State v. Butts, s. 18389

• Decision Date: 21 January 1997
• Docket Number: Nos. 18389,20570,s. 18389
• Citation: 938 S.W.2d 924
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Mark K. BUTTS, Defendant-Appellant. Mark K. BUTTS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 924

938 S.W.2d 924

STATE of Missouri, Plaintiff-Respondent, v. Mark K. BUTTS, Defendant-Appellant.

Mark K. BUTTS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 18389, 20570.

Missouri Court of Appeals,

Southern District,

Division Two.

Jan. 21, 1997.

Rebecca L. Kurz, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Becky Owens Kilpatrick, Office of the Attorney General, Jefferson City, for respondent.

SHRUM, Judge.

Mark K. Butts (Defendant) was charged with violating § 566.030, RSMo 1986, by forcibly raping H__ R__ (Victim). Convicted by a jury, he was sentenced to eight years imprisonment pursuant to the verdict. In No. 18389, Defendant appeals the judgment of conviction in his criminal case. He asserts that the trial court erred by excluding evidence that Victim was forcibly raped by her father some thirty-eight years before the trial of this case. He also claims that the trial court committed "plain error" in submitting the "hammer instruction" patterned after MAI-CR3d 312.10. This court affirms in No. 18389.

After sentencing, Defendant sought postconviction relief under Rule 29.15, which was denied after an evidentiary hearing. In No. 20570 he appeals the denial of that motion following an evidentiary hearing, claiming that his trial counsel was ineffective for failing to call certain witnesses. This court affirms in No. 20570.

The appeals were consolidated pursuant to Rule 29.15(l ) as it existed on the date the motion was filed, but we consider each appeal separately. ¹

Direct Appeal--No. 18389

Defendant does not challenge the sufficiency of the State's evidence. The evidence in the light most favorable to the verdict follows.

On May 11, 1990, Victim, age 41, spent much of the evening at the Maple Street Grill, a restaurant-bar in Buffalo, Missouri. It was there that she first met Defendant and they spent approximately three hours getting acquainted, drinking, and dancing. About 11:15 p.m., Victim decided to leave the bar and go home.

Victim testified that after walking several blocks in the direction of her home, she saw Defendant running towards her. She claimed that her efforts to get away were unsuccessful and that she ultimately submitted to an act of sexual intercourse only because Defendant roughed her up and threatened to kill her by slitting her throat. According to Victim, soon after the rape penetration Defendant abruptly stopped, made the victim get up, and they then returned to the area of the Maple Street Grill. Once there, they got into an automobile that belonged to one of Defendant's acquaintances, Tina Wilson. Soon afterward, Victim escaped from the car and went back inside the bar. Once inside, a bar patron ultimately offered to accompany Victim to the jail and report the attack.

A deputy sheriff who took a written statement from Victim testified that he had noted that Victim had been drinking, but that in his opinion she was not intoxicated. The deputy testified that Victim had reported to him that her assailant's threats were as follows: "You're going to do what I want you to do or I will kill you."

Defendant testified, claiming that the sexual encounter was initiated by Victim after an evening of drinking and intimate dancing, and that she had insisted on sexual intercourse outside rather than inside her house as her child was at home. Defendant also testified that after a minute or two of consensual intercourse, Victim suddenly "stiffened[,]" took her legs from around him, put her arms down, and said, "[i]f you're going to rape me hurry up and get it over with."

Tina Wilson testified for the defense concerning Victim's behavior in the bar and about what Victim had drunk that evening.

Defendant presented extensive testimony from a mental health counselor, Francis Kriesky, about Victim's psychological illnesses, including her post-traumatic stress disorder, hallucinations, and dreams of men raping and stabbing her. However, the trial court rejected Defendant's efforts to have Kriesky and Victim testify that Victim was forcibly raped by her father when she was five years old.

After four hours of deliberation, the jury had not returned a verdict. The trial judge then inquired of the lawyers whether they objected to his giving the jury a "hammer instruction" patterned after MAI-CR3d 312.10, and both indicated that they had no objection. The instruction was given and approximately one hour later, the jury returned with a guilty verdict.

