State of Missouri v. Timothy Johnston - Supreme Court Case Number: 74064 (May 25, 1997)

Case Facts: On June 30, 1989, paramedics responded to a 911 call. When police and emergency personnel arrived at Nancy and Timothy Johnston's home, Tim Johnston directed them to "hurry up, inside. She is in here. She needs help."

The sidewalk and porch were bloody. Inside, Tim Johnston bent over his wife, who was lying on the floor with her otherwise nude upper body draped with a shirt, her face and torso swollen and bloody. Paramedics declared her dead at the scene. An autopsy revealed extensive, blunt-trauma injuries over much of her upper body; a broken nose, collarbone and front and back ribs; bruised, torn and scraped lips, head, face and scalp; and bruising and tearing in her liver, heart and spleen. The medical examiner determined she died when the support structure around the heart and lungs collapsed, rendering those organs unable to function because they could not bear the weight of the muscle, tissue and bone pressing on them. Bleeding under the skin confirmed the victim remained alive through most of the beating.

When informed that his wife was dead, Johnston flew into a rage and ordered the officers and paramedics to leave and screamed that he knew a motorcycle gang that wanted "to get back at him" had killed his wife. The police officers, now at a murder scene, did not leave.

Officers on the scene learned that a third person, Michael Federhofer, Nancy Johnston's eleven-year-old stepson, also lived in the house. They check the house to see whether the son was also a victim and to determine whether any members of the motorcycle gang to which Johnston had referred remained in the house. In that process the officers discovered evidence discussed below. One of the officers had seen Johnston earlier in the evening when he responded to a call reporting an assault in progress at another location. When the officer arrived at the location and approached a car with a broken windshield, the driver sped off. The officer gave chase briefly but returned to the place of the assault to interview witnesses. Two witnesses reported seeing a man they later identified as Tim Johnston kicking and stomping a woman.

A detective informed Johnston of his Miranda rights and told Johnston he believed Johnston was involved in the murder. Johnston initially denied involvement then said members of a rival motorcycle gang had dumped his wife's badly-beaten body on the driveway. The detective told Johnston eyewitness accounts differed substantially from his story.

Johnston called his wife a "whore" and indicated he had grown tired of her infidelities. He confessed that he argued with Nancy, shot the house and television with a pistol, kicked in the windshield of the car that Nancy tried to drive away, and when she tried to run, chased her and resumed hitting and kicking her. The police found the stepson at his grandmother's. He confirmed parts of Johnston's story and added seeing Johnston hit her in the car.

A neighbor told police she saw a man kicking a woman and calling her names. She recognized the voices of Nancy's stepson and the man who lived with Nancy. She saw the man drag the woman behind some bushes, beat her with a lawn chair, go into the house, and return with a new weapon to beat the still body. She saw him drag the body over the porch and into the house.

A jury convicted Johnston of first degree murder. On the jury's recommendation, the trial court sentenced Johnston to death. Johnston filed a timely Rule 29.15 motion, which the motion court overruled. Johnston appealed the conviction and sentence and the motion court's ruling.

Legal Chronology

1989
06/30 - Timothy Johnston murders Nancy Johnston in St.Louis, Missouri.
07/24 - Johnston is charged by indictment with First Degree Murder and Armed Criminal Action.

1991
05/16 - The jury returns a verdict of guilty of Murder 1st Degree and Armed Criminal Action.
05/18 - The jury returns a death sentence as punishment for First Degree Murder and life imprisonment for Armed Criminal Action.
07/26 - The St.Louis City Circuit Court sentences Johnston to death for the First Degree Murder conviction and to Life for Armed Criminal Action.

1992
01/02 - Johnston files a motion for post-conviction relief in the Circuit Court of St.Louis City.

1996 - 09/30 - The Circuit Court denies post-conviction relief.

1997 - 11/25 - The Missouri Supreme Court affirms Johnston's conviction and sentence and the denial of post-conviction relief.

1998
03/02 - The United States Supreme Court denies certiorari review. Johnston v. Missouri, 522 U.S.5O(1998).
08/14 - Johnston files a petition for writ of habeas corpus in the United States District Court for the Eastern District of Missouri.

2000
11/02 - The District Court denies the petition for writ of habeas corpus. Johnston v. Bowersox, 119 F.Supp. 2d 971 (E.D.Mo.2000).

2002
05/01 - The Court of Appeals affirms the deniaL of habeas relief. Johnston v.Luebbers, 288 F.3d 1048 (8th Cir. 2002).

2003
01/21 - The Supreme Court declines certiorari review. Johnston v. Roper, 537 U.S. 1166 (2003).
05/12 - The State requests the Missouri Supreme Court to set an execution date.

2005
08/01 - The Missouri Supreme Court sets Johnston’s execution date of August 31, 2005.

Wednesday, August 31, 2005 - Johnston writhes before execution
Missouri's latest execution took place as scheduled . . . but not without some dramatics at the state prison in Bonne Terre.

At 12:07 this morning the state executed Timothy Johnston of St. Louis for the beating and kicking death of his wife Nancy in June of 1989. Johnston's final appeal that Missouri's method of execution is cruel and unusual punishment, at first, gained him a stay from a three-judge panel on the 8th Circuit Court of Appeals. But the full court later stepped in and the execution was back on schedule.

Johnston seemed intent to prove his defense was true as he writhed on the gurney for what seemed like a minute. But some witnesses thought he was moving BEFORE the announcement that the first drug was administered an observation Correctons Department spokesman John Fougere says his staff saw as well.

Fougere went on to dismiss the possibility that the drugs ending Johnston's life were administered before the announcement was made. He would not speculate why Johnston was squirming. [John Davis, The Missourinet]

St. Louis Post-Dispatch

"Man is executed for killing wife in 1989," by Tim O'Neil. (Wednesday, August 31, 2005)

Bonne Terre, Mo. — A man who tried to hold off his execution by arguing that Missouri's system of lethal injection is unconstitutionally painful was put to death early today for beating his wife to death in 1989.

Timothy Johnston, 44, of St. Louis, was pronounced dead at 12:07 a.m. in the death chamber at the two-year-old prison here. Moments before the first drug was administered, Johnston rolled his head back and forth and appeared to grimace. But he stopped moving once the drug appeared to take effect.

Lawyers for Johnston had argued vigorously in federal courts that Missouri's three-drug method of execution presented the threat of a "painful and protracted death," in violation of the U.S. Constitution's bar to cruel and unusual punishment.

Johnston was condemned for murdering his wife, Nancy Johnston, 27, by beating and kicking her on June 30, 1989. The beating began in her car and continued at their home in the 4700 block of Minnesota Avenue. She was pronounced dead at the scene. He confessed shortly afterward, saying he had become enraged over an argument they had had in a tavern that evening.

Johnston's constitutional claim was rejected Friday by a U.S. District Court judge downtown, but he won relief Tuesday from a three-judge panel of the Eighth U.S. Circuit Court of Appeals in St. Louis. The 2-1 vote put an eight-day stay on the execution.

Missouri Attorney General Jay Nixon then appealed to the full bench of the Eighth Circuit, which overruled the stay shortly before 9 p.m. Johnston's lawyers then appealed to the U.S. Supreme Court, but their plea was rejected. Also Tuesday evening, Gov. Matt Blunt declined to use his power to reduce Johnston's sentence to life in prison.

"Nancy Johnston died a horrific death at the hands of her own husband," said Blunt, who called execution "an appropriate punishment for this crime."

Johnston's claim against lethal injection as a last-chance argument after all of his other appeals failed. His was one of several have been raised across the country against the practice. Trial-level judges generally have rejected the claim, but appeals are pending in three states.

Missouri is one of 27 states that carry out executions by administering a series of three drugs intravenously in rapid succession. (All told, 37 states have the death penalty.) The procedure begins with a heavy sedative to render the condemned unconscious, followed by a drug to end breathing and another to stop the heart. The sedative, sodium pentothal, renders the condemned motionless within seconds. Death usually is pronounced within four minutes.

Johnston's argument was that, if the state doesn't properly administer the sedative, he could be conscious during the other drugs and experience "a painful and protracted death."

After a hearing Friday, U.S. District Judge Charles A. Shaw rejected Johnston's claim as speculation, adding, "The ever-present possibility of human error or accident is insufficient to establish a constitutional violation."

Johnston declined to take phone calls Tuesday evening from reporters while he was in the waiting room near the chamber. Prison officials said he ate a last meal of fried chicken, catfish, fries, cole slaw, apple pie and Dr. Pepper.

Johnston was the 65th man to be executed by injection in Missouri since the state resumed carrying out the death penalty in 1989 under current U.S. Supreme Court rules. He was the third executed in the death chamber at the two-year-old prison in Bonne Terre, 60 miles south of St. Louis.

