IN THE SUPREME COURT OF MISSOURI JOHN C. MIDDLETON, ) ) Petitioner, ) ) v. ) No. SC93978 ) TROY STEELE, ) ) Respondent. ) SUGGESTIONS IN OPPOSITION TO PETITION FOR WRIT OF HABEAS CORPUS Case Summary John C. Middleton is under three sentences of death for three murder convictions in two counties. Middleton s habeas corpus petition in this case challenges Middleton s conviction for the Harrison County murder of Alfred Pinegar. The Circuit Court of Adair County imposed a sentence of death following a jury trial after a change of venue. Middleton raises six claims in his current petition for habeas corpus. Middleton raises three claims based on his assertion that the Missouri Highway Patrol collected insect larvae from the body on June 27, 1995, and a recent recantation by an insect expert based on that new date, because he based his calculation of the time of death on the collection of the insects on June 26, 1995. These claims are refuted by trial testimony and police reports that show
the Highway Patrol gathered the larvae on June 26, 1995, the date the insect expert used in his original calculation. Middleton also raises a claim of ineffective assistance of trial counsel based on a February 2014 affidavit from a former drug dealer who attempts to shift blame for the murder to a different drug dealer. The affidavit is not credible, and trial counsel had no reasonable way of knowing or finding out about the former drug dealer s current allegation at the time of trial. Further, there is no reason to believe the person who alleges he was a partner of one of the drug dealers whom he now seeks to incriminate would have testified at trial. Middleton alleges that Sheriff Martz made an unspecified deal for the penalty phase testimony of Spurling about two other murders committed by Middleton. Even though the trial court excluded Spurling s testimony from the Pinegar trial, Middleton alleges a Brady violation arose from the failure to disclose the unspecified deal, apparently on the theory that if Spurling had testified at the Pinegar trial, which he did not, the alleged deal could have been used to impeach him. Middleton also alleges his new evidence proves him actually innocent under the Amrine standard. 2
None of Middleton s claims has any legal merit. And all of his claims of trial error and ineffective assistance of counsel are procedurally barred as Middleton did not raise them in the ordinary course of review. I. Middleton s claims based on the time of death reflect Middleton s misunderstanding of the evidence presented at trial and are without merit as well as defaulted. A. The ineffective assistance of counsel claim is without merit. Middleton s first claim is that trial counsel allegedly failed to notice that the Highway Patrol allegedly collected insect larvae evidence at the autopsy on June 27, 1995. Middleton now claims that the insect expert who placed the time of death on the afternoon of June 23, 1995, was a day off in his calculation of the time of death because he mistakenly believed the Highway Patrol collected the larvae and placed them in alcohol on June 26, 1995 (Habeas Petition at 17-29). Middleton alleges that trial counsel was ineffective for failing to notice this alleged discrepancy. Middleton supports his claim with an affidavit from the coroner, Mr. Slaughter, made in 2014, nearly twenty years after the crime, indicating he placed the body of the victim, Mr. Pinegar, in a locked body bag at the crime scene on June 26, 1995, and did not remove the body until the autopsy on 3
June 27, 1995 (Affidavit of Mr. Slaughter, attached to Habeas Petition). Middleton also supplies a 2014 affidavit by Dr. Hall, the insect expert who testified at trial, revising the time of death from June 23, 1995 to June 24, 1995, based on the new information provided by Middleton placing collection of insect larvae at the autopsy on June 27, 1995, as opposed to June 26, 1995, the date Dr. Hall used in his original calculation (Affidavit of Dr. Hall attached to habeas petition). Trial counsel was not ineffective, as Middleton alleges, for not noticing that the expert based his calculation of the time death on collection of the larvae on June 26, 1995, when the larvae were, according to Middleton, collected on June 27, 1995, because the larvae really were collected on