State v. Kenley

• Decision Date: 20 August 1997
• Docket Number: No. 77093,77093
• Citation: 952 S.W.2d 250
• Parties: STATE of Missouri, Respondent, v. Kenneth KENLEY, Appellant.
• Court: Missouri Supreme Court

Page 250

952 S.W.2d 250

STATE of Missouri, Respondent, v. Kenneth KENLEY, Appellant.

No. 77093.

Supreme Court of Missouri,

En Banc.

Aug. 20, 1997.

Rehearing Denied Sept. 30, 1997.

Loyce Hamilton, St. Louis, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for Respondent.

PRICE, Judge.

Kenneth Kenley was convicted and sentenced to death for the murder of Ronald Felts. Although Kenley's conviction was affirmed by this Court in State v. Kenley, 693 S.W.2d 79 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986), the Eighth Circuit Court of Appeals vacated the death sentence with orders to "reduce it to a life sentence without parole or conduct a new sentencing procedure." Kenley v. Armontrout, 937 F.2d 1298, 1309-10 (8th Cir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991). After a new sentencing trial, Kenley again was sentenced to death. Kenley appeals the sentence and the denial of his Rule 29.15 motion. We have exclusive jurisdiction over the appeals. Mo. Const. art. V, Section 3. We affirm.

I.

A.

(Factual Background)

Kenley killed Ronald Felts during a crime spree that occurred in Poplar Bluff, Missouri, during the late hours of January 3 and the early hours of January 4, 1984. The crime spree was the culmination of a series of robberies planned by Kenley and his cousin to gain money to purchase drugs and to help his grandmother. In preparation for the crime spree, Kenley broke into a sporting goods store and stole some guns. On January 2, Kenley purchased a box of .38 caliber hollow point bullets and practiced shooting at cans and trees.

At about 11:15 p.m. on January 3, Kenley entered the Kater Inn package store wearing a ski mask and holding a .38 caliber pistol. After the store clerk emptied the cash register into a bag, Kenley grabbed a bystander, Sandra Buttry, and forced her into a brown station wagon that he had borrowed from a friend. Kenley commanded Ms. Buttry to unzip his pants and perform oral sex on him, but Ms. Buttry was unable to unzip the pants. While Kenley unzipped his pants, Ms. Buttry located the door handle and jumped from the moving vehicle. Kenley shot her in the back as she exited the vehicle. Kenley returned to where he had shot Ms. Buttry, but drove on when he saw she was receiving aid from a passing motorist. Ms. Buttry survived.

Shortly after midnight, Kenley entered the Blue Moon Tavern and announced a hold-up. He ordered everyone to empty their pockets and lie down. When nobody immediately reacted, Kenley pulled his gun from his pocket and pointed it at Ronald Felts, who was standing approximately twenty feet away. He shouted, "This is a hold up--hit the floor--I mean business. I'll kill you just like I'm going to kill him." Kenley fired a single shot that struck Mr. Felts in the head and killed him.

Kenley then told the owner of the bar, Ellen White, to open the cash register. Kenley grabbed the money, kicked Ms. White and Randy Jenkins, and instructed them to get up and leave with him. When the pair reacted slowly, Kenley fired a warning shot over their heads. Kenley told Ms. White that she would have to perform oral sex on him or be killed. Kenley then changed his mind about taking Jenkins and shot him in the face. Jenkins survived.

Kenley left the tavern with Ms. White. In his haste to leave, Kenley backed the station wagon onto a curb and got it stuck. Kenley decided to take Ms. White's car instead, but the keys to the car were in the bar. When Kenley and Ms. White entered the kitchen where her keys were, Kenley found fifteen-year-old Lori Spralding hiding there. Kenley put his gun to her forehead and asked if she had called the police. Although the girl responded that she had not, Kenley threatened to kill her anyway. Hoping to distract Kenley, Ms. White grabbed the keys and left the kitchen. Kenley followed her and left Spralding there. While she was driving, Ms. White was able to trick Kenley into believing that she needed to open her door to see because the windows were fogged over. Ms. White leapt from the moving car and ran to safety. She heard Kenley's gun click but it did not fire.

At around 12:30 a.m., Kenley arrived at the Coachlight Motel. The motel was owned by Ollie Gaultney and her husband, Truman. Kenley pulled his gun on Mrs. Gaultney and demanded money. When Mr. Gaultney entered the office, Kenley pointed the gun at him and said, "I'll kill you. I've killed already tonight and I'll kill you." Mrs. Gaultney heard the gun click, but again it did not fire. A struggle ensued between Mr. Gaultney and Kenley with Kenley being forced outside the office. When Mr. Gaultney retrieved a shotgun, Kenley left. Mr. Gaultney fired three shots at the radiator of Ms. White's car while Kenley sat in the car reloading his gun. Kenley then drove away.

