240 S.W.3d 693 (Mo.banc. 2007), S.C. 87859, State v. Barton

Docket Nº:S.C. 87859.
Citation:240 S.W.3d 693
Party Name:STATE of Missouri, Respondent, v. Walter BARTON, Appellant.
Case Date:December 18, 2007
Court:Supreme Court of Missouri
 
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Page 693

240 S.W.3d 693 (Mo.banc. 2007)

STATE of Missouri, Respondent,

v.

Walter BARTON, Appellant.

No. S.C. 87859.

Supreme Court of Missouri, En Banc.

December 18, 2007

Rehearing Denied Jan. 15, 2008.

Appeal From: Circuit Court of Cass County, Hon. Joseph Dandurand

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Elizabeth Unger Carlyle, Columbus, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Richard A. Starnes, Asst. Atty. Gen., Jefferson City, for Respondent.

OPINION

Stephen N. Limbaugh, Jr., Judge

Appellant, Walter Barton, was convicted by a Cass County jury of murder in the first degree for the October 1991 murder of Gladys Kuehler. Because the death penalty was imposed, this Court has exclusive appellate jurisdiction. Mo. Const., art. V, sec. 3. Affirmed.

I.

In March 2006, after numerous changes of venue, two mistrials, a trial and conviction followed by a reversal and remand by this Court, State v. Barton, 936 S.W.2d 781 (Mo.banc 1996), a second trial and conviction followed by an affirmance by this Court, State v. Barton, 998 S.W.2d 19 (Mo.banc 1999), and a prolonged Rule 29.15 proceeding in which the motion court vacated the conviction and the state took no appeal, the case went to trial for the fifth time. The evidence at trial, which is viewed in the light most favorable to the verdict, id. at 21, is as follows:

The victim, who was 81 years old, was the manager of a mobile home park in Ozark, Missouri, and lived in a trailer she owned there. On the morning of October 9, 1991, Carol Horton, another resident of the park, went to the victim's trailer to assist her because she was infirm and unable to move about without the use of a cane. Horton left for a while to shop for the victim and to retrieve her mail and returned at about 11:00 a.m. When Horton saw the victim at that time, the victim was sitting on a daybed she kept in her living room, and she looked like she was "doing okay."

Around noon that day, appellant came to Horton's trailer. Appellant regularly frequented the park, but Horton had not seen him in a week, and appellant told her he had been living in his car. He was in a "happy-go-lucky" mood, talking and "dancing around" to radio music in Horton's trailer. He stayed at Horton's until around 2:00 p.m., when he said he was going to the victim's trailer to see if the

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victim would lend him $20.00, and he returned about 10-15 minutes later, still in a good mood.

Between 2:00 and 3:00 p.m., several people had contact with the victim at her trailer. Teddy Bartlett and his wife, and Sharon Strahan, all former residents of the trailer park, visited the victim around 2:00 p.m. and stayed until sometime around 2:45. While they were there, Dorothy Pickering, who co-owned the trailer park with her husband, Bill, and who was at the park with her husband cleaning a trailer, stopped by the victim's trailer to pick up some rent payments. A man named Roy also stopped by to return a fan and a magazine to the victim. In addition, at about 2:30, Debbie Selvidge, the victim's granddaughter, called the victim and spoke with her briefly. The visitors all left when the victim said she was not feeling well and was going to take a nap.

Meanwhile, appellant told Horton that he was going back to the victim's trailer, and left sometime around 3:00. As Bartlett and Strahan left, Strahan noticed appellant standing at the driver's side door of a pickup truck parked near the victim's trailer talking to someone inside the truck. Shortly thereafter, around 3:15 p.m., Bill Pickering called the victim's trailer because his wife said the victim wanted to talk to him about someone moving into the park. A male voice answered the telephone, and Pickering asked to speak with the victim. The man hesitated, and then said, "She's in the bathroom." Pickering then told the man who he was and asked to have the victim call him back.

