State v. Barton

693 848, аnd mandatory. (Mo.App.1985), trustee The is S.W.2d 852 is case Summerville, 717, v. 763 S.W.2d Schrader remanded. (Mo.App.1989). 719 for The standard of review consti set forth 460.100 and 460.250 Sections challenges a is de tutional to statute novo. compensa- of a trustee and powers Louis, Hodges City v. 217 St. S.W.3d There appointed. tion a trustee when 2007). (Mo. 278, banc 279 language requiring appointment is 460, Chapter addresses es- which of a There is no need address trustee. convicts, tates of contains two sections: claims as Inmate’s constitutional Section 460.100 states: constitutional will not address a Court recover, may Such trustee sue if the can question case be decided without name, estate, proper- own Eisenhouer, it. 40 reaching State to, ty or all belonging effects debts 2001). (Mo. 916, banc Because S.W.3d 919 due, money or to become sums current plain language version due, convict, and imprisoned to such 460 not mandate that the chapter does may and defend all actions prosecute trustee, appoint a the trial court court against commenced or such convict. Inmate’s dismissing petition. erred in court, may By such trustee em- leave Berdella, 821 S.W.2d 850. and, ploy subject court ap- counsel attorney fees and proval, pay reasonable in an appointment of trustee The expenses of litigation, prosecute or an is against filed inmate action mandatory. defend such actions. permitted, but it is not reversed, judgment trial court’s is Section trustee 460.250 states: “The shall case is remanded. compensation be reasonable to be allowed together determined the court with ex- All concur.

penses paid from administration be the trust estate.” purpose of this chapter is

protect other per creditors and interested potential squandering

sons from of an in

mate’s estate while he is incarcerated. Pender, 846,

Berdella v. 821 S.W.2d 850 (Mo. 1991). banc Missouri, Respondent, STATE of 1990, 24 chapter Prior to 460 contained to require sections and been construed BARTON, Appellant. to be able to appointment of trustee Walter judgment obtain valid in a suit No. SC 87859. property. attacks an inmate’s See Lock Missouri, 367, Supreme Court of Middleton, hart v. 863 S.W.2d En Banc. 1990, however, the leg (Mo.App.1993). chapter 460 in its entire repealed

islature Dec. 2007. ty sections 460.100 and reenacted Rehearing Denied Jan. result, case law that 460.250. As chapter version based on former See, precedent. e.g., no longer proper Mason, Ins. Co. v. Family

Am. Mut. degree

first for the October murder Gladys Kuehler. Because the death penalty imposed, Court has exclu- appellate jurisdiction. Const., sive Mo. V, art. sec. 3. Affirmed.

I. In March changes numerous venue, mistrials, two a trial and convic- by tion followed a and by reversal remand Court, Barton, this State 936 S.W.2d 781 (Mo. 1996), banc a second trial and convic- by tion followed an affirmance Barton, (Mo. Court, State 998 S.W.2d 19 1999), banc and a prolonged Rule 29.15 proceeding in which the motion court va- cated the conviction state and the took no appeal, the case for went to trial the fifth trial, time. evidence at which is light viewed in the favorable to most verdict, 21, id. at is as follows: victim, years old, who was 81 manager of a home park mobile in Ozark, Missouri, in and a trailer lived she morning there. On owned October Horton, Carol another resident of park, went to the victim’s trailer to assist because infirm her she was and un- able to move about without the use of a cane. Horton left for a for shop while the victim and to her mail and retrieve at about returned 11:00 a.m. When Horton time, victim saw the at that victim was a sitting daybed kept living on she her room, and she was “doing looked like she okay.” Columbus, Unger Carlyle, Elizabeth day, appellant Around noon that came to Appellant. Appellant regularly Horton’s trailer. fre- Nixon, Gen., (Jay) Jeremiah Atty. W. quented park, had but Horton not seen Starnes, Gen., Richard Atty. A. Asst. Jef- week, him in a and told her he City, Respondent. ferson living had He was in been his car. a mood, “happy-go-lucky” talking and “danc- LIMBAUGH, JR., N. STEPHEN ing around” to radio music Horton’s Judge. He stayed trailer. at Horton’s until Barton, Appellant, p.m., Walter was convicted around 2:00 when he said he was County jury going Cass of murder the victim’s to see if the trailer had $20.00, sink. He said he been him he re- him the victim would lend later, washing his working in a a car and was about 10-15 minutes still turned told, ten spent about good mood. hands. All Horton minutes or so the bathroom. peo- several p.m., Between 2:00 3:00 however, noticed, appellant’s also ple contact with the victim at now, changed, and instead mood had wife, his Teddy Bartlett and trailer. before, dis- being jovial as he was he was Strahan, all residents of Sharon former hurry. in a He asked her tant seemed 2:00 park, trailer visited victim around the “Fast Track” if she take him to would until p.m. stayed sometime around not, car, could get but she said she there, Dorothy 2:45. While were trail- going to the victim’s because she was Pickering, park the trailer who co-owned said, At point, er. Bill, husband, with her and who at the “No, voice, definite don’t “very strong,” trailer, cleaning park with her husband Gladys lying taking ... Ms. down pick up the victim’s trailer stopped anyway, knоcking went nap.” Horton Roy man payments. some rent A named p.m., door around 4:15 but victim’s also to a stopped by return a fan and answer, there no and Horton then left was addition, to the victim. In magazine park get her car washed. to 2:30, Selvidge, about Debbie the victim’s granddaughter, spoke called victim and meantime, called the Selvidge briefly. The all when with her visitors left p.m., at 4:00 as the two watched the victim feeling the victim she well said was every- program together same television going nap. and to take a day talking telephone. When while answer, to

Meanwhile, no went Selvidge there was appellant told Horton grandmother. trailer check on her She trailer, to going he to back the victim’s time, some but there was no knocked for Bart- and left sometime around 3:00. As answer, no and she noticed there were left, ap- lett and Strahan Strahan noticed on, unusual, lights which was because pellant standing at the driver’s side door always porch light victim left the when pickup parked truck near the victim’s Selvidge left the leaving the trailer. then talking trailer to someone inside the truck. help thereafter, park to seek from mother. Bill Shortly p.m., around 3:15 Pickering called the victim’s trailer be- 4:30, At Horton returned home about his wife said victim wanted to cause to the victim’s trailer to and went back moving talk to him about someone into the her, again but no answer check on received park. A male voice the tele- answered 6:30, knocking. Between and to her 6:00 phone, Pickering speak to with asked Selvidge park back at the went arrived hesitated, The man and then victim. trailer, asking about the victim to Horton’s said, Pickering “She’s in the bаthroom.” to telling trying Horton she been then told the man who he was and asked call the since 4:00. The two them victim to the victim call him back. have Selvidge’s then returned to mother’s house again, and try an he to call the victim when p.m.,

Around 4:00 about hour after to trailer, unsuccessful, they they still were went appellant left Horton’s returned restroom, park appellant, she to the and asked who and asked use her which back trailer, while, help neighbor’s noticed had been at a permitted. After Horton three took long again. knock on the door appellant had been in there for calling out time, knocking toilet turns on the door and and she had never heard the name, flush, appellant went over she on him and saw the victim’s so went check to the end of the trailer where telling the victim’s he Selvidge, her that was “so sor- bedroom was ry.” located and knocked on the side of the trailer. There still was no police officer soon returned to the response they so decided to contact the trailer, and after seeing the victim

police. stabbed, had been he cleared the scene ‍‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​​​​‌​​​​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌‍for help. paramedics called After ar- Selvidge

