HIGH COURT HEARS APPEAL IN CAPE SLAYINGS

JEFFERSON CITY, Mo. -- Andrew Lyons suffered from brain damage and was incapable of deliberation in the murders of two Cape Girardeau women, evidence which his defense team failed to introduce at trial, Lyons' current attorney told the Missouri Supreme Court Tuesday.

The state countered that such evidence was not used at trial because it didn't exist, and that Lyons' statements and actions in the days leading up to the murders proved he planned to kill the women.

Lyons, of Cape Girardeau, was convicted of two counts of first-degree murder for the Sept. 20, 1992, shotgun deaths of his girlfriend, Bridgette Harris, and her mother, Evelyn Sparks. Also killed was 11-month-old Dontay, Lyons' son with Harris. Lyons said the shooting of the boy was accidental. Lyons was convicted of involuntary manslaughter for Dontay's death.

Lyons, 43, is sitting on death row at the Potosi Correctional Center on the murder convictions.

Lyons was initially found incompetent to stand trial, but was eventually tried in Scott County on a change of venue in June 1996, nearly four years after the killings. The Supreme Court upheld the jury verdicts in 1997. The current appeal is for post-conviction relief.

Claim of brain damage

William J. Swift, an assistant public defender, told the court Lyons' trial attorneys failed to present available evidence supporting his defense of diminished capacity. He asked the court to overturn the convictions, or at least the sentences.

"These attorneys failed to do what was fundamentally necessary in this case," Swift said.

Swift said one attorney admitted to having a "phobia" concerning using mental health evidence and that the attorney also suffered a "panic attack" during the trial.

The state's own expert witnesses, Swift said, could have testified that Lyons suffered from a brain damage, possibly dating to the defendant's birth, had they been asked to do so by the defense team.

"This case is not a matter of going out looking for experts, but simply talking to experts who had already examined Mr. Lyons," Swift said.

The jury would have found such testimony compelling enough to affect the outcome of the trial, Swift said.

Assistant Attorney General Shaun Mackelprang disputed Swift's arguments, saying there was no indication in the medical reports that Lyons' suffered from brain damage and that such claims were raised only in post-trial motions.

"The way this has been argued today makes it a classic hindsight argument," Mackelprang said. "It seems to me brain damage is a mental disease or defect, and the doctors would have found that and taken the time to put that in their report."

He said the defense team made a reasonable strategy decision not to introduce mental health testimony in light of overwhelming evidence of Lyons' deliberations prior to the murders.

Intent shown

Mackelprang cited statements Lyons made to friends indicating his intent to kill Sparks and Harris and an incident two days prior to the killings in which Lyons brandished a shotgun in front of the women. The women reported the incident to police.

Mackelprang also said Lyons had packed a bag just before the murders because he intended to flee Cape Girardeau.

"If I were defense counsel, I would look at this evidence as carrying overwhelming evidence of deliberation," Mackelprang said.

In rebuttal, Swift countered that deliberate acts do not necessarily equal deliberation, in the legal sense.

The court will hand down a ruling in the case at a later date.