State v. Clark , 1979 Mo. LEXIS 341 ( 1979 )

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 Col-burn 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 Col-burn 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 residence⁵ 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 certain exceptions, are per se unreasonable under the fourth amendment. Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). He also contends the burden is on the state to show that the evidence fits within one of the exceptions to the otherwise per se requirement of a warrant for seizure of evidentiary items. State v. Epperson, 571 S.W.2d 260, 263 (Mo. banc 1978); cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979); McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948); United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951). The state replies that the calendar was both in “plain view” and was “reasonably related” to the purpose of the search and thus its seizure was proper.

The plain view doctrine was discussed at length in State v. Collett, 542 S.W.2d 783 (Mo. banc 1976), wherein this Court at 786 reviewing Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) stated: “[Coolidge ] is authority for the proposition that plain view alone is not enough to justify a warrantless seizure. It is necessary that (1) the evidence be observed in plain view while the officer is in a place where he has a right to be, (2) the discovery of the evidence be inadvertent and (3) it is apparent to the police that they have evidence before them.” The first “Coolidge” requirement was met because Sergeant Morton could see the desk calendar in plain view and there is no question that the police had justification under the valid warrant to enter defendant’s home. Examining to see if the elements of requirement # 3 were present we must ask whether detectives Morton and Starr could reasonably believe that the calendar pad discovered in plain view was evidence relating to criminal activity.

We start with exhibit # 50, submitted for this Court’s consideration, the pieces of which Starr found shortly before he assisted Morton in executing the warrant. Starr testified that he could discern the handwritten words “hello,” “stateboiler,” and “Spaulding” when he was gathering the fragments. Examination of the exhibit readily discloses that it is a page from a desk calendar pad with a number of irregular pieces assembled into a page approximately 3½ by 6 inches. Tear lines delineating the separate pieces are for the most part easily discerned. One of the larger pieces bears all but the “T” from the word “Thursday,” printed in bold black capital letters. Another large piece shows on its right side in even larger print a red “2” and half the “4” from “24,” and on its left side the smaller printed numerals “10” and “17” in one vertical column, the numerals “4,” “11,” and “18” in the next column, and the letter “S” over the numerals “5,” “12,” “19,” and “26” in a third column, with a straight vertical line suggesting a border. The fragment containing the word “hello,” to which Starr testified, bears the black printed numerals “29,” “30,” and “31” partially enclosed in a black line border clearly depicting a portion of calendar. This fragment fits with the one on which the columns of numbers are shown. These two large pieces with several smaller fragments display portions of a calendar portraying the month of October, 1974, enclosed by a black line border. Four assembled fragments, including one described above, show a large red “24” and “Oct. 1974” in the upper right hand corner of the page. The pieces at the bottom bear the following printed words and figures: “297 — Thursday, Oct. 24 — 68.”⁷ The assembled calendar page bears a handwritten note which reads,

“Hello — Lazier Spalding of the State Dept. of Boiler Inspection. The Unity operator gave me your number. I meant to get in touch with you earlier at home relative to inspection [sic] the two new boilers in the shop area but I had car trouble and my car has been worked on all afternoon. I would like to head home this evening if I could make the inspection. Take just 45.”

While it was necessary to assemble the parts to read all the printed and handwritten matters on the paper, any two or three of the larger pieces when considered separately, without question indicate they are parts of a page from a small calendar.

Starr’s examination of the paper scraps was intense and purposeful. He was sent to search for evidence at the place where the suspect was first seen and accosted outside his car following the chase from Unity farm by Officer Fine. Starr found and collected the scraps in the grassy area near that intersection. In this thorough search he discovered and retrieved all the fragments. While Starr was not asked particularly about the printed material on the paper pieces, he was able to identify the fragments when assembled as comprising the exhibit. This could only have been possible from his recognition of the separate fragments with the printed numbers and letters as well as the handwritten portions which he described.

Starr’s testimony demonstrates the significance he attached to the paper pieces.

Q. At the time you recovered the pieces of paper, which is State’s Exhibit No. 50, is that the only thing you recovered at that time?