Horton and then drove rived, interrogated the officer per- those nearby square, flagged town down an present. sons He asked if officer, he police Ozark and led him back day, had seen the victim that and appellant park. unsuccessfully attempting After told him that he had seen her between 2:00 trailer, enter the victim’s officer and 2:30 that afternoon when had asked locksmith, called for a and then left take him her to lend He said that the $20.00. later, care of аnother call. A short time victim told him she would lend him the the locksmith arrived and opened the front but money, check, would to write a have door, Horton, and Selvidge, and appellant which she would do in the day. later Ap- entered the trailer. pellant claimed that was the last time inside, Once called the victim’s However, been he had there. name, but Selvidge received answer. spoke later with Highway Patrol investi- started to walk hallway leading down the gator him and told that he was the one to the victim’s bedroom when who telephone answered the call that Bill said, Debbie, “Ms. don’t go the hall. down Pickering made at 3:15 afternoon. Debbie, go Ms. don’t down the hall.” Sel- that call Because occurred between when vidge noticed that the victim’s clothes were the victim was last seen alive and when in the bathroom the stool and that the dead, she found was the officers took ap- toilet lid up, was which was unusual. She pellant into custody. then lights turned in on the victim’s point, At that the officer noticed what bedroom and screamed as she found the appeared be blood on elbow and victim, nude,” “practically on lying shirt, of appellant’s shoulder and floor between her bed and The closet. responded that he gotten had blood on times, victim had been stabbed numerous him he slipped pulling when while Selvidge with her throat cut ear-to-ear her and with away body. from the Selvidge, victim’s eviscerating intestines from of her some however, reported had not gone that she Selvidge wounds. started to bend down to feet, past the room the victim’s that she victim, Horton, touch the but had who clothes, nobody had no blood on her followed Selvidgе down the hall to the room, that appellant fallen and bedroom, Selvidge told her to do so. and Horton had remained behind her while hall, then pushed past went back into the she the room. also was Police noticed Horton and appellant, following who was Selvidge neither nor Horton had Horton, and went back to the room. living them, blood on victim’s blood on Horton, see,” Appellant said to “Let me dried,” was “pretty floor well as if it and looked over Horton’s into the shoulder while, had been there for a and that there victim, at got bedroom the but he never was wet slip blood to where the body close to the or the blood were in the room. standing witnesses Appellant get upset bedroom. did not victim, calm, upon seeing investigation but scene remained also re- emotion, showing no and went when he vealed that there was blood on the sink of room, living back into the he “comforted” the victim’s on a table in the bathroom and wounds), as twice bathroom. The victim’s checkbook was terized defensive arm, twenty-three times in back Although regularly found. victim en- left back, in the left flank. every her check the and three times tered check she wrote in register, entry large check at least two slash there was no There were neck, one of con- missing. # Several wounds across which 6027—that check was scene, also two X- from the the bone. There were knives also were seized tacted abdomen, to the including part of a set that slash wounds shaped one was one which the victim’s small facing through was cleaner than others and block, Internally, the vic- protruded. and anoth- different direction intestine collаpsed, and one of her drainage lung er knife was later found in a tim’s left of the attack. Although none these knives ribs fractured from the force ditch. were weapon, exsanguination due positively identified as the murder cause death was primarily to the wounds to her neck as examiners did exclude those weapon. the murder well as the numerous other stab wounds. knives as one force There was also least blunt days murder, young Three head, and some injury the victim’s girl up cleaning along nearby trash injury genital bruising to the victim’s highway with a from group her church to the conclusion area that led examiners check, missing found the # when she sexually victim was assaulted. that the up folded in a ditch. The discarded murder, appel- day point the mur- after the check was dated same At some payable der and lant in the Lawrence made was incarcerated Handwriting analysis jail, inmate Allen County confirmed where Katherine $50.00. serving victim had meals everything trusty, serving written on was as a time, doing laundry. check. From time to she appellant argued, more than on appellant’s clothing Tests conducted occasion, her, one threatened there revealed that was human blood on jail her if what he asking she knew shirt, jeans, boots, blue and and DNA for that kill her “like saying he would appel- tests conducted on the blood from lady.” he killed that old shirt it lant’s showed that was the victim’s testify, A four spatter expert blood. blood testified did not but called Appellant park that the trailer appellant’s some the blood found on witnesses: A resident of shirt, as well two on who that had dinner with spots appellant’s as testified she jeans, night the murder and appellant were сonsistent with stains created on the him; Highway did see two “medium-to-high-energy impact,” not blood ejected the of whom testified meaning blood was from the Patrol criminalists —one by a hair on the victim and one energy” source blow “transfer of that a found rubbing up in the did not exhibit the simply against not al- found bedroom hair— appellant’s as ready-present blood. same characteristics positively the other who could An autopsy conducted the victim re- one the as the identify seized knives in vealed she was stabbed well excess Highway and a Patrol- weapon; murder times, including being twice of 50 stabbed in man who testified “inconsistencies” in through open right eye her and once the testimony regarding Allen’s her Katherine neck, eyelid, left twice the eleven times him. statements to chest, times in the left side of three abdomen, pre- chest, During phase, the state penalty four times right (charac- appellant had been left hand sented evidence twice to back 1) felony two prior convicted of offenses: to be light viewed most favorable to Barton, assault with intent to kill with malice verdict. State v. 998 S.W.2d aforethought robbing gas recap station at 21. A of the evidence this: The gunpoint and then assaulting the appellant’s female victim’s blood was found on hitting clerk by murder, her over the head clothing night with a of the and a 2) can; foil paint spatter expert assault the first blood testified some of degree assaulting gro- another female blood stains were created cery during store clerk attempted ejection” another “forceful of the victim’s blood in robbery. addition, appellant’s state also recalled Debra рresence. appel- In Selvidge presented impact who lant victim tes- made inconsistent statements to the timony. Appellant friends, police, called two telling them that last time he originally whom through prison he met saw the victim was at her trailer between wife, ministry, and his murder, whom he met 2:00 and on the day 2:30 through “pen organiza- an inmate friend though he later admitted he received tion,” all of whom testified about the effect call telephone Pickering from Bill executing trailer, have appellant would on their the victim’s which was made at 3:15, lives. appellant well originally said he change left. His mood before and At penalty the conclusion of phase, murder, spent after the time he undue findings made affirmative on all bathroom, at the sink in Horton’s his state- statutory three aggravating circumstances ment go to Horton not to to the victim’s submitted —that murder outra- trailer, and his Selvidge insistence that geously wanton and vile go hallway, down the are all further indica- prior had two assaultive criminal convic- Also, discovery tions of guilt. tions—and recommended a sentence of check, disposed-of which had been made death. jury’s accordance with the ver- out to but appellant, had not been entered dict, the court sentenced register, in the check is an indication that first-degree death for ap- murder. This appellant tried to rid himself of evidence peal follows. tying Finally, him to the murder. there that appellant admitted the II. crime testified that when Katherine Allen presents Appellant points fifteen relied kill her “like threatened to on, which will be addressed in turn. lady.” killed even that old But without admission, that guilt of evidence 1. support more than sufficient to the verdict. first claim The is that “the evidence was insufficient to show [appellant] com eye mitted the offense in the of absence

witnesses, evidence, physical credible Appellant’s point, point or second and attention, inculpatory credible of state which he devotes the most is ” gist ments Barton.... The that Jeopardy Mr. the Double Clause should argument, is of this explains, precluded that have the retrial case presence at the of an prosecutorial “[m]ere scene offense because of misconduct previous is insufficient to sustain a conviction ... claim trial. This centers around Allen, [and][e]ssentially, that is the state can whom testimony all Katherine produce contrary, “jailhouse here.” To the there as a snitch.” describes which, noted, noted, ample guilt, although evidence of as As affirmed the is this Court

