State v. Clark

• Court: Missouri Court of Appeals
• Writing for the Court: Before SHANGLER, P. J., and WELBORN and HIGGINS; ROBERT R. WELBORN
• Citation: State v. Clark, 552 S.W.2d 256 (Mo. App. 1977)
• Decision Date: 02 May 1977
• Docket Number: No. KCD,KCD
• Parties: STATE of Missouri, Respondent, v. Willis R. CLARK, Appellant. 28318.

Page 256

552 S.W.2d 256

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

No. KCD 28318.

Missouri Court of Appeals, Kansas City District.

May 2, 1977.

Motion for Rehearing and/or Transfer Denied June 1, 1977.

Application to Transfer Denied July 11, 1977.

Robert G. Duncan, Robert E. Hart, Duncan & Russell, Kansas City, for appellant.

John C. Danforth, Atty. Gen., David L. Baylard, Asst. Atty. Gen., Jefferson City, for respondent.

Before SHANGLER, P. J., and WELBORN and HIGGINS, Special Judges.

ROBERT R. WELBORN, Special Judge.

Appeal from judgment of conviction and sentence to life imprisonment entered on jury verdict of guilty on a charge of murder in the first degree.

Charles Davis was employed in April, 1974 by the Unity School of Christianity as superintendent of maintenance for its institutional property, located between Kansas City and Lee's Summit in Jackson County. After dinner on the evening of December 6, 1974, Davis received a telephone call at his home, purporting to be from a state boiler inspector. He left his home shortly before 8:00 P.M. after making a notation: 'Boiler Inspector, State of Missouri, 12-6 74, 8:30 p. m., Spaulding.'

At around 11:00 P.M., Davis was found on the floor of his office in the shop building at Unity, dead from gunshot wounds in the head and chest. Upon an autopsy two projectiles were recovered from Davis's body and turned over to police. The medical examiner's opinion was that death occurred between 9:00 and 10:00 P.M., December 6, 1974.

At about 8:30 P.M., December 6, 1974, John Fines, a security officer at Unity, noticed a vehicle parked on a gravel road leading into the farm property from Colborn Road. He stopped the vehicle he was driving and got out and examined the parked auto, a 1966 Ford. He saw no one there. He noted the license number and radioed a call to the Unity operator, asking her to have a check made of the number. The Unity operator's radio log showed that at 8:30 she made inquiry of the State Highway Patrol about the license number and found that it had been issued to Willis Clark, Lee's Summit, and that the vehicle had not been reported stolen.

Fines drove to the Colborn Road entrance to Unity Village where he could watch the parked Ford. After ten or fifteen minutes, he saw the backup lights of the Ford go on and the car was backed out and started east on Colborn Road at a high rate of speed. Fines pursued the Ford for 1 1/2 to two miles with his flashing red lights on, but he was out-distanced and temporarily lost sight of the Ford. He next saw it stopped on the shoulder at the southeast corner of Independence and Colborn Roads. Willis Clark was standing beside the Ford, taking off a pair of jeans or coveralls. Fines stopped his car and radioed Lee's Summit police for assistance. He spoke to Clark who accused Fines of forcing him off the road. Clark denied that he had been at Unity Village, although the license number on the Ford was the same as that observed by Fines while the vehicle was parked. Lee's Summit police came to the scene and after discussion of the incident Clark was allowed to proceed.

Shortly after 11:00 P.M. Fines received a call about an emergency at the maintenance shop. He went there and found another Unity employee over Davis's body lying on the floor. The two first thought Davis had suffered a heart attack, but they discovered the bullet wounds and called the Jackson County Sheriff's Patrol. Fines told the officers about his encounter with Clark earlier in the evening.

At around 1:00 A.M., December 7, Jackson County sheriff officers went to Clark's residence at Lee's Summit. Clark was there and at the request of the officers he went to the Jackson County sheriff's office for an interview. That interview is the subject of one of the claims of error here and will be dealt with more fully in that connection.

At around 7:00 A.M., December 7, an officer was directed to search the area in the vicinity of Independence and Colborn Roads. The officer found several pieces of torn paper in a grassy field at the southeast corner of the intersection. The pieces were put together and found to make a page from a desk calendar for October 24, with the number 297 in the lower left-hand corner. When the bits of paper were pieced together, the following written message appeared:

'Hello. I'm Lazier Spaulding of the State Department of Boiler Inspection. The Unity operator gave me your number. I meant to get in touch with you earlier relative to inspection of two new boilers in the shop area but I had car trouble and my car has been being worked on all afternoon. I would like to head home this evening if I could make the inspection, it takes just forty-five.'

