Youngstown Daily Legal News

Accused murderer will get another day in court following new evidence

ANNIE YAMSON
Special to the Legal News
Published: October 22, 2014

A divided appellate panel in the 11th District Court of Appeals remanded a murder case to the Portage County Court of Common Pleas when it found that a defendant presented potentially new evidence in his petition for postconviction relief which was previously denied by the lower court.

A jury found defendant William Butcher guilty of aggravated murder, four counts of kidnapping, aggravated robbery and aggravated burglary and he was sentenced to life in prison with parole eligibility after 30 years.

According to case summary, Butcher with his three codefendants, Lawrence Burfitt, Damiyon Baxstrumn and Jarmel Latimer, forcibly entered the home of Ericka Rouser on April 18, 2010.

Clifford Cummings was also in the apartment and he was struck in the head with a tire iron upon the men’s entrance.

Baxstrumn proceeded to strike Cummings with an air pistol and demand money while Burfitt pushed Rouser and her two children into a utility closet.

Cummings was then attacked by Latimer, who held a knife. According to Burfitt’s testimony at trial, Butcher restrained Cummings while Latimer delivered a fatal stab wound to his chest.

At trial, Baxstrumn testified that the men then fled the apartment “with Cummings’ wallet, his keys, his life.”

All of the defendants were eventually convicted and received life sentences with parole eligibility after 25 or 30 years. Butcher’s direct appeal was overruled by the Portage County court in 2011.

On Dec. 12, 2011, Butcher filed a timely petition for postconviction relief. That was also denied by the trial court when it found that the issues he argued could have been raised on direct appeal.

Butcher’s most recent appeal challenged the trial court’s denial of his petition. He claimed he received ineffective assistance of counsel because his lawyer failed to present a valid alibi.

He also claimed there was no evidence that he acted as an accomplice in Cummings’ murder and that the prosecutor improperly used police reports as witness statements.

The court of appeals found that Butcher could have raised all of those issues on direct appeal.

It also noted that Butcher’s alibi was refuted by multiple witnesses at his trial who placed him at the scene of the murder.

One assignment of error was upheld, however.

In it, Butcher argued that his codefendant, Burfitt, suffered from a cognitive deficiency which led him to falsely implicate Butcher in the murder.

In support of that claim, Butcher produced an affidavit from Ralph Underwood, a fellow inmate of Burfitt’s.

According to Underwood, Burfitt told him that Butcher was not involved in the murder Cummings.

Instead, Burfitt said he implicated Butcher in the murder in order to placate investigators and avoid the death penalty.

Underwood further claimed that Burfitt admitted he presented false testimony.

“In (Butcher’s) view, this demonstrates Burfitt was mentally ill or intellectually slow, rendering him being susceptible to suggestion leading to false testimony,” wrote Judge Cynthia Westcott Rice on behalf of the appellate panel.

Rice held that Butcher never produced anything that would indicate that Burfitt was mentally ill and she said the information in the record did not reflect that Burfitt was particularly susceptible to suggestion.

But, if believed, she ruled that Underwood’s affidavit provides evidence that Burfitt lied to protect himself, “an ignoble, but inherently pragmatic maneuver.”

“The purported exchange between Underwood and Burfitt occurred after appellant’s trial and conviction,” wrote Rice. “It therefore constitutes evidence dehors the record.”

In his affidavit, Underwood claimed that Burfitt wrote a preliminary written statement essentially exonerating Butcher from involvement in the murder.

If the statement actually exists, the appellate panel ruled that it would be sufficient evidence to establish that the state knew of the false testimony.

“The affidavit, therefore, is adequate to create a genuine question regarding whether appellant’s due process rights were compromised,” Judge Rice concluded.

Judge Diane Grendell dissented.

In her separate opinion, she stated that the majority should not have determined that the state should have known that Burfitt’s trial testimony was false.

“Such a conclusion requires an assumption that a defendant arrested in a murder case always tells the truth when questioned and any change in his statement puts the state on notice that his subsequent testimony will be false,” wrote Judge Grendell.

A defendant altering his story is not uncommon, according to Grendell.

Either way, she held that, if the testimony was false, no prejudice occurred because plenty of other evidence and testimony proved Butcher’s participation in the murder.

Judge Colleen Mary O’Toole concurred with Judge Rice on the affidavit issue, resulting in a majority ruling that remanded the case back to the Portage County court.

Judge O’Toole dissented on the issue of ineffective assistance of counsel, however, writing that she did not believe the issue was barred by res judicata.

The case is cited State v. Butcher, 2014-Ohio-4302.

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