United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-3465
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Gerald Elam, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Larry Denney, *
*
Appellee. *
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Submitted: September 19, 2011
Filed: December 8, 2011
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Before LOKEN, BEAM, and MURPHY, Circuit Judges.
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LOKEN, Circuit Judge.
Gerald Elam was convicted in Missouri state court and sentenced to life in
prison for the first degree murder of his grandfather, armed criminal action, and
second-degree arson. The Missouri Court of Appeals affirmed, rejecting Elam’s
contention that the trial court erred in finding him competent to stand trial. State v.
Elam, 89 S.W.3d 517, 522 (Mo. Ct. App. 2002). Elam moved for post-conviction
relief on many grounds, including a claim that trial counsel provided ineffective
assistance by failing to call two mental health professionals to testify at a pretrial
competency hearing. The state trial court denied relief after an evidentiary hearing,
and the Missouri Court of Appeals again affirmed. Elam v. State, No. WD 67298
(Jan. 8, 2008). Elam now appeals the district court’s1 denial of his petition for a
federal writ of habeas corpus, arguing that the state courts erred in finding him
competent to stand trial, and in concluding that trial counsel’s failure to call the mental
health professionals was not constitutionally defective performance. We affirm.
I. Competency
The State charged Elam with murder and arson after he confessed that he
stabbed his grandfather to death and set his grandfather’s house on fire because he
believed his grandfather was the Devil. At the trial court’s direction, Elam was
committed to Fulton State Hospital (FSH) for a preliminary psychiatric evaluation.
See Mo. Rev. Stat. § 552.020(2). In March 1998, state psychiatrist John
Zimmerscheid diagnosed Elam as having “schizoaffective disorder, bipolar type,”
based on his bizarre delusions and at least one manic episode. Dr. Zimmerscheid
opined that Elam was not competent to stand trial because he was unable to
understand the legal proceedings against him or assist in his own defense. His report
stated: “there is a substantial probability [Elam] will be mentally fit to proceed in the
reasonably foreseeable future, provid[ed] a course of treatment is undertaken
including pharmacological therapy for his thought disorder.” The court committed
Elam to the Missouri Department of Mental Health. See Mo. Rev. Stat. § 552.020(5),
(9). He was readmitted to FSH and placed on a daily regimen of an anti-psychotic
medication, Olanzapine.
In April 1999, FSH Psychologist Hossein Mojdehi submitted a lengthy report
that FSH Forensic Examiner Michael Stacey reviewed and supervised. Dr. Mojdehi
described his three interviews with Elam, six months of treatment with Olanzapine,
1
The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.
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and the progress FSH staff had observed. Although Elam continued to voice thoughts
regarding the homicide that “reflect delusional ideations,” Dr. Mojdehi reported that
Elam understood the charges against him and the penalties if convicted. The report
further stated that Elam believed he acted in self-defense and that the police had
tricked him into signing a confession, but he would “accept it” if his attorney
recommended a plea of not guilty by reason of insanity. Dr. Mojdehi opined that
Elam “presently possesses the capacity to understand the proceedings against him and
to assist in his own defense” and recommended that the court return Elam to the
Macon County jail for trial, where he “should remain on his current medication
regime.” The State then filed an unopposed motion to proceed. The trial court sent
Elam from FSH to the Macon County jail and later to the Livingston County jail to
await trial. See Mo. Rev. Stat. § 552.020(10).
In August 2000, Elam filed motions to suppress his incriminating statements
and to enter a plea of not guilty by reason of insanity. One month later, on the eve of
trial, he filed a motion to stay proceedings, informing the court that he “ha[d] not
followed the regimen of medication which resulted in a finding of fitness to proceed,”
and that Dr. Rosalynn Inniss, an expert who would support the insanity defense, “has
advised that her preliminary findings indicate that Mr. Elam . . . lacks the capacity to
understand the proceedings against him and to assist in his own defense.” On
September 19, the trial court held a hearing on the motion to suppress but deferred
taking up the motion to stay proceedings because Dr. Inniss was unavailable. At that
hearing, Dr. Zimmerschied testified that, at the time Elam confessed, he was suffering
from schizoaffective disorder, bipolar type. As a result of delusions concerning his
grandfather, Dr. Zimmerschied opined that Elam “probably was confused on the
nature and quality of his actions” but understood they were wrongful. The court
denied the motion to suppress, finding that the confessions were voluntary. It allowed
an insanity plea, which Elam entered on September 21.
