Appendix — Rutter v. Missouri

No. FILED )

eK so

OFFICE OF THE CLERK

CHARLES LEE RUTTER,

PETITIONER

V.

STATE OF MISSOURI

On Petition For Writ Of Certiorari

To The Missouri Supreme Court

PETITIONER’S APPENDIX TO HIS PETITION FOR WRIT OF

CERTIORARI

Joseph L. Bauer, Jr.

Counsel of Record

Bauer & Baebler, P.C.

1010 Market Street

Suite 350

St. Louis, Missouri 63101

314) 241-7700

(314) 94 | W

APPENDIX - TABLE OF CONTENTS

Missouri Supreme Court Order

Motion for Reconsideration ......... 2

Missouri Supreme Court Decision............ 3

Motion for Reconsideration -

Missouri Supreme Court............... 26

Southern District Court of Appeals

SPIN ienisnsenipindcansninciaceeceintenieiiiokes 41

Motion for Reconsideration and/or

Transfer - Court of Appeals ........ 60

Page 1 of 88

~

CLERK OF THE SUPREME COURT

STATE OF MISSOURI

POST OFFICE BOX 150

JEFFERSON CITY, MISSOURI

January 28, 2003

Mr. Terry J. Flanagan

Mr. John W. Peel

Suite 350

133 South 11" Street

St. Louis, MO 63102

In Re: State of Missouri v. Charles Lee Rutter

Missouri Supreme Court No. SC84518

Dear Counsel:

Please be advised that the Court entered the

following order on this date in the above-entitled

cause:

“Appellant’s motion for rehearing overruled.”

Very truly yours,

THOMAS F. SIMON

/s/ Cynthia Turley

Page 2 of 88

.

SUPREME COURT OF MISSOURI

en banc

STATE OF MISSOURI, )

)

Respondent, )

) \

V. ) No. SC84518

)

CHARLES LEE RUTTER, )

)Date of Entry

Appellant. )December 24, 2002

APPEAL FROM THE CIRCUIT COURT OF IRON

COUNTY

The Honorable J. Max Price, Judge

Appellant, Charles Lee Rutter, appeals from a

judgment of the Circuit Court of Iron County

following a jury conviction of murder in the first

degree, section 565.020, and armed criminal action,

section 571.015."

After opinion by the a of Appeals,

Southern District the case was transferred to this

Court.’ Mo. Const. art. V, section 10.

The sufficiency of the evidence supporting

Appellant's convictions is not in dispute. This appeal

‘All'statutory references are to RSMo 2000.

*Portions of that opinion are incorporated

without further attribution.

Page 3 of 88

concerns seven of the trial court's rulings on: (1)

admissibility of evidence seized without a warrant

(testimony of two police officers as to what they

observed during inspections of a closet at the crime

scene); (2) unlimited expert qualification of a defense

witness; (3) foundation for expert testimony from

State witness' testimony as to bullet patterns; (4)

foundation for expert testimony from a State witness'

testimony as to the effects of a drug found in the

victim's system; (5) erroneous testimony provided by

a State witness as to whether Appellant was in

possession of illegally obtained prescription

medicine; (6) evidence of the victim’s past acts of

violence; and (7) submission of a voluntary

manslaughter instruction to the jury.

All seven points are denied. Appellant is

correct that the trial court erred in admitting

evidence obtained in the officers’ warrantless

searches of the closet, but Appellant was not

prejudiced by the error. On the other six points

raised by Appellant, the trial court did not err.

Facts

The facts and reasonable inferences from such

facts are considered favorably to the trial court's

ruling and contrary evidence and inferences are

disregarded. State v. Galazin, 58 S.W.3d 500, 507 (Mo.

banc 2001). -

In the morning of April 4,1999, Appellant and

Michael Hinkle were alone together in Appellant's

house. Some time that morning, Appellant used a

Page 4 of 88

pistol to shoot Michael Hinkle in the back of the

head, killing him.

Appellant did not call the police. After

authorities were eventually notified several hours

later, Deputy Helton of the Iron County sheriffs

department was dispatched to "a shooting" at

Appellant's residence. He arrived between 1:30 p.m.

and 2:00 p.m. There were approximately 20 people.

outside the residence, many of whom had already

been inside. Deputy Helton was met by ambulance

personnel who informed him that the only

individual inside the house was the victim, who had

been fatally shot.

Without consent ora warrant; Deputy Helton

entered Appellant's residence to learn if the victim

was still alive and the location of the body. He found

Hinkle's dead body in the bathtub. Deputy Helton

saw evidence of a struggle in the living room - the

television and stereo were overturned, the lights and

windows were broken. There was a large damp

blood stain in the living room carpet near a closet

and bloody marks leading into the bathroom. Deputy

Helton and the others all departed the house. He

observed Appellant outside the residence and

ordered him not to leave. Deputy Helton then

secured the house by placing sheriffs tape around the

back door. He was satisfied that the house was

unoccupied and secure.

At approximately 2:00 p.m., Deputy Ivy

arrived at the scene. At approximately 2:06 p.m.,

Page 5of 88

Deputy Young arrived. Without consent or a

warrant, Deputies Helton, Ivy and Young reentered

Appellant's residence and conducted a search for

evidence. They photographed the entire area and

took acarpetsample. They photographed and seized

a pistol on a chair in the living room and a shell

casing at the doorway to the living room closet. The

shell casing was visible to those standing in the

living room, without the aid of a flashlight. The door

to the closet was open, and it was dark inside.

Deputy Helton looked around inside the closet with

the aid of a flashlight, but did not enter it. He did not

see firearms or any other evidence in the closet. At

approximately 2:30 p.m., Deputy Young inspected

the closet with a flashlight crawling into it on his

hands and knees.

Deputy Young believed he was searching for

evidence. There was a garment hanging in the left

side of the closet. Deputy Young examined the entire

closet, but found no weapons or other evidence. He

measured the interior of the closet at 4 feet 3 12 inches

by 3 feet 3 3/8 of an inch.

The officers all departed by 5:00 p.m. and

released the home to Appellant's family, who

boarded up broken windows and removed valuable

property.

At12:01 a.m. thenext morning, Deputy Helton.

obtained a search wan-ant to search Appellant's |

residence again. He then returned to the residence

.and collected more evidence, including photographs,

Page 6 of 88

carpet and blood samples.

Appellant was charged with murder in the

first degree, a violation of section 565.020, and armed

criminal action, a violation of section 571.015. The

State waived its right to seek the death penalty.

Appellant filed a pre-trial motion to suppress

evidence, arguing that the warrantless searches

violated Appellani's Fourth Amendment rights. The

motion was overruled following a hearing.

In his opening statement, Appellant's counsel

acknowledged txat Appellant killed Hinkle. He told

the jury that Appellant would testify that, after an

argument, Hinkle launched into a violent fury in

which Hinkle significantly damaged Appellant's

property and physically assaulted Appellant. Then,

according to Appellant Hinkle announced that he

was going to kill Appellant and started towards the

closet, which Appellant alleges contained two rifles

and a loaded shotgun. Appellant's counsel told the

jury that Appellant would testify that he then shot

Hinkle because he believed Hinkle would grab a gun

from the closet to kill him. He told the j jury to expect

the defense to present witnesses who would testify

that they observed weapons in the closet after the

police released the crime scene.

In its case-in-chief, the State presented

testimony of the deputies as to all evidence seized

both before and after the issuance of the warrant.

This included testimony from Deputies Helton and

Young that they did not observe weapons in the

Page 7 of 88

closet and that they inspected it carefully enough to

be sure. Appellant's continuing objection to the

admissibility of the evidence seized without a

warrant was overruled. The State presented the

_ testimony of Dr. Russell Deidiker, a physician who

conducted an autopsy of Hinkle. Over Appellant's

objections, Dr. Deidiker was allowed to testify as an

expert as to a bullet pattern comparison used to

determine the distance from which Hinkle was shot

and as to the effects of the drug Butalbital that was

found in Hinkle's system at autopsy. The State also

presented the testimony of Tony Cole, the Iron

County coroner, that he retrieved a bottle of

prescription medicine from Appellant's home

bearing the name of one of Appellant's relatives.

From this testimony, the State attempted to make an

inference at trial that Appellant had illegally

obtained the prescription medicine in his relative's

name.

During an in-camera hearing, Appellant

presented testimony from Steven Craigmiles, who

claimed to be a victim of a past specific act of

violence on the part of Hinkle. Appellant testified

that because of his knowledge of this incident he had

been fearful of Hinkle when he allegedly acted in

self-defense. The trial court sustained the State's

objection to testimony of the specific act of violence

against Craigmiles, but

permitted Appellant to present to the jury evidence

of Hinkle's reputation for violence in the community.

Page 8 of 88

In his case-in-chief, Appellant testified as

indicated in his opening statement. Appellant

presented two rifles and a shotgun as exhibits.

Appellant presented the testimony of six witnesses

who testified that they were at the crime scene after

the shooting and either observed the guns in the

closet or observed the guns being removed from the

house. Appellant presented Dr. Terry Martinez as a

witness, but the trial court sustained the State's

objection to qualification of Dr. Martinez as an

unlimited expert. Dr. Martinez testified as to the

possible effects of Butalbital, a chug found in

Hinkle's system at autopsy.

As a rebuttal witness, the State presented

testimony from Hinkle's grandmother that Appellant

had told her a week to ten days before the shooting

that all guns except the pistol used to shoot Hinkle

had been removed from Appellant's residence.

The jurors were advised by their instructions

that they could find Appellant guilty of murder in

the first degree or murder in the second degree. The

trial court refused Appellant' 's request to submit a

jury instruction on voluntary manslaughter.

However, the trial court did instruct the j jury on self-

defense. The jury returned a verdict that Appellant

did not act inself-defense, finding him guilty of first-

degree murder and armed criminalaction. Appellant

was sentenced to concurrent terms of life

imprisonment.

Appellant filed a motion for new trial. At the

Page 9 of 88

motion hearing, Appellant presented Cole, who

testified that he had erroneously testified at trial as to

the name on the seized prescription bottle, when, in

fact he had come to believe the Appellant's name was

on the bottle. Appellant also repeated his Fourth

Amendment arguments concerning the evidence

seized without a warrant. The trial court overruled

the motion for new trial.

I. Warrantless search and seizure

Appellant has narrowed his original Fourth

Amendment argument, conceding that much of the

evidence seized without a warrant was in plain

view.’ He now argues that the trial court erred in

admitting the testimony of Deputies Helton and

Young regarding observations made (and therefore

evidence seized) during their warrantless searches of

Appellant's closet. Appellant argues that there was

no applicable exception to the search warrant

requirement.

Appellant, having raised the issue ina pre-trial

motion to suppress, stated the objection at trial and

repeated the issue in his motion for new trial

properly preserved the issue of the admissibility of

the evidence obtained during the warrantless

3

Additionally, Appellant conceded thathe shot

Hinkle, so any error as to the admissibility of

evidence merely tending to indicate that he shot

Hinkle was not prejudicial.

Page 10 of 88

searches of the closet. Therefore, the question on

appeal is whether there was error so prejudicial that

it deprived Appellant of a fair trial. Deck, 68 S.W.3d

at 427; State v. Storey, 40 S.W.3d 898, 903 (Mo. banc

2001).

The State does not dispute that the police

officers' inspections of the closet were conducted in

Appellant's home without consent or a warrant.

The Fourth Amendment to the United States

Constitution provides that the "right of the people to

be secure in their persons, houses, papers and effects

against unreasonable searches and seizures shall not

be violated ...” U.S. Const. amend IV. Warrantless

searches and seizures inside a home are

4

The Missou.’ Constitution provides: That the

people shall be secure in their persons, papers,

homes and effects, from unreasonable searches and

seizures; and no warrant to search any place, or seize

any person or thing, shall issue without describing

the place to be searched, or the person or thing to be

seized, as nearly as may be; nor without probable

cause, supported by written oath or affirmation. Mo.

Const. art. I, section 15. Appellant maintains that the

warrantless searches and seizures also violate this

protection, but he does not maintain that there is any

meaningful difference between this provision and

the Fourth Amendment to the United States

Constitution.