June 26, 1995. The Highway Patrol collected the insect larvae on June 26, 1995, the date originally relied on by Dr. Hall, not at the autopsy on June 27, 1995, and this is clear from the police reports and the trial testimony. There was no real discrepancy for defense counsel to notice or fail to notice. Middleton has manufactured the alleged discrepancy nearly two decades after the events. The Warden has attached as Exhibit 1 to this response reports from the Major Case Squad dated June 26, 1995. The June 26, 1995 reports note at three places the collection of entomological specimens from the body for submission to Dr. Hall at the University of Missouri (Resp. Ex. 1). 4
The Warden s Exhibit 2 to this petition is the trial testimony of the Coroner, and the Medical Examiner. The Coroner testified that he took the body from the crime scene in a body bag to a hospital where it was X-rayed, then, he took it to a funeral home where he placed it a steel container in a locked garage until the next day when the Medical Examiner arrived (Resp. Ex. 2 at 2395-99). Dr. Peterson, the medical examiner, testified she helped open the body bag after she arrived to do the autopsy on June 27, 1995 (Resp. Ex. 1 at 2404-2405). Dr. Peterson testified she did not collect any insects at the time of the autopsy (Resp. Ex. 1 at 2418). The Warden s Exhibit 3 to this response contains the testimony of the officer who collected the insect larvae, stating he did this on the day the body was found, and the day he collected other evidence, June 26, 1995. Trooper Clemonds testified he arrived at the crime scene between 10:30 and 11:00 in the morning on June 26, 1996 (Resp. Ex. 3 at 2439). Trooper Clemonds looked for things of evidentiary value and took a videotape of the crime scene (Resp. Ex. 3 at 2440). Among the things of evidentiary value Trooper Clemonds found and collected were shot wad, two cups from shotgun shells, two shotgun shells, a shotgun shell box, fragments of teeth, part of a jawbone, sunglasses, and a piece of leather fringe (Resp. Ex. 3 at 2444, 2454-57). Trooper Clemonds testified that he collected the insect evidence from the body on the same day that he collected 5
the other evidence, and placed the larvae in an alcohol solution and stored some live insects in a jar (Resp. Ex. 3 at 2466-67). Trooper Clemonds testified he collected the larvae at the funeral home, apparently before the coroner locked the body in the funeral home garage until the autopsy the next day (Resp. Ex. 3 at 2466-67). The evidence presented at trial shows Trooper Clemonds collected the insect larvae and placed them in alcohol on June 26, 1995, the same day Dr. Hall believed the larvae were collected when he testified at trial the victim was killed on June 23, 1995, based on the larval growth between the time of death and the time larvae were collected. His new affidavit is based on the incorrect representation made to him almost two decades after the events that the insects were collected on June 27, 1995. They were not. The claim of ineffective assistance of counsel is without merit. The claim is also procedurally barred because Middleton did not raise the claim in the ordinary course of review. See State ex rel. Taylor v. Moore, 136 S.W.3d 799 (Mo. 2004) (habeas petitioner must show cause and actual prejudice or actual innocence to excuse failure to raise the claim in the ordinary course of review). 6
B. Middleton s failure to disclose and presentation of false testimony claims are also without merit. Middleton s second claim in the habeas petition alleges that the State falsely represented to Dr. Hall that the State collected the insects on June 26, 1995, while suppressing that the insects were collected on June 27, 1995, at the autopsy, and that this alleged conduct violated the Due Process Clause. (Habeas Petition at 30-32). Middleton s third claim in the habeas petition alleges that the prosecutor knowingly presented false testimony by presenting the testimony of Dr. Hall about the time of death, which Middleton alleges the prosecutor s knew was erroneous (Habeas Petition at 33-34). Both these claims are procedurally barred because Middleton did not present the claims in the ordinary course of review. The claims are also without merit for the reasons presented in the discussion of Middleton s ineffective assistance of counsel claim. Because the record establishes the Highway Patrol collected the insects on June 26, 1995, allegations of misconduct based on alleged collection during the autopsy on June 27, 1995 are without merit. III. Middleton s claim that trial counsel was ineffective for not presenting evidence concerning Kelly Davis is without merit. Middleton presents, as his Exhibit 18 to the habeas petition, a July 17, 1995, Highway Patrol report of a polygraph of Mr. Lynn J. Trammel concerning 7