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The court held an evidentiary competency hearing on September 26, 2000. In
support of his motion to stay proceedings (the trial), Elam called Dr. Inniss, who
testified that she had conducted five interviews with Elam and had reviewed his
police, medical, and legal records. Dr. Inniss confirmed Elam’s diagnosis of
schizoaffective disorder, bipolar type, and then opined that he was “limited in the
ability to fully understand the proceedings . . . [and] would be most challenged in the
area of being able to give reasonable assistance to counsel in the process of his own
defense.” She attributed Elam’s decline to his failure to take Olanzapine for over a
year. Over the course of her five interviews, she had observed his “delusions broaden
and become more intrusive” to the point where “[h]is total defense is delusion based.”
In response, the State placed in evidence Dr. Zimmerscheid’s March 1998
report, Dr. Mojdehi’s April 1999 report, and six letters Elam had written from jail
during the pretrial proceedings. In addition, Sergeant Michael Platte testified that he
remained in the courtroom after testifying at the suppression hearing and saw Elam
turn and smile when Dr. Zimmerschied testified about competency and then turn and
glare when the court denied the motion to suppress. Elam, 89 S.W.3d at 522-23. The
trial court denied the motion to stay proceedings, explaining:
The defendant is presumed to have the mental capacity and fitness to
proceed. The defendant has not proven by a preponderance of the
evidence that he does not have the mental fitness to proceed. The
exhibits admitted as well as the testimony together with the Court’s
observations of the defendant and the record in this cause belies any
allegation that the defendant is unable to assist in his defense. He has
been articulate and aware of his circumstances and has so far become
involved beyond the usual in the defense of [h]is case. The Court finds
there is nothing in the record, in the statements of the defendant, in his
correspondence to the Court that would indicate any mental disease or
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defect or inability to proceed. The Court, therefore, overrules the
defendant’s motion to stay proceedings under Section 552.020(1).
Elam’s trial took place from October 2 through October 4, 2000. The record contains
no further motion, objection, or colloquy regarding his competency and no reference
to irrational or disruptive behavior during the trial.
On direct appeal, the Missouri Court of Appeals rejected Elam’s contention that
the trial court erred in finding him competent. Elam bore the burden of proving
incompetence, the court explained, and substantial record evidence supported the trial
court’s factual finding -- the opinion of Drs. Mojdehi and Stacey “that Elam suffered
from a schizoaffective disorder, bipolar type, but was nonetheless able to understand,
appreciate the significance of, and participate in the criminal legal proceedings,” an
opinion that was not “conditioned upon medicational requirements”; the trial court’s
ability to view Elam in the courtroom during the September 2000 hearings and review
his conduct as reflected in other court records; Elam’s pretrial involvement “beyond
the usual” in his defense, including correspondence with the court; and Sergeant
Platte’s testimony. Elam, 89 S.W.2d at 522-23.
On appeal, Elam argues, as he did to the district court, that the state court
competency finding was contrary to the federal constitutional principle “that the
criminal trial of an incompetent defendant violates due process.” Medina v.
California, 505 U.S. 437, 453 (1992). A federal court may grant habeas relief only
if a state court’s decision was “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United
States or . . . was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” King v. Kemna, 266 F.3d 816, 821
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(8th Cir. 2001) (quotations omitted), cert. denied, 535 U.S. 934 (2002); see 28 U.S.C.
§ 2254(d)(1)-(2).
