ford claim and motion for stay of execution in the state courts. Id. In view of Middleton I and II, and this Court’s dismissal of Clayton’s case, Clayton’s motion for a stay of execution is denied, without prejudice. Clayton v. Lombardi, Case No. 4-15:cv-04003-NKL (order of dismissal) (Feb. 24, 2015), at pp. 5-6. 14 Even though only three weeks remained until Clayton’s execution, his counsel chose not to file his competency claim in this Court, as the District Court held he must. Instead, Clayton’s counsel waited until March 2 and then filed a “Motion to Alter or Amend” the District Court’s judgment dismissing his suit. Only when that motion was denied (on March 9) did counsel file the present petition. Analysis Clayton’s petition asserts three claims: (1) that Clayton is incompetent to be executed under Ford and Panetti and section 552.060.1, RSMo 2000; (2) that section 552.060.2, RSMo 2000 is unconstitutional “insofar as it permits the director of the Department of Corrections, a member of the executive branch who is charged with conducting the execution, to determine a prisoner’s competence to be executed;” and (3) that Clayton is intellectually disabled and cannot be executed under Atkins. In support of these claims, Clayton relies principally on the evaluations performed by Dr. Foster and Dr. Preston, referred to above, as well as those performed by Dr. Logan. I. Clayton is Competent to be Executed The standard for an Eighth Amendment claim that a prisoner is not competent to be executed is found in Ford and Panetti. “[T]he Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Ford, 477 U.S. at 409–410. See also Panetti, 551 U.S. at 934. This constitutional protection “prohibits execution of one whose mental illness prevents him from comprehending the reasons for the penalty or its implications … [or is] unaware of the punishment they are about to 15 suffer and why they are to suffer it.” Panetti, 551 U.S. at 957 (quotation marks and citations omitted). This standard applies “despite a prisoner’s earlier competency to be held responsible for committing a crime and to be tried for it,” and earlier findings of competency “do not foreclose a prisoner from proving he is incompetent to be executed because of his present mental condition.” Panetti, 551 at 934. Under Ford, however, a prisoner is not entitled to an adjudication to determine a claim of incompetence on the eve of his execution unless he makes a sufficient threshold showing that his current mental state bars execution. Id. In Middleton III, this Court analyzed the requirements of Ford and Panetti in greater detail. In Panetti, the Supreme Court explains that the gravamen of an Eighth Amendment incompetence claim is not that an inmate is delusional, but that the inmate suffers from some “mental illness that is the source of gross delusions preventing him from comprehending the meaning and purpose of the punishment to which he has been sentenced.” Id. at 960[]. The delusions must be such that “they so impair the prisoner’s concept of reality that he cannot reach a rational understanding of the reason for the execution.” Id. at 958. In Panetti, the inmate had a “genuine delusion involving his understanding of the reason for his execution .... [that] recast petitioner’s execution as ‘part of spiritual warfare ... between the demons and the forces of the darkness and God and the angels and the forces of light.’” Id. at 954 (citations omitted). As a result, even though “petitioner claims to understand ‘that the state is saying that [it wishes] to execute him for [his] murder[s],’ he believes in earnest that the stated reason is a ‘sham’ and the State in truth wants to execute him ‘to stop him from preaching.’ ” Id. at 954–55[]. 16 Nothing in Dr. Logan’s[ 1] statement, or in the other proof submitted with Middleton’s petition, even approaches a substantial threshold showing that Middleton suffers from such delusions. Instead, at most, they show that Middleton is delusional as to his innocence and his chances of escaping execution. Middleton plainly understands he is to be executed as punishment because he was found guilty of murdering his three victims; he simply believes he should not have been convicted. Nothing in Panetti or Ford suggests that an inmate is incompetent to be executed only if he both understands why he is being executed and agrees that the sentence is justified. Instead, the Court in Panetti stated: The mental state requisite for competence to suffer capital punishment neither presumes nor requires a person who would be considered “normal,” or even “rational,” in a layperson’s understanding of those terms. Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It is a psychotic disorder. Id. at 959–60 (emphasis omitted). Middleton III, 435 S.W.3d at 85-86 (all emphasis in the original). Clayton’s petition fails for the same reasons expressed in Middleton III. The deficiencies in Clayton’s evidentiary offerings are discussed below, but even if the Court gives them more weight than they are due, they show no more than what the District Court saw in 2006, i.e., a man who suffers from some cognitive impairment but who understands that he has been found guilty of killing Deputy Castetter and sentenced to 1 Dr. Logan, on whom Clayton relies, also opined that Middleton was not competent to be executed. 17 death for that act. As in Middleton III, neither the fact that Clayton believes he should not have been convicted nor the fact that he believes he will be spared execution are sufficient to make a threshold showing that he is incompetent. Id. at 85. Clayton’s beliefs in these respects are likely mistaken. They may even be delusional. But they are not the sort of delusions described in Panetti, and they do not constitute a threshold showing of incompetence as required by Ford. Panetti allows for the possibility that an inmate may admit that – according to his jailers – he is to be executed for some criminal act even though he actually is laboring under the genuine (albeit delusional) belief that he is going to be executed for some different, likely bizarre, but utterly unrelated reason. Such circumstances are qualitatively different from the circumstances in Middleton III and the present case where the inmate knows he has been convicted of first-degree murder and sentenced to death but labors under the genuine (even delusional) belief that he will not be executed because some outside force – whether judicial, gubernatorial, or supernatural – will intervene and save him. The latter is sad, but it is not unconstitutional. Accordingly, Clayton is not incompetent to be executed. Seeking to discount the similarity between Clayton’s condition and Middleton’s, Clayton’s counsel and his experts argue that Clayton meets the Ford and Panetti standard for incompetence because Clayton is delusional in believing God will spare him from execution and Middleton was delusional in believing he would be spared by the courts or the governor. This argument fails. Clayton posits that “religious faith and delusion are not mutually exclusive,” Petitioner’s Reply Suggestions, at p. 25, but his argument 18 implies that they are synonymous. What made the delusions in Panetti sufficient to trigger a full hearing on the inmate’s competence was not that the religious themes of the delusions. Instead, it was the fact that there was reason to believe the inmate genuinely believed the true purpose behind his execution was not as punishment for a crime, but to stop him from preaching. The experts on whom Clayton relies admit that Clayton understands that his death sentence was imposed as punishment for killing Deputy Castetter and that it will be carried out for that purpose if not stayed, vacated, or commuted. As explained below, the evidence from these experts (and the other evidence before the Court) falls short of the required threshold showing that Clayton is not competent to be executed. A. Dr. Foster Dr. Foster testified during Clayton’s post-conviction proceedings that Clayton’s brain injury rendered him insane at the time he murdered Deputy Castetter and left him incompetent to stand trial. The motion court gave no weight to his opinion because it was conclusory and internally inconsistent. This Court affirmed on the same basis. Clayton II, 63 S.W.3d at 209. When Clayton was given an execution date in 2008, Dr. Foster again opined that Clayton was not competent to be executed. This time, he relied heavily on Dr. Preston’s report from 2005. In addition, Dr. Foster noted: Despite the approaching date of execution, he [Clayton] remains resolute that he is called to preach the gospel and will be released from prison by a miraculous act of God…. He continues to practice his gospel singing in preparation for his ministry once freed, rather than bothering with requests for clemency or extenuation. Concepts beyond him perceptually, not 19 intellectually. By now he fancies himself wrongly convicted, though does not have an alternative theory of the crime for which he is convicted. In November 2013, Dr. Foster “reassessed” Clayton. He concedes Clayton “seemed aware of his current prison status and the outcome of intervening years (his trial and conviction, the birth of his grandchildren, the death of his son, the loss of his property and estate in the payment to his Attorney at his trial, etc.).” However, Dr. Foster again opined that Clayton did not meet “the requirements of competency for purposes of the final appellate proceedings.” He stated: His [Clayton’s] dementia, medically substantiated and described now for 44 years, is of sufficient severity that, to paraphrase Dr. Preston from her Report of January 18, 2005, he lacks the capacity to communicate effectively with his counsel, to testify relevantly if called upon, and to make rational decisions regarding his habeas proceedings. I found the same problems in 2000 and testified to those findings in September of that year [in Clayton’s post-conviction proceedings]. His Dementia had progressed by the time I reassessed him in 2008, and his deterioration the past five years has further lessened his capacity for meaningful participation in his legal proceedings. Finally, Dr. Foster updated his report in January 2015. Again, he relies on and quotes from Dr. Preston’s report from January 2005. Though he mentions Clayton’s agerelated health problems that have occurred since being incarcerated (e.g., hearing loss, vision deficits, coronary artery disease resulting in a triple coronary bypass in 2001, hypertension, arthritic spine, hips, and knees, and a surgically repaired broken leg in 2013), Dr. Foster does not opine that any (or all) of these conditions are what make Clayton incompetent to be executed. Instead, that opinion is based on the 1972 head injury and its effects, which Dr. Foster says cause Clayton to exhibit “poor judgment, problem solving, mental flexibility, and verbal disinhibition[.]” He opines that Clayton is 20 “not simply incompetent legally, he would be unable to care for himself or manage basic self care, were he not in a structured environment …. [because even though he] can shower, groom, eat, walk, it is his comprehension, judgment, memory, limited intelligence and social deficits that plague him.” Dr. Foster’s opinions are not credible because the issue is not whether Clayton is competent in the sense of whether he can care for himself, or even whether Clayton suffers from deficits in comprehension, judgment, memory, or intelligence. The issue is whether Clayton can comprehend the reasons for his death sentence and its implications. Panetti, 551 U.S. at 957. Put another way, the issue is whether Clayton has a rational understanding of the punishment he is about to suffer and why he is to suffer it. Id. This is because the Eighth Amendment only prohibits Clayton’s execution if he suffers from gross delusions that impair his “concept of reality [such] that he cannot reach a rational understanding of the reason for the execution.” Id. at 958. Dr. Foster does not opine that Clayton suffers from the “gross delusions” of the sort described in Panetti. In fact, the only thing Dr. Foster says about Clayton’s understanding of his impending execution is in the penultimate paragraph of his 2015 letter in which Dr. Foster asserts: “I do not find him competent to appreciate the purpose of his pending execution as addressed in Panetti[.]” Dr. Foster does not attempt to substantiate this assertion, and it is not supported by the remainder of his January 2015 letter. 2 2 Regarding Dr. Foster’s reliance on Dr. Preston’s 2005 conclusions as to Clayton’s inability to assist his counsel, Dr. Foster fails to note that the District Court specifically rejected those conclusions and found them to be inconsistent with the remainder of Dr. Preston’s report. 21 B. Dr. Preston Dr. Preston examined Clayton in 2005 at the request of the District Court in which Clayton’s federal habeas petition was being heard. As discussed above, the District Court thoroughly reviewed Dr. Preston’s report and relied heavily upon it in reaching the conclusion that Clayton was competent to participate in federal habeas proceedings. In so holding, the District Court reasoned that the standard for competence to proceed with habeas must require greater abilities than the minimal standard for competence to be executed. Dr. Preston’s report exhibits this same understanding because, even though Dr. Preston’s ultimate opinion was that Clayton was not competent to proceed with his habeas petition, she had no doubt that Clayton was competent to be executed. 5) Does Mr. Clayton understand that he is to be executed and the reason for the execution (i.e., the killing of Officer Christopher Castetter)? Yes. Mr. Clayton was fully aware of the fact that he had been convicted of murdering Officer Christopher Castetter. Additionally, he expressed the understanding that he had been sentenced to death for this crime. According to Mr. Clayton, the method of execution for the state of Missouri is lethal injection. Dr. Preston’s report at p. 68. Based on this conclusion, as well as the objective test results and subjective studies of Clayton described throughout Dr. Preston’s report, the District Court rejected Clayton’s claim that he was not competent to be executed. The District Court denied a certificate of appealability on this claim, holding that no reasonable jurist could disagree about this conclusion. 22 This Court agrees. Though the District Court’s decision that Clayton was competent to be executed in 2006 does not dispose of the question now before this Court, Dr. Preston’s concessions and the other data in her 2005 report are still applicable and have been endorsed in the last two months by Dr. Foster and Dr. Logan. With no compelling evidence of any material change in his competence, this Court can reach no different conclusion from the one reached by the District Court in 2006. C. Dr. Logan Like Dr. Foster, Dr. Logan was brought in to render an opinion as to Clayton’s competency to be executed in light of his execution date in 2008. Unlike Dr. Foster, however, Dr. Logan was not involved in Clayton’s federal habeas or earlier state proceedings. After spending three and a half hours with Clayton and reviewing the voluminous mental health records amassed in earlier proceedings, Dr. Logan opined that Clayton was not competent to be executed. Like the other experts, however, the details of Dr. Logan’s 2008 report do not support – and in some places contradict – this conclusion. In particular, he states: Mr. Clayton believes his conviction was the result of a conspiracy by the legal system against him and that someone else killed Deputy Castetter. Furthermore, despite knowing he is facing his last appeal, he firmly believes God will intervene and his execution will not occur…. While Mr. Clayton knows the State plans to execute him for killing Deputy Castetter, he believes his legal situation is instead a test of his faith and that God will not allow the punishment to occur as God has chosen him for another mission. In 2013, Dr. Logan was asked to update his findings. He first summarized his findings from 2008, stating that Clayton “only knew concretely that the State planned to 23 execute him for killing Deputy Castetter, but belives [sic] this is only a test of his faith and would not occur.” Because Clayton’s “head trauma, documented on MRI, will never change,” and because Clayton’s delusional ideas are “fixed and unchangeable,” Dr. Logan found “no reason to change my previous 2008 opinion[.]” He stated: When examined on September 14, 2012 Mr. Clayton’s thoughts were tangential. He still believed God would intervene and he would one day be a gospel singer and evangelist. He continues to believe he was unjustly convicted and will never be executed. He just tries to get along with others and has asked God to work on his case. He does know his attorneys are working to get him off the capital punishment unit and then have a new trial. Past this point he has no understanding of the issues in his proceedings. On January 7, 2015, Dr. Foster again stated that “Mr. Clayton’s mental state has changed little since my earlier evaluations in 2008 and 2013.” His view of his conviction is that he is the victim of a conspiracy. His mood varies from anxiety to paranoia. He still engages in delusional denial that his execution will take place relying on divine intervention in some form so he can pursue a gospel ministry as a preacher and sing with the best pianist in Missouri with whom he will tour the nation. Even though he concludes that Clayton “lacks the capacity to understand matters in extenuation [or] arguments for executive clemency,” Dr. Logan admits that, “[i]n this regard, he [Clayton] accepts that God may choose to work through his defense team[.]” Dr. Logan’s opinions about Clayton are not credible for the same reasons that the Court refused to credit the substantially similar opinions he offered in Middleton III. There, too, Dr. Logan opined that Middleton was incompetent to be executed because, even though “Middleton can recite the reason it [his death sentence] was imposed, he in fact believes his conviction was the result of a conspiracy.… Furthermore, he shows 24 little to no emotional reaction to his impending execution date but instead believes he will not die while incarcerated but will be cleared on the charges and return to the community.” Middleton III, 435 S.W.3d at 84. Dr. Logan’s opinions about Middleton, however, did not even purport to describe the sort of “gross delusions” that would prevent Middleton from “comprehending the meaning and purpose of the punishment to which he has been sentenced.” Id. (quoting Panetti, 551 U.S. at 960). Accordingly, this Court held: Nothing in Dr. Logan’s statement, or in the other proof submitted with Middleton’s petition, even approaches a substantial threshold showing that Middleton suffers from such delusions. Instead, at most, they show that Middleton is delusional as to his innocence and his chances of escaping execution. Middleton plainly understands he is to be executed as punishment because he was found guilty of murdering his three victims; he simply believes he should not have been convicted. Nothing in Panetti or Ford suggests that an inmate is incompetent to be executed only if he both understands why he is being executed and agrees that the sentence is justified. Id. at 85. Even though Clayton has a severe brain injury and Middleton did not, Dr. Logan’s assessment of the effects of Clayton’s injury on his competence to be executed is fundamentally the same as his assessment of Middleton’s competence to be executed. Dr. Logan concluded they were both incompetent because they both believed they were wrongfully convicted and they both believed their sentences would never be carried out. But being “delusional as to his innocence and his chance of escaping execution” did not mean that Middleton was incompetent to be executed. Id. Accordingly, those same 25 delusions do not constitute a sufficient threshold showing that Clayton is incompetent to be executed. D. Other Evidence The Court has reviewed the remaining evidence submitted in support of Clayton’s petition, nearly all of which was reviewed by, described, and relied upon by one or more of Clayton’s three experts (i.e., Drs. Foster, Logan and Preston). None of this other evidence, either singly or in combination with the opinions of Clayton’s experts, establishes the sort of threshold showing required by Ford and Panetti. This evidence confirms the facts the experts describe, i.e., that Clayton continues to suffer effects from his 1972 brain injury but Clayton also understands that he was convicted of murdering Deputy Castetter and that he is to be executed for that crime. For example, during telephone calls to his relatives, Clayton poignantly explains that his execution is being scheduled and that – unless that execution is stopped – he will die for murdering Deputy Castetter. He explains that he will appear before a parole board as part of his clemency process and that he understands that the purpose of that appearance is to explain why he should not be executed. Clayton then recites those circumstances surrounding the crime which he believes demonstrate his innocence. Even though Clayton does not believe he is guilty, and even though he believes he will be spared execution, these calls confirm that Clayton knows – if he is not spared – that he is going to be executed for this murder. In addition, in September 2014, at the request of the director of the department of corrections, the director of the department of mental health had James Reynolds, M.D., a 26 forensic psychiatrist, perform an evaluation of Clayton’s competence to be executed. Dr. Reynolds’ report confirms the Court’s conclusions set forth above. For example, he concludes that “Mr. Clayton’s religious beliefs, and his faith that God will intervene in some fashion to prevent his execution, do not represent delusional thinking.” Respondent’s Exhibit A at p. 9. Despite his beliefs, Dr. Reynolds explains that Clayton understands God may not spare him from execution, and Clayton is comfortable with that possibility. Clayton told Dr. Reynolds that, “if he [God] don’t, it won’t be his fault. I will take my chances with God.” Id. Dr. Reynolds also explains that, not only is Clayton aware of the implications his death sentence holds for him, Clayton has grown weary of the stress of waiting and not knowing. Viewed in that context, Dr. Reynolds concludes that Clayton has a realistic understanding that God may not spare him and, therefore, his faith that He can (and may) do so is not delusional. We were discussing the efforts of his attorneys to help him avoid the death penalty and the role that my evaluation and those of others might play in that process. Mr. Clayton stated “if it [my report] don’t help me then it don’t matter to me. I want an honest evaluation.” He then added “it matters a lot to get off of capital punishment. I’ve had that hanging over my head for years. It would give me some relief in other words. It’s been seventeen or eighteen years. You wouldn’t want them to take a needle and put it in your arm and kill you, would you?” In my opinion, an individual who is delusional about the certainty of God rescuing him from the death penalty would not likely show so much feeling when discussing his fear of the sentence being executed. Id. at 9-10. Similarly, Dr. Reynolds recounts Clayton’s description of the circumstances of Deputy Castetter’s murder in 1996, as well as Clayton’s explanation regarding those facts 27 which he believes demonstrate his innocence. In the end, however, Dr. Reynolds concluded: “Mr. Clayton’s words to me in this area of discussion did not have the character of a delusional belief about his being falsely accused of the crime…. He merely claimed that he did not harm the deputy. Certainly it is not uncommon for criminal defendants to deny their guilt even in the face of overwhelming evidence. Such denial does not equate to delusional mental illness.” Id. at 11. Dr. Reynolds does not opine – and this Court does not believe – that Clayton is perfectly normal or that his 1972 brain injury does not affect him to this day. Clearly it does. Dr. Reynolds diagnosed Clayton as having several disorders in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (“DSM-IV”), including DSM 294.1 (“Dementia Due to General Medical Condition,” i.e., traumatic brain injury, a small stroke, and possible age-related decline); DSM 296.32 (“Major depression – currently mild to low-moderate in severity”); DSM 293.82 (“Psychotic Disorder Due to General Medical Condition,” i.e., traumatic brain injury). Id. at 8. But, on the question of whether any single one, or a combination, of these mental diseases, “giv[es] reasonable cause to believe that Mr. Clayton is lacking in capacity to understand the nature and purpose of the punishment he is under sentence to receive,” Dr. Reynolds responds: “It is my opinion, to a reasonable degree of medical certainty, that they do not.” Id. at 10. He states unequivocally that Clayton “clearly is aware that he is under sentence of death for being convicted of shooting and killing Deputy Castetter. He indicated to me in what I consider an unequivocal fashion during the [initial] interview of June 26, 2014, that he understands that he is under the threat of 28 execution, that this will result in his death, and he communicated this to me with considerable feeling.” Id. at 11. E. Matters in Extenuation and Clemency Clayton also claims that, even if he is competent to be executed under Ford and Panetti, he does not meet the standard for competence in section 552.060.1, RSMo 2000, which requires that he be able to understand “matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out.” The Court rejects this claim. As described above, this Court found in Clayton II that there was no basis to suspect that Clayton was unable to assist counsel appropriately at (and prior to) his original trial. Clayton II, 63 S.W.3d at 209. During his federal habeas proceedings, the District Court found that Clayton was competent to assist counsel with those proceedings. Competency Order at 15-18. This finding was based on the extensive testing and evaluation by Dr. Preston, who found that Clayton’s “cognitive deficits did not appear to negatively impact his ability to understand his legal proceedings.” Dr. Preston’s Report, at p. 30. The District Court relied extensively on Dr. Preston’s conclusions that Clayton had “no significant impairment in memory” and could – with some work – communicate effectively with counsel. Competency Order at pp. 17, 15 (citing Dr. Preston’s report at pp. 26-28). Clayton provides no evidence that these capabilities have declined materially since 2006 and that, as a result of that decline, his counsel have been unable to prepare a clemency application on his behalf. As the District Court held, the question of whether 29 an inmate is competent to assist in his defense must be analyzed in light of the proceedings underway at the time and the demands those proceedings place on the inmate’s memory and ability to communicate. Competency Order, at 13-15. Greatest prior to and during trial, these demands fall off markedly throughout the appellate, post-conviction, and federal habeas proceedings. At the end of this process, when the issue turns to clemency, there is very little that depends on the defendant suddenly recollecting some new fact that will result in a new argument or ground for clemency. Certainly this is so in this case. Clayton’s life has been chronicled exhaustively by counsel in the nearly two decades since his crime. Counsel have thoroughly mined the original trial for every conceivable legal and factual argument. As the petition in this case shows clearly, there is nothing about Clayton or this crime that has not been known and debated at multiple stages of his legal proceedings. And, as noted above, Clayton’s telephone records and the evaluations of Drs. Foster, Logan and Reynolds show that Clayton recalls the salient details from 1996 quite clearly and is aware that both he and his counsel continue to search for arguments to preclude his execution. Accordingly, even though the effects of his brain injury and increasing age make it more difficult for Clayton, there is no evidence that he is not capable of understanding “matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out” as required by section 552.060.1 2000. F. Clayton is Competent to be Executed For the reasons set forth above, the Court finds that Clayton is competent to be executed. The Court has considered all of the evidence he has submitted and concludes 30 that this evidence – by itself and in light of the evidence submitted by the state – neither satisfies the threshold showing requirement in Ford and Panetti nor shows that Clayton is incapable of understanding arguments for extenuation or clemency as required by section 552.060.1, RSMo 2000. II. Section 552.060.2 is Not Unconstitutional Clayton claims that section 552.060.2, RSMo 2000, is unconstitutional “insofar as it permits the director of the Department of Corrections, a member of the executive branch who is charged with conducting the execution, to determine a prisoner’s competence to be executed.” This claim is denied on the merits. Clayton misperceives the function of section 552.060.2. This subsection provides that, if the director of the department of corrections has reasonable cause to believe an inmate who is sentenced to death is not competent to be executed, “he shall immediately notify the governor who shall forthwith order a stay of execution of the sentence if there is not sufficient time between such notification and time of execution for a determination of the mental condition of such person to be made in accordance with the provisions of this section without such stay.” By its plain language, this statute only pertains to what the director and the governor “shall” do under certain circumstances. It does not establish, define, or enforce any right belonging to the condemned inmate. When this Court issues an execution warrant, the director and the warden of the particular institution are obligated to carry it out. Anytime the director has reasonable cause to believe that a condemned inmate is not competent to be executed, the director can – and indeed must – invoke the procedure in section 552.060.2. The fact that the 31 director does not need this statute to pursue the same course when no execution warrant is outstanding demonstrates that the purpose of section 552.060.2 focuses on when there is a warrant and the inmate, though incompetent to be executed, does not seek to protect himself. Without section 552.060.2, the director and the warden would be trapped between their duty to comply with the warrant by executing the prisoner and their independent constitutional duty not to execute an incompetent inmate. Section 552.060.2 resolves this dilemma and requires the governor to stay the execution. Section 552.060.2 is irrelevant, however, when an inmate claims he is not competent to be executed. As this Court noted in Middleton III, a condemned inmate has a right to raise that issue directly in this Court by filing a petition for writ of habeas corpus. This is the procedure by which a condemned prisoner is permitted to litigate this question, and Clayton does not contend that it is constitutionally deficient to meet that end. Section 552.060.2, on the other hand, is only intended to be invoked by a different party under different circumstances. Accordingly, the Court now expressly holds what was implied in Middleton III, i.e., that section 552.060.2 is not unconstitutional because it does not permit the director to determine whether a prisoner is competent to be executed to the exclusion of (or even as a predicate to) an inmate’s ability to seek a judicial determination on that issue. 32 III. Clayton is not Intellectually Disabled under Atkins Clayton’s final claim is that, because of his significantly sub-average IQ and lack of adaptive skills, he is “intellectually disabled” 3 and, therefore, categorically ineligible for the death penalty under Atkins. As noted above, Clayton already has litigated this claim in his federal habeas proceedings. There, the District Court denied this claim and did not allow an appeal. Clayton III, 2006 WL 1128803, at *43 (noting that Clayton’s expert, Dr. Back, testified that Clayton “was not retarded when she evaluated him in 2000”). Assuming (without deciding) that Clayton’s lack of any intellectual disability is not res judicata based on the decision in the District Court, this Court rejects Clayton’s claim on the merits. Atkins holds that the constitution prohibits the execution of an intellectually disabled person, but Atkins also recognizes that the question of what constitutes intellectual disability is a question of state law. 4 Atkins, 536 U.S. at 317. Missouri law on this issue is established by section 565.030.6, which provides: As used in this section, the terms “intellectual disability” or “intellectually disabled” refer to a condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with continual extensive related deficits and limitations in two or more adaptive behaviors such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional 3 Originally, the United States Supreme Court used the term “mentally retarded” to refer to persons with intellectual disability. In keeping with changes by the American Psychiatric Association and others, the Supreme Court now uses the phrase “intellectual disability” to describe the same condition. See Hall v. Florida, 134 S.Ct. 1986, 1989 (2014) (explaining the change in terminology). 4 The Supreme Court, in Hall, recognizes, however, that the Court determines whether the state standard for "intellectual disability" meets constitutional scrutiny, after being informed by the medical community's diagnostic framework. Hall, 134 S.Ct. 1999-2000. 33 academics, leisure and work, which conditions are manifested and documented before eighteen years of age. § 565.030.6, RSMo Supp 2013. The school records and other evidence provided by Clayton in this case show that he was of average intelligence – or better – before age 18, and this continued at least until his brain injury in 1972. Accordingly, he cannot be “intellectually disabled” as that term is defined in Missouri law. Section 565.030.6, like the analysis Atkins, considers intellectual disability as an immutable characteristic which manifests at or shortly following birth and, therefore, is necessarily present at the time the defendant committed the crime. Ford and Panetti, on the other hand, analyze incompetence as a disease or defect which can arise after the crime and, therefore, must be evaluated separately at each stage of the proceedings. See Ford, 477 U.S. at 406-07 (“if, after judgment, he [the inmate] becomes of nonsane memory, execution shall be stayed”). See also Goodwin, 191 S.W.3d 20, 33 n.9 (Mo. banc 2006) (holding that, even though Goodwin was not intellectually disabled, he could still claim he is not competent to be executed when his execution date is set). Clayton would eliminate this distinction by arguing that – even though his brain injury does not render him incompetent to be executed under section 552.060.1 or the Eighth Amendment standard under Ford and Panetti – the continuing effects5 of that 5 After his injury in 1972, Clayton’s various “Full Scale IQ” scores are: 75 (in 1980, using the Wechsler Adult Intelligence Scale), 86 (in 1997, using the Wechsler Adult Intelligence Scale Revised), and 71 (in 2005, using the Wechsler Adult Intelligence Scale – Third Edition). These scores all are in the “low average” range of intellectual functioning. Clayton recognizes that these scores all are above the generally recognized cutoff for intellectual disability of 70, and 34 injury nevertheless exempt him from execution because they are “as if” he was intellectually disabled under Atkins. Clayton offers no authority for such an expansion of Atkins, and this Court is not persuaded that such an expansion is justified. Accordingly, the Court finds that Clayton is not intellectually disabled under Missouri law and holds that – because Atkins does not apply to conditions not recognized as intellectual disabilities under state law – Clayton is not categorically excluded from eligibility for the death penalty. All conditions other than those which constitute an intellectual disability under section 565.030.6 must be analyzed in terms of their effect on an inmate’s competence to be executed. As held above, Clayton fails to make a threshold showing that his lacks such competence. Conclusion For the reasons set forth above, Clayton’s petition for a writ of habeas corpus is denied on its merits and Clayton’s accompanying motion for a stay of execution is overruled as moot. _________________________________ Paul C. Wilson, Judge Russell, C.J., Breckenridge, and Fischer, JJ., concur; Stith, J., dissents in separate opinion filed; Draper and Teitelman, JJ., concur in opinion of Stith, J. Clayton does not make a “margin of error” argument of the sort addressed in Hall, 134 S.Ct. at 2001. See also Goodwin, 191 S.W.2d at 31 n.7 (recognizing that IQ test scores are not applied mechanically because IQ scores are only one part of the statutory definition). Moreover, when Dr. Preston administered the competency assessment tests designed for use with intellectually disabled persons, Clayton’s scores “were consistent with presumed competent individuals without mental retardation.” Dr. Preston’s report at p. 26. 35 SUPREME COURT OF MISSOURI en banc STATE EX REL. CECIL CLAYTON, Petitioner, v. CINDY GRIFFITH, in her capacity as WARDEN, POTOSI CORRECTIONAL CENTER, Respondent. ) ) ) ) ) ) ) ) ) ) ) No. SC94841 DISSENTING OPINION Mr. Clayton has a traumatic brain injury that has resulted in the loss of 20 percent of his frontal lobe and has presented reasonable grounds to believe his overall mental condition has deteriorated and he is intellectually disabled under Atkins v. Virginia, 536 U.S. 304, 317, 320 (2002), and Hall v. Florida, 134 S.Ct. 1986, 2001 (2014). Mr. Clayton also has presented reasonable grounds to believe that he is incompetent to be executed and so, under Ford v. Wainwright, 477 U.S. 339 (1986), and Panetti v. Quarterman, 551 U.S. 930 (2007), is entitled to a hearing at which his competence will be determined. This Court, nonetheless, rushes to reject his request for a hearing before a special master at which he can attempt to prove his incompetency claim and his claim that he is intellectually disabled. As explained in more detail below, the majority’s decision to proceed with the execution at this time and in these circumstances violates the Eighth Amendment ban on cruel and unusual punishment. A. Timeliness of Petition for Habeas Relief The majority opinion suggests that one of the reasons why the Court refuses to allow him a hearing is that the request has come so close to the date of execution. But the Ford claim can be made only once an execution date is set, as it is the defendant’s competency at the time of execution that is relevant. This Court set the execution date only on February 6, 2015. Counsel sought relief in federal court and then in this Court during the succeeding 33 days. Counsel can hardly be said to have tarried. As to Mr. Clayton’s claim that he is intellectually disabled, part of his claim is that his brain injury has combined with the lack of treatment while in prison to render him more disabled over time. As time goes on, therefore, his condition has deteriorated. He most recently was examined in January 2015. This Court did not give notice it would decide to start setting executions almost monthly. Counsel could not know which clients they needed to get examined first or whose execution would be set when. But counsel had acted before this Court notified Mr. Clayton on February 6, 2015, that he would be executed just 39 days later. If that execution proceeds as scheduled, it will be the 14th execution this State will have carried out since November 2013 – the Court set three other persons’ executions, but those orders were later stayed by this Court or by the federal courts. All of these executions have been carried out with less than 60-days’ notice. The same group of half a dozen lead counsel, aided by fewer than a dozen co-counsel, 2 represent nearly all of those who have been executed, as well as others as to whom the attorney general of Missouri has filed motions to set execution dates. Recently, this Court has been asked to consider giving six-months’ notice of execution dates because of the difficulties posed by the fact that the same small group of counsel represent nearly all of the death penalty petitioners, making it difficult for them to competently prepare pleadings or to recover from the death of one client, when they are unsuccessful, before turning to the next. Ms. Carlyle, lead counsel for Mr. Clayton, has been lead counsel for three executed defendants in the last year alone – Michael Taylor, executed February 26, 2014; John C. Middleton, executed July 16, 2014; and Leon Taylor, executed just four months ago on November 19, 2014. Two of her other clients have received orders to show cause why execution dates should not be set. To suggest in these circumstances that these dedicated counsel are at fault for not filing papers a few weeks earlier is just plain unreasonable. It is also unreasonable to expect counsel to anticipate and have the ability to file pleadings and conduct needed medical and mitigation research and investigation simultaneously in the face of Missouri’s sudden rush of executions. I turn to a discussion of the substance of Mr. Clayton’s claim. 1 B. Reasonable Grounds to believe Mr. Clayton is Intellectually Disabled In Atkins the United States Supreme Court held that no legitimate penological purpose is served by executing a person who is “mentally retarded.” 2 Therefore, Atkins 1 I do not respond to the majority’s sua sponte decision to revisit Mr. Clayton’s trial, appeal and earlier post-trial proceedings because the issues now raised by Mr. Clayton do not involve those proceedings. 3 held, to execute an intellectually disabled person would violate the Eighth Amendment. 536 U.S. at 317, 320. Atkins left “to the States the task of developing appropriate ways to enforce the constitutional restriction.” Id. at 317. But the constitutional restriction bars execution of the disabled; the constitutional protection is not narrowed just because some states may not enact a statute that encompasses all intellectually disabled persons. Missouri, like other states, passed legislation to comply with Atkins’ mandate. Missouri’s statute bars the execution of persons with an “intellectual disability,” which section 565.030.6, RSMo Supp. 2014, defines as: [A] condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with continual extensive related deficits and limitations in two or more adaptive behaviors such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, which conditions are manifested and documented before eighteen years of age. Florida also passed legislation to comply with Atkins’ mandate. Florida law defines intellectual disability as “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18,” and defines “significantly subaverage general intellectual functioning” as “performance that is two or more standard deviations from the mean score on a standardized intelligence test,” with the mean IQ test score as 100. Id. at 1994. 2 Being found “mentally retarded” now is referred to as being “intellectually disabled,” and the latter term will be substituted for “mentally retarded” for the remainder of this opinion. 4 In Hall, Mr. Hall committed a murder in Florida for which he was subject to the death penalty. 134 S. Ct. at 1991. But Mr. Hall claimed that he was ineligible for the death penalty because he was intellectually disabled. He had an IQ test score of 71. The question was whether this qualified him for a hearing as to whether he was intellectually disabled. The Florida Supreme Court interpreted the meaning of its statute narrowly. It held that a score of 70 was two standard deviations below a score of 100, and this made 70 a strict IQ cut-off. Therefore, Florida held, “a person whose test score is above 70, including a score within the margin for measurement error, does not have an intellectual disability and is barred from presenting other evidence that would show his faculties are limited.” Id. at 1994. In fact, Florida held: Pursuant to this mandatory cutoff, sentencing courts cannot consider even substantial and weighty evidence of intellectual disability as measured and made manifest by the defendant’s failure or inability to adapt to his social and cultural environment, including medical histories, behavioral records, school tests and reports, and testimony regarding past behavior and family circumstances. This is so even though the medical community accepts that all of this evidence can be probative of intellectual disability, including for individuals who have an IQ test score above 70. Id. The United States Supreme Court reversed and remanded. Id. at 2001. In doing so, the Supreme Court explained that the Florida Supreme Court disregarded established medical practice in two ways. Id. at 1995. First, the Florida Supreme Court took “an IQ score as final and conclusive evidence of a defendant’s intellectual capacity, when experts in the field would consider other evidence.” Id. This was error. In determining whether an individual is intellectually disabled, the Supreme Court stated, other factors regarding an individual’s adaptive functioning must be considered in addition to IQ, such 5 as evidence of past performance, environment, and upbringing. Id. at 1995-96. Therefore, “when a defendant’s IQ test score falls within the test’s acknowledged and inherent margin of error, the defendant must be able to present additional evidence of intellectual disability, including testimony regarding adaptive deficits.” Id. at 2001. Second, and interrelated with the first reason, the Florida Supreme Court relied “on a purportedly scientific measurement of the defendant’s abilities, his IQ score, while refusing to recognize that the score is, on its own terms, imprecise.” Id. at 1995. The Supreme Court said that many medical professionals agree that an IQ score should be considered a range rather than a fixed score, and such a range reflects the “standard error of measurement.” Id. Although Hall’s score was 71, the margin of error meant his score fell in a range between 66 and 76, creating the possibility that the defendant’s actual IQ was below 70. Id. But the Florida Supreme Court “used the test score as a fixed number, thus barring further consideration of other evidence bearing on the question of intellectual disability.” Id. at 1996. Hall held this was improper, and the Supreme Court remanded for a factual determination as to whether Mr. Hall was competent. Here, as in Hall, Cecil Clayton most recently has posted an IQ score of 71. The majority does not deny that if Clayton had a score of 66, or some other score below 70, he would be entitled to a hearing as to his intellectual disability. But, because his score is 71, it says he does not. This is exactly what the Supreme Court in Hall disallowed! The majority tries to get around this issue by saying in a footnote that the “margin of error” argument was not raised. It is not clear why the majority would want to execute 6 an intellectually disabled man regardless of whether the claim was preserved. To do so would be manifestly unjust. In any event, the issue is not one that is waivable for multiple reasons. First, it is not an error that must be raised to be preserved. It is just a scientific fact, a definition, of what is meant by a score of 70 – it means a range with 70 at its center. Margins of error are inherent in the testing, not a legal issue to be preserved. That is what Hall was all about. Second, if Mr. Clayton is intellectually disabled, then the Eighth Amendment makes him ineligible for execution. Would the majority hold that if a 14-year-old had failed to raise his age at trial or in post-trial proceedings then it would be permissible to execute him for a crime he committed while he was a minor? Of course not; his age would make him ineligible for execution. So too, here, if Mr. Clayton is intellectually disabled, then he is ineligible for execution. Hall held that: “The death penalty is the gravest sentence our society may impose. Persons facing that most severe sanction must have a fair opportunity to show that the Constitution prohibits their execution.” Hall, 134 S. Ct. at 2001 (emphasis added). Mr. Clayton deserves a hearing here. The majority also suggests that Mr. Clayton does not need a hearing, despite Hall, because Mr. Clayton presented evidence of his lack of competency at trial and it was rejected. But the issue here is not whether Mr. Clayton was sufficiently competent to assist in his defense or to be found guilty when he was convicted in 1996. The issue is whether Mr. Clayton is sufficiently competent today to be executed. Mr. Clayton alleges that his lack of treatment during his incarceration has worsened his condition. His 2004 7 IQ score of 71 has never been seen by a jury or considered by a Missouri court in an evidentiary hearing, and neither have the expert opinions given since his post-conviction hearing, opinions that support a finding of intellectual disability. Mr. Clayton’s score of 71 is within the standard error of measurement and Hall constitutionally requires that he be given a hearing to present evidence of impairments in both his intellectual and adaptive functioning. The majority further suggests that if intellectual disability is an issue it must reach, it factually finds, from its own review of the record, that Mr. Clayton is not intellectually disabled and, therefore, will not give him a hearing. But that puts the cart before the horse. He needs to have the hearing before the Court can reject (or, there is always the possibility that the majority would accept) the evidence he presents at it. Mr. Clayton having shown he has an IQ score of 71, within the range of a score that is below 70, is entitled to a hearing at which he has opportunity to prove that intellectual disability before a fact-finding body, which this Court is not, at which he is entitled to present “other factors regarding an individual’s adaptive functioning that must be considered in addition to IQ, such as evidence of past performance, environment, and upbringing.” Hall, 134 S. Ct. at 1995-96. The majority finally suggests that a Hall hearing need not be held because it is not mandated by Missouri’s statute, section 565.030.6, which defines “intellectual disability” as a disability that manifests itself before the age of 18. But Mr. Clayton’s principal claim is not that he is entitled not to be executed under section 565.030.6. His claim is that he is entitled to relief under the Eighth Amendment as interpreted and applied in 8 Atkins and Hall. Section 565.030.6 simply sets out the circumstances in which the legislature determined that a person is intellectually disabled. The legislature did not state that no one can become intellectually disabled after age 18, for to do so would be absurd. Of course people can become disabled later in life. In any event, the presumptive purpose of requiring a disability to manifest itself by age 18 is to preclude later faking of intellectual disability. Here, there is no factual dispute that Clayton suffered a brain injury and lost 20 percent of his frontal lobe, and that his IQ went down thereafter and long prior to the murder, so those concerns are not present. Whatever section 565.060 says, it is axiomatic that the Eighth Amendment applies to all persons, so that under it a person who becomes intellectually disabled after age 18 may also seek relief from execution. Indeed, while, as the majority notes, Atkins left “to the States the task of developing appropriate ways to enforce the constitutional restriction,” 536 U.S.at 317, Hall makes it clear that what is “appropriate” is limited by the Eighth Amendment. This is because the Atkins mandate that it is unconstitutional to execute someone who is intellectually disabled does not depend on when an intellectual disability manifested, but on whether an intellectual disability exists. It is not merely a statutory right and in fact this Court by rule barred the execution of individuals with intellectual disabilities before the statute was adopted. The right of an intellectually disabled person not to be executed is a human right protected by the Eighth Amendment. Mr. Clayton is entitled to a hearing before a master on his claim of intellectual disability. 9 C. Mr. Clayton is Entitled to a Hearing under Ford v. Wainwright. Clayton also invokes his right to a competency hearing prior to his execution under Ford and Panetti. Indeed, the majority acknowledges that Ford requires a competency hearing when the defendant makes a showing that he does not understand the reason for his execution. But, it says, that is the only circumstance in which Ford or Panetti require a competency hearing. The majority opinion is wrong. In Panetti, the Supreme Court explicitly held that merely being aware of the rationale for the execution – a murder – is not adequate to meet the required standard of competency, the prisoner must also understand the rationale for his execution. As Panetti stated: We … find no support … in Ford, including in its discussions of the common law and the state standards, for the proposition that a prisoner is automatically foreclosed from demonstrating incompetency once a court has found he can identify the stated reason for his execution. A prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it. Ford does not foreclose inquiry into the latter. Panetti, 551 U.S. at 959 (emphasis added). Further, Missouri has enacted a statute that spells out in greater detail what the Ford inquiry requires. Section 552.060.1 states: “No person condemned to death shall be executed if as a result of mental disease or defect he lacks capacity to understand the nature and purpose of the punishment about to be imposed upon him or matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out.” (Emphasis added). The majority simply ignores the requirement that, unless Mr. Clayton understands the rationale for his execution and matters “in extenuation, arguments for executive 10 clemency or reasons why the sentence should not be carried out,” then he is not competent to be executed. But shutting its eyes to this requirement does not make it go away. The majority is also incorrect in suggesting that this Court can now decide on the present record whether Mr. Clayton is competent and as it finds he is, he does not need a hearing. That, again, puts the cart before the horse. The only issue for this Court is whether Mr. Clayton has presented reasonable grounds that, if believed, demonstrate he lacks the competency to be executed. If so, then this Court must allow a hearing at which a factual determination can be made. No such hearing has been held in a Missouri court. The record before this Court presents reasonable grounds to believe that Mr. Clayton can meet the Panetti or section 552.060.1 standard. As Dr. Logan noted after his examination of Mr. Clayton in January of this year: Mr. Clayton due to his delusional denial, lacks the capacity to understand matters in extenuation, arguments for executive clemency or any reasons his attorneys might present as to why his sentence should not be carried out. Another report states: While Mr. Clayton knows the State plans to execute him for killing Deputy Castetter, he believes his legal situation is instead a test of his faith and that God will not allow the punishment to occur as God has chosen him for another mission. Hence, he has no concept of a need for clemency, or capacity to understand matters in extenuation, arguments for executive clemency or rational reasons why the sentence should not be carried out. And Dr. Foster, whose testimony the majority much discusses, states that Mr. Clayton: … remains, as he has been since I first met him, unable to fully participate, cooperate or comprehend his legal status, process and final, pending deliberations. While he can superficially seem intact, extended contact or 11 observation exposes his multiple deficits, which continue their slow deterioration, despite the structured, secure setting in which he has resided over the past two decades. He is not simply incompetent legally, he would be unable to care for himself or manage basic self care, were he not in a structured environment that takes care of him. He can shower, groom, eat, walk, it is his comprehension, judgment, memory, limited intelligence and social deficits that plague him. I do not find him competent to appreciate the purpose of his pending execution as addressed in Panetti v. Quarterman and Ford v.Wainwright, should it not be stayed by the State of Missouri or the Federal Court. He can replicate elements of the fact that an execution follows a conviction for first degree murder, though still does not comprehend, appreciate nor understand its approaching date for him. The special master may or may not believe these experts, or Mr. Clayton’s other evidence and experts, but Dr. Foster’s expert opinion, particularly as supported by Mr. Clayton’s 2004 IQ score of 71, presents reasonable grounds for a hearing. Mr. Clayton should be allowed the opportunity to convince the special master that he is ineligible for execution because he is intellectually disabled or because he does not have a rational understanding of the reasons for his execution and does not have the capacity to understand matters in extenuation, arguments for executive clemency or rational reasons why the sentence should not be carried out. The denial of such a hearing deprives Mr. Clayton of a fair opportunity to show that the Constitution prohibits his execution. For the foregoing reasons, I dissent. ___________________________ LAURA DENVIR STITH, JUDGE 12 State v. Clayton Mo.,1999. Supreme Court of Missouri,En Banc. STATE of Missouri, Respondent, v. Cecil L. CLAYTON, Appellant. No. 80545. June 29, 1999. Rehearing Denied Aug. 3, 1999. Defendant was convicted in the Circuit Court, Jasper County, C. David Darnold, J., of firstdegree murder for killing a deputy sheriff, and sentenced to death. Defendant appealed. The Supreme Court, Price, J., held that: (1) venireperson's statement that he was unsure whether he could vote for death and that he could do so only in “extreme cases” provided basis to excuse venireperson for cause; (2) probable cause existed for warrantless arrest of defendant for firstdegree murder; (3) photograph of victim of prior assault committed by defendant, depicting victim's face and bloody shirt, was admissible at penalty phase to show nature and extent of assault victim's injuries; (4) penalty phase instruction listing non-statutory mitigating circumstances was not warranted; (5) prosecutor's closing argument during penalty phase that punishment should fit crime amounted to proper argument in retaliation to defense counsel's statement that punishment should fit criminal. Affirmed. West Headnotes [1] Criminal Law 110 1144.13(2.1) 110 Criminal Law 110XXIV Review 110XXIV(M) Presumptions 110k1144 Facts or Proceedings Not Shown by Record 110k1144.13 Sufficiency of Evidence 110k1144.13(2) Construction of Evidence 110k1144.13(2.1) k. In General. Most Cited Cases Supreme Court reviews the evidence presented at trial in the light most favorable to the verdict. [2] Criminal Law 110 661 110 Criminal Law 110XX Trial 110XX(C) Reception of Evidence © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 110k661 k. Necessity and Scope of Proof. Most Cited Cases Criminal Law 110 1153.1 110 Criminal Law 110XXIV Review 110XXIV(N) Discretion of Lower Court 110k1153 Reception and Admissibility of Evidence 110k1153.1 k. In General. Most Cited Cases (Formerly 110k1153(1)) The trial court is vested with broad discretion to admit and exclude evidence at trial; error will be found only if this discretion was clearly abused. [3] Criminal Law 110 1162 110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1162 k. Prejudice to Rights of Party as Ground of Review. Most Cited Cases On direct appeal the Supreme Court reviews the trial court for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial. [4] Criminal Law 110 1030(1) 110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1030 Necessity of Objections in General 110k1030(1) k. In General. Most Cited Cases Issues that were not preserved may be reviewed for plain error only, requiring the court to find that manifest injustice or miscarriage of justice has resulted from the trial court error. [5] Jury 230 97(1) 230 Jury 230V Competency of Jurors, Challenges, and Objections 230k97 Bias and Prejudice 230k97(1) k. In General. Most Cited Cases Venirepersons may be excluded from the jury when their views would prevent or substantially impair their ability to perform their duties as jurors in accordance with the court's instructions and their oath. © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. [6] Jury 230 108 230 Jury 230V Competency of Jurors, Challenges, and Objections 230k104 Personal Opinions and Conscientious Scruples 230k108 k. Punishment Prescribed for Offense. Most Cited Cases A juror may be stricken for cause if it appears that he or she cannot consider the entire range of punishment, apply the proper burden of proof, or otherwise follow the court's instructions in a first-degree murder case. [7] Jury 230 132 230 Jury 230V Competency of Jurors, Challenges, and Objections 230k124 Challenges for Cause 230k132 k. Evidence. Most Cited Cases The qualifications of a prospective juror are not determined conclusively by a single response, but are made on the basis of the entire examination. [8] Jury 230 85 230 Jury 230V Competency of Jurors, Challenges, and Objections 230k85 k. Discretion of Court. Most Cited Cases The trial court is in the best position to evaluate a venireperson's commitment to follow the law and is vested with broad discretion in determining the qualifications of prospective jurors. [9] Jury 230 108 230 Jury 230V Competency of Jurors, Challenges, and Objections 230k104 Personal Opinions and Conscientious Scruples 230k108 k. Punishment Prescribed for Offense. Most Cited Cases Venireperson's statement that he was unsure whether he could vote for death and that he could do so in only “extreme cases” provided basis to excuse venireperson for cause, in prosecution for first-degree murder. [10] Jury 230 85 230 Jury 230V Competency of Jurors, Challenges, and Objections 230k85 k. Discretion of Court. Most Cited Cases A trial court's determination whether to excuse a juror for cause is not dependent upon a © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. technical evaluation of the venireperson's use of “magic” words; instead, it is heavily weighted to the impressions of the trial court and the exercise of the court's judgment and discretion. 108 [11] Jury 230 230 Jury 230V Competency of Jurors, Challenges, and Objections 230k104 Personal Opinions and Conscientious Scruples 230k108 k. Punishment Prescribed for Offense. Most Cited Cases Venireperson's statement that she would require the prosecutor to prove the case beyond all possible doubt before she could consider the death penalty and would not be able to sign a death verdict if she were to serve as the foreperson provided basis to excuse venireperson for cause, in prosecution for first-degree murder. 