Gregory Bowman was found guilty of one count of first-degree murder, section 565.020, RSMo 2000, for killing Velda Rumfelt. Bowman was sentenced' to death consistent with the jury’s recommendation. This Court has exclusive jurisdiction. Mo. Const, art. V, sec. 3. The judgment of conviction is affirmed. The death sentence is reversed because two of the aggravating circumstances found by the jury consisted of murder convictions that were reversed and vacated on appeal. The case is remanded.
FACTS
Velda Rumfelt was murdered in 1977. There were ligature marks and a laceration around her throat. Her bra was stuffed in her mouth. A large amount of sperm was found in her vagina, which was consistent with recent sexual intercourse. The medical examiner concluded that strangulation was the cause of death. Rumfelt’s clothing was removed and kept as evidence. No one was charged with Rumfelt’s murder.
In 1979, Bowman was convicted in Illinois of killing Ruth Ann Jany and Elizabeth West and was sentenced to two concurrent terms of life imprisonment. In 2001, the convictions were vacated and new trials were ordered on grounds that Bowman’s confessions were coerced. Bowman remained in jail in Illinois until he posted bail in 2007.
Shortly after Bowman’s release from jail, James Rokita, an investigator with the Belleville, Illinois, police department, forwarded Bowman’s DNA profile to the St. Louis County police department. St. Louis County investigators compared Bowman’s DNA profile to the DNA profile extracted from sperm recovered from Rumfelt’s underwear. Bowman’s DNA profile matched the DNA profile of the sperm • recovered from Rumfelt’s underwear. ■ The estimated frequency of the DNA profile derived from-the sperm was 1 in 460,000,000,000,000. Additional testing determined that Bowman’s DNA could not be excluded as the contributor of non-sperm DNA recovered from Rumfelt’s clothing.
Bowman was charged with Rumfelt’s murder. The State presented evidence that Bowman’s DNA was found in Rum-felt’s underwear. Dr. Mary. Case, the St. Louis County medical examiner, testified that the cause of death was strangulation and that Rumfelt was the victim of a probable sexual assault. One of Rumfelt’s friends testified that she saw Rumfelt walking with an unidentified young man on the evening of June 5, 1977. Another friend testified that.she saw Rumfelt on the morning of June 6, 1977. Rumfelt’s body was discovered on June 7, 1977. The jury convicted Bowman of first-degree murder.
.During the penalty phase, the State presented testimony from seven witnesses. Two witnesses were victims of crimes committed by Bowman. Bowman filed a motion in limine to limit victim impact evidence. The motion was overruled, and Bowman’s objection was deemed to be continuing.
The State’s first witness testified that in 1972, Bowman held a knife to her throat, made her undress and then robbed her. In that case, Bowman was convicted of armed robbery, aggravated battery and unlawful restraint.
The second witness testified • that in 1978, Bowman held a knife to her throat, forced her into a car, drove off and threatened to kill her. In that case, Bowman was convicted of kidnapping and unlawful restraint.
Two police officers testified regarding their investigation of the Elizabeth West and Ruth Ann Jany murder cases in Illinois. One of the officers testified regarding his involvement in the investigation of the West and Jany cases. The other officer testified that Bowman admitted to killing both victims. Bowman eventually recanted both admissions. The jury heard that Bowman was convicted of both murders.
The sixth penalty phase witness was Elizabeth West’s mother. She testified regarding the impact that Elizabeth’s murder had on the family.
Finally, Rumfelt’s brother testified about the impact of her murder. He testified that Rumfelt was a talented young woman, that he and his sister had a close relationship, and that for nearly 30 years, the family did not know what had happened to her.
The jury found six aggravating circumstances: (1) Bowman had a history of serious assaultive convictions due to his convictions for armed robbery, aggravated battery and unlawful restraint; (2) Rum-felt’s murder involved depravity of mind and was outrageously wanton and vile because the killing was random and, therefore, exhibited a disregard for human life; (3) Bowman had been convicted of kidnapping and unlawful restraint; (4) Bowman threatened a teenage girl with a knife; (5) Bowman abducted and murdered Elizabeth West; and (6) Bowman abducted and murdered Ruth Ann Jany.
The trial court sentenced Bowman to death in accordance with the jury’s findings. Bowman appeals.
ANALYSIS
Bowman raises six points on appeal alleging errors in the guilt phase of his trial. None of these points warrant reversal.
I. Guilt Phase
1. Release of DNA profile
Bowman first asserts that the trial court erred in denying his motion to suppress the admission of his DNA profile. The argument is two-pronged. First, Bowman argues that the release of his DNA profile by the Illinois state police violated his Fourth Amendment right to be free from unreasonable search and seizure because he originally consented to submit a DNA sample only to assist in the West and Jany murder investigations. Second, Bowman argues that the release of his DNA profile violated the Illinois genetic privacy act (IGPA) and that the IGPA extends the protections afforded by the Fourth and Fourteenth amendments.
