State ex rel. Richard Strong v. Cindy Griffith, Warden, Potosi Correctional Center , 2015 Mo. LEXIS 92 ( 2015 )

SUPREME COURT OF MISSOURI
en banc
State ex rel. Richard Strong )
)
Petitioner, )
)
v. ) No. SC95043
)
Cindy Griffith, Warden, )
Potosi Correctional Center )
)
Respondent. )
ORIGINAL PROCEEDING IN HABEAS CORPUS
On April 23, 2015, this Court issued a warrant for the execution of Richard Strong
on June 9, 2015. On June 4, 2015, Mr. Strong filed a petition for a writ of habeas corpus,
claiming his execution would violate the Eighth and Fourteenth Amendments of the
United States Constitution and article I, section 21 of the Missouri Constitution because
his severe mental illness at the time of his crimes makes him unfit to be executed. He
asks this Court to prohibit the state from executing him. In his petition, Mr. Strong fails
to allege facts that would prove entitlement to a writ of habeas corpus because he could
have raised his claim at trial, on appeal, or during post-conviction relief proceedings.
Missouri provides statutory safeguards at both the guilt and penalty phase of trial to
ensure that those with severe mental illness are not sentenced to the death penalty. See
sections 552.020, 552.030, 565.032.3(2), (6). 1 Habeas review of a conviction is not
appropriate where a defendant could have raised claims at trial, on direct appeal, or
during post-conviction relief proceedings according to the state’s procedural rules but did
not do so for reasons internal to the defense. State ex rel. Woodworth v. Denney, 396
S.W.3d 330, 337 (Mo. banc 2013). Moreover, habeas review does not provide
“duplicative and unending challenges to the finality of a judgment,” so it is not
appropriate to review claims already raised on direct appeal or during post-conviction
proceedings. Id. Because Mr. Strong failed to raise relevant mental illness claims at trial
due to a lack of evidence or a defense strategy and already raised a claim of his trial
counsel’s ineffectiveness for not presenting mitigating factors related to his mental
condition during the penalty phase of his trial, Mr. Strong cannot overcome the
procedural bar for not timely raising his current claim. Accordingly, Mr. Strong does not
raise a legally cognizable claim for habeas relief related to his claim that he was mentally
ill at the time of the murders.
Moreover, pursuant to the ban in the Eighth Amendment in the United States
Constitution on cruel and unusual punishment, a prisoner may not be executed whose
current mental illness “‘prevents him from comprehending the reasons for the penalty or
its implications’” or “those who are [currently] unaware of the punishment they are about
to suffer and why they are to suffer it.” Panetti v. Quarterman, 551 U.S. 930, 957,
(2007) (internal quotations and citation omitted); see also Ford v. Wainwright, 477 U.S.
1
All statutory references are to RSMo 2000, unless otherwise indicated. Sections
552.020 and 552.030 were amended in 2011 but no relevant substantive changes were
made.
2
399, 417, 422 (1986). Mr. Strong, however, does not claim that his current mental
condition makes him incompetent to be executed and, without a substantial threshold
showing otherwise, he is presumed competent because he was competent to stand trial.
Mr. Strong does not make such a substantial threshold showing so he does not raise a
cognizable competency claim. Accordingly, having failed to raise any legally cognizable
habeas corpus claim, this Court denies his habeas petition.
Factual and Procedural Background
In 2003, a jury convicted Richard Strong of two counts of first degree murder for
killing his girlfriend and her two-year-old daughter. Mr. Strong was sentenced to death
for the murders. This Court affirmed his convictions and death sentence on direct appeal
in 2004. State v. Strong, 142 S.W.3d 702 (Mo. banc 2004) (Strong I). In 2008, Mr.
Strong’s motion for post-conviction relief was overruled, and this Court affirmed that
decision. Strong v. State, 263 S.W.3d 636 (Mo. banc 2008) (Strong II). The United
States District Court for the Eastern District of Missouri denied Mr. Strong’s federal
petition for a writ of habeas corpus, and the United States Court of Appeals for the Eighth
Circuit affirmed that decision. Strong v. Roper, 737 F.3d 506 (8th Cir. 2013) (Strong III).