Around 4:00 p.m., about an hour after he left Horton's trailer, appellant returned and asked to use her restroom, which she permitted. After a while, Horton noticed that appellant had been in there for a long time, and she had never heard the toilet flush, so she went to check on him and saw him at the sink. He said he had been working on a car and was washing his hands. All told, appellant spent about ten minutes or so in the bathroom. Horton also noticed, however, that appellant's mood had changed, and now, instead of being jovial as he was before, he was distant and seemed in a hurry. He asked her if she would take him to the "Fast Track" to get his car, but she said she could not, because she was going to the victim's trailer. At that point, appellant said, in a "very strong," definite voice, "No, don't . . . Ms. Gladys is lying down taking a nap." Horton went anyway, knocking on the victim's door around 4:15 p.m., but there was no answer, and Horton then left the park to get her car washed.

In the meantime, Selvidge called the victim at 4:00 p.m., as the two watched the same television program together everyday while talking on the telephone. When there was no answer, Selvidge went to the trailer to check on her grandmother. She knocked for some time, but there was no answer, and she noticed that there were no lights on, which was unusual, because the victim always left the porch light on when leaving the trailer. Selvidge then left the park to seek help from her mother.

At about 4:30, Horton returned home and went back to the victim's trailer to check on her, but again received no answer to her knocking. Between 6:00 and 6:30, Selvidge arrived back at the park and went to Horton's trailer, asking about the victim and telling Horton she had been trying to call the victim since 4:00. The two of them then returned to Selvidge's mother's house to try to call the victim again, and when they still were unsuccessful, they went back to the park and asked appellant, who had been at a neighbor's trailer, to help knock on the door again. The three took turns knocking on the door and calling out the victim's name, and appellant went over

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to the end of the trailer where the victim's bedroom was located and knocked on the side of the trailer. There still was no response so they decided to contact the police.

Horton and Selvidge then drove to the nearby town square, flagged down an Ozark police officer, and led him back to the park. After unsuccessfully attempting to enter the victim's trailer, the officer called for a locksmith, and then left to take care of another call. A short time later, the locksmith arrived and opened the front door, and Selvidge, Horton, and appellant entered the trailer.

Once inside, they called the victim's name, but received no answer. Selvidge started to walk down the hallway leading to the victim's bedroom when appellant said, "Ms. Debbie, don't go down the hall. Ms. Debbie, don't go down the hall." Selvidge noticed that the victim's clothes were in the bathroom by the stool and that the toilet lid was up, which was unusual. She then turned on the lights in the victim's bedroom and screamed as she found the victim, "practically nude," lying on the floor between her bed and closet. The victim had been stabbed numerous times, with her throat cut ear-to-ear and with her intestines eviscerating from some of her wounds. Selvidge started to bend down to touch the victim, but Horton, who had followed Selvidge down the hall to the bedroom, told her not to do so. Selvidge then went back into the hall, pushed past Horton and appellant, who was following Horton, and went back to the living room. Appellant said to Horton, "Let me see," and looked over Horton's shoulder into the bedroom at the victim, but he never got close to the body or the blood in the bedroom. Appellant did not get upset upon seeing the victim, but remained calm, showing no emotion, and when he went back into the living room, he "comforted" Selvidge, telling her that he was "so sorry."

The police officer soon returned to the trailer, and after seeing that the victim had been stabbed, he cleared the scene and called for help. After paramedics arrived, the officer interrogated those persons present. He asked appellant if he had seen the victim that day, and appellant told him that he had seen her between 2:00 and 2:30 that afternoon when he had asked her to lend him $20.00. He said that the victim told him she would lend him the money, but would have to write a check, which she would do later in the day. Appellant claimed that this was the last time he had been there. However, appellant later spoke with a Highway Patrol investigator and told him that he was the one who answered the telephone call that Bill Pickering made at 3:15 that afternoon. Because that call occurred between when the victim was last seen alive and when she was found dead, the officers took appellant into custody.

At that point, the officer noticed what appeared to be blood on the elbow and shoulder of appellant's shirt, and appellant responded that he had gotten the blood on him when he slipped while pulling Selvidge away from the victim's body. Selvidge, however, reported that she had not gone in the room past the victim's feet, that she had no blood on her clothes, that nobody had fallen in the room, and that appellant and Horton had remained behind her while she was in the room. Police also noticed that neither Selvidge nor Horton had blood on them, that the victim's blood on the floor was "pretty well dried," as if it had been there for a while, and that there was no wet blood to slip on where the witnesses were standing in the room.

The investigation of the scene also revealed that there was blood on the sink of the victim's bathroom and on a table in...

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