The trial court’s decision to overrule a motion to suppress evidence will be reversed only if it is clearly erroneous.
State v. Granado,
In July 2001, an Illinois circuit court entered an order permitting authorities to take a blood sample from Bowman as part of the investigation into the West and Jany murders. Bowman consented to the procedure. In 2007, James Rokita, an investigator with the Belleville, Illinois, police department, forwarded Bowman’s DNA profile to the St. Louis County police department. Bowman asserts that the .transfer of his DNA profile from Illinois to Missouri for purposes of investigating Rumfelt’s murder constitutes an unreasonable search and seizure because he only consented to a blood sample for purposes of assisting the West and Jany investigations.
There is no dispute that taking a blood sample DNA sample implicates the Fourth Amendment. However, the Fourth Amendment analysis focuses on the intrusiveness of the initial search, not on the subsequent use of information obtained from that search. Bowman consented to the blood sample. The Fourth Amendment was not violated when Bowman gave the blood sample yielding the DNA sample. Likewise, the subsequent use of the DNA sample obtained from the valid search and seizure does not constitute a Fourth Amendment violation. The use of Bowman’s DNA profile after it legally was acquired is neither a search nor a seizure.
Bowman argues that although the initial search and seizure was valid, the subsequent use of his DNA profile in the Rum-felt case exceeded the scope of his consent and, therefore, constitutes a Fourth Amendment violation. There is nothing in the record showing the terms ..of any agreement between Bowman and Illinois authorities that would limit the use of Bowman’s DNA profile. The court order authorizing the sample did not limit the subsequent use of his DNA profile. Moreover, Bowman cites no case standing for the proposition that the Fourth Amendment bars law enforcement from using lawfully obtained personal information in an unrelated criminal investigation. If that were the case, the commonplace practice of identifying a suspect based on fingerprints lawfully obtained during a previous criminal investigation would constitute a Fourth Amendment violation. The rule is no different rule because the identifying feature is DNA obtained pursuant to a court ordered blood sample. 1
Illinois Genetic Privacy Act .
Bowman argues that the IGPA, 410 ILCS 513, restricts law enforcement from using information generated in a criminal investigation to investigate a separate crime. Bowman concludes that the IGPA extends the right of privacy and protections afforded by the Fourth and Fourteenth amendments by further restricting when genetic information can be released.
Bowman’s argument fails because state law privacy protections do not extend the protections afforded by the Fourth Amendment as applied to the states via the Fourteenth Amendment. For instance, in
Virginia v. Moore,
2. Alternative pei'petrator
Bowman argues that the trial court erred in excluding evidence that Kevin Ki-ger murdered Rumfelt. Bowman’s offer of proof included evidence that, in addition to being a suspect in Rumfelt’s murder, Ki-ger was also a suspect in the deaths of E.A. and M.L. E.A. and M.L. were, like Rumfelt, young St. Louis-area women who were killed in 1977. Bowman also asserted that Kiger was familiar with the area where Rumfelt’s body was discovered. Bowman asserts that the similarities between the three murders establishes Ki-ger’s “modus operandi” and is sufficient to support the introduction of evidence showing that Kiger was the real perpetrator.
The trial court is vested with broad discretion to exclude or admit evidence.
State v. Bawmruk,
“Generally, a defendant may introduce evidence tending to show that another person committed the offense, if a proper foundation is laid, unless the probative value of the evidence is substantially outweighed by its costs (such as undue delay, prejudice or confusion).”
State v. Bamner,
Bowman argues that the evidence connecting Kiger to the deaths of E.A. and M.L. was relevant and admissible because it shared a modus operandi with Rumfelt’s murder. The modus operandi cases generally involve instances in which a defendant is challenging the admissibility of similar uncharged conduct used to prove the defendant’s identity as the perpetrator of the charged crime. For prior conduct to be admissible to prove identity, there must be more than mere similarity between the crime charged and the uncharged crime.
State v. Bernard,
The bar for establishing a modus oper-andi is high. For instance, in
State v. Davis,
The similarities between the deaths of E.A., M.L. and Rumfelt are substantially fewer than the similarities between the two robberies at issue in Davis. M.L.’s body was found in a city park in Webster Groves, an inner ring suburb in central St. Louis County. M.L. had been strangled with a Venetian blind cord. There is no evidence that M.L. was acquainted with Kiger.
