State v. Busch

• Decision Date: 12 March 1996
• Docket Number: 67254,Nos. 63904,s. 63904
• Citation: 920 S.W.2d 565
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Kenneth BUSCH, Defendant-Appellant. Kenneth BUSCH, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 565

920 S.W.2d 565

STATE of Missouri, Plaintiff-Respondent, v. Kenneth BUSCH, Defendant-Appellant.

Kenneth BUSCH, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 63904, 67254.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 12, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied April 24, 1996.

Appeal from the Circuit Court of the City of St. Louis, Edward M. Peek, Judge.

Robert E. Steele, Jr., Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

DOWD, Judge.

Defendant appeals the judgments entered upon his convictions by a jury for murder in the first degree, § 565.020.1, RSMo 1986, and armed criminal action, § 571.015.1, RSMo 1986. The trial court sentenced Defendant to life imprisonment without possibility of probation or parole for the murder and a consecutive life term of imprisonment for the armed criminal action. Defendant also appeals the denial, after an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. We affirm.

The State charged John Detert, Jeffery Babb, and Defendant with the murder of victim. Detert entered a plea bargain pleading guilty to second-degree murder in exchange for his cooperative testimony against Defendant and Babb. Defendant and Babb were tried separately. The State tried Defendant as an accomplice to the murder.

The evidence adduced at trial was as follows. In July 1991, the police received a report victim was missing. Officer Anthony Miller of the City of St. Louis Police Department was called to victim's St. Louis apartment located on Cherokee Street. Officer Miller noticed blood leading from the common area of the second floor apartment, down the outside staircase, across the patio at the foot of the staircase, and into an alley adjacent to the apartment building. Officer Harold Mansfield of the St. Louis Police Department's evidence technicians unit reported to victim's apartment. He similarly testified he saw "[b]lood stains on the steps coming from the second floor landing all the way down to the patio and across the brick to the alley." He collected samples of the blood stains including sections of carpeting in the common area of the two second floor apartments. Subsequent testing indicated that the blood was human. Four tests were conducted comparing the DNA of the carpet blood stain samples and the blood of victim's parents. Two of the tests were inconclusive; two indicated the blood recovered from the carpet was consistent with having come from a child of victim's parents. Officer Mansfield further testified that a screen window leading into victim's apartment was damaged. Inside the apartment, the only exceptional observation was a telephone lying on the couch; a hole was in the wall where the telephone apparently would have been mounted.

On September 23, 1991, human remains, later identified as victim's, were discovered off a gravel road near a trash dump in a wooded area of St. Francois County. The bones were scattered in roughly a 100-foot circumference, and a section of charred ground was within the circumference. Dr. Michael Zaricor, a pathologist, was called to the scene. Victim's skull was found in several pieces. Dr. Zaricor stated that he found damage in the right parietal region of the skull indicative of a gunshot exit wound. In his opinion a gunshot caused victim's death. He also stated that the shatter damage to the skull was consistent with a blow from a blunt object that could have caused death.

The State put on a series of witnesses linking Defendant to victim's death. Victim's girlfriend testified that she was at victim's apartment in early July, shortly before his disappearance. She did not remember a hole in the wall where the telephone mounted. She testified that she had seen Defendant (whom she knew by the alias of Jeff Medler) at a St. Louis bar some time after victim's disappearance. Defendant approached her and asked her if she had seen victim. He then told her that he "blue [sic] his f___ing head off." She further testified Defendant said, "He died real slow, and he deserved it. And at one point, he said he danced on his face and something about burning him." Defendant also asked her if she were pregnant by victim. She said no, and he replied, "good, because he would have killed it."

A bartender who worked at a bar frequented by Defendant also testified. She had seen Defendant with a .38 caliber handgun. She said she overheard Defendant say "he was having problems with someone, and thinks he had to take care of him." And again heard him say "[t]hat he had to take care of this problem; this individual was really giving him a problem."

Jeffry Babb's girlfriend also testified. She met Defendant through Babb. She testified Defendant and Babb were at her apartment in February, 1992. Babb had left the room and Defendant told her "that he [Defendant] did somebody."