Page 11 of 88

~~ -_

presumptively unreasonable. Payton v. New York, 445

U.S. 573, 586 (1980).

A. Exigent circumstances

The State can overcome the presumption that

a warrantless search and seizure is unreasonable by

showing that it falls within one of a carefully defined

set of exceptions, many of which are based on the

presence of exigent circumstances.’ Id. at 587; United

States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997).

Appellant correctly concedes that Deputy

Helton's first entrance into Appellant’s home was

done under exigent circumstances - to verify the

status of the victim. However, the inspections of the

closet occurred after Deputy Helton secured the

crime scene and reentered the home. Appellant

argues that any exigency was extinguished by that

5 -

For example, a warrantless intrusion may be

justified by hot pursuit of a fleeing felon, imminent

destruction of evidence, need to prevent a suspect's

escape, or risk of danger to the police or to other

persons inside or outside the dwelling. Minnesota v.

Olson, 495 U.S. 91, 100 (1990). Exigent circumstances

should rarely be sanctioned when there is probable

cause to believe that only a minor offense has been

committed. Welsh v. Wisconsin, 466 U.S. 740, 753

(1984). There is no "murder scene exception" to the

warrant clause of the Fourth Amendment. Flippo v.

West Virginia, 528 U.S. 11, 14 (1999).

Page 12 of 88

time. The State argues that the officers' observations

of the closet occurred under two exigent

circumstance exceptions: the evidence was observed

by the officers because it was in plain view when the

officers were properly in the home due to exigent

circumstances or the evidence was observed as part

of a protective sweep of the home. The State also

asserts that, even if the evidence was not seized from

plain view or during a protective Sweep, it was

admissible either under the inevitable discov ery rule

or because Appellant waived his privilege to assert

an exclusionary rule. ,

B. Plain view

The State argues that the evidence seized

without a warrant is admissible because the closet

was in plain view to Deputy Helton when he was in

the home under exigent circumstances.

"The 'plain view' exception to the Fourth

Amendment warrant requirement permits a law

enforcement officer to seize what clearly is

incriminating evidence or contraband when it is

discovered in a place where the officer has a right to

be." Washington v. Chrisman 455 U.S. 1, 5-6 (1982).

[A] person's reasonable

expectation of privacy

diminish s as to items that

are readily visible in an

otherwise private location

into which police are

invited ora public location

Page 13 of 88

to which all have access.

Under this exception, an

officer who is lawfully

located in a place from

which the object can

plainly be seen may seize

the object so long as there

is probable cause to believe

that the object is connected

to the crime.

State v. Johnston, 957 S.W.2d 734, 742 (Mo. banc 1997).

In Johnston, this Court held that a pistol was

admissible under the plain view exception because it

was "easily seen," "[n]othing had to be moved to see

... or to retrieve it" and it could have been the murder

weapon. Id. at 743-744. However, a rifle was held

inadmissible because it was under the living room

sofa and not visible, and bloody jeans found under a

bed were held inadmissible because their discovery

occurred only after police moved the bed. Id. at 744.

To establish the plain view exception, the

burden is on the State to prove by a preponderance

of the evidence that the evidence obtained in the

searches was readily visible, plainly or easily seen.’

The State must also prove by a preponderance

of the evidence that there was probable cause to

believe that the evidence was connected to thecrime,

but that is not disputed by Appellant, who admits

Page 14 of 88

Two distinct searches of the closet are at issue

in this case. First Deputy Helton inspected the closet.

His inspection was of more than what was easily

seen from the living room - it was sufficient for him

to reach a conclusion about the closet's contents in

detail. He inspected it thoroughly enough to be

confident that he would have seen any guns. It was

light enough in the living room to see a shell casing

on the floor in front of the closet. However, it was

dark in the closet, and Deputy Helton needed to use

a flashlight. These circumstances are insufficient to

establish by a preponderance of the evidence that

Deputy Helton's observations were readily visible,

plainly or easily seen.

Second, Deputy Young inspected the closet.

He measured its internal dimensions and crawled

into it on his hands and knees with a flashlight. He

examined the entire closet. Instead of being evidence

that was easily seen, Deputy Young's observations

from the inside of the closet were the result of a

thorough and laborious search for evidence.

These circumstances are also insufficient to establish

by a preponderance of the evidence that Deputy

Young's observations were readily visible, plainly or

easily seen. ,

The evidence seized in the course of these two

telling several people at the crime scene his self-

defense theory involving guns in the closet.

Page 15 of 88

searches of the closet was not admissible under the

plain view exception.

C. Protective sweep

The State also argues that the evidence was

admissible because the officers were permitted to

~conduct a "protective sweep" - a search of the house

_ for other possible victims or accomplices.

"The Fourth Amendment does not require

police officers to delay in the course of an

investigation if to do so would gravely endanger

their lives or the lives of others." Warden v. Hayden,

387 U.S. 294, 298-299 (1967).

[T]he Fourth Amendment

does not bar police officers

from making warrantless

entries and searches when

they reasonably believe

that a person within is in

need of immediate aid.

Similarly, when the police

come upon the scene of a

homicide they may make a

prompt warrantless search

of the area to see if there

are other victims or if a

killer is still on the

premises.

Mincey v. Arizona, 437 U.S. 385, 392 (1978).

"[A] ‘protective sweep' is justified in

connection with an in-home arrest if an officer

Page 16 of 88

reasonably believes that the area to be swept harbors

an individual posing a danger to those at the arrest

scene." United States v. Boyd, 180 F.3d 967, 975 (8th

Cir. 1999). The officer's reasonable belief must be

based on specific and articulable facts. Id. In Boyd, the

Eighth Circuit found appropriate a protective sweep

that included a cursory visual inspection of a closet,

because "a person might have been hiding there,"

and the officers had no way of knowing how many

people were in the house. Id. at 975-976. _

In Maryland v. Buie, 494 U.S. 325 (1990), the

United States Supreme Court held:

As an incident to the arrest

the officers could, as a

precautionary matter and

without probable cause or

reasonable suspicion, look

in closets and other spaces

immediately adjoining the

place of arrest from which

an attack could be

immediately launched.

Beyond that however, ...

there must be articulable

facts which, taken together

with the rational inferences

from those facts, would

warrant a _ reasonably

prudent officer in

believing that the area to

Page 17 of 88

be swept harbors an

individual posing a danger

to those on the arrest

scene. <4: : Sieckh «a

protective sweep, aimed at

protecting the arresting

officers, if justified by the

circumstances, is

nevertheless not a full

search of the premises, but

may extend only to a

cursory inspection of those

spaces where a_ person

may be found. The sweep

lasts no longer than is

necessary to dispel the

reasonable suspicion of

danger and in any event

no longer than it takes to

complete the arrest and

depart the premises.

Id. at 334-336.

In Johnston,, this Court held that the seizure of

a shotgun was appropriate under the protective

sweep exception because it was in a closet the police

had been told that a young child could be in the

home, the perpetrator had claimed that

unapprehended motorcycle gang members

committed the crime and the shotgun could have

been the murder weapon. Johnston, 957 S.W.2d at

Page 18 of 88

744.

In this case, Deputy Helton had already

observed Appellant outside the home. When thetwo

searches of the closet occurred, both deputies

believed the house to be secure and unoccupied. The

State has the burden to establish that the officers had

reasonable beliefs that there was some danger. Here,

the deputies acknowledged they had no such fear.

They knew that Appellant was outside the house,

there was no working theory that would have

included any additional victims or perpetrators, and

they believed the house to besecure and unoccupied.

These circumstances cannot justify the admission of

evidence obtained without a warrant under the

protective sweep exception.

D. Inevitable discovery

The State argues that even if the testimony in

question was not the result of a lawful search, it was

still admissible under the inevitable discovery .

doctrine because the evidence in question would

have been discovered through other lawful means in

that a search warrant was obtained eventually.

As an exception to the exigent circumstances

rule, where law enforcement personnel would

ultimately or inevitably have discovered evidence,

the evidence is admissible notwithstanding a

constitutionally invalid search. State v. Milliorn, 794

S.W.2d 181, 184 (Mo. banc 1990). Under this doctrine,

illegally seized evidence may be admitted if the State

proves by a preponderance of the evidence; (1) that

Page 19 of 88

certain standard, proper and predictable procedures

of the local police department would have been

utilized, and (2) those procedures inevitably would

have led to discovery of the challenged evidence

through the State's pursuit of a substantial,

alternative line of investigation at the time of the

constitutional violation. Nix v. Williams, 467 U.S. 431,

444 (1984); Boyd, 180 F.3d at 976; United States v.

Glenn, 152 F.3d 1047, 1049 (8th Cir. 1998); Conner, 127

F.3d at 667; Milliorn, 794 S.W .2d at 184; State v. Butler,

676 SW.2d 809 (Mo. banc 1984). The inevitable

discovery analysis cannot involve speculation and

must focus on demonstrated historical] facts capable

of reaay verification or impeachment. Milliorn, 794

SW.2d at 186.

In this case, the State presented nv evidence of

its routine procedures other than what occurred. The

officers did not express that there was any

impediment to their normal procedures. They

secured the crime scene, conducted a thorough

search, seized evidence, released the home to the

suspect's family and only then began work on

obtaining a search warrant. The officers' observations

of Appellant's closet were primarily relevant because

of the timing of the observations. If the officers had

inspected the closet after the warrant was issued, any

observations of a lack of weapons in the closet would

have been consistent with the testimony offered by

Appellant's witnesses. There is no evidence

suggesting that if the officers had waited to inspect

Page 20 of 88

the closet until a warrant was issued, they would not

have first released the house to Appellant's family to

remove valuables such as guns. Consequently, there

is no evidence to support a finding that certain

standard and predictable procedures would have

been employed and inevitably would have led to

discovery of the evidence. There is also no evidence

that the State was actively pursuing a substantial,

alternative line of investigation at the time of the

warrantless searches.

Thus, the inevitable discovery doctrine cannot

justify admission of the evidence obtained in the

warrantless searches of the closet.

E. Waiver

The State argues that even if the evidence was

illegally seized as discussed above, it was still

admissible because Appellant waived any right to

have the evidence excluded by telling the jury in his

opening statement that he intended to present

testimony on the subject.

When a defendant testifies, he must testify

truthfully or suffer the consequences. United States v.

Havens, 446 U.S. 620, 626 (1980). A criminal

defendant does not have the right to commit perjury.

Harris v. New York, 401 U.S. 222, 225 (1971). Evidence

obtained in an illegal search is inadmissible in the

State's case-in-chief, but may be admitted as rebuttal

evidence to impeach testimony of the defendant.

Havens, 446 U.S. at 624. This effectuates a delicate

balance of competing interests - the deterrent

Page 21 of 88

function of the Fourth Amendment exclusionary

rules against the fact-finding goals of a criminal trial.

Id. at 627. While acknowledging the public policy

need for the exclusionary rules, the Havens Court

expressed concern for both the importance of

arriving at truth in criminal trials and a defendants

obligation to speak the truth in response to proper

questions. Id. at 626. When a defendants testimony is

inconsistent with constitutionally excluded evidence,

he has waived his privilege to continue to assert an

exclusionary rule as to the evidence.

In this case, the State seeks to expand the

holding of Havens beyond a defendant's testimony to

include a defendant's opening statement. "The

primary purpose of an opening statement is to

inform the judge and jury of the general nature of the

case, so they may appreciate the significance of the

evidence as it is presented." State v. Thompson, 68

SW 3d 393, 394 (Mo. banc 2002). "[A] party is not

coafined in his evidence to the proof of facts recited

in the opening statement. "Hays v. Missouri Pac. R.

Co.,304S.W.2d 800, 804 (Mo. banc 1957). An opening

statement is not evidence.’ State v. Madison, 997

SW.2d 16, 21 (Mo. banc 1999); State v. Payne, 95 8

S.W.2d 56 1, 565 (Mo. banc 1997).

7

In this case, the trial court properly instructed

thejury that "opening statements of attorneys are not

evidence."

Page 22 of 88 .

