SUPREME COURT OF MISSOURI en banc STATE EX REL. ERNEST JOHNSON, ) Opinion issued August 31, 2021 ) Petitioner, ) ) v. ) No. SC99176 ) PAUL BLAIR, WARDEN OF POTOSI ) CORRECTIONAL CENTER, ) ) Respondent. )
ORIGINAL PROCEEDING IN HABEAS CORPUS
PER CURIAM
Facts and Procedural History
In February 1994, Ernest Lee Johnson bought a bottle of beer and a package of
cigarettes at a Columbia convenience store he frequented. 1 Johnson made a second trip
to the convenience store but did not purchase anything. On one of these trips, Johnson
questioned the cashier about who would be working the next shift. The cashier
responded Mabel Scruggs would relieve her at 5:00 p.m. and the store closed at
1 Many of the facts for this section are taken from State v. Johnson, 968 S.W.2d 686 (Mo. banc 1994) (Johnson I); State v. Johnson, 22 S.W.3d 183 (Mo. banc 2000) (Johnson II); Johnson v. State, 102 S.W.3d 535 (Mo. banc 2003) (Johnson III); State v. Johnson, 244 S.W.3d 144 (Mo. banc 2008) (Johnson IV); and Johnson v. State, 333 S.W.3d 459 (Mo. banc 2011) (Johnson V). 11:00 p.m. Johnson left but returned a short time later, staying only a few minutes before
leaving again. The cashier noticed Johnson staring at her while she deposited the money
from her shift into the store safe. Johnson again did not purchase anything on this trip.
Johnson went to his then-girlfriend’s house and purchased a $20 rock of crack
cocaine from his girlfriend’s son, Rodriguez Grant. Johnson left but returned to buy two
more rocks and ask Rodriguez to lend him the .25 caliber pistol Johnson gave him a few
weeks prior in exchange for crack cocaine. Rodriguez agreed, and the two test-fired the
pistol in the back yard. Johnson returned the gun a while later, claiming it did not work
but then retrieved the pistol and left again, wearing layers of clothing, a mask over his
face, and black tennis shoes. For around a month, Johnson confided to Rodriguez his
plans to hold up the convenience store, locking all but one employee in the back room
and having the remaining employee open the safe.
The next time Johnson returned to the house, his face and clothes were spattered
with blood. Johnson came in through the back door and went downstairs to Rodriguez’s
room and gave him back the pistol. Johnson then cleaned his tennis shoes, took off his
clothes, put the clothes into a trash bag, and told his girlfriend’s other son, Antwane
Grant, to get rid of the bag. Johnson had a large amount of money sorted by
denomination, and he and Rodriguez counted it. Johnson then hid the money in an air
vent. Rodriguez went back upstairs and soon smelled something burning. When
Rodriguez returned downstairs, he found Johnson burning paper.
At 1:12 a.m., a deputy sheriff responded to a call to check on the convenience
store for the possibility of a disturbance involving weapons. The store lights were still
2 on. Through the windows, the officer saw the cash register was opened and the money
vault was out and in the middle of the floor. He observed blood smears on the front door
lock. City police officers arrived with keys. Upon entering, they discovered two dead
bodies and a .25 caliber shell casing in the bathroom. Another body and another .25
caliber shell casing were found inside the walk-in cooler. The safe was empty.
All three victims were store employees: Mary Bratcher, age 46; Fred Jones, age
58; and Mabel Scruggs, age 57. Each victim died from head injuries consistent with a
bloody hammer found at the scene. In addition, Mary Bratcher suffered at least ten stab
wounds to her left hand consistent with a bloody flat-head screwdriver found in a field
near the store, and Fred Jones suffered a nonfatal, facial gunshot wound. Officers also
found a bloody Phillips screwdriver, a pair of gloves, a pair of jeans, and a brown jacket
in the field next to the store.
Hair on the gloves was consistent with Mabel Scruggs. Blood on the gloves was
consistent with Mabel Scruggs or Fred Jones. Hair on the jacket was consistent with Fred
Jones. Blood on the jacket was consistent with a mixture of the blood of all three
victims.
On the morning the bodies were discovered, Johnson went to a shopping mall and
made over $200 in cash purchases. After he returned to his girlfriend’s house, police
officers arrived asking for any information about the murders. Johnson initially refused
to speak with the officers but eventually agreed to accompany them to the police station.
The interviewing officer did not believe Johnson’s alibi and read him his Miranda rights.
Johnson then gave conflicting versions of his alibi and became depressed whenever the
3 convenience store was mentioned. He stated he did not care if the officers shot him. At
one point Johnson said, “It took more than one man to do that job.”
The police obtained a search warrant for Johnson’s girlfriend’s house and found a
bag containing $443; coin wrappers; partially burned checks, coupons, and a cash register
receipt—all bearing the convenience store’s name; a live .25 caliber round; and a black
pair of tennis shoes with the same company logo as the bloody shoeprints found inside
the store.
Officers arrested Johnson. Upon seeing Rodriguez Grant in a holding cell,
Johnson stated, “That boy didn’t have anything to do with this. None of those boys did.”
When asked how he knew this information, Johnson responded, “I knew they weren’t
there.”
Antwane Grant led police to the park where he hid, at Johnson’s direction, a
.25 caliber semi-automatic pistol, 17 live rounds of .25 caliber ammunition, a sweat shirt,
a pair of sweat pants, a hooded jacket, two stocking caps, and two pairs of socks.
Antwane identified the clothes—and the black tennis shoes found at the house—as those
Johnson wore the evening of the murders.
Blood on the sweat shirt was consistent with Fred Jones. Blood on the hooded
jacket was consistent with Fred Jones or Mabel Scruggs. Hair on one of the stocking
caps was consistent with Fred Jones’ and Johnson’s hair.
