432 S.W.3d 741 (Mo. 2014), SC93371, Barton v. State

Docket Nº:SC93371
Citation:432 S.W.3d 741
Opinion Judge:Zel M. Fischer, Judge.
Party Name:WALTER BARTON, Appellant, v. STATE OF MISSOURI, Respondent
Attorney:Barton was represented by William J. Swift of the public defender's office in Columbia. The state was represented by Gregory L. Barnes of the attorney general's office in Jefferson City.
Judge Panel:Zel M. Fischer, Judge. All Concur.
Case Date:May 13, 2014
Court:Supreme Court of Missouri
 
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432 S.W.3d 741 (Mo. 2014)

WALTER BARTON, Appellant,

v.

STATE OF MISSOURI, Respondent

No. SC93371

Supreme Court of Missouri, En Banc

May 13, 2014

Argued and Submitted: February 4, 2014.

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APPEAL FROM THE CIRCUIT COURT OF CASS COUNTY. The Honorable R. Michael Wagner, Judge.

Barton was represented by William J. Swift of the public defender's office in Columbia.

The state was represented by Gregory L. Barnes of the attorney general's office in Jefferson City.

Zel M. Fischer, Judge. All Concur.

OPINION

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Zel M. Fischer, Judge.

This is an appeal from a Cass County circuit court judgment overruling Walter Barton's Rule 29.15 motion for post-conviction relief after his conviction and sentence to death for the 1991 murder of Gladys Kuehler.

Because Barton was sentenced to death, this Court has jurisdiction over his appeal. Mo. Const. art. V, sec. 10; Order of June 16, 1988.

Factual and Procedural Background

Gladys Kuehler was found dead in her home in 1991. An autopsy revealed that Kuehler was stabbed more than 50 times, including through her open right eye, 11 times in the left side of the chest, three times in the right side of the chest, twice in the neck, and 23 times in the back. There were two large slash wounds across the victim's neck and two X-shaped slash wounds to the abdomen through which the victim's intestines protruded. The full details of the crime are set forth in State v. Barton, 240 S.W.3d 693 (Mo. banc 2007) ( Barton III ). The relevant facts are summarized here.

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. Barton regularly frequented the park, but had not been around for about a week before the murder. On the day of the murder, Barton came to the trailer of Carol Horton. Horton reported that Barton was in a " happy-go-lucky" mood, talking and dancing to music on the radio. At around 2:00 p.m., Barton went to the victim's trailer to ask if he could borrow $20, and he returned about 10-15 minutes later. Between 2:00 and 3:00 p.m., several people had contact with the victim, including her granddaughter, Debbie Selvidge, who called the victim at around 2:30 p.m.

At around 3:00 p.m., Barton told Horton he was going to go back to the victim's trailer to pick up a check she was going to write for him. At around 3:15 p.m. the mobile home park's owner called the victim's trailer. A man answered the telephone, and the owner asked to speak with the victim. The man hesitated and then said that she was in the bathroom.

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At around 4:00 p.m., Barton returned to Horton's trailer and asked to use her restroom. After a while, Horton noticed that Barton had been in the restroom for a while, and Horton had not heard the toilet flush. She went to check on him and found Barton at the sink washing his hands. Barton said that he was washing his hands because he had been working on a car. Horton testified at trial that Barton was in the restroom for a total of around ten minutes. Horton also noted that Barton's mood had changed and that he was now distant and seemed to be in a hurry. After he washed his hands, Barton asked Horton to take him to his car, but she said she could not because she was going to the victim's trailer. Barton urged Horton not to go, stating in a strong voice that the victim was taking a nap. Horton went anyway and knocked on the victim's door at around 4:15. Horton received no answer.

Meanwhile, the victim's granddaughter, Debbie Selvidge, called the victim at 4:00 p.m. because the two watched the same television program together while talking on the telephone every day. When the victim did not answer, Selvidge went to the trailer to check on her grandmother. She knocked for quite some time but received no answer.

After not hearing from the victim for several hours, Selvidge and Horton contacted the police. The officer called a locksmith and then left to answer another call. Once the locksmith opened the victim's door, Selvidge, Horton, and Barton all entered the victim's trailer. Once inside, Selvidge began to walk down the hallway leading to the bedroom when Barton said, " Ms. Debbie, don't go down the hall." Selvidge noticed the victim's clothes in the bathroom and the toilet lid up, which she considered unusual. She then entered the victim's bedroom and found the victim lying, practically nude, on the floor between the bed and the closet. The bed sheets were soaked with blood, the victim had been stabbed numerous times, and her throat had been cut from ear to ear.

