IN THE MATTER OF:

STANLEY D. LINGAR, CP-45

Potosi Correctional Center

Mineral Point, Missouri 63660









TO:

THE HONORABLE BOB HOLDEN,

Governor of the State of Missouri










APPLICATION FOR COMMUTATION OF SENTENCE





Respectfully submitted,




KENT E. GIPSON, #34524

JEREMY S. WEIS, #51514

ATTORNEYS AT LAW

305 East 63rd Street

Kansas City, Missouri 64113

816/363-2795 Fax 816/363-2799



Attorneys for Applicant



TABLE OF CONTENTS

Page



INTRODUCTION

A.

FACTUAL BACKGROUND 1

B.

PROCEDURAL HISTORY 8

REASONS JUSTIFYING COMMUTATION OF SENTENCE

I.

Clemency Should Be Granted Because There Are Significant Concerns Surrounding Mr. Lingar's Guilt and Degree of Responsibility for this Murder 9

II.

Clemency Should Be Granted Because the State Utilized Lingar's Homosexuality as a Basis For Imposing a Sentence of Death, Which Offends Basic Notions of Justice and Fairness 13

III.

Clemency Should Be Granted Because Mr. Lingar Was Denied His Right to Effective Assistance of Counsel 17

A. Clemency should be granted because Mr. Lingar was denied his right to effective assistance of counsel when his trial attorney admitted to the jury, without Mr. Lingar's consent, his guilt to second degree murder and basing the defense to the deliberation element of the greater first degree murder charge on the obsolete theory of voluntary intoxication. . 18

B. Clemency should be granted because Mr. Lingar was denied his right to effective assistance of counsel when his trial attorney incorrectly argued to the jury that they could not consider non-statutory mitigating factors when they considered imposing a sentence of death 20

C. Clemency should be granted because the jury imposed a sentence of death without first considering seven substantial mitigating

i

circumstances that likely would have resulted in the jury imposing a sentence of life imprisonment..

22



CONCLUSION

38



ADDENDUM

Prison MCMI Report

Exh. 1

Family Affidavits

Exh. 2

Transcript of David Smith's Sentencing Hearing

Exh. 3

ii

IN THE MATTER OF:

)

)

STANLEY D. LINGAR, CP-45

) Execution Scheduled for

) February 7, 2001

Potosi Correctional Center

) at 12:01 a.m.

Mineral Point, Missouri 63660

)

)

)

)



APPLICATION FOR COMMUTATION OF SENTENCE



TO: THE HONORABLE BOB HOLDEN,

Governor of the State of Missouri:



COMES NOW Stanley D. Lingar, by and through his counsel, and petitions the Governor for an order under Missouri Constitution Article IV, Section 7 and Section 217.800 RSMo. (1994), to grant Mr. Lingar executive clemency, and commute his death sentence to life without parole, or in the alternative stay the scheduled execution and convene a board of inquiry to further investigate the case. In support of this application, Mr. Lingar states the following grounds:

INTRODUCTION

A. FACTUAL BACKGROUND:

Petitioner, Stanley Dewaine Lingar, was tried before a jury in 1986 in the Circuit Court of St. Francois County, Missouri, on a charge of murder in the first degree involving the murder of Thomas Scott Allen. Following a three day bifurcated trial, the jury convicted petitioner as charged and recommended a sentence of death,

1

(L.f. 106), which was imposed by the trial court. (L.f. 129). The guilt phase of the trial lasted two days. The penalty phase lasted one day. At trial, Lingar was represented by Daniel Moore, of Poplar Bluff, Missouri, who served as lead counsel, (PCR Tr. 19), and his co-counsel, Dale Nunnery. Mr. Moore had no previous experience handling either a first degree murder trial or a capital murder trial. (PCR Tr. 33). Moore and Nunnery also represented petitioner during his original direct appeal.

