Simms v. State, 39474

Decision Date13 June 1978
Docket NumberNo. 39474,39474
Citation568 S.W.2d 801
PartiesJohnnie SIMMS, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. . Louis District, Division One
CourtMissouri Court of Appeals

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 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 witness to view the accused at the time of the alleged crime, the accuracy of the witness's prior description of the accused, the certainty of the witness at the confrontation, the length of time between the crime and the confrontation, and the need for police to determine at the earliest opportunity whether the person suspected is in fact the person sought.

State v. Hudson, 508 S.W.2d 707, 710 (Mo.App.1974); see also Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

In the present case, appellant was returned to the scene of the crime within ten minutes, immediately after he was arrested. Given the particular facts of this case, there was a real need to determine immediately whether the person apprehended was in fact the person sought. Ms. Miller had ample time to observe appellant and made a definite identification. As noted by appellant, Ms. Miller did not give a description of the robber to police, the procedure used in State v. McDonald, 527 S.W.2d 46 (Mo.App.1975). In the present case we believe the circumstances of appellant's apprehension and arrest, which occurred almost immediately after the crime was committed and before Ms. Miller could give a description to anyone, more than compensated for the lack of a description. Finally, the procedure used was not unduly suggestive because appellant was in handcuffs sitting in the back of a patrol car when viewed by Ms. Miller. For example, in State v. Dodson, supra, at 337-38, the court found no due process violation in a show-up confrontation where the suspect was viewed in handcuffs and sitting in a police car within thirty minutes of the crime. Similarly, in State v. Smith, 465 S.W.2d 482, 483 (Mo.1971), the court permitted a show-up confrontation where the suspects were viewed seated in the back of a paddy wagon.

We conclude that the procedure used in the show-up confrontation in the present case was neither impermissibly suggestive nor unfair. Moreover, even if the show-up confrontation had been improperly conducted, the opportunity of Ms. Miller to observe appellant for several minutes 1 in the well-lit box office area provided a sufficient independent basis to support the in-court identification. E. g., State v. Ross, 502 S.W.2d 241, 245 (Mo.1973); State v. McDonald, supra, at 49; State v. Davis, 507 S.W.2d 32, (Mo.App.1974).

Appellant's second argument is that the trial court erred in giving to the jury Instruction No. 7, MAI-CR 2.70. 2 Appellant argues that because the charges of robbery in the first degree and armed criminal action were necessarily connected, specifically that the charge of armed criminal action was dependent upon first finding appellant guilty of the robbery, the trial court should have amended the instruction. Appellant contends this failure to amend confused and misled the jury because the instruction did not reflect the true nature of the information,...

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17 cases
  • Sours v. State
    • United States
    • Missouri Supreme Court
    • August 18, 1980
    ...years for armed criminal action to run consecutively to ten years for attempted robbery in the first degree); Simms v. State, 568 S.W.2d 801 (Mo.App.1978) (per McMillian, J.) (three years for armed criminal action to run consecutively to twelve years for robbery first degree). 8 Firm as our......
  • State v. Haggard
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    • Missouri Supreme Court
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    ...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. ......
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    • April 13, 2006
    ...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 already r......
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    • April 6, 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 (Mo.App.1978). MAI-CR2d 2.12, which appellant insists should have been submitted in lieu of those given as the verdict directors for each coun......
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