State v. Davis
| Decision Date | 05 March 1974 |
| Docket Number | No. 35042,35042 |
| Citation | 507 S.W.2d 32 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Earl DAVIS, Defendant-Appellant. . Louis District |
| Court | Missouri Court of Appeals |
James C. Jones, Asst. Public Defender, Frederick R. Buckles, St. Louis, for defendant-appellant.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for plaintiff-respondent.
This is an appeal by defendant from a judgment of conviction entered by the Circuit Court of the City of St. Louis on a jury verdict that found him guilty of robbery in the first degree by means of a dangerous and deadly weapon. §§ 560.120 and 560.135, RSMo 1969, V.A.M.S. After conviction pursuant to § 556.280(1), RSMo 1969, V.A.M.S., the trial court sentenced defendant to serve ten years in the custody of the Department of Corrections.
Defendant's sole issue on this appeal is that the trial court committed error by overruling his motion to supppress the victim's in-court identification of him. His contention is that the only basis for the victim's in-court identification was a tainted and suggestive pre-trial confrontation at the scene of the crime, and that the victim did not have an independent source for the identification based on his memory of defendant committing the offense. We disagree and therefore affirm.
Since defendant does not question the sufficiency of the evidence, the statement of facts will be brief. On March 24, 1972, Robert Harden, and insurance collector, was robbed of approximately $138 while making his rounds. As he was unlocking the door to his automobile, defendant accosted him from the rear with a gun in his hand, telling him to lie face-down across the car seat, or he would blow his head off. While holding the gun to Harden's head, defendant took the money from Harden's billfold. Harden identified defendant at the scene approximately 20--25 minutes after the robbery, when police brought defendant back to the scene of the crime. Forty-five minutes later, at the police station, Mr. Harden identified defendant again, where defendant told him, Mrs. Realma Baker, who had known defendant for at least five years from the neighborhood, witnessed the robbery and identified him at trial. She testified that she saw defendant pointing a gun at Mr. Harden in the car, and after she saw him run from the Harden automobile she telephoned the police. She also directed the police to defendant's home, and at no time after the incident and prior to positive identification of defendant by Harden did she communicate with him.
On the motion to suppress, Mr. Harden testified that when the police came, about five minutes after the robbery, he described the robber as a person about eighteen to twenty years old, wearing a black leather coat and a large brim hat; that twenty-five minutes after the robbery, three men were brought back separately by the police to the scene of the robbery for him to view. The third man, who wore white trousers and a white T-shirt, he identified as the robber. When the police brought defendant to the scene, an officer said, '. . . 'This is Earl Davis; is this the man? " Harden said that was the first time he had heard the name 'Earl Davis.' No name was given for the other two suspects. Because of the large crowd gathering at the scene, Mr. Harden said he was reluctant to state at the scene that defendant was the robber; therefore, he waited until he was at the police station. Mr. Harden identified defendant '(f)rom his appearance; his facial appearance.' The evidence showed that Mr. Harden had two brief opportunities to view the robber (1) when the robber approached him from behind, and (2) when defendant ordered him to slid over into the car.
On the basis of the above testimony the court found that Harden had an opportunity to view the robber twice during the commission of the crime, and the two views constituted an independent source of identification. Also the trial court found that since Harden had never heard defendant's name before, the officer's mention of his name was of no significance.
Defendant argues that the mere mention of "This is Earl Davis; is this the man?" by the police constituted a suggestive confrontation, since no mention was made of the names of the other two suspects. He also objects to the lack of counsel at the confrontation. In other words, defendant contends that under the totality of the circumstances, the identification proceedings were so unnecessarily suggestive and conducive to an irreparable mistaken identification that he was denied due process. The only Missouri case cited by defendant is State v. Carey, 486 S.W.2d 443 (Mo.1973), which tends to support the State's position. In Carey, the victim of a burglary saw the burglar for only ten seconds during the commission of the crime. The victim identified a photograph of defendant out of a group of pictures shown to him. This was followed by a lineup, at which he identified the defendant. He testified that impressions gathered from viewing the photographs played a part in the lineup identification, although he did state that his ability to identify defendant in the lineup was not affected by the prior use of photographs. The court held that the rule requiring exclusion of courtroom identification applied only if it is tainted by pretrial confrontation and there is no independent source for the witnesses' identification. It...
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State v. Davis
...to remove any taint that might result from a suggestive confrontation, State v. Goshon, 506 S.W.2d 99 (Mo.App.1974) and State v. Davis, 507 S.W.2d 32, 35 (Mo.App.1974). Isolation of an independent source requires consideration of numerous factors '. . . the opportunity of the witness to vie......
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State v. McDonald
...of the store, provided more than sufficient independent basis to support the admission of her in-court identification. State v. Davis, 507 S.W.2d 32, 34(1) (Mo.App.1974). State v. Ross, 502 S.W.2d 241, 245(1) Since there was no error in admitting the identification testimony at trial, appel......
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State v. Hornbuckle
...suggestive when, of the various suspects presented to the witness, the defendant alone was identified by name. State v. Davis, 507 S.W.2d 32, 34 (Mo.App.1974). Finally, and most closely on point, a photographic lineup was not considered unduly suggestive even though the defendant's name, he......
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State v. Little, 39359
...(Mo.App.1977); State v. McDonald, 527 S.W.2d 46, 47 (Mo.App.1975); State v. Green, 515 S.W.2d 197, 198 (Mo.App.1974); State v. Davis, 507 S.W.2d 32, 34 (Mo.App.1974). We find that the questioned in-court identification had a basis independent of the questioned We can not accept defendant's ......