State v. Armbruster

• Decision Date: 10 September 1976
• Docket Number: No. 10080,10080
• Parties: STATE of Missouri, Respondent, v. Jerry William ARMBRUSTER, Appellant.
• Court: Missouri Court of Appeals

Page 357

541 S.W.2d 357

STATE of Missouri, Respondent, v. Jerry William ARMBRUSTER, Appellant.

No. 10080.

Missouri Court of Appeals, Springfield District.

Sept. 10, 1976.

Paul Crider, Jr., Public Defender, Rolla, for appellant.

John C. Danforth, Atty. Gen., Douglas G. Mooney, Asst. Atty. Gen., Jefferson City, for respondent.

FLANIGAN, Judge.

Defendant Jerry William Armbruster, tried as a second offender, was convicted by a jury of robbery in the first degree and was sentenced to 30 years in prison. Defendant does not question the sufficiency of the evidence to support the conviction.

The first of defendant's four appellate contentions, each unavailing, is that the trial court erred in admitting into evidence the 'pre-trial identification' of defendant by Janet Congiardo, the victim. The trial court had denied defendant's pre-trial motion to suppress this evidence and had overruled defendant's objection to its introduction at the trial. Defendant claims that the attacked evidence was inadmissible because 'the totality of the circumstances surrounding the identification of defendant at the scene was so suggestive and conducive to irreparable mistaken identification as to violate' his constitutional rights. Defendant also says that the attacked evidence rendered inadmissible Janet's in-court identification of defendant.

On the morning of October 28, 1974, Janet Congiardo, employed as a cashier by Western and Southern Insurance Company, was working alone in the company's office in Rolla, Missouri. The office was well illuminated and Janet's eyesight was good. The robbery was perpetrated by a man who was in the office with Janet for 10 to 12 minutes prior to its commission. Only the man and Janet were there during that period. Janet had seen the man at the office on two occasions during the previous two weeks. During the time the man was in the office prior to the robbery he and Janet engaged in about 10 minutes of 'small talk.' The man then left the office and, according to Janet's testimony, 'in no more than two minutes he came running in the door and around my desk with a knife in his hand and he robbed me.' The robbery took place about 9:30 a.m.

Janet said that 'it seemed like quite a while' that the robber was in the office while the offense was being committed. During that time she had an additional opportunity to observe him. She testified that the man took $48.25 from the cash drawer and $4.00 or $5.00 out of the safe and put it in his pocket before he fled the scene. 'Just minutes' after he left Janet went next door to a beauty shop and told the girl there that she had been robbed and asked her to call the police.

About 10 a.m. Officer Kelley arrived and Janet gave him a description of the robber. Kelley 'immediately started back to my patrol car to put the description on the radio.' As Kelley did so, another police car arrived at the scene. This took place about 10:00 a.m. This car contained three men: the defendant and police officers Sandifer and Waterman.

These two officers had started toward the insurance office 'to back up' Kelley. While en route they saw the defendant 'and another gentleman having an altercation--looked like there possibly might be a fight.' Sandifer arrested the defendant. Sandifer added: 'We still did not know what we had at the insurance company. We put the defendant in the police car and proceeded on.' The defendant had a butcher knife, State's Exhibit 8, in his possession at the time of the arrest. Later at the police station, when the defendant was searched, 'we found $51 or $52 just stuffed in his pocket.'

Kelley testified that as he was giving the description of the robber to the other two officers 'I realized I was describing the suspect they had in the car with them.' Kelley immediately went back into the insurance office. According to Janet, he told her 'that from the description I gave him of the robber Kelley thought that he might be the one they had in custody and Kelley asked me if I would identify him.'

As she stepped out the door, the defendant was coming toward the insurance office with officers Sandifer and Waterman. When Janet saw the defendant she said 'Oh, my God, it's him' and covered her face and went back inside. ¹ Janet testified that when she did so she was very upset. This testimony was then elicited from Janet on cross-examination by defendant's counsel:

'Q. Now, are you sure in your own mind that this suggestion of Officer Kelley, coupled with your state of mind at the time, didn't taint your identification, ma'am?

A. No, I spent several minutes with him, even before he actually pulled the knife on me, and I--no way I could be mistaken.'

