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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