A warrant was obtained for the search of Clark's residence. Officers were admitted to the house by Mrs. Clark. Items of clothing and weapons described in the warrant were seized. Officers saw and seized a desk calendar with pages similar to that which had been found.

Officers continued to search along Colborn Road. An old 'owl head' .32 caliber revolver and a box, partially filled with .22 caliber shells, were found. Later in the afternoon officers searching along Colborn Road near the Unity entrance found a .22 caliber revolver on the north side of Colborn Road, about .4 mile east of Unity Village. There were six empty shell casings and two live rounds in the weapon when found. Subsequent ballistics tests showed that the projectiles taken from Davis's body had been fired from this weapon.

Clark has been employed at Unity from 1955 to 1968 in the maintenance section. His employment was terminated because he did not get along with the maintenance director and he was suspected of pilfering materials. In January, 1974, the president of Unity had received a letter from Clark, expressing an interest in returning to work at Unity. The maintenance supervisor with whom Clark had difficulty was preparing to retire and Davis was employed as his successor in April, 1974. In June, Clark had an interview with the Unity president who told Clark that Davis had been hired for the job.

Inasmuch as there is no contention here that the evidence was insufficient to support the conviction, there is no need to detail all of the evidence adduced by the state in support of the charge of murder in the first degree against Clark.

Testifying in his own behalf, Clark denied that he killed Davis. He denied that he had parked his auto in the place where Fines testified he saw it. According to Clark, he had received an anonymous call at his house around 8:00 P.M. on the night in question that a tenant appeared to be moving out of a residence leased from Clark and he was driving to investigate that possibility when he saw a car behind him, approaching at high speed. He saw no red lights on the vehicle. He pulled off the road at Colborn and Independence to allow the vehicle to pass. The car stopped and then the red lights came on. According to Clark, Fines accused him of stealing apples at Unity. Clark accused Fines of driving like a maniac and told him he had not been at Unity farm.

The jury returned a verdict of guilty of murder in the first degree and fixed the punishment at life imprisonment. After his motion for new trial was overruled, defendant appealed.

Appellant's first point relates to the overruling of his motion to quash the search warrant and to suppress the use in evidence of the desk calendar discovered in the search at appellant's residence. Appellant's first ground of complaint is that the search warrant was invalid because it was not issued pursuant to a written application, required by § 542.276, RSMo 1975 Cum.Supp.

At the hearing on the motion to quash the search warrant, the defendant offered in evidence three documents pertaining to the search warrant. They were an 'Affidavit for Search Warrant,' executed by John Fines, a 'Search Warrant,' issued by a Judge of the Jackson County Magistrate Court, and a 'Receipt for Search Warrant,' executed by Sergeant Jack Morton of the Jackson County Sheriff's Patrol.

Section 542.276, supra, does refer to a written application for a search warrant and also states that the application shall be supplemented by written affidavits, to be considered in determining whether there is probable cause for a search warrant. These requirements do not preclude the situation in which a single document, properly verified, whether it be denominated an 'Application' or 'Affidavit,' fulfills the requirements of an application and states adequate grounds for a finding of probable cause for issuance of the warrant. 'The initial application [for a search warrant] is generally in the form of an affidavit, the purpose of which is to present to the issuing authority a factual basis for the determination whether probable cause exists for making the desired search or seizure.' 68 Am.Jur.2d, Searches and Seizures, § 63, p. 715 (1973).

In the trial court, the sufficiency of the affidavit to support a finding of probable cause was objected to, but that complaint has not been renewed here. The objection here solely to the absence of an application for a search warrant is without merit and appellant has advanced no other reason in support of his contention that the search warrant was invalid.

Appellant contends further that, without regard for the validity of the search warrant, the seizure of the calendar was invalid because it fell within the class of items, the seizure of which may not be authorized under a search warrant. Appellant relies upon § 542.271, RSMo Cum.Supp.1975, which enumerates items which may be seized pursuant to warrant and excepts 'private papers or business records.'

Appellant's contention that the desk calendar fell within this exception is limited to the statement that appellant was engaged in the real estate business in addition to his employment at the Kansas City Skills Center and that 'a calendar such as the type that was...