State v. Butler, ED 109523

CourtCourt of Appeal of Missouri (US)
Writing for the CourtKURT S. ODENWALD, Presiding Judge
Citation642 S.W.3d 364
Docket NumberED 109523
Decision Date22 March 2022
Parties STATE of Missouri, Respondent, v. Tyrone BUTLER, Appellant.

642 S.W.3d 364

STATE of Missouri, Respondent,
v.
Tyrone BUTLER, Appellant.

No. ED 109523

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: March 22, 2022


For Appellant: Nancy A. McKerrow, 1400 Forum Blvd., Ste. 1C #203, Columbia, MO 65203.

For Respondent: Evan J. Buchheim, P.O. Box 899, Jefferson City, MO 65102.

KURT S. ODENWALD, Presiding Judge

Introduction

Tyrone Butler ("Butler") appeals from his convictions and sentences following a jury trial on assault in the first degree, armed criminal action, sodomy in the first degree, and kidnapping in the first degree. Butler raises two points on appeal. Butler first argues the trial court abused its discretion in allowing the State to cross-examine him about phone calls he placed from jail suggesting witness interference because the calls were inadmissible evidence of unrelated and uncharged bad acts that were more prejudicial than probative. Butler next argues the trial court abused its discretion in overruling his motion to suppress K.T.’s pretrial and in-court identifications

642 S.W.3d 367

of him because K.T.’s great-aunt created a substantial likelihood of misidentification by suggesting Butler was K.T.’s attacker and showing K.T. photographs of Butler. Because the phone calls from jail tended to show Butler's consciousness of guilt, the trial court did not abuse its discretion by permitting them to be a subject of cross-examination by the State. Point One is denied. Because the police procedures surrounding K.T.’s identification of Butler were not impermissibly suggestive, the trial court did not abuse its discretion by allowing the identifications into evidence. Point Two is denied. Accordingly, we affirm the trial court's judgment.

Factual and Procedural History

On January 11, 2017, K.T., a twelve-year-old girl, walked her daily route to the bus stop for school. This route would take her past Butler's home. Butler called K.T. over to him. K.T. was able to get a good look at Butler. K.T. did not know Butler's name, but she knew him as someone she had seen in her neighborhood. Butler instructed K.T. to start walking and directed her through an alley. Nearby surveillance cameras showed Butler approaching K.T. Butler forced K.T. into a vacant house.

Upon reaching the second floor, Butler removed K.T.’s clothes after she refused to do so herself. Butler started "beating" K.T., and then made her "suck his private part[.]" Butler then beat and choked K.T. before cutting her throat with a piece of a broken bottle.

Following the attack, K.T. was missing for approximately two nights. Police officers searched the vacant house and discovered K.T. lying on the floor. The officers found bloody footprints, blood splatter on the walls, and a piece of broken bottle that subsequent testing confirmed had K.T.’s blood on it.

While in the hospital, K.T.’s great-aunt showed K.T. various photos from Facebook and asked if she recognized anyone. The first photo showed Butler among a group of people. K.T. pointed to Butler "right away," saying "that's him." K.T. identified Butler as the person who abducted and assaulted her to her great-aunt. No police officers were present when the photos were shown to K.T. K.T.’s great-aunt was not told by anyone in the police department to show the photos to K.T.

Detective Monzell Scott ("Det. Scott") directed Detective Paul Kosednar ("Det. Kosednar") to prepare a photo lineup to be shown to K.T. Det. Kosednar used the "REJIS criminal justice database" to produce the most recent photo of Butler and photos of other similar individuals for the lineup. Det. Scott reviewed the photo lineup and moved Butler's photo to the fourth position because Butler was originally in the first position, which "[Det. Scott] generally [does not] like doing because it kind of ... taints it."

Detectives Kosednar and Jason Steurer ("Det. Steurer") presented the photo lineup identification to K.T. at her home. Det. Steurer administered the lineup. Det. Steurer had "never heard of [Butler] before" and was "unaware of what photograph belonged to what individual." Det. Kosednar stayed by the doorway, so that he would not be "involved in somehow biasing [K.T.] in her viewing of the lineup." Det. Scott was not present for the photo lineup. Upon seeing Butler's photo, K.T. became nervous and emotional. Det. Steurer could "tell that there was a definite reaction and she recognized [Butler]." Even though K.T. identified Butler as her attacker, Det. Steurer told her to "keep looking at the other photos." After looking at all the photos, K.T. still identified Butler

642 S.W.3d 368

and indicated that she was certain she identified the correct suspect.

Detectives Scott and Steurer brought Butler to the police station and questioned him. Butler admitted to seeing and speaking with K.T. the day she was abducted, but denied doing anything to her. Butler then started discussing in detail the route that K.T. took to her bus stop every day. Butler eventually admitted that he went to the vacant house with K.T., that he forced her to perform oral sex on him, and that he cut her throat with the broken piece of the glass bottle. The State charged Butler with various counts of assault, armed criminal action, sodomy, and kidnapping.

Det. Steurer then prepared a live lineup consisting of Butler and three other individuals. Det. Steurer was not in the room with K.T. during the physical lineup, but Det. Scott was present. After giving her the proper instructions, Det. Scott did not speak to K.T. during the lineup. Each individual was brought into the room by himself for a few moments. K.T. again identified Butler and indicated that she had identified him and that she was "certain" of her identification.

While awaiting trial, Butler made several phone calls from jail relevant to this appeal, including a call to his friend Kevin Gates ("Gates") and calls to his sister and brother. After discussing a feud with another inmate with Gates, Butler told Gates that he needed "a favor." Butler said, "I can't say the real thing, ... but me and you being hood, you should already know what I'm saying." Butler then told Gates that he needed him to "take some m*********ers out to eat" by his court date. Butler confirmed that Gates knew "where they live at" and asked when the next time Gates would visit Butler's mother's house, which was near K.T.’s home. Butler then called his sister and reiterated to her that Gates needed "to take m*********ers out to eat."

At trial, Butler testified in his own defense and denied committing any of the offenses with which he was charged. The State sought to cross-examine Butler about his phone calls from jail arguing that the phone calls were evidence of his intent to commit witness interference. The State asserted that Butler's request that Gates take "[them] out to eat" was code for putting a hit out on K.T. Butler objected to the State's questioning about the phone calls as inadmissible prior bad-act evidence. Butler argued that while any comments of taking "[them] out to eat" may have been Butler wanting Gates to undertake a potentially violent act, those comments related only to street violence between Butler and another inmate, and not any witness to the offenses with which Butler was charged. Butler further claimed his court date was mentioned in the phone call not because of the need to have any witness taken care of before then, but because if he was released that day he could have been in danger due to the feud with the other inmate. The trial court ruled that the State could question Butler about the jailhouse phone calls, finding said calls were evidence of Butler's requests that someone harm a witness in the case, and were therefore admissible as consciousness of guilt.

During the State's questioning, Butler admitted to making the statements in the phone calls from jail, including asking Gates and his brother to "take [them] out to eat" and telling his sister that Gates needed to "take [them] out to eat." Butler testified that taking someone "out to eat" involved "trouble," specifically having someone beaten, shot, or killed.

Butler called expert witness James Lampinen ("Lampinen"), a psychology professor from the University of Arkansas,

642 S.W.3d 369

to testify regarding K.T.’s identification of Butler. Lampinen reviewed police reports, depositions, an interview with K.T., and photographs from the lineups. Lampinen testified regarding the photographic lineup that "all the boxes you would check off for conducting a proper identification were conducted in that case. The photographic lineup I think was a very...

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