701 a for moving into the defendant goading the second and sentence conviction of “sub- the intent and with court mistrial trial, post-conviction motion by the afforded” verting] protections 29.15. a new trial under Rule granted now asks this Court relief, Appellant denial of all on a clause. grounds based 1) a Kennedy preclude that prosecutor Oregon v. process, due were extend mistrial, Allen’s full to disclose Katherine in the absence of a failed retrial even 2) aliases; history criminal make no difference arguing it should tes- misconduct perjured “failed to correct that would prosecutor prosecutorial only been that she had timony” Allen not discov- resulted in a mistrial was have bad of passing fact, of six counts fed- convicted In sevеral until after trial. ered custo- from escape ap- checks and one count have taken this circuit courts eral Cotton, also had convict- dy See, when fact she been States v. proach. e.g., United counts of forgery, (7th ten Cir.1997); of ten counts 805, ed Unit- 130 F.3d 806-08 conversion, one theft, (1st one count of 304, v. F.3d Gary, ed States 74 314-15 3) fraud; of credit card count Wallach, Cir.1996); United States another failed to disclose that prosecutor Cir.1992). (2nd 912, Judge As F.2d county in a forgery charge different it put v. Cation: Posner United States request. the prosecutor’s dismissed at been to cases which the defen- Confined also The motion court determined goaded a mistri- moving dant is into “critical” in that these failures were al, the motion granted whether adequate- counsel prevented defense from denied, Kennedy prosecu- would a leave Allen, result, and, ly cross-examining as an unimpaired tor with incentive to com- probability” there was a of a “reasonable mit an error that would not discover- be different result at trial. After remand ed until after the trial hence could court, the trial a motion filed for a for a provide the basis motion rely- jeopardy dismiss double grounds mistrial, yet effectively as stave would ing on the motion court’s of fact findings acquittal thus preserve off an and conclusions of law. motion was perju- possibility Suborning of a retrial. overruled.1 can be ry good example. would be a It argued prosecutor that if the commits 1982, uniformly Until courts had purpose covert error for the same held that the Jeopardy Double did Clause error might open committed an have prevent a retrial where a defendant mistri- calculated tо evoke a motion for a sought and obtained a mistrial or reversal (before un- Kennedy made this tactic al appeal. of his conviction on Oregon prevent an ac- profitable namely, Kennedy, 675-76, 456 U.S. 102 S.Ct. — (1982), however, quittal preserve possibility and so L.Ed.2d 416 if the error plurality retrying the defendant even Supreme Court held that in a the Double result Jeopardy is sure to be discovered and precludes Clause di- prosecutor retrial when the deliberately reversal of the conviction either engages in purpose appeal misconduct the on collateral attack —the rect or briefs, appel- a motion with the case. From a close review of filing 1. Before filed briefs, transcript supplement appears the record with the the that he never cited lant’s it post hearings relief and the of the conviction findings transcript the fact PCR but objected ground that the tran- state on the of law entered the motion and conclusions support the script was offered in never Therefore, the motion overruled as court. is the This before trial court. motion dismiss moot. supplement the motion to Court then took jeopardy protect double clause quired should trial new because there was a against being defendant retried. probability reasonable that outcome different, would have been it does not nec- 130 F.3d at 807. essarily follow that prosecutor en- However, Judge Posner, drawing on gaged in purpose the misconduct for the Wallach, United States then cautioned avoiding acquittal an or that he believed at that prosecutor must have the intent of the time of the that misсonduct an acquit- subverting jeopardy double protection: tal was forthcoming. The motion court For it is clear that a defendant who findings made no on that point, and the (or wants the district court this court on appellant presents no evidence in support appeal from an ruling by adverse of it other than an inference from the court) district to block a retrial on the misconduct itself. But the fact of the prosecutorial basis of error must show prosecutor’s misconduct alone does not prosecutor that the committed the error prove prevent his intent an acquittal, thought because he that otherwise the much less that that an acquit- believed acquit would and he would there- occur, tal was likely and his misconduct fore be barred from retrying the defen- may just well as be attributed to poor dant. It not enough that there was judgment. all, After even without Allen’s error; an it is not enough it was testimony, there was ample evidence of procured committed prosecu- guilt prosecutor so that the likely would be tor; enough it is not was that it deliber- confident especial- of a conviction. This is misconduct; prosecutorial ate it must ly true considering positive DNA in addition have been committed for match on appellant’s of the victim’s blood that, purpose preventing acquittal an clothing, which was evidence was not even enough there was evidence to if The record available at first trial. convict, likely prosecutor re- if support the conclusion simply does Any greater misconduct. frained from prosecutor prevent an intended Kennedy be left to the extension of must rеason, acquittal, for that the Double Court, in the danger view of Supreme Jeopardy Clause prevent does not retrial adding jeopardy every a double tail to of the case. appellate-reversal dog. (second added)

Id. at 807-08. emphasis

(internal omitted). citations As the Wal- lach explained, court further the miscon- point, appellant For his third as undertaken duct must be prosecutor in denying serts court erred prevent acquittal, an but to simply “not appellant’s motion for mistrial when a law prevent an acquittal prosecutor enforcement officer testified that likely believed at the time was to occur in questions had refused to answer after be Wallach, of his absence misconduct.” ing given warnings. Miranda This tes 979 F.2d at 916. claims, timony, appellant violated his con against Supreme right

Even Court stitutional self incrimination. should adopt Oregon dispute this extension to v. Kenne The officer arose when the dy, asked, you anything this case has not met ask Mr. Barton “Did required shirt?,” showing prosecutor concerning stain on his and the intended to subvert jeopardy double pro “Well, officer responded, yes. At that Although tection. point, motion court deter he he said wasn’t answering ques mined prosecutor’s misconduct re- tions.” objected, Defense counsel the ob-

703 Thus, ap- sustained, it is that ad- the courthouse. clear jection was and the court least, was, custody to the time jury, stating, are at at pellant monished the “[Y]ou comment the wit- disregard the last from questioning. At

ness, being, yes. comment “Well testimony was that Assuming answering he point, that he said wasn’t appellant’s reference to impermissible an disre- You are instructed to questions.’ silence, no of discre there still was abuse then Defense gard that....” counsel the motion for mistrial mistrial, overruling tion took moved for which the court granted adequate the trial court the exami- because Resuming under advisement. objection ad nation, by sustaining the appellant asked if relief prosecutor got disregard officer he to the testi monishing jury “ever” told the how (which an unstat- prevent blood on clothes was This mony. was sufficient pre-Mirandized pre-arrest, ed reference to on this state jury fixating from isolated ‍‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​​​​‌​​​​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌‍that replied and the officer questioning), ment, follow the jury presumed as the is got him that he the blood appellant Forrest, told v. 183 instructions. State court’s ei- helping pull clothes he was 2006). when (Mo. 218, banc Howev 229 S.W.3d Selvidge away Horton from ther or er, remedy that this was appellant argues body. eventually The court over- victim’s insufficient, court primarily because the for mistrial. The stan- ruled motion testimony by stating it to emphasized the dard of review is abuse of discretion. verbatim, aggravating thus (Mo. 857, Goff, 129 S.W.3d 866 State guilt problem, and because 2004). banc overwhelming to not so overcome was any contrary, To the Ohio, 618-19, 610, prejudice 96 caused.

Doyle v. 426 U.S. 2240, (1976), prosecutor was prejudice minimal. 49 L.Ed.2d 91 held S.Ct. statement, silence, request to elicit the attempt reference a defendant’s did ques- an refusal attorney, appears to answer have been volunteered which tions, witness, after arrest- the defendant has been prosecutor and the did given is warnings, ed and his Miranda from attempt argue inference later held, warnings, Doyle error. car- Miranda fact, prosecutor it. backtracked ry implicit an will “assurance that silence he was and elicited the information that 618, carry penalty.” Id. at 96 S.Ct. actually pre-arrest, seeking appellant’s — 2240. in this case Arguably, testimony got that he pre-Mirandized statement answering “said wasn’t or Hor pulling Selvidge on his shirt blood trigger questions” Doyle. does not In this away body. victim’s ton from the that although state maintains hid way, was any inference ques- at had been Mirandized the time of by not failing cooperate ing anything or tioning, there is no evidence that he answering questions greatly diminish arrest, under and as this noted Court reasons, appellant cannot ed. For these (Mo. Mahan, 971 S.W.2d State prejudice from probability a real show 1998), “Doyle expressly limited banc the failure to mistrial. declare the use of silence ‘at the time arrest warnings’” Id. receiving Miranda Doyle, at 315 at (quoting U.S. point 2240) claims four added). Appellant (emphasis Appellant S.Ct. in preventing [de trial court erred interrogating “[t]he testi- relies officer’s jurors questioning from ap- counsel mony questioning, fense] the time concerning during voir whether taken to dire pellant had been “secured” and would be mitigating impose regardless able to consider cir- the death penalty finding Furthermore, cumstances after that the evidence mitigating circumstances. in aggravation penal- warranted the death prevent at no time did the court de- ty.” The court issue arose when the trial asking jurors fense counsel from following question disallowed the ad- they mitigating whether would consider juror dressed to number 33: circumstances. There was no error. juror. The you State has found as a

You guilty have found someone of mur- degree. der in the first You have found Appellant requests plain next error aggravating circumstance. You have review of the trial court’s admission of found, juror, as a that all the evidence spatter grounds blood evidence on the penalty. you warrants the death Could expert witness the state called “was go stage give meaningful the next possess expertise shown sufficient to verdict, consideration to life a life im- opinions offer the he to which testified nor prisonment parole without verdict? used proper have scientific methods to The court responded: opinions.” form It wonder that

