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State ex rel. Clayton v. Griffith

Supreme Court of Missouri, En Banc

March 14, 2015


Clayton was represented by Jeannie Willibey of the public defender's office in Kansas City; Pete Carter of the public defender's office in Columbia; Elizabeth Unger Carlyle, an attorney in Kansas City; Susan M. Hunt, another attorney in Kansas City.

The state was represented by Michael J. Spillane, Caroline M. Coulter and Gregory Michael Goodwin of the attorney general's office in Jefferson City.

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.


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Paul C. Wilson, Judge.

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, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), Panetti v. Quarterman, 551 U.S. 930, 127 S.Ct. 2842, 168 L.Ed.2d 662 (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.


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 ).

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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. 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 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

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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. 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, 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

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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.

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 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, 122 S.Ct. 2242, 153 L.Ed.2d 335 (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

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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 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 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

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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 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.3d 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.3d 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.3d at 791 (" expert opinion on competency rises no higher than the reasons on which it is based" ). " 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.3d 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, 116 S.Ct. 1373, 134 L.Ed.2d 498 (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).

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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, 184 L.Ed.2d 528 (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, 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, 106 S.Ct. 2595, 91 L.Ed.2d 335 (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 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

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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 ...

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