108 [12] Jury 230 230 Jury 230V Competency of Jurors, Challenges, and Objections 230k104 Personal Opinions and Conscientious Scruples 230k108 k. Punishment Prescribed for Offense. Most Cited Cases A juror's equivocation about his ability to follow the law in a capital case, together with an unequivocal statement that he could not sign a verdict of death, can provide a basis for the trial court to exclude the venireperson from the jury. [13] Arrest 35 63.4(11) 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(7) Information from Others 35k63.4(11) k. Other Officers or Official Information. Most Cited Cases Arrest 35 63.4(12) 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(7) Information from Others 35k63.4(12) k. Identification or Description of Offender or Vehicle. Most Cited Cases © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 63.4(13) Arrest 35 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(13) k. Personal Knowledge or Observation in General. Most Cited Cases 63.4(15) Arrest 35 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(15) k. Appearance, Acts, and Statements of Persons Arrested. Most Cited Cases Probable cause existed for warrantless arrest of defendant, where two of three officers who responded to dispatch describing defendant's truck found third officer who was shot, dispatcher advised other officers of injury and to watch for truck, another officer recognized description of truck as belonging to defendant and arrived at defendant's home just as he arrived, officers were familiar with defendant's reputation for violence, passenger in truck told officers defendant had a gun, and officers located gun in stack of cement blocks where defendant was seen placing something. U.S.C.A. Const.Amend. 4. [14] Arrest 35 63.4(2) 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(2) k. What Constitutes Such Cause in General. Most Cited Cases Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person' s belief that a suspect has committed an offense. [15] Arrest 35 63.4(2) 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(2) k. What Constitutes Such Cause in General. Most Cited Cases Whether there is probable cause to arrest depends on the information in the officers' possession © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. prior to the arrest. [16] Arrest 35 63.4(2) 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(2) k. What Constitutes Such Cause in General. Most Cited Cases There is no precise test for determining whether probable cause to arrest existed; rather, it is based on the particular facts and circumstances of the individual case. [17] Arrest 35 63.4(11) 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(7) Information from Others 35k63.4(11) k. Other Officers or Official Information. Most Cited Cases Probable cause is determined by the collective knowledge and the facts available to all of the officers participating in the arrest; the arresting officer does not need to possess all of the available information. [18] Sentencing and Punishment 350H 1767 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)2 Evidence 350Hk1755 Admissibility 350Hk1767 k. Documentary Evidence. Most Cited Cases (Formerly 203k358(1)) Photograph of victim of prior assault committed by defendant, depicting victim's face and shirt covered with blood, was admissible at penalty phase of capital murder case to show nature and extent of assault victim's injuries, where officer that investigated assault testified that photograph was fair and accurate representation of victim after assault and that victim suffered only a bloody nose and no broken bones. [19] Sentencing and Punishment 350H 1752 350H Sentencing and Punishment 350HVIII The Death Penalty © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 350HVIII(G) Proceedings 350HVIII(G)2 Evidence 350Hk1752 k. Discretion of Court. Most Cited Cases (Formerly 110k1208.1(6)) The trial court is vested with broad discretion in determining the admissibility of photographs and other evidence offered at the penalty stage of a capital case. [20] Sentencing and Punishment 350H 1756 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)2 Evidence 350Hk1755 Admissibility 350Hk1756 k. In General. Most Cited Cases (Formerly 110k1208.1(6)) The sentencer in a capital case is entitled to any evidence that assists in assessing a penalty of death. [21] Sentencing and Punishment 350H 1760 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)2 Evidence 350Hk1755 Admissibility 350Hk1760 k. Defendant's Character and Conduct. Most Cited Cases (Formerly 110k1208.1(6)) Sentencing and Punishment 350H 1762 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)2 Evidence 350Hk1755 Admissibility 350Hk1762 k. Other Offenses, Charges, or Misconduct. Most Cited Cases (Formerly 110k1208.1(6)) At the penalty phase of a capital case, both the state and the defense may introduce evidence of the defendant's character, including evidence of other crimes. [22] Sentencing and Punishment 350H 1780(3) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)3 Hearing 350Hk1780 Conduct of Hearing 350Hk1780(3) k. Instructions. Most Cited Cases (Formerly 203k311) Penalty phase instruction listing non-statutory mitigating circumstances was not warranted in capital murder case, where instruction given included all the statutory mitigating circumstances to which defendant was entitled, together with a catch-all paragraph advising consideration of other mitigating circumstances supported by evidence. [23] Criminal Law 110 1030(1) 110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1030 Necessity of Objections in General 110k1030(1) k. In General. Most Cited Cases To prevail on plain error review, defendant must show that the trial court's error so substantially violated his rights that manifest injustice or a miscarriage of justice results if the error is not corrected. [24] Criminal Law 110 1037.1(1) 110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1037 Arguments and Conduct of Counsel 110k1037.1 In General 110k1037.1(1) k. Arguments and Conduct in General. Most Cited Cases Relief should be rarely granted on assertion of plain error to matters contained in closing argument, for trial strategy looms as an important consideration and such assertions are generally denied without explication. V.A.M.R. 30.20. [25] Criminal Law 110 2195 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2191 Action of Court in Response to Comments or Conduct © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 110k2195 k. Summing Up. Most Cited Cases (Formerly 110k730(1)) The instructions given to the jury safeguard against harm that might otherwise result from exaggerated closing argument by either prosecutor or defendant. [26] Criminal Law 110 1037.1(1) 110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1037 Arguments and Conduct of Counsel 110k1037.1 In General 110k1037.1(1) k. Arguments and Conduct in General. Most Cited Cases Under plain error review, a conviction will be reversed for improper arguments only when it is established that the argument had a decisive effect on the outcome of trial and amounts to manifest injustice. V.A.M.R. 30.20. [27] Sentencing and Punishment 350H 1780(2) 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)3 Hearing 350Hk1780 Conduct of Hearing 350Hk1780(2) k. Arguments and Conduct of Counsel. Most Cited Cases (Formerly 110k726) Prosecutor's closing argument during penalty phase of capital murder prosecution that the punishment should fit the crime amounted to proper argument in retaliation to defense counsel's statement that the punishment should fit the criminal. [28] Criminal Law 110 2167 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2164 Rebuttal Argument; Responsive Statements and Remarks 110k2167 k. Summing Up. Most Cited Cases (Formerly 110k726) A prosecutor has considerable leeway to make retaliatory arguments at closing. [29] Criminal Law 110 2165 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2164 Rebuttal Argument; Responsive Statements and Remarks 110k2165 k. In General. Most Cited Cases (Formerly 110k726) A prosecutor may retaliate to an issue raised by the defense even if the prosecutor's comment would be improper. 37 [30] Sentencing and Punishment 350H 350H Sentencing and Punishment 350HI Punishment in General 350HI(B) Extent of Punishment in General 350Hk37 k. Necessity That Punishment Be Individualized. Most Cited Cases (Formerly 110k986.2(1)) Sentencing and Punishment 350H 66 350H Sentencing and Punishment 350HI Punishment in General 350HI(D) Factors Related to Offense 350Hk66 k. Nature, Degree or Seriousness of Offense. Most Cited Cases (Formerly 110k986.2(1)) Consideration of both the crime and the criminal is required to determine the appropriate sentence. [31] Criminal Law 110 2098(4) 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2093 Comments on Evidence or Witnesses 110k2098 Credibility and Character of Witnesses; Bolstering 110k2098(4) k. Credibility of Expert Witness. Most Cited Cases (Formerly 110k720(5)) Criminal Law 110 2117 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2102 Inferences from and Effect of Evidence © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 110k2117 k. Homicide and Assault with Intent to Kill. Most Cited Cases (Formerly 110k720(9)) Prosecutor's disparaging “voodoo” reference to testimony of defense expert concerning defendant's inability to make good judgments was proper comment on the evidence and credibility of witness during closing argument in guilt phase of capital murder prosecution. [32] Criminal Law 110 2094 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2093 Comments on Evidence or Witnesses 110k2094 k. In General. Most Cited Cases (Formerly 110k720(1)) Criminal Law 110 2098(1) 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2093 Comments on Evidence or Witnesses 110k2098 Credibility and Character of Witnesses; Bolstering 110k2098(1) k. In General. Most Cited Cases (Formerly 110k720(5)) Prosecutors may comment on the evidence and the credibility of witnesses, even to the point of belittling and/or discussing the improbability of specific testimony. [33] Sentencing and Punishment 350H 1780(2) 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)3 Hearing 350Hk1780 Conduct of Hearing 350Hk1780(2) k. Arguments and Conduct of Counsel. Most Cited Cases (Formerly 110k720(9)) Prosecutor's suggestion that defendant went to home at which he killed deputy sheriff who responded to homeowner's call to commit other crimes was reasonable inference from evidence, and not comment outside the evidence during closing argument in penalty phase of capital murder prosecution, where homeowner was mother of defendant's former girlfriend with whom he had violent encounter earlier in day. [34] Sentencing and Punishment 350H 1780(2) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)3 Hearing 350Hk1780 Conduct of Hearing 350Hk1780(2) k. Arguments and Conduct of Counsel. Most Cited Cases (Formerly 110k723(1)) Prosecutor's brief reference to his experience as a soldier to illustrate under what circumstances a person might be able to kill was proper argument to encourage imposition of death penalty, during closing argument in penalty phase of capital murder prosecution. [35] Criminal Law 110 2159 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2158 Guilt Phase Arguments as to Potential Sentence or Punishment 110k2159 k. In General. Most Cited Cases (Formerly 110k713) Urging a jury to impose the most severe penalty is proper argument. [36] Sentencing and Punishment 350H 1780(2) 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)3 Hearing 350Hk1780 Conduct of Hearing 350Hk1780(2) k. Arguments and Conduct of Counsel. Most Cited Cases (Formerly 110k723(1)) Prosecutor's characterization of defense counsel's request for life sentence instead of death penalty as “preposterous” was proper argument to encourage imposition of death penalty, during closing argument in penalty phase of capital murder prosecution. [37] Criminal Law 110 2165 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2164 Rebuttal Argument; Responsive Statements and Remarks 110k2165 k. In General. Most Cited Cases (Formerly 110k726) © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. It is proper for a prosecutor to retaliate to statements made by defense counsel, even to the point of characterizing a defense theory as “preposterous.” [38] Sentencing and Punishment 350H 1780(2) 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)3 Hearing 350Hk1780 Conduct of Hearing 350Hk1780(2) k. Arguments and Conduct of Counsel. Most Cited Cases (Formerly 110k713) Prosecutor's comment, during closing argument in penalty phase of capital murder prosecution, that all “legal niceties” available to defendant were not available to deputy sheriff he killed was proper argument to highlight defendant's disregard for law and seek most severe punishment, and was not improper criticism of defendant for exercising his legal rights. [39] Criminal Law 110 1036.1(8) 110 Criminal Law 110XXIV Review 110XXIV(E) Presentation and Reservation in Lower Court of Grounds of Review 110XXIV(E)1 In General 110k1036 Evidence 110k1036.1 In General 110k1036.1(3) Particular Evidence 110k1036.1(8) k. Other Offenses and Character of Accused. Most Cited Cases Testimony that defendant's former girlfriend was afraid of defendant on night he killed deputy sheriff provided a complete and coherent picture of crime charged, and thus, defendant did not establish manifest injustice or a miscarriage of justice from its admission, as required under plain error review. [40] Criminal Law 110 406(1) 110 Criminal Law 110XVII Evidence 110XVII(L) Admissions 110k405 Admissions by Accused 110k406 In General 110k406(1) k. In General. Most Cited Cases Testimony of defendant's jail-mates regarding his statements to them about circumstances surrounding his shooting of sheriff's deputy were admissions of the crime, and thus admissible in © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. prosecution for capital murder. [41] Criminal Law 110 412(3) 110 Criminal Law 110XVII Evidence 110XVII(M) Declarations 110k411 Declarations by Accused 110k412 In General 110k412(3) k. Subject Matter as Affecting Admissibility. Most Cited Cases Testimony of defendant's jail-mates regarding his talk of escape was relevant to show defendant's consciousness of guilt, in prosecution for capital murder. [42] Criminal Law 110 371(12) 110 Criminal Law 110XVII Evidence 110XVII(F) Other Offenses 110k371 Acts Showing Intent or Malice or Motive 110k371(12) k. Motive. Most Cited Cases Testimony of defendant's jail-mates regarding his dislike of jail guards and law enforcement officers and his desire to kill them was relevant to establish defendant's motive in shooting sheriff's deputy. [43] Criminal Law 110 1130(5) 110 Criminal Law 110XXIV Review 110XXIV(I) Briefs 110k1130 In General 110k1130(5) k. Points and Authorities. Most Cited Cases Sentencing and Punishment 350H 1789(3) 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)4 Determination and Disposition 350Hk1789 Review of Proceedings to Impose Death Sentence 350Hk1789(3) k. Presentation and Reservation in Lower Court of Grounds of Review. Most Cited Cases (Formerly 203k325) By failing to object to jury instruction on aggravating factors at the penalty phase instruction © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. conference in capital murder prosecution or at any prior time and by failing to set forth the challenged instruction in full in the argument portion of his brief, defendant did not preserve point for review, and thus, review was for plain error only. V.A.M.R. 30.06(e), 30.20. [44] Sentencing and Punishment 350H 1678 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(D) Factors Related to Offense 350Hk1678 k. Extreme or Reckless Indifference. Most Cited Cases (Formerly 203k358(3)) Sentencing and Punishment 350H 1731 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(F) Factors Related to Status of Victim 350Hk1729 Public Official or Employee 350Hk1731 k. Law Enforcement Officer. Most Cited Cases (Formerly 203k358(3)) A finding of aggravating circumstance that defendant killed sheriff's deputy because he was a law enforcement officer was not inconsistent with a finding of aggravating circumstance that he also killed deputy at random and without regard to his identity, absent any evidence that defendant's purpose in killing deputy was specific to his identity as a person, in prosecution for capital murder. [45] Sentencing and Punishment 350H 1678 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(D) Factors Related to Offense 350Hk1678 k. Extreme or Reckless Indifference. Most Cited Cases (Formerly 203k358(3)) Sentencing and Punishment 350H 1731 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(F) Factors Related to Status of Victim 350Hk1729 Public Official or Employee 350Hk1731 k. Law Enforcement Officer. Most Cited Cases (Formerly 203k358(3)) Killing a person merely because that person is a law enforcement officer does not negate a © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. finding of randomness, unless a particular purpose is also found specific to the identity of the individual victim. [46] Sentencing and Punishment 350H 1676 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(D) Factors Related to Offense 350Hk1676 k. Planning, Premeditation, and Calculation. Most Cited Cases (Formerly 203k357(4)) Sentencing and Punishment 350H 1726 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(F) Factors Related to Status of Victim 350Hk1726 k. Vulnerability. Most Cited Cases (Formerly 203k357(4)) Sentencing and Punishment 350H 1731 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(F) Factors Related to Status of Victim 350Hk1729 Public Official or Employee 350Hk1731 k. Law Enforcement Officer. Most Cited Cases (Formerly 203k357(8)) Death sentence for shooting of deputy sheriff in forehead at point-blank range while sheriff was sitting in his squad car was neither excessive nor disproportionate to the penalty imposed in similar cases, in light of other cases imposing death penalty for execution-style shooting of a defenseless victim, and death sentences for killings of peace officers, law enforcement, or correction officers. [47] Sentencing and Punishment 350H 1676 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(D) Factors Related to Offense 350Hk1676 k. Planning, Premeditation, and Calculation. Most Cited Cases (Formerly 203k357(3)) Sentencing and Punishment 350H 1772 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)2 Evidence 350Hk1772 k. Sufficiency. Most Cited Cases (Formerly 203k358(1)) There was sufficient evidence of deliberation to support imposition of death sentence; in addition to testimony from defendant's jail-mates that he admitted to killing sheriff's deputy before deputy had a chance to respond, circumstances of killing showed that deputy was shot in the forehead at point blank range, with his own pistol still in his holster. *472 Deborah B. Wafer,Office of State Public Defender, St. Louis, for Appellant. Jeremiah W. (Jay) Nixon, Atty. General, Cheryl Caponegro Nield, Asst. Atty. General, Jefferson City, for Respondent. WILLIAM RAY PRICE, Jr., Judge. A jury convicted Cecil Clayton of first-degree murder for killing Deputy Sheriff Christopher Castetter. The jury recommended, and the trial court imposed, a death sentence. Clayton now appeals his conviction and the sentence of death. Because Clayton was sentenced to death, we have exclusive jurisdiction over his appeal. MO. CONST. art. V, section 3. We affirm the judgment. I. FACTS Cecil Clayton and Martha Ball had been involved in a romantic relationship and had, at times, lived together. By November 1996, their relationship was coming to an end. On November 27, 1996, Martha asked Clayton to meet her at the Country Corner, a store in Purdy, Missouri. She requested that Clayton bring some important papers she had left at his home. Clayton arrived at the store without the papers. Clayton requested that Martha go with him to his home to obtain the papers but she refused. He left and returned with the papers. Clayton was driving his blue Toyota truck with wooden sides. When Clayton returned with the papers he asked Martha to go out to eat with him. She refused. Clayton became angry, pushed her, and the two began to argue in the store. Barbara Starkey, an employee of the store, noticed the argument and called the Barry County sheriff's department.*473 Jim McCracken, Purdy chief of police, responded to the call and spoke with Clayton. He lingered in the store until after Clayton left. Martha asked Chief McCracken if he would escort her to Cassville where she was staying with her mother, Dixie Seal. Before Chief McCracken could arrange the escort, Martha left the store saying that she was going to a friend's home. Martha then went to Vicky Deeter's home in Monett. Vicky testified that Martha was very scared, pale, and shaking when she arrived at her home. After leaving the Country Corner store, Clayton went to see his friend, Martin Cole, at around © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 9:40 p.m. Clayton asked Martin to go with him. Martin declined because he had to drive a friend to work. Clayton became angry, raised his voice, and left. Martha called Dixie Seal, her mother, at around 9:50 p.m. and advised her sister, Carolyn Leonard, that she was at Vicky's home. Shortly thereafter, Carolyn heard a vehicle outside, its engine running roughly. She observed the vehicle stop, back into the driveway and turn its lights off. Because there were lights across the top of the cab Carolyn surmised that the vehicle was a truck. She phoned Martha and verified that Clayton was driving the truck. Carolyn then telephoned the Barry County sheriff's department and advised them that Clayton was on their property and was not welcome. Deputy Christopher Castetter was dispatched to the Seal residence. He contacted the dispatcher when he arrived at 10:03 p.m. Ralph Paul, Dixie Seal's neighbor, and his son-in-law, Greg Pickert, had also heard and seen the truck in Seal's driveway. Ralph phoned Mrs. Seal to inquire about the truck. They described the vehicle as a truck because of the lights across the top and noticed that it was backed into the driveway and running roughly. Shortly thereafter Ralph and Greg went back outside. The truck was gone and the two noticed a car sitting at an angle with the engine running at a high rate of speed and the tires spinning. Deputies David Bowman and Jason Manning also heard the dispatch regarding the Seal residence and decided to go by the area to assist Deputy Castetter. When they arrived, at approximately 10:06 p.m., Deputy Castetter's patrol car was sitting at an angle against a tree in the driveway. The car's engine was still running at a high rate and the tires were spinning and smoking. Deputy Manning approached the driver's side of the car. The window was rolled down about an inch, but was not broken. He put the car in park and turned off the engine. Deputy Castetter was leaned over in his seat. His seatbelt was not on; his weapon was still snapped in its holster; his flashlight was no longer secured in its cradle. Deputy Manning attempted to assist Deputy Castetter who was bleeding heavily from his head and having trouble breathing. Deputy Bowman contacted the dispatcher at 10:07 p.m. and advised that an ambulance was needed. Deputy Bowman went to Mrs. Seal's home and spoke with Carolyn Leonard and Dixie Seal. Deputy Bowman then contacted the dispatcher and advised that Clayton was believed to have been driving the truck that had been in the driveway. Deputy Castetter was transported to the hospital by helicopter. He had suffered a gunshot wound to the head, about the middle of his forehead. Despite medical treatments, Deputy Castetter died. At about 10:10 to 10:15 p.m., Clayton returned to Martin Cole's house. Clayton asked Martin to accompany him, and the two left in Clayton's truck. While in the truck Clayton asked Cole “would you believe me, if I told you that I shot a policeman, would you believe me?” Clayton described how he shot the “cop” in the head and how Deputy Castetter then hit the accelerator © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. and hit a tree. Clayton then took the weapon out of his overalls, pointed*474 it at Martin's head, and threatened to shoot him. He asked Martin if he thought it was loaded. Clayton told Martin that he wanted him to act as an alibi and tell the police that the two had been together all afternoon and evening watching television. At about 10:15 p.m. Chief McCracken heard a dispatch to be on the lookout for a blue Toyota truck with wooden sides driven by Clayton. McCracken recognized the description of the truck as the one driven by Clayton earlier that evening at the Country Corner store. McCracken met Chief Clint Clark of the Wheaton police department who had also heard the dispatch. The two confirmed Clayton's home address and then went to his residence. Clayton was driving toward his home when he saw the two police cars approaching. He parked in the driveway and asked Martin “should I shoot them?” Martin answered no. The officers activated their car spotlights, and Clayton eventually got out of his truck. The officers identified themselves. Clayton began walking toward the side of his house, advising the officers that he could not hear them. He kept his right hand in his pocket. Clayton refused to remove his hand or approach the officers. He continued toward his house, placed something in a stack of concrete blocks, and returned to his truck. Martin complied with the officers' request to get out of the truck and was apprehended. Clayton was then apprehended and transported to the sheriff's department. Martin advised the officers that Clayton had a gun. The officers located the gun in the stack of concrete blocks next to Clayton's house. Mike Rogers of the Missouri highway patrol interviewed Clayton. Clayton's version of the events varied from complete denial to stating that Deputy Castetter “probably should have just stayed home” and that “he shouldn't have smarted off to me.” Clayton then stated “but I don't know because I wasn't out there.” Following an investigation, Clayton was charged by information in the Circuit Court of Barry County with one count of murder in the first degree and one count of armed criminal action. Venue was transferred from Barry County to Jasper County. A jury found Clayton guilty of murder in the first degree and, finding three aggravating circumstances, recommended that Clayton be sentenced to death for Christopher Castetter's murder. The trial court imposed the death sentence. II. STANDARDS OF REVIEW [1][2] We review the evidence presented at trial in the light most favorable to the verdict. State v. Storey, 901 S.W.2d 886, 891 (Mo. banc 1995). The trial court is vested with broad discretion to admit and exclude evidence at trial. Error will be found only if this discretion was clearly abused. State v. Simmons, 955 S.W.2d 729, 737 (Mo. banc 1997), cert. denied, 522 U.S. 1129, 118 S.Ct. 1081, 140 L.Ed.2d 138 (1998). © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. [3][4] On direct appeal we review the trial court “for prejudice, not mere error, and will reverse only if the error was so prejudicial that it deprived the defendant of a fair trial.” State v. Morrow, 968 S.W.2d 100, 106 (Mo. banc 1998), cert. denied, 525 U.S. 896, 119 S.Ct. 222, 142 L.Ed.2d 182 (1998); State v. Hutchison, 957 S.W.2d 757, 761 (Mo. banc 1997); State v. Skillicorn, 944 S.W.2d 877, 884 (Mo. banc 1997), cert. denied, 522 U.S. 999, 118 S.Ct. 568, 139 L.Ed.2d 407 (1997). Issues that were not preserved may be reviewed for plain error only, requiring the court to find that manifest injustice or miscarriage of justice has resulted from the trial court error. Simmons, 955 S.W.2d at 737. III. ISSUES OF ALLEGED TRIAL COURT ERROR Clayton raises ten points of error in his appeal. He contends the trial court erred by: 1) sustaining the state's challenge for cause to venirepersons Houston and Kingry; 2) overruling his motion to suppress evidence; 3) allowing certain statements by the prosecutor during penalty phase *475 closing argument; 4) allowing testimony from three witnesses that Ms. Ball was afraid of him; 5) allowing testimony from two of his cell mates regarding statements he made while awaiting trial; 6) admitting a photograph at penalty phase of the victim of an assault committed by Clayton; 7) overruling his motion for a life sentence without probation or parole; 8) using Instruction 17 at the penalty phase; 9) refusing his proposed penalty phase instruction; and 10) allowing certain statements by the prosecutor during guilt phase closing argument. Clayton's points 3, 4, 5, 8, and 10 are not preserved for appeal, since no objection was made at trial. These points will be addressed separately, under plain error review. A. Preserved Issues of Alleged Trial Court Error 1. Venirepersons Stricken for Cause (Clayton's point 1) [5][6] In his first point, Clayton alleges that the trial court erred in sustaining the state's challenge for cause to venirepersons Houston and Kingry. Venirepersons may be excluded from the jury when their views would prevent or substantially impair their ability to perform their duties as jurors in accordance with the court's instructions and their oath. State v. Rousan, 961 S.W.2d 831, 839 (Mo. banc 1998), cert. denied, 524 U.S. 961, 118 S.Ct. 2387, 141 L.Ed.2d 753 (1998); Wainwright v. Witt, 469 U.S. 412, 424, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). A juror may be stricken for cause if it appears that he or she “cannot consider the entire range of punishment, apply the proper burden of proof, or otherwise follow the court's instructions in a first degree murder case.” Rousan, 961 S.W.2d at 839; State v. Debler, 856 S.W.2d 641, 645-46 (Mo. banc 1993). [7][8] “The qualifications of a prospective juror are not determined conclusively by a single response, ‘but are made on the basis of the entire examination.’ ” State v. Kreutzer, 928 S.W.2d 854, 866 (Mo. banc 1996), cert. denied, 519 U.S. 1083, 117 S.Ct. 752, 136 L.Ed.2d 689 (1997) (citing State v. Brown, 902 S.W.2d 278, 285 (Mo. banc 1995), cert. denied, 516 U.S. 1031, 116 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. S.Ct. 679, 133 L.Ed.2d 527 (1995)). The trial court is in the best position to evaluate a venireperson's commitment to follow the law and is vested with broad discretion in determining the qualifications of prospective jurors. See Kreutzer, 928 S.W.2d at 866; Rousan, 961 S.W.2d at 839; State v. McMillin, 783 S.W.2d 82, 91-93 (Mo. banc 1990), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). A trial court's “ruling on a challenge for cause will not be disturbed on appeal unless it is clearly against the evidence and constitutes a clear abuse of discretion.” Kreutzer, 928 S.W.2d at 866. a. Venireperson Houston [9] During the state's voir dire, venireperson Houston stated that he was unsure whether he could vote for death, that he could do so in “extreme cases” only. He stated that if he did vote for death he would not mind telling the defendant. Mr. Houston stated that he could sign a death verdict, but only in “some extreme case” and he could “hardly imagine it.” Mr. Houston also stated: I read the book ‘Dead Man Walking’ this nun wrote down in Louisiana. And she's kind of convincing, if you understand. Well, the death penalty is just dished out to poor people, minorities, and such as that, and it costs the state so much more money to put somebody to death than to hold them. That's -She's kind of convinced me of her thinking on that. That's how I feel. The court sustained the state's motion to strike Mr. Houston for cause. The record supports the trial court's ruling. The totality of Houston's statements provided a basis for the trial court to conclude that Houston's views on the death penalty would substantially impair his ability to follow the court's instructions. See Rousan, 961 S.W.2d at 839-40; *476 Brown, 902 S.W.2d at 285; McMillin, 783 S.W.2d at 93. [10] A trial court's determination whether to excuse a juror for cause is not dependent upon a technical evaluation of the venireperson's use of “magic” words. Instead, it is heavily weighted to the impressions of the trial court and the exercise of the court's judgment and discretion. See Kreutzer, 928 S.W.2d at 866; Rousan, 961 S.W.2d at 839; McMillin, 783 S.W.2d at 91-93.Here, the trial court stated: The Court, of course, we're down to 13 now. And the Court in observing Mr. Houston, I think it started out he could consider. When it got down those, I heard things like: not sure, hesitant, maybe in extreme cases, might be possible case. And I'll have to say, in looking at his demeanor and way he was hesitant, he took his glasses off several times, I'll have to say that the Court's impression in considering all those, I believe under Witherspoon and Witt, that I just think it would prevent him or substantially impair his performance. You know, I have the impression he's unable to faithfully in impartially apply the law in this case. The Court's going to at this time strike Number - it was Number 1 here, but it was Number 3 on the list. © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. This careful exercise of discretion by an experienced trial judge is precisely what is required. The trial court did not err in striking venireperson Houston for cause. b. Venireperson Kingry [11] During the state's voir dire, venireperson Kingry expressed doubt that she could vote for the death penalty. She vacillated under questioning by the prosecution, then the defense, as to whether she could follow the law in a capital case. She stated that the “only way I could vote for it is if I had no doubt, you know, in my mind” and that she would require the prosecutor to prove the case beyond all possible doubt before she could consider the death penalty. When asked if she could sign a death verdict if she were to serve as the foreperson, she responded “no, no.” The court sustained the state's motion to strike Ms. Kingry for cause. [12] The record supports the trial court's ruling. “A juror's equivocation about his ability to follow the law in a capital case together with an unequivocal statement that he could not sign a verdict of death can provide a basis for the trial court to exclude the venireperson from the jury.” Rousan, 961 S.W.2d at 840; see also State v. Smith, 944 S.W.2d 901, 914 (Mo. banc 1997), cert. denied, 522 U.S. 954, 118 S.Ct. 377, 139 L.Ed.2d 294 (1997); Kreutzer, 928 S.W.2d at 866-867. Again, this situation required the exercise of the judgment and discretion of the trial court in determining whether Ms. Kingry should have been stricken for cause. The trial court indicated its judgment by stating: I tell you what, I think I'm going to strike for cause, but let me tell you why. It is - she vacillated. She went back and forth. And I listened. But the whole thing seems to me is she says - And I think that probably the defense is correct, I think you rehabilitated her to the point that she says, “no, for the first stage, for guilt or innocence, it's - beyond a reasonable doubt is fine. But if I'm going to vote for the death penalty, which is one of the authorized voting, they would have to - I would have to have no doubt.” And I don't think it requires no doubt. The law requires beyond a reasonable doubt on even that one. So I think on that, as I have a belief in watching her that - you know, that - I just have - you know, I have an impression that she'd be unable to apply the law in this case when it comes to second stage in the instruction. The trial court did not err in striking venireperson Kingry for cause. Point 1 is denied. *477 2. Motion to Suppress (Clayton's point 2) [13] In his second point, Clayton contends the trial court erred by overruling his motion to suppress evidence. Clayton asserts that his arrest was not supported by probable cause and that the evidence seized after the arrest should have been suppressed. The evidence Clayton sought to suppress included statements Clayton made to Mike Rogers, of the Missouri highway patrol, a .38 caliber gun seized from outside the home, a gun holster from inside his truck, and samples of paint and rust taken from his truck. © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. [14][15][16][17] To determine whether the trial court properly overruled the motion to suppress, we must determine whether the arrest was made with probable cause, since the arrest was made without a warrant. “Probable cause to arrest exists when the arresting officer's knowledge of the particular facts and circumstances is sufficient to warrant a prudent person's belief that a suspect has committed an offense.” State v. Tokar, 918 S.W.2d 753, 767 (Mo. banc 1996), cert. denied,519 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996). Whether there is probable cause to arrest depends on the information in the officers' possession prior to the arrest. State v. Wiley, 522 S.W.2d 281, 287 (Mo. banc 1975). There is no precise test for determining whether probable cause existed; rather, it is based on the particular facts and circumstances of the individual case. Wiley, 522 S.W.2d at 287; State v. Pruitt, 479 S.W.2d 785, 788 (Mo. banc 1972). “Furthermore, probable cause is determined by the collective knowledge and the facts available to all of the officers participating in the arrest; the arresting officer does not need to possess all of the available information.” State v. Mayweather, 865 S.W.2d 672, 675 (Mo.App.1993); see also Pruitt, 479 S.W.2d at 788. The record supports a finding that probable cause existed at the time of Clayton's arrest. Deputy Castetter had responded to a dispatch that a blue Toyota pickup with wooden sides had been parked in Dixie Seal's driveway. Deputies Manning and Bowman also responded to the dispatch. Upon arriving, they found Deputy Castetter's car against a tree and Deputy Castetter bleeding. Carolyn Leonard, Dixie Seal's daughter, advised the deputies that Clayton had been there in a blue Toyota pickup with wooden sides. The dispatcher then advised officers to watch for the vehicle driven by Clayton and that Deputy Castetter had been injured. Chief McCracken heard the dispatch and recognized the description of the vehicle as the same vehicle driven by Clayton earlier in the day when he had seen Clayton at the Country Corner store. Shortly thereafter Clayton's address was verified and Chiefs McCracken and Clark went to Clayton's home. The officers were familiar with Clayton's reputation as a violent person. The officers arrived at Clayton's home just as Clayton pulled into the driveway. The officers attempted to speak with Clayton, but he acted as though he could not hear them and refused to walk toward the officers. Instead he went to the side of his home where it appeared that he placed something in a stack of cement blocks. Clayton was then restrained. The passenger in Clayton's vehicle advised the officers that Clayton had a gun in the truck. When the officers did not locate the gun in the truck, they looked in the stack of cement blocks where they located the gun. Clayton was then placed under arrest. Based on these facts, probable cause existed at the time of Clayton's arrest. The trial court did not err in overruling Clayton's motion to suppress evidence. Point 2 is denied. 3. Evidence Admitted at Penalty Phase (Clayton's point 6) [18] As his sixth point, Clayton contends that the trial court erred by admitting a photograph of Mr. Dotson, the victim of a 1991 assault committed by Clayton, at penalty phase. Clayton © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. contends that the photograph was not indicative*478 of the nature and extent of Dotson's injuries and was prejudicial. The photograph depicts Dotson's face and shirt covered with blood. Appellant was convicted of the assault in 1992. [19][20][21] “The trial court is vested with broad discretion in determining the admissibility of photographs” and other evidence offered at the penalty stage of a capital case. State v. Isa, 850 S.W.2d 876, 890 (Mo. banc 1993); State v. Leisure, 749 S.W.2d 366, 379 (Mo. banc 1988), cert. denied, 506 U.S. 923, 113 S.Ct. 343, 121 L.Ed.2d 259 (1992). The sentencer in a capital case is entitled to any evidence that assists in assessing a penalty of death. See State v. Nicklasson, 967 S.W.2d 596, 618 (Mo. banc 1998), cert. denied,525 U.S. 1021, 119 S.Ct. 549, 142 L.Ed.2d 457 (1998); State v. Chambers, 891 S.W.2d 93, 107 (Mo. banc 1994); State v. Parker, 886 S.W.2d 908, 924 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995). At the penalty phase of a capital case, both the state and the defense may introduce evidence of the defendant's character, including evidence of other crimes. See Nicklasson, 967 S.W.2d at 618; Chambers, 891 S.W.2d at 106; Parker, 886 S.W.2d at 924. The trial court did not err in admitting the photograph of Dotson into evidence. Officer Jerry Paul testified that he investigated the assault and that the photograph was a fair and accurate representation of Dotson immediately following the assault. He testified that Dotson suffered only a bloody nose from the assault and incurred no broken bones. Defense counsel read a stipulation that Dotson's actual injuries consisted of bruising and a cut on his nose. Point 6 is denied. 4. Jury Instructions (Clayton's point 9) [22] As his ninth point, Clayton contends that the trial court erred in rejecting his proposed penalty phase Instruction B. Instruction B included a listing of statutory and non-statutory mitigating circumstances. Clayton contends the evidence supported the two non-statutory mitigating factors and that the denial of the instruction prevented the jury from giving full consideration to mitigating evidence. Clayton's claim has been repeatedly rejected by this Court. See Rousan, 961 S.W.2d at 849; Parker, 886 S.W.2d at 928-29. The jury was given Instruction 19 that included all the statutory mitigating circumstances to which Clayton was entitled. Instruction 19 included a catch-all paragraph stating “you should also consider any other facts or circumstances which you find from the evidence in mitigation of punishment.” The trial court did not err in refusing Clayton's Instruction B. See State v. Copeland, 928 S.W.2d 828, 854 (Mo. banc 1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 864 (1996). Point 9 is denied. B. Issues of Alleged Trial Court Error Not Preserved For Appeal [23] Clayton's points 3, 4, 5, 8, and 10 are not preserved for appeal, since he made no objection at trial. Clayton requests review of these points for plain error. Rule 30.20. “To prevail on plain error review, [Clayton] must show that the trial court's error so substantially violated his © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. rights that manifest injustice or a miscarriage of justice results if the error is not corrected.” Parker, 886 S.W.2d at 917. 1. Closing Argument (Clayton's points 3 and 10) [24][25][26] Clayton contends that the trial court plainly erred in allowing certain statements by the prosecutor during his guilt and penalty phase closing arguments. Rule 30.20. “ ‘Relief should be rarely granted on assertion of plain error to matters contained in closing argument, for trial strategy looms as an important consideration and such assertions are generally denied without explication.” State v. Clay, 975 S.W.2d 121, 134 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999) (citing State v. Wood, 719 S.W.2d 756, 759 (Mo. banc 1986)) (emphasis in original); State v. *479 Cobb, 875 S.W.2d 533, 537 (Mo. banc 1994), cert. denied, 513 U.S. 896, 115 S.Ct. 250, 130 L.Ed.2d 172 (1994) (citing State v. Wood, 719 S.W.2d 756, 759 (Mo. banc 1986)). Furthermore, the instructions given to the jury safeguard against harm that might otherwise result from exaggerated closing argument by either prosecutor or defendant. State v. Owsley, 959 S.W.2d 789, 797 (Mo. banc 1997), cert. denied,525 U.S. 882, 119 S.Ct. 191, 142 L.Ed.2d 156 (1998). Under plain error review, a conviction will be reversed for improper arguments only when it is established that the argument had a decisive effect on the outcome of trial and amounts to manifest injustice. State v. Lyons, 951 S.W.2d 584, 596 (Mo. banc 1997), cert. denied, 522 U.S. 1130, 118 S.Ct. 1082, 140 L.Ed.2d 140 (1998). a. Penalty Phase Closing Argument (Clayton's point 3) [27] As his third point, Clayton complains about two statements made in the state's rebuttal at penalty phase. It is important to note that during its penalty phase closing argument defense counsel stated “and we live in a civilization where we should try to make the punishment fit the criminal.” In its rebuttal the state responded by stating: I think counsel said one thing here that is interesting, in that I think it shows the fallacy of what he has suggested to you. And that is he said the punishment should fit the criminal. You will find that nowhere in our law, nowhere in our tradition. Punishment should fit the crime. That's what you'll find in our law and in our tradition. The focus should not be on the criminal, but should be on the crime, and I think that is instructive. *** Punishment here must fit the crime, and if it doesn't, then it diminishes us all. We are not here to judge Cecil Clayton as a person, we are here to punish him for the crime he's committed. There is a difference. The crime calls for the ultimate penalty, and that's what I ask you for. [28][29][30] “A prosecutor has considerable leeway to make retaliatory arguments at closing.” Parker, 886 S.W.2d at 922. A prosecutor may retaliate to an issue raised “by the defense even if the prosecutor's comment would be improper.” State v. Walls, 744 S.W.2d 791, 798 (Mo. banc © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. 1988), cert. denied,488 U.S. 871, 109 S.Ct. 181, 102 L.Ed.2d 150 (1988). The prosecutor's argument that the punishment should fit the crime was retaliation to defense counsel's statement that the punishment should fit the criminal since consideration of both the crime and the criminal is required to determine the appropriate sentence. See Storey, 901 S.W.2d at 902. b. Guilt and Penalty Phase Closing Arguments(Clayton's point 10) As his tenth point, Clayton contends that the trial court plainly erred by allowing the prosecutor to make a number of arguments during his guilt and penalty phase closing arguments. (i) [31] During the state's closing argument at the guilt phase the prosecutor made reference to the testimony of defense expert Dr. Betty Back. Specifically, Clayton complains about the following statements: “Well, he didn't plan in a socially acceptable manner.” Well, I've never met a criminal who did. That is not only unlikely, it's preposterous. It's absolutely preposterous. “Well, they don't have very good judgment.” Well, as far as I'm concerned somebody who buys a Toyota doesn't have very good judgment because I don't like Toyotas. That doesn't mean there's anything wrong with their ability to reason. Folks, it's voodoo, that's all it is. It's an excuse. *480 * * * * Folks, not only could he discriminate, he did. And right now, at this moment, he continues and hopes that he can fool you. Don't be fooled. [32] “Prosecutors may also comment on the evidence and the credibility of witnesses, even to the point of belittling and/or discussing the improbability of specific testimony.” State v. Clemons, 946 S.W.2d 206, 229 (Mo. banc 1997), cert. denied,522 U.S. 968, 118 S.Ct. 416, 139 L.Ed.2d 318 (1997); see also State v. Weaver, 912 S.W.2d 499, 513 (Mo. banc 1995), cert. denied,519 U.S. 856, 117 S.Ct. 153, 136 L.Ed.2d 98 (1996). (ii) [33] Clayton complains about statements made by the prosecutor during its penalty phase closing argument. Clayton contends that the prosecutor's penalty phase closing argument went outside the evidence by suggesting that Clayton went to Dixie Seal's home to commit other crimes, by referring to his own experience as a soldier, and by stating that death was the appropriate penalty. © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. And certainly if he intended some ill toward anyone else, which well may have been his intent at Dixie Seal's drive after the argument he had with Martha Ball, that would have broken the law as well. During closing argument, a prosecutor is entitled to make reasonable inferences from the evidence. Clemons, 946 S.W.2d at 229. While the prosecutor's statements may have suggested that Clayton went to Dixie Seal's home to commit other crimes, the statement can reasonably be inferred from the evidence presented in the case. [34][35] Clayton also contends that the prosecutor went outside the evidence by referring to his own experience of being a soldier. Me, having been a soldier, I guess I can imagine reasons why a person would kill. I don't understand killing a police officer. If you'll kill a police officer, you would kill anyone. That is a figure of authority. Taken in context, this statement was made by the prosecutor while encouraging the jury to assess the most severe penalty, the death penalty. Urging a jury to impose the most severe penalty is proper argument. Lyons, 951 S.W.2d at 596; Smith, 944 S.W.2d at 919. [36] Clayton further contends that the prosecutor's penalty phase closing argument improperly personalized and denigrated the defense. In its penalty phase closing argument defense counsel stated, “I ask you to impose a sentence of life, and not to impose a sentence of death simply because he's different or because he's defective.” The prosecutor responded to this statement: Folks, what we're dealing with here is, yes, there is value in human life, and Christopher Castetter's life had value too, a great deal of value. And he did nothing wrong. A suggestion to you that there is something wrong with you issuing a death sentence where it is called for is preposterous. [37] Again, it is proper for a prosecutor to seek and request the most severe penalty. See Lyons, 951 S.W.2d at 596; Smith, 944 S.W.2d at 919. It is also proper for a prosecutor to retaliate to statements made by defense counsel, even to the point of characterizing a defense theory as “preposterous.” See Clemons, 946 S.W.2d at 229; Parker, 886 S.W.2d at 922. (iii) [38] Lastly, Clayton contends that the prosecutor improperly criticized him for exercising his constitutional rights. You cannot be compared to Cecil Clayton. You have done nothing wrong. Look at all the legal niceties we have danced through to get to the point where you can make this decision. Those legal niceties were not available to Christopher Castetter because one man chose to play God. © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. *481 Again, the prosecutor's argument seeks to obtain the most severe punishment. See Lyons, 951 S.W.2d at 596; Smith, 944 S.W.2d at 919. “The prosecutor's statement does not seek to punish movant for exercising his right to a trial by jury. Instead, the prosecutor's statement, read in context, highlights the nature and seriousness of the crime and movant's disregard for the law.” State v. Hall, 955 S.W.2d 198, 209 (Mo. banc 1997), cert. denied, 523 U.S. 1053, 118 S.Ct. 1375, 140 L.Ed.2d 523 (1998) (citing Antwine v. State, 791 S.W.2d 403, 410 (Mo. banc 1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 769, 112 L.Ed.2d 789 (1991)); see also Kreutzer, 928 S.W.2d at 875. Clayton has not established that any manifest injustice or miscarriage of justice resulted from the prosecutor's closing arguments as asserted in his points 3 and 10. Those points are denied. 2. Testimonial Evidence (Clayton's points 4 and 5) Clayton contends that the trial court plainly erred in allowing witnesses to testify that Martha Ball was afraid of Clayton and that Clayton disliked law enforcement officials. These points are not preserved for appeal and review is for plain error. Rule 30.20. a. Testimony that Martha Ball feared Cecil Clayton (Clayton's point 4) [39] Clayton contends that the trial court plainly erred by allowing the testimony of Martha Ball, Vicky Deeter, and Carolyn Leonard that Martha Ball was afraid of Clayton on the night of November 27, 1996. Clayton contends that the testimony suggested that he had a propensity to do things that were bad, violent, or fearsome and may have suggested to the jury that Clayton was involved in other crimes. Martha Ball testified, “I was scared; he pushed me one time, and he had been drinking, so I didn't want to go with him.” She also stated that she did not want to go back to her mother's home “because I was afraid.” Vicky Deeter testified that when Martha arrived at her home on the evening of November 27 “she was very shook up, white as a sheet and scared. She was pretty scared.” She also stated that Martha “was shaking from head to toe. She had to sit down for a while before I could get her to talk. Like I said, she was just as pale as you could get.” Lastly, Carolyn Leonard testified that Martha “was scared” and she knew that Martha was scared “because she told me she couldn't come home.” The evidence presented through Ball, Deeter, and Leonard “cannot be characterized as clear evidence associating [Clayton] with other crimes.” State v. Hornbuckle, 769 S.W.2d 89, 96 (Mo. banc 1989), cert. denied, 493 U.S. 860, 110 S.Ct. 171, 107 L.Ed.2d 128 (1989). Rather, this testimony provided a complete and coherent picture of the crime charged. See Harris, 870 S.W.2d at 810; State v. Basile, 942 S.W.2d 342, 356 (Mo. banc 1997), cert. denied, 522 U.S. 883, 118 S.Ct. 213, 139 L.Ed.2d 148 (1997). The testimony in question also cannot be held to have had a decisive effect on the jury, especially when coupled with Ball's testimony that she © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. still loves Clayton and has been to visit him since his arrest. See Basile, 942 S.W.2d at 356. Clayton has not established that manifest injustice or a miscarriage of justice resulted from the admission of this evidence. Point 4 is denied. b. Testimony that Cecil Clayton disliked law enforcement officials (Clayton's point 5) Clayton contends that the trial court plainly erred by allowing the testimony of his jail-mates, William Rogers and Robert Compton, regarding Clayton's statements to them about the offense and about shooting the jail guards. He contends that their testimony provides evidence of other crimes and bad acts. William Rogers testified that Clayton talked about his inability to obtain bond, *482 that “he wanted to get out, escape,” and that he talked with Rogers about escaping. Rogers also testified that Clayton had told him about shooting the officer, that “[Clayton] walked right up to the door of the police car and shot him” and that “[Clayton] took his .38 and walked right up to the car and shot him before the other guy had a chance.” Robert Compton also testified that Clayton had talked with him about the shooting. Compton testified that He had told me he had shot the-- Barry County Officer. *** He told me he had shot him through the window of his-- police car. *** He told me it was either him or the officer, he believed that the officer was going to shoot him, and-- he said the officer pulled up and he had to make a choice then. He had a pistol behind his back and he said that he just shot the cop before the cop would shoot him, and then he just made gestures, you know, acting like he had a gun in his hand. *** He didn't tell me whether he knew him or not. He told me that the officer deserved it, that he had been harassing a lot of people, and he said somebody should have shot him before that. Compton also testified about Clayton's dislike of the other officers and jail guards. Did the defendant ever say anything about any other officers? Uh, just the officers that arrested him. His first thought was to shoot them too and go ahead and © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. get out of state at that time. And the officers at Lawrence County Jail. Compton testified that Clayton wanted to escape and had attempted to unlock the turnkey with a piece of metal, that he wanted Compton's assistance in getting out of the country, and that Clayton stated that the jail guards “deserved to, you know, have it done to them too.” [40] Clayton's statements concerning Deputy Castetter are admissions of the crime and admissible without question. These statements have nothing to do with other crimes or uncharged bad acts. [41] The evidence regarding talk of escape was relevant in that it tended to show a consciousness of guilt. See State v. Driscoll, 711 S.W.2d 512, 517 (Mo. banc 1986), cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986). [42] Likewise, evidence regarding Clayton's dislike of the jail guards and law enforcement officers does not necessarily constitute evidence of another crime. See Hornbuckle, 769 S.W.2d at 96. This testimonial evidence was relevant to establish Clayton's motive in shooting Officer Castetter. The state's theory of motive was that Clayton had a problem with law enforcement officers in general and that he shot Officer Castetter to avoid arrest and the revocation of his probation. See State v. Mallett, 732 S.W.2d 527, 534 (Mo. banc 1987), cert. denied, 484 U.S. 933, 108 S.Ct. 309, 98 L.Ed.2d 267 (1987). “Wide latitude is generally allowed in the development of evidence of motive.” Mallett, 732 S.W.2d at 533. Lastly, Clayton contends that his jail-mates' testimony about the shooting provided evidence of the element of deliberation that was otherwise nonexistent. Direct proof of a required mental state is seldom available. See Simmons, 955 S.W.2d at 739; State v. Turner, 623 S.W.2d 4, 7 (Mo. banc 1981), cert. denied, 456 U.S. 931, 102 S.Ct. 1982, 72 L.Ed.2d 448 (1982). A mental state “may be proved by indirect evidence and inferences reasonably drawn from circumstances surrounding the slaying.” Turner, 623 S.W.2d at 7; Simmons, 955 S.W.2d at 739. Clayton has not established that admission of this evidence resulted in manifest injustice or a miscarriage of justice. Point 5 is denied. *483 3. Penalty Phase Instruction 17 (Clayton's point 8) [43] In his eighth point Clayton contends that the trial court erred in submitting Instruction 17 because it contained statutory aggravators not supported by the evidence. Clayton failed to object to Instruction 17 at the penalty phase instruction conference or at any prior time. Clayton also failed to set forth the instruction in full in the argument portion of his brief. Rule 30.06(e); State v. Oxford, 791 S.W.2d 396, 400 (Mo. banc 1990), cert. denied, 498 U.S. 1055, 111 S.Ct. 769, 112 L.Ed.2d 789 (1991). This point is not preserved for appeal and review is for plain error. Rule 30.20. © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Instruction 17 provides: In determining the punishment to be assessed against the defendant for the murder of Christopher Castetter, you must first unanimously determine whether one or more of the following statutory aggravating circumstances exist: (1) whether the defendant was convicted of Assault in the Second Degree on September 14th, 1991 in the Circuit Court of Barry County of the State of Missouri. (2) Whether Christopher Castetter was a peace officer, and whether that murder was committed during the exercise of his official duty. (3) Whether the murder of Christopher Castetter involved depravity of mind, and whether as a result thereof the murder was outrageously and wantonly vile, horrible and inhumane. You can make a finding of the depravity of mind only if you find that the defendant's selection of the person killed was random and without regard to the victim's identity, and that defendant's killing of Christopher Castetter thereby exhibited a callous disregard for the sanctity of all human life. (4) Whether the murder of Christopher Castetter was committed for the purpose of avoiding the lawful arrest of defendant. You are further instructed that the burden rests upon the state to prove at least one of the foregoing circumstances beyond a reasonable doubt. On each circumstance that you find beyond a reasonable doubt, all 12 of you must agree as to the existence of that circumstance. Therefore, if you do not unanimously find from the evidence beyond a reasonable doubt that at least one of the foregoing statutory aggravating circumstances exists, you must return a verdict fixing the punishment of the defendant at imprisonment for life by the corrections without eligibility for probation or parole. [44] The part of the instruction about which Clayton complains is that involving “depravity of mind” which could only be found if the killing of the victim was at random and without regard to his identity. Clayton asserts that this aggravating circumstance was not supported by the evidence; that a finding that he killed Castetter because he was a law enforcement officer and that he killed Castetter at “random and without regard to his identity” are mutually exclusive and cannot coexist. [45] Clayton's argument is incorrect. The jury determined that aggravating circumstances numbers 1, 2, and 3 existed beyond a reasonable doubt. The jury did not find the fourth aggravator. Aggravator 2 merely requires a finding that Deputy Castetter “was a peace officer” and was killed “during the exercise of his official duty.” Nothing within this finding is necessarily inconsistent with a finding that Castetter was also killed at “random and without © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. regard to his identity.” Killing a person merely because that person is a law enforcement officer does not negate a finding of randomness, unless a particular purpose is also found specific to the identity of the individual victim. Even had the jury also found aggravator 4, which it did not, the mere fact that Deputy Castetter was killed to avoid Clayton's being arrested by him might have related solely to Castetter's duties as a law enforcement officer *484 and not to his identity as a person. See State v. Cornman, 695 S.W.2d 443, 448 (Mo. banc 1985). Point 8 is denied. C. Death Sentence Proportionality Review (Clayton's point 7) As his seventh point, Clayton contends that the trial court erred in overruling his motion for a directed verdict for life without parole and that the death sentence is disproportionate under section 565.035.3. Section 565.035 requires us to independently review the sentence of death to determine (1) whether it was imposed under the influence of passion or prejudice, or any other arbitrary factor; (2) whether there was sufficient evidence to support the finding of statutory aggravating circumstances and any other circumstance found; and (3) whether the sentence was excessive or disproportionate to the penalty imposed in similar cases. There is no evidence that the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. We next review the trial court's findings to determine if the evidence supports - beyond a reasonable doubt - the existence of an aggravating circumstance and any other circumstance found. Section 565.035.3(2); Brown, 902 S.W.2d at 294. The jury unanimously found three statutory aggravators in the murder of Officer Castetter. The evidence supports, beyond a reasonable doubt, a finding that Clayton had been convicted of an assault in 1992, that the murder was committed against a peace officer while engaged in the performance of his official duty, and that the killing was random and without regard to Deputy Castetter's individual identity. Clayton does not contest that the evidence supports a finding of the first two of these statutory aggravating circumstances. [46] Lastly, we must determine whether the sentence of death is excessive or disproportionate. Section 565.035.3(3). In making this determination, we consider similar cases where the death penalty was imposed. Section 565.035.3(3); Nicklasson, 967 S.W.2d at 622. The death sentence in this case is neither excessive nor disproportionate to the penalty imposed in similar cases. This Court has upheld sentences of death where the defendant commits an execution-style shooting of a defenseless victim. See Nicklasson, 967 S.W.2d at 622; State v. Whitfield, 939 S.W.2d 361, 372 (Mo. banc 1997), cert. denied, 522 U.S. 831, 118 S.Ct. 97, 139 L.Ed.2d 52 (1997). This Court has also upheld sentences of death in numerous cases involving killings of peace officers, law enforcement, or correction officers. See State v. Johnson, 968 S.W.2d 123, 135 (Mo. banc 1998), cert. denied, 525 U.S. 935, 119 S.Ct. 348, 142 L.Ed.2d 287 (1998); State v. Sweet, 796 S.W.2d 607, 617 (Mo. banc 1990), cert. denied, 499 U.S. 932, 111 S.Ct. 1339, 113 L.Ed.2d 270 © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. (1991); Mallett, 732 S.W.2d at 542-43; Driscoll, 711 S.W.2d at 517-18. In light of the crime and the strength of the evidence against him, Clayton's sentence of death is not excessive or disproportionate. [47] Clayton particularly asks that we overturn his sentence of death because evidence of deliberation was supplied only by two jail-house snitches. Evidence of deliberation was also supplied, however, by the circumstances of the case, that Deputy Castetter was shot in the forehead at point blank range, with his own pistol still in his holster. Clayton also particularly asks that we consider his mental disabilities in determining whether the sentence of death is appropriate. We find that the record as a whole supports the sentence of death as recommended by the jury and imposed by the judge. Clayton's point 7 is denied. IV. CONCLUSION The judgment is affirmed. All concur. Mo.,1999. State v. Clayton 995 S.W.2d 468 END OF DOCUMENT © 2008 Thomson Reuters/West. No Claim to Orig. US Gov. Works. Clayton v. State Mo.,2001. Supreme Court of Missouri,En Banc. CecilCLAYTON, Appellant, v. STATE of Missouri, Respondent. No. SC 83355. Dec. 4, 2001. Rehearing Denied Jan. 22, 2002. Following affirmance of his conviction and death sentence for first-degree murder, 995 S.W.2d 468, petitioner sought post-conviction relief, alleging ineffective assistance of trial counsel. The Circuit Court, Jasper County, David Darnold, J., denied the petition. Petitioner appealed. The Supreme Court, John C. Holstein, J., held that trial counsel was not ineffective in simultaneously pursuing “reasonable doubt” and diminished capacity defenses, failing to present certain witnesses and evidence, and failing to adjudicate defendant's competency to stand trial. Affirmed. West Headnotes [1] Criminal Law 110 1158(1) 110 Criminal Law 110XXIV Review 110XXIV(O) Questions of Fact and Findings 110k1158 In General 110k1158(1) k. In General. Most Cited Cases The presumption that the trial court's rulings regarding a post-conviction relief motion are correct can be defeated only if the appellate court is left with a definite and firm impression that a mistake has been made. V.A.M.R. 29.15(k). [2] Criminal Law 110 641.13(1) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(1) k. In General. Most Cited Cases In order to overturn a conviction or a death sentence for ineffective assistance, the defendant must first show that his attorney's conduct fell below an objective standard of reasonableness, and second, that his attorney's errors prejudiced his case. U.S.C.A. Const.Amend. 