A Boone County jury found Johnson guilty of three counts of first-degree murder
and sentenced him to three death sentences. Johnson sought post-conviction relief. This
Court affirmed the guilt-phase but set aside his three death sentences. Johnson I,
4 968 S.W.2d at 702. Following a second penalty-phase proceeding, the new jury returned
three death sentences. This Court affirmed the death sentences on direct appeal in
Johnson II, 22 S.W.3d at 194. This Court later set aside those death sentences during
Johnson’s second post-conviction appeal, remanding the case for a third penalty-phase
proceeding because of incomplete evidence of his mental capacity—specifically, his
alleged intellectual disability. See Johnson III, 102 S.W.3d at 541. Following the third
penalty-phase proceeding, the jury found Johnson is not intellectually disabled and again
imposed three death sentences. This Court affirmed the death sentences on direct appeal.
See Johnson IV, 244 S.W.3d at 165.
Johnson filed a Rule 29.15 pro se motion for post-conviction relief, and appointed
counsel filed an amended motion. Johnson V, 333 S.W.3d at 462. The motion court held
an evidentiary hearing and received testimony from three mental-health professionals,
from Johnson’s third penalty-phase attorneys, and from several other witnesses relating to
guilt-phase testimony. Id. The motion court entered findings and a judgment overruling
Johnson’s motion. Id. This Court affirmed the denial of Johnson’s final
post-conviction relief motion. Id. Johnson then filed for habeas relief in the United
States District Court for the Western District of Missouri. The district court denied
Johnson’s eight claims and denied a certificate of appealability. A panel of the United
States Court of Appeals for the Eighth Circuit also unanimously denied a certificate of
appealability and rehearing.
The Supreme Court denied a petition for writ of certiorari on October 6, 2014.
This Court then issued a warrant of execution and set Johnson's execution date for
5 November 3, 2015. Johnson filed his first petition for writ of habeas corpus in this Court,
which this Court denied. Johnson then filed an as-applied challenge to Missouri’s
method of execution in federal court. The district court dismissed Johnson’s complaint,
and Johnson moved for a stay of execution. Johnson appealed, but the Eighth Circuit
overruled the motion for stay. Johnson v. Lombardi, 809 F.3d 388 (8th Cir. 2015). The
Supreme Court then granted Johnson’s request for a stay of execution. Ultimately,
Johnson amended his petition twice in the federal district court, but both times the district
court found Johnson’s petition failed to state a claim under FRCP 12(b)(6). See Johnson
v. Lombardi, 2:15-CV-4237-DGK (W.D. Mo. May 1, 2017). After the district court
dismissed Johnson’s second amended petition, Johnson appealed, and the Eighth Circuit
concluded Johnson sufficiently stated a claim. The State petitioned the Supreme Court
for a writ of certiorari, which was granted. The Supreme Court subsequently vacated the
Eighth Circuit’s judgment and remanded the case to the Eighth Circuit for further
consideration in light of Bucklew v. Precythe, 139 S. Ct. 1112 (2019). On remand, the
Eighth Circuit determined Johnson had not stated a claim upon which relief could be
granted and rejected his request for leave to file a third amended complaint in order to
propose a firing squad as a new alternate method of execution. Johnson then petitioned
the Supreme Court for writ of certiorari. On May 24, 2021, the Supreme Court denied
certiorari. Johnson v. Precythe, 141 S. Ct. 1622 (2021) (Sotomayor, J., dissenting). The
State then filed a notice of ruling and supplement to the State’s second motion to set
execution date, renewing its request for this Court to set an execution date.
6 This Court issued its order setting Ernest Johnson’s execution date for October 5,
2021. Johnson filed this petition for writ of habeas corpus, alleging (1) he is actually
innocent of the death penalty because he is intellectually disabled; 2 (2) the jury
instructions on intellectual disability violated Johnson’s constitutional rights; and (3) his
execution by lethal injection would be cruel and unusual. This Court finds and concludes
Johnson is not intellectually disabled. Further, this Court concludes Johnson is not
entitled to relief on his remaining claims. 3
Standard of Review
A petition for a writ of habeas corpus is the appropriate avenue to raise claims of
intellectual disability. See State ex rel. Strong v. Griffith, 462 S.W.3d 732, 739 (Mo.
banc 2015). A habeas petitioner bears the burden of proof to show he is entitled to
habeas corpus relief. State ex rel. Lyons v. Lombardi, 303 S.W.3d 523, 526 (Mo. banc
2010). “[H]abeas review does not provide duplicative and unending challenges to the
finality of a judgment, so it is not appropriate to review claims already raised on direct
appeal or during post-conviction proceedings.” Strong, 462 S.W.3d at 733-34 (internal
quotations omitted).
2 As further explained below, although Johnson frames his claim as one of actual innocence, it rests on the notion he is “actually innocent” of the death penalty because he is intellectually disabled and so his execution would violate the Eighth Amendment—this is, in essence, an Atkins claim. In Atkins, the Supreme Court held those who are determined to be mentally retarded, now more appropriately referred to as intellectually disabled, are categorically ineligible for a death sentence. Atkins v. Virginia, 536 U.S. 304, 321 (2002). 3 This Court may deny issuance of a writ of habeas corpus without issuing an accompanying opinion. See Rule 84.24. An opinion is issued in this case, however, because an execution date is pending and to demonstrate the careful review and consideration of the merits of Johnson’s intellectual disability claim.
7 However, “[t]here is no absolute procedural bar to . . . seeking habeas relief.
Successive habeas corpus petitions are, as such, not barred. But the opportunities for
such relief are extremely limited. A strong presumption exists . . . against claims that
already have once been litigated.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 217
(Mo. banc 2001).
