State v. Jackson, 37086
| Decision Date | 21 March 1978 |
| Docket Number | No. 37086,37086 |
| Citation | 566 S.W.2d 227 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Raymond Allen JACKSON, Defendant-Appellant. . Louis District,Division Three |
| Court | Missouri Court of Appeals |
Fredman, Watkins & Fredman, Richard A. Fredman, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant was charged in separate counts, tried and convicted of first degree murder and possession of heroin. On appeal, defendant charges: (1) that Rule 24.04, which allows joinder of offenses and under which defendant was tried, is unconstitutional; (2) that the crimes of murder and possession of heroin did not arise out of the same transaction, requiring that the two charges be severed for separate trial; (3) that the State failed to prove the reliability and accuracy of a neutron activation analysis which established that defendant had recently discharged a firearm. Despite the substantial evidence of the defendant's guilt, we are compelled to hold that under the circumstances here presented the first degree murder and heroin possession charges should have been severed for separate trial.
The victim, Eddie Spurlock, and his live-in companion, Angela Tate, had returned to their third floor St. Louis apartment from an evening's entertainment. The defendant was also a resident of a third floor apartment in the same building in which Spurlock and Ms. Tate resided. Spurlock, at Ms. Tate's request, preceded her into the apartment hallway. Ms. Tate heard an explosion and ran from the building in search of a policeman. Nearby police observed two men one the defendant fleeing from an area near Spurlock's apartment building and gave chase. During the pursuit, the defendant threw down a sawed-off shotgun which the police ultimately recovered, and he was captured when he suffered the contretemps of slipping and falling on some mud. Defendant was immediately arrested and a search disclosed 15 capsules of heroin in his possession. Police responding to Ms. Tate's cries for help found Spurlock lying on the floor of the apartment building mortally wounded by a shotgun blast to the chest. Shotgun pellets taken from Spurlock's body after the pernicious attack were the same size as those which had been fired from the spent shell casing found in the shotgun which defendant had discarded. A neutron activation analysis conducted on defendant's hands established that he had recently discharged a firearm.
Defendant's defense was that he had not fired any firearm; that he had fled after hearing the shotgun explosion simply from fear of being captured by police while he was in possession of heroin.
Prior to trial, defendant's counsel moved for separate trials on the murder and heroin possession charges. After being assured by the prosecutor that the evidence would establish that the two charges arose out of the same transaction, the trial court denied the motion for severance.
Defendant first assails the constitutionality of Rule 24.04 which allows joinder of offenses. Defendant argues that the rule changed defendant's substantive rights without legislative approval. Defendant, by first raising the constitutionality issue in his motion for a new trial, has failed to preserve this point for review by not raising it at the first opportunity during trial. State v. Hegwood, 558 S.W.2d 378 (Mo.App.1977); State v. Mitchell, 554 S.W.2d 581 (Mo.App.1977). Further, such contention is destitute of merit. The exact contention that defendant raises that Rule 24.04 is a substantive, rather than a procedural charge, requiring legislative action was considered and rejected by our Supreme Court in State v. Duren, 556 S.W.2d 11 (Mo.banc 1977). State v. Duren, supra, specifically holds that Rule 24.04 is procedural and does no violence to Art. V, § 5 of the Missouri Constitution. We adhere to the Duren decision. See also State v. Perkins, 555 S.W.2d 693 (Mo.App.1977).
Defendant suggests that the evidence relating to the neutron activation analysis was maculated and therefore inadmissible. He argues that there was no proof that the equipment used to perform the test had been tested for accuracy. This point has not been preserved for appeal, as defendant's objection at trial to...
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