6. [3] Criminal Law 110 641.13(1) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(1) k. In General. Most Cited Cases To constitute ineffective assistance of counsel, the attorney's conduct must be so egregious that it undermines the proper functioning of the adversarial process to such an extent that the original trial cannot be relied on as producing a just result. U.S.C.A. Const.Amend. 6. [4] Criminal Law 110 641.13(1) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(1) k. In General. Most Cited Cases The defendant has a heavy burden in proving ineffective assistance of counsel. Const.Amend. 6. [5] Criminal Law 110 U.S.C.A. 641.13(1) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(1) k. In General. Most Cited Cases Both the deficient performance and prejudice parts of the Strickland test for ineffective assistance of counsel must be fulfilled; if defendant fails to prove either one, no relief can be granted. U.S.C.A. Const.Amend. 6. [6] Criminal Law 110 641.13(1) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(1) k. In General. Most Cited Cases The reviewing court presumes that the trial attorney's conduct was reasonable and was not ineffective. U.S.C.A. Const.Amend. 6. [7] Criminal Law 110 641.13(1) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(1) k. In General. Most Cited Cases Reasonable choices of trial strategy, no matter how ill fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance. U.S.C.A. Const.Amend. 6. [8] Criminal Law 110 641.13(2.1) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(2.1) k. In General. Most Cited Cases Trial counsel's performance was not deficient, as element for ineffective assistance of counsel, as to pursuing simultaneously both a “reasonable doubt” defense and a diminished capacity defense, at guilt phase of capital murder trial; it was not logically inconsistent to argue that State failed to prove that defendant was the shooter and that he did not have the mental capacity necessary to form intent for first-degree murder, and the decision to use two defenses was a reasonable trial strategy. U.S.C.A. Const.Amend. 6. [9] Criminal Law 110 43.5 110 Criminal Law 110II Defenses in General 110k43.5 k. Inconsistent Defenses. Most Cited Cases Criminal defendants have the right to present multiple defenses, even if the defenses are somewhat inconsistent. [10] Criminal Law 110 641.13(1) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(1) k. In General. Most Cited Cases A strategic decision is reasonable, for purposes of a subsequent claim of ineffective assistance of counsel, if it was made with the same skill and diligence another reasonably competent attorney would use under similar circumstances. U.S.C.A. Const.Amend. 6. [11] Criminal Law 110 641.13(1) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(1) k. In General. Most Cited Cases It is not ineffective assistance of counsel for an attorney to pursue one reasonable trial strategy to the exclusion of another, even if the latter would also be a reasonable strategy. U.S.C.A. Const.Amend. 6. [12] Criminal Law 110 641.13(6) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(6) k. Evidence; Procurement, Presentation and Objections. Most Cited Cases The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim. U.S.C.A. Const.Amend. 6. [13] Criminal Law 110 641.13(6) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(6) k. Evidence; Procurement, Presentation and Objections. Most Cited Cases Trial counsel's failure to present all of the witnesses and evidence that might have been used at guilt phase of capital murder trial if the diminished capacity claim had been presented without a simultaneous “reasonable doubt” defense was a matter of trial strategy, for purposes of ineffective assistance of counsel; by deciding to use both defenses, counsel also decided not to use all of the witnesses and evidence he might have used had he raised diminished capacity alone. U.S.C.A. Const.Amend. 6. [14] Criminal Law 110 641.13(6) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(6) k. Evidence; Procurement, Presentation and Objections. Most Cited Cases Trial counsel's decision not to introduce defendant's school records, Nevada State Hospital records, and Social Security Disability file, which allegedly would have provided jury with better picture of defendant's mental capacity and his history of multiple head injuries, was reasonable trial strategy, for purposes of claim of ineffective assistance of counsel, regarding presentation of diminished capacity claim at guilt phase of capital murder trial; counsel wanted to keep the picture he painted for jury a simple one regarding a man forever changed by a head injury from a sawmill accident, and the additional evidence would have shown jury that defendant was violent man with criminal record even before the accident. U.S.C.A. Const.Amend. 6. [15] Criminal Law 110 641.13(6) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(6) k. Evidence; Procurement, Presentation and Objections. Most Cited Cases Trial counsel was not ineffective in failing to call minister to testify at guilt phase of capital murder trial about defendant's diminished capacity and religious faith; minister had told counsel he “couldn't help him,” giving counsel reason to believe that minister did not want to testify and that he might offer testimony harmful to defendant's case, even if minister's true reason for making the statement was that minister distrusted counsel. U.S.C.A. Const.Amend. 6. [16] Criminal Law 110 641.13(6) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(6) k. Evidence; Procurement, Presentation and Objections. Most Cited Cases An attorney is not ineffective for failing to further investigate or call a witness to testify who is unwilling to do so and who cannot be counted on to give testimony favorable to his client. U.S.C.A. Const.Amend. 6. [17] Criminal Law 110 641.13(6) © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(6) k. Evidence; Procurement, Presentation and Objections. Most Cited Cases Trial counsel was not ineffective in failing to call witness who could have testified, at guilt phase of capital murder trial in which defendant claimed diminished capacity, about change in defendant's personality after sawmill accident which had caused brain injury; the testimony was cumulative to testimony of other witnesses, and witness would have provided prosecution on cross-examination with opportunity to show defendant had violent temper even before his accident, undercutting defendant's diminished capacity defense. U.S.C.A. Const.Amend. 6. [18] Criminal Law 110 641.13(6) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(6) k. Evidence; Procurement, Presentation and Objections. Most Cited Cases An attorney is not ineffective for failing to offer cumulative testimony. U.S.C.A. Const.Amend. 6. [19] Criminal Law 110 641.13(6) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(6) k. Evidence; Procurement, Presentation and Objections. Most Cited Cases It is not ineffective assistance for an attorney not to call a witness who might undermine the defense's whole theory of trial. U.S.C.A. Const.Amend. 6. [20] Criminal Law 110 641.13(2.1) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(2.1) k. In General. Most Cited Cases Trial counsel's failure to adjudicate defendant's competency to stand trial for capital murder was not ineffective assistance of counsel; counsel had extensive prior involvement with defendant, and defendant was able to intelligently discuss his legal options with counsel and even carry on correspondence with counsel about the case. U.S.C.A. Const.Amend. 6. [21] Criminal Law 110 641.13(2.1) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(2.1) k. In General. Most Cited Cases Counsel has no duty to investigate a client's mental condition where the client appears to have the present ability to consult rationally with the attorney and understand the court proceedings. [22] Criminal Law 110 1159.4(1) 110 Criminal Law 110XXIV Review 110XXIV(P) Verdicts 110k1159 Conclusiveness of Verdict 110k1159.4 Credibility of Witnesses 110k1159.4(1) k. In General. Most Cited Cases Criminal Law 110 1159.4(6) 110 Criminal Law 110XXIV Review 110XXIV(P) Verdicts 110k1159 Conclusiveness of Verdict 110k1159.4 Credibility of Witnesses 110k1159.4(6) k. Particular Witnesses or Grounds of Impeachment. Most Cited Cases Trial courts have a superior opportunity to judge the credibility of witnesses, and the appellate court will defer to a trial court's credibility determination even on an expert witness. [23] Criminal Law 110 641.13(7) 110 Criminal Law 110XX Trial © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(7) k. Post-Trial Procedure and Review. Most Cited Cases Trial counsel was not ineffective in failing to call five witnesses who could have testified at penalty phase of capital murder trial about defendant's background, his religious faith, his religious ministry to others, and the change in his personality after sawmill accident that had caused brain injury; such testimony was cumulative to testimony of other witnesses, and witnesses may well have offered other testimony undercutting defense's argument that defendant's brain injury and ensuing mental incapacity were mitigating factors. U.S.C.A. Const.Amend. 6. [24] Criminal Law 110 641.13(7) 110 Criminal Law 110XX Trial 110XX(B) Course and Conduct of Trial in General 110k641 Counsel for Accused 110k641.13 Adequacy of Representation 110k641.13(2) Particular Cases and Problems 110k641.13(7) k. Post-Trial Procedure and Review. Most Cited Cases There is no requirement that an attorney present any background information on his client during a capital trial's penalty phase. *203 Rebecca L. Kurz,Laura G. Martin, Asst. Public Defenders, Kansas City, for appellant. Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane D. Crouse, Asst. Atty. Gen., Jefferson City, for respondent. JOHN C. HOLSTEIN, Judge. Cecil Clayton appeals the denial of his Rule 29.15 post-conviction relief motion by the circuit court of Jasper County. On appeal he raises four claims, all of which allege that the motion court should have found his trial counsel ineffective. Because the death penalty was imposed in Clayton's original trial, this Court has exclusive appellate jurisdiction. Mo. Const. art. V, sec. 10; order of June 16, 1988. The judgment is affirmed. The evidence that led to Clayton's conviction of first degree murder was compelling, but largely circumstantial. On the evening of November 27, 1996, a blue Toyota*204 pickup truck with wooden sides was observed in the driveway of the Dixie Seals' residence in Barry County, Missouri. The truck was like one Clayton had been driving earlier that day when he had a violent argument with his former girlfriend, the daughter of Mrs. Seals. Barry County deputy sheriff Christopher Castetter was summoned to investigate. Shortly after the truck left, deputy Castetter's vehicle was found sitting at an angle in the Seals driveway against a tree, its engine running fast and wheels spinning. Deputy Castetter was in the vehicle, mortally wounded by a © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. single gunshot in the middle of his forehead. Later Clayton arrived at the home of a friend, Martin Cole. He told Cole that he had shot a “cop” in the head and displayed a weapon to Cole. He wanted Cole to act as an alibi. The two proceeded to Clayton's house in the pickup truck where they were arrested, but not before Clayton managed to step to the side of his house where a pile of cement blocks were located. Later the police located a gun in the pile of blocks. The gun was determined to be the likely source of the bullet that killed Castetter. Paint chips similar to the paint on the pickup were found on the Castetter vehicle. Though Clayton denied involvement in the murder when interrogated by police, he did say at one point that “he shouldn't have smarted off to me.” In addition, Clayton later admitted his involvement in the killing to a jailhouse snitch, Robert Compton. As noted above, the evidence was largely circumstantial. The only direct evidence implicating Clayton came from Cole and the snitch, both of whom had motives to fabricate testimony, as was highlighted by the defense. There were also some weaknesses in the circumstantial evidence that defense counsel explored. For example, no gunpowder residue was found on Clayton's hands or clothing, though Cole had residue on his left hand, and Cole was left-handed. In addition, defense counsel probed the uncertainty as to whether the officers actually observed Clayton deposit the gun in the pile of cement blocks, whether the bullet recovered from the victim was positively fired by the gun found in the pile of blocks, and whether the paint found on the victim's vehicle was conclusively determined to be from Clayton's truck. A second line of defense had to do with a claim of diminished capacity due to a brain injury at a sawmill accident in 1972. Clayton's brother, Marvin, testified that after the injury, Clayton was changed. He broke up with his wife, began drinking alcohol and became impatient, unable to work and more prone to violent outbursts. A defense expert testified that due to his brain injury, which involved a loss of 7.7 percent of the brain, Clayton was incapable of deliberating, planning, or otherwise coolly reflecting on a murder when agitated. Another expert explained that due to the brain injury, Clayton was susceptible to suggestion, thus explaining the equivocal statements to police. Nonetheless, the jury found Clayton guilty of first-degree murder. During the penalty phase, another brother, Jerry, was called to testify as to Clayton's childhood and life as a part-time pastor and evangelist prior to the sawmill accident and, after the accident, his marital breakup, drinking alcohol and his antisocial personality. A jail administrator and jail chaplain were called to testify regarding Clayton's good behavior and care for others in the jail while awaiting trial. Clayton was sentenced to death. He appealed, and the conviction and sentence were affirmed in State v. Clayton, 995 S.W.2d 468 (Mo. banc 1999). *205 RULE 29.15 PROCEEDING He next filed a timely Rule 29.15 motion. In contrast to the evidence at trial, the postconviction court was presented with a picture of Clayton's early life as one filled with trouble. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. As a young man, he was known to have a violent, quick temper and had several run-ins with the law. In the 1960s, Clayton got into a physical altercation with a highway patrol officer who stopped his car and, on another occasion, was arrested for assaulting the local high school principal in a restroom at the high school during a basketball game. While in jail for the assault, Clayton was converted to Christianity and became devoted to his new found faith. The evidence of Clayton's history after his conversion was more consistent with the evidence at trial. He stopped drinking alcohol. He began to attend church regularly, eventually preaching and singing during the services. Clayton became a part-time pastor and traveling evangelist, going to different churches around the area preaching in revivals and performing songs with his wife and children. More detail was offered regarding the 1972 sawmill accident. A piece of wood apparently broke off the log he was working on and was thrown into his head. The piece became imbedded inside his skull and could only be removed surgically. Although Clayton spent a considerable amount of time recuperating in the hospital after the accident, he did not receive any long-term therapy. Unable to work in the timber business, Clayton tried other types of work, including working for a short time as a police officer in Purdy, Missouri. Eventually, Clayton quit looking for full time employment. He applied for and received social security disability benefits, although he was still able to do various odd jobs. Clayton's personal life deteriorated. Although he continued traveling around preaching and singing with his family for awhile, he eventually quit. He started drinking again. His wife left him and they eventually divorced. He was violent and quick-tempered with members of his family, once slapping one of his sisters so hard that it cut her lip and broke a tooth. The first attorney Clayton contacted after his arrest was Ross Rhoades, who had represented him in previous criminal cases. Rhoades initially recommended that Clayton find someone else to represent him, even though Rhoades had previously tried a capital murder case and numerous other felony cases. Clayton considered two other attorneys, rejecting both of them because he did not trust them, and hired Rhoades. As previously noted, Rhoades used two different defenses at trial. First, he built off the fact that gunpowder residue was not found on Clayton after he was arrested but was found on Martin Cole. Rhoades used this and other weaknesses in the state's case to “hold the state to its burden” and to argue that reasonable doubt existed as to Clayton's guilt. Second, Rhoades relied on evidence about Clayton's 1972 sawmill accident, the loss of nearly eight percent of his brain, and expert testimony of Clayton's lack of mental capacity to deliberate to argue that Clayton could not be found guilty of first-degree murder. This appeal follows the denial of relief in the Rule 29.15 proceeding. [1] The Court will only overturn a trial court's ruling on a post-conviction relief motion if the © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. trial court's findings and conclusions are clearly erroneous. Rule 29.15(k). The presumption that the trial court's rulings are correct can only be *206 defeated if the appellate court “is left with a definite and firm impression that a mistake has been made.” State v. Link, 25 S.W.3d 136, 148-49 (Mo. banc 2000). [2][3] In this case, all of Clayton's claims are based on ineffective assistance of trial counsel. In order to overturn a conviction or a death sentence for ineffective assistance, the defendant must first show that his attorney's conduct fell below an objective standard of reasonableness and second that his attorney's errors prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The attorney's conduct must be so egregious that it undermines the proper functioning of the adversarial process to such an extent that the original trial cannot be relied on as producing a just result. Id. at 686, 104 S.Ct. 2052. [4][5][6][7] The defendant has a heavy burden in proving ineffective assistance. Both parts of the Strickland test must be fulfilled; if he fails to prove either one, no relief can be granted. State v. Kinder, 942 S.W.2d 313, 335 (Mo. banc 1996). The reviewing court presumes that the trial attorney's conduct was reasonable and was not ineffective. State v. Stepter, 794 S.W.2d 649, 657 (Mo. banc 1990). Reasonable choices of trial strategy, no matter how ill fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance. See Sanders v. State, 738 S.W.2d 856, 858 (Mo. banc 1987). Clayton fails to demonstrate that the trial court's findings or conclusions are clearly erroneous. He first argues that his trial attorney was ineffective for pursuing simultaneously both a “reasonable doubt” defense and a diminished capacity defense. Next, he argues that his attorney was ineffective in failing to thoroughly investigate and present the diminished capacity defense alone. Third, Clayton claims that his attorney was ineffective for failing to have Clayton's competency to stand trial adjudicated, and that Clayton was so incompetent during the trial that he was not able to assist the attorney in conducting his defense. Finally, he argues that his attorney was ineffective for not presenting certain mitigating evidence in the trial's penalty phase. These four claims fail to establish that the trial court clearly erred in finding that the conduct of Clayton's trial attorney did not fall below the objective standard of reasonableness demanded by law. [8][9] Trial counsel was not ineffective in arguing that a reasonable doubt of guilt existed and a diminished capacity defense. Missouri courts have long recognized that criminal defendants have the right to present multiple defenses, even if the defenses are somewhat inconsistent. State v. Wright, 352 Mo. 66, 175 S.W.2d 866, 872 (1943). In State v. Lora, the court held that a defendant could not be prevented from offering evidence that he was “feeble-minded,” thus lacking the mental capacity to commit the crime charged, even though he was also relying on the defense of alibi. 305 S.W.2d 452, 455-56 (Mo.1957). As the Court noted, a defense of mental incapacity and alibi are not necessarily inconsistent. Id. at 455. Proof that an individual does not have the capacity to form intent does not negate an alibi defense. Id. The facts underling both defenses can exist simultaneously. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. In this case, asserting that a reasonable doubt of guilt exits and that the accused had diminished capacity are not inconsistent, as Clayton alleges. It is not logically inconsistent to argue that the state failed to prove that Clayton was the shooter and *207 that he did not have the mental capacity necessary to form intent for first-degree murder. Both can be equally true and exist at the same moment in time. While pursuing both defenses in one trial might hurt an attorney's credibility with the jury in some cases, there is no per se rule against an attorney arguing both that the state must prove guilt beyond a reasonable doubt and asserting a diminished capacity defense. The decision to use two defenses turns solely on a question of trial strategy. [10] Making both arguments in Clayton's case was a reasonable choice. A strategic decision is reasonable if it was made with the same skill and diligence another reasonably competent attorney would use under similar circumstances. Sanders, 738 S.W.2d at 858. In this case, Clayton's attorney knew that he did not have a strong case under either theory. Even though there was gunshot residue on Martin Cole's hands, Clayton's attorney knew that Cole had a good alibi for the time of the murder and had no motive to kill the deputy. From his numerous years of felony jury trial experience in the local area, he also knew that juries were very suspicious of “insanity” defenses and hired experts. Finally, the attorney knew of the conflicting evidence about Clayton's mental capacity that would make a diminished capacity defense tough to sell to the jury. The attorney relied on more than his own hunches and experience in deciding to pursue both defenses. He assembled a mock jury made up people out of the same general community where the case was going to be tried and presented the state's evidence and both defenses to them. Most responded favorably toward the reasonable doubt defense, and the panel members did not report a problem with him presenting both defenses. He also had numerous discussions with two other attorneys about the issue and even discussed the matter with Clayton himself. Under the circumstances, the attorney's decision cannot be characterized as clearly unreasonable. The authorities Clayton cites from other jurisdictions in support of his argument are not helpful. For example, he argues that in Ross v. Kemp, the Supreme Court of Georgia found that the presentation of inconsistent defenses is ineffective assistance. 260 Ga. 312, 393 S.E.2d 244, 245 (1990). That is not quite the holding in Kemp.In Kemp, the defendant had two different attorneys, one retained by his family and one appointed by the court, that were both actively involved in questioning witnesses and arguing to the jury. Id. The attorneys never conferred with each other about strategy prior to trial, they argued inconsistent defenses to the jury, and one of them placed the defendant on the stand without preparing him at all to testify. Id. It was all these factors together that resulted in the finding of ineffective assistance of counsel. Obviously, the situation in Clayton's trial was very different. While it may be unusual for an attorney to probe weaknesses in the state's case giving rise to reasonable doubt and also to assert a diminished capacity defense, it is not unheard of or per se unreasonable. In the circumstances of this case, the presentation of both arguments did not fall below the objective standard of reasonableness required by Strickland. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. [11] Clayton's attorney was not ineffective in his investigation and presentation of the diminished capacity defense. It is not ineffective assistance of counsel for an attorney to pursue one reasonable trial strategy to the exclusion of another, even if the latter would also be a reasonable *208 strategy. State v. Ferguson, 20 S.W.3d 485, 508 (Mo. banc 2000). In this case, even though using a diminished capacity defense by itself might have been a reasonable trial strategy, it was also reasonable, as demonstrated above, to argue that a reasonable doubt of guilt existed. The fact that the diminished capacity defense did not get as much emphasis as it might have by itself cannot be an independent basis for an ineffective assistance claim. This was part of the attorney's overall strategic choice, and was not ineffective assistance. [12][13] Clayton also claims that his attorney was ineffective for failing to introduce certain specific items of evidence and for failing to call two particular witnesses in support of the diminished capacity defense. Clayton is incorrect on both counts. First, the selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim. Leisure v. State, 828 S.W.2d 872, 875 (Mo. banc 1992). By deciding to use both defenses, the attorney also decided not to use all of the witnesses and evidence he might have used had he raised diminished capacity alone. [14] Clayton's attorney also had legitimate strategic reasons for not introducing Clayton's school records, Nevada State Hospital records, and Social Security Disability file, as Clayton now claims a reasonable attorney would have done. He argues that these records would have provided the jury with a better picture of his mental capacity and his history of multiple head injuries. From his pre-trial investigation and his own experience with Clayton in the past, the trial attorney knew Clayton's history of head injuries. He knew that while the records might give the jury insight into that history, their introduction also ran the risk of the defense getting mired in a “paper war” with the prosecution, deluging the jury with hundreds of pages of documents and confusing them. Clayton's attorney wanted to keep the picture he painted for the jury simple; that of a man forever changed by a sawmill accident in 1972. The records Clayton now complains about would have complicated that picture and shown the jury that Clayton was also a violent man with a criminal record even before his accident occurred. Also, some of the evidence cast a cloud of doubt over claims about Clayton's mental incapacity. Thus, the attorney's decision was consistent with his trial strategy and was not ineffective assistance. [15][16] The attorney was not ineffective for failing to call Les Paul, a minister, to testify about Clayton's diminished capacity and religious faith. When the attorney contacted Paul prior to trial about testifying about Clayton's good traits, Paul told him that he “couldn't help him.” An attorney is not ineffective for failing to further investigate or call a witness to testify who is unwilling to do so and who cannot be counted on to give testimony favorable to his client. State v. Hall, 982 S.W.2d 675, 686 (Mo. banc 1998). Here, Paul's statement gave the attorney reason to believe that he did not want to testify and that he might offer testimony harmful to Clayton's case. The fact that Paul now claims he only told Clayton's attorney he could not help him because he distrusted the attorney is immaterial. At the time the attorney made the decision not to call him, © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. he was acting reasonably based on Paul's statements to him. An attorney is not required to be omniscient and see the true reasons why a witness does not want to talk to him or testify. [17][18][19] Similarly, Clayton's attorney was not ineffective for failing to call Carolyn*209 Dorsey. While Dorsey could have testified about the change in Clayton's personality after the sawmill accident, the attorney presented other witness who testified about the same thing. An attorney is not ineffective for failing to offer cumulative testimony. Skillicorn v. State, 22 S.W.3d 678, 683 (Mo. banc 2000). Also, Dorsey would have provided the prosecution on crossexamination with the opportunity to show that Clayton had a violent temper even before his accident, undercutting Clayton's diminished capacity defense. It is not ineffective assistance for an attorney not to call a witness that might undermine the whole theory of trial. See State v. Richardson, 923 S.W.2d 301, 328 (Mo. banc 1996). [20][21] Clayton's attorney was not ineffective for failing to adjudicate his competency. Counsel has no duty to investigate a client's mental condition where the client appears to have the present ability to consult rationally with the attorney and understand the court proceedings. Richardson, 923 S.W.2d at 328. In this case, Clayton's attorney had extensive prior involvement with him before this case ever arose. From the fact that Clayton was able to intelligently discuss his legal options with his attorney, and even carry on correspondence with him about the case, the attorney could reasonably conclude that he was competent to stand trial. [22] Clayton has also failed to demonstrate that he was actually incompetent during his trial. The trial court did not find Dr. Daniel Foster, the only expert to testify that Clayton was incompetent, credible. Trial courts have a superior opportunity to judge the credibility of witnesses, and this Court will defer to a trial court's credibility determination even on an expert witness. State v. Simmons, 955 S.W.2d 752, 773 (Mo. banc 1997). In this case, Dr. Foster's determination is especially questionable because even though he said Clayton was incompetent at the time of his trial, he admitted that Clayton understood the role of the prosecutor, the judge, the juror, and even his own attorney in the process. He further stated that Clayton knew what he was charged with, that he was facing the death penalty, and that he was able to discuss his various options with his attorney. Dr. Foster's testimony is further undermined by the fact he examined Clayton for the first time years after the original trial occurred. The judge, who had also presided during Clayton's trial, had more than a reasonable basis to concluded that Dr. Foster's testimony was not credible and that Clayton was competent at the time of his trial. [23] Clayton argues that his trial counsel should have called Carolyn Dorsey, Arnold Evans, Les Paul, Norma Mitchell, and Delores Williams to testify during the penalty phase of his trial. As has been noted before, the selection of particular witnesses in general is a matter of trial strategy and is virtually unchangeable on an ineffective assistance claim. Leisure, 828 S.W.2d at 875. In this case, none of the five witnesses Clayton mentions would have added anything significant to his case during penalty phase. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. [24] Much of the testimony presented by these witnesses would have been needlessly cumulative. Under Missouri law, an attorney is not ineffective for failing to put on cumulative evidence. Skillicorn, 22 S.W.3d at 683. Clayton argues Evans, Dorsey, Paul, Williams, and Mitchell all should have been called to testify about his background, his religious faith, his religious*210 ministry to others, or the change in his personality after the accident. During the original trial, Clayton's two brothers and the chaplain from the county jail gave similar testimony, although sometimes they relied on different incidents. Much of the information the witness would have provided was on Clayton's background. There is no requirement that an attorney present any background information on his client during a capital trial's penalty phase. Richardson, 923 S.W.2d at 329. Their testimony may well have undercut the defense's argument that Clayton's brain injury and ensuing mental incapacity were mitigating factors. For example, Dorsey would have testified about Clayton's violent temper as a young man and would have helped the prosecution argue that Clayton's brain injury was not the only reason behind his actions. Paul would have also testified about how Clayton was still able to do complex mental tasks after his injury, like preaching in revivals. Because the testimony of these five witnesses would have added little to Clayton's case and in some ways may have harmed it, his attorney was not ineffective for failing to call them. Clayton has not demonstrated that his attorney's conduct fell below the objective standard of reasonableness demanded of criminal practitioners. In this regard, the finding and conclusions of the post-conviction court are not clearly erroneous. The judgment is affirmed. All concur. Mo.,2001. Clayton v. State 63 S.W.3d 201 END OF DOCUMENT © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works. Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 1 of 82 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI WESTERN DIVISION CECIL CLAYTON, Petitioner, v. AL LUEBBERS, Supt., Potosi Correctional Center Respondent. ) ) ) ) ) ) ) ) ) ) Case No. 02-MC-8001-CV-W-NKL CAPITAL CASE ORDER Pending before the Court is Cecil Clayton’s (“Clayton”) Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 [Doc. # 46]. The Court denies Clayton’s Petition. I. Factual Background A. Clayton’s Pre-Offense Background As a young man, Clayton had “a violent, quick temper and had several run-ins with the law.” Clayton v. State, 63 S.W.3d 201, 205 (Mo. 2001). During the 1960s, he underwent a religious conversion after which he stopped drinking alcohol and began to attend church regularly. Clayton also began preaching and singing at religious worship services. In 1972, Clayton suffered a traumatic head injury while working at a sawmill. A piece of wood broke off a log he was working on and became embedded in his head. 1 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 2 of 82 Clayton underwent surgery to remove the wood from his head and, during the extraction process, surgeons had to remove approximately eight percent of Clayton’s brain. After his head injury, Clayton tried other types of work and briefly worked as a police officer for a small municipality in Missouri. Eventually, Clayton discontinued full time employment and received social security disability benefits. He continued to do various odd jobs. Clayton’s personal life took a downturn after his head injury. He stopped preaching and evangelizing and he resumed drinking alcohol. He and his wife divorced and he became increasingly violent and agitated with members of his extended family. B. The Offense In November of 1996, Cecil Clayton and Martha Ball (“Ball”) were romantically involved, but the relationship was ending. On November 26, 1996, they agreed to meet at the Country Corner, a store in Purdy, Missouri, so that Clayton could return some papers Ball had left at his house. Clayton arrived at the store without the papers. Clayton requested that Ball go with him to his home to get the papers but she refused. He left and returned with the papers. When Clayton returned with the papers, he and Ball began to argue in the store. The clerk, Barbara Starkey, called the police. Officer Jim McCracken, the Chief of Police in Purdy, responded to the call. Clayton left the store after Chief McCracken arrived. Ball was staying with her mother, Dixie Seal (“Seal”), in Cassville and she asked Chief McCracken if he would escort her there. However, before the escort was arranged, Ball 2 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 3 of 82 left the store to go to Vicky Deeter’s (“Deeter”) home in Monett. At around 9:50 p.m., Ball’s sister, Carolyn Leonard (“Leonard”), noticed a truck at the end of Seal’s driveway. She believed the truck belonged to Clayton and she called the police. Deputy Christopher Castetter (“Castetter”) arrived at Seal’s home at 10:03 p.m. When Castetter did not respond to calls from the dispatcher, David Bowman (“Bowman”) and Jason Manning (“Manning”), who were fellow officers with Castetter, went to the scene. They found Castetter in his police car slumped over in his seat. Castetter’s weapon was still snapped in its holster. Manning attempted to assist Castetter who was bleeding heavily from his head and having trouble breathing. Bowman contacted the dispatcher at 10:07 p.m. for an ambulance. Later that night, Castetter died from a single gunshot to the head. Bowman then contacted Seal and Leonard to obtain a description of the truck that was in the driveway. Bowman contacted the dispatcher and described the truck. Chief McCracken heard the description of the vehicle. He recognized the truck as the same vehicle that Clayton had been driving earlier at the Country Corner store. Chief McCracken met another law enforcement official from a neighboring jurisdiction and they went to Clayton’s residence. Around 10:15 p.m., Clayton arrived at Martin Cole’s (“Cole”) home. They drove together in Clayton’s truck to Clayton’s home. According to Cole, Clayton said that he had shot a police officer in the head and displayed a gun to Cole. Clayton asked Cole to 3 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 4 of 82 tell the police that he and Clayton were together all evening watching television. Clayton and the police arrived at his home at about the same time. Chief McCracken saw Clayton get out of his truck. McCracken tried to engage Clayton in conversation, but he refused to come near the officer, professing that he could not hear Chief McCracken. Clayton kept his right hand in his pocket. Clayton walked toward the side of his house to a pile of concrete blocks, removed something from his pocket, and bent over. Clayton then returned to his truck. The police arrested Clayton and impounded his truck. Chief McCracken examined the block pile and found a .38 caliber gun, which contained four live rounds and one expended cartridge. Later testing could neither confirm nor rule out that the bullet recovered from Castetter’s body was fired from the gun. Later that night, Clayton was questioned about Castetter’s murder. When confronted with evidence that Clayton had been at the scene of the murder, Clayton responded, “He probably should have just stayed home. . . . He shouldn’t have smarted off to me. . . . But I don’t know because I wasn’t out there.” The police obtained paint transfer samples from Castetter’s patrol car and from Clayton’s truck. The samples from Clayton’s truck were of similar color and chemical composition to the paint transfers from the patrol car. A piece of black molded plastic found at the crime scene fit perfectly into a damaged area of the tail-light of Clayton’s truck. Clayton and Cole submitted to gunshot residue tests. Clayton’s test was negative, but Cole’s test was consistent with having fired a weapon. 4 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 5 of 82 Clayton was incarcerated in the Lawrence County Jail and shared a cell with William Rogers (“Rogers”) and Robert Compton (“Compton”). According to these jailhouse informants, Clayton told them that he had shot a police officer. C. State Court Proceedings 1. Pretrial Period Clayton retained Attorney Ross Rhoades (“Rhoades”), who was assisted by his daughter, Christine. Before the trial, Rhoades hired Patrick Berrigan (“Berrigan”) to consult on the case and help Rhoades with voir dire. Since 1990, Berrigan worked exclusively on capital cases and represented over fifty capital defendants. To help prepare Rhoades for voir dire, Berrigan reviewed all of the police reports concerning the case. After Berrigan reviewed the police reports, he discussed the case with Ross and Christine Rhoades. In the guilt phase, Rhoades wanted to assert that Clayton was not guilty, because there was no gunshot residue on Clayton’s hands, but there was gunshot residue on Cole’s hands. In the penalty phase, Rhoades intended to base his mitigation theory on Clayton’s brain damage that he suffered after a 1972 sawmill accident. Berrigan vehemently advised Rhoades to abandon the not guilty theory and present a guilt phase defense of diminished capacity. In Berrigan’s opinion, diminished capacity was the only viable defense. Berrigan advised Rhoades to abandon the not guilty theory, because the evidence was “fairly overwhelming” that Clayton was the shooter, and because it is “a disaster” to present a guilt phase defense that is inconsistent with the mitigation theory, because the defense will have no credibility with the jury. 5 Case 4:02-cv-08001-NKL 2. Document 105 Filed 04/27/2006 Page 6 of 82 Trial a. Guilt Phase Through his cross-examination of the State’s witnesses, Rhoades emphasized the lack of evidence of guilt. From Bowman, one of the first officers to arrive at the scene, he elicited testimony that Leonard, Martha Ball’s sister, did not tell Bowman that she saw Clayton on the night of the shooting. Rhoades elicited testimony from Leonard that she did not like Clayton and did not want him to have a relationship with her sister. Rhoades also elicited testimony that the officer who arrested Clayton did not see what, if anything, Clayton removed from his pocket while standing beside the cement blocks; he saw no gun in Clayton’s possession. On cross-examination of the State’s ballistics expert, Rhoades emphasized that it was impossible to determine whether the bullet recovered from Castetter was fired from the gun recovered at Clayton’s home, and that the land width measurements of the recovered bullet did not correspond to the measurement of bullets test fired from Clayton’s gun. On cross-examination of the State’s trace evidence expert, Rhoades emphasized that a paint match is not conclusive. Mr. Rhoades also elicited testimony that Clayton did not have gunshot residue on his hands or clothing, but that Cole, who is left-handed, had gunshot residue on his left hand. The State presented the testimony of two jailhouse informants, Rogers and Compton. They testified that Clayton had admitted to them while incarcerated that he had shot a police officer. They further testified that Clayton told them he could not tolerate law enforcement officers and that they all deserved to be shot. 6 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 7 of 82 In the defense’s case-in-chief, Rhoades called Clayton’s brother, Marvin, to describe the sawmill accident that caused Clayton’s brain injury. Dr. Bettye Back, one of Clayton’s experts who testified at trial, described his brain injury in detail and testified that Clayton’s brain damage made him incapable of deliberating. In closing argument, the prosecutor said Dr. Back’s testimony was “preposterous,” “voodoo,” and an “excuse.” In the defense’s closing argument, Rhoades first argued that Mr. Clayton was brain damaged and was incapable of deliberation. Rhoades then argued that what happened was a “mystery” or “puzzle,” and there was reasonable doubt as to Mr. Clayton’s guilt. Rhoades suggested that Clayton may have been at the crime scene, he may have been with someone else, or he may not have been there at all. In rebuttal, the prosecutor criticized the defense for suggesting that Cole was the shooter and for being inconsistent. The prosecutor pointed out that Mr. Cole could not have been the shooter, because he had an alibi. The jury found Clayton guilty of firstdegree murder. b. Penalty Phase During the penalty phase, the State presented evidence that Clayton was on probation for assault at the time of Castetter’s death and had a reputation for violence in the community. Evidence concerning Clayton’s prior assault convictions was admitted, including a large photograph of one of the assault victims, covered with blood. On cross-examination, the defense developed evidence that while on probation, Mr. Clayton paid his court-ordered restitution, attended Alcoholics Anonymous meetings and, 7 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 8 of 82 as a result of his good adjustment, was placed on mail-in supervision. The defense also presented evidence that the injuries to the assault victim in the picture were minor, that Mr. Clayton had adjusted well to the Jasper County Jail, including his participation in jail religious services. Clayton’s brother, Jerry, testified about his brother’s work as a minister, and about the change in his personality that occurred after his head injury. After further instruction and deliberation, the jury imposed the death penalty. II. Procedural Background On June 29, 1999, the Missouri Supreme Court affirmed Mr. Clayton’s conviction and sentence. State v. Clayton, 995 S.W.2d 468 (Mo. 1999). Clayton filed a timely petition for writ of certiorari to the United States Supreme Court. Certiorari was denied on November 29, 1999. Clayton v. Missouri, 528 U.S. 1027 (1999). Clayton filed a timely motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 29.15. An evidentiary hearing was held in the trial court. The trial court denied relief on Clayton’s post-conviction motion and the Missouri Supreme Court affirmed on December 4, 2001. Clayton v. State, 63 S.W.3d 201 (Mo. 2001). Rehearing was denied on January 22, 2002. A timely petition for writ of certiorari to the United States Supreme Court was denied on June 3, 2002. Clayton v. State, 535 U.S. 1118 (2002). After filing his pending Petition for habeas relief in this Court, Clayton moved to stay these proceedings based on his lack of competence. The Court has denied Clayton’s Motion, finding that Clayton is competent to pursue his habeas Petition. See Order [Doc. 8 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 9 of 82 # 104]. III. Standard of Review State prisoners who believe that they are incarcerated in violation of the Constitution or laws of the United States may file a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Before doing so, petitioners must exhaust their state remedies. See Coleman v. Thompson, 501 U.S. 722, 732 (1991). Section 2254 has been amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132 (Apr. 24, 1996). Under AEDPA, federal courts considering habeas petitions must “exercise only limited and deferential review of underlying state court decisions.” See Lomholt v. Iowa, 327 F.3d 748, 751 (8th Cir. 2003). Specifically, AEDPA mandates that a federal court may not grant a writ of habeas corpus unless the state court’s decision (1) was “contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States,” (2) “involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States,” or (3) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. at 752. A state court decision is “contrary to” clearly established Supreme Court precedent “if the state court arrives at a conclusion opposite to that reached by [the] Supreme Court on a question of law or . . . decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362 (2000). A state court decision involves an unreasonable application of clearly established 9 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 10 of 82 Supreme Court precedent “if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.” Id. “‘An unreasonable application of federal law is different from an incorrect application of federal law.’” Carter v. Bowersox, 265 F.3d 705, 713 (8th Cir. 2001) (quoting Williams, 529 U.S. at 410). “Thus, ‘a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.’” Id. (quoting Williams, 529 U.S. at 411). A state decision also represents an unreasonable application of federal law if it “‘unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.’” Moore v. Purkett, 275 F.3d 685, 688 (8th Cir. 2001) (quoting Williams, 529 U.S at 362). Finally, a state court decision involves “an unreasonable determination of the facts in light of the evidence presented in state court proceedings . . . only if it is shown by clear and convincing evidence that the state court's presumptively correct factual findings do not enjoy support in the record.” Whitehead v. Dormire, 340 F.3d 532, 536 (8th Cir. 2003); see also Kenley v. Bowersox, 275 F.3d 709, 711-12 (8th Cir. 2002) (the state court’s “factual findings carry a presumption of correctness that will be rebutted only by clear and convincing evidence.”). IV. Discussion 10 Case 4:02-cv-08001-NKL A. Document 105 Filed 04/27/2006 Page 11 of 82 Claim 1: Ineffective Assistance of Counsel for Presenting Alternative Theories of Defense at Trial Clayton alleges that Rhoades provided ineffective assistance during his trial because Rhoades presented alternative theories of defense. During the trial, Rhoades argued that Clayton did not shoot Castetter, but he also argued that, even if Clayton had shot Castetter, Clayton had diminished capacity because of his mental impairments. Clayton argues it was ineffective assistance of counsel for Rhoades to present alternative theories of defense. To establish ineffective assistance of counsel, a movant must satisfy a two-part test. First, the movant must prove that his counsel’s representation was deficient, and second, that the deficient performance prejudiced his case. Strickland v. Washington, 466 U.S. 668, 687 (1984). A counsel’s performance is deficient if he or she “failed to exercise the customary skills and diligence that a reasonably competent attorney would have exhibited under similar circumstances.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (internal quotation omitted). The prejudice component “focuses on the question [of] whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). “Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him.” Id. Further, “[w]hen considering whether the defense suffered prejudice, [the] court must determine whether 11 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 12 of 82 there is a reasonable probability (sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Blankenship v. United States, 159 F.3d 336, 338 (8th Cir. 1998) (internal quotation omitted). Counsel’s “‘strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’” Johnston v. Luebbers, 288 F.3d 1048, 1055 (8th Cir. 2002) (quoting Strickland, 466 U.S. at 690-91). Trial counsel’s judgment is entitled to substantial deference. Bucklew v. Luebbers, 436 F.3d 1010, 1016 (8th Cir. 2006). Clayton’s allegation concerning his counsel’s incompetence was raised in his Rule 29.15 Motion and reviewed by the Missouri Supreme Court on appeal. Clayton, 63 S.W.3d at 206. The Missouri Supreme Court rejected Clayton’s contention that Rhoades’s presentation of alternative theories of defense rose to the level of ineffective assistance. The Missouri Supreme Court stated: “Proof that an individual does not have the capacity to form intent does not negate an alibi defense. The facts underling [sic] both defenses can exist simultaneously.” Id. (citing State v. Lora, 305 S.W.2d 452, 455-56 (Mo. 1957)). Discussing Clayton’s specific case, the court stated, It is not logically inconsistent to argue that the state failed to prove that 12 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 13 of 82 Clayton was the shooter and that he did not have the mental capacity necessary to form intent for first-degree murder. Both can be equally true and exist at the same moment in time. While pursuing both defenses in one trial might hurt an attorney’s credibility with the jury in some cases, there is no per se rule against an attorney arguing both that the state must prove guilt beyond a reasonable doubt and asserting a diminished capacity defense. The decision to use two defenses turns solely on a question of trial strategy. Id. at 206-07. The court further concluded that Rhoades’s choice was reasonable in Clayton’s case because he did not have a good defense under either theory. Id. The court also pointed to Rhoades’s thorough preparation for the trial--including the use of a mock jury that did not reject his use of alternative theories of defense--as further evidence that his trial strategy was reasonable. Id. In support of his contention that Rhoades’s assistance was ineffective, Clayton points to the fact that Berrigan advised Rhoades to abandon his argument that Clayton did not commit the crime and instead focus on Clayton’s diminished capacity. Clayton also points to the State’s attack on Rhoades’s approach during its closing argument and identifies a letter that Rhoades sent to Berrigan wherein he conceded that he should not have pursued the alternative theories. According to Clayton, Rhoades wrote, “It was not until the trial had been completed and some days had passed before I fully realized how inadequate and inept I was in attempting to spare [Clayton] from the death penalty. As you pointed out to me, but I was unwilling to listen, our chances of succeeding in the first phase were minimal.” The letter was presented as an exhibit during Clayton’s postconviction hearing. See Clayton Ex. G at p. 974. 13 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 14 of 82 Rhoades’s letter is not determinative of whether his conduct fell below the standard for reasonable counsel. See United States v. Eyman, 313 F.3d 741, 743 (2nd Cir. 2002) (“It is the magnitude of those errors that is determinative; trial counsel’s admission that his performance was deficient is not dispositive.”); Chandler v. United States, 218 F.3d 1305, 1316 n. 16 (11th Cir. 2000) (“Because the standard is . . . objective . . . , that trial counsel admits that his performance was deficient matters little.”) (citing Tarver v. Hopper, 169 F.3d 710, 716 (11th Cir. 1999)). Moreover, there is evidence that Rhoades’s letter was the product of his remorse at the trial’s outcome rather than his belief about his competency as Clayton’s counsel. Rhoades later admitted during the post-conviction proceeding that he “absolutely” felt “bad and upset” after Clayton was found guilty. Id. at p. 975. He did not concede that he believed his representation was ineffective and he merely stated, “I would hope that that is not the case.” Id. He also testified that he did not believe at the time of the trial that his representation was ineffective. Id. at p. 976. Thus, Rhoades’s letter to Berrigan does not establish that his counsel was ineffective. Clayton has failed to demonstrate that the Missouri Supreme Court’s determination was “contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States.” Lomholt, 327 F.3d at 752. To the contrary, federal courts have found that arguing alternative theories of defense is not unreasonable. See Singleton v. Lockhart, 871 F.2d 1395 (8th Cir. 1989) (counsel in capital case not ineffective for arguing factual innocence and the applicability of a lesser-included offense); Hunt v. 14 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 15 of 82 Nuth, 57 F.3d 1327 (4th Cir. 1995) (counsel in capital case not ineffective for arguing both factual innocence and lack of deliberation due to intoxication); and Brown v. Dixon, 891 F.2d 490 (4th Cir. 1989) (counsel not ineffective in capital case for asserting petitioner’s drunkenness and factual innocence as alternative theories for acquittal). In Singleton, the Eighth Circuit stated, “There is nothing unusual about arguing inconsistent or alternative theories of defense.” Singleton, 871 F.2d at 1400. The court noted that, given that the petitioner was facing the death penalty, “gambling on an all-ornothing defense could well have been less reasonable than arguing a fallback position in addition to a claim of total innocence.” Id. Clayton has also failed to demonstrate that the Missouri Supreme Court’s decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Id. Clayton asserts that his mental impairments created a better case for his diminished capacity defense and that the Missouri court erred when it stated that Clayton’s argument was weak under either theory, but there is ample evidence to support the Missouri Supreme Court’s contrary conclusion. The Court denies Clayton’s first claim for relief. B. Claim 2: Ineffective Assistance of Counsel for Failure to Adequately Investigate and Present Diminished Capacity Defense at Trial Clayton states that Rhoades was ineffective for failing to adequately develop the defense of diminished capacity, even though Rhoades retained an expert to explain his brain injury and testify that Clayton could not deliberate. Specifically, Clayton argues 15 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 16 of 82 that Rhoades was ineffective for not introducing records from the Nevada State hospital, his Social Security file, and his school records. Clayton also argues that Rhoades was ineffective for not presenting the testimony of Carolyn Dorsey (“Dorsey”), Arnold Evans (“Evans”), and Leslie Paul (“Paul”) so they could testify about how Clayton’s behavior dramatically changed after the 1972 sawmill accident. 