All but one of the others were carried out at the Potosi Correctional Center, where condemned men are confined among general inmate population.

ProDeathPenalty.Com

The state Supreme Court on Monday set an Aug. 31 execution for a St. Louis man convicted of killing his wife in 1989. Timothy Johnston, 44, is one of Missouri's longest-serving death row inmates. He was convicted in 1991 of fatally kicking and beating his wife, Nancy, on June 30, 1989, after a night of drinking at a south St. Louis tavern near their home. In a still-pending case filed last year in federal court, Johnston is seeking to block his execution on grounds that the lethal injection would violate his constitutional right against cruel and unusual punishment. His lawsuit contends the state's chemical mixture -- sodium pentothal, pancuronium bromide and potassium chloride -- will cause him to "consciously suffer an excruciating, painful and protracted death." He also argues that the dose is administered by inadequately trained personnel with inappropriate equipment. Attorney General Jay Nixon said he would continue to fight any attempts by Johnston to avoid execution. "The brutality of this murder was such that the jury determined that death was the appropriate punishment," Nixon said in a written statement.

(AP) UPDATE: A three-judge panel of the 8th US Circuit Court of Appeals has granted a stay of execution for convicted killer Timothy Johnston, scheduled to die a minute after midnight at the state prison in Bonne Terre. Johnston faces execution for the kicking and beating death of his wife in 1989. Johnston has claimed that lethal injection is unconstitutionally cruel. The three-judge panel has issued a stay of execution until September 8th. Attorney General Jay Nixon has asked the full 8th Circuit to hear the state's appeal of the three-judge ruling and allow the execution to take place as scheduled.

UPDATE: The 8th U.S. Circuit Court of Appeals on Tuesday night vacated a stay of execution granted earlier in the day to a Missouri man scheduled to be put to death early Wednesday. A three-judge panel of the appeals court voted 2-1 earlier Tuesday to stay the execution of Timothy Johnston until Sept. 8. But Attorney General Jay Nixon asked the full appeals court to overturn the stay, which it did. Johnston, 44, convicted of beating his wife to death in 1989, was scheduled to die by injection at 12:01 a.m. Wednesday at the state prison in Bonne Terre. He asked the appeals court to consider the case after a federal judge last week ruled that the state's three-drug method of lethal injection does not violate Johnston's constitutional right against cruel and unusual punishment. Johnston's attorney, Chris McGraugh, did not return phone messages seeking comment after the court lifted the stay, but earlier said he would appeal to the U.S. Supreme Court if the panel's ruling were reversed. Gov. Matt Blunt also was considering Johnston's clemency request. Johnston declined to be interviewed.

Johnston and his wife, Nancy, began arguing at a St. Louis bar on June 30, 1989. Former prosecutor Joseph Warzycki said Nancy Johnston became scared of her husband and went to the car to drive away. Johnston jumped on top of the car and eventually pulled his wife from it, then kicked her repeatedly, Warzycki said. He took her home and beat her severely in front of her 11-year-old son. With his wife's lifeless body sprawled on the floor, Johnston called paramedics who arrived to find the sidewalk and porch covered in blood. Inside, they found Nancy Johnston dead, her face and torso swollen and bloodied. An autopsy revealed a broken nose, collarbone and ribs; bruising and tearing in her heart, liver and spleen; injuries to her head, face, scalp and lips. Bleeding under the skin confirmed she was alive throughout her severe beating. "It was just barbaric," Warzycki said. Johnston at first blamed a motorcycle gang. He later confessed, accusing his wife of infidelities.

Johnston has expressed "considerable regret" over the crime, McGraugh, said. He said the couple had long had a volatile relationship. In addition to abusing alcohol since adolescence, Johnston had brain damage caused in part by alcohol abuse and in part by head injuries suffered over his lifetime, McGraugh said. Johnston had several run-ins with police - mostly peace disturbance, McGraugh said - but no felony record before the murder. But Warzycki, who left the St. Louis circuit attorney's office earlier this year to become a federal judge in Peoria, Ill., said the only reason Johnston had no previous convictions was because people were too scared of him to press charges. "He was violent, no doubt about it," Warzycki said.

National Coalition to Abolish the Death Penalty

Missouri - Timothy Johnston - August 31, 2005

The state of Missouri is scheduled to execute 44-year-old Timothy Johnston, a white man, on Aug. 31, 2005 for the June 30, 1989 murder of his wife Nancy.

Johnston claims law enforcement officials violated his Fourth Amendment right to be free of unreasonable searches and seizures when they recovered evidence without benefit of a warrant. Johnston asserts police used this “illegally seized” evidence to obtain Johnston’s subsequent confession and that the trial court erred in refusing to suppress both the evidence and the confession. The appeals court ruled that the evidence that convicted him was legally obtained and that the evidence illegally obtained was only circumstantial.

Johnston alleges that there was prosecutorial misconduct at trial. Johnston assigned error to references the prosecutor made in closing argument to Satan. The state said, referring to Johnston, “Ladies and gentlemen … there sits Satan. There sits embodiment of evil.” Even though the objections were upheld and the jury was to disregard the statement there is a high likelihood that the jurors would not be able to forget this statement. The trial court refused to uphold the objection when the prosecutor said “domestic violence is ten times more violent on the average than when violence happens on the streets.” If this statistic was true, it was not a fact in evidence.

Johnston also claimed that his defense counsel failed to investigate and present mental health evidence of a psychiatrist’s apparent finding that Johnston could not deliberate because of head injuries, alcohol dependence and either organic or personality disorder. Johnston claimed his trial counsel was ineffective in failing to obtain and present to certain experts’ “objective evidence” of his alleged brain damage. He argues he should have received an MRI test to determine the existence of any brain abnormalities. The appeals court ruled that the tests given were adequate and that it was not ineffective assistance of counsel by not giving him an MRI.

His final claim is that lethal injection is a violation of his Eighth Amendment right against cruel and unusual punishment. He contends that state’s chemical mixture of sodium pentothal pancuronium bromide and potassium chloride will cause him to “consciously suffer an excruciating, painful and protracted death.” He also argues that inadequately trained personnel with inappropriate equipment will administer the dose.

Johnston is a man with a possible mental illness, his trial was surrounded by prosecutorial misconduct. It would be cruel and unusual to put this man to death. Please contact Gov. Blunt and the Missouri Board of Pardons and Paroles and ask them to spare the life of Timothy Johnston.

Columbia Missourian

"Man put to death after court lifts stay," by Elizabeth A. Phillips. (August 31, 2005)

ST. LOUIS — Timothy Johnston, 44, was executed at 12:07 a.m. today at the Missouri state prison in Bonne Terre. Johnston was convicted of beating his wife, 27-year-old Nancy Johnston, to death in front of her 11-year-old son in 1989, according to Associated Press reports.

There had been a chance the execution would be delayed after Johnston was granted a stay of execution by a three-judge panel of the 8th U.S. Circuit Court of Appeals on Tuesday, said Johnston’s attorney, Chris McGraugh. The stay was granted after McGraugh argued that Missouri’s method of lethal injection violated the Eighth Amendment prohibition of cruel and unusual punishment. However, the full appeals court later overturned the stay at the request of state Attorney General Jay Nixon.

Gov. Matt Blunt denied a clemency request filed by the attorneys representing Johnston. The governor said he found no reason to set aside the result of previous judicial decisions on the case, according to a news release from Blunt’s office.

“We are disappointed in both decisions,” McGraugh said. McGraugh said he filed an appeal for a stay of execution to the U.S. Supreme Court, which was his client’s last chance.

The Mid-Missouri Fellowship of Reconciliation held a vigil Tuesday at Boone County Courthouse and a prayer service at St. Thomas More Newman Center to protest the execution. At least seven vigils were held across Missouri, including one across the street from the Missouri Supreme Court in Jefferson City, said Jeff Stack, Fellowship of Reconciliation coordinator. According to its Web site, the fellowship is “a pacifist group committed to active nonviolence as a means of personal, social, and political change.” Stack said he and other supporters came to let the public know that not all Missourians support the death penalty. “We’re gathering because Timothy Johnston was a human being and to remember Nancy Johnston and all murder victims,” Stack said.

Johnston was found guilty and sentenced to die in 1991, according to federal court records. There are now 54 inmates awaiting execution on Missouri’s death row, according to the Missouri Department of Corrections. Johnston was the fourth person executed in Missouri this year; 65 have been executed since 1989.

Reuters News

"Man who fatally beat wife put to death in Missouri." (Wed Aug 31, 2005 1:59 AM ET)

ST. LOUIS, Mo. (Reuters) - A Missouri man who beat his wife to death and then argued that execution was too cruel a punishment was put to death early Wednesday by lethal injection. Timothy Johnston, 44, was pronounced dead at 12:07 a.m. CDT.

