Layton v. State

• Citation: 500 S.W.2d 267
• Decision Date: 26 September 1973
• Docket Number: No. 9405,9405
• Parties: Doyle Ronald LAYTON, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.
• Court: Court of Appeal of Missouri (US)

Page 267

500 S.W.2d 267

Doyle Ronald LAYTON, Movant-Appellant, v. STATE of Missouri, Defendant-Respondent.

No. 9405.

Missouri Court of Appeals, Springfield District.

Sept. 26, 1973.

Terry J. Flanagan, Shaw & Howlett, Clayton, for movant-appellant.

John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for defendant-respondent.

HOGAN, Judge.

Appellant and his 'fall partner' James W. Hendrix were jointly charged and tried for burglary in the first degree and stealing. A jury found both guilty and on direct appeal the judgments of conviction were affirmed. State v. Hendrix, 454 S.W.2d 40 (Mo.1970). Subsequently appellant sought postconviction relief in a proceeding under Rule 27.26, V.A.M.R., which was denied after an evidentiary hearing. On appeal, we will consider those points properly briefed. McQueen v. State, 475 S.W.2d 111, 115(3) (Mo. banc 1971).

In his brief, the appellant treats his first two points as one, and we shall do likewise. Those points are: 'I. The pre-trial Exhibition of Movant-Appellant to the Witness, Will Hendley, at the Stoddard County Jail was so flagrantly Prejudicial as to be a Denial of Movant's Constitutional Rights to Due Process of Law in Violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States. II. The pre-trial Exhibition of Movant-Appellant to the Witness, Will Hendley, at the Stoddard County Jail was Flagrantly Suggestive and Did Thereby Taint the In Court Identification of the Movant-Appellant.'

The factual background of the case has been twice stated, State v. Hendrix, supra, 454 S.W.2d 40, and Hendrix v. State, 495 S.W.2d 457 (Mo.App.1973), and need not be restated in detail here. Will Hendley was the victim of the burglary and larceny. The 'pretrial exhibition' of which the appellant complains was a showup ¹ which occurred at the Stoddard County Jail after appellant was taken in custody. Without fixing the date of the confrontation, appellant testified that '(T)hey brought Mr. Hendley up there to see us and they brought me down first by myself and told me to be quiet and don't say anything and to come down and stand in front of Mr. Hendley. That's what I did and after I got through they took me back upstaires (sic).'

The trial court found as a fact that the appellant failed to prove any prejudicial identification procedure. In this court, the appellant argues that the showup was 'flagrantly prejudicial and unnecessarily suggestive and (so) conducive to irreparable mistaken identification as to be a denial of due process of law.' The appellant seems to base this contention upon his testimony that Mr. Hendley was not presented with an array of persons, including the suspect, but was shown only the appellant and his codefendant. Contrary to appellant's contention that a showup is necessarily suggestive and unreliable, it is now clear that the admission of evidence of a showup, without more, does not violate due process, Neil v. Biggers, 409 U.S. 188, 201, 93 S.Ct. 375, 382(11), 34 L.Ed.2d 401, 411(13) (1972), and there is nothing in the record before us to indicate that the showup complained of was impermissibly suggestive or unreliable. Appellant testified that one officer was present at the showup. The officer asked Mr. Hendley if he could identify the appellant, but no suggestion was made that the appellant was one of the guilty parties. Appellant testified, and makes some point of his testimony that Mr. Hendley 'didn't say anything . . . (but) shook his head in a negative manner.' None of the other factors suggested as conducive to misidentification in the Neil case, supra, appear in the record, and appellant's interpretation of the movements of Mr. Hendley's head is scarcely enough to establish a denial of due process. The point is without merit.

Nevertheless, as we noted in Hendrix v. State, supra, 495 S.W.2d at 459(1), it is necessary to consider whether Hendley made an in-court identification of the appellant based wholly on his observation of the appellant and Hendrix during the commission of the crime charged, or whether the in-court identification of the appellant was testimonially linked to the showup. The trial court found that there was no denial of due process in receiving Hendley's in-court identification, but the transcript of appellant's trial containing the in-court identification was not introduced in evidence--at least our record does not reflect it--and we are obliged to consider whether or not we may resort to the record presented on direct appeal to determine whether or not the trial court's finding was clearly erroneous, or whether a remand is necessary.

Postconviction proceedings under Rule 27.26 are civil proceedings, collateral to but technically not part of the original criminal action. Rule 27.26, paras. (a), (b); State v. Davis, 438 S.W.2d 232, 234(1) (Mo.1969); State v. Stidham, 403 S.W.2d 616, 618(1) (Mo.1966). In civil cases, the general rule is that courts will not judicially notice records and facts in one action in deciding another and different one, unless the proceedings to be noticed are put in evidence. Funk v. C.I.R., 163 F.2d 796, 800--801(1) (3rd Cir. 1947); Knorp v. Thompson, 352 Mo. 44, 51, 175 S.W.2d 889, 893(3) (1943). Nevertheless, exceptions are admitted, and the extent to which the rule is strictly applied or relaxed depends largely upon considerations of expediency and justice in a particular case, as well as what it is the court undertakes to notice. Funk v. C.I.R., supra, 163 F.2d at 801(1); Knorp v. Thompson, supra, 352 Mo. at 52, 175 S.W.2d at 894(4). In this case, there are compelling reasons for taking notice of the transcript presented on appeal, even though that transcript is part of a record of our Supreme Court. Since the trial court's findings do not disclose with clarity what connection there was, if any, between the showup and Mr. Hendley's identification evidence at appellant's trial, we might remand the case for further consideration of this question. Such action would prolong this proceeding for some time, however, and final...