Court of Appeals of Missouri, Western District, Second Division
LANCE C. BUTLER, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Clay County, Missouri The Honorable
David P. Chamberlain, Judge.
Before: Karen King Mitchell, Chief Judge, and Alok Ahuja and
Edward R. Ardini, Jr., Judges.
King Mitchell, Chief Judge.
Butler appeals, following an evidentiary hearing, the denial
of his amended Rule 29.15 motion for post-conviction relief, in
which he argued that his trial counsel was ineffective for
failing to (1) object to impermissible prior bad acts and
propensity evidence and (2) depose the State's witnesses.
Although not raised in his amended motion, Butler now claims
the judgment issued by the trial court contains a clerical
error, and he asks this court to remand the case with
instructions to issue a nunc pro tunc order. Finding
no error, we affirm the motion court's denial of
Butler's motion for post-conviction relief. Because
Butler's request for remand is not properly before this
court, his request is denied.
17, 2012, Zachary Lisle, a confidential informant, contacted
the Clay County Drug Task Force because he had arranged to
buy one pound of marijuana for $950 from someone named
"L.C." Deputy Sharon Taylor was working as a
sergeant for the Task Force at the time. She met Lisle and
had him outfitted with a recording device. Lisle and Deputy
Taylor then went to a Walgreens parking lot at the
intersection of Antioch Road and Vivion Road where Lisle
arranged to complete the transaction with L.C. A "cover
team" of police officers was situated nearby.
to Deputy Taylor's instruction, Lisle called L.C. to tell
him that they were at the parking lot and ready to buy the
marijuana. Lisle and L.C. exchanged additional phone calls
and text messages before a man carrying a duffle bag
approached Deputy Taylor and Lisle's vehicle. Deputy
Taylor asked whether that man was L.C., and Lisle responded,
"Yeah. That's our man." At trial, Deputy Taylor
identified Butler as the man who approached the car.
came around to the passenger's side of the vehicle where
Lisle was sitting, and Deputy Taylor rolled down the window.
Butler leaned in the window and fumbled with his bag. Deputy
Taylor saw Butler's hand move upward, and she spotted a
gun, which Butler pointed in her face while demanding she
give him the money and car keys. Deputy Taylor complied. At
that point, Butler pointed the gun at Lisle and demanded
Lisle's phone. Once Butler had the money, keys, and
phone, he ran.
running, Butler threw the keys into the grass. A member of
the cover team chased Butler on foot across the parking lot
toward the street. A white Ford Explorer arrived, and Butler
jumped into the passenger side of the vehicle, which then
Davis, an off-duty detective specializing in drug
enforcement, was picking up a prescription at the Walgreens
and saw Butler running toward the street. Detective Davis got
in his car, called 911, told the dispatcher what he saw, and
followed the Ford Explorer into Jackson County and onto Paseo
Boulevard. Kansas City police officers stopped the Ford
Explorer at the intersection of Truman Road and Paseo
Boulevard. Butler jumped out of the vehicle and ran. The
officers who pulled the vehicle over chased Butler and
apprehended him. Once Butler was in custody, the officers
retraced Butler's footsteps and found some of the money
that Deputy Taylor had surrendered to Butler. The rest of the
money was found in both the Ford Explorer and Butler's
pockets. Lisle's cell phone, however, was not recovered.
next day, Special Agent Harry Lett of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives searched the intersection
of Truman Road and Paseo Boulevard for the firearm Butler had
pointed at Deputy Taylor. Though the area had not been
secured overnight, Agent Lett found a firearm similar to the
one described by Deputy Taylor in an alleyway underneath some
weeds. A magazine and live ammunition were also recovered,
but no useful fingerprints were found on these items.
