State v. Kemper

• Court: Missouri Court of Appeals
• Writing for the Court: Before SWOFFORD, P.J., and WELBORN and HIGGINS; ROBERT R. WELBORN
• Citation: State v. Kemper, 535 S.W.2d 241 (Mo. App. 1975)
• Decision Date: 31 December 1975
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Benedict Louis KEMPER, Appellant. 27015.

Page 241

535 S.W.2d 241

STATE of Missouri, Respondent, v. Benedict Louis KEMPER, Appellant.

No. KCD 27015.

Missouri Court of Appeals, Kansas City District.

Dec. 31, 1975.

Motion for Rehearing and/or Transfer Denied Feb. 9, 1976.

Applications to Transfer Denied May 5, 1976.

Frank H. Strong, Larry L. Zahnd, Maryville, William D. Lay, Platte City, Richard J. Habiger, National Juvenile Law Center, St. Louis, for appellant.

John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.

Before SWOFFORD, P.J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

On a change of venue from Nodaway County, a jury in the Platte County Circuit Court found Benedict Kemper guilty on four counts of murder in the first degree. He was sentenced to life imprisonment on each conviction. He appeals from such sentence and judgment.

On October 11, 1972, the bodies of Marion Merrigan and Kathleen Merrigan, husband and wife, and of their children, William and Helen Merrigan, were found in their home near Conception, Missouri. All had died of gunshot wounds from a .22 caliber rifle. The attention of law enforcement officers focused on Benedict Kemper. Shortly after 1:00 A.M., a member of the State Highway Patrol, the Nodaway County Sheriff and the Nodaway County Juvenile Officer went to Kemper's residence, located about 1/4 mile from the Merrigan house. After approximately 30 minutes of questioning, Kemper admitted that he had gone to the Merrigan home at around 11:00 P.M., October 10, 1972, and waited in the brush until the light went out. Then he entered the house, went to a first floor bedroom where he shot Mr. and Mrs. Merrigan with a .22 caliber rifle, and then ran up a stairway and shot Billy Merrigan and Helen Merrigan.

On this appeal, the assignments of error fall into three categories: 1. Juvenile court proceedings. 2. Rulings on motions to suppress statements of appellant. 3. Trial errors.

I Juvenile Court Proceedings

Benedict Kemper was 15 years and 4 months of age on October 10, 1972. Following his admissions he was taken into custody and on October 12, 1972, the juvenile officer filed a petition in his interest in the Juvenile Division of the Nodaway County Circuit Court. An order for dismissal of the petition by the court was set aside by this court in a prohibition proceeding. On March 29, 1973, an amended petition was filed in the Juvenile Division. A hearing was held on the amended petition on May 9, 1973. At the conclusion of the hearing the Judge of the Juvenile Division entered findings and an order dismissing the petition filed in appellant's interest and permitting his prosecution under the general law. Thereafter an information was filed charging him with four counts of murder in the first degree and the case eventually proceeded to trial, with the above-mentioned result.

A Constitutionality of § 211.071, RSMo 1969

In the court below and on this appeal, appellant asserts that § 211.071, RSMo 1969, the statute authorizing the juvenile division of the circuit court to dismiss a petition in that court and permit a minor to be prosecuted criminally as an adult, is unconstitutional. The basis of this contention need not be stated, inasmuch as appellant acknowledges that the Supreme Court of Missouri in State v. Williams, 473 S.W.2d 382 (Mo.1971), and Coney v. State, 491 S.W.2d 501 (Mo.1973), rejected the attack he would make upon this statute. Appellant asserts that these decisions are not in harmony with the Constitution of the United States, but he states that such assertion is made for the purpose of 'preserving the issues.' He obviously recognizes that this court is obliged to follow the rulings of the Missouri Supreme Court.

B Validity of Order of Juvenile Division

Appellant contends that the order of the Juvenile Division dismissing the petition is void for four reasons. As to each he asserts that the deficiency or error deprived him of fundamental fairness and due process of law under the Federal and State Constitutions. He also asserts that the first two deficiencies produced a denial of effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States. He also assigns, in each instance, violation of the applicable provision of the Juvenile Code.

