Simms v. State, No. 39474

CourtCourt of Appeal of Missouri (US)
Writing for the CourtMcMILLIAN; CLEMENS, P. J., and SMITH
Citation568 S.W.2d 801
PartiesJohnnie SIMMS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. . Louis District, Division One
Decision Date13 June 1978
Docket NumberNo. 39474

Page 801

568 S.W.2d 801
Johnnie SIMMS, Defendant-Appellant,
v.
STATE of Missouri, Plaintiff-Respondent.
No. 39474.
Missouri Court of Appeals, St. Louis District, Division One.
June 13, 1978.

Page 802

Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Jeffrey W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

McMILLIAN, Judge.

Appellant Johnnie Simms appeals from a judgment entered upon a jury verdict in the circuit court of the City of St. Louis finding him guilty of robbery in the first degree, § 560.120 RSMo 1969, and armed criminal action, § 559.225 RSMo Supp.1976. The trial court sentenced appellant to consecutive terms of twelve (12) years imprisonment for the robbery and three (3) years for armed criminal action. For reversal appellant argues the trial court erred by: (1) denying appellant's motion to suppress the identification testimony and (2) giving to the jury MAI-CR Instruction 2.70. For the reasons discussed below, we disagree and, accordingly, affirm the judgment.

Due to the issues raised on appeal, a brief recitation of the pertinent facts is necessary. On August 31, 1976, at approximately 8:55 p. m., a man and a woman approached the box office of Loew's State Theatre. The man pointed a pistol at the ticket seller, Mrs. Dorothy Miller, and demanded money. Mrs. Miller handed the man the money. The man fled the scene on foot. Mrs. Miller activated the alarm button and the assistant manager and a security guard responded. Mrs. Miller informed them that a man and a woman had just robbed her. Both men observed appellant

Page 803

running west on Washington Avenue with money and a gun in his hand and chased him. As appellant turned the corner and headed north on Eighth Street, police officer Walter Jones apprehended and arrested him. The money and a gun were later recovered from underneath a car parked in the area of appellant's arrest.

The police officer returned appellant to the scene of the crime. Not more than ten minutes had elapsed since the time of the robbery. Appellant was handcuffed and seated in the back seat of a patrol car. Ms. Miller, while standing in front of the ticket office, identified appellant as the man who had robbed her. Officer Jones then took Ms. Miller into the theatre and took her statement. Later, during the trial, Ms. Miller made an in-court identification of appellant as the robber. Appellant moved to suppress the identification testimony. After a preliminary hearing on the motion to suppress, the trial court denied the motion.

Appellant first argues the trial court erred in denying appellant's motion to suppress identification testimony because the procedures used at the show-up were impermissibly suggestive and conducive to irreparable mistaken identification. Appellant contends his identification was the product of improper police procedures appellant was displayed to the victim in handcuffs sitting in the back of a patrol car. In essence, appellant objects to the use of a show-up identification. It is, however, well settled in Missouri that "it is not improper for the police to immediately return a freshly apprehended suspect to the scene of the crime for identification by one who has seen the culprit minutes before." State v. Maxwell, 502 S.W.2d 382, 389 (Mo.App.1973); See also State v. Hamblin, 448 S.W.2d 603, 611 (Mo.1970); State v. Madison, 537 S.W.2d 563, 564 (Mo.App.1976). For a discussion of the public policy reasons in support of this position see State v. Hamblin, supra, at 609-10, Citing Russell v. United States, 133 U.S.App.D.C. 77, 81, 408 F.2d 1280, 1284 (1969). Absent the use of impermissibly suggestive procedures, show-up confrontations and identifications are admissible; the reliability of the identification is a matter for the jury. See, e. g., State v. Dodson, 491 S.W.2d 334, 338 (Mo.banc 1973); State v. Townes, 461 S.W.2d 761, 763 (Mo.1970), Cert. den., 407 U.S. 909, 92 S.Ct. 2445, 32 L.Ed.2d 683 (1972).

