State v. Kelley

• Decision Date: 17 July 1997
• Docket Number: Nos. 19988,20892,s. 19988
• Citation: 953 S.W.2d 73
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Doyle KELLEY, Defendant-Appellant. Doyle KELLEY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 73

953 S.W.2d 73

STATE of Missouri, Plaintiff-Respondent, v. Doyle KELLEY, Defendant-Appellant.

Doyle KELLEY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

Nos. 19988, 20892.

Missouri Court of Appeals,

Southern District,

Division Two.

July 17, 1997.

Motion for Rehearing or Transfer

Denied Aug. 8, 1997.

Frederick A. Duchardt, Kearney, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., David R. Truman, Asst. Atty. Gen., Jefferson City, for Respondent.

SHRUM, Judge.

A jury convicted Doyle Kelley (Defendant) of first degree murder in the death of Diana Kelley and first degree murder in the death of Christy Kelley. For each conviction, the trial court sentenced Defendant to life imprisonment without parole. Defendant brings appeal 19988 from those judgments.

In his direct appeal, Defendant's principal claims of trial court error are in two categories: First, that the trial court committed reversible error when it allowed the State to join the two murder charges and refused to sever the cases, and second, that the trial court erred in several evidentiary rulings. We reverse the judgment stemming from Defendant's conviction for the murder of Christy Kelley and remand that case for further proceedings. We affirm the judgment on Defendant's conviction for the murder of Diana Kelley.

While his direct appeal was pending, Defendant filed a motion to vacate the judgment and sentence per Rule 29.15. The motion court denied relief after an evidentiary hearing. Defendant brings appeal 20892 from that order. In 20892, we affirm the portion of the judgment of the motion court that denies postconviction relief for the murder of Diana Kelley. No. 20892 is moot as to denial of postconviction relief for the murder of Christy Kelley.

We consolidate the appeals pursuant to Rule 29.15(l ) but analyze them separately. ¹

DIRECT APPEAL: NO. 19988

FACTS

Defendant does not challenge the sufficiency of the evidence. On the morning of September 26, 1990, the body of Diana Kelley (Diana) was found in her car on a Joplin, Missouri, parking lot. ² Defendant, who was then Diana's husband, had filed a missing person report concerning Diana before her body was found. Defendant told the police that he and Diana had been separated for about two weeks but had agreed to meet at 9:00 p.m. the night before her body was found. According to Defendant, she did not meet with him as scheduled. Later, Defendant said that he called Diana's mother twice asking for Diana on the night of September 25.

Virginia Stepp (Mrs. Stepp), Diana's mother, confirmed that Defendant called twice on the night of September 25. She also told police that Diana was afraid of Defendant and had been living at Mrs. Stepp's home for Dr. James Habermann conducted the initial autopsy of Diana's body. Among other findings, Dr. Habermann noted several small areas of hemorrhage on Diana's face and neck. Dr. Habermann found that Diana died of respiratory failure. However, he could not detect if she died of strangulation.

two weeks before her death. Mrs. Stepp said she saw Defendant at his home between 6:30 and 6:45 a.m. on September 26.

Debra Stout, a friend of Diana's, testified that Diana visited in Stout's home on the evening before she died. During that visit, which occurred around 5:00 p.m., Stout saw that Diana was wearing a gold chain and a St. Christopher medal.

Two days after Diana's death, Stout was visiting in Defendant's home. While she was there, Defendant took Diana's gold chain and St. Christopher medal to the basement and "smashed it, I believe with a hammer." Stout was asked if Defendant had an explanation about where he had gotten the jewelry. She answered that Defendant said it had been given to him by the police or someone at the mortuary.

Policemen testified that the chain and medal were not at the murder scene when they investigated. Mrs. Stepp testified that she was present when mortuary employees gave Diana's jewelry to Defendant. At the time, Mrs. Stepp selected a ring to put on Diana's hand. She did not, however, see a St. Christopher medal among the items given to Defendant.

During his testimony, Defendant admitted that a few days after Diana's death, he had her St. Christopher medal. He also admitted that he smashed the medal and then threw it away. Defendant claimed that someone at the mortuary had given him this item of jewelry.

In 1991, Defendant was married to Christy Kelley (Christy). ³ In March 1993, Christy and Defendant separated. Defendant and Christy arranged to meet on April 24, 1993, to exchange items of property. Witnesses saw Christy and Defendant on the parking lot of Christy's apartment during the afternoon of April 24. One witness saw Defendant alone at Christy's apartment building that afternoon.

On the evening of April 25, Christy's family contacted the Joplin police department. They requested that the police check on Christy since she was several hours overdue to pick up her daughter. Joplin police officers forcibly entered Christy's apartment and found her body floating face down in the bathtub.