Analysis
I. Johnson Is Not Intellectually Disabled
Executing intellectually disabled offenders violates the Eighth Amendment’s
prohibition of cruel and unusual punishment. See Atkins, 536 U.S. at 321. The Supreme
Court leaves to the states “the task of developing appropriate ways to enforce the
constitutional restriction upon [the state’s] execution of sentences.” Id. at 317. “The
legal determination of intellectual disability is distinct from a medical diagnosis, but it is
informed by the medical community’s diagnostic framework.” Hall v. Florida, 572 U.S.
701, 721 (2014).
The Supreme Court has indicated the Diagnostic and Statistical Manual of Mental
Disorders 5th edition (DSM-5) embodies “current medical diagnostic standards” for
determining intellectual disability. Moore v. Texas, 137 S. Ct. 1039, 1045 (2017) (Moore
I). The DSM- 5 refines the long-used three-pronged approach to intellectual disability.
DSM-5 at 37. The three criteria are: (A) deficits in intellectual functions; (B) deficits in
adaptive functioning in comparison to an individual’s age, gender, and socioculturally
matched peers; and (C) onset during the developmental period. Id. This Court likewise
8 recognizes the DSM-5 as the proper framework with which to analyze intellectual
disability.
Congruent with the DSM-5 and prevailing medical standards, § 565.030.6 4 defines
“intellectual disability” as:
[A] condition involving substantial limitations in general functioning characterized by significantly subaverage intellectual functioning with continual extensive related deficits and limitations in two or more adaptive behaviors such as communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure and work, which conditions are manifested and documented before eighteen years of age.
This Court already considered Johnson’s intellectual disability claim in his 2015 petition
for habeas corpus and denied relief. Johnson now requests this Court consider his claim
again in light of Moore I and Moore v. Texas, 139 S. Ct. 666 (2019) (Moore II). These
cases do not provide cause for a different outcome as demonstrated by the analysis set out
below.
Because Johnson’s “petition for writ of habeas corpus is an original proceeding in this
Court, pursuant to Rules 84.22 and 91.01, this Court is the factfinder.” 5 State ex rel. Cole
v. Griffith, 460 S.W.3d 349, 358 (Mo. banc 2015). As such, this Court considers
Johnson’s argument and evidence.
A. Intellectual Functioning
Intellectual functioning is typically measured with individually administered and
psychometrically valid tests of intelligence. DSM-5 at 37.
4 All statutory references are to RSMo 2016, unless noted otherwise. 5 While this Court may appoint a special master pursuant to Rule 8.03, the circumstances of this case do not require the appointment of a special master.
9 Individuals with intellectual disability have scores of approximately two standard deviations or more below the population mean, including a margin for measurement error (generally +/- 5 points). On tests with a standard deviation of 15 and a mean of 100, this involves a score of 65-75 (70 +/- 5). Clinical training and judgment are required to interpret test results and assess intellectual performance.
Id. While an IQ score of 65 to 75 may indicate intellectual disability, there is no strict IQ
score cutoff. See Hall, 572 U.S. at 712. Instead, “an individual with an IQ test score
‘between 70 and 75 or lower,’ may show intellectual disability by presenting additional
evidence regarding difficulties in adaptive functioning.” Id. at 722. (internal citation
omitted) (quoting Atkins, 536 U.S. at 309 n.5). Additionally, practice effects and the
“Flynn effect” may affect test scores. 6
“IQ test scores are approximations of conceptual functioning but may be
insufficient to assess reasoning in real-life situations and mastery of practical tasks.”
DSM-5 at 37. For this reason, the DSM-5 emphasizes evaluation of a person’s broader
intellectual functions in determining intelligence, i.e., reasoning, problem solving,
planning, abstract thinking, judgment, academic learning, and learning from experience.
Id. In adults, this presents as impairments in abstract thinking, executive function (i.e.,
planning, strategizing, priority setting, and cognitive flexibility), and short-term memory,
as well as functional use of academic skills (e.g., reading, money management). Id.
6 DSM-5 at 37. The “Flynn effect” results in overly high scores due to out-of-date test norms.
10 Johnson has taken several IQ tests in his life, obtaining the following scores prior
to the murders: 77 in 1968; 7 63 in 1972; 95 in 1979; 8 78 in 1994; and 84 in 1995. Since
the murders, Johnson obtained scores of: 67 in 2003; 67 in 2004; 70 in 2008; 71 in 2009;
and 70 in 2019. Multiple of Johnson’s scores place him above the range of intellectual
disability. This fact alone, however, does not invalidate or dismiss his lower scores.
Before the murders, Johnson obtained only one score (out of four valid scores) that would
indicate significant subaverage intelligence. Dr. Heisler, an expert for the State, believed
Johnson was malingering during his 2004 IQ test, and the fact that Johnson’s scores
decline markedly after the murders supports that conclusion.
Regardless of whether Johnson has been malingering during his recent IQ tests,
his test scores are not dispositive because they, as adjusted for margin of error and the
Flynn effect, are within the range that could be indicative of intellectual disability. The
additional, broader intelligence factors set forth in the DSM-5, however, illustrate
Johnson does not possess such substantial deficits in intellectual functioning to prove
intellectual disability. Most glaring is Johnson’s ability to plan, exemplified by the
details of his murders. During an interview with Dr. Heisler 10 years after the murders,
Johnson was able to recall specific, strategic decisions he made and the reasons for them.
For example, Johnson planned for at least a month to rob the convenience store; decided
7 In his petition for habeas corpus, Johnson states he scored 72 in 1968. This Court has already considered this discrepancy and stated Johnson obtained a score of 77. See Johnson IV, 244 S.W.3d at 152. 8 The department of corrections administered this test while Johnson was incarcerated. Its results are likely not valid because it was given in a group setting. See DSM-5 at 37. Accordingly, this Court does not consider this test result and only lists it for completeness.