When evidence is inadmissible because it is

not relevant it can nevertheless become admissible

because a party has opened the door to it with a

theory presented in an opening statement. Therefore,

a defendant's opening statement can open the door

to evidence of a prior crime. Bucklew v. State, 38

S.W.3d 395, 401 (Mo. bane 2001). A defendants

theory presented in an opening statement can render

the otherwise irrelevant testimony of the State's

medical expert relevant and admissible to contradict

the theory. State v. Skillicorn 944 S.W.2d 877, 891-892

(Mo. banc 1997).

Unlike the inadmissibility ‘of irrelevant

evidence, the exclusion of evidence seized in

violation of the Fourth Amendment is a judicially-

created rule that furthers a public policy concern.

The United States Supreme Court's holding in Havens

expresses a competing concern that the State have an

opportunity to rebut evidence presented by a

defendant's possibly untrue testimony. An opening

statement is not evidence. Therefore, it presents no

such concern. Opening statements do not present a

tisk that the State will be prevented from rebutting

perjured testimony of a defendant.

The Havens balance of competing interests

allows the admission of the illegally obtained

evidence in response toa defendant's testimony, and

not earlier. Given that evidence seized inside a home

without a wan-ant is presumptively inadmissible,

there is no compelling reason to expand the Havens

Page 23 of 88

waiver rule to include a defendant's opening

statement.

The State notes that Appellant testified as to

the contents of the closet, and that Appellant

presented witnesses who testified as to the contents

of the closet. While a defendant cannot be held

responsible for the testimony of other witnesses, his

testimony would have triggered the State's right to

have the evidence admitted in rebuttal However,

that did not occur because the evidence had already

been presented. Regardless of what happened later

in the trial, the Havens waiver rule could not have

been applied to the State's case-in-chief, and it was

error to admit the evidence at that stage.

Therefore, the evidence of the observations of

Deputies Helton and Young as to the contents of the

closet was seized in violation of the Fourth

Amendment, no exceptions applied, and it was error

to allow the State to present the evidence in its

casein-chief

F. Prejudice

"Trial court error does not require reversal

unless there is a reasonable probability that the trial

court's error affected the outcome of the trial."

Johnston, 957 SW ..2d at 744; State v. Cook, 628 S.W.2d

657 (Mo. banc 1982). Otherwise, the error is not

prejudicial. Id.

The existence or non-existence of weapons in

the closet was integral to Appellant's claim that he

acted in self-defense. The testimony of the officers

Page 24 of 88

that they did not observe weapons in the closet

undercut Appellant's self-defense theory. However,

Appellant's theory was also undercut by other

evidence that was legally obtained and presented to

the jury - the testimony of Hinkle's grandmother.

Appellant's testimony also could have

undercut his self-defense theory. "One who

unreasonably believes that he must use force to

defend himself from an imminent attack or uses an

unreasonable amount of force cannot escape

conviction on grounds of self-defense." State v.

Redmond, 937 SW.2d 205, 209 (Mo. banc 1996).

Appellant testified that, while Hinkle was turned

away from him reaching into the closet, Appellant

pulled out a pistol, got up out of his chair, walked

over to Hinkle and shot him in the back of the head

at close range. Appellant did not claim to have

warned Hinkle that he had a pistol or that he would

shoot. Nor did he claim to have fired a warning shot

or to have first tried any of a variety of less forceful

options. A reasonable juror could have believed

Appellant's testimony, disbelieved the deputies’

testimony that there were no guns in the closet, yet

still found that Appellant did not act in self-defense.

Appellant does not dispute that he killed

Hinkle, and there was overwhelming evidence that

he did so. As Appellant is the only living witness to

the events that immediately preceded his shooting of

Hinkle, he was compelled to testify in order to

present his self-defense theory. He could not present

Page 25 of 88

a plausible self-defense theory without some

mention of his belief as to the contents of the closet.

Therefore, he could not have presented his self-

defense theory without inevitably allowing the State

to invoke the Havens waiver rule and rebut his

testimony with the illegally obtained evidence

consisting of the deputies' observations of the closet.

Regardless of the trial court's error in allowing the

disputed evidence to be presented in the State's case-

in-chief, the evidence would have been admissible as

rebuttal evidence had the trial court not erred. There

is no reasonable probability that the State's

presentation of the evidence in its casein-chief as

opposed to rebuttal changed the verdict. Therefore,

the trial court's Fourth Amendment error was not

prejudicial.

_ IL. Testimony of Dr. Martinez

Appellant next argues that the trial court

erred in refusing the offer of Dr. Martinez as an

expert and in declaring him not an expert in that

Appellant argues that a proper foundation was laid

for the expert testimony

The qualifications of a witness to render an

expert opinion he within the trial court's discretion.

State v. Brown, 998 S.W.2d 531, 549 (Mo. banc 1999);

Mehra v. Mehra, 819 S.W.2d 351, 355 (Mo. banc

1991). A trial court will, be found to have abused

its discretion when a ruling is clearly against the

logic of the circumstances then before the court

and is so arbitrary and unreasonable as to shock

Page 26 of 88

the sense of justice and indicate a lack of careful

consideration. State v. Brown, 939 S.W.2d 882, 883

(Mo. banc 1997).

The record indicates that Appellant attend

Dr. Martinez as an unlimited expert "for testimony

here today." The trial court properly sustained the

State's objection to the qualification of Dr. Martinez

as an unlimited expert and indicated that it would

consider Dr. Martinez's qualifications as to each

question posed. The trial court properly ruled that

Dr. Martinez could testify on matters within his

expertise and that he could not testify on matters

outside his expertise. Appellant's contention that

the trial court expressly declared to the jury that

Dr. Martinez was not an expert is unsupported by

the record.

III. Testimony of Dr. Deidiker as to bullet

patterns

At trial, the State presented the testimony of

Dr. Deidiker,a physician trained in pathology.

Dr. Deidiker testified that he conducted an

autopsy upon Hinkle. He also

testified about his review of a Missouri State

Highway Patrol criminalist's bullet patterning test

results and his opinion that Hinkle was shot by

Appellant from a distance of four to eight inches.

Appellant argues that the trial court erred in

allowing the admission of Dr. Deidiker's testimony

of bullet pattern comparison in determining the

distance between the weapon and Hinkle at the time

Page 27 of 88

of the shooting. Appellant maintains that this

opinion as to distance was based solely upon the

criminalist's testing of bullet patterning and that the

testing was conducted horizontally, while the

evidence presented at trial established that the

weapon was fired at an angle.© Appellant argues

that Dr. Deidiker's testimony as to the distance from

which Hinkle was shot was admitted without proper

foundation.

As stated above, the qualifications of a witness

to render an expert opinion he within the trial court's

discretion. Brown, 998 S.W.2d at 549; Mehra, 819

S.W.2d at 355. A trial court will be found to have

abused its discretion when a ruling is clearly against

the logic of the circumstances then before the court

and is so arbitrary and unreasonable as to shock the

sense of justice and indicate a lack of careful

consideration. Brown, 939 S.W.2d at 883.

The trial court did not abuse its discretion in

allowing Dr. Deidiker to testify regarding the bullet

patterning results. Dr. Deidiker testified that he was

a physician trained in anatomical, clinical and

forensic pathology and that he had performed

The State's criminalist performed various tests

firing the pistol atnumerous targets to show varying

patterns of burned and unburned gunpow der that

resulted when the pistol was discharged at different

distances and angles.

4 Page 28 of 88

between

600 and 700 autopsies. His testimony regarding the

bullet patterning test was based on his previous

training and experience, notwithstanding that it was

partially based on his review of the criminalist's

records.

IV. Testimony of Dr. Deidiker as to Butalbital

Dr. Deidiker also testified that a drug found in

Hinkle's body (Butalbital) would have caused

sedation and drowsiness rather than excited or

violent behavior.

Appellant argues that the trial court erred in

allowing the admission of Dr. Deidiker's testimony

as to the specific effects of Butalbital. Appellant

maintains that Dr. Deidiker was not qualified to

reach any such conclusions and, therefore, the

evidence was without proper foundation.

There is no reason to dispute the logic of the

trial court's discretionary ruling that Dr. Deidiker

was qualified to render an opinion regarding the

effects of Butalbital on a person. In addition to being

a medical doctor, Dr. Deidiker testified that he was

familiar with literature regarding Butalbital and its

effects on people. Even assuming, arguendo, that this

testimony should have been excluded, it was.

cumulative to that of another of the State's expert

witnesses, a forensic toxicologist.

V. Testimony of Tony Cole

Appellant argues that the trial court erred in

not granting Appellant's motion for new trial based

Page 29 of 88

upon the post-trial testimony from Cole that he had

erroneously testified at trial that Appellant had been

in possession of a prescription bottle with a relative's

name on it.

To warrant a new trial

based on post-trial newly

discovered evidence, the

defendant must show: (1)

the evidence has come to

the knowledge of the

defendant since the trial;

(2) it was not owing to

want of due diligence that

it was not discovered

sooner; (3) the evidence is

so material that it would

probably produce a

different result on a new —-

trial; and (4) it is not

cumulative only or merely

impeaching the credibility

of the witness. The trial

court has_ substantial

discretion in ruling on a

motion for a new trial

based upon newly

discovered evidence, and

we will not disturb its

decision absent an abuse of

discretion.

Page 30 of 88

State v. Whitfield, 939 S.W.2d 361, 367 (Mo. banc 1997)

(citations omitted).

Appellant argues that Cole's erroneous

testimony at trial was critical to the State's case and

played an instrumental role in the jury's arriving at

a guilty verdict, because the State argued at trial that

Appellant illegally obtained a false prescription.

However, Appellant fails to satisfy the fourth

part of the Whitefield test - that the evidence is not

cumulative only or merely impeaching the credibility

of the witness. Id. The evidence is cumulative of

Appellant's testimony at trial that he did not illegally

obtain the prescription. Also, Cole's testimony at the

post-trial motion hearing did nothing more than

impeach the credibility of his previous testimony,

and Appellant had already effectively cross-

examined Cole at trial.

Appellant has failed to establish that the trial

court abused its discretion in overruling Appellant's

motion for new trial.

VI. Evidence of victim's past acts of violence

At trial, during an in-camera hearing,

Appellant presented testimony from Craigmiles and

himself as to Hinkle's past acts of violence.

Craigmiles testified about an incident that occurred

a year before Appellant shot Hinkle, in which Hinkle

punched Craigmiles in the face three times without

provocation. Appellant then testified that Hinkle had

told him about the encounter with Craigmiles,

bragging that he had "kicked [Craigmiles'] butt."

Page 31 of 88

Appellant testified that he was fearful of Hinkle

because of this incident.

The trial court sustained the State's objection to

testimony of the specific act of violence against

Craigmiles. However, the trial court stated that it

would permit evidence of Hinkle's reputation for

violence in the community. Later, at trial, Appellant

reiterated his offer of proof of Craigmiles' testimony,

which was again rejected by the trial court.

Appellant argues that the trial court erred in

refusing to allow him to present evidence of specific

acts of violence by the victim. He maintains that the

evidence was admissible in order to establish and

support Appellant's fear and apprehension of the

victim, which was essential to his claim that he acted

in self-defense.

A trial court is not required to admit all

evidence proffered about a victim's prior specific acts

of violence. State v. Waller, 816 S.W.2d 212, 216 (Mo.

banc 1991). When other competent evidence has

raised the question of self-defense, the trial court

must exercise caution in discretionary rulings that

permit a defendant to introduce evidence of a

victim's prior specific acts of violence: (1) for which

the defendant has laid a proper foundation; (2) of ——

which the defendant had specific knowledge; (3) that

are reasonably related to the crime with which the

defendant is charged; (4) that are not too remote in

time; (5) that are of quality such as to be capable of

contributing to the defendant! s fear of the victim;

Page 32 of 88

and (6) that are not of quality substantially different

from the act that the defendant accuses the victim of

committing. Id.

Appellant testified at the hearing that his only

knowledge of Hinkle's alleged assault of Craigmiles

came directly from Hinkle, was brief, and provided

little detail of the incident. Appellant has not

demonstrated that he was sufficiently aware of a

specific act of violence against Craigmiles by Hinkle.