In the guilt phase of the trial, the state put on sixteen witnesses and the defense put on one witness, Scott Starkey, whose testimony regarding petitioner's level of intoxication actually undermined the defense theory that petitioner could not deliberate on the shooting. (Tr. 355-361). It was the trial "strategy" of Mr. Moore to convince the jury that Lingar was guilty only of second degree murder because Lingar did not have the ability to cooly deliberate on the shooting due to his intoxication, which is the mens rea requirement necessary to convict someone of first degree murder under Missouri law. (PCR Tr. 190). In fact, during the closing arguments of the first phase of the trial, Mr. Moore conceded to the jury that Lingar committed second degree murder. (Tr. 383). Counsel made this concession without specific permission from Lingar to do so. (PCR Tr. 20).

2

In an attempt to establish Lingar did not "deliberate" as required for first degree murder, Mr. Moore relied heavily upon a defense of voluntary intoxication. Despite this strategy, Mr. Moore inexplicably did not present any evidence of petitioner's history of alcohol abuse or his treatment for blackouts. At the time of Mr. Lingar's trial, voluntary intoxication was no longer a viable defense in Missouri because it had been repealed as a defense to murder in 1983, two years prior to the date of the shooting.  562.076 RSMo. Cum. Supp. (1983). As a result, the jury was not instructed that voluntary intoxication could be a defense to the crime. The prosecutor also informed the jury in closing argument that intoxication is not a defense and that there would be no instruction forthcoming which states that alcohol is a shield for Lingar's conduct. (Tr. 387).

The primary evidence presented by the prosecution at trial to establish guilt was the testimony of Mr. Lingar's co-defendant, David Smith, who testified for the state pursuant to a plea bargain agreement under which he received a ten year sentence for second degree murder after Lingar's trial was completed. (Tr. 350-51). (1)

3

David Smith testified in long narratives without objection by either defense attorney. David Smith gave the following account:

In the late afternoon on Saturday, January 5, 1985, Lingar and Smith were drinking and driving around town in Doniphan, Missouri. They started drinking between 5:00 and 7:00 p.m. David Smith drank about three bottles of wine and six to eight cans of beer while Lingar drank two twelve packs of beer, along with another six pack of beer and about a half a bottle of wine. (Tr. 267, 271). Late that night or in the early morning hours of the following day as they were driving around, Lingar and Smith came upon about six juveniles who were hitchhiking. Smith rolled down the window of the blue mustang they were driving and asked the boys where they were headed. Lingar informed them that he was not going the way they were and drove off (Tr. 268). Lingar then put the car in reverse and backed up and picked up the hitchhikers. The five or six juveniles piled in the back seat. After driving approximately a mile down the road, they spotted a jeep with the hood up. Lingar pulled the Mustang up behind the jeep and everyone got out. Scott Allen told them that he had run out of gas. Lingar told Allen that he was headed into town and could drop Allen off at a gas station but would not be able to bring Allen back. Allen then got a white jug from his jeep and got in the Mustang with Lingar and Smith. The hitchhikers were left behind at the jeep. (Tr. 269-70). Lingar then drove the car through town and around several gas stations but they were all closed. He then started driving out of town saying he was going to check on two gas stations across the bridge located out of town. He then drove across the Current River bridge but the two gas stations were both closed, and instead of turning around to go back to town he kept driving out of town. As they were driving, Lingar told Scott Allen to take off his winter coat and Scott Allen refused. Lingar then told Allen to take it off or he wasn't going to take him back to town, so Scott Allen complied. Lingar then stopped the car by Lingo Lake and told Allen to remove his pants and masturbate. When Allen refused, Lingar again indicated he would not take Allen back if he did not comply. (Tr. 271-76) Lingar