Upon finding the victim, Selvidge bent down to touch her, but Horton told her not to do so. Selvidge then went back into the hall and pushed past Barton. Barton then said, " Let me see," and looked over Horton's shoulder into the bedroom. The testimony at trial indicated that he never got close to the body or the blood in the bedroom. Barton did not get upset when he saw the victim, did not show any emotion, and went to comfort Selvidge.

The police officer returned shortly thereafter and, upon seeing the victim, cleared the scene, called for help, and began questioning everyone present. Upon being questioned, Barton told the officer that the only time he had been at the victim's trailer was to ask to borrow money between 2:00 and 2:30. But Barton later spoke with a highway patrol investigator and told him that he was the one who answered the telephone call in the victim's trailer at around 3:15. The investigator then took Barton into custody.

At that point, the officer noticed what appeared to be blood on Barton's shirt. Barton responded that he got the blood on him when he slipped while pulling Selvidge away from the victim's body. Selvidge later reported that Barton had not pulled her back from the victim and that nobody had fallen in the room. The police also noticed that neither Selvidge nor Horton had any blood on them and that there was no wet blood to slip on where the witnesses were standing in the room.

Tests conducted on Barton's clothing revealed that the blood on his shirt, blue jeans, and boots was human blood. DNA tests conducted on the blood from the shirt

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showed that it came from the victim. A blood spatter expert opined that some of the blood on Barton's shirt was consistent with stains created by " medium-to-high energy impact," meaning the blood was ejected from the source by a blow or " transfer of energy" and not by simply rubbing up against already-present blood.

At some point after the murder, Barton was incarcerated in the Lawrence County jail, where inmate Katherine Allen was serving meals and doing laundry. Allen testified at trial that, from time to time, she served Barton his meals and that on several occasions they got into arguments during which he threatened to kill her " like he killed that old lady."

Barton first went to trial shortly after the 1991 murder. That first trial ended abruptly when the court granted a mistrial at Barton's request, following his allegation that the prosecution had failed to endorse any witnesses. State v. Barton, 936 S.W.2d 781, 782 (Mo. banc 1996). Barton's second trial began in 1992, and the circuit court granted a second mistrial when the jury could not reach a verdict. Id. Barton's third trial took place in 1994. The jury convicted Barton of first-degree murder, and the circuit court sentenced Barton to death. This Court reversed the conviction, holding that the circuit court erred in sustaining a prosecution objection to Barton's closing argument. Id.

Barton was tried a fourth time, again resulting in a conviction and death sentence. Barton appealed, and this Court affirmed the conviction and sentence. State v. Barton, 998 S.W.2d 19 (Mo. banc 1999). Barton filed a Rule 29.15 motion for post-conviction relief. Following a prolonged proceeding that involved a per curium opinion by this Court remanding the case for additional findings, Barton v. State, 76 S.W.3d 280 (Mo. banc 2002), the circuit court vacated Barton's conviction, and the State took no appeal. After the circuit court vacated his second conviction, Barton's fifth trial took place in March 2006. During the penalty phase of Barton's fifth trial, the State introduced evidence of Barton's past convictions and victim impact testimony from Selvidge. Defense counsel called two witnesses whom Barton had met through a prison ministry and Barton's wife, whom he married after the murder. Each witness testified about the impact that Barton's execution would have on their lives.

The jury found the requisite aggravating circumstances and recommended a sentence of death. The circuit court sentenced Barton in accordance with the recommendation, and this Court affirmed the conviction and sentence. Barton III, 240 S.W.3d 693.

Barton timely filed the Rule 29.15 motion for post-conviction relief at issue. The circuit court appointed counsel, and counsel filed an amended motion. Following an evidentiary hearing, the circuit court made findings of fact and entered a judgment overruling Barton's motion.

Standard of Review

This is an appeal from the circuit court's judgment overruling Barton's post-conviction motion. This Court reviews Barton's claims for the limited purpose of determining whether the circuit court clearly erred in making its findings of fact and conclusions of law. Rule 29.15(k); Johnson v. State, 333 S.W.3d 459, 463 (Mo. banc 2011). A judgment is clearly erroneous when, after reviewing the entire record, the court is left with the definite and firm impression that...

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