E.A. was found dead in her bathtub. Unlike M.L., E.A. had not been strangled or cut. Unlike M.L., E.A. was acquainted with Kiger.
Rumfelt was strangled, cut with a knife, sexually assaulted and left in an isolated area of southwest St. Louis County.
The three murders are not nearly “identical” and the methodology is not so “unusual and distinctive” as to establish the signature of a particular individual. The only common facts are that all three victims were young women in the St. Louis area and that, at one point, Kiger was investigated as a suspect in all three. Bowman’s argument that Kiger’s potential involvement in the deaths of E.A. and M.L. establishes Kiger’s distinct modus operan-di is without merit.
Bowman also argues that his offer of proof was sufficient because it showed that Kiger was acquainted with Rumfelt, was a suspect in the case and was familiar with the area where Rumfelt’s body was discovered. The Barriner case illustrates the evidence required to demonstrate a direct connection between an alternate perpetrator and the crime charged. In Barriner, the trial court excluded evidence that hair not belonging to the victims or the defendant was found on victim’s body and on the rope that bound the other victim. The hair evidence was not evidence of motive or opportunity, and it was not disconnected or remote. Instead, the hair evidence was physical evidence that could indicate another person’s interaction with the victims at the crime scene. ’ Id. at 400. Thus, the trial court erred in excluding Barriner’s evidence showing a possible alternative perpetrator’s connection to the' murders.
In contrast to the direct connection present in
Barriner,
Bowman relies solely on Kiger’s alleged opportunity to commit the murder and speculative connections to link Kiger with Rumfelt’s murder. Bow
The alternative perpetrator evidence in this case is more analogous to
State v.
Rousan;
In
Chaney,
the defendant, who was accused of killing a child, sought to introduce evidence that a known pedophile was the real perpetrator.
As in Rousan and Chaney, the fact that Kiger was investigated as a suspect and may have had an opportunity to murder Rumfelt does not establish the requisite direct connection to her death. The trial court did not err in excluding Bowman’s evidence that Kiger was the perpetrator.
3. Sufficiency of the evidence
Bowman asserts the trial court erred in overruling his motion for judgment of acquittal because there was insufficient evidence that Bowman killed Rum-felt. Appellate review of a sufficiency of the evidence claim “is limited to determining whether there is sufficient evidence from which a reasonable juror might have found the defendant guilty beyond a reasonable doubt.”
State v. Crawford,
There are at least five evidentiary facts that support the jury’s determination that Bowman murdered Rumfelt. First, Bowman’s semen was found on the inside of Rumfelt’s underwear. This evidence demonstrates that Bowman had physical contact with Rumfelt and supports a reasonable, inference that Bowman and Rumfelt engaged in a sexual encounter.
Second, none of Rumfelt’s family or friends knew Bowman. This supports the reasonable inference Bowman’s first contact with Rumfelt occurred during the sexual encounter.
Third, Rumfelt had been strangled, her shirt pulled up, her bra stuffed in her mouth, and her body dumped in a hidden and relatively remote location. The St. Louis County medical examiner testified that this evidence, in conjunction with the
Fourth, a witness testified that she observed Rumfelt walking with an unknown man at approximately 10:30 p.m. June 5, 1977. The witness testified that she approached Rumfelt to speak with her but the man pulled Rumfelt closer and walked away. After being shown a photo lineup, the witness identified Bowman as the man who was walking with Rumfelt.
Finally, the evidence showed that Rum-felt died between 1 a.m. and 4 a.m. on June 6, 1977. This evidence supports a reasonable inference that Rumfelt was killed just hours after being seen walking with Bowman.
In sum, the location and statistical match of the DNA evidence, together with the other evidence favorable to the verdict, show that a reasonable juror could have found guilt beyond a reasonable doubt. The trial court did not err in overruling Bowman’s motion for a judgment of acquittal.
4. DNA test results
Bowman argues that the trial court erred in allowing Dr. Margaret Walsh of the St. Louis County police crime laboratory to testify regarding the DNA evidence because the State failed to establish a reliable chain of custody. Specifically, Bowman argues that there was inadequate evidence that the underwear Dr. Walsh tested was not tampered with or damaged.
The determination of whether a sufficient chain of custody has been established for the admission of an exhibit is a matter within the sound discretion of the trial court.
State v. Nicklasson,
In this case, the visual identification of the underwear was sufficient to support the trial court’s admission of the evidence. Dr. Walsh first opened the sealed box
5. Unidentified Slides
Bowman argues that the trial court erred by not allowing defense counsel to cross-examine Dr. Walsh about two unidentified vaginal slides. According to Bowman’s offer of proof, Officer Joseph Burgoon delivered the slides to Dr. Walsh for testing and he believed the slides may have been created during Rumfelt’s autopsy. The offer of proof also indicated that the slides were tested and the results excluded both Bowman and Rumfelt as contributors of the material on the slides. The trial court sustained the State’s objection to Bowman’s attempt to cross-examine Dr. Walsh regarding how the slides were included in the Rumfelt evidence file. The court concluded that Dr. Walsh could testify only as to what Burgoon had told her and, therefore, could offer only inadmissible hearsay testimony.
