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September 6, 1983


From the Circuit Court of McDonald County; Criminal Appeal; Judge George Henry.

Before Flanigan, P.j., Greene, C.j., Titus, Crow, JJ.

The opinion of the court was delivered by: Titus

Defendant was jury-convicted of first degree murder ( § 565.003) *fn1 in connection with the September 10, 1981, killing of John W. Kemm (hereinafter Kemm) and was sentenced to life imprisonment. Defendant appealed when his post-trial motions were denied.

Three days before the charged homicide occurred, defendant became 19 years of age. He was employed as an orderly in a Joplin nursing home from 2:45 to 11 p.m. Kemm, who was 53 years old at the time of his death, had been widely traveled concert organist for some 12 or 15 years. He was also organist at a Webb City church where his wife sang in the choir. On the night of September 9, 1981, the Kemms returned to their Joplin residence following choir practice when Kemm left his wife with the avowed intent of going to a Joplin night club to listen to music.

After defendant left work at 11 p.m. on September 9 he reportedly drank some whiskey before going to the Joplin residence of Jamie McKeel and Shannon Russell. Upon arrival at the home of his female friends defendant was not drunk and, following a brief Discussion, defendant and Ms. Russell, also a minor, left in defendant's car and drove to Wild Bill's, a Joplin saloon, arriving near midnight. Following defendant's consumption of whiskey and beer for about an hour, Kemm, whom neither defendant nor Ms. Russell knew previously, approached the couple, introduced himself and bought about three rounds of drinks before the bar closed at 1:30 a.m. on September 10. However, before departing the bar Kemm bought some cans of beer and suggested the three "go party."

Kemm, driving his car, followed defendant's automobile, also occupied by Ms. Russell, to the residence of Ms. Russell and Ms. McKeel. The two house residents, defendant and Kemm visited and drank beer until 2:30 or 3:00 a.m. when the two men departed driving their respective vehicles. Before their departure, however, and while Kemm was in the bathroom, defendant told Ms. Russell and Ms. McKeel that he thought Kemm was queer and if so he was going to roll him. Defendant also told Ms. McKeel that he would be back.

With defendant in the lead and Kemm followihg, the duo drove to Wildcat Park south of Joplin to a part thereof known as Mother Nature's Crack which consists of a rock bluff some 45 or 50 feet high with a large crack therein which can be used to go from top to bottom and vice versa. Northeastward from the base of the cliff a distance of 80 feet is Shoal Creek. According to subsequent statements attributed to defendant, when he and Kemm arrived at the top of the cliff Kemm put his hands inside defendant's shirt and tried to kiss defendant on the neck and defendant pushed Kemm away. Kemm, said defendant, was not easily repulsed and tried to fondle defendant's privates but defendant either hit or kneed Kemm who fell. Defendant recounted that as Kemm was arising he stumbled backward off the cliff. He also told an officer he had "shoved" Kemm off the cliff because "the guy was gay." Defendant went down the crack to where Kemm had landed (presumably on his buttocks according to the coroner) and believed Kemm was still alive. Although defendant indicated that was where he had robbed Kemm, the latter's body, when found, was 75 feet from the base of the cliff and within five feet of the bank of Shoal Creek. Also, personal items of Kemm's, such as glasses, watch, etc., were found scattered from 9 to 40 feet along a path from the cliff base to the river. Kemm's clothing, when he was found, was mud covered with the exception of its clean pockets which had been turned and left inside out. From Kemm's body and clothing, defendant removed Kemm's wallet and rings and returned to Kemm's car which he vandalized by removing therefrom the stereo and speakers and by relieving it of the spare tire and pump. The items stolen from Kemm and his automobile were later given to the authorities by the couple with whom defendant was residing at the involved times.

The court gave instruction No. 5 patterned after MAI-CR2d 15.12 as offered by the state. In part, that instruction reads: "If you find and believe from the evidence beyond a reasonable doubt: First, that . . . the defendant caused the death of . . . Kemm by striking, pushing, and causing him to fall, and Second, that he did so in robbing or attempting to rob . . . Kemm, . . ." In his first point relied on defendant contends the court nisi erred in not adding, as offered by defendant's proffered but refused instruction, a third paragraph following paragraph "Second" which included an additional charge reading: " . . . and, Third, that the defendant is not entitled to an acquittal due to intoxication as submitted in Instruction No. 18, . . ."

Instruction No. 18 concerned defendant's "special negative defense" under § 562.076 which states: "1. A person who is in an intoxicated or drugged condition whether from alcohol, drugs, or other substance, is criminally responsible for conduct unless such condition (1) Negatives the existence of the mental states of purpose or knowledge when such mental states are elements of the offense charged or of an included offense; . . . 2. The defendant shall have the burden of injecting the issue of intoxication or drugged condition." See MAI-CR2d 3.30.1 and Notes on Use 5.

