Jackson v. State

• Citation: 558 S.W.2d 816
• Decision Date: 31 October 1977
• Docket Number: Nos. KCD,s. KCD
• Parties: Ulaska JACKSON, Jr., Appellant, v. STATE of Missouri, Respondent. 29201, KCD 29231.
• Court: Missouri Court of Appeals

Page 816

558 S.W.2d 816

Ulaska JACKSON, Jr., Appellant, v. STATE of Missouri, Respondent.

Nos. KCD 29201, KCD 29231.

Missouri Court of Appeals, Kansas City District.

Oct. 31, 1977.

Clifford A. Cohen, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.

John D. Ashcroft, Atty. Gen., Walter O. Theiss, Asst. Atty. Gen., Jefferson City, for respondent.

Before TURNAGE, P. J., and PRITCHARD and SOMERVILLE, JJ.

SOMERVILLE, Judge.

Ulaska Jackson, Jr., a black man, was convicted of first degree felony murder (1972) by a Jackson County jury and sentenced to life imprisonment. Failing to obtain relief by way of direct appeal, State v. Jackson, 506 S.W.2d 424 (Mo.1974), he then resorted to Rule 27.26. Jackson's Rule 27.26 motion was denied by the trial court absent an evidentiary hearing.

A single point is urged by Jackson on appeal, namely, error on the part of the trial court in summarily denying his Rule 27.26 motion without an evidentiary hearing.

Disposition of Jackson's lone point pivots on whether the three "grounds" and the "facts" pleaded in support thereof in his Rule 27.26 motion, in conjunction with "the files and records of the case", "conclusively" show that "he was entitled to no relief". Rule 27.26(e) provides, and Smith v. State, 513 S.W.2d 407, 411-12 (Mo.banc 1974), holds, that if the motion and the files and records of the case conclusively show that the movant is not entitled to relief, an evidentiary hearing is not required. Rule 27.26 motions which, upon examination with the "files and records of the case", present only issues of law, as is true in the instant case, represent classic examples of motions properly determinable without evidentiary hearings. Hatfield v. State, 529 S.W.2d 180 (Mo.App.1975); and Meeks v. State, 512 S.W.2d 215 (Mo.App.1974).

The three "grounds" and supportive "facts" alluded to, substantially condensed for sake of brevity, follow. Ground one supportive facts : Jackson was convicted of an offense different from that for which he was indicted Jackson was indicted for conventional first degree murder and convicted of first degree felony murder. Ground two supportive facts : The trial court's failure to have instructed the jury on "lesser degrees of murder" constituted a denial of "equal protection" because such instructions are routinely given under "identical circumstances" in cases involving "white" defendants "It is . . . a common fact that had the Movant been a 'white' defendant, tha n (sic) he would of (sic) received such lesser instructions . . . ." Ground three supportive facts : Jackson was denied effective assistance of counsel because of the latter's failure to request the court to instruct the jury on the "defense of duress" evidence was presented at the underlying trial "to the effect that he (Jackson) was acting under duress because the other persons that were involved stated that they would kill him if he did not do what they said to do."

As to Jackson's first ground, it is well established in Missouri that the state, upon satisfying the requirements of proof, may submit felony murder in the first degree notwithstanding the indictment or information under which the accused is being prosecuted charges only conventional murder in the first degree. State v. Granberry, 484 S.W.2d 295, 300 (Mo.banc 1972); State v. Beal, 470 S.W.2d 509, 511-12 (Mo.banc 1971); and State v. Stancliff, 467 S.W.2d 26, 33 (Mo.1971). The trial court was not obliged to grant Jackson an evidentiary hearing before ruling adversely to him on ground one.

As to Jackson's second ground, it is equally well established in Missouri that alleged errors pertaining to instructions are, by their very nature, treated as trial errors and generally deemed to be immune from collateral attack. Brown v. State, 492 S.W.2d 762 (Mo.1973); and Tucker v. State, 481 S.W.2d 10 (Mo.1972). More directly in point, Jackson's claim that the jury should have been instructed on "lesser degrees of murder", presumably second degree murder and manslaughter, lacks legal support. Where the evidence supports a finding that a homicide occurred during the commission of a felony enumerated in Sec. 559.010, RSMo 1969, ¹ and no species of proof suggests or supports a conclusion that the homicide was committed otherwise than during the commission of one of the enumerated felonies, instructions on "lesser degrees of murder" are not warranted or required. State v. Thomas, 440 S.W.2d 467 (Mo.1969); State v. Taylor,421 S.W.2d 310 (Mo.1967); and State v. Kauffman, 335 Mo. 611, 73 S.W.2d 217 (1934). The statement of facts set forth in the opinion affirming Jackson's conviction and sentence on direct appeal, State v. Jackson, supra, unequivocably demonstrates that the homicide was perpetrated during the commission of a robbery ² and nothing is contained therein, or in the facts tendered by Jackson in support of his motion, to suggest or support a finding that the homicide was committed otherwise than during commission of the robbery. Stripped bare of conventional niceties, Jackson attempts to circumvent the well established principles just mentioned by making a blanket accusation that the trial bench of this state is habitually guilty of unmitigated racial prejudice in instructing juries in felony-murder cases. Regardless of its verity or lack of verity, such a charge, striking as it does at the very heart of our criminal justice system, possesses ramifications of a profoundly serious nature. Unfortunately, a persistent and pervasive mode of thinking frequently injected into contemporary cases indicates that the accusation may be of a nascent nature. Be that as it may, the accusation is repudiated by reigning case law and unsupported by any pleaded facts. Jackson's attempt to bolster it by singularly charging that it is "a common fact that had the Movant been a 'white' defendant, tha n (sic) he would of (sic) received lesser instructions . . ." is conclusional and far too gaunt to factually raise the asserted constitutional ground sought to be relied upon. One seeking relief by way of a Rule 27.26 motion must plead facts, not conclusions. Smith v. State, 513 S.W.2d 407, 411 (Mo.banc 1974); and Bynum v. State, 545 S.W.2d 720, 721 (Mo.App.1977). Reported cases involving charges of perfidy bottomed on claims of deprivation of "equal protection" by reason of racial prejudice, although at best only remotely analogous to the charge leveled by Jackson, are exceedingly stringent and demanding concerning the scope and nature of proof required to sustain such charges. See, generally: Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (exclusion of black jurors by the exercise of peremptory challenges); Martin v. Texas, 200 U.S. 316, 26...