By that time, police were searching for Kenley. Police officers from Clay County, Arkansas, positioned themselves at the state line and the Corning Police Department set up a road block a few miles farther south. When Kenley crossed the state line, two officers pursued him to the roadblock. Kenley maneuvered around the roadblock but lost control of his car on an ice patch. The police officers disabled the car with gunshots to the radiator and front tire. Kenley fled after firing three shots at the police officers. After the officers returned fire, Kenley fired two more shots and escaped across a field.

Shortly after 1:30 a.m., Kenley arrived at Junior's Food Mart, in Corning, Arkansas. Kenley fired a warning shot into the ceiling and demanded a car and a driver. When no one volunteered, Kenley proclaimed, "I've done killed once tonight. Wouldn't bother me to do it again." Somebody in the store pointed out his car and told Kenley that the keys were in it. As Kenley drove out of the parking lot, police officers manning the nearby roadblock drew their guns, approached the car, and ordered Kenley to stop. Kenley surrendered because "the odds were not in his favor." In response to being read his Miranda warnings, Kenley told the officers, "You all were lucky." While being transported to the Corning jail, Kenley asked if the person he shot in Missouri had died.

B.

(Procedural Background)

1.

Following a jury trial, Kenley was convicted of capital murder and received the death penalty. In a separate trial, Kenley was convicted of three counts of robbery in the first degree, two counts of kidnapping, two counts of assault in the first degree, and one count of stealing. The capital murder conviction and sentence were affirmed on direct appeal by this Court. State v. Kenley, 693 S.W.2d 79 (Mo. banc 1985), cert. denied, 475 U.S. 1098, 106 S.Ct. 1500, 89 L.Ed.2d 900 (1986). The convictions for the other crimes were affirmed on direct appeal by the Court of Appeals, Southern District. State v. Kenley, 701 S.W.2d 185 (Mo.App.1985).

Kenley sought post-conviction relief from each of the convictions by filing two separate Rule 27.26 motions. The motions were consolidated for hearing and denied. Kenley v. State, 759 S.W.2d 340 (Mo.App.1988). This Court denied Kenley's application for transfer from the denial of post-conviction relief. Kenley then filed for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. The federal district court denied Kenley's petition. He then appealed that decision to the United States Court of Appeals for the Eighth Circuit. Kenley v. Armontrout, 937 F.2d 1298 (8th Cir.), cert. denied, sub. nom., Delo v. Kenley, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991).

The Eighth Circuit affirmed the district court's denial of relief in regard to the guilt phase of Kenley's trial. The Eighth Circuit held that due to overwhelming evidence of guilt, Kenley was not prejudiced by his counsel's ineffective assistance. The Eighth Circuit, however, reversed the denial of relief in regard to the sentencing phase. The Eighth Circuit found that trial counsel was prejudicially ineffective for failing to conduct a reasonable investigation into mitigating circumstances. The Eighth Circuit noted many factors that indicated that Kenley's appointed counsel for the first sentencing was not effective. First, counsel only had been out of law school for three months at the time he was appointed and had only tried one misdemeanor robbery trial by the time trial began. Id. at 1299-1300. Counsel only logged fifty hours of pre-trial preparation before Kenley's trial. Id. at 1300. Counsel sought and received little outside assistance in preparing the case. Id. Prior to the capital trial, counsel waived an automatic change of venue despite wide publicity of Kenley's crimes. Id. During voir dire, counsel performed very little inquiry into the attitudes of the jurors toward capital punishment. Id. At the capital sentencing, counsel submitted no mitigating evidence, unwittingly made reference to Kenley's failure to testify, and did not object to evidence regarding the deterrent effect of the death penalty. Id.

The Eighth Circuit also identified numerous factors indicating that counsel was utterly unprepared to defend Kenley at sentencing. Counsel failed to interview two doctors, Dr. Manion and Dr. Richards, who had treated or diagnosed Kenley in the past. Id. at 1308. Counsel did not review the doctors' reports or Kenley's military file, which contained some evidence of a potential "extreme personality or emotional disorder or disturbance." Id. Counsel failed to interview family witnesses concerning Kenley's history and his condition on the morning of the crime. Id.

Based on its assessment that counsel was utterly unprepared to defend Kenley, the Eighth Circuit reversed the denial of habeas relief in regard to the sentencing phase and remanded the case to the district court "with instructions that the State of Missouri be required to vacate Kenley's death sentence and either...