Butler v. State

• Decision Date: 03 July 2018
• Docket Number: WD 80572
• Citation: 557 S.W.3d 427
• Parties: Lance C. BUTLER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

557 S.W.3d 427

Lance C. BUTLER, Appellant,

v.STATE of Missouri, Respondent.

WD 80572

Missouri Court of Appeals, Western District.

OPINION FILED: July 3, 2018

Motion for Rehearing and/or Transfer to Supreme Court Denied July 31, 2018

Application for Transfer Denied October 30, 2018

Jeannie Willibey, Assistant Appellate Defender, Kansas City, MO, Attorney for Appellant.

Joshua D. Hawley, Attorney General, and Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division Two: Karen King Mitchell, Chief Judge, and Alok Ahuja and Edward R. Ardini, Jr., Judges

Karen King Mitchell, Chief Judge

Lance Butler appeals, following an evidentiary hearing, the denial of his amended Rule 29.15¹ motion for post-conviction relief, in which he argued that his trial counsel was ineffective for failing to (1) object to impermissible prior bad acts and propensity evidence and (2) depose the State’s witnesses. Although not raised in his amended motion, Butler now claims the judgment issued by the trial court contains a clerical error, and he asks this court to remand the case with instructions to issue a nunc pro tunc order. Finding no error, we affirm the motion court’s denial of Butler’s motion for post-conviction relief. Because Butler’s request for remand is not properly before this court, his request is denied.

Background²

On May 17, 2012, Zachary Lisle, a confidential informant, contacted the Clay County Drug Task Force because he had arranged to buy one pound of marijuana for $950 from someone named "L.C." Deputy Sharon Taylor was working as a sergeant for the Task Force at the time. She met Lisle and had him outfitted with a recording device. Lisle and Deputy Taylor then went to a Walgreens parking lot at the intersection of Antioch Road and Vivion Road where Lisle arranged to complete the transaction with L.C. A "cover team" of police officers was situated nearby.

Pursuant to Deputy Taylor’s instruction, Lisle called L.C. to tell him that they were at the parking lot and ready to buy the marijuana. Lisle and L.C. exchanged additional phone calls and text messages before a man carrying a duffle bag approached Deputy Taylor and Lisle’s vehicle. Deputy Taylor asked whether that man was L.C., and Lisle responded, "Yeah. That’s our man." At trial, Deputy Taylor identified Butler as the man who approached the car.

Butler came around to the passenger’s side of the vehicle where Lisle was sitting, and Deputy Taylor rolled down the window. Butler leaned in the window and fumbled with his bag. Deputy Taylor saw Butler’s hand move upward, and she spotted a gun, which Butler pointed in her face while demanding she give him the money and car keys. Deputy Taylor complied. At that point, Butler pointed the gun at Lisle and demanded Lisle’s phone. Once Butler had the money, keys, and phone, he ran.

While running, Butler threw the keys into the grass. A member of the cover team chased Butler on foot across the parking lot toward the street. A white Ford Explorer arrived, and Butler jumped into the passenger side of the vehicle, which then drove away.

Josh Davis, an off-duty detective specializing in drug enforcement, was picking up a prescription at the Walgreens and saw Butler running toward the street. Detective Davis got in his car, called 911, told the dispatcher what he saw, and followed the Ford Explorer into Jackson County and onto Paseo Boulevard. Kansas City police officers stopped the Ford Explorer at the intersection of Truman Road and Paseo Boulevard. Butler jumped out of the vehicle and ran. The officers who pulled the vehicle over chased Butler and apprehended him. Once Butler was in custody, the officers retraced Butler’s footsteps and found some of the money that Deputy Taylor had surrendered to Butler. The rest of the money was found in both the Ford Explorer and Butler’s pockets. Lisle’s cell phone, however, was not recovered.

The next day, Special Agent Harry Lett of the Bureau of Alcohol, Tobacco, Firearms, and Explosives searched the intersection of Truman Road and Paseo Boulevard for the firearm Butler had pointed at Deputy Taylor. Though the area had not been secured overnight, Agent Lett found a firearm similar to the one described by Deputy Taylor in an alleyway underneath some weeds. A magazine and live ammunition were also recovered, but no useful fingerprints were found on these items.

