State v. Barton

• Citation: 936 S.W.2d 781
• Decision Date: 19 November 1996
• Docket Number: No. 77147,77147
• Parties: STATE of Missouri, Respondent, v. Walter E. BARTON, Appellant.
• Court: United States State Supreme Court of Missouri

Page 781

936 S.W.2d 781

STATE of Missouri, Respondent, v. Walter E. BARTON, Appellant.

No. 77147.

Supreme Court of Missouri,

En Banc.

Nov. 19, 1996.

Rehearing Denied Dec. 17, 1996.

J. Christopher Spangler, Sedalia, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, David R. Truman, Assistant Attorney General, Jefferson City, for Respondent.

PRICE, Judge.

This is an appeal from a conviction for first degree murder. Because the trial court sustained an objection to defense counsel's closing argument, even though the argument was supported by facts and reasonable inferences in the record, and because the error was prejudicial, we reverse and remand for a new trial.

I.

Appellant Walter Barton was charged with murder in the first degree for the October 9, 1991, murder of Gladys Kuehler. After a jury had been sworn in Henry County, it was discovered that the State failed to endorse any witnesses. A mistrial was granted on Barton's motion, but his request to be discharged was denied. The parties agreed to select a second jury from Cooper County, and a jury trial began on October 22, 1993. When it became apparent that the jury could not reach a verdict, a second mistrial was granted. A third trial began on April 11, 1994, in the Circuit Court of Christian County.

The prosecution's theory of the case was that Barton killed Mrs. Kuehler in her trailer home sometime between 3:00 and 4:00 in the afternoon. Mrs. Kuehler had been visited by Ted and Sharon Bartlett, former residents of the trailer park, until approximately 2:50. There was evidence that Barton was in the trailer home sometime between 3:00 and 3:30, and that he answered Mrs. Kuehler's phone during that time. The caller, prosecution witness Bill Pickering, testified that he called Mrs. Kuehler between 3:00 and 3:15. Mr. Pickering further testified that a man answered the phone and said Mrs. Kuehler was unavailable. Barton told a police officer that he was the man that answered the phone between 3:15 and 3:30. The prosecution also offered evidence that Mrs. Kuehler's granddaughter, Debbie Selvidge, called the mobile home "every hour on the hour" everyday. On cross-examination, Selvidge acknowledged that she called Mrs. Kuehler after 3:00 on the day of the murder and that she spoke to her for "at least twenty-five minutes."

Carol Horton, a witness for the prosecution, testified that Barton was with her in her trailer between approximately 3:30 and 4:00. Horton further testified that Barton seemed to be in a hurry when he returned from his 3:00 visit to Mrs. Kuehler's trailer home, and that he spent "a long time" washing his hands. The prosecution also put forth evidence that blood was found on Barton's clothing and boots and that the blood on his shirt belonged to Mrs. Kuehler. (According to Barton, the blood got on his clothes when he tried to pull Selvidge away from her grandmother after the body was discovered.) Finally, three jailhouse informants testified that while Barton was in jail he admitted to killing an old lady.

The defense put on evidence that a hair was found on Mrs. Kuehler's body that could not have belonged to her or to Barton. The defense also introduced evidence that blood was found under Mrs. Kuehler's fingernails that could not have come from Barton. Additionally, Danny Dowdy, a neighbor of Carol Horton, testified that he spoke to Barton shortly after 4:00 on the day of the murder. He said that he got a good look at the front of Barton's shirt and the front of his pants, but that he did not see any blood on Barton's clothes.

Defense counsel attempted to establish that Barton could not have committed the murder because he could not have been at the scene of the crime when the murder occurred. During closing, defense counsel argued:

Walter Barton admitted that he answered the phone. He never tried to hide that. And you heard from the Pickerings that they were there and when they called back was between 3:00 and 3:15. Mr. Pickering is sure about the time being close.

But you heard Debbie Selvidge say that she spoke to her grandmother that afternoon and she spoke to her for 20 to 25 minutes. If she'd spoke to her grandmother for 25 minutes at 3:00, Mr. Pickering would not have been able to get through. So we know that she spoke to her grandmother after Mr. Pickering had called.

At that point, the Prosecutor objected, stating: "Objection, your honor. There is no such conclusion possible from that evidence." That objection was sustained and defense counsel did not pursue that line of argument any further.

The jury found appellant guilty as charged and recommended the death penalty. The trial court sentenced Barton to death. Barton's motion for post-conviction relief under Rule 29.15 was overruled. Barton appealed the conviction and the denial of post-conviction relief to this Court.