11 to rob the Casey’s because he needed more money to purchase cocaine; visited the store
several times the day of the murders to gain information regarding who would be on
duty; wore two layers of clothing so he could remove the top layer after the robbery
because he knew witnesses may give a description of his clothing; wore a mask to
conceal his identity; and, subsequent to the murders, instructed his then-girlfriend’s son
to hide evidence, including a pistol, ammunition, and the clothes Johnson wore the
evening of the murders, which contained physical evidence. Johnson I, 968 S.W.2d at
689.
These facts illustrate Johnson’s ability to plan, strategize, and problem solve—
contrary to a finding of substantial subaverage intelligence. Dr. Keyes, one of Johnson’s
experts, even admitted Johnson took logical, precise, intelligent steps to prepare, execute,
and avoid apprehension for the murders, and these behaviors indicated Johnson was very
goal-oriented in carrying out his plan. Johnson IV, 244 S.W.3d at 154. As the Supreme
Court recognized in Atkins, “There is no evidence that [persons with intellectual
disability] are more likely to engage in criminal conduct than others, but there is
abundant evidence that they often act on impulse rather than pursuant to a premeditated
plan, and that in group settings they are followers rather than leaders.” 536 U.S. at 318.
In sum, Johnson’s IQ scores are not dispositive of intellectual disability, but his
ability to plan, reason, strategize, and set goals prove Johnson does not possess
significantly subaverage intelligence as would indicate intellectual disability. Even so,
this Court will also assess Johnson’s adaptive functioning.
12 B. Adaptive Functioning
“Deficits in adaptive functioning” refers to “how well a person meets community
standards of personal independence and social responsibility, in comparison to others of
similar age and sociocultural background.” DSM-5 at 37. Various adaptive behaviors,
such as communication, functional academics, and self-direction, fall into three domains
of adaptive functioning: conceptual, social, or practical. Id. This criterion is met when
“at least one domain of adaptive functioning—conceptual, social, or practical—is
sufficiently impaired that ongoing support is needed in order for the person to perform
adequately in one or more life settings at school, at work, at home, or in the community.”
Id. Importantly, and critical to Johnson’s claim, “[t]o meet diagnostic criteria for
intellectual disability, the deficits in adaptive functioning must be directly related to the
[person’s] intellectual impairments[.]” Id. In essence, adaptive deficits must be caused
by impaired intellectual functioning. 9
Johnson asserts he possesses continual, extensive deficits in four adaptive
behaviors: functional academics, home living, communication, and self-direction.
Dr. Martell’s report asserts these alleged deficits render Johnson severely impaired in all
9 Actual deficits in adaptive functions are not per se evidence of intellectual disability. See DSM-5 at 37. There are many aspects of Johnson’s life that could, absent intellectual disability, account for any alleged deficit in adaptive behaviors; namely his addiction to cocaine, inconsistent upbringing, poor education, and abusive childhood to name a few. This Court is sensitive to the fact that these possible alternative explanations are sometimes in and of themselves effects of intellectual disability, and it is not Johnson’s burden to prove any deficit is not caused by some other factor. See Moore I, 137 S. Ct. at 1051; see also DSM-5 at 37. Johnson must, however, provide enough evidence to prove the alleged deficits are related to his alleged deficits in intellectual functioning. See DSM-5 at 38. On the whole, Johnson fails to do this.
13 the three diagnostic domains. In analyzing Johnson’s evidence, this Court is cognizant of
the Supreme Court’s instruction in both Moore I and Moore II to not over-emphasize or
over-rely upon adaptive strengths as opposed to adaptive deficits. Johnson’s arguments
regarding his alleged deficits in adaptive behaviors are largely not credible, and suffer
from a lack of causal connection to his alleged impaired intellectual functioning.
This Court finds Johnson’s evidence does not prove he possesses deficits in
adaptive function and, for that reason, Johnson is not sufficiently impaired in any of the
three domains of adaptive functioning outlined in the DSM-5.
i. Johnson’s Evidence
In support of his intellectual disability claim, Johnson presents several experts’
reports and seven affidavits. Six of the seven affidavits are written by attorneys involved
with Johnson’s defense and regard Johnson’s mental ability at trial and ability to
participate in his defense. The attorneys’ relationship with Johnson raises strong
concerns of bias and are otherwise not persuasive. In the remaining affidavit, a juror from
Johnson’s 2006 penalty-phase trial details his reasoning for finding Johnson not to be
intellectually disabled. Johnson attacks this juror’s reasoning, but nothing in the affidavit
is germane to the determination of whether Johnson is intellectually disabled.
The only expert reports not previously considered by this Court in Johnson’s 2015
petition for a writ of habeas corpus are those of Dr. Martell and Dr. Adler. 10 Dr. Martell
based his report on previous reports of Johnson’s experts and recently performed
10 This Court did consider Dr. Adler’s 2008 report in Johnson’s 2015 petition for habeas corpus. Dr. Adler’s new report is substantially the same.
14 cognitive tests. This Court has already considered the reports Dr. Martell relied upon and
found them not persuasive. This Court is likewise not persuaded by Dr. Adler’s recent
testing because of Johnson’s incentive to produce results indicating intellectual disability.
Moreover, as § 565.030.6 states, “intellectual disability” is “a condition . . . manifested
and documented before eighteen years of age.” Because Johnson is now over 60 years
old, reports of Johnson’s alleged current mental ability are not given much weight.