His last words were: "I hope Nancy's mom forgives me. I hope everyone I've ever hurt forgives me. I'm ready to go to heaven. I hope you can forgive yourselves." His last meal consisted of a quarter of a fried chicken, french fries, catfish, coleslaw, apple pie and a soda.

Johnston was sentenced to death for the 1989 beating of his wife, Nancy Johnston. Evidence showed he beat her head against a curb, kicked her and stomped her with steel-tipped boots, and hit her with a rifle butt and a chair.

Johnston filed several appeals of his execution, arguing that death by lethal injection was unconstitutionally cruel punishment. In appellate court arguments, lawyers for Johnston argued that his executioners may not adequately sedate him, leaving him to suffer "a painful and protracted death" from the lethal drugs used to stop breathing and the heart. The courts rejected the appeals, leaving Johnston to become the fourth inmate put to death in Missouri this year and the 65th person executed in Missouri since the death penalty was reinstated in 1976.

Several death row inmates around the United States have argued that lethal injection violates the constitutional protection against cruel and unusual punishment, and the issue is winding its way through the courts. Death penalty opponents around Missouri held vigils Tuesday night to protest Johnston's execution.

Kansas City Star

"Missouri murderer executed today; Stay of execution vacated for man who killed wife." (Aug 31, 2005)

BONNE TERRE, Mo. (Associated Press) - A man who beat his wife to death in 1989 after an argument at a bar was executed early Wednesday. Timothy Johnston, 44, died by injection at the state prison in Bonne Terre, officials said.

Hours earlier, Johnston had received a brief reprieve when a three-judge panel of the 8th U.S. Circuit Court of Appeals issued a stay of execution. Johnston’s lawyer, Chris McGraugh, argued Missouri’s method of lethal injection was cruel and unusual punishment. The full appeals court later vacated the stay, however, and the U.S. Supreme Court refused to stop the execution. Gov. Matt Blunt also refused to intervene.

Johnston and his wife, Nancy, began arguing at a St. Louis bar on June 30, 1989. Former prosecutor Joseph Warzycki said Nancy Johnston became scared of her husband and went to the car to drive away. Johnston jumped on top of the car and eventually pulled his wife from it, then kicked her repeatedly, Warzycki said. He took her home and beat her severely in front of her 11-year-old son. He later called paramedics who arrived to find Nancy Johnston dead, her face and torso swollen and bloodied, Warzycki said. An autopsy revealed a broken nose, collarbone and ribs; bruising and tearing in her heart, liver and spleen; and injuries to her head, face, scalp and lips. Bleeding under the skin confirmed she was alive throughout her severe beating. “It was just barbaric,” Warzycki said.

Johnston initially blamed a motorcycle gang, but later confessed, accusing his wife of infidelities. He has expressed “considerable regret” over the crime, McGraugh said.

Johnston was the fourth Missouri inmate to be executed this year, and the 65th since the state reinstated the death penalty in 1989.

KSDK-TV

"Timothy Johnston Executed For Killing His Wife." (Updated: 8/31/2005 1:41:09 AM)

(KSDK) - The state of Missouri has executed a St. Louis man who beat his wife to death in front of her 11-year-old son in 1989. The state of Missouri has executed a St. Louis man who beat his wife to death in front of her 11-year-old son in 1989. Prison officials pronounced Timothy Johnston dead just after midnight Wednesday morning at the state prison in Bonne Terre. He was 44 years old.

Tuesday night, A federal appeals court ruled that Johnston could be executed for the murder. The move over ruled a three-judge panel that on Tuesday afternoon had issued a stay of execution. The appeals court granted Attorney General Jay Nixon's request to lift the stay. Governor Matt Blunt rejected Johnston's clemency request.

Johnston is the fourth man executed in Missouri this year and the 65th since the state reinstated the death penalty in 1989.

Timothy Johnston Clemency Application

BEFORE THE GOVERNOR OF THE STATE OF MISSOURI
THE HONORABLE MATTHEW BLUNT

In the matter of TIMOTHY JOHNSTON
Execution scheduled for August 31, 2005

APPLICATION FOR A STAY, A REPREIVE FROM, OR A COMMUTATION OF A SENTENCE OF DEATH

Introduction

Timothy Johnston is a 44 year old Caucasian male who is incarcerated at Eastern Area Reception Diagnostic and Correctional Center in Bonne Terre, Missouri awaiting execution. He is scheduled to be executed at 12:01 a.m. on August 31, 2005. All legal appeals previously filed have been denied, or are pending uncertain review.

Summary and History of Proceedings

On July 26, 1991, Timothy Johnston was convicted of first-degree murder and sentenced to death for the killing of his wife, Nancy Johnston. Timothy was denied post-conviction relief by The Honorable Michael B. Calvin, Circuit Judge on September 30, 1996, following the evidentiary hearing. The Missouri Supreme Court affirmed Tim’s conviction of first-degree murder, his resulting death sentence and the denial of his post-conviction relief in a consolidated appeal on November 25, 1997. Timothy then filed a Petition for Writ of Habeas Corpus to the United States District Court for the Eastern District of Missouri on August 14, 1998. This Petition for Writ of Habeas Corpus was denied by the District Court on November 2, 2000. A timely appeal to the United States Court of Appeals for the Eighth Circuit was denied 2 to 1 on May 1, 2002. A Petition for Rehearing and Rehearing en banc was denied on July 8, 2002 with Judge McMillian voting to grant a rehearing en banc.

On August 16, 2004, Tim filed in the United States District Court for the Eastern District of Missouri a §1983 lawsuit challenging Missouri’s specific method of execution as being cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Johnston v. Crawford, et al. Cause No. 4:04CV1075DJS is currently pending in the United States District Court before The Honorable United States District Court Judge Donald J. Stohr. Judge Stohr has made significant rulings in the case in favor of Mr. Johnston. Among these rulings is Judge Stohr’s order of June 13, 2005 denying Defendant’s Motion to Dismiss. Judge Stohr’s order stated that Tim’s claims were not frivolous and if proven true, merited relief. This lawsuit has been active in the District Court since its filing. Discovery is ongoing and the case has been assigned a Track 3 Complex Case. On August 1, 2005, the parties, as directed by the Court, filed a Proposed Joint Scheduling Plan mapping out the progress of the case with a suggested trial date of June 26, 2006.

Circumstances Surrounding the Homicide

Tim was convicted of first-degree murder and sentenced to death for killing his wife, Nancy Johnston. The victim’s death resulted from a brutal beating administered by Tim following a day/night of heavy drinking. The incident was precipitated by an argument between the two that erupted earlier at a bar causing Tim to return home. The situation escalated when Tim heard a car start outside his home, saw Nancy in the car attempting to leave, and proceeded to jump on the hood of the car as she attempted to drive away. Tim succeeded in stopping the car, at which point he pulled his wife into the street and began to beat her. He eventually put Nancy back in the car and drove away as the police arrived on the scene. Upon arriving home, Tim pulled his wife out of the car and continued his assault. He eventually pulled her inside the home where she stopped breathing. At that point, Tim called the police. The paramedics declared Nancy Johnston dead at the scene. An autopsy found extensive, blunt-trauma injuries over much of her upper body, numerous internal injuries, and concluded that Nancy’s death resulted from the “collapse of the support structure around the lungs, rendering those organs unable to function.”

Basis for Commutation of Sentence

With due respect and a deep sincerity, undersigned counsel submit the followings justifications for a stay or commutation of Timothy’s sentence:

1. The balance of equities require that the Governor stay Tim’s execution pending the federal court’s resolution of his §1983 federal lawsuit challenging Missouri’s specific method of execution as cruel and unusual punishment. Tim’s execution on August 31, 2005, will prevent him from showing that the specific method of execution by which Missouri intends to execute him constitutes cruel and unusual punishment and will cause him immediate and irreparable harm by subjecting him to a painful and protracted death in violation of the Eighth and Fourteenth Amendment of the United States Constitution.

2. Tim’s execution would constitute manifest injustice because all the evidence now available shows that Tim suffered from organic brain damage at the time of the offense that impaired his mental capacity and rendered him incapable of deliberation, and essential element of first-degree murder.

3. Tim’s execution would be a random and arbitrary imposition of the death penalty in that Willie Simmons, a Missouri prisoner formerly under sentence of death, received relief from a panel of the United States Court of Appeals for the Eighth Circuit on his claim for ineffective assistance of counsel for failing to present mitigation evidence while Mr. Johnston, whose case involved the identical issue and a set of materially indistinguishable facts was denied relief by a different panel of the same court.

4. Tim’s sentence of death is excessive given the strength of the evidence, in that all of the evidence no available shows that Tim suffered organic brain damage at the time of the offense that impaired his mental capacity and rendered him incapable of deliberation.

