Court of Appeals of Missouri, Western District, Writ Division
Appeal From: Adair County Circuit Court. The Honorable Russell E. Steele, Judge.
Jennifer Koboldt Bukowsky, Columbia, MO, for Petitioner.
Michael J. Spillane, Jeffeson City, MO, for Respondent.
Before Writ Division: Mark D. Pfeiffer, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge. All concur.
ORIGINAL PROCEEDING IN HABEAS CORPUS
Cynthia L. Martin,
Jessie McKim (" McKim" ) was convicted in 1999 in the Circuit Court of Adair County of first degree murder in the death of Wendy Wagnon (" Wagnon" ). The State charged and convicted McKim on the theory
that McKim acted in concert with James Peavler (" Peavler" ) to cause Wagnon's death by suffocation. At trial, the Boone County Medical Examiner, Dr. Jay Dix (" Dr. Dix" ), testified that Wagnon's cause of death was " asphyxiation or suffocation."
McKim has filed a petition for writ of habeas corpus (" Petition" ) requesting the vacation of his conviction and a new trial because newly discovered evidence clearly and convincingly establishes that he is actually innocent (a freestanding actual innocence claim). In the alternative, McKim asks this court to grant him a new trial because the preponderance of the evidence establishes either the gateway of cause and prejudice, or the gateway of manifest injustice in light of new evidence of actual innocence, either of which permits review of procedurally defaulted claims that he was deprived of a fair trial. Finally, McKim requests that his conviction be vacated because his continued servitude violates the Thirteenth Amendment as he has been imprisoned for more than 17 years for a murder he claims never happened.
The foundation for McKim's habeas claims is the testimony of several pathologists who now opine that Wagnon's autopsy results suggest that Wagnon's cause of death was methamphetamine overdose, and not asphyxiation or suffocation as opined by Dr. Dix. According to McKim, these new opinions call into question whether the State established a corpus delicti.
We conclude that McKim has not established a basis for habeas corpus relief. Accordingly, McKim's Petition is denied with prejudice.
Factual and Procedural History
Wagnon's body was found in a ditch by the side of a dirt road in Adair County on April 13, 1997. An investigation into Wagnon's death led to the arrests of McKim and Peavler. McKim was charged with acting in concert with Peavler to cause Wagnon's death by suffocation. McKim was tried in April 1999, and convicted of first degree murder.
The evidence, viewed in the light most favorable to the judgment, established that Wagnon and her friend Melissa McFarland (" McFarland" ) went to Peavler's home in the early morning hours of April 13, 1997 at McFarland's urging. McFarland testified that McKim was also at Peavler's house, and that they all smoked methamphetamine. McFarland testified that Peavler argued with Wagnon, and accused her of stealing. Peavler told McKim to shoot Wagnon if she tried to leave. Then, according to McFarland, McKim went outside and came back with a syringe that he began filling with a red fluid, saying " we're not going to remember
nothing after this point." McFarland claimed that Peavler and McKim talked about the fact that Wagnon was going to die of a drug overdose. Wagnon reportedly said that she didn't " shoot up," to which Peavler and McKim responded that there was a first time for everything. McFarland suggested that Wagnon be allowed to leave, but was told Wagnon would " not see the dawn." McKim then went outside to move McFarland's vehicle. Peavler started dragging Wagnon out of the house in a headlock. The two men then forced Wagnon into a pickup truck with McKim sitting in the driver's side pulling on Wagnon. McFarland testified that Peavler returned to the house and said " it's up to [McKim] now." McKim came back into the house and asked for a blanket, before leaving in the truck with Wagnon. Peavler told McFarland that McKim " had no other choice." Later, McKim returned, and he, McFarland, and Peavler collected some of Wagnon's belongings and hid them downstairs. They concocted a story that Wagnon was last seen leaving Peavler's house at about 4:00 a.m. in a red car with someone they did not know.
Peavler's daughter, Kandi Peavler, (" Kandi" ), testified that when she arrived home in the early morning hours of April 13, 1997, Peavler, McKim, McFarland, and Wagnon were present. Kandi went to her room to go to bed, but later heard an argument, heard the word " bitch," and had the impression that Wagnon was in trouble.
Wagnon's mother testified that Wagnon and McFarland had argued the night of the murder because Wagnon was preparing to testify in a drug prosecution involving McFarland's boyfriend. Wagnon's mother testified that McFarland showed up in the early morning hours of April 13, 1997 and persuaded Wagnon to go to Peavler's house.