Hearsay is an “out-of-court statement that is used to prove the truth of the matter asserted and that depends on the veracity of the statement for its value.”
State v. Kemp,
6. Sexual Assault Evidence
Bowman argues that the trial court erred in allowing the St. Louis County medical examiner, Dr. Mary Case, to testify that Rumfelt was the victim of a “probable sexual assault.” Specifically, Bowman asserts that Dr. Case did not state that her conclusion reflected a reasonable degree of scientific certainty.
Generally, it is within the trial court’s sound discretion to admit or exclude an expert’s testimony.
Johnson v. State,
Dr. Case testified that Rumfelt died from strangulation and was likely the victim of a probable sexual assault because her body was found in an isolated area, her bra was removed and stuffed in her mouth, and she had been strangled and stabbed. Dr. Case testified that in her experience as a forensic pathologist, these are indicators of sexual assault. Dr. Case’s testimony addressed a subject about which the jurors lacked experience or knowledge and thereby assisted them in their deliberations. The trial court did not abuse its discretion in allowing Dr. Case to testify that Rum-felt was the victim of a probable sexual assault.
Bowman has not established error in the guilt phase. The judgment as to guilt is affirmed.
II. Penalty Phase
Bowman raises two points of error pertaining to the penalty phase. First, he asserts that the trial court erred by allowing the State to introduce excessive victim impact evidence. Second, he asserts the trial court erred in overruling his motion to preclude the death penalty as disproportionate. The first point is dispositive. Therefore, Bowman’s second point will not be addressed.
The State was permitted, over Bowman’s objection, to present evidence that Bowman was convicted in Illinois for murdering Elizabeth West and Ruth Ann Jany. Prior to trial, Bowman’s murder convictions in the West and Jany cases were reversed and vacated. Bowman objected to evidence of his prior convictions, as well as the evidence of other convictions and unadjudicated bad acts, on grounds that the evidence was excessive victim impact evidence under
Payne v. Tennessee,
During the penalty phase, both the state and the defense may introduce any evidence pertaining to the defendant’s character, including evidence detailing the circumstances of prior convictions, evidence of a defendant’s prior unadjudicated criminal conduct, and evidence of the defendant’s conduct that occurred subsequent to the crime being adjudicated.
State v. Cole,
In
Johnson v. Mississippi,
In
State v. McFadden,
This case is similar to
McFadden.
In Bowman’s case, as in
McFadden,
the jury found six aggravating circumstances, two of which related to vacated murder convictions. The State argues that evidence of Bowman’s vacated convictions is admissible as unadjudicated prior bad acts, also referred to as non-statutory aggravating circumstances. Consistent with
McFadden,
this argument must be rejected because “when the sentencing body is told to weigh an invalid factor in its decision, a reviewing court may not assume it would have made no difference if the thumb had been removed from death’s side of the scale.”
Id.
at 678, quoting
Stringer v. Black,
Bowman’s death sentence is reversed. The judgment in all other respects is affirmed. The case is remanded.
Gregory Bowman entered an Alford plea 1 in Illinois in 1979 to charges of murdering two young women who had been abducted and strangled. One woman’s body was discovered in a wooded creek area near Belleville; she had been strangled with her bra strap. The other woman’s body was discovered in a rural area near Belleville; she had been choked with a halter top. In the plea hearing, Bowman refused to admit that he committed the murders; he was sentenced to life in prison.
Some 20 years after being sentenced to life in prison, the Illinois circuit court in Belleville held a hearing in which the court determined that Bowman’s admission to police that he had murdered the two women were involuntary, the result of a bizarre scheme concocted by a deputy sheriff and a jailhouse “snitch” to trick Bowman — who was in jail on another charge and was about to be sent to a state prison — into admitting to the murders as a way of staying in the Belleville jail from which the snitch would help him to escape. 2
A few days later he was arrested and charged in this case with the 1977 murder of Velda Rumfelt, whose body was found in a remote wooded area of St. Louis County with her throat slit, ligature marks on her neck from two shoe strings and her bra stuffed in her mouth.
After Bowman was tried, convicted and sentenced in this case in 2009 for the murder of Rumfelt, the state of Illinois did not pursue a new trial in Belleville for the two murders for which Bowman previously had been sentenced.