It is not an accurate statement object did not the admission you get law for them to make that expert’s qualifica this evidence or to the sort of commitment. You them get can’t methods, tions the expert because was say you already evi- decided that the expert’s qualifica Those well-qualified. dence penalty the death methods, warrants tions and as documented say you then vote death would for the and summarized in the state’s record brief course, penalty. Of would.... are as follows: The exchange, expert] context of this and the that he cur- testified was [The apparent purpose of defense counsel’s with crime rently the Madison lab of the question, was to determine whether Department Wisconsin Justice after jurors automatically serving years would vote for the fourteen with the Kansas penalty. prosecutor previ- death City Department Police crime lab. He ously explained if jury unanimous- degree physics received bachelor’s ly determined that the aggravating University, circum- from Purdue an engineering death, jury university, stances would then took a warranted cou- years graduate-level have cir- mitigating ple then to consider the worth of joined imposing physics cumstances sen- until he before death courses point Department court’s Justice crime implicit tence. California objection, then, August year that defense lab in 1972. In his second counsel’s lab, question step juror assigned to the omitted a re- at the California he quired section, serology consid- with the instructions —the concerned blood, mitigating eration of from circumstances— identification of often stains which, ironically very section, is the clothing. concern of While in that complains. which now The trial training also received crime scene reconstruction, question posed processing court was correct that the which in- accurately training recogni- would not discover those venire cluded in bloodstain impose being identify stains automatically members who able to neces- would tion— recognizing as sary analysis as well penalty the death because that determina- created. learning how those stains were While tion cannot be made without lab, experience with jurors automatically whether those would with that he had the the results of patterns, interpreting experimentation, bloodstain creation a as to training until to draw conclusion experiments not receive formal but did City type pattern of is to the Kansas lab. a certain moving whether preeminent type spatter he with two of the blood studied with a of consistent interpreters in pattern that bloodstain as such. eliminated evaluating blood creating field in omitted). (internal In view of citations training spatters week-long at a course. error, record, plain or was no there pub- had not had articles [he] While is otherwise. The claim frivolous. journal in a forensic on bloodstain lished evidence, he had trained other pattern in spatter criminalists blood evidence for that Appellant next claims 5-6 He also mentioned books years. admitting “in the for erred plainly court

that had blood regarding he studied testimony mer which of Sharon Strahan spatter part evidence as of his education to a she Mr. Barton and referred identified the field. He testified that had objection to which an had been lineup as expert an qualified been as witness trial, time of witness By sustained.” spatter field of blood evidence died, a tran part had so Strahan He that he other court cases. testified testimony read of her former script working spatter with been blood objected, into Defense counsel evidence. since he first encountered it evidence however, testimony portion of her that 1974in the California crime lab. photograph lineup which regarding evidence, spatter As field to the of blood ground on the she identified testified that blood spatter [he] been Be lineup had not disclosed. type staining pattern of which creates anything not locate cause state could applica- smaller bloodstains due to the lineup, proving disclosure of the court energy tion to the source of blood. prior of her testimo portion ruled He spatter recogni- testified that blood lineup read ny would be regarding generally tion accepted scientific por the state redact that directed principle, spatter with other blood ex- However, transcript. tion of the the testi nation, perts throughout which re- jury, as then read to the included mony, lied experimentation and observation stating, “So question on cross-examination its He reach conclusions. testified identification, your you did you when made processes creating blood clothing?” it based on his which make patterns, peer stain with review for the answered, ‘Yes, ma’am.” Be the witness purpose recreating the conclusions object did not this testi cause process, from reached was done plain appellant again asks for error mony, country “very throughout and was which, 30.20, review, requires a under Rule steps He common.” described injustice or miscar finding that manifest field, in the scientific method used a trial riage justice resulted from court observing existing which included blood- error. stains, using coupled that observation redaction of claims Appellant understanding of principles with an purpose its transcript failed achieve the mechanics of fluids and how such as lineup excluding pretrial pressure react to force cre- question was worded “when theory as because ate a to how those stains were your refer- created, you made identification.” This testing theory experi- "with contends, “clearly ence, informed attempting to recreate the stain ments this jury that Ms. Strahan had previously prevented trial counsel from emphasizing However, jury identified Mr. Barton.” that Ms. had ‘Allen’ committed question involving makes numerous criminal acts prior no reference to a dishones- ty.” disagrees. This Dishonesty Court photographic lineup, mеrely but her identi- very question, heart of crimes in fication of on observing based and once the witness admitted to the com- event, him. appellant could not crimes, any mission of those further ad- prejudice, have suffered much less mani- mission she in was dishonest commit- injustice, fest because the witness’s identi- ting the crimes have essentially would fication was cumulative to other evidence Moreover, been in closing cumulative. ar- placing appellant crime, at the scene of the gument, defense counsel drove home the especially the evidence that point that Ms. Allen’s criminal acts were answered telephone the victim’s at 3:15 dishonesty, acts of stating: reason, p.m. appellant’s For the same is a who [Ms. woman her Allen] entire related claim—that Ms. Strahan’s in-court life apparently portrayed has herself as testimony identification should have been banks, people, other has lied to has lied suppressed prior because the lineup had merchants, has every- lied to almost not been disclosed—also fails. is, body who about she what the avail- ability are, funds what sort of 7. ability payments, has to she make Appellant argues next gets she herself trouble after trouble plainly court erred in preventing de scheming, trouble. This is a con- fense cross-examining counsel from Kath niving person, sort and the State erine concerning Allen the nature of the knows it. crimes of which she had been convicted so circumstances, Under these there was no testimony as “to elicit that these crimes limiting abuse of discretion cross-exami- untruthfulness, involved which was rele nation, injustice. nor manifest vant credibility.” to Ms. ‘Allen’s’ After defense counsel established on cross-exam ination that Allen Ms. had been convicted Appellant’s eighth claim is that the trial fraud, thirteen for forgery, times bad plainly submitting court erred Instruc checks, like, asked, and the then counsel 15, patterned tions 14 and after MAI-CR you you “So lie who about are order to 313.44B, 3d respectively. 313.42B get something value?” The trial court jury These instructions direct the on its prosecutor’s objection sustained the to the consideration of aggravating mitigat question, reasoning impermissible that it is ing penalty phase. Ap circumstances inquire about details of witness’s pellant’s argument pattern in prior Ordinarily, scope convictions. “improperly prevent[ ] structions cross-examination is a of trial matter court giving from full to mitigating consideration Isa, discretion, 876, v. State 850 S.W.2d repeatedly rejected been evidence” has (Mo. 1993), 896 banc but this claim because See, e.g., Clayton, this Court. State v. 995 was not included motion new (Mo. 1999); 468, S.W.2d 478 banc State v. trial, appellant again plain asks for error (Mo. Kinder, 313, 942 S.W.2d banc 333 injustice review under the manifest stan Wise, 1996); 494, v. State 879 S.W.2d 518 dard of Rule 30.20. (Mo. 1994). Although appellant banc con

Appellant’s exact claim is that lim- of Penry “[t]he tends that the recent cases Johnson, effectively itation on cross-examination 532 U.S. S.Ct. going I to ask At am (2001), Q. point, this Abdul-Kabir L.Ed.2d 9 — that are not portions Quarterman, -, you to read 127 S.Ct. U.S. (2007), 1654, 1664, bracketed!.] require 167 L.Ed.2d 585 propriety reevaluate Court exchange objection to this There instructions, appellant concedes all None- improper. it was not at because unique are to the both cases addressed “This em- theless, now claims: in penalty phase of Texas procedures the Mr. Barton’s the redaction of phasis on To struction scheme. the extent these reading than was almost worse statement Missouri, nothing do they to apply cases to jury It the begged the itself. statement requirement reemphasize than the more the brack- speculate on what other horror must penalty phase that instructions the The record might contain.” portion eted provide meaningful consideration prosecutor not otherwise. The did reflects The instruc mitigating present evidence. the portions that the statement suggest so, and no further point do the merits tions to information that was harmful contained attention. improp- that was appellant, or information er, only the information was not but that 9. innocuous. relevant. The statement was nine, plain point asks is frivolous. point the to error relief because trial court failed jury to sponte instruct!] “sua the disre- a gard prosecution’s the statement ten, supported by Point which is [appellant] transcript of an interview with argument, is that only cursory “[t]he a concerning previous a crime had been re- failing grant to plainly erred in trial court prior being jury.” to read to the dacted suggested, when the state mistrial Appellant maintains statement “[t]his penalty phase, the argument at final encouraged and the improperly allowed to sentenced death Mr. Barton should be jury speculate missing.” on what was crimes.” past as for his punishment however, This argument, grossly mischar- penalty phase the state’s witnesses Among penalty acterizes the record. In the first three testified were ladies. phase, prosecutor the had a law enforce- as 1976 conviction for appellant’s about portion ment witness read a non-redacted woman, testi the second saulting another offense appellant’s prior confession to victim of an assault fied as the actual kill, of assault with intent and exact third, Debbie exchange this: impact about the Selvidge, testified [Witness], I Q. going you am to hand family. During clos death on victim’s have talked again, Exhibit we said, ing argument, prosecutor we in here about [it] about before came crime, someone commits “[W]hen you reading here. possibility individual, to that happens matter what Yes. A. punished. one that’s that’s not the Q. portions And are there certain are punished that are Actually, people going are read because that we have back here who three ladies these what we are they are not relevant you testified and told up here and walked ” today. about here At feelings.... point, defense their A. Yes. prosecutor offered objected, counsel And recall that? Q. you statement, do the court sus withdraw instructed the objection Ido. tained A. jury disregard the statement. take your jury, Defense chance with a and the mistrial; then, did request job concerned, counsel there- I as have as far I’m fore, plain review is under the is to to it see is conducted error/mani- injustice fairly. fest my rulings pretrial. standard Rule 30.20. I made I about, I have no concerns as far as am Initially, questions this Court whether concerned, trial, the conduct of this prosecutor’s comment crossed the line went, way way that it the evidence it because is a stretch to say went, way jury selection process prosecutor’s brief comment suggested that went, jury the way was permit- should sentence evidence, ted to consider the and then to death past Regardless, for his crimes. what appro- consider believed to be impropriety was corrected when court priate. objection sustained the and admonished Court, So the the al- considering brief, jury. vague, comment was ternatives, to sentences Defendant gives and isolated to and reason criti- injection. death lethal cize trial judge failure to declare a sponte. mistrial suei There no mani- statements, contends, was In these injustice. fest explicitly accep- “the trial court based its jury’s