1. Records The Missouri Supreme Court held that Rhoades did not render ineffective assistance of counsel by failing to introduce the voluminous records now identified by Clayton. The court stated: Clayton’s attorney also had legitimate strategic reasons for not introducing Clayton’s school records, Nevada State Hospital records, and Social Security Disability file, as Clayton now claims a reasonable attorney would have done . . . . [Rhoades] knew that while the records might give the jury insight into [Clayton’s] history, their introduction also ran the risk of the defense getting mired in a “paper war” with the prosecution, deluging the jury with hundreds of pages of documents and confusing them. Clayton’s attorney wanted to keep the picture he painted for the jury simple; that of a man forever changed by a sawmill accident in 1972. The records Clayton now complains about would have complicated that picture and shown the jury that Clayton was also a violent man with a criminal record even before his accident occurred. Also, some of the evidence cast a cloud of doubt over claims about Clayton’s mental incapacity. Thus, the attorney’s decision was consistent with his trial strategy and was not ineffective assistance. Clayton, 63 S.W.3d at 208. The Nevada State Hospital records, which date from 1974 (two years after Clayton’s sawmill accident), reflect that Clayton “had a high temper and was very highstrung even back in his teens, when he was always getting into fights.” See Resp. Ex. K 16 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 17 of 82 at p. 12. The records also state that “[e]ven before the accident people were inclined to irritate him and he didn’t like to be in crowds.” Id. at p. 9. They also state that Clayton had a “bad reputation for drinking and getting into fights” before his marriage. Id. Clayton contends that the foregoing is but a minor snapshot from the records and it was ineffective assistance for Rhoades not to present the records in their entirety. Clayton points to specific comments that reference Clayton’s inability to work “without getting upset” and the doctor’s conclusion that Clayton “may find himself expending a great deal of emotional energy trying to control himself.” Id. at pp. 6, 9. Clayton also asserts the records contain evidence of head injuries that pre-dated his 1972 sawmill accident, including being dropped on the head when he was an infant and an automobile accident. At best, the records identified by Clayton are contradictory about the status of Clayton’s mental capacity. While some comments lend credence to Clayton’s argument, the records do not overwhelmingly demonstrate that Clayton lacked the capacity to deliberate when he shot Castetter, and there is evidence in them that would be detrimental to Clayton’s defense. Thus, Clayton has failed to demonstrate that it was unreasonable for the Missouri Supreme Court to determine that the records would not have been of substantial help to Clayton. Similarly, it was not unreasonable for the Missouri Supreme Court to find that Rhoades’s failure to introduce Clayton’s Social Security Disability file was ineffective assistance of counsel. Both parties cite extensive evidence from the voluminous Social 17 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 18 of 82 Security Disability file, which contains conflicting evidence about Clayton’s mental capacity to engage in employment. Clayton concedes the records are “voluminous” (see Traverse [Doc. # 65] at p. 17, n. 5), which supports Rhoades’s reason for excluding them because they might confuse the jury. Also, the records contain notations from Clayton’s physicians undermining his claim of mental impairments. Moreover, the records proffered by Clayton focus on his ability to work, making them only marginally relevant to his claim of mental incapacity. Finally, Clayton contends that Rhoades should have introduced his school records to present a clearer picture of his mental challenges. Clayton asserts that the records would have demonstrated to the jury the “before and after” effect of the 1972 sawmill accident because they would have shown that Clayton previously had better mental capacity. However, Clayton’s brother, Martin Clayton, testified that Clayton was a good student and that he was “fairly smart.” See Resp. Ex. A-10 at p. 1518:21-22. Thus, the fact that Clayton was a good student before the accident was admitted into evidence and the failure to present cumulative evidence cannot constitute ineffective assistance of counsel. See Hall v. Luebbers, 296 F.3d 685, 693 (8th Cir. 2002) (“We conclude that failure to present cumulative evidence is neither contrary to nor an unreasonable application of the governing principles found in Strickland.”); Henderson v. Norris, 118 F.3d 1283, 1288 (8th Cir. 1997) (“Counsel’s failure to proffer evidence that was both inadmissible and cumulative does not constitute ineffective assistance.”). Finally, counsel’s “[decision] to introduce only some of the available evidence on 18 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 19 of 82 a point [does] not, unless ‘deficient in some significant respect,’ fail the first Strickland prong.” Fretwell, 133 F.3d at 628 (quoting Smith v. Armontrout, 888 F.2d 530, 535 (8th Cir. 1989)). 2. Witnesses Clayton also argues that Rhoades provided ineffective assistance when he failed to present the testimony of Dorsey, Evans, and Paul to support Clayton’s diminished capacity defense. a. Arnold Evans According to Clayton, “Arnold Evans, a minister, could have been called at the guilt phase to testify concerning the changes he saw in Mr. Clayton after the 1972 injury. This testimony would have had the added benefit of placing evidence of Mr. Clayton’s prior good works before the jury at the guilt phase.” See Traverse [Doc. # 65] at p. 22. In his Rule 29.15 Motion, Clayton identified Evans as a witness who could have presented mitigating evidence during the penalty phase. He never references Evans as a witness during the guilt phase of the trial, and the Missouri Supreme Court’s Order affirming the denial of Clayton’s Rule 29.15 Motion only addresses Evans as a mitigation witness. To the extent that Clayton now wants this Court to consider Evans as a diminished capacity witness during the guilt phase, that claim is barred because it was never presented to the Missouri courts for consideration. See Reese v. Delo, 94 F.3d 1177, 1181-82 (8th Cir. 1996) (en banc) (claim not properly preserved at state level is barred 19 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 20 of 82 from federal habeas review) (citation omitted). b. Leslie Paul Paul is a minister who worked with Clayton and Clayton states that he could have offered testimony about Clayton’s diminished capacity and his religious faith. The Missouri Supreme Court found that Rhoades’s failure to call Paul as a witness was not ineffective assistance because: When the attorney contacted Paul prior to trial about testifying about Clayton’s good traits, Paul told him that he “couldn’t help him.” . . . Here, Paul’s statement gave the attorney reason to believe that he did not want to testify and that he might offer testimony harmful to Clayton’s case. The fact that Paul now claims he only told Clayton’s attorney he could not help him because he distrusted the attorney is immaterial. At the time the attorney made the decision not to call him, he was acting reasonably based on Paul’s statements to him. An attorney is not required to be omniscient and see the true reasons why a witness does not want to talk to him or testify. Clayton, 63 S.W.3d at 208. Clayton concedes that Rhoades contacted Paul and Paul told Rhoades he could not help him, but Clayton states that it was because Paul had a hearing difficulty and he “ha[d] a bad impression of trial counsel.” See Traverse [Doc. # 65] at p. 20. Clayton further states, “[w]hile trial counsel is not required to be omniscient, he is required to have sufficient common sense to make arrangements for a face-to-face meeting with a potential witness who has a hearing problem. Trial counsel’s failure to do this was not reasonably effective assistance of counsel.” Id. The undisputed evidence is that Rhoades contacted Paul and Paul said “he couldn’t help [Clayton].” There is no evidence that Rhoades knew that Paul had a hearing 20 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 21 of 82 problem and Paul didn’t indicate he was having problems hearing during the conversation. Clayton has failed to show that the Missouri Supreme Court was unreasonable when it found that Rhoades was not ineffective for failing to call Paul as a witness. c. Carolyn Dorsey Dorsey is Clayton’s sister. Regarding Dorsey’s testimony about Clayton’s diminished capacity during the guilt phase, the Missouri Supreme Court stated: While Dorsey could have testified about the change in Clayton’s personality afer the sawmill accident, the attorney presented other witness [sic] who testified about the same thing. . . . Also, Dorsey would have provided the prosecution on cross-examination with the opportunity to show that Clayton had a violent temper even before his accident, undercutting Clayton’s diminished capacity defense. Clayton, 63 S.W.3d at 209. Clayton takes issue with the Missouri Supreme Court’s conclusion that Dorsey’s testimony would be cumulative. “Dorsey’s testimony concerning specific instances of Mr. Clayton’s conduct which illustrated the changes in Mr. Clayton’s behavior over the years was not duplicated by Marvin Clayton or by any other witness.” See Traverse [Doc. # 65] at p. 21. Clayton does not cite to any specific example nor does he outline what Dorsey’s testimony would have been. Absent some evidence that Dorsey’s testimony was not cumulative, the Court cannot find that the Missouri Supreme Court’s holding is an “unreasonable determination” of the facts, because counsel’s failure to present cumulative evidence does 21 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 22 of 82 not support an ineffective assistance of counsel claim. See Hall, 296 F.3d at 693; Henderson, 118 F.3d at 1288. In addition, the Missouri Supreme Court found that if Dorsey were called as a witness, she would have to reveal on cross examination that Clayton assaulted his high school principal in 1968 and went to jail, thereby undermining his defense that his violent predilections began after the sawmill accident in 1972. If Rhoades had permitted this evidence in, it is likely that Clayton would be claiming that Rhoades rendered ineffective assistance of counsel by calling Dorsey to the stand. The Missouri Supreme Court’s conclusion on this issue is clearly reasonable. In support of his claim, Clayton cites Brown v. Sternes, 304 F.3d 677 (7th Cir. 2002), for the proposition that trial counsel is ineffective when counsel decides to pursue a defense based on mental capacity but then fails to perform an adequate investigation. Clayton, however, ignores that Rhoades did perform an adequate investigation--he contacted Paul who indicated he did not want to help and he contacted Dorsey, but opted not to call her as a witness because of the harmful evidence she would have to reveal. Rhoades cannot be found ineffective for this trial strategy. Graham v. Dormire, 212 F.3d, 437, 440 (8th Cir. 2000). The Missouri Supreme Court evaluated Clayton’s second claim in its entirety and determined that it lacked merit. This Court cannot reject that determination without some evidence that the court’s presumptively correct factual determinations “do not enjoy support in the record.” Whitehead, 340 F.3d at 536. Clayton has not made such a 22 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 23 of 82 showing and his second claim for relief is denied in its entirety. C. Claim 3: Ineffective Assistance of Counsel for Failure to Assess Clayton’s Competency to Stand Trial Clayton asserts that Rhoades provided ineffective assistance of counsel when he failed to have Clayton’s competency assessed. On this issue, the Missouri Supreme Court stated: Clayton’s attorney was not ineffective for failing to adjudicate his competency. Counsel has no duty to investigate a client’s mental condition where the client appears to have the present ability to consult rationally with the attorney and understand the court proceedings. In this case, Clayton’s attorney had extensive prior involvement with him before this case ever arose. From the fact that Clayton was able to intelligently discuss his legal options with his attorney, and even carry on correspondence with him about the case, the attorney could reasonably conclude that he was competent to stand trial. Clayton, 63 S.W.3d at 209. Clayton argues the Missouri Supreme Court’s determination is not reasonable because Jeff Tichenor (“Tichenor”), a physician’s assistant who treated Clayton from January through March 1997, advised Rhoades to obtain a psychiatric evaluation for Clayton. Tichenor testified during the post-conviction hearing that he told Rhoades about Clayton’s symptoms, including poor hygiene, agitation, and reports of Clayton smearing feces on the wall of his cell. See Resp. Ex. G-4 at pp. 521 and 529. Rhoades allegedly told Tichenor that another inmate had contacted him and told him that Clayton was sleeping all day and he was heavily sedated. Id. After this was brought to Tichenor’s attention, he discovered that Clayton’s medication dosage had been doubled and he was 23 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 24 of 82 receiving sixteen milligrams per day of Ativan, rather than the prescribed eight milligrams. Id. at p. 530. On cross-examination, Tichenor admitted that he was not certified under Missouri law to conduct a psychiatric evaluation, he is not a medical doctor, and he has no specialized psychological training. Id. at pp. 532-33. Respondent argues that the Missouri Supreme Court’s determination is not unreasonable because all other signs pointed to Clayton being competent for trial. Rhoades retained Dr. Bettye Back to conduct a neuropsychological evaluation of Clayton in June 1997--after Tichenor’s treatment of Clayton. See Resp. Ex. I at p. 3. Dr. Back is a clinical psychologist with a specialty in neuropsychology. Id. Although she was not retained specifically to evaluate Clayton’s competency, Dr. Back stated that she believed in June 1997 that Clayton was competent to stand trial and that, had she thought otherwise, she would have told Rhoades he was not competent. See Resp. Ex. I-1 at pp. 77-78. According to Rhoades’s testimony, he asked Dr. Back to let him know if there was a problem with Clayton’s competency. See Resp. Ex. G-6 at pp. 891, 967. Similarly, Clayton’s first attorney was Berrigan who, at the time, worked in the Capital Litigation Unit of the Missouri Public Defender’s Office. Berrigan was initially assigned to Clayton’s case until Clayton opted to retain Rhoades for his trial. See Resp. Ex. G at p. 635. Berrigan met with Clayton after he was arraigned. According to Berrigan, Clayton was able to provide him information and communicate with him about his family. Id. at p. 681. Clayton also expressed an interest in switching judges. Id. at p. 678. Later in the interview, Clayton, himself, asked about obtaining a mental evaluation. 24 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 25 of 82 Id. at p. 683. Rhoades had previously represented Clayton in a 1992 assault case and Clayton showed no signs of incompetence during that proceeding. See Resp. Ex. G-6 at p. 929. Rhoades testified that in 1997 Clayton did not manifest anxiousness and that he had “no more than average” problems with his memory. Id. at p. 896. Rhoades also testified that in preparing for trial, he would discuss case alternatives with Clayton and Clayton would ask him questions about them. Id. at p. 897. Rhoades and Clayton discussed whether Clayton wanted to pursue a mental health defense and whether to seek a change of venue. See Resp. Ex. G-6 at pp. 897, 935. After discussing possible venues, Clayton and Rhoades agreed that Jasper County would be an acceptable venue. Id. at 936. Rhoades also testified that he would send materials to Clayton regarding the facts of the case and they would review them together with Rhoades asking him questions; Rhoades later testified that Clayton “answered every question I asked him.” Id. at pp. 939, 943. Ultimately, Rhoades testified that there were no indicators to suggest that Clayton did not understand the charges against him or that he was unable to assist Rhoades. Id. at 939. The testimony of Christine Rhoades, who served as co-counsel in the case, supports the testimony of Ross Rhoades. She testified that Clayton provided input during the trial about witnesses, both before and after they testified. See Resp. Ex. G-5 at 815. She also observed Clayton and her father discuss whether he should testify during the suppression hearing. Id. at p. 815-16. The only evidence supporting Clayton’s claim that Rhoades’s conduct fell below 25 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 26 of 82 an acceptable standard of care is Tichenor’s statement in early 1997 to Rhoades that Clayton should receive a psychological evaluation. However, the undisputed evidence reveals that Rhoades adhered to Tichenor’s advice when he retained Dr. Back to evaluate Clayton in June 1997. Having received Dr. Back’s report about Clayton, with no indication that he was incompetent to proceed, Rhoades opted not to further explore the issue. Given that Dr. Back is a clinical psychologist with a specialty in neuropsychology, while Tichenor is a physician’s assistant with no special training in psychology, Rhoades’s decision to give more weight to Dr. Back’s opinion is not unreasonable; particularly, where Rhoades was interacting with Clayton and Rhoades did not perceive that Clayton was incompetent to stand trial. Even assuming Clayton can establish that Rhoades’s conduct fell below a reasonable standard, he has not satisfied the prejudice prong of the Strickland analysis because he has not showed that Clayton was actually incompetent to stand trial. He points to the testimony of Dr. Foster as evidence of incompetency, but the state courts rejected that contention. The Court must “presume the state court’s finding of competence is correct.” Lyons v. Luebbers, 403 F.3d 585, 593 (8th Cir. 2005) (citing Boyd v. Delo, 999 F.2d 1286, 1289 (8th Cir. 1993); Reynolds v. Norris, 86 F.3d 796, 800 (8th Cir. 1996)). The Missouri Supreme Court held that: Clayton has also failed to demonstrate that he was actually incompetent during his trial. The trial court did not find Dr. Daniel Foster, the only expert to testify that Clayton was incompetent, credible. . . . In this case, Dr. 26 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 27 of 82 Foster’s determination is especially questionable because even though he said Clayton was incompetent at the time of his trial, he admitted that Clayton understood the role of the prosecutor, the judge, the juror, and even his own attorney in the process. He further stated that Clayton knew what he was charged with, that he was facing the death penalty, and that he was able to discuss various options with his attorney. Dr. Foster’s testimony is further undermined by the fact he examined Clayton for the first time years after the original trial occurred. Clayton, 63 S.W.3d at 209. The Missouri Supreme Court accurately characterized Dr. Foster’s testimony. Dr. Foster examined Clayton three years after his crime, which he conceded was unusual. See Resp. Ex. G-3 at pp. 420-22. Dr. Foster testified that Clayton understood the proceedings, the charges against him and that he faced the death penalty, that he had the right not to testify, and the role of different participants in the trial, including his attorneys, the prosecutor, the judge, and the jury. Id. at pp. 423; 454-56. Dr. Foster also testified that Clayton was cooperative with his attorneys and he followed their advice, but he worried that Clayton was too dependent on his counsel and that was the basis of his determination that Clayton was not competent to stand trial. Id. at p. 457. However, he also said that Clayton had a “fine relationship” with Rhoades. Id. The Missouri courts’ decision to give no weight to Dr. Foster’s testimony is well supported by the evidence in the record, and Clayton’s third claim is denied. D. Claim 4: Ineffective Assistance of Counsel for Failure to Present Insanity Defense at Trial Clayton asserts that his trial counsel provided ineffective assistance when he failed to present an insanity defense during the trial. Missouri law authorizes the use of an insanity defense in Mo. Rev. Stat. § 552.030(1), which provides that a defendant is not 27 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 28 of 82 criminally responsible if the defendant was “incapable of knowing and appreciating the nature, quality or wrongfulness of the conduct” at issue. Clayton’s fourth ground for relief is procedurally barred because he failed to raise it in either his Rule 29.15 proceeding or on appeal from the Rule 29.15 court. Therefore, this Court may review the claim only if Clayton can show cause for his procedural default and actual prejudice. See Sweet v. Delo, 125 F.3d 1144, 1149 (8th Cir. 1997), cert. denied, 523 U.S. 1010 (1998); Forest v. Delo, 52 F.3d 716, 720 (8th Cir. 1995). Clayton argues that his incompetence during the underlying state proceeding constitutes “cause” for the procedural defect. Clayton also contends that he was provided ineffective assistance of counsel during his post-conviction proceedings and that this too constitutes “cause” for his procedural default. The Court rejects both arguments.1 1. Clayton’s Competency as a Basis for “Cause” Clayton is correct that mental incompetence may excuse a habeas petitioner’s procedural deficiencies. In Ervin v. Delo, 194 F.3d 908 (8th Cir. 1999), the Eighth Circuit stated: [T]he existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule. . . . For mental illness to excuse the procedural bar arising from the failure to pursue state postconviction remedies, the petitioner must make a conclusive showing that he or she was incompetent at the time of the post- 1 Even if Clayton could establish cause, he has still failed to establish prejudice because there is not sufficient evidence to show that he would be able to establish the requirements of Mo. Rev. Stat. 552.030(1). See infra discussion of Claim 26. 28 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 29 of 82 conviction proceedings. . . . To be deemed incompetent, the petitioner must have been suffering from a mental disease, disorder, or defect that may substantially affect his capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation. Id. at 915 (citations omitted). A petitioner’s incompetence, however, must be conclusively supported by evidence in the record before it can constitute “cause” for a procedural default. See Anderson v. White, 32 F.3d 320, 322 (8th Cir. 1994) (unsupported allegation of incompetence insufficient); Stanley v. Lockhart, 941 F.2d 707, 710 (8th Cir. 1991) (inconclusive findings of incompetency insufficient). In Ervin, the petitioner submitted affidavits from his post-conviction counsel and a licensed psychologist, both of which concluded that his severe depression impeded his ability to pursue his post-conviction remedies. Nonetheless, the district court denied Ervin’s request for a hearing because Ervin had filed a pro se post-conviction motion and there was no evidence he was unable to consult with his counsel. The Eighth Circuit affirmed, stating: “Because Ervin did not make a sufficient showing of incompetence at the time of his state-court default, we conclude the district court did not abuse its discretion in denying an evidentiary hearing.” Id. at 916. Clayton’s only evidence that he was incompetent at the time of his Rule 29.15 proceeding comes from the testimony of Dr. Daniel Foster. This testimony was given during Clayton’s 29.15 hearing before the Circuit Court of Jasper County, and was not found credible by the Missouri courts. This Court has now reviewed Dr. Foster’s testimony and cannot say that that determination by the Missouri courts was 29 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 30 of 82 unreasonable. 2. Conduct of Clayton’s Post-Conviction Counsel as Basis for “Cause” In Reese v. Delo, 94 F.3d 1177, 1182 (8th Cir. 1996), the Eighth Circuit held that ineffective assistance of counsel during post-conviction proceedings at the state level cannot be “cause” for a procedural default. The court stated: There is no right to counsel in state post-conviction proceedings . . . and thus a claim that post-conviction appellate counsel was ineffective does not constitute cause for default. Id. at 1182 (citing Coleman v. Thompson, 501 U.S. 722, 752 (1991); Lowe-Bey v. Groose, 28 F.3d 816, 819 (8th Cir. 1994)). See also Armstrong v. Iowa, 418 F.3d 924, 927 (8th Cir. 2005), cert. denied, 126 S. Ct. 1351 (Feb. 21, 2006); Anderson v. Bowersox, 262 F.3d 839, 842 (8th Cir. 2001) (“Ineffective assistance of post-conviction counsel cannot be the basis for federal habeas relief.”) (citing Reese, 94 F.3d at 1182). Clayton’s fourth claim is denied. E. Claim 5: Ineffective Assistance of Counsel for Failure to Present Evidence of Mitigating Brain Injury During Penalty Phase of Trial Clayton alleges that he was denied effective assistance of counsel during the penalty phase of his proceedings because his counsel did not present mitigating evidence regarding his brain injury and its impact on his behavior. For the same reasons that the Court rejected Clayton’s fourth claim, it finds that Clayton’s fifth claim is procedurally barred. Because Clayton has failed to establish cause for his procedural default, Clayton’s fifth ground for relief is denied. Furthermore, even if it were not defaulted, the 30 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 31 of 82 petitioner has failed to establish the prejudice required by Strickland. There clearly was evidence of Clayton’s brain injury before the jury when it imposed the death penalty. It may not have been as well developed as Clayton would now like, but the jury understood that Clayton had a brain injury that had substantially impacted his life. F. Claim 6: Ineffective Assistance of Counsel for Failure to Request Jury Instruction Regarding Life Imprisonment Without Parole During Penalty Phase of Trial Clayton alleges that he was denied effective assistance of counsel during the penalty phase of his proceedings because his counsel did not request a jury instruction regarding life imprisonment as an alternative to the death penalty. Respondent contends that Clayton’s sixth claim is procedurally barred because he failed to raise it in his appeal of the circuit court’s denial of his Rule 29.15 Motion. Clayton again states that his attorney’s ineffective assistance during the postconviction proceedings constitutes “cause” for excusing his procedural default. As previously explained, Clayton has no right to any counsel in a Rule 29.15 proceeding. Therefore, Clayton’s sixth ground for relief is procedurally barred. G. Claim 7: Ineffective Assistance of Counsel for Failure to Present Mitigating Witness Testimony During Penalty Phase of Trial Clayton asserts that Rhoades provided ineffective assistance when he failed to call the following individuals as mitigating witnesses during the penalty phase of the trial: Paul, Dorsey, Evans, Norma Mitchell (“Mitchell”), and Delores Williams (“Williams”). In evaluating this claim, the Missouri Supreme Court concluded: 31 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 32 of 82 In this case, none of the five witnesses Clayton mentions would have added anything significant to his case during [the] penalty phase. Much of the testimony presented by these witnesses would have been needlessly cumulative . . . . Clayton argues [the witnesses] all should have been called to testify about his background, his religious faith, his religious ministry to others, or the change in his personality after the accident. During the original trial, Clayton’s two brothers and the chaplain from the county jail gave similar testimony, although sometimes they relied on different incidents. Much of the information the witness would have provided was on Clayton’s background. There is no requirement that an attorney present any background information on his client during a capital trial’s penalty phase. Their testimony may well have undercut the defense’s argument that Clayton’s brain injury and ensuing mental incapacity were mitigating factors. For example, Dorsey would have testified about Clayton’s violent temper as a young man and would have helped the prosecution argue that Clayton’s brain injury was not the only reason behind his actions. Paul would have also testified about how Clayton was still able to do complex mental tasks after his injury, like preaching in revivals. Because the testimony of these five witnesses would have added little to Clayton’s case and in some ways may have harmed it, his attorney was not ineffective for failing to call them. Clayton, 63 S.W.3d at 209-10. 1. Leslie Paul For the reasons previously discussed, the Court finds that the Missouri Supreme was not unreasonable when it concluded that Rhoades was not ineffective because he chose not to call Paul in the penalty phase. 2. Carolyn Dorsey As previously found, Dorsey’s testimony about Clayton’s personality before the sawmill accident was cumulative and would have opened the door to testimony about Clayton’s violent tendencies before the accident. Her testimony that the family was 32 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 33 of 82 impoverished and that Clayton’s dad was hard on him and very strict would have added little, if anything, to the trial. During the defense’s case in chief, Rhoades called Clayton’s brother, Marvin, to the stand and he testified, “Well, just my Dad was fairly strict, you know. He wasn’t abusive, but he expected us to have manners and, you know.” See Resp. Ex. A-10 at p. 1518. Dorsey’s testimony would have been that their father was strict, but not abusive. Her testimony, therefore, is consistent with Marvin Clayton’s testimony and would be cumulative. The Missouri Supreme Court was not unreasonable when it found Dorsey’s testimony cumulative and unhelpful. 3. Arnold Evans In his Petition, Clayton states that Evans is a pastor who met Clayton through religious activities and that, “Had he been called as a penalty phase witness, Mr. Evans would have testified that if Mr. Clayton were incarcerated for the remainder of his life, he would have had things to offer the prison community. Mr. Evans believed that Mr. Clayton could use his musical talent in prison and help others.” See Petition [Doc. # 46] at p. 35. Clayton also argues that Evans would have presented evidence about the change in Clayton’s demeanor after the sawmill accident. Id. During the penalty phase, the prison chaplain, Thora Shaw (“Shaw”) testified that Clayton ministered to other inmates and that he would be a benefit to other persons in prison, including both guards and inmates. Shaw testified that Clayton shared his Bible with other inmates and that he used his singing talents in the prison. See Resp. Ex. A-12 33 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 34 of 82 at pp. 1808-11. Clayton’s brother, Jerry Clayton, testified that Clayton participated in religious activities and he was a “God-fearing man.” Id. at p. 1798. Marvin Clayton testified that Clayton suffered memory loss, a lack of patience, a worsened temper, and a loss of self respect after the accident. Resp. Ex. A-10 at pp. 1526-28. Given this record, the Missouri Supreme Court was not unreasonable when it found that the testimony of Evans would be needlessly cumulative. 4. Norma Mitchell and Delores Williams Mitchell and Williams were Clayton’s elderly neighbors. According to Clayton, they would have presented testimony that Clayton was a good neighbor and that he would occasionally help them with projects at their respective homes. See Petition [Doc. # 46] at pp. 38-40. They also would have presented testimony regarding Clayton’s religious activities. Id. The neighbors’ testimony about Clayton’s religious background would have been duplicative of the testimony submitted by Shaw during the penalty phase of the hearing. As to their testimony about Clayton’s good works and his general congeniality as a neighbor, there is no evidence that would have swayed the jury, particularly where their testimony did not go to any of the possible mitigating factors. The jury overwhelmingly found that Clayton deserved the death penalty because it found the existence of three aggravating factors. Given the de minimis value of the neighbors’ testimony, it was reasonable for the Missouri Supreme Court to find that Rhoades was not ineffective for failing to call Clayton’s neighbors. 34 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 35 of 82 Clayton’s seventh claim is denied. H. Claim 8: Ineffective Assistance of Counsel for Failure to Call Carl Guisendorfer to Testify During Penalty Phase of Trial Clayton alleges that he was denied effective assistance of counsel during the penalty phase of his proceedings because his counsel did not call Carl Guisendorfer (“Guisendorfer”) to testify. According to Clayton, Guisendorfer was a member of the same religious congregation as Clayton and he could have provided mitigating testimony during the penalty phase of the trial. Respondent contends that Clayton’s eighth claim is procedurally barred because he failed to raise it in his appeal of the circuit court’s denial of his Rule 29.15 Motion. Clayton again states that his attorney’s ineffective assistance during the postconviction proceedings constitutes “cause” for his procedural default. Because Clayton is not entitled to any counsel at his post-conviction proceeding, the performance of his postconviction attorney cannot be cause for his procedural default. Clayton’s eighth ground for relief is procedurally barred. I. Claim 9: Ineffective Assistance of Counsel for Failure to Object to the State’s Closing Argument During Penalty Phase of Trial Clayton alleges that he was denied effective assistance of counsel during the penalty phase of his proceedings because his counsel did not object to the State’s incorrect and misleading closing argument. This claim is procedurally defaulted because it was not raised in Clayton’s appeal of the denial of his Rule 29.15 motion and Clayton has not established cause for the default. Even if it were preserved, there is no basis for 35 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 36 of 82 finding that the prejudice prong of Strickland has been satisfied. The jury was told it must consider all mitigating circumstances and the mitigating circumstances were clearly identified through both the instruction and argument of counsel. Clayton’s ninth ground for relief is denied. J. Claim 10: Ineffective Assistance of Counsel for Failure to Request Jury Instruction Regarding Clayton’s Failure to Testify During Penalty Phase of Trial Clayton alleges that he was denied effective assistance of counsel during the penalty phase of his proceedings because his counsel did not request a jury instruction that addressed Clayton’s failure to testify during the penalty phase of his trial. This claim is procedurally defaulted because it was not raised in Clayton’s appeal of the Circuit Court’s denial of his Rule 29.15 motion and Clayton has not established cause for the default. Clayton’s tenth ground for relief is denied. K. Claim 11: Ineffective Assistance of Appellate Counsel for Failure to Raise Issue of Clayton’s Competency to Pursue Appeal Clayton alleges that he was denied effective assistance of counsel during the appeal of his post-conviction remedies because his counsel did not raise or pursue Clayton’s claim of incompetency. The claim is procedurally defaulted because Clayton failed to raise it in state court. Clayton cannot establish cause for the default because Clayton has no right to have effective representation in a state post-conviction proceeding. His eleventh claim for relief is denied. L. Claim 12: Ineffective Assistance of Appellate Counsel for Failure to Raise Clayton’s Procedurally Barred Claims for Relief 36 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 37 of 82 Clayton alleges that he was denied effective assistance of counsel because his postconviction counsel failed to raise those claims listed above that are procedurally barred. In support of this claim, Clayton states: Respondent is correct that granting relief on this claim would not, by itself, entitle Mr. Clayton to have his conviction set aside. In an abundance of caution, this claim was included in the petition to make clear that Mr. Clayton asserts that he has a due process right to full and fair postconviction proceedings, as discussed more fully under Ground 4 above. Any failure to pursue claims in state post-conviction proceedings, therefore, should not prevent this court from reviewing those claims if the court finds that reasonably competent post-conviction counsel would have raised them. See Traverse [Doc. # 65] at p. 48. Because the Eighth Circuit has held that ineffective assistance of counsel during state post-conviction proceedings cannot be the basis for federal habeas relief, Clayton’s twelfth claim is denied. Clayton has no right to counsel at the post-conviction stage, so there is no due process right to have effective counsel. M. Claim 13: Due Process Challenge Based on Failure of Mitigating Jury Instruction to List Non-Statutory Mitigating Factors In his thirteenth claim, Clayton challenges the jury instructions submitted in the penalty phase of the trial. Specifically, Clayton challenges Instruction No. 19, which states in its entirety: If you unanimously find that the facts and circumstances in aggravation of punishment, taken as a whole, warrant the imposition of a sentence of death upon the defendant, you must then determine whether there are facts or circumstances in mitigation of punishment which are sufficient to outweigh the facts and circumstances in aggravation of punishment. In deciding this question, you may consider all of the evidence presented in both the guilt and punishment stages of trial. As circumstances that may be in mitigation of punishment, you shall 37 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 38 of 82 consider: 1. Whether the murder of Christopher Castetter was committed while the defendant was under the influence of extreme mental or emotional disturbance. 2. Whether the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired. You shall also consider any other facts or circumstances which you find from the evidence in mitigation of punishment. It is not necessary that all jurors agree upon particular facts and circumstances in mitigation of punishment. If each juror determines that there are facts or circumstances in mitigation of punishment sufficient to outweigh the evidence in aggravation of punishment, then you must return a verdict fixing defendant’s punishment at imprisonment for life by the Department of Corrections without eligibility for probation and parole. See Resp. Ex. B-3 at p. 383.2 Although Clayton does not challenge it, Instruction No. 20 is relevant to the Court’s discussion. It states in its entirety: You are not compelled to fix death as the punishment even if you do not find the existence of facts and circumstances in mitigation of punishment sufficient to outweigh the facts and circumstances in aggravation of punishment. You must consider all the evidence in deciding whether to assess and declare the punishment at death. Whether that is to be your final decision rests with you. Id. at p. 384. Clayton contends the trial court erred when it gave Instruction 19 and rejected his proposed jury instruction. The proposed instruction (referred to as “Instruction B”) is 2 Instruction No. 19 adheres to the Missouri Approved Instructions. See MAI 313.44A (3d ed.). 38 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 39 of 82 exactly the same as Instruction 19, except it adds the following two categories of mitigating circumstances: 3. Whether the defendant acted under the influence of alcohol or other intoxicants at the time of the offense. 4. Whether the defendant had a mental disease or defect at the time of the offense. See Resp. Ex. B-3 at p. 389-90. The Missouri Supreme Court considered Clayton’s argument on direct appeal and held: As his ninth point, Clayton contends that the trial court erred in rejecting his proposed penalty phase Instruction B. Instruction B included a listing of statutory and non-statutory mitigating circumstances. Clayton contends the evidence supported the two non-statutory mitigating factors and that the denial of the instruction prevented the jury from giving full consideration to mitigating evidence. Clayton’s claim has been repeatedly rejected by this Court. [citations omitted] The jury was given Instruction 19 that included all the statutory mitigating circumstances to which Clayton was entitled. Instruction 19 included a catch-all paragraph stating ‘you should also consider any other facts or circumstances which you find from the evidence in mitigation of punishment.’ The trial court did not err in refusing Clayton’s Instruction B. Id. at 478 (internal citations omitted). Clayton contends that the Missouri court’s determination is “an unreasonable application of clearly established federal law.” The Eighth Circuit has previously rejected claims almost identical to Clayton’s. In Powell v. Bowersox, 112 F.3d 966 (8th Cir. 1997), Powell claimed that the trial court erred when it refused to instruct the jury “to consider in mitigation whether ‘the capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to 39 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 40 of 82 the requirements of the law was substantially impaired.’” Id. at 970. Powell claimed that the evidence supported the proffered instruction because he was “borderline mentally retarded” and he had consumed a “large amount of alcohol before the attack.” Id. The Eighth Circuit rejected Powell’s claim. The court stated: Two of the instructions that the trial court gave in this case stated that in determining whether any mitigating circumstance existed the jury could “consider all of the evidence” and “any circumstances which you find from the evidence in mitigation of punishment.” Two other instructions, moreover, indicated to the jury that it had to “consider all the circumstances in deciding whether to assess and declare the punishment at death.” *** Evidence relevant to Mr. Powell’s mental state was presented over the course of several days. The instructions authorized the jury to weigh all of the evidence presented during that time, including the evidence that Mr. Powell complains was precluded from consideration. Although the charge did not include the instruction at issue, the trial court did direct the jury consider the totality of the evidence. We conclude that the charge did not preclude the jury from considering any mitigatory evidence and therefore it was not unconstitutional. Id. at 970. Similarly, in Tokar v. Bowersox, 198 F.3d 1039, (8th Cir. 1999), the Eighth Circuit found that the trial court’s refusal to instruct the jury on any mitigating factors was not error where the trial court’s instructions informed the jury that it “may also consider any circumstances which you find from the evidence in mitigation of punishment.” Id. at 1050. The court found “the language in the approved instruction . . . adequately covered the jury’s consideration of mitigating evidence and complied with constitutional requirements for the submission of mitigating circumstances in death penalty cases.” Id. 40 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 41 of 82 As in Powell and Tokar, the jury instructions in this case included a “catch-all” provision that advised the jury to consider “any other facts or circumstances which you find from the evidence in mitigation of punishment.” See Instruction No. 19. Moreover, Instruction No. 20 included a similar admonition when it stated, “You must consider all the evidence in deciding whether to assess and declare the punishment at death.” See Instruction No. 20. Thus, the jury was twice instructed to consider all the circumstances presented during both phases of the trial to determine whether the death penalty was appropriate--not just those mitigating factors specifically delineated in Instruction No. 19. Eighth Circuit precedent makes it clear that these instructions pass constitutional muster. Clayton contends, however, that the United States Supreme Court, in Penry v. Johnson, 532 U.S. 782 (2001) (Penry II), found a similar instruction unconstitutional. In Penry, the jury was instructed to answer three questions. “[T]he jury had to determine whether Penry acted deliberately when he killed Pamela Carpenter; whether there was a probability that Penry would be dangerous in the future; and whether Penry acted unreasonably in response to provocation.” Id. at 789. The jury instruction went on to explain that the jury’s answer to these questions should reflect the jury’s finding “‘as to the personal culpability of the defendant.’” Id. at 789. You are instructed that when you deliberate on the questions posed . . ., you are to consider mitigating circumstances, if any, supported by the evidence presented in both phases of the trial, whether presented by the state or the defendant. A mitigating circumstance may include, but is not limited to, any aspect of the defendant's character and record or circumstances of the crime which you believe could make a death sentence inappropriate in this case. If you find that there are any mitigating circumstances in this case, 41 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 42 of 82 you must decide how much weight they deserve, if any, and therefore, give effect and consideration to them in assessing the defendant's personal culpability at the time you answer the [questions posed]. If you determine, when giving effect to the mitigating evidence, if any, that a life sentence, as reflected by a negative finding [on a question posed], rather than a death sentence, is an appropriate response to the personal culpability of the defendant, a negative finding should be given to one of the [questions]. Id. at 789-90. Given the structure of the jury instructions in Penry, the Supreme Court found that the only way the jury could give full consideration to matters in mitigation would be to answer the questions posed in the instructions dishonestly. For example, if the jury believed that Penry acted deliberately, but thought that Penry should receive a life sentence rather than death because of mitigating circumstances, it would have to answer no to the question which asked whether Penry acted deliberately. “In other words, the jury could change one or more truthful “yes” answers to an untruthful “no” answer in order to avoid a death sentence for Penry.” Id. at 799. Because the instruction concerning matters in mitigation had no practical effect, the Supreme Court granted Penry’s request for habeas relief. It went on to hold that “[a] clearly drafted catchall instruction on mitigating evidence . . . might have complied with [the constitution].” Id. at 803. The Supreme Court also strongly suggested that a new pattern instruction adopted in Texas after Penry was tried, would be sufficient. That instruction asked the jury “‘[w]hether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background, and the personal moral culpability of the defendant, there is a sufficient mitigating 42 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 43 of 82 circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.’” Penry at 803 (quoting Tex. Code Crim. P. Ann., Art. 37.071(2)(e)(1) (Vernon Supp. 2001). There is nothing in Penry that would support a finding that Instruction 19 used in Clayton’s trial is constitutionally defective. Instruction 19 requires the jury to consider two specific issues in mitigation but goes on to say that the jury “shall also consider any other facts or circumstances which you find from the evidence in mitigation of punishment.” See Resp. Ex. B-3 at p 383. Instruction 20 then instructs the jury that they are not required to impose the death penalty even when facts in mitigation do not outweigh facts in aggravation. “You must consider all the evidence in deciding whether to assess and declare the punishment at death. Whether that is to be your final decision rests with you.” Id. at p. 384. These instructions require the jury to give full consideration and effect to all issues in mitigation, whether they are specifically listed in the instructions or not. This point was also made by both the prosecuting attorney and Clayton’s attorney during closing argument in the penalty phase of the trial. See Resp. Ex. A-12 at p 1841, 1849. The Missouri Supreme Court’s determination that the jury was properly instructed is not “contrary to clearly established Federal law.” Clayton’s thirteenth claim for relief is denied. N. Claim 14: Insufficiency of the Evidence to submit “Depravity of Mind” Jury Instruction 43 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 44 of 82 Clayton asserts that there is insufficient evidence to support a finding that Clayton chose his victim at random, therefore, Instruction No. 17 was given in error. He also claims that it was inconsistent for the jury to find that the murder was random and that the victim was an on duty police officer. Instruction No. 17 outlined four possible aggravating factors: 1. Whether the defendant was convicted of assault in the second degree on June 15, [illegible handwritten edit] in the Circuit Court of Lawrence County of the State of Missouri. 2. Whether Christopher Castetter was a peace officer, and whether that murder was committed during the exercise of his official duty. 3. Whether the murder of Christopher Castetter involved depravity of mind and whether, as a result thereof, the murder was outrageously and wantonly vile, horrible and inhuman. You can make a finding of depravity of mind only if you find that the defendant’s selection of the person killed was random and without regard to the victim’s identity and that defendant’s killing of Christopher Castetter thereby exhibited a callous disregard for the sanctity of all human life. 4. Whether the murder of Christopher Castetter was committed for the purpose of avoiding the lawful arrest of defendant. See Resp. Ex. B-3 at p. 380. In its verdict, the jury found the existence of the first three aggravating factors beyond a reasonable doubt, but not the fourth one. Id. at p. 394. The Missouri Supreme Court rejected Clayton’s claim that the second and third aggravating factors were inconsistent, stating: Clayton’s argument is incorrect . . . . Aggravator 2 merely requires a finding that Deputy Castetter “was a peace officer” and was killed “during the exercise of his official duty.” Nothing within this finding is necessarily inconsistent with a finding that Castetter was also killed at “random and without regard to his identity.” Killing a person merely because that person 44 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 45 of 82 is a law enforcement officer does not negate a finding of randomness, unless a particular purpose is also found specific to the identity of the individual victim. Even had the jury also found aggravator 4, which it did not, the mere fact that Deputy Castetter was killed to avoid Clayton’s being arrested by him might have related solely to Castetter’s duties as a law enforcement officer and not to his identity as a person. Clayton, 995 S.W.2d at 483-84. The Missouri Supreme Court’s holding is not contrary to clearly established federal law. Nor does it involve an unreasonable determination of fact. Aggravator 2 does not require a finding that Clayton killed Castetter because he was a law enforcement officer--only that Castetter was a police officer and the murder occurred during the exercise of his official duties. Thus, a jury could find that Clayton killed Castetter randomly and that Castetter was a police officer on duty, without being logically inconsistent. As to Clayton’s claim that there was insufficient evidence to support the jury’s finding that the murder was random, it appears to be procedurally defaulted. However, even if preserved, and even if there was insufficient evidence, habeas relief is not available because the jury found the existence of two other aggravating factors that warrant the death penalty under Missouri law. The Supreme Court has held “in a nonweighing state, so long as the sentencing body finds at least one valid aggravating factor, the fact that it also finds an invalid aggravating factor does not infect the formal process of deciding whether death is an appropriate penalty.” Stringer v. Black, 503 U.S. 222, 232 (1992). 45 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 46 of 82 The Eighth Circuit has held that Missouri is a non-weighing state where “only one aggravating factor need be present in order to validly impose a death sentence.” See Harris v. Bowersox, 184 F.3d 744, 750 (8th Cir. 1999). See also Ramsey v. Bowersox, 149 F.3d 749, 754-55 (8th Cir. 1998); Sloan v. Delo, 54 F.3d 1371, 1385-86 (8th Cir. 1995). Thus, the existence of two other aggravating factors precludes habeas relief for Clayton on this claim. Clayton’s fourteenth claim is denied. O. Claim 15: Trial Court Erred When It Overruled Clayton’s Motion to Suppress His Statements and Physical Evidence Clayton alleges that probable cause was lacking for his warrantless arrest on the night of Castetter’s murder and that his statements following his arrest should have been suppressed because of the unlawful arrest. Clayton raised this issue in his direct appeal to the Missouri Supreme Court. In its opinion, the court held: In his second point, Clayton contends the trial court erred by overruling his motion to suppress evidence. Clayton asserts that his arrest was not supported by probable cause and that the evidence seized after the arrest should have been suppressed. The evidence Clayton sought to suppress included statements Clayton made to [the law enforcement officer], a .38 caliber gun seized from outside the home, a gun holster from inside his truck, and samples of paint and rust taken from his truck. *** The record supports a finding that probable cause existed at the time of Clayton’s arrest. Deputy Castetter had responded to a dispatch that a blue Toyota pickup with wooden sides had been parked in Dixie Seal’s driveway. Deputies Manning and Bowman also responded to the dispatch. Upon arriving, they found Deputy Castetter’s car against a tree and Deputy Castetter bleeding. Carolyn Leonard, Dixie Seal’s daughter, advised the 46 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 47 of 82 deputies that Clayton had been there in a blue Toyota pickup with wooden sides. The dispatcher then advised officers to watch for the vehicle driven by Clayton and that Deputy Castetter had been injured. Chief McCracken heard the dispatch and recognized the description of the vehicle as the same vehicle driven by Clayton earlier in the day when he had seen Clayton at the Country Corner store. Shortly thereafter Clayton’s address was verified and Chiefs McCracken and Clark went to Clayton’s home. The officers were familiar with Clayton’s reputation as a violent person. The officer’s arrived at Clayton’s home just as Clayton pulled into the driveway. The officers attempted to speak with Clayton, but he acted as though he could not hear them and refused to walk toward the officers. Instead he went to the side of his home where it appeared that he placed something in a stack of cement blocks. Clayton was then restrained. The passenger in Clayton’s vehicle advised the officers that Clayton had a gun in the truck. When the officers did not locate the gun in the truck, they looked in the stack of cement blocks where they located the gun. Clayton was then placed under arrest. Based on these facts, probable cause existed at the time of Clayton’s arrest. The trial court did not err in overruling Clayton’s motion to suppress evidence. Clayton, 995 S.W.2d at 477. In Stone v. Powell, 428 U.S. 465 (1976), the Supreme Court held that “where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial.” Id. at 494-95. This ruling has been extended by other courts to encompass custodial statements that were made by the defendant after an arrest. See Larrivee v. MCC, No. 931716, 1993 U.S. App. LEXIS 38072 (1st Cir. 1993); Towne v. Dugger, 899 F.2d 1104 (11th Cir. 1990). Also, the Eighth Circuit has applied Stone when a defendant claims that 47 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 48 of 82 there is no probable cause for arrest. See Carlson v. State of Minnesota, 945 F.2d 1026 (8th Cir. 1991) (relying on Stone to reject petitioner’s challenge that his arrest lacked probable cause); Gregory v. Wyrick, 730 F.2d 542 (8th Cir. 1984) (same). Based on the foregoing, the Court rejects Clayton’s claim that Stone does not apply to his Fourth Amendment challenge to his arrest and the statement given thereafter. Clayton also argues that he “did not have a full and fair opportunity to litigate his claim because the Missouri court willfully misapplied federal constitutional law.” See Traverse [Doc. # 65] at p. 54. In support of his argument, Clayton cites two factually distinguishable cases: Gamble v. Oklahoma, 583 F.2d 1161, 1165-66 (10th Cir. 1978) and Herrera v. Lemaster, 225 F.3d 1176, 1178 (10th Cir. 2000), cert. denied 126 S. Ct. 1400 (Feb. 21, 2006). In Gamble, the state court refused to apply the standards regarding admission of evidence contained in Brown v. Illinois, 422 U.S. 590 (1975). See Gamble, 583 F.2d at 1165. Indeed, the court applied a standard that had been explicitly rejected by Brown. Id. Thus, the Tenth Circuit granted habeas relief in light of the state court’s direct contravention of Supreme Court precedent. In Herrera, the court cited to Gamble and declined to apply Stone preclusion where the state court failed to consider the evidentiary standard set forth in Chapman v. California, 386 U.S. 18 (1967). See Herrera, 225 F.3d at 1178. In the two cases cited by Clayton, the court declined to apply Stone where the state court was aware of a Supreme Court precedent and, for whatever reason, did not apply it. 48 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 49 of 82 In this case, Clayton states that “the Missouri court willfully misapplied federal constitutional law” but he does not identify which concept of federal constitutional law the Missouri court failed to apply. See Traverse [Doc. # 65] at p. 54. In setting the standard for probable cause, the Missouri court stated: Probable cause to arrest exists when the arresting officer’s knowledge of the particular facts and circumstances is sufficient to warrant a prudent person’s belief that a suspect has committed an offense . . . . Whether there is probable cause to arrest depends on the information in the officers’ possession prior to the arrest . . . . There is no precise test for determining whether probable cause existed; rather, it is based on the particular facts and circumstances of the individual case . . . . Furthermore, probable cause is determined by the collective knowledge and the facts available to all of the officers participating in the arrest; the arresting officer does not need to possess all of the available information. Clayton, 995 S.W.2d at 477 (internal citations omitted). This standard comports with federal law as it is interpreted in the Eighth Circuit. See Theriault v. United States, 401 F.2d 79, 81 (8th Cir. 1968) (stating that probable cause “exists if the facts and circumstances known to the officer warrant a prudent man in believing that the offense has been committed.”); United States v. Lugo-Baez, 412 F.2d 435, 438-39 (8th Cir. 1969) (same). See also United States v. Mendoza, 421 F.3d 663, 667 (8th Cir. 2005) (applying same standard as Theriault and noting that collective knowledge of officers is sufficient to establish probable cause) (citations omitted). There is no basis for finding that the Missouri court willfully misapplied federal constitutional law. Finally, there was ample evidence of probable cause to arrest Clayton. The Court rejects Clayton’s fifteenth claim for relief. 49 Case 4:02-cv-08001-NKL P. Document 105 Filed 04/27/2006 Page 50 of 82 Claim 16: Trial Court Erred When It Admitted Testimony from Witnesses that Martha Ball was Afraid of Clayton on the Night of Castetter’s Murder Clayton asserts the trial court violated his constitutional rights when it admitted the testimony of Martha Ball (“Ball”), Vicky Deeter (“Deeter”), and Carolyn Leonard (“Leonard”) who all testified that Ball was afraid of Clayton on the night he shot Castetter. The Missouri Supreme Court rejected Clayton’s argument in the direct appeal of his sentence. It stated: Clayton contends that the trial court plainly erred by allowing the testimony of Martha Ball, Vicky Deeter, and Carolyn Leonard that Martha Ball was afraid of Clayton on the night of November 27, 1996. Clayton contends that the testimony suggested that he had a propensity to do things that were bad, violent, or fearsome and may have suggested to the jury that Clayton was involved in other crimes. Martha Ball testified, “I was scared; he pushed me one time, and he had been drinking, so I didn’t want to go with him.” She also stated that she did not want to go back to her mother’s home “because I was afraid.” Vicky Deeter testified that when Martha arrived at her home on the evening of November 27, “she was very shook up, white as a sheet and scared. She was pretty scared.” She also stated that Martha “was shaking from head to toe. She had to sit down for a while before I could get her to talk. Like I said, she was just as pale as you could get.” Lastly, Carolyn Leonard testified that Martha “was scared” and she knew that Martha was scared “because she told me she couldn’t come home.” The evidence presented through Ball, Deeter, and Leonard “cannot be characterized as clear evidence associating Clayton with other crimes.” . . . Rather, this testimony provided a complete and coherent picture of the crime charged. . . . The testimony in question also cannot be held to have had a decisive effect on the jury, especially when coupled with Ball’s testimony that she still loves Clayton and has been to visit him since his arrest. Clayton has not established that manifest injustice or a miscarriage of justice resulted from the admission of this evidence. 50 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 51 of 82 Clayton, 995 S.W.2d at 481 (internal citations omitted). Because the Missouri Supreme Court reviewed the claim for plain error, this Court must as well. Graham v. Dormire, 212 F.3d 437, 439 (8th Cir. 2000) (“Because state courts reviewed Graham’s contentions concerning the prosecutor’s closing argument solely for plain error, so also do we.”) (citing Kilmartin v. Dormire, 161 F.3d 1125, 1127 (8th Cir. 1998)). Under that standard of review, habeas relief will not be granted unless “manifest injustice resulted” from a violation of due process. Thomas v. Bowersox, 208 F.3d 699, 701 (8th Cir. 2000). The evidentiary error must fatally infect the trial. See Bounds v. Delo, 151 F.3d 1116, 1119 (8th Cir. 1998). Clayton argues that the improperly admitted testimony was tantamount to allegations of uncharged misconduct. The closest testimony to that effect was Ball’s one statement that Clayton had pushed her. This was an isolated reference that was well short of totally infecting the trial. Bounds, 151 F.3d at 1119. The remaining evidence merely related that Ball was frightened the evening of Castetter’s murder, and there were only a few questions in the record to that effect. Given the overwhelming evidence against Clayton, and the fact that Ball testified she still loved him despite her fear on the evening at issue, the Court cannot conclude that the testimony fatally infected the trial and deprived Clayton of due process. It is not reasonable to speculate that, but for this evidence, the jury would not have sentenced Clayton to death because, even if characterized as domestic abuse, this evidence pales in comparison to the fact that Clayton killed a police officer. Clayton’s sixteenth claim for relief is denied. 