State v. Davis

• Decision Date: 09 September 1975
• Docket Number: No. 35493,35493
• Citation: 529 S.W.2d 10
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Gregory DAVIS, Defendant-Appellant. . Louis District, Division Three
• Court: Missouri Court of Appeals

Page 10

529 S.W.2d 10

79 A.L.R.3d 1

STATE of Missouri, Plaintiff-Respondent, v. Gregory DAVIS, Defendant-Appellant.

No. 35493.

Missouri Court of Appeals, St. Louis District, Division Three.

Sept. 9, 1975.

Motion for Rehearing or Transfer Denied Oct. 22, 1975.

Rau & Martin, James M. Martin, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

McMILLIAN, Judge.

Defendant appeals from a jury verdict finding him guilty of robbery first degree by means of a dangerous and deadly weapon. On appeal the defendant raises four (4) principal contentions for our consideration: (1) That the trial court erred in refusing to suppress lineup and subsequent in-court identification said to be the product of impermissibly suggestive procedures; (2) That post-trial examination of the foreman of the jury revealed an improper consideration of the defendant's failure to testify in violation of the defendant's right against self-incrimination; (3) That the trial court erred in giving an instruction connecting reasonable doubt with substantial doubt thereby shifting the burden of proof to the defendant; and (4) That the defendant was entitled to a judgment of acquittal because he has demonstrated the use of peremptory challenges by the State for the systematic exclusion of blacks from jury service.

The defendant does not challenge the sufficiency of the evidence; therefore, we will simply summarily highlight the facts relevant to defendant's contentions.

On January 18, 1970, a Velet Freeze store in St. Louis County was robbed. The two employees of the store, Davis and Ebert, viewed the robber at the time of the incident and Ms. Davis recognized the robber as a previous customer of the store. On the night of the robbery, Ms. Davis gave a fairly inexplicit description of the man to the police.

Approximately two years later, the defendant was arrested and placed in a lineup with two other men. It appears that there was some disparity in the heights of the participants and that one of the participants was a uniformed member of the police custodial staff. At the lineup, Ms. Davis identified defendant as the perpetrator of the robbery. At the trial one year later, the defendant was identified by both employees of the store. The defense attempted to impeach the identifying testimony of Ms. Davis by establishing that she could not clearly establish the duration of the robbery nor recall certain other facts. On cross-examination, Ebert admitted that he had discussed the matter of identification with Ms. Davis in the hall of the courthouse but insisted that his in-court identification of the defendant was based on observations on the night of the robbery.

At the conclusion of the trial, the judge gave one instruction connecting reasonable doubt with substantial doubt. The nature of the instruction is further explored subsequently.

Following the trial, the defendant entered a motion for judgment of acquittal charging use by St. Louis County prosecutors of peremptory challenges to systematically exclude blacks from jury service. The motion, buttressed by a statistical memorandum, was denied.

Following the proceedings, the defense attorney apparently spoke with the foreman of the jury who revealed some discussion in jury chambers regarding the failure of the defendant to take the stand. Over the objectin of the State's attorney, the foreman of the jury was examined. Defendant's motion for a new trial on this point was overruled.

Defendant's general contention concerning the suppression of identification testimony is multi-pronged. The lineup identification is characterized as the product of suggestive procedures. The in-court identification of the defendant is challenged as equivocal and as derivative from the allegedly suggestive lineup. In assessing the general contention, we must keep in mind that what we are guarding against is the 'substantial likelihood of irreparable misidentification,' Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and that the admissibility of identification testimony is determined in light of the totality of the circumstances, State v. Parker, 458 S.W.2d 241, 243 (Mo.1970) and State v. Cole, 519 S.W.2d 370, 372 (Mo.App.1975). As an aid in the application of this totality of the circumstances approach, Missouri courts have suggested a three-part test requiring that:

'. . . consideration be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive courtroom identification. . . .' (State v. Parker, 458 S.W.2d 241, 244)

This three-part test has been reaffirmed by subsequent Missouri court, State v. Boothe, 485 S.W.2d 11, 13 (Mo.Banc 1972); State v. Tidwell, 500 S.W.2d 329, 331 (Mo.App.1973); State v. Murphy, 508 S.W.2d 269, 274 (Mo.App.1974) and State v. Goff, 516 S.W.2d 818 (Mo.App.1974). Several more specific considerations are encapsulized in the three-part test.

