State v. Butler, 74252
| Decision Date | 20 August 1997 |
| Docket Number | No. 74252,74252 |
| Citation | 951 S.W.2d 600 |
| Parties | STATE of Missouri, Respondent, v. James H. BUTLER, Appellant. |
| Court | Missouri Supreme Court |
Appeals From The Circuit Court Of Clay County; The Honorable John R. Hutcherson, Judge (Trial and Post-conviction) The Honorable Victor C. Howard, Judge (Post-conviction).
Melinda K. Pendergraph, Asst. Public Defender, Columbia, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., David R. Truman, Asst. Atty. Gen., Jefferson City, for Respondent.
On May 7, 1991, James Butler was convicted and sentenced to death for the murder of his wife, Diana Butler. Butler appeals his conviction, sentence, and the denial of his Rule 29.15 post-conviction motion. We have exclusive jurisdiction over the appeals. Mo.Const. art. V, section 3. Because Butler received ineffective assistance of trial counsel, the judgment of conviction and sentence is vacated.
At approximately 5:10 p.m. on May 5, 1990, Rodney Bavin was driving west on 80th Street in Kansas City, Clay County, Missouri. He noticed two girls walking down the street just east of the 80th street/I-435 overpass. Further west on the south side of 80th Street, just east of North Brighton, he saw a red car, parked facing east. He also noticed something, which he thought was a mannequin, lying in front of the car. Bavin slowed down, but did not stop, and proceeded home.
William Smith was driving west on 80th Street between 5:05 and 5:10 p.m. He also drove by two girls on the I-435 overpass. Just east of North Brighton, Smith noticed a car on the side of the road, facing east, and "someone in front of the car." He stopped, got out, and examined the body which he believed was a female with blood on her face. He did not touch anything and proceeded to his girlfriend's home a few miles away, where he reported the incident to the police. The police received Smith's call at 5:17 p.m.
Marla White and Nicole LaValley, students at Oak Park High School, were the two girls seen by Bavin and Smith on 80th Street. They were on the I-435 overpass between 3:30 and 5:30 p.m. on May 5, 1990, and saw four to six vehicles drive by. They remembered a black Chevrolet Blazer or Ford Bronco, a Buick Skyhawk, a light blue car of unknown make, and a minivan. They did not see a body or anything else lying on the side of the road and they did not hear gunshots. The last car they saw was the Blazer/Bronco, which drove by at about 5:30 p.m., and whose occupants told the girls to leave because there had been a murder in the area.
Officer Gerald Smith of the Kansas City Police Department arrived at the scene of the murder at 5:23 p.m. He secured the area. Richard Mreen, a field investigator for the Clay County Medical Examiner's office, also responded to the scene, arriving at about 6:25 p.m. He noticed that the dead woman was wearing a pair of sunglasses, which had been knocked out of position slightly, and that she was holding a set of car keys in her left hand. He also noted that blood on the roadway had started clotting but was still fresh.
Officer Bernie Coulter processed the outside of the car for fingerprints, lifting two prints from the outside of the driver's door and one print from the luggage rack located on the trunk. After the car was towed to a police facility, Sergeant Robert Dodds, a crime scene investigator, examined the car and processed its interior for fingerprints. Some of the fingerprints obtained in these two processings matched Butler's prints. Others matched neither those of James nor Diana Butler.
Dr. Paul Vescovo, the Clay County medical examiner, conducted an autopsy of Diana Butler's body at about 8 p.m. on May 5, 1990. He discovered two bullet holes in the victim's head. He estimated the time of death at approximately 5 p.m. The bullets were later determined to be .22 caliber ammunition manufactured by Winchester.
At about 8:00 p.m., Butler called the victim's mother, Jackie Hanson, asking if she had heard from the victim and stating that he was worried about her. He then called the police at 8:06 p.m. and reported his wife missing. At about 9:30 p.m., Butler called Dorothy Buinger, a co-worker and friend of Diana's, and asked if she had seen Diana. The police arrived at Butler's home about 9:45 p.m. When told that the police had found what they believed to be his wife's body, Butler became emotional. He could not positively identify his wife's body from a photograph officers presented to him. Later, he was unable to identify her car from a photograph presented to him by police. He accompanied the officers to the police station, where they questioned him.
Butler related his activities from that afternoon, which were confirmed by credit card and cash register receipts. On May 5, 1990, Butler purchased gas at 600 Northwest 68th Street at 3:16 p.m. with his Discover card. At 3:32 p.m., Butler purchased a case of diet Coke, a box of laundry detergent, and some chicken breasts from Walton's Wholesale Club at 5110 North Oak Trafficway. Records of the Metro North State bank indicated that a $60 withdrawal from Butler's account had been made at 3:57 p.m. from the automatic teller machine located at North Oak Trafficway and Barry Road. Butler stated that, before he returned home at about 6:00 p.m., he went "driving around" in the area where Diana Butler's body was found because he enjoyed the scenery. During police questioning by Detective Gary Wantland on May 7, 1990, Butler related that he was at the intersection of North Brighton and 80th Street about 5:00 p.m. He stated that he stopped somewhere after he turned onto 80th Street between the North Brighton/80th intersection and the I-435 overpass on 80th Street to check for a flat tire.
