Case Facts: The victims in this case were Brandie Kearnes and Wayne Hoewing. John Clayton Smith and Kearnes started dating in 1995. At that time, Kearnes lived with her mother, Yvonne Kurz, and her step-father, Wayne Hoewing, near Canton, Missouri. Around June 1, 1997, Keames broke off the relationship with Smith. Kearnes continued to live at the Hoewing residence with her daughter, mother and step-father.

At 11:05 on the evening of July 4, 1997, Smith drove to the Hoewing residence and parked his truck some distance from the house. Smith entered the house through the basement door, took off his shoes, and went upstairs. Once inside, he went to Kearnes' bedroom, and attacked her with a knife.

Kearnes got away from Smith and ran toward the living room area. As she ran, Smith grabbed the back of her shirt and tried to stab her in the back. In the living room and kitchen area, Smith scuffled with Kearnes, stabbing and cutting her eight times. Kearnes did not die immediately, and as she lay dying, she wrote, "It was Joh_." on the kitchen floor in her own blood. At some point, Kearnes also tried to call her father, and she left a message that said, "Dad, come to the house and get Tatum".

Smith then went toward Wayne Hoewing's bedroom and attacked Hoewing, who had been awakened by the sounds of the struggle. Smith pushed Hoewing onto the bed, got on top of him, and started stabbing him. Smith stabbed and cut Hoewing eleven times, but Hoewing did not die immediately. Kurz, who had also gotten out of bed when she heard the sounds of the struggle, tried to push Smith off of Hoewing, but Smith cut her on the forearm, and she ran into the bathroom .

Smith followed Kurz to the bathroom door and while he was at the bathroom door, Hoewing was able to pick up a gun that he kept in the house. As he tried to get into the bathroom, Smith saw Hoewing with the gun, and he said, "Shoot me. Go ahead and shoot me". Hoewing did not fire the gun, however, and eventually, Smith left the bedroom, went back downstairs, put on his shoes, and left the house through the basement door.

After Smith left the Hoewing residence, Kurz was able to leave the bathroom and call for help. When medical first responders reached the scene, Kearnes was already dead. Kearnes had been partially stripped of her clothing during the attack, and she was lying face up on the kitchen floor. Kearnes had been stabbed or cut eight times in the neck, chest, abdomen, arm, and thigh. Two stab wounds in her right breast punctured her lung. The first responders treated Hoewing briefly, but while still at the scene, he was pronounced dead. He had been cut and stabbed eleven times in the chest, arms, leg, hand, and hip; he died from loss of blood.

Missouri Department of Corrections

St. Louis Post-Dispatch

"Missouri Executes Man Convicted in Two Stabbing Deaths in 1997," by Jim Suhr. (AP 10/28/2003)

POTOSI, Mo. (AP) -- A man who killed a former girlfriend and her stepfather in northeast Missouri six years ago was put to death early Wednesday, expressing sorrow for what he did and saying he hoped to find forgiveness. John Clayton Smith, 42, who had waived appeals and said he wanted to die, become the second murderer killed by Missouri this year. His execution was the 61st since the state reinstated the death penalty in 1989.

Before the first of three chemicals were pumped into his veins, Smith raised his head and mouthed "I'm sorry" to reporters and other state witnesses, then did the same to the 12 survivors of his victims, Brandie Kearns, 22, and Wayne Hoewing, 51. "I only ask that somewhere down life's road, you can find it in your hearts to forgive me," Smith said in a final statement. "I know my death can never bring back your loved ones, but I pray my death may give you some sort of peace."

Bridie Brooks, a sister of Kearns, shouted "Burn in hell" from behind the glassed-off witness area at the Potosi Correctional Center, and said later she considered Smith's final comments "a joke." "He's not human. He's just a worthless whatever," said Brooks, 31, an insurance claims examiner from Williamstown. "I think everyone will say this was the easy way out for him," said Wayne Hoewing's son, Scott. He said Smith's death by chemical injection just after midnight was "pretty calm" and swift compared to the brutal killings of the two victims.

