State v. Buchanan, 53227

• Decision Date: 14 October 1968
• Docket Number: No. 1,No. 53227,53227,1
• Citation: State v. Buchanan, 432 S.W.2d 342 (Mo. 1968)
• Parties: STATE of Missouri, Respondent, v. Joe Patrick BUCHANAN, Appellant
• Court: Missouri Supreme Court

Page 342

432 S.W.2d 342

STATE of Missouri, Respondent, v.Joe Patrick BUCHANAN, Appellant.

No. 53227.

Supreme Court of Missouri, Division No. 1.

Oct. 14, 1968.

Norman H. Anderson, Atty. Gen., Jefferson City, James J. Sauter, Sp. Asst. Atty. Gen., St. Louis, for respondent.

Rufus Burrus, Independence, for appellant.

WELBORN, Commissioner.

Appeal from five-year sentence for robbery in the first degree with a deadly weapon.

At around 2:00 A.M., August 19, 1966, Sherrill Followell, the sole attendant at a gasoline station at the intersection of Highways 152 and 69 in Clay County, saw two men walking toward the station.When the men reached the station, the larger of the two produced a sawed-off shotgun which he pointed at Followed and ordered Followell into a rear room.The intruders took $35 from Followell's pocket.They also broke the door into a room where they took $120 in a money bag from a desk drawer.Followell was ordered to crawl under a desk.He did so and saw the robbers no more that evening.

After a few minutes, Followell went to a store next door and called the Liberty Police Department.He told investigating officers that the person who held the gun on him was a large Negro man, over six feet tall and weighing more than 200 pounds.He was unable to describe the second man, other than to say that he was a smaller Negro who stood behind the larger man most of the time.

Upon receiving the report of the robbery, Liberty and Clay County law enforcement authorities placed 'Operation Barrier' in effect, with officers at various locations on highways in the vicinity in an effort to apprehend the robbers.Sometime between 2:15 and 2:40 A.M., a deputy sheriff at Birmingham Road and Randolph saw a Chevrolet panel truck approaching.He stopped the truck, which had 'The General Cleaning Company' on it and also the words 'Floor Finishers.'The driver, a Negro named McAdams, got out of the vehicle, and, at the deputy's direction, two other Negro men emerged from the truck.McAdams identified himself and told the deputy that they had been on a 'non-commercial job' in Liberty.A second Negro, described by the deputy as 'about five-eleven to six foot that weighed about two hundred thirty to forty pounds,' produced a driver's license bearing the name 'Joe Buchanan.'The deputy identified the defendant at the trial as such person.The deputy opened the door of the truck and looked in but couldn't see anything.He did not search the three men.After radioing 'the station' to find whether there was further information which might lead to identification of the robbers, the deputy permitted the three to proceed.

On the evening of October 23, 1966, Buchanan was arrested by Independence, Missouri police officers.He was placed in a lineup at the Kansas City jail, where Followell identified him as the person who held the gun in the robbery.Buchanan was charged with robbery in the first degree with a deadly weapon.

Buchanan denied participation in the robbery.He testified that he and another person accompanied McAdams, an employee of a cleaning company, to work on a job in North Kansas City on the night of the robbery; that, after finishing the job, they had driven to a drive-in near Liberty, but it was closed and they were returning to Independence when the officer stopped the truck.

Various claims of error are advanced by appellant.One is dispositive of the appeal.At the trial the state introduced into evidence a sawed-off shotgun which Followell identified as the one held by Buchanan in the robbery.The prosecution obtained this weapon as the result of the issuance of a search warrant by a judge of the Jackson County Magistrate Court.The complaint signed by a member of the Independence, Missouri police force, dated October 24, 1966, described the property to be seized as a sawed-off shotgun belonging to 'Jo Patrick Buchanan * * * heretofore unlawfully used in a (sic) Armed Robbery,' kept at '310 N. Hocker, one story frame building with outbuildings.'A warrant was issued in response to the complaint.The clerk of the magistrate court who prepared the warrant stated that she'made the warrant off of the complaint.'

Joe Buchanan lived with his mother and stepfather at 314 North Hocker in Independence.The officers took the warrant to that address where they served it upon Mrs. Robinson, Buchanan's mother.The officers searched the residence and an outbuilding at the rear and found nothing.They searched the yard, and one of the officers saw the weapon lying in the southeast part of the yard, eight to ten feet from the street.According to the officer, 'there's some grass there but the gun was visible, you didn't have to uncover it.'

The appellant filed no attack on the search warrant, as authorized by Supreme Court Rule 33.03, V.A.M.R.However, he did object to the introduction into evidence of the weapon on numerous grounds, including the validity of the warrant and its execution.The trial court did hear evidence on the matter, outside the presence of the jury, so we consider that the trial court exercised its discretion to hear what was, in effect, a motion to suppress, during the trial.Supreme Court Rule 33.03(a) 5 V.A.M.R.In any event, the state raised no objection to the procedure followed.

Among the objections to the validity of the warrant and the search is the complaint that the affidavit upon which the warrant was issued described the premises to be searched as '310 N. Hocker.'There was no evidence that the property searched was at 310N. Hocker.All of the evidence was that it was...