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08/09/83 STATE MISSOURI v. VERNON TATUM

August 9, 1983

STATE OF MISSOURI, RESPONDENT,
v.
VERNON TATUM, APPELLANT



From the Circuit Court of Jackson County; Criminal Appeal; Judge Gene R. Martin.

Before Turnage, P.j., Pritchard, Kennedy, JJ.

The opinion of the court was delivered by: Kennedy

Defendant Tatum appeals a jury conviction of murder in the first degree, § 565.003, RSMo 1978. In accordance with the jury's verdict, the trial court sentenced Tatum to life imprisonment.

We find no reversible error and we affirm the judgment.

The facts are as follows:

On May 21, 1981, at approximately 7:00 a.m., an apartment manager discovered Marcile Cunningham dead in the victim's Kansas City, Missouri apartment with a bloody rag stuffed in her mouth. The victim was last seen alive the previous evening.

The police arrived soon thereafter and collected evidence. An autopsy revealed that the 72-year-old victim died from blunt force injuries to the head and asphyxiation caused by blood in her airway and the rag in her mouth. The victim's body was extensively bruised, and her nose and jaw were fractured. Prior to the victim's death, the attacker bound her wrists with the telephone cord. There were indications of a struggle.

On June 4, 1981, Kansas City, Kansas police arrested the defendant for unrelated offenses. Pursuant to the arrest, the Kansas City, Kansas officers took the defendant's clothing and several items from his person, including a knife. Thereafter, they summoned police and forensic examiners from Kansas City, Missouri to examine the belongings seized from the defendant. The examiners conducted tests on several of the items.

As a result of these tests, the Kansas City, Missouri police obtained a search warrant to seize the defendant's knife, shoes and a pair of rubber gloves. They subsequently arrested the defendant for the murder of Marcile Cunningham.

At trial, the state built its case on three items of scientific evidence. First, forensic experts determined that the knife recovered by Kansas City, Kansas police from the defendant was the same knife used to cut the telephone cord which bound the victim.

Second, the state's experts testified that the shoes worn by the defendant were "consistent" with footprints found in an alleyway outside the victim's apartment. The shoes were of the same size, style and sole design as those worn by someone at the crime scene. However, the experts could not conclusively determine that the shoes taken from the defendant made the shoe prints found at the crime scene.

Third, investigators recovered three hairs from the victim's apartment. These hairs were compared to hair standards extracted from the defendant. The state's expert testified that the hairs from the crime scene were "indistinguishable" from the hair from defendant's head. He further testified that statistical studies have concluded that only one person in 5,400 would have the same hair. The expert would not testify, however, that the hairs recovered at the scene positively belonged to the defendant.

1. Jurisdiction. Validity of statute. Selection of venire from voter registration lists.

The defendant attacks the validity of § 497.130, RSMo 1978, *fn1 in two ways - first, by a motion to retransfer to the supreme Court on the ground that the case involves the validity of a statute, ART. V, Sec. 3, Mo. Const., and, second, by his first point on appeal, wherein he says ...


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