State v. Bushman
| Decision Date | 21 September 1982 |
| Docket Number | No. WD,WD |
| Citation | 642 S.W.2d 117 |
| Parties | STATE of Missouri, Respondent, v. Gerald M. BUSHMAN, Appellant. 32825. |
| Court | Missouri Court of Appeals |
Edward L. Fitzgerald, Robert S. Thedinger, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Before KENNEDY, P.J., and CLARK and MANFORD, JJ.
Gerald M. Bushman was jury tried and convicted of robbery in the first degree and he was sentenced to a term of 14 years. In this appeal, he raises three points: (1) a motion to suppress testimony by identification witnesses was erroneously denied, (2) a mistrial should have been declared because the jury panel was tainted when veniremen made certain comments during voir dire, and (3) an impermissible inference was suggested by testimony concerning Bushman's arrest in Arizona. Affirmed.
The evidence adduced at trial established that the First National Bank of Independence was robbed November 14, 1979 by two men, one of whom took a position in the center of the bank lobby armed with a hand gun. The other man, being the taller of the two, demanded and received money from the tellers. According to witnesses, three to ten minutes elapsed from the time the robbers entered the bank until, they fled with the money. The police arrived soon after the offense was committed. They had been summoned by one of the tellers who sounded the alarm before the robbers entered the bank. Upon a search of the area, the police recovered the money taken which was in a brown paper bag. An explosive device had been deposited in the bag with the money and had colored all the contents with red dye. The robbers, however, were not found at the scene.
Three of the bank tellers had observed the robbers during commission of the crime and all assisted a police artist in preparation of a composite drawing of the taller robber. Suspicion focused on Bushman as the individual portrayed in the drawing, but he could not be found at his residence in Jackson County nor did inquiries of family, friends and at his place of employment yield any information. Ultimately, Bushman was apprehended in Phoenix, Arizona where he was arrested in December, 1980.
In his first point, Bushman claims the identification procedures under which the three teller-witnesses selected Bushman as the taller robber were impermissibly suggestive, thus tainting the reliability of their testimony and requiring that the evidence be suppressed. The facts on which the contention is based are unusual and must be recounted in some detail.
As noted above, the three witnesses collaborated immediately after the robbery to pool their recollections and produce a facial portrait of the robber drawn in pencil by a police artist. Thereafter, some fourteen months elapsed before Bushman was returned from Arizona. During the intervening time, the witnesses viewed neither suspects nor photographs. After Bushman had been arrested and returned to Jackson County, the three bank tellers were called to testify at a preliminary hearing. While gathered in a witness room prior to giving their testimony, the tellers were provided access to the police investigation file on Bushman, ostensibly for the purpose of rereading the statements each gave following the robbery. The contents of the file included, among other papers, a photograph of Bushman and the composite drawing.
A police officer spoke with the bank tellers in the witness room as to the progress of the case. He informed them the shorter of the two robbers was in jail, Bushman was the taller of the two and Bushman and the shorter man were brothers-in-law. The witnesses then proceeded into the court room and identified Bushman as one of the bank robbers. This same evidence, given at the preliminary hearing, was also given by the witnesses when they testified at trial.
Arguing that his identification by the teller-witnesses was prompted by display of his photograph immediately before the hearing, coupled also with suggestive comment by the police officer indicating confirmation of his implication in the offense, Bushman contends the eyewitness identifications should have been suppressed. While Bushman cites only Missouri cases which discuss various aspects of suggestive identification procedures, it is apparent he relies on the line of authority stemming from Stovall v. Deno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). It was there held that an accused is denied due process when an identification confrontation is so unnecessarily suggestive as to be conducive to irreparable mistaken identification. The application of this principle to suggestive photographic arrays was enunciated in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). In support of his contention that suggestive procedures and not the recollection of the witnesses prompted their identification, Bushman points to the substantial length of time which had passed between the crime and the testimonial confrontation, the display to the witnesses of a single photograph and the assurance offered the witnesses by the police that other facts reinforced identification of Bushman as one of the robbers.
In the recent case of State v. Sanders, 621 S.W.2d 386 (Mo.App.1981), this court noted that claims of suspect procedures employed to induce out-of-court identifications are evaluated in a two step process. It is first necessary to determine if, in fact, the procedure was impermissibly suggestive i.e., did the photographic display or the line up and the accompanying circumstances predetermine the resultant identification. It is of course inevitable that some suggestiveness be conveyed in any out-of-court identification. The witness obviously must assume that suspicion has centered on at least one of the persons presented else there would have been no occasion to seek identification. Impermissibility of suggestiveness is therefore a matter of degree to be assessed based on the facts of the case.
The second step of the process, once an impermissibly suggestive procedure has been employed, is to evaluate the reliability of the in-court identification. This second step assumes that in-court identification may yet be reliable despite the intervention of suggestive efforts to influence the eyewitness testimony. As the opinion in State v. Sanders, supra, states, it is rare that the claimed suggestiveness will so taint the testimony as to remove from the fact finder the opportunity to evaluate the reliability of the identification. The impact of pre-trial events upon the certainty of identification is therefore an issue usually left to the jury.
In the present case, the procedures employed to assure identification of Bushman by the...
To continue reading
Request your trial
-
State v. Greathouse, 13201
...or several, members of the jury panel does not require discharge of the entire panel nor declaration of a mistrial. State v. Bushman, 642 S.W.2d 117, 120 (Mo.App.1982); State v. McKinney, 630 S.W.2d 96 (Mo.App.1981). Moreover, when trial counsel claims the impartiality of the panel has been......
-
State v. Shelton
...the questions posited might actually elicit responses from veniremembers that identify disqualifying biases. See State v. Bushman, 642 S.W.2d 117, 120 (Mo. App. W.D. 1982) (noting that in searching "to discover during voir dire the hidden predilections of individual veniremen, it is inevita......
-
State v. Eidson, 49006
...of individual veniremen, it is inevitable that responses evincing bias will be extracted from time to time." State v. Bushman, 642 S.W.2d 117, 120 (Mo.App.1982). The disqualification of a venireman for expressing an opinion or making remarks indicating bias or prejudice is not sufficient gr......
-
State v. King, 21633
...(Mo.App.1985). A trial judge is in a better position to evaluate what occurs during voir dire than an appellate court. State v. Bushman, 642 S.W.2d 117, 120 (Mo.App.1982). It is appropriate for a trial court to inquire of panel members, as the trial court did in this case, about whether a d......