Standard of Review

Article IV, §7 of the Missouri Constitution grants the Governor the “power to grant reprieves, commutations, stays and pardons, after conviction…upon such conditions and with such limitation as he may deem proper.” He is not restricted by strict rules of evidence, and is free to consider a wide range of legal and equitable factors in the exercise of his clemency powers. He may consider any aspect of the case, including claims which the courts have declined to review for procedural reasons. Governor Blunt is also free to expand the relevant case law and apply his own interpretation to grant relief if he so desires.

Timothy Johnston, by and through undersigned counsel, and with earnest support of numerous individuals and for the meritorious reasons stated above, respectfully requests that Governor Blunt, pursuant to the powers granted him by Article IV, § 7 of the Missouri Constitution, grant him executive clemency and commute his sentence from death to life imprisonment with the possibility of parole. Alternatively, Timothy requests that Governor Blunt grant a reprieve, staying his execution, and convene a board of inquiry pursuant to § 552.070 RSMo 2000, to gather information bearing upon whether his sentence of death should be commuted.

Specific Challenge to Missouri’s Protocol of Execution

Tim has alleged in his lawsuit that his executioners intend to execute him with unreliable and arbitrary drugs, administered by inadequately trained personnel, using inappropriate equipment and arbitrary methods to cause him a painful and protracted death. Although there has been limited discovery in the lawsuit, investigation to date reveals Missouri’s current lethal injection procedures in that the three chemical sequence method used by inadequately trained personnel creates an unjustifiable likelihood that during his execution, Tim will be conscious of pain and chemically induced suffocation and heart attack but incapable of demonstrating the consequences due to chemically induced paralysis.

Since August 16, 2004, Tim has been litigating an action brought under 42 U.S.C. § 1983 as to whether Missouri’s current method of lethal execution violates the Eighth Amendment ban on cruel and unusual punishment. More specifically, Tim alleges in his suit that the three chemical sequence and the method of their use by inadequately trained personnel creates an unjustifiable likelihood that during his execution, he will be conscious of pain of chemically induced suffocation and heart attack, but incapable of demonstrating the consequences due to chemically induced paralysis. Tim’s §1983 suit has been active in the United States District Court since August 16, 2004. Discovery is ongoing, the case is on a normal path of a Track 3 Complex Case. On August 1, 2005, the parties filed a Joint Proposed Scheduling Plan setting out various discovery deadlines and suggesting a potential trial date of June 26, 2006.

By proceeding with the execution on August 31, 2005, he will not have an opportunity to litigate his § 1983 action. This is extremely unfair giving the fact that Tim’s suit has been on file for approximately a year and that the District Court has sided with him in numerous pretrial rulings, including denying a multifaceted motion filed by the Defendants; wherein the District Court stated Tim’s suit is not frivolous and, if the allegations are proven, is deserving of relief.

Facts in Support of Tim’s Claim

The Missouri execution protocol is a three chemical sequence involving sodium pentothal (thiopental), pancuronium bromide, and potassium chloride. The procedure is designed to work as follows: the thiopental, an ultra-short acting barbiturate, will render the prisoner unconscious, the pancuronium bromide will stop his lungs, and the potassium chloride will stop his heart. The humane aspect of this procedure will necessarily fail if the thiopental - whatever the dosage - is not properly delivered to the prisoner. Neither the pancuronium bromide nor the potassium chloride has anesthetic or sedative properties while both will cause the prisoner to suffer excruciating pain.

Pancuronium bromide is a neuromuscular blocking agent which has the effect of paralyzing all voluntary motions but does not effect sensation, consciousness, or the ability to feel pain and suffocation. Pancuronium bromide renders a person completely paralyzed so that no voluntary movement of any kind can be achieved. Pancuronium bromide will paralyze the muscles that will enable an individual to breath, and will cause a person to slowly suffocate. Due to it’s blocking effect, pancuronium bromide will prevent the prisoner from expressing that he was conscious and suffering. In fact, the 2000 report of the American Veterinary Medical Association opines that the combination of a barbiturate with a neuromuscular blocking agent is not an acceptable euthanasia agent.

The intravenous administration of the third drug in Missouri’s chemical sequence, concentrated potassium chloride, is extremely painful absent proper anesthetic sedation. It activates the sensory nerve endings in the veins as it travels to the heart, causing an excruciating burning sensation. There are many possible alternative drugs that are equally effective in causing cardiac arrest but do not cause such pain. The administration of potassium chloride will activate the nerve endings of his veins causing intense pain as it travels to his heart will cause him a massive and painful heart attack.

Missouri’s Use of the Femoral Vein to Gain IV Access is Unnecessary and Painful

Beginning with the procedure used to gain intravenous access, the methods employed by Missouri to implement it’s three chemical sequence do not contain proper safeguards to insure that the prisoner is properly anesthetized prior to the administration of pancuronium bromide and potassium chloride first. The drugs will be administered intravenously through an IV started in his femoral vein using a device called a triple lumen catheter. Insertion of this device in his femoral vein is a sophisticated surgical procedure which will cause Tim unnecessary pain and suffering and will, in and of itself, violate his right to be free from cruel and unusual punishment.

As detailed in the affidavit of Jonathan I. Groner, M.D., a board-certified general surgeon who is the Trauma Medical Director of Children’s Hospital in Columbus, Ohio and a Clinical Associate Professor of Surgery at the Ohio State University College of Medicine and Public Health, the insertion of femoral central lines to gain IV access can be extremely painful. Specifically, the technique “involves inserting a large needle directed to an anatomic landmark in order to puncture the vein. Once the vein is punctures, a wire is passed into the vein, then a scalpel is used to make a small incision where the guidewire enters the skin, then the catheter is passed over the guidewire and into the vein.” The executioners’ use of a triple lumen catheter exacerbates matters.

Triple lumen catheters are highly sophisticated metal devices and has three separate channels, approximately 15 cm longer than a standard peripheral IV. According to Dr. Groner, the use of a femoral central lumen catheter creates a substantial risk of inflicting severe and unnecessary pain and suffering. The femoral vein lies close in proximity to the femoral artery and femoral nerve. Even if local anesthesia is used in the skin at the puncture site, accidental puncture of the artery and/or accidental puncture of the femoral nerve would be excruciatingly painful. The same will hold true “if the needle passes through the vein and strikes the bones in the pelvis which lie below the vein.” In paragraph 16 of his affidavit, Dr. Groner lists numerous complications involved in obtaining IV access through the femoral vein. Said complications include “severe pain; hemorrhage/hematoma at the catheter site; unrecognized arterial catheter placement; catheter tip malposition, in which case the catheter tip lies outside the vein; air embolism resulting in sudden death; hemorrhage into the abdomen; and femoral arterial inclusions, causing severe leg pain; and perforation of the heart by the medical guidewire used in the catheter insertion procedure.” Two of the above-described complications - unrecognized arterial catheter placement and catheter tip malposition - make Missouri’s lethal injection process exceedingly painful because the drugs would flow down the leg instead of the heart and brain, and be absorbed slowly, causing a slow, tortuous death.

There is no apparent reason for establishing IV access through a femoral vein and using a triple lumen catheter to deliver the drugs. Access can be gained by the insertion of the standard peripheral IV. According to Dr. Groner, a peripheral IV is the preferred procedure unless “the patient has absolutely no visible veins; the patient is in shock and the peripheral veins are collapsed or inaccessible; or the patient needs venous pressure monitoring during an operation.” Femoral line insertions are dangerous and uncomfortable procedures to be performed only in dire situations and in a rare case where there are absolutely no veins for the standard peripheral IV. The use a femoral central line and the insertion of a triple lumen central catheter at said site will subject Tim to unnecessary pain and suffering in violation of his Eighth Amendment rights.

Missouri’s Protocol Does Not Provide for any Monitoring of IV Site

Under Missouri’s execution protocol, the executioners are in an adjacent room during the execution. While they can see the prisoner, they can’t see the IV site. Most likely, the IV site is hidden by the prisoner’s pants. As a result, the executioners have no way of knowing whether or not the IV is leaking or whether there are any developing complications at the IV site. A leaking or malfunctioning IV which fails to properly dispense the thiopental creates a reasonable likelihood that the prisoner will conscious during the painful administration of pancuronium bromide and potassium chloride.

Missouri’s Protocol Does Not Provide Any Monitoring of the Level of Anesthesia

Whenever a medical professional uses a barbiturate with a neuromuscular blocking agent, such as pancuronium bromide, it is essential that a qualified medical person monitor anesthetic depth prior to the administration of the blocking agent. The reason for this is that the blocker places a chemical veil over the individual, paralyzing him and making it impossible for a witness to make a meaningful determination as to whether or not the execution is being conducted without the infliction of pain.