Nor was the proposed testimony of sufficient quality

to reasonably show that Appellant had reason to fear

Hinkle would kill him. The wail court did not err in

sustaining the State's objection to the proposed

evidence.

VII. Voluntary manslaughter instruction

Finally, Appellant argues that the trial court

erred in refusing to submit Appellant's requested

jury instruction of voluntary manslaughter.

When a jury is given the option to convict a

defendant of first degree and second degree murder,

and opts to convict on first degree murder, there is

no reasonable basis to contend the jury would have

found differently had voluntary manslaughter

instructions been submitted. State v. Winfield, 5

SW .3d 505, 513 (Mo. banc 1999).

The judgment is affirmed.

Page 33 of 88

Richard B. Teitelman, Judge

All concur.

Page 34 of 88

IN THE SUPREME COURT OF MISSOURI

STATE OF MISSOURI

STATE OF MISSOURI, )

Respondent,

: No. SC84518

CHARLES LEE RUTTER, us ane

Appellant.

APPELLANT’S MOTION FOR

RECONSIDERATION

AND MEMORANDUM IN SUPPORT

COMES NOW Appellant, Charles Lee Rutter,

by and through his attorney, Terry J. Flanagan, P.C.,

and for his Motion for Reconsideration states the

following to this Honorable Court:

a

That this Court issued its decision affirming

Mr. Rutter’s conviction for Murder in the First

Degree and Armed Criminal Action.

That said decision, as and for the Motion to

Suppress issue presented on appeal, agreed

with Mr. Rutter that the search and

observations were made unlawfully, but held

that the trial court’s error in admitting the

fruits thereof was not prejudicial and only

harmless error.

That the Court’s decision further denied the

Page 35 of 88

remaining issues presented by Mr. Rutter.

That Mr. Rutter submits that the Court's

decision overlooks or misinterprets material

matters of law or fact and/or fails to consider

the far reaching aspects and _ general

importance of its holding including, but not

limited to, the following:

a.

The Court's decision improperly allows

illegally obtained evidence to be used as

substantive evidence, and not merely

impeachment evidence, against both a

testifying Defendant but also as

substantive evidence if any other

witness’ testimony conflicts with the

State’s case-in-chief at trial. United

States vs. Havens, 446 U.S. 620 (1980);

lames _vs. Illinois, 493 U.S. 307, 313

(1990) (stating that “[t]his Court insisted

throughout this line of cases that

‘evidence that has been _ illegally

obtained ... is inadmissible on the

government's direct case, or otherwise,

as substantive evidence of guilt’”).

That the Court’s decision improperly

presupposes that there is no other

evidence available to Mr. Rutter in

order to establish his theory of self-

defense, and, in fact, unjustly punishes

Mr. Rutter for relying on the trial

court’s error in presenting sufficient

Page 36 of 88

evidence of self defense as contained

within the record and not resorting to

other potentially available evidence.

See State vs. Kinkead, 983 S.W.2d 518,

519 (holding that because “ [t]he State is

entitled to rely on the trial court's

erroneous ruling in determining what

evidence to produce” and thus the

Court did not desire to assume that

there was not possible other evidence

that would establish the defendant's

culpability”).

That the Court’s decision improperly

allows illegally obtained evidence to be

used as impeachment evidence against

witnesses other than a defendant, which

contravenes the holding of James vs.

Illinois, 493 U.S. 307 (1990) (stating that

“[t]his Court insisted throughout this

line of cases that ‘evidence that has been

illegally obtained ... is inadmissible on

the government’s direct case, or

otherwise, as substantive evidence of

guilt’”); See aiso State vs. Burnett, 637

S.W.2d 680, 690 (Mo. 1982) (holding that

“the defendant did not testify and,

therefore, cannot be held to have

waived his Fourth Amendment rights

with respect to the suppressed evidence

Page 37 of 88

impeachment of his direct testimony.

There was no testimony of the

defendant to impeach .. [and thus]

Havens is inapplicable”).

That the Court's decision may be read

that a Defendant must always testify in

a criminal proceeding where self

defense is at issue despite his uttering

exculpatory and/or explanatory

statements to others present at the scene

of the incident regarding his belief of

the need for force.

That the Court’s decision improperly

requires an individual that is the subject

of attack within the confines of his own

home to fire a warning shot, resort to a

variety of less forceful options in the

matter of seconds, and/or retreat and

avoid the conflict before he may enjoy a

viable theory of self-defense. See State

vs. Abdul-Khalig, 39 S.W.3d 880, 887

(Mo. Ct. App. 2001) ( holding that "[a]

person who is attacked in his own

dwelling has a right to stand his ground

rather than retreat, if this is necessary to

save his own life or to protect himself

from serious physical harm” in the

context of defense of premises which is

strikingly similar to self-defense); See

also State vs. Allison, 845 S.W.2d 642,

Page 38 of 88

647 (Mo. Ct. App. 1992) (stating that

“[a] person who is attacked in his own

dwelling has a right to stand his ground

rather than retreat, if this is necessary to

save his own life or to protect himself

from serious physical harm”).

That the Court’s decision improperly

places this Court in the role of fact-

finder in determining what a reasonable

juror may determine in considering an

integral and contested factual issue.

State vs. Johnson, 54 S.W.3d 598, 605

(Mo. Ct. App. 2001) (stating that “[t]his

is not a case where the evidence is such

that we can say, without making a

credibility determination reserved for

the fact finder, that the evidence of guilt

of murder was overwhelming and

therefore the error was immaterial.

There were issues here for the jury's

resolution under proper instruction.

Accordingly, we are constrained to hold

that the failure to instruct on defense of

habitation here was prejudicial error” );

See also State vs. Garrett, 564 S.W.2d

347, 348-349 (Mo. Ct. App. 1978)

That the Court’s opinion fails to

consider the manner and timing that

evidence is presented to the fact-finder,

including, but not limited to, witnesses

Page 39 of 88

confronted with impeachment evidence.

That the Court’s opinion may be

construed as holding that the use and

presentation of illegally obtained

evidence during the State’s case-in-chief

as substantive evidence is only harmless

- error and not structural error as defined

by State vs. Storey, 986 S.W.2d 462, 464

(Mo. 1992) citing Arizona _vs.

Fulminante, 499 U.S. 279, 310 (1991).

(defining structural error as affecting

“‘the framework within which the trial

proceeds, rather than [being] simply an

error in the trial process itself”

including what evidence is presented in

an individual’s defense in counteracting

the State’s case-in-chief).

That the Court’s opinion fails to find

that harmless error was present beyond

a reasonable doubt but rather only finds

that said error was present in the

opinion of the Court by a “reasonable

probability.” See State vs. Miller, 650

S.W.2d 619, 621 (Mo. 1983); Johnson, 54

S.W.3d 598, 605 (Mo. Ct. App. 2001);

State vs. Garrett, 564 S.W.2d 347, 348-

349 (Mo. Ct. App. 1978) (stating that

“Iwle consider. the judicial role in

determining on appeal whether the

improper admission of evidence was

Page 40 of 88

harmless error. For a court to so

determine, of necessity it must be able

to declare beyond doubt that the tainted

evidence did not affect the jury in its

fact-finding process. An appellate court

has no way of knowing and should not

speculate about what evidence a jury

did or did not believe and the extent to

which that evidence entered into the

jury’s decision-making process ... ‘error

in the admission of evidence should not

be declared harmless unless it is so

without question’ ... and that the record

must ‘demonstrate that the jury

disregarded or could not have been

influenced by the evidence’”).

That the Court’s opinion fails to

properly consider and reconcile the

factors in determining whether a

constitutional error is prejudicial or

harmless. Storey, 986 S.W.2d 462, 466

(Mo. 1999) (stating that “whether

constitutional error is harmless, this

Court reviews four factors: (1) whether

the violations were repeated, (2)

whether the trial court made any

curative effort, (3) whether exculpatory

evidence is transparently frivolous, and

(4) whether evidence of guilt is

overwhelming”). Mr. Rutter submits

Page 41 of 88

AR PR: RTE TRIENNIAL NR I Ae

that a careful review of these factors

indicates that this constitutional error is

something other than harmless.

3 Mr. Rutter, by limiting this Motion for

Reconsideration to that of the suppression

issue, does not abandon any other argument

presented to this Court, but rather merely

relies upon his arguments as presented in his

Substitute Brief and other filings before this

Court.

In support of this Motion, Mr. Rutter presents

the following Memorandum in Support:

Background

Mr. Rutter presented several issues for this

Court’s review including, but not limited to, Mr.

Rutter’s Motion to Suppress Evidence and the trial

court’s rulings thereto. On December 24, 2002, this

Court issued its.decision affirming Mr. Rutter’s

convictions for Murder in the First Degree and

Armed Criminal Action. The primary issue that Mr.

Rutter presented to this Court, and desires to address

herein, is that of the Motion to Suppress Evidence,

specifically certain claimed observations that were

presented in the State’s case-in-chief. This Court did

agree with Mr. Rutter that the search conducted by

the officers violated Mr. Rutter’s protections against

unreasonable searches and seizures afforded to him

by the United States Constitution and the Missouri

Constitution. However, this Court held that the trial

court’s error was harmless in that there was no

Page 42 of 88

prejudice suffered by Mr. Rutter. The remaining

issues presented by Mr. Rutter were denied in toto.

Argument :

In reviewing this Court’s opinion, Mr. Rutter

believes that several material matters were

overlooked by this Court in arriving at its conclusion.

Said matters are set forth above and several are

addressed in greater detail below. At the outset, it

must be stated that this Court held that the error in

admitting the claimed observations was harmless

because there was “no reasonable probability that

the State’s presentation of the evidence in its case-in-

chief as opposed to rebuttal changed the verdict.”

This assertion presumes several occurrences that

even his counsel cannot state with any degree of

certainty including whether that Mr. Rutter would

testify, as said decision to testify can only be

determined after the presentation of the State’s case-

in-chief. Moreover, said presumptions appear to

conflict with the controlling law in that these claimed

observations, on retrial, could only be used, at best,

as impeachment evidence and not substantive

evidence of guilt; that said claimed observations

cannot be used to impeach witnesses other than Mr.

Rutter, if he were called to testify; and that there is

no other evidence available to Mr. Rutter other than

that contained within the record before this Court to

establish Mr. Rutter’s theory of self-defense. It is Mr.

Rutter’s suggestion that said presumptions are

inaccurate and thus the trial error in this case was, in

Page 43 of 88

fact, prejudicial.

The judicial review that this Court must

employ in determining the classification of error is

that this Court must be convinced beyond a

reasonable doubt that the jury’s decision was not

affected by the erroneous admission of this illegally

obtained evidence before the error may be deemed

as harmless. State vs. Johnson, 54 S.W.3d 598, 605

(Mo. Ct. App. 2001) (stating that “[t]his is not a case

where the evidence is such that we can say, without

making a credibility determination reserved for the

fact finder, that the evidence of guilt of murder was

overwhelming and therefore the error was

immaterial. There were issues here for the jury's

resolution under proper instruction. Accordingly,

we are constrained to hold that the failure to instruct

on defense of habitation here was prejudicial error”);

See also State vs. Garrett, 564 S.W.2d 347, 348-349

(Mo. Ct. App. 1978), (stating that “[w]e consider the

judicial role in determining on appeal whether the

improper admission of evidence was harmless error.

For a court to so determine, of necessity it must be

able to declare beyond doubt that the tainted

evidence did not affect the jury in its fact-finding

process. An appellate court has no way of knowing

and should not speculate about what evidence ajury

did or did not believe and the extent to which that

evidence entered into the jury’s decision-making

process ... ‘error in the admission of evidence should

not be declared harmless unless it is so without

Page 44 of 88

question’ ... and that the record must ‘demonstrate

“that the jury disregarded or could not have been

influenced by the evidence’) (internal citations

omitted).

a © .

