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State ex rel. Cole v. Griffith

Supreme Court of Missouri, En Banc

April 9, 2015

STATE ex rel. ANDRE COLE, Petitioner,

Submitted on the Court filings: April 9, 2015.

Cole was represented by Joseph W. Luby and Carol R. Camp of the Death Penalty Litigation Clinic in Kansas City.

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

PATRICIA BRECKENRIDGE, JUDGE. Russell, C.J., Fischer and Wilson, JJ., concur; Stith, J., dissents in separate opinion filed; Draper and Teitelman, JJ., concur in opinion of Stith, J.

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Laura Denvir Stith, Judge

On February 25, 2015, this Court scheduled the execution of Andre Cole for April 14, 2015. On March 23, 2015, Mr. Cole filed a petition for a writ of habeas corpus, claiming that he is incompetent 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.[1] Mr. Cole asks this Court to issue a writ prohibiting his execution and to appoint a special master to conduct an evidentiary hearing on his claim of incompetency. He also filed a motion for a stay of execution while his

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incompetency claim is adjudicated. Because the evidence before this Court shows that Mr. Cole has a rational understanding of his sentence and the reason for it and that he is capable of understanding matters in extenuation, arguments for clemency, and reasons why his sentence should not be carried out, Mr. Cole is not incompetent to be executed under Ford, Panetti, or section 552.060.1. Therefore, this Court denies his habeas petition on the merits and overrules his accompanying motion for a stay of execution.

Factual and Procedural Background

In 2001, Mr. Cole was convicted of first-degree murder, first-degree assault, first-degree burglary, and two counts of armed criminal action. Mr. Cole was sentenced to death for the murder.[2] This Court affirmed Mr. Cole's convictions on direct appeal. State v. Cole, 71 S.W.3d 163 (Mo. banc 2002) ( Cole I ). Mr. Cole's motion for post-conviction relief was overruled, and this Court affirmed that decision. Cole v. State, 152 S.W.3d 267 (Mo. banc 2004) ( Cole II ). The United States District Court for the Western District of Missouri denied Mr. Cole's federal petition for a writ of habeas corpus, Cole v. Roper, 579 F.Supp.2d 1246 (E.D. Mo. 2008) ( Cole III ), and the United States Court of Appeals for the Eighth Circuit affirmed that decision, Cole v. Roper, 623 F.3d 1183 (8th Cir. 2010) ( Cole IV ).

A. Mr. Cole's Crimes[3]

Mr. Cole and his wife, Terri, divorced in 1995 after eleven years of marriage. Mr. Cole was ordered to pay child support for the care of the couple's two children, but his periodic failure to make payments resulted in an arrearage of nearly $3,000. The record indicates that Mr. Cole and Terri also had disputes involving visitation with the children, and in August 1998, Mr. Cole was upset about his alleged lack of visitation with his two sons. There is also evidence he was upset about his wages being garnished to cover the child support arrearage. On the evening of August 21, 1998, Mr. Cole forced his way into Terri's house by throwing a tire iron through a glass door leading to the dining room from the patio. Anthony Curtis, who was visiting Terri, confronted Mr. Cole and asked him to leave. Mr. Cole stabbed and slashed Mr. Curtis more than twenty times, the fatal blow being an eight-inch deep knife wound to Mr. Curtis's back. Mr. Cole then assaulted Terri, stabbing her repeatedly in the stomach, breasts, back, arms, and her hands when she attempted to defend herself. Terri survived and testified at trial. After the attack, Mr. Cole fled the state, but after a little over a month, returned to St. Louis and surrendered to the police. DNA analysis confirmed the presence of both victims' blood on the knife and the presence of Mr. Cole's blood on the deck of Terri's home, the backyard fence, and in the street where Mr. Cole's car had been parked.

