Citations:
State v. Smith, 781 SW2d 761 (Mo. 1989).
Smith v. Missouri, 495 US 916 (1990).
State v. Smith, 790 SW2d 241 (Mo. 1990).
State v. Smith, 798 SW2d 152 (Mo. 1990), cert. denied 111 SCt 443 (1990).

Internet Sources:

Capital Punishment in Missouri from Missouri.Net

On January 15, 1987 at the Missouri State Penitentiary in Housing Unit 5 a group of inmates armed with knives attacked inmate Demetrius Hemdon. Inmate Samuel Smith yelled at the attackers in an attempt to intervene, but one of the group, inmate Marlin Mays, turned toward Smith and threatened him. Smith and Mays then engaged in a fight of their own. During the altercation Smith stabbed Mays numerous times in spite of the efforts of correctional officers to stop the fight. The two finally separated when an officer sprayed them with chemical mace. The correctional officers were able to pull Mays to safety and found that he had been stabbed 19 times in the head, chest, back, and arm. Smith ran upstairs to the housing unit where he was disarmed and detained. Mays died at the scene as a result of piercing injuries to the heart and lungs.

Samuel D. Smith was born on June 12, 1960 in St. Louis, Missouri. On August 14, 1979 Smith was sentenced to two concurrent twelve year terms in St. Louis City Circuit Court for Murder Second Degree and Burglary First Degree and, a consecutive two year term for Escaping Custody Prior to a Conviction. On August 19, 1988 Smith was sentenced to death in Callaway County on a change of venue from Cole County for Murder First Degree.

Legal Chronology

1987
1/15 -Samuel Smith an inmate at the Jefferson City Correctional Center murdered fellow inmate Marlin May.
10/8 -Smith was charged by indictment in the Circuit Court of Cole County with Capital Murder.

1988
7/19-21 -Smith was brought to trial before a jury on a change of venue to Callaway County. He is found guilty of Capital Murder. The jury recommends a sentence of death.
8/19 -Smith was sentenced to death.

1989
1/6 -Smith filed a motion for post-conviction relief.
12/12 -The Missouri State Supreme Court affirmed Smith's conviction and sentence. 12/26 -The Circuit Court denied Smith's motion for post-conviction relief.

1990
4/30 -The U. S. Supreme Court granted a petition of certiorari and returned Smith's case to the Missouri Supreme Court for review of an instructional issue.
6/19 -The Missouri Supreme Court reaffirmed Smith's conviction and sentence following the remand.
10/16 -The Missouri Supreme Court reaffirmed the Circuit Court's judgment denying Smith's request for post-conviction relief.
11/13 -The U. S. Supreme Court denied Smith's petition challenging the Missouri Supreme Court's decision affirming the conviction and sentence.

1991
5/13 -The U. S. Supreme Court denied Smith's petition challenging the Missouri Supreme Court's decision affirming the denial of post-conviction relief.
5/24 -Smith filed a writ of habeas corpus in the Missouri Supreme Court.
5/28 -The Missouri Supreme Court denied Smith's habeas corpus petition.
5/28 -Smith filed a federal petition for writ of habeas corpus in the U. S. District Court for the Western District of Missouri. 1993
4/15 -Smith filed a second motion for post-conviction relief in the Callaway County Circuit Court.
7/19 -The Circuit Court denied Smith's motion for post-conviction relief.

1994
11/22 -The Missouri Supreme Court reaffirmed the Circuit Court's judgment denying Smith's request for post-conviction relief.

1995
5/15 -The U. S. Supreme Court denied Smith's petition seeking review of the Missouri Supreme Court's decision affirming the denial for post-conviction relief.

1997
8/27 -Smith filed his third motion for post-conviction relief in the Circuit Court of Callaway County.

1998
3/36 -The U. S. District Court for the Western District of Missouri denied Smith's federal habeas corpus petition.
6//11 -The federal district court denied Smith's motion to alter or amend its judgment.
8/02 -The federal district court denied Smith's application for a certificate of appealability.
9/18 -The Eighth Circuit Court of Appeals denied Smith's application for a certificate of appealability.
11/13 -The Circuit Court denied Smith's third motion for post-conviction relief.