Kearns, who had broken off her relationship with Smith about a month before she was slain in July 1997, was stabbed or slashed eight times at her home near Canton, a Mississippi River town about 30 miles south of the Iowa border. Her infant daughter Tatum was found unharmed at her mother's feet the next morning. Before she died, Kearns scrawled the following words in blood on the kitchen floor: "It was Joh-." Hoewing, mortally injured with numerous stab wounds, managed to point a loaded gun at Smith, who taunted him by saying, "Go ahead and shoot me." Hoewing's daughter, Amy Bringer, said that while it may forever be unclear to her whether Smith's final apologies were sincere, "I needed to hear them."

Smith had access Tuesday to forms for 11th-hour federal appeals, but made no use of them. He spent his final day quietly, without visitors, eating ice cream and granola bars and at times talking with relatives by telephone. No members of his family attended the execution. "He had told us all day he was accepting his punishment, and there was no indication he wanted to do anything other than to follow through with the execution," state Department of Corrections spokesman Tim Kniest said. Gov. Bob Holden declined two clemency requests filed, without Smith's approval, by the Missouri Catholic Conference and a former public defender who had represented Smith on appeals to the Missouri Supreme Court.

Smith rejected interview requests in the days before his death. His push to halt appeals of his death sentence dated to at least mid-2001, when he told the judge who condemned him that he was "totally guilty," "very sorry," mentally fit to abandon his legal challenges and ready to die "once and for all." "The punishment of death is suitable," he wrote then.

Kearns' daughter, now 7, lives with her grandmother and has not been told about the attacks. Her aunt, Bridie Brooks, said the little girl blows kisses when she passes the cemetery where her mother is buried. "She doesn't have the grief or bitterness I know I have," Brooks said, her eyes welling with tears. "Tatum has her own personality, but part of my sister lives in her."

News Channel 5

"Missouri Executes John Clayton Smith" (10/29/2003 8:46:56 AM)

(Potosi-AP) -- The 42-year-old northeast Missouri man was pronounced dead by Department of Corrections officials minutes after a series of injections at the Potosi Correctional Center. Smith mouthed the words "I'm sorry" to reporters and state witnesses and again to witnesses Smith was sentenced to die for the July 1997 murders of ex-girlfriend Brandie Kearns and her stepfather, Wayne Hoewing, in their Canton home.

Kearnes was stabbed eight times and Hoewing eleven times. Before dying, Kearns used her own blood to scrawl most of Smith's first name on her kitchen floor. Smith did not appeal, although paperwork was available to him. He had previously said he was ready to be executed.

(Copyright 2003 by The Associated Press. All Rights Reserved.)

ProDeathPenalty.Com

The victims in this case were Brandie Kearnes and Wayne Hoewing. John Clayton Smith and Brandie Kearnes started dating in 1995. At that time, Brandie lived with her mother, Yvonne Kurz, and her step-father, Wayne Hoewing, near Canton, Missouri. Around June 1, 1997, Brandie broke off the relationship with Smith. Brandie continued to live at the Hoewing residence with her daughter, mother and stepfather.

At about 7:30 a.m. on the morning of July 4, 1997, Smith drove by O.C.'s Tavern in Canton and looked at Kearnes's car, which had been parked in the lot next to the tavern since the night before. Approximately fifteen minutes later, Smith telephoned his ex-wife and asked what she planned to do with the children that day. Smith was upset and when his ex-wife asked why, he replied, "Everything." When his ex-wife asked Smith if he was having difficulties with Brandie, he said, "Just everything. I can't talk about it now. I gotta go," and hung up. Sometime later during the same morning, Smith telephoned Yvonne Kurz and asked whether Brandie had come home the night before. Yvonne responded that Brandie had not come home. Smith then asked, "She is seeing someone else, isn't she?"

Later that afternoon, Smith, after seeing Brandie driving on the highway, followed her to a friend's house and pulled up behind her in the driveway. Brandie got out of her car and spoke to Smith for about three minutes. He then left. At 11:05 p.m., Smith purchased a twelve-pack of beer at a convenience store in Canton. The store clerk noticed that Smith was preoccupied and appeared to be in a "weird mood."