tance of sentencing recommen- 11. dation on the fact that Mr. Barton had refused a plea bargain offer.” Defense Appellant next “[t]he claims that trial object, again, counsel did so once re- court in sentencing erred Mr. Barton to plain injustice view is for rejection plea death based on his of a error/manifest under 30.20. Rule bargain agreement....” In pronouncing sentence, the trial court first stated that sure, be To is correct jury this was third time a had recom- may that a court not increase a defen a death mended sentence for this crime dant’s sentence because the defendant ex and that it had struggled with the decision right jury ercised his to a trial. As the many “for reasons.” The court then com- it, Eighth put defen Circuit “whether a mented: dant right exercises his constitutional to know, Barton, you

[Y]ou Mr. on the by jury trial to guilt determine his or were an given opportunity record to must no bearing innocence have on the yourself take care of before the States, sentence imposed.” Hess United started, State, fact, and Cir.1974). 936, (8th also, 496 F.2d 938 See say you: did to You know what? We Sales, United States v. 725 F.2d you will waive death if will a plea take (8th Cir.1984); State, Thurston to a guilty pa- sentence of life without 893, 897 (Mo.App.1990). S.W.2d But the role, you reject to made decision different, again, ap case here and once your the State’s offer and take chances pellant Un mischaracterizes record. jury go with the to trial.... is a [I]t cited, comments, like the cases the court’s day. difficult that no I judge One know context, did show the court was face, ever to I wants to have am punishing In going to trial. you sure don’t ‍‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​​​​‌​​​​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌‍either. merely stead to responding the court was But that you request disregard jury’s extent made the the defense picked jury, before it it pointing decision we was recommendation out that opportunity you an at least that de appellant’s jury wish to have the away, go you make this chose cide his and that fate had reached Under misconduct.” prosecutorial an decision on the sentence appropriate procedure words, mandatory independent review alter a fair trial. other 565.035.3, RSMo out in section jury’s set simply deferring court was decision, this Court must determine: with the defendant’s consistent Al- jury try his (1) to have the case. desire death sentence of Whether the though appellant complains also passion, influence imposed under the decision, jury’s factor; the trial deferring arbitrary other prejudice, abdicating “to responsibility court was its independent proper of the

exercise review (2) supports the Whether the sentence,” clear that it the court mаde statutory judge’s finding jury’s or considering imposed “after sentence as enumerat- aggravating circumstance was no manifest alternatives.” There 2 of section 565.032 and ed subsection injustice. found; any other circumstance

(3) of death is Whether the sentence the pen- disproportionate excessive or cases, consider- alty in similar imposed point “this twelfth is that Appellant’s crime, strength ing both the review proportionality Court’s scheme of evidence and the defendant. requirement of comply does not with the 565.085.3(3) this deter- that Court [section] review independent proportionality This whether the death in each mine sentence by legislature as an addi- designed “is to disproportionate case is or ‘excessive arbitrary and ca- safeguard against tional penalty imposed similar cases....’” promote and to pricious sentencing specific argument pool is that the evenhanded, impo- rational and consistent is comparison improperly cases for select- v. sentences.” State Ram- sition death ed, by are the method which the cases (Mo. 1993). 320, 328 banc sey, 864 S.W.2d from pool permit selected that does words, designed prevent In other it is ability” why “meaningful pen- show of the application “freakish and wanton alty disproportionate, and that this is penalty.” Id. death Court “fails use methods” adequate first two Appellant does not contest the cases. This Court has re- comparing the is proportionality review. There prongs rejected peatedly these same claims. See was im- indication that the sentence State, e.g., Lyons 39 44-45 S.W.3d passion, prej- the influence of posed under (Mo. Barnett, 2001); 980 banc State udice, impropriety, other and (Mo. 1998). S.W.2d banc fact, the state’s record reflects that point is denied. argument of evidence and presentation straightfor- during guilt phase were Likewise, dispassionate. and ward supporting that the evidence Appellant next that even record shows claims jury’s finding aggravating circum- review the proportionality under the method As not- preceding more than sufficient. of in the stances was complains that he ed, established that here must be state point, death sentence “[t]he assault dispro been convicted of with previously it is and vacated because excessive aforethought with malice intent to kill imposed other simi portionate those second, charge of unrelated guilt is convicted of lar ... in that evidence of cases addition, sentence, degree. in the first a death assault support sufficient murder was “out- prejudiced proved has the state and Mr. Barton been rageously optical wanton vile” because for in business.” Id. Given victim was or grossly disfigured “mutilated appellant’s prior convictions for assault beyond necessary ... acts that to cause assault, with intent to kill degree and first her death.” Chaney’s altogether situation was different indeed. appellant’s

The first basis challenge prong the third is the evidence sup- Appellant’s second basis for the weak, porting the conviction was in that challenge is a consideration of defen the case was largely based on circumstan- dant, himself, as mandated the statute. tial evidence the only direct evi- For stated, however, the reasons testimony denсe—Katherine Allen’s about must take different that in course than appellant’s admission—was not credible. Chaney. Although appellant acknowl up The dissent argument, follows on this edges the penalty phase evidence contending that v. Chaney, State mitigation was “sparse,” he maintains that (Mo. 1998), S.W.2d 47 compels banc additional and significant about Court to reduce the sentence from death background defendant’s troubled diffi prison to life in strength because the cult upbringing that during was introduced evidence, even if support sufficient to penalty phase at the earlier trials should conviction, is support not sufficient to be Despite considered here. fact death penalty. contrary, To the cir- this evidence was not introduced strong, cumstantial evidence was placing hand, trial at appellant argues it appellant alone with the victim during the should be pro still considered because the small window of time which during (3:00 portionality review ex statute does not murder was committed 4:00 p.m.) However, pressly preclude implicit it. it establishing the victim’s blood in the statute that spattered appellant’s proportionality was the re clothing. despite And view be undertaken on the in appellant’s protestations evidence the testimony, about Allen’s jury, fully the record. And even if the earlier evidence record, aware of Allen’s prior considered, deemed her were it change would not Furthermore, credible all, nonetheless. State result. After the evidence apparently Chaney case, v. is distinguishable. In that made no difference in the two earlier trials confession, eyewitness, “there [was] ad- bеcause was twice sentenced mission, document, fingerprint or blood ev- death. directly pointing

idence to the defendant.” Notwithstanding appellant’s chal Here, contrast, again Id. at 60. as lenges, key to proportionality review is noted, defendant admitted that he was a comparison to other for cases which present apartment the victim’s at 3:15 death was com imposed, sentence and the p.m. spattered and there was blood on the parison appellant’s here shows that death defendant’s shirt that was undeniably the sentence was not “freakish or wanton.” mention, blood of the It victim. bears as well, This has death repeatedly upheld Court Chaney that court’s decision to depravity sentences where the of mind was penalty overturn the death was due shown the mutilation of solely perceived the victims weakness beyond evidence, necessary that death. strength also cause state’s but See, “Chaney e.g., v. 142 Strong, the fact that had no crimi- State 702 prior S.W.3d (Mo. 2004); Reuscher, husband, nal good convictions and was a banc v. 827 State (Mo. 1992); step-father, friend and he had a S.W.2d 710 banc State v. Fel (Mo. good reputation 1991). among trop, In those worked 803 1 banc S.W.2d

