State v. Crossman

• Decision Date: 08 March 1971
• Docket Number: No. 2,No. 55141,55141,2
• Citation: 464 S.W.2d 36
• Parties: STATE of Missouri, Respondent, v. Richard Joseph CROSSMAN, Appellant
• Court: Missouri Supreme Court

Page 36

464 S.W.2d 36

STATE of Missouri, Respondent, v. Richard Joseph CROSSMAN, Appellant.

No. 55141.

Supreme Court of Missouri, Division No. 2.

March 8, 1971.

John C. Danforth, Atty. Gen., Dale L. Rollings, Asst. Atty. Gen., Jefferson City, for respondent.

Robert M. Wohler, St. Louis County Public Defender's Office, Clayton, for appellant.

FINCH, Judge.

This is an appeal from a judgment and sentence of imprisonment for fifteen years imposed by the trial judge under the Second Offender Act (§ 556.280, V.A.M.S.) after a jury had found defendant guilty of assault with intent to do great bodily harm with malice aforethought to Mrs. Kristene Harris (§ 559.180, V.A.M.S.). We affirm.

Prior to trial, defendant filed a motion to suppress any in-court identification of him by Mrs. Harris on the basis that he had been viewed by Mrs. Harris in a confrontation at the police department without benefit of counsel and under circumstances so fundamentally unfair as to violate his constitutional rights and vitiate any in-court identification by the witness. An evidentiary hearing was held outside the presence of the jury. In support of his motion, defendant testified that on the morning of August 8, 1968, he had been arrested by police officers on two traffic charges and on a charge of possible assault, after which he was taken to the Third District Police Station. He was not questioned, but without anything being said to him about a lineup and without any advice as to his constitutional rights, he and other prisoners, lined up in a hall preparatory to being transferred to the Central Station, were observed by Mrs. Harris and two detectives. One of the latter pointed him out to the woman and said, 'There goes Richard Crossman, is he the one,' and she replied, 'I think so.' The detective then said, 'Book him.' On cross-examination, the defendant, over objection, was asked about three prior convictions. This was done by the State on their claim that they had a right to attack his credibility in connection with his testimony on the motion to suppress.

The State offered on the motion the testimony of Mrs. Harris and of Sergeant Nelson, which was as follows: At about midnight on the evening of August 7, 1968, Mrs. Harris, a resident of Shrewsbury, Missouri, was walking in her neighborhood when she heard a car approaching from behind slow its speed and then someone in the car inquired if she wanted to ride. She ignored the remark and continued walking. The car kept even with her and the question was repeated. Again she ignored the question and kept walking. She then heard the car stop and someone get out and start to follow her. Mrs. Harris was between eight and nine months pregnant at that time and could not run. She continued to walk but at the intersection of Murdock and Danbury she turned and faced the person following her, telling him he had better get away as she was going to the police station. He replied that he wasn't doing anything and only wanted to ask her if she wanted to ride, but she didn't answer. Mrs. Harris had started to turn and walk on, but she then again faced the man to repeat that she was going to the police station, but in a loud, harsh voice which sounded as though he were angry, he said, 'You didn't answer me, you stupid broad,' and then grabbed her around the neck. The man had his hands around Mrs. Harris' neck with his thumbs at the front of her throat, with the result that she couldn't breathe.

There were street lights in the area and there was a street light at the intersection. Mrs. Harris was face to face with the man for perhaps two minutes and testified that she could see his face clearly.

Later, at the police station, the officers observed big red blotches and bruises on Mrs. Harris' neck, which remained sore for about a week.

After the man grabbed Mrs. Harris and began to choke her, he then began to push her back off the street and onto an adjacent lawn toward a tree where the area was dark. Finally, Mrs. Harris managed to get out a loud yell or scream. The man then released her and started back down the street toward his car. There were automobiles coming up the street by then and Mrs. Harris flagged the first one, telling the driver, Gary Zander, that a man had tried to choke her and asking him to please go back up the street and get the license number off of the car. Zander did so, after which he took Mrs. Harris to the Shrewsbury Police Station. She reported the occurrence to Sergeant Nelson and gave him the license number of her assailant's car. She also described the man as being about her height (5 8 ), thinly built, young (in his 20's), with light brown hair and a short haircut. He was cleanly shaven and not badly dressed. She had never seen him before.

