             SUPREME COURT OF MISSOURI
                                        en banc
STATE EX REL. WALTER BARTON                  )     Opinion issued April 27, 2020
                                             )
                                             )
                     Relator,                )
                                             )
v.                                           )     No. SC98343
                                             )
WILLIAM STANGE                               )
                                             )
                     Respondent.             )

                   ORIGINAL PROCEEDING IN HABEAS CORPUS

PER CURIAM

       On February 18, 2020, this Court issued its order setting Walter Barton’s execution

date for May 19, 2020. 1 Barton seeks a writ of habeas corpus from this Court, arguing he

is actually innocent. His evidence, however, does not show actual innocence but is simply

additional evidence that might have been used to impeach a jailhouse informant and

provide competing expert testimony to explain the presence of blood on his clothes. While

this might have been helpful, it does not show actual innocence by a preponderance of the

evidence as required for a gateway claim of actual innocence, nor does it rise to the level



1
 The factual background underlying Barton’s first-degree murder conviction can be found in this
Court’s opinion affirming his death sentence. State v. Barton, 240 S.W.3d 693 (Mo. banc 2007).
of clear and convincing evidence required for a freestanding claim of actual innocence.

State ex rel. Amrine v. Roper, 102 S.W.3d 541, 546-47 (Mo. banc 2003). Accordingly, his

claims of actual innocence do not entitle him to relief.

       Barton further claims he is not competent for execution because a traumatic brain

injury gave him major neurocognitive disorder of sufficient severity that he meets the

standard for incompetence set by the United States Supreme Court in Panetti v.

Quarterman, 551 U.S. 930, 949 (2007). He argues his execution would violate the Eighth

and Fourteenth amendments of the United States Constitution, article I, §§ 10 and 21 of

the Missouri Constitution and § 552.060. 2 “A petition for a writ of habeas corpus is a

proper means to raise a claim of incompetency.” State ex rel. Cole v. Griffith, 460 S.W.3d

349, 356 (Mo. banc 2015). This Court denies the petition because Barton has not

demonstrated the “substantial threshold showing of insanity” required by Panetti and Ford

v. Wainwright, 477 U.S. 399, 426 (1986) (Powell, J., concurring) nor has he demonstrated

he is incompetent under § 552.060. 3




2
 All statutory references are to RSMo 2016, unless otherwise provided.
3
 On March 17, 2020, Barton filed a motion for stay of execution with this Court. That motion is
contemporaneously overruled.
                                              2
                                             Analysis

A.     Claim of Actual Innocence 4

       Mr. Barton claims he presented evidence he is actually innocent of the murder for

which he was convicted and sentenced to death. He says this evidence is sufficient to show

his innocence by a preponderance of the evidence, which would entitle him to have this

Court consider his otherwise defaulted claim that the State failed to reveal certain

exculpatory evidence. Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000). This Court

disagrees.

       There are two types of evidence of actual innocence on which Barton relies. The

first is testimony from a blood spatter expert who he says would have testified that the

blood found on Barton’s shirt and pants after the murder was not blood spatter evidence as

claimed by the State’s expert. But Barton made this very claim at trial, arguing the evidence

on which the State’s expert relied did not support his conclusions. On appeal, this Court

stated Barton’s attack on the admissibility of the State’s expert was frivolous. Barton, 240

S.W.3d at 705. Further, Barton’s counsel considered hiring the very expert on whose

testimony it now relies but decided that it would be more effective to just impeach the

State’s expert. Barton v. State, 432 S.W.3d 741, 755 (Mo. banc 2014).




4
  Generally the first step in this Court’s analysis of a petition for habeas corpus claiming of actual
innocence – whether it be a gateway or freestanding claim – would be to consider whether the
petitioner alleged new evidence to support the claim that was not available at trial, when combined
with the other evidence, would meet the relevant standard for relief. As is evident from the
following discussion, Barton does not meet that threshold for habeas relief based on actual
innocence.