A. [Officer Starr] Yes, at that time.

Q. And did you immediately deliver those to Sergeant Morton ?

A. Yes, I did.

Q. Then, I take it, you returned back to the scene of Independence and Col-burn; is that correct?

A. Yes, I did. (T. 270) (Emphasis added.)

Starr stopped his search immediately, made a special trip to deliver the find to Sergeant Morton and shortly thereafter accompanied Sergeant Morton to the Clark residence. Although the record does not reflect what he told Morton about the paper fragments. Starr at that time carried his knowledge of the fragments with the printed numbers and letters to the Clark home. It may reasonably be concluded that from this knowledge the officers recognized a connection between the calendar pad and the crime they were investigating when the pad was spotted by Morton on the telephone stand in defendant’s home. It defies credulity to suggest that Morton had not been advised by Starr of his finding the calendar scraps, for this is the principal fact explaining his recognition of the probable significance of the desk calendar and its seizure.

It is not correct, as defendant argues, that only when the police later discovered a page missing could a nexus between the calendar and the crime appear. The circumstances tell us otherwise. A similar fact situation was analyzed by the Illinois Court in People v. Caruso, 2 Ill.App.3d 80, 276 N.E.2d 112 (1971), involving the seizure of papers in defendant’s home. FBI agents entered the home pursuant to a search warrant for stolen property. One of the agents, while eavesdropping, listened in on two phone calls which came to the residence during the search and overheard persons ask about “the results” and about “9-4-2 in the tenth.” He then observed defendant in a rear bedroom. A desk in the room contained racing forms, newspapers, and slips of paper with numbers on them. The local police were called and informed of the phone conversations but not of the papers. When they arrived, they observed newspapers and racing forms on the desk top and noticed scraps of paper immersed in the liquid contents of an electric blender in the room. Although they did not know what was on the scraps in the blender, they seized them as well as the other papers. On the State’s appeal from the pretrial order suppressing the scraps of paper, the appellate court reversed, stating, “The inability of police officers to positively identify slips of paper as record evidence of bets does not render a seizure unlawful where surrounding circumstances give rise to a reasonable belief that such slips of paper constitute evidence of a crime.” 276 N.E.2d at 113.

The fact that further examination of the calendar pad was required to corroborate Morton’s belief and confirm its probative quality did not render the seizure a violation of defendant’s fourth amendment rights. We find the standards of the doctrine’s third requirement have been met.

Finally we consider the 2nd requirement, i.e., the discovery must be inadvertent. Defendant contends that Morton, having advance knowledge of the probable connection of the scraps of paper found by Starr with the crime under investigation, could not have discovered the calendar pad inadvertently. This argument fails because Morton had no probable cause to believe a desk calendar pad was the source of the scraps or that it would be found at defendant’s residence. While it is reasonable to assume that Morton knew at the time he obtained the warrant that the scraps probably represented a part of a calendar, nothing supports the assumption that he realized the unassembled scraps represented a page from a desk calendar or that such, if it existed, might be in defendant’s home. It was necessary for one additional fact to come to light, i.e., the discovery in plain view of the desk calendar to combine with the other facts then known to trigger Morton’s appreciation of the calendar pad’s probable evidentiary value.

The Court of Appeals in the well reasoned opinion of State v. Preston, 583 S.W.2d 577 (Mo.App.1979), discussed United States v. Hare, 589 F.2d 1291 (6th Cir. 1979). There the United States Circuit Court of Appeals carefully analyzed Coolidge v. New Hampshire, supra, pointing out that the Supreme Court in Coolidge did not define the term “inadvertent,” and that the term was used in the sense of “unintentional” rather than “unanticipated.” The Court in Hare at 1294 stated, “We conclude, then, that ‘inadvertence’ in this context means that the police must be without probable cause to believe evidence would be discovered until they actually observe it in the course of an otherwise-justified search. There are many times when a police officer may ‘expect’ to find evidence in a particular place, and that expectation may range from a weak hunch to a strong suspicion. However, the Fourth Amendment prohibits either a warrant to issue or a search based on such an expectation. Yet if in the course of an intrusion wholly authorized by another legitimate purpose, that hunch or suspicion is confirmed by an actual observation, the police are in precisely the same position as if they were taken wholly by surprise by the discovery. The same exigent circumstances exist, and no warrant could have been obtained before the discovery.” We are persuaded to this view but whether a standard of “unintentional” or “unanticipated” is applied, before the officers entered defendant’s residence they did not know if a calendar existed nor that a desk calendar was the source of the scraps. As in Preston, any expectation they had amounted only to a “weak hunch” or certainly no more than a “strong suspicion.” The evidence shows Morton’s discovery of the pad was inadvertent and defendant’s first allegation of error is denied.