Dr. Adler’s report is also not persuasive. Dr. Adler administered Quantitative
Electroencephalograms (“QEEG”) to Johnson in 2008 and in 2020. QEEG measures the
brain’s electrical activity. Dr. Adler determined Johnson’s QEEG is indicative of Fetal
Alcohol Spectrum Disorder (“FASD”). Importantly, though FASD may sometimes cause
intellectual disability, Dr. Adler does not make a finding as to whether Johnson is
intellectually disabled. Dr. Adler’s report is, thus, not persuasive on the question of
whether Johnson is intellectually disabled.
ii. Adaptive Behaviors
a. Functional Academics
Johnson largely relies on his poor academic performance to prove his alleged
deficit in functional academics. Namely, Johnson states he was in a developmental
reading class in the ninth grade, took special education classes, was placed on the “basic
track” in ninth grade for “slower-ability” children, received poor grades, missed school
often, has between a second and third grade reading level, and had to repeat the ninth
grade before ultimately dropping out of school.
15 As this Court noted in Johnson IV, there is no evidence the “special education”
classes for “slower-ability” children were classes meant for students with intellectual
disability—and Johnson does not assert as much. 244 S.W.3d at 155. Johnson also does
not provide any evidence of a formal evaluation or diagnosis of intellectual disability
during the developmental period. While Johnson’s records do indicate poor grades, they
do not meet the legal definition of intellectual disability.
Even if Johnson were to have proved a deficit in functional academics, he does not
attempt to connect the alleged deficit with diminished intellectual functioning. Instead,
Johnson merely asserts, “there is no evidence that would support any other conclusion
regarding this adaptive function.” But, there are multiple factors present in Johnson’s life
that could, absent intellectual disability, prevent academic achievement. Again, Johnson
is not required to prove his poor academic performance is not caused by some
independent factor, but this Court finds Johnson failed to prove a causal connection
between his poor academic performance and his alleged intellectual impairment.
b. Home Living
Johnson asserts he has lived with women who cared for him like his grandmother
and former girlfriends. Id. at 154. These women state Johnson did not have any duties
around the house and could not cook, drive, or do laundry “the right way.” Johnson has
also had significant trouble maintaining even menial employment. As previously
considered, this testimony was from Johnson’s friends and family members who knew
Johnson would not be sentenced to death if it was determined he was intellectually
16 disabled. Id. Moreover, even taken as accurate, this testimony does not demonstrate
Johnson requires ongoing support to function in daily life.
Contrary to this testimony, Johnson’s probation officer testified he was capable of
working and that he had worked before but did not hold a job very long because he was
not motivated to work. Id. Even Dr. Keyes believed Johnson was not motivated to work.
Id. Thus, this Court is not persuaded the facts demonstrate such extensive deficits—if
any deficiency at all—to indicate intellectual disability. Johnson again does not
demonstrate a causal connection between these facts and his alleged intellectual
impairment.
c. Communication
Johnson asserts his ability to communicate has been “severely compromised since
he was [a] child.” A conclusion, however, that Johnson possesses such significant
deficits in communication to prove intellectual disability is contrary to the evidence. In
support, Johnson notes he “stayed close and ‘up underneath’ his grandmother” as a child;
his grandmother called him “special”; Johnson interacted with younger children; was
placed in special education classes and was “slow” in school; and others teased him and
called him “slow,” “dummy,” “crazy,” and “stupid.”
Johnson also presents the following evidence from his experts: Johnson’s ability to
communicate orally is “fair”; his ability to read and write is “significantly impaired”;
Johnson reads at a third-grade level; Johnson’s spelling is poor and his punctuation and
grammar are very poor”; and Johnson tested at the four-and-a-half-year-old age level on
the Vineland Adaptive Behavior Scale. Notably, Johnson’s own expert, Dr. Smith
17 testified Johnson has a very concrete understanding of verbal communication, but has
difficulty with written communication. Johnson has failed to demonstrate he requires
ongoing support in order to communicate with others in daily life.
In addition, there is reliable, contradictory evidence from several witnesses that
Johnson is able to communicate effectively with others: Johnson wrote back and forth
with his ex-girlfriend frequently while in prison; was able to communicate with the
officers who interviewed him during the initial murder investigation and understood the
officer’s questions; was able to communicate with his probation officer; and had no
problem communicating or making purchases when he came into the Casey’s prior to the
murders.
The most revealing piece of evidence contradicting deficits in communication is
Dr. Heisler’s video-recorded interview with Johnson. In the video, which the State
played at trial, Johnson communicated effectively with Dr. Heisler for over an hour and
was able to relay information regarding his reasoning and strategies for the murders 10
years after the fact. 11
d. Self-Direction
The bulk of Johnson’s evidence regarding self-direction revolves around his
“inability to conform his actions to the law.” There is no doubt Johnson has, even before
the murders, not conformed his actions to the law. Criminal behavior, absent a causal
11 This Court acknowledges strengths in adaptive behaviors such as communication may increase in controlled environments like prison and notes it is not solely relying on Johnson’s behavior in prison.
18 connection to intellectual impairment, however, does not support intellectual disability.
In his petition, Johnson himself acknowledges he “has been charged and convicted of
various offenses—most of them property-related and indicative of a drug addiction.” It
is extremely telling that the only cause Johnson mentions for not conforming his actions
to the law is his drug addiction—not intellectual impairment.
Moreover, the fact that Johnson has a lengthy criminal history does not establish a
deficit in self-direction. Johnson’s expert, Dr. Keyes, noted Johnson is goal-oriented—
contrary to a finding that Johnson lacks self-direction. Additionally, the premeditated
and strategic nature of the murders, along with Johnson’s forethought in evading
apprehension indicate Johnson does not have a deficit in self-direction. Johnson’s parole
officer also testified he was able to seek out help for his ongoing substance abuse and
even asked to be placed in protective custody to avoid retaliation for a drug debt he owed
another prisoner. Id. at 155.