Missouri’s current lethal injection protocol contains no provision for the monitoring of a prisoner’s level of anesthesia prior to the administration of pancuronium bromide. Because of the paralyzing effect of pancuronium bromide, the prisoner’s anesthetic depth cannot be verified by the eye alone. Necessary monitoring equipment, such as an EKG and blood pressure cuff, would have to be present and used under the supervision of an individual trained to assess anesthetic depth in order to be effective. The failure of the defendants to verify “anesthetic depth prior to the administration of pancuronium bromide and later prior the administration of potassium chloride constitutes an unacceptable risk that the inmate will be conscious during the execution, and will experience excruciating torments of conscious paralysis and intravenous concentrated potassium chloride.

The Qualifications of Involved Corrections Personnel is Highly Suspect

The qualification and training of the corrections personnel involved in the execution process is critical to insure that the prisoner’s execution is within the confines of the Eighth Amendment. Preparation of drugs, particularly for intravenous use, is a technical task requiring significant training in pharmaceutical concepts and calculation. According to Larry Crawford, the Director of the Missouri Department of Corrections in charge of executions, the drugs used for execution are prepared and mixed by a physician and a nurse approximately one hour before the execution. The great majority of nurses are not trained in the use and preparation of ultra-short acting barbiturates such as thiopental. This class if drugs is traditionally used only by nurses who have significant experience in intensive care units and by nurse anesthetists. The scant information disclosed by the defendants about the qualifications, training, and experience of the nurse and doctor involved in the execution process is insufficient to insure that they are qualified to work with the chemicals used in the lethal injection process. Further investigation is necessary regarding their training, credentials, and experience to see if, in fact, they are properly qualified to work with anesthetizing drugs.

According to Larry Crawford’s answers to plaintiff’s interrogatories, the last three corrections employees who acted as executioners had degrees, respectively, in mathematics, criminal justice administration, and a masters in criminal justice with an undergraduate in management. Although Tim has learned through interrogatories that a doctor provides direction to the executioners during the execution process, Tim has not been told the nature of said directions.

The information about the doctor is just as vague as the information given about the executioners. Other than where he graduated from college, attended medical school, and completed is residency, all Tim knows is that he is a board-certified surgeon. Tim was not told what type of surgery the doctor is certified to perform. In addition, Tim has not been provided with any information regarding the doctor’s experience in the placement of femoral central lines. According to Dr. Groner, placement of a femoral venous central line and the insertion of a triple lumen venous catheter is a sophisticated operation that is performed by specialists and that many surgeons would not know how to do this procedure.

Given the affidavits of Drs. Heath and Groner, and Missouri’s current lethal injection procedure, specifically, it’s unnecessary and painful use of the femoral vein to gain IV access, the failure of corrections personnel to monitor the level of anesthesia prior to the administration of pancuronium bromide and potassium chloride, their failure to monitor the IV site, and the total lack of medical training or qualifications of the executioners, a reasonable probability exists that Tim will prevail on the merits of this case. At the very least, Tim has raised serious, substantial, and difficult questions which call for a more deliberate and extensive investigation. Tim should be allowed to avail himself of the normal avenues of discovery normally available to a § 1983 plaintiff who raises a justiciable claim, and allowed to prosecute his case.

Mr. Johnston’s execution constitutes a manifest injustice in that all of the evidence now available shows that Mr. Johnston suffered from organic brain damage at the time of the offense that impaired his mental capacity and rendered him incapable of deliberation, an essential element of first-degree murder.

Missouri recognizes a freestanding claim of actual innocence in capital cases. “[T]he continued imprisonment and eventual execution of an innocent person is a manifest injustice.” While the typical claim of innocence involves the situation where the state has convicted the wrong person, “one is also actually innocent if the state has the right person but that person is not guilty of the crime with which he is charged.” In the context of first-degree murder, a person who is unable to deliberate is actually innocent because he is incapable of satisfying an essential element of the crime. All of the evidence now available shows that Mr. Johnston was unable to deliberate at the time of the offense.

Mr. Johnston was convicted of first-degree murder in that the jury found that he knowingly caused the death of his wife, Nancy Johnston, and that he acted with deliberation in doing so. Under Missouri law, the element of deliberation differentiates murder in the first-degree from conventional murder in the second-degree.

The facts surrounding the homicide were as follows: Tim and Nancy Johnston spent the early part of the evening at a bar. An argument erupted causing Tim to leave and go home. While home by himself, Tim went into a rage. He shot up and destroyed parts of the furniture and other property contained in the house. During the course of his tirade, he heard a car engine starting. He raced outside to find Nancy behind the wheel of the car attempting to leave. He jumped on the hood of the car and held on as she drove away. He succeeded in stopping the car on Broadway Avenue in the City of St. Louis. At that point, he pulled Nancy out of the car and began to beat her in the street. He continued to beat her despite the pleas of the neighbors telling him to stop. He eventually put Nancy back in the car and drove away as the police arrived at the scene. Upon arriving at their home, Tim pulled Nancy outside of the car and began to beat her again. He eventually pulled her inside the home where she stopped breathing. At that point, he called the police.

The defense at trial was that Mr. Johnston was not guilty of murder first-degree, but instead guilty of a lesser degree of homicide. Mr. Johnston contended that his actions in beating his wife were impulsive rather than deliberate. Although there was available psychiatric evidence that Mr. Johnston was unable to deliberate because of head injuries, alcohol dependence, and either an organic or personality disorder, defense counsel chose not to present said evidence in the guilt phase of the trial.

New evidence obtained through brain mapping shows organic brain damage

During the 29.15 proceedings, post-conviction counsel hired Dr. Darcy Dysart, a doctor specializing in neurology and psychiatry, to conduct neurological testing on Mr. Johnston. In June of 1993, he did a series of tests and procedures collectively called brain electroactivity mapping (BEAM). A BEAM test evaluates the function of the brain by looking at electrical activity in different parts of the brain to determine how each area is functioning. The data from electrical recordings of different parts of a person’s brain is collected, run through a computer, and compared with data previously obtained from thousands of other people with no medical, neurological, psychological, or psychiatric problems. These numbers are then equated to different colors which are displayed in a topographical display of the brain. These colored drawings are called brain maps.

The first test performed on Tim was a standard EEG which measures the electroactivity generated by the brain. Tim’s EEG detected abnormalities in the frontal and temporal portions of his brain. The frontal lobe controls the ability to think rationally while the temporal lobe controls emotional processing - depression and anger. Dr. Dysart concluded from the EEG that Mr. Johnston had an organic brain disorder.

Dr. Dysart also performed a quantitative EEG. Said test uses a computer to pick up subtle abnormalities not visible to the naked eye. These results are then compared to a data base of people of similar age with no medical, psychological, or psychiatric problems. Mr. Johnston’s quantitative EEG showed that the frontal and temporal areas of his brain were out of sync and not working together. Dr. Dysart found the abnormalities in Mr. Johnston’s brain to be consistent with, and probably the result of, his prior head injuries. The quantitative EEG confirmed the findings of the standard EEG - that Mr. Johnston had abnormalities in both the frontal and temporal areas of his brain. The abnormalities are consistent with orbital frontal syndrome, a type of organic brain syndrome. Dr. Dysart defined orbital frontal syndrome as a cluster of symptoms characterized by “explosiveness, most characteristically, the lack of inhibition” that will happen suddenly . . . with the smallest provocation. Dr. Dysart opined that this condition would have impaired Mr. Johnston’s judgment, causing him to react suddenly rather than deliberately.

Mr. Johnston’s case was tried in 1991. The diagnostic tools available in 1991 - the standard EEG and psycho-neurological testing - came back normal and didn’t reveal any evidence of brain abnormalities. While some BEAM testing was being done in 1991, said testing was relatively new and the equipment available at time was “fairly crude.” While a BEAM test performed in 1991 could have picked up some brain abnormalities, said tests would have not been as accurate or definitive as the test that Dr. Dysart performed on Mr. Johnston in 1993. In fact, the motion court relied on these reasons in overruling Mr. Johnston’s claim that his counsel was ineffective for failing to arrange BEAM tests in 1990 or 1991. Thus, the results of Mr. Johnston’s BEAM test qualify as newly discovered post-trial evidence.

All of the available evidence constitutes actual innocence of first-degree murder

The totality of the now available evidence, including the results of the brain mapping and the findings of Drs. Parwatikar, Yutzy and Gaskin, constitutes clear and convincing evidence that Mr. Johnston was unable to deliberate, and undermines the basis of Tim’s conviction of first-degree murder.

Dr. Sam Parwatikar, M.D., was appointed by the trial court to evaluate Mr. Johnston pursuant to the provisions of Chapter 552 RSMo. Dr. Parwatikar determined that Mr. Johnston was acting under an extreme emotional disturbance at the time of the homicide and had diminished mental capacity as a result of serious head injuries, alcohol dependence, and a borderline personality disorder. According to Dr. Parwatikar, petitioner’s history of five head injuries, two of which were significant, caused frontal lobe damage which affected his emotional control. The alcohol, combined with the head injuries, effected Mr. Johnston’s ability to plan, deliberate, and exercise appropriate control. Dr. Parwatikar gave his opinion, based on a reasonable degree of medical or psychiatric certainty, that Mr. Johnston was unable to deliberate at the time of the offense.

