State v. Carter

• Decision Date: 05 September 1978
• Docket Number: No. 39375,39375
• Citation: 571 S.W.2d 779
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Robert Lee CARTER, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 779

571 S.W.2d 779

STATE of Missouri, Plaintiff-Respondent, v. Robert Lee CARTER, Defendant-Appellant.

No. 39375.

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

Sept. 5, 1978.

Joseph Webb, Asst. Public Defender, St. Louis, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

McMILLIAN, Judge.

Appellant Robert Lee Carter appeals from a judgment entered by the circuit court for criminal causes of the City of St. Louis upon a jury verdict finding him guilty of robbery in the first degree by means of a dangerous and deadly weapon. The trial court sentenced appellant to a term of twenty (20) years imprisonment.

For reversal appellant argues that the trial court erred in: (1) overruling appellant's pretrial motion to suppress in-court identification testimony, (2) overruling appellant's motion for judgment of acquittal at the close of the case, and (3) refusing to instruct the jury on the issue of attempted robbery. For the reasons discussed below, we affirm the judgment.

Briefly, the evidence presented to the jury showed that on the afternoon of July 20, 1976, Ms. Nyla Wilkins went to the supermarket. After finishing her shopping, she returned to her car and placed her groceries and her purse on the back seat. After she got into the driver's seat, a man, who had been sitting in the car parked next to her car, approached her with a gun in his hand. The man opened the door on the driver's side before she was able to close it, stated that he was a police officer and demanded her purse. As he forced his way into the car, Ms. Wilkins fled by way of the passenger's door. She ran into the supermarket for help. The supermarket manager and a store guard accompanied her to the parking lot. As they approached her car, the man started the car, pulled back into the parking space, got out of the car, and ran toward the street. The manager found a gun in the car parked next to Ms. Wilkins' car. When the police arrived, Ms. Wilkins gave them a description of the man. The police subsequently arrested an individual fitting the description and brought him back to the scene of the incident. The police then informed Ms. Wilkins that the suspect would be standing by the police car. Ms. Wilkins identified the man sitting inside the police car as her assailant, not the man standing alongside. The supermarket manager and the guard also identified the man sitting inside the car as the man involved. Each identification was made in the presence of the other witnesses.

First, appellant argues that the trial court erred in overruling his pretrial motion to suppress in-court identification testimony because the manner in which the pretrial confrontation was conducted violated appellant's constitutional rights. Appellant argues that the pretrial confrontation was impermissibly suggestive because the police had advised each identifying witness that a suspect was being returned for identification. We do not agree.

Although the use of pretrial confrontations is certainly not the best procedure of identification of suspects, See Holt v. State, 494 S.W.2d 657, 659 (Mo.App.1973), it is not impermissible for the police to immediately return a just-apprehended suspect to the scene of the crime for the purpose of allowing the witnesses to make an identification, e. g., State v. Madison, 537 S.W.2d 563, 564 (Mo.App.1976). In fact, prompt identification of a suspect may indicate to police whether to hold or release the suspect and thus whether to continue the investigation. E. g., State v. Jackson, 477 S.W.2d 47, 51 (Mo.1972). Nor is it improper procedure for the police to inform the identifying witnesses that the police have a suspect they might be able to identify. Such a statement was held to "(contain) no element of inaccuracy or undue suggestiveness" in State v. Armbruster, 541 S.W.2d 357, 361 (Mo.App.1976). Nor is it necessarily improper for the police to fail to separate the witnesses prior to their identification of a suspect. See State v. Dodson, 491 S.W.2d 334, 336 (Mo. banc 1973); State v. Bevineau, 460 S.W.2d 683, 685 (Mo.1970). The separation of witnesses at a pretrial confrontation is not a constitutional requirement, State v. Williams, 448 S.W.2d 865, 868 (Mo.1970); it is one of the factors to be considered under the totality-of-the-circumstances test as discussed below. See State v. Dodson, supra, at 338; State v. Williams, supra, at 868.

Whether a pretrial confrontation has been conducted in manner that was "unnecessarily suggestive and conducive to irreparable mistaken identification," Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967), requires an evaluation of the totality of the circumstances surrounding the pretrial confrontation. Id., see State v. Boothe, 485 S.W.2d 11 (Mo. banc 1972); State v. Hamblin, 448 S.W.2d 603 (Mo.1970). The reviewing court will consider such factors as:

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.

Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972); State v. Barnes, 537 S.W.2d 576, 578 (Mo.App.1976).

In the present case Ms. Wilkins observed the suspect at close range at the time of the crime, gave the police a good description and was certain of her identification of appellant at the pretrial confrontation. The crime took place in the late afternoon. About thirty minutes elapsed between the crime and the confrontation. Although appellant challenges whether Ms. Wilkins had sufficient opportunity to view the suspect, the duration of time is only one factor and does not necessarily indicate that the witness was unable to make an accurate identification. See, e. g., State v. Young, 534 S.W.2d 585, 589 (Mo.App.1976) (three seconds); State v. Davis, 530 S.W.2d 709, 712 (Mo.App.1975) (ten seconds). Appellant also argues that because Ms. Wilkins was "hysterical" at the time of the crime she was unable to accurately see appellant and that her emotional condition should be considered in evaluating the accuracy of her pretrial identification of appellant. We note, however, that "(t)he 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." State v. Armbruster, supra, at 361. Ms. Wilkins' emotional state is relevant to her credibility as a witness but we find no indications in the record that demonstrates that she was so distraught as to impair her competency as a witness as a matter of law. Under these circumstances, Ms. Wilkins' identification of appellant at the pretrial confrontation some thirty minutes after the crime did not taint the subsequent in-court identification. The trial court did not err in overruling appellant's pretrial motion to suppress.

Similarly, the supermarket manager and the store guard observed the man get out of Ms. Wilkins' car and walk off toward the street. Appellant walked past the manager within ten feet at one point. The guard followed the man down the street in his own car and even approached him and requested him to stop. While waiting in the parking lot, neither the manager nor the guard discussed the appearance or description of the man with each other or with Ms. Wilkins. Both the manager and the guard described the man's appearance, general features and clothing as well as to later identify him at the pretrial confrontation.

Moreover, the testimony of the witnesses describing the man and the pretrial confrontation provided an independent basis for the in-court identifications. See, e. g., State v. Simmons, 559 S.W.2d 557, 561 (Mo.App.1977); State v. Jordan, 506 S.W.2d 74, 81 (Mo.App.1974).

Secondly, appellant argues the trial court erred in overruling appellant's motion for judgment of acquittal at the close of the case. Appellant argues that the prosecution failed to produce sufficient evidence to...