State v. Reuscher

• Decision Date: 25 February 1992
• Docket Number: No. 73463,73463
• Citation: 827 S.W.2d 710
• Parties: STATE of Missouri, Respondent, v. Ed Theodore REUSCHER, III, a/k/a Butch Reuscher, Appellant.
• Court: Missouri Supreme Court

Page 710

827 S.W.2d 710

STATE of Missouri, Respondent, v. Ed Theodore REUSCHER, III, a/k/a Butch Reuscher, Appellant.

No. 73463.

Supreme Court of Missouri En Banc.

Feb. 25, 1992.

As Modified on Denial of Rehearing

March 24, 1992.

Robert G. Duncan, Kansas City, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

COVINGTON, Judge.

Appellant, Edward Theodore Reuscher, III, appeals his conviction of murder in the first degree under § 565.020, RSMo 1986, for which he was sentenced to death. Affirmed.

The evidence, viewed in the light most favorable to the verdict, State v. Guinan 665 S.W.2d 325, 327 (Mo. banc), cert. denied, 469 U.S. 873, 105 S.Ct. 227, 83 L.Ed.2d 156 (1984), supports the jury's finding of guilt. At around 2:00 a.m. on December 19, 1989, Edward Reuscher, John Corbett, and three female companions, using a vehicle owned by Jeff Newberry, drove to 3614 St. John in northeast Kansas City. When they arrived, Reuscher exited the vehicle and went to the door of the residence located at that address. Ricky Elmore came to the door. The two men quarrelled. Elmore slammed the door on Reuscher. Elmore went to get a torque wrench, then chased Reuscher, who ran back to the vehicle. Elmore hurled the wrench at the car as it departed, breaking the back window. Elmore reported the incident to the police.

Corbett and Reuscher dropped off the three women then went to find Jeff Newberry. After locating Newberry, the three men went to Ron Orrick's apartment, number 13 in the Knollwood Apartment complex, at 1411 Northeast Vivion Road in Clay county, in search of their friend Ken Melton.

Finding the apartment unlocked, Reuscher, Corbett, and Newberry went inside. Melton was not there but Robert Wood, an acquaintance, was asleep on the living room floor. Reuscher apparently disliked Wood because he thought Wood was homosexual. The men awakened Wood to ask him whether he knew where Melton was. Wood said he did not know. The men told Wood that his black Thunderbird automobile was not parked outside and then inquired as to its location. When Wood was unable to locate his car keys in his pockets, he told the men he did not know where his car was. Wood then went back to sleep.

Reuscher, Corbett, and Newberry left the apartment and went in search of Melton. They found Melton driving Wood's car on a nearby street. All four men returned to the Knollwood Apartments to drop off Wood's car.

Corbett then drove Reuscher, Newberry and Melton to Dan Tyler's residence so that Melton and Reuscher could obtain Reuscher's shotgun and shells. The four men returned to Elmore's residence in northeast Kansas City to "get even" with Elmore for breaking the window of Newberry's car. On the way, Reuscher, Melton and Newberry consumed whiskey.

The four men arrived at Elmore's house at approximately 4:00 a.m. and parked the car a few houses down the street. All four men exited the vehicle. One man ran to Elmore's car and began to break the windows. Elmore ran from his house with a baseball bat to confront them. When Elmore noticed that the man breaking his car windows carried a pistol, he stopped and shouted, "No guns." Elmore then turned to his left and saw Reuscher with a shotgun. Elmore again yelled, "No guns," and ran in the direction of his house. Reuscher shot Elmore in the buttocks as he fled. Elmore fell on his porch and was dragged inside the house by his friend, Jerry Robinson.

Reuscher and his friends ran back to the vehicle and drove away. Robinson chased the car in an effort to obtain the license number of the vehicle. Reuscher shot at him. The bullet went astray and struck a woman who was walking her dog.

Reuscher, Melton, Corbett, and Newberry returned to the Knollwood Apartments. When they entered apartment 13, Wood remained asleep on the floor. Melton and Reuscher took Wood's car and went to the store. After they returned to the apartment with refreshments, Reuscher and Melton discussed the possibility of going to Florida. Corbett and Newberry decided to leave. All four men went outside. Before Corbett and Newberry left, someone removed the shotgun from Newberry's vehicle and placed it in Wood's Thunderbird.