                                                  3
       Now, in support of his claim for habeas relief, Barton argues similar testimony

would have made the difference in the outcome of the case, for it shows he was actually

innocent. To the contrary, while this testimony might have been useful to counter the

testimony of the State’s expert, it does not exculpate him or inculpate another. It simply

provides competing expert testimony as to the source and nature of the blood on his clothes

after the murder. Even if the jury believed this evidence, it would not require the jury to

find he was actually innocent. To the contrary, at the time counsel believed the testimony

might be inconsistent with Barton’s explanation of how the blood got on his clothes. Id. at

756. Further, Barton already presented similar evidence in support of his post-conviction

motion alleging ineffective assistance, and this Court found counsel was not ineffective in

presenting this evidence. Id.

       Barton also states his actual innocence is shown by his discovery of additional

evidence impeaching the testimony of the State’s jailhouse informant, Katherine Allen,

who said Barton threatened to kill her “like he did that old lady.” Barton, 240 S.W.3d at

700; Barton, 432 S.W.3d at 748.

       Barton suggests that, at his fourth trial, his counsel had impeached this witness with

six prior convictions, but his conviction later was set aside after the postconviction court

found she had 29 prior convictions and certain additional criminal charges had been

dismissed in return for her testimony.

       Accordingly, the evidence of the full extent of Ms. Allen’s prior convictions was

known to Barton’s counsel before his fifth and final trial. When she again lied and said

she had only six prior convictions, defense counsel chose to impeach her with 12 of her

                                             4
prior convictions for forgery, fraud, bad checks and similar crimes going to lack of

truthfulness. He did not mention the other convictions or the charges that had been

dismissed, nor was this issue raised in his post-conviction motion. The issue was raised

but relief was denied in his federal habeas proceedings. Now Barton argues that, because

this Court has not yet had an opportunity to consider this evidence, it should now consider

it and hold this evidence in combination with new evidence that she was convicted in 2016

of identity theft and mail fraud, would make the difference and would show his actual

innocence.

       Taking Barton’s claims about Ms. Allen’s convictions as true, such evidence does

not support a finding of actual innocence. While counsel might have discredited Ms. Allen

even more at the trial, the impeachment he did undertake demonstrated for the jury that she

had been convicted of multiple crimes involving untruthfulness. That she had been

untruthful on yet more occasions is still merely impeachment evidence. Unlike in Amrine,

in which the witnesses’ testimony was recanted, Ms. Allen has not recanted her testimony,

and the offered evidence does not require a finding she lied at Barton’s trial. It remains an

issue of credibility for the jury. Further, the opinion of this Court on direct appeal

delineates the substantial additional evidence supporting the conviction, including Barton’s

presence in the victim's trailer and answering her telephone near the time of the murder, a

check the victim made out to him, his washing blood off his hands prior to the victim’s

body being found, his inconsistent stories, his behavior at the time of the murder, and the

undisputed presence of blood on his clothes, whether from spatter or otherwise. The



                                             5
additional impeachment evidence does not show actual innocence by a preponderance of

the evidence.

       Because the evidence is insufficient to make a gateway claim of actual innocence

by a preponderance of the evidence, it necessarily is also insufficient to support a

freestanding claim of actual innocence, which requires clear and convincing evidence of

actual innocence.

B.     Claim of Incompetence

       “The Eighth Amendment . . . prohibits the execution of a prisoner whose mental

illness prevents him from rationally understanding why the State seeks to impose that

punishment.” Madison v. Alabama, 139 S. Ct. 718, 722 (2019) (internal quotations

omitted). The prisoner must prove he suffers from a psychotic disorder that makes him

either unaware of the reasons for his punishment or such that he has no “rational

understanding” of it. Id. at 723 (citing Panetti, 551 U.S. at 957-60). If the prisoner has a

psychological dysfunction that “may have resulted in petitioner’s fundamental failure to

appreciate the connection between the petitioner’s crime and his execution” then he may

be incompetent to be executed. Panetti, 551 U.S. at 960 (internal quotations omitted.) In

Panetti, the prisoner alleged he met this standard because he experienced “gross delusions

preventing him from comprehending the meaning and purpose of the punishment to which

he ha[d] been sentenced.” Id. Barton similarly must allege and demonstrate a “substantial

threshold showing of insanity.” Id. at 949; Ford, 477 U.S. at 426.