information he gave the Highway Patrol about two other murders committed by Middleton, those of Hodge and Hamilton in Mercer County Missouri, not the murder of Pinegar. The report indicates Trammel told the examiner that he had gotten out of jail on Thursday June 8, 1995, and on Saturday June 10, 1995, he and an accomplice, Spurling, had beaten Kelly Davis with a baseball bat because Davis owed Trammel money for drugs (Exhibit 18 to Habeas Petition). Middleton has attached as Exhibit 22 to his habeas petition a February 2014 affidavit signed by Kelly Davis who claims to have been a methamphetamine dealer in 1995. The affidavit claims that Trammel and Spurling suspected Davis was a snitch and beat him in the presence of Pinegar s corpse, a day or two before the body was discovered on June 26, 1995, as opposed to beating him on June 10, 1995, because he owed them money. The affidavit also claims that Trammel apologized a few days after the beating and the two went back into the methamphetamine business together (Habeas Petition Exhibit at 22). Middleton now alleges trial counsel was constitutionally ineffective for not investigating, discovering, and presenting the evidence of Kelly Davis at Middleton s trial, presumably to blame the murders on Trammel and Spurling (Habeas Petition at 68-69). The claim is procedurally barred from habeas review, because Middleton did not raise the claim in the ordinary course of review. The claim is also without legal merit under the standard in Strickland v. 8
Washington, 466 U.S. 668 (1984). No reasonable person could conclude from a polygraph examination of Trammel in which he referenced beating Kelly Davis over a drug debt on June 10, 1995, that Davis would, at some future date, claim Trammel beat him in the presence of Pinegar s body sometime between June 23, 1995, and June 26, 1995, because he suspected Davis of being a snitch. There is no reason to believe Davis would have testified at trial as he now alleges in his affidavit, particularly as he alleges he was in the drug business with the person on whom he allegedly would have thrown suspicion. Further, the current affidavit is not credible. Davis could have come forward at any time. But now he states: For all these years I have been afraid to go to the authorities. But now that Middleton s lawyers have contacted me the right thing to do is tell the truth (Habeas Petition Exhibit 22 at Paragraph 33). Davis is not credible after having waited nearly two decades to make his current statement. IV. Middleton s claim about an unspecified secret deal for the testimony of Spurling is procedurally barred and without legal merit. Middleton alleges that the State wished to call Danny Spurling at the penalty phase of the Pinegar murder trial to testify about other murders for which Middleton had been charged, but not yet convicted (Habeas Petition at 35). Middleton admits that the trial court did not allow Spurling to testify in the Pinegar trial (Habeas Petition at 35). 9
Middleton alleges that Sheriff Martz and Spurling made an unspecified, secret deal for Spurling s trial testimony, at a meeting at Spurling s farm in Iowa, and that this violated Brady v. Maryland, 373 U.S. 83 (1963) (Habeas Petition at 70-72). What Middleton is really arguing is that a Brady violation occurred because he suspects the Sheriff made an unspecified, secret deal for the penalty phase testimony of a prosecution witness whom the court did not allow to testify at the Pinegar trial. The claim about an unspecified, secret deal is speculation, and Middleton was not prejudiced by lack of impeachment material on a potential State s witness who was not permitted to testify. The claim is also procedurally barred because Middleton did not raise the claim in the ordinary course of review. Appellate