In his first point relied on, Defendant claims the trial court erred when it excluded his proffered evidence that Victim's father forcibly raped her when she was a child and that her post-traumatic stress disorder was caused by those acts of forcible incest. Defendant contends that the excluded evidence was relevant to the issue of consent, and by excluding it, the trial court denied him his constitutionally guaranteed rights to a fair trial and due process. Defendant explains his assertion about the relevancy of this evidence as follows:

"The ... defense [in this case] was that 'no rape occurred, but rather that [Victim's accusations against Defendant were] a manifestation of her post-traumatic stress disorder exacerbated by alcohol consumption.' The jury was allowed to hear evidence that [Victim] was diagnosed with post-traumatic stress disorder. The jury was not informed, however, as to the cause of this disorder. The jury could have inferred and should have been given the opportunity to infer that [Victim] perceived the consensual intercourse with [Defendant] as rape due to her rape-induced post-traumatic stress disorder. Without hearing evidence of the cause of [Victim's] post-traumatic stress disorder, the jury was deprived of relevant information as to the issue of consent."

Continuing, Defendant argues in a conclusory fashion that "[w]ithout being informed as to the cause of the post-traumatic stress disorder, the fact that [Victim] was diagnosed with the disorder was meaningless information to the jury." We disagree.

"[T]he due process clause does not require the admission of irrelevant evidence." State v. Copeland, 928 S.W.2d 828, 837 (Mo. banc 1996). "Neither does it require the admission of all relevant evidence." Id. Trial courts are vested with broad discretion in ruling questions of relevancy of evidence. State v. Brown, 718 S.W.2d 493 (Mo. banc 1986); State v. Samuels, 905 S.W.2d 536, 539 (Mo.App.1995). Absent a clear showing of an abuse of that discretion, appellate courts should not interfere with trial courts' rulings thereon. Brown, 718 S.W.2d at 493-94; Samuels, 905 S.W.2d at 539.

Here, Defendant contends--correctly so--that "the existence of a mental derangement may be shown to discredit a witness provided it affected the witness at the time of the incident testified to, or while he [or she] is on the stand or in the meantime so as to cripple his [or her] powers of recollection." State v. Pinkus, 550 S.W.2d 829, 840 (Mo.App.1977). It is also true that the interest or bias of a witness is always relevant. State v. Bounds, 857 S.W.2d 474, 476 (Mo.App.1993). However, the scope of the evidence allowable to show interest or bias and decisions on matters that may bear on a witness' credibility is largely within the discretion of the trial court. State v. Dunn, 817 S.W.2d 241, 245 (Mo. banc 1991); Bounds, 857 S.W.2d at 476. Among the reasons for allowing trial judges wide latitude in their rulings on evidence that bears on witness credibility are concerns about prejudice, confusion of the issues, and interrogation that is only marginally relevant. Dunn, 817 S.W.2d at 245; See also State v. Schaal, 806 S.W.2d 659, 669 (Mo. banc 1991). "Particularly when the probative value of the evidence is questionable or slight, [concerns about prejudice or confusion of the issues] may outweigh strict logical relevancy and induce the court to exclude evidence that, in the absence of countervailing factors, might well be admitted." O'Brien, Missouri Law of Evidence, (3rd ed.), § 10-2.

Here, the trial court did not abuse its discretion in excluding the forcible incest evidence. Over the State's objection, Defendant placed before the jury all of the evidence contained in the offer of proof regarding Victim's psychological history and difficulties, save the mental health counselor's opinion as to the cause of her problems. Thus, Kriesky, Victim's counselor, testified that in the early months of 1989, Victim was diagnosed with dysthymia (a mild depression or mood disorder), post-traumatic stress syndrome, alcohol abuse, and a borderline personality disorder. Kriesky explained that it was possible for a person to have delusions or hallucinations when suffering from post-traumatic stress syndrome and that his records indicated that Victim suffered these as well as dissociative episodes, the latter being incidents where people believe that they are witnessing something happening to them from outside their own bodies. Excerpts from Victim's records were read to the jury from counseling sessions in 1989, as well as similar sessions in 1990 after the rape. ² Continuing, Kriesky testified that Victim had reported that she had had frequent dreams of men about to rape or stab her; that she had had suicidal tendencies; that she had involved herself in the study of the occult; that she had discussed times when she was hallucinating and seeing satanic figures and that when she had given in to these images by drinking, studying the occult, and lying, they would leave her alone; and that Victim had never completed treatment for her problems before dropping out of counseling. Kriesky testified that persons who suffer from post-traumatic stress syndrome do not necessarily lie, but they can misconstrue events or fail to remember them accurately, especially if they were having a dissociative or hallucinative episode at the time of the event. Finally, Kriesky testified that when Victim returned for counseling after the ...