1999
6/7 -The U. S. Supreme Court denied Smith's petition seeking a review of the Eighth Circuit Court of Appeals' decision.
11/19 -The Circuit Court denied Smith's third motion for post-conviction relief.

2000
6/13 -The Missouri Supreme Court affirmed the Circuit Court's decision denying Smith's motion for post-conviction relief.

2001
2/26 -The U. S. Supreme Court denied Smith's petition requesting review of the Missouri Supreme Court's decision regarding his third motion for post conviction relief.
4/26 -The Missouri Supreme Court set Smith's execution for May 23,2001.

The Lamp of Hope (Associated Press & Rick Halperin)

May 23 - MISSOURI - After taking an extra day to review Samuel D. Smith's case one last time, the state of Missouri on Wednesday executed the twice-convicted murderer for killing another inmate during a prison knife fight. Smith died at 9:07 p.m., 3 minutes after the 1st of 3 drugs were administered at the Potosi Correctional Center, said Department of Corrections spokesman Tim Kniest. His death followed a day of deliberation by the Missouri Supreme Court after a last-minute appeal that prompted the court to grant a stay at 1 a.m. Wednesday. The appeal argued that prosecutors suppressed important evidence during trial. 14 hours later, the state's highest court turned down the appeal, clearing the way for his execution.

Smith was sentenced to death for killing fellow inmate Marlin May during a knife fight in 1987. The last-minute appeal concerned a videotaped statement from another inmate, James Miller, who witnessed the knife fight. Smith's attorney, Kevin Locke, argued the trial prosecutor failed to make the defense aware of Miller's statement. Miller claimed that while Smith stabbed May, he did it before guards tried to pull May to safety. That was contrary to other testimony. In papers filed Wednesday, Locke argued that the distinction was important and asked for a new trial.

A guard, George Adams, had testified that Smith made one final "bone crunching" stab wound to May's chest as Adams was trying to pull May to safety. Locke said the trial jury considered that final blow crucial in determining that Smith deliberately tried to kill May -- deliberation being a key factor in the death penalty. "The testimony of Miller may well have exculpated Smith, either of his guilt or his punishment," Locke wrote. Attorney General Jay Nixon disagreed. He argued in papers filed Wednesday that Miller's testimony would simply call to question when the fatal wound was inflicted. "Even assuming that the jury would have accepted Miller's version of events over that of Adams's, that does not negate (Smith's) guilt," Nixon wrote. Gov. Bob Holden declined to intervene in the case Tuesday, and stood by that decision, spokesman Jerry Nachtigal said. Smith wasn't initially involved in the fight that would lead to May's death on Jan. 5, 1987. May, 24, and several other inmates in Housing Unit 5 at the Missouri State Penitentiary in Jefferson City attacked inmate Demetrius Herndon. When Smith tried to intervene, Smith and May began fighting and couldn't be separated by guards until both were sprayed with pepper mace. May died at the scene from 19 stab wounds to the head, chest, back and arm.

Smith was serving 2 concurrent 12-year sentences for 2nd-degree murder and 1st-degree burglary, along with a consecutive 2-year term for escape prior to conviction. His victim, May, was at the prison following 1982 convictions on second-degree robbery, 1st-degree burglary, 2nd-degree burglary and stealing over $150.

Aritha Payne, May's mother, has urged the state to halt the execution. "I think her voice is more important than mine," Smith told The Associated Press Tuesday. "If anyone is allowed to speak about this, it should be her." Locke has also argued that Smith's original counsel, David Kite, was trying his 1st criminal case and made several mistakes during trial, costing Smith a lesser sentence.

Smith becomes the 4th condemned inmate to be put to death this year in Missouri and the 50th overall since the state resumed capital punishment in 1989. Only Texas (246), Virginia (82) and Florida (51) have carried out more executions. Smith becomes the 31st condemned inmate to be put to death this year in the USA and the 714th overall since America resumed executions on January 17, 1977.