II.

Defendant next contends that the introduction of the testimony as to his in-custody statements made to the police officers was violative of the requirements imposed by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that following an evidentiary hearing on his motion to suppress, the Court erred in denying the motion. As noted above, the opinion of the Court of Appeals, Kansas City District, was mistakenly published in the official reports at 552 S.W.2d 256. To avoid duplication we adopt that portion of the opinion beginning with the last paragraph on page 261 (which commences with the words, “Appellant’s second assignment of error is . .”) and ending with the 5th full paragraph on page 263 which reads, “Appellant has not demonstrated error in the trial court’s ruling on his motion to suppress the results of his custodial interrogation or in the admission of such evidence at his trial.” To this we add that under prior decisions of this court, a waiver of the right to remain silent need not take any particular form. It need not be in writing; nor is it necessary that it be expressed in words specifically stating that the right to remain silent is being waived. A waiver of such right or the right to counsel can be determined from all of the surrounding circumstances. A similar statement of the rule may be found in United States v. Zamarripa, 544 F.2d 978, 981 (8th Cir. 1976), cert. denied, 429 U.S. 1111, 97 S.Ct. 1149, 51 L.Ed.2d 566 (1977):

The fact that the defendant did not sign the waiver form does not, per se, defeat the validity of a waiver of constitutional rights; the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires that a waiver of rights be made voluntarily, knowingly and intelligently, but does not demand that it be made in writing. (Citations omitted.) A voluntary waiver need not assume any particular form; it may be made in writing on a printed format or it may be made orally in replying to questions as in this ease.

The most recent affirmation of this rule is found in North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286 (1979), wherein the Court stated, “An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” Clark obviously understood his rights as related to him in the Miranda warning. In fact, he acted thereon, contacting and talking to his attorney. After consulting with his attorney and informing him that the officers wanted him to come to headquarters to talk about the Charles Davis homicide, he went to headquarters in his own automobile. At that time he was not under arrest. Upon his arrival at the police station, he again was given the Miranda warning. His refusal to sign a waiver on his attorney’s advice demonstrates he also understood and acted on that advice. At no time did he state that he had been advised not to talk to officers and he asserted no objection to making oral explanations. The officers testified that he talked freely and voluntarily.

Defendant did not testify at the suppression hearing and there was no evidence to contradict testimony of the officers. Nothing in the record suggests any intimidation or coercion or mistreatment. The evidence was sufficient to indicate that defendant, with knowledge of his right to remain silent, voluntarily and intelligently waived that right by freely talking and answering questions. The trial court was justified in denying the motion to suppress and concluding that the statements of defendant were admissible.

Ill

Pursuant to court order, defendant submitted certain handwriting exemplars for comparison with the writing found on the fragments from the calendar page. In addition, his handwritten letter to the president of Unity received in late January, 1974, and two papers signed by Clark and taken from his personnel file at Unity were compared to the handwriting on the calendar page. Although the State’s handwriting expert testified the court-ordered exemplars “had been produced in an altered form in an attempt to disguise normal handwriting,” he was able to conclude after comparing the handwriting on Clark’s letter of January, 1974 with that on the calendar page, that Clark had written the message on the latter. The handwriting on the documents from Clark’s personnel file buttressed the expert’s conclusions. The defense objection to introduction of the letter and the two personnel documents was grounded solely on the claim there was no proof whose handwriting appeared on those papers.

Defendant however argues that the three standards or exemplars of his purported handwriting (not those ordered by the trial court) were admitted without proper foundation as no one testified directly that the signature on any of the three was that of defendant. Section 490.640, RSMo 1969, provides:

Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses, and such writings and the evidence of witnesses respecting the same may be submitted to the court and jury as evidence of the genuineness or otherwise of the writing in dispute.

Here, the judge admitted the specimens, indicating his satisfaction with the proof of their genuineness. State v. Pace, 269 Mo. 681, 192 S.W. 428, 431 (1917). There was extensive circumstantial evidence of exhibit No. 107’s authenticity, a letter purportedly written to the Unity president (then Unity director) by the defendant, including the fact that in response thereto the president granted Clark an interview and the fact that defendant admitted he had written such a letter and was familiar with its contents. In addition, defendant’s objection when the letter was introduced was. only to its relevance not its authenticity.