State charged Butler as a persistent offender with two counts
of robbery in the first degree in violation of §
569.020,  two counts of armed criminal action in
violation of § 571.015, and one count of unlawful
possession of a firearm in violation of § 571.070. One
robbery charge and related armed criminal action charge
involved Butler's actions toward Deputy Taylor; the
second robbery charge and related armed criminal action
charge involved Butler's actions toward Lisle. Before
trial, the State dismissed the unlawful possession of a
before trial, an investigator from the Public Defender's
office interviewed Lisle. Shortly after that interview, trial
counsel informed Butler of counsel's plans to depose
Lisle and Deputy Taylor so he would have their sworn
statements to use for impeachment at trial. The Public
Defender's office, however, declined to provide funding
for the depositions, so they did not occur as
trial, the State asked Deputy Taylor how the Clay County Drug
Task Force works with confidential informants. She testified:
It depends on what kind of charges they have. Sometimes if
they have the, the charges and they're all narcotics
related, if there is not a huge amount, or is a big charge,
then they're, we approach them and say, hey, we can work
with you to make a discharge, work your charges with us in
exchange for you to introduce to the big drug dealers out
there. So, we can start working them doing undercover,
undercover buys and, you know, working charges on them.
response to a question about her ability to function
effectively as a task force member without confidential
informants, Deputy Taylor testified that she needed
[I]n that environment, it's not easy for me to come to a
drug dealer and say, hey, I want to buy drugs from you,
because they don't [know] me, they don't trust me.
So, the way to work our way in is by working with somebody
they trust. And if you're new in that, in that world, per
se, you are not a trusted person, so they will not sell [to]
you, they will not talk to you, they just, they don't
even want to see you around them.
in response to a question about the proximity of backup
officers during an undercover drug buy, Deputy Taylor said,
"it varies, depending on, on the location, because some
of the drug dealers have counter surveillance, we have to be
trial, Lisle testified that he did not have a good memory of
the robbery because it was brief and shocking and he was high
at the time. Initially, he said he could not remember a gun,
but he later remembered seeing one. He testified that he
"basically" remembered the gun and that Butler was
the person with the gun who took Lisle's cell phone and
the money. Lisle admitted that, when interviewed after the
robbery, he truthfully told police that Butler had a gun, but
he later claimed that the police were "egging [him]
on" and "driving [him] crazy," so he told them
"everything they told me to say." Lisle also
admitted that Butler spoke to him before trial, telling Lisle
to contact trial counsel and say that there had been no gun
and that the robber had only a drawstring bag. Lisle felt
"pressured under the moment" to contact
Butler's trial counsel. Lisle vacillated as to whether he
was under pressure from Butler when he later spoke with the
investigator. Lisle also testified that Butler did not
"personally pressure" him but that, if he did not
do what Butler wanted him to do, it was not "going to be
too good for [Lisle], honestly."
investigator testified that Lisle had told her he was so high
the day of the robbery that he remembered seeing only a
drawstring bag; he could not remember a gun, and, if there
had been a gun, he could not have said what kind of gun it
was. Lisle just wanted to "go back to his girlfriend in
the motel, but detectives told him he was not going anywhere
until he wrote a statement, or else he was going to
jail." Lisle also told the investigator that he was not
under any pressure to talk with her and that he did not
remember what he had said in his statement to police or
whether he had identified the right person in the lineup.
jury found Butler guilty of robbery and armed criminal action
based on his conduct toward Deputy Taylor, but the jury found
him not guilty of robbery and armed criminal action involving
his conduct toward Lisle. The trial court sentenced Butler as
a persistent offender to consecutive terms of thirty
years' imprisonment for robbery and twenty years'
imprisonment for armed criminal action. Although the State
did not plead or prove, and the trial court did not find,
Butler to be a Dangerous Offender, the judgment stated,
"The defendant has been found beyond a reasonable doubt
to be a: Dangerous Offender (558.016 RSMo)."
direct appeal, Butler challenged the admissibility of the
firearm located by Agent Lett, arguing that the firearm was
neither logically nor legally relevant to the charges against
him. State v. Butler, WD76747, memo. at 5 (Mo. App.
W.D. April 7, 2015). This court rejected Butler's
admissibility challenge, finding that Deputy Taylor's
testimony alone was sufficient to admit the firearm as
"the firearm" involved in the robbery. Id.
at 6. We affirmed Butler's convictions ...