Supreme Court of
Cecil Clayton, Appellant v. State of Missouri,
Circuit Court of Jasper County, Hon. David Darnold
Cecil Clayton was
convicted of first-degree murder and sentenced to death for the November
1996 shooting death of a Barry County sheriff's deputy near the home of
his former girlfriend's mother. After this Court affirmed Clayton's
conviction and sentence in 1999, Clayton sought post-conviction relief,
arguing his trial counsel was ineffective. He claims that his attorney
should not have pursued simultaneously the defense that reasonable doubt
existed as to whether Clayton was guilty and the defense that Clayton
had diminished capacity that precluded his responsibility. Clayton
argues his attorney failed to investigate and present the diminished
capacity defense thoroughly. He also argues his attorney failed to have
Clayton's competency to stand trial adjudicated and that he was so
incompetent that he was unable to assist his attorney in conducting his
defense at trial. Further, Clayton contends his attorney should have
presented certain mitigating evidence during the trial's penalty phase.
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.
Opinion Author: John
C. Holstein, Judge
AFFIRMED. All concur.
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
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,
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 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
FAILURE TO INVESTIGATE
AND PRESENT DIMINISHED CAPACITY
Clayton’s attorney was
not ineffective in his investigation and presentation of the diminished
capacity defense. It is not ineffective assistance of counsel for an
attorney to pursue one reasonable trial strategy to the exclusion of
another, even if the latter would also be a reasonable strategy.
State v. Ferguson, 20 S.W.3d 485, 508 (Mo. banc 2000). In this
case, even though using a diminished capacity defense by itself might
have been a reasonable trial strategy, it was also reasonable, as
demonstrated above, to argue that a reasonable doubt of guilt existed.
The fact that the diminished capacity defense did not get as much
emphasis as it might have by itself cannot be an independent basis for
an ineffective assistance claim. This was part of the attorney’s
overall strategic choice, and was not ineffective assistance.
Clayton also claims that
his attorney was ineffective for failing to introduce certain specific
items of evidence and for failing to call two particular witnesses in
support of the diminished capacity defense. Clayton is incorrect on
both counts. First, the selection of witnesses and evidence are matters
of trial strategy, virtually unchallengeable in an ineffective
assistance claim. Leisure v. State, 828 S.W.2d 872, 875 (Mo.
banc 1992). By deciding to use both defenses, the attorney also decided
not to use all of the witnesses and evidence he might have used had he
raised diminished capacity alone.
Clayton’s attorney also
had legitimate strategic reasons for not introducing Clayton’s school
records, Nevada State Hospital records, and Social Security Disability
file, as Clayton now claims a reasonable attorney would have done. He
argues that these records would have provided the jury with a better
picture of his mental capacity and his history of multiple head
injuries. From his pre-trial investigation and his own experience with
Clayton in the past, the trial attorney knew Clayton’s history of head
injuries. He knew that while the records might give the jury insight
into that history, their introduction also ran the risk of the defense
getting mired in a "paper war" with the prosecution, deluging the jury
with hundreds of pages of documents and confusing them.
Clayton’s attorney wanted
to keep the picture he painted for the jury simple; that of a man
forever changed by a sawmill accident in 1972. The records Clayton now
complains about would have complicated that picture and shown the jury
that Clayton was also a violent man with a criminal record even before
his accident occurred. Also, some of the evidence cast a cloud of doubt
over claims about Clayton’s mental incapacity. Thus, the attorney’s
decision was consistent with his trial strategy and was not ineffective
The attorney was not
ineffective for failing to call Les Paul, a minister, to testify about
Clayton’s diminished capacity and religious faith. When the attorney
contacted Paul prior to trial about testifying about Clayton’s good
traits, Paul told him that he "couldn’t help him." An attorney is not
ineffective for failing to further investigate or call a witness to
testify who is unwilling to do so and who cannot be counted on to give
testimony favorable to his client. State v. Hall, 982 S.W.2d
675, 686 (Mo. banc 1998). Here, Paul’s statement gave the attorney
reason to believe that he did not want to testify and that he might
offer testimony harmful to Clayton’s case.
