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State v. McClurg

Court of Appeals of Missouri, Southern District, First Division

March 26, 2018

STATE OF MISSOURI, Plaintiff-Respondent,
v.
JASON L. MCCLURG, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY Honorable Judge Truman L. Wiles

          MARY W. SHEFFIELD, P.J.

         AFFIRMED AND REMANDED WITH INSTRUCTIONS

         Following a jury trial, Jason McClurg ("Defendant") was convicted of murder in the first degree and escape from confinement. See §§ 565.020, 575.210.[1] The trial court sentenced him to consecutive terms of life without the possibility of parole and three years' imprisonment. Defendant raises one point on appeal, arguing that the trial court abused its discretion in denying his motion for a continuance. We affirm Defendant's convictions and sentences, but remand to correct a clerical error in the trial court's written judgment.

         Relevant Facts and Procedural Background

         Defendant does not contest the sufficiency of the evidence to support his convictions. The facts recited hereafter are limited to those necessary to resolve Defendant's point, and we glean those facts by viewing the evidence in the light most favorable to the finding of guilt. State v. Taylor, 298 S.W.3d 482, 491 (Mo. banc 2009).

         Less than two months after giving birth to a baby boy, Stephanie McClurg ("Victim") was found dead, alone in her home. During the investigation of Victim's death, multiple parties reported suspicions that she had been poisoned by Defendant, her husband. Defendant had been having an affair, and his mistress informed police of a plan Defendant had recently conveyed to her: he would put pills into some Kool-Aid, and convince Victim to drink it by telling her that their older son had made it especially for her.

         An incident occurred on the day before Victim's death, in which Defendant told Victim to consume an entire water bottle containing a drink that their son supposedly had mixed for her. Victim went limp, and became very pale and unresponsive. She recovered, and returned home with Defendant. Defendant told his mistress that his plan did not work and had only caused Victim to have a seizure, but that he would likely try again. Defendant called Victim's mother the next day to tell her that Victim had been dead for "quite awhile."

         Testing was conducted on the water bottle from which Defendant had ordered Victim to drink. The results showed the presence of the prescription drugs propranolol and cyclobenzaprine. Both drugs were prescribed to Defendant, but not to Victim. A bottle of cyclobenzaprine bearing Defendant's name on the label was seized from his home. Cyclobenzaprine is a potent muscle relaxer, and both cyclobenzaprine and propranolol can cause seizures when ingested in high doses. A search of Defendant's phone revealed recent internet searches on how to make a death look like an accident or a suicide, and on how seizures can cause death.

         Toxicology reports showed that Victim's blood contained a toxic level of cyclobenzaprine and non-lethal levels of propranolol. The medical examiner and forensic pathologist who testified in the case, Dr. Keith Norton ("Dr. Norton"), described the amount of cyclobenzaprine as well above the prescribed level and "at the low end of the range that can kill you." He conducted Victim's autopsy, and determined that the cause of death was the high level of cyclobenzaprine in her blood, which led to an irregular heartbeat. Dr. Norton further determined that the manner of death was homicide.

         Defendant was arrested and charged with first-degree murder. He subsequently escaped from the Shannon County jail, but was retaken into confinement.

         The contested motion for a continuance was filed and renewed, both orally and in writing, in response to the gradual disclosures of amended calculations that Dr. Norton made in Victim's autopsy report. [2] The proceedings relevant to this point, leading up to Defendant's eventual trial on July 25, 2016, progressed as follows.

         Defendant filed a request for discovery pursuant to Rule 25.03 on October 2, 2014. [3] He requested that within ten days and throughout the duration of the case, the State turn over, inter alia, "[a]ny reports or statements of experts made in connection with this case[.]" The State endorsed Dr. Norton as an expert witness on December 15, 2014, and disclosed that it intended to call him to testify as to his findings regarding the cause of Victim's death. The State promptly turned over to defense counsel the basic autopsy report Dr. Norton had created. In this original autopsy report, the cause of death was determined by testing Victim's blood.

         On March 16, 2016, Dr. Norton amended the autopsy report. The amended report added a one-page document ("the Addendum") which detailed his calculations of the level of prescription drugs in Victim's body. The Addendum supplemented the original autopsy report through the inclusion of additional toxicology testing that determined the levels of drugs in Victim's stomach. The amended report, with the gastric content ...


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