Like the district court, we conclude that Elam cannot satisfy this rigorous
standard. Both the trial court and the Missouri Court of Appeals applied the Supreme
Court’s clearly established competency standard: “A defendant may not be put to trial
unless he has sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding and a rational as well as factual understanding of the
proceedings against him.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (quotation
omitted). Applying Missouri law, the state courts presumed Elam was competent and
imposed on him the burden to prove incompetence by a preponderance of the
evidence, standards expressly upheld in Cooper, 517 U.S. at 355. Elam argues the
Missouri Court of Appeals violated the rule that a defendant may not be required to
prove incompetence by clear and convincing evidence, Cooper, 517 U.S. at 369,
because the Court noted that it must uphold the trial court’s finding “unless there is
no substantial evidence to support it.” Elam, 89 S.W.3d at 521. But this contention
confuses proof of incompetency with appellate review standards. Competency is a
question of fact, and the Court of Appeals was simply reciting the familiar clear error
standard of appellate review under Missouri law.
Elam primarily argues that the state court decision was based on an
unreasonable fact determination under 28 U.S.C. § 2254(d)(2) because four mental
health experts -- Drs. Zimmerscheid, Mojdehi, Stacey, and Inniss -- unanimously
agreed that Elam’s competency hinged upon continuing daily doses of antipsychotic
medication. That is certainly true as to Dr. Inniss, who testified at the competency
hearing that Elam was so delusional that he could not assist in his defense because he
had not been taking Olanzapine for “over a year.” Dr. Inniss’s testimony was
supported by the competency report of Drs. Mojdehi and Stacey, which opined that
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Elam was competent but recommended that he “remain on his current medication
regimen,” and by Dr. Zimmerscheid’s earlier report, which predicted that Elam’s
competency would be restored by medication. However, as the Missouri Court of
Appeals noted, the report of Drs. Mojedi and Stacey did not opine that Elam would
only remain competent if he continued taking Olanzapine, and Dr. Zimmerschied’s
report did not address that question at all. Thus, the central premise of Elam’s
argument -- there was “unanimous expert opinion that [Elam] was incompetent
without his medication” -- seriously overstates the record at the competency hearing.
Like other fact determinations, a state court finding that the defendant was
competent to stand trial is “presumed to be correct” in a federal habeas proceeding.
28 U.S.C. § 2254(e)(1); see Lyons v. Luebbers, 403 F.3d 585, 593 (8th Cir. 2005).2
We agree with the district court that the state court competency finding was not an
unreasonable determination of fact in light of the evidence presented at the
competency hearing. After the long pretrial delay, counsel’s motion to stay
proceedings certainly warranted renewed inquiry into whether Elam would be
competent at the impending trial. At that hearing, Dr. Inniss testified, without
contradiction, that Elam had become more delusional because of an unexplained
fourteen-month failure to continue medication. But the trial court was not
constitutionally required to give Dr. Inniss’s opinion about how these delusions would
affect Elam’s ability to assist at trial more weight than the other evidence -- the
competency report of Drs. Mojdehi and Stacey, the court’s own observations of Elam
in court, Sergeant Platte’s testimony describing Elam’s behavior at the suppression
2
The Supreme Court recently granted certiorari but ultimately did not resolve
a conflict among the circuits regarding “whether, in order to satisfy § 2254(2)(d), a
petitioner must establish only that the state-court factual determination on which the
decision was based was ‘unreasonable,’ or whether § 2254(e)(1) additionally requires
a petitioner to rebut a presumption that the determination was correct with clear and
convincing evidence.” Wood v. Allen, 130 S. Ct. 841, 848-49 (2010). In this case,
Elam failed to satisfy either standard.
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hearing, and the court’s knowledge of his extensive pretrial participation in the
defense. Dr. Inniss’s ultimate opinion as to Elam’s legal competency was highly
relevant, but not dispositive.