Pam Western (" Western" ), a friend of McFarland's, testified that McKim told her about four days before Wagnon's death that if he found out that Wagnon was a snitch he would kill her.
Linda Yearns (" Yearns" ), McKim's former girlfriend, testified that McKim came to her house the night that Wagnon's body was found, and asked if he could stay there. Yearns told McKim she had heard that Wagnon had been beaten to death, to which McKim responded that he had heard Wagnon was strangled. The next day, Yearns learned that McKim was wanted for questioning in Wagnon's murder. She confronted McKim, who asked her to give him a ride " up North," which she refused to do.
Dana Scott Cooper (" Cooper" ) testified that he and McKim were in jail together for several months. McKim told Cooper that it was common knowledge that Wagnon was a snitch, and that a good snitch was a dead snitch. McKim told Cooper that he, Wagnon, McFarland, and Peavler, were all at Peavler's house, when a confrontation with Wagnon led to McKim and Peavler dragging Wagnon out of the house and into a vehicle. McKim told Cooper that Wagnon died in McKim's grip while he held her in a headlock. Cooper testified that McKim told him that he dumped Wagnon's body on a back road.
Adair County Coroner Brian Noe (" Noe" ) testified that he completed a death certificate based on an autopsy performed by Dr. Dix. The cause of death on the death certificate was noted to be " asphyxiation by undetermined method."
Dr. Dix testified that he performed the autopsy on Wagnon. During the autopsy, Dr. Dix observed petechiae, or " ruptured
blood vessels," in the eyes. He opined that Wagnon died " as a result of asphyxiation or suffocation." 
McKim claimed he had an alibi, and that he was never at Peavler's house on the day Wagnon died. McKim's cross-examination of witnesses sought to expose motivations for fabricating or distorting testimony. McKim's counsel argued that Peavler and McFarland were solely responsible for Wagnon's death, and that McFarland fabricated the story about McKim's involvement to deflect attention from her own culpability.
The jury was instructed that to convict McKim of first degree murder, it had to find beyond a reasonable doubt that McKim or Peavler caused the death of Wagnon " by suffocating her." The jury convicted McKim of first degree murder. We affirmed McKim's conviction on direct appeal. State v. McKim, 39 S.W.3d 930 (Mo. App. W.D. 2000). McKim filed a Rule 29.15 post-conviction motion that was denied. We affirmed the denial of that motion. McKim v. State, 116 S.W.3d 599 (Mo. App. W.D. 2003). McKim did not question Dr. Dix's cause of death determination on direct appeal or in his post-conviction motion.
In 2010, McKim heard from Peavler, who sent McKim statements he had obtained from three pathologists who had reviewed Wagnon's autopsy report, toxicology report, and Dr. Dix's trial testimony. The pathologists had concluded that Dr. Dix improperly opined that Wagnon died from asphyxiation based solely on petechiae in the eyes, as petechiae are a non-specific condition that can occur in connection with many causes of death. The pathologists each concluded that Wagnon's toxicology report suggested that she died of a methamphetamine overdose, though the manner of overdose, i.e. whether by accident, suicide, or homicide, could not be determined.
On October 18, 2010, McKim filed a pro se petition for writ of habeas corpus in the Cole County Circuit Court. The pro se petition raised two claims: 1) a freestanding actual innocence claim based on the fact that Wagnon died of methamphetamine toxicity and not asphyxiation; and 2) a claim that Dr. Dix committed perjury by testifying that Wagnon died from asphyxiation. McKim theorized that there was no murder if Wagnon died of a drug overdose. McKim submitted the affidavits and letters from the pathologists who had been in communication with Peavler. On April 20, 2011, the Honorable Jon Beetem denied McKim's pro se habeas petition without an evidentiary hearing. Judge Beetem found as to McKim's freestanding claim of innocence that:
McKim's new evidence consists of opinions, by experts, who have not worked on the case or examined the body themselves, that a more likely cause of death was drug overdose as opposed to asphyxiation. This new evidence does not address the overwhelming evidence that McKim said he was going to kill [Wagnon], killed her and then said he killed her and attempted to both create a cover story and to escape the area, when he knew he was a suspect. Assuming for the sake of argument that Dr. Dix is wrong and the defense experts are right about the cause of death their evidence
strongly supports McKim's guilt, not his innocence.
[McFarland] testified that she saw the victim draw up a syringe and heard McKim and his accomplice Peavler state their intention of giving [Wagnon] a lethal overdose of drugs before dragging her outside to her death. Assuming that [Wagnon] died from allegedly metabolizing a lethal amount of methamphetamine, that assumption concerning the cause of death supports McKim's guilt. . . .