He told me that he and Jeff [Babb] and John [Detert] went to the guy's apartment. And [Defendant] broke in and Jeff and him went upstairs. And [Defendant] shot him; and they put him in a sleeping bag and took him downstairs and put him in the car and then drove him out wherever they took him ... He told me that when he got down to wherever, they shot him again.

She testified that on another occasion she heard Defendant ask John Detert what happened to the gun and to get rid of the gun. He also "said the motherf___er deserved what he got."

Defendant's roommate and sometime romantic interest (hereinafter "C.K.") also testified. She said that sometime prior to June of 1991 she discovered guns in their shared apartment. She was concerned for the safety of her child and asked Defendant to remove the weapons. Later in June of 1991, C.K. was sleeping in the apartment living room when she awoke to see a white male exiting the apartment. That day or the next, Defendant began accusing an unnamed person of having stolen a gun. John Detert came to the apartment, and they searched for the gun. C.K. overheard Defendant say, "Nobody steals from me and gets away with it." Over the next few days C.K. heard Defendant ask Detert about getting a "silencer" so that Defendant could "take care of business." Defendant said he was giving that individual ten days to return the gun. He said he had talked to the individual and that individual claimed not to know about the gun. She further overheard Defendant "talking to John [Detert] about July 4th would be a perfect weekend to do it, because with the fireworks and firecrackers, you wouldn't hear the sounds of the gun or it wouldn't be as noticeable."

On the Saturday following the 4th of July, C.K. permitted Defendant to borrow her car. At approximately 7:30 or 8:00 a.m. Sunday morning, Defendant, Detert, and Babb returned to her apartment. They were acting excited and silly. C.K. noticed Defendant's left hand was swollen. He said he was teaching Babb to swing a baseball bat.

At approximately 2:30 p.m. that same Sunday, C.K. went to use her car. She testified that it smelled horrible "like rotten meat." She noticed that the carpeting that covers the floor of the hatchback area was missing. She asked Defendant about the smell, and he laughingly responded, "I guess we left the meat in there too long." She heard Defendant tell Detert that they would have to clean the car out "again." A week or two later, C.K. discovered the hatchback carpeting draped over her apartment railing.

C.K. overheard Defendant say several inculpatory statements to Detert and Babb. Defendant once asked if "anybody knew where the body was." Defendant "said something about the only evidence they would have is Jeff [Babb] pulled the phone cord out of the wall." Defendant further told "about they wrapped up the body in like a blanket, or throw cover, or something, that they had gotten from his apartment." "He said in the car on the way down where he dumped the body that he was moaning and groaning in the back."

In late August or early September of 1991, Defendant was held in a Missouri Penitentiary for an unrelated offense. C.K. and Detert visited Defendant, and Defendant instructed them to "get rid" of his "tie," which he informed was buried in C.K.'s backyard. C.K. testified that she understood "tie" as referring to a gun. Subsequently, C.K. drove Detert to a river where Detert exited the car holding a grocery bag, she heard a splash, and Detert returned to the car without the grocery bag. C.K. also testified that Defendant was very interested in the news, especially when stories about the discovery of victim's body began appearing in the newspaper. Defendant told C.K. "he was pretty sure that it wasn't the body, he said ... [he] didn't think it was the right one."

John Detert testified for the State. He explained that he had taken two of his father's guns to Defendant and C.K.'s apartment, an 1863 Colt .45 and a .38 caliber police service revolver. In June of 1991, Defendant told Detert that the Colt .45 had been stolen. He accused victim of having stolen the gun that morning. Detert did not know victim. Defendant told Detert he and victim had served prison time together and that he thought victim was a "punk." Defendant asked Detert for "help" with victim. Defendant was mad, "And he said he wanted to kill him."

Defendant, Babb, and Detert met at a local pub and discussed the 4th of July plan. Defendant talked about shooting victim and determined Detert would drive. However, Detert was arrested for a traffic violation prior to the 4th of July and was in jail until July 8. Detert testified that on July 14, 1991, he, Defendant, and Babb "did it."

Detert explained that Defendant drove C.K.'s car into the alley adjacent to victim's Cherokee Street apartment. Defendant and Babb were dressed in jumpsuits and were wearing brown gloves. Defendant had the .38 caliber service revolver. Defendant...