The next morning, the police ascertained that the license number reported to them by Mrs. Harris and Gary Zander had been issued to the defendant. He thereafter was arrested.

On the morning of August 8, Sergeant Nelson brought some police photographs to the home of Mrs. Harris where he told her that he had photos of possible suspects which he wanted her to look at. He told her to be very careful that she was sure of identification before stating that she knew someone in the photos, but if anyone looked familiar, she should designate him. Sergeant Nelson did not tell her to pick anyone out. There were six photos which she examined. Sergeant Nelson said nothing while she was doing so. She picked out either the fourth or fifth photo in the stack as the one who had grabbed her. Thereafter, Sergeant Nelson told Mrs. Harris the man's name and mentioned something of his previous record. He also told her that the license number on the car at the scene reported by her to the police had been issued to the man whom she had picked out.

Later that morning, Sergeant Nelson called Mrs. Harris and told her that they had someone at the station he thought she should look at. He didn't mention Crossman at that time, nor was he mentioned or discussed as they drove to the police station. She testified that she was not told that Crossman was in the group she was to see, but the officer did explain to her something about lineups.

At the police station, Mrs. Harris was placed in a chair fifteen or twenty feet away from a hallway where five or six men were lined up. (The Third District Station had no show-up room.) The men in the hall were all about the same age group and all average in height. Sergeant Nelson did not tell Mrs. Harris anything about the men and she did not hear any conversation by the men in the group. As they walked along the hallway, Mrs. Harris looked at them and she picked out the last one, tapping Sergeant Nelson on the shoulder and telling him that the last one was the person who had attacked her. The officer then went out into the hallway and asked that man his name and received the reply that it was Richard Crossman. He then was booked for this assault.

After the hearing on the motion to suppress and a discussion between the court and counsel regarding the lineup cases, including United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, the court then made the following order: 'Based on the evidentiary hearing and the law which has been presented, it is the Court's finding and belief that we do not have the situation here which is set forth in the United States versus Wade and therefore the motion to suppress is overruled.'

Thereafter, during the trial, the judge further indicated that one ground or consideration for his action in overruling the motion to suppress the in-court identification was the fact that photographs had been shown to Mrs. Harris, distinguishing the case from the lineup cases on which the defendant was relying.

At the trial, the State offered about the same evidence from Mrs. Harris and Sergeant Nelson except that it offered no evidence with reference to the lineup at the Third District Police Station. The trial court had informed counsel earlier that he would not permit any testimony as to the police station lineup. In addition, Gary Zander testified that he had come along the street that night, was flagged down by Mrs. Harris, that he obtained the car license from the red, two-door sedan stopped up the street, and then took Mrs. Harris to the police station, where the incident was reported by Mrs. Harris and the car license from the car which was being driven by the assailant was reported to the police. Defendant did not testify and he offered no evidence at the trial.

While it would have been desirable for the trial court to be more specific as to his reasons for overruling the motion to suppress and to have stated, if in fact he so found, that the in-court identification of defendant had an independent basis, we conclude from the record that as a matter of fact this is what the trial court did. We also find that the trial court was justified in admitting the in-court identification by Mrs. Harris on the ground that it had a basis independent of the informal lineup confrontation. The record shows that Mrs. Harris viewed the defendant for two minutes in good light at the time of the incident, clearly observing his whole face at that time. Immediately thereafter she described the defendant to the police department and there is no claim or intimation that said description was inaccurate. When shown photos the next morning of persons of comparable size and age, she picked out the photograph of the defendant. The use of photographs under such circumstances is permissible. Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247. The trial court mentioned and relied upon the fact that Mrs. Harris, before the time of the informal lineup, had viewed photographs of several men and had picked out the defendant. He considered the lineup cases, held that Wade was distinguishable, and on that basis that the in-court identification would be permitted; but he would not allow...