State v. Cooper, WD

Citation811 S.W.2d 786
Decision Date11 June 1991
Docket NumberNo. WD,WD
PartiesSTATE of Missouri, Respondent, v. Percy COOPER, Appellant. Percy COOPER, Appellant, v. STATE of Missouri, Respondent. 41984.
CourtCourt of Appeal of Missouri (US)

Mary K. Anderson, Columbia, for appellant.

William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

Before NUGENT, C.J., and KENNEDY, GAITAN and WASSERSTROM, JJ.

GAITAN, Judge.

Appellant, Percy Cooper, appeals his conviction for robbery in the first degree and from the denial of his motion for correction of the conviction under Rule 29.15. Specifically, appellant alleges that the trial court erred in (I) overruling his motion to suppress an in-court identification; (II) running the sentence resulting from this conviction consecutive to all other sentences imposed prior to or after this sentence; and (III) not disqualifying itself on its own motion for alleged bias. Appellant also alleges that the motion court erred in (IV) finding that appellant's trial counsel rendered effective assistance of counsel. Appellant's conviction and the judgment of the motion court are affirmed. This case is remanded, however, with the instruction that the appellant be sentenced in compliance with this opinion.

In the early morning hours of December 13, 1987, the co-manager (Joseph Hart) and an assistant manager (Charles Davis) of Wendy's restaurant in Liberty, Missouri, were preparing for the coming business day. Shortly before 6:00 a.m., Michael Walker, an employee of Wendy's, arrived at the locked back door and rang the bell. While waiting for Hart or Davis to let him in, Walker was approached by a person carrying a gun and wearing a woman's stocking over his head. This person stuck the gun in Walker's back and told him to "be calm and no one will get hurt."

Davis went to the back door and let Walker in, followed closely by the gunman. After telling Walker to go to, and stay in, the bathroom, the gunman forced Davis to lead him to the restaurant office. In route to the office, the gunman told Davis "I want all the money." Hart was busy in the office when the gunman and Davis arrived. Hart was forced to open a floor safe and the gunman placed the money into a bag. The gunman ordered Hart and Davis into the bathroom with Walker and left the restaurant.

On December 31, 1987, appellant was arrested by the police. A search of his vehicle revealed a .357 magnum handgun. Both Hart and Davis later indicated that the recovered handgun was very similar to the one used in the robbery. Both also positively identified the appellant as the robber. Appellant was convicted by a Clay County jury of first degree robbery on April 11, 1989. The court sentenced appellant as a prior and persistent offender to a term of life imprisonment to run consecutive to all other sentences imposed prior to or after this sentence.

Appellant filed a pro se motion for relief under Rule 29.15 on December 4, 1989. This motion was amended by counsel on February 15, 1990. After a hearing on appellant's motion the motion court denied relief.

I.

Charles Davis, the Wendy's assistant manager present at the robbery, identified appellant at trial as the robber. Prior to trial, appellant sought, and was denied, a motion to suppress an in-court identification by Davis. At trial, appellant was allowed to make a continuing objection to the in-court identification made by Davis. On appeal, appellant argues that the trial court erred in overruling his motion to suppress because the in-court identification denied him a fair trial. Appellant founds his argument on the contention that the "photograph lineup procedure" used by police, in which Davis initially identified appellant, was impermissibly suggestive.

On December 31, 1987 (approximately two and one half weeks after the robbery), police showed Davis a photograph array of six photos, one of which was of appellant. Davis chose two pictures, including the one of appellant, and stated that he was not absolutely positive the robber was one of the two. On January 15, 1989, Davis was again shown an array of six photographs, including one of appellant. While the transcript is somewhat unclear about the result of this second viewing, appellant's brief indicates that Davis selected appellant's photo. After these two photo lineups, Davis was shown four recent photos of appellant. Davis unequivocally stated that these recent photos were of the robber. Appellant contends that this identification process tainted Davis' in-court identification denying him his constitutional right to a fair trial.

