Bucklew v. State

• Decision Date: 31 January 2001
• Citation: 38 S.W.3d 395
• Parties: (Mo.banc 2001) . Russell Earl Bucklew, Appellant, v. State of Missouri, Respondent. SC82391 Supreme Court of Missouri Handdown Date: 0
• Court: Missouri Supreme Court

38 S.W.3d 395 (Mo.banc 2001)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Russell Earl Bucklew, Appellant, v. State of Missouri, Respondent.

SC82391

Supreme Court of Missouri

Handdown Date: 01/31/2001

Appeal From: Circuit Court of Boone County, Hon. Frank Conley

Counsel for Appellant: Rebecca L. Kurz

Counsel for Respondent: Adriane Crouse and John M. Morris

Opinion Summary: Russell Earl Bucklew's convictions and sentences, including first-degree murder and the death penalty, were affirmed on appeal. He now appeals denial of post-conviction relief.

AFFIRMED.

Court en banc holds: The court did not clearly err in denying post-conviction relief for ineffective assistance of counsel.

(1) Bucklew did not clearly show that failure to call a corrections expert was not trial strategy. The testimony would have a mixed impact and be cumulative to evidence already presented by a jailer.

(2) The finding that a psychologist's testimony on intent to deliberate was not persuasive as to guilt and was cumulative as to penalty was not clearly erroneous. Bucklew did not prove a reasonable probability of a different outcome if the psychologist testified--in light of the overwhelming evidence of guilt.

(3) Bucklew has not shown a reasonable probability of a different outcome assuming a successful objection to closing argument, wherein reference to the victims' wishes was indirect, at best.

(4) The prosecutor's penalty phase argument did not imply special knowledge but was rhetorical based on the evidence. Counsel is not required to make a non-meritorious objection.

(5) Evidence that five witnesses would have presented was cumulative to evidence already included by the defense, or harmful to the defense, and was not shown to have a reasonable probability to alter the result.

(6) Bucklew's prior assault is admissible under exceptions to the ban on prior misconduct evidence. It showed his motive and intent to commit the crimes charged. Counsel was not ineffective in mentioning evidence the state can present, despite the grant of a motion in limine prohibiting such evidence.

Opinion Author: Duane Benton, Judge

Opinion Vote: AFFIRMED. All concur.

Opinion:

A jury convicted Russell Earl Bucklew of first-degree murder, kidnapping, burglary, forcible rape, and armed criminal action. The trial court sentenced him to death for the first-degree murder, as well as 30 years for kidnapping, 30 years for burglary, 30 years for rape, and 5 years for armed criminal action. The convictions and sentences were affirmed. State v. Bucklew, 973 S.W.2d 83 (Mo. banc 1998), cert. denied, 525 U.S. 1082, 119 S.Ct. 826, 142 L.Ed.2d 683 (1999).

Bucklew then filed for post-conviction relief under Rule 29.15, which was denied. On appeal, he raises six points of error. This court has jurisdiction. Mo. Const. art. V, section 10; Order of June 16, 1988. Affirmed.

I.

This Court reviews the facts in the light most favorable to the verdict. State v. Shurn, 866 S.W.2d 447, 455 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S. Ct. 118, 130 L.Ed.2d 64 (1994).

Russell Bucklew and Stephanie Ray lived together in a trailer in Cape Girardeau County. They broke up on Valentine's Day, 1996. Bucklew then moved into his parents' home.

On March 6, Bucklew returned to the trailer, where he discovered Michael Sanders, the eventual victim. Concluding that Sanders and Ray were romantically involved, Bucklew put a knife to Sander's throat and threatened to kill him if he came back to the trailer. Later that evening, Bucklew returned to the trailer, found Ray alone, threatened her with a knife, cut her jaw, and punched her in the face. Ray reported the attack to the police.

Bucklew called Ray at work on March 7. He again promised to kill her, Sanders, and her children if she and Sanders were together again.

During the night of March 20-21, Bucklew stole his nephew's car. He also took two pistols, two sets of handcuffs, and a roll of duct tape. He left a note asking his family not to report the theft of the car to the police.

The next day, Bucklew followed Ray as she left work and ran errands, ultimately discovering that she was living with Sanders. He then waited some period of time before knocking on the door of the trailer. One of Sanders' sons opened the door. When Sanders himself saw Bucklew through the window, Sanders took the children to a back bedroom and grabbed a shotgun. Bucklew entered the trailer with a pistol in each hand. When Sanders emerged into the hallway carrying the shotgun, Bucklew yelled "get down," and began shooting at Sanders. Two bullets struck Sanders, one entering his chest and piercing his lung.

