STATE ex rel. LEON V. TAYLOR and WILLIE KELLY OWENS, Relators,
TERRY RUSSELL, Respondent
Taylor and Owens were represented by Elizabeth Unger Carlyle of Kansas City.
Stephen Hawke, Caroline M. Coulter and Michael J. Spillane of the attorney general's office in Jefferson City,.
ORIGINAL PROCEEDING IN MANDAMUS
George W. Draper III, Judge
Leon V. Taylor (" Taylor" ) was convicted of first-degree murder, first-degree robbery, first-degree assault, and three counts of armed criminal action after shooting and killing a gas station attendant in front of the attendant's eight-year-old stepdaughter. Taylor's half-brother, Willie Kelly Owens (" Owens" ), participated in the robbery, but not the shooting. Owens pleaded guilty to a robbery charge in exchange
for his cooperation in Taylor's prosecution. Taylor was sentenced to death. This Court affirmed Taylor's death sentence. State v. Taylor, 18 S.W.3d 366 (Mo. banc 2000).
Taylor's execution was scheduled for November 19, 2014, at 12:01 a.m. On November 18, 2014, Owens visited Taylor and was told at the conclusion of his visit that he would not be permitted to witness Taylor's execution, although Taylor designated Owens as a witness. Taylor and Owens then filed a petition for a writ of mandamus to compel Terry Russell, the warden and director of the Eastern Reception Diagnostic and Correctional Center in Bonne Terre, Missouri (" Respondent" ), to permit Owens to witness Taylor's execution. Taylor alleged that he had a statutory right to have certain witnesses present at his execution. He further alleged Respondent's refusal to comply with the statute violated Taylor's rights as well as the ex post facto clause of the United States Constitution. Respondent filed suggestions in opposition, arguing the prison's security could be compromised if Owens were permitted to witness the execution and no ex post facto violation would occur. Taylor and Owens filed a reply.
In accordance with Rule 84.24(j), this Court being informed fully of the issues presented, dispensed with further briefing and oral argument in the interest of justice given the immediacy of the proceedings. On November 18, 2014, this Court issued a permanent writ of mandamus ordering Respondent to permit Owens to be present as a witness at Taylor's execution. The Court now issues this opinion pursuant to Rule 84.24(l) to explain its reasoning.
Standard of Review
This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec. 4. A litigant seeking mandamus must " allege and prove that he [or she] has a clear, unequivocal, specific right to a thing claimed." State ex rel. Young v. Wood, 254 S.W.3d 871, 872 (Mo. banc 2008) (quoting Furlong Cos., Inc. v. City of Kansas City, 189 S.W.3d 157, 166 (Mo. banc 2006)). " Ordinarily mandamus is the proper remedy to compel the discharge of ministerial functions, but not to control the exercise of discretionary powers." State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. banc 2006).
In their writ petition, Taylor and Owens allege Taylor designated Owens as a witness to the execution pursuant to section 546.740, RSMo 2000. Section 546.740 provides:
The chief administrative officer of the correctional center, or his duly appointed representative shall be present at the execution and the director of the department of corrections shall invite the presence of the attorney general of the state, and at least eight reputable citizens, to be selected by him; and he shall at the request of the defendant, permit such clergy or religious leaders, not exceeding two, as the defendant may name, and any person, other than another incarcerated offender, relatives or friends, not to exceed five, to be present at the execution, together with such peace ...