51 Case 4:02-cv-08001-NKL Q. Document 105 Filed 04/27/2006 Page 52 of 82 Claim 17: Trial Court Erred When It Admitted Testimony of William Rogers and Robert Compton that Clayton Had Made Threats of Violence Clayton contends the trial court erred when it admitted the testimony of his cellmates about their jailhouse conversations regarding law enforcement. The Missouri Supreme Court rejected Clayton’s claim, stating: Clayton contends the trial court plainly erred by allowing the testimony of his jail-mates, William Rogers and Robert Compton, regarding Clayton’s statements to them about the offense and about shooting the jail guards. He contends that their testimony provides evidence of other crimes and bad acts. William Rogers testified that Clayton talked about his inability to obtain bond, that “he wanted to get out, escape,” and that he talked with Rogers about escaping. Rogers also testified that Clayton told him about shooting the officer, that “[Clayton] walked right up to the door of the police car and shot him” and that “[Clayton] took his .38 and walked right up to the car and shot him before the other guy had a chance.” Robert Compton also testified that Clayton had talked with him about the shooting. Compton testified that: He had told me he had shot the -- Barry County Officer. *** He told me he had shot him through the window of his -- police car. *** He told me it was either him or the officer, he believed that the officer was going to shoot him, and - he said the officer pulled up and he had to make a choice then. He had a pistol behind his back and he said that he just shot the cop before the cop would shoot him, and then he just made gestures, you know, acting like he had a gun in his hand. 52 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 53 of 82 *** He didn’t tell me whether he knew him or not. He told me that the officer deserved it, that he had been harassing a lot of people, and he said somebody should have shot him before. Compton also testified about Clayton’s dislike of the other officers and jail guards. Q: Did the defendant ever say anything about any other officers? A: Uh, just the officers that arrested him. His first thought was to shoot them too and go ahead and get out of state at that time. And the officers at Lawrence County Jail. Compton testified that Clayton wanted to escape and had attempted to unlock the turnkey with a piece of metal, that he wanted Compton’s assistance in getting out of the country, and that Clayton stated that the jail guards “deserved to, you know, have it done to them too.” Clayton’s statements concerning Deputy Castetter are admissions of the crime and admissible without question. These statements have nothing to do with other crimes or uncharged bad acts. The evidence regarding talk of escape was relevant in that it tended to show a consciousness of guilt. Likewise, evidence regarding Clayton’s dislike of the jail guards and law enforcement officers does not necessarily constitute evidence of another crime. This testimonial evidence was relevant to establish Clayton’s motive in shooting Officer Castetter. The state’s theory of motive was that Clayton had a problem with law enforcement officers in general and that he shot Officer Castetter to avoid arrest and revocation of his probation. Clayton, 995 S.W.2d at 481-82. It does not appear that Clayton challenges the testimony regarding the murder of Castetter. Instead Clayton argues that the evidence regarding other law enforcement officers “constituted nothing more than the admission of bad character evidence in an attempt to prove Clayton’s propensity to commit this crime.” 53 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 54 of 82 See Traverse [Doc. # 65] at p. 58. Clayton can be successful on this claim only if the evidence regarding other law enforcement officers was “so conspicuously prejudicial or of such magnitude as to fatally infect the trial and deprive the defendant of due process.” Bounds, 151 F.3d at 1119. It was not, and in fact the Missouri Supreme Court accurately explained why the evidence was admissible. Furthermore, given the overwhelming evidence against Clayton, there is no basis for finding that the evidence infected the trial and deprived Clayton of due process. Bounds, 151 F.3d at 1119. R. Claim 18: Trial Court Erred When It Admitted Photograph of Victim from Clayton’s Prior Assault Charge Clayton argues that his constitutional rights were violated when, during the penalty phase of his trial, the trial court admitted a blown-up photograph of the victim from Clayton’s earlier assault conviction. The Missouri Supreme Court considered the argument and held: As his sixth point, Clayton contends that the trial court erred by admitting a photograph of . . . the victim of a 1991 assault committed by Clayton, at penalty phase. Clayton contends that the photograph was not indicative of the nature and extent of [the victim]’s injuries and was prejudicial. The photograph depicts [the victim]’s face and shirt covered with blood. *** The trial court did not err in admitting the photograph of [the victim] into evidence. Officer Jerry Paul testified that he investigated the assault and that the photograph was a fair and accurate representation of [the victim] immediately following the assault. He testified that [the victim] suffered only a bloody nose from the assault and incurred no broken bones. Defense counsel read a stipulation that [the victim]’s actual injuries consisted of 54 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 55 of 82 bruising and a cut on his nose. Clayton, 995 S.W.2d at 477-78. Clayton now argues that “the photograph exaggerated [the victim’s injuries] and impermissibly inflamed the jury.” See Traverse [Doc. # 65] at p. 59. Even if the victim’s photograph did not accurately portray the victim’s injuries, any defect was cured by the testimony of Paul who indicated that the victim suffered only a bloody nose and did not suffer from any broken bones. Moreover, the stipulation read by Clayton’s counsel about the extent of the injuries also remedied any misleading conclusions that could be drawn from the picture. Because the testimony and the parties’ stipulation minimized the inflammatory nature of the photograph, the Court declines to find that the photograph alone was “so conspicuously prejudicial or of such magnitude as to fatally infect the trial and deprive the defendant of due process.” Bounds, 151 F.3d at 1119. S. Claim 19: Due Process Challenge Based on Insufficient Evidence to Support Jury Finding that Clayton Acted with “Depravity of Mind” In his nineteenth claim for relief, Clayton asserts that he was denied due process because there was insufficient evidence to support the finding that he randomly killed Castetter. As the Court has previously found, even if there was insufficient evidence to submit “Depravity of Mind” as an aggravating factor, it constituted harmless error because the jury found two other valid aggravating factors, one of which is irrefutable–Castetter was a police officer and he was on duty when he was killed. See 55 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 56 of 82 Stringer v. Black, 503 U.S. 222, 223 (1992); Harris v. Bowersox, 184 F.3d 744, 750 (8th Cir. 1999). T. Claim 20: Due Process Challenge Based on the State’s Referral to Clayton’s Evidence as “Voodoo” Clayton argues that he was deprived of his constitutional rights when the prosecuting attorney referred to Clayton’s mental competency evidence as “voodoo” and called it “an excuse.” See Traverse [Doc. # 65] at p. 60. The Missouri Supreme Court summarily rejected Clayton’s assertion. Clayton, 995 S.W.2d at 480. The prosecutor’s entire statement at issue is as follows: And in the face of all this, we’re told that the defendant couldn’t deliberate. We’re told that by, well, Dr. Betty [sic] Back. And I’ll talk about her a little bit more. But, folks, I think she said something, and you notice that she didn’t want to deal with the facts surrounding this incident, did she? She wanted to deal with her nice little computer tests. She wanted to deal with her nice clean little numbers. This isn’t clean; it’s murder. It’s dirty and it’s ugly, and if you don’t look at the facts, you don’t know what happened. So he couldn’t plan. Well, ma’am, we pointed out to her, not only could he plan, he did plan. “Well, he didn’t plan in a socially acceptable manner.” Well, I’ve never met a criminal who did. That is not only unlikely, it’s preposterous. It’s absolutely preposterous. “Well, they don’t have very good judgment.” Well, as far as I’m concerned somebody who buys a Toyota doesn’t have very good judgment because I don’t like Toyotas. That doesn’t mean there’s anything wrong with their ability to reason. Folks, it’s voodoo, that’s all it is. It’s an excuse. See Resp. Ex. A-11 at pp. 1648-49. 56 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 57 of 82 In evaluating claimed prejudice based on a prosecutor’s closing argument, courts look to whether the comment in dispute “by itself so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 642-43 (1974); Darden v. Wainwright, 477 U.S. 168, 180-82 (1986). To establish a constitutional deprivation, “It is not enough that the prosecutor’s remarks were undesirable or even universally condemned.” Darden, 477 U.S. at 181. Examples of prosecutorial comments that might lead to a constitutional deprivation include, but are not limited to, comments that “manipulate or misstate the evidence” or those that “implicate other specific rights of the accused such as the right to counsel or the right to remain silent.” Id. Clayton cites Shurn v. Delo, 177 F.3d 662 (8th Cir. 1999), and Gall v. Parker, 231 F.3d 265 (6th Cir. 2000), to show that his prosecutor’s comments deprived him of his constitutional rights. In Shurn, “The prosecutor emphasized his position of authority and expressed his personal opinion about the propriety of the death sentence. He attempted to link Shurn with Charles Manson, a well-known mass murderer. He appealed to the jurors’ fears and emotions and told them to kill Shurn.” Shurn, 177 F.3d at 667. The court found that the closing was “filled with improper statements” and it was “obviously improper and prejudicial.” Id. In Gall, the prosecutor expressed his personal opinion about the defendant’s culpability and the credibility of the expert witnesses, including comments about the prosecutor’s expert witness such as, “I have known him for a long time and I know he is a 57 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 58 of 82 fine man.” Gall, 231 F.3d at 312. The prosecutor also blatantly mischaracterized the expert witness testimony in the case. Id. He openly mocked all the insanity defense witnesses, and the prosecutor noted that Gall was calm during the trial, which must lead to a finding that he was sane and lucid at the time of the murder. Finally, he implored the jury not to be “hoodwinked” into believing an insanity defense and pointed to the “smoking gun” that was part of his case. Id. In Clayton’s case, the prosecutor used terms such as “absolutely preposterous” “voodoo” and “an excuse” to characterize Clayton’s mental incompetency defense. See Resp. Ex. A-11 at pp. 1648-49. While this Court would not have permitted such statements, it cannot say that the Supreme Court was unreasonable when it summarily rejected Clayton’s claim. The prosecutor’s statements in Clayton’s case were isolated in nature and substantially less inflammatory than the prosecutor’s statements in Gall. The Court cannot say that Clayton’s prosecutor’s statement “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 642-43 (1974), nor that the decision by the Missouri Supreme Court to reject Clayton’s claim was unreasonable. U. Claim 21: Due Process Challenge Based on the State’s Closing Argument During the Penalty Phase Clayton argues he suffered a constitutional violation when, at the close of the penalty phase, the prosecutor (1) argued that Clayton planned to commit other crimes the night that he killed Castetter, (2) referred to his experience as a soldier; (3) argued that 58 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 59 of 82 Rhoades had implied there was something wrong with the jury if they returned a death sentence; and (4) stated that Clayton had received the benefit of “legal niceties” that were not available to Castetter. 1. Clayton’s alleged plan to commit other crimes To support his contention that Clayton shot Castetter for the purpose of avoiding arrest, the prosecutor stated: And for whether the murder of Christopher Castetter was committed for the purpose of avoiding lawful arrest. Well, what do we know? We know that the defendant was on probation. We know he faced, therefore, a prison sentence if that probation was violated. We know that possession of a gun violated that probation, and we know that drinking alcohol violated that probation. And certainly if he intended some ill toward anyone else, which well may have been his intent at Dixie Seal’s drive after the argument he had with Martha Ball, that would have broken the law as well. See Resp. Ex. A-12 at pp. 1838-39. Clayton contends that the last paragraph violated his constitutional rights because it suggested to the jury that Clayton intended to harm other people besides Castetter that evening. The Missouri Supreme Court rejected Clayton’s contention and held: During closing argument, a prosecutor is entitled to make reasonable inferences from the evidence. While the prosecutor’s statement may have suggested that Clayton went to Dixie Seal’s home to commit other crimes, the statement can reasonably be inferred from the evidence presented in the case. Clayton, 995 S.W.2d at 480. 59 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 60 of 82 The record shows that Clayton arrived at Seal’s home with a loaded handgun, Clayton had been arguing with Ball--Seal’s daughter--earlier in the day and Ball was staying at Seal’s home. Clayton sat in a parked car at the end of Seal’s driveway drinking beer alone rather than approaching the home. Given these undisputed facts, the Missouri Supreme Court’s determination that the prosecutor could argue the inference that Clayton arrived at Ball’s home with the intent to commit some other crime is not an unreasonable determination of the facts or an unreasonable application of federal law. 2. Prosecutor referred to himself as a soldier The prosecutor’s statement at issue is: Me, having been a soldier, I guess I can imagine reasons why a person would kill. I don’t understand killing a police officer. If you’ll kill a police officer, you would kill anyone. That is a figure of authority. See Resp. Ex. A-12 at p. 1840. The Missouri Supreme Court summarily rejected Clayton’s claim because: “Taken in context, this statement was made by the prosecutor while encouraging the jury to assess the most severe penalty, the death penalty. Urging a jury to impose the most severe penalty is proper argument.” Clayton, 995 S.W.2d at 480 (citations omitted). Again, Clayton directs the Court to Shurn and Gall. In Gall, the prosecutor interjected his personal beliefs into the case, but those beliefs went to the credibility of the key witnesses in the case. The court acknowledged as much when it stated, “throughout his closing argument the prosecutor improperly expressed his personal belief about critical matters before the jury.” Gall, 231 F.3d at 312 (emphasis added). In Clayton’s 60 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 61 of 82 case, the prosecutor’s comment about formerly being a soldier and not being able to understand how someone could kill an officer did not go to a credibility determination; the comment was isolated and there is no basis for concluding that in the absence of these statements, the jury would have rejected the death penalty. In Shurn, the prosecutor identified himself as “the top law enforcement officer in this county” as a way to demonstrate his authority in asking for the death penalty. Shurn, 177 F.3d at 666. In this case, the prosecutor’s passing reference to his former service as a soldier does not carry the same weight because his reference was in the past tense and it did not contain the same nexus between his position of authority and the case before the jury. Moreover, the prosecutor in Shurn committed a long litany of errors, in that, “The prosecutor emphasized his position of authority and expressed his personal opinion on the propriety of the death sentence. He attempted to link Shurn with Charles Manson, a wellknown mass murderer. He appealed to the jurors’ fears and emotions and told them to kill Shurn.” Shurn, 177 F.3d at 667. The concurring opinion to Shurn characterized the prosecutor’s closing argument as “an appeal to blood lust and mob justice rather than a call for the jury to return a sentence of death after a calm, reasoned deliberation.” Id. at 668 (Wollman, J. concurring). A contextual reading of the prosecutor’s closing argument in Clayton’s case demonstrates that he walked the jury through the penalty phase jury instructions and explained them to the jury. See Resp. Ex. A-12 at pp. 1834-42. Just a few lines after his “soldier” comment, the prosecutor came to Instruction No. 19, which dealt with 61 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 62 of 82 mitigating circumstances, and stated: Mitigating circumstances, those are in Instruction 19, by the way, and please look at them. Those--there are two mitigating circumstances that are listed there. Now, that’s not all you consider, of course. Please consider all the evidence. There may be other factors you think are appropriate to consider. Id. at p. 1841. Thus, the prosecutor’s closing argument was not “an appeal to blood lust and mob justice” that is comparable to the closing argument that was at issue in Shurn. Given the record, the Court cannot say that the Missouri Supreme Court made an unreasonable determination of fact or an unreasonable application of federal law when it rejected this claim. 3. Retaliation argument In his closing argument during the penalty phase, Rhoades stated: “I ask you to impose a sentence of life, and not to impose a sentence of death simply because he’s different or because he’s defective.” See Resp. Ex. A-12 at 1853. Rhoades also repeatedly implored the jury to consider the inherent value in Clayton’s life. Id. In his rebuttal, the prosecutor stated: Folks, what we’re dealing with here is, yes, there is value in human life, and Christopher Castetter’s life had value too, a great deal of value. A suggestion to you that there is something wrong with you issuing a death sentence where it is called for is preposterous. Id. at p. 1857. According to Clayton, the statement was improper because, “Personal attacks on defense counsel are beyond the pale of proper argument, whether they are made in the context of asking for a death sentence or asking for a conviction.” See 62 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 63 of 82 Traverse [Doc. # 65] at p. 63. The Missouri Supreme Court rejected Clayton’s argument. The court held, “Again, it is proper for a prosecutor to seek and request the most severe penalty. It is also proper for a prosecutor to retaliate to statements made by defense counsel, even to the point of characterizing a defense theory as ‘preposterous.’” Clayton, 995 S.W.2d at 480. The prosecutor’s statement cannot be categorized as a “personal attack” on Rhoades. The comment was made in response to the substance of Rhoades’s argument that the jury should not punish Clayton because he is “different” or “defective.” Furthermore, even if the statement should have been stricken by the trial judge, it clearly did not fatally infect the trial. Bounds, 151 F.3d at 1119. 4. “Legal Niceties” comment Finally, Clayton argues he suffered a constitutional deprivation when the prosecutor said the following: You cannot be compared to Cecil Clayton. You have done nothing wrong. Look at all the legal niceties we have danced through to get to the point where you can make this decision. Those legal niceties were not available to Christopher Castetter because one man chose to play God. See Resp. Ex. A-12 at pp. 1857-58. To put this statement into context, the following paragraph which immediately preceded the statement in dispute must be considered. Folks, what we’re dealing with here is, yes, there is value in human life, and Christopher Castetter’s life had value too, a great deal of value. A suggestion to you that there is something wrong with you issuing a death sentence where it is called for is preposterous. Id. at p. 1857. Thus, the prosecutor’s reference to “legal niceties” is related to his 63 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 64 of 82 argument that it was not wrong for the jury to impose the death penalty. Clayton argues the statement denigrated the court proceedings and unfairly punished Clayton for exercising his constitutional right to a trial. He also argues that the prosecutor’s statements minimized the jury’s responsibility for the sentence. The Missouri Supreme Court rejected Clayton’s contention. Clayton, 995 S.W.2d at 480-81. Clayton directs the Court to Driscoll v. Delo, 71 F.3d 701 (8th Cir. 1995), to support his argument that the comments minimized the jury’s responsibility for the sentence. In Driscoll, the prosecutor told the jury that their decision regarding the death penalty would be reviewed on appeal to ensure correctness. Id. at 712. He also instructed them that “(1) juries do not sentence defendants to death, and (2) it did not matter whether the jury sentenced Driscoll to death because the judge could simply overrule the decision.” Id. at 713. In granting habeas relief, the court held: [The prosecutor’s comments] fundamentally misrepresented the significance of the jury’s role and responsibility as a capital sentencer and misled the jury as to the nature of the judge’s review of its sentencing determination. . . . The prosecutor essentially told the jury that it could defer the extremely difficult decision of whether or not Driscoll should be sentenced to death. As a consequence, the jury made the decision that Driscoll would be killed without full recognition of the importance and finality of doing so and, therefore, without affording the decision the full consideration it required. Id. at 713 (internal citation omitted). Driscoll is clearly distinguishable from Clayton’s case because the prosecutor never attempted to assign the responsibility for imposing the death penalty to any other party. To the contrary, the prosecutor stated, “The decision you face is difficult. I don’t 64 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 65 of 82 pretend it isn’t.” See Resp. Ex. A-12 at p. 1858. He also stated, “I’m sure none of you have asked for this job, okay. I understand that. You’ve got a tough decision to make. It shouldn’t be easy. It should be hard. But the simple fact of the matter is we are dealing here with one of the most extreme circumstances, and that is killing a police officer.” Id. at p. 1857. There is no basis for finding that the statement about legal niceties punished Clayton for pursuing his right to trial or inappropriately denigrated the judicial process. The comment was made in response to Rhoades’s suggestion that it would be wrong for the jury to sentence Clayton to death, and accurately pointed out that Clayton received a trial but the decedent had no legal process. The statements were in clear rebuttal to Rhoades’s closing argument and not to suggest that Clayton should not have had a trial. 5. Summary Clayton has attacked the prosecutor’s penalty phase closing argument on several fronts, but the Court does not find that the comments in dispute “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 642-43. The Missouri Supreme Court has rejected Clayton’s arguments in their entirety and there is no basis for finding that the Missouri court’s decision was “contrary to clearly established Federal law” or that it suffers from an “unreasonable determination” of the facts. Lomholt, 327 F.3d at 751. Accordingly, Clayton’s twenty-first claim is denied. V. Claim 22: Due Process Challenge Based on the State’s Closing 65 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 66 of 82 Argument During the Penalty Phase Clayton also alleges he suffered a constitutional deprivation when the prosecutor made the following argument during the penalty phase of the trial: I think counsel said one thing here that is interesting, in that I think it shows the fallacy of what he has suggested to you. And that is he said the punishment should fit the criminal. You will find that nowhere in our law, nowhere in our tradition. Punishment should fit the crime. That’s what you’ll find in our law and in our tradition. The focus should not be on the criminal, but should be on the crime, and I think that is instructive. See Resp. Ex. A-12 at p. 1854. Punishment here must fit the crime, and if it doesn’t, then it diminishes us all. We are not here to judge Cecil Clayton as a person, we are here to punish him for the crime he’s committed. There is a difference. The crime calls for the ultimate penalty, and that’s what I ask you for. Id. at p. 1858. According to Clayton, the prosecutor “incorrectly told the jury that the law does not permit consideration of the defendant’s individual characteristics, rather the law only permits consideration of the circumstances of the crime.” See Petition [Doc. # 46] at p. 55. Clayton alleges that the prosecutor’s argument “violated long standing principles that require the sentencing body to take into account the circumstances of the offense and the character and propensities of the offender.” Id. The Missouri Supreme Court rejected Clayton’s claim, stating: “The prosecutor’s argument that the punishment should fit the crime was retaliation to defense counsel’s statement that the punishment should fit the criminal since consideration of both the crime and the criminal is required to determine the appropriate sentence.” Clayton, 995 S.W.2d at 479. 66 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 67 of 82 In support of his argument, Clayton directs the Court to Romine v. Head, 253 F.3d 1349 (11th Cir. 2001), but it is inapplicable. In Romine, the defendant was on trial for murdering his parents. During the penalty phase, the prosecutor quoted specific scriptures from the Bible and the Fifth Commandment to suggest that a “higher authority” required that Romine be sentenced to death. The prosecutor also advised the jury, “You may want to pray about that and be sure you’re doing the right thing and ask for guidance.” Id. at 1361. In Romine, there was evidence that the prosecutor’s argument influenced the process because one of the jurors consulted the Bible during the deliberations and two of the jurors discussed the passages cited by the prosecutor. Id. at 1362-63. The Eleventh Circuit condemned the prosecutor’s closing argument and granted habeas relief. [A] prosecutor misleads a capital sentencing jury when he quotes scripture as higher authority for the proposition that death should be mandatory for anyone who murders his parents. And that is what the prosecutor argued to the jury: In the Bible God said that anyone who kills his parents should be put to death, no “if’s”, “ands”, or “buts” about it. That may or may not be Biblical law, but it is not post-Furman capital punishment law. Id. at 1368. By eliminating the consideration of mercy or some other mitigating factor, the prosecutor’s closing was improper. Id. Clayton’s counsel did not instruct the jury to disregard the mitigating factors which were argued by Rhoades. The prosecutor did argue that the mitigating factors did not justify a life sentence. For example, immediately after the prosecutor made the statement 67 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 68 of 82 at issue, he discussed Clayton’s functioning abilities of a fifth-grader and how that should not be a factor in deciding whether to impose the death penalty. See Resp. Ex. A-12 at p. 1854. That does not mean that he asked the jury to ignore the factor. To reject it, the jury had to consider it. Clayton’s argument also ignores the prosecutor’s directive to the jury to consider the mitigating circumstances set forth in Instruction No. 19. Id. at p. 1841. Additionally, the jury was properly instructed on the law in writing. Instruction No. 19 clearly instructs the jury to consider Clayton’s mitigating factors, and Instruction No. 20 similarly instructs the jury that it does not have to impose death, even if the aggravating factors outweigh the mitigating factors. Given those safeguards, the prosecutor’s comment did not “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly, 416 U.S. at 642-43. W. Claim 23: Due Process Challenge Based on Trial Court’s Grant of the State’s Motion to Strike Venirepersons Lonnie Houston and Amy Kingry According to the record, the trial court struck venirepersons Lonnie Houston (“Houston”) and Amy Kingry (“Kingry”) for cause because Houston and Kingry vacillated and expressed doubt about their ability to impose the death penalty. In Wainwright v. Witt, 469 U.S. 412 (1985), the Supreme Court held that a juror in a capital case could be stricken for cause if the juror’s philosophy would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Id. at 424-25. The United States Supreme Court said: [T]his standard likewise does not require that a juror’s bias be proved with 68 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 69 of 82 ‘unmistakable clarity.’ This is because determinations of juror bias cannot be reduced to question-and-answer sessions which obtain results in the manner of a catechism. What common sense should have realized experience has proved: many veniremen simply cannot be asked enough questions to reach the point where their bias has been made ‘unmistakably clear’; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. . . . [T]his is why deference must be paid to the trial judge who sees and hears the juror. Id. Where a state court has determined that a venireperson cannot satisfactorily serve on a capital jury, federal courts apply a “presumption of correctness” to the state court’s finding of fact. 28 U.S.C. § 2254(e)(1)). Habeas courts “defer to the trial judge’s decisions regarding bias because the judge’s ‘predominant function in determining juror bias involves credibility findings whose basis cannot be easily discerned from an appellate record.’” Kinder v. Bowersox, 272 F.3d 532, 543 (8th Cir. 2001) (citation omitted). 1. Houston During the jury selection colloquy, Houston stated he was “unsure” whether he could vote for the death penalty, but that he could do so in “extreme cases” only. Clayton, 995 S.W.2d at 475. He further testified that he could sign a death verdict, but only in “some extreme case” and he could “hardly imagine it.” Id. Houston also testified: 69 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 70 of 82 I read the book “Dead Man Walking” this nun wrote down in Louisiana. And she’s kind of convincing, if you understand. Well, the death penalty is just dished out to poor people, minorities, such as that, and it costs the state so much more money to put somebody to death than to hold them. That’s She’s kind of convinced me of her thinking on that. That’s how I feel. Id. In evaluating the state’s motion to strike Houston for cause based on his inability to apply the death penalty but for “extreme” cases, the state trial court said: And the Court in observing Mr. Houston, I think it started out he could consider. When it got down to those, I heard things like: not sure, hesitant, maybe in extreme cases, might be possible case. And I’ll have to say, in looking at his demeanor and way he was hesitant, he took his glasses off several times, I’ll have to say that the Court’s impression in considering all of those, I believe under Witherspoon and Witt, that I just think it would prevent him or substantially impair his performance. You know, I have the impression he’s unable to faithfully and impartially apply the law in this case. Id. at 476. The Missouri Supreme Court upheld the trial judge’s finding and stated: The record supports the trial court’s ruling. The totality of Houston’s statements provided a basis for the trial court to conclude that Houston’s views on the death penalty would substantially impair his ability to follow the court’s instructions. Id. at 476. Clayton has failed to rebut, or even call into question, the presumption that the state courts correctly found that Houston was biased. There is ample justification for the state court’s determination. 2. Kingry As to Kingry, the Missouri Supreme Court said: During the state’s voir dire, venireperson Kingry expressed doubt that she could vote for the death penalty. She vacillated under questioning by the 70 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 71 of 82 prosecution, then the defense, as to whether she could follow the law in a capital case. She stated that the ‘only way I could vote for it is if I had no doubt, you know, in my mind’ and that she would require the prosecutor to prove the case beyond all possible doubt before she could consider the death penalty. When asked if she could sign a death verdict if she were to serve as the foreperson, she responded ‘no, no.’ The court sustained the state’s motion to strike Ms. Kingry for cause. Clayton, 995 S.W.2d at 476. Before sustaining the State’s motion to strike Kingry for cause, the state trial judge said: I tell you what, I think I’m going to strike for cause, but let me tell you why. It is - she vacillated. She went back and forth. And I listened. But the whole thing seems to me is she says - And I think that probably the defense is correct, I think you rehabilitated her to the point that she says, ‘no, for the first stage, for guilt or innocence, it’s - beyond a reasonable doubt is fine. But if I’m going to vote for the death penalty, which is one of the authorized voting, they would have to - I would have to have no doubt.’ And I don’t think it requires no doubt. The law requires beyond a reasonable doubt on even that one. So I think on that, as I have belief in watching her that - you know, that - I just have - you know, I have an impression that she’d be unable to apply the law in this case when it comes to second stage in the instruction. Id. Clayton has failed to rebut, or even call into question, the presumption that the state court correctly found that Kingry was biased. There is ample justification for the state court’s determination. X. Claim 24: Due Process Challenge Based on the Missouri Supreme Court’s Proportionality Review Clayton also contends that the Missouri Supreme Court’s proportionality review violates his constitutional rights. The Missouri Supreme Court conducted a proportionality review in accordance with Mo. Rev. Stat. § 565.030(3) and held: 71 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 72 of 82 Lastly, we must determine whether the sentence of death is excessive or disproportionate. In making this determination, we consider similar cases where the death penalty was imposed. The death sentence in this case is neither excessive nor disproportionate to the penalty imposed in similar cases. This Court has upheld sentences of death where the defendant commits an execution-style shooting of a defenseless victim. This Court has also upheld sentences of death in numerous cases involving killings of peace officers, law enforcement, or corrections officers. In light of the crime and the strength of the evidence against him, Clayton’s sentence of death is not excessive or disproportionate. Clayton, 995 S.W.2d at 484 (internal citations omitted). Clayton now asserts the Missouri Supreme Court violated his due process rights because they compared his case only to other cases where a death sentence was affirmed, thereby improperly skewing the outcome of the proportionality review. Because the state of Missouri has created the right of proportionality review for persons sentenced to death, “the Fourteenth Amendment . . . entitles [Petitioner] to procedures to ensure that the right is not arbitrarily denied.” Foster v. Delo, 39 F.3d 873, 882 (8th Cir. 1994). However, “the Missouri Supreme Court conducted the relevant review in this case and concluded that the punishment was not disproportionate to that imposed for similar crimes in similar cases.” Foster, 39 F.3d at 873. This Court “cannot look behind the Missouri Supreme Court's conclusion or consider whether that court misinterpreted the Missouri statute requiring proportionality reviews.” Williams v. Delo, 82 F.3d 781, 785 (8th Cir. 1996) (citing LaRette v. Delo, 44 F.3d 681, 688 (8th Cir. 1995)). Indeed, the Missouri Supreme Court, in State v. Tokar, 918 S.W.2d 753, 773 (Mo. 1996), only looked to cases where the death penalty was affirmed under comparable 72 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 73 of 82 factual circumstances, and the Eighth Circuit did not find that to be a constitutional violation. See Tokar v. Bowersox, 198 F.3d 1039, 1052 (8th Cir. 1999). Y. Claim 25: Due Process Challenge Based on Clayton’s Incompetency Clayton alleges that he was denied due process because he was forced to pursue his trial, appeal, and post-conviction remedies, even though he was incompetent to stand trial and pursue his post-conviction remedies. Clayton’s twenty-fifth claim is procedurally barred because he failed to raise it at any time during the underlying state proceedings. Clayton claims that his incompetence constitutes “cause” for his procedural default. For the same reasons previously given, this does not constitute “cause.” The claim is procedurally barred. Z. Claim 26: Due Process Challenge Based on Clayton’s Asserted Innocence Because of Lack of Criminal Responsibility Clayton alleges that he was denied due process because he is actually innocent of killing Castetter. Based on Mo. Rev. Stat. § 552.030(1), Clayton contends that he lacks criminal responsibility for the murder because of his mental impairments. Clayton’s twenty-sixth claim is procedurally barred because he failed to raise it at any time during the underlying state proceedings, including his direct appeal of his sentence and the Rule 29.15 proceedings. However, actual innocence can excuse a petitioner’s procedural default. See Hall v. Luebbers, 296 F.3d 685, 697-98 (8th Cir. 2002) (evidence negating the element of deliberation can constitute actual innocence and overcome a procedural 73 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 74 of 82 bar) (citing Schlup v. Delo, 513 U.S. 298, 324 (1995)). The first question is whether a mentally impaired defendant is actually innocent or merely legally innocent. If the latter, procedural default is not excused. Bannister v. Delo, 100 F.3d 610, 615 (8th Cir. 1996). The Seventh Circuit has found that a person acquitted by reason of insanity is actually innocent. Britz v. Cowan, 192 F.3d 1101, 1103 (7th Cir. 1999). So has the Third Circuit in In re Minarik, 166 F.3d 591, 607 (3rd Cir. 1999). The Eighth Circuit has held that a petitioner who can demonstrate that a mental defect negated the petitioner’s ability to deliberate has also stated a claim of actual innocence, see Jones v. Delo, 56 F.3d 878, 883 (8th Cir. 1995), and this suggests that the Eighth Circuit would likewise find that a defendant is actually innocent if he is able to establish the requirements in Mo. Rev. Stat. § 552.030(1). However, the Court need not resolve the issue, because even if Clayton’s defense would constitute actual innocence, Clayton’s evidence does not show that the requirements of Mo. Rev. Stat. § 552.030(1) have been sufficiently established to justify habeas relief. In Schlup, the United States Supreme Court held that a claim of actual innocence is established if the habeas petitioner has new reliable evidence that was not presented at trial which shows that a constitutional violation has occurred and “that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence.” Schlup, 513 U.S. at 327. The Eighth Circuit has held that “evidence is new only if it was not available at trial and could not have been discovered earlier through the exercise of due diligence.” Amrine v. Bowersox, 128 F.3d 1222, 1230 (8th Cir. 1997). Also see 74 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 75 of 82 Osborne v. Purkett, 411 F.3d 911, 920 (8th Cir. 2005). 1. Dr. Foster Dr. Foster testified at Clayton’s post-conviction hearing that Clayton had a mental defect--specifically, dementia, secondary to traumatic injury--at the time of the murder. Dr. Foster also testified about whether Clayton could deliberate on the evening of Castetter’s murder. See Clayton Ex. G-2 at p. 363: Q. Are you aware of how Missouri law defines deliberation? A. I am. Q. Do you have an opinion, as to a reasonable degree of psychological certainty, as to whether Mr. Clayton’s mental defect prevented him from deliberating before he shot Officer Castetter? A. I could find no evidence of motive to kill anyone. I could find no evidence of intent to kill someone. The closest would be some suicidal ideation, but he still has some strong internalized values opposing that. In the time that it took for the shooting to actually occur, I - he had, at least in his recollection to me, all he had was that startled response blank time. And now, he was on the road driving out of that driveway, as fast as he could go. I see no, I see no evidence in his recollection, or of the reports that reviewed, that give him time for cool, clear reflection, no matter how brief. I see no, no time for that. Id. at p. 363:10 to 364:8. Dr. Foster’s testimony regarding Clayton’s ability to deliberate is, at best, inconclusive. First, he states that Clayton did not have a motive for killing Castetter, which is a separate issue from the concept of deliberation. Next, Dr. Foster states that he does not believe Clayton had time to deliberate, but this is not a matter for expert opinion 75 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 76 of 82 and does not indicate Clayton was incapable of deliberating. Having reviewed all of Dr. Foster’s testimony, the Court believes it is unlikely that a jury would give it substantial weight. He had no persuasive explanation for his conclusion that Clayton could not deliberate and it is understandable that the state judge who heard Clayton’s Rule 29.15 Motion did not find Dr. Foster’s testimony credible. See Clayton, 63 S.W.3d at 209. More importantly, even if Dr. Foster were a credible witness, his testimony undermines Clayton’s claim. Clayton’s underlying claim is that he was actually innocent because of a mental disease or defect. Mo. Rev. Stat. § 552.030, provides that: “[A] person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect such person was incapable of knowing and appreciating the nature, quality, or wrongfulness of such person’s conduct.” Mo. Rev. Stat. § 552.030(1). On cross examination, Dr. Foster testified that Clayton knew his conduct was wrong and understood the quality and nature of his act. Resp. Ex. G-3 at pp. 464-465. In addition, at Clayton’s trial Dr. Back testified that Clayton had the ability to distinguish between right and wrong. She also gave extensive testimony about his brain injury and her opinion that Clayton was not capable of deliberation. In short, Clayton’s own expert’s testimony shows that he did not meet the criteria for insanity established in Mo. Rev. Stat. § 552.030(1). 2. Dr. Merikangas Clayton also states that the testimony of Dr. James Merikangas will support his 76 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 77 of 82 claim of actual innocence, but he offers no testimony, affidavit or any other evidence from this doctor. See Petition [Doc. # 46] at p. 29. After an independent review of the record, the Court has not found any evidence or testimony from Dr. Merikangas at any stage of this proceeding that would support Clayton’s claim of actual innocence. 3. Hearing Clayton has not offered any evidence to support his claim of actual innocence, but he states, “At an evidentiary hearing, Clayton can present evidence that, absent constitutional error, it is more likely than not that he would have been acquitted.” See Traverse [Doc. # 65] at p. 68. The Court finds that a hearing is not necessary to evaluate Clayton’s claim of actual innocence. Before a petitioner is entitled to an evidentiary hearing, the petitioner “must allege facts which, if proved, would entitle [the petitioner] to relief.” Bowman v. Gammon, 85 F.3d 1339, 1343 (8th Cir. 1996) (internal quotations omitted). In assessing the need for an evidentiary hearing, a district court must evaluate “the probative force of the newly presented evidence in connection with the evidence of guilt . . . . [T]he court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence.” Barrington v. Norris, 49 F.3d 440, 441-42 (8th Cir. 1995). A petitioner must present sufficient facts to warrant a hearing and “the mere fact that affidavits are presented does not automatically require [remand for an evidentiary hearing].” Battle v. Delo, 64 F.3d 347 (8th Cir. 1995), cert. denied, 517 U.S. 1235 (1996) 77 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 78 of 82 In Barrington, the petitioner merely identified a witness and specified what the witness’s exculpatory evidence would be. Barrington, 49 F.3d at 441. The petitioner did not present any affidavits nor did she proffer any newly-discovered physical evidence. The district court refused to hold an evidentiary hearing on the petitioner’s claim of actual innocence and the Eighth Circuit affirmed, stating: “[W]e do not believe [petitioner] made a sufficient showing of actual innocence to warrant a hearing on the issue. Considering her failure to meet this threshold showing, we conclude the district court properly declined to reach the merits of her petition.” Id. at 442. Like the petitioner in Barrington, Clayton has not offered sufficient evidence that would justify conducting an evidentiary hearing on his claim of actual innocence. Furthermore, given the testimony of the two experts that Clayton has already proffered, it is unlikely that a third would be persuasive. AA. Claim 27: Due Process Challenge Based on Clayton’s Alleged Retardation When the Death Penalty Was Imposed Clayton alleges that he was denied due process because he was sentenced to death even though he was mentally retarded at the time of the offense. In Atkins v. Virginia, 536 U.S. 304 (2002), the United States Supreme Court held that executing mentally retarded criminals violates the Eighth Amendment’s prohibition of cruel and unusual punishment. While this decision was made after Clayton exhausted his state remedies, the Court will assume that Atkins is retroactive and will assume that Clayton’s procedural default is excused. Nonetheless, Clayton has failed to present 78 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 79 of 82 sufficient evidence that he was mentally retarded at the time of the murder to justify even a new hearing on the subject. Under Missouri law, the term “mentally retarded”: refer[s] to a condition involving substantial limitations in general functioning, characterized by significantly subaverage intellectual functioning with continual extensive related deficits and limitations in two or more adaptive behaviors such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, which conditions are manifested and documented before eighteen years of age. Mo. Rev. Stat. § 565.030(6). In Johnson v. State, 102 S.W.3d 535 (Mo. 2003) (en banc), the Missouri Supreme Court remanded the issue of mental retardation to the trial court so it could conduct an evidentiary hearing regarding the petitioner’s mental capacity. The court noted that there was substantial evidence that the petitioner suffered from a low IQ and that it had manifested itself prior to age eighteen. Johnson, 102 S.W.3d at 540-41. On the other hand, in Taylor v. State, 126 S.W.3d 755 (Mo. 2004) (en banc), the court refused to remand a petitioner’s claim of mental retardation for a hearing where the petitioner “failed to present any credible evidence in support of his claim that he was mentally retarded at the time of the offense.” Id. at 763. Because the current record clearly shows that Clayton was not mentally retarded under Missouri law at the time he killed Officer Castetter, it is not necessary to remand this matter to the state court for resolution. First, Clayton has not presented evidence that any of his symptoms manifested 79 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 80 of 82 before the age of eighteen--a necessary requirement under the statutory definition. See Mo. Rev. Stat. Mo. Rev. Stat. § 565.030(6). Also see Atkins, 536 U.S. at 317 (limiting its holding to mentally retarded individuals who satisfy state standards for retardation). Indeed, it is clear he is relying on his brain injury to support this retardation claim, and that did not occur until Clayton was an adult. Second, while he claims that “he functions at a level which, if it were congenital, would be considered mental retardation . . . by the American Psychiatric Association,” see Traverse [Doc. # 65] at p. 69, he cites no evidence to support that conclusion. Third, the record refutes his claim that at the time of the murder, or at any time since, he functioned at the level of a mentally retarded person. Dr. Back stated that Clayton was not retarded when she evaluated him in 2000. Resp. Ex. I-1 at pp. 92-93. Dr. Back evaluated Clayton less than one year after he killed Castetter and his IQ scores placed Clayton within the low average range of intellectual functioning. In Clayton’s recent competency assessment at the Medical Center for Federal Prisoners in Springfield, Missouri, he was administered the CAST-MR, and he received scores that were consistent with presumed competent individuals without mental retardation. See F.R. [Doc. # 103] at p. 26, submitted by Dr. Preston in connection with Clayton’s Renewed Motion for Stay. Based on the foregoing, neither a hearing nor a remand of this issue to the Missouri courts is necessary to resolve Clayton’s twenty-seventh claim for relief. It is denied. 80 Case 4:02-cv-08001-NKL BB. Document 105 Filed 04/27/2006 Page 81 of 82 Claim 28: Counsel Is Unable to Prepare Other Grounds Because of Clayton’s Incompetence In his twenty-eighth claim, Clayton claims that he is incompetent to proceed, and his lack of competency has impeded his counsel’s ability to develop his claims for relief. For the same reasons discussed by the Court in its Order denying a stay [Doc. # 104], Clayton’s twenty-eighth claim is denied. CC. Claim 29: The Cumulative Number of Errors Warrant Relief Clayton alleges that he was denied due process because the cumulative effect of procedural errors in his case violated his constitutional rights, even if the individual errors themselves do not rise to the level of a constitutional violation. Clayton’s twenty-ninth claim is procedurally barred because he failed to raise it at any time in state court. Nonetheless, even assuming Clayton’s claim was not procedurally barred, it would provide no relief. Under a cumulative error analysis, courts “aggregate[] all errors found to be harmless and analyze[] whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.” United States v. Toles, 297 F.3d 959, 972 (10th Cir. 2002) (quoting United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990) (en banc)), cert. denied 540 U.S. 1210 (2004). According to Toles, “[O]nly actual errors are considered in determining whether a defendant’s right to a fair trial has been violated.” Toles, 297 F.3d at 972. The Court has not found actual error and, therefore, Clayton’s cumulative error claim must fail. Even if the court had found actual error, the evidence of Clayton’s guilt is 81 Case 4:02-cv-08001-NKL Document 105 Filed 04/27/2006 Page 82 of 82 overwhelming. In addition, the jury was given extensive evidence about Clayton’s brain injury and still decided to impose the death penalty. Against this backdrop, the Court cannot say that Clayton’s right to a fair trial has been impaired. The Court denies Clayton’s twenty-ninth claim for relief. DD. Claim 30: Clayton Is Incompetent to Be Executed In this thirtieth and final claim for relief, Clayton asserts that he is incompetent to be executed under the standard set forth in Ford v. Wainwright, 477 U.S. 399 (1986). His recent competency examination shows that he is competent to be executed. Clayton’s thirtieth claim is denied. V. Conclusion After careful consideration of each of Clayton’s claims for relief, the Court finds that habeas relief is not warranted. Accordingly, it is hereby ORDERED that Clayton’s Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in a Capital Case [Doc. # 46] is DENIED. s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge DATE: April 27, 2006 Jefferson City, Missouri 82 United States Court of Appeals, Eighth Circuit. Cecil CLAYTON, Appellant, v. Donald P. ROPER, Appellee. No. 06-3260. Submitted: Oct. 18, 2007. Filed: Feb. 1, 2008. Rehearing and Rehearing En Banc Denied April 8, 2008. Background: After petitioner's first degree murder conviction and death sentence were affirmed, 995 S.W.2d 468, petitioner sought federal habeas relief. The United States District Court for the Western District of Missouri, Nanette K. Laughrey, J., 2006 WL 1128803, denied a request for an evidentiary hearing on petitioner's competence and his habeas petition. Petitioner appealed. Holdings: The Court of Appeals, Smith, Circuit Judge, held that: (1) petitioner was competent to proceed with habeas review; (2) prosecutor's alleged statements during closing and sentencing phases of trial did not violate due process rights; (3) jury instructions were not erroneous; and (4) actual innocence claim was not cognizable. Affirmed. Bye, Circuit Judge, filed a concurring opinion. West Headnotes [1] Habeas Corpus 197 843 197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)2 Scope and Standards of Review 197k843 k. Discretion of Lower Court. Most Cited Cases Court of Appeals reviews district court's decision to rule on a claim of incompetency in a habeas proceeding without holding a hearing for abuse of discretion. [2] Habeas Corpus 197 846 197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(D) Review © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 197III(D)2 Scope and Standards of Review 197k846 k. Clear Error. Most Cited Cases District court's competency determination in a habeas proceeding is a factual finding, so Court of Appeals reviews determination for clear error. [3] Habeas Corpus 197 748 197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(C) Proceedings 197III(C)3 Hearing 197k745 Criminal Cases 197k748 k. Mental Competency. Most Cited Cases District court did not abuse its discretion in denying habeas petitioner a competency hearing; district court determined that all of the relevant information was before the court, including extensive medical data and detailed opinions from the doctors who examined petitioner. [4] Habeas Corpus 197 742 197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(C) Proceedings 197III(C)3 Hearing 197k742 k. Discretion and Necessity in General. Most Cited Cases The district court has broad discretion to determine when to order a hearing on a matter in a habeas proceeding. [5] Mental Health 257A 432 257A Mental Health 257AIV Disabilities and Privileges of Mentally Disordered Persons 257AIV(E) Crimes 257Ak432 k. Mental Disorder at Time of Trial. Most Cited Cases Petitioner, who sought habeas review of state court conviction for first degree murder, was competent to proceed with habeas proceedings, notwithstanding the opinion of psychologist on the staff at United States Medical Center for Federal Prisoners to the contrary, where objective findings from tests the psychologist performed indicated that petitioner had the ability to understand the legal proceedings and communicate with counsel provided that his counsel was patient in eliciting information. [6] Habeas Corpus 197 846 197 Habeas Corpus © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)2 Scope and Standards of Review 197k846 k. Clear Error. Most Cited Cases A finding in a habeas proceeding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. [7] Criminal Law 110 625.15 110 Criminal Law 110XX Trial 110XX(A) Preliminary Proceedings 110k623 Separate Trial or Hearing on Issue of Insanity, Incapacity, or Incompetency 110k625.15 k. Evidence. Most Cited Cases Expert opinion on competency rises no higher than the reasons on which it is based. [8] Habeas Corpus 197 883.1 197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(E) Costs 197k883 Indigent Petitioners 197k883.1 k. In General. Most Cited Cases District court did not err in refusing to provide additional funds to repeat medical tests regarding habeas petitioner's competency to proceed with habeas review; petitioner was evaluated by two experts, an expert of his choosing and an expert from the Federal Bureau of Prisons, who had conducted the necessary tests to determine psychological condition, and despite the expenditure of $7,500, petitioner had offered no report from his chosen physician. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 408(q)(10)(B), 21 U.S.C.(2000 Ed.) § 848(q)(10)(B). [9] Habeas Corpus 197 842 197 Habeas Corpus 197III Jurisdiction, Proceedings, and Relief 197III(D) Review 197III(D)2 Scope and Standards of Review 197k842 k. Review De Novo. Most Cited Cases Court of Appeals reviews de novo a district court's denial of a due process claim concerning a prosecutor's statements at trial. U.S.C.A. Const.Amend. 14. [10] Constitutional Law 92 4629 © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)4 Proceedings and Trial 92k4627 Conduct and Comments of Counsel; Argument 92k4629 k. Prosecutor. Most Cited Cases Constitutional Law 92 4745 92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)6 Judgment and Sentence 92k4741 Capital Punishment; Death Penalty 92k4745 k. Proceedings. Most Cited Cases Criminal Law 110 2098(4) 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2093 Comments on Evidence or Witnesses 110k2098 Credibility and Character of Witnesses; Bolstering 110k2098(4) k. Credibility of Expert Witness. Most Cited Cases (Formerly 110k720(5)) Criminal Law 110 2098(5) 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2093 Comments on Evidence or Witnesses 110k2098 Credibility and Character of Witnesses; Bolstering 110k2098(5) k. Credibility of Other Witnesses. Most Cited Cases (Formerly 110k722.5) Criminal Law 110 2144 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2140 Comments on Character or Conduct © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 110k2144 k. Comments on Other Misconduct by Accused. Most Cited Cases (Formerly 110k722.5) Sentencing and Punishment 350H 1780(2) 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)3 Hearing 350Hk1780 Conduct of Hearing 350Hk1780(2) k. Arguments and Conduct of Counsel. Most Cited Cases (Formerly 110k720(5), 110k722.5) Prosecutor's alleged statements during guilt and sentencing phases of defendant's murder trial, in which death penalty was imposed, did not violate defendant's due process rights; prosecutor had allegedly disparaged the opinion of one of defendant's mental-health experts, mentioned defendant's probable intent to commit other crimes, mentioned the prosecutor's time as a soldier, described the defense argument against the death penalty as preposterous, referred to aspects of defendant's criminal proceedings as legal niceties, and averred that the punishment should fit the crime, not the criminal, but trial court adequately instructed the jury, and the factual case against defendant was otherwise very strong. U.S.C.A. Const.Amend. 14. [11] Criminal Law 110 2073 110 Criminal Law 110XXXI Counsel 110XXXI(F) Arguments and Statements by Counsel 110k2071 Scope of and Effect of Summing Up 110k2073 k. For Prosecution. Most Cited Cases (Formerly 110k709) A prosecutor is given wide latitude in making a closing argument. [12] Constitutional Law 92 4629 92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)4 Proceedings and Trial 92k4627 Conduct and Comments of Counsel; Argument 92k4629 k. Prosecutor. Most Cited Cases If a prosecutor goes too far during closing argument, there may be a violation of the defendant's rights; such a violation occurs if the prosecutor's comments so infected the trial with unfairness as to make the resulting conviction a denial of due process. U.S.C.A. Const.Amend. 14. © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. [13] Criminal Law 110 1162 110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1162 k. Prejudice to Rights of Party as Ground of Review. Most Cited Cases All errors of constitutional dimension do not automatically call for reversal of a criminal conviction. [14] Criminal Law 110 1162 110 Criminal Law 110XXIV Review 110XXIV(Q) Harmless and Reversible Error 110k1162 k. Prejudice to Rights of Party as Ground of Review. Most Cited Cases Court of Appeals will not reverse a criminal conviction unless the constitutional violation at issue harms the defendant. [15] Constitutional Law 92 4745 92 Constitutional Law 92XXVII Due Process 92XXVII(H) Criminal Law 92XXVII(H)6 Judgment and Sentence 92k4741 Capital Punishment; Death Penalty 92k4745 k. Proceedings. Most Cited Cases Sentencing and Punishment 350H 1780(3) 350H Sentencing and Punishment 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)3 Hearing 350Hk1780 Conduct of Hearing 350Hk1780(3) k. Instructions. Most Cited Cases Trial court's jury instructions in defendant's murder trial, which included a depraved-mind or random killing aggravating factor with a peace-officer aggravating factor, did not constitute reversible error under the Due Process Clause or the Eighth Amendment prohibition against cruel and unusual punishment. U.S.C.A. Const.Amends. 8, 14. [16] Sentencing and Punishment 350H 1789(9) 350H Sentencing and Punishment © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. 350HVIII The Death Penalty 350HVIII(G) Proceedings 350HVIII(G)4 Determination and Disposition 350Hk1789 Review of Proceedings to Impose Death Sentence 350Hk1789(9) k. Harmless and Reversible Error. Most Cited Cases Even if trial court's instructions in defendant's murder trial, which included a depraved-mind or random killing aggravating factor with a peace-officer aggravating factor, constituted error under the Due Process Clause and Eighth Amendment prohibition against cruel and unusual punishment, such error was harmless, where defendant could not cite any additional facts that came before the jury based on the inclusion of the random-killing aggravator that could not have also come in under the peace-officer aggravator. U.S.C.A. Const.Amends. 