State v. Clark

• Decision Date: 06 December 1979
• Docket Number: No. 60221,60221
• Citation: 592 S.W.2d 709
• Parties: STATE of Missouri, Respondent, v. Willis R. CLARK, Appellant.
• Court: Missouri Supreme Court

Page 709

592 S.W.2d 709

STATE of Missouri, Respondent, v. Willis R. CLARK, Appellant.

No. 60221.

Supreme Court of Missouri, En Banc.

Dec. 6, 1979.

Rehearing Denied Jan. 15, 1980.

Robert G. Duncan, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

RENDLEN, Judge.

Defendant's conviction of murder in the first degree, § 559.010, RSMo 1969, ¹ and sentence to life imprisonment were affirmed by the Court of Appeals, Kansas City (now Western District) in an opinion mistakenly published in 552 S.W.2D 256. ² The cause was transferred here and comes to the writer on reassignment following reargument in the May term, 1979.

We must determine (1) if the "plain view" exception to the warrant requirement justified seizure of a desk calendar from appellant's home; (2) the admissibility of statements made to police by defendant after receiving Miranda warnings, (3) whether handwriting exemplars taken from appellant were admitted on proper foundation, and (4) did the admission of allegedly irrelevant and immaterial evidence require reversal. Deciding the questions as though on original appeal (Rule 83.09), we affirm.

Defendant Clark was convicted of murdering Charles Davis, maintenance superintendent of the Unity School of Christianity (Unity), in Jackson County on December 6, 1974. Clark had been employed at Unity from 1955 to 1968 in the maintenance section but his employment was terminated because of disagreements with the maintenance supervisor and because he was suspected of pilfering. In January, 1974, Clark, then employed in the Kansas City School System, wrote to the director of Unity expressing an interest in returning to work at the school. The maintenance supervisor with whom Clark had had difficulty was preparing to retire and Charles Davis, (the victim of this crime) was employed as his successor in April of that year. That June, Clark interviewed with the Unity director and was told Davis had been hired for the job.

Mrs. Davis testified that her husband left the house about 7:45 p. m. on December 6, 1974, after he received a telephone call, which she had answered on an extension, from a man who claimed to be a state boiler inspector. Later she found a typed note on an index card, presumably made by her husband, a methodical man of notes and records, reading: "Boiler Inspector, State of Missouri, 12-6-74, 8:30 p. m. Spaulding." At approximately 11:00 that night Charles Davis was found shot to death on the floor of his office in the Unity shop building. The medical examiner placed the time of death between 9:00 and 10:00 p. m.

At approximately 8:30 that evening John Fines, a security officer at Unity, noticed a 1966 Ford parked on a gravel road leading into the Unity farm from Colburn Road. Examining the empty car he noted the license number and radioed the Unity operator requesting an identification check. The operator's log disclosed that inquiry was made at 8:30 p. m. to the state highway patrol concerning the license number and from that inquiry it was learned the plate had been issued to Willis Clark, Lee's Summit and that the vehicle had not been reported stolen.

Fines then drove to the Colburn Road entrance of Unity Village where he could watch the parked Ford. About ten or fifteen minutes later the lights came on, the car backed out and then drove east on Colburn Road at a high rate of speed. With his red lights flashing, Fines pursued for about two miles but was outdistanced and temporarily lost sight of the car. He soon found it stopped on the shoulder at the southeast corner of Independence and Colburn Roads with Clark standing alongside taking off a pair of jeans or coveralls. Radioing the Lee's Summit police for assistance, Fines then questioned Clark regarding his conduct. Clark denied having been at Unity Village although the license number on his Ford was the same as the parked car checked a short time earlier near the Unity farm. Defendant then accused Fines of forcing him off the road. The Lee's Summit police came to the scene and after some discussion, Clark was allowed to proceed and returned to his house.

Meanwhile D. R. Armstrong, the inside security man, and C. R. Bray, a maintenance man, were working at Unity that evening. Bray saw Armstrong talking with Mr. Davis and testified that Davis had told him that he was staying late because he was expecting a boiler inspector that evening. Armstrong, after receiving a phone call from Davis at 8:00 p. m. asking him to turn on the boiler, worked in the buildings until 11:00 p. m., when he noticed the boiler was still activated and that Davis' door was open. It was then he discovered Mr. Davis' body and told the operator to call Fines. Fines testified that shortly after 11:00 p. m. he received an emergency call from the maintenance shop and going there saw Davis' body on the floor. The Jackson County Sheriff's Patrol was called and Fines told an officer of his encounter with Clark earlier that evening.