The fact that Paul now
claims he only told Clayton’s attorney he could not help him because he
distrusted the attorney is immaterial. At the time the attorney made
the decision not to call him, he was acting reasonably based on Paul’s
statements to him. An attorney is not required to be omniscient and see
the true reasons why a witness does not want to talk to him or testify.
attorney was not ineffective for failing to call Carolyn Dorsey. While
Dorsey could have testified about the change in Clayton’s personality
after the sawmill accident, the attorney presented other witness who
testified about the same thing. An attorney is not ineffective for
failing to offer cumulative testimony. Skillicorn v. State, 22
S.W.3d 678, 683 (Mo. banc 2000). Also, Dorsey would have provided the
prosecution on cross-examination with the opportunity to show that
Clayton had a violent temper even before his accident, undercutting
Clayton’s diminished capacity defense. It is not ineffective assistance
for an attorney not to call a witness that might undermine the whole
theory of trial. See State v. Richardson, 923 S.W.2d 301,
328 (Mo. banc 1996).
FAILURE TO ADJUDICATE
Clayton’s attorney was
not ineffective for failing to adjudicate his competency. 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. Richardson, 923
S.W.2d at 328. In this case, Clayton’s attorney had extensive prior
involvement with him before this case ever arose. From the fact that
Clayton was able to intelligently discuss his legal options with his
attorney, and even carry on correspondence with him about the case, the
attorney could reasonably conclude that he was competent to stand trial.
Clayton has also failed
to demonstrate that he was actually incompetent during his trial. The
trial court did not find Dr. Daniel Foster, the only expert to testify
that Clayton was incompetent, credible. Trial courts have a superior
opportunity to judge the credibility of witnesses, and this Court will
defer to a trial court’s credibility determination even on an expert
witness. State v. Simmons, 955 S.W.2d 752, 773 (Mo. banc 1997).
In this case, 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. He
further stated 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. Dr. Foster’s testimony is further undermined
by the fact he examined Clayton for the first time years after the
original trial occurred. The judge, who had also presided during
Clayton’s trial, had more than a reasonable basis to concluded that Dr.
Foster’s testimony was not credible and that Clayton was competent at
the time of his trial.
FAILURE TO PRESENT
SPECIFIC MITIGATING WITNESSES
Clayton argues that his
trial counsel should have called Carolyn Dorsey, Arnold Evans, Les Paul,
Norma Mitchell, and Delores Williams to testify during the penalty phase
of his trial. As has been noted before, the selection of particular
witnesses in general is a matter of trial strategy and is virtually
unchangeable on an ineffective assistance claim. Leisure, 828
S.W.2d at 875. In this case, none of the five witnesses Clayton
mentions would have added anything significant to his case during
Much of the testimony
presented by these witnesses would have been needlessly cumulative.
Under Missouri law, an attorney is not ineffective for failing to put on
cumulative evidence. Skillicorn, 22 S.W.3d at 683. Clayton
argues Evans, Dorsey, Paul, Williams, and Mitchell all should have been
called to testify about his background, his religious faith, his
religious ministry to others, or the change in his personality after the
accident. During the original trial, Clayton’s two brothers and the
chaplain from the county jail gave similar testimony, although sometimes
they relied on different incidents. Much of the information the witness
would have provided was on Clayton’s background. There is no
requirement that an attorney present any background information on his
client during a capital trial’s penalty phase. Richardson, 923
S.W.2d at 329.
Their testimony may well
have undercut the defense’s argument that Clayton’s brain injury and
ensuing mental incapacity were mitigating factors. For example, Dorsey
would have testified about Clayton’s violent temper as a young man and
would have helped the prosecution argue that Clayton’s brain injury was
not the only reason behind his actions. Paul would have also testified
about how Clayton was still able to do complex mental tasks after his
injury, like preaching in revivals. Because the testimony of these five
witnesses would have added little to Clayton’s case and in some ways may
have harmed it, his attorney was not ineffective for failing to call
Clayton has not
demonstrated that his attorney’s conduct fell below the objective
standard of reasonableness demanded of criminal practitioners. In this
regard, the finding and conclusions of the post-conviction court are not
clearly erroneous. The judgment is affirmed.