8, 14. [17] Habeas Corpus 197 477 197 Habeas Corpus 197II Grounds for Relief; Illegality of Restraint 197II(B) Particular Defects and Authority for Detention in General 197k477 k. Mental Competency; Examination. Most Cited Cases Petitioner's claim of actual innocence based on his inability to deliberate was not subject to federal habeas review of defendant's state murder conviction, absent an independent constitutional violation that occurred in his state criminal proceeding. *786 Elizabeth Unger Carlyle, argued, Columbus, MS, Susan M. Hunt, Kansas City, MO, on the brief, for appellant. Andrew W. Hassell, AAG, argued, Jefferson City, MO, for appellee. Before BYE, BOWMAN, and SMITH, Circuit Judges. SMITH, Circuit Judge. Cecil Clayton was convicted of first degree murder in the Circuit Court of Jasper County, Missouri, and sentenced to death. After Clayton exhausted his state appeals, he petitioned the appropriate United States district court for a writ of habeas corpus. In his petition Clayton contended that the State of Missouri violated his due process rights at trial, and he requested an evidentiary hearing to determine his present competency to proceed further in the habeas appeal process. Clayton also asserted an actual innocence claim. The district court FN1 denied Clayton's request for an evidentiary hearing on his competence and his habeas petition. Clayton appeals each of the court's rulings. We affirm. FN1. The Honorable Nanette K. Laughrey, United States District Judge for the Western District of Missouri. I. Background © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. Clayton is an inmate at a Missouri prison, having been sentenced to death following his conviction on one count of first degree murder for the death of Officer Christopher Castetter. On November 27, 1996, Clayton met his estranged girlfriend, Martha Ball, at a store in Purdy, Missouri; while at the store, the couple argued loudly. So much so, in fact, that a store employee called police. After a Purdy police officer arrived at the store, Clayton and Ball left but not together. After the store dispute, Clayton went to Ball's mother's house in search of Ball. Concerned, Ball's sister, present at the house, called police and told them that Clayton was trespassing on their property. Officer Castetter responded to the call, and arrived on the scene in a marked patrol car. As Officer Castetter began to roll down his driver's side window, Clayton walked up to the patrol car and shot him in the head at point-blank range. Officer Castetter's car apparently struck Clayton's truck before striking a tree. Officer Castetter later died from the gunshot wound at a local hospital. After the shooting, Clayton visited his friend, Martin Cole. The two rode in Clayton's truck from Cole's house to Clayton's house. Clayton told Cole that he had shot a policeman. Clayton described the murder to Cole in detail, including the weapon that was used. Clayton told Cole that he wanted Cole to be his alibi witness and threatened to kill Cole if he did not cooperate. The police came to Clayton's home, identified themselves, and ordered Clayton to surrender. Clayton cursed at the officers and temporarily evaded them while attempting to hide what was later identified*787 as the murder weapon in a stack of concrete blocks. Clayton eventually surrendered. While on the way to the police station, Clayton told officers that he had been with a friend all evening, watching television and drinking beer. The police investigation, including eyewitness testimony, strongly linked Clayton to the scene of the crime. Specifically, Clayton was observed at the scene before the shooting and leaving the scene in his truck. The gun retrieved from Clayton's property matched the murder weapon. Damage to Clayton's truck matched debris found at the murder scene. Paint on Clayton's truck was similar to paint observed on Officer Castetter's car. Clayton, nonetheless, insisted during questioning that he spent the evening with a friend but offered no other details of his evening. A few months later, while in the county jail, Clayton told his cellmate about the shooting, and recounted the details of the murder to him. Clayton was charged with first degree murder. At trial, Clayton presented both a reasonable doubt and a diminished capacity defense based upon prior brain damage. Witnesses, including Clayton's brother, testified that Clayton suffered a head injury when he worked at a sawmill. In that accident, a piece of wood pierced his skull, and destroyed a significant portion of brain tissue. Clayton called Dr. Michael Morris, a neurologist who testified that Clayton's brain injury led to a mental defect. During his examination of Clayton, Dr. Morris conducted an MRI, and the doctor explained to the jury that the MRI showed that Clayton lost just under 8% of his brain in the sawmill accident. Clayton also called Dr. Betty Black, a clinical psychologist. Dr. Black testified that Clayton's head injury created dementia and memory problems. Dr. Black concluded that Clayton's brain injury coupled with his alcohol use prevented Clayton from coolly reflecting, © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. planning, or controlling his behavior when he is in an aggravated state. Clayton used the testimony regarding his mental state as evidence of mitigating circumstances at his trial, but he did not contest his competency to stand trial. During guilt-phase closing arguments, the prosecution criticized the defense experts' testimony. When referring to Clayton's mental health expert, the prosecutor said the following: And in the face of all this, we're told that the defendant couldn't deliberate. We're told that by, well, Dr. Betty [sic] Back. And I'll talk about her a little bit more. But, folks, I think she said something, and you notice that she didn't want to deal with the facts surrounding this incident, did she? She wanted to deal with her nice little computer tests. She wanted to deal with her nice clean little numbers. This isn't clean; it's murder. It's dirty and it's ugly, and if you don't look at the facts, you don't know what happened. So he couldn't plan. Well, ma‘am, we pointed out to her, not only could he plan, he did plan. “Well, he didn't plan in a socially acceptable manner.” Well, I've never met a criminal who did. That is not only unlikely, it's preposterous. It's absolutely preposterous. “Well, they don't have very good judgment.” Well, as far as I'm concerned somebody who buys a Toyota doesn't have very good judgment because I don't like Toyotas. That doesn't mean there's anything wrong with their ability to reason. Folks, it's voodoo, that's all it is. It's an excuse. After hearing all of the evidence and the arguments, the jury returned a verdict of guilty on the first degree murder charge. *788 Later, during closing arguments for the penalty phase of the trial, Clayton contended that the State had not shown that the death penalty was an appropriate punishment for Clayton's conduct. Clayton argued that in assessing an appropriate penalty, the jury should consider that the punishment should fit the criminal as well as the crime. When the prosecution presented its closing, the prosecutor stated, “A suggestion to you that there is something wrong with you issuing a death sentence where it is called for is preposterous.” And in rebuttal to the defense argument that the punishment fit the crime, the prosecutor said that: I think counsel said one thing here that is interesting, in that I think it shows the fallacy of what he has suggested to you. And that is he said the punishment should fit the criminal. You will find that nowhere in our law, nowhere in our tradition. Punishment should fit the crime. That's what you'll find in our law and in our tradition. The focus should not be on the criminal, but should be on the crime, and I think that is instructive. The prosecutor also referred to the criminal proceedings as “legal niceties” that are afforded to Clayton and that were denied to Officer Castetter because Clayton decided to “play God.” In his argument for a sentence of death, the prosecutor stated, “Me, having been a soldier, I guess I can © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. imagine reasons why a person would kill. I don't understand killing a police officer. If you'll kill a police officer, you would kill anyone. That is a figure of authority.” The prosecutor also argued that the evidence supported an inference that Clayton went to Ball's mother's home to commit other crimes that night. Clayton did not object to the prosecutor's arguments. In its instructions to the jury, the court explained that the jury could return a recommendation of death only after considering whether any of the following statutory aggravating circumstances existed: (1) whether Clayton had previously been convicted of second degree assault; (2) whether the murder was committed during the exercise of the victim's official duties as a peace officer; (3) whether the murder involved depravity of mind and, as a result, was outrageously and wantonly vile, horrible, and inhuman; (4) whether the murder was committed for the purpose of avoiding arrest. Additionally, with respect to aggravating circumstance (3), the jury was told that it could make a finding that the murder involved depravity of mind only if they determined that the defendant's selection of the person killed was random and without regard to the victim's identity and that the defendant's killing of the officer exhibited a callous disregard for the sanctity of all human life. In his closing, the prosecutor argued that the murder was random. The jury returned a finding that factors 1, 2, and 3 existed, and, as a result, the jury returned a sentence of death. The trial court denied Clayton's request for a new trial and accepted the jury's sentencing recommendation. Clayton appealed his conviction on several grounds, including challenges to the prosecutor's comments during the guilt phase and the penalty phase. On direct appeal to the Missouri Supreme Court, Clayton's conviction and sentence were affirmed. Clayton petitioned the United States Supreme Court for a writ of certiorari, but his petition was denied. Clayton then exhausted all available state postconviction remedies. Then, Clayton filed this action seeking relief through a writ of habeas corpus petition. In his habeas petition, Clayton argued that he should be granted relief on three grounds: (1) the prosecutor's statements *789 during the guilt and penalty phases of his trial violated his due process rights, (2) the jury instructions were defective and violated his due process rights, and (3) Clayton is actually innocent because he was incapable of deliberating before his actions. In addition to these constitutional claims, Clayton also asserts that the habeas proceedings should be stayed because he is presently incompetent to proceed. Clayton's competency to participate in the proceedings against him first surfaced near the inception of the state proceedings. While awaiting trial on the murder charge, jail officials suspected psychosis and doctors prescribed him antipsychotic medication. These officials also suggested to his attorneys that they conduct a competency evaluation, but no such evaluation was completed. And, Clayton never raised his competency to stand trial before the State of Missouri. Clayton did argue that his mental disabilities should be taken into account when assessing the appropriateness of the death penalty. © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. Below, in the instant proceeding, Clayton argued that his brain injury impaired his ability to communicate with counsel, understand the proceedings, and make decisions about the proceedings rendering him incompetent to proceed. The district court allowed Clayton to retain an expert to evaluate his competence. Initially, the district court provided $10,000 for an evaluation of Clayton by Dr. James Merikangas. but this allotment was later reduced to $7500, representing the maximum the district court could authorize without prior approval by the chief judge. Dr. Merikangas told Clayton's counsel that MRI and SPECT scans were needed before he could do a complete evaluation because Clayton's original MRI records had been destroyed. These additional tests were not done because their cost exceeded the court's $7500 order. Dr. Merikangas did not submit a written report to the district court. Clayton was also evaluated by Dr. Lea Ann Preston, a psychologist on the staff at the United States Medical Center for Federal Prisoners. Clayton was at the facility for seven months. Dr. Preston issued an extensive report, and concluded that Clayton was not competent to assist his attorney. In the report she stated: Mr. Clayton's tangential speech, impaired judgment, and impaired reasoning abilities, will negatively affect his ability to communicate effectively with his counsel, testify relevantly, and make rational decisions regarding his habeas proceedings. Consequently, it is my opinion he is likely not competent to proceed. The district court denied Clayton's petition for a stay of the proceedings based on his competence. The district court disagreed with Dr. Preston's conclusion that Clayton was incompetent and also refused Clayton's petition for a hearing on the matter. Now Clayton appeals the denial of his petition for relief and maintains that he is presently incompetent to proceed. II. Discussion Clayton raises four arguments on appeal: (1) he claims that he has a right not to proceed in habeas if he is not presently competent, and the district court erred in denying this claim without holding a hearing to determine whether he is presently competent; (2) Clayton asserts that the prosecutor violated his due process rights with several comments he made during both the guilt and penalty phases of Clayton's trial; (3) Clayton challenges the jury instructions as a violation of the Due Process Clause; and (4) Clayton argues that the district court erred in refusing to grant him a hearing to determine if he is actually innocent. *790 A. Clayton's Present Competency Clayton asserts that the district court erred in denying his competency claim without holding a hearing and because the court did not provide sufficient funds to pay for an expert. Clayton asserts that he has presented substantial evidence to prove his incompetence and that he has, in fact, been incompetent throughout the post-conviction period. Clayton requests that the district © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. court be ordered to fully fund his competency expert and grant him an evidentiary hearing to determine whether he is competent. Clayton claims that the court's failure to do so is a violation of his rights under the Due Process Clause. [1][2] We review the district court's decision to rule on Clayton's claim without holding a hearing for abuse of discretion. Osborne v. Purkett, 411 F.3d 911, 915 (8th Cir.2005). The district court's competency determination is a factual finding, so we review this determination for clear error. Nooner v. Norris, 402 F.3d 801, 804 (8th Cir.2005). [3][4] The district court did not abuse its discretion in denying Clayton a competency hearing. The district court has broad discretion to determine when to order a hearing on a matter in a habeas proceeding. Osborne, 411 F.3d at 915. Here, the district court determined that a hearing was unnecessary because all of the relevant information was before the court. Extensive medical data and detailed opinions from the doctors who examined Clayton were available to the court when it ruled that Clayton is presently competent to proceed. Further, Clayton does not allege that any additional evidence would be elicited at a hearing. Under these circumstances, the denial of a hearing cannot be said to be an abuse of discretion. See Campbell v. Vaughn, 209 F.3d 280, 287 (3rd Cir.2000) (recognizing that when habeas courts exercise their discretion whether to hold a hearing on a matter, “courts focus on whether a new evidentiary hearing would be meaningful, in that a new hearing would have the potential to advance the petitioner's claim.”). Our cases have not specifically answered the question whether an inmate must be competent to proceed in a habeas claim. Given the nature of the district court's decision, we do not need to do so now. Rather than resolve the question whether such a requirement exists, the district court assumed that competency is required. The court then addressed the level of competency needed to proceed. According to the district court, to demonstrate competency, it must be shown that Clayton is able to “understand the purpose of the habeas proceeding, ... recall and relate information relevant to a habeas petition and make limited decisions such as filing or dismissing his petition.” FN2 The district court found Clayton met that standard. We agree. FN2. We have not yet had the opportunity to state whether competency on the part of the defendant is required at this level of review, or to set out the appropriate standard to apply to determine if the defendant is presently competent. Clayton, however, does not challenge the standard used by the district court; his arguments focus on why this standard is not met. Therefore, for purposes of this appeal, we assume, without deciding, that competency is required to proceed in a habeas proceeding and that the district court applied the appropriate standard. Additionally, we note that the Seventh Circuit has recently handed down a case regarding the competency requirements of a habeas defendant, and that circuit's standard is substantially similar to the one applied by the district court. See Holmes v. Buss, 506 F.3d 576, 580 (7th Cir.2007). [5][6] The district court's finding that Clayton is competent is not clearly erroneous.*791 “A finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Martinez, 446 F.3d 878, 881 (8th Cir.2006). The district court's competency finding is adequately supported in the record, Dr. Preston's opinion notwithstanding. Dr. Preston conducted objective tests that indicated that Clayton has the ability to understand the legal proceedings and communicate with counsel provided that his counsel is patient in eliciting information. Further, the court noted, at this stage of his habeas proceedings, Clayton's participation does not require him to make any major decisions. [7] Dr. Preston ultimately concluded that Clayton was incompetent, but “expert opinion on competency rises no higher than the reasons on which it is based.” Feguer v. United States, 302 F.2d 214, 236 (8th Cir.1962). This does not mean that the district court is free to completely ignore Dr. Preston's conclusions. See Mason v. United States, 402 F.2d 732, 737 (8th Cir.1968) (stating that “even though expert opinion evidence is generally advisory in nature, it cannot be arbitrarily ignored.”) (quoting Mims v. United States, 375 F.2d 135, 143-44 (5th Cir.1967)). Here, though, the district court did not arbitrarily discount Dr. Preston's competency opinion. Rather, the court placed more emphasis on the objective findings from the tests the doctor performed than on her ultimate conclusion. In reviewing all of the record, we cannot say definitively that a mistake has been made; therefore, the finding of the district court that Clayton is competent to proceed in habeas is not clearly erroneous. [8] Finally, the district court did not err in refusing to provide additional funds for Clayton's expert. The district court must provide funds to procure a defendant's expert opinion if the court determines that the services are reasonably necessary and the amount does not exceed $7500. 21 U.S.C. § 848(q)(10)(B). Clayton was evaluated by two experts-an expert of his choosing and an expert from the Federal Bureau of Prisons. The doctors conducted the necessary tests to determine Clayton's psychological condition. Additional funds were not reasonably necessary to evaluate his mental competence. The district court did not err in refusing to provide additional funds for Clayton's expert who wanted them to repeat medical tests that would likely only confirm an undisputed physical diagnosis of severe brain injury. Despite the expenditure of $7,500, Clayton offered no report from Dr. Merikangas. We hold that the district court did not err in declining to grant additional expert witness fees. B. Appropriateness of the Prosecutor's Comments Clayton next claims that his due process rights were violated by several statements made by the prosecutor during the guilt and sentencing phases of the trial. Specifically, he challenges the prosecutor's comments that: (1) disparaged the opinion of one of Clayton's mental-health experts; (2) mentioned Clayton's probable intent to commit other crimes when he went to Ball's home; (3) mentioned the prosecutor's time as a soldier; (4) described the defense argument against the death penalty as preposterous; (5) referred to aspects of Clayton's criminal proceedings as “legal niceties”; and (6) averred that the punishment should fit the crime, not the criminal. Clayton did not object to these statements before the state trial court. © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. [9] We review the district court's denial of this due process claim de novo. See White v. Kautzky, 494 F.3d 677, 679 (8th *792 Cir.2007) (stating that the court reviews the legal conclusions of the district court de novo). [10][11][12] Clayton's due process rights were not violated by the prosecutor's comments during the closing arguments at trial. A prosecutor is given wide latitude in making a closing argument. See United States v. Robinson, 110 F.3d 1320, 1327 (8th Cir.1997) (stating that “so long as prosecutors do not stray from the evidence and the reasonable inferences that may be drawn from it, they, no less than defense counsel, are free to use colorful and forceful language in their arguments to the jury.”). If a prosecutor goes too far during the argument, there may be a violation of the defendant's rights; such a violation occurs if the prosecutor's comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 642-43, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974). To determine if the prosecutor violated Clayton's due process rights, we must first determine if the prosecutor's statements were inappropriate and then decide if the comments unfairly prejudiced Clayton. See Shurn v. Delo, 177 F.3d 662, 667 (8th Cir.1999) (“Though improper, [an] argument does not require reversal of [a] sentence unless it amounted to prejudicial error.”). Viewing each of the prosecutor's comments in context we cannot say that the comments strayed impermissibly from the broad latitude afforded counsel in closing arguments. These comments individually or combined did not so infect the trial with unfairness so as to deny Clayton due process. The trial court adequately instructed the jury, and the factual case against Clayton was very strong. C. Jury Instructions Clayton next claims that the jury instructions violated the Due Process Clause and the Eighth Amendment prohibition against cruel and unusual punishment. Clayton claims that his constitutional rights were violated when the court instructed the jury that it could consider whether Officer Castetter was randomly selected when no evidence was presented on the point. Clayton also claims that the jury's findings that Officer Castetter was randomly selected and that he was killed because he was a peace officer are inherently in conflict. [13][14] We review the district court's denial of Clayton's constitutional claims de novo. White, 494 F.3d at 679. “All errors of constitutional dimension do not automatically call for reversal.” United States v. Jacobs, 97 F.3d 275, 283 (8th Cir.1996). We will not reverse unless the violation has harmed the defendant. Id. [15][16] We find no reversible error in the trial court's instructions. Even assuming the trial court erred in including the depraved-mind or random-killing aggravating factor with the peace-officer aggravating factor, Clayton does not identify any improper evidence that was introduced to the jury because the district court included both aggravators. Under the test as set out by the Supreme Court in Brown v. Sanders, such an error would be harmless if “one of the other © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. sentencing factors enables the sentencer to give aggravating weight to the same facts and circumstances.” 546 U.S. 212, 220, 126 S.Ct. 884, 163 L.Ed.2d 723 (2006). Clayton argues that he was unfairly prejudiced by the prosecutor's use of the evidence surrounding the murder of Officer Castetter to prove randomness. The fatal flaw in Clayton's argument is that he cannot cite any additional facts that came before the jury based on the inclusion of the random-killing aggravator that could not *793 have also come in under the peace-officer aggravator. Because all of the evidence was properly before the jury to consider each aggravator, there was no prejudice to Clayton by including both aggravators. D. Actual Innocence [17] Finally, Clayton argues that the district court abused its discretion in denying him a hearing to demonstrate his actual innocence based on his inability to deliberate. This claim is not cognizable in this federal review of Clayton's conviction. “[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.” Herrera v. Collins, 506 U.S. 390, 400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). In this case, Clayton cannot point to an independent constitutional violation that occurred in his state criminal proceeding; therefore, we are without jurisdiction to decide his claim of actual innocence. III. Conclusion Accordingly, we affirm the judgment of the district court. BYE, Circuit Judge, concurring. I can concur in the Court's opinion, including Section II(B), addressing the prosecutor's closing arguments. I agree with the conclusion the prosecutor's arguments “individually or combined did not so infect the trial with unfairness so as to deny Clayton due process.” Ante at 792. I do write separately, however, to point out the impropriety of the prosecutor's argument about the law not requiring the punishment to fit the criminal in a capital case. The Court's opinion sets forth a portion of the prosecutor's improper argument, which bears repeating: I think counsel said one thing here that is interesting, in that I think it shows the fallacy of what he has suggested to you. And that is he said the punishment should fit the criminal. You will find that nowhere in our law, nowhere in our tradition. Punishment should fit the crime. That's what you'll find in our law and in our tradition. The focus should not be on the criminal, but should be on the crime, and I think that is instructive. The prosecutor further expounded on this point by adding: Punishment here must fit the crime, and if it doesn't then it diminishes us all. We are not here © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. to judge Cecil Clayton as a person, we are here to punish him for the crime he's committed. There is a difference. The crime calls for the ultimate penalty, and that's what I ask you for. These comments are directly contrary to well-established Supreme Court precedent emphasizing the importance of an individualized decision-making process in capital cases. Capital cases not only permit, but mandate, that the punishment fit the criminal. Thus, the prosecutor's comments were improper and inconsistent with Clayton's constitutional right to have the jury's sentencing decision rest upon an individualized inquiry. The prosecutor should have known better than to tell the jury this concept is not part of our law, not part of our tradition. Indeed, we have previously recognized such comments as justifying the grant of habeas relief. See Weaver v. Bowersox, 438 F.3d 832, 841 (8th Cir.2006) (citing Jones v. United States, 527 U.S. 373, 381, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999); Buchanan v. Angelone, 522 U.S. 269, 274-75, 118 S.Ct. 757, 139 L.Ed.2d 702 (1998); Romano v. Oklahoma, 512 U.S. 1, 7, 114 S.Ct. 2004, 129 L.Ed.2d 1 (1994); McCleskey v. Kemp, 481 *794 U.S. 279, 303, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Harmelin v. Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991); Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Zant v. Stephens, 462 U.S. 862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983)). In Weaver, however, the very focus of the prosecutor's closing argument was to persuade the jury to disregard the individualized decision-making process required by the Constitution. My concurring opinion therein noted “[n]ot once, not twice, not thrice, but seven times the prosecutor urged the jury to ignore the individual offender, William Weaver.” Id. at 843 (Bye, J., concurring). Such thankfully is not the case here. The above comments are the only instances identified by Clayton where the prosecutor improperly told the jury the law did not require the punishment to fit the criminal. As the district court noted, immediately after making the above comments, the prosecutor nevertheless focused the jury upon Cecil Clayton, the individual, by discussing Clayton's functioning abilities. In addition, the jury was properly instructed to consider the mitigating factors unique to Clayton in determining whether to impose the death penalty. As a consequence, although this limited portion of the prosecutor's argument was improper, I cannot conclude the Missouri Supreme Court was unreasonably wrong when it determined the argument did not violate Clayton's due process rights. I therefore concur in the Court's opinion. C.A.8 (Mo.),2008. Clayton v. Roper 515 F.3d 784 END OF DOCUMENT © 2008 Thomson/West. No Claim to Orig. U.S. Govt. Works. ~),.,.ICC . •J\ITMI'A.r . . . :J1UI. ~~& .......... tJ• IOtr.~TM \l.t..-:f'I•'!.J"~ .,.4,,.4,111~~. -. ••• I•CM•••• ••••7~M -.. .... o~•· eH1J• ,..... ·-:-. ·---····-··I . • 'n.•.-" • ~·-­ -·"""-.:. PMONC ......... ~I.IGCIOCC "MOot. 11..,.1.01 •'•t .I ...." ., c: .:,::.::.;~::;:. :-:·.. J c:.:i ·.vn;.:a :7:al.a was st..-uc!< over h!s forehead by a piece oi ~cOAitOe l l l • n " .... - ·--···--'II· ......, . -- .. ' ..... .- ... rt ..... ;,; ?RE-C?;:~.~.:~:·:: ::':AG:::.s~: -:ompot;;:ci dapressac ~:... -.:ll .::acture, f:or.t-:1: :e~:.c» ~::·:oi·11r.~ :Jpper bo:cier o: :~~h: c:;:,it wnh extr-..:ca t::::~::c:c~a::cn . .'\t: presen: he is disabled for :~ny type of .;;ain::..~l -e>rn:::::·_--:en: :wd is 3ust barely making it outside of an instit~t~o~. Yours ::ruly, .. ~{E'C: • • ng wdl~.,~ William F. Clary, 11.0. Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM _2'..:::....:.. .·.~: ,; ...~ ... \ - . <; .. :: : : _1 : :! ). 5\JIT~ 4015 P"'011'C5SICNAI.. 9\JII..:I,_.G f : ... , . •·.' ........ ... ..· .' t.... ... ·II• aOSJ Clo41:A"Y ST,.Itt:T ·'• ...-.--:.~.\.:;~~ ..· ~·- ""... SF'RINOFII!:L.O. MISSOURI t5!5SC8 . . 1 · ·: ;G~·~,;''c:s ..~CK •• M.C •• MRC:P ~ ·~·~::... .. :..~ •. "'7' ae~zsa2 J'&DUAJ:T' 30, 1978 .. RECEIVED ,. ...... ~ F·· ·-J l.1S7s· CLAYTON, Cecil L. ··Mr. Robertson: . . •. "' .t lJI.!AtJllr'f Of'l'r.'l your request on Janifl'~,;ai,~"'Wr~u :.;:'."!.~........ kn.ow, he is a 37 year old man who had an injury ~-a sawmi~~ ·accicient at aqa Jl. 'l'his evidently remcvea part of his· trent e. He was unconscious for nine days and had a debridement , pair of depressed skull fracture. Since that dma he has not; t.his left arm does not work proper~y and he has noticed furthezo· decrease in the.. visiott- of h.i.s right eye. flis riqht e~ · never usetu~ ana as far back as 1959 he was· told tnat he t eye that cou~d not be helped by lenses. At the present tin primary disabling sympto~s aJ:e .·that he worr~e• a ~·•t...clea -~a1~~~~~.. ~it~e t::hing.s.~ ha• difficulty concentratiisq on one su.bje ·~ his mind will go from one subjeet to anothel:". ,...He also wil tanqential conversation when he is talxinq to people. Whe ~r""'...::-~~- U'I:J.UD~ stranqers. or eve~ his OWft family' or· number of present tie becomes contu.secl" and becomes.. exaitefl Uct'' sit ou: and sits and st&J:es o~ elsti.,' qoes outside. Er•· ma: anqry sasU%. ot: yell. a: his family.• He has not been ically violent. He has ~ headache•which is mild and bi!ron1 usua.lll( does not t:ake anythinq fol:" it:. It fraquan.t:J.y coma.~~~~~~i~~~; he is upset but sometimes comes for no particular reason~· ~ also has nausea which comes and qoes ~ithout relationship tc ls or nar.,ousness and it may last all day. He drives an .utomobile but his wiie is always with hi~ and remands him abo~ ~bject3 that are on the right 3~de of his visual =ield. He· has n~yer had any convulsions or blackout spells, he has'not had ~--~~;~~~continued ~edical follow-uo due co the fact that he is unable t X~: afford physicians or medicine. Since his accident he has tried :,;to •,o~orJc once a~ the sawraill bt1't: he is so unsure of himself and .•. ·l·:~·~·;the.. noise of bla.des movinq made him ~Tar'/ feariul t::.hat he was '' ...;-::·.".:; .. :.;;. ·goinq to hurt himself. He ther~:ore quit this a.nd has not been ··-'·~:..:.~:-:~·.·able. to return. He did '"'orJ( for 9 mont:h3 and ca.trol a job at t: ~:}: local ;;JOlice depart:::ent 1 however~ .· ::>~·;~;~,~:~~~~~~:~~ ~;· ~ ~··l.l~~ ~~~·· . • ... ....:. .,.r. .EX .... H_l_B:rlJjNIO• --.,.~--~~-- •.. RE: .. ·,. Pg. ,.. CL; ·.L-:r:~r, -=·~c:.l L. · ..... =-r· He does ~ot drinJ< now. He d.i:d drin!< modestly when he was t.. at the ?Olice job t:o see if it ~o~ould quiet his ner•1es but t ~-·.this was a bad idea and stopped. His past historf is that he h~~ had ~ulti~le carbuncles and boils lanced !or his chronic acne. He ...,as in a. car wx-ecJc in 1958 and had a fractured collar bone and chest contusion an facial lacerations. He was unconscious for two hours at th particular time. He had an appendectomy at aqe 15 and aa I mentioned he has had decreased vision in his right eye all his life, His family history is that his mother is livinq at 65 with good health. His father died at age 83 of a neurologic illn• at the Missouri Chest Hospital. I thought this was a consec of having had rabies innoculations as a child. He has four brothers and five sisters who have generally good hea~th •. Examination revealed a well developed, well nourished man wi ~ greAt•~ thaft average musculature; His blcod.pressure was ae has had marked decreased in vision in the riqht eye and w unable to count finger' ancf"c:ould only see vaque forms in fr o~ nis eyes. He had a moderate amount of clumsiness in his 1 hand on fine finqer and alternating motion. There 1s a mild hyperreflexia of the left arm and leg and there was decrease pin prick over the left side. He had no grip ·of his arm and cortical sensation was intact. His general exam revealed tel ness over his shoulders bilaterally. There was a defect in ~ riqht supraorbital ridge: however, no other cranial defects ~ .,. · palpable. . :·::·. •· Mental status reveals he ~s oriented to time, person and plac He had to be frequently corrected by his wife in the course c givinq the history. He had no.lanquaqe def~ct. His judgement . was intact both in the relation of lis every day activities an on direct testing of the story of the lost letter. I think that ~o!r. Clayton 'is disabled and has been since !lis .;. .;: ~-:· accident from the t7pe of '4ork Efarticularly that he is tra.ine ·. :'· ' to do. There is a. possibility that he could benefit from Voc:a r : .... :.; ,Reha.bilit:ation and become ernployable again in the future. :~. ~«·.. obtained an EEG due to his hypertension and anxiety. I have :.'~·· ~"· placed hi;n on Phenobarbital JO mgs. '!'!0. ! have ;,.sked that .. c:.. t' he retu.z::n to my otfice in one month fo"? =·:Jllo•.o~-uo r:tedical cart ... , ~· .He is concerned ::tat he cannot afford to go to t:he doctor u..nd ... · '"'nether ::e ...,ill :-eturn or .:1ot r do not ::no":ol. 'rhank j"QU .,ery ~·..1ch for lecting :ne ~ee t!lis gantlemall. this i.nf-:>rmation is of •1alue in '/our deli!:eration. Since:-el·r, ~~+TFif-.~~~ , ·--.. - r.'RK Itt. 1 k \oV~ # GeC?rge H. Klin.' ·, . ?atte.:-n is r:s ns 1s t:ent: ·..,i t h :Jaranoid s chi zo oh re n ia. toqether '"' ith : .. -· · -· "l eo r essio:-. :·ihe n -:he ~ .:1-a."'o- 1.. , , ·- c h; ..,....,~ ;.,io '-"' ""nic -cc.. l ~., s a -e .., le•!ated, - .. . : ..... .,.. '$ ...._ . . ""' - - - .. -- - · --- - .._ - ' 0_ = ~ .. : • t .. 7'.'.•• . .... . - .# :- "- .... .. ._ .::1 • .- - ~ :"' . ..4- t....r. - "- - : -'~:-'.,·_ --·~--.-: • ) ... - , :·;:V),:.: ;·· .. - . ____ ·, :::~.::4~ ,\ --.., __ -..:~:--,..,_:;·· () ._,;:" ..:: ... ,),-;...,.,-· ~- --~.i~l.f: .. :.-::~::?'Re: . ;.. :~~~~~~~-~~·: ..... ~ . ~- Cecil :. - - ~----- .. To • ' ·;N'!'!..~ . ... . . .· , '•-'·~-- .. age. ·. :·;;~~~ ,,;..¥-t·-· ..· ~lark ~:~ytcn :-tart:.:-. Three . ·,:;_: :::~ ·the F scale may J.lso be elevated and not invalidate the profile • .;;ti~~:rndividuals show~r.g ~his pattern usually have paranoid delusions. , ~~{f_,Depression, emotional inappropriateness, over ideation and fears · -'~1if.often are present. They spend much time in daydreams, are shy .·.:;.;>~~,J.:cand anxious and kee;> others at a distance. They show difficulty ··.:~~~·:in· i:::oncentr.ating and their thinking is often autistic • . The conten · · ,"f:''".'f:'j:/ of theJ.r thqught ~s almost always unusual and unconventJ.ona1. ··:~,1-~i'-' Suspicion, distrust and grandiosity are typical. Their behavior ... ~;:,.;:;:;::···..:.is unpredictable. They are usually unable to function due to · .:::, .. ;:,.~.;;.~.fatigue and inefficiency. An organic brain syndrome may be presen· ,: · ,....,.~;=~.·with this oat tern and is present in this case • • ~~~ .. ·... · W~de The Ranqe Achievement Test was given and he =ead at a ,,:,:~.[::· .middle fourth grace level, spelled at an early third qrade level. --.·.:"'""?·- · and did arithmeeic at an early fourth grade level. This indicated ·: :. ·-:-, .:·~ · marginal achievement:. On the i·Tonderlic Personnel Test he answered .:;;:,;~• nine questions cor=ectly, placing him at the 6th-%ile !or all job ~ . ''··· -~ · applicants. This is average for a man of his age with a seventh 7-;-1:5;),.- grade education. ::he i'lechsler Memory Scale was given and he attair :. ·~ti;: .a memory quotient a f 6 2, placing him in the mentally retarded cates ....~f!'~,t. Mental control •,.;as t:ot:ally absent and he was very weak on visual. ~•.;-..1: •· memory, nemory for ·;erbal passages and digit span. The N'echsler ·,~ .~:: ·'-' .. Adult Intelligence Scale was then given and he attained a verbal. --."r~ · IQ of 75, a perfor~ance IQ of 76 and a full-scale I'2 of 76. The :;:;,•..<: ... pattern on this test: ·,.;as reflective of both his cognitive impairmen · ;1:~.: · due to his schi zo:::~renic disorder, par·u-.oid type, and ~o his organi ...,"~.ti: "'tl.;.:,:• brain syndrome. T~e ;:oat tern of tests suggested a trau.":tatic head .. ·?rt~"'"' ~n Jury. <." C) • r~tt:. ;~,:, . Neuropsychological testing was then done. On the Trail Mak.ing .·.~;:.::~;,,Test he was severely deficient. On the Sensory-Perceptual Examinat • ·:;.g;,.;,"'£11<~~-:.-ne had no usable vision in the right eye, manifested ~upressions . . - ---~-'- :~f s~nsation on his ri'?ht si~e, <;tnd fingertip perceptJ.on was def.ic~ .. ·-.:. ·"; :-J.n hJ.s left hand. AudJ. tory J.mpaJ.rment ·.-~as noted bilaterally, •,o~ith _"i ,:::. ·l?oorer audition in the right ear though more difficulty i~ locali.za .,::;~··· · ~n the left ear. :'he Sensory Test suggests that he exper~ences ~:-::;M-,.;,.' -cerebral impai=en:: i.n both ~emistJheres. The Aphasia Screening ,-z~;.': Test: ·,.;as gi?en :1nd C.:e ;:,anifest:ed both constructional a:td StJelling .. ·'!!·; ;.~~-.~ ·. ·~ ·dyspraxias a.nd :.:en~.:-.:11 dysa:-thria... The :-!alstead-Rei tan ~reuro­ -~_;:;.~~....~psychological 3at:.~r: ·..:as then gi~.ren. He -;-.ra.s deficien-.: on five ~~~ ..-. ·· of t:::e seven s:lb- -::=s~s, achiev·ir.g an i.::1pai~ent index 'J= . 7. This .·:;:. :_;· is '.4ell abo•;e the ::ritical level for an o=-ganic brain syndrone. 0 ·~· ;:_;.:~..;. .. ~· ~ ~-··- .. ;,~7;:_ : ..... .: .. ·-. .,.... - ' . He f..vas :.n the c::i. t.lc.J.l :c:1nge for im?ai=~ent i:1 s9eech !?er::epticn, tac~:.1.3l :::ercectL:~ 2nd localization, =aoid :::otor =unc~:.on and ·Herd fluenc·f.- The-:-es·..:.l~s suggested bilater3.l i::1~airment, :,;ith more. ~ate= i.7.oair:::en~ 1ssoci..1ted ·.1ith left cerebral hemizor.::re f•Jnctl.oni ~<~it:t :-:-:ore senscc:: ::7:;;air::-::ent in ~:he ::-i..ght ::emis_?her~: a roan ci A.l.\ ) Re: To: . - . Page: ;~: ~--~ -- ) Cecil :. Claytcn :-iark .'·~artin Four :'' .,.,ho has a li::~i :ed to marginal educational acnl.eV'enent level. He has sustained a head injury that has resulted in brain damage. This has not only impaired sensory, motor and cognitive function~ ' but also has resulted in a psychotic component, best described as a schizophrenic disorder, paranoid type. ais most severe impairn ·'"····· is his chronic brain syndrome (12. 02), •,o~ith demonstrated deteriox ':': :::;·. ·in intellectual functioninq, manifested by a marked memory defect · ,..,;;·,~;:- for recent events (memory quotient of 62) and impoverished, slowe '·,-.;,:;.:,.:. perseverative thinking with confusion. Also there is very labile ·:,..;;.-:__.affect. Secondary to this he has a psychotic disord'!r (12.03) _ ·· -·'-' characterized by thouqht disorqanization, depression, agitation, ..,--. hallucinations and delusions, regressive behavior, and some >;::::·:, inappropriateness of affect. The combination of this results in ··" ... .;_,. marked restriction of daily activities, a constriction of interes :~: a deterioration in personal habits and a seriously impaired abili to relate to other people. His chronic brain syndrome with psych• .is of such severity as to neet the listings in the determination < ._.T" disability. There is presently no way that this man could be expected to function in the world of work. Here he pushed to do ' he would become a danger both to hL~self and to others. He has h< both suicidal and homicidal impulses, so far controlled, though ... under pressure they ' I ; -106 ?"101'1'1!:S510NA\. .:3:..00. >NSJ C-I!;RRY STREET ;.P~INGF11£LC. ~AISSOL.'~I t ..iOMN E. 417\ 15'!5ao8 ~.H5!5-2S82 i3ROOKS ....iB. MI"ICFJ 0£0AQE M. Kt..!NKCR,..U5S, M 0. '-'tC:JoofACt. .... \...wZCCK.V "A.C, July 16, 1980, (die. July lll JUL Z 1 10130. Paul Markstrom; Counselor Disability Determinations P.O. Box 8187 H.S. Jewell Station Springfield, MO RE: ·.ECEIVED '·. ···-··-· .....:.. ... CLAYTON, CECIL L. Dear Mr. Markstrom: • A "9 • Mr. Clayton is continued to be seen in :ny office. was June 27, 1980. His last visit In March, he described episodes where he had true vertigo. lte had fallen through a shower door, driven into a neighbor's mailbox. lte had also had episodes where he would sit and stare and his. wife was not really certain whether he was conscious or not. Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM , !tis examination showed left sided hyperreflexia at that time and was otherwise normal. The patient ad_mitted tpat he was. hearinq voices and s•a.inc;r_visions o~_a th• rQ01JL../. He....wa.a..,a.lsa bearinq drawers open and doors close, etc.·and it appeared that he was havinq auditory and visual hallucinations. He continued to have ve~~~~C.O~ dispositic;J~.,- trfed"'"t!cr"ayoi~ P!9~• and wanted to strike out at peopl-e whe.ti_ they. became obnoxious to him. In:a followup visit in June, he had no longer had any more episodes of falling and severe •.rertigo. His disposition •;~as unchanged and he continued to have auditory.~·visual hallucinationr. lte was startec on Triavil at that time instead ot Haldol.' I placed him on Dilantin in March prior to the sensation of his episodes of vertigo and this was continued. At this point, :t. do not;. think Mr. Clayton is employable due to his psychiatric symptoms. · Sincerely, GHK:an ~~~~-"-0· EXHIBIT NO. PAG~ I OF j"".tiPGS. ~-- JQ) Psychiatric L\: Psychological Associates. Inc. Birch free (o~nrre • ~003 E.n t S·.;:1snm~ • ,·-Suale J • -; :mnoii • !·ll 7 ) 982-3000 . ... ~ld ..'1issoura 65504 .. JAMES E. BRIGHT, M.D. DAN I El~- ;::'.lyc:- ·l:rl '.lafiiJI (,-::::::. ~ n\\17 7_ r· 1.::: ' · • r· ·- CAVIO L. URRASCH'17E"d:D-'2 c;.~ I C J ! ?,ycnology I' :! I \ :_."1 ~ ··- - E\!EFSON . ! F1m"" 7 ~ e r i! CHARLES F. C::LLe.~ . C.Jun'l••nq - ;::1yC .1 0ICQ) 1I ._ . ~ ;f ,HaJt.c.h 20 I 19 N ., · -1'~-- - --- , :1' ~! ' .Jf ·. I \; • .t.__ ___ ____- -··- .Wt. .~la.ltk L. .~~tt . At:to .lt1t e.lj a.t Law p. (). OJtaWaJt I 't86 8 One Ea.6t Moun..UU.tt FalJe.tvill.e., Alt.ka.lt..~ cw i: ,_, •- I: · \f.' Re. : ss~: Cecil. !. • Cl.a.JftO rt .J92-J6-n!7 Oea..t Mil • Ma/t.Ci,t : ,,! ... hru been -~ een : 0 1t .i.rt..i-t:J..a.i.. e.va.lu.a.U.ort ctnd a. ~ u~ equ.e.nt 6otlow-up v~.U. u.port .dte --:.~ ~ 2/t..'t.a..t o o Oil. Geo~tge. KUthe/l~tU.4 . Ert.c.to.& e.d ~ a c.~pt.j o .5 rr.!f <_,u_c;_.u_ e.va.tua..ci.ort. Mit. Cla.ytorr. 84 ~ h~ plte.u..n.U•, .t;ta. ~~c.t:.wa.&: a 6 an oJtgan.i.c. ;::vw ona.l.LC!f c:i I) I r •• ! ' ~·-' I \ \ i .\FFIDAVIT I, Laura Martin, being duly sworn, hereby assert on my oath and affirmation the following facts: I. I am employed as an attorney with the State of Missouri Office of the Public Defender, Appellate/Postconviction Division, 920 Main Street, Suite 500, Kansas City, MO 64105. 2. During my employment with the Office of the Public Defender, I represented Mr. Cecil Clayton in a post-conviction proceeding and appeal from the denial of post-conviction relief. In the post-conviction case, Mr. Clayton challenged his conviction for first degree murder and his sentence of death. 3. I began representing Mr. Clayton in April 1999, and my representation of him concluded in January 2002. 4. During the time that I represented Mr. Clayton, he was incarcerated at Potosi Correctional Center. I visited with him at Potosi Correctional Center approximately once every two to three months during my representation. I also spoke with Mr. Clayton over the phone. I also observed Mr. Clayton at the evidentiary hearing held in the postconviction case on September 5-7, 2000. 5. During my meetings with Mr. Clayton, I noticed that Mr. Clayton had difficulty staying focused on the topic at hand. For example, I might ask Mr. Clayton whether he provided the name of a witness to his trial attorney, and Mr. Clayton might respond by talking about an occurrence at the prison or with a story unrelated to the question that I had asked. It was difficult to obtain a relevant answer from Mr. Clayton, and it usually required several attempts to obtain an answer to a question. Oftentimes, I was never able to obtain a relevant answer at all. 6. I also noticed that Mr. Clayton did not appear to grasp or retain the legal issues raised in the post-conviction case. For example, if any detailed issue or legal procedure was explained at one meeting and then asked about at a later visit, Mr. Clayton appeared to be learning of the issue for the first time and did not appear to have remembered what had been previously explained to him at a prior visit. There were several visits where I went over with Mr. Clayton what I had explained to him at the previous visit. 7. I noticed that Mr. Clayton, while pleasant, did not ask specific questions about his case. For example, during the post-conviction hearing, he did not ask anything related to his case or offer any input regarding his case. Mr. Clayton appeared incapable of asking anything other than very general questions, such as "will I get a new trial," "are you going to help me," "when am I getting out," "when am I going home?'' fx. ~~ Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM r l noticed that Mr. Clayton was very religious and cngaged in "magical thinking." On more than one occasion, Mr. Clayton expressed that God would work a miracle in his case and he would be set tree trom prison. Mr. Clayton believed that if he continued to pray to God, everything ultimately would work out for him and he would go home. 9. I noticed that Mr. Clayton did not possess verbal inhibition and would at times bring up topics inappropriate and irrelevant to the meeting. For example, if we discussed an issue that was raised or a witness, Mr. Clayton would start talking about God or the prison conditions. Mr. Clayton did not appear to be aware that he was changing the topic or bringing up something completely off the topic that we were discussing. I 0. During my representation of Mr. Clayton, I noticed a deterioration of his limited ability to tbcus and memory. For example, there were more and more occurrences of Mr. Clayton not recalling what I had recently told him. In addition, I noticed that his inability to focus, or his "off' days, became more frequent. ll. I never saw any indication of malingering. 12. Although I represented Mr. Clayton more than seven years ago, I specifically recall having concerns, due to my contacts with Mr. Clayton, regarding his competency. I also specifically recall having such concerns very early on in my representation of Mr. Clayton. Further, Affiant sayeth not. Date Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM a. 8u..r IN TESTIMONY WHEREOF, I have hereunto set my hand aftixed my official seal, at Yar~ ~·-!;::J Missouri, the day and year tirst written above. , My commission expires: _..J7-.~-/_,_t_,_ll-j..J,J.<::....~D.LLILI__ Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM I, ()J~0 k:.S , notary public in S chh.:S6...j, County, Missouri, hereby aftirrn that Laura Martin appeared personally before me and veri tied that the information above is true and accurate, and aftixed his signature thereto. UNITED STATES DEPARTMENT OF JUSTICE FEDERAL BUREAU OF PRISONS U.S. MEDICAL CENTER FOR FEDERAL PRISONERS SPRINGFIELD, MISSOURI 65807 FORENSIC REPORT CLAYTON, Cecil Reg. No. 16884-045 Criminal Case Number: 02-8001 -MC-NKL Date of Birth: April16, 1940 Dates of Evaluation: May 6, 2004, through January 6, 2005 Date of Report: January 18. 2005 IDENTIFICATION AND REASON FOR REFERRAL Cecil Clayton is a 64-year-old white man who was referred to the United States Medical Center for Federal Prisoners (USMCFP) in Springfield, Missouri, by the United States District Court for the Western District of Missouri, W estern Division, for a mental health evaluation to determine his competence to proceed with his fed eral habeas corpus proceedings and his competency to be executed. In 1997, Mr. Clayton was convicted of First Degree Murder in Jasper County, M issouri, and sentenced to death. Mr. Clayton was advised of the purpose of this evaluation during his initial clinical interview. He was informed that information he chose to provide during interviews. any of his statements or actions while at the Medical Center, and any other information obtained about him during the course of the evaluation would not be confidential. In addition, he was repeatedly instructed not to discuss his version of the offense. It was explained a report would be prepared, submitted to the referring court, and distributed to both the defense and prosecuting attorneys. Mr. Clayton acknowledged and appeared to understand the information presented. SOURCES OF INFORMATION This evaluation was conducted in the Mental Health Evaluation Unit of the United States Medical Center for Federal Prisoners. Mr. Clayton was routinely observed throughout the evaluation by clinical and correctional staff. He participated in numerous individual clinical interviews with the undersigned evaluator. An MRI and SPECT study ware completed. In addition, a neuropsychological consultation, which induded an interview and the administration of several psychological and neuropsychological Sens itive Limited Official Use Forensic Report - Page 2 CLAYTON, Cecil Reg. No. 16884-045 January 18, 2005 assessment measures, was completed by Robert L. Denney, Psy.D., Staff Psychologist, and Leah M. Osborn, M.A., Psychology Intern. The following competency assessment instruments were administered: 1. 2. 3. MacArthur Competency Assessment Tool-Criminal Adjudication (MacCAT-CA) Competence Assessment to Stand Trial for Defendants with Mental Retardation (CAST-MR) Evaluation of Competency to Stand Trial-Revised (ECST-R) As part of the neuropsychological consultation, the following psychological tests were administered: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. Wechsler Adult Intelligence Scale-Third Edition (WAIS-111) Wechsler Memory Scale - 3td Edition (WMS-111) Wechsler Test of Adult Reading (WTAR) Halstead-Reitan Neuropsychological Test Battery A. Booklet Category Test (BCT) B. Trail Making Test, Parts A & B (TMT) C. Tactual Performance Test (TPT) D. Speech Sounds Perception Test (SSPT) E. Seashore Rhythm Test (SRT) F. Finger Tapping Test G. Grip Strength Test Reitan-KI0ve Sensory Perceptual Test H. I. Reitan-lndiana Aphasia Screening Test Grooved Pegboard Test Peabody Individual Achievement Test-Revised (PIAT-R), Reading Comprehension Boston Naming Test Rey Complex Figure Test, Copy, Immediate Recall, Delayed Recall, & Recognition Rey 15-ltem Memory Test with Recognition Trial Word Memory Test, Oral Administration (WMT) Computerized Assessmen t of Response Bias (CARB) Test of Memory Malingering (TOMM) Validity Indicator Profile (VIP) Wisconsin Card Sorting Test Minnesota Multiphasic Personality lnventory-2 (MMPI-2) Sensitive Limited Official Use Forensic Report- Page 3 CLAYTON, Cecil Reg. No. 16884-045 January 18, 2005 Other sources of information: 1. 2. 3. 4. 5. 6 7. 8. 9. 10 11 . 12. 13. 14. 15. 16. 17 18. 19 20. The U.S. District Court Order requesting this evaluation. School rranscripts, grades 1-8. Inpatient medical records from St. John's Hospital in Springfield, Missouri, dated January 24 through February 3, 1972, including but not limited to: a Neurological Surgeon Report, Progress Notes, and Disch arge Summary. Nevada State Hospital records, dated July 25, 1974, through October 29, 1975. Neurological Surgeon Report. completed by John L. K. Tsang, M.D., dated October 26, 1976. EEG Report, completed by George Klinkerfuss. M.D., dated January 30, 1978. Medica l Report, completed by George Kfinkerfuss, M.D., to Dale Robertson. Disability Determination Counselor, dated January 30, 1978. Opthamology Report completed by George Paddock, M.D., to Kathy Stephens, Disability Determination Counselor, dated May 2, 1978. Psychiatric Evaluation Report, completed by Jack Eardley, M.D. to Kathy Stephens, Disability Determination Counselor, dated May 6, 1978. Psychiatric Evaluation Report, completed by William F. Clary, M.D., of the Ozar1< Psychiatric Clinic, dated January 24, 1979. Social History Report, completed by Pamela J. Denton, B.S., of the Ozar1< Psychiatric Clinic, dated January 24, 1979. Medical Report, completed by George Klinkerfuss, M.D., to Kathy Stephens, Disability Determin ation Counselor, dated January 31 , 1980. Psychiatric Evaluation Report, completed by Jack Eardley, M.D., to Kathy Stephens, Disability Determination Counselor, dated February 22, 1980. Psychological Report, completed by Clifford Whipple, Ph.D. to Kathy Stephens Disability Determination Counselor, dated March 19, 1980. Medical Report, completed by George Klinkerfuss, M.D., to Kathy Stephens, Disability Determination Counselor, dated March 31, 1980. Medical Report, completed by George Klinkerfuss, M.D., to Paul Markstrem, Disability Determination Counselor, dated July 16, 1980. Psychiatric Report, completed by Jim H. Earls, M.D., to Dale Robertson, Disability Determination Counse lor, dated May 16, 1983. EEG Report, completed by Chi-His Lin, M.D.• to Dale Robertson, Disability Determination Counselor, dated June 9, 1983. Neurological Report, completed by Chi-His lin, M.D., to Dale Robertson, Disability Determination Counselor, dated June 10, 1983. Medical Report, completed by George Klinkerfuss, M.D., to Mark Martin, Esquire, dated September 1, 1983. Sensitive Limited Official Use Forensic Report - Page 4 CLAYTON Cecil Reg. No. 16884-045 January 18, 2005 21. Psychological, Neuropsychological, and Vocational Evaluation Summary, completed by Douglas A Stevens, Ph.D., to Mark Martin, Esquire, dated October 31, 1983. 22. Psychiatric Evaluation, completed by James E. Bright, M.D., dated February 9, 1984. 23. Psychiatric Report, completed by James E. Bright, M.D., to Mark Martin, Esquire, dated March 20, 1984. 24. Social Security Administration Administrative Law Hearing Report, completed by Donald E. Marrs, Administrative Law Judge, dated April 26, 1984. 25. Freeman Hospital Records, dated September 28 through October 26, 1987. 26. Lawrence County Jail Records, dated January 15 through March 13, 1997. 27. Jasper County Jail Records, dated April 4 through December 7, 1997. 28. Missouri Department of Corrections Records. 29. Neuropsychological Assessment Data, administered and recorded by Bettye Back, Ph.D., dated July 10, 1997: a. Halstead Reitan Neuropsychological Battery b. Wech sler Memory Scale-Revised (WMS-R) c. Wechsler Adu lt Intelligence Scale (WAIS) d. Bender Gestalt e . Wide Range Ach ievement Test, Third Revision (WRAT-111) f. Minnesota Multiphasic Personality Inventory (MMPI) g. Neuropsychological Deficit Scale h. Impairment Scattergram 30. Deposition of Bettye Back, Ph.D., dated September 16, 1997. 31 . Deposition of Sharon K. Rogers, dated January 6, 2000. 32 Deposition of Bettye Back-Morse, Ph.D, dated August 31 , 2000. 33. Deposition of Bettye Back-Morse, Ph.D., dated November 2, 2000. 34. Original Petition for Writ of Habeas Corpus. 35. Petitioner's Traverse to Respondent's Response to Order to Show Cause in a Capital Case. 36. Slip Opinion, Supreme Court of Missouri. 37. Telephone interviews with defense counsel, Elizabeth Unger Carlyle, on May 17, 2004, and October 6, 2004. 38. Neuropsychological Consultation Report, completed by Robert L. Denney, Psy.D., Staff Psychologist, and Leah M. Osborn, MA., Psychology Intern, dated August13, 2004. 39. Neuropsychological Consultation Addendum, completed by Robert L Denney, Psy.D., Staff Psychologist, and Mary A Martin, Psychology Intern, dated January 4, 2005. Sensitive Limited Official Use Forensic Report - Page 5 CLAYTON, Cecil Reg. No. 16884-045 January 18, 2005 SOCIAL HISTORY Mr. Clayton was born on April16, 1940 in Purdy, Missouri. He was the second of seven children born to his parents. He also has three older maternal half-siblings. He described his parents as good providers but noted that they were not affectionate. His father was reportedly a strict disciplinarian, but he denied ever experiencing physical abuse. He also denied a childh ood history of sexual abuse. His father died in 1973, at age 83, reportedly due to complications from a rabies infection contracted when he was in his twenties. His mother continues to reside in Missouri but is in poor health. Mr. Clayton was married from 1960 unbl1988, when the marriage ended in divorce. This union produced five children, two daughters and three sons. He remains in contact with three of his child ren but has not had contact with two of his sons since his incarceration in 1997. EDUCATIONAL HISTORY Mr Clayton described himself as a good student during elementary school. He denied a history of special education classes or being required to repeat a grade. He also denied a significant history of truancy or behavioral problems. The available records confirm his self-report. He reportedly related well to his teachers and peers during elemen tary school. However, his peer relationships reportedly became more difficult for him as an adolescent due to his self-consciousness related to his severe acne. During th1s time, he reportedly often engaged in physical altercations. He reportedly \vithdrew from school after completing the tenth grade. He has not obtained a GED. EMPLOYMENT HISTORY Mr. Clayton reported he worked in the saw mill industry "off and on for 40 years.· According to the available records, he owned his own saw mill business from 1967 until 1972. Following his head injury in 1972, he reportedly had difficulty maintaining consistent employment. In the mid-1970's, he reportedly worked as a police officer for the City of Purdy, Missouri, for approximately nine months. According to Mr. Clayton, he had difficulty maintaining this position as he Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM \!r. Clayton's thought process is rambling and disorganized. He digresses to ,tr~untcnts fnr t•xccutlve clt'r11enc~· or r;ltional reasons why the sentence should not be carried out. SincerelY, 4~~~71?-~' William S. Logan, MD Diplomate, American Board of Psychiatry and Neurology 1982 Diplomate, American Board of Forensic Psychiatry l'J87 Subspecialty in Forensic Psychiatry by the American Board of Psychiatry and Neurology 1994 and 2003 WSL/sg Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM ' I"OftllNSIC. A.DOL&aCilNT AND ADULT P'.TCHIA'TJIIY WIWAM S. LOGAN, MD STEPHEN 1L PETERSON, MD 0 231 S. SEMISTON, SUITE 800 .J ..aa WEST ..aND STRitltT p KANSAS CITT, MISSOURI 84111 CLAYTON, MISSDURI83108 TELEPHONIC Ol.oll 23..... 1.. FAJC (31.oll 23.....a2 TELEPHONE: (818} 8"'2•21100 I"AX: (818} ...a-11880 August 28, 2013 Elizabeth Unger Carlyle, Esq. P.O. Box 30418 Kansas City, Missouri 64112 Telephone: 816-764-1249 Fax: 866-764-1249 Email: elizcar@alumni.neu.edu Re: CecU Clayton Dear Ms. Carlyle: At your request and that of Assistant Public Defender, Jeanie Willibey, I am writing to provide an update on Mr. Clayton's mental status since my previous evaluation letter dated November 3, 2008. I most recently examined Mr. Clayton at Potosi Correctional Center for 2.75 hours on September 14, 2012. I also have reviewed Dr. Foster's 2008 report and talked to Dr. Foster by telephone in July 2012. Additionally I have reviewed the Petition for Writ of Mandamus and Mr. Clayton's administrative, medical and mental health records from1999 through August 2, 2012. I also reviewed Dr. Preston's report of January 18, 2005. Mr. Clayton experienced head trauma in 1972 which has produced a dementia with decreased judgment and reduced ability to process information or grasp abstract concepts. Mr. Clayton also has a psychoses or Delusional Disorder with persecutory delusions, paranoia and religious preoccupation. fv.. J~ Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM LOGAN & PETERSON, PC:: ..;.:.:.::,1Ceth Jnyer ...