By Jeff Lehr
PINEVILLE, Mo. —
A judge has ruled that an Arma woman should be tried on a charge of involuntary manslaughter, and not murder, in the death of her 4-month-old baby.
District Judge A.J. Wachter ordered Heather L. Buckalew, 25, bound over for trial on the manslaughter charge at the conclusion of a hearing this week in Crawford County District Court in Pittsburg.
The state had charged Buckalew with second-degree murder, alleging that her recklessness caused the death of her infant son, Memphis Cash Harvey, on Aug. 31 of last year. The baby died while asleep with his mother on a couch in their home.
Testimony was presented at a preliminary hearing May 21 that Buckalew had been drinking beer with her boyfriend and father of the baby, Donald Harvey, before falling to sleep on the couch about 1 a.m.
The father got up to go to work about five hours later and found the infant face down on a pillow between the back of the couch and his sleeping mother. The baby was no longer breathing and could not be resuscitated.
The death was treated as accidental until a final autopsy report was issued Jan. 25. The forensic pathologist who performed the autopsy determined that, while he could not rule out sudden infant death syndrome, the more probable cause of the infant’s death was asphyxia by overlay. In other words, the mother smothered the child while both were sleeping.
Defense attorney John Gutierrez argued at the May hearing and in a written motion filed with the court that his client was overcharged. The state was basing its claim of recklessness on Buckalew’s purported intoxication alone, which was insufficient to support a charge of unintentional murder, he argued. The defense attorney maintained that the state also had to show a conscious disregard for the safety of the child on the part of his client.
The judge had delayed making a decision in the case at the conclusion of testimony May 21 in order to allow the state and defense time to present more written or oral arguments on the issue.
In his order this week, the judge noted that under Kansas law both unintentional murder, or “depraved heart murder,” and involuntary manslaughter involve recklessness. While both require a showing of “a realization of the imminence of danger and a conscious disregard of that danger,” depraved heart murder also requires the element of “extreme indifference to the value of human life,” according to the state’s supreme court.
In dismissing the murder charge, Wachter wrote that “no evidence is presented sufficient for this court to find that defendant acted with extreme indifference to the value of human life” beyond the indifference present in all reckless killings. But the judge found that there had been sufficient evidence presented by Reina Probert, the deputy county attorney prosecuting the case, to believe that the crime of involuntary manslaughter was committed by the defendant.
The judge has set Buckalew’s arraignment in a trial division of the court for July 29.
A police officer testified in May that Heather Buckalew had been drinking enough beer to make her speech slurred and her walk unsteady the night her baby died. She later admitted to an investigator that she’d had “quite a few beers,” according to court records.