Court en banc holds: Clayton's attorney was not ineffective, and his alleged failures were reasonable strategic choices that cannot serve as a basis for a claim of ineffective assistance. The attorney had the right to present multiple defenses on Clayton's behalf, and the two defenses presented are not logically inconsistent. Similarly, it was part of the attorney's strategy to present a diminished capacity defense, even if it did not get as much emphasis as it might have had it been the only defense. Further, the attorney's decisions regarding whether to offer certain documents into evidence or whether to present certain individuals as witnesses are strategic decisions that virtually cannot be challenged in an ineffective assistance claim. Finally, it was reasonable for the attorney to conclude that Clayton was competent to assist in his defense. Clayton had discussed his legal options intelligently with his attorney and had corresponded with him about the case, and Clayton failed to prove he was incompetent during his trial.

Citation: 

Opinion Author:  John C. Holstein, Judge

Opinion Vote:  AFFIRMED.  All concur.

Opinion:

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.

FACTS AT TRIAL

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 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 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). 

RULE 29.15 PROCEEDING

He next filed a timely Rule 29.15 motion.  In contrast to the evidence at trial, the post-conviction court was presented with a picture of Clayton’s early life as one filled with trouble.  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.

STANDARD OF REVIEW

The Court will only overturn a trial court’s ruling on a post-conviction relief motion if the 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 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).

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 (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.

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.

PRESENTATION OF TWO THEORIES OF DEFENSE

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, 175 S.W.2d 866, 872 (Mo. banc 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.

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 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.   

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.  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.