-:J.rlyl8, Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM 7_:,: .::::;>'--1· Cec:l Clayton Page: 2 ~e: Mr. Clayton's delusions focused on his pending execution in 2008 as he believed his conviction was a conspiracy by the legal system as someone else killed Deputy Castetter. His mood was inappropriately elated as he believed ,God had a special purpose for him and would intetvene to prevent the execution from occurring. He believed he would walk out of prison, sing gospel music and receive compensation for his erroneous confinement. He could not focus on any of the issues raised in his appeal. He had no concept of a need for clemency or capacity to understand matters in extenuation, any arguments that could be presented for executive clemency or rational reasons why his death sentence should not be carried out. He only knew concretely that the State planned to execute him for killing Deputy Castetter, but believes this is only a test of his faith and would not occur. Thus my opinion in 2008 was that Mr. Clayton's mental defect and disease prevented him from having a rational understanding or comprehending the meaning and purpose of his punishment. Dr. Preston in 2004/05 found Mr. Clayton was not competent to proceed in Habeas proceedings and diagnosed a Cognitive Disorder, NOS; a Major Depressive Disorder, in remission; Alcohol Dependence and a Psychotic Disorder with hallucinations, which Dr. Preston attributed to Mr. Clayton's traumatic brain injury. Dr. Foster in 2008 found Mr. Clayton's mental state similar to that which he obsetved in 2000. Dr. Foster described Mr. Clayton was cheerfully delusional and believed God would miraculously release him from prison to sing and preach the gospel. He had isolated himself and practiced gospel singing. Dr. Foster opined Mr. Clayton was incompetent to be executed. In the Missouri Department of Corrections Mr. Clayton is diagnosed with generalized a11xiety which resolved in 2005, and a mood disorder. He is not in mental health treatment and refused to be interviewed for his annual review on 12/19/11. It was noted he did not desire or require mental health services and no diagnoses was made. Mr. Clayton receives no psychotropic medication. He -v ~~ {\-l\;0 ~-:.Li::J.Le:h Unger Carlt·le, ~~cil Page: Esq. Cl3yton 3 has refused physical examinations, but does take medicine to lower his blood pressure and cholesterol. When examined on September 14, 2012 Mr. Clayton's thoughts were tangential. He still believed God would intervene and he would one day be a gospel singer and evangelist. He continues to believe he was unjustly convicted and will never be executed. He just tries to get along with others and has asked God to work on his case. He does know his attorneys are working to get him off the capital punishment unit and then have a new trial. Past this point he has no understanding of the issues in his proceedings. He periodically hears Satan's voice, but states "If God is for you, who can be against you." He believes the deputy might have been set up to shoot him. While he heard a gunshot he states he did not shoot the deputy. He has told God he needs to get back to the streets and bring people to Christ. He does not understand the reason for his proposed execution. He still believes "God will do well for me. • Mr. Clayton's head trauma, documented on MRI, will never change. Likewise his delusional ideas are not being addressed and are ftxed and unchangeable. There is no reason to change my previous 2008 opinion that Mr. Clayton remains not competent to be executed as he does not understand or comprehend the reason and purpose of his pending execution. Likewise based on his dementia and delusional disorder his ability to follow conversations, retain information and rationally consider Ms. Carlyle's advice concerning the method of execution is non-existent. When last interviewed, Mr. Clayton knew Ms. Carlyle represented him but could not differentiate her role from that of Ms. Willibey or Mr. Peter Carter. Therefore, it is my additional opinion he is not competent to participate in upcoming mediation concerning the method of carrying out his death sentence. All Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM ;"o: Rd: S~~=Jbeth Ur1ger Cdrlyle, Esq. Cecil Clayton ?age: ~ Sincerely, tv.du~ ~et-a-{ ?tJ-<9 William S. Logan, MD Diplomate, American Board of Psychiatry and Neurology 1982 Diplomate, American Board of Forensic Psychiatry 1987 Subspecialty in Forensic Psychiatry by the American Board of Psychiatry and Neurology 1994 and 2003 WSL/sg Electronically Filed - SUPREME COURT OF MISSOURI - February 11, 2014 - 11:30 AM .0: Je: ... FORENSIC::, ADOI..tSCENT AND ADULT PSYCHI"TRV WIUJAM S. LOGAN, MD STEPHEN E. PETERSON, MD 0 428 WEST 42ND STREET KANSAS CITY, MISSOURI 64111 TELEPHONE: 1816) 842-2500 f' AX: (8 I 61 842-9980 FAXED JAN 07201'5 l;l 231 S. BEMISTON, SUITE 600 CLAYTON, MISSOUR163105 TELEPHONE: (3141 23&4914 FAX: (314) 2311-4922 January 7, 2015 Ms. Jeannie Willibey, Esq. And Pete Carter, Esq. Assistant Public Defender Appellate/PCR Division 920 Main Suite 500 Kansas City, Missouri 64105 Telephone: 816-889-7699 Fax: 816-889-2088 Re: Cecil Clavton (Dob: 4/16/40) Dear Ms. Wi!libey, Mr. Carter and Ms. Carlyle: I am writing to provide an update to my earlier evaluations of Mr. Clayton on 11/3/08 and 8/25/13. Referral questions include the following issues: > Whether Mr. Clayton has a mental disease or defect. ) Whether his brain injury prevents him from having a rational understanding or comprehending the meaning and purpose of his punishment. > Whether Mr. Clayton has the capacity to understand and believes his execution will be carried out. >- Whether Mr. Clayton has the capacity to understand matters in extenuation arguments for executive clemency or reasons why his sentence should not be carried out. I most recently examined Mr. Clayton at Potosi Correctional Center on January 3, 2015 with Ms. Carlyle in attendance. Additionally I reviewed his correctional and medical file from the MDOC since 2012 to the present. ~ e5ed "". Re: Cecil Lee Claytcn Page 2 Mr. Clayton's mental state has changed little since my earlier evaluations in 2008 and 2013. His view of his conviction is that he is the victim of a conspiracy. His mood varies from anxiety to paranoia. He still engages in delusional denial that his execution will take place relying on divine intervention in some form so he can pursue a gospel ministry as a preacher and sing with the best pianist in Missouri with whom he will tour the nation. In regards to the efforts of his defense team, he is not oppositional but is instead completely passive with no real understanding of pending procedures or any legal issue that could further the progress to his execution or prevent it. When he becomes anxious, he retreats to delusional denial that through divine intervention his execution will be thwarted. Mr. Clayton's abnormal mental state is largely due to a catastrophic traumatic brain injury in 1972 which severely limits his ability to process or grasp information or to exercise normal judgment about his legal situation. Consequently my opinions are unchanged and are as follows: 1. Mr. Clayton has a mental disease and defect. 2. Consequently Mr. Clayton's brain injury prevents him from having a rational understanding of his situation or comprehending the actual meaning and purpose of his proposed punishment, seeing the proposed execution as a test from God of his faith. 3. Mr. Clayton continues to believe he will not be executed and that his death from execution will not occur due to divine intervention so he can pursue his true calling. 4. Mr. Clayton, due to his delusional denial, lacks the capacity to understand matters in extenuation, arguments for executive clemency or any reasons his attorneys might present as to why his sentence should not be carried out. In this regard he accepts that God may choose to c e5ed 0866<:1789 ~8 'J'd 'uosJe+•d 1? ue6ol WV9 ~:go g ~Oc 80 uer Re: Cecil Lee Clayton Page 3 work through his defense team, but has no capacity to understand the actual issues to be presented or why his input would be of value. Sincerely, William S. Logan, MD Dipiornate, American Board of Psychiatry and Neurology 1982 Diplomate, American Board of Forensic Psychiatry 1987 Subspecialty in Forensic Psychiatry by the American Board of Psychiatry and Neurology 1994 and 2003 WSL/sg E e5ed 0866<:1789 ~8 'J'd 'uosJe+•d 'l? ue6ol WV9 ~:go g ~Oc 80 uer AFFIDAVIT County of Jackson ) ) ss. State of Missouri ) I, William S. Logan, M.D., being oflawful age and having been sworn, do hereby state under oath that the facts alleged in the foregoing report are true to the best of my knowledge and belief. In witness whereof! have hereunto subscribed my name and affixed my official seal this 1 H) day of (;;:z ncca ll.tj. , 2015. () Seal 'CAAOLYN S. GALLAMORE 110t1ry My commission expires: PUI!Iic-Notary Seal -:t~=··=·=·=·~·~ou~rt~, C~ta;y~co;llllly:iit:l~ COIIIIIIiNICIII Ex;res Mn 22. 2017 My t e5ed 0866<:1789 ~8 'J'd 'uosJe+•d 'l? ue6ol WV9 ~:go g ~Oc 80 uer November 17, 2008 Ms. Jeannlt! Willibey, E.q. and Pete Carter, Esq. Assistant Public Defender AppeHate/PCR Division 920 Main Suite 500 Kansas City. MO 64105 Telt!phone: 816-889-7699 Re: Fax: 816-889-2088 Cecil Clayton (DOB: 4/16/40, Dear Ms. Wilfibt!y and Mr. Colrter: Please find enclosed, my preliminary report regarding Mr. Clayton's competency for his scheduled execution for the November 27. 1996 slaying of DepU1'( Sheriff Castetter. In preparation for previous testimony in regard to Mr. Clayton, I met with Mr. ClaytOn and reviewed more than a thousand pages of Medical Records, Criminal investigation Reports, Jail Records and Trial Transcripts specific to Mr. Clayton's medical, education•!, sodal and criminal histories. I then testified over portions of twO days before Judge David Darnold, Circuit Judge of the 28"' Judicial Circuit, on Supreme Court assignment (he also presided over Mr. Clayton's Criminal Trial and Sentencing) in Joplin, MO, September 6'" and 7'". 2000. More recently, I met again with Mr. Clayton for several hours at the Potosi Correctional Center on November 1". 2008. I also reviewed more than one thousand additional pages of his medical records since incarcerated in the Missouri State Prison System, Depositions of various relatives. friends and acquaintances, and the Transcript of the Appeal Ht!aring for Mr. Clayton, Septembt!r s"' through the 7,. of 2000. Mr. Clayton previously suffered several head Injuries, the most severe of which (1/26/72) resulted In significant frontal lobe damage and subsequent cognitivl! impairment with significant deficits In judgement, problem solving, mental flexibility, processing speed and verbal dl$inhlbitlon. Major Depressive episodes accompanied by Insomnia and visual and verbal hallucinations have also been r~portl!d rt!pl!atedly in th~tn Records Records/Reports Clayton has a well documented Medical Record include an incident occurring in 1972 which resulted 267 Pages 54 Pages 35 Pages prior head injuries, to scarring and loss of brain Rosebud IHS Behavioral Health NOV/25/2013 4:06·43 PM 605~ 747 ~5092 3/7 Clayton Interim Report Page 2 tissue in his right frontal lobe. Though he has a long established diagnosis of Dementia, this diagnosis is not identified in many of his Potosi Medical Records. His Brain Damage and resultant Dementia is a defect which results in impaired memory, particularly short term, difficulty processing information, especially under and impaired judgement and decision making deaf and spoke so loudly throughout our session that I am adjoining rooms heard word, despite our being provided private meeting accommodations. He did not display the least concern over our lack privacy secondary to his me over the duration of our . meec~ng. Mr. Clayton was shackled at his wrists and one leg was shackled to a wheel chair, were in a had recently injured his ankle in a fall informs he is awaiting surgery to have pins placed to increase sagging on has aged has lost which had previously since our last contact. While and mass. His flesh was muscled. His thinking is disorganized and he is easiiy making assessment difficult He responded to questions becoming tangential and addressing of personal interest. was cheerful and pleasant. His memory is inconsistent, with some long term memory intact, albeit inconsistently accessed. He often inserted decades old information inappropriately into his mo,nologue, as if it were germane. He was friendly and verbal. While responsive to questions, he responded I was unable to keep him on task with whatever came from the start. did not perform even basic calculations (for example: " ... how knew the current year, and many years has it been since you were arrested?" stated the his arrest correctly, though not subtract the latter from ~Jov/25/2013 4:06-43 PM Rosebud IHS Behav1ora1 Health 605-747-5092 4/7 the former. He could not subtract 7 from his current age. He could not recall the colors nor the clothing I was wearing, etc). He chatted on without seeming concern, appearing relaxed and at ease. was quite racist and speech, topic and was consistent with his educational socioeconomic background 1n to grammar, syntax, and vocabulary. rambled topic to topic, a primary focus on his frequent expletives and coarse, fundamentalist Christian beliefs (supported vulgar expressions). Though he denies racial prejudice, his content was surely r,ffAn<:hio tn mfit:t n~r:::nn.:::: 11-e:.t;::.r!fncr in 't;::;ff lnm~tp \Mhitp; hl~rk- i-Hc;n~nir Asian or American indian. He undoubtedly rr~"'"''e fr·ktlnn and conflict with his racist, unfiltered speech, is an equal offender, should his listeners have beliefs or viewpoints differing from own. switched topics randomly, in a rambling, sociaiiy superficial manner. Though rapport seemed readily established, he did not grasp, nor display concern about the purpose of our visit He expressed full confidence in his Attorney, ne of suostantJve nnl-"n·r!::>l outcomes of his case. appellate process, nor He put his "in Lord", informing ministry Is to the Inmates and did at respond to his various institutional infractions and their inconsistency with his ministerial aspiration(s). the day or His attention span was tended to speak of events and prior to his arrest and as If they were contemporary, though seemed aware of his current prison status and the outcomes of the intervening years (his trial and conviction, the birth of his grandchiidren, death of his and estate in the payment to Attorney at his trial, etc.), Nov/25/2013 4 06 43 PM Rosebud IHS Behavioral Heaith 605-747-5092 5/7 Clayton Interim Report Page4 As discussed, he displays impairments in orientation, attention, concentration/ memory, abstract abilities, fund of general knowledge/ judgement and decision making. He is not considered a reliable historical or current informant secondary to his His inte!ligence is by the above. His dementia worsened secondary to aging his long term cardiovascular disease, for he has been treated including heart surgery. His insight and judgement are significantly impaired and he is not considered to ....,....,..,n+ ,;'"<''-''d +h.n l'"...,,••~~''''>[" proceedings, Respectfully Submitted, fJnd tJ.~~A~ !11. ~ Daniel V. Foster; Psy.D., M.S. ~; +ho hi li"Y'-A~OC' ,..,f +ho >> fin~! \':)1"'\r'!OII~to ~-·'~'' >>"-' ~'('f'"- Foster and Foster Consulting ~ 1:, Ph 1 l ud t J eannie Willibey, Esq., Pete Carter, Esq. and Elizabeth Unger Carlyle, Esq. RE <.. to ( )O > Dear Mr. Carter, Ms. Willebey and Ms. Unger Carlyle Please note my most recent Assessment regarding Mr. Clayton's Competency to be executed secondary to his conviction for the November 27, 1996 death of Deputy Sheriff Castetter. I met again with Mr. Clayton at Potosi Correctional Center, Potosi, Missouri, on Friday, january 2, 20 15 for two hours. In preparation for this meeting and this updated Competency Report, I reviewed 396 pages of his Medical Record from Potosi Corrrectional Center, 2012 through 2014. I also reviewed 17 pages of Correctional Reports covering the same time period. On January 26, 1972, Mr. Clayton suffered a penetrating injury to his brain, resulting in significant frontal lobe damage and subsequent cognitive impairment. He has displayed significant deficits, including poor judgement, problem solving, mental flexibility, and verbal disinhibition since that injury, through the present time. In 2005, after an extensive and thorough evaluation at the US Medical Center for Federal Prisoners, in Springfield Missouri, Dr. Lee Ann Preston, Clinical Psychologist, Uanuary 18, 2005), noted the following: " ... the presence of a mental disease or defect does not necessarily render an individual incompetent. Rather it is the manner and extent to which a mental disease or defect impacts an individual's competency related abilities that is critical... ... Mr. Clayton's tangential speech, impaired judgement, and impaired reasoning abilities will negatively effect his ability to communicate effectively ... , tesify relevantly .. .and make rational decisions regarding his habeas proceedings. Consequently, it is my opinion he is likely not competent to proceed." Foster Interim Psychological Report Page 2 In review of his Correctional Record, I note that, despite arriving at Potosi on December 8, 1997, and leaving for his open heart surgery, for his USMCFP Evaluation at Springfield, and for a more recent Competency Evaluation by the State of Missouri, he has remained there. He also had bone surgery following a fractured ankle in November of 20 13, though I believe it was by Corizon Health at Potosi, or nearby. Yet the deficits which have plagued him since his traumatic brain injury, continue. For example, despite his call to preach the gospel to fellow inmates and staff, on I 1/1/13, he is quoted saying to staff "Fuck you bitch ... get the fuck out of here.." He has had lengthy sojourns on Disciplinary Segregation and Administrative Segregation, in that he cannot successfully manage socially since his head injury. This was true prior to his conviction, with his ex-wife and children, and has been true since his conviction with staff and inmates. Despite all the years, the corrections, redirections, he still cannot socially negotiate the structured setting of the prison. He does not and cannot learn, even from years of experience, basic social and self monitoring skills. His brain injury does not allow him the capacity. His two most recent State of Missouri, Department of Corrections, AICS Reclassification Behavioral Checklist Reports include the following problematic findings ( 1130112, Jacqueline Howard, Badge I09338, 2/6/13, Anita Meyer 114205): Acts before thinking; Socially Withdrawn; Quick tempered; Tries but cannot seem to follow directions; Argues with or questions staff; Jittery, jumpy, unable to relax, seems afraid; Seems dull and unintelligent; Demands immediate satisfaction; Moody, temperamental; Not respectful of other; Afraid of other inmates; Stirs up trouble among inmates... Hardly the behaviors of a mature, competent senior citizen who believe himself called to preach the gospel of jesus Christ to inmates and staff alike. He is somewhat puzzled about the "Lord's timing" in regard to his belief that he will be released from prison, once his mission is complete. All of these and additional problematic behaviors are also found in his Medical Records prior to his conviction and following his Head Injury injury in 1972. By now he also lives with additional chronic, severe medical conditions, which have further eroded his capacity to manage his life. These include significant hearing loss, partial blindness. a three vessel bypass in 200 I secondary to chronic Coronary Artery Disease. He has been treated for essential hypertension for many years, and has chronic pain from progressing osteoarthritis to his lower spine, both hips and both knees. He added the fractured left lower leg with surgical repair in November of 20 13. He has been treated for hyperlipidemia also for many years. Finally, he has chronic foot problems, to include bunions, hammertoes, and ingrown nails bilaterally for many years. Despite the seriousness of his Coronary Artery Disease for example, he continues to regularly refuse physicals, refuses labs, does not seek medical attention except for pain at that moment. He simply does not "get it". I noted that following his surgery with Corizon Health, he was monitored by medical staff over a several week period. Nursing repeatedly identified confusion at night, going back to November of 20 13, the day after his ankle injury, and continuing through january 8, 20 14. The confusion was sufficiently significant for nursing to repeatedly note it. He was unable to figure out how to utilize crutches after his injury, hence was assigned a walker for many weeks. He is unable to inform me of his current medications, his current medical conditions, his presiding Judge at his trial and at his Appeal, the legal strategy presented by Attorney Rhodes at his initial trial, the current status of his case, what has been done on his behalf and what fate awaits him. He cheerfully leaves it in the Lord's and his Attorney's hands. He remains, as he has been since I first met him, unable to fully participate, cooperate or comprehend his legal status, process and final, pending deliberations. While he can superficially seem intact, extended contact or observation exposes his multiple deficits, which continue their slow deterioration, despite the structured, secure setting in which he has resided over the past two decades. He is not simply incompetent legally, he would be unable to care for himself or manage basic self care, were he not in a structured environment that takes care of Page 2 him. He can shower, groom, eat. walk. it is his comprehension, judgement. memory, limited intelligence and social deficits that plague him I do not find him competent to appreciate the purpose of his pending execution as addressed in Panetti v. Quarterman and Ford v. Wainwright. should it not be stayed by the State of Missouri or the Federal Court. He can replicate elements of the fact that an execution follows a conviction for first degree murder, though still does not comprehend, appreciate nor understand its approaching date for him. Thank you for your referral of Mr. Clayton. Do not hesitate to contact me with concerns or questions. Respectfully £!~I)~~~fj /JIS Daniel V. Foster, Psy.D., M.S. Clinical and Forensic Psychologist Foster and Foster Consulting [Type the sender company name] (Pick the date] Page 3 .Jererniah V. (Jay) Nixon 2729 Plaza l)rive P. 0. Box 236 Jefferson City, MO h1O2 Telephone: 573-751-238q Governor George A. Lombardi Fax: 573-75-4O99 TDD A ailable Director State of Missouri DEPARTMENT OF CORRECTIONS Ad Excelleum Conamur “We Strive Towards Excellence” December 17, 2014 Jeannie Willibey Missouri State Public Defender System AppellateIPCR Division 920 Main Street, Suite 500 Kansas City, MO 64105 Re: Cecil Clayton #990141 Dear Ms. Willibey: Pursuant to your request of December 17, 2014, please find enclosed a copy of the letter of September 2, 2014, from Richard Gowdy, Deputy Director, Missouri Department of Health to George Lombardi, Director, Missouri Department of Corrections, with attachment, regarding your client, Cecil Clayton #990141. By copy of this letter, I am also providing a copy of the letter and attachment to Assistant Attorney General Stephen Hawke of the Missouri Attorney General’s Office. Richard G. Williams General Counsel Cc: Stephen Hawke, Assistant Attorney General JEREMIAH W. (JAY) NIXON KEITH SCHAFER, Ed.D. GOVERNOR DIRECTOR MARK STRINGER DIRECTOR DIVISION OF BEHAVIORAL HEALTH (573) 751-9499 (573) 751-7814 FAX STATE OF MISSOURI DEPARTMENT OF MENTAL HEALTH 1706 EAST ELM STREET P.O. BOX 687 JEFFERSON CITY, MISSOURI 65102 (573)751-4122 (573) 751-8224 FAX SEP 3 2014 C i’S www.dmh.mo.gov September 2, 2014 George A. Lombardi, Director Department of Corrections 2729 Plaza Drive Jefferson City, MO 65102 RE: Cecil Clayton #990141 Dear Director Lombardi; Pursuant to your request to Director Schafer of March 12, 2014, in reference to Offender Cecil Clayton, Director Schafer instructed me to cause a Department of Mental Health psychiatrist to examine Mr. Clayton to assist you with your responsibilities under section 552.060 RSMo. Attached you will find the examination completed by James B. Reynolds, M.D., F.A.P.A. I trust this evaluation by Dr. Reynolds will answer the question you posed in your letter and be of assistance to the Department of Corrections. SreIy, Richard N. Gowdy, PhD Deputy Director Division of Behavioral Health Missouri Department of Mental Health RNG:lh Attachment An Equal Opportunity Employer services provided on a nondiscriminatory basis. Denise Norbury JeremiahW, (Jay) Nixon Rooorra Exocji ye Qffcor ,rror Mary Attebury, M.S. Keith Schafer, Ed.D. State of Missouri Department of Mental Health Behavioral Health Cr of Ope’ai rg O°cor Mark Stringer Northwest Missouri Psychiatric Rehabilitation Center James B. Reynolds, M.D. O’”c’or Ovyorol Borrv.’ora iioaii, 3505 Frederick Avenue St Joseph, MO 64506 (816) 387-2300 FAX (816) 387-2329 R’o:’’ Dora ““rr f Mor,v FiOOI’9 MeCcal Orocior TO: Richard N. Gowdy, Ph.D., Deputy Division Director RE: CECIL CLAYTON - DOC#990141 REPORT DATE: August 29, 2014 INTRODUCTION: Pursuant to a request from George A. Lombardi, Director, Missouri Department of Corrections, to Dr. Keith Schafer, Director, Missouri Department of Mental Health, dated March 12, 2014, this examiner. James B. Reynolds, M.D., was assigned to perform a forensic evaluation on Cecil Clayton, DOC inmate #990141. The request from Mr. Lombardi to Dr. Schafer was for an evaluation to determine “whether there is reasonable cause to believe offender Clayton who has been sentenced to be executed, has a mental disease or defect such that he lacks the capacity to understand the nature and purpose of the punishment he is under sentence to receive.” This examiner was in turn assigned to perform the evaluation by Dr. Richard N. Gowdy, then Director of Forensic Services for the Missouri Department of Mental Health. Pursuant to that assignment, I have performed an evaluation to render an opinion on this issue, to a reasonable degree of medical certainty, and details of my findings are included in the body of this report, as well as my forensic conclusion. For the purpose of this evaluation I have performed a psychiatric interview of Mr. Clayton as well as reviewed a considerable volume of evidence provided both by Dr. Gowdy’s office and the Office of the Public Defender, representing Mr. Clayton. SOURCES OF INFORMATION: 1. Clinical Interview of Cecil Clayton on June 26, 2014. at the Crossroads Correctional Center in Cameron, 1,4 hours. It was noted that for the purpose of the clinical MO. This interview lasted approximately 2 interview Mr Clayton was transferred from his assigned prison facility at the Potosi Correctional Center to Crossroads. He was transported on the same day as the interview, being awakened and on the road shortly after 1 a m. that morning and arriving shortly before 9 am. of 2. Department of Corrections, mental health, and inmate records on Cecil Clayton totaling hundreds pages and spanning a range of dates from approximately 1997 to 2013. 3. A voluminous file provided by the public defender’s office consisting of records of prior court proceedings of Mr. Clayton the clinical 4 Several conversations with defense attorney Jeannie Willibey primarily regarding arranging me to wished Willibey Ms information of sources various providing well as interview with Mr. Clayton as consider during my evaluation the forensic 5 Conversations with attorneys Rick Williams and Matt Briesacher of Missouri DOC clarifying Corrections. of question being asked by the Director of the Department over the years by 6. A number of forensic and clinical reports and documents on Cecil Clayton authored members of the from affidavits and offense. index the on information various professionals, discovery defense team over the years, including but not necessarily limited to Preliminary Findings by William S Logan M D., and Affidavit • Preliminary Findings by Dr Daniel V. Foster • Neurological Surgery report by Dr John Tsang dated 1/26/72 • Neurological Surgery report by Dr Tsang dated 1/26/72 • latory basis Ar Fquai Opportunity Ernpioyer serv ces provided on a nond’scrimif Clayton 829-20 14 Page 2 of 10 7, 8. 9. • St. John’s Hospital Discharge Summary dated 2/3/72 Letter from Dr. George Klinkerfuss dated 1/30/78 • • Statement of Dr. Klinkerfuss stamped “received” on 4/24/78 Psychiatric Evaluation dated 1/24/79, Ozark Psych. Clinic, Inc • Letter from Dr. Klinkerfuss dated 1/3 1/80 • Letter from Dr. Klinkerfuss dated 7/16/80 • • Letter from Dr. Klinkerfuss dated 9/1/83 Letter from Dr. Douglas A. Stevens dated 10/31/83 • Psychiatric Evaluation dated 2/9/84 • Letter from Dr. James E. Bright dated 3/20/84 • Dept. • of Health and Human Services, Decision of 4/6/84 Affidavit • of Julie Eilers, Investigator, Fed. Public Defender • Affidavit of Laura Martin, Attorney, MO Public Defender • Affidavit of Rebecca Kurz, Attorney, Morgan and Pilate Forensic Report by Dr. Preston, U.S. Dept. of Justice • Updated Findings by William S. Logan, M.D., 8/28/13 • Updated Findings by Daniel V. Foster, Psychologist, 11/24/13 • • Affidavit of Attorney Elizabeth Unger Carlyle, 2/10/14 Ford v. Wainwright 477 U.S. 399 (1986) Pauietti v. Quarterman 551 U.S. 930 (2007) RSM0552.060 IDENTIFYING INFORMATION: Mr. Cecil Clayton is now a 74 year old Caucasian male who is facing sentence of death for the November 27, 1996, murder by gunshot of Barry County Sheriff’s Deputy Christopher Castetter. He currently resides at the Potosi Correctional Center in Mineral Point, MO. BACKGROUND INFORMATION: Mr. Cecil Clayton was convicted in October of 1997 of the crime of Murder in the 1 Degree in the Circuit Court of Jasper County, Missouri. He was sentenced to death. This examiner possesses a volume of records provided by the defense on legal proceedings that have taken place surrounding and subsequent to the trial and conviction, although a detailed recitation of this information is not necessary in order to answer the question I have been asked to address. Mr. Clayton was born in Purdy, MO, one of seven children to his married parents. He has described his upbringing as strict, but he has denied a history of physical or sexual abuse. He reportedly had no significant history of truancy or behavioral problems as a child, and no history of special education needs. He is reported to have engaged in physical altercations with others as he grew older, however, and he eventually withdrew from school without obtaining a diploma or GED. Mr. Clayton reportedly had a considerable history of alcohol dependence beginning in early adolescence, He has admitted to becoming violent while intoxicated and he has had multiple convictions for driving under the influence. Although he has admitted to using other drugs including cocaine, marijuana, and amphetamines, he has not reported a dependence on them. Mr. Clayton has reported a number of head injuries over the years. In 1950, he reportedly was knocked unconscious after falling from a large tree and hitting his head. In 1958, he is reported to have been rendered unconscious in the course of a motor vehicle accident. Although he was reportedly treated in the hospital for that njury, he apparently left against medical advice the day after the accident. He suffered from another head injury in the 1960’s when he was hit in the head with a state trooper’s ‘blackjack’ and suffered headaches and ringing in the ears after that injury. On January 24, 1972, Mr. Clayton suffered his most serious head injury. This occurred at his employment at a saw mill. He was loading logs into the saw with the assistance of another worker and he recalls that the other man “let one of the logs slip.” A splinter of wood was apparently ejected at high speed from the mechanism and (la ton 8—29-2014 Page 3 0110 penetrated his head over the right temple. This resulted in a severe injury which fractured his skull and actually exposed extruded brain tissue. He suffered leakage of spinal fluid. Contemporary medical records indicate that he was stabilized and quickly taken to the operating room where an emergency craniotomy (opening in the skull) was performed to relieve pressure, remove bone fragments. and evacuate clotted blood. Approximately 3 cubic centimeters of destroyed brain tissue was debrided (removed). He was unconscious for several days but did stabilize and was able to be discharged from the hospital for rehabilitative care. A neurology note from Dr. George Klinkerfuss, dated January 30, 1978, documented that Mr. Clayton subsequently suffered deficits in the functioning of his left arm, further decreased vision in his right eye (which had chronically been weak before then), and mental status and personality changes. For example, Mr. Clayton was quoted as complaining about excessive anxiety, difficulty with concentration, confusion, and emotional lability. He was noted to have “tangential (off track, derailed) thinking.” Mr. Clayton reported that he was unable to maintain work for any length of time and while he did work for 9 months for the local police department, he subsequently had to leave that position because he could not fulfill his responsibilities. Dr. Klinkerfuss opined that Mr. Clayton was disabled with respect to his prior occupational skills, although he did advise that it “might” be possible that he could be retrained. A subsequent examination in January of 1979 by a Dr. William Clary opined that Mr. Clayton was suffering from extreme anxiety and depression and was unable to cope with the stressors of his family. He went on to state that due to a diagnosis of “borderline personality, classical schizoid type,” Mr. Clayton was incapacitated and totally disabled. A psychological and vocational evaluation was performed by psychologist Douglas Stevens in October 1983. Dr. Stevens advised that Mr. Clayton experienced “great difficulty” with anxiety and impulse control which caused him difficulty within the family and also difficulty in maintaining employment. Dr. Stevens noted that Mr. Clayton complained of visual and auditory hallucinations and severe depression with suicidal thoughts. Intellectual testing showed an intelligence quotient in the below average range with a full scale I.Q. of 76. The Wechsler memory scale was also administered and Mr. Clayton’s score of 62 placed him in a “mentally retarded category.” Serious deficits were noted also on neuropsychological testing. A “chronic brain syndrome” was diagnosed with paranoia, deterioration in intellectual functioning and memory, impoverished thinking with confusion, and a very “labile affect” (mood swings). Dr. Steven’s opined that Mr. Clayton also showed thought disorganization, hallucinations and delusions, and inappropriateness of affect (display of emotion). Subsequent examinations in 1984 by Dr. James Bright, gave similar findings. Brain imaging studies over the years have consistently demonstrated damaged brain tissue in the areas affected by the saw mill injury in 1972. The report of Dr. Preston from 2005 notes an MRI demonstrated the old area of damage from the sawmill injury in the frontal lobes, right greater than left, signs of “moderate atrophy” in the anterior corpus callosum, as well as a “small lacunar infarct” (sometimes described as a ‘silent stroke”), age undetermined, in the right caudate nucleus. MENTAL STATUS EXAMINATION: Mr. Clayton was evaluated at the Crossroads Correctional Center on June 26, 2014. He had been awakened around 0100 that morning at Potosi and traveled by car to Crossroads, arriving shortly before the interview began likely at 0900. A lengthy car trip after being awakened in the wee hours of the morning, if it had any effect, would mental focused and alert most in his being result in an elderly man with brain damage and health problems not state This may be a “soft” factor to note, but it is my opinion that this factor likely represents that my opinion capability. regarding his mental faculties on the day of the interview is, if anything, an underestimation of his true y 5 approximatel Additionally, several personnel were present in the room during the interview, including to assent my given previously correctional officers (3 from Potosi) as well as defense council Ms. Willibey. I had respectful completely was She Gowdy. Dr. Ms. Willibey’s presence in the interview room, with the concurrence of the process to of the process at all times, sitting out of direct eyeshot of the prisoner and not noticeably affecting correctional the of presence the about Clayton Mr. questioned I any degree Prior to beginning the interview for the note must I presence. their to objection any made council defense nor he, officers in the room. Neither affect theoretically least may at record, however, that the presence of others in the room not involved in the case the process in some fashion. give his best effort to Mr Clayton was pleasant and appeared to be cooperative during the session. seeming to kempt. His voice was answer my questions. He was dressed in standard jail garb and seemed reasonably well comments. He did fluent and non-pressured. He laughed freely on several occasions at appropriate humorous Clayton 8—20-2014 Page 3 of 10 complain of difficulty hearing and at times asked me to repeat my question. His affect (display of emotions) was broad in range. When asked his mood he replied that he has bad emotions.” He added “I’m tired, anything concerning prison is depressing.” In fact, shortly before I began the formal mental status portion of the interview, Mr. Clayton had spontaneously stated “I dont want life without parole. I’m tired of prison. I’m in my 70’s. Let me put it this way, I still think God will save me [he became teary eyed].” Mr. Clayton stated that his sleep pattern at times is not good, and stated that he had not slept well in the last 2 or 3 days. He added that he sometimes has bad dreams but tries not to worry about stuff. He claimed that his appetite is ‘pretty good” and his weight hovers around 185, with no major recent changes. When asked his energy level and interest in activities he indicated that it was up and down. He added “I used to walk at Rec, but now my leg hurts (Mr. Clayton suffered a fractured ankle in late 2013).” He has quit playing cards. He does read the Bible, and he likes watching westerns on television, He also said that he follows the Royals baseball team. He added, “and I enjoy my coffee.” Thought form was generally goal directed with tight associations. There was no tangential (irrelevant, flying off track> thinking that was significant enough to disrupt the process of the interview. I did notice a commonly reported tendency of Mr. Clayton to circumstantiality, in which Mr. Clayton at times would tend to give a roundabout or over-inclusive answer to questions, telling stories or adding extraneous information, but he was redirectable to the topic at hand during my interview. I recognize that some previous examiners have reported that it was all but impossible to hold a meaningful conversation with him, but that was not at all my experience in my interview. I detected no signs of psychosis with respect to his thought form, observing neither thought blocking, signs of attention to internal stimuli, nor meaningless speech. Thought content was negative for any admitted suicidal ideation. Mr. Clayton stated that he would not like to contemplate the rest of his life in prison without the possibility of parole. However, when asked about suicide he stated ‘you can’t get forgiveness for that.” When challenged about the possibility of a life without parole outcome, he replied ‘well, I don’t know...,” and fell silent. He denied having any violent or homicidal ideations against anyone else. He was asked directly about hallucinations in any sensory sphere. He stated “once in a great while I see something like somebody walking by. I have seen people at the window, but when I go up there no one is there” He was asked if he felt anyone was out to get him. He stated “well, I figure if something gets you, you can’t blame anybody. There is nobody out to get me. I don’t bother anyone, and no one bothers me.” He was then asked about black people (records document him as having friction with black prisoners) and he admitted “I wont cell with a black man. But I don’t have issues with them. I think the white people ought to cell together and black people cell together.” He added “I cell with a guy about 16 years younger than me. He’s been in for 40 years.” He stated “I had a cellmate recently taking some stuff. I didn’t get in a fight or nothing, you might lose your position, th 17 what cell you’re in, what wing. When you get out of the “hole” (admin segregation) you get 3-B, sliding doors, century. I used to fight and go to the hole. I don’t want that now. Age makes a difference.” Mr. Clayton then digressed into a story about going to the hole once because a sergeant didn’t like him and wrote him up for saying him “nigger.” He added “I didn’t do it. I didn’t do anything. But 1 didn’t want it to get back to him. You can’t strike cellmate. different a wanted if he do could he what Clayton Mr. I asked point this s.” At (the Sgt), bad consequence He stated “well, there’s a young case worker in 3-A. I could go to him.” I asked if that always works and he replied the well, no. You gotta know how to talk to them. If I didn’t get along with (a cellie) I’d make an appointment with I Once, moved. get can you usually and out, caseworker. I’d make my case, before we get in a knock down drag fight’.” a into get want to ‘I didn’t caseworker the I told man. told them to take me to the hole, I won’t cell with the When asked what would happen if he had a bad caseworker he replied “there is nothing you can do about it.” 25 or June 26, Cognitively Mr. Clayton appeared generally alert and oriented. He knew the date was either June three remember to asked was He s. 2014, He knew his name, his birth date, and his place and circumstance tricks plays mind “my added and laughed He minutes. unrelated objects, but could not recall any of them after 5 When asked again on me.” He was asked to spell the word “w-o-r-l-d” backward and he first answered “d-l-r-t-s.” and recited past with Obama began he and presidents past name to asked he answered, “d-l-r-o-w He was do if he were would he what presidents as “George W. Bush the 2nd,” George Bush, and Clinton. When asked hand.” His hired tell a would 1 watching a movie in a crowded theater and smelled some smoke he answered demonstrate to appeared years recent in account of addressing grievances and dealing with difficult cellmates experience over the years. good judgment in his current circumstances, judgment learned undoubtedly from hard two interviews I have had with cooperative been has Clayton Mr. Also in terms of “real-life” judgment I note that May 14, 2014. That brief tele with him, this one on June 26, 2014, and a brief tele-video session conducted on and held for the purpose of video interview was conducted in the presence of two of his defense attorneys (layton 8-2-20 14 Page 5 oI 10 introducing me to Mr. Clayton and seeking his cooperation with my evaluation. Mr. Clayton, on that date, gave his assurance that he would be fully cooperative He carried through with that promise on June 26, 2014, During this interview he was questioned as to why he had refused recent requests from Department of Corrections psychologists to do annual mental status examinations. He answered “why would I do an assessment? I said ‘no, my lawyer said I don’t need to be doing that. If you want to, you can call my lawyer. Any of that information you want. my lawyer can give it to you’.’ I followed up that question with a question about helping his attorneys. He answered “I trust them pretty good. I believe they are trying to help me on my case.” I then followed with an additional question, “what do you want help with?” He answered “I really want to get a church. I can’t get one setting [sicj in prison. First thing, get out of prison. It will work or it won’t work.” I questioned “what will work?” He answered “getting me out. There’s nothing certain in anything. I believe God opens doors. I believe he will deliver. If he don’t, it won’t be his fault. I’ll take my chances with God. God has a way of talking with people. Not just blowing a hole in the wall.” Overall intellectual functioning during my clinical interview appeared to be in the below average range and likely affected by his relative lack of formal education. I do not myself administer neuropsychological testing but I have a number of prior psychological test results to review from the file. Intellectual testing over several years of time by different examiners has tended to give him intelligence quotient scores generally from the low 70’s to the mid80’s, which places him in the below average to borderline range of intellectual functioning. Tests of memory have tended to show varying degrees of memory impairment, often described as “significant” or “severe.” Detailed neuropsychological testing has also shown deficits across various neurological domains presumably resulting from his brain injury, although testing by Dr. Lea Ann Preston in 2005 did reveal some scores that in her opinion may have been partly attributable to “weak effort” However, Dr. Preston also noted in her 2005 report that tests were administered to determine malingering and Mr. Clayton’s performance on those measures did not demonstrate any clear intention to exaggerate his deficits or to try to appear extremely impaired. PSYCHOTROPIC MEDICATIONS: To my knowledge, Mr. Clayton takes no psychotropic medications at the present time He did state that he takes medications for blood pressure, fluid buildup, and an aspirin (presumably for cardiac health). He also advised that he takes a 5’ medication, but could not recall the purpose. In his early years in the Department of Corrections he was prescribed anti-depressant medications as well as anxiety medications. The anxiety medications, including Lorazepam (Ativan) and Clonazepam (Klonopin) appeared to become a source of conflict between himself and care providers over the years. These medications are Federally controlled substances and can be addictive. The effects of these medicatIons on the brain are similar to the effects of alcohol. At various times Mr. Clayton is documented as requesting additional dosages of these anxiety medications, and at times his prescribers have not shared his opinion that he needed them. [On that note it is fair to say also that there were some instances in early records where Mr. Clayton himself refused these medications.] Nevertheless, there was at times conflict between an Mr. Clayton’s insistence on these medications and his care providers feeling he did not need them. As Declares meds. seek to “continues as described was he example, during one provider visit on February 4, 2004, 2004, PaxIl (an antidepressant and not addictive) not helpful, asks for Klonopin and Valium.” A note on March 3, documented Clayton as being “apprehensive about execution issues.” his psychotropic ifl the summer of 2005, notes document that Mr. Clayton began to refuse to take any of He began Klonopin. getting not at angry was he that medications and a note from August 18, 2005, indicates off of his remain to intended he that stated reportedly he 2005, of refusing other medications and in October 14, October from Notes psychotropic medications and then would not have to deal with mental health anymore. be could he when meds) (off 2005, and October 19, 2005, report him as counting down the 90 day period of time refusing began Clayton Mr. that free of mental health follow up. A note of February 17, 2006, documents the record Mr. Clayton is medications after being told he would not be put on Klonopin. It is noted that at times in as diligently putting docum,ented is he times other at but documented as refusing his medical medications as well, of June 26. 2014. he in requests about needing refills of various medications by certain dates. in the interview However, I then with.” work advised me that his medical provider, a Dr. McKinney(?) is a ‘good guy” and “good to Mr. Clayton 2005. from presumably questioned him about the last psychiatrist he had received prescriptions from, t think I didn If he “yeah. answered He referred to him as “that foreign doctor” (I believe a Dr. Basheer Ahmed?). should You him. to going for need any see didn’t needed the Klonopin, I didn’t see I needed it [psychiatric care], I as anecdote an told Clayton [Mr. row.” death on I was have seen the look on his face when that secretary told him was if he meds) ine anxiety to how this psychiatrist told him that he could only get such medications (benzodiazep Cla ion $-2Q-20 4 [ae 6 of 10 on death row.” Mr. Clayton triumphantly recalled, with a broad smile, the look on the doctor’s face when his secretary informed him that Mr. Clayton was, indeed, a death row inmate. Nevertheless, Dr. Ahmed dId not deem him needing these medications and the relationship with Mr. Clayton and psychiatrists appears to have ended around that time frame. He did intermittently cooperate with required annual mental health examinations over the next few years, but on December 30, 2010, he advised one such examiner that his lawyer told him not to participate in any mental health evaluations. DIAGNOSIS: Per Diagnostic and Statistical Manual of Mental Disorders, 4 ed-TR (DSM-IV-TR) AXIS I: Dementia Due to General Medical Condition traumatic brain injury, small old infarct (stroke), and possible age-related decline 294.1 Major depression recurrent, by historycurrently mild to low-moderate in severity 296.32 Psychotic Disorder Due to General Medical Condition-traumatic brain injury 293.82 — Alcohol Dependence — by history, inactive in controlled environment 303.90 V71.09 AXIS II: No diagnosis AXIS Ill: Traumatic brain injury with damage to frontal lobes- January, 1972 Small lacunar infarct right caudate nucleus- “old,” but age undetermined Status/Post Myocardial Infarction with Coronary Artery Bypass Graft— May, 2001 Left fibula fracture with open reduction and internal fixation — November, 2013 Hypertension Psoriasis The primary psychiatric diagnosis, in my opinion, is Dementia Due to a General Medical Condition. This is manifested by deficits in memory, concentration, and other areas of intellectual functioning that have been well documented by examiners since 1972, when Mr. Clayton suffered a severe penetrating head injury with loss of brain tissue. Imaging studies have consistently demonstrated a significant area of damaged and non-functional brain tissue, primarily in his right frontal area. Numerous examiners using a variety of testing instruments and clinical evaluations have considered the brain injury to be the primary cause of his intellectual and neurological deficits. In addition, MRI testing in 2005 reportedly showed a small Iacunar infarct (area of damage generally referred to as a stroke) in the right caudate nucleolus. This is an area that does have functions tied in with the executive centers” of the brain, including the frontal lobes. Therefore, it is possible that some of his deficits, since whenever this undetermined brain infarct occurred, may be attributed to or aggravated by this small stroke. Additionally, Mr. Clayton is now age 74 and it is certainly possible that some age related cognitive decline may be entering the picture as well, and some brain “atrophy” was also noted on his 2005 MRI. Mr. Clayton has complained of symptoms of depression for many years before, and also since, his arrest on the index charge. He has been treated in the correctional environment with anti-depressant medications as well as anti-anxiety medications. Since mid-2005, he has been free of psychotropic medications for mental illness. Mr. Clayton continues to report symptoms of depression to this day, which he at least in part attributes to being incarcerated and facing a penalty of death. However, he claims to be coping adequately with these symptoms at this time without psychotropic medication treatment. He does pursue some interests and activities of enjoyment including reading his Bible and watching television, although he is unable to enjoy the degree of physical activity he used to exercise due to pain in his recently broken leg. Clayton 8-29-2014 Page 7 of I 0 The diagnosis of psychotic symptoms is manifested by self-reported complaints that he sometimes experiences visual hallucinations. He did not report these to me in any fashion that would indicate severe distress, basically discussing them in a matter of fact fashion. However, there have been times in the past when he has reported more frequent visual, and at times auditory hallucinations. These symptoms have been a focus of treatment from various caregivers as far back as 1980 (3-31-80, Dr. Klinkerfuss). A traumatic brain injury of the severity suffered by Mr. Clayton could produce hallucinations. Visual hallucinations in particular are more commonly seen in neurological conditions than in primary psychiatric conditions. More recent forensic psychology reports such as that of Dr. Logan from November 3, 2008, also document delusional thinking including persecutory and grandiose ideas relating to his pending execution” Dr. Logan reported that Mr. Clayton believed his conviction was a result of a conspiracy by the legal system against him and that someone else killed Deputy Castetter. Dr. Logan also opined that Mr. Clayton exhibited religious pre-occupation that was of delusional intensity and that he inappropriately believed that his execution would be averted by a “miraculous intervention from God’ and that this belief was evidence of delusional thinking. Paranoid symptoms are reported in the record as far back as 1974, during disability evaluations, This would of course have been well before his index offense in 1 996. It is extremely difficult to measure where faith in one’s religious beliefs, or one’s cynicism towards the justice system, ends and psychotic delusions begin. Religious preoccupation of delusional intensity is not uncommonly seen in psychotic mental disorders. However, during the session I held with Mr. Clayton on June 26, 2014, I did not perceive his beliefs about religion, or that God may intervene to save his life, to be of a delusional character or intensity. Mr. Clayton is a religious man, and has been reported to be so by numerous observers both professional and lay. It is certainly understandable that a person facing execution who has lost many avenues of appeal over the years might psychologically rely on divine intervention as a last resort. When I discussed his religious beliefs with respect to his pending execution, Mr. Clayton appeared to have a belief in divine intervention that in my opinion does not rise to a level of delusional intensity. For example, Mr. Clayton, in his own words, stated the following: • • • • • • I still think God will save me.” ‘It will work or it won’t work.” [What?J ‘(God) getting me out. There’s nothing certain in anything.” “I believe God opens doors. I believe he will deliver. If he don’t, it won’t be his fault.” “I’ll take my chances with God. God has a way of talking with people.” “(He) won’t just blow a hole in the wall.” “I would tell a person, [who believes in the death penalty] ‘since when is it your right to be God’?” U.. To a reasonable degree of medical certainty, it is my opinion that Mr. Clayton’s religious beliefs, and his faith that God will intervene in some fashion to prevent his execution, do not represent delusional thinking. It is unfortunate that medical science is not advanced to a degree that a definitive test can distinguish delusion from strongly held beliefs to an unequivocal degree of certainty. Nevertheless, there are techniques that mental health clinicians can use to assist in their evaluation of such beliefs. For example, one technique is to ask the patient to figuratively take a step back” and view the belief from outside their own point of view. Delusional patients have difficulty doing this, and will often persist with their fixed false belief despite any proof given to them to the contrary. If necessary, they will bring in more elements of their delusional thinking to back up their belief, or even grab for extraneous bits of information, real or imagined, to support their delusion. They will typically resist even hypothetically reviewing their delusion as not accurate. On the other hand, persons with even strongly held beliefs that are not delusional can generally step outside their point of view and discuss their belief, at least in a hypothetical fashion, with more impartiality. In the case of Mr. Clayton, I note that he does not appear to have a ‘magical” view of God’s ability to rescue him from his fate. For example, he indicated in his own words that his religious faith holds that God will likely work through other people such as his defense attorneys to spare his life. In fact, he spontaneously stated that God will not simply “blow a hole in the wall.” He also appeared, again without prompting, to allow for the possibility that God might not “deliver.” He added “if he don’t, it won’t be his fault. I well take my chances with God.” It is my opinion that a truly delusional individual would not so readily admit that his belief might not come true. Another factor that leads me to opine that Mr. Clayton’s views about God are not delusional is the emotion with which he stated, at one point in the interview, that spending years with the threat of capital punishment over his head has been a heavy burden. In fact, it was at this point in the interview that Mr. Clayton showed the most emotion, in my opinion, of the session. We were discussing the efforts of his attorneys to help him avoid the death penalty and the role that my evaluation and those of others might play in that process. Mr. Clayton stated if it [my report] don’t help me then it don’t matter to me. I want an honest evaluation.” He then added “it matters a lot to get C li\ ton 8—29—20 14 Page of 10 off of capital punishment. I’ve had that hanging over my head for years. it would give me some relief in other words. Its been seventeen or eighteen years. You wouldn’t want them to take a needle and put it in your arm and kill you. would you?’ In my opinion, an individual who is delusional about the certainty of God rescuing him from the death penalty would not likely show so much feeling when discussing his fear of the sentence being executed. Finally on this question, I look to some examples of indirect evidence that Mr. Clayton is not delusional in his religious faith. Mr Clayton clearly, throughout a voluminous record, has sought medical care for various illnesses and injuries. At times, admittedly, he has seemed to irrationally reject such care, but in my review of the record it appears that these incidents have tended to be associated with anger that he has over some factor of his life at the moment, For instance, he rejected psychiatric medication prescriptions when he was denied a prescription for an abusable substance he felt he needed. At other times he has declined medical appointments even when suffering from uncomfortable symptoms on account of his reluctance to be shackled for the trip. The record contains several instances of his refusal to accept medical care that would require him to “outcount” and cuff up. However, there are many other instances of Mr. Clayton seeking medical care for problems, both minor and major, and being quite persistent in his efforts to obtain that care. He is quoted in many instances as detailing to staff exactly when he is due to run out of a certain medication and need a refill, and as best as I could check in the record, he would often be accurate down to the day He sought care for his chest pains when he was having heart disease and orthopedic care when he suffered a fractured leg. Admittedly, pain is a great motivator and even some of my most psychotic patients will usually seek relief of their suffering through conventional medical care. Nevertheless, Mr. Clayton certainly did not appear to preferentially rely on any delusional belief that God would rescue him from heart disease or a fractured limb, much less more chronic and inconvenient issues such as psoriasis, hypertension, and ingrown toenails. Likewise, the record indicates that Mr. Clayton is an individual who despite his intellectual and neurologic deficits, can be quite savvy at working the prison bureaucracy to get his needs met, such as a more desirable housing setting or a different cellmate. Again, he does not appear to be someone who simply relies on the magical intervention of God to meet his needs. And he is quite open about his reliance on his attorneys for help, and that God tends to work through people, not by magical (i.e. delusional) means. No one factor in my evaluation can be positive proof that Mr. Clayton’s beliefs about religion never rise higher than simply a person of faith facing a terminal end, but the overall picture in my opinion, to a reasonable degree of medical certainty, is not consistent with a delusional disorder. DISCUSSION OF REFERRAL QUESTION: I was engaged to perform this evaluation in response to a request from the Director of the Department of Corrections to the Director of the Department of Mental Health, to determine “whether there is reasonable cause to believe offender Clayton, who has been sentenced to be executed, has a mental disease or defect such that he lacks the capacity to understand the nature and purpose of the punishment he is under sentence to receive.” Mr. Lombardi’s question includes whether or not Mr. Clayton has a ‘mental disease or defect.” Mr. Clayton has suffered undisputed brain damage from a severe head injury with open brain trauma and brain loss which was that Mr. certainty, medical many years before the index offense. It is my opinion, to a reasonable degree of Major Condition, Medical General Clayton suffers from three mental diseases, namely Dementia Due to a diagnoses these of Each Condition. Medical Depression-Recurrent, and Psychotic Disorder Due to a General That would be could in some cases qualify as a mental disease or defect as defined in Missouri criminal statutes. any single involves threshold second The case. this in question the first threshold in answering Mr. Lombardi’s is lacking in Clayton Mr. one, or a combination of these mental diseases, giving reasonable cause to believe that It is my receive. to sentence capacity to understand the nature and purpose of the punishment he is under opinion, to a reasonable degree of medical certainty, that they do not. a man who often The record indicates that Mr. Clayton has been viewed by many observers over the years, as my opinion to a reasonable references his religious faith and discusses his possible fate in religious terms. It is within the spectrum of degree of medical certainty that his religious beliefs are not psychotic in quality, but are where a mortal setting other any or non-psychotic beliefs of faith not uncommonly seen in prisons, foxholes, who professionals other of reports the ndvidual is facing a high likelihood of danger. Although I have reviewed God about beliefs particular Clayton’s Mr. that may disagree with me on this point, I cannot reach a conclusion would consider delusional a intervening in his execution are representative of a mental disease any more than I fire. brave fighter pilot who has faith that God will carry him through a barrage of anti-aircraft Qla\ton 8-29-2014 Page 9 of 10 g or the fact that he Mr. Clayton does not appear delusional about the fact of Deputy Castetter’s death by shootin crime, and during the of guilt actual his was convicted of that crime and sentenced to death for it. He does dispute the wrong place in was I fair. not Its do. didn’t ing I our interview on June 26, 2014, stated ‘they say I did someth d my hands scrape they words, plain in it put “to added He ipt” at the wrong time and I can prove it in my transcr gun powder had Cole. and found no gun powder residue, no DNA. And they found that crippled guy, Martin alleging was he if n Clayto Mr. residue on his left hand. That crippled guy. But he can still shoot.” When I asked hand. I his on ce eviden bad had some that Mr. Cole did the crime he answered “I don’t know if he did it, but he area this in me to words n’s Clayto Mr. know.” I had some dealings with him. Why he would turn against me, don’t Please crime. the of d accuse falsely being his about belief nal of discussion did not have the character of a delusio very firm degree in their refer to my previous comments about delusional individuals typically being certain to a the possibility of being to delusional point of view, versus persons who are not delusional being open at least before the time the shortly time in wrong. He did acknowledge being in the vicinity of the deputy at some point not uncommon for is ly it Certain . deputy the crime must have occurred. He merely claimed that he did not harm not equate to does denial ce. Such eviden elming overwh of face criminal defendants to deny their guilt even in the er some chamb the death delusional mental illness, Denial is not unusual among defendants and even in with faced that er consid might individuals maintain their innocence of the crime up to the moment of death. One the with clean come and ence consci the imminent certainty of death in moments, one might wish to clear one’s nce innoce claim falsely fact in might person a truth at the end. Clinically, however, I must allow the possibility that decide and proceedings have even as he undergoes execution. Mr. Clayton’s guilt has been for the courts to Clayton’s claims of innocence been conducted on that question over many years of time. It is my opinion that Mr. illness, nor do they. He quotes do not in and of themselves have to equate to the presence of a delusional mental r to determine with certainty manne fic facts in his case that he claims point to his innocence. I know of no scienti in the record before (e.g. Dr. noted been has whether he in fact truly believes he is innocent of the crime. As moment of the crime. In the at d” agitate and d, terrifie , Foster report, 1-8-2000), he may well have been “drunk challenge their guilt, to later such a state, it is not uncommon for murder defendants, even ones who do not dably a factor of clinical judgment apparently honestly claim not to recall committing the act. There is unavoi t him may carry some degree agains ce involved here, but it is my opinion that the positions he takes on the eviden they are not so outside the but ant, irrelev or istent, of accuracy or they may in fact be mistaken, foolish, incons bounds of reality that they are delusional in character. persons which rises to a level of As for “paranoia,” which certainly can be a psychiatric symptom in some certainty, that in this case it does l delusional intensity, it is my opinion, again to a reasonable degree of medica against the death penalty were were who and not. Mr. Clayton alleges that some people who were potential jurors not want them on the jury. He l did Genera ey Attorn nt eliminated from the jury pool. He alleged that the Assista al defendants to allege bias against them stated “they might have hung the jury.” It is not uncommon for crimin ce of that bias. It is my opinion from the prosecutor, and to interpret adverse turns in the proceedings as eviden that he was not given a fair ions n’s allegat that in this case, to a reasonable degree of medical certainty, Mr. Clayto that of a delusional mental than rather ants trial have the quality of such all too common claims by criminal defend illness, tly and ones I do not necessarily dispute, the Finally, the psychotic symptoms Mr. Clayton does endorse presen for many years even prior to the index crime, fleeting visual hallucinations that have been described in the record relevant to his comprehension of the nature and are relatively innocuous and not in my opinion of a character purpose of the punishment he has been sentenced to receive sentence of death for being convicted of shooting and Mr. Clayton, in my opinion, clearly is aware that he is under an unequivocal fashion during the interview of June killing Deputy Castetter. He indicated to me in what I consider he of execution, that this will result in his death, and 26, 2014, that he understands that he is under the threat stress nal nts, with feeling, concerning the emotio communicated this to me with considerable feeling. His comme A ve level, of his appreciation of his potential fate. cogniti as of facing execution are evidence, on a visceral as well and s”, worrie with helmed es Mr. Clayton as “overw mental health note from Dr. Ahmed of March 3. 