Realizing that Butler had placed himself at or near the scene of the crime at approximately the same time as the victim's death, Wantland informed Butler of his Miranda rights. Butler continued the interview. He stated that after he checked his tire, he went on to his apartment, arriving at between 5:30 and 6:00 p.m. In response to the detective's inquiry as to when he had last fired a gun, Butler said he had not fired any kind of gun in several years. The detective asked Butler to submit to a gunpowder residue test that would indicate whether he had fired a gun recently. Butler then remembered that he had fired his .357 revolver at a snake he saw crossing the road about a week earlier. After a few more questions, Butler stated that he wanted to speak to an attorney. The interview ceased.
On the evening of May 7, 1990, Butler voluntarily gave police all the guns he claimed to own. Police also searched Butler's light blue Oldsmobile Cutlass and his dune buggy. The dune buggy had a locked metal box. Butler claimed the box's key was lost.
On May 9, 1990, police executed a search warrant. They found .22 caliber ammunition manufactured by Winchester. Police found that the previously locked box on the dune buggy was now open. Tire impressions were taken from Butler's vehicles and from the scene of the murder. Comparison analyses of these impressions, performed by the State's expert, were inconclusive.
Butler claimed to have owned a Ruger .22 caliber pistol, a Spanish Arms .22 caliber pistol, and an AR15 Colt .22 caliber rifle. He claimed that all of them had been stolen. The rifle and Spanish Arms pistol were allegedly in a car that was stolen in October 1989. The car was later recovered; the guns supposedly were not.
The Ruger .22 pistol and a number of other guns were allegedly stolen in a house burglary on a different occasion before Butler moved to Kansas City. The AR15 Colt .22 caliber rifle, however, and several other guns for which Butler made an insurance claim after the alleged burglary were found in his possession. The insurer was never notified that any of the stolen guns had been recovered. The .22 caliber Ruger pistol was not found.
A firearms expert testified that the bullets from the murder scene were consistent with a .22 caliber Ruger revolver, but could not say that the two bullets were fired from the same gun. Nor could he state conclusively that they were fired from a Ruger .22 caliber pistol. He testified that the bullets from the murder scene were similar to live ammunition found at Butler's residence. They were all manufactured by Winchester.
Paul Hix, a friend of Diana Butler's daughter, claimed to have seen a .22 caliber Ruger in Butler's car when he helped the Butlers move, in September 1989. Neither a murder weapon nor a .22 caliber pistol of any kind was ever recovered.
Evidence was presented showing the Butlers had financial difficulties. It also was shown that Diana Butler had $191,000 in life and accidental death insurance. Butler was the designated beneficiary of those policies. Diana normally wore a diamond ring. It was missing from the victim's finger when her body was found. The ring was valued at between six and seven thousand dollars. It has not been recovered.
Butler appeals his conviction, sentence, and the denial of his Rule 29.15 post-conviction motion. He alleges twenty points of trial and motion court error. We first address Butler's claim that there was insufficient evidence to support his conviction and the finding of aggravating circumstances to support the jury's recommendation of the death penalty. Because we find that the evidence was sufficient, we deny those points.
Next we address Butler's argument that the motion court erred in rejecting his claim of ineffective assistance of counsel. Because we are left with the definite impression that a mistake has been made by the motion court and that Butler received ineffective assistance of trial counsel, the judgment of the motion court is reversed and a new trial is ordered. Butler's other 17 claims are moot.
Butler claims that there was insufficient evidence to support his...
To continue reading
Request your trial
-
Johnson v. Steele
...34 S.W.3d at 115; State v. Knese, 985 S.W.2d 759, 778 (Mo. banc 1999); State v. Ervin, 979 S.W.2d 149, 166 (Mo. banc 1998); State v. Butler, 951 S.W.2d 600, 605-06 (Mo. banc 1997); State v. Tokar, 918 S.W.2d 753, 772 (Mo. banc 1996). Continuing in its analysis the court stated:Johnson, howe......
-
State v. Strong
...in the light most favorable to the state, and all reasonable inferences from the evidence are drawn in favor of the state. State v. Butler, 951 S.W.2d 600, 604 (Mo. banc 1997). Similarly, all inferences contrary to the verdict are rejected unless they are such a logical extension of the evi......
-
State v. Bucklew
...his murderous end. See State v. Nicklasson, 967 S.W.2d 596 (Mo. banc 1998); State v. Rousan, 961 S.W.2d 831 (Mo. banc 1998); State v. Butler, 951 S.W.2d 600 (Mo. banc 1997); State v. Tokar, 918 S.W.2d at 773; State v. Nave, 694 S.W.2d 729 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.......
-
State v. McFadden
...would not be able to conclude that the aggravating circumstance could apply to every defendant eligible for the death penalty. State v. Butler, 951 S.W.2d 600, 605 (Mo. banc 1997). The trial court did not plainly err.Point Nine: Double Jeopardy and Instruction No. 18 McFadden claims the tri......