The first of these more specific considerations requires attention to the mechanics of the lineup. This examination fits most neatly under the second listed factor of the Parker test. In the present case there is no claim of police prompting witnesses or other police misconduct. The defendant isolates as suggestive factors a disparity in the height of the participants and the clothing of one of the participants. In evaluating this contention of the defendant, we must keep in mind that '. . . (p)ersons in a lineup cannot be identical, and to say that one was 'darker' or taller than another does not establish unfairness. . . .' Gaitan v. State, 464 S.W.2d 33, 35 (Mo.1971). Noticeable differences in the appearance and clothing of the participants in lineups have repeatedly been held not to necessitate a finding of suggestiveness, State v. Britt, 504 S.W.2d 38, 41 (Mo.1973); State v. Lee, 491 S.W.2d 317 (Mo.Banc 1973); State v. Cole, supra, at 373 and State v. Tidwell, supra, at 332. The suggestiveness of a lineup should be measured by a subjective test in terms of its effect on the identifying witness.

The importance of this observation is highlighted in the present case by recognition that the defendant has failed to suggest any prejudice resulting from the disparity in height. The identifying witness was only about 5 4 tall and admitted during cross-examination by defense counsel that she was not a very good judge of height. To the witness, the participants in the lineup were 'all tall men. All about the same height.' The disparity in heights can hardly be labelled as a prejudicially suggestive factor when it was not even noticed by the identifying witness. The different clothing of one of the participants in the lineup also does not seem to be a prejudicially suggestive factor. Defendant's complaint here is not that he appeared in the lineup in distinctive clothing as did the defendant in State v. Everly, 430 S.W.2d 156 (Mo.1968), but rather that another participant was a '. . . uniformed member of the police custodial staff. . . .' Upon viewing the photograph of the lineup, we fail to see anything distinctive about the clothing of this participant. He is pictured wearing blue jeans and a dark lightweight jacket without any visible insignia. Once again defendant has failed to demonstrate any plausible suggestive effect on the identifying witness. Our conclusion is that the lineup was not suggestive.

Even if the lineup were suggestive, parts 1 and 3 of the Parker three-part test would indicate another approach under which identification testimony may be admissible. This alternative approach requires a judicial examination of the existence of an independent source for the identification, State v. Payne, 452 S.W.2d 805, 810 (Mo.1970). The presence of an independent source will serve 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 including:

'. . . the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.' (Neil v. Biggers, supra 409 U.S. at p. 199, 93 S.Ct. at p. 382)

Neil v. Biggers, supra, dealt specifically with an independent source for a pre-trial identification but a similar analysis should be applicable to the assessment of an independent source for an in-court identification. Applying this test to the present case reveals an independent source. The witness viewed the defendant at close range for some minutes, State v. Goshon, supra. Ms. Davis recognized the defendant as a previous customer of the store, State v. Johnson, 457 S.W.2d 762 (Mo.1970). The description given to the police was not specific but also was not inaccurate. There was no showing of any hesitancy in the identification at the time of the lineup. The transcript of the trial reveals a similar certainty in the witness' in-court identification. The final listed factor, the length of time between the crime and the identification initially, appears significant in the present case. Two years passed between the crime and the lineup--three between the crime and the trial.

In the Neil case, a seven (7) month lapse of time was suggested as a 'seriously negative factor in most cases.' The lapse of time was, however, held not to be fatal to the identification because of the decisiveness of the other factors. A similar analysis negates any effect of the delay involved in the present case. The conclusion is that the trial court did not err in finding that the in-court...