       In support of his claim he is incompetent to be executed, Barton relies almost

exclusively on the “Forensic Evaluation Report” authored by Dr. Patricia Zapf. Dr. Zapf

                                             6
was hired by Barton’s counsel after November 19, 2019, when the State filed its motion to

set Barton’s execution date. Dr. Zapf reviewed Barton’s records and conducted a two-day

evaluation of him. Dr. Zapf ultimately concluded: “As a result of his Major Neurocognitive

Disorder, Mr. Barton has significant impairments in executive function, problem solving,

attention, concentration, working memory, and abstract reasoning, which result in the

inability to provide rational assistance to counsel and to engage in consistent, logical, and

rational decision making.” For these reasons, Dr. Zapf opined that Barton was incompetent

under the standard set forth in Dusky v. United States, 362 U.S. 402 (1960), and Justice

Marshall’s plurality opinion in Ford, but noted he was competent under Justice Powell’s

controlling concurring opinion in Ford. Neither Dusky nor Justice Marshall’s plurality

opinion however, provide the relevant, controlling standard by which this Court evaluates

Barton’s incompetency claim. 5

       Dr. Zapf’s report supports a finding that Barton is competent to be executed for

several reasons. First, Dr. Zapf concluded Barton had a factual understanding of why the

State is imposing capital punishment:



5
  The issue in Dusky was the petitioner’s competency to stand trial, not his competency to be
executed. 362 U.S. at 402. The relevant standard for competency to stand trial is “whether
[defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of
rational understandingand whether he has a rational as well as factual understanding of the
proceedings against [defendant].” Id. While that standard is somewhat similar to the standard for
competency to be executed, it is clear the standards are different and cannot be used
interchangeably. The portion of Justice Marshall’s plurality opinion in Ford regarding a prisoner’s
claim of incompetency to be executed garnered the votes of only three other justices. Because it
was not a majority opinion, Justice Powell’s concurring opinion on the same grounds is controlling
because it “offered a more limited holding.” Panetti, 551 U.S. at 949. In any event, competency
is a legal determination that is made by courts, not experts. State ex rel. Clayton v. Griffith, 457
S.W.3d 735, 741 (Mo. banc 2015).
                                                 7
       Mr. Barton demonstrated a rudimentary factual understanding of the
       punishment he is about to receive and the reasons for it. He was able to
       describe the reason why he is in prison and elaborate on his place of residence
       within the prison. He was able to provide information about his conviction,
       a general description of the criminal act, and basic identifying information
       about the victim. Mr. Barton was unable to engage in abstract discussions
       regarding the justness of his conviction, maintaining that he was “railroaded”
       and reporting that “they’re going to execute me if I can’t prove my
       innocence[.]”

Emphasis added.

       Second, Dr. Zapf concluded Barton had a “rational understanding” 6 of his

punishment, noting, “Mr. Barton demonstrated a simplistic, but rational understanding of

the punishment he is about to receive and the reasons for it.”

       Third, Dr. Zapf explicitly found Barton does not suffer from delusional thinking.

Dr. Zapf stated “he did not demonstrate any delusional thinking or loss of contact with

reality and no perceptual disturbances were noted.” (Emphasis added). In other words,

Barton does not suffer from “gross delusions preventing him from comprehending the

meaning and purpose of the punishment to which he has been sentenced.” Panetti, 551

U.S. at 960.