Dr. Sean Yutzy evaluated Mr. Johnston for the defense in June or July of 1990. Like Dr. Parwatikar, Dr. Yutzy discovered Mr. Johnston’s history of head injuries as well as his well-documented history of alcohol addiction. Dr. Yutzy concurred with Dr. Parwatikar that Mr. Johnston was suffering from a personality disorder not otherwise specified. Dr. Yutzy believed that Mr. Johnston was under the influence of extreme emotional disturbance at the time of the offense stemming from his chaotic relationship with his wife and his excessive intoxication.

Dr. Fred Gaskin treated Mr. Johnston at Hyland Center approximately six months prior to the offense. Dr. Gaskin diagnosed Mr. Johnston as alcohol dependent. Largely as a result of Mr. Johnston’s history of head injuries, Dr. Gaskin discovered symptoms characteristic of post-trauma head syndrome and organic brain syndrome.

The one constant lacking from the above-doctors’ evaluation of Mr. Johnston was any objective findings of organic brain damage. The results of the 1993 brain mapping - that Mr. Johnston had definitive brain damage at the time of the offense - provides the missing link. When one combines the new evidence of objective brain damage with the findings of Drs. Parwatikar, Yutzy and Gaskin, it is clear that Mr. Johnston was unable to deliberate and thus, is actually innocent of first-degree murder.

This was a close case. The jury deliberated for sixteen hours on the guilt/innocence phase. The defense was that Mr. Johnston was guilty of second degree murder in that his actions were impulsive rather than deliberate. During the course of the jury’s deliberations, they sent a question to the judge asking whether they had to be unanimous on every element of the offense in order to be unanimous on that count. The verdict director submitted the following elements to the jury: that Mr. Johnston caused the death of Nancy Johnston, and that he did so after deliberation. There was no dispute that Tim caused the death of his wife. The only element under consideration was whether or not he acted with deliberation as required by the first-degree murder instruction. The jury’s determination of the deliberation element was the key to the case. All of the evidence, including the new evidence, clearly and convincingly tips the scales in favor of Mr. Johnston’s innocence on the basis that he was unable to deliberate at the time of the offense.

Mr. Johnston’s Execution Would Be Random and Arbitrary in Light of Simmons v. Luebbers

The Eighth Amendment of the United States Constitution prohibits the random and arbitrary imposition of the death penalty. One of its purposes is to ensure that similarly situated defendants are treated equally under the law. It follows from the above-cited principle that the execution of a particular defendant would violate the law where a panel of an appellant court decides a case differently than another panel has on a set of materially indistinguishable facts, Tim Johnston and Willie Simmons, a Missouri prisoner formerly under a sentence of death, raised identical ineffective assistance of counsel claims to the United States Court of Appeals for the Eighth Circuit. Both of these claims involved a set of materially indistinguishable facts, and centered around trial counsel’s failure to present mitigating evidence during the penalty phase of their respective trials. As the direct result of the composition of the panel of judges randomly selected to hear their cases, Mr. Simmons received relief while Mr. Johnston did not.

Tim consistently claimed throughout the state and federal proceedings that he was denied his Sixth Amendment right to the effective assistance of counsel when trial counsel failed to present available mitigating evidence, specifically, the testimony of Drs. Sam Parwatikar, Sean Yutzy, and Fred Gaskin, during the penalty phase of his trial. Those doctors would have provided a credible explanation for Tim’s history of violent behavior. Although trial counsel was aware of these potential witnesses and their mitigating testimony, he inexplicably failed to call any of them to testify during the penalty phase.

The Eighth Circuit denied relief holding that the record supported the Missouri Supreme Court’s conclusion that Tim’s attorney’s decision not to call these witnesses was reasonable trial strategy. The panel opined that the state court decision was neither contrary to nor involved an unreasonable application of Strickland v. Washington.

Judge Heaney wrote a vigorous dissent on this issue. While conceding that petitioner’s counsel made a tactical decision not to introduce testimony from Drs. Parwatikar, Yutzy or Gaskin, Judge Heaney opined that “the relevant question, however, is not only whether counsel’s choices were strategic, but whether they were reasonable.” Judge Heaney found the reasons given by counsel for not presenting said evidence - that there were apparent inconsistencies between the reports of Drs. Parwatikar and Yutzy; that their medical reports contained information about other criminal acts committed by Tim; that the reports concluded that Tim was able to appreciate the nature and wrongfulness of his actions; and that Dr. Gaskin’s conclusions were suspect because they were based solely on information obtained from Tim - to be objectionably unreasonable.

While recognizing that there may have been inconsistencies in the factual versions of the offense related to Drs. Parwatikar and Yutzy, Judge Heaney realized that these inconsistencies did not extend to the history of head injuries, borderline personality disorder and/or alcohol abuse. That history is well documented by independent sources, and forms the basis for relevant mitigating evidence - that Tim suffered from post-traumatic head syndrome or organic brain syndrome and that his condition provided a credible explanation for his impulsive violent behavior.

With respect to Dr. Gaskin, Judge Heaney recognized that Tim’s history of head injuries and alcoholism was well documented by independent sources. He found the fact that Dr. Gaskin himself failed to document the history did not compromise the reliability of his report.

In addition, Judge Heaney found that the evidence of Tim’s extensive violent history was already before the jury, and opined that additional evidence would not have made any difference. The jury was fully aware that Tim fought with and threatened police on a number of occasions, once pointing a shotgun at authorities when they arrived to investigate; that Tim fought and threatened an ex-girlfriend and her brother; that he damaged a motorcycle and a car belonging to his brother; and that he allegedly threatened to kill his wife.

Judge Heaney observed that the evidence elicited during the trial portrayed petitioner in an extremely negative manner. He was referred to by the state in closing argument as a “murderous animal”, “the embodiment of evil,” and “Satan.” As succinctly stated by Judge Heaney:

The jury was fully aware that Johnston was a man with a violent past. What the jury lacked was a credible and available explanation for his violent behavior. The testimony of Drs. Parwatikar, Yutzy and Gaskin would have provided such a credible explanation. Judge Heaney opined that counsel’s decision to keep this mitigating evidence from the jury was unreasonable, and that, had said evidence been presented, there was a reasonable likelihood that he would not have been sentenced to death.

Approximately four months after its decision in Tim’s case, the Eighth Circuit issued its decision in Simmons v. Luebbers. Simmons involved the identical issue raised before the Eighth Circuit in Johnston - whether counsel’s failure to present available mitigating evidence, including mental health information, constituted ineffective assistance of counsel.

Simmons was convicted in two separate trials of two different homicides, and sentenced to death in each case. The sole mitigating evidence presented at one of the trials consisted of the testimony of Simmons’ mother, who stated that she loved her son and would continue to have a relationship with him. The following mitigating evidence, available from mental health professionals who examined petitioner and/or reports obtained during the course of their evaluations, was not presented: that petitioner was beaten and abused both by his father and his mother; that he ran away from home at age 12 or 13, was assaulted and possibly raped in Chicago; that he grew up in an impoverished neighborhood frequented by street violence; and that he was borderline mentally retarded.

The mitigating evidence of Simmons’ background could have been presented to demonstrate that his compulsive violent reactions were the result of an abusive and traumatic childhood. Judge Heaney, writing for the court, found counsel’s performance to be constitutionally ineffective under the Strickland standard, and that the Missouri Supreme Court’s contrary decision to be an unreasonable application of Strickland. The court held that “there was no justifiable reason to prevent the jury from learning about Simmons’ childhood experiences” and that Simmons’ attorney’s actions cannot be justified as reasonable trial strategy. Using language very similar to that employed in his dissenting opinion in petitioner’s case, Judge Heaney noted:

By the time the state was finished with its case, the jury’s perception of Simmons could not have been more unpleasant. Mitigating evidence was essential to provide some sort of explanation for Simmons’ abhorrent behavior. Despite the availability of such evidence, however, none was presented. Simmons’ attorney’s representation was ineffective. The court went on to hold that Simmons was prejudiced by his attorney’s failure in that, had the mitigating evidence been presented, there is a reasonable probability that the result of the sentencing and proceeding would have been different.

The facts in Simmons are materially indistinguishable from those in Tim’s case. Judge Heaney’s analysis of the ineffective assistance issue mirrors that outlined in his dissenting opinion in petitioner’s case. Judge McMillian, who concurred with Judge Heaney in the Simmons case, dissented from the denial of the petition for rehearing in Tim’s case. Had Judge McMillian been on the panel assigned to Tim’s case, it is safe to assume that Tim would have received habeas relief from his death sentence. What can be more arbitrary and capricious than having one’s execution depend on the makeup of the panel randomly drawn to hear his case rather than on the uniform applicability of the law?

