State v. Bullington, WD

• Decision Date: 11 December 1984
• Docket Number: No. WD,WD
• Citation: 684 S.W.2d 52
• Parties: STATE of Missouri, Respondent, v. Robert E. BULLINGTON, Appellant. 34893.
• Court: Missouri Court of Appeals

Page 52

684 S.W.2d 52

STATE of Missouri, Respondent, v. Robert E. BULLINGTON, Appellant.

No. WD 34893.

Missouri Court of Appeals Western District.

Dec. 11, 1984.

Richard H. Sindel, Clayton, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before LOWENSTEIN, P.J., and SOMERVILLE and NUGENT, JJ.

LOWENSTEIN, Presiding Judge.

This appeal arises from a burglary in St. Louis County on September 3, 1977 in which the defendant Bullington broke into a home with a shotgun, tied up and taped the eyes of two of the residents (mother and son of the victim) then took the victim, Pamela Sue Wright, age 18, with him as a hostage. Other facts will be recounted with the relevant point of error raised on appeal by Bullington. Suffice it to say at this juncture, Bullington, while brandishing the shotgun, told the mother and brother to be quiet or he'd blow their heads off. He told the brother, "Don't say a word or I'll split your head open like a watermelon." The victim's mother asked him to not take her daughter; his reply was, "Don't call the police or I'll kill her." He also said, "I'm alone and I don't want to be alone." The estimated time the two witnesses looked at Bullington was between 20 seconds and five minutes. Bullington was seen in the neighborhood prior to the break-in and kidnapping, leering at several young ladies who were washing cars. A white truck similar to Bullington's was seen parked in front of the victim's house on the evening in question. On September 7th he left his truck at work but he departed saying the police were after him. He never returned, but was next seen in Oklahoma on September 12th where he told of being wanted by the police at home, explaining, "I've done a terrible thing and I will have to pay with my life."

After being taken from the house Pamela was not seen alive again. On September 11, 1977 her badly decomposed body was found floating in a creek eight miles from her home. The cause of death was listed as drowning some three to seven days earlier. Crimes involved with the break-in were severed and tried on a change of venue in Jackson County. See 593 S.W.2d 224. This court affirmed those convictions, first degree burglary, flourishing a deadly weapon, and armed criminal action in State v. Bullington, 680 S.W.2d 238, handed down September 18, 1984. The motion for rehearing or transfer was denied October 25, 1984. Many of the facts and the long procedural history of this whole matter are contained in that opinion.

This appeal is from Bullington's trial in Boone County (on a change of venue) for the capital murder charge stemming from the above facts. A jury found him guilty of murder in the first degree, § 565.003 RSMo 1978 as the killing was committed in the perpetration of kidnapping. On the basis of four prior felony convictions, the court also found Bullington to be a prior, persistent and dangerous offender. Sentence was set at life in prison. In a prior trial involving the homicide Bullington had been convicted and punishment set at life in prison without parole for 50 years. That conviction was overturned because of the application of Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979) which found infirm Jackson County's allowance of exemptions for jury duty for women. The United States Supreme Court in Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981), said he could not upon retrial receive the death penalty.

Bullington here raises some seven points, all of which are denied.

I.

Bullington's first point is that the identification testimony of the victim's mother and brother was improperly admitted into evidence because the testimony was the result of unnecessarily suggestive pretrial identification procedures. Assuming this question has been properly preserved, Missouri has adopted a two-step analysis for determining the constitutionality of these procedures: 1) Were the investigative procedures employed by the police impermissibly suggestive? 2) If so, were they so impermissibly suggestive as to create a very substantial likelihood of an irreparable misidentification at trial? State v. Burns, 671 S.W.2d 306, 310 (Mo.App.1984) quoting State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979).

In addressing the first prong of the analysis the defendant relies on Supreme Court cases that can be distinguished. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) held that an accused has a right to his attorney's presence during a post-indictment lineup. There is no complaint by this defendant on that aspect. The court also gave examples of the potential for improper influence, such as a defendant being the only Oriental in a six-man line-up, or the only tall person, or young person. Id. at 232, 87 S.Ct. at 1934. The facts in Wade revealed the witnesses observed the defendant "within sight of an FBI agent" prior to the line-up. Id. at 234, 87 S.Ct. at 1936. While the court did not assume this was intentionally designed, the prejudicial effect was a result of police procedures. However, in the present case, Bullington points to the mother and brother's exposure to his picture on television and in the newspaper. In no way can the police be held accountable for media coverage. In fact the mother admitted the police tried to keep the newspaper articles away from her.