The police went to Clark's home in Lee's Summit at 1:00 a. m. on December 7, and advising him of his Miranda rights, requested that he accompany them to the police station for an interview either then or the following morning. Defendant called his attorney, William Collett, and then drove to the police station in his own car. Though he refused to sign a rights waiver form Clark talked freely with the officers.

Detective Sergeant Jack Morton of the Jackson County Sheriff's Patrol, one of the principal officers in charge of the investigation, ³ was called at 11:20 p. m. on December 6, twenty minutes following the discovery of the victim. Arriving in less than one-half hour he took charge of the murder scene investigation and Detective Bill Starr, ordered into the investigation early the next morning, was directed to search the area near the intersection of Independence Avenue and Colburn Road where Fines had overtaken defendant's car. Arriving there about 7:15-7:30 a. m., he found many pieces of torn paper on a grassy field fifteen feet southeast of the intersection. One of the pieces bore the word "hello," another "state boiler," another the name "Spalding." Detective Starr put the scraps in an envelope which he sealed and delivered to Detective Morton at headquarters. Morton in turn delivered the envelope to John Cayton of the crime laboratory, who assembled these pieces, together with some additional pieces which had been given to him later in another envelope. ⁴ The assembled pieces constituted a page from a calendar which was introduced at trial as exhibit # 50 and has been submitted for our consideration. It is important to note that the unassembled pieces contained printed words and figures clearly identifying them for even the most casual observer and Starr was an experienced detective as parts of a page from a calendar.

At 9:00 a. m. on December 7, Morton obtained a warrant for the search of Clark's residence ⁵ and armed with that warrant went with Starr and other officers to defendant's home. Mrs. Clark at first objected to the search, but permitted them to proceed after calling attorney Collett, to whom Sergeant Morton explained that the police would not search the whole house if Mrs. Clark gave them the items in the warrant. While talking to Mr. Collett, Sergeant Morton who had earlier that morning received the calendar page scraps from Starr, saw a desk calendar on the telephone stand in the family room. He described the calendar as a standard desk calendar, often found in a "great many offices." ⁶ Morton took the calendar with him. Two days later when Cayton pieced the paper fragments together it was found to be a complete calendar page for Thursday, October 24, 1974. At some unspecified time the police turned through the calendar pad taken from defendant's home and discovered the page, # 297, for October 24, 1974, was missing.

A continued search along Colburn Road produced an old "owl head" .32 caliber revolver near the intersection of Independence Road and close by a box with 15 rounds of .22 caliber shells. Later in the afternoon officers searching along Colburn Road not far from the Unity entrance found a .22 caliber Inver-Johnson revolver containing six spent shells and two live rounds. Subsequent ballistics tests showed that the slugs taken from Davis' body been fired from this weapon.

At the time of the murder, defendant taught building maintenance at the Kansas City Skills Center and going there the police found drill bits in his locker. Two of the fifteen bullets recovered in the ammunition box had been drilled in the nose and laboratory analysis disclosed that one of the drill bits from defendant's locker had been used to drill the holes. The trial court permitted the introduction of appellant's post-arrest statements and the physical evidence described above. Because there is no contention that the evidence was insufficient to support the conviction, we need not detail all testimony adduced in support of the first degree murder charge; suffice it to say the evidence discussed above, taken with other incriminating testimony, made a strong case against defendant. The jury found appellant guilty of murder in the first degree and fixed punishment at life imprisonment. This appeal followed.

I

Defendant's first point relates to the denial of his motion to quash the search warrant and to suppress the use of the desk calendar seized in the search of his home.

He contends the language of § 542.271, RSMo 1969 barring issuance of a warrant to search and seize private papers or business records forbad seizure of the desk calendar, but such objection is inapt because the calendar was not seized under a warrant.

However, defendant objects further, contending that even if the desk calendar were not a private paper or business record, his rights were violated by the seizure because it flowed from a warrantless search which, subject to only a few...