Mr. Johnston’s sentence of death is excessive given the strength of the evidence in that all of the evidence now available shows that Mr. Johnston suffered from organic brain damage at the time of the offense that impaired his mental capacity and rendered him incapable of deliberation.

As part of its review process in death penalty cases, the Governor should determine whether a sentence of death is warranted in light of the strength of all of the evidence, including new evidence discovered after trial. “The obvious purpose [behind this duty] is to avoid wrongful convictions and executions. The duty to do so in death penalty cases is . . . a continuing one.”

As stated in the previous section, there is now objective evidence that Mr. Johnston was suffering from organic brain damage at the time of the offense. Mr. Johnston has set out in the previous section how he believes that the new evidence clearly and convincingly shows that he is actually innocent of murder in the first-degree. At the very least, the new evidence coupled with the psychiatric testimony available at his trial through Drs. Parwatikar, Yutzy, and Gaskin, shows that the sentence of death is excessive. As such, execution clemency should be granted and Tim’s sentence should be commuted from death to life without parole.

Respectfully Submitted,
LERTIZ, PLUNKERT & BRUNING, P.C.
By: /s/ Christopher E. McGraugh
Attorney for Timothy Johnston

State v. Johnston, 957 S.W.2d 734 (Mo. 1997) (Direct Appeal).

Defendant was convicted in the Circuit Court of the City of St. Louis, Thomas M. O'Shea, J., of first-degree murder, and sentenced to death. Defendant appealed conviction, sentence, and denial of his motion for postconviction relief. The Supreme Court, Robertson, J., held that: (1) items found during protective sweep of defendant's house were properly seized under plain view doctrine; (2) admission of broken rifle and bloody jeans improperly seized during protective sweep was not prejudicial error; (3) prosecutor's peremptory challenges to five female African-American venirepersons did not constitute Batson violations; (4) evidence of deliberation was sufficient to support defendant's conviction; (5) defense counsel's failure to object to prosecutor's comments during penalty phase, including description of defendant as an animal, did not amount to ineffective assistance of counsel; and (6) death sentence was not excessive or disproportionate to penalty imposed in similar cases. Affirmed.

ROBERTSON, Judge.
A jury convicted Timothy Johnston of first degree murder after he beat his wife to death. Upon the jury's recommendation, the trial court sentenced Johnston to death. Johnston filed a timely Rule 29.15 motion, which the motion court overruled. Johnston appealed the conviction and sentence and the motion court's ruling. Among the numerous substantive and procedural issues he raises, Johnston claims that evidence produced by a search and seizure in violation of the Fourth Amendment tainted his confession and that the state failed to prove that he deliberated prior to killing Nancy Johnston. We have jurisdiction. Mo. Const. art. V, sec. 3 The judgments are affirmed. I.

We review the facts in the light most favorable to the verdict. State v. Copeland, 928 S.W.2d 828, 834(Mo.).

At 2:28 a.m., June 30, 1989, paramedics arrived at the home of Timothy and Nancy Johnston in response to a 911 call seeking assistance for a "severe sick case." The 911 operator also dispatched Officer Matthew Rodden of the St. Louis Police Department to the residence. Officer Rodden arrived at the Johnston residence at the same time as the ambulance carrying the paramedics. A male voice from inside the house directed these emergency personnel to "hurry up, inside. She is in here. She needs help." The officer and the paramedics stepped over the bloody sidewalk and porch into the house.

Just inside the doorway, in the living room, they found Timothy Johnston bent over a woman lying on the floor, her otherwise nude upper body draped with a shirt, her face and torso horribly injured, swollen and bloody. A six-inch gash ran across her forehead to the socket of her right eye. Someone had yanked large patches of hair from her head. She did not breathe. Officer Rodden had to remove Johnston before paramedics could assess the woman's condition.

Paramedics declared her dead at the scene. An autopsy performed later that morning revealed extensive, blunt-trauma injuries over much of her upper body; a broken nose; bruised and torn lips; scrapes to the back of her head and on her face; separation of a portion of the scalp from the skull; a broken right collarbone; a four-inch tear in her liver; bruising and tearing in the heart and spleen; breaks in nearly all of her front ribs and in four of the back ribs; and a variety of relatively "minor" scrapes and bruises over much of her body. The medical examiner determined the cause of death as the collapse of the support structure around the heart and lungs, rendering those organs unable to function because they could not bear the weight of the muscle, tissue and bone pressing on them. Bleeding under the skin confirmed that the victim had remained alive through most of the beating.

A purse near the victim yielded the identification necessary to confirm that Nancy Johnston had died. When informed that his wife was dead, Timothy Johnston flew into a rage, throwing himself against the walls of the living room, knocking lamps and small items from their places and overturning furniture. He ordered the officer and the paramedics to leave his house, screamed that he knew that a motorcycle gang that wanted "to get back at him" had killed his wife and said that he would take care of everything that needed to be done.

Now at an obvious murder scene, the officer, of course, did not leave. Indeed, by this time, other officers had responded to the Johnston residence. One of those officers, Officer John Ruzicka, had seen Timothy Johnston earlier in the evening when he had responded to a call reporting an assault in progress at the intersection of South Broadway and Eichelberger. When he had arrived at that location at approximately 1:30 a.m., Officer Ruzicka had discovered a dark-colored, two-door car stopped in the middle of the southbound lanes of Broadway. Ruzicka approached the car, noted the broken windshield on the driver's side and told the driver to "hold on a minute." The driver ignored him and sped off. Ruzicka gave chase briefly, but returned to the place of the assault to interview witnesses.

Marty Bounds, one of those witnesses, had stopped when he saw a car abandoned in the middle of Broadway and noticed a man "beating on someone" on the sidewalk next to a house. He could not determine the gender of the person being beaten until the attacker ripped her shirt from her. The attacker kicked the victim "like if you would kick a football, stomping like ... a tin can, if I was trying to flatten it." Bounds tried to interrupt the attack verbally, but the attacker responded only with profanity. Bounds drove his truck toward the attacker in an attempt to break off the beating and, when this had no effect, Bounds drove his truck in circles in an attempt to attract enough attention that someone would call the police. Naomi Runtz awoke to the sound of a fracas outside her window. She saw a man kicking and stomping someone and called 911. Streetlights illuminated the scene sufficiently well so that Bounds, Runtz and Officer Ruzicka later identified the attacker/driver as Timothy Johnston.

Johnston apparently remembered Officer Ruzicka from their previous encounter. When Ruzicka arrived at the murder scene, Johnston renewed his vulgar demands that the officers leave. The officers decided to handcuff Johnston and take him to a police car to protect the officers, the crime scene and Johnston himself. Johnston began kicking the inside of the car. Detective James Maier, who had just arrived, saw Johnston's flailing and ordered Johnston removed from the car in an attempt to calm Johnston. Maier noticed blood and hair on Johnston's steel-toed motorcycle boots. When Johnston did not calm down, Maier directed other officers to take Johnston to the police station.

Officers on the scene learned that a third person, Michael Federhofer, Nancy Johnston's eleven-year-old stepson, also lived in the house. They checked the house to see whether Federhofer was also a victim and to determine whether any members of the motorcycle gang to which Timothy Johnston had referred remained in the house. In that process the officers discovered evidence that will be discussed more fully at point III, following.

After reviewing the crime scene, Detective Maier returned to the police station. He informed Johnston of his rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Maier told Johnston that he, Maier, believed Johnston was involved in the murder. Johnston denied involvement but became severely agitated. Maier left Johnston alone for nearly an hour. When he returned Johnston told a story that members of the rival motorcycle gang had dumped his wife's badly-beaten body on the driveway. He brought her into the house and called 911. She died before help could arrive. Maier told Johnston that eyewitness accounts differed substantially from the story Johnston told. Johnston began to cry. After a short delay in the interrogation while technicians took fingernail scrapings from Johnston, Johnston called his wife a "whore" and indicated that he had grown tired of her infidelities. Johnston also said that he was "dead meat" and told Maier he would confess.

Johnston recounted that he and Nancy had gone to a local bar on his motorcycle before midnight, that they had had an argument at a bar, that he had left her there and returned to their residence. He claimed that he called several friends on the telephone, hoping, he said, that they would help him calm down. Still angry after his friends failed him, he grabbed a revolver and shot up the house and a television. Nancy came home in the midst of this tirade and attempted to drive away in her mother's car, which was parked in the driveway. Johnston ran out and jumped on the hood of her car as his wife tried to drive away. On Broadway, she stopped the car after he had kicked in the windshield and tried to run away. Johnston chased her, knocked her to the ground, and punched her a few times. According to Johnston, he and Nancy decided to return home, but the argument resumed once they arrived there. He resumed hitting and kicking her. He took her inside and called 911.

