State v. Starr, 13583

• Decision Date: 04 September 1984
• Docket Number: No. 13583,13583
• Citation: State v. Starr, 676 S.W.2d 311 (Mo. App. 1984)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Ricky Lynn STARR, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 311

676 S.W.2d 311

STATE of Missouri, Plaintiff-Respondent, v. Ricky Lynn STARR, Defendant-Appellant.

No. 13583.

Missouri Court of Appeals,

Southern District,

Division Two.

Sept. 4, 1984.

John D. Ashcroft, Atty. Gen., Mark S. Siedlik, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Blair Buckley, Jr., Public Defender, Caruthersville, for defendant-appellant.

PREWITT, Chief Judge.

Defendant was convicted of the second degree murder of a woman he was living with. He was sentenced to 25 years' imprisonment. He has three contentions on appeal.

For his first point relied on he asserts that the trial court erred in admitting into evidence two "gun residue kits" because no proper chain of custody was established between the highway patrol sergeant who used the kits in making tests upon the hands of defendant and the victim and the chief of police who transported the kits to the crime laboratory where they were tested.

To establish a chain of custody of an item of evidence it is not necessary to account for every hand-to-hand transfer of it between the time it is obtained and its introduction at trial. State v. Sherrill, 657 S.W.2d 731, 736 (Mo.App.1983). Evidence necessary to establish a chain of custody is sufficient if it demonstrates a reasonable assurance that the condition of the exhibit remains the same. Id.

We think the chain of custody was sufficiently established from the sergeant, who took the tests, to the chief of police who delivered the kits to the crime laboratory. The evidence indicated that the only changes made after the sergeant used them were the tests at the laboratory. The sergeant testified that the contents of the kit relating to Debbie Kimball was in the same condition as when he sent it to the laboratory other than that the laboratory had looked at it and rearranged the "vials". Each of the vials are in a plastic bag and marked. The sergeant said the kit used on the hands of defendant was the same as after he used it, other than what the lab had done to it.

In addition, we see no prejudice to defendant in their admission as the results of the tests were consistent with his testimony. Defendant testified that after work he was playing pool at an establishment when Debbie Kimball, the woman he was living with, came there and asked when he was coming home. He said he told her he would go home after the game of pool was over, and she left, and when he finished the game he went home. He was home about five minutes when she came to the house. With her was her half-brother, Timmy Hector.

Defendant said he and Timmy Hector had an argument, but did not remember what it was about. He then walked around the block and when he came back in the house Debbie Kimball "was standin' there with the gun, and she, you know, she had it cocked, she, she said she was gonna shoot me, which I didn't believe it cause I didn't think it was loaded. And then I grabbed the gun from her when it, when it hit the floor, and that's when it went off."

Defendant testified, "I thought she was jokin' with me and I just, we started wrasslin' over it, and when I grabbed it it hit the floor and that's when it discharged." He said he "just grabbed it. And she had ahold of it too" when it hit the floor between them and went off.

Other witnesses established that Debbie Kimball was shot "in the right chin just under the cheekbone" and died shortly thereafter.

In a statement made to the police defendant said he "got the gun from under the couch. The gun went off when I picked it up" and the shot struck Debbie Kimball as she stood in a hall leading to the kitchen.

A "Chemist-Examiner with the Southeast Missouri Regional Crime Laboratory" stated that the samples collected by the kits from the hands of Debbie Kimball were "consistent with her having recently handled a firearm or received a muzzle blast on her hands." He said that the sample collected from defendant was "consistent with a person having recently handled and discharged a firearm." These findings do not conflict with defendant's trial version of the incident that they were struggling over the weapon and it discharged accidentally when he grabbed it and it hit the floor. Point one is denied.

Defendant contends in his second point that the trial court erred in admitting into evidence a shotgun "on the ground that the shotgun had never been connected to the shooting in that the gun was not found at the scene in the house, but in the back of the Defendant's father's truck, another gun which the Defendant's father said was his was also in the truck, and no one positively identified the gun as the one used in the shooting."

The Chief of Police of New Madrid stated defendant told him that Debbie Kimball had been shot with a .410 shotgun and that the...