7H Even new trial. addition, preclude did not repeatedly upheld has Clause this Court merits, this to reconsider had were Court penalty death where the defendant See, there is no fails because history. e.g., claim still assaultive criminal an (Mo. Brooks, 479, the mistrial was caused v. 960 496 evidence that S.W.2d State Instead, Chambers, all 1997); prosecutorial S.W.2d misconduct. banc State 891 Reuscher, (Mo. 1994); 93, that the failure points 108 banc 827 the fact evidence further, merely 716-17. And this Court inadver- S.W.2d at witnesses endorse penalty murders upheld point has the death denied. tent. disabled, elderly, victims who were 15. See, Gilbert, 103

helpless. e.g., State (Mo. 743, 2003); 752 State v. banc S.W.3d Finally, claims Barnett, (Mo. 297, 310 banc 980 S.W.2d in imposing erred plainly trial court “[t]he 1998); Ramsey, at 327. 864 S.W.2d the method of death because sentence fact, previously this Court has held con Law Missouri prescribed execution imposition penalty death punish cruel unusual stitutes was not this same murder claim, however, This is not ment....” Barton, disproportionate, State v. time on direct raised for the first properly (Mo. 1999), and the S.W.2d 29-30 banc appel his Until appeal from conviction. supports the same subjected to a actually ready to lant is be conclusion. execution, carry his protocol certain out Worthington v. premature. claim is (Mo. State, n. 3 banc 166 S.W.3d 2005).

In this contends point, appellant failing trial court erred dis III. miss case because of the mistrial that granted case was when the reasons, judgment foregoing For brought Appel to trial for the first time. is affirmed. Jeopardy

lant now claims the Double JJ., prevented RUSSELL, Clause should have all sub PRICE EVANS, sequent retrials because the mistrial was Sp.J., concur. by caused state’s failure to endorse WOLFF, J., opinion separate in dissents This, he sug

witnesses on the indictment. filed. gests, constitutes deliberate misconduct J., STITH, C.J., TEITELMAN, goading the purpose for the defendant mistrial, which, WOLFF, in J. moving opinion into for a under concur (and Oregon Kennedy appel similar BRECKENRIDGE, J., not point), jeop triggers lant’s second double participating. ardy protection. WOLFF, Judge, A. MICHAEL regard to the merits of the Without dissenting.

claim, by claim is barred collateral brutal years since the It has been 16 Appellant acknowledges that estoppel. Gladys and the arrest of killing of Kuehler raised in his 1996 precise this issue was in first mistrial Barton. From the parties, and this Walter appeal featuring the same trials, completed post- through three Court, a on 1993 remanding for new trial based multiple appeals, error, necessarily proceedings, conviction trial court a different and misdeeds mishaps is trail of Jeopardy there a the Double concluded 712

that, together, taken poorly guilty, reflect trial judge declared ‍‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​​​​‌​​​​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌‍a mis- justice system. criminal trial. Barton brought

There are three was to trial in questions again at this stage April and, proceedings: 1994. He was convicted follow- ing jury’s recommendation, sen- was 1. Is there sufficient a tenced to appeal death. The of that con- jury to capital convict Barton of mur- viction by resulted in reversal this Court der? due to improper rulings objection of the If sup evidence is sufficient to defendant to prosecution’s argu- final conviction, a port murder should the (Mo. 1996). ment. 936 781 S.W.2d banc sentence of death remain intact after brought Barton was again, this Court’s review under sec. to trial in 565.0351? 1998, following June the reversal of the 3. Was state’s conduct in conviction December con- 1996. He was prompted the mistrial first trial of and, victed upon jury’s recommenda- case in along this with its subse- tion, was sentenced death. The convic- conduct, quent sufficient to invoke the tion and death sentence were affirmed jeopardy protection double that would Court; Barton, this State v. 19 S.W.2d subsequent prosecution bar of Barton? (Mo. 1999). banc I wrote a dissent on the Remarkably, all through proceed- prosecution given basis that the had infor- case, ings this that issue has never mation to local newspaper supplied been addressed this Court. killing, motive which was not getting points, Before to these a brief evidence, and which been read review of procedural history or- most venire prior trial. See der. Barton, 998 at S.W.2d 30-32. Gladys brutally Kuehler was stabbed to Following the affirmance the convic- death her trailer at Riverview Trailer sentence, tion and death brought Barton Ozark, Park Missouri, in the afternoon motion under post-convic- Rule 29.15 for of October 1991. Present when the relief, tion alleging irregularities various body discovered were Ms. Kuehler’s and constitutional violations his trial. granddaughter, Selvidge, neigh- Debbie This Court remanded the of post- denial bor, and the defendant Walter Barton. conviction relief to the trial court in an ultimately Barton charged with the State, opinion published Barton v. killing. (Mo. 2002). S.W.3d banc In addition against The state’s case proceed- Barton to remanding findings for new of fact and ed trial in April Shortly of 1993. law, conclusions of Court ordered began, objected trial the defendant be judge. case transferred to another the state had failed to endorse In January 2005, the judge, new John W. trial judge witnesses. The ruled that the Sims, guilt trial both ordered new on trial proceed granted could not a mis- phase Judge and the death sentence. request at the Bar- defendant prosecution Sims found that the had failed ton. history to the full of a disclose criminal jailhouse witness, A began many second trial in October 1993. snitch a woman of trial, day After jury several dead- aliases referred as Allen.” to “Katherine Judge locked whether оr not Barton was Sims found the state had failed 1. All are to references RSMo 2000. was the check that emphasized agreed the state prosecutor

to had disclose after Ms. Kuehler’s days found several County forgery case to have a Cass discovered, stressing that body was exchange against “Allen” dismissed Kueh- in Ms. had not been entered check testimony Judge trial. the Barton prac- as her usual registry, check ler’s relief on Barton’s asser- granted Sims also receiving a has denied Barton never knowingly used tice. the state tion anything, the Kuehler. If from Ms. The state check testimony by “Allen.” perjured simply reinforces that check existence of grant- Judge Sims’s order appeal did in- testimony that Barton Ms. Horton’s ing a new trial. trailer Ms. Kuehler’s go to tended post-conviction order Following Fur- pick up a check. p.m. around 3 the cur- recused himself and Judge Sims testimony ther, eyewitness there is no judge to hear the case. appointed rent in Ms. Kuehler’s trailer placing Barton trial, fifth and The case came to for the time of the attack. time, in March 2006. The most recent splatter ex- trial, “blood At a so-called recom- guilty found Barton stabbed pert” testified that the victim was sentence, the trial the death which mended times, “high-impact” generating numerous appeal imposed. court This follows. expert testi- splatters. That same blood case, have been The facts which on Barton’s shirt were that the stains fied including the in the various trials adduced impact wound. with a forceful consistent one, summarized in are most recent testimony regarding expert’s Based principal opinion previ- this Court’s splattering, and “high-impact” blood opinions. They ous can be referred stabbed the fact that Ms. Kuehler was here, summary fashion. times, reasonably ex- numerous one would certainly The evidence is overwhelm- be pect the victim’s assailant to covered has, years, bol- ing. The state over However, found on only blood blood. meager rather case with evi- stered its examinations was the one Barton snitch, jailhouse well as dence as If were blood on his shirt. there stain testimony. spatter” The one expert “blood boots, they apparently on Barton’s stains thing can Wal- be said sure about enough small be obliterated were Barton that he may ter well be testing. There were two subsequent DNA person neigh- to have in the known been jeans, which were never small stains on his 9, 1991, might borhood on October who Ms. Kuehler’s positively being identified as thing. have done such blood.