II. No Instructional Error
Johnson further argues (1) the sentencing court erred in instructing the jury
Johnson had the burden to prove he is intellectually disabled, and (2) the jury instructions
misled the jury into believing they must have unanimously found Johnson to be
intellectually disabled before they could individually consider intellectual disability as a
mitigating factor. This Court already considered and rejected Johnson’s first claim in
Johnson IV and need not consider it again. 12 See Strong, 462 S.W.3d at 733-34.
12 In Johnson IV, this Court held:
19 Johnson’s second claim of instructional error is procedurally barred because he did
not raise it at trial, on direct appeal, or during post-conviction relief proceedings.
Strong, 462 S.W.3d at 738-39. Johnson seeks to overcome this procedural bar through
both a freestanding and gateway claim that he is actually innocent of the death penalty
because he is intellectually disabled.
While Johnson could properly raise a claim of actual innocence because he is
sentenced to death, State ex rel. Amrine v. Roper, 102 S.W.3d 541, 547 (Mo. banc 2003),
his specific claim that he is actually innocent because he is intellectually disabled is not
cognizable. In Sawyer v. Whitley, the Supreme Court held a court may reach a
procedurally barred claim when an offender shows, by clear and convincing evidence, no
reasonable juror would have found the petitioner eligible for the death penalty under
applicable state law. 505 U.S. 333, 347-48 (1992). The Supreme Court clarified, and
this Court has reiterated, however, actual innocence of the death penalty only means the
defendant can prove they are either innocent of the actual underlying crime or
aggravating factors. Id. at 340-41; see also Clay v. Dormire, 37 S.W.3d 214, 218 (Mo.
Johnson’s claim is without merit. Under section 565.030.4(1), a finding of [intellectual disability] is made by the jury and, if such a finding is made, the potential punishment for a capital defendant is limited to life imprisonment. Determining a defendant is [intellectually disabled] is not a finding of fact that increases the potential range of punishment; it is a finding that removes the defendant from consideration of the death penalty. The Supreme Court’s holding in Ring requiring a jury to find statutory aggravating circumstances beyond a reasonable doubt does not apply to the issue of [intellectual disability]. The instruction the trial court submitted to the jury, MAI–CR 3d 313.38, is not in conflict with substantive law or Ring. The court did not err in instructing the jury that Johnson had the burden of proving [intellectual disability] by a preponderance of the evidence. Johnson IV, 244 S.W.3d at 151.
20 banc 2000); see also State ex rel. Koster v. McElwain, 340 S.W.3d 221, 258 (Mo. App.
2011).
Intellectual disability is neither an element of the underlying crime nor an
aggravating factor. Rather, intellectual disability concerns whether an offender is eligible
for the death penalty. See Atkins, 536 U.S. at 320. Johnson’s second claim has been
previously litigated and decided against him and, even if that was not the case, it would
be procedurally barred because it could have been previously litigated.
III. Method of Execution
Johnson also argues Missouri’s lethal injection protocol, as applied to him, would
constitute cruel and unusual punishment in violation of article I, § 21 of the Missouri
Constitution. 13 The basic facts underlying Johnson’s claim are as follows. Doctors
diagnosed Johnson with an atypical parasagittal meningioma brain tumor in 2008.
Doctors performed a craniotomy on Johnson to remove the tumor but were unable to
remove it entirely. As a result of the surgery, Johnson has scarring on his brain and is
missing a portion of his brain matter responsible for the movement of and sensation in the
legs. Johnson alleges these brain defects interrupt his electrical brain activity that
13 The State argues Johnson’s method of execution claim is properly brought in a declaratory judgment action, not habeas. This Court has recognized that habeas corpus is the proper remedy when a prisoner seeks to vacate his or her sentence. Hicklin v. Schmitt, 613 S.W.3d 780, 787 (Mo. banc 2020). Of course, Johnson’s method of execution claim, if successful, would not vacate his death sentence, but would merely change how the state would carry out his sentence. Therefore, as Hicklin suggests, Johnson’s method of execution claim is more appropriately brought in a declaratory judgment action. See also Hill v. McDonough, 547 U.S. 573, 579-80 (2006) (holding a method of execution claim must be brought under § 1983, not in habeas). However, as a practical matter, death-sentenced defendants have raised method of execution claims along with other habeas corpus claims and been permitted review of such claims.
21 manifests as violent and uncontrollable seizures. Johnson also alleges doctors have
diagnosed him with epilepsy since the craniotomy. In sum, Johnson argues
Pentobarbital, the drug used in Missouri’s lethal injection protocol, when coupled with
his preexisting brain defects, will trigger painful seizures during his execution.
Both the Missouri and United States constitutions prohibit cruel and unusual
punishment. Mo. Const. art. I, § 21; U.S. Const. amend. VIII. In order to succeed on his
method-of-execution claim, Johnson must plead and prove two elements. First, Johnson
must establish the State’s chosen method of execution “presents a risk that is ‘sure or
very likely to cause serious illness and needless suffering,’ and [would] give rise to
sufficiently imminent dangers.” Glossip v. Gross, 576 U.S. 863, 877 (2015) (emphasis
added). “[T]here must be a substantial risk of serious harm, an objectively intolerable
risk of harm that prevents prison officials from pleading that they were subjectively
blameless for purposes of the Eighth Amendment.” Id. (internal quotation marks
omitted).
Second, “a prisoner must show a feasible and readily implemented alternative
method of execution that would significantly reduce a substantial risk of severe pain and
that the State has refused to adopt without a legitimate penological reason.”
