State v. Kreutzer

• Decision Date: 20 August 1996
• Docket Number: No. 77041,77041
• Citation: 928 S.W.2d 854
• Parties: STATE of Missouri, Respondent, v. Paul KREUTZER, Appellant.
• Court: Missouri Supreme Court

Page 854

928 S.W.2d 854

STATE of Missouri, Respondent, v. Paul KREUTZER, Appellant.

No. 77041.

Supreme Court of Missouri,

En Banc.

Aug. 20, 1996.

Rehearing Denied Sept. 17, 1996.

Craig A. Johnston, Asst. Public Defender, Columbia, for Respondent.

Jeremiah W. (Jay) Nixon, Attorney General, John M. Morris, Assistant Attorney General, Jefferson City, for Respondent.

COVINGTON, Judge.

A jury convicted appellant Paul W. Kreutzer of murder in the first degree, section 565.020, RSMo 1986, and returned a sentence of death. The trial court fixed punishment at death. The postconviction court overruled appellant's Rule 29.15 motion. The judgments are affirmed.

THE CASE

The evidence is viewed in the light most favorable to the verdict. State v. Six, 805 S.W.2d 159, 162 (Mo. banc), cert. denied, 502 U.S. 871, 112 S.Ct. 206, 116 L.Ed.2d 165 (1991). Thirty-six-year-old Louise Hemphill lived with her husband and three children in Pike County near Louisiana, Missouri. Appellant lived less than a quarter of a mile from the Hemphill residence with his adoptive parents. Appellant was paroled from prison in Illinois in May of 1992 and returned to Pike County to live with his family. Later that year appellant met Louise Hemphill when he went to the Hemphill residence to look at a horse that was for sale. In the last week of August, appellant was arrested and later released in Columbia, Missouri, on a charge of indecent exposure.

On the morning of September 2, 1992, Louise Hemphill's husband left for work, and the two oldest children left for school. Mrs. Hemphill drove her youngest child to school. Later in the morning, Mrs. Hemphill's brother went to the Hemphills' home. He was the last person to see her alive. Mrs. Hemphill customarily made a list of household tasks for the day, with a time deadline by which she sought to complete each job. When the police later discovered the list, the chore with the time of 10:30 a.m. was crossed out, but the one listed for 11:00 a.m. was not.

The same morning, appellant was observed in a number of locations in the vicinity of the Hemphill residence. He was seen pulling into a driveway adjacent to the school to which Mrs. Hemphill had earlier driven her daughter. Appellant visited two area schools and offered to speak to students about the Around 4:00 p.m., the two Hemphill daughters, Janie and Jessie, arrived home from school. Jessie Hemphill went upstairs and discovered her mother's nude body lying on the floor of her brother Luke's bedroom. Jessie telephoned her father, who returned home, saw the body, and called 911.

dangers of drugs and alcohol. Appellant bought a BB gun at a store in Louisiana, Missouri, at 9:41 a.m. He attempted to purchase BB's for the gun but did not have enough money for the purchase.

According to the psychologist who interviewed appellant, appellant asked for Mr. Hemphill when he went to the Hemphill residence on September 2. Mrs. Hemphill came to the door and told appellant her husband was not at home. When Mrs. Hemphill tried to shut the door, appellant forced his way into the house. Investigating officers observed signs of a sexual assault in the upstairs bedroom occupied by Jessie and Janie Hemphill. Lengths of duct tape were wrapped around the head and foot of one of the beds, and pieces of duct tape remained around Mrs. Hemphill's ankles. Mrs. Hemphill's clothing and a pair of sweatpants were on the floor next to the bed. A hair discovered on the sweatpants was consistent with appellant's pubic hair and inconsistent with the hair of any member of the Hemphill family. Bloodstains on the bed cover and sweatpants matched the blood of the victim and appellant. DNA analysis of semen found on the bed cover and on Mrs. Hemphill's face and pubic area established a genetic match with appellant, with a band pattern that occurs once every 150,000 times in the Caucasian population and once every 500,000 times in the African-American population.

At some point Mrs. Hemphill escaped or appellant released her from her bonds. The door to the master bedroom was found kicked in, with the door lock lying on the bedroom floor. Boot prints on the door were similar in sole pattern to the boots later seized from appellant at the time of his arrest. The Hemphills kept a .22 caliber pistol in a closet in the upstairs hall, with the ammunition normally stored in a bathroom adjoining the master bedroom. After the murder, officers found the weapon unloaded in the master bathroom.