The evidence that links Barton testimony at trial There was particularly compelling. crime is not clothing discarded the changed Barton sup- and visit Ms. Is clothing go had worn the evidence sufficient perpe- port conviction? How could Barton have a murder Kuehler. violent, forceful attack kind of trated the Taking light the evidence in the most away walked Ms. Kuehler and that killed verdict, jury’s to the Jackson favorable quite unstained the effort? 99 S.Ct. Virginia, U.S. for the explanation an (1979), support- provided Barton the evidence L.Ed.2d 560 investigative He shirt. told as the blood on his conviction is much ing Barton’s gotten on his However, that he had blood it. I officers majority has characterized pull Ms. Sel- he bent down to identify glaring shirt when to the most would like body. The trial, from the victim’s vidge away At inadequacies that evidence. sink, soap towel agreement and Barton had used to Barton. This was not disclosed wash his hands in Ms. Horton’s trailer to Judge the defense and was a reason blood, all were for tested but none was January Sims ordered a new trial in 2005. found. The bloodstain on Barton’s shirt is testimony credulity “Allen’s” strains and only the physical any way evidence in con- persuasive cannot be considered evidence crime, necting him to this evi- of an admission Barton. is highly suspect dence at best. if majority may Even the deem this testimony state points The adequate conviction, to support evidence a Carey Maloney, expert a DNA who works strength support of that evidence to for the Highway Missouri State Patrol application of the death sentence is Laboratory. Maloney Crime Ms. testified another matter. that she was “able to determine that there sup- 2. If the evidence is sufficient jeans, was human blood” on Barton’s blue conviction, port a murder should and that she was “able determine that sentence of death remain intact human present blood was on the boots.” this Court’s review under sec. 565.035? However, Newhouse, William also state’s witness, expert testified he “found no provides Section 565.0352 that “[w]hen- blood whatsoever the boots” and that ever penalty imposed any the death is although jeans the stains on the had the case, upon judgment becoming “appearance blood,” per- he had not court, final in the trial the sentence shall formed tests those stains to con- be supreme reviewed on the record firm they were blood. if Even we court of Missouri.” As a of this re- part testimony assume that Maloney’s Ms. “[wjheth- view, must this Court determine accurate, jeans and that the stains on the er the of death is sentence excessive or blood, were is identify- there no evidence disproportionate penalty to the imposed ing the supposed source “blood” cases, crime, considering similar both the best, jeans. stains on the At these contra- strength of the evidence and the defen- dictions and gaps the state’s evidence 565.035.3(3). dant.” Section This Court call validity of that ques- evidence into Chaney noted State v. tion, worst, render only “strength component the evidence” physical utterly evidence this case in- proportionality “is review uncommon conclusive. among having mandating states statutes testimony Allen,” of “Katherine a proportionality is review. It clear from snitch, jailhouse provided evi- this mandate legislature intended alleged of an dence “admission” made Court, reviewing imposi- this when Barton. “Allen” testified that Barton penalty, go beyond tion of the death he threatened that would “kill like her inquiry mere into whether the is lady.” killed that old “Allen” is a convict- support sufficient to a conviction.” 967 ed felon whose have all crimes involved (Mo. 1998). S.W.2d banc Such dishonesty, fraud, including forgery, con- sufficiency necessary review here. use version of aliases. Also rele- Chaney argues Barton vant an invokes credibility evaluation of the guilt testimony her is the fact that evidence of is insufficient state agreed drop pending against support of the death charge imposition penal- her in exchange testimony against ty. majority summarily dismisses 2. All are to references RSMo “within a narrow case fell finding “... cir- only that the

argument, saying sufficient to strong, thе evidence is placing band where evidence was cumstantial conviction, of the com- of the crime but not support alone at the scene usually where establishing that the victim’s blood found in cases pelling nature clothing.” at 60. spattered appellant’s 967 S.W.2d was the sentence is death.” thorough a more majority conducts insuffi- was finding In evidence in evidentiary sufficiency of discussion of the imposition to warrant cient point appeal— of Barton’s first “pri- context sentence, cited Court death sup- insufficient to that the evidence was nature marily pathological” trace and ... majority describes conviction. port of evidence, noting the absence of as follows: “The victim’s that evidence admission, confession, docu- “eyewitness, clothing found on appellant’s blood was ment, direct- fingerprint blood evidence murder, spatter and a blood night of Id. ly to the defendant.” pointing of the blood expert testified that some physi- Chaney, In there was substantial ejec- created the ‘forceful stains were evidence, hair and fiber sam- including cal in appellant’s of the victim’s blood tion’ the victim had been ples indicating that addition, made in- In presence. day van the she present in the defendant’s police, telling to the consistent statements In- at 51-52. murdered. S.W.2d was last the victim them that the time he saw an “awl-like vestigators also discovered 2:00 and 2:30 on her trailer between victim’s] with wounds [the tool consistent murder, though he later day of the kit” the defendant’s repair ... a tire telephone he admitted that received However, Chaney box. Id. at 51. tool Pickering Bill victim’s call from of the this evidence “not deemed Court 3:15, trailer, which was made at well usually found in cases compelling nature had left. His appellant originally said he at 60. the sentence is death.” Id. where murder, change mood before after the Chaney arguably The evidence sink in spent the undue time at the than that damning much admitted more bathroom, Horton’s his statement to Hor- Barton, found and still the Court against trailer, go not to to the and his ton victim’s impo- insufficient warrant evidence Selvidge go insistence down penalty. of the death sition guilt. of hallway, are all further indications Also, discovery disposed-of here there is Chaney, As was the case check, out appel- which had been made eyewitness testimony or confession. As lant, but had not been entered the check above, of a so- discussed register, is an indication that of from the guilt” came called “admission tying tried to rid himself him of evidence Allen,” jailhouse of “Katherine testimony Finally, to the there murder. was evi- has been convicted of snitch witness who dence that crime appellant admitted the escape, charges, one count six bad check when appel- Katherine Allen testified that theft, forgery, ten counts of ten counts lant threatened to kill her ‘like he killed and one count of one count of conversion lady.’ old that ad- But even without exchange “Al- In credit card fraud. mission, the guilt evidence of was more Barton, prose- testimony against len’s” than sufficient to support the verdict.” pending an additional cutor dismissed the prosecu- a fact that charge forgery, major-

None the evidence cited ity is until after the second direct tion did not disclose guilt. evidence of Barton’s testimony con- Chaney, “Allen’s” this Court overturned the trial this case. that he imposition cerning alleged court’s Barton’s statement penalty, death lady” mood, had “killed that old supposed does consti- Barton’s changes discovery tute credible of an made the upon evidence admission. statements of the body and disparities the exact times only There pieces physical were two of given police his accounts to officers evidence connecting Barton victim. hardly rise to the level of direct evidence The first splatter was the blood on Bar- fact, Chaney. discussed in similar evi- ton’s Although sleeve. the state’s expert dence Chaney was admitted trial William Newhouse testified that the splat- court, including logical gaps in the defen- ter was impact consistent with with the distracted, dant’s alibi sorrowful body, provided victim’s Barton an alter- upon questioning by police demeanor offi- explanation nate night the stain. The 50. This cers. S.W.2d at evidence body Ms. Kuehler’s was discovered Barton was insufficient to convince the Court to explained the blood on his sleeve to Officer uphold application penal- of the death Merritt, Jack saying his sleeve had ty- grazed bloody of floor the trailer when Even if presented the evidence at trial Selvidge, bent over Ms. who kneel- substantially stronger, proce- had been ing body. next to the In an interview with history dural this case alone should give Officer night, Selvidge Merritt Ms. Court pause determining appro- confirmed that pulled Barton had her from priateness aof death sentence. Barton trial, body. Selvidge At Ms. altered gone separate has five times stоry, testifying that Barton had never evidentiary the same offense. In the hear- body lay. entered the bedroom where the ing on post-conviction Barton’s Rule 29.15 Because explanation of the alternate for motion, the trial court stated: the stain and the inconsistencies in Ms. clearly, “I clearly, find that the Defen- account, Selvidge’s the blood splatter does prejudiced by dant has been having indisputably tie Barton to the crime. again come back over and over because clearly the State’s case been im- has piece physical other evidence proved they time after time find because presented at trial awas check for $50 They more snitches. find I things two day murder, 9, dated the October important. think They most find more made out Ms. Kuehler Barton. snitches, they get benefit of The check was discovered a ditch three DNA, technological advantages days after the murder. The state stresses none which had. The time significance of the fact check jury got to hear a fair crack and was never entered into Ms. Kuehler’s hung. then the it is almost So checkbook. This evidence is circumstan- has unarguably [sic] Defendant tial and implicate does not necessarily has prejudiced. been The defendant Further, trial, Barton in this crime. prejudiced.” been the state admitted evidence of hair found on Ms. Kuehler’s stomach. The hair was plagued has Prosecutorial misconduct and, never identified but was found be as the outset, incon- trials from the Barton’s sistent with the hair sample taken from has allowed court observed motion together Barton. When taken with bol- opportunities state numerous prosecu- physical supposedly dubious im- its evidence. Whether ster Barton, rise to plicating may not may evidence of the unidenti- conduct tor’s required hair to invoke yet intentionality fied casts more doubt on the suffi- level ciency Oregon physical jeopardy protection evidence. the double Strahan, a state’s trial. Susan of his fifth 102 S.Ct. Kennedy, 456 U.S. v. certainly (1982), of Barton’s witness, by it should had the time L.Ed.2d 416 died the of so, into this Court’s consideration trial, and, factor of testi- transcript her fifth in strength proportion- of evidence its the read into the mony previous trial was trial, mis- At Barton’s ality review. first objected that the counsel record. Defense the prose- declared as a result of trial was lineup photo- to disclose state had failed the witnesses on failure to endorse cution’s in an interview with graphs that were used 23.01(f). by required as Rule indictment testimony. Be- to her prior Ms. Strahan hung in a second trial resulted Barton’s produce state could cause the that the evidence jury, a clear indication lineup photo- they had disclosed the was insufficient the state presented defense, the court allowed graphs beyond a all triers of fact convince all references to testimony, provided reasonable doubt. redacted. lineup photographs were trials, state In third and fourth way cross-examine had no The defense testimony of “snitch” witness used her Ms. to determine whether Strahan post-conviction Allen.” The “Katherine un- had tainted identification been prosecutor had court determined lineup, since the defense photo disclosed crimi- complete failed to disclose “Allen’s” identifi- awarе of the earlier was not made have history, a disclosure that would nal Ms. Stra- cation in time to cross-examine more defense “to conduct a far allowed the person. han in ” of Allen.’ effective cross-examination ‘Ms. trial, Following the fourth the defense not, in may iso- kind of unfairness This failed the state also learned taken lation, Barton. But have prejudiced made with that a deal had been disclose evidentiary of all of the other light testimony exchange for her “Allen” state, by the inadequacies and misconduct But after the find- against Barton. even that Barton’s question there can be court, during ings post-conviction of the jeopardized trial has been right to fair trial, fifth still elic- prosecutor Barton’s irreparably. testimony from “Allen” ited inaccurate allows this Court Section 565.035 her record. concerning criminal a defen- flexibility to determine whether examples of Beyond clear-cut these the most sen- merits severe genuinely dant misconduct, simple fact prosecutorial power impose. has the tence this state numerous reversals and errors “strength the evi- existence years and this have allowed the state case 565.035.3(3) evi- dence” clause section in which to build its case. years legislature for this a desire dences process nature undoubt- protracted of a defen- in a review engage Court to ability edly compromised Barton’s case, single consisting just dant’s In voir dire mount an effective defense. law, impression of trial, but of the total prospective points four for Barton’s fifth imposing has equity that because the state jurors justness said Barton, case, prosecuting much time spent so as Walter Barton’s penalty. death it difficult to believe he found Chaney, the ab- State was the case innocent. numerous and the of direct evidence sence its given the state build opportunities Montiel, alibi one of Barton’s