The other two documents were also competent as standards. One was an application for employment and the second a personal information form, with directions that it be written in the employee’s hand, was written in longhand and signed with defendant’s name. Outward indicia of reliability, such as the document’s age, presence in defendant’s file and the use of the first person, were also indicative of genuineness. Normally one proposed standard cannot be used to prove the genuineness of another. To so permit would allow one document of unproven validity to validate a second, and no check would be provided if both are in fact false, yet written by the same hand. See Annot., 41 A.L.R.2d 575 (1955) and cases cited. However, when one of the proposed standards is proved to the satisfaction of the court to be genuine, expert testimony that it was in the same handwriting as the other is competent to permit that the latter be used as standards. See Estate of Fedina, 491 S.W.2d 552, 558, 559 (Mo.1973).

Thus, when exhibit No. 107 was proved genuine, it could be used to prove the other’s authenticity and the trial judge, within his discretion, properly admitted the documents.⁸

IV.

Defendant asserts a number of additional allegations of error not properly preserved for review because the “points” set forth in appellant’s brief contain no more than con-clusory statements, falling far short of Rule 84.04(d)’s requirements for preservation of error. In a case published since the first argument and submission in this case, Thummel v. King, 570 S.W .2d 679 (Mo. banc 1978), we reiterated the importance of compliance with these rules. However, though improperly presented we have examined the point for plain error.

Defendant ascribes error to admitting the ,32-ealiber pistol, the box of .22 caliber shells, and the drill bits, asserting that “all the testimony regarding the finding, seizure and comparison of said exhibits was irrelevant, immaterial, and not connected with and proven activity of defendant [sic].” The laboratory tests matching Clark’s drill bits with the holes bored in two of the .22 caliber bullets,- link Clark to the bullets and go to the proof of preparation and premeditation. The claim concerning the shells and drill bits is without merit. Furthermore, defense counsel in cross-examination of Detective Harl Morris adverted to defendant’s statement to the police that he owned a five-shot .32 caliber weapon, and the State produced a witness, Mr. Clarence Connor, who testified the .32 caliber owl-head revolver in question appeared to be the gun he had given defendant several years prior to the homicide. The connection between the weapons and defendant’s attempt to dispose of them along the road was sufficiently established.

Defendant next contends the note on the index card found by Mrs. Davis was not shown to have been typed by the victim on the evening of his death. If defendant is claiming—and it is not clear from his brief—that the exhibit should not have been admitted in evidence, the point is not well taken because counsel made no objection at trial.⁹ If defendant is arguing that Mrs. Davis’ conclusion as to when her husband typed the note was not trustworthy, his argument goes to the weight of the evidence rather than its admissibility, a matter put to rest by the verdict.

Defendant further asserts that the State violated the criminal discovery requirements of Rule 25.32 by failing to disclose before trial the tests on the Hilti gun ¹⁰ and the documents from appellant’s personnel file at Unity. Rule 25.32 lists certain items discoverable from the State without court order “upon written request of defendant’s counsel.” Nothing in the record, including appellant’s “motion for production” therein, shows counsel made written request for such items required by the Rule. The point is overruled.

Finally, appellant urges that the judge erred in sustaining the State’s hearsay objection to a defense question to maintenance worker Bray about a conversation with Officer Fines regarding Fines’ chase of Clark's auto. The following occurred during the defense cross-examination of Fines:

Q. All right. Now, did you ever tell a Mr. Gray [sic] that you were not sure if the car that was there at Independence and Colburn Road was the same car that you observed back at Unity?

A. I don’t know Mr. Gray.

Q. He is a janitor there at Unity.

A. I don’t recall. (Tr. 187-188)

Later the defense called Bray to the stand, who on cross-examination testified that Fines had told him of seeing an empty vehicle on the Unity grounds and of later chasing it as it sped away from Unity. On redirect, the following appears:

Q. So he saw the automobile, checked it, then drove away, and then came back?

A. Yes.

Q. And did he tell you whether or not after he stopped the car, after the chase, whether or not he was sure that that was the same car?

MR. DAKOPOLOS: Well, I object to that, Your Honor, as calling for hearsay evidence.