Dr. Darrell Swank performed an autopsy on Christy's body. Among other findings, Dr. Swank said that Christy had a deep laceration on her forehead caused by blunt force trauma, vomitus in her nose and mouth, and edema in her lungs. Dr. Swank concluded that Christy's death was caused by drowning.

On August 25, 1993, the body of Diana was exhumed. At this time Dr. Jill Gould conducted autopsies of both Diana and Christy. She found the ligament from Diana's hyoid bone had been pulled apart and discovered a bruise on the back of Diana's esophagus. Dr. Gould concluded that Diana's death was caused by soft ligature strangulation. During Dr. Gould's autopsy of Christy's body, she found several bruises in various locations. Dr. Gould suggested that these bruises were caused by blunt impact from multiple directions, which would have been inconsistent with a fall in the bathtub. Dr. Gould confirmed Dr. Swank's finding that drowning was the cause of Christy's death.

While Defendant was in the Jasper County jail awaiting trial, Lonnie Bell (Bell) was also an inmate in that facility. For approximately three days in early June 1994, Bell was in the same area of the jail as Defendant. Bell testified that Defendant admitted killing both Diana and Christy by strangling them.

DISCUSSION AND DECISION

Points I, II, and III: Joinder and Severance Issues

Defendant first contends that joinder of the two first degree murder charges was improper because § 565.004.1 RSMo, Cum.Supp.1993 that allows joinder of capital cases based on 545.140.2, RSMo (same or similar character rationale) came into effect after both murders had been committed. In spite of established precedent to the contrary, Defendant argues that joinder should be viewed as substantive law and not as a procedural matter. Thus, he asserts that the trial court retroactively applied § 565.004.1 contrary to United States and Missouri constitutional prohibitions against ex post facto criminal laws.

The federal and state prohibitions against ex post facto laws apply to retrospective enactments that disadvantage a defendant by altering substantial personal rights; yet, these prohibitions do not affect retrospective changes in modes of procedure. Miller v. Florida, 482 U.S. 423, 430, 433, 107 S.Ct. 2446, 2451, 2452-53, 96 L.Ed.2d 351 (1987); State v. Stevens, 757 S.W.2d 229, 231 (Mo.App.1988). A substantive enactment increases punishment or changes the ultimate facts or elements required to establish guilt. Miller, 482 U.S. at 433, 107 S.Ct. at 2452-53; State v. Hillis, 748 S.W.2d 694, 697 (Mo.App.1988). "A procedural law is the 'machinery' for carrying on the suit." State v. Casaretto, 818 S.W.2d 313, 316 (Mo.App.1991).

In State v. Baker, 524 S.W.2d 122 (Mo.banc 1975), the Missouri Supreme Court held that the rule of criminal procedure on joinder, then Rule 24.04, was procedural. Id. at 127. In 1977, the Missouri Supreme Court, again, held that the rule regarding joinder was procedural, not substantive. State v. Duren, 556 S.W.2d 11, 19 (Mo.banc 1977) rev'd on other grounds, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). The holding in Duren denied an appellant's challenge that joinder was a substantive matter and therefore an improper subject for a Supreme Court Rule under Article V, Section 5 of the Missouri Constitution. Id. The Court denied essentially the same constitutional challenges in State v. Lee, 556 S.W.2d 25, 29 (Mo.banc 1977) and State v. Minor, 556 S.W.2d 35, 38 (Mo.banc 1977).

While Defendant challenges the retroactivity of a joinder statute and not a Supreme Court Rule, we note that Rule 23.05 and Rule 24.07 address the subject of joinder. Joinder is a procedural matter under the rationale of Baker, Duren, and their progeny. Joinder does not increase the punishment nor change the essential facts or elements of a crime. Thus, the retroactive application of § 565.004.1 here does not constitute error. See State v. Harris, 705 S.W.2d 544, 547-548, n. 1 (Mo.App.1986). Point I is denied.

Defendant's second point contends that the two murders were improperly joined because the two crimes were not the same or similar in character. He asserts that the space of nearly three years between the murders defeats the reasoning that the two murders were the same crime or similar in character. He also places heavy emphasis upon an argument that the tactics employed in the murders necessarily render the crimes too dissimilar for joinder. We disagree.

Joinder is either proper or improper. State v. Langston, 889 S.W.2d 93, 96 (Mo.App.1994). The propriety of joinder is a matter of law. State v. Jones, 863 S.W.2d 353, 356-57 (Mo.App.1993). A trial court's decision as to whether joinder is proper should be based solely on the State's evidence. Langston, 889 S.W.2d at 96. Liberal joinder of offenses is favored in order to achieve judicial economy. Id.; Jones, 863...