Miller v. State, 15613

• Decision Date: 07 November 1988
• Docket Number: No. 15613,15613
• Citation: Miller v. State, 760 S.W.2d 166 (Mo. App. 1988)
• Parties: Charles MILLER, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 166

760 S.W.2d 166

Charles MILLER, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 15613.

Missouri Court of Appeals,

Southern District,

Division One.

Nov. 7, 1988.

Jim Lynn, Columbia, for movant-appellant.

William L. Webster, Atty. Gen., Carrie Francke, Asst. Sp. Atty. Gen., Jefferson City, for respondent.

GREENE, Judge.

Charles Miller was jury-convicted of first degree robbery, § 569.020, ¹ and was court-sentenced as a dangerous offender, § 558.016.4, to 25 years' imprisonment as punishment for the crime. His conviction was affirmed on appeal. State v. Miller, 699 S.W.2d 140 (Mo.App.1985).

Miller later filed a motion to vacate his conviction and sentence, pursuant to Rule 27.26, ² which motion, after amendment, alleged, among other things, that Miller was denied effective assistance of counsel because trial counsel failed to object to in-court identification testimony presented by complaining witness Teresa Perry Blankenship. Teresa was the cashier on duty at a convenience store when a robbery occurred. As a part of her testimony at trial, Teresa identified Miller as one of the two persons who committed the robbery.

An evidentiary hearing was held on the issues raised in the motion to vacate, after which the motion court made written findings of fact and conclusions of law, and entered judgment denying relief.

On appeal, Miller's sole point relied on is the contention that the trial court erred in denying his motion to vacate because Miller's conviction resulted from ineffective assistance of trial counsel. Miller alleges that his trial counsel's failure to object to Teresa's in-court identification testimony, which he says was based upon suggestive police procedures and was, therefore, unreliable, resulted in his conviction being obtained through the use of inadmissible evidence, in violation of his constitutional rights.

The motion court had before it, as a part of the record, the transcript of the hearing on a motion to suppress identification testimony, as well as the trial transcript. Based upon its examination of those exhibits, the motion court found the following facts to be true:

(1) The robbery with which Defendant/Movant was charged occurred at a Fastrip Store at 32nd and Findley Streets in Joplin, Newton County, Missouri at approximately 7:30 p.m.; (2) The store was well lit with florescent tube lighting, running the length of the store; (3) The period [of] time during which Defendant and his co-defendant were in the store was from eight to seventeen minutes; (4) Neither Defendant nor his co-defendant wore any kind of facial covering or other disguise; (5) Defendant first confronted Teresa J. Perry, the person in charge of the store, in the rear office area of the store where she had been taken and directed to remain. During such confrontation, while face to face, Defendant touched Teresa's breast; (6) After being removed by co-defendant Barnes from the office area to operate the cash register, Defendant returned to the front of the store and continued in Teresa's view during the time she was required to wait on customers and during the time Defendant sacked up cigarettes taken in the robbery; (7) Immediately following the robbery, Teresa gave a description of Defendant to the police as a male with blond hair, kind of long and about shoulder length, clean shaven, wearing a black shirt of some sort with a maroon colored sweater type sweat shirt over it, and blue jeans and kind of orangy colored cowboy boots; (8) Teresa arrived at the Joplin Police Station at about 2:15 a.m. the morning following the robbery; (9) Inside the police station, while being taken to view the suspect, Teresa passed through another room where she observed some clothing items. She identified the clothing as items that had been worn by the two subjects who robbed her; (10) Defendant was being fingerprinted and was surrounded by police officers when she identified him; (11) About three days later deputy Matthews showed Teresa a couple of photographs, one of which she identified as Defendant/Movant.

From these findings of fact, the motion court concluded:

The prompt showing of a suspect to a witness in a one-on-one viewing is not necessarily improper. State v. Bynum, 680 S.W.2d 156, 158 (Mo. banc 1984). Even if the police procedures are considered to be impermissibly suggestive, the reliability of the in-Court identification must be given consideration. In determining reliability, the Court looks at the 'totality of the circumstances' including: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. State v. Sanders, 621 S.W.2d 386, 389 (Mo.App.1981). Applying these principles, the Court finds that the motion to suppress identification was properly overruled.

In addition, the motion court found that Miller took the stand in his own defense and admitted that (1) he went to the convenience store with his codefendant on the night in question; (2) his codefendant had a weapon; (3) he filled two grocery sacks with cigarettes and did not pay for them; (4) he pumped gas for the car he and codefendant were riding in and did not pay for it; and (5) as the duo left the store, the codefendant said something that "kind of pertained to I'll blow your head off." From this, the motion court concluded:

The privilege against self-incrimination can be waived. Smith v. United States, 337 U.S. 137, 93 L.Ed. 1264, 69 S.Ct. 1000 [1949]. When a witness voluntarily testifies, the privilege against self-incrimination is amply respected without the need of accepting testimony freed from the...