State, v. Smith, SC82000

CourtUnited States State Supreme Court of Missouri
Writing for the CourtMaynard
Citation32 S.W.3d 532
PartiesThis slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Supreme Court of Missouri State of Missouri, Respondent, v. John Clayton Smith, Appellant. Case Number: SC82000 Handdown Date:
Docket NumberSC82000
Decision Date05 December 2000

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Supreme Court of Missouri

State of Missouri, Respondent, v. John Clayton Smith, Appellant.

Case Number: SC82000

Handdown Date: 12/05/2000
Appeal From: Circuit Court of Audrain County, Hon. Edward D. Hodge

Counsel for Appellant: Gary E. Brotherton and Melinda K. Pendergraph

Counsel for Respondent: Shaun J. Mackelprang

Opinion Summary:

John Clayton Smith stabbed to death his ex-girlfriend and her step-father in July 1997. He was convicted of two first-degree murders and sentenced to death for each, among other crimes and sentences. He appeals.
Court en banc holds:
1) The prosecutor was not disqualified based on conflict of interest. The prosecutor had defended Smith in a 1981 work permit revocation proceeding and on a 1983 felony stealing conviction. Although evidence touching on both prior cases was admitted at trial, the cases were not substantially related to the instant case. Smith concedes that if he faced any punishment but death he would not question the prosecutor's ability to prosecute him, failing the conflict of interest standard in Rule 4-1.9. The Court will continue to follow its rule without engrafting an exception for first-degree murder cases in which the death penalty is sought.
2) Three jurors who could not sign a death verdict as foreperson, although they said they could consider the death penalty, were substantially impaired in considering the full range of punishment and performing their duties as jurors. No panel of 12 jurors who could not sign a verdict form assessing death could be said to have the unimpaired ability to consider the appropriateness of the death penalty. They were properly stricken for cause.
3) The court did not abuse its discretion when it sustained the state's objection to defense counsel's statements concerning the meaning of "life without parole."
4) A linoleum piece on which the victim wrote messages in her blood before she died, photographs of it, and testimony were admissible. One message identified the attacker, which the state needed to prove. Another message suggests she was the author and helps prove the messages were her dying declarations. The photographs showed the messages were present at the initial investigation. Expert testimony that parts were only visible with laser light and were not written with an assisted hand was admissible.
5) Smith's ex-wife's testimony was admitted not to attack Smith's character but, rather, to contrast his behavior before the killing with the past to show deliberation.
6) To test the validity and weight of experts' testimony, the state was permitted to cross-examine them on their knowledge of facts surrounding Smith's prior hospitalizations, including choking his wife and fighting a co-worker,. The court instructed the jury not to consider the testimony as evidence that Smith did or did not commit those acts. The state's argument that Smith planned the murder then tried to "cook up some kind of psychiatric mumbo-jumbo to get him out of it just like he's done before" was in the context of urging the jury to find deliberation, not evidence of uncharged crimes.
7) An officer's statement that he advised Smith of his Miranda rights was not a comment that Smith failed to respond so as to warrant mistrial.
8) The state's arguments did not: suggest jurors would have to explain to friends and family, suggest Smith has a propensity for behaving in a manner consistent with his guilt, turn the prosecutor into an unsworn witness, or diminish the jurors' sense of responsibility.
9) Although the state failed to disclose non-statutory aggravating circumstances when requested, which was error, manifest injustice did not result. Smith received some information about the evidence, such as the witnesses' names and several reports. The witnesses' testimony regarding his prior violence was unadjudicated, but both witnesses had obtained restraining orders.
10) The record reflects that the court considered only the facts and circumstances of Smith's case in sentencing, despite overruling an objection to the victim's family's testimony as to their sentence wishes.
11) The third aggravating circumstance was incorrectly drafted, directing the jury to consider whether the defendant entered the house to commit "a crime," without specifying murder. Smith was not prejudiced by the failure to specify the crime because the only crime evidenced was murder. Even if that part of the instruction were stricken, the penalty must be upheld because at least one other statutory aggravating circumstance supported it.
12) There was no error in admitting prior convictions and instructing the jury how to evaluate the evidence.
13) The court properly admitted victim impact evidence without specific instruction.
14) This Court again rejects attacks on the "depravity of mind and "multiple murder" instructions.
15) The case passes this Court's statutory proportionality review.