A neighbor reported to the police loud thumping sounds emanating from apartment 13 between 4:30 and 5:00 a.m. From her window the neighbor saw Reuscher retrieve a long thin object from the back seat of a dark-colored car and return to the building. She heard more commotion from apartment 13 and, finally, a loud crash and the sound of shutting doors. She looked from her window again and this time observed Reuscher and Melton enter the dark colored vehicle and drive away. The police arrived shortly thereafter. When they received no response at apartment 13, they left.

At 9:00 a.m. the neighbor telephoned the landlord to report the disturbance. The landlord sent two maintenance men to apartment 13 to investigate. They discovered Mr. Wood's body and notified the police.

When the police arrived, they found Wood's body lying on the living room floor clothed in underwear. A fire extinguisher and a broken television set, both blood splattered, were found near the body. The police also found a liquor bottle near the body.

Wood sustained multiple head injuries, the most serious of which were a skull fracture caused by a pipe and a crush injury across the face caused by a cylindrical object, such as a fire extinguisher or a whiskey bottle. Wood suffered a blow to his chest, as well as multiple stab wounds in the chest and one in the testicles. His throat was slit. Forensic evidence conclusively showed that Wood died from the head wounds.

After murdering Wood, Melton and Reuscher fled the Knollwood Apartments. While driving down Highway 69, Melton lost control of the car and crashed into a guardrail. The men proceeded on foot.

After being told by a citizen about an accident on Highway 69, Officer Handley of the Claycomo police department went to investigate. A citizen at the scene told Handley that he had seen two people covered with blood running down Park Street, a road running parallel to Highway 69. Handley radioed Officer Jewell, the other officer on duty, advising him to look for a couple of injured people.

Officer Handley returned to the Thunderbird to search for information that would indicate ownership of the vehicle. In the course of his search, the officer uncovered a shotgun and a two-foot long stainless steel pipe, both of which were covered with specks of blood. Handley notified Officer Jewell of his discovery.

Officer Jewell apprehended Reuscher and Melton nearby. A dispatcher advised the officers that one of the suspects was probably Ed Reuscher and that the Kansas City police wanted to talk to both Reuscher and Melton in connection with the incident that occurred at the Elmore residence earlier in the morning.

At that point, the officers read Reuscher and Melton the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). When the Kansas City police arrived, the officers transferred Reuscher and Melton to the Kansas City police department's vehicle. Melton told the police he needed to talk to an officer. A Kansas City officer assured him that he could talk to someone downtown. Reuscher instructed Melton to keep his mouth shut. Later that afternoon, after again receiving Miranda warnings, Reuscher provided a confession. He claimed that Melton had initiated the attack upon Wood with a fire extinguisher; Reuscher admitted to having hit Wood in the head and in the chest with a pipe and to having kicked Wood in the head.

The jury found Reuscher guilty of murder in the first degree under an accomplice theory of liability based on §§ 562.036 and 562.041, RSMo 1986.

During the penalty phase, the state introduced evidence regarding a forcible sodomy committed by Reuscher against a fifteen year old boy. The state also introduced evidence of two convictions for assault in the second degree which arose out of the shootings that occurred at Elmore's residence on December 19, 1989. Reuscher's parents testified on behalf of their son. The jury found that five of the seven aggravating circumstances submitted by the state were proved beyond a reasonable doubt and recommended the death penalty.

Appellant raises three points on appeal. The first concerns the venire. During voir dire the prosecutor asked several venirepersons whether the fact that the crime with which appellant was charged carried a possible sentence of death would cause them to require the state to prove guilt by a standard higher than proof beyond a reasonable doubt. Four of the venirepersons, Mr. Logan, Mr. St. John, Mr. Williams, and Ms. Ball, unequivocally stated that they would require the state to prove appellant's guilt absolutely and beyond any possible doubt. Mr. Logan expressed a need for "absolute" proof; Mr. St. John expressed a need for "total" proof, "beyond any doubt whatsoever"; Mr. Williams required proof "beyond any shadow of a doubt"; and Ms. Ball expressed the need for the state to prove guilt "beyond any possible doubt." Mr. St. John, Mr. Williams, and Ms. Ball additionally stated that they would hold the state to a higher standard of proof in the penalty phase, as well as the guilt phase, of the trial. The prosecutor moved to strike venirepersons Logan, St. John, Williams, and Ball for cause. The defense objected. The court sustained the state's motion, finding that it appeared that none of the four venirepersons could follow the court's instructions with regard to the standard of proof, which would prevent or substantially impair their performance as jurors.

Appellant alleges that the trial court erred in sustaining the state's challenges for cause, thereby depriving appellant of due process of law and a fair and impartial jury. Appellant relies on Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1...