A. Mr. Strong’s Crimes 2
On October 23, 2000, police officers were dispatched to the home of Mr. Strong’s
girlfriend, Eva Washington, following a disconnected 911 call. The officers knocked on
both the front and back doors, but no one responded. Mr. Strong eventually came to the
2
The recital of Mr. Strong’s crimes is taken from the opinion of the Eighth Circuit
without further attribution. Strong III, 737 F.3d at 509-10.
3
back door, where the officers asked about his wife and children. Mr. Strong responded
that Ms. Washington and the children were asleep. He then stepped outside and closed
the door behind him. When asked again about Ms. Washington and the children, Mr.
Strong replied that Ms. Washington was at work and the children were inside the
apartment. The officers asked to check on the children, but Mr. Strong informed them
that he had locked himself out. Mr. Strong then knocked on the door, calling for
someone to open it. The officers noticed that Mr. Strong was sweating profusely, had
dark stains on the knees of his jeans, and had blood on his hands. When no one
answered, the officers kicked in the door. Mr. Strong ran away. After he was
apprehended, Mr. Strong told the officers, “[Y]ou should have shot me, they're both dead,
I killed them.”
Inside the apartment, the officers found the bodies of Ms. Washington and her
two-year-old daughter, Zandrea Thomas. The bodies were located on the floor in the
back bedroom, where the police also discovered a butcher knife. Ms. Washington and
Mr. Strong's three-month-old child was in the room as well but was unharmed. An
autopsy revealed that Ms. Washington had been stabbed twenty-one times and had five
slash wounds. Zandrea had been stabbed nine times and had twelve slash wounds. Both
Ms. Washington and Zandrea were disemboweled, and Mr. Strong had attempted to
decapitate Zandrea.
A jury convicted Mr. Strong of two counts of first degree murder. Mr. Strong was
sentenced to death for the murders on the recommendation of the jury. The jury found
the state had proven two statutory aggravators beyond a reasonable doubt. Strong II, 142
4
S.W.3d at 710 n.3; see section 565.032.1. Pursuant to section 565.032.2, the jury found
Mr. Strong had committed each murder while “engaged in the commission or attempted
commission of another unlawful homicide” and that the murders were “outrageously or
wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind[.]” Id.
The jury found that these aggravators were not outweighed by mitigating circumstances,
and, therefore, justified a sentence of death. See section 565.032.1.
B. Mr. Strong’s Trial
Prior to his trial, Mr. Strong’s counsel requested an evaluation of Mr. Strong’s
competency to stand trial under sections 522.020 and 522.030. The trial court appointed
Dr. John Rabun who “attempted to evaluate Strong on two separate occasions, but Strong
declined to be interviewed.” Strong III, 737 F.3d at 515. The court then ordered Mr.
Strong admitted to the Fulton State Hospital for observation. Id. After two weeks of
observation, Dr. Rabun concluded that Mr. Strong “had the capacity to know and
appreciate the nature, quality, and wrongfulness of his conduct,” “had the capacity to
form the intent as charged,” and did not have “any signs or symptoms to suggest [he] was
mentally ill.” Id. at 515-16. Mr. Strong’s counsel discussed this report with Mr. Strong
and his family but did not retain an independent doctor or mitigation specialist to further
evaluate and investigate Mr. Strong’s mental condition and did not raise the issue of his
mental health during the guilt or sentencing phase of Mr. Strong’s trial. Id. at 516,
519-20.
5
C. Mr. Strong’s Post-Conviction Proceedings
In his post-conviction proceedings, Mr. Strong asserted that his trial counsel was
ineffective for not adequately investigating and presenting all available mitigating factors
during the penalty phase of his trial. Mr. Strong contended that trial counsel failed to
adequately question two family members about his prior mental condition. Strong II, 263
S.W.3d at 652-53. Mr. Strong also contended that trial counsel was ineffective for not
seeking an independent mental health examination for Mr. Strong and should have called
experts such as Dr. Wanda Draper and Dr. Marilyn Hutchinson to prove that the murders
were caused by his severe mental illness. Id. at 653. Notably, Mr. Strong did not
contend that trial counsel was ineffective for failing to present a defense during the guilt
phase of his trial that Mr. Strong was not criminally liable by reason of a mental disease
or defect under section 552.030.