While I agree with the principal opinion that • Bowman’s death sentence rests on invalid sentencing factors — the convictions in Illinois that have been vacated — I am left with a troubling question:
Was Gregory Bowman a serial murderer in the 1970s, or is he a man who has been convicted wrongly of murder of three young women in two trials in two states?
The problem in this case is simply that the strength of the evidence as to Bowman’s guilt is “not of the compelling nature usually found in cases where the sentence is death.”
State v. Chaney,
This Court’s Duty Independently to Review the Strength of Evidence
The statute in effect in 1977, when Velda Rumfelt was murdered, did not require an independent review, but as amended in 1984, section 565.035 requires this Court to conduct an independent review of every case where the death penalty is imposed. In conducting its independent review, one of the responsibilities of the Court is to determine “[wjhether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence and the defendant.” Section 565.035.3(3), RSMo 2000.
The state, however, argues that this Court should not consider the strength of the evidence, because “the strength of the evidence” language was not a part of the statutory scheme at the time of the victim’s murder. See section 565.014.3(3), RSMo Supp.1977 (requiring the Court to consider “the crime and the defendant” only). The state notes that section 565.001.2, RSMo 2000, provides that the provisions of the chapter “shall not govern the construction or procedures for charging, trial, punishment or appellate review of any offense committed before the effective date of [the] chapter.” The effective date of the chapter was October 1, 1984. The offense in this case occurred in June 1977. But while section 565.014.3(3), RSMo Supp.1977, requires the Court to consider “the crime and the defendant,” it does not prevent this Court from considering the strength of the evidence supporting the jury’s conclusion that Bowman committed Rumfelt’s murder.
This Court has considered the strength of the evidence for offenses that occurred prior to 1984, even though the statute in effect at the time of the crimes did not require an independent review. In
State
This Court’s “duty to assess the strength of the evidence is an ongoing duty.”
State ex rel. Amrine v. Roper,
In addition, failure to review the strength of the evidence in these convic tions would result in a review regimen that is arbitrary and capricious. Defendants accused of committing offenses prior to 1984 could be executed where the evidence is weak, while defendants who commit later offenses, where the evidence is similarly weak, would be spared from the death penalty by the application of the later statute. Such a statutory scheme would not survive an Eighth Amendment challenge. This Court undoubtedly has a duty to review the strength of the evidence against Bowman.
Strength of the Evidence
This Court is required to determine whether sufficient evidence exists to support a conviction by reviewing the evidence in the light most favorable to the jury’s decision, as the principal opinion correctly notes.
State v. Langdon,
In this case, the primary evidence relied on by the state — and,- undoubtedly, the jury — to convict Bowman was the presence of his DNA profile in what was alleged to be the victim’s underwear. While the DNA may be sufficient to sustain Bowman’s conviction, it is insufficient to sustain a sentence of death. 3
After some years in jail awaiting a new trial, Bowman posted bail with the Illinois circuit court in January 2007. Within days of his release, on January 30, 2007, a Belle-ville police detective called the St. Louis County police department and spoke with a St. Louis County police detective. The St. Louis County police detective’s report says that the Belleville police detective advised him that “he was investigating a suspect who had just been released from custody after his conviction, [sic] was vacated in St. Clair County, II after serving nearly 30 years for the murders of two young females.” The Belleville police detective asked whether St. Louis County had any open homicides of young females that had occurred in 1977 or 1978. The Belleville police detective was informed of Velda Rumfelt’s homicide and that DNA evidence was available. The Belleville police detective then forwarded Bowman’s DNA profile to Dr. Margaret Walsh 5 . to test against the DNA found im Rumfelt’s alleged underwear. Bowman was arrested on a St. Louis County warrant fewer than three days later, on February 2, 2007.
When Bowman was released on bail, police undoubtedly believed a murderer of two young women was walking around Belleville, free to do as he pleased, pending his new trial. But within 72 hours of the Belleville police contacting the St. Louis County police department, Bowman was once again behind bars. With Bowman in jail in St. Louis County, the state of Illinois was relieved of the problem of providing him a new trial in the 1979 case, provided that Bowman be convicted of the 1977 murder of Velda Rumfelt in Missouri.
This solution to the Illinois problem— how to re-try Bowman — seems almost too good to be true. Life teaches, of course, that when something is almost too good to be true, it often is not true.
There is a problem with the DNA evidence in this case- and an even bigger problem with the “eyewitness” identification used to bolster the case against Bowman.
The DNA evidence
The evidence in the Velda Rumfelt killing was placed in a “sealed” box in 1977 and allegedly stored for more than 30 years before it was compared with Bowman’s DNA. For at least part of those 30 years, it was stored at St. Louis County health department’s Murphy Health Center in Pine Lawn.