In our view, the timing and limited nature of the trial court’s ruling are also
highly relevant. On the eve of a long-delayed criminal trial, the court was properly
concerned about further delay. Moreover, the court knew it would have a continuing
opportunity -- indeed, a duty -- to suspend the trial and conduct further competency
proceedings, either at counsel’s request or sua sponte, if Elam’s behavior or demeanor
combined with the prior medical evidence suggested “a change that would render the
accused unable to meet the standards of competence to stand trial.” Drope v.
Missouri, 420 U.S. 162, 181 (1975); see Reynolds v. Norris, 86 F.3d 796, 800-01 (8th
Cir. 1996). The court ruled only that, based on the September 26 hearing record, Elam
had not met his burden to prove incompetency. Nothing precluded counsel or the
court from revisiting the issue. Significantly, Elam has never argued that any
circumstance following the denial of the motion to stay proceedings should have
triggered further inquiry, and our own review of the record reveals nothing suggesting
that Elam’s behavior or demeanor at trial cast doubt on his competency, or that
counsel again raised the issue, for example, when Dr. Inniss testified at trial in support
of Elam’s insanity defense.
II. Ineffective Assistance of Counsel
Alternatively, Elam argues that he was denied his constitutional right to the
effective assistance of counsel because trial counsel failed to call Drs. Zimmerschied
and Mojdehi to testify at the September 26, 2000 hearing to support Dr. Inniss’s
opinion that Elam’s fourteen-month failure to take daily Olanzapine medication had
caused him to become incompetent to stand trial. In denying Elam post-conviction
relief on this claim, the state courts correctly applied the well-established federal
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standard: to prevail on a claim of ineffective assistance of counsel, a petitioner must
show that “counsel’s performance was deficient and that [he] was prejudiced by the
deficient performance.” King, 266 F.3d at 822, citing Strickland v. Washington, 466
U.S. 668, 687 (1984).
Based upon Dr. Zimmerschied’s deposition testimony the day before the
September 26 hearing, and Dr. Mojdehi’s March 2006 deposition testimony in
connection with Elam’s motion for post-conviction relief, the state courts assumed,
as do we, that both doctors would have testified at the competency hearing, consistent
with their earlier reports, that it was important if not essential that Elam continue to
take Olanzapine. At the post-conviction hearing, Elam’s trial attorney explained why
he did not call Drs. Zimmerschied and Mojdehi at the pretrial competency hearing:
Q. Did you have any particular reason why you did not call and
utilize Dr. Zimmerschied in support of your motion to stay hearing
proceedings under 522?
A. As I recall, Dr. Zimmerschied hadn’t seen Mr. Elam for some
time, and Dr. Inniss had spent some time with Mr. Elam at the
Livingston County jail recently.
* * * * *
Q. . . . [S]itting here today, do you have any recollection as to
whether you had a reason for not calling Dr. Mojdehi to testify at the
motion to stay hearing proceedings under 552?
A. . . . I didn’t think I needed him. I had Dr. Inniss.
* * * * *
Q. Did you feel that it was necessary to have any [] doctors in
addition to Dr. Inniss testifying [] at the . . . hearing to stay proceedings?
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A. I did not believe so because [Dr. Inniss] would be the sole,
uncontroverted witness at that hearing.
The state trial court denied Elam’s claim, concluding that he failed to prove that
trial counsel’s performance was deficient. The decision not to call these experts was
reasonable trial strategy, the court explained, because they had not seen Elam recently
and their testimony about Elam’s need for continuing medication would be cumulative
to Dr. Inniss. The Missouri Court of Appeals upheld this analysis, agreeing that, in
attempting to prove Elam currently incompetent, “it seems reasonable that [trial
counsel] would select the psychiatrist who had examined Elam most recently.” In
response to Elam’s contention that the failure to call Dr. Mojdehi resulted in the state
trial court misinterpreting his April 1999 report [a fact assertion we rejected in Part
I of this opinion], the Court of Appeals held that Elam failed to prove a need to clarify
the reports of either Dr. Zimmerschied or Dr. Mojdehi.