To succeed in showing that the photo identification procedure improperly prejudiced him at trial, appellant must show (1) "that the investigative procedures employed by the police were impermissibly suggestive," and (2) "that the suggestive procedures made the identification at trial unreliable." State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990) (citing State v. Williams, 717 S.W.2d 561, 564 (Mo.App.1986)). We hold that the photo identification procedures used by the police were not "impermissibly suggestive." Therefore appellant has failed to prove the first step required by Vinson and there is no need for us to review for reliability. Vinson, 800 S.W.2d at 446; see also State v. Pieron, 755 S.W.2d 303, 308 (Mo.App.1988).

The cornerstone of an analysis for "impermissibly suggestive" photo identification procedures is whether the witness' identification is the result of "improper comment or activity on the part of the officer showing the photograph...." State v. Thomas, 705 S.W.2d 579, 582 (Mo.App.1986). Other courts have stated that an identification is impermissibly suggestive when "made as a response to suggestions or encouragement of the police" but not when "based upon the witness' own recollection and observation of the defendant's appearance." State v. Moore, 726 S.W.2d 410, 412 (Mo.App.1987). 1

The court in Moore indicated that, in terms of photo identifications, "[t]he danger of suggestiveness arises from the use of a single photo or some emphasis on one photo in a group." 726 S.W.2d at 412. The heart of appellant's argument is that Davis made only one positive identification of the robber: That identification coming only after Davis was shown four recent photos exclusively of the appellant, and thus appellant alleges that the procedure was "impermissibly suggestive." This argument ignores the fact that Davis, on two separate occasions, selected appellant's photo from an array of six pictures before seeing the four recent photos of the appellant. However, even without considering the two prior identifications by Davis, appellant has failed to show impermissible suggestiveness.

We do not disagree with the holding in Moore that the danger of impermissible suggestiveness arises when only one photo, or only photos of the suspect, are shown to the witness. However, finding that such facts surrounded a photo identification merely acts as an alarm to the court for further inquiry and is not enough alone to warrant reversing a conviction. Missouri courts have repeatedly held that "[t]he showing of a single photograph of a suspect to a witness, where there is no improper comment or activity on the part of the police in showing the photograph, does not result in impermissible suggestiveness." State v. Morant, 758 S.W.2d 110, 117 (Mo.App.1988); State v. Pieron, 755 S.W.2d 303, 309 (Mo.App.1988); State v. Thomas, 705 S.W.2d 579, 582 (Mo.App.1986). All of these cases indicate that even where only one photo, or only photos of the suspect, are shown to a witness, no impermissible suggestiveness exists without an affirmative showing of "improper comment and activity" by police. Appellant attempts to bootstrap this requirement by arguing that showing Davis only photos of the appellant was inherently an improper comment or activity. Such an argument simply does not comport with the controlling caselaw.

Appellant has only succeeded in showing that Davis was shown four recent photos of appellant and has failed to even argue improper comment or activity by the police. Given the two prior photo lineups where Davis selected appellant's photo, we hold that the photo identification procedures were "based upon the witness' own recollection and observation of the defendant's appearance." State v. Moore, 726 S.W.2d 410, 412 (Mo.App.1987). Therefore, appellant has failed to show impermissible suggestiveness and a review of the reliability of the identification at trial is pointless. State v. Vinson, 800 S.W.2d 444, 446 (Mo. banc 1990); State v. Pieron, 755 S.W.2d 303, 308 (Mo.App.1988).

II.

Appellant's second argument is that the sentence imposed by the court was cruel and unusual punishment because it "in effect sentenced appellant for crimes he had not yet been convicted of and created an improperly perpetual excessive sentence." Specifically, the sentence of the court stated that appellant's life sentence from this conviction would run "consecutive to all other sentences imposed prior to or after this sentence including any sentence in cause CR187-1465." A literal reading and application of this sentence would require that the life sentence imposed in this case run consecutively to all future sentences, even for crimes not yet committed.

Mo.Rev.Stat. § 558.026.1 (1986), which controls the imposition of concurrent and consecutive terms of imprisonment, states that "[m]ultiple sentences of imprisonment shall run concurrently unless the court specifies that they shall run consecutively...." While our research discloses no other Missouri cases on point, we hold that the language used in § 558.026.1 necessarily implies that a sentence can only be made consecutive to existing sentences arising from final judgments. In other words, § 558.026.1 does not contemplate a court running a sentence consecutively to...

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