Smith left the convenience store and, sometime after 1:48 a.m. on July 5, 1997, drove to the residence where Brandie Kearnes and Wayne Hoewing resided. Smith parked his truck approximately thirty yards from the residence. Taking some of the beers with him, but not any of the three guns he had in the truck, Smith walked around a large pond on the property and approached the residence. He entered the residence through the basement door, took off his shoes, and went upstairs. Once inside, he went to Brandie's bedroom, and attacked her with a knife. At some point, Brandie also tried to call her father, and she left a message that said, "Dad, come to the house and get Tatum". Brandie got away from Smith and ran toward the living room area. As she ran, Smith grabbed the back of her shirt and tried to stab her in the back. In the living room and kitchen area, Smith scuffled with Brandie, stabbing and cutting her eight times. Smith stabbed or cut Brandie eight times during the scuffle. The wounds did not immediately cause Brandie's death; she had time to write "It was Joh-" "I Y Tatu-" and "--andi s-v- T-tum" on the kitchen floor with her own blood. The last two messages referred to Tatum, Brandie's infant daughter, who was found unharmed at the feet of Brandie's body.

Smith then entered the Hoewing's bedroom and attacked Wayne, who had been awakened by the sounds of scuffling coming from the living room. Smith pushed Wayne onto the bed, got on top him and began stabbing him, inflicting eleven stab or cut wounds, but Wayne did not die immediately. Yvonne Kurz, who had also gotten out of bed when she heard the sounds of the struggle, tried to push Smith off Wayne, but Smith slashed her forearm. She retreated into the bathroom and closed the door. While Smith was at the door of the bedroom, Wayne was able to gain possession of a loaded gun he kept in the house. As he tried to get into the bathroom, Smith saw Wayne with the gun, and he said, "Shoot me. Go ahead and shoot me". Wayne did not fire the gun, however, and eventually, Smith left the bedroom, went back downstairs, put on his shoes, and left the house through the basement door.

After Smith left the Hoewing residence, Yvonne was able to leave the bathroom and call for help. Smith walked from the Hoewing residence to the nearby farm of Bill Lloyd, where he hid his knife under some tin and attempted to steal a tractor. After crashing the tractor into a flatbed trailer on the property, Smith fled on foot. He eventually traveled to another nearby residence, where he stole a truck and drove away. Soon thereafter Smith was apprehended after crashing the truck. When medical personnel reached the Hoewing residence, Brandie was already dead. Brandie had been partially stripped of her clothing during the attack, and she was lying face up on the kitchen floor. Brandie had been stabbed or cut eight times in the neck, chest, abdomen, arm, and thigh. Two stab wounds in her right breast punctured her lung and the wounds to her abdomen cut her liver and one kidney. The first responders treated Wayne briefly, but while still at the scene, he was pronounced dead. He had been cut and stabbed eleven times in the chest, arms, leg, hand, and hip; he died from loss of blood.

Police found several pieces of evidence at the scene of the crime. Police noticed a trail of blood left by Smith as he left the house. One of Smith's socks was recovered from under the body of Wayne Hoewing. Police found three beer cans outside of the residence and also found the keys used by Smith to break into the house. After being apprised several days after the murders of the messages written with blood on the kitchen floor, police seized the linoleum bearing those messages. The police did not find any weapons. Later in July, however, a worker at the farm where Smith had attempted to steal the tractor found a knife hidden under some tin. The original owner of the knife identified it as the knife she had given to Smith.

At trial, Smith did not contest his identity as the killer, but he offered the testimony of Dr. Michael Stacy, who testified that Smith's capacity to deliberate before the killings was substantially impaired. The state offered expert testimony to rebut Dr. Stacy's diagnosis and findings. The jury found Smith guilty on both counts of murder in the first degree and both counts of armed criminal action. During the penalty phase of the trial, the state introduced evidence of Smith's prior violent history with women, his prior convictions for felony stealing and violating an order of protection, and the impact that the murders had on the victims' families. Smith presented the testimony of friends and family and the testimony of a mental health professional in mitigation of punishment.

After the close of the penalty phase evidence and after the instructions and arguments of counsel, the jury found the following aggravating circumstances with regard to Brandie Kearnes: that the murder of Brandie Kearnes was committed while Smith was engaged in the commission of another unlawful homicide and that her murder was committed while Smith was engaged in the perpetration of a burglary. With respect to Wayne Hoewing, the jury found that the same aggravating circumstances applied. The jury also found that Wayne's murder involved depravity of mind in that the murder was wantonly vile, horrible, and inhuman. The jury recommended a sentence of death on each count of murder in the first degree.