When shown State's Exhibit 8, the butcher knife, Janet said 'It looks like the knife the robber had.'

Defendant particularizes his attack upon the admissibility of Janet's testimony concerning her pre-trial identification of defendant by asserting that the confrontation took place at a time when Janet was 'hysterical' and that it 'occurred following suggestive remarks made by Officer Kelley.' Defendant relies primarily upon Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

In Neil v. Biggers, 409 U.S. 188, 196, 93 S.Ct. 375, 380, 34 L.Ed.2d 401, 409, the United States Supreme Court summarized the holding in Stovall to be that a defendant could claim that the confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law. 'This we held, must be determined 'on the totality of the circumstances.''

In Neil, 409 U.S. at p. 198, 93 S.Ct. at p. 381, 34 L.Ed.2d at p. 410, the court said:

'It is, first of all, apparent that the primary evil to be avoided is 'a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. (377), at 384, 88 S.Ct. (967), at 971, 19 L.Ed.2d 1247. While the phrase was coined as a standard for determining whether an in-court identification would be admissible in the wake of a suggestive out-of-court identification, with the deletion of 'irreparable' it serves equally well as a standard for the admissibility of testimony concerning the out-of-court identification itself.'

On the following page it said:

'As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.'

In the case at bar Janet had a good opportunity to view the criminal at the time of the robbery. She also viewed him for 10 or 12 minutes prior to its commission and while they were engaged in small talk. She had seen him on two recent prior occasions. Her 'degree of attention' was high. Her description of the robber, given to Officer Kelley, was accurate enough to cause Kelley to recognize the defendant as fitting her description. At the confrontation Janet demonstrated a high level of certainty in the identification. The length of time between the crime and the confrontation was less than 40 minutes. The totality of the circumstances, gauged by the foregoing factors, supports the admissibility of the pre-trial identification. State v. Dodson, 491 S.W.2d 334, 336(3--5) (Mo. banc 1973); State v. Smith, 465 S.W.2d 482, 484(1) (Mo.1971); State v. French, 528 S.W.2d 170, 173(7) (Mo.App.1975).

Missouri cases have approved the practice of law officers taking a criminal to the scene for immediate identification by the victim. See for example, State v. Jackson, 477 S.W.2d 47, 51 (Mo.1972) ('a proper procedure, justified by the exigencies of the situation.'); State v. Dodson, 491 S.W.2d, supra, at 337(4) ('proper and desirable for the police to ascertain at the earliest possible moment whether the person arrested was or was not the person sought'); State v. McDonald, 527 S.W.2d 46, 48 (Mo.App.1975).

'In Missouri, a judicial or extra-judicial identification by a person testifying at trial is admissible.' State v. Sigh, 470 S.W.2d 503, 505(2) (Mo. banc 1971); State v. Maxwell, 502 S.W.2d 382, 391(10) (Mo.App.1973); Anno. 71 A.L.R.2d 449, 460.

Defendant's claim that Janet was 'hysterical' at the time of the confrontation lacks support from the record. Although Officer Kelley said that she was 'in hysterics' when he first asked her to look at the defendant, Kelley also stated that he talked with her and that she 'calmed down' before the confrontation took place. Janet said that she was 'very upset' at the time she identified the defendant. However, her identification was positive.

The law does not require, as a condition to the admissibility of the testimony of the victim of a crime, that he remain unruffled during its commission and aftermath. Janet's emotional reaction was one to be expected under the circumstances. The record does not show that it reached such a degree as to impair her testimonial competency as a matter of law. Her emotional condition at the time of the confrontation was a proper subject of inquiry because it bore upon her credibility but there is no showing that her mental state was such that she lacked 'sufficient understanding to receive, remember and narrate impressions.' ²

Defendant brands as 'suggestive' the statements made by Officer Kelley to Janet prior to the confrontation. Kelley told Janet that from the description she gave him of the robber, Kelley thought the defendant might be the man they had in custody and he asked her if she would identify him. Defendant does not question the fact that the defendant did fit the description which Janet had given Kelley only a few minutes before the confrontation. Kelley did not tell Janet that the man in custody was the robber. He stated that, from the...