The State charged Butler as a persistent offender with two counts of robbery in the first degree in violation of § 569.020,³ two counts of armed criminal action in violation of § 571.015, and one count of unlawful possession of a firearm in violation of § 571.070. One robbery charge and related armed criminal action charge involved Butler’s actions toward Deputy Taylor; the second robbery charge and related armed criminal action charge involved Butler’s actions toward Lisle. Before trial, the State dismissed the unlawful possession of a firearm charge.

Also before trial, an investigator from the Public Defender’s office interviewed Lisle. Shortly after that interview, trial counsel informed Butler of counsel’s plans to depose Lisle and Deputy Taylor so he would have their sworn statements to use for impeachment at trial. The Public Defender’s office, however, declined to provide funding for the depositions, so they did not occur as planned.⁴

At trial, the State asked Deputy Taylor how the Clay County Drug Task Force works with confidential informants. She testified:

It depends on what kind of charges they have. Sometimes if they have the, the charges and they're all narcotics related, if there is not a huge amount, or is a big charge, then they're, we approach them and say, hey, we can work with you to make a discharge, work your charges with us in exchange for you to introduce to the big drug dealers out there. So, we can start working them doing undercover, undercover buys and, you know, working charges on them.

In response to a question about her ability to function effectively as a task force member without confidential informants, Deputy Taylor testified that she needed informants because:

[I]n that environment, it’s not easy for me to come to a drug dealer and say, hey, I want to buy drugs from you, because they don't [know] me, they don't trust me. So, the way to work our way in is by working with somebody they trust. And if you're new in that, in that world, per se, you are not a trusted person, so they will not sell [to] you, they will not talk to you, they just, they don't even want to see you around them.

Finally, in response to a question about the proximity of backup officers during an undercover drug buy, Deputy Taylor said, "it varies, depending on, on the location, because some of the drug dealers have counter surveillance, we have to be careful."

At trial, Lisle testified that he did not have a good memory of the robbery because it was brief and shocking and he was high at the time. Initially, he said he could not remember a gun, but he later remembered seeing one. He testified that he "basically" remembered the gun and that Butler was the person with the gun who took Lisle’s cell phone and the money. Lisle admitted that, when interviewed after the robbery, he truthfully told police that Butler had a gun, but he later claimed that the police were "egging [him] on" and "driving [him] crazy," so he told them "everything they told me to say." Lisle also admitted that Butler spoke to him before trial, telling Lisle to contact trial counsel and say that there had been no gun and that the robber had only a drawstring bag. Lisle felt "pressured under the moment" to contact Butler’s trial counsel. Lisle vacillated as to whether he was under pressure from Butler when he later spoke with the investigator. Lisle also testified that Butler did not "personally pressure" him but that, if he did not do what Butler wanted him to do, it was not "going to be too good for [Lisle], honestly."

The investigator testified that Lisle had told her he was so high the day of the robbery that he remembered seeing only a drawstring bag; he could not remember a gun, and, if there had been a gun, he could not have said what kind of gun it was. Lisle just wanted to "go back to his girlfriend in the motel, but detectives told him he was not going anywhere until he wrote a statement, or else he was going to jail." Lisle also told the investigator that he was not under any pressure to talk with her and that he did not remember what he had said in his statement to police or whether he had identified the right person in the lineup.

The jury found Butler guilty of robbery and armed criminal action based on his conduct toward Deputy Taylor, but the jury found him not guilty of robbery and armed criminal action involving his conduct toward Lisle. The trial court sentenced Butler as a persistent offender to consecutive terms of thirty years' imprisonment for robbery and twenty years' imprisonment for armed criminal action. Although the State did not plead or prove, and the trial court did not find, Butler to be a Dangerous Offender, the judgment stated, "The defendant has been found beyond a reasonable doubt to be a: Dangerous Offender ( 558.016 RSMo )."

On direct appeal, Butler challenged the admissibility of the firearm located by Agent Lett, arguing that the firearm was neither logically nor legally relevant to the charges against him. State v. Butler , WD76747, memo. at 5 (Mo. App. W.D. April 7, 2015). This court rejected Butler’s admissibility challenge, finding that Deputy Taylor’s testimony alone was sufficient to admit the firearm as "the firearm" involved in the robbery. Id. at 6. We affirmed Butler’s convictions and sentences on direct appeal. State v. Butler , 457 S.W.3d 897 (Mo. App. W.D. 2015). We issued our mandate on April 29, 2015.

Butler timely filed pro se and amended Rule 29.15 motions, and the motion court held an evidentiary hearing, during which trial counsel and Butler, among others, testified. Trial couns...