St. Louis Post-Dispatch

"Holden Rejects Clemency Bids on Inmate's Behalf," by Jim Suhr. (Associated Press 10/28/2003)

Gov. Bob Holden on Tuesday declined clemency requests unwanted by an inmate sentenced to death in the 1997 killings of his ex-girlfriend and her stepfather, clearing a hurdle for the prisoner who was seeking to be executed as planned hours later. The clemency bids filed with Holden were without the blessings of John Clayton Smith, who said he was forgoing his remaining appeals in hopes of dying by injection as scheduled at 12:01 a.m. Wednesday at the Potosi Correctional Center.

Should he change his mind, Smith, 42, still had ready access to forms for 11th-hour federal appeals. He declined to be interviewed Tuesday. Smith has said he preferred execution over prospects of life behind bars in the northeast Missouri stabbing deaths of Brandie Kearns and Wayne Hoewing.

In the wee hours of July 5, 1997, Smith entered the victims' Canton home and stabbed and cut Kearns eight times before attacking Hoewing, knifing him 11 times. Kearns survived long enough to scrawl "It was Joh-" in her own blood on the kitchen floor and leave a dying farewell to her toddler daughter, later found unharmed at the feet of the dead 22-year-old mother. Kearns and Hoewing, 51, died at the scene.

In rejecting the clemency bids by the Missouri Catholic Conference and Columbia attorney Gary Brotherton, Holden said he said "he saw no sufficient reasons within those petitions that would warrant setting aside the jury's and the court's sentence," Holden spokesman Jack Cardetti said.

Earlier Tuesday, one of Brandie Kearns' sisters said she looked forward to perhaps watching Smith die, believing the killer was "taking the easy way out" and "too much of a coward to live in prison." "I'm just very glad he's going to burn in hell," said Bridie Brooks, a 31-year-old insurance claims examiner from Williamstown. She called Smith's potential demise "the ultimate justice."

Without comment, the U.S. Supreme Court last week declined to intervene.

Smith and Kearns dated about two years before Kearns broke off the relationship roughly a month before Smith sneaked into the family's home near Canton and knifed Kearns and her stepfather, who while mortally wounded managed to point a loaded firearm at Smith. "Go ahead and shoot me," Smith taunted Hoewing in the wee hours of that July 5, 1997. No shot was fired, and Smith walked from the scene.

While clinging to life, Kearns used her blood to scrawl "It was Joh-" "I (heart) Tatu-" and "--and s-v- T-tum" on the floor. The last two messages referred to Tatum, Kearns' baby girl, now 7 and living with Kearns' mother.

Public Interest Litigation Clinic

SMITH, JOHN C.
DOB: March 1, 1962
Race: White
Gender: Male

CRIME AND TRIAL
County of conviction: Audrain (on transfer from Lewis)
Number of counts: Two (not including one other injured but not killed during same incident)
Race of victim:
Gender of victim: Female/male
Date of crime: July 4, 1997
Date of sentencing: July 26, 1999

TRIAL COUNSEL:

LEGAL STATUS:
Current proceedings: Execution date postponed from May 14, 2003, to October 29, 2003, to permit the filing of a petition for certiorari following the Missouri Supreme Court's dismissal of Mr. Smith's post-conviction appeal. Last judicial decision: Affirmance of dismissal of Mr. Smith's Rule 29.15 motion, following prisoner's representation that he wanted to waive post-conviction and appellate remedies; appeal dismissed. Smith v. State, 100 S.W.3d 805 (Mo. banc 2003)

CURRENT COUNSEL:
William J. Swift
Office of the Public Defender
3402 Buttonwood
Columbia, MO 65201-3724
571-882-9855

REPORTED OPINIONS:
--Dismissal of post-conviction motion affirmed by Smith v. State, 100 S.W.3d 805 (Mo. banc 2003)
--Conviction and sentence affirmed on direct appeal by State v. Smith, 32 S.W.3d 532 (Mo. banc Dec. 5, 2000)

SIGNIFICANT LEGAL ISSUES:

--Competence of Mr. Smith to waive post-conviction remedies.

--Prosecutor who elected to seek death sentence, and who entered evidence regarding defendant's two prior convictions which were used to argue for death sentence, previously represented defendant during the two cases.