ProDeathPenalty.Com

Sam Smith was convicted of first degree murder for the stabbing death of fellow inmate Marlin May at the Missouri State Penitentiary on January 15, 1987. He was in prison on a 12-year sentence for second-degree murder, a twelve year sentence for burglary and a two-year sentence for escape. The day of the murder began with a knife attack by a certain inmate upon another inmate, Demetrius Herndon. The incidents began on Five and Six Walks of housing unit 5, and concluded after a chase to corridor T-3, three stories below. Smith yelled at the attackers in an attempt to intervene, but May, one of the antagonists, turned toward Smith and threatened him. Smith and May then became engaged in a scuffle of their own wherein Smith stabbed May numerous times in spite of efforts by the prison guards. The two finally separated when a guard sprayed mace on Smith and the victim was pulled through a gateway by corrections officers. The victim had nineteen stab wounds to the head, chest, back, and arm and died almost instantly as a result of piercing injuries to the heart and lungs. Asked to comment Tuesday on the execution, Smith referred a reporter to Aritha Payne, May's mother. Payne has said she doesn't think Smith should be put to death for the murder of her son. "I think her voice is more important than mine," Smith said.. "If anyone is allowed to speak about this, it should be her." Prison records showed over 75 major conduct violations for Smith.

Kevin Locke, Public Defender

Sam Smith is scheduled to die on May 23, 2001, at 12:01 a.m. At Smith's request, his attorney has not submitted a clemency request. Instead, he issued the following appeal:

May 1, 2001 - WILL SAM SMITH EVER GET JUSTICE?

Sam Smith, presently on death row at Potosi Correctional Center in Missouri, is the victim of a bizarre travesty of justice in which his court-appointed lawyer, who had never tried a criminal case before, first gave him dismal, incompetent representation and then, later, took steps which sabotaged Smith’s constitutional right to have his conviction set aside because of that lawyer’s incompetence. So far, this despicable conduct has shielded that lawyer’s performance from scrutiny by any court and has kept Smith on Missouri’s death row even though he is not guilty of murder.

On January 15, 1987, a knife fight broke out at the Missouri State Penitentiary in Jefferson City. A number of inmates, including Marlin May, had approached another inmate, Demetrius Herndon, and were preparing to stab him as retribution for an incident the night before. Sam Smith, though not involved in this situation, saw what was about to happen and approached this group as a peacekeeper in an attempt to persuade the men not to fight, but to no avail. One of May’s group used his knife to threaten Smith and told him to butt out; one of the other men stabbed Herndon and the fight was on, eventually moving from the housing area down several flights of stairs to the housing unit’s lobby. Smith, who was initially unarmed, was able to disarm one of his attackers; he then sought to defend the unarmed Herndon, who was being stabbed by May. May advanced toward Smith, and both men stabbed at each other for some time until a correctional officer disarmed May. Nevertheless, the fight between May and Smith continued with Smith stabbing at May until the two were separated. May died of multiple stab wounds, and Smith was charged with first degree murder in his death. During his closing argument, the prosecutor emphasized the fact that Smith kept stabbing May after his disarming as convincing evidence of Smith’s murderous, deliberative mental state.

The jury that found Smith guilty of cool, deliberate murder and sentenced him to death did not know that, at the time of the offense, Smith was suffering from a mental disorder diagnosed as post-traumatic stress disorder. The jury did not know that this mental disorder was the result of an incident in August 1986 where Smith himself had been the victim of a prison stabbing which placed him in the prison hospital for seven days, and that following the August 1986 stabbing, Smith began to have nightmares in which he would continuously relive the attack upon him with associated mental and physical complications. The jury did not know that, because of this disorder, Smith was incapable of deliberating rationally upon anything at the time of the offense, much less the death of May.

The jury did not know any of this because David Kite, the lawyer selected to defend Smith by the same State which now wants to execute him, was so woefully inadequate that he did not obtain the mental examination which would have readily revealed Smith’s mental disorder in spite of the fact that Smith told Kite about the prior stabbing and its effect upon him, and asked Kite to seek expert assistance to determine whether his action in continuing to stab May after he was disarmed was the result of the prior incident.

This decisive, and so far fatal, omission by Kite is not surprising given the fact that Kite, prior to representing Smith, had never been lead counsel in any criminal case and had assisted in but one other, non-capital, criminal matter. Smith was therefore defended by an attorney who had none of the skills demanded in such a high-stakes case.