Bucklew, 139 S. Ct. at 1125. In showing an alternative method of execution is feasible
and readily implemented, “the inmate’s proposal must be sufficiently detailed to permit a
finding that the State could carry it out relatively easily and reasonably quickly.” Id. at
1129 (internal quotation marks omitted). It is not enough for the prisoner to show the
alternative method of execution is “slightly or marginally safer.” Glossip, 576 U.S. at
22 877. What is more, the Eighth Amendment does not require states to adopt “untried and
untested” methods of execution. Bucklew, 139 S. Ct. at 1130.
a. No Substantial and Unjustifiable Risk
To prove the first element, Johnson argues the administration of Pentobarbital
“creates a substantial and unjustifiable risk that violent and uncontrollable seizures could
be triggered during the execution due to [Pentobarbital’s] interaction with [his] remaining
[tumor], scarring tissue, and brain defect.” In support of his conclusion, Johnson
exclusively relies on Dr. Joel Zivot’s affidavit. The salient portion of Dr. Zivot’s
affidavit is as follows:
As a result of Mr. Johnson’s brain tumor, brain defect, and brain scar, a substantial risk of serious harm will occur during his execution as a result of a violent seizure that is induced by Pentobarbital injection. Generalized seizures, such as the one that would occur in Mr. Johnson, are severely painful. . . . As seizures are known to be painful and are observed as such by others, Pentobarbital induced seizures will be more painful than seizures from other causes including those that would otherwise occur in Mr. Johnson as a result of his underlying epilepsy. . . . It is erroneous to dismiss the risk of Pentobarbital induced seizures in the case of Ernest Johnson by claiming that Mr. Johnson may have a seizure at the time of his execution as a function of a baseline seizure disorder. The Missouri execution protocol will increase the likelihood of a seizure with a very high degree of probability. . . . I am of the opinion that Mr. Johnson faces a significant medical risk for a serious seizure as the direct result of the combination of the Missouri lethal injection protocol and Mr. Johnson’s permanent and disabling neurologic disease.
This affidavit concludes Johnson faces an increased risk of seizure during his
execution due to Pentobarbital. However, the analysis underlying Dr. Zivot’s conclusion
does not prove a seizure is “sure or very likely” to occur during Johnson’s execution
because the affidavit does not prove a causal connection between Pentobarbital and an
increased possibility of seizure. Glossip, 576 U.S. at 877. Instead, Dr. Zivot rests his
23 conclusions on an analysis of a different barbiturate—Methohexital. Methohexital,
which is structurally related to Pentobarbital, is used to intensify and prolong seizures
during electroconvulsive therapy (ECT). 14 Dr. Zivot reasons that, because Pentobarbital
is also a barbiturate and is structurally related to Methohexital, it too is a “seizure-
promoting compound” that creates a risk Johnson will suffer a painful seizure during his
execution. 15
Notably, the affidavit fails to show how the effects of Pentobarbital and
Methohexital are similar or how Pentobarbital will cause a similar reaction when
administered during Johnson’s execution. This is crucial because, as the affidavit notes,
“Barbiturates are a large group of drugs with a wide spectrum of action . . . [that produce]
differing effects on the central nervous system.” Without an adequate comparison of the
effects of Methohexital with the effects of Pentobarbital, Dr. Zivot’s conclusion
regarding Methohexital cannot be imputed to Pentobarbital. Furthermore, Dr. Zivot does
not note how much Methohexital is used to exacerbate an ECT seizure and how that
unknown amount compares to the 5-10 grams of Pentobarbital used in Missouri’s lethal
execution protocol. This Court finds Dr. Zivot’s affidavit, standing alone, is not
14 ECT is “a form of treatment of mental disorders in which convulsions are produced by the passage of an electric current through the brain.” Stedman’s Medical Dictionary 913440. 15 It should be noted that Dr. Zivot has been retained by several death-sentenced inmates to provide expert testimony supporting a method-of-execution claim. Courts have routinely rejected Dr. Zivot’s opinions. See Bucklew, 139 S. Ct. at 1131-33; Williams v. Kelley, 854 F.3d 998, 1001 (8th Cir. 2017); Johnson v. Lombardi, 809 F.3d 388, 391 (8th Cir. 2015).
24 sufficient proof that Johnson is sure or very likely to suffer a painful seizure during his
execution. 16
b. Feasible and Readily Implementable Alternative
Further, Johnson has not pleaded and proved “a feasible and readily implemented
alternative method of execution that would significantly reduce a substantial risk of
severe pain and that the State has refused to adopt without a legitimate penological
reason.” Bucklew, 139 S.Ct. at 1125. Johnson’s only mention of a feasible and readily
implementable alternative method of execution is the following paragraph near the end of
his writ petition:
Because Missouri does not require Mr. Johnson to plead an alternative method of execution, the Eighth Circuit’s finding that he had plead [sic] a plausible claim should also hold true in this court. To the extent this Court would require Mr. Johnson to plead an alternative method of execution, Mr. Johnson alleges that execution by firing squad is an acceptable alternative method. To the extent that requiring an alternative method would be a new pleading requirement, Mr. Johnson would request an opportunity to address that issue further.
It is unclear what Johnson suggests by “Missouri does not require [him] to plead
an alternative method of execution[.]” Bucklew and Glossip, among other cases, make
clear that Johnson must show “a feasible and readily implemented alternative method of
execution that would significantly reduce a substantial risk of severe pain” to prevail on
his method-of-execution claim. See Bucklew, 139 S. Ct. at 1125 (stating the two-element
16 In addition to the flaws in Dr. Zivot’s reasoning, this Court is also cognizant of Dr. Zivot’s similar conclusion that Russell Bucklew was “likely to experience prolonged feelings of suffocation and excruciating pain” during his execution. Bucklew, 139 S.Ct. at 1131. Further impugning Dr. Zivot’s credibility, the witnesses present at Bucklew’s eventual execution stated Bucklew showed no signs of pain or discomfort.
