State ex rel. Leon v. Taylor and Willie Kelly Owens, Relators v. Terry Russell

SUPREME COURT OF MISSOURI
en banc
STATE ex rel. LEON V. TAYLOR )
and WILLIE KELLY OWENS, )
Relators, )
)
vs. ) No. SC94602
)
TERRY RUSSELL, )
)
Respondent. )
ORIGINAL PROCEEDING IN MANDAMUS
Opinion issued December 9, 2014
Leon V. Taylor (“Taylor”) was convicted of first-degree murder, first-degree
robbery, first-degree assault, and three counts of armed criminal action after shooting and
killing a gas station attendant in front of the attendant’s eight-year-old stepdaughter.
Taylor’s half-brother, Willie Kelly Owens (“Owens”), participated in the robbery, but not
the shooting. Owens pleaded guilty to a robbery charge in exchange for his cooperation
in Taylor’s prosecution. Taylor was sentenced to death. This Court affirmed Taylor’s
death sentence. State v. Taylor, 18 S.W.3d 366 (Mo. banc 2000).
Taylor’s execution was scheduled for November 19, 2014, at 12:01 a.m. On
November 18, 2014, Owens visited Taylor and was told at the conclusion of his visit that
he would not be permitted to witness Taylor’s execution, although Taylor designated
Owens as a witness. Taylor and Owens then filed a petition for a writ of mandamus to
compel Terry Russell, the warden and director of the Eastern Reception Diagnostic and
Correctional Center in Bonne Terre, Missouri (“Respondent”), to permit Owens to
witness Taylor’s execution. Taylor alleged that he had a statutory right to have certain
witnesses present at his execution. He further alleged Respondent’s refusal to comply
with the statute violated Taylor’s rights as well as the ex post facto clause of the United
States Constitution. Respondent filed suggestions in opposition, arguing the prison’s
security could be compromised if Owens were permitted to witness the execution and no
ex post facto violation would occur. Taylor and Owens filed a reply.
In accordance with Rule 84.24(j), this Court being informed fully of the issues
presented, dispensed with further briefing and oral argument in the interest of justice
given the immediacy of the proceedings. On November 18, 2014, this Court issued a
permanent writ of mandamus ordering Respondent to permit Owens to be present as a
witness at Taylor’s execution. The Court now issues this opinion pursuant to Rule
84.24(l) to explain its reasoning.
Standard of Review
This Court has jurisdiction to issue original remedial writs. Mo. Const. art. V, sec.
4. A litigant seeking mandamus must “allege and prove that he [or she] has a clear,
unequivocal, specific right to a thing claimed.” State ex rel. Young v. Wood, 254 S.W.3d
871, 872 (Mo. banc 2008) (quoting Furlong Cos., Inc. v. City of Kansas City, 189 S.W.3d
157, 166 (Mo. banc 2006)). “Ordinarily mandamus is the proper remedy to compel the
discharge of ministerial functions, but not to control the exercise of discretionary
powers.” State ex rel. Mertens v. Brown, 198 S.W.3d 616, 618 (Mo. banc 2006).
Analysis
In their writ petition, Taylor and Owens allege Taylor designated Owens as a
witness to the execution pursuant to section 546.740, RSMo 2000. 1 Section 546.740
provides:
The chief administrative officer of the correctional center, or his duly
appointed representative shall be present at the execution and the director of
the department of corrections shall invite the presence of the attorney
general of the state, and at least eight reputable citizens, to be selected by
him; and he shall at the request of the defendant, permit such clergy or
religious leaders, not exceeding two, as the defendant may name, and any
person, other than another incarcerated offender, relatives or friends, not to
exceed five, to be present at the execution, together with such peace officers
as he may think expedient, to witness the execution; but no person under
twenty-one years of age shall be allowed to witness the execution.
(Emphasis added). Taylor and Owens argue the statute’s language is mandatory.
Specifically, Taylor and Owens argue Respondent has no statutory authority to exclude a
defendant’s designated witness so long as the witness is not another incarcerated offender
or under the age of twenty-one years. Respondent disagrees, arguing that section 546.740
must be read in conjunction with section 217.025.6, which provides Respondent “shall
make and enforce such rules, regulations, orders and findings as [he] may deem
necessary for the proper management of all correctional centers and persons subject to
the department’s control.” Respondent argues Owens was Taylor’s co-defendant, and
Owens’ presence at the execution would pose a threat to the prison’s safety and security
because the victim’s family members also would be present. Respondent argues he was
1
All statutory references are to RSMo 2000 unless otherwise indicated.
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exercising his discretion and authority lawfully pursuant to section 217.025.6 when he
issued an order barring Owens from witnessing the execution.
There is no Missouri caselaw construing either of the statutes at issue. However,
“[t]he doctrine of in pari materia recognizes that statutes relating to the same subject
matter should be read together, but where one statute deals with the subject in general
terms and the other deals in a specific way, to the extent they conflict, the specific statute
prevails over the general statute.” Turner v. Sch. Dist. of Clayton, 318 S.W.3d 660, 668
(Mo. banc 2010). The statutes at issue here conflict regarding Respondent’s discretionary
authority to enact rules governing prison management and his statutory duty to permit a
defendant’s designated individuals to witness the execution. The specific duties imposed
on Respondent during an execution by section 546.740 must prevail over the general
statutory discretion granted by section 217.025.6 to enact basic rules attendant to prison
management and safety.
In reading the language in section 546.740, Respondent’s duty is clear and
unequivocal. Respondent shall allow a defendant’s designated individuals to witness the
execution, provided the witness is not another incarcerated offender or under the age of
twenty-one years. The statute contains no exception or prohibition for co-defendants
who participated in the underlying crime. Respondent’s concerns regarding the ability to
maintain prison safety during the execution are well-taken. However, the statute
contemplates the potential for ill will arising between the victim’s family and the
defendant’s designated witnesses at the execution. The legislature determined both have
a right to be present to witness the proceeding. In the event Respondent has a concern
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regarding the witnesses’ safety during the execution, section 546.740 specifically vests
Respondent with the authority to invite “such peace officers as he may think expedient, to
witness the execution” to maintain security rather than barring witnesses from viewing
the execution.
Conclusion
Taylor and Owens demonstrated they had a clear, unequivocal, specific right to
have Owens witness Taylor’s execution pursuant to section 546.740. This Court need not
reach Taylor’s ex post facto claims. Accordingly, this Court issued a permanent writ of
mandamus ordering Respondent to allow Owens to be a witness to Taylor’s execution
scheduled for November 19, 2014.
______________________________
GEORGE W. DRAPER III, JUDGE
All concur.
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