In evaluating the suggestiveness of a particular confrontation and the likelihood of misidentification, we look to factors such as the opportunity of the...

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16 practice notes
  • State v. Haggard, No. 62227
    • United States
    • United States State Supreme Court of Missouri
    • 14 Julio 1981
    ...The complaint against Instruction No. 7 is without merit. State v. Tilley, 569 S.W.2d 346, 348-349(4-6)(7) (Mo.App.1978); Simms v. State, 568 S.W.2d 801, 804-805(4)-(7-8) Appellant contends the court erred in allowing the State to read a statement Mark Goodman had given to police officers. ......
  • State v. Eoff, No. 26047.
    • United States
    • Court of Appeal of Missouri (US)
    • 13 Abril 2006
    ...See, e.g., State v. Secrease, 859 S.W.2d 278, 279-80 (Mo.App.1993); State v. Robinson, 849 S.W.2d 693, 696 (Mo.App.1993); Simms v. State, 568 S.W.2d 801, 803-04 (Mo.App.1978). Finally, we find no merit in Defendant's argument that his identification was somehow tainted because Duke had alre......
  • State v. Murray, No. 63216
    • United States
    • United States State Supreme Court of Missouri
    • 6 Abril 1982
    ...v. Boyington, 544 S.W.2d 300 (Mo.App.1976). This principle is applicable to instances of erroneous jury instructions. Simms v. State, 568 S.W.2d 801 MAI-CR2d 2.12, which appellant insists should have been submitted in lieu of those given as the verdict directors for each count, would have a......
  • State v. Johnson, No. 42928
    • United States
    • Court of Appeal of Missouri (US)
    • 5 Enero 1982
    ...in every show-up, else why conduct a show-up? The true question is whether the show-up is impermissively suggestive. Simms v. State, 568 S.W.2d 801, 803 (Mo.App.1978). The organization and conduct of this show-up was free from undue suggestion. In inviting the witnesses to view appellant th......
  • Request a trial to view additional results
16 cases
  • State v. Haggard, No. 62227
    • United States
    • United States State Supreme Court of Missouri
    • 14 Julio 1981
    ...The complaint against Instruction No. 7 is without merit. State v. Tilley, 569 S.W.2d 346, 348-349(4-6)(7) (Mo.App.1978); Simms v. State, 568 S.W.2d 801, 804-805(4)-(7-8) Appellant contends the court erred in allowing the State to read a statement Mark Goodman had given to police officers. ......
  • State v. Eoff, No. 26047.
    • United States
    • Court of Appeal of Missouri (US)
    • 13 Abril 2006
    ...See, e.g., State v. Secrease, 859 S.W.2d 278, 279-80 (Mo.App.1993); State v. Robinson, 849 S.W.2d 693, 696 (Mo.App.1993); Simms v. State, 568 S.W.2d 801, 803-04 (Mo.App.1978). Finally, we find no merit in Defendant's argument that his identification was somehow tainted because Duke had alre......
  • State v. Murray, No. 63216
    • United States
    • United States State Supreme Court of Missouri
    • 6 Abril 1982
    ...v. Boyington, 544 S.W.2d 300 (Mo.App.1976). This principle is applicable to instances of erroneous jury instructions. Simms v. State, 568 S.W.2d 801 MAI-CR2d 2.12, which appellant insists should have been submitted in lieu of those given as the verdict directors for each count, would have a......
  • State v. Johnson, No. 42928
    • United States
    • Court of Appeal of Missouri (US)
    • 5 Enero 1982
    ...in every show-up, else why conduct a show-up? The true question is whether the show-up is impermissively suggestive. Simms v. State, 568 S.W.2d 801, 803 (Mo.App.1978). The organization and conduct of this show-up was free from undue suggestion. In inviting the witnesses to view appellant th......
  • Request a trial to view additional results

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