State v. Caffey

• Citation: 457 S.W.2d 657
• Decision Date: 14 September 1970
• Docket Number: No. 1,55151,Nos. 49364,s. 49364,1
• Parties: STATE of Missouri, Respondent, v. James Robert CAFFEY, Appellant
• Court: United States State Supreme Court of Missouri

Page 657

457 S.W.2d 657

STATE of Missouri, Respondent, v. James Robert CAFFEY, Appellant.

Nos. 49364, 55151.

Supreme Court of Missouri, Division No. 1.

Sept. 14, 1970.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

O. J. Taylor, Springfield, for appellant.

HOUSER, Commissioner.

James Robert Caffey, convicted of unlawful control of narcotic drugs and sentenced to 20 years' imprisonment, appealed. His conviction was affirmed on February 11, 1963. State v. Caffey, Mo.Sup., 365 S.W.2d 607. On January 12, 1970 this Court set aside its earlier judgment on the ground that Caffey was not represented by counsel on the original appeal, in accordance with the decisions in Bosler v. Swenson, 8 Cir., 363 F.2d 154, and Swenson v Donnell, 8 Cir., 382 F.2d 248. In the meantime Caffey had filed a motion to vacate the sentence and judgment under Criminal Rule 27.26, V.A.M.R.; his motion had been overruled, and he had appealed. The original appeal, reinstated, and the appeal of the 27.26 order were consolidated, briefed and argued together and will now be disposed of in one opinion.

The prosecution was founded upon the seizure of a bottle of cocaine hydrochloride, discovered in a search of a safe-deposit box held in the name of Caffey in a Springfield bank. The search was conducted under a magistrate's warrant which issued following the filing of an affidavit signed by the assistant prosecuting attorney, who moved the court to issue its search warrant for the reason that the attached affidavit of Doyle Mace 'states evidential facts which show the existence of probable cause to believe that James R. Caffey has under his control in a lock box at the Union National Bank, Springfield, Missouri, a quantity of narcotics (described). There is at the Union National Bank a lock box No. 7005 which is under the control of James R. Caffey.' Mace's attached affidavit was as follows:

'I, Doyle Mace, on this 28th day of November, 1961, being duly sworn state that the following facts are true: During August, 1961, James R. Caffey told me that he had a bottle of a narcotic commonly known as 'coke' in his lock box at the Union National Bank. He also said that the 'coke' was extremely valuable on the illicit market.'

We will not determine the validity of the search on the appeal in the 27.26 proceeding for the reason that a claim of illegal search and seizure is not such a matter as may be raised in a collateral attack upon a judgment of conviction. State v. Holland, Mo.Sup., 412 S.W.2d 184; State v. Webb, Mo.Sup., 400 S.W.2d 84(3, 4); State v. Engberg, Mo.Sup., 391 S.W.2d 868; State v. Worley, Mo.Sup., 383 S.W.2d 529, 533; State v. Kackley, Mo.Sup., 391 S.W.2d 350; State v. Durham, Mo.Sup., 386 S.W.2d 360, cert. den. 382 U.S. 857, 86 S.Ct. 110, 15 L.Ed.2d 94, and State v. Howe, Mo.Sup., 364 S.W.2d 546, cert. den. 373 U.S. 943, 83 S.Ct. 1552, 10 L.Ed.2d 698. Nor will we make the determination on the direct appeal for the reasons given in State v. Fields, Mo.Sup., 442 S.W.2d 30, 33: 'The procedural rules of this state, with an exception not here material, require that the contention of an unlawful search and seizure be made by motion to suppress the evidence in advance of trial. State v. O'Brien, Mo., 252 S.W.2d 357, certiorari denied, 345 U.S. 929, 73 S.Ct. 790, 97 .l.Ed. 1359; State v. Lord, Mo., 286 S.W.2d 737; State v. Holt, (Mo., 415 S.W.2d 761) supra. The validity of a search and the admissibility in evidence of the fruits of that search present issues collateral to the issue of guilt which are to be tried independently, State v. Dalton, Mo., 23 S.W.2d 1, and 'Not only must defendant file a motion to suppress the controverted evidence, but he has the burden of presenting evidence to sustain his contentions.' State v. Holt, supra, 415 S.W.2d at p. 764; Supreme Court Rule 33.03(a)(5), V.A.M.R.; State v. Jonas, Mo., 260 S.W.2d 3. He must also keep the question alive by timely objection, State v. Tunnell, 302 Mo. 433, 259 S.W. 128; State v. Hepperman, 349 Mo. 681, 162 S.W.2d 878, and by preservation of the issue in a motion for new trial. State v. Lord, supra. The only exception under our procedural rule is where the defendant 'had no reason to anticipate the evidence would be introduced and was surprised.' State v. O'Brien, supra, 252 S.W.2d at p. 359.'