‘ a. Substantive Evidence versus Impeachment

Evidence

As and for the first matter that Mr. Rutter

submits to this Court, it is Mr. Rutter’s belief that this

Court’s opinion stands for the proposition that the

results of illegal searches and evidence illegally

seized may be introduced in the State’s case-in-chief

and/or in rebuttal and that said fruits of the illegal

activity may be used as substantive evidence. Such

aholding would be in direct contravention of current

law as set forth in United States vs. Havens, 446 U.S.

620 (1980), James vs. Illinois 493 U.S. 307 (1990), State

vs. Burnett, 637 S.W.2d 680 (Mo. 1982), and State vs.

Wilkins, 59 S.W.3d 591 (Mo. Ct. App. 2001).

In the case before this Court it cannot be

readily contested that the State, in its case-in chief,

introduced the testimony of Deputy Helton

regarding the results of his search, including the

search of the interior of the closet in question, and

the introduction of same prior to any cross-

examination by Mr. Rutter Thus, it defeats the

confines of logic that said introduction was made in

rebuttal and/or in order to impeach a testifying

witness. ;

This Court’s decision regarding the prejudice

e issue in the context of substantive evidence versus

Page 45 of 88

impeachment evidence is well summarized by this

Court’s statement that Mr. Rutter “could not have

presented his self-defense theory without inevitably

allowing the State to invoke the Havens waiver rule

and rebut his testimony with the illegally obtained

evidence consisting of the deputies’ observations of

the closet.” Mr. Rutter does not contest the fact that

the United States Supreme Court allows the use of

illegally obtained evidence to be used to impeach a

testifying defendant. Havens, 446 U.S. at 628.

However, in the case before this Court, said

evidence was not used merely to impeach Mr. Rutter,

but rather was used in the State’s case-in-chief as

substantive evidence that he was guilty of the

charges lodged against him. It is this substantive

practice that is outlawed by the United States

Constitution, the Missouri Constitution and the

United States Supreme Court. In fact, in James vs.

Illinois, 493U.S. 307, 313 (1990), the United States

Supreme Court explicitly stated that “[t]his Ccurt

insisted throughout this line of cases that ‘evidence

that has been illegally obtained ... is inadmissible on

the government's direct case, or otherwise, as

substantive evidence of guilt.” (emphasis added).

In State vs. Burnett, 637 S.W.2d 680, 690 (Mo.

1982), this Court recognized the difference between

impeachment evidence and that of substantive

circumstantial evidence of guilt. The Burnett Court

held that the trial court erred in allowing the

admission of suppressed evidence to impeach a

Page 46 of 88

witness who was not the defendant standing trial.

Id. The rationale employed is that there is a vast

difference between substantive evidence of guiltand

impeachment evidence used solely in determining

credibility. Id.

In State vs. Johnston, 957 S.W.2d 734, 745 (Mo.

1997), this Court held that the admission of a broken

rifle stock was non-prejudicial in that “[a]t most, the

rifle was cumulative and its presence added very

little to the state's case when one considers the

overwhelming, independent evidence of Johnston's

guilt and the level of his malevolent brutality.” The

same cannot be said in the present case, and, in fact,

this Court explicitly recognized that “[t]he existence

or non-existence of weapons in the closet was

integral to Appellant’s claim that he acted in self-

defense.” Thus, this not a situation where the

evidence added very little but rather was

determinative in the jury’s deliberation.

Lastly, and as stated to this Court during oral

argument, there is no way in which to determine

whether Mr. Rutter would testify in his defense or

what evidence he would present if this matter were

remanded for retrial and the evidence in question

were excluded. It is clear from the case law in

Missouri and that of the United States Supreme

Court that this illegally obtained evidence is only

admissible as impeachment evidence against Mr.

Rutter’s testimony only and thus, if Mr. Rutter were

not to testify said claimed observations would not be

Page 47 of 88

So

a sy ea

__——before any jury. See James 493 US. at 313, |

Burnett,637 S.W.2d at 690. In fact, Mr. Rutter re sae

submits to this Court that if ftheclaimedobservations—

ETO oreasaliaeipicncivel into evidence, the manner i,

which his defense would be presented to the jury

would be entirely different in nature and source.

Therefore, the next issue that must be

addressed is whether Mr. Rutter could-present the

theory of self-defense without his testimony being

presented within the confines of the record before

this Court.

2 There was substantial evidence within the

record to justify the issuance of a self-

defense instruction aside from Mr. Rutter’s

testimony, and, moreover, the Court's

decision presupposes the entirety of the

evidence available to him in injecting the

issue of self-defense, including that which is

outside the confines of this record.

It cannot be readily contested that in order to

determine whether a self-defense instruction is

required four (4) factors are examined, to-wit:”(1) an

absence of provocation or aggression on the part of

the shooter; (2) a reasonable belief that deadly force

was necessary to protect himself or a third person

against an immediate danger of death or serious

physical injury; (3) a reasonable cause for that belief;

and (4) an attempt by the shooter to do all within his

power consistent with his own personal safety to

avoid the danger and the need to use deadly force on

the victims.” Vogel vs. State, 31 S.W.3d 139, 141 (Mo.

Page 48 of 88

Ct. App. 2000). It must be stated that the Court’s

~ review in determining the sufficiency of the evidence

___is _viewed—in—the light most favorable to the

defendant. Id.

a. .. Absence of Provocation or Aggression

The evidence before this Court and the jury

included the fact that Mr. Rutter’s home was

destroyed, with his own personal effects thrown

about and broken. The evidence also included the

fact Mr. Rutter suffered from a bruised and swollen

eye, bruising to his kidneys, but no injury

whatsoever to his hands. Additionally, the evidence

included the fact that Mr. Rutter suffers from a brain

tumor and receives social security disability for

same.

b. Reasonable Belief and Reasonable

Cause

The evidence included the fact that Mr. vn

while at the scene in question, repeatedly uttered the

fact that he was forced to do it because Mr. Hinkle

was going fora gun. Additionally, there are several

witnesses aside from Mr. Rutter that did testify that

the closet contained several firearms. The physical

evidence also demonstrates that the blood stain is

immediately before the closet in question and that a

shell casing was found next to said blood stain.

C. Attempt to Avoid Danger

It was uncontested that Mr. Rutter was in his

home at the time the incident occurred and therefore

any need to retreat is abolished. See State vs. Abdul-

Khalig, 39 S.W.3d 880, 887 (Mo. Ct. App. 2001) (

———

Page 49 of 88

Svinte ee

eS

holding that "[a] person who is attacked in his own

dwelling has a right to stand his ground rather than

retreat, if this is necessary to save his own life or to

protect himself from serious physical harm” in the

context of defense of premises which is strikingly

similar to self-defense); See also State vs. Allison, 845

S.W.2d 642, 647 (Mo. Ct. App. 1992) (stating that “ [a]

person who is attacked in his own dwelling has a

right to stand his ground rather than retreat, if this is

necessary to save his own life or to protect himself

from serious physical harm”).

Additionally, Mr. Rutter submits that if he

were not to testify, yet the individuals presented at

trial that observed the weapons in the closet were to

avail themselves before the trial court, their

testimony would not be subject to impeachment w‘.h

the results of the illegal search. James vs. Illinois, 493

U.S. at 313. Thus, this Court’s belief that the results

of the illegal search inevitably would have been

introduced into evidence is unlikely and incorrect.

Aside from the factors in question, Mr. Rutter

does submit that this Court must not limit itself to

the facts contained within the record in order to

determine whether Mr. Ruttercould submit evidence

in support of his self-defense theory, and to do so

assumes that no additional evidence is available to

Defendant. See State vs. Kinkead, 983 S.W.2d 518,

519 (Mo. 1998) (holding that “[o]n this record, it is

impossible to say that the prosecution would be

unable to make a submissible case had the trial court

Page 50 of 88

ruled correctly. Erroneous admission of evidence

does not preclude retrial ‘even though when such

evidence is discounted there may be evidentiary

insufficiency,’ and Mr. Rutter submits that what

evidentiary leave is granted to the State is also due to |

Mr. Rutter).

~ This Court has held, in the criminal context,

and on repeated occasions, that it should not assume

the evidence available to either the State or a

defendant in determining the extent of the evidence

available in presenting their respective cases. See

Kinkead, 983 S.W.2d at 519. In Kinkead, this Court

reversed the Defendant's conviction and ordered the

matter remanded to the trial court regarding a

motion to suppress evidence. Id. However, the

Court did not mandate the discharge of the

defendant, but rather remanded the case to the trial

court because “[t]he State is entitled to rely on the

trial court's erroneous ruling in determining what

evidence to produce” and thus the Court did not

desire to assume that there was not possible other

evidence that would establish the defendant's

culpability. Id. j

Mr. Rutter submits that this same logic of not

assuming the extent of the evidence available to the

State must be afforded to a criminal defendant where

he possesses the burden of injecting an issue at trial,

such as self-defense. State vs. Morrow, 41 S.W.3d 56,

59 (Mo. Ct. App. 2001). In other words, what is good

for the goose is also good for the gander.

Page 51 of 88

c. Illegally obtained evidence may not be used

to impeach witnesses other than a testifying

defendant.

In James vs. Illinois, 493 U.S. 307, 313 (1990),

the United States Supreme Court reiterated the

holding of United States vs. Havens, 446 U.S. 620

(1980), and stated that “evidence that has been

illegally obtained .. is inadmissible on the

government’s direct case, or otherwise, as

substantive evidence of guilt.” In James, the

defendant was charged with murder and attempted

murder. Id. at 309. The defendant, following his

arrest, made a statement to law enforcement officers

that he recently changed his appearance, which

altered his appearance to something different from

that “which was reported as identifying the

perpetrator. Id. This statement was suppressed and

held excluded from the State’s case-in-chief during

the trial on the merits. Id. at 309-310.

At trial, the State offered the testimony of

several individuals that stated the defendant's

appearance on the day of the crime was consistent

with the identification made at the crime scene. Id.

at 310. The defendant offered the testimony of one

witness that testified that the defendant's appearance

on the day of the crime was inconsistent with the

identification made at the crime scene. Id. The

defendant did not testify. Id. The State then used

the Defendant’s suppressed confession to impeach

this one defense witness.

The United States Supreme Court recognized

Page 52 of 88

at the outset that “[t]he impeachment exception to

the exclusionary rule permits the prosecution in a

criminal proceeding to introduce illegally obtained

evidence to impeach the defendant's own testimony.

The Illinois Supreme Court extended this exception

to permit the prosecution to impeach the testimony

of all defense witnesses with illegally obtained

evidence. Finding this extension inconsistent with

the balance of values underlying our previous

applications of the exclusionary rule, we reverse.”

Id. 308-309. The Court further recognized that the

aforementioned exception is limited only to impeach

the credibility of the defendant’s own testimony, but

not as substantive evidence of guilt. Id. at 312. The

Court ultimately refused to expand “the class of

impeachable witnesses from the defendant alone to

all defense witnesses” where said impeachment

evidence is based upon illegally obtained evidence.

Id. 313. ~

Thus, in the matter before this Court, the six

(6) testifying witnesses that confirmed the existence

of the weapons in the closet, and the testimony of

any other witness that Mr. Rutter may present as to

the existence of these weapons, may not be

impeached with the illegally obtained and claimed

observations in question. See also State vs. Burnett

637 S.W.2d 680, 690 (Mo. 1982) (holding that “the

defendant did not testify and, therefore, cannot be

held to have waived his Fourth Amendment rights

with respect to the suppressed evidence so as to

Page 53 of 88

permit its introduction as impeachment of his direct

testimony. There was no testimony of the defendant

to impeach .. [and thus] Havens is inapplicable”).

As and for the remaining matters presented

above, Mr. Rutter did provide parenthetical citations

to the controlling cases and will not belabor the

points herein.

WHEREFORE, Appellant prays for an Order

and Judgment of this Court setting aside its

December 24, 2002, Opinion, entering an Order and

Judgment setting aside Mr. Rutter’s convictions for

Murder in the First Degree and Armed Criminal

Action, and Order remanding this matter to the trial

court for retrial, and for such other Orders and relief

that this Court deems just and proper in the

circumstances.

Respectfully submitted,

TERRY J. FLANAGAN, P.C.