B. Mr. Cole's Trial

Prior to his trial, Mr. Cole's counsel requested an evaluation of Mr. Cole's competency to stand trial under section 552.020 and to determine whether Mr. Cole was not criminally liable by reason of a mental disease or defect under section 552.030. The trial court appointed Dr. Richard Scott to evaluate Mr. Cole to determine his competency to stand trial. Dr.

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Scott opined that Mr. Cole was not suffering from a mental disease or defect at that time and that he was capable of understanding the proceedings against him and assisting in his own defense. Dr. Michael Armour, who was retained by Mr. Cole's trial counsel, also evaluated Mr. Cole. Dr. Armour concluded that Mr. Cole was not suffering a mental disease or defect at the time of the murder that would have precluded him from knowing and appreciating the nature, quality, and wrongfulness of his conduct. In their reports, Dr. Armour and Dr. Scott both noted that Mr. Cole denied symptoms of depression, paranoia, delusions, and hallucinations, and they specifically eliminated depression as a possible diagnosis for Mr. Cole.

During the guilt phase of trial, Mr. Cole did not raise the issue of mental illness as a defense or claim that he was incompetent to stand trial. Instead, Mr. Cole presented the theory that he did not bring a weapon into Terri Cole's house and that Mr. Curtis initiated the attack with a knife. He further testified that he did not have a knife in his hand that night. Mr. Cole did not raise an issue with his mental health during the penalty phase.

C. Mr. Cole's Post-Conviction Proceedings

In his post-conviction relief proceedings, Mr. Cole asserted that trial counsel was ineffective for failing to present expert witness testimony during the penalty phase to support a claim that Mr. Cole was under extreme mental or emotional disturbance at the time of the crime. In support of this claim, Mr. Cole relied on the report and testimony of Dr. William Logan, a forensic psychiatrist. Dr. Logan's report stated that Mr. Cole was suffering from major depression at the time of the offense and that his depression, along with alcohol intoxication and the use of steroids, impaired his ability to rationally deliberate and use reasoned judgment at the time of the offense. At the evidentiary hearing on Mr. Cole's post-conviction relief motion, Dr. Logan admitted that Mr. Cole had lied in the case and that Dr. Logan could not always tell when Mr. Cole was lying.

In denying his claim of ineffective assistance of counsel, the motion court found Dr. Logan to not be a credible witness, stating:

The Court, having heard and considered all of Dr. Logan's testimony finds his opinions to lack the necessary evidence required to support his conclusions. Dr. Logan admitted that he based his opinions on [Mr. Cole's] testimony as well as interviews with [Mr. Cole's family and friends]. Dr. Logan confessed that his entire source of materials for his testimony were litigation materials chosen and provided to him by [Mr. Cole's] counsel. Clearly, this testimony was biased towards the particular conclusion [Mr. Cole's] counsel desired to reach. Dr. Logan conceded that many of the claims made by [Mr. Cole] in his interview were distorted, minimized, inconsistent and probably untrue. He agreed that [Mr. Cole's] current version of events differed greatly from his trial testimony and previous statements to Drs. Scott and Armour. Dr. Logan admitted that [Mr. Cole], his family and friends have incentive not to speak honestly about his participation in these crimes. He conceded that his report did not have balance by including any interviews with the victim, Terri Cole or her family of their description of the marital discord. Dr. Logan's testimony was rife with biased hearsay, inconsistent theories and was substantially discredited through cross-examination.

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The motion court further stated, " [Dr. Logan's] testimony and status as an expert witness is rejected by this Court."

The court ultimately found that trial counsel was not ineffective for not presenting expert testimony that Mr. Cole was under extreme mental or emotional distress at the time of the murder. In addition to the two pre-trial reports that did not find Mr. Cole suffered from a mental disease or defect, trial counsel interviewed 25 individuals identified to her by Mr. Cole and his family, and none of the witnesses reported any mental health issues with Mr. Cole or his family. See Cole II, 152 S.W.3d at 270. Further, the motion court found that arguing Mr. Cole was acting under extreme emotional or mental distress would have been inconsistent with Mr. Cole's trial testimony in which he denied involvement in the murder and stated that Mr. Curtis was the initial aggressor. On appeal, this Court affirmed the motion court's judgment, finding that Mr. Cole did not receive ineffective assistance of counsel. Id. at 269-70.