Mrs. Hemphill suffered multiple injuries. Appellant stabbed her in the neck, opening a jugular vein. Bloodstains and duct tape were discovered in the bathroom and master bedroom, apparently tracked in by Mrs. Hemphill as she ran from the bathroom. Appellant struck Mrs. Hemphill in the head at least three times with a baseball bat kept in her son's room. The blows from the bat were so severe that they dislocated a vertebra in Mrs. Hemphill's neck. Brain matter was leaking from the wound. Although the head injuries would have been fatal, the immediate cause of death was strangulation. Appellant looped a belt around Mrs. Hemphill's neck and strangled her. The strangulation probably took from three to four minutes to complete. Mrs. Hemphill may have been conscious for one or two minutes. A bloodstained hunting knife, kept in the Hemphills' kitchen, was found lying on Mrs. Hemphill's body. Her purse was missing from the house.

Police apprehended appellant on the evening of September 2. Officers who searched appellant's car recovered, among other things, the victim's billfold-purse, a pair of gloves with human bloodstains on it, a roll of duct tape, and the BB gun appellant had purchased that morning along with a package of BB's and a receipt for their purchase. A search of the motel room where appellant stayed revealed, among other things, a pair of jeans with human bloodstains and a receipt for the purchase of the BB gun. Police also seized appellant's boots and ninety-seven dollars in cash from appellant's person. Soon after police searched appellant's car, a law enforcement officer placed appellant in custody.

In the guilt phase of the trial, appellant relied on a defense of diminished capacity, claiming that he suffered from a mental disease or defect that prevented him from acting with deliberation. See § 552.015.2(8), RSMo 1986. In the penalty phase, appellant presented witnesses in mitigation including a woman who, on the night of the murder, was aided by appellant when she was stranded on the road with a flat tire. Appellant also

called his former landlord and her daughter, both of whom lived in the same apartment building as appellant for one year. A psychologist testified that appellant suffered from post-traumatic stress disorder and borderline personality disorder as a result of past physical and emotional abuse. The jury returned a sentence of death, finding that the evidence established the following statutory aggravating circumstances: that appellant committed the murder while engaged in the perpetration of the felony of burglary, section 565.032.2(11), RSMo 1986; and that appellant committed the offense of murder in the first degree for the purpose of receiving money or any other thing of monetary value for himself from Louise Hemphill, section 565.032.2(4), RSMo 1986.

VOIR DIRE

Appellant raises a number of complaints related to the limitations the trial court imposed during appellant's questioning of the venire.

Prior to the commencement of voir dire, appellant moved to question the venire with regard to the issues of mental disease or defect and diminished capacity in groups smaller than those before which the general voir dire would be conducted. The court overruled the motion. Appellant claims error. The decision to conduct voir dire either individually or in small groups is a matter within the control of the trial court. Absent a showing of both an abuse of discretion and prejudice to the defendant, it is not a basis for the reversal of a conviction. State v. McMillin, 783 S.W.2d 82, 94 (Mo. banc), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 179 (1990). The trial court did not abuse its discretion in overruling appellant's motion.

Appellant's remaining challenges may be categorized and addressed by subject matter. Review is for abuse of discretion. "Although wide latitude should be permitted in exploring possible grounds for challenges for cause or peremptory strikes, the nature and extent of the questions counsel may ask are discretionary with the court." McMillin, 783 S.W.2d at 94. "The party asserting abuse has the burden of demonstrating a real probability that he was thereby prejudiced." State v. Gray, 887 S.W.2d 369, 382 (Mo. banc 1994), cert. denied, --- U.S. ----, 115 S.Ct. 1414, 131 L.Ed.2d 299 (1995).

Appellant alleges that the trial court improperly limited and "continually thwarted" his attempts to question members of the panel in three specific areas: their prejudices concerning the defense of diminished capacity; their attitudes and feelings about the death penalty; and their expectations and beliefs regarding appellant's right not to testify. The limitations on voir dire, appellant contends, violated his right to an impartial jury under the Fourteenth Amendment to the United States Constitution. "Without an adequate voir dire," appellant claims, "the trial judge's responsibility to remove prospective jurors who will not be able impartially to follow the court's instructions and evaluate the evidence cannot be fulfilled," citing Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Appellant claims that the restrictions the trial court imposed prevented him from discovering facts that could have formed bases for his challenges for cause to venirepersons, as well as "such facts as might be useful to him in intelligently determining his peremptory challenges," citing State v. Brown, 547 S.W.2d 797, 799 (Mo. banc 1977).

The...