In denying his claims of ineffective assistance of counsel, the motion court found
trial counsel conducted a reasonable investigation of Mr. Strong’s family members. Id.
Regarding his claim that trial counsel should have presented expert testimony of his
mental condition, “the motion court found the testimony of Dr. Draper and
Dr. Hutchinson to be that of ‘paid experts with a biased opinion,’ that their opinions were
‘limited’ and based on ‘one-sided information,’ and that ‘neither expert would have
benefited or been helpful’ to Mr. Strong.” Strong II, 263 S.W.3d at 653 n.11. The
motion court ultimately found that trial counsel was not ineffective for not attempting to
present such expert testimony. Id. at 653. Significantly, Mr. Strong’s trial counsel had
testified that counsel “believed that the best strategy was to show Mr. Strong was a good
6
man, able to do good things—not to blame Mr. Strong’s actions on a bad childhood” that
“could appear to a jury as making excuses, which might alienate or offend a jury.” Id.
The motion court found this trial strategy was valid. Id. On appeal, this Court affirmed
the motion court’s judgment, finding that Mr. Strong did not receive ineffective
assistance of counsel. Id.
D. Mr. Strong’s Federal Habeas Proceedings
In his federal habeas petition, Mr. Strong again raised a claim of ineffective
assistance of trial counsel based on counsel’s failure to investigate and present expert
testimony that he was severely mentally ill at the time of the crimes. Strong III, 737 F.3d
at 519-20. Mr. Strong contended that trial counsel should have more thoroughly
investigated his mental health because a notation in his jail records indicated a family
history of schizophrenia. Id. The district court found trial counsel was not ineffective for
failing to hire an independent doctor or mitigation specialist to further evaluate Mr.
Strong or investigate his mental health issues. Id. On appeal, the Eighth Circuit held the
district court did not err in rejecting Mr. Strong’s ineffective assistance claim because
Mr. Strong had previously denied having any personal or family history of mental illness
and counsel’s investigation of Mr. Strong’s jail, work, and school records did not reveal
any evidence that would suggest he was mentally ill. Id.
Mr. Strong’s Present Claim of Mental Illness at the Time of the Offense
Mr. Strong now claims he should not be executed because he was severely
mentally ill at the time he committed his crimes. Mr. Strong does not claim he is not
currently competent to be executed under relevant legal standards but, instead, asks this
7
Court to extend the reasoning in Ford v. Wainwright, 477 U.S. 399 (1986), Atkins v.
Virginia, 536 U.S. 304 (2002), and Roper v. Simmons, 543 U.S. 551 (2005), to prohibit
the execution of those who were severely mentally ill at the time the offense was
committed. Mr. Strong argues that such a prohibition reflects an “evolving standard of
decency” under the Eighth Amendment.
Mr. Strong contends that a person with severe mental illness at the time of his or
her crime is similar to a person who is insane, intellectually disabled, or who is a
juvenile, insofar as none of the aforementioned groups possess the culpability the United
States Supreme Court requires in order to impose the death penalty. Atkins, 536 U.S. at
319. Mr. Strong asserts that, like the aforementioned groups, a person with severe mental
illness at the time of his or her offense is not “extremely culpable” because a person with
severe mental illness has “diminished personal responsibility for [his or her] actions” and
an “inability to make rational judgments or control his [or her] behavior.”
Mr. Strong argues that the execution of those who have severe mental illness at the
time of their crimes violates the Fourteenth Amendment because the United States
Constitution prohibits the execution of other groups that have lessened culpability for
their crimes yet allows the execution of those who were severely mentally ill at the time
of their crimes. Additionally, Mr. Strong argues that imposing the death penalty on a
person who had severe mental illness at the time of his or her crime violates the ban on
cruel and unusual punishment under the Eighth Amendment of the United States
Constitution and article I, section 21 of the Missouri Constitution because such an
execution could not serve the social goals of retribution or deterrence. Mr. Strong also
8
asserts that those who are severely mentally ill “risk an unjust death sentence” because
they are less able to assist counsel, may be poor witnesses, and may “create an
unwarranted impression of lack of remorse for their crimes” by their demeanor.