--Exclusion of equivocating Witherspoon venirepersons

--Guilt-phase admission of evidence that defendant previously choked his wife and fought with a co-worker

State v. Smith 32 S.W.3d 532 (Mo. banc Dec. 5, 2000)

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

Appeal From: Circuit Court of Audrain County, Hon. Edward D. Hodge

Opinion Summary:

John Clayton Smith stabbed to death his ex-girlfriend and her step-father in July 1997. He was convicted of two first-degree murders and sentenced to death for each, among other crimes and sentences. He appeals. AFFIRMED.

Court en banc holds:

1) The prosecutor was not disqualified based on conflict of interest. The prosecutor had defended Smith in a 1981 work permit revocation proceeding and on a 1983 felony stealing conviction. Although evidence touching on both prior cases was admitted at trial, the cases were not substantially related to the instant case. Smith concedes that if he faced any punishment but death he would not question the prosecutor's ability to prosecute him, failing the conflict of interest standard in Rule 4-1.9. The Court will continue to follow its rule without engrafting an exception for first-degree murder cases in which the death penalty is sought.

2) Three jurors who could not sign a death verdict as foreperson, although they said they could consider the death penalty, were substantially impaired in considering the full range of punishment and performing their duties as jurors. No panel of 12 jurors who could not sign a verdict form assessing death could be said to have the unimpaired ability to consider the appropriateness of the death penalty. They were properly stricken for cause.

3) The court did not abuse its discretion when it sustained the state's objection to defense counsel's statements concerning the meaning of "life without parole."

4) A linoleum piece on which the victim wrote messages in her blood before she died, photographs of it, and testimony were admissible. One message identified the attacker, which the state needed to prove. Another message suggests she was the author and helps prove the messages were her dying declarations. The photographs showed the messages were present at the initial investigation. Expert testimony that parts were only visible with laser light and were not written with an assisted hand was admissible.

5) Smith's ex-wife's testimony was admitted not to attack Smith's character but, rather, to contrast his behavior before the killing with the past to show deliberation.

6) To test the validity and weight of experts' testimony, the state was permitted to cross-examine them on their knowledge of facts surrounding Smith's prior hospitalizations, including choking his wife and fighting a co-worker,. The court instructed the jury not to consider the testimony as evidence that Smith did or did not commit those acts. The state's argument that Smith planned the murder then tried to "cook up some kind of psychiatric mumbo-jumbo to get him out of it just like he's done before" was in the context of urging the jury to find deliberation, not evidence of uncharged crimes.

7) An officer's statement that he advised Smith of his Miranda rights was not a comment that Smith failed to respond so as to warrant mistrial.

8) The state's arguments did not: suggest jurors would have to explain to friends and family, suggest Smith has a propensity for behaving in a manner consistent with his guilt, turn the prosecutor into an unsworn witness, or diminish the jurors' sense of responsibility.

9) Although the state failed to disclose non-statutory aggravating circumstances when requested, which was error, manifest injustice did not result. Smith received some information about the evidence, such as the witnesses' names and several reports. The witnesses' testimony regarding his prior violence was unadjudicated, but both witnesses had obtained restraining orders.

10) The record reflects that the court considered only the facts and circumstances of Smith's case in sentencing, despite overruling an objection to the victim's family's testimony as to their sentence wishes.

11) The third aggravating circumstance was incorrectly drafted, directing the jury to consider whether the defendant entered the house to commit "a crime," without specifying murder. Smith was not prejudiced by the failure to specify the crime because the only crime evidenced was murder. Even if that part of the instruction were stricken, the penalty must be upheld because at least one other statutory aggravating circumstance supported it.

12) There was no error in admitting prior convictions and instructing the jury how to evaluate the evidence.

13) The court properly admitted victim impact evidence without specific instruction.

14) This Court again rejects attacks on the "depravity of mind and "multiple murder" instructions.

15) The case passes this Court's statutory proportionality review.

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

Appellant began dating Brandie Kearnes, one of the two victims in this case, in 1995. At that time, Brandie lived near Canton with her mother, Yvonne Kurz, and her step-father, Wayne Hoewing, the other victim. While they were dating, Brandie and appellant made plans to live together. Appellant borrowed $30,000 to buy a house for himself and Brandie. Around June 1, 1997, however, Brandie terminated the relationship with appellant, after which she chose to continue living with Yvonne Kurz and Wayne Hoewing.

Later that month, appellant contacted his former wife, Mary Smith, about visiting his children. Appellant had not visited his children for a year and a half prior to that time. Appellant visited with his children several times during June, once giving Smith some savings bonds and coin collections that he wanted the children to have.