Caffey filed no motion to suppress the evidence, made no objection to the admission of the narcotic in evidence, and failed to assign error with respect thereto in his motion for new trial. In these circumstances he cannot now claim that the search and seizure was unlawful. State v. Fields, supra; State v. Harrington, Mo.Sup., 435 S.W.2d 318.

Caffey claims that we should consider this point under the reasoning of the Supreme Court of the United States in Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227, but as conceded in his brief this Court has ruled that the scope of postconviction review in Missouri is governed by the rule of Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408, and not by the rule of Kaufman. State v. Fields, supra, 442 S.W.2d, l.c. 34.

Caffey asserts, however, that there was plain error affecting substantial rights resulting in manifest injustice or a miscarriage of justice, and that we should consider the matter under the plain error rule. Criminal Rule 27.20(c). The plain error rule may not be invoked in this case. There must be a 'sound, substantial manifestation * * * a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked.' State v. Meiers, Mo.Sup., 412 S.W.2d 478, 480; State v. Carpenter, Mo.Sup., 436 S.W.2d 748, 751. There is no such showing in this case. On the contrary, no injustice and no miscarriage of justice will result from the affirmance of this judgment of conviction. Caffey's guilt is established by overwhelming evidence. In August, 1961 Caffey admitted to an associate that he had placed some 'coke' (a narcotic drug) in his lockbox in a certain bank. Caffey had previously rented a lockbox at that bank. On November 28, 1961, when the affidavit for the search warrant was executed, the lockbox was still in Caffey's name, and the bank records on that date showed that no one had entered the box since the preceding December. This is strong if not positive proof of guilt of the crime of having in his control the proscribed drug at the time the search warrant issued. A judgment setting aside a conviction under this evidence (which was uncontroverted) on the ground of manifest injustice or miscarriage of justice would be a mockery of justice.

Caffey argues that he should not be held to have waived his right to question the validity of the search and seizure because there was no meaningful waiver of his constitutional rights; that he had no knowledge of the grounds for moving to suppress the evidence and therefore could not and did not intentionally relinquish or abandon his rights; that his attorney erred in not raising the point and that Caffey did not make the 'considered choice' referred to in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. This claim leads directly into and is related to Caffey's third point, that he was deprived of his constitutional right to the effective assistance of counsel at his trial because his appointed counsel failed to file a motion to suppress State's Exhibit D (the drug seized); failed to object to its introduction in evidence, and failed to raise the question in the motion for new trial.

At the 27.26 hearing Caffey testified that while he knew there was a procedure for suppressing evidence by pretrial motion he did not know of any legal ground therefor; that he was not aware of a line of cases holding that the time of the occurrence of the facts relied upon in the affidavit to establish probable cause must not be too remote from the time the search warrant issues; that he relied upon his attorney to determine whether there were sufficient grounds in his case; that he asked his attorney to look into the question whether a motion to suppress might be filed; that his attorney told him he would look into the situation; that several days later the attorney stated that as far as he could determine there was no ground to justify the filing of a motion to suppress and it would be frivolous to do so; that 'all the court papers were in order'; that he had looked at the affidavit and everything was proper; everything was in order, and 'it would be ridiculous to try to suppress it.'

Caffey's trial counsel (who no longer represents Caffey) testified at the 27.26 hearing that he conferred with Caffey at least six or seven times; that the legality of the search and seizure was never mentioned that Caffey did not request him to check on the validity of the search warrant and the possibility of moving to suppress the evidence, and that he did not discuss the matter with Caffey. In answer to the question whether he explored the validity of the seizure he testified that he obtained a copy of the search warrant, examined the affidavit made by Mace, contacted the custodian of the safe-deposit vault at the bank and there examined the ledger card showing dates of entry to the vault; that the affidavit and warrant being in proper form and from the information disclosed on the entry card he made no suggestion that a motion to suppress be filed. On cross-examination the lawyer frankly admitted that he did not think of or contemplate a motion to suppress at that time; that he looked at the papers to see if the affidavit was in proper form, and whether it disclosed probable cause for issuance of a search warrant and if those facts were substantiated by the records at the bank, but that the line of cases cited in an annotation on the subject in 100 A.L.R.2d did not enter into his thinking at the time, and that the motion to suppress 'in 1961 was not quite the lady of the courtroom that it is...