State v. Barnes, 36732

• Decision Date: 06 April 1976
• Docket Number: No. 36732,36732
• Citation: 537 S.W.2d 576
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Eugene Joseph BARNES, Jr., Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 576

537 S.W.2d 576

STATE of Missouri, Plaintiff-Respondent, v. Eugene Joseph BARNES, Jr., Defendant-Appellant.

No. 36732.

Missouri Court of Appeals, St. Louis District, Division One.

April 6, 1976.

Motion for Rehearing or Transfer Denied May 17, 1976.

Application to Transfer Denied July 12, 1976.

James C. Jones, Asst. Public Defender, Kent W. Fanning, Asst. Public Defender, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.

McMILLIAN, Judge.

This is an appeal by defendant Eugene Barnes from a conviction of attempted rape, a felony. Sections 559.260 and 556.150, RSMo 1969. We affirm.

M_ _ M_ _, the victim, testified that on December 4, 1973, at about 10:30 P.M., she hailed a cab at the corner of Page and Kingshighway Boulevards in the City of St. Louis; but when she told the cabdriver where she was going he refused to take her. She turned around and a man was behind her. He began talking to her about his getting drunk that day, then said, "Bitch, put that umbrella over my head and walk just like you are with me because . . . I'm going to fuck your drawers off.". He told her that he had a gun and would kill her if she screamed. One hand was in his pocket and one around her.

The man walked her up a short alley. He made her lie down and then tore off one of her pantyhose and pulled her panties off. Over the course of the next two and one half hours he attempted to enter her four or five times but was unable to induce an erection. It was cold and wet, and she told him that there was an empty building across the street. He said that they would go there and that if she was lying he would kill her.

They began to cross the street at the intersection of Page and Kingshighway Boulevard. At this point the man took her purse, which contained several personal items. A truck was stopped at the intersection and Ms. M_ _ broke away and beat on the truck, asking for help. The man hit her and said that she was 'his bitch.' The truck driver, Robert Branscombe, opened the door and took her in. He then drove to the Seventh District Police Station.

Ms. M_ _ gave the police a description of the man; the police report said: 'Negro male, 40, wearing a gray or black overcoat, with a tan shirt and black trousers.' Upon receiving this information, Officer Rangel went out to search for the man. He found a person fitting the description at 5091 Page Avenue. The man, defendant, was searched and was taken to the police station. He was searched, and several items belonging to Mrs. M_ _ were found in his possession.

Officer Rangel brought defendant back to the Seventh District Police Station and, showing him to Ms. M_ _, asked her if he was the one. She said 'Yes.' There had been a lapse of about one-half hour from the time Ms. M_ _ escaped from the man and the time defendant was shown to her. The truck driver, Mr. Branscombe, was also at the police station when defendant was brought in and, when asked if he recognized him, answered, 'Yes.'

Later the police, at Ms. M_ _'s direction, went to the rear of 1336 Kingshighway Boulevard and found a pair of women's panties, pantyhose, and a wine bottle.

At trial, both Ms. M_ _ and Mr. Branscombe identified defendant as the man they had seen on December 4, 1973. Defendant presented no evidence. The case was submitted to the jury on instructions which permitted the theory that defendant, by means of threats, forced M_ _ M_ _ to submit to his attempts to commit the offense of rape. The court also submitted an instruction on common assault. The jury returned a verdict of guilty on the attempted rape charge. Defendant's motion for a new trial was overruled, and he was sentenced to ten (10) years in the Department of Corrections.

On appeal, defendant contends that the trial court erred in denying defendant's motion to suppress the identification testimony of M_ _ M_ _ and Robert Branscombe, on the grounds that the confrontation at the police station was so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law under the Fourteenth Amendment to the United States Constitution. This contention must be considered in two parts: (1) Was the pretrial confrontation between the witnesses and the defendant prejudicial? (2) If so, did the witnesses have an independent basis for their in-court identification?

First, defendant alleges that the positive identifications one-on-one showup at the police station were prompted by a combination of prejudicial factors. In support of his claim, defendant cites the following circumstances: (1) the fact that defendant was shown to the witness alone, not as part of a lineup; (2) the fact that defendant was clearly under arrest and accused as her assailant; and (3) Ms. M_ _'s volatile state of mind at the time of the confrontation. Defendant argues that these factors created a substantial risk of misidentification.

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 (Mo.App.1973) and State v. Hamblin, 448 S.W.2d 603 (Mo.1970). In Maxwell, supra at 389, the victim was brought to the scene of the arrest for the purpose of identifying an automobile found on the parking lot there. Upon his arrival he saw not only his car, but three males, 'handcuffed and in police custody, standing near his 'stolen' automobile.' This on-the-scene confrontation between the victim and the defendant shortly after the crime was committed was not found to be unduly suggestive or unfair.

In the case at bar, the victim was taken from the scene to the police station. Within one-half hour of having escaped her assailant she was confronted by the defendant whom she positively identified as her attacker. The mere fact that this victim positively identified the defendant as her assailant does not render the confrontation at the police station suggestive nor unfair. See State v. Dodson, 491 S.W.2d 334, 338 (Mo.1973). On the basis of the evidence before the trial court we conclude that the trial court correctly ruled that the confrontation was neither unconstitutionally suggestive nor conducive to irreparable mistaken identity.

Second, defendant asserts that there was no valid...