6
At some time in the
Dr. William Drake, who performed the autopsy on Rumfelt’s body in 1977, testified that he was able to obtain a vaginal smear containing sperm from her body. This smear was placed on a slide. That slide is nowhere to be found. However, two unidentified vaginal slides that were labeled by their case numbers as having to do with Rumfelt’s case did not contain the DNA of either Bowman or Rumfelt. They were labeled with two women’s names— names that Dr. Drake did not know. 7 The autopsy report also indicated that five ham samples had been taken from Rumfelt’s body. None of these hair samples were in the box when it was opened 30 years later. To say that the evidence was stored in a “sealed” evidence box raises a serious question of the meaning of the word “sealed.” Whatever “sealed” may mean, it seems evident that, whether purposely or inadvertently, the evidence box must have been tampered with, and, in any event, crucial evidence was missing.
The “eyewitness” identification
A witness, a school classmate of Rum-felt’s, identified Bowman in 2007 as a person the witness had seen with Rumfelt shortly before her death in 1977. When talking with the police in 1977 a few days after Rumfelt’s death, the witness reported that she had seen Rumfelt with a young man at approximately 10:30 p.m. on June 5,1977, near the intersection of Brentwood Boulevard and White Avenue in the St. Louis County suburb of Brentwood. She described the young man as a white male, approximately 20 years old with shoulder-length blond hair and approximately 6-feet tall with a slender build.
After the DNA match to Bowman in 2007, the police brought the witness a picture of a 1977 lineup in which Bowman appears with five other young white men. Bowman is Number 6. Initially the witness said that Number 4’s hair looked like the man she had seen. She then identified Number 6, because the face “jumped out at [her] for some reason” and “the rest of them didn’t, but I thought the hair was not quite right.” She also stated that his build and “slim hips” were what seemed correct.
Her testimony at Bowman’s trial, two years after her identification and 32 years after the murder, was that maybe the hair had not been blond as she had told the police in 1977; instead, she testified that it could have been a little darker and maybe it was not blond after all. Her trial testimony was that she had seen Rumfelt and the man from the front in 1977. On cross-
The reason the witness seems to be confused can be discerned from reviewing the evidence in the record of the photo lineup. Number 4, the person the witness initially identified, is the only person in the lineup with shoulder-length hair. He is one of only two men in the lineup with blond hair, and he is the blonder of those two. Bowman, Number 6, has brown hair that goes just past his ears. Bowman is the most slender of the six, although not by much. Unfortunately for him, the fact that he was the most slender man in the lineup may have been the sole reason that the witness identified him in 2007.
Eyewitness identification often is inherently questionable, especially when it is based on a brief look some 32 years in the past. 8 In one study of more than 100 innocent persons who were convicted wrongly, researchers found that more than 75 percent were victims of mistaken eyewitness identification. 9
This case shows how eyewitness testimony can be used inappropriately. The witness in this case gave a fairly generic description of the man she saw in 1977: white, 20 years old, shoulder-length blond hair, 6-feet tall and a slender build. Thirty years later, in 2007, she was shown a photo of a police lineup. She initially noted that one man’s hair seemed to look like the man she remembered, but then she changed her mind and noted that another man’s face stuck out in her memory. More than anything, though, the second man was very slender, so she assumed that must be the right one.
The man she identified was Gregory Bowman. His hair was not exactly blond as she had described 30 years ago, but, nevertheless, his slender appearance and his face seemed vaguely familiar. 10 Two years later, testifying at Bowman’s trial, the prosecutor helped her out, asking her, “could [his hair] have been a little darker?” She responded: “It could have been a little darker. I can’t be positive on the color.” Eyewitnesses — or any person, for that matter — rarely can be positive about anything, but certainty is implausible 30 years after a brief observation.
A witness may be sincere in his or her belief, but sincerity does not assure accuracy. An eyewitness’s identification 30 years after the crime occurred is not useful, especially when the only other evidence available is tainted DNA evidence and when the defendant is given a sentence of death.
Evidence of another “prime suspect”
Kevin Kiger, considered a “prime suspect” in Rumfelt’s death as well as a suspect in the 1977 deaths of two other young women in the St. Louis area in 1980, actually matched the description the witness gave in 1977. Kiger was convicted of mur
The offer of proof also asserted that:
(1) Kiger was fired June 6, 1977 — either the day Rumfelt went missing or the day after she was murdered. 12
(2) Kiger not only was familiar with the Greensfelder Park area in west St. Louis County but also had visited the park with his girlfriend around the time Rumfelt was murdered. The park was less than one-fourth of a mile from where Rumfelt was found. There was no evidence that Bowman had any familiarity with the Greensfelder Park area.