4

then started the car and drove to his parent's house. Lingar got out of the car leaving Smith to watch over Allen and returned with a 22 automatic rifle, got back in the car and drove back to Lingo Lake. Lingar told Allen to continue masturbating. Allen then asked if he could get out and urinate. As Allen was urinating, Smith looked across the top of the car and saw Lingar standing there with the rifle laying over the top of the car pointing towards Allen. (Tr. 276-280). Lingar fired a shot and Allen fell to his knees. Allen then pulled himself up in the car and sat down on the passenger side seat. Allen then jumped over the console and sat behind the wheel, turned on the key to try to start the car, but failed to push in the clutch. Lingar then pointed the rifle at Allen's head and shot him again. Allen fell out of the car because the driver's door was open. Lingar then approached Allen and shot him a third time. (Tr. 305-6). Lingar then opened the trunk, grabbed a tire iron and hit Allen with it (Tr. 307). When Lingar realized Allen was not dead yet, he backed up the car and then proceeded in a forward direction to strike Allen with the car bumper. Then Lingar drove away. (Tr. 308). Lingar and Smith drove to Lingar's brother, Eddie's house. Eddie informed them that they needed to clean up the bloody snow, so they returned to the scene. They put Allen's body in the trunk, drove to the Eleven Point River bridge and threw the body off the bridge. They then drove back to Lingar's parents house and cleaned up the trunk. (Tr. 286-93). At some later point, Lingar and Smith decided to leave the state. After pawning the mustang to a salvage dealer, and upon advice by Lingar's father that it was best to leave the state, Lingar and Smith took Lingar's father's car to Bowling Green, Kentucky to stay with Lingar's sister. They disposed of the rifle on a back country road in Kentucky. (Tr. 300-303).


The medical examiner who performed the autopsy, Dr. Ramirez, testified that the cause of death was the first bullet to the chest. (Tr. 136, 148). At the post conviction hearing, the pathologist of Boone County, Missouri, Dr. Jay Dix, testified that after reviewing Dr. Ramirez' report, it was his professional opinion that David Smith's account that Lingar repeatedly struck the head of the victim with a tire iron

5

and ran over the victim with the car was inconsistent with the medical evidence because there were no bruises or abrasions on the victim's body, other than the gun shot wounds and one laceration four inches from the right ear. (PCR Tr. 5-10).

David Smith further testified that he reported to officers that Lingar was drunk that night and that Lingar did not know what he was doing. (Tr. 323-28). David Smith testified that "one minute he [Lingar] seemed like he knew what he was doing and the next he just seemed totally different." (Tr. 341). In addition, the state called two of the hitchhikers. Richard Book, one of the hitchhikers, had given a statement to officers that Lingar and Smith were drinking and were drunk (Tr. 163-64). The other hitchhiker called by the state, Jimmy Bessent, testified that Lingar had been drinking but was not swerving all over the road. (Tr. 171).

During the penalty phase of the trial, in his opening statement to the jury, the prosecutor informed the jury that the only additional evidence it would present at that stage was that Lingar had a consensual homosexual relationship with his co-defendant. (Tr. 395). Upon objection by defense counsel based upon surprise and relevance, the state replied that the evidence was relevant to the motive, was a circumstance of the crime, and revealed Lingar's character. (Tr. 396-97). When the state recalled David Smith to the stand at the penalty phase, he testified that he and Mr. Lingar were engaged in a homosexual relationship. (Tr. 403). The state did

6

nothing further to link this testimony with petitioner's purported motive for the murder or any aggravating circumstance submitted.

During his penalty phase argument, Mr. Moore told the jury that he was precluded from presenting, and the jury was precluded from considering, nonstatutory mitigating evidence and circumstances. (Tr. 437). Mr. Moore pointed out to the jury that they should consider the statutory mitigators of Lingar's lack of prior criminal history, Lingar's youth, and Lingar's intoxication which kept him from appreciating the criminality of his conduct in determining punishment. (Tr. 437-38). After approximately three hours of deliberation, the jury returned with a verdict sentencing Lingar to death based upon a finding of two statutory aggravating circumstances. See 565.032 RSMo. (1986). The jury found the aggravating circumstance that "the murder of Thomas Scott Allen involved torture and depravity of mind." (L.f. 106). The jury also found that the murder was committed while Lingar was engaged in the perpetration of a kidnapping. (Id.).