Mr. Strong does not cite any court decision in any jurisdiction as authority for his
claim. Instead, as support for this position, Mr. Strong offers statements from the
American Bar Association, Mental Health America, the Missouri Death Penalty
Assessment Team, and several academic articles that all recommended prohibiting the
execution of those who had severe mental illness at the time of their crimes. Mr. Strong
also provides an article discussing legislation recently proposed in the Ohio senate that
would prohibit the execution of those who had severe mental illness at the time of their
crimes and references several other states where such legislation also has been proposed
but not enacted.
In support of his claim that he was severely mentally ill at the time of his crimes,
Mr. Strong’s writ petition describes anecdotal evidence of his mental health issues before,
during, and immediately after he murdered Ms. Washington and her daughter.
Mr. Strong initially provided no affidavits or other exhibits to support his claim that he
was diagnosed with any mental illness of disorder. The state filed a response opposing
Mr. Strong’s writ petition and submitted five mental health examinations in support of its
contention that Mr. Strong did not make a factual showing that he was severely mentally
ill. These exhibits included Mr. Strong’s January 2002 pre-trial competency evaluation
and related reports from Dr. Rabun in January 2002 and 2003, a psychological
examination completed on June 26, 2003, and Mr. Strong’s most recent mental health
9
evaluation by the Department of Corrections on May 20, 2015. The reports all indicate
that Mr. Strong has not exhibited signs or symptoms of severe mental illness and has not
been diagnosed with severe mental illness. In response, Mr. Strong submitted a 2006
psychological report from Dr. Marilyn Hutchinson prepared in conjunction with Mr.
Strong’s post-conviction claim of ineffective assistance of counsel for failure to present
expert testimony and mitigation evidence of his mental condition at the time of his
crimes. Dr. Hutchinson diagnosed Mr. Strong with major depression, obsessive-
compulsive disorder, post-traumatic stress disorder, schizotypal personality disorder, and
dissociative identity disorder.
This Court, however, need not consider Mr. Strong’s and the state’s evidence
because Mr. Strong fails to present a cognizable claim for habeas corpus relief. Missouri
provides statutory safeguards at both the guilt and penalty phase of trial to ensure that
those with severe mental illness are not sentenced to the death penalty. See sections
552.020, 552.030, 565.032.3(2), (6). Section 552.020.1 provides that “[n]o person who
as a result of mental disease or defect lacks capacity to understand the proceedings
against him or to assist in his own defense shall be tried, convicted or sentenced for the
commission of an offense so long as the incapacity endures.” Mr. Strong did not assert
that he was incompetent to stand trial. Under section 552.030.1, “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.” Mr. Strong did not raise this defense
10
at trial and has not claimed that his trial counsel was ineffective for failing to raise this
defense.
Additionally, during the penalty phase of trial, section 565.032.3 allows a
defendant facing the death penalty to present evidence to the jury of mitigating
circumstances that would justify a sentence of life without parole instead of a sentence of
death. A defendant may present mitigating evidence that “[t]he murder in the first degree
was committed while the defendant was under the influence of extreme mental or
emotional disturbance” or that “[t]he capacity of the defendant to appreciate the
criminality of his conduct or to conform his conduct to the requirements of law was
substantially impaired.” Section 565.032.3(2), (6).
Due to either a lack of evidence or as trial strategy, Mr. Strong presented no
mitigating evidence related to his mental condition. Habeas review of a conviction is not
appropriate where a defendant could have raised claims at trial, on direct appeal, or
during post-conviction relief according to the state’s procedural rules but did not do so
for reasons internal to the defense. Woodworth, 396 S.W.3d at 337. Mr. Strong does not
overcome the procedural bar for not timely raising his current claims at trial. 3 Because
3
Additionally, even if Mr. Strong’s claim was not procedurally barred, he relies primarily
on vague allegations, anecdotes about his unstable family life, and one psychological
report completed nearly six years after Mr. Strong murdered Ms. Washington and her
daughter. This report diagnosed Mr. Strong with major depression, obsessive-
compulsive disorder, post-traumatic stress disorder and schizotypal personality disorder,
and dissociative identity disorder. He presents no other affidavits or evidence of his
mental condition at the time of the murders. In contrast, as discussed in Mr. Strong’s pre-
trial competency assessment report, police documented that immediately following the
murder Mr. Strong tried to conceal the murders when confronted by police and then fled
the scene, suggesting he knew the nature of his action and knew it was wrong. When
11
Mr. Strong failed to raise relevant mental illness claims at trial due to a lack of evidence
or as a defense strategy, and already raised a claim of his trial counsel’s ineffectiveness
for not presenting mitigating factors related to his mental condition during the penalty
phase of his trial, Mr. Strong cannot overcome the procedural bar for not timely raising
his current claim. Accordingly, Mr. Strong does not raise a legally cognizable claim for
habeas corpus relief related to this claim that he was mentally ill at the time of the
murders.