II.

Barton's first point on appeal is that the trial court abused its discretion in sustaining the prosecutor's objection to his closing argument. Barton asserts that the argument was proper because it was supported by evidence on the record and the reasonable inferences derived from that evidence. Barton further argues that this error caused him prejudice and requires reversal and a new trial. Because we find in favor of Barton on this issue, we do not address the other points raised.

A.

A criminal defendant has the right to a fair and impartial trial. U.S. CONST. amend. VI; MO. CONST., art. I, § 18(a). The right to a fair trial demands a reasonable opportunity to present the defendant's theory of the case during closing argument. Herring v. New York, 422 U.S. 853, 860-61, 95 S.Ct. 2550, 2554-55, 45 L.Ed.2d 593 (1975); State v. Williams, 681 S.W.2d 948, 950 (Mo.App.1984). "It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole." Herring, supra, at 862, 95 S.Ct. at 2555. Closing arguments are particularly important in capital cases where there are unique threats to life and liberty.

Missouri law in this area is relatively clear. Trial courts have wide discretion in controlling the scope of closing argument. State v. Lee, 841 S.W.2d 648, 653 (Mo. banc 1992). Although courts are to be careful to refrain from unduly restricting closing arguments, they have the power to confine the arguments to issues raised by the pleadings and the evidence. State v. Van Horn, 288 S.W.2d 919, 922 (Mo. banc 1956). A party may argue inferences justified by the evidence, but not inferences unsupported by the facts. State v. Richardson, 923 S.W.2d 301, 314-15 (Mo. banc), cert. denied, --- U.S. ----, 117 S.Ct. 403, 136 L.Ed.2d 317 (1996). ¹

The law of other jurisdictions is in accord. The United States Court of Appeals for the District of Columbia, in United States v. Sawyer, 443 F.2d 712 (D.C.Cir.1971), stated that "[i]f the court prevents defense counsel from making a point essential to the defense," the court has abused its discretion. Id. at 713. The court further stated that, "The prosecutor and the defense counsel in turn must be afforded a full opportunity to advance their competing interpretations.... The court should exclude only those statements that misrepresent the evidence or the law, introduce irrelevant prejudicial matters, or otherwise tend to confuse the jury." Id. at 713-14. In United States v. DeLoach, 504 F.2d 185 (D.C.Cir.1974), the District of Columbia Circuit held that the trial court erroneously restricted defense counsel's argument when counsel was merely trying to draw reasonable inferences supported by the facts. Id. at 189-90 (citing Sawyer, supra, at 713-14). The court stated that "[a] trial judge may not impose on a jury his own notion of which inferences are reasonable.... [D]efense counsel should have wide latitude in drawing inferences from the record." Id. at 190-91; see also Ohio v. Pinkney, 36 Ohio St.3d 190, 522 N.E.2d 555, 558 (1988); Commonwealth v. Bennett, 6 Mass.App.Ct. 832, 372 N.E.2d 271, 271-72 (1978).

The common thread running through all of these cases is that defense counsel has the right to make any argument to the jury that is essential to the defense of the accused and is justified by evidence and the reasonable inferences that might be drawn therefrom. It is an abuse of discretion for the trial judge to preclude any such argument. Accordingly, our task is to examine the closing argument attempted by defense counsel to determine if it was justified by the evidence.

B.

Defense counsel argued the following facts:

Walter Barton admitted that he answered the phone. He never tried to hide that. And you heard from the Pickerings that they were there and when they called back was between 3:00 and 3:15. Mr. Pickering is sure about the time being close.

But you heard Debbie Selvidge say that she spoke to her grandmother that afternoon and she spoke to her for 20 to 25 minutes.

She then argued the inference or conclusion that:

If she'd spoke to her grandmother for 25 minutes at 3:00, Mr. Pickering would not have been able to get through. So we know that she spoke to her grandmother after Mr. Pickering had called.

The prosecutor objected that: "There is no such conclusion possible from that evidence." Contrary to the objection and the ruling of the trial court, a line by line review of the argument and the transcript reveals that there was evidence in the record to justify each statement of fact argued by defense counsel and that the final conclusion was possible.

1. "Walter Barton admitted that he answered the phone. He never tried to hide that."

Officer Jack Merritt, a sergeant with the Missouri Highway Patrol, testified that Barton answered the phone in Mrs. Kuehler's trailer when the Pickerings called:

Q. And what did you ask Mr. Barton if you remember?

A. The exact...