B. PROCEDURAL HISTORY:

On April 18, 1986, Mr. Lingar's judgment of conviction for capital murder and sentence of death was imposed in the Circuit Court of St. Francois County, Missouri. Mr. Lingar filed a timely appeal of his conviction to the Supreme Court of Missouri, which affirmed the conviction and sentence. State v. Lingar, 726 S.W.2d 728 (Mo.

7

banc 1987), cert denied, 484 U.S. 872 (1987). Thereafter, Mr. Lingar filed a post conviction relief motion pursuant to Missouri Supreme Court Rule 27.26 (repealed 1988) in the Circuit Court of St. Francois County, Missouri. Mr. Lingar's 27.26 motion was denied by the Circuit Court after a hearing and this denial was affirmed by the Missouri Supreme Court. Lingar v. State, 766 S.W.2d 640 (Mo. banc 1989), cert. denied, 493 U.S. 900 (1989).

On October 18, 1989, Mr. Lingar petitioned the United States District Court for the Eastern District of Missouri pro se for habeas relief pursuant to 28 U.S.C.  2254. On March 1, 1993, Mr. Lingar filed his First Amended Petition for Writ of Habeas Corpus by and through appointed counsel, Burton H. Shostak. Mr. Lingar's First Amended Petition for Writ of Habeas Corpus was denied without a hearing and his case was ordered dismissed by United States District Judge Jean Hamilton in a memorandum and order dated August 2, 1996.

The Eighth Circuit , by a 2-1 vote, affirmed the denial of habeas relief. Lingar v. Bowersox, 176 F.3d 453 (8th Cir. 1999). Judge Heaney vigorously dissented. Mr. Lingar filed a timely petition for a writ of certiorari in the United States Supreme Court on March 27, 2000, the Supreme Court denied Lingar's petition for certiorari. Lingar v. Luebbers, 120 S.Ct. 1536 (2000). Lingar then filed a motion to recall the mandate with the Missouri Supreme Court arguing, among other things, that his death

8

sentence should be reversed under State v. Thompson, 985 S.W.2d 779, 792 (Mo. banc 1999), because the prosecution did not disclose their intent to use evidence of homosexuality in aggravation of punishment.

The Missouri Supreme Court summarily denied Lingar's motion to recall the mandate on October 3, 2000. Lingar then filed a petition for writ of certiorari with the United States Supreme Court on January 2, 2001, arguing that Mr. Lingar was denied his right of Equal Protection based on the Court's recent pronouncement in Bush v. Gore, ___ U.S. ___ (2000). Lingar v. Missouri, No.00-7717. Mr. Lingar is currently awaiting a ruling on that petition.

REASONS FOR GRANTING CLEMENCY





CONCLUSION

Stanley Lingar's life deserves to be spared. As outlined in this application, there are serious doubts regarding Stanley Lingar's guilt and the appropriateness of the death sentence handed down by Mr. Lingar's jury. This case also presents an opportunity for the Governor to demonstrate to the people of Missouri that a citizen's private sexual practices should not be considered as a reason for imposing a sentence

37

of death. This case further provides the Governor with the chance to reaffirm a unifying principle upon which both proponents and opponents of capital punishment would agree: that in a case like this one where the evidence of guilt is uncertain, a death sentence should not be carried out.

Respectfully Submitted,





_______________________

Kent E. Gipson, #34524

Jeremy S. Weis, #51514

Public Interest Litigation Clinic

305 East 63rd Street

Kansas City, Missouri 64113

(816) 363-2795 Fax (816) 363-2799

1. Mr. Lingar has continually maintained that he cannot remember the shooting. This is documented in the pretrial psychiatric examination. (L.f. 25). Also, Mr. Moore testified that petitioner originally told him that he was so drunk he could not remember the entire incident. (PCR Tr. 21). Mr. Lingar also testified to this during the post conviction hearing. (PCR Tr. 54). Mr. Lingar testified that what he told Mr. Moore regarding most of the details of the incident actually came from what David Smith told him. (PCR Tr. 53-54).

2. Perhaps the strongest evidence of Smith's greater intelligence is demonstrated at Smith's sentencing hearing, where Smith read a statement he had prepared. Smith's statement is cogent and well-written, demonstrating a level of intelligence far greater than his borderline mentally retarded co-defendant. (See Exh. 3).