Terry J. Flanagan, #21648

John W. Peel, #49637

Attorneys for Appellant

133 S. 11 St., Suite 350

St. Louis, Missouri 63102

Ph.: (314) 621-3743

Fax: (314) 231-9552

CERTIFICATE OF SERVICE

Page 54 of 88

65102.

A true and accurate copy of the foregoing

Motion for Reconsideration was[ ] mailed via

U.S. mail, first class, postage prepaid, [ ] hand-

delivered,[ ] transmitted via facsimile this __

day of , 2003 to: Breck K. Burgess,

Assistant Attorney General, Office of the Attorney

General, P.O. Box 899, Jefferson City, Missouri

Page 55 of 88

MISSOURI COURT OF APPEALS

SOUTHERN DISTRICT

DIVISION ONE

State of Missouri, )

)

Respondent, )

)

V. : ) No. 23851

)

Charles Lee Rutter, )

)Date of Entry

Appellant. )April 25, 2002

APPEAL FROM THE CIRCUIT COURT OF IRON

COUNTY, MISSOURI

Honorable J. Max Price, Circuit Judge

AFFIRMED.

INTRODUCTION

Charles Lee Rutter ("Defendant") appeals from

a judgment of the Circuit Court of Iron County

following a jury conviction of murder in the first

degree, § 565.020, and armed criminal action, §

571.015.’ Following his conviction, Defendant was

sentenced by the trial court to concurrent terms of

life imprisonment without the possibility of

probation or parole for murder in the first degree

Statutory references are to RSMo 1994,

unless otherwise noted.

Page 56 of 88

PiivnineentteeatMasliaytste saey nk pnt saph PO gue ast Oo

and life imprisonment for armed criminal action, to

be served in the Missouri Department of Corrections.

Defendant raises six points on appeal, discussed

below. We affirm.

FACTS.

Defendant does not challenge the sufficiency

of the evidence. Viewed in a light most favorable to

the verdict, State v. Crawford, 32 SW.3d 201, 204

(Mo.App.2000), the evidence reveals that Defendant

was at his residence watching television during the

early morning hours of April 4, 1999, when he

received a visitor, Michael Hinkle ("Hinkle")."°

Defendant and Hinkle had known each other

approximately six years and Hinkle was a frequent

visitor at Defendant's residence. According to

Defendant, Hinkle asked Defendant if he had any

marijuana to smoke and Defendant told Hinkle that

he did not. Hinkle then asked Defendant to go with

him and get some marijuana. Defendant declined

and Hinkle became agitated. At that point, according

to Defendant, Hinkle began trashing Defendant's

home by destroying lights and windows with a club

and slashing Defendant's waterbed. Defendantsatin

a chair during much of Hinkle's tirade, although

Defendantclaims that on at least one occasion Hinkle

physically assaulted him by punching him in the eye

and kicking him in the kidneys.

"We use the victim's last name only for the

purpose of this opinion, we mean no disrespect.

Page 57 of 88

Eventually, Hinkle completed the trashing of

Defendant's residence. Then, according to

Defendant, Hinkle told Defendant, "I'm going to

finish the job and I'm going to kill you," and starting

walking towards a closet that Defendant said

contained two .22 caliber rifles and a loaded .12

gauge shotgun. Defendant, who was seated in his

chair, pulled outa .9 millimeter Ruger pistol, got up,

walked over to Hinkle, and shot him in the back of

the head from a range of approximately six inches.

Afterwards, Defendant dragged Hinkle from

the living room to the bathroom and placed him in

the bathtub. Defendant also used numerous rags in

an attempt to clean up blood in the living room and

bathroom. Defendant placed these rags in a bum

barrel behind his house. While Defendant was in his

yard, Arvil Harley ("Harley") pulled into the

driveway and asked Defendant about Hinkle, to

which Defendant replied that "(Hinkle] was gone."

However, Defendant did not tell Harley that Hinkle

had been shot, nor did he ask Harley to call the

police.

Defendant then walked to his mother's house,

which was located a quarter-mile away from his

residence."? [FN3] Defendant went inside and told

“During cross-examination, Defendant —

admitted that there were two neighbors within

closer proximity of his residence than his mother's

house.

Page 58 of 88

his step- father, Billy Luten ("Luten"), that he had

shot Hinkle. Luten asked Defendant whether he had

called the police or an ambulance and Defendant

responded that he had not. Luten told Defendant to

call them, but Defendant never did. Luten then went

to the First Assembly of God Church to teil

Defendant's mother what had happened.

At the church, Pastor Donald Dement

("Dement") was asked by Defendant's aunt to go to

Defendant's residence because there had been a

shooting. Upon arriving at Defendant's house,

Dement found the door to be locked and he was

unable to gain entry into the house. Eventually,

Defendant appeared at the residence and unlocked

the door. By that time, several other people had

arrived at Defendant's home. When Dement and

others entered the house, they found Hinkle dead in

the bathtub.

Law enforcement officials were eventually

notified and Deputy Chuck Helton ("Dep. Helton")

arrived |

at Defendant's home about two hours after the

shooting, between 1:30 and 2:00 p.m. Dep. Helton

was the first law enforcement official to arrive at

Defendant's home. Dep. Helton entered the home,

spoke with Larry Warren, a paramedic, and went to

the bathroom and observed Hinkle lying in the

bathtub. Dep. Helton then secured the premises by

"putting up sheriffs tape and not letting anyone back

inside the residence.” He then made a search of the

Page 59 of 88

——

residence. He found a .9 millimeter pistol on a chair

in the living room and a shell casing at the doorway

of a closet in the vicinity of the living room. About

midway through his search Dep. Helton noticed that

the door to the closet was open and looked inside the

closet with the aid of a flashlight, but did not enter

into the closet.’* Dep. Helton testified that he did not

see any firearms in the closet. Shortly thereafter, at

approximately 2:06 p.m. Deputy Brian Young ("Dep.

Young") entered the crime scene. By this time Dep.

Helton, Deputy Don Ivy, and Tony Cole, the Iron

County Coroner, were also present. Dep. Young

testified that at about 2:30 p.m. he physicaily entered

into the closet on his hands and knees. His way was

illuminated through the use of a "MAG light three

cell flashlight." He found no weapons in the closet.

The officers then seized the shell casing and the

pistol. Several hours later, law enforcement officers

obtained a search warrant to search Defendant's

residence and collected further evidence, including

carpet and blood samples.

Defendant was charged by the State with first

degree- murder and armed criminal action. At

Defendant's trial, the above events were related.

Defendant testified in his defense and claimed that

"Later, Dep. Young measured the closet and

found it to have measurements of 4 feet 3 2 inches

by 3 feet 3/38 inches.

Page 60 of 88

ss

he shot Hinkle in self-defense. Defendant also

presented witnesses who testified that they had

removed the two rifles and shotgun from the closet

after the police searched the house. However, in

rebuttal, the State presented testimony from Joan

Hinkle, the victim's grandmother, who testified that

Defendant had told her a week to ten days before the

shooting that all guns except for the .9 millimeter

pistol had been removed from his residence.

The jury was advised by their instructions that

they could find Defendant guilty of murder in the

first degree or murder in the second degree. The trial

court refused Defendant's request to submit a jury

instruction on voluntary manslaughter. However,

the trial court did instruct the jury on self-defense.

The jury returned a verdict finding Defendant guilty

of first-degree murder and armed criminal action.

DISCUSSION AND DECISION.

I.

In his first point on appeal, Defendant alleges,

in pertinent part: |

The trial court erred in

allowing the trial

testimony of [Dep. Helton]

and [Dep. Young]

concerning their

observations made and the

admission at trial of

evidence discovered

Page 61 of 88

during the warrantless

search of [Defendant's]

home, including the

examination of the interior

of a closet located in said

home and the officers'

conclusion that no

weapons were present in

said closet, where said

admission of testimony

and evidence was allowed

by the trial court over

Defendant's objection....

Defendant claims that the officers’ search and their

observations violated his constitutional rights, and

that any exigent circumstances that existed upon

their entering the house had terminated by the time

of the search.

Defendant concedes in his brief that the

original entry of Dep. Helton into Defendant's -

residence was in response to an emergency call and

therefore falls within two exceptions to the search

warrant requirement, exigen* circumstances and the

plain view exception. See State v. Johnson, 957

SW.2d 734, 742-43 (Mo.banc 1997). However,

Defendant claims that the more thorough search of

Defendant's house by both Dep. Helton and Dep.

Young occurred after the residence was secured. At

that point, Defendant maintains exigent

circumstances had ceased and a search warrant was

Page 62 of 88

necessary. We disagree.

In two recent cases, this court has discussed

what a police officer may lawfully do when entering

one's residence in an emergency situation: ;

We hold that when a law

enforcement officer enters

private premises in

response to a call for help

and thereby comes upon

what reasonably appears

to be the scene of a crime,

and secures the crime

scene from persons other

than law enforcement

officers by appropriate

means, aH property within

the crime scene in plain

view which the officer has

probable cause to associate

with criminal activity is

thereby lawfully seized

within the meaning of the

fourth amendment [of the

United States

Constitution]. Officers

arriving at the crime scene

thereafter and while it is

still secured can examine

and remove property in

plain view .without a

Page 63 of 88

search warrant.

State v. Tidwell, 888 SW.2d 736, 742 (Mo.App.1994)

(quoting State v. Jolley, 312 N.C. 296, 321 S.E.2d 883,

886 (1984), cert. denied, 470 U.S. 1051, 105 S.Ct. 1751,

84 L.Ed.2d 816 (1985)); State v. Taylor, 857 SW.2d

482, 486 (Mo.App. 1993).

Saliently, the Supreme Court of Missouri has

also held that "[t]he possibility of another victim or

perpetrators in a house are sufficient exigencies to

permit the police to undertake a cursory search of

those places in the dwelling in which a body may be

found or persons may hide." Johnson, 957 SW.2d at

744 (approving of seizure of a shotgun found in_

closet during the course of warrantless search made

by police looking for other victims).

Applying these standards to the particular

circumstances of the present case, we find that both

Dep. Helton and Dep. Young were acting within

their authority in responding to a call relating to a

homicide. Their respective testimonies at trial,

regarding what each did and did not see, were all

matters that fell under the exigent circumstances and

plain view exceptions recognized by case law.

As best we glean from the record, the searches

by Dep. Helton, including the one conducted with

Dep. Young, were undertaken within a short span of

time after Dep. Helton arrived at the crime scene.

These searches were completed rapidly. Given the

exigent circumstances existing, each officer was

within his right to peruse the crime scene looking

Page 64 of 88

either for additional victims or other perpetrators,

together with any other weapons that may have been

easily accessible to any perpetrator. See Tidwell, 888

S.W.2d at 740; Johnson, 957 SW.2d ct 744 n. 1.

Even assuming that receiving of the testimony

of Dep. Young was erroneous, we hold that under

the "inevitable discovery" doctrine, the observations

of Dep. Young would have been discovered through

other lawful means, especially considering that a

search warrant was lawfully obtained only hours

after the initial search. Nix v. Williams, 467 U.S. 431,

445,104 S.Ct. 2501, 2510, 81 L.Ed.2d 377 (1984): State

v. Jackson, 756 SW.2d 620, 621 (Mo.App.1988); see

also State v. Smith, 735 S.W.2d 65, 69 (Mo.App.

1987).-Point denied.

II.

In his second point, Defendant posits trial

court error in refusing to submit Defendant's

requested instruction of voluntary manslaughter to

the jury for consideration. Defendant claims that the

evidence at trial supported an instruction on

voluntary manslaughter and failure to instruct the

jury "substantially impaired his right to a fair trial."

We need not address Defendant's second

point, however. The State has correctly pointed out

it is well-established law that when a jury is given

the option to convict a defendant of first degree and

second degree murder, and opts to convict on first

degree murder, then there is no reasonable basis to

suggest that a jury would convict on manslaughter

Page 65 of 88

were it given the opportunity. State v. Winfield, 5

SW..3d 505, 513 (Mo. banc 1999); State v. Barnett, 980

SW 2d 297, 305-06 (Mo. banc 1998); State v. Smith,

944 SW.2d 901, 918- 19 (Mo. banc 1997). Defendant

has requested this Court to revisit the ruling in

Winfield, however, we decline to do so. Point

denied. ;

Ill.