This complete lack of experience is further demonstrated by the fact that Kite did not even investigate or prepare any mitigating evidence to be presented on Smith’s behalf during the penalty phase, so confident was he that Smith would never be found guilty of first degree murder. The undisputed evidence available establishes that investigation of such mitigating evidence was not begun until after the jury returned its verdict; the penalty phase of the trial began approximately 100 minutes later. Kite, who was distraught over the jury’s verdict finding Smith guilty of murder, could not even bring himself to continue the trial; the heavy burden of throwing together a penalty phase presentation for Smith fell to Kite’s office mates who had assisted him various points in the trial, but who had never met or consulted with Smith prior to trial. Because of the complete lack of preparation for the penalty phase, Smith was at the mercy of the prosecutor; the jury’s recommendation of death came after only 80 minutes of deliberation. The record is clear that substantial mitigating evidence, including evidence regarding Smith’s mental status at the time of the offense, was readily available had any investigation been done before trial.

Woefully for Sam Smith, Kite’s deficient performance did not stop with his sentencing. At that time, Smith advised the trial judge that he was dissatisfied with the performance of Kite. The judge appointed new counsel to represent Smith on appeal; Kite was ordered to file the notice of appeal only and to then withdraw from the case. Incredibly, rather than make any effort to withdraw as Smith’s counsel or turn the case over to the new attorney as ordered, Kite continued to represent Smith on appeal and took the disastrous, fatal step of filing the transcript of Smith’s trial in the Missouri Supreme Court on October 7, 1988, seven weeks before it was due, without informing Smith or his new attorneys that he had done so. Because of Kite’s quick, quiet filing of the transcript, the 30-day time period within which Smith was required to file his written complaint about Kite’s performance began running, and expired, without the knowledge of either Smith or his new lawyers. As a result of Kite’s failure to communicate with either Smith or his new lawyers, Smith’s written complaint against Kite was filed late.

Since then, Smith has presented his claims against Kite to the Missouri state and federal courts, but those courts have uniformly refused to consider his complaints against Kite because of the late filing of the written complaint, which was engineered by Kite (who has since been disbarred for other reasons) in the first place! This is not justice!

Smith’s case is especially compelling because the Missouri Supreme Court, in a virtually identical case, granted relief and a new trial to another inmate, Ed Reuscher, who had also been misled by his attorney about the filing deadline for the written complaint against that lawyer. Since Smith’s case and Reuscher’s case were so similar, they were both argued before the Missouri Supreme Court the same day and were both decided the same day. For some reason, unexplained even today, Reuscher got a chance to file a new complaint against his lawyer and was eventually granted a new trial, but Smith got no relief from his conviction and remains on death row. This denial of basic justice has caused three judges of the Missouri Supreme Court to dissent strongly from the decisions of that Court denying Smith relief.

Had Smith’s complaint about his lawyer been filed on time, there is little doubt that Smith would have been granted a new trial with a new, competent lawyer. Instead, he sits on death row counting the days remaining to his date with the executioner just after midnight on May 23.

. Though it may be too late to expect that the courts will somehow suddenly reverse their prior decisions, it is not too late to petition Governor Bob Holden to spare Smith’s life.

Especially helpful to our cause is the fact that Marlin May’s mother, Aritha Payne of St. Louis, courageously opposes Smith’s execution, both because of her belief that the killing must stop somewhere and because she is appalled at the shoddy treatment Smith has received from the courts.

Time is rapidly running out for Sam Smith, whom I have represented since 1991. If you feel, as Ms. Payne and I do, that Smith’s execution would be wrong, for whatever reason, please help us save him, and in turn ourselves, by contacting Governor Holden’s office and making your voice heard. Write to him at State Capitol, Box 720, Jefferson City, MO 65101, call him at (573) 751-3222, fax him at (573) 751-1495 or send email. Many hate the death penalty as much as we do and will come forward if they believe they will be standing up with others rather than alone; help us spread the word to reach these people of good will. For further information, contact me at the numbers below or send email.

Help Sam Smith get justice!

KEVIN LOCKE
Assistant Public Defender
234 W. Shrader, Suite A
Liberty, MO 64068

Sam Smith Request for Clemency (Missouri Catholic Conference)