McKim has not come close to setting out a case of actual innocence . . . by showing his factual innocence by clear and convincing evidence, and his claim fails. McKim is no less guilty of murder if [he] killed [Wagnon] through a lethal injection.
On McKim's claim that Dr. Dix perjured himself, Judge Beetem found:
First, the testimony of Dr. Dix was not false. It was his opinion based on physical findings that were known to both sides and were subject to cross-examination, and to contrary testimony from defense experts, should McKim have chosen to present them at the time, which he did not.
Second, . . . [i]f McKim had put on evidence at trial that the victim had died from a lethal overdose, after testimony that he had drawn up a syringe and professed his intention to give the victim a lethal overdose, before dragging her away to her death, there is no reasonable probability  that the jury would have acquitted. The claim that McKim was convicted because of allegedly perjured testimony by Dr. Dix is refuted by the record.
Following the entry of Judge Beetem's judgment, McKim filed a nearly identical pro se petition for writ of habeas corpus in this court on May 26, 2011. We denied the petition by order dated June 29, 2011. McKim then filed the same pro se petition for writ of habeas corpus in the Missouri Supreme Court on September 19, 2011. The Supreme Court denied the petition by order dated October 25, 2011.
On December 16, 2011, McKim filed another pro se petition for writ of habeas corpus in the Circuit Court of Adair County. The Honorable Russell Steele ordered the petition transferred to the Circuit Court of Cole County. The Honorable Daniel R. Green appointed the Missouri State Public Defender as counsel for McKim. When the Missouri State Public Defender refused the appointment, Jennifer Bukowsky agreed to represent McKim on a pro bono basis. She thereafter filed an amended habeas petition on McKim's behalf, alleging the same claims for habeas relief that are asserted in the Petition at issue in this proceeding. By that time, six pathologists (including one engaged by the State), had reached the conclusion that Dr. Dix improperly opined that Wagnon was asphyxiated or suffocated based solely on the presence of petechiae, and that the toxicology report prepared during the autopsy suggested that Wagnon's cause of death was methamphetamine overdose. None of the pathologists could opine to a reasonable degree of medical certainty about the method of overdose, i.e. whether by accident, suicide, or homicide.
Following an extended evidentiary hearing, Judge Green entered a judgment denying the petition. Judge Green determined that the core of McKim's petition for habeas relief was barred because it had already been denied " with prejudice" by this court and the Missouri Supreme Court. In the alternative, Judge Green held that McKim had not met his burden to establish any of his claims for habeas relief, though he found the testimony of the six pathologists to be credible.
Judge Green concluded in connection with McKim's freestanding and gateway claims of actual innocence that the new evidence from the pathologists did not " adequately address the overwhelming evidence that McKim said he was going to kill [Wagnon], killed her, and then said he killed her, and attempted to create a cover story and to escape the area when he knew he was a suspect." Judge Green also concluded that " [a]ssuming Dr. Dix was wrong and the current experts are right about the cause of death, their evidence still strongly supports McKim's guilt, not his innocence," given McFarland's testimony that she saw McKim draw up a syringe, and heard McKim and Peavler discuss their intention to give Wagnon a lethal overdose before dragging her outside.
Judge Green concluded in connection with McKim's gateway claim of cause and prejudice that McKim failed to establish any cause external to the defense that prevented him from challenging Dr. Dix's opinion as to cause of death at trial, on direct appeal, or in his Rule 29.15 proceedings, as all of the evidence relied on by the new pathologists to reach opinions contrary to Dr. Dix's opinion was available at the time of trial.
Finally, Judge Green concluded that McKim's Thirteenth Amendment claim was without merit as it was nothing more than a restatement of his freestanding actual innocence claim.
Following the entry of Judge Green's judgment, McKim filed the Petition in this court. We review the Petition as an original writ. Rule 91.
Effect of Prior Appellate Denials of McKim's Petitions for Habeas Relief
Before addressing the merits of McKim's Petition, we consider the State's contention that we are barred from entertaining McKim's Petition by the operation of Rule 91.22. Rule 91.22 provides that " [w]hen a petition for a writ of habeas corpus has been denied by a higher court, a lower court shall not issue the writ unless the order in the higher court denying the writ is without prejudice to proceeding in a lower court." The State contends that the claims asserted in McKim's Petition are indistinguishable from the claims asserted in ...