Adequacy of Amended Petition

Appellant contends that the amended petition did not give adequate notice of either the purpose of the hearing or of the ultimate facts supporting the legal conclusion that appellant was not a proper subject to be dealt with under the juvenile law.

The amended petition in this case is something of an amalgamation of the basic juvenile court petition under § 211.091, RSMo 1969, coupled with a request that such petition be dismissed on the grounds that Benedict L. Kemper was over the age of 14 years and had allegedly committed an offense which would be a felony if committed by an adult and he is not a proper subject to be dealt with under the juvenile law. The asserted inconsistencies which a petition in such form presented are not such as to deprive the amended petition of its effectiveness in advising appellant of the purpose of the May 9th hearing.

With respect to the adequacy of the petition, it did state the offense alleged to have been committed by appellant and the conclusion that he was not a fit subject to be dealt with under the juvenile code. The petition was accompanied by a report of the juvenile officer detailing his reasons for such conclusion. The opinion of this court in State ex rel. T. J. H. v. Bills, 495 S.W.2d 722 (Mo.App.1973), affirmed on other grounds, 504 S.W.2d 76 (Mo. banc 1974), is re-adopted as determinative of this contention. 495 S.W.2d 729(18, 19).

Appellant contends that, in State ex rel. R. L. W. v. Billings, 451 S.W.2d 125 (Mo. banc 1970), the court held that juvenile court proceedings should be treated as equitable actions for procedural purposes, that "equitable' proceedings are made to come under the governance of the Rule (sic) of Civil Procedure.' 451 S.W.2d 127. Billings involved the application of Rule 51.03 (now Rule 51.05), change of judge, to juvenile court proceedings. The opinion holds that rules of civil procedure may be applicable to juvenile proceedings, absent express provision in the juvenile code. Section 211.071 sets out the contents of a pleading in the juvenile court which will authorize the waiver of jurisdiction by the juvenile court. Compliance with that provision is all that is required and the rules of civil procedure do not enter into the determination of the sufficiency of the pleading.

Appellant contends that the T. J. H. holding of this court on the adequacy of the notice should not be applied because of the inconsistencies in the allegations of the petition and also because, as more fully discussed below, a special juvenile officer testified without having reduced his report to writing.

As for the first contention, the expressed conclusions and recommendations of the juvenile officer in his written report made it clear that his conclusions were directed at obtaining an order relinquishing jurisdiction by the juvenile court. Again, the alleged inconsistent allegations of the petition did not obscure the recommendation of the juvenile officer and his reasons therefor, so that any claim of lack of adequate notice of facts relied upon is without merit.

As for the testimony of the special juvenile officer, appellant points to no new basic grounds for dismissal of the petition which were supplied by the testimony of the special juvenile officer. In such circumstances the lack of a written report by such officer would not negate the effectiveness of the notice provided by the petition and the report of the juvenile officer which had been reduced to writing.

Testimony of Special Juvenile Officer

Mr. Donald Tharp, an attorney who had previously served as juvenile officer for the Platte County Circuit Court, was appointed to assist the Fourth Circuit Juvenile Officer in this case. When Mr. Tharp was called as a witness in the Juvenile Court proceedings he stated that he had made no written report of his investigation. Counsel for appellant objected to his testifying without having made a prior written report of his investigation. The objection was overruled and Mr. Tharp was permitted to testify. Relying on a statement in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), appellant now contends that the trial court's ruling was a violation of the constitutional guaranties of fundamental fairness, due process of law and effective assistance of counsel.

In Kent, the court stated (383 U.S. 556, 86 S.Ct. 1055):

'It is clear beyond dispute that the waiver of jurisdiction is a 'critically important' action determining vitally important statutory rights of the juvenile.'

The court further stated (383 U.S. 557, 86 S.Ct. 1055):

'* * * (W)e conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel.'

This language cannot be taken to mean that any official of the juvenile court who is to testify in waiver proceedings must have, as a constitutional requirement, previously submitted to the court a written report of his investigation. All that it requires is that if the official has submitted such a report which is to be considered by the court, such written report must be made available to counsel for the juvenile. §§ 211.071 and 211.401, RSMo 1969, relied upon by appellant, do not establish any constitutional barrier to the testimony offered in ...