(3) Kiger’s girlfriend was missing a knife similar to the weapon used to kill Rumfelt.
(4) A box of matches was found at the scene of Rumfelt’s murder. When Kiger smoked, he only used matches.
(5) Kiger liked to collect keys, and the only item missing from Rumfelt’s person was her key ring.
(6) Kiger knew Rumfelt and would come to the store where she worked and ask her out on dates, according to one of the investigating detectives. Rumfelt’s classmates told the detective that Rumfelt would refuse to go out with Kiger and that she was afraid of him. But when the detective contacted Kiger in prison to advise him that he was a suspect in Rumfelt’s murder, Kiger denied knowing her.
Evidence that another person may have committed the crime generally is excluded, in a trial court’s discretion, unless the evidence shows directly that the other person committed the crime. Evidence that only shows that another person had opportunity or motive to commit the offense or evidence that is “otherwise disconnected or remote (and there is no evidence that the other person committed an act directly connected to the offense)” usually is excluded because “the minimal probative value of the evidence is outweighed by its tendency to confuse or misdirect the jury.”
State v. Barriner,
In this case, the evidence implicating Kiger is especially strong considering how little evidence the state had to connect Bowman with Rumfelt’s murdei". Kiger matched the description of the eyewitness who saw Rumfelt walking with a man on June 5. He had motive and opportunity to commit the crime — as indicated by the police’s decision to classify him as a “prime suspect” in the case. He knew Rumfelt and asked her out on dates, which she refused, but when interviewed about the murder, he told the police he did know her. Kiger was familiar with the area of Greensfelder Park where Rumfelt’s body
The power and the danger of trial court discretion are on display in this case. Where there is discretion to exclude evidence, as the trial court did in this case, there is discretion for a trial court to admit the evidence. It is more than idle speculation to acknowledge the strong possibility that Bowman may have been acquitted in a trial conducted by a trial court that exercised discretion to let the jury hear this evidence. Under the current law of evidence in Missouri, the trial court’s ruling is reviewed for abuse of discretion, a standard that may enhance the possibility of a wrongful conviction. 13 That is a feature of our criminal justice system that is difficult to accept, but it is a system operated by human beings who are capable of making wrong decisions.
While the courts acknowledge the possibility of mistakes, when death is the punishment, the law demands an
independent
review. In
State v.
Chaney,- this Court reduced the defendant’s sentence of death to a sentence of life imprisonment because it found that while the evidence “was sufficient to support a conviction,” it was “not of the compelling nature usually found in cases where the sentence is death.”
Chaney,
The victim in
Chaney
was a friend of Chaney’s stepdaughter and had been visiting Chaney’s house prior to the victim’s disappearance.
Id.
at 49-50. The evidence included the presence of material on the victim similar to that found in Chaney’s van despite the fact that Chaney said that the victim had not been in the van for more than a year.
Id.
at 51. The state’s forensic analyst testified that the victim would have had to have been lying down in the back of the van to pick up the amount of material her clothing contained and that the likelihood that the combina
This Court overturned Chaney’s death sentence despite the substantial physical evidence against him, including the hair and fiber samples found on the victim and in Chaney’s van and the probable murder weapon found in the van, which Chaney tried to remove before the police could search the van. This Court did not think the evidence was “compelling” enough to support a sentence of death.
In this case, the state urges that the evidence is “compelling” simply because DNA evidence was found in the victim’s alleged underwear. But the crucial DNA material in this case, taken from Rumfelt’s vagina in the autopsy, has disappeared. The physical evidence that was presented at trial was in a “sealed” box that was in a flood and that obviously had been opened and tampered with — and from which some evidence had been removed. There also was some material produced — two vaginal slides — that apparently had nothing to do with the Rumfelt killing 30 some years ago. All of the circumstances of this case — and especially the scant DNA evidence and the useless eyewitness identification — show that the strength of the evidence is not compelling enough to support a sentence of death.
Conclusion
I agree with the principal opinion that the death sentence rests on invalid sentencing factors. I also agree, reluctantly, that there is sufficient evidence to uphold the jury’s verdict that Bowman is guilty. However, the weakness of the evidence should be assessed against the finality of the ultimate penalty, a sentence of death.
I would not remand the case for a new penalty phase trial but rather, under section 565.085.5(2), would sentence Bowman to life in prison without eligibility for parole, probation or release except by act of the governor. Someday the state may find out who killed Velda Rumfelt if it is someone other than Bowman. If that happens, it will be better if the state has not already executed Gregory Bowman.