In a thorough opinion, the district court concluded that the state courts had not
unreasonably applied the law or determined the facts in denying Elam’s claim. The
court agreed with the state courts that the testimony of Drs. Zimmerschied and
Mojdehi would have been cumulative to that of Dr. Inniss and correctly observed that
“failure to present cumulative evidence does not constitute ineffective assistance of
counsel.” See Winfield v. Roper, 460 F.3d 1026, 1033 (8th Cir. 2006); Bucklew v.
Luebbers, 436 F.3d 1010, 1019-20 (8th Cir. 2006). Alternatively, the district court
concluded that Elam failed to prove the requisite prejudice because, even if testimony
by these doctors would have made Dr. Inniss’s testimony more persuasive, the other
evidence on which the trial court relied in denying a stay of proceedings “provided
sufficient evidence that [Elam] was competent to stand trial.”
On appeal, Elam argues that the state courts unreasonably applied Strickland
in denying his ineffective assistance claim, focusing primarily on one aspect of the
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Missouri Court of Appeals competency analysis: “trial counsel’s failure to call Dr.
Zimmerschied and Dr. Mojdehi to clarify the substance of their prior reports allowed
the Missouri Court of Appeals to affirm the competence finding of the trial court,”
Elam asserts, “because it was not sufficiently clear to the Court of Appeals that the
FSH doctors believed that daily medication was essential for appellant to remain
competent.” Therefore, Elam argues, he satisfied Strickland’s deficient performance
standard because counsel’s failure to call these witnesses fell “outside the wide range
of professionally competent assistance.” 466 U.S. at 690.
As we noted in Part I of this opinion, this argument is based upon a flawed view
of the trial court’s competency ruling and the decision upholding that ruling on direct
appeal. Dr. Zimmerschied’s report plainly stated that Elam was then incompetent but
might be restored to competency by treatment that included antipsychotic medication.
Dr. Mojdehi’s report plainly stated that competency had been restored but cautioned
that Elam should “remain on his current medication regime.” The issue facing the
trial court many months later was whether Elam’s failure to remain on that regime
rendered him incompetent to stand trial as scheduled. Dr. Inniss testified that, due to
the lack of medication, she observed Elam becoming progressively more delusional
to the point where she believed he was not currently competent to aid in his defense.
Drs. Zimmerschied and Mojdehi obviously would have reaffirmed their prior opinions
that continuing medication was important to treat Elam’s mental disorders. But they
had not examined Elam recently and therefore could not opine on the critical issue
before the court, whether Elam was presently competent.3 Thus, as the state courts
and the district court perceived, these witnesses if called could only have provided
3
At his September 25, 2000 deposition, Dr. Zimmerschied testified that he had
no first-hand knowledge of whether Elam was still taking his medication and could
not assess whether Elam needed to be institutionalized without examining him.
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cumulative opinion testimony on an important but non-dispositive issue: Elam’s
medical need for continuing antipsychotic medication.
As the state courts concluded, Elam’s trial counsel reasonably decided that Dr.
Inniss was best positioned to testify about Elam’s current mental condition at the
competency hearing. As that was the relevant inquiry, the state courts did not
unreasonably apply Strickland in concluding that counsel’s decision not to call Drs.
Zimmerschied and Mojdehi to provide cumulative testimony on the relevance of
continuing medication was not constitutionally deficient performance. Even when the
initial evaluation by a mental health expert has failed to support a competency or
insanity defense, we have repeatedly rejected ineffective assistance claims based upon
counsel’s failure to obtain and present testimony by additional mental health experts.
See King, 266 F.3d at 824; Sidebottom v. Delo, 46 F.3d 744, 753-54 (8th Cir. 1995);
O’Neal v. Delo, 44 F.3d 655, 660 (8th Cir. 1995). Thus, it cannot be deficient
performance to fail to present cumulative, no-more-favorable expert testimony.
Because we uphold the state courts’ resolution of the deficient performance
issue, we need not address the district court’s alternative prejudice ruling. See
generally James v. Iowa, 100 F.3d 586, 589-90 (8th Cir. 1996).
The judgment of the district court is affirmed.
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