25 test set forth in Glossip “governs all Eighth Amendment method-of-execution claims”
(internal quotation marks omitted)). Although not addressed in his writ petition, it is
possible that Johnson rationalizes, because he is only raising a claim under article I, § 21
of the Missouri Constitution and not the Eighth Amendment, that he is exempt from
pleading and proving what Bucklew and Glossip require. That rationalization has no
basis in precedent. “The Eighth Amendment and article I, § 21 of the Missouri
Constitution provide the same protection against cruel and unusual punishment.” State v.
Wood, 580 S.W.3d 566, 588 (Mo. banc 2019). As such, this Court applies the same
standard no matter if the prisoner alleges his eventual execution will violate the Eighth
Amendment and/or article I, § 21 of the Missouri Constitution. State v. Nathan, 522
S.W.3d 881, 882 n.2 (Mo. banc 2017). Additionally, a petition for a writ of habeas
corpus is a civil action subject to the rules of civil procedure. Nixon, 63 S.W.3d at 216.
Because Missouri is a fact pleading state, Johnson’s petition must set forth facts showing
he is entitled to habeas relief. Id.
Johnson’s mention of a firing squad as an alternative method of execution fails to
provide sufficient detail 17 to permit a finding that the State could carry out an execution
17 In Bucklew, the Supreme Court gave some guidance as to what “sufficient detail” means in regards to an allegation of nitrogen-induced hypoxia as an alternative method of execution: Mr. Bucklew’s bare-bones proposal falls well short of that standard. He has presented no evidence on essential questions like how nitrogen gas should be administered (using a gas chamber, a tent, a hood, a mask, or some other delivery device); in what concentration (pure nitrogen or some mixture of gases); how quickly and for how long it should be introduced; or how the State might ensure the safety of the execution team, including protecting them against the risk of gas leaks. 139 S. Ct. at 1129.
26 via firing squad relatively easily and reasonably quickly. Bucklew, 139 S. Ct. at 1125.
Rather than provide the requisite proposal, Johnson, in his Reply to Answer, belatedly
attaches the Utah Department of Corrections’ firing squad protocol as an exhibit. This
Court normally would not consider the exhibit because a Reply to Answer exists only to
“clarify the facts and issues in a habeas corpus proceeding,” not to include matters
omitted from the writ petition. State ex rel. Singh v. Purkett, 824 S.W.2d 911, 912 n.1
(Mo. banc 1992); Rule 91.12. Nevertheless, Johnson neither asks this Court to adopt
Utah’s protocol in full nor identifies the portions of Utah’s protocol he proposes as an
alternative method of execution. This Court determines Johnson’s inclusion of Utah’s
protocol, without more, does not provide the “sufficient detail” required by Bucklew or
this Court’s fact pleading requirements.
In addition, Johnson’s “proposal” does not sufficiently allege death by firing squad
“would significantly reduce a substantial risk of severe pain” 18 or that Missouri “has
refused to adopt [a firing squad] without a legitimate penological reason.” 19 Bucklew,
139 S. Ct. at 1125. The failure to plead and prove either one of these requirements is
18 In his Reply to Answer, Johnson concludes, without any analysis or support, that “a firing squad will significantly reduce his risk of pain since his seizure condition is obviously not implicated if he is shot to death[.]” This Court need not consider conclusory allegations made in a petition for a writ of habeas corpus. Tucker v. Kaiser, 176 S.W.2d 622, 623 (Mo. banc 1944). 19 In its suggestions in opposition to Johnson’s writ petition, the State argues it would have legitimate penological reasons to refuse to adopt firing squad as an execution method, namely: (1) Missouri’s lethal injection protocol has a track record of rapid and painless death; (2) execution by firing squad would jeopardize the safety and the security of the department of corrections and its personnel; and (3) death by firing squad would tarnish the dignity of Missouri’s execution procedures.
27 fatal to Johnson’s method of execution claim. Nevertheless, Johnson has failed to plead
and prove both; therefore, his method of execution claim fails. 20
This Court finds and concludes Johnson has failed to prove he is intellectually
disabled; therefore, he is eligible for the death penalty. Additionally, this Court finds and
concludes Johnson is not entitled to relief on any of his remaining claims. This petition
for a writ of habeas corpus is denied. 21
All concur.
20 Even if Johnson could plead and prove his method of execution claim, Missouri would not be required to adopt firing squad as an alternative method of execution because it is “untried and untested.” Bucklew, 139 S. Ct. at 1130. Only four states allow firing squad as an alternative method of execution; Mississippi, Oklahoma, Utah, and South Carolina. See Methods of Execution, Death Penalty Information Center, https://deathpenaltyinfo.org/executions/methods- of-execution. Furthermore, only three executions have been carried out by firing squad since 1976, and only Utah has used a firing squad since the 1920s. See Facts about the Death Penalty, Death Penalty Information Center, https://documents.deathpenaltyinfo.org/pdf/FactSheet.pdf; see also McGehee v. Hutchinson, 854 F.3d 488, 494 (8th Cir. 2017) (explaining a firing squad may not be a tried and tested alternative because “The firing squad has been used by only one State since the 1920s. It requires trained marksmen who are willing to participate and is allegedly painless only if volleys are targeted precisely”). Neither the Eighth Amendment nor article I, § 21 of the Missouri Constitution would require the State to implement such a seldom-used and risky method of execution, especially when Missouri’s lethal injection protocol has proved successful in achieving rapid and painless death for condemned inmates. 21 On July 12, 2021, Johnson filed a motion for stay of execution with this Court. That motion is contemporaneously overruled.