Moore v. Com.

• Decision Date: 03 July 1978
• Citation: 569 S.W.2d 150
• Parties: Keith A. MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Walter McNARY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 150

569 S.W.2d 150

Keith A. MOORE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Walter McNARY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Supreme Court of Kentucky.

July 3, 1978.

Rehearing Denied Sept. 12, 1978.

Jack Emory Farley, Public Defender, Erwin W. Lewis, Asst. Public Defender, Frankfort, for appellant Moore.

Jack Emory Farley, Public Defender, Rodney McDaniel, Asst. Public Defender, Frankfort, for appellant McNary.

Robert F. Stephens, Atty. Gen., Miles H. Franklin, James L. Dickinson, Asst. Attys. Gen., Frankfort, for appellee.

CLAYTON, Justice.

On March 29, 1977, Indianapolis, Indiana, residents Keith Moore and Walter McNary were tried and convicted for the armed robbery of a service station in Simpson County, Kentucky. See 1966 Ky.Acts, Ch. 48, § 1 (repealed 1975). Both now appeal, asserting between them a total of six different grounds for reversal of their convictions. After considering the arguments of counsel on both sides of the controversy, and after reviewing the record on appeal, we are convinced that the convictions should stand.

Well into the late night hours of November 22, 1974, a bluish-green Dodge or Plymouth station wagon bearing two black men and a woman pulled into Carter's Sunoco just off I-65 in Simpson County. Except for attendants Howard Haddock and Jerry Britt, the station was deserted. Following the use by one of the men of the restroom, all three newcomers entered the station office, where one of the men trained a gun on Haddock and Britt and demanded that they hand over the station's money. When the cash register yielded only $75, the man with the gun told Haddock he knew there was more money and unless Haddock turned it over he would "blow the top of (Haddock's) head off." Haddock quickly admitted that the proceeds from the afternoon shift's sales, totaling over $300, were hidden in the coffee machine and unlocked it for the men. After taking Haddock's .22-caliber pistol and a 12-gauge shotgun, the men forced Haddock and Britt into a back room, ran out to their car, and sped away into the darkness.

The evidence connecting appellants with the robbery was basically as follows. First, three weeks after the robbery, Haddock's pistol was located in Lawrence, Indiana, in the possession of Moore, who moments before the gun was recovered had been riding in a bluish-green Plymouth station wagon. Secondly, both Haddock and Britt identified Moore and McNary in court as the culprits. When asked on direct examination if the persons who robbed the station were present in the courtroom, Haddock responded, "Well, yes, to my belief it is the defendants," and later identified Moore as the man who had wielded the gun and who had taken his pistol from him. Britt similarly stated he was "pretty sure" that Moore and McNary were the robbers and also identified Moore as the gunman, noting on cross-examination that although it had been some three years since the robbery, "it is pretty obvious that a man gets a gun drawed on him can pretty well identify who done it if it was ten years from now." Both Moore and McNary concede that this evidence is sufficient to support their convictions, but argue that the trial court committed a number of errors which require that the convictions be reversed.

Both Moore's and McNary's first contention concerns the failure by the court below to conduct an evidentiary hearing to determine whether Haddock's in-court identifications were tainted by an unnecessarily suggestive pretrial identification procedure. ¹ A few days after Moore and McNary were taken into custody by Indiana authorities, a "mug shot" of each man, each clearly marked with a police identification number on the front, was received by the Kentucky State Police and shown to Haddock. At first, Haddock told police he was not entirely sure that Moore and McNary were the robbers, that he could not really tell just by looking at photographs; after viewing the pictures for some 20 minutes, however, Haddock concluded, "Well, it looks like them." Prior to trial, defense counsel moved to suppress all identification evidence on the ground that the procedure of showing Haddock a single mug shot of each appellant unaccompanied by any other photographs was so impermissibly suggestive as to deprive both the pretrial identifications and any in-court identifications which might be made at trial of all reliability, and asked the trial court to conduct a hearing on the matter. Although agreeing that any testimony relating to the pretrial identifications should be prohibited, the court refused to hold a hearing with respect to possible in-court identifications, stating that any taint which existed could be adequately exposed during cross-examination.

Moore and McNary assert that the trial court's refusal to hold a suppression hearing constitutes error, and we agree. Wherever there is a substantial basis for the claim that a forthcoming in-court identification is tainted by an improper pretrial identification procedure, a suppression hearing, if affirmatively requested, should be conducted. Cf. Francis v. Commonwealth, Ky., 468 S.W.2d 287 (1971). This does not mean, however, that the judgments of conviction entered against Moore and McNary must automatically be vacated and their cases remanded for a hearing. Harris v. Commonwealth, Ky., 556 S.W.2d 669 (1977); Ray v. Commonwealth, Ky., 550 S.W.2d 482 (1977). For if it is clear from the record on appeal either that (1) the complained of pretrial identification procedure was not at all suggestive, Cf. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); (2) the pretrial procedure, while suggestive, was necessarily so, See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); (3) under the " 'totality of the circumstances' the identification was reliable even though the confrontation procedure was suggestive," Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); or (4) the admission of the identification testimony, even if it be assumed to be unreliable, was harmless error, See Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), remanding for a hearing would serve no purpose.

In the case at hand, there is no question that the display to Haddock, while Moore and McNary were in custody of Indiana authorities, of a single mug shot of each man unaccompanied by any other pictures, was unnecessarily suggestive. See Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); United States v. Washington, 292 F.Supp. 284 (D.D.C.1968). The crucial question, therefore, is whether Haddock's in-court identification of appellants was reliable despite this suggestiveness, i. e., whether he likely would have been able to identify Moore and McNary even if a proper photographic identification procedure had been utilized. As mentioned previously, resolution of this question must be made in...