2004, describ l care in general, aside from some occasional medica with ation cooper His ” ‘apprehensive about execution issues. he over extraneous issues, is another indicator that examples of non-cooperation due to frustration and anger Mr. point ate in his medical care to avoid it. At one appreciates the concept of “death” and wishes to cooper , ‘It S I’m taking (his meds).” When asked why, he replied Clayton told me, “I like to read the instructions of what health.” important to know I’m not taking something harmful to my (‘layton 8-29-2014 Page 1 0 a 10 do wish to advise the reader that traumatic brain injuries can lead to mental syndromes that might in fact fluctuate from time to time in terms of character and/or severity. Stressors such as medical illness, traumatic injury, psychological suffering, etc. can have additive adverse effects on a person’s mental faculties who already suffer from a traumatic brain injury. There are instances in the record where Mr. Clayton is described by medical authorities as “confused” and “irrational” For example, on November 2, 2013, following an outpatient appointment which diagnosed him with a fracture of the leg, Mr. Clayton was documented by a nurse as ‘having difficulty following verbal ques.” It is noted that he was likely in considerable pain and he was taking pain medication (Tramadol) at the time. On November 3, 2013, another nurse’s note documented Mr. Clayton as “confused with He was also documented as having “a difficult time following some questions, laughs inappropriately directions.” Other notes contemporary to care for his broken leg in November of 2013 document that he was “confused at times” and on one occasion he was “not sure what crutches were for.” In Mr. Clayton’s more remote history, Dr. Klinkerfuss noted in his report of 1978 that he was “tangential, had decreased concentration, and showed confusion.” Dr. Foster’s deposition from 9-6-2000 indicates that in his observation, Mr. Clayton “can’t focus on even the simplest of things.” He added that Mr. Clayton has “marked memory deficits for recent events.” He also reported that around family Mr. Clayton would tend to “sit confused, and stare.” It is noted in the same deposition, however, that in Dr. Foster’s opinion Mr. Clayton “understood that he was facing the death penalty and that death is permanent.” I also note that there are many instances in the record where Mr. Clayton carries a very accurate memory for details such as the dates that he needs prescriptions refilled, the types of medical care he needs and prefers, the periods of time that have elapsed since he requested help of various sorts, and his appreciation of the ways in which one can go about manipulating the prison bureaucracy to meet one’s perceived medical needs and living preferences. He has sometimes suffered adverse consequences from his attempts to so manipulate, but mental illness is not required to account for the sometimes self-defeating behavior of prison inmates. And from his comments during our interview, he can apparently learn from past consequences. The bottom line, however, is that my opinion below is offered at the present time to the best of my clinical ability, but the future mental status of an individual who is 74 years of age, who suffers from a traumatic brain injury, and who is chronically challenged with a number of medical problems cannot be predicted with certainty. FORENSIC CONCLUSION: It is the opinion of this examiner, to a reasonable degree of medical certainty, that there is not reasonable cause to believe offender Clayton, who has been sentenced to be executed, has a mental disease or defect such that he lacks the capacity to understand the nature and purpose of the punishment he is under sentence to receive. Respectfully submitted. James B. Reynolds, M.D., F.A.P.A. Diplomate, General and Forensic Psychiatry, ABPN Certified Forensic Examiner, Missouri DMH Northwest Missouri Psychiatric Rehabilitation Center PAL IN THE MISSOURI SUPREME COURT CECIL CLAYTON, Relator, . p. A wr- vs. Cause No. 3i? GEORGE LOMBARDI, DIRECTOR OF MISSOURI Capital Case DEPARTMENT OF CORRECTIONS, do 4/ Respondent. 7/30 *1 594; 3263/2? 00,9 WRIT SUMMARY 1? - ?lly/?000 Relator relief under Missouri Supreme Court Rules 94 and 87. As required by Rule Relator attaches this Writ Summary to his Petition for Writ of Mandamus, or Alternatively, Petition for Declaratory Judgment, ?led herein: 1. The Relator in this case is Cecil Clayton, who is incarcerated at Potosi Corr. Center, Rt. 2, Box 2222, Mineral Point, MO 63660, for ?rst degree murder. Relator?s counsel is Jeannie Willibey, 920 Main, Ste. 500, Kansas City, MO 64105, and Pete Carter, 1000 W. Nifong, Bldg. 7, Ste. 100, Columbia, MO 65203. 2. The Respondent in this action is George Lombardi, Director, Missouri Dept. of Com, PO. Box 236, Jefferson City, MO 65102. Respondent?s attorney is Mr. Chris Koster, Attorney General, PO. Box 899, Jefferson City, Missouri 65102. SCANNED 3. The underlying action involved Relator?s sentence of death for ?rst degree murder. 4. The action of the Respondent being challenged is the failure of Respondent to invoke Section 552.060, despite Relator?s counsel having provided Respondent with documentation suf?cient to establish reasonable cause to believe that Relator is incompetent to be executed. 5. The relief sought by Relator is for this Court to issue a writ of mandamus directing Respondent to invoke Section 552.060, and not set an execution date. In the alternative, Relator requests the Court to enter a judgment declaring that Section 552.060, is unconstitutional. WHEREFORE, for the reasons stated in Relator?s Petition ?led herewith, Relator respectfully requests this Court to issue a writ of mandamus directing the Director of the Missouri Department of Corrections to invoke the provisions of Section 552.060, and not set an execution date. In the alternative, Relator requests the Court to enter a judgment declaring that Section 552.060, is unconstitutional. Respectfully Submitted, annie Willibey, 0 Bar Attorney for Appellant 920 Main, Suite 500 Kansas City, MO 64105 Tel: 816-889-7699 Fax: 816?889-2001 Pete Carter, #31401 Attorney for Movant 0 0 Of?ce of the Public Defender {If 7 Woodrail Center 1000 West Nifong, Bldg. 7, Ste. 100 Columbia, MO 65203 Phone: 573-882-9855 Fax: 573-882-9468 Pol? M1212 Certi?cate of Service I certify that a true and correct copy of the above and foregoing was mailed, postage prepaid, to: Mr. Chris Koster, Of?ce of the Attorney General, PO. Box 899, Jefferson City, MO 65102, telephone number: 573-751-3321, and Mr. George Lombardi, Director, Missouri Department of Corrections, 2729 Plaza Drive, PO. Bonk?236, Jefferson City, MO 65102, telephone number: 573-751- 2389, on this [5 day of 2009. SJeannie Willibey IN THE MISSOURI SUPREME COURT owe? 355?? CECIL CLAYTON, JO 6@ 04? ?3 4/4? Relator, efd?ogzr out?: 1' T5 vs. <99 .?90 Cause No. -- 3' ?000) GEORGE LOMBARDI, Capital Case DIRECTOR OF MISSOURI DEPARTMENT OF CORRECTIONS, Respondent. PETITION FOR WRIT OF MANDAMUS TO COMPEL THE DIRECTOR OF THE MISSOURI DEPARTMENT OF CORRECTIONS TO INVOKE THE PROVISIONS OF SECTION 552.060. RSMO AND MOTION NOT TO SET AN EXECUTION DATE. OR IN THE ALTERNATIVE. PETITION FOR DECLARATORY JUDGMENT FINDING THAT SECTION 552.060. RSMO IS UNCONSTITUTIONAL Comes now Relator, Mr. Cecil Clayton, by and through undersigned counsel, and, pursuant to Missouri Supreme Court Rule 94, petitions this Honorable Court for a writ of mandamus directing the Director of the Missouri Department of Corrections to invoke the provisions of Section 552.060, and moves this Court not to set an execution date, pending a determination of Mr. Clayton?s competency to be executed. In the alternative, pursuant to Missouri Supreme Court Rule 87, Mr. Clayton requests the Court to enter a judgment declaring that Section 552.060, is unconstitutional. In support of this Petition, Mr. Clayton alleges as follows: Relevant Facts 1. Mr. Clayton was convicted in the Circuit Court of Jasper County of ?rst degree murder and sentenced to death. State v. Clayton, 995 468, 472 (Mo. banc 1999). His conviction and sentence were af?rmed on direct appeal. Clayton, 995 at 484. The Of?ce of the Attorney General represented the state at trial (along with the local prosecutor) (Tr. II) and in the direct appeal. Id. at 472. 2. Mr. Clayton timely ?led a Rule 29.15 post-conviction motion, which was denied. Clayton v. State, 63 201, 203 (Mo. banc 2001). The denial of post?conviction relief was af?rmed on appeal. Id. at 210. The Of?ce of the Attorney General represented the state in the post-conviction case in Circuit Court (PCR Tr. 2) and on appeal. Id. at 203. 3. Thereafter, Mr. Clayton ?led a petition for writ of habeas corpus in federal district court, which was denied. Clayton v. Roper, 515 F.3d 784, 789 (8th Cir. 2008). The Eighth Circuit af?rmed the denial of habeas relief. Id. at 793. The Of?ce of the Attorney General represented the state in this proceeding. Id. at 786. 4. During the guilt and penalty phases of his capital jury trial, Mr. Clayton adduced evidence regarding his mental health, including the following: Mr. Clayton suffered a head injury as a result of a sawmill accident in 1972. Clayton v. State, 63 201, 204 (Mo. banc 2001). Mr. Clayton?s brother, Marvin Clayton, testi?ed that after the injury, Mr. Clayton was changed. Id. He broke up with his wife, began drinking alcohol and became impatient, unable to work and more prone to violent episodes. Id. A defense expert testi?ed that due to his brain injury, which involved a loss of 7.7 percent of the brain, which equals 20 percent of the frontal lobe (PCR Tr. 227), Mr. Clayton was incapable of deliberating, planning, or otherwise coolly re?ecting on a murder when agitated. Id. During the penalty phase, another brother, Jerry, was called to testify as to Mr. Clayton?s childhood and life as a part-time pastor and evangelist prior to the sawmill accident and, after the accident, his marital breakup, drinking alcohol and troubling behavior. Id. 5. During the state post-conviction proceeding, Mr. Clayton adduced additional evidence concerning his mental health, which included more detail regarding the 1972 sawmill accident. Id. at 205. A piece of wood broke off the log he was working on and was thrown into his head. Id. The piece became imbedded inside his skull and could only be removed surgically. Id. Although Mr. Clayton spent a considerable amount of time recuperating in the hospital after the accident, he did not receive any long-term therapy. Id. Thereafter, Mr. Clayton was unable to work in the timber business or consistently maintain other types of full time employment. Id. Mr. Clayton quit looking for full time employment. Id. He was only able to work part time occasionally and eventually applied for and received social security disability bene?ts. Id. Mr. Clayton?s personal life deteriorated. Id. Although he continued traveling around preaching and singing with his family for a while, he eventually quit. Id. He started drinking again. Id. He was violent and quick-tempered with members of his family. Id. His wife left him, and they eventually divorced. Id. In the state post?conviction proceeding, Mr. Clayton called Dr. Daniel Foster as a witness. Id. at 209. He testi?ed that Mr. Clayton was not competent to proceed during his trial. Id. Mr. Clayton also called Mr. Jeff Tichenor, a physician?s assistant who treated Mr. Clayton from January through March 1997 while he was in jail for the charged homicide. Clayton v. Luebbers, 2006 WL 1 128803, p. 12 (W.D. Mr. Tichenor advised trial counsel to obtain a evaluation for Mr. Clayton and told trial counsel of Mr. Clayton?s including poor hygiene, agitation, and reports of Mr. Clayton smearing feces on the wall of his cell. Id. The post-conviction claim that Mr. Clayton was not competent to proceed during trial was rejected by the motion court and the Missouri Supreme Court. Clayton v. State, supra at 209. 6. During the federal habeas proceeding in the federal district court, Mr. Clayton asserted that he was not competent to be executed. Clayton v. Luebbers, 2006 WL 1128803 (W.D. Mo). 1n denying the allegation without a hearing, the federal district court relied solely on the report of Dr. Lea Ann Preston, who was appointed to examine Mr. Clayton. Id. at 44. Dr. Preston found that Mr. Clayton was aware of the fact that he had been convicted of murdering Deputy Castetter and that he had been sentenced to die (Ex. 20, p. A68). However, Dr. Preston?s report was dated January 18, 2005 (Ex. 20, p. A37). At the time that she evaluated Mr. Clayton, she would not have considered the holding in Panetti v. Quarterman, infra, 127 2842 (2007), which was issued two years later in 2007. The Panetti Court held that a prisoner?s delusional belief system was relevant to ?comprehen[sion]? or ?aware[ness]? if the delusions so impair the prisoner?s concept of reality that he cannot reach a rational understanding of the reason for the execution. Id. at 2861. The Court held that prisoner?s awareness of the State?s rationale for an execution is not the same as a rational understanding of it? and it was not enough for a condemned prisoner to be able to identify the stated reason for his execution. Id. at 2862. It appears from Dr. Preston?s report that, in considering the issue of competency to be executed in 2005, she considered only whether Mr. Clayton was able to identify the stated reason for his execution. (Ex. 20, p. A68). It does not appear that she considered the issue in any more depth, including whether religious delusions and hallucinations suffered by Mr. Clayton affected his understanding of the reason for the death sentence or whether the sentence would be carried out. This is true, even though she acknowledged Mr. Clayton?s mental health issues, including hallucinations respecting the death sentence. Dr. Preston included the following in her report: Mr. Clayton appeared to be easily distracted, and his attention and concentration appeared to waiver. His thought process seemed disorganized, as he would offer tangential explanations to interview questions, and interj ect irrelevant information. He did not appear to be acutely However, he stated that he sees ?specks on the walls that look like they?re moving? and ?visions? that look like ?a being.? The visions reportedly disappear when he approaches them. Mr. Clayton also reportedly has heard voices since his sawmill accident. He stated, ?Sometimes it?s a good voice and calms me down,? but at other times, he hears ?Satan?s voice.? He said that Satan voice tells him, ?They will kill you,? referring to the death penalty. (Ex. 20, p. A52). Later, as to Mr. Clayton?s emotional functioning, Dr. Preston wrote, ?His pro?le is indicative of someone who appears to experience hallucinations and extreme suspicion.? (Ex. 20, p. A59). Based on the above, undersigned counsel asserts that had Dr. Preston had the bene?t of the Panettz' decision at the time of her evaluation of Mr. Clayton, she would have found that Mr. Clayton was not competent to be executed.1 Undersigned counsel attempted to speak with Dr. Preston prior to the ?ling of this Petition. However, pursuant to 28 CFR Sec. 16.22, she was prohibited from disclosing information regarding her evaluation of Mr. Clayton. If a hearing is In addition to the above, Dr. Preston was not able to consider whether Mr. Clayton had any delusions regarding the underlying murder. (Ex. 20, p. A67). Speci?cally, she was prohibited from questioning Mr. Clayton regarding his version of the offense or reviewing investigative materials regarding the offense. (Ex. 20, p. A67). ?These two types of information are critical because they can reveal whether an individual possesses a rational appreciation of the evidence in the case, de?cits in the ability to recall what occurred, or delusional beliefs about the offense.? (Ex. 20, p. A67). Delusional beliefs about the offense can affect one?s perception of the sentence for the offense. As such, along with not having the bene?t of the Panetti decision, Dr. Preston also did not have all relevant factual information in reaching her determination that Mr. Clayton was competent to be executed. Dr. Preston wrote: . .without these two types of information, I am unable to state with certainty that he has a rational appreciation of the evidence in his case and that he does not possess delusional ideation regarding the offense.? (Ex. 20, p. A67). Because Dr. Preston is employed with the US. Department of Justice, Federal Bureau of Prisons, Dr. Preston also did not review the Missouri statute, granted, counsel can then obtain a court order or subpoena, and Dr. Preston expects that she would then be able to testify for either party regarding her evaluation. Section 552.060, or make a determination of Mr. Clayton?s competency to be executed under the standard set forth in that state statute. Dr. Preston was also asked to determine whether Mr. Clayton was suffering from a mental disease or defect and whether he was competent to proceed in his federal habeas case. (Ex. 20, p. A37). She found that Mr. Clayton was suffering from a mental disease or defect and that he speci?cally met the criteria for: cognitive disorder, not otherwise speci?ed; major depressive disorder, in remission with anti-depressant medication; alcohol dependence, in a controlled environment; and disorder, with hallucinations, due to traumatic brain injury. (EX. 20, pp. A65-66). Ultimately, she found that Mr. Clayton was likely not competent to proceed in his federal habeas proceeding (Ex. 20, p. In reaching that determination, she considered many of Mr. Clayton?s cognitive de?cits, including the following: [H]is performance on the and his presentation during clinical interviews illustrated that his tangential speech, poor thought inhibition, and poor reasoning skills will negatively impact his ability to relay information to his defense counsel in a coherent 2 This illustrates deterioration in Mr. Clayton?s mental health, since it had been previously determined that trial counsel was not ineffective for failing to adjudicate Mr. Clayton?s competency to stand trial. Clayton v. State, 63 201, 209 (Mo. banc 2001). and meaningful manner. Similarly, it is expected that these cognitive de?cits will also impair his ability to testify in a relevant manner. As described above, Mr. Clayton demonstrated extreme dif?culty remaining focused during clinical interviews and well as during the administration of structured assessment instruments. His responses to queries were often irrelevant and tangential. When re- directed, he would attempt to respond relevantly but generally would lose focus and begin discussing irrelevant topics again. (Ex. 20, p. A66). Although Dr. Preston found that Mr. Clayton was likely not competent to proceed in the federal habeas case, the district court denied the claim without a hearing. Clayton v. Roper, 515 F.3d 784, 790 (8th Cir. 2008). 7. The issue of competency to be executed was not raised in the appeal from the denial of the federal habeas case (without a hearing). Clayton v. Raper, supra. The Eighth Circuit did review the issue of whether the district court erred in denying, without a hearing, Mr. Clayton?s claim that he was not competent to proceed in the' federal habeas case. Id. at 789-791. The Eighth Circuit held that the district court ?placed more emphasis on the objective ?ndings from the tests [Dr. Preston] performed than on her ultimate conclusion? and ?we cannot say de?nitively that a mistake has been made.? Id. at 791. 8. Subsequently, Mr. Clayton?s federal attorney contacted the Missouri State Public Defender?s Of?ce. In September 2008, undersigned counsel retained Dr. William Logan, M.D., and Dr. Daniel Foster to evaluate Mr. Clayton for purposes of determining whether he was competent to be executed. Dr. Logan and Dr. Foster issued ?ndings that Mr. Clayton was not competent to be executed. (Exs. 1, 2, pp. Al-4, A5-6). 9. Speci?cally, Dr. Logan found that: - Mr. Clayton has experienced several episodes of head trauma, the most signi?cant of which occurred in 1972 as a result of a sawmill accident, after which a part of Mr. Clayton?s right frontal lobe was removed; - Mr. Clayton has an established diagnosis of dementia; - Mr. Clayton?s brain damage, including the missing part of his right frontal lobe, constitutes a mental defect creating of signi?cant memory impairment, decreased judgment, and decreased ability to process information or to grasp abstract concepts; - Mr. Clayton?s thought process is rambling and disorganized; - In addition, Mr. Clayton has a mental disease, a delusional disorder consisting of persecutory and grandiose ideas that directly focus on his pending execution; - Speci?cally, despite knowing that he is at the end of his appeals, he ?rmly believes that God will intervene, save him from execution, and free him from the prison, so that he can preach the gospel; and 10 - Mr. Clayton also believes that his conviction was the result of a conspiracy by the legal system against him and that someone else killed Deputy Chirstopher Castetter. (Ex. 1, pp. Al-2). Dr. Logan concluded that Mr. Clayton?s delusions, which result from a mental defect and disease, prevent him from having a rational understanding or comprehending the meaning and purpose of his punishment. (Ex. 1, p. A2). Dr. Logan found: While Mr. Clayton knows the State plans to execute him for killing Deputy Castetter, he believes his legal situation is instead of test of his faith and that God will not allow the punishment to occur as God has chosen for him another mission. Hence, he has no concept of a need for clemency, or capacity to understand matters in extenuation, arguments for executive clemency or rational reasons why the sentence should not be carried out. (Ex. 1, pp. A2-3). 10. Dr. Foster found that: - Mr. Clayton suffered several head injuries, the most severe of which occurred as a result of the sawmill accident on January 26, 1972, resulting in significant frontal lobe damage; The frontal lobe damage, as a result of the sawmill accident, caused subsequent cognitive impairment with signi?cant de?cits in judgment, problem solving, mental ?exibility, processing speed, and verbal disinhibition; 11 - Depressive episodes accompanied by insomnia and visual and verbal hallucinations have also been reported repeatedly in the ensuing thirty-six years, along with delusional and paranoid qualities; - Despite the approaching date of execution, Mr. Clayton remains resolute that he is called to preach the gospel and will be released from prison by a miraculous act of God; and - Mr. Clayton continues to practice his gospel singing in preparation for his ministry once freed, rather than bothering with requests for clemency or extenuation concepts beyond him perceptually, not intellectually. (Ex. 2, pp. A5-6). Dr. Foster concluded that Mr. Clayton?s impairment is suf?ciently profound as to render him incompetent to be executed. (Ex. 2, p. A6). 11. On November 20, 2008, undersigned counsel wrote to Mr. Larry Crawford, then Director of the Missouri Department of Corrections, and asked that Mr. Crawford invoke the provisions of 552.060, (Ex. 21, pp. A69-7l). l2. Pursuant to Section 552.060, No person condemned to death shall be executed if as a result of mental disease or defect he lacks capacity to understand the nature and purpose of the punishment about to be imposed upon him or matters in extenuation, arguments for executive clemency or reasons why the sentence should not be carried out. Section 552.060.1, 12 Section 552.060, requires the director of the Missouri Department of Corrections to take the following actions, if he has reasonable cause to believe that any inmate, who has been sentenced to death, has a mental disease or defect excluding ?tness for execution: notify the governor who shall forthwith order a stay of execution of the sentence if there is not suf?cient time between noti?cation and time of execution for a determination of the mental condition of such person to be made in accordance with the provisions of this section without such stay. The director shall also, as soon as reasonably possible, notify the director of the department of mental health and the prosecuting or circuit attorney of the county where the defendant was tried, the attorney general and the circuit court of the county where the correctional facility is located. Section 552.060.2, After the noti?cation, set forth above, the circuit court of the county is required to conduct an inquiry into the mental condition of the offender after ?rst granting any of the parties entitled to noti?cation an examination by a physician of their own choosing on proper application made within ?ve days of such noti?cation. Section 552.060.3, 13. Dr. Logan?s and Dr. Foster?s ?ndings, referred to above, were attached to undersigned counsel?s letter to Mr. Crawford. 13 14. Several of Mr. Clayton?s mental health and medical records were also attached, including: Neurological Surgery report by Dr. John Tsang dated 1/26/72 (Ex. 3, p. Neurological Surgery report by Dr. Tsang dated 1/26/72 (Ex. 4, p. St. John?s Hospital Discharge Summary dated 2/3/72 (Ex. 5, p. Letter from Dr. George Klinkerfuss, Spring?eld Neurological Associate, Inc. to Mr. Dale Robertson, Counselor, dated 1/30/78 (Ex. 6, p. Statement of Dr. Klinkerfuss stamped ?received? by Disability Determinations on 4/24/78 (Ex. 7, p. Evaluation dated 1/24/79, Ozark Clinic, Inc. (Ex. 8, p. Letter from Dr. Klinkerfuss to Kathy Stephens, Counselor, dated 1/3 1/ 80 (Ex. 9, p. Letter from Dr. Klinkerfuss to Paul Counselor, dated 7/ 16/80 (Ex. 10, p. Letter from Dr. Klinkerfuss to Mark Martin, Attorney at Law, dated 9/1/83 (Ex. 11, p. Letter from Dr. Douglas A. Stevens, Southwestern Human Services Institute, Inc., to Mark Martin dated 10/31/83 (Ex. 12, p. Evaluation, and Associates, Inc., dated 2/9/84 (Ex. 13, p. Letter from Dr. James Bright, and Associates, Inc., to Mark Martin dated 3/20/84 (Ex. 14, p. Department of Health and Human Services, Decision of 4/6/ 84 (Ex. 15, p. A26). These records documented the removal of a portion of Mr. Clayton?s right frontal lobe in January 1972 and the deterioration of Mr. Clayton?s mental health after the removal of his right frontal lobe. The records further documented Mr. Clayton?s attempts to obtain help for his mental problems and his issues, which included: anxiety and nervousness, depression, irritability and 14 agitation, hallucinations and delusions, paranoia, and confusion. (Exs. 6, 7, 8, 10, 11, 12, 13, 14, pp. A12-14, 17-25). Dr. Douglas Stevens wrote in October 1983: [Mr. Clayton] has sustained a head injury that has resulted in brain damage. This has not only impaired sensory, motor and cognitive functions, but also has resulted in a component, best described as a schiZOphrenic disorder, paranoid type. His most severe impairment is his chronic brain (12.02), with demonstrated deterioration in intellectual functioning, manifested by marked memory defect for recent events (memory quotient of 62) and impoverished, slowed perseverative thinking with confusion. Also there is a very labile affect. Secondary to this he has a disorder (12.03) characterized by thought disorganization, depression, agitation, hallucinations and delusions, regressive behavior, and some inapprOpriateness of affect. He has had both suicidal and homicidal impulses, so far controlled, though under pressure they would be expected to exacerbate. He is best left alone and allowed to exist at his present marginal level of functioning. (Ex. 12, p. A22). The records also documented various medications prescribed to Mr. Clayton, including Phenobarbital, Triavil, Dilantin, Thorazine, Inderal, and a disability determination based on Mr. Clayton?s issues after the accident. (Exs. 10, 11, 13, 15, pp. A17-18, 23-24, 26-28). 15 15. Undersigned counsel asserted in the letter to Mr. Crawford that these records, in addition to Mr. Clayton?s delusions that God would miraculously save him from the upcoming execution, demonstrated reasonable cause to believe that Mr. Clayton has a mental disease or defect excluding ?tness for execution. Counsel requested a meeting with Mr. Crawford, so that they could bring additional records and show a MRI scan of Mr. Clayton?s brain, which depicted the missing portion of Mr. Clayton?s right frontal lobe. (Ex. 21, pp. A69-70). 16. On December 11, 2008, Mr. Crawford responded to counsel?s letter and wrote that the records sent were being reviewed. 17. Undersigned counsel did not hear again from Mr. Crawford. In January 2009, Governor Nixon nominated Mr. George A. Lombardi as Director of the Missouri Department of Corrections. Thereafter, on March 11, 2009, counsel wrote to Mr. Lombardi, and asked that he invoke the provisions of 552.060, (Ex. 22, pp. A72-74). Counsel requested that Mr. Lombardi review Mr. Clayton?s case and respond by May 1, 2009 to let counsel know if he would consider invoking Section 552.060, or to meet to discuss Mr. Clayton?s case. (Ex. 22, p. A74). 18. Undersigned counsel attached all the aforementioned documents to the letter to Mr. Lombardi. In addition, counsel attached a copy of a slide from the MRI scan taken at St. John?s Regional Hospital on June 17, 2004, which depicts the missing portion of Mr. Clayton?s right frontal lobe. (Ex. 16, p. A29). Slides from an earlier MRI scan of Mr. Clayton?s brain are also on ?le with this Court in 16 State v. Cecil Clayton, 995 468 (Mo. banc 1999), which was Mr. Clayton?s direct appeal case. Those slides also depict the missing portion of his right frontal lobe. State v. Cecil Clayton, SC No. 80545, Def. Exs. J, K, and I. 19. Undersigned counsel also attached af?davits from: the attorneys that represented Mr. Clayton in the state post-conviction proceedings, Ms. Rebecca Kurz and Ms. Laura Martin; and the mitigation specialist that worked with Mr. Clayton in the state post-conviction proceeding, Ms. Julie Eilers. (Exs. 17, 18, 19, pp. A30-31, 32-34, 35?36). Each set forth her observations of Mr. Clayton?s cognitive de?cits and how that affected his understanding of his case, his conviction, and his sentence. 20. After counsel received no response from the Director of the Missouri Department of Corrections, she left two telephone messages for the director, one on May 1, 2009, and one on May 11, 2009. On May 12, 2009, Ms. Gail Vasterling called on behalf of the director and stated that no meeting was necessary and that the director would make a decision. Counsel told Ms. Vasterling that an execution date could be set soon, but Ms. Vasterling would not state when the director would make a decision. As of the date of the ?ling of this motion, counsel has not heard back from the director or his of?ce. Relief Sought 21. Mr. Clayton ?rst seeks to have this Court issue a writ of mandamus directing the Director of the Missouri Department of Corrections to ful?ll his duties under Section 552.060, and invoke the provisions of Section 17 552.060, such that the listed parties (Governor, Department of Mental Health, Circuit Court of Washington County) are noti?ed and a hearing is held on Mr. Clayton?s competency to be executed. 22. Alternatively, Mr. Clayton seeks to have this Court declare that the provisions of Section 552.060, are unconstitutional as applied in his case. The Director of the Missouri Department of Corrections, as a member of the Executive Branch (whose members represented the State in seeking to uphold the death sentence in Mr. Clayton?s case), has a con?ict of interest in determining whether there is reasonable cause to believe that Mr. Clayton has a mental disease or defect excluding ?tness for execution. See Ford v. Wainwright, 106 2595, 2605 (1986) (US. Supreme Court held that the most striking defect in the procedures of the Florida statute concerning competency to be executed was the State?s placement of the decision wholly within the executive branch.) 23. Mr. Clayton further seeks to have this Court order a hearing on the issue of Mr. Clayton?s competency to be executed and not set an execution date, until such time as a hearing is held and a decision is made regarding Mr. Clayton?s competency to be executed. Why Writ Should Issue The Director of the Missouri Department of Corrections is required to invoke the provisions of Section 552. 060, in this case. 24. Section 552.060, requires the director to take the following actions, if he has reasonable cause to believe that any inmate, who has been 18 sentenced to death, has a mental disease or defect excluding ?tness for execution: immediately notify the governor who shall forthwith order a stay of execution of the sentence; notify the director of the department of mental health and the prosecuting or circuit attorney of the county where the defendant was tried; and notify the attorney general and the circuit court of the county where the correctional facility is located. Section 552.060.2, After noti?cation, the circuit court of the county shall conduct an inquiry into the mental condition of the offender. Section 552.060.3, 25. In the case at bar, Mr. Clayton provided the Director of the Missouri Department of Corrections with two experts? opinions that Mr. Clayton is not competent to be executed. (Exs. 1, 2, pp. A1-4, 5-6). Mr. Clayton also provided the director with a copy of a MRI scan, which establishes that Mr. Clayton is missing part of his right frontal lobe (Ex. 16, p. A29). Mr. Clayton also provided records that document Mr. Clayton?s history of mental problems, which included: anxiety and nervousness, depression, irritability and agitation, hallucinations and delusions, paranoia, and confusion. (Exs. 3-15, pp. Mr. Clayton also provided records that document various medications prescribed to him in the past, including Phenobarbital, Triavil, Dilantin, Thorazine, Inderal, and a disability determination based on Mr. Clayton?s issues after the sawmill accident. (Exs. 10, 11, 13, 15, pp. A17-18, 23-24, 26?28). The experts? recent ?ndings, along with documentation of Mr. Clayton?s mental health history, were suf?cient to invoke the provisions of Section 552.060, 19 (Exs. 1-16, pp. Al-29). The director, therefore, was required to notify the listed parties, so that the circuit court would then conduct a hearing regarding Mr. Clayton?s competency to be executed and make a determination on the issue. 26. Further, in Mr. Clayton?s prior state cases, competency to be executed was not addressed. State 12. Clayton, 995 468 (Mo. banc 1999); Clayton v. State, 63 201 (Mo. banc 2001). In addition, there has been no evidence adduced heretofore of Mr. Clayton?s delusions as set forth in the ?ndings of Dr. Logan and Dr. Foster or of any expert?s opinion that Mr. Clayton is not competent to be executed. In light of the above, the Director, by failing to invoke the provisions of Section 552.060, has not ful?lled his duties under Section 552.060, In addition to the above, Mr. Clayton also has a right to a hearing, pursuant to the 8?h and 14?h Amendments to the US. Constitution. 27. In Ford v. Wainwright, the Supreme Court held that the Eighth Amendment prohibited in?iction of the death penalty on a prisoner who is insane. 477 US at 410. The Court also held that the Eighth and Fourteenth Amendments require that a prisoner receive procedural due process in the determination of his competency. Id. at 417, 424. In considering what process is due a prisoner, Justice Powell?s concurrence is the controlling Opinion, as it offered a more limited holding than the plurality opinion authored by Justice Marshall. Panetti v. Quarterman, 127 2842, 2856 (2007). 20 Justice Powell concluded that a prisoner who has made ?a substantial threshold showing of insanity? must have a fair hearing and an opportunity to be heard. Ford, 477 U.S. at 424. In ?nding the Florida statute in question to be de?cient, Justice Powell observed that the statutory procedure invited arbitrariness and error because the prisoner?s sanity was determined solely on the basis of examinations performed by state-appointed experts. Id. To satisfy due process concerns, the prisoner must be allowed to explain the inadequacies of the state?s examination and offer contrary medical evidence. Id. The basic requirements of due process include an opportunity to submit ?evidence and argument from the prisoner?s counsel, including expert evidence that may differ from the State?s own examination.? Id. at 427. The plurality Opinion concluded that the prisoner or his counsel must be permitted to present material relevant to his sanity, and the statutory scheme must provide an opportunity to challenge or impeach the state-appointed expert?s opinion. Id. at 415. Without this protection, the fact ?nder cannot be expected to reach a reliable decision as to the prisoner?s competency. Id. Finally the decision cannot rest wholly with the Executive Branch. Id. at 416. In the Florida scheme that the Court held invalid in Ford, as here, the ultimate decision maker is a member of the Executive Branch. Id. In Ford, the ultimate decision maker was the Governor, the head of the executive branch whose members ?have been responsible for initiating every state of the prosecution of the condemned from arrest through sentencing.? Id. For this 21 reason, the procedure fails to provide the ?neutrality that is necessary for reliability in the fact-?nding proceeding.? Id. In the case at bar, a and a have opined that Mr. Clayton is not competent to be executed. Mr. Clayton is entitled to present the experts? testimony, along with other evidence material to his sanity, to a neutral ?nder of fact. Further, Section 552.060, similarly to the statute deemed defective in Ford, provides the ultimate decision to be made by a member of the Executive Branch. The Director of the Missouri Department of Corrections is appointed by the Governor of the State of Missouri and is a member of the Executive Branch. By providing two experts recent ?ndings that he is presently not competent to be executed, records that document his problems, and a MRI scan depicting his missing right frontal lobe, Mr. Clayton has met the requisite preliminary showing that his current mental state would bar his execution. 28. Similar to the petitioners in the Ford and Panetti cases, Mr. Clayton has provided expert ?ndings that he is not competent to be executed. In fact, Mr. Clayton has provided more than what Mr. Panetti initially provided in order to obtain a hearing Mr. Panetti ?led a motion to determine his competency to be executed and attached a letter and a declaration from two individuals, a and a law professor. Panetti, 127 at 2850. Mr. Clayton has provided ?ndings that he is not competent to be executed by two experts, a and a (Exs. 1, 2, pp. A1-6). 22 29. Mr. Clayton?s case is also similar to the facts underlying the Ford and Panetti cases, in that Mr. Clayton?s delusions prevent him from rationally understanding his sentence. The underlying facts of Ford included that after his death sentence was imposed, Ford began to manifest gradual changes in behavior. Ford, 477 US. at 402. They began as an occasional peculiar idea but became more serious over time. Id. Ford developed an increasingly pervasive delusion that he had become the target of a conspiracy by the Ku Klux Klan and others, designed to force him to commit suicide. Id. Counsel for Ford hired two doctors, Dr. Amin and Dr. Kaufman. Id. at 402-403. Dr. Kaufman concluded that Ford had no understanding of why he was being executed, made no connection between the homicide of which he had been convicted and the death penalty, and believed that he would not be executed because he owned the prisons and could control the Governor through his mind waves. Id. at 403. In the case at bar, Mr. Clayton also has suffered from a deterioration of his mental faculties since his incarceration under sentence of death. Mr. Clayton?s continued deterioration has led to deeply-held delusions, including that his conviction was the result of a conspiracy and someone else killed Deputy Castetter and that God will intervene and save him because God wants him to be released to preach the gospel. (Exs. 1, 2, pp. A2, 6). Mr. Clayton perceives his legal situation as a test of his faith in God. He has no real understanding that he has been sentenced to death because the State seeks retribution for the death of Deputy 23 Castetter. He perceives his sad life as imposed on him by God, who is testing him and making him suffer before setting him free to preach the gospel. Similarly to Mr. Ford, Mr. Clayton?s mental health issues (the removal of part of his frontal lobe, dementia, and delusional disorder) prevent him from having a rational understanding of the meaning and purpose of his punishment. (Exs. l, 2, 16, pp. A1-4, 5-6, 29). 30. In Panetti v. Quarterman, the Court held that Panetti met the requisite preliminary showing that his current mental state would bar his execution. Id. at 2855. Panetti filed a renewed motion to determine his competency to be executed and attached a letter and a declaration from two individuals, a and a law professor. Id. at 2850. The federal district court held an evidentiary hearing. Id. at 2851. Panetti called a a professor, and two and the State called two and three correctional of?cers. Id. Panetti was found not competent to be executed by four experts. Id. at 2859. Their testimony included that Panetti had schizo?affective disorder, and although he understood that the State was saying it wanted to execute him for the murders, 'he believed in earnest that the stated reason from the State was a sham and the State really wanted to execute him to keep him from preaching. Id. The State?s experts acknowledged his mental problems but found him competent to be executed. Id. The US. Supreme Court wrote that there was much in the record to support that Panetti suffered from delusions. Id. at 2860. The legal inquiry was whether those delusions rendered him incompetent to be executed. Id. The Court of 24 Appeals, Fifth Circuit held that they could not. Id. The U.S. Supreme Court concluded that the Fifth Circuit?s analysis was too restrictive, rested on a flawed interpretation of Ford, and did not afford Panetti the protections guaranteed by the Eighth Amendment. Id. at 2860. The Court explained: The Court of Appeals? standard treats a prisoner?s delusional belief system as irrelevant if the prisoner knows that the State has identi?ed his crimes as the reason for his execution. Yet the Ford Opinions nowhere indicate that delusions are irrelevant to ?comprehen[sion]? or ?aware[ness]? if they so impair the prisoner?s concept of reality that he cannot reach a rational understanding of the reason for the execution. If anything, the Ford majority suggests the opposite. Id. at 2861. The Court held that prisoner?s awareness of the State?s rationale for an execution is not the same as a rational understanding of it. Ford v. Wainwright does not foreclose inquiry into the latter.? Id. at 2862. Although the Court did not attempt to provide a de?nite rule to govern issues of competency to be executed, the Court did indicate that it is not enough for a condemned prisoner to be able to identify the stated reason for his execution: to be competent, there must be a demonstration that he has some rational understanding of the ?real interests the state seeks to vindicate.? Id. at 2861. The Court observed that executing an insane person serves no retributive purpose: 25 [I]t might be said that capital punishment is imposed because it has the potential to make the offender recognize at last the gravity of his crime and to allow the community as a whole, including the surviving family and friends of the victim, to af?rm its own judgment that the culpability of the prisoner is so serious that the ultimate penalty must be sought and imposed. The potential for a prisoner?s recognition of the severity of the offense and the objective of community vindication are called into question, however, if the prisoner?s mental state is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole. Id. at 2861. The US. Supreme Court also held that the Due Process Clause of the Fourteenth Amendment required the state to provide, at a minimum, an opportunity to submit evidence and argument from the condemned person?s counsel and expert mental health evidence which may differ from whatever mental health examination the prosecutors or ailers might tender. Id. at 2856. The Court remanded the case for further ?ndings consistent with its opinion. Id. at 2863. In the case at bar, although Mr. Clayton may be able to identify the stated reason for his execution, his delusions have so impaired his concept of reality that 26 he is not able to rationally understand his sentence. (Exs. 1, 2, pp. A1-6). His perception of reality is so distorted by mental illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole. He has no rational understanding of the real interests the State seeks to vindicate. Pursuant to Ford and Panetti, Mr. Clayton is entitled to a hearing on this issue. Last, Section 552. 060, su?fers the same constitutional defect as the Florida statute reviewed in Ford v. Wainwright. 31. Missouri?s statute, Section 552.060, suffers the same constitutional defect as the Florida statute reviewed in Ford. Under Missouri?s statutory scheme, there is no guarantee that any quali?ed mental health expert, state-appointed or otherwise, will participate in the competency determination; rather, the Director of the Missouri Department of Corrections can unilaterally determine that a prisoner is competent, and that determination is not subject to review. Section 552.060, Missouri?s statute, like the Florida statute, places the decision as to sanity wholly within the executive branch, and this is unconstitutional. Id. at 416. Because the decision whether to certify the prisoner to the Governor is solely committed to the Director, Missouri?s procedure violates the Eighth and Fourteenth Amendments to the United States Constitution and Article 1, Section 21 of the Missouri Constitution. 27 At a minimum, Mr. Clayton must have a fair hearing and an opportunity to be heard. Id. at 424. Without such safeguard, an intolerable risk exists that the state will execute an insane person. WHEREFORE, Relator respectfully request that this Honorable Court issue a writ of mandamus directing the Director of the Missouri Department of Corrections to ful?ll his duties under Section 552.060, and invoke the provisions of Section 552.060, such that the listed parties (Governor, Department of Mental Health, Circuit Court of Washington County) are noti?ed and a hearing is held on Mr. Clayton?s competency to be executed. Alternatively, Mr. Clayton seeks to have this Court declare that the provisions of Section 552.060, are unconstitutional as applied in his case. The Director of the Missouri Department of Corrections, as a member of the Executive Branch (whose members represented the State in seeking to uphold the death sentence in Mr. Clayton?s case), has a con?ict of interest in determining whether there is reasonable cause to believe that Mr. Clayton has a mental disease or defect excluding fitness for execution. Last, Mr. Clayton further seeks to have this Court order a hearing on the issue of Mr. Clayton?s competency to be executed and not set an execution date, until such time as a hearing is held and a decision is made regarding Mr. Clayton?s competency to be executed. 28 Respectfully Submitted, (9 Jeannie Willibey, Mo Bar . 40997 Asst. Public Defender Of?ce of the Public Defender 920 Main Street, Suite 500 Kansas City, MO 64105 Tel: 816-8 89-7699 Fax: 816?889-2001 Pete Carter, #31401 Attorney for Movant Of?ce of the Public Defender Woodrail Center 1000 West Nifong, Bldg. 7, Ste. 100 Columbia, MO 65203 Phone: 573-882-9855 Fax: 573-882-9468 29 AFFIDAVIT County of Jackson ss. State of Missouri I, Jeannie Willibey, being of lawful age and having been sworn, do hereby state under oath that the facts alleged in the foregoing pleading are true to the best of my knowledge and beliefJeannie Willibey Date 0 In witness whereof I have hereunto subscribed my name and af?xed my of?cial seal this a 1 day of a? 2009. NOTARY Stacy M. Burks, Notary Eubho Johnson County, State of Mussoun org/Mac, . W11 1/2011 Notary PUbllc mmission Number 07115959 My commission expires: - 301 30 AFFIDAVIT County of Boone ss. State of Missouri 1, Pete Carter, being of lawful age and having been sworn, do hereby state under oath that the facts alleged in the foregoing pleading are true to the best of my knowledge and belief. ?75" 42> Pete Carter Date In witness whereofI have hereunto subscribed my name and af?xed my of?cial seal this day of 2009. Duo Sitar] . Burks, Notary County, State of l1 1 1201 1 7 Number 07115959 otary Public 31 Certi?cate of Service I certify that a true and correct copy of the above and foregoing was mailed, postage prepaid, to: Mr. Chris Koster, Of?ce of the Attorney General, PO. Box 899, Jefferson City, MO 65102, telephone number: 573-751-3321, and Mr. George Lombardi, Director, Missouri Department of Corrections, 2729 Plaza Drive, PO. Bo 236, Jefferson City, MO 65102, telephone number: 573-751- 2389, on this day of 2009. Wig/5957 ?Jeannie Willibey 32 OQQW IngE 19388 SUPREME COURT a 3. aa 6? CECIL CLAYTON, an 19, rag ?95 Relator, (66? a no we vs. Cause No. GEORGE LOMBARDI, Capital Case DIRECTOR OF MISSOURI DEPARTMENT OF CORRECTIONS, Respondent. INDEX OF EXHIBITS Ex. 1, Preliminary Findings by William S. Logan, MD, and Af?davit. Ex. 2, Preliminary Findings by Dr. Daniel V. Foster ..A5 Ex. 3, Neurological Surgery report by Dr. John Tsang dated 1/26/72 ..A7 Ex. 4, Neurological Surgery report by Dr. Tsang dated 1/26/72St. John?s Hospital Discharge Summary dated 2/3/72 ..A10 Ex. 6, Letter from Dr. George Klinkerfuss dated 1/30/78 ..All Ex. 7, Statement of Dr. Klinkerfuss stamped ?received? on Ex. 8, Evaluation dated 1/24/79, Ozark Clinic, Inc. Ex. 9, Letter from Dr. Klinkerfuss dated 1/3 1/ 80 ..A16 Ex. 10, Letter from Dr. Klinkerfuss dated 7/ 16/80 ..A17 Ex. 11, Letter from Dr. Klinkerfuss dated 9/1/83 ..A18 Ex. 12, Letter from Dr. Douglas A. Stevens dated 10/3 1/ 83 ..Al9 Ex. 13, Evaluation dated 2/9/84 ..A23 Ex. 14, Letter from Dr. James E. Bright dated 3/20/84 ..A25 Ex. 15, Dept. bf Health and Human Services, Decision of 4/6/84 Ex. 16, Copy of MRI scan depicting missing part of frontal lobe ..A29 Ex. 17, Af?davit of Julie Eilers, Investigator, Fed. Public Defender. Ex. 18, Af?davit of Laura Martin, Attorney, MO Public Defender ..A32 Ex. 19, Af?davit of Rebecca Kurz, Attorney, Morgan and Pilate ..A35 Ex. 20, Forensic Report by Dr. Preston, US. Dept. of Justice ..A37 Ex. 21, Letter to Director of MO Dept. of Corrections dated Ex. 22, Letter to Director of MO Dept. of Corrections dated 3/ 1 1/09. LOGAN PETERSON, PC FORENSIC. ADOLESCENT AND ADULT WILLIAM S. LOGAN, MD STEPHEN E. PETERSON, MD 428 WEST 42ND STREET 0 231 S. BEMISTON. SUITE 800 KANSAS CITY. MISSOURI 64m CLAYTON, MISSOURI 63105 TELEPHONE: (816) 342-2500 TELEPHONE: (314) 236-4914 ?2'99? FAX: (314) 236-4922 November 3, 2008 Ms. Jeannie Willibey, Esq. and Pete Carter, Esq. Assistant Public Defender Appellate PCR Division 920 Main Suite 500 Kansas City, Missouri 64105 Telephone: 816?889-7699 Fax: 816-889-2088 Re: Cecil Clayton (Dob: 4/ 16/40) Dear Ms. Willibey and Mr. Carter: I am writing to convey my preliminary ?ndings concerning Mr. Clayton?s competency to be executed for the November 27, 1996 killing of Deputy Castetter. I examined Mr. Clayton for 3.25 hours at Potosi Correctional Center on October 16, 2008. I also have reviewed Mr. Clayton?s medical, neurological and mental health records, including prior evaluations and his MRI scan of the brain. In addition, I have reviewed testimony transcripts of Mr. Clayton?s girlfriend, family members and those familiar with him. Mr. Clayton has experienced several episodes of head trauma, the most signi?cant of which occurred in 1972 and produced a large area of brain death in his right frontal lobe. Mr. Clayton has an established diagnosis of dementia. Mr. Clayton?s brain damage constitutes a mental defect creating of a signi?cant memory impairment, decreased judgment and decreased ability to process information or to grasp abstract concepts. Ex. Ms. Jeannie Willibey, Esq. Re: Cecil Clayton Page 2 Mr. Clayton?s thought process is rambling and disorganized. He digresses to expound at length on marginally related topics and needs redirection to remain on topic. His memory for many details of his history is poor, as is his more immediate recall. Mr. Clayton additionally has a mental disease, a delusional disorder consisting of persecutory and grandiose ideas that directly focus on his pending execution. Mr. Clayton believes his conviction was the result of a conspiracy by the legal system against him and that someone else killed Deputy Castetter. Furthermore, despite knowing he is facing his last appeal, he ?rmly believes God will intervene and his execution will not occur. As his execution approaches, he shows no concern and has an inappropriately elated mood. He cannot describe any issues on which his appeal is based or any way other than through the miraculous intervention from God that his execution will be averted. Instead he plans to walk out of prison, sue those who have unjustly con?ned him and live comfortably on the proceeds of future compensation for his erroneous con?nement. He believes his mission is to sing gospel music and that he has been ?anointed? by God to touch others hearts. Mr. Clayton?s paranoia, religious preoccupation, memory loss and thought disorganization are consistent with previous examinations, radiographic ?ndings, the observation of family and others, and the location of his brain loss. Mr. Clayton is not producing these voluntarily to avoid the death penalty. Mr. Clayton?s delusional ideas resulting from a mental defect and disease prevent him from having a rational understanding or comprehending the meaning and purpose of his punishment. While Mr. Clayton knows the State plans to execute him for killing Deputy Castetter, he believes his legal situation is instead a test of his faith and that God will not allow the punishment to occur as God has chosen him for another mission. Hence he has no concept of a need for clemency, or capacity to understand matters in extenuation, A2 Ms. Jeannie Willibey, Esq. Re: Cecil Clayton Page 3 arguments for executive clemency or rational reasons why the sentence should not be carried out. Sincerely, gym/M We William 8. Logan, MD Diplomate, American Board of and Neurology 1982 Diplomate, American Board of Forensic 1987 Subspecialty in Forensic by the American Board of and Neurology 1994 and 2003 AFFIDAVIT County of Jackson ss. State of Missouri I. William S. Logan, MD, being oflawful age and having been sworn, do hereby state under oath that the preliminary ?ndings and opinions set forth in the attached letter dated November 3, 2008, are true to the best of my knowledge and belief. no Il/?/ae William 3. Logan, Mb Date In witness whereof I has/7e7hereunto subscribed my name and af?xed my of?cial seal this le day of M, 2008. Notary Public COM on 05404 we. am 22325:. My commission expires: 5/07 31/on 11/26/2668 12:46 6658565367 PAGE 64 Foster Forensic Consulting Services November 17, 2008 Ms. Jeannie Esq. and Pete Carter, Esq. Assistant Public Defender Appellate/Pm Division 920 Main Suite 500 Kansas City, MO 64105 Telephone: 816-889?7699 Fax: 816389?2088 Re: Cecil Clayton (DOB: 4/16/40) Dear Ms. Wiliibey and Mr. Carter: Please ?nd enclosed, my preliminary report regarding Mr. Clayton's competency fer his scheduled execution for the November 27, 1996 slaying of Deputy Sheriff Castetter. In preparation for previous testimony in regard to Mr. Clayton, i met with Mr. Clayton and reviewed mere than a thousand pages of Medical Records, Criminal Investigation Reports, Jail Records and Trial Transcripts speci?c to Mr. Clayton's medical, educational, social and criminal histories. i then testi?ed over portions of two days before Judge David Darnoid, Circuit Judge of the 28?h Judicial Circuit, on Supreme Court assignment (he also presided over Mr. Clayton?s Criminal Trial and Sentencing) in Joplin, MO, September and 2000. More recently, I met again with Mr. Clayton for several hours at the Potosi Correctional Center on November 2008. i also reviewed more than One thousand additional pages of his medical records since incarcerated in the Missouri State Prison System, Depositions of various relatives, friends and acquaintances, and the Transcript of the Appeal Hearing for Mr. Clayton, September through the of 2000. Mr. Clayton previously suffered several head injuries, the most severe of which resulted in signi?cant frontal lobe damage and subsequent cognitive impairment with signi?cant deficits in judgement, problem solving, mental ?exibility, processing speed and verbal Major Depressive episodes accompanied by insomnia and visual and verbal hallucinations have also been reported repeatedly in the ensuing 36 years, along with delusional and paranoid qualities. As was pointed out in the thorough Report prepared by Lee Ann Preston, Clinical at the U.S. Medital Center for Federal Prisoners, Spring?eld, MO, January 18, 2005, presence of a mental disease or defect does not necessarily render an individual incompetent. Rather it is the manner and extent to which a mental disease or defect impacts an individual/s competency related abilities that is critical?? concur, as does the body of law. I also concur with Dr. Preston's conclusion: Clayton's tangential speach, impaired judgement, and impaired reasoning abilities, will negatively affect his ability to communicate effectively with his counsel, testify relevantiy, and make rational decisions regarding his habeas proceedings. Consequently, it is my opinion he is likely not competent to proceed. Ecol Ag 11/28/2888 12:45 5858555387 85 Cecil Clayton Preliminary Report, Dr. Foster, 11/17/08 Page 2 Despite being sober the eight years since we met and within a controlled, structured prison environment, Mr. Clayton continues to disoiay the signs and which have progressively been described by multiple medical and prtifessionais in the years since 1972. He spends most of his time in secluded status where he feels safest and free of the stimulation interaction and noise of fellow death row inmates. He has been off medication since his heart attack and subseciuent open heart surgery in 2001 and has been functioning at an even affective level so long as the environmental stimulation and mental demands are minimal and the routine consistent. Despite the approaching date of execution, he remains resolute that he is called to preach the gospel and will be released from prison by a miraculous act of God. He was cheerful and personable throughout our interview on November Consistent with our 2000 assessment, he was tangential, at times irrational, cheerfully delusional, suf?ciently paranoid that he persistently removes himself from inmate and staff company, refusing annual medical assessments, flu shots and other routine medical procedures. He continues to practice his gospel singing in preparatiOn for his ministry once freed, rather than bothering with requests for clemency or attenuation. Concepts beyond him perceptually not intellectually. By now he fancies himself wrongly convicted, though does not have an alternative theory of the crime for which he is convicted. 1 reviewed again Panetti v. Quarterman and Ford V. Wainwright. His impairment, consistently described and reported for 38 years, continues to be suf?ciently profound and sustained so as to render him incompetent to be executed. Respectfully. W?cg?gy?} Daniel V. Foster, Psy.D. POB 191 Round. SD 57570-0197 (H) 605-147-5811 (0) 406431-0323 maozoh I. clinical and Forensic AC9 . . L. K. TSANG. M. D. NEUROLGGECAL SURGERY -u 1? PHONE Ill-4.1? SOUTHSAST MEDICAL 9-05. RICIOENCI PHOHI IONSAO - - ?7 C. van SOUTH 4 Sugar] ?3 .-72 53304 MID. unruqu . . ceci; nee or . -- 1?15-1?; LIA 4?1, by a piece of boar" than a sewing machine at a saw mill. He was momentarily unconscious. :-Ie was first taken to St. Vincent's Hospital, Monett, Missouri under care of Doctor ESparrago who referred patient to me for NeurQS'drg-Lca; evaluation and treatment. ACCIDENT: This year old white male was struck over his forehead Inn-p.? NEUROLC GICAL 31 veer old 77.3.;e semi?conscious extensive oblique laceration i and of right supra -orbital region extending upward and lateral-Jar: the ?ght to near hairline exposing skull with extruded brain tissue. 2.1: a;;e:ent leaking of cerebral spinal fluid from nostrils . Semi?conscious . ?d equal, no papilledema. showed no tenderness or apparent discoloration. showed no limitation of weakness . No sensory deficit. ubLmit-s. Coordination an: de?erred. -- EASE T0 momma .?Iru "I?ll admission; Vital signs within normal limits . Lungs: clear to rcussion and auscultation no no enlargement. neart: in?llunder-hen: 352:, 7.: :noominai mass palpaale. o, [977 $451!? .- . . 05 mine. ?We eL?ema, no discoloration. SPRINGFIETERMINAT do RADICGFAPZ-IIC .?i?rays made at St. Iohn's tal in Springfield, Missouri show-ed shattered fracture of upper border of right orcit and depresses Lilli :?rac:u:e right :rontal region measuring 3 cm. by 1.5 cm. at decide :fl crn. (rrba??t?ploll thb?rUu . II. My .1 (I (pH-Furs nun-l.? PHIOHMHIIPF In, 3 r..pr ku?hm? mma? ?no?..an ?maven 5,5550 II 1 I I (Di-(fun CD. (5'00nuwuyono?w Mon umu?amamnn mun nwomcnm 0m muo