In his third point, Defendant asseverates the

trial court erred in "refusing the offer of Dr. Terry

Martinez as an expert at trial and in declaring him

not an expert in the presence of the jury," because

Defendant maintains he laid a proper foundation

for his testimony. Defendant claims that the

limitations placed on Dr. Martinez's ("Dr.

Martinez") testimony and rendering of an expert

opinion did not allow the Defendant to adequately

present his defense and denied his right to a fair

trial.

At trial, Defendant called Dr. Martinez to the

stand and asked him several questions regarding

his extensive education and background.”

Defendant then offered Dr. Martinez "as an expert

for testimony here today." The State voir dired Dr.

Martinez and afterward, objected to the offer of Dr.

Martinez as an expert witness. The trial court

sustained the State's objection, but commented that

it would "take it with each question and proceed

a

*8Dr. Martinez was not a physician.

Page 66 of 88

please." Defendant then questioned Dr. Martinez

regarding the effects of a drug, Butalbital, that was

found in Hinkle's bloodstream. Dr. Martinez was

allowed to elaborate on the general effects of

Butalbital based on his observations and

experience. See infra. However, the trial court did

not allow Dr. Martinez to comment on the specific

level of Butalbital found in Hinkle. In one exchange

the trial court stated the following in open court,

"The court is not quarreling with what [Defense

attorney] just stated and the way [he has] formed

[his] question.... The court is not saying that [Dr.

Martinez] is not qualified at all, if [Defense

attorney] will rephrase [his] question please."

"The test of an expert's qualification is

whether the expert has knowledge from education

or experience which will aid the trier of fact." State

v. Scott, 996 S.W.2d 745, 748 (Mo.App.1999). The

matter of qualifying an expert at trial rests

primarily in the sound discretion of the trial court.

Id.; State v. Hoff, 904 SW.2d 56, 58 (Mo.App.1995).

The exercise of the trial court's discretion will be

sustained by this Court unless Defendant can

demonstrate that there has been an abuse of

discretion. State v. Newcomb, 934 S.W.2d 608. 611

(Mo.App.1996). A trial court is said to have abused

its discretion when its ruling goes against the logic

of the circumstances before the trial court and "is

so arbitrary and unreasonable as to shock the sense

of justice and indicate careful consideration-, if

Page 67 of 88

—

reasonable persons can differ about the propriety

of the actions taken by the trial court, then it cannot

be said that the trial court abused its discretion."

State v. Mathews, 33 SW.3d 658, 660

(Mo.App.2000) (quoting State v. Brown, 939 SW.2d

882, 883-84 (Mo.banc 1997)).

In our review of the record, we do not find

that Defendant was denied the offer of Dr.

‘Martinez as an expert. While the trial court did

limit the testimony of Dr. Martinez, Defendant's

contention that the trial court expressly declared to

the jury that Dr. Martinez was not an expert is

unsupported by the record. As previously set out,

during one objection the trial court stated to the

jury that it was not commenting on whether Dr.

Martinez was "qualified." Furthermore Dr.

Martinez was allowed to testify that he had

observed individuals who exhibited concentration

levels of Butalbital in the "range of 6.3," similar to

that level found in the victim during his autopsy.

Dr. Martinez was allowed to opine that:

Such people are at a level

where they would appear

to be intoxicated or

inebriated similar to the

intoxication you would

see from alcohol.... Such

persons would have

difficulty with fine motor

movement. They would

~ Page 68 of 88 |

not be asleep, they would

not be comatose certainly,

they would be able to

move about, they would

be able to function. They

would have a loss of

filtering in their central

nervous system so that

they [sic] normal

constraints would not be

there. The process is

called disinhibition,

Where a person the first

thing that runs through

their mind comes out

their mouth. They may

use swear words for

example, where they

normally would not do

- that. I've see [sic] them

behave in an aggressive

manner similar to

intoxication where they

were upset. I've seen

fighting behavior at that

level...

; Indeed, during closing arguments at trial,

Defendant's counsel made the following, pertinent

remarks, regarding Dr. Martinez's testimony:

Let's move on to the

Page 69 of 88 '

Butalbital that was found in

his system, in Hinkle's

system .... | want you to

look, and you havea right

to do this, you just look at

his credentials. It's been

introduced into evidence.

The honors that he's won,

what he's done in his

field, how long he's been

in practice and his

curriculum vitae.... This

man is a renowned expert

and he's used to working

with this subject.... Dr.

Martinez worked with

particular people on this

particular drug. Observed

behavior by these people

on this drug. He's been

involved with over 30,000

types of patients because

he is a clinical

toxicologist. He has seen

the effects, not just on

paper. And he's

researched, not just one

little page of research but

he brought the books that

he researched. And what

Page 70 of 88

his findings were and

what his conclusions were

is that this causes

aggressive behavior in

this amount, that it's like

an alcohol intoxication.

You've heard him testify

and that's what happened

here. (emphasis added).

Defendant has failed to demonstrate to this

Court that he suffered prejudice from the trial

court's conduct regarding Dr. Martinez's

testimony; nor are we persuaded that the trial

court abused its discretion in limiting the expert

testimony of Dr. Martinez. Newcomb, 934 SW.2d

at 611. Point denied.

IV.

Defendant contends in his fourth point on

appeal that the trial court erred in refusing to allow

Defendant to present evidence of specific acts of

violence committed by Hinkle against a third person

by the name of Steven Craigmiles ("Craigmiles').

Defendant maintains that such evidence was

admissible to show that Defendantreasonably feared

Hinkle and was essential to Defendant's theory of

self-defense presented at trial.

At trial, during an in-camera hearing,

Defendant presented testimony from Craigmiles and

himself. Craigmiles testified about an incident that

occurred approximately a year before Defendant

Page 71 of 88

shot Hinkle in which Hinkle punched Craigmiles in

the face three times without provocation. According

to Craigmiles, Defendant was angry because a

relative of Craigmiles had made a derogatory remark .

to Hinkle and Hinkle thought that he, Craigmiles,

was responsible for the remark. Defendant then

testified that Hinkle had told him about his

encounter with Craigmiles, bragging that he had

"kicked [Craigmiles's] butt." Defendant testified that

because of this incident he was fearful of Hinkle.

The trial court sustained the State's objection to

testimony of the specific act of violence against

Craigmiles. However, the trial court stated that it

would permit evidence of the victim's reputation for

violence in the community. Later, at trial, Detendant

reiterated its offer of proof of Craigmiles' testimony

which was again rejected by the trial court.

In support of his argument, Defendant refers

this Court to State v. Waller, 816 SW.2d 212

(Mo.banc 1991 ), which sets out, in part:

Where justification is an

issue in a criminal case, the

trial court may permit a

defendant to introduce

evidence of the victim's

prior specific acts of

violence of which the

defendant had knowledge,

provided that the acts

sought to be established

Page 72 of 88 —

are reasonably related to

the crime with which the

defendant is charged. _

To the extent that

this Court has changed the

rule, it vests new

discretion in the trial court.

In application of the new

rule, courts must exercise

caution. The defendant

must lay a_ proper

foundation before the

evidence can be admitted.

Other competent evidence

must have raised the

question of self- defense.

The defendant must show

that he was aware of the

~ specific act or acts of

violence. The incidents

must not be too remote in

time and must be of

quality such as to be

capable of contributing to

the defendant's fear of the

victim. Where acts are too

remote in time or of

quality substantially

different from the act that

the defendant accuses the

Page 73 of 88

victim of committing, the

trial court may decline to

admit the proof into

evidence.

Id. at 216 (citations omitted).

Defendant argues that the trial court's refusal

to allow evidence of the specific act of violence

against Craigmiles by Hinkle "substantially impaired

[Defendant's] right to a fair trial and due process of

law bestowed upon him by the United States and

Missouri constitutions." We disagree.

"Under the Waller rule, a trial court is not

required to admit all evidence proffered about a

victim's prior specific acts of violence." State v.

Howard, 896 SW.2d 471,485 (Mo.App.1995). "To the

contrary, Waller says '[t]o the extent that this Court

has changed the rule, it vests new discretion in the

trial court.' "Id. (quoting Waller, 816 SW.2d at 216).

Defendanttestified at the hearing that his only

knowledge of Hinkle's assault of Craigmiles came

directly from Hinkle, was brief, and provided little

details of the assault. We do not find that Defendant

demonstrated that he was sufficiently aware of the

specific act of violence against Craigmiles by Hinkle.

Nor was it of a sufficient quality to reasonably show

that Defendant had reason to fear Hinkle, because

the violence was not directed against Defendant. See

State v. Pipes, 923 S.W.2d 349, 354 (Mo.App.1996);

see also Waller, 816 SW.2d at 216. The trial court did

not err in sustaining the State's objection to the

Page 74 of 88

proposed evidence. Point denied.

V.

In his fifth point on appeal, Defendant

alleges trial court error in allowing the State to

present testimony from Dr. Russell Deidiker ("Dr.

Deidiker"), a physician trained in pathology,

regarding a bullet pattern comparison "in

determining the distance between [Defendant] and

[Hinkle] at the time of the shooting ...”. Defendant

maintains that Dr. Deidiker's testimony was based

upon tests conducted by Mr. Carl Rothove, a

criminalist with the Missouri State Highway Patrol

crime laboratory, under different conditions to

those testified to by Dr. Deidiker.

Defendant further claims the trial court erred

in allowing Dr. Deidiker to testify about the

specific effects of Butalbital on an individual. He

maintains that Dr. Deidiker was not qualified to

reach any conclusions concerning the effects of

Butalbital. Dr. Deidiker specifically testified, over

Defendant's objection, that the effects of Butalbital,

a drug found in Hinkle's system, would have

caused sedation and drowsiness rather than

excited or violent behavior.”

“« Defendant's fifth point on appeal actually

raises two separate points of trialcourt error.

"Separate claims of error should be stated in

separate points." State v. Craig, 33 SW.3d 597, 601

n. I (Mo.App.2000); Shoemaker v. Ekunno, 960

Page 75 of 88

At trial, Dr. Deidiker testified that he

conducted an autopsy upon Hinkle following the

shooting. He then testified about his review of Mr.

Rothove's bullet patterning test results and his

opinion that Hinkle was shot by Defendant from a

distance of four to eight inches.”

As previously stated, the matter of

qualifying and allowing the testimony of an expert

witness at trial rests primarily in the sound

discretion of the trial court. Scott, 996 SW.2d at 748.

The decision of the trial court will not be disturbed

by this Court unless we find that there has been an

abuse of discretion. Newcomb, 934 SW.2d at 611.

We do not find that the trial court abused its

discretion in allowing Dr. Deidiker to testify

regarding the bullet patterning results. Dr.

SW..2d 527, 531 (Mo.App.1998). Although not in

compliance with Rule 84.04(d), we gratuitously

review Defendant's point.to determine whether

there has been a showing of manifest prejudice

affecting his substantial rights. See State v.

Hornbuckle, 769 SW.2d 89, 93 (Mo. banc 1989).

'SMr. Rothove performed various tests firing

the pistol at numerous targets to show varying

patterns of burned and unburned gunpowder that

resulted when the pistol was discharged at

different distances and angles.

Page 76 of 88

Deidiker testified that he was a physician trained

in anatomical, clinical, and forensic pathology, and

that he had performed between 600 and 700

autopsies. His testimony regarding the bullet-

patterning test was based on his previous training

and experience, notwithstanding the fact that it

was partially based on his review of Mr. Rothove's

records. See State v. Kennedy, 842 SW.2d 937, 940

(Mo.App.1992) (pathologist testifying that gun had

been fired 12 to 18 inches from victim's temple);

State v. Danikas, 11 SW.3d 782, 786 (Mo.App.1999)

(forensic pathologist concluded "fatal shot was

fired either from over two feet away or into an

intermediate object, such as a pillow."); see also

State v. Bell, 62S.W.3d 84, 92 (Mo.App.2001).