The police found the stepson, Michael Federhofer, the next day in the company of his grandmother. He confirmed parts of Johnston's story, but added that he saw Johnston hitting his stepmother while she was still in the car when the two returned home. Johnston saw Federhofer on the porch and ordered the boy to help him get Nancy into the house. Federhofer told Johnston to "leave her alone." Johnston told Federhofer to "shut up or I'll kill you" and moved toward the boy. Federhofer ran away. He spent the night with his grandmother.

A neighbor, Robyn Romanchuk, told police that she saw a man standing over a woman, kicking her repeatedly and calling her a "slut," "bitch" and "whore." She heard young Federhofer, whom she knew because he played with her son, scream and saw him run away. She recognized the voice as that of the man who lived with Nancy Johnston. She watched as the man continued kicking the woman. She saw the man drag the woman behind some bushes. She saw him beating her with a lawn chair. She saw him go into the house, leaving the woman lying outside, and return carrying a new, unidentified weapon with which he hit the still body repeatedly. She saw him drag the body over the porch and into the house.

On the strength of this and other evidence that we will discuss as it relates to Johnston's legal points on appeal, the jury found Johnston guilty of first degree murder and recommended the death sentence because the murder of Nancy Johnston involved torture and depravity of mind and was, as a result, outrageously and wantonly vile, horrible and inhuman. The trial court sentenced Johnston to die. This appeal followed.

In death penalty appeals we are continually faced with claims of plain error and motion court error that are without merit on their face. For this reason, we will not address neither claims of motion-court error founded on alleged trial court errors that Johnston should have preserved for direct appeal. State v. Brown, 902 S.W.2d 278, 284 (Mo. banc 1995). Nor will we review motion court error or trial court error for plain error under Rule 30.20 unless a claim of plain error facially establishes substantial grounds for believing that "manifest injustice or miscarriage of justice" has resulted. Id. We will consider related claims of ineffective assistance of counsel for failure to preserve alleged trial error through application of the familiar test found in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): counsel is ineffective only if trial counsel's performance fell below an objective standard of reasonable competence and trial counsel's ineffective performance created a reasonable probability that, but for trial counsel's ineffective performance, the outcome of the guilt or penalty phase would have been different.

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Johnston assigns error to the motion court's decision to deny relief based on defense counsel's alleged ineffectiveness for failing to investigate and present mental health evidence of a psychiatrist's apparent finding that Tim could not deliberate because of head injuries, alcohol dependence and either organic or personality disorder. The motion hearing record indicates that defense counsel carefully considered whether to put on psychiatric evidence and determined that the court-appointed psychiatrist, Dr. Parwatikar, the psychiatrist whose absence Johnston condemns, could have been particularly damaging to Johnston. In his depositions, Dr. Parwatikar initially testified that Johnston suffered from emotional and mental duress and that he suffered an impaired ability to conform his behavior to the law's requirements. On cross-examination, however, Dr. Parwatikar agreed that Johnston did not suffer from a mental disease or defect at the time he beat Nancy Johnston to death. In addition, by the time of his interview and evaluation by Dr. Parwatikar, Johnston attempted to report a version of facts that did not agree with eyewitnesses accounts of the murder and Dr. Parwatikar's reliance on Johnston's misstatements rendered his initial conclusion suspect. Defense counsel decided, after due consideration, that Dr. Parwatikar's testimony bore the potential for substantial damage to Johnston's defense. Defense counsel also declined to call another psychiatrist who had seen Johnston in late 1988 and early 1989 as a witness. Counsel obtained and reviewed that psychiatrist's notes for the possible purpose of corroborating Dr. Parwatikar's testimony. When counsel decided not to ask Dr. Parwatikar to testify, the need for the second psychiatrist evaporated. Counsel's decision not to call a witness--either at guilt phase or penalty phase--is presumed to be a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the appellant clearly establishes otherwise. Sanders v. State, 738 S.W.2d 856, 858 (Mo. banc 1987) State v. Patterson, 826 S.W.2d 38, 41 (Mo.App.1992). Here, the trial court found ample, well-considered, strategic reasons for defense counsel's decisions not to present the psychiatric testimony. The point is denied.

Johnston claims his trial counsel was ineffective in failing to obtain and present to certain experts' "objective evidence" of his alleged brain damage. Johnston asserts that the motion court erred in not ordering Johnston transferred to a hospital for a magnetic resonance imaging (MRI) test to determine the existence of any brain abnormalities as part of the Rule 29.15 proceeding.

Before trial, standard neuropsychological and EEG testing was performed on Johnston; neither showed brain damage. Since the initial test for neurological abnormalities was normal, counsel was not ineffective for failing to obtain further, more detailed testing. Cf. State v. Mease, 842 S.W.2d 98, 114 (Mo. banc 1992) , cert. denied, 508 U.S. 918, 113 S.Ct. 2363, 124 L.Ed.2d 269 (1993). Nor did the motion court err in not ordering an MRI, given the failure of the EEG and the standard neuropsychological testing to reveal any brain abnormalities. The point is denied.

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The sole statutory aggravating circumstance submitted by the trial court and found by the jury was that the murder of Nancy Johnston involved torture and depravity of mind and thus was outrageously and wantonly vile, horrible and inhumane. In order to find this aggravator, the jury had to find: (a) That the defendant inflicted physical pain or emotional suffering on Nancy Johnston and the defendant did so for the purpose of making her suffer before dying, and (b) That the defendant committed repeated and excessive acts of physical abuse upon Nancy Johnston and the killing was therefore unreasonably brutal, and (c) That the defendant killed Nancy Johnston after she was bound or otherwise rendered helpless by defendant and that defendant thereby exhibited a callous disregard for the sanctity of all human life, and (d) That the defendant, while killing Nancy Johnston or immediately thereafter purposely mutilated or grossly disfigured the body of Nancy Johnston by acts beyond that necessary to cause her death. The jury found that the state proved each of these elements of the aggravator. The record fully supports their conclusion.

We consider similar cases where the trial court imposed the death sentence to determine whether the sentence in this case is proportionate. This Court has repeatedly upheld sentences of death where the defendant physically abused, beat or tortured the victim, as Johnston did here.. Given these precedents, Johnston's punishment is neither excessive nor disproportionate. The judgments are affirmed.

Johnston v. Luebbers, 288 F.3d 1048 (8th Cir. 2002) (Habeas).

State prisoner filed petition for writ of habeas corpus, challenging conviction of capital murder and resulting death sentence, affirmed at 957 S.W.2d 734 The United States District Court for the Eastern District of Missouri, Donald J. Stohr, J., 119 F.Supp.2d 971, denied petition. After granting petitioner a certificate of appealability, the Court of Appeals, Bowman, Circuit Judge, held that: (1) habeas relief was not warranted on ground that trial court failed to clearly instruct jury; (2) state court's conclusion that petitioner was not denied effective assistance of counsel was not unreasonable application of clearly established federal law; (3) state court's conclusion that petitioner's confession was not illegally obtained was not unreasonable application of clearly established federal law; and (4) District Court did not abuse its discretion in denying petitioner's request for an evidentiary hearing. Affirmed. Heaney, Circuit Judge, dissented and filed opinion.

Johnston was convicted of first-degree murder and armed criminal action in Missouri state court in 1991 for the beating death of his wife. A jury sentenced Johnston to death. The facts underlying Johnston's conviction are discussed thoroughly by the Missouri Supreme Court, see State v. Johnston, 957 S.W.2d 734 (Mo.1997) (en banc), cert. denied,522 U.S. 1150, 118 S.Ct. 1171, 140 L.Ed.2d 181 (1998) , and we see no need to restate those facts here. After the jury convicted Johnston and sentenced him to death, he took a timely direct appeal to the Missouri Supreme Court and also, pursuant to Missouri Supreme Court Rule 29.15 filed a pro se motion for post-conviction relief in the appropriate state trial court. Counsel was appointed to represent Johnston in the Rule 29.15 proceedings, and that counsel filed an amended Rule 29.15 motion. The post-conviction court denied Johnston's motion in September 1996, and shortly thereafter Johnston filed his consolidated appeal to the Missouri Supreme Court. In its ruling on Johnston's consolidated appeal, the Missouri Supreme Court affirmed Johnston's conviction and sentence as well as the motion court's denial of post-conviction relief. Johnston next sought habeas corpus relief in the District Court. The District Court denied relief, and this Court granted Johnston's application for a certificate of appealability with respect to seven issues. In his brief, Johnston addresses all of these issues.

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Having considered all of the claims raised in Johnston's appeal, we affirm the District Court's denial of Johnston's petition for habeas corpus relief.