State v. Cooper
| Decision Date | 09 April 1985 |
| Docket Number | No. 48222,48222 |
| Citation | 691 S.W.2d 353 |
| Parties | STATE of Missouri, Respondent, v. Leonard Joseph COOPER, Appellant. |
| Court | Missouri Court of Appeals |
Lew Anthony Kollias, Michael Radosevich, Columbia, for appellant.
John Ashcroft, Atty. Gen., T. Chad Farris, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant, Leonard Joseph Cooper, appeals from his conviction by a jury of robbery in the first degree, § 569.020 RSMo 1978, and armed criminal action, § 571.015 RSMo 1978. Defendant was sentenced as a dangerous and persistent offender to life imprisonment on the robbery conviction and to seventy-five years imprisonment on the armed criminal action conviction, the sentences to run consecutively.
The sufficiency of the evidence is not challenged so a summary of the pertinent facts suffices. On March 27, 1983, at about 1:00 a.m., a bar in O'Fallon, Missouri was robbed. Karen Krupinski, who was working as a barmaid, testified the defendant entered the bar and she recognized him as an old friend of her brother's. She had seen him on numerous occasions. After about ten minutes, defendant left the bar. Soon thereafter, at about closing time, defendant again entered the bar accompanied by an accomplice. Both were armed with shotguns and wore ski masks. Ms. Krupinski again recognized the defendant by his blue, "bulgy" eyes and voice. The defendant ordered everyone to "get against the wall." The defendant used the shotgun to shoot the bar's public telephone and ripped two other telephones off the wall. The defendant ordered Ms. Krupinski to empty the cash register of the money, which she did. Defendant took a metal box containing rolls of quarters. The lighting in the bar was sufficient to make the identification. When the police arrived Ms. Krupinski told them that the defendant was the robber.
Later that morning the defendant and his accomplice, Jerry Teal, were arrested at defendant's residence. He was read his Miranda rights and he said he had nothing to hide and directed the police officers to two shotguns in the back bedroom closet. Later the police found a ski mask and a nylon mask, shotgun shells, currency, and a metal box containing $460 in rolls of quarters. The box was identified as the one taken in the robbery. A gun residue test was later performed on the defendant resulting in an expert's opinion that the defendant had recently discharged a firearm. During the trial Police Lieutenant Thomas Anderson testified to a conversation he had with a Wentzville police officer in which the two discussed a peace disturbance summons issued to the defendant. Defendant did not testify.
A motion to suppress the identification testimony of Ms. Krupinski was denied.
Defendant's first point on appeal is that the trial court erred in denying his motion to suppress Ms. Krupinski's in-court identification of defendant because it was the result of impermissible suggestion and was not supported by a sufficient independent basis. Defendant argues that the only pre-trial identification of him by Ms. Krupinski at the preliminary hearing was suggestive in that he was brought into the courtroom in handcuffs accompanied by other jail inmates.
An eyewitness identification at trial following a pretrial identification will violate a defendant's right to due process only if the pretrial identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Simmons v. U.S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); State v. Heffner, 641 S.W.2d 803, 805 (Mo.App.1982). "Reliability, not suggestiveness, 'is the linchpin in determining the admissibility of identification testimony.' " State v. Higgins, 592 S.W.2d 151, 160 (Mo. banc 1979) quoting from Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). Such reliability must be assessed under the totality of the circumstances; the factors include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior identification; (4) the level of certainty demonstrated by the witness at the confrontation and (5) the length of time between the crime and the confrontation. State v. Higgins, supra, at 160. Where a positive courtroom identification is made upon a factual basis independent from a suggestive pretrial identification procedure, the identification testimony is admissible. State v. Phillips, 596 S.W.2d 752, 755 (Mo.App.1980). 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 an opportunity to observe the suspect during the robbery for ten to fifteen minutes, from a distance of three to five feet, that the witness had known the suspect previously, and had seen him in the bar five to ten minutes prior to the robbery. These facts make it clear Ms. Krupinski's identification had an independent basis due to her witnessing the robbery at close range and the fact she knew the robber. The immediate identification of Cooper after the robbery, and the certainty with which Ms. Krupinski confirmed the identification at trial demonstrates the reliability of the identification.
Defendant then argues that Ms. Krupinski must be exposed to a police lineup of possible suspects to establish an independent basis of identification. We disagree. The witness knew the defendant for a number of years and had already informed the police that the defendant was the robber. The state is not obligated to hold a lineup. State v. Haselhorst, 476 S.W.2d 543, 546 (Mo.1972); State v. Dickerson, 568 S.W.2d 559, 561 (Mo.App.1978). Defendant also argues that Ms. Krupinski's consumption of alcohol before the robbery, the dim lighting conditions in the bar, and specificity of description of defendant's clothing affected her reliability. These factors affect only the credibility of the witness and not the...
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State v. Cooper
...independent basis for the in-court identifications, any possible prejudice to defendant was necessarily de minimis. State v. Cooper, 691 S.W.2d 353, 356 (Mo.App.1985). Accordingly, we reject defendant's claim of error on this The judgment is affirmed. KAROHL, P.J., and SIMON, J., concur. ...
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State v. Pettit, 49957
...at the confrontation; and the length of time between the crime and the confrontation. Robinson, supra, at 427; State v. Cooper, 691 S.W.2d 353, 355-56 (Mo.App.1985). We find no manifest injustice resulted from the pre-trial identification procedures. The victim testified the intruder was in......
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State v. Laws
...is so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. State v. Cooper, 691 S.W.2d 353, 355 (Mo.App.1985), citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). "Reliability, not suggestiveness 'is the......
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State v. Bolen
...First, on the question of law a mistrial is a drastic remedy which is to be used only in cases of grievous error. State v. Cooper, 691 S.W.2d 353, 357 (Mo.App.1985). Absent a showing of clear abuse and substantial prejudice resulting to the defendant, a reviewing court will not reverse a tr......