THE COURT: Sustained. (T. 706)

Defendant now argues that the objected-to question represented proper impeachment of Fines’ previous testimony by a prior inconsistent statement. This argument faces numerous difficulties. First is the apparent misidentification by defense counsel who asked Fines about Mr. Gray and then presented a question to Mr. Bray concerning the alleged statement. Next, no proffer was made of the supposed answer Bray might make. Finally, the matter is at the most inconsequential. The State linked appellant to the crime through the license check made by Fines, ballistics tests, the other guns found not far from Unity, the content of the two notes, one of which was taken from the deceased’s home and the other from the fragments of paper found on the chase route shown to have been written by Clark. Defense counsel’s question could go only to Fines’ original identification of the Ford. This original identification was corroborated by the requested license check and by his later identification of the Ford car he stopped at Independence and Col-burn Roads. Further, there is no dispute that it was Clark who was stopped at the intersection near Unity Village between 8:30 and 9:00 p. m. on the night of the murder and who engaged in the colloquy with Fines and the Lee’s Summit police and it was the Ford car which bore the license plate that Fines saw and requested the I.D. check before the chase began. The answer, on this tangential point, could have no significant impact on the volume of credible evidence linking Clark to the place and time hereinbefore discussed. “[E]rror which in a close case might call for a reversal may be disregarded as harmless when the evidence of guilt is strong.” State v. DeGraffenreid, 477 S.W.2d 57, 65 (Mo. banc 1972). We do not imply that if this were a close case reversal would be required; we hold only that if any error occurred in the judge’s ruling on this point — and it does not so appear — it was harmless beyond a reasonable doubt. A fortiori no miscarriage of justice constituting plain error can be said to have occurred.

The judgment of the circuit court of Jackson County is affirmed.

WELLIVER and MORGAN, JJ., and FINCH, Sr., J., concur. DONNELLY, J., dissents in separate dissenting opinion filed. SEILER, J., dissents in separate dissenting opinion filed. BARDGETT, C. J., dissents and concurs in separate dissenting opinion of SEILER, J. HIGGINS, J., not participating because not a member of the Court when cause was submitted.

1 . Common form first degree murder is now named “capital murder.” § 565.001, RSMo 1978.

2 . The notation in the style of the case at 552 S.W.2d 256, “Application to Transfer Denied July, 11, 1977” is incorrect. The application to transfer filed here June 13, 1977 was sustained September 12, 1977 and by operation of law the opinion of the Court of Appeals was vacated upon the transfer to this court. While it should not have been published, it remains in 552 S.W.2d and to avoid unnecessary repetition portions of the prior opinion have been incorporated herein by reference.

3 . A Major Hatfield commanded the investigation; Sergeant Morton was second-in-command.

4 . Cayton arranged the pieces on December 9, two days after their recovery. Before he received them, it appeared that someone had attempted to develop latent fingerprints on the fragments causing a slight purple stain on several of them. The separation of the pieces into two envelopes apparently occurred during the two days following their delivery in one envelope by Starr to Morton.

5 . The warrant authorized seizure of “overalls, shoes and clothing of Willis Clark worn by the said Willis Clark on the night of December 6, 1974, when questioned by a security officer at Unity Village, Missouri; the small caliber rifles and pistols described by Willis Clark as being in the residence at 411 Jefferson, Lee’s Summit, Missouri and mud, dirt, blood stains, hair and other debris from the area of Unity Village, Missouri, near the maintenance building access road and Colburn Road”, and then described Clark’s house, car and garage as the places to be searched for these objects. No reference was made to a desk calendar.

6 .Mrs. Clark testified the calendar was sometimes kept in the family room and sometimes in the kitchen and that her husband had another of the same kind in the basement where he had a desk and file cabinet.

7 . October 24 is the 297th day of the year, with 68 days remaining.

8 . See the Missouri Court of Appeals opinion 552 S.W.2d 256, pages 263 267 for a full and careful analysis of the applicable law and facts dispositive of this issue.

9 . Counsel twice objected to Mrs. Davis’ testimony that the note must have been prepared the evening of her husband’s death, but did not object to the introduction of the index card itself.

10 . A gunshot residue test performed on samples swabbed from Clark’s hands about 3:00 a. m. the day he was arrested revealed that he had recently handled and discharged a firearm. A gunpowder residue test was later performed in connection with a “Hilti gun,” a device that fixes nails or rivets into concrete, and the results showed that device did not leave the residue found on Clark’s hands. Defense counsel objected to the introduction of the later residue test on the ground the State had not revealed it to the defense prior to trial. Responding to this the prosecutor explained the test had only been completed the preceding day and with no opportunity to furnish it earlier.