The defendant also cites Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The court considered whether the procedure was so "unnecessarily suggestive and conducive to irreparable mistaken identification that [the defendant] was denied due process of law." Id. at 302, 87 S.Ct. at 1972. Stoval was taken to a hospital to be shown to the victim. He was handcuffed to one of five police officers, and was the only negro in the room, yet this procedure was affirmed when viewed in light of the "totality of the circumstances." The procedures in this case had far less potential for mistaken identification.

A third case relied on by the defendant is Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969). There, besides two line-ups, the only eye-witness was given a one-on-one confrontation with Foster. The witness made no positive identification until the third viewing. This is far different from the present case where the victim's brother identified the defendant from a photograph the first time it was shown to him. While it is true the mother could not identify the defendant by a photograph, she said from the very start she would need to hear his voice. And in fact when a line-up was finally arranged, the mother made positive voice identification.

Bullington next attacks the dissimilarities among the men in the line-up. This fact alone is insufficient to establish impermissible suggestiveness, for a line-up does not require exact conformity. State v. Taylor, 661 S.W.2d 794, 798 (Mo.App.1983); As stated in State v. Burns, 671 S.W.2d 306, 310 (Mo.App.1984); "[p]olice stations are not theatrical casting offices; a reasonable effort to harmonize the line-up is normally all that is required." The record is bare as to any error in the line-up to cause it to have been tainted.

Since the investigative procedures employed by the police were not impermissibly suggestive, this court need not address the second prong of the analysis, and the cases cited by the parties for that proposition.

II

Bullington's second point concerns the exclusion of testimony from Dr. Buckhout, a psychologist and expert in the field of perception. In an offer of proof he indicated Dr. Buckhout would have testified without any reference to specific witnesses as to the results of scientific research regarding (1) the effects of stress on perception; (2) the effects of limited opportunities to observe on the ability to remember and recall accurately what has been observed; (3) the effect of the length of time between the observation and a recall test on the ability to remember and recall accurately what was observed; (4) the effects of group discussion among observers on the ability to remember and recall accurately what has been observed; and, (5) the deficiencies in reliability between various kinds of recall tests.

This very doctor's testimony has been excluded in the following jurisdictions. See United States v. Thevis, 665 F.2d 616, 641-642 (5th Cir.1982); cert. denied, 456 U.S. 1008, 102 S.Ct. 2300, 73 L.Ed.2d 1303 (1982); United States v. Fosher, 590 F.2d 381, 383-384 (1st Cir.1979); United States v. Brown, 501 F.2d 146, 150-151 (9th Cir.1974); United States v. Collins, 395 F.Supp. 629, 635-637 (M.D.Pa.1975); State v. Wooden, 658 S.W.2d 553, 556-557 (Tenn.Crim.App.1983); State v. Stucke, 419 So.2d 939, 944-945 (La.1982); People v. Valentine, 53 A.D.2d 832, 385 N.Y.S.2d 545, 546 (1976).

For the reasons stated in State v. Bullington, supra, at pages 11 through 13 of the slip opinion, the court on the basis of the nebulous character of the proposed general testimony of an expert on witness perception, as presented here, make the trial judge's hesitancy to allow this testimony entirely justified. On this record, the court did not abuse its discretion in rejecting the testimony. The point is denied.

III.

The third point on appeal contends the court improperly excluded testimony by defendant's witness concerning voice comparison. The witness was an assistant public defender who had represented Bullington. The defense sought to rebutt the mother's statement of the perpetrator's voice being as deep as one of the investigating officers. The point also generally attacks the mother's in-court voice identification. Bullington relies on Eichelberger v. State, 524 S.W.2d 890, 894 (Mo.1975), where the court held a witness need not be qualified as an expert for an in-court voice identification, and that the lack of training merely goes to the weight of the evidence. Eichelburger...