D. Mr. Cole's Federal Habeas Proceedings

In his federal habeas writ petition, Mr. Cole raised again his claim of ineffective assistance of counsel based on counsel's failure to present expert testimony that he was acting under extreme mental or emotional distress at the time of the murder. Cole III, 579 F.Supp.2d at 1276. Mr. Cole again relied on Dr. Logan's 2002 report in which Dr. Logan opined that Mr. Cole suffered from depression at the time of murder. Id. The district court found trial counsel was not ineffective for not pursuing an emotional distress argument when two pretrial mental health evaluations, interviews of 25 lay witnesses, and Mr. Cole's own statements to counsel did not reveal that Mr. Cole was suffering from any mental illness. Id. at 1277-80. On appeal, the Eighth Circuit held the district court did not err in rejecting Mr. Cole's ineffective assistance of counsel claim. Cole IV, 623 F.3d at 1190.

Mr. Cole's Present Incompetency Claim

Mr. Cole now claims he is not competent to be executed. He petitions this Court for a writ of habeas corpus prohibiting his execution and an order appointing a special master to conduct an evidentiary hearing to adjudicate his claim of incompetency. He also moves this Court to stay his execution on the ground that the procedures for appointing a special master and holding a hearing cannot reasonably be accomplished before his scheduled execution.

In support of his present claim of incompetency, Mr. Cole filed affidavits from his attorneys, Joseph Luby and Carol Camp. Mr. Luby has represented Mr. Cole since 2001 and states that he has noticed deterioration in Mr. Cole's mental condition over the last four years. According to Mr. Luby, beginning in 2011, conversations with Mr. Cole have become more difficult in that Mr. Cole jumps from topic to topic, speaks quickly and with agitation, and has become paranoid. Ms. Camp began representing Mr. Cole in October 2014 and states that she has noticed a significant and consistent deterioration in Mr. Cole's mental condition since that time.

Mr. Luby's and Ms. Camp's affidavits report five conversations -- either over the telephone or in person -- with Mr. Cole between October 23, 2014, and March 20, 2015. According to the affidavits, Mr. Cole told his attorneys during these conversations that he had been hearing voices and that he believed the state had been trying to communicate with him through the television, intercom system, and prison staff and inmates. The voices would make

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racist and harassing comments and tell Mr. Cole that the state was trying to get him. When asked by his attorneys whether the comments were coming from other prisoners or something supernatural, Mr. Cole initially stated that he did not know but later stated that the harassment was mostly from other prisoners. Mr. Cole's attorneys also report that Mr. Cole appeared to have trouble communicating during these conversations; he had trouble following a train of thought for more than short periods of time and would change from normal speech to whispering or mouthing words mid-sentence.

In addition to his attorneys' affidavits, Mr. Cole filed a recent report from Dr. Logan, the psychiatrist who testified at Mr. Cole's post-conviction motion hearing. Dr. Logan's report is based on a 2.5 hour examination of Mr. Cole that occurred on February 20, 2015, the report from his previous examination of Mr. Cole in 2002,[4] Mr. Cole's medical records from the department of corrections, memoranda from Mr. Cole's attorneys regarding their interactions with him, and a memorandum describing his attorneys' meeting with Mark Williamson, Mr. Cole's cellmate in early 2015. Dr. Logan states that this information showed Mr. Cole's mental state had deteriorated and that Mr. Cole has become withdrawn, has been reported as talking to someone when he is alone, is secretive, and exhibits odd behaviors such as turning on the television to drown out voices. Dr. Logan also notes the reports that Mr. Cole has been hearing voices discussing issues relating to his legal case, disability, and family and financial issues.