Notes
. For instance, in
Pharr v. Commonwealth,
the Virginia Court of Appeals held that even though the defendant’s consent was based on his belief that the DNA would be used only in the case presently under investigation, there was no Fourth Amendment violation resulting from the comparison of his DÑA profile to evidence in other cases.
. Although the IGPA does not expand the protections offered by the Fourth amendment, it should be noted Bowman's argument also fails because the IGPA does not bar the disclosure that occurred in this case. Section 15(b) of the IGPA authorizes the disclosure of a legally obtained genetic sample to appropriate law enforcement authorities for purposes of identifying the perpetrator of other crimes. That is what happened in this case. Bowman voluntarily submitted a genetic sample to Illinois authorities. Illinois authorities then disclosed that sample to Missouri authorities for purposes of identifying the person who murdered Rumfelt.
. In
Gatewood.,
the court stated that if the defendant makes "minimal” showing of bad faith or tampering, then the government must establish that "precautions were taken to maintain the evidence in its original state.”
. Bowman’s plea admitted that the state had evidence of his guilt, but he refused to concede that he was in fact guilty — a plea recognized in
North Carolina v. Alford,
. Bowman’s motion for post-conviction relief in Illinois was filed in 1999 after he learned of
. Every prosecutor wishes to have a "smoking gun” to use against a defendant. In today’s world, the "smoking gun” that jurors wish to see — -and, therefore, may place undue weight on — is DNA evidence. In today’s world, the " 'so-called CSI effect,’ where television shows cause jurors to expect and almost demand forensic evidence at trial before they will vote to convict, also may cause jurors to place undue weight on DNA evidence.” Brooke G. Malcolm, Convictions Predicated on DNA Evidence Alone: How Reliable Evidence Became Infallible, 38 CUMB. L. REV. 313, 324 (2008). Juries and courts, including this Court, also may be unduly persuaded by DNA evidence that indicates the defendant is responsible for the crime. Courts must take care to assure that proponents of DNA evidence properly have preserved the evidentiary material and followed correct procedures in doing the testing.
. The appellate court also upheld some monetary sanctions the circuit court had imposed on the state's attorney's office for its conduct leading up to the post-conviction hearing.
Bowman,
. Dr. Walsh, a forensic scientist, originally had tested the clothing in the Rumfelt evidence box in 2006 as part óf a federal grant to St. Louis County for the review of unsolved homicides. She developed a DNA profile from the sperm" fraction contained on the underwear in the box.
.The Murphy Health Center is currently in Berkeley, and the North Central Community Health Center is in Pine Lawn. Health and
The testimony at trial was that the center was in Pine Lawn when it flooded. I do not know whether the Murphy Health Center has moved since its flood in the 1980s or whether it was actually in Berkeley at the time of the flood. More importantly, it is unclear from the record why criminal evidence was being stored at a center for the health department rather than in a law enforcement facility.
. As discussed in the principal opinion, the unidentified slides were not admitted into evidence on the basis of hearsay. The state offered to make the relevant witness available to testify, but the defense never called him. Most of the information contained here was given by Dr. Walsh in an offer of proof. Dr. Drake testified in the presence of the jury that he did not know the names that were on the two slides.
. See generally Gary L. Wells & Elizabeth A. Olsen, Eyewitness Testimony, 54 Annu. Rev. Psychol. 277, 278 (2003) (reviewing recent studies on eyewitness identifications and noting the "surprisingly high" number of mis-identifications that occur).
. Id.
. Wells and Olsen note many of the problems that occur with lineup identification. For example, they note that if the actual culprit is not in the lineup, witnesses will tend to choose the person who looks the most like the culprit rather than state that the person is not present. Id. at 286. Similarly, the lineup should be chosen so that a person is not identified simply because they “stand[] out” or jump out at the witness as occurred in Bowman's case. Id. at 287.
. Kiger currently is serving a life sentence.
. The autopsy results showed that Rumfelt died the night of June 5 or in the early mom-ing hours of June 6. However, a classmate of Rumfelt claimed that she saw Rumfelt June 6 around 11:30 a.m.
. This Court does not have the authority to promulgate rules of evidence, Mo. Const, art. V, sec. 5, so the evidentiary principles courts apply come from statutes, the common law and the constitution.
State v. Walkup, 220
S.W.3d 748, 756-57 (Mo. banc 2007) (citing John C. O’Brien, Missouri Law of Evidence sec. 1-1 (4th ed.2002); William Schroeder, Missouri Practice V. 22, Missouri Evidence sec. 101.1 (2nd ed. 1999)). Perhaps because of the constitutional prohibition against having evi-dentiary “rules,” the common law principles are expressed in terms of trial court discretion. The standard is used even when there is a clear statutory standard.
See Kivland v. Columbia Orthopaedic Group,