At about 7:30 a.m. on the morning of July 4, 1997, appellant drove by O.C.'s Tavern in Canton and looked at Kearnes's car, which had been parked in the lot next to the tavern since the night before. Approximately fifteen minutes later, appellant telephoned Smith and asked what she planned to do with the children that day. Appellant was upset. When Smith asked why, appellant replied, "Everything." When Smith asked appellant if he was having difficulties with Brandie, he said, "Just everything. I can't talk about it now. I gotta go," and hung up. Sometime later during the same morning, appellant telephoned Yvonne Kurz and asked whether Brandie had come home the night before. Kurz responded that Brandie had not come home. Appellant then asked, "She is seeing someone else, isn't she?"

Later that afternoon, appellant, after seeing Brandie driving on the highway, followed her to Brian Brooks's house and pulled up behind her in the driveway. Brandie got out of her car and spoke to appellant for about three minutes. Appellant then left. At 11:05 p.m., appellant purchased a twelve-pack of beer at a convenience store in Canton. The store clerk noticed that appellant was preoccupied and appeared to be in a "weird mood." Appellant left the convenience store and, sometime after 1:48 a.m. on July 5, 1997, drove to the residence where Brandie Kearnes and Wayne Hoewing resided. Appellant parked his truck approximately thirty yards from the residence. Taking some of the beers with him, but not any of the three guns he had in the truck, appellant walked around a large pond on the property and approached the residence. Appellant entered the residence through the basement door, took off his shoes, and went upstairs.

Appellant located Kearnes and began to scuffle with her in the living room and kitchen area of the house. Appellant stabbed or cut Brandie eight times during the scuffle. The wounds did not immediately cause Brandie's death; she had time to write "It was Joh-" "I Y Tatu-" and "--andi s-v- T-tum" on the kitchen floor with her own blood. The last two messages referred to Tatum, Brandie's infant daughter, who was found unharmed at the feet of Brandie's body.

Appellant then entered the Hoewing's bedroom and attacked Wayne, who had been awakened by the sounds of scuffling coming from the living room. Appellant got on top of Wayne on the bed and began stabbing him, inflicting eleven stab or cut wounds. Yvonne Kurz attempted to push appellant off Wayne, but appellant slashed her arm. She retreated into the bathroom and closed the door. While appellant was at the door of the bedroom, Wayne was able to gain possession of a loaded gun he kept in the house. Appellant, seeing the gun, said, "Shoot me. Go ahead and shoot me." No shots were fired, however, and appellant left the bedroom. Kurz was eventually able to call for help from the bathroom.

Appellant then went back downstairs and left the house through the basement door after putting on his shoes. Appellant walked from the Hoewing residence to the nearby farm of Bill Lloyd, where he hid his knife under some tin and attempted to steal a tractor. After crashing the tractor into a flatbed trailer on the property, appellant fled on foot. He eventually traveled to another nearby residence, where he stole a truck and drove away. Soon thereafter appellant was apprehended after crashing the truck.

When medical personnel reached the Hoewing residence, Brandie was already dead. She had been partially stripped of her clothing. She was lying face up on the kitchen floor. Eight cut or stab wounds had been inflicted on her neck, chest, abdomen, arm, and thigh. The stab wounds to the chest punctured Brandie's lung, and the wounds to her abdomen cut her liver and one kidney. The medical personnel treated Wayne Hoewing briefly, but soon pronounced him dead. He received eleven cut or stab wounds to the chest, arms, leg, hand, and hip. He bled to death from those wounds.

Police found several pieces of evidence at the scene of the crime. Police noticed a trail of blood left by appellant as he left the house. One of appellant's socks was recovered from under the body of Wayne Hoewing. Police found three beer cans outside of the residence and also found the keys used by appellant to break into the house. After being apprised several days after the murders of the messages written with blood on the kitchen floor, police seized the linoleum bearing those messages. The police did not find any weapons. Later in July, however, a worker at the farm where appellant had attempted to steal the tractor found a knife hidden under some tin. The original owner of the knife identified it as the knife she had given to appellant. At trial, appellant did not contest his identity as the killer, but he offered the testimony of Dr. Michael Stacy, who testified that appellant's capacity to deliberate before the killings was substantially impaired. The state offered expert testimony to rebut Dr. Stacy's diagnosis and findings. The jury found appellant guilty on both counts of murder in the first degree and both counts of armed criminal action.