counsel acted properly in not pursuing the claim, as it is without merit. In the appeal of the Hodge and Hamilton murders, a case in which Spurling did testify at trial, this Court rejected a claim by Middleton that the trial court erred in allowing Sheriff Martz to testify that the Iowa prosecutor told Sheriff Martz that Spurling s Iowa charges were dismissed based on the weakness of the Iowa case. State v. Middleton, 998 S.W.2d 520, 527-28 (Mo. 1999). This Court held the hearsay testimony was proper under the rule of curative admissibility as Middleton repeatedly emphasized the inference that Sheriff Martz had asked the Iowa prosecutor to dismiss Spurling s charges as part of a deal. Id. There is no reason 10
to believe any variation on the secret deal theme would have succeeded in the appeal of the Pinegar murder conviction either, particularly as Spurling did not testify at the Pinegar trial. V. Middleton s actual innocence claim is without legal merit. The standard for actual innocence review of a defaulted claim in federal habeas corpus is set out in Schlup v. Delo, 513 U.S. 298, 327 (1994). In order to pass through this gateway, a petitioner must present new evidence in light of which it is more likely than not that no reasonable juror would have convicted. Id. at 327. Actual innocence analysis involves analysis of all the evidence including that alleged to have been illegally admitted, that alleged to have been wrongly excluded, and that which has been newly discovered. Id. at 327-328. Actual innocence analysis focuses on new reliable evidence of factual not legal innocence such as credible declarations of guilt by another, trustworthy eyewitness accounts, and exculpatory scientific evidence. Pitts v. Norris, 85 F.3d 348, 350-51 (8 th Cir. 1996). New evidence in this context means evidence the factual basis of which could not previously have been discovered through due diligence. Meadows v. Delo, 99 F.3d 280, 282 (8th Cir. 1996). In Clay v. Dormire, 37 S.W.3d 214, 217-18 (Mo. 2000), this Court adopted federal actual innocence analysis for reviewing defaulted claims in habeas corpus. State ex rel. 11
Nixon v. Jaynes, 63 S.W.3d 210, 215 (Mo. 2001) (stating This Court in Clay v. Dormire adopted the federal standard for manifest injustice ). In State ex rel. Amrine v. Roper, 102 S.W.3d 541, 548 (Mo. 2003), this Court held that an inmate may use habeas corpus to raise a free standing claim of actual innocence, seeking discharge from confinement, but he must meet a higher standard than the Schlup/Clay standard, proving actual innocence by clear and convincing evidence. Clear and convincing evidence instantly tilts the scales in the affirmative when weighed against the evidence in opposition, and the fact finder is left with an abiding conviction that the evidence is true. Id. Middleton alleges his newly discovered evidence proves him actually innocent under the Amrine standard and entitles him to discharge from confinement (Habeas Petition at 72-73). It does not come close. This Court set out the evidence supporting conviction in State v. Middleton, 995 S.W.2d. 443, 451-52 (Mo. 1999). That evidence was strong, and remains strong. Middleton s allegedly new evidence is based on an inaccurate and easily refuted assertion that insect evidence was gathered on June 27, 1995, despite clear evidence in the record it was gathered on June 26, 1995, and on an incredible affidavit from a former methamphetamine dealer, made nearly two decades after the crime, seeking to shift the blame for the murder to someone besides Middleton. VI. Conclusion 12
This Court should deny the petition for habeas corpus and set a date for the execution of Middleton s death sentence for the Pinegar murder, or for one of the other murders for which he has been convicted and sentenced to death. Respectfully submitted, CHRIS KOSTER Attorney General /s/ Michael J. Spillane CERTIFICATE OF SERVICE This pleading has been electronically filed with this Court on March 13, 2014 and should be served by this Court s e-filing system on opposing counsel. MICHAEL J. SPILLANE Assistant Attorney General Missouri Bar No. 40704 Post Office Box 899 Jefferson City, MO 65102-0899 Telephone: (573) 751-1307 Facsimile: (573) 751-3825 ATTORNEYS FOR RESPONDENTS /s/michael J. Spillane Assistant Attorney General 13