Brenda of the death application case render dead, witnesses, prior is now unjust. penalty to him at the time testimony was available prosecutorial nesses, 3. Does the misconduct even had been Oregon Kennedy in this case warrant prompted sworn. This failure the defense jeopardy protection? double to move for a mistrial. After the trial granted mistrial, court the defense counsel Oregon v. Kennedy establishes that discharge moved to on Walter Barton dou- governmental “where the in conduct ques- jeopardy grounds. ble The trial court ‘goad’ tion is intended to the defendant ruled the request that defendant’s for a mistrial, moving into for a [the defendant] any jeopardy mistrial waived double claim. may ... raise the bar jeopardy of double mistrial, request Defense counsel’s for a having to second trial after in succeeded rather a discharge, brought up than aborting the on first his own motion.” 456 appeal as an ineffective assistance of 667, 676, 2083, U.S. 102 S.Ct. 72 L.Ed.2d counsel claim after Barton’s conviction in (1982). prevent 416 This aims rule the third trial. This Court did not rule on prosecutors gaining from more time of the ineffective assistance counsel issue by build a ease provoking the defendant to and instead reversed the conviction be- majority seek a mistrial. As the cause of the trial improper rulings court’s observes, key inquiry case the an Ore- objections raised the defendant to gon аnalysis is not prosecu- whether or prosecution’s final argument. 936 intended tor to incite the defendant 781, (Mo. 1996). S.W.2d banc request a Oregon, mistrial. See 456 U.S. (“... at 102 S.Ct. 2083 a standard for Counsel the defendant also raised that examines of prosecutor, the intent the ineffective jeopardy assistance/double though certainly entirely not free from issue the amended motion to vacate difficulties, practical manageable is a stan- judgment and conviction to the submitted apply.”). majority dard to The hinges its trial for post-convic- court the Rule 29.15 rejection of jeopardy Barton’s argu- double hearing. findings tion In its fact of ment on the question, arguing intent that law, of conclusions motion court found simply record not “[t]he does support that “while witnesses were endorsed by conclusion that prosecutor intended to information, discovery the State on the reason, prevent acquittal, an for been conducted in the case and trial coun- Jeopardy pre- Double Clause does not surprised by sel was not the State’s evi- of vent retrial the case.” The dence. Court would have allowed the state majority may While the under those circumstances to en- be correct that dorse and Movant is fully witnesses incorrect in state’s failure disclose either discharge concluding was the “Katherine Allen’s” criminal record or the remedy.” The court existence of a deal denied claim. exchange made of testimony language finding implic- the court’s does not demonstrate intent question provoke mistrial, itly addresses the of majority prejudice, over- asserting that because the first trial looks an court additionаl relevant instance would have allowed the state to prosecutorial There endorse misconduct. are witnesses, prejudiced Barton was points complicated proce- least two in the prejudice the state’s error. While history require dural of this an is a case prong an ineffective of coun- appropriateness examination of the assistance ap- claim, Oregon has no on an bearing sel it plying Oregon Kennedy jeopardy v. double Kennedy jeopardy analysis. double protection to Barton. Walter April Barton’s first trial in at any stage proceedings No court prosecution failed to endorse wit- in this has ever conducted an exami- case Clause, Jeopardy protection intent the Double prosecutorial nation of the behind imagine that the evidence witnesses it also must the state’s failure to endorse but Indeed, imag- Court must denying first trial. is better than it is. The telling Allen” is discharge, April ine that “Katherine request defense’s disregarded imagine Court must also completely trial court truth. The attempt to suborn protections Oregon prosecution defendants did afforded jailhouse other Kennedy. testimony trial court ruled perjured mistrial, snitch, Arnold, Larry recanted his requested because Barton who protection jeop- testimony regarding Bar- could not receive of double previous The Court ardy. ruling only supposed fails to evaluate ton’s admissions. This error, it a out to underlying intent must check made imagine state’s away principle very at the heart found from Ms. undermines Barton and miles Kennedy. days the crime Oregon v. Kuehler’s trailer of motive or somehow constitutеs evidence preserved claim for eval- Barton has this attempt an guilt an admission of or hearing by raising in Rule uation 29.15 imag- conceal evidence. Court must jeopardy protection request for double testimony placing ine that witness Barton trial, from appeal first at the then period in Ms. Kuehler’s trailer for brief trial, following the third then his conviction day point of time at some in his to the amended motion submitted implicate murder sufficient to Barton as finally, in his Rule 29.15 motion court and imagine the murderer. The Court must this This Court now brief before Court. violently stab- repeatedly that after to remand case opportunity has this Barton, away Barton walked from the bing finding prose- for a as to the intent of the on his crime with two small bloodstains Oregon ‍‌​​‌‌‌‌‌‌‌​‌‌‌‌​​​​​​‌​​​​​‌​‌‌​​​‌​​​‌​​‌​‌​‌‌‌‍Kennedy. v. cutor consistent with little on his boots. shirt and blood so require To do would not an extension imagine that The Court must this blood merely Oregon Kennedy, ap- v. but an than it something more evidence means plication protections of its in their most does. conservative form. As the Rule 29.15 mo- why af- imagine I can the Court would tion court “... the De- observed Af- firm the conviction Walter Barton. prejudiced by having fendant has been all, jurors of the 48 who ter at least 36 again come back over and over because though it have heard evidence—tainted clearly improved State’s case has been If may voted convict. this be—have after time more time because find trial, that were not a criminal would be very It is snitches.” this situation landslide. Supreme sought States United Court prevent Oregon Kennedy apply- however, why the imagine, I cannot ing Jeopardy the Double Clause retrials approve the death sentence Court would following by prosecutori- induced mistrials sorry on this record. If al misconduct. Barton’s case does I dissent. respectfully issue, hearing

merit then Oregon Kennedy are hol- protections of

low indeed.

Conclusion result, majority

In order to reach its

of the Court must not overlook

Case Details

Case Name: State v. Barton

Court Name: Supreme Court of Missouri

Date Published: Dec 18, 2007

Citation: 240 S.W.3d 693

Docket Number: SC 87859

Court Abbreviation: Mo.