During the penalty phase of the trial, the state introduced evidence of appellant's prior violent history with women, appellant's prior convictions for felony stealing and violating an order of protection, and the impact that the murders had on the victims' families. Appellant presented the testimony of friends and family and the testimony of a mental health professional in mitigation of punishment.

After the close of the penalty phase evidence and after the instructions and arguments of counsel, the jury found the following aggravating circumstances with regard to Brandie Kearnes: that the murder of Brandie Kearnes was committed while appellant was engaged in the commission of another unlawful homicide and that her murder was committed while appellant was engaged in the perpetration of a burglary. With respect to Wayne Hoewing, the jury found that the same aggravating circumstances applied. The jury also found that Wayne's murder involved depravity of mind in that the murder was wantonly vile, horrible, and inhuman. The jury recommended a sentence of death on each count of murder in the first degree.

On July 6, 1999, the trial court imposed sentence in accordance with the recommendation of the jury. In addition, the court sentenced appellant to consecutive terms of twenty years in the department of corrections on the armed criminal action counts. This appeal followed.

National Coalition to Abolish the Death Penalty

John Clayton Smith, Missouri Oct. 29, 2003

The state of Missouri is scheduled to execute John Clayton Smith, a white man, Oct. 29 for the 1997 murders of Brandie Kearnes and Wayne Hoewing. Smith has given up his appeals and is volunteering to be executed.

Smith certainly has issues worthy of appeal: The prosecuting attorney, in a clear conflict of interest, had previously served as Smith’s defense attorney, and used privileged information against him at trial. He used that history to secure the death penalty. Although the Missouri Supreme Court has upheld Smith’s death sentence, with a 5-2 vote, the dissent was of the opinion that “The prosecutor’s failure to disqualify himself from representing the state against his former client poses a serious question, in a death penalty case, as to the integrity of the system under which Smith was tried.”

Like over 10 percent of the death row population, Smith is mentally ill; suffering from bipolar disorder with psychotic features. He is highly medicated, yet has made several suicide attempts while in prison. At trial, two expert witnesses - one for the defense and one for the prosecution - testified in regard to Smith’s mental condition. Dr. Michael Stacy, testifying for the defense, diagnosed Smith with Recurrent Major Depression and Personality Disorder, and Dr. Jerome Peters, testifying for the prosecution, diagnosed him with Narcissistic Personality Disorder. They also noted Smith’s prior hospitalizations at mental health institutions, as well as his dependence on alcohol. The 1997 UN Human Rights Commission has called on countries not to impose or carry out the death penalty on anyone suffering from any form of mental disorder. Smith’s pending execution represents little more than a state-assisted suicide of a mentally ill man, and the state of Missouri should consider it from that perspective before carrying out this death sentence. The Supreme Court ruled that Smith was competent to volunteer for execution, however there was no psychiatric testing that supported their ruling.

About 100 men and women have been executed in the USA since 1977 after giving up their appeals at some stage in the process Although such executions are sometimes characterized as a form of state-assisted suicide, "prisoner-assisted homicide" might be a more accurate label. For if a death row inmate seeks to commit actual suicide, as more than 50 condemned prisoners have successfully done since 1977, the state will make every effort to prevent it. The cases show that there may be any number of factors contributing to a prisoner's decision not to pursue appeals against his or her death sentence, including mental disorder, physical illness, remorse, bravado, religious belief, the severity of conditions of confinement including prolonged isolation and lack of physical contact visits, the bleak alternative of life imprisonment without the possibility of parole, pessimism about appeal prospects, a quest for notoriety, or simply as a way for the prisoner to gain a semblance of control over a situation in which they are otherwise helpless (Amnesty International, 2003).

Missouri has executed 60 people since the reinstatement of the death penalty in 1976, and one man - Kenneth Kenley - in 2003. State law allows the governor to grant clemency to death row inmates after receiving a non-binding recommendation from the Missouri Board of Probation and Parole. Please write Gov. Bob Holden and request clemency for John Clayton Smith.