       Additionally, Dr. Zapf did not state that Barton had other psychotic disorders that

prevented him from forming both an awareness of the State’s rationale for executing him

and a rational understanding of that rationale, as required by Panetti. The DSM-5 provides

that traumatic brain injury, like dementia and certain other diseases, can cause



6
  According to Dr. Zapf, “[r]ational understanding is differentiated from factual understanding in
terms of the individual’s ability to apply factually understood information to the specific instance
of his own case.”
                                                 8
neurocognitive disorders of a major or minor character. Dr. Zapf argues Barton is

incompetent because his brain injury impaired his ability to provide rational assistance to

his attorneys and to demonstrate rational decision-making in his own defense. But these

conclusions are insufficient to support the determinations required by Madison, Panetti,

and Ford unless she found his impairments resulted in an inability to have a rational

understanding of the reasons for his punishment and the rationale for it. The mere fact that

the prisoner does not believe he deserves the punishment is inadequate. In Panetti, the

Supreme Court held:

       The mental state requisite for competence to suffer capital punishment
       neither presumes nor requires a person who would be considered ‘normal,
       or even ‘rational,’ in a layperson’s understanding of those terms. . . . The
       beginning of doubt about competence in a case like [Barton]’s is not a
       misanthropic personality or an amoral character. It is a psychotic disorder.

551 U.S. at 959-60 (emphasis added). While Dr. Zapf opines Barton has a neurocognitive

disorder that causes him to lack the ability to provide rational assistance and to demonstrate

rational decision-making due to his brain injury, she admits this does not meet the standard

set out in Ford and she does not say Barton’s cognitive dysfunction meets the standard set

out in Panetti. His mental condition simply does not rise to the extreme level of a psychotic

disorder. To the contrary, in response to Barton’s petition for a writ of habeas corpus, the

State provided Barton’s “Complete Mental Health History” dated November 1, 2019. The

history provides in pertinent part, “Offender does not appear to have any clinically

significant symptoms of a mental illness at this time. Records indicate no requests for

mental health services. [Barton] continues to make a good institutional adjustment.”



                                              9
Barton does not and cannot demonstrate a substantial threshold showing of insanity as

required by Panetti and Ford.

       In addition to his constitutional challenges, Barton also argues his brain injury

leaves him incompetent to be executed under § 552.060.1, 7 which provides:

        No person condemned to death shall be executed if as a result of mental
       disease or defect he lacks capacity to understand the nature and purpose of
       the punishment about to be imposed upon him or matters in extenuation,
       arguments for executive clemency or reasons why the sentence should not be
       carried out.

Barton’s statutory arguments mirror his constitutional ones, and they fail for similar

reasons. When addressing § 552.060.1 challenges, this Court has looked to several factors

in considering the prisoner’s competency. For example, in Cole, this Court looked to

whether the prisoner can articulate and understand legal issues with his case. 460 S.W.3d

at 361. Further, the Court surveyed whether the prisoner understood the underlying facts

of his case. Id. at 362. Dr. Zapf’s report demonstrates Barton understands the nature and

purpose of his pending execution. He remembers facts about the events giving rise to his

conviction as well as information about the victim. In addition, Barton’s claim that

“they’re going to execute me if I can’t prove my innocence” proves his understanding of

where he is in the legal process and the unique legal issues he currently faces. This Court

finds Barton competent to be executed under § 552.060.1.




7
  Barton’s arguments regarding § 552.060.1 are nothing more than conclusory statements claiming
he lacks the capacity to understand anything enumerated in the statute. These statements alone do
not carry Barton’s burden of establishing entitlement to habeas corpus relief. State ex rel.
Woodworth v. Denney, 396 S.W.3d 330, 337 (Mo. banc 2013). However, the Court will address
this argument ex gratia.
                                               10
                                        Conclusion

       Barton has not proved the substantial threshold showing of insanity required by

Panetti and Ford. Therefore, the constitutional principles announced in Madison, Panetti,

and Ford do not render him incompetent to be executed. Additionally, Barton has not

proven that he is incompetent under § 552.060. Further, Barton has not offered evidence

sufficient to show actual innocence as either a gateway or a freestanding claim. Barton’s

petition for a writ of habeas corpus is denied.




All concur.




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