3. The theory that Smith was the leader, and Lingar was the follower in this criminal episode is strongly bolstered by Lingar's prison MCMI evaluation, which diagnoses Lingar's personality as "passive" and "avoidant." A characteristic of this diagnosis is passivity, submission, and a lack of initiative; hardly the personality profile of the mastermind of a plot to abduct and murder Scott Allen. (See Exh. 1).

4. In his guilt phase closing argument, the prosecutor stated that motive was irrelevant and he did not know why and did not have to prove why the victim was killed. (Tr. at 369).

5. One of the aggravating circumstances presented in the instructions was whether the murder involved torture or "depravity of mind." This instruction gave the jury a vehicle under which they could be influenced to impose death because of Lingar's status as a sexual deviant.

6. Counsel's failure to present this mental health evidence in support of a guilt phase diminished capacity defense was also ineffective because, had this evidence been effectively presented, there is a reasonable probability that Lingar would not have been convicted of the capital crime. Strickland, 466 U.S. at 694.

7. Due to Lingar's indigent status, Lingar's original habeas attorneys requested from the District Court "sufficient funds to secure expert testimony necessary to prove the facts alleged in the petition" in the First Amended Petition. (First Amended Petition, 54). However, this request was denied. Present counsel is unable to obtain the raw data from Lingar's pretrial examination. Undersigned counsel contacted Dr. A.E. Daniel who reviewed his pretrial evaluation and informed counsel that Lingar's IQ falls in the lower range of borderline. However, Dr. Daniel felt he needed to conduct another neuropsychological evaluation of Lingar. Unfortunately, Lingar lacks the requisite funds to have the necessary evaluation performed.

8. The MCMI personality test conducted shortly after Lingar entered the Department of Corrections:

"This man reports recurring episodes of alcoholism. Although he may have made efforts to resolve this difficulty, he anticipates continued problems in this area, and may experience distress over the consequences of alcoholism on his work possibilities and family relationships." (Exh. 1).

9. The medical records from Ripley County were presented to the trial judge before sentencing. They were submitted with the "partial pre-sentence" report done by the state of Missouri Board of Probation and Parole which was filed with the court on April 3, 1986. (L.F. 113). Probation and Parole officer, Dan Gregg, noted in his pre-sentence report that

[Mr. Lingar's] mother indicated that Stanley had been treated for blackouts by Dr. Sparger in approximately 1980. This doctor is no longer living, however, the medical records were obtained from the Ripley County Memorial Hospital. Lingar was in the hospital in 1980 and one of the final diagnosis was fainting, cause not determined. Most of the records were difficult to read, however, they are enclosed with this report.



(Id.). It is also important to note that this pre-sentence report was submitted to the Missouri Supreme Court as an attachment to the "Report of the Trial Judge."

10. The Probation and Parole presentence investigative report submitted to the court by Officer James M. Kellogg also documents the following:

"Lingar stated that he recalls picking up the hitchhikers, and later the victim, but he does not remember anything that happened relative to the death of the victim. On the evening of January 6, David Smith told Lingar that Lingar had shot and killed someone. After Smith explained what happened, he and Lingar thought about giving themselves up, but were afraid of the consequences. . . Lingar stated that Smith's testimony at the trial was at variance with his earlier statements. [Lingar] stated that he believes he is innocent of murder in that he does not remember having committed the offense, and only has Smith's account that he committed the crime."

(L.f. 119).

11. Lingar's trial attorneys also failed to discover that Lingar and his co-defendant, David Smith, had a homosexual relationship. When the evidence of this relationship was introduced in the penalty phase, Lingar's trial attorney, Mr. Nunnery, objected on the following grounds:

" . . . this relationship is also not only a secret between them, but a secret to the defense. We have never been notified that there was any evidence of homosexuality and I think it is unfair to interject it at this point in the proceedings." (Tr. 398-99).

Lingar's attorney's were completely unprepared for this evidence.