Dr. Logan states that, during the examination, Mr. Cole was able to recall the historical elements of his case. Dr. Logan also reports that, as the interview progressed, Mr. Cole's thinking became more disorganized and would digress to talking about his emotional state. Mr. Cole reported feeling depressed, overwhelmed, and distracted by the voices. He told Dr. Logan that he believed the voices are supernatural. Regarding the voices, Mr. Cole told Dr. Logan many of the things about the voices that he told his attorneys, including that he thinks the voices are trying to scare him with the death penalty and that the state wants to execute him to " take [him] down." Using language from section 552.060.1, Dr. Logan concluded:

Mr. Cole is depressed with prominent symptoms of psychosis which adversely affect his comprehension and understanding to the extent that his mental disease causes him to lack the 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. Mr. Cole's hallucinations have compromised his understanding to the point he has gross delusions which prevent him from comprehending or forming a rational understanding of the reason for the execution to which he has been sentenced.

The state filed a response opposing Mr. Cole's writ petition and submitted exhibits, including the department of correction's mental health records of Mr. Cole and audio recordings and transcripts from telephone calls with Mr. Cole.[5] The first conversation occurred on September 12, 2014, between Mr. Cole and a woman and was

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seven minutes long.[6] Mr. Cole asked the woman if she had read any articles about a recent issue that had come up with a man who was executed and stated that he had read something stating there was an issue with George Lombardi lying about the protocol.[7] The September 26, 2014, conversation was also with a woman and lasted thirteen minutes. During the conversation, Mr. Cole brought up a woman in Texas who was executed. Mr. Cole had been doing research on the woman and expressed that he did not think it made sense that the woman received the death penalty when another woman who had participated in the murder did not. Mr. Cole also expressed an opinion that there should be a standard death penalty procedure among the states.

The sixteen-minute conversation from March 1, 2015, is between Mr. Cole and a man. Mr. Cole explained that he was in " pre-execution status," which meant that he would be moved to a different facility soon and that his visitation procedure had changed. During much of the conversation, Mr. Cole and the man discussed how Mr. Cole needed to keep faith in God. Mr. Cole also stated that he had called his mother to see how she had been holding up with the circumstances.

The conversation on March 9, 2015, was between Mr. Cole and a woman and lasted 50 minutes.[8] The woman told Mr. Cole that she was praying for a miracle and repeatedly assured Mr. Cole that God was there for him. During the conversation, the woman told Mr. Cole about a recent Georgia execution that was stayed due to inclement weather and an issue with the execution drugs. Mr. Cole then discussed questions that have been raised about execution drugs, including questions regarding the drugs' compositions, how the drugs are being used, whether the drugs are " clean," and whether there has been sufficient testing on the drugs. Mr. Cole later mentioned problems he perceived in his trial, including: (1) a racial bias against him; (2) that the prosecutor's story that he stabbed a man to death while he also had a gun did not make sense; (3) and that the alleged motives for the crimes -- Mr. Cole was jealous of Mr. Curtis and Mr. Cole could not pay child support -- were not true. Additionally, in response to the woman asking Mr. Cole if he could take medication to help calm him, Mr. Cole indicates that he had been told not to see the prison's psychiatrist.

The last conversation occurred on March 24, 2015, and lasted only two and half minutes. Mr. Cole called Ms. Camp to let her know that Dr. Alwyn Whitehead, who works for the department of corrections, had visited him but that he did not say anything to him. Ms. Camp reminded Mr. Cole that the telephone call was being recorded and suggested setting up a telephone call to talk further.

Mr. Cole filed a reply to the state's response, submitting a letter from Dr. Logan stating that he had reviewed the state's exhibits and that the exhibits did not change his opinion regarding Mr. Cole's competency. Mr. Cole also filed a report prepared in 2002 from Dr. Michael Stacy, a psychologist who examined Mr. Cole. In the report, Dr. Stacy had diagnosed

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Mr. Cole with major depressive disorder, ...

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