Amnesty International

USA (Missouri) John Clayton Smith (m), aged 41, white

John Clayton Smith is scheduled to be executed in Missouri on 14 May 2003. He was sentenced to death in 1999 for the murder of his former girlfriend Brandie Kearnes and her stepfather, Wayne Hoewing, in 1997.

In December 2000, the Missouri Supreme Court upheld John Smith's death sentence, by five votes to two. The two dissenting judges argued that he should receive a new trial because the prosecutor in the case had previously represented Smith and should have withdrawn from the case. The dissent wrote: "In a fundamental way, the [majority] opinion damages the integrity of the legal profession. There is no dispute that the prosecutor in this case had represented Smith in two previous criminal cases as his defence attorney. Moreover, the prosecutor – Smith's erstwhile defender – used one of those convictions in persuading the jury to impose the death penalty on his former client. The fact is that he had a confidential relationship with Smith in which Smith was encouraged to disclose to the attorney the darkest secrets of his life. This fact, along with the fact that the death penalty was sought, makes such a dual representation unacceptable. As the principal opinion acknowledges, a defendant's previous criminal and antisocial conduct, along with the defendant's background, come into play in the prosecutor's decision as to whether to seek the death penalty. The prosecutor's failure to disqualify himself from representing the state against his former client poses a serious question, in a death penalty case, as to the integrity of the system under which Smith was tried".

John Smith could pursue this and other legal claims in the state and federal courts, but has chosen to drop any further appeals against his conviction and death sentence. In March 2003, the Missouri Supreme Court ruled that he was competent to do so.

John Smith has been diagnosed with mental illness, specifically bipolar disorder with psychotic features, and is on medication in prison. According to his attorneys, he has previously made a suicide attempt while on death row. In repeated resolutions since 1997, the United Nations Commission on Human Rights has called on all retentionist countries not to impose or carry out the death penalty on anyone suffering from any form of mental disorder.

TheDeathHouse.Com

"Missouri Executes Killer Who Gave Up Appeals."

POTOSI, Mo. - A man who murdered his former girlfriend and her stepfather was executed by lethal injection early Wednesday morning. John Clayton Smith, who had dropped his appeals and said he preferred death to life behind bars, became the second condemned killer executed in the state in 2003. Smith was seen mouthing the words "I'm sorry" to reporters and witnesses as he lay in the execution room at Potosi Correctional Center shortly after midnight.

On July 4, 1997, Smith murdered Brandie Kearnes and her stepfather, Wayne Hoewing, in their home. Brandie Kearnes managed to partially scrawl the name of her killer on the kitchen floor - using her own blood. As she died, Kearnes wrote in blood, "It was Joh--."

Kearnes' infant daughter was at her feet when her body was found. There was no doubt that Smith committed the murders. Kearnes and Smith had dated. Court documents stated that Smith had borrowed $30,000 to purchase a house for the couple to live in. However, Kearnes ended the relationship in June of 1997.

Prosecutors said that on July 4, 1997, Smith parked about 30 yards away from the house, entered through a basement door, took off his shoes and went to the bedroom of Kearnes and attacked her with a knife. As she tried to run away, he grabbed and stabbed the woman numerous times. While she bled, Kearnes reportedly wrote "It was Joh--" on the floor. Smith then went to the bedroom of Kearnes' stepfather, Hoewing. He got on top of Hoewing on the bed and repeatedly stabbed him. Hoewing's wife, Yvonne Kurz (Brandies' mother), managed to run into the bathroom. Meanwhile, the mortally wounded Hoewing somehow got a gun. Smith told him to shoot him, but Hoewing never fired, prosecutors stated.

Smith eventually left the house. Kurtz called the police. Hoewing later died from loss of blood. When police arrived, Brandie Kearnes was already dead - her child unharmed and at her feet, court documents stated. Court documents state that Smith had a history of depression, bipolar disorder and anxiety. He had been previously convicted of felony theft and, prosecutors said, had a history of violence against women.

Smith's ex-wife also testified during his trial. A bizarre aspect of the case, according to court documents, is that after the murders, Smith tried to escape by stealing a tractor from a nearby farm. Smith went to the farm to hide the knife he used to kill. He stole a tractor, but crashed it into a flatbed trailer on the property, court documents stated. He then fled on foot, stole a truck, crashed that vehicle and was later nabbed by police. Before the murders, a convenience store clerk said that Smith had stopped in to purchase a 12-pack of beer, court records stated.