While a petition for a writ of habeas corpus is the proper means for raising a
claim that a prisoner is incompetent to be executed, Mr. Strong also does not claim that
he is not mentally competent to be executed. See State ex rel. v. Cole v. Griffith, --
S.W.3d --, Slip. Op. at 5, 2015 WL 2084708 (No. SC94880) (Mo. banc 2015). The
Eighth Amendment’s ban on cruel and unusual punishment precludes the execution of a
prisoner whose current mental illness “prevents him from comprehending the reasons for
the penalty or its implications” or “those who are [currently] unaware of the punishment
they are about to suffer and why they are to suffer it.” See also Panetti, 551 U.S. at 957
(internal quotations and citations omitted); Ford, 477 U.S. at 422. In Cole, -- S.W.3d --,
Slip. Op. at 5-6, this Court stated the applicable constitutional law related to the
execution of a person who claims incompetency dues to mental illness. To determine
police caught him, he spontaneously told officers, “They are both dead! You might as
well shoot me. They are dead!”, again suggesting that he understood the consequences of
what he had done. Both before and after being apprehended, Mr. Strong acted calm,
suggesting that he was in control and not mentally incapacitated. Moreover, none of
state’s three medical reports found Mr. Strong to present signs or symptoms indicative of
mental illness nor did Mr. Strong self-report mental illness to any of these doctors.
12
whether a prisoner may be executed, this Court must evaluate the prisoner’s present
mental condition. Moreover, “the state may presume that a prisoner who has been judged
competent to stand trial remains sane at the time sentence is to be carried out” unless he
can show “a substantial threshold showing of [current] insanity[.]” Cole, -- S.W.3d --,
Slip. Op. at 6.
Mr. Strong does not claim that he is not currently competent to be executed.
Accordingly, under current legal standards Mr. Strong may be executed. Mr. Strong’s
petition for a writ of habeas corpus requesting this Court to prohibit the state’s execution
of him because he was severely mentally ill at the time of his crimes does not state any
legally cognizable claims for habeas relief.
Conclusion
Mr. Strong does not state a legally cognizable claim for habeas corpus relief
because he raises claims that could have been raised according to this state’s procedures
but were not for reasons internal to the defense. Moreover, he does not contend that he is
currently mentally incompetent to be executed. Accordingly, because Mr. Strong has not
presented any legally cognizable claims for habeas relief, this Court denies his petition
for a writ of habeas corpus.
_________________________________
PATRICIA BRECKENRIDGE, JUDGE
Russell, C.J., Fischer, Stith, Draper
and Wilson, JJ., concur; Teitelman, J.,
dissents in separate opinion filed.
13
SUPREME COURT OF MISSOURI
en banc
State ex rel. RICHARD STRONG, )
)
Petitioner, )
)
v. ) No. SC95043
)
CINDY GRIFFITH, Warden, )
Potosi Correctional Center, )
)
Respondent. )
DISSENTING OPINION
I respectfully dissent. I would hold that the reasoning in Ford v. Wainwright, 477
U.S. 399 (1986), Atkins v. Virginia, 536 U.S. 304 (2002) and Roper v. Simmons, 543 U.S.
551 (2005) applies to individuals who, like Mr. Strong, were severely mentally ill at the
time the offense was committed. Therefore, I would grant habeas relief and appoint a
special master to more fully address Mr. Strong's claims.
_________________________________
RICHARD B. TEITELMAN, JUDGE