State v. Nelson
| Decision Date | 14 October 1974 |
| Docket Number | No. 58224,No. 1,58224,1 |
| Citation | 514 S.W.2d 581 |
| Parties | STATE of Missouri, Respondent, v. Steven Gale NELSON, Appellant |
| Court | Missouri Supreme Court |
Steven Gale Nelson was convicted by the jury of murder, first degree. His punishment was assessed at life imprisonment, and sentence and judgment were rendered accordingly. § 559.010 RSMo 1969, V.A.M.S. (Appeal taken January 11, 1973 jurisdiction retained pursuant to order April 9, 1973.)
Appellant contends first that the court erred in submitting this case as murder, first degree, 'for the reason that the evidence is insufficient to permit the jury to specifically find all the constituent elements of the same offense, namely, the elements of deliberation and premeditation.'
Appellant states the question to be whether the evidence shows the shooting to have been done deliberately, that is, in a cool state of blood, or with a cool and deliberate state of mind, or whether the evidence shows the shooting to have been done suddenly or impulsively. He asserts that the only evidence is that after being goaded by one of his companions, defendant followed other companions into the home of deceased and allegedly shot him; that such evidence does not describe a cool state of blood or mind, but a sudden and impulsive act, and therefore a case of murder, second degree, at best.
In presenting his point, appellant recognizes that the deliberation and premeditation necessary to constitute murder, first degree, may be inferred from the circumstances of the homicide. State v. Goodwin, 352 S.W.2d 614 (Mo. banc 1962); State v. Snow, 293 Mo. 143, 238 S.W. 1069 (1922).
Thomas Michael Emig and the victim of this homicide, Jerome Misselhorn, were friends and shared an apartment at 6317 Cates, University City, St. Louis County, Missouri. On December 14 or 15, 1971, a man, later identified as Michael Berry, came to the apartment, dressed in hospital garb, seeking help. He departed when Mr. Emig refused the requested assistance without first notifying the police of Berry's plight. At 10:30 p.m., December 16, 1971, Mr. Emig and his girl friend, Kathryn Davis, returned to the apartment from an evening out and found Mr. Misselhorn dead, lying in the kitchen in a pool of blood.
Police officers who investigated the death observed the dead man lying in the pool of blood, and shot pellet holes in the floor and wall of the kitchen. Two empty shotgun shell cases were recovered in the apartment. It was not disputed that Mr. Misselhorn died as a result of shotgun wounds to his head and body.
At 8:30 p.m., December 16, 1971 Officers Silvey and Stoetzer of the Hanley Hills police stopped a 1970 Falcon belonging to defendant and occupied by defendant, Michael Berry, and five others. The officers observed a shotgun in possession of defendant and took it from the automobile. They directed all seven to go to the Hanley Hills police station where they were later released. The shotgun was retained in custody. At 6:00 p.m., December 17, 1971, defendant returned to the Hanley Hills police station and requested the return of his shotgun at which time he was arrested on suspicion of the killing in University City.
Officer Brocksmith, a firearms expert, conducted tests on defendant's shotgun and concluded the two 20-gauge shells found in the apartment at 6317 Cates had been fired from that shotgun.
On December 16, 1971, Johnnie Ray Taylor, in the company of his brother Robert, Michael Berry, and defendant, met at Orville Tarwater's home where they drank beer all afternoon. Berry told them of the trouble he had encountered on a previous date with someone who refused to help him. Between 5:00 and 6:00 p.m., the group left Tarwater's to drive out to the house of the man who refused to help Berry. They stopped first at defendant's house at 3306 Nebraska in south St. Louis, and defendant obtained his shotgun. The group then proceeded across town to 6317 Cates. While seated in the car at that address, Larry Resinger '' Later, defendant left the car with his shotgun. Upon his return, defendant stated that 'he shot his head off.'
Larry Resinger arrived at Tarwater's at 6:00 p.m., December 16, 1971, where he met Michael Berry, Johnnie and Robert Taylor, Richard Cheung, Frank Ellis, and defendant. They all left shortly in two cars and went to defendant's house where he obtained his shotgun. They then drove to 6317 Cates to 'rough up a dude' who had given Berry trouble a few days prior. When they arrived at 6317 Cates, Berry and Robert Taylor went to the apartment followed later by defendant with his shotgun. The three returned in a matter of minutes and the group drove away with defendant stating, 'If I go to jail, you're all going to go with me.'
Michael Berry and his companions, on December 16, 1971, drove to the apartment on Cates to 'rough up' an individual who refused to help him on December 14 or 15, 1971, the day he escaped from police custody in St. Louis County Hospital. When they arrived, he and Robert Taylor went to the apartment, knocked on the door, and entered when Mr. Misselhorn opened it. Mr. Misselhorn advised them that his roommate, Mr. Emig, was out and would not return until later. Mr. Misselhorn gave Berry his wallet and asked Berry and Taylor if they wanted some wine, to which they answered yes. Mr. Misselhorn walked into the kitchen and Berry went outside to invite his companions to enter. When defendant entered, Berry advised him that Mr. Misselhorn was 'the wrong guy,' but defendant, nevertheless, fired the shotgun and Mr. Misselhorn fell. Berry ran, as did Robert Taylor, and when they were outside the apartment they heard a second shot after which defendant came out of the apartment and said that if anyone refused to help him, he would kill them too.
Robert Taylor was prepared to hit the man who opened the door when he and Berry went to the apartment, but when Mr. Misselhorn answered the door Berry told him he was the wrong man. He and Berry then went into the kitchen with Mr. Misselhorn, defendant entered the apartment and fired his shotgun into the kitchen. Taylor then ran from the apartment, and when outside, heard a second shot. When defendant arrived at the automobile, he said 'I got him.'
These versions, in addition to corroborating each other, were variously further corroborated by Frank Ellis, Richard Cheung, and Orville Tarwater.
According to defendant, Steven Gale Nelson, he followed Berry and Robert Taylor into the house where he saw Mr. Misselhorn standing in the kitchen with Taylor and Berry on either side of the doorway separating the dining room and kitchen. He had the gun in his hand pointing to the floor, Berry reached for the gun, it discharged into the floor, Berry took the gun, fired into the kitchen, and deceased fell. He denied shooting Mr. Misselhorn but admitted saying they would all go to jail for the shooting if he did.
A finding of the deliberation necessary to murder, first degree, depends not so much upon the time involved as it does upon an inference, reasonably drawn from the evidence, that the defendant performed the act in a cool and deliberate state of mind. State...
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