Albeit defendant asked and the court gave Instruction No. 18, the propriety of the giving thereof is doubtful and if it was error, which we do not decide, it was one for which defendant may not complain. State v. Lowery, 565 S.W.2d 680, 683-684[1] (Mo. App. 1978). Not all degrees of intoxication present a defense under § 562.076. To warrant an instruction on such a defense, the evidence must show the defendant was so intoxicated that he did not know what he was doing [State v. Lee, 647 S.W.2d 817, 819-820 (Mo. App. 1983); State v. Bienkowski, 624 S.W.2d 107, 108[1] (Mo. App. 1981)] and until defendant introduces evidence of the required degree of intoxication the issue need not be submitted to the jury. State v. Gullett, 606 S.W.2d 796, 806[4] (Mo. App. 1980). Although there was evidence anent defendant's drinking on the night in question and some witnesses friendly to defendant testified he was drunk in their opinion, his personal detailed accounts concerning his actions at all pertinent times in question attest to defendant's complete awareness of his deportment and conduct which negatives any degree of complete drunkenness which rendered him incapable of forming an intent to commit the charged crimes. Defendant was able to give the investigating officers detailed accounts of the events which occurred prior to, druing and subsequent to what happened at Mother Nature's Crack. He accurately accounted for the things he took from Kemm and from Kemm's automobile. Defendant acknowledged that he drove to and from Wild Bill's and to and from Mother Nature's Crack with no apparent difficulty. He descended to and ascended from the difficult terrain where Kemm came to rest after falling off the cliff. Defendant was able to ascertain that Kemm was still alive after the fall and was able to remove the items he stole from Kemm's person and his automobile. Defendant's almost total recall of what happened before, during and after the pertinent events belies any degree of drunkenness which rendered him incapable of forming an intent to commit the crimes charged and it was not error for the trial court to reject the proffered instruction in lieu of given Instruction No. 5. State v. Gannaway, 649 S.W.2d 235, 238[4] (Mo. App. 1983). Defendant's first point relied on is denied.

Defendant's second point relied on, in effect, is that the trial court erred in admitting State's Exhibit 19, a pair of trousers, into evidence because the evidence did not disclose the trousers were in the same condition as when Kemm's body was discovered and the evidence did not establish a proper chain of custody of the trousers.

A detective sergeant from Joplin testified that before Kemm's body had been moved from where it had been found 75 feet from the base of the cliff from which Kemm had been pushed or had fallen, photographs had been taken of the body and photographic Exhibit 25 was one of the photos. The photograph was received into evidence without objection. Both the photograph and Exhibit 19 showed the trousers were soiled with mud or clay which existed between the base of the cliff and where the body was found. However, the pockets of the pants, which were turned inside out when Kemm's body was discovered, were free from the mud and clay present on the other parts of the trousers. After the photographs were taken and preliminary investigations were completed, Kemm's body, fully clothed, was transported by police to a vehicle and taken directly to a funeral home where Kemm's clothing was removed to accommodate an autopsy witnessed, inter alia, by the detective in question. The detective obtained Kemm's clothing, including the trousers, took it to the police station, tagged it and placed it in the evidence room at the police station where it remained until identified by him at trial.

To establish a chain of custody of an item of evidence it is not necessary to account for every hand-to-hand custody thereof between the time it is obtained and its introduction at trial. State v. Payne, 612 S.W.2d 353, 356[5] (Mo. App. 1980). Evidence necessary to establish chain of custody is enough if it demonstrates a reasonable assurance the exhibit is the same and in the condition when first found. State v. Branscomb, 638 S.W.2d 306, 308[6,7] (Mo. App. 1982). The admission of demonstrative evidence and whether it was in a properly established chain of custody is primarily within the discretion of the trial Judge. State v. Murray, 630 S.W.2d 577, 581[9] (Mo. banc 1982); State v. Branscomb, supra, 638 S.W.2d at 307[3]. Moreover, "hain of custody is an irrelevant issue where the exhibit [as here] is positively identified. State v. Ingram, 607 S.W.2d 438, 441 (Mo. 1980)." State v. Mangan, 624 S.W.2d 156, 157[5] (Mo. App. 1981). From the photographic exhibit evidencing the condition of the trousers and its pockets at the scene where Kemm's body was found, from the description thereof by the officer of their condition both at the scene of finding and when the trousers were removed at the mortuary, coupled with his identification of the trousers at trial, the Judge could reasonably conclude the pants were in the same condition during those intervals and that the chain of custody was properly established. Ergo, defendant's second point relied on is denied.

Under his third point relied on defendant contends the trial court erred in alternately charging the jury that if it did not find defendant guilty of first degree murder, etc., it should consider whether he was guilty of second degree murder, manslaughter, first degree robbery, second degree robbery or stealing because the jury could have found defendant guilty of multiple offenses with which he was not charged in the amended information. Assuming, but not deciding, the court erred in giving any one or more of the instructions complained of, as defendant was convicted of murder in the first degree and none of the other crimes dealt with in the additional instructions, any error occurring by giving the additional charges would be harmless to defendant and concerning which he may not now successfully complain. State v. McIlvoy, 629 S.W.2d 333, 338, 339[8] (Mo. banc 1982); State v. Oliver, 572 S.W.2d 440, ...

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