Bucklew then aimed the gun at Sanders' head. Seeing Sanders' six-year-old, Bucklew instead fired at him, but missed.

Ray stepped between Bucklew and Sanders, now slumped against the wall holding his chest and bleeding to death. Bucklew told Ray to drop to her knees. She hesitated, so he struck her in the face with a pistol. He then handcuffed her hands behind her back, dragged her to the car, and they drove away.

During the drive, Bucklew demanded sex. When she did not perform every act demanded, Bucklew raped her in the back seat of the car. After he resumed driving north on Interstate 55, the highway patrol apprehended Bucklew, but not before a trooper and Bucklew were wounded.

II.

Bucklew claims the motion court erred in denying post-conviction relief for ineffective assistance of counsel. To prove ineffectiveness, the defendant must show that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and that the defendant was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Parker, 886 S.W.2d 908, 929 (Mo. banc 1994), cert. denied, 514 U.S. 1098, 115 S.Ct. 1827, 131 L.Ed.2d 748 (1995). The defendant must prove prejudice, a "reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." State v. Shurn, 866 S.W.2d 447, 468 (Mo. banc 1993), cert. denied, 513 U.S. 837, 115 S.Ct. 118, 130 L.Ed.2d 64 (1994). Reasonable trial strategy is not a ground for ineffective assistance of counsel. Id.

Here, the motion court found that counsel was not ineffective, so review is limited to whether the court clearly erred. Rule 29.15(j); State v. Wise, 879 S.W.2d 494, 524 (Mo. banc 1994), cert. denied, 513 U.S. 1930, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995). The court's findings of fact and conclusions of law are clearly erroneous only if, after a review of the entire record, the appellate court definitely believes that a mistake was made. Parker, 886 S.W.2d at 929.

III.

Bucklew first alleges ineffectiveness because his counsel failed to investigate and present testimony from a corrections expert -- James Aiken, a private consultant with 20 years experience -- to rebut the state's evidence and arguments about future dangerousness. After evaluating Bucklew, Aiken prepared a report, which was admitted by the motion court. In Aiken's opinion, Bucklew would not pose a significant risk of escape from prison, nor a significant risk of harm to other inmates or prison personnel. Aiken would have so testified, fully acknowledging Bucklew's escape from the county jail while awaiting trial.

Defense counsel, however, testified that a "prison adjustment expert" would be susceptible to cross-examination about the frequency of assaults and killings in prison. Aiken's report revealed numerous minor disciplinary infractions and negative comments about Bucklew, which the jury would see only if Aiken testified. Trial counsel was also concerned that Aiken could not testify with any certainty that Bucklew would not escape. Additionally, trial counsel did call a Boone County jailer, who testified that Bucklew had been calm and personally respectful while in that jail for nine months.

Trial counsel's decision not to call a witness is presumed to be trial strategy unless otherwise clearly shown. State v. Clay, 975 S.W.2d 121, 143 (Mo. banc 1998), cert. denied, 525 U.S. 1085, 119 S.Ct. 834, 142 L.Ed.2d 690 (1999). Strategic choices made after thorough investigation are essentially unchallengeable. State v. Ramsey, 864 S.W.2d 320, 340 (Mo. banc 1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994). To establish ineffectiveness of trial counsel for failing to call a witness, movant must show that the witness could have been located by reasonable investigation, that the witness would testify if called, and that the testimony would provide a viable defense. Clay, 975 S.W.2d at 143.

Bucklew did not clearly show that the failure to call Aiken was not trial strategy. In light of the mixed impact of Aiken's testimony, counsel was not ineffective in not calling him as a witness. Davis v. Executive Director of Department of Corrections, 100 F.3d 750, 765-66 (10th Cir. 1996), cert. denied, 498 U.S. 1018, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991). Moreover, Aiken's testimony is cumulative to evidence already presented by the Boone County Jailer. Skillicorn v. State, 22 S.W.3d 678, 686 (Mo. banc 2000), cert. denied, 121 S.Ct. 630 (2000). The motion court did not clearly err in denying postconviction relief for ineffective assistance of counsel.

IV.

Bucklew next contends that trial counsel were ineffective for failing to call Dr. Michael Gelbort, Ph.D., a clinical psychologist, who was retained prior to trial. During the guilt and penalty phases, Dr. Gelbort would have testified, based on a one-day interview and neuropsychological testing, that Bucklew was not able to form the intent to deliberate.

Dr. Gelbort's findings were summarized -- almost verbatim -- by Dr. Bruce Harry, M.D., an expert witness who testified during the penalty phase. Dr. Harry did explain Bucklew's mental and physical condition, and his medications. This...