Dissenting Opinion Summary:
The dissenting author would grant a new trial on the basis that the prosecutor had a duty to disqualify himself under Rule 4-1.9. The prosecutor determines whether to seek the death penalty. Even if a prosecutor says he cannot remember the client's confidential communications, the failure to disqualify damages the integrity of the legal profession. The earlier case and current case are substantially related. Knowledge about the defendant's background becomes closely interwoven with the capital case.

Opinion Author: Ann K. Covington, Judge

Opinion Vote: AFFIRMED. Price, C.J., Limbaugh, Holstein and Benton, JJ., concur; Wolff, J., dissents in separate opinion filed; White, J., concurs in opinion of Wolff, J.

Appellant, John Clayton Smith, was convicted of two counts of murder in the first degree in violation of section 565.020.1, RSMo 1994, and two counts of armed criminal action in violation of section 571.015, RSMo 1994. Appellant was sentenced to death on each count of first degree murder and to consecutive twenty-year terms on the armed criminal action counts. Appellant appeals his convictions and sentences. Affirmed.
Viewed in the light most favorable to the verdict, State v. Barton, 998 S.W.2d 19, 21 (Mo. banc 1999), the facts are as follows. Appellant began dating Brandie Kearnes, one of the two victims in this case, in 1995. At that time, Brandie lived near Canton with her mother, Yvonne Kurz, and her step-father, Wayne Hoewing, the other victim. While they were dating, Brandie and appellant made plans to live together. Appellant borrowed $30,000 to buy a house for himself and Brandie. Around June 1, 1997, however, Brandie terminated the relationship with appellant, after which she chose to continue living with Yvonne Kurz and Wayne Hoewing.
Later that month, appellant contacted his former wife, Mary Smith, about visiting his children. Appellant had not visited his children for a year and a half prior to that time. Appellant visited with his children several times during June, once giving Smith some savings bonds and coin collections that he wanted the children to have.
At about 7:30 a.m. on the morning of July 4, 1997, appellant drove by O.C.'s Tavern in Canton and looked at Kearnes's car, which had been parked in the lot next to the tavern since the night before. Approximately fifteen minutes later, appellant telephoned Smith and asked what she planned to do with the children that day. Appellant was upset. When Smith asked why, appellant replied, "Everything." When Smith asked appellant if he was having difficulties with Brandie, he said, "Just everything. I can't talk about it now. I gotta go," and hung up. Sometime later during the same morning, appellant telephoned Yvonne Kurz and asked whether Brandie had come home the night before. Kurz responded that Brandie had not come home. Appellant then asked, "She is seeing someone else, isn't she?"
Later that afternoon, appellant, after seeing Brandie driving on the highway, followed her to Brian Brooks's house and pulled up behind her in the driveway. Brandie got out of her car and spoke to appellant for about three minutes. Appellant then left.
At 11:05 p.m., appellant purchased a twelve-pack of beer at a convenience store in Canton. The store clerk noticed that appellant was preoccupied and appeared to be in a "weird mood." Appellant left the convenience store and, sometime after 1:48 a.m. on July 5, 1997, drove to the residence where Brandie Kearnes and Wayne Hoewing resided. Appellant parked his truck approximately thirty yards from the residence. Taking some of the beers with him, but not any of the three guns he had in the truck, appellant walked around a large pond on the property and approached the residence. Appellant entered the residence through the basement door, took off his shoes, and went upstairs.
Appellant located Kearnes and began to scuffle with her in the living room and kitchen area of the house. Appellant stabbed or cut Brandie eight times during the scuffle. The wounds did not immediately cause Brandie's death; she had time to write "It was Joh-" "I Y Tatu-" and "--andi s-v- T-tum" on the kitchen floor with her own blood. The last two messages referred to Tatum, Brandie's infant daughter, who was found unharmed at the feet of Brandie's body.
Appellant then entered the Hoewing's bedroom and attacked Wayne, who had been awakened by the sounds of scuffling coming from the living room. Appellant got on top of Wayne on the bed and began stabbing him, inflicting eleven stab or cut wounds. Yvonne Kurz attempted to push appellant off Wayne, but appellant slashed her arm. She retreated into the bathroom and closed the door. While appellant was at the door of the bedroom, Wayne was able to gain possession of a loaded gun he kept in the house. Appellant, seeing the gun, said, "Shoot me. Go ahead and shoot me." No shots were...

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  • State v. Smith
    • United States
    • United States State Supreme Court of Missouri
    • December 5, 2000
    ... 32 S.W.3d 532 (Mo.banc This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. State of Missouri, Respondent, v. John Clayton Smith, Appellant. Case Number: SC82000 Supreme Court of Missouri Handdown Date: 12/05/2000 Appeal From: Circuit Court o......

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