State v. Collins, 37930
| Decision Date | 23 May 1978 |
| Docket Number | No. 37930,37930 |
| Citation | 567 S.W.2d 144 |
| Parties | STATE of Missouri, Respondent, v. Clinton Martin COLLINS, Appellant. . Louis District,Division One |
| Court | Missouri Court of Appeals |
Robert C. Babione, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for appellant.
John D. Ashcroft, Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas M. Daly, Asst. Circuit Atty., St. Louis, for respondent.
Defendant was convicted of first degree robbery and sentenced to five years' imprisonment. On appeal he alleges the trial court erred by (1) refusing to suppress out-of-court identification, (2) allowing in-court identification by victims, (3) denying his motion for acquittal when the evidence was insufficient to prove the victim's fear and (4) admitting evidence of a prior misdemeanor conviction. We affirm.
Defendant requests his points relied on be reviewed as plain error under Rule 27.20(c). The rule is invoked on a case-by-case basis where substantial rights are affected and "there must be a sound, substantial manifestation . . . , a strong, clear showing, that injustice or miscarriage of justice will result if the rule is not invoked." State v. Meiers, 412 S.W.2d 478(1) (Mo.1967).
By his first point defendant challenges out-of-court identification testimony based on a one-on-one confrontation (a showup) at the police station. Defendant argues the showup itself was so suggestive it caused irreparable misidentification. Further, he argues that the fact the victim-witnesses drove to the police station together and then discussed the incident created a risk of misidentification.
At a pre-trial hearing on defendant's motion to suppress Edith Dobbins, the owner of a food shop, testified she had previously seen the man who robbed her shop many times and knew his name. She stated she had observed defendant several minutes during the robbery from a distance of four feet. Subsequently, she identified defendant as the robber while he was standing in the police station. The mere fact a showup occurred and that the victim identified defendant as the robber does not render the confrontation at the police station unduly suggestive. See State v. Barnes, 537 S.W.2d 576(2) (Mo.App.1976). See also State v. Burnette, 549 S.W.2d 352(2, 3) (Mo.App.1977), where a motion to suppress identification based on a showup was held to have been properly denied. Nor does the fact the owner and her employee, Edith Millicker, drove to the station together or discussed the incident show prejudicial suggestiveness. See State v. Williams, 448 S.W.2d 865(3) (Mo.1970) where the court held that separation of identifying witnesses is not a requirement to identification.
Second, defendant contends there was no independent basis for the in-court identifications, that they were based on suggestive out-of-court identifications. When an in-court identification is attacked the inquiry extends not only to determining whether identification procedures were unduly suggestive, but also to determining whether there is an independent source of identification. See State v. White, 549 S.W.2d 914(2) (Mo.App.1977).
Determination that an independent source of identification exists is based on factors enumerated in State v. Madison, 537 S.W.2d 563(3) (Mo.App.1976): (1) the opportunity of the witness to view the accused at the time of the alleged crime, (2) the accuracy of the witness' prior description of the accused, (3) the certainty of the witness at the confrontation, (4) the length of time between the crime and the confrontation, and (5) the need for the police to determine at the earliest possible opportunity whether the person suspected is the person sought. See also Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
Edith Millicker, an employee at Edith's Food Shop, testified she recognized the person who robbed the shop because she had seen him in the store on previous occasions and also for about five minutes earlier on the day of the robbery. At the time of the robbery she was approximately two feet from him and he stood across the counter from her for five minutes. She described the man in detail. Later that night she identified defendant at the police station. She stated she had no doubt defendant is the person who robbed the shop. Coupled with the trial testimony of Edith Dobbins which corroborated Edith Millicker's testimony, there is a sufficient independent source of identification to support the in-court identification. See ...
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State v. Belton
...in the first degree may be found where the victim is in fear even though there was no real possibility of injury." State v. Collins, 567 S.W.2d 144, 146 (Mo.App.1978). The fact that a victim perceives there to be a weapon that remains unseen is sufficient whether or not, in fact, such a wea......
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State v. Sistrunk
...of injury, such as ... where a robber falsely pretended to be pointing a gun supposedly concealed under his clothing.” State v. Collins, 567 S.W.2d 144, 146 (Mo.App.1978). “The threat to use the object to produce harm transmogrifies it into a dangerous instrument.” State v. Archer, 814 S.W.......
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State v. Cooper
...Since the witness knew the defendant prior to the offense the in-court identification had an independent basis. State v. Collins, 567 S.W.2d 144, 146 (Mo.App.1978); State v. Corlew, 463 S.W.2d 836, 838 (Mo.1971). The trial court, in a hearing on a motion to suppress, found Ms. Krupinski had......
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State v. Neal
...instrument in the course of the robbery. See State v. Belton, 949 S.W.2d 189, 192-93 (Mo.App. W.D.1997) (quoting State v. Collins, 567 S.W.2d 144, 146 (Mo.App.1978) ( "Robbery in the first degree may be found where the victim is in fear even though there was no real possibility of injury.")......