Likewise, Dr. Deidiker appeared qualified to

render an opinion regarding the effects of

Butalbital on a person. In addition to being a

medical doctor, Dr. Deidiker testified that he was

familiar with literature regarding Butalbital and its

effects on people. Even assuming, arguendo, that

this testimony should have been excluded, it was

cumulative to that of Dr. Christopher Long, a

forensic toxicologist, who testified that Butalbital

acts as a sedative.

We do not find that Defendant suffered

manifest prejudice affecting his substantial rights

by the trial court permitting Dr. Deidiker's

testimony regarding bullet patterning comparison

or the effects of Butalbital on an individual. See

Page 77 of 88

State v. Maynard, 954 SW.2d 624, 633 (Mo.App.

1997). Point denied.

WL

Lastly, Defendant asserts in his sixth point

on appeal that the trial court erred in failing to

grant his motion for new trial based upon new

testimony from Mr. Tony Cole, the Iron County

Coroner and a witness at the trial, regarding his

erroneous testimony at trial relating to a

prescription bottle.

At trial, Mr. Cole testified that he retrieved a

bottle of prescription medicine from Defendant's

home bearing the name of Mr. Kenneth Rutter, a

relative of Defendant. From this testimony, the

State attempted to make an inference at trial that

Defendant had illegally obtained prescription

medicine in his relative's name. Later, at a hearing

on Defendant's motion for new trial, Mr. Cole

testified that he believed he erroneously stated that

Mr. Kenneth Rutter's name was on the prescription

bottle at trial when, in fact, he now believed that

Defendant's name was on the prescription bottle.

A trial court is afforded broad discretion in

its determination of whether or not to grant a

motion for new trial, and reversal of its decision on

appeal is warranted only if it is clear that there has

been an abuse of discretion. State v. Ginn, 31

SW .3d 454, 457 (Mo.App.2000). The granting of a

new trial on the basis of newly discovered

evidence is not favored. State v. Magee, 911 SW.2d

Page 78 of 88

307, 312 (Mo.App.1995). In this connection, the

Supreme Court of Missouri has stated:

To receive a new trial

based on newly

discovered evidence the

following must be

established: (1) the

evidence has come to the

knowledge of the

defendant since the trial;

(2) it was not owing to

want of due diligence that

it was not discovered

sooner; (3) the evidence is

so material that it would

probably produce a

different result on a new

trial; and (4) it is not

cumulative only or

merely impeaching the

credit of the witness.

State v. Leitner, 945 SW.2d 565, 574 (Mo.App.

1997) (quoting State v. Amrine, 741SW.2d 665, 674

(Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct.

1756, 100 L.Ed.2d 218 (1988)). Defendant argues

that Mr. Cole's erroneous testimony "was critical to

the State's case and played an instrumental role in

the jury's arriving at a guilty verdict," because the

State argued at trial that Defendant illegally

obtained a false prescription in the name of his

Page 79 of 88

dead relative. Defendant, however, fails to

recognize that Mr. Cole's testimony at the motion

for new trial was not newly discovered evidence,

but rather it merely impeached the credibility of

his previous testimony. "Impeachment evidence is

evidence which challenges a witness's credibility."

State v. Gatewood, 965 S.W.2d 852, 858

(Mo.App.1998). Furthermore, we do not find that

this evidence would have produced a different

result at a new trial. This is because Defendant

effectively cross-examined Mr. Cole at trial and

Defendant testified at trial that he did not illegally

obtain a prescription using the name of his dead

relative.

The evidence Defendant presented at his

motion for new trial constituted impeachment

evidence and was merely cumulative to testimony

presented at trial. See id. at 859. As such, Defendant

failed to establish that he was entitled to a new trial

and the trial court did not abuse its discretion in

denying Defendant's motion for a new trial. Id.;

Leitner, 945 S.W.2d at 574. Point denied.

The judgment is affirmed.

/s/ Robert S. Barney

Robert S. Barney, Chief Judge

SHRUM, P.J. - CONCURS

MONTGOMERY, J. - CONCURS

Page 80 of 88

IN THE MISSOURI COURT OF APPEALS

SOUTHERN DISTRICT

STATE OF MISSOURI, )

)

Plaintiff/Respondent _)

)

)

vs. Appellate

Cause No.

23851

CHARLES RUTTER,

— ~—"—_—

Defendant/ Appellant, )

APPELLANT’S MOTION FOR REHEARING

AND/OR

TRANSFER TO THE MISSOURI SUPREME

COURT

COMES NOW Defendant/ Appellant, Charles

Rutter, by and through his attorney of record, Terry

J. Flanagan, P.C., and, pursuant to MissouriSupreme

Court Rule 30.26, 83.02 and/or 84.17, for his Motion

for Rehearing and/or Transfer to Missouri Supreme

Court states the following to this Honorable Court:

F That on or about April 25, 2002, this Court, by

J. Barney, J. Shrum and J. Montgomery,

rendered its decision in the above-referenced

matter affirming Appellant’s convictions of

Murder in the First Degree and Armed

Criminal Action. A copy of this Court’s

opinion is attached hereto and labeled as

Page 81 of 88

Exhibit A.

That, in accord with Missouri Supreme Court

Rule 30.26, 83.02 and/or 84.17, Appellant

desires rehearing in this matter to call

attention to material matters of law or fact

overlooked or misinterpreted by the court.

That, as and for Issue One (1) that was

presented to this Court, which addressed the

warrantless search of Mr. Rutter’s home after

the home was secured by the officers present

and these same officers knew that no one was

present inside the home in need of assistance

and that no perpetrator could be found

therein, Mr. Rutter brings to this Court's

attention the following: e

a. The Court's opinion failed to consider

and/or reconcile the Eastern District

holding in State v. Rodgers, 573 S.W.2d

710 ((Mo. Ct. App. 1978), and the

Missouri Supreme Court's holding in

State v. Johnston, 957 S.W.2d 734 ((Mo.

1997), and, in fact, it appears that the

opinion rendered in this matter is in

direct conflict with said decisions and

creates a conflict between the Eastern

District Court of Appeals, the Missouri

Supreme Court and the Southern

District Court of Appeals. The conflict

arises as to the existence and

applicability of the exigent

Page 82 of 88

circumstances doctrine and the legality

of a subsequent search of an

individual's home.

The Court’s opinion does not make

citation to any case that is factually

similar to the one before this Court, nor

does it distinguish Rodgers, Johnston

and Tidwell.

The Court’s opinion, in applying the

inevitable discovery doctrine, failed to

consider and/or reconcile the fact that

when Appellant's home was released

by the officers, the physical

characteristics of the home were altered

by Appellant's family in boarding up

the broken windows and removing

valuable items contained therein,

including firearms from the closet in

question. Thus, in light of the changed

circumstances, the inevitable discovery

doctrine was inapplicable.

As and for Issue Three (3), which involved the

limitations placed on Dr. Terry Martinez’s

expert testimony concerning the specific

effects of Butalbital, Mr. Rutter brings to this

Court’s attention the following:

a.

The Court’s opinion fails to consider

and/or reconcile Cochran vs. Industrial

Fuels & Resources, Inc., 995S.W.2d 489,

495 ((Mo. Ct. App. 1999), where the

Page 83 of 88

Southern District Court of Appeals

found that Dr. Terry Martinez was

qualified to testify about specific

toxicological effects of chemical

exposure in a workers’ compensation

claim.

b. The Court’s opinion failed to consider

and/or reconcile Section 190.353 of the

Missouri Statutes, which requires a

board certified toxicologist at a Missouri

Poison information center, and several

other cases cited by Appellant where

Dr. Martinez was allowed to testify as

an expert.

: The Court’s opinion provides that

“Iwlhile the trial court did limit the

testimony of Dr. Martinez, Defendant's

contention that the trial court expressly

declared to the jury that Dr. Martinez

was not an expert is unsupported by the

record.” However, the opinion fails to

~consider the trial court’s statements in

response to certain objections made by

the State at trial, and in the presence of

the jury. For example, the State

objected by stating “I’m going to object

to that your honor, if he’s not been

accepted as an expert how can he draw

a conclusion” (537:7-9) and the trial

court responded that the “Objection is

Page 84 of 88

- sustained.” (537:10).

3 That as and for Issue Five (5), which involved

Dr. Deidiker opining as to the distance

between Mr. Hinkle and the weapon at the

time the weapon was fired based upon bullet

pattern testing conducted by Mr. Rothove, Mr.

Rutter brings the following to this Court’s

attention:

a. There appears to be a misunderstanding

of the facts in that in footnote seven (7)

the opinion provides that Mr. Rothove’s

testing was conducted at various angles.

However, Mr. Rothove testified that the

- testing was not conducted at various

angles. (Tr. 369:9-13); (Tr. 371:18-20).

b. The Court's citation to State v. Kennedy,

842 S.W.2d 937 ((Mo. Ct. App. 1992) and

State v. Danikas, 11 S.W.3d 782 ((Mo.

Ct. App. 1999) is misplaced in that in

those cases this issue was not raised

before the Court, and the citation is

merely to the factual background

contained in the opinion.

e. The Court’s citation to State v. Bell, 62

S.W.3d 84 ((Mo. Ct. App. 2001), is

misplaced because the issue before the

Court is whether the testimony was

appropriate because it was based on

inadmissible hearsay. _

d. The Court’s opinion failed to consider

Page 85 of 88

and/or reconcile State _v. Watt, 884

S.W.2d 413 ((Mo. Ct. App. 1994) and

State v. Love, 963 S.W.2d 236 ((Mo. Ct.

App. 1997).

That as and for Issue Six (6), which involved

the denial of Mr. Rutter’s Motion for New

Trial based upon Mr. Tony’s Cole’s admitted

error in his testimony, Mr. Rutter brings the

following to this Court’s attention:

a. The misstatement of fact was argued by

the State as indicative of Mr. Rutter’s

guilt for the crimes charged and

submitted to the jury for determination.

Thus, the Court’s holding that it was

argued by the State as an inference of

some other illegal act is misplaced.

b. The Court's holding that this

misstatement of fact was merely

impeachment evidence fails to consider

that the State introduced same in its

case-in-chief as substantive evidence

and argued same as_ substantive

evidence during its closing arguments.

£. The Court’s opinion fails to consider

and/or reconcile Section 491.074 of the

Missouri Statutes, which provides that

a witness’ inconsistent statements shall

be deemed as substantive evidence, and

not impeachment evidence.

d. The Court’s holding that this

Page 86 of 88

misstatement was merely cumulative is

misplaced in that Mr. Cole was the only

State witness to testify that Mr. Rutter

obtained Butalbital through a

prescription in Mr. Rutter’s deceased

uncle’s name.

7. That Mr. Rutter submits his Suggestions in

Support of this Motion for Rehearing and/or

Transfer for this Court's review.

8. That, in the alternative, transfer to the

Missouri Supreme Court is sought because of

the general interest or importance of the —

questions involved in this case, for the

purpose of reexamining existing law, and in

order to resolve the apparent conflict with this

Court’s opinion and the holdings of State v.

Rodgers, State _v. Johnston, and the dicta

contained in State v. Tidwell.

WHEREFORE, in light of the foregoing, Mr.

Rutter respectfully requests that this matter be

submitted for rehearing before this Court en banc or

an expanded panel, or, in the alternative, that this

cause be transferred to the Missouri Supreme Court

for hearing and determination and for such other

further Orders and relief that this Court deems just

and proper in the circumstances.

Respectfully submitted,

TERRY J. FLANAGAN, P.C.

Page 87 of 88

Terry J. Flanagan, #21648

John W. Peel, #49637

Attorneys for Appellant

133 S. 11™ Street, Suite 350

St. Louis, Missouri 63102

Ph.: (314) 621-3743

Fax: (314) 231-9552

CERTIFICATE OF SERVICE

A true and accurate copy of the foregoing was

[ ] mailed first-class, U.S. postage pre-paid, [ |]

transmitted via facsimile, [ ] hand-delivered, this 8"

day of May, 2002 to: Office of the Attorney General,

P.O. Box 899, Jefferson City, Missouri 65102; Fax

Number (573) 751-5391.

Page 88 of 88