State v. DeLuca, 54657

• Decision Date: 12 January 1970
• Docket Number: No. 1,No. 54657,54657,1
• Citation: 448 S.W.2d 869
• Parties: STATE of Missouri, Respondent, v. James Cornelius DeLUCA, Appellant
• Court: Missouri Supreme Court

Page 869

448 S.W.2d 869

STATE of Missouri, Respondent, v. James Cornelius DeLUCA, Appellant.

No. 54657.

Supreme Court of Missouri, Division No. 1.

Jan. 12, 1970.

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

Lakenan Barnes, Barnes & Barnes, Mexico, for appellant.

HIGGINS, Commissioner.

James Cornelius DeLuca, with a prior felony conviction, was charged with robbery, first degree. A jury convicted him of the charge and the court fixed his punishment at 18-years' imprisonment. Sections 556.280, 560.120, and 560.135, V.A.M.S.

On February 21, 1968, at about 5:20 or 5:25 p.m., a lone man wearing a topcoat entered the Universal C.I.T. Finance Company office in Mexico (Audrain County), Missouri. The man had his hands in his pockets and the right-hand pocket was pushed or protruded forward as though it contained a gun. James Ralph Hayden, office manager, and Donald F. Chapman, his assistant, were closing the office for the day. The intruder ordered the two employees to show where the business cash was kept and then ordered them to accompany him to that place in the rear of the office. He took the money, some $950 in currency, and put it in his left-hand coat pocket, after which he ordered the employees into a storeroom and directed them to remain quiet for five minutes or he would kill them. When the robber left, the employees waited about three minutes, then called and gave Mexico police a description of the robber. Appellant was subsequently arrested and was identified at trial, February 24, 1969, by the two employees as the man who robbed them by placing them in fear of injury to their persons on February 21, 1968. These circumstances are sufficient to support the charge and the jury's verdict. State v. Pollard, Mo., 425 S.W.2d 106, 107(1); State v. Keeney, Mo., 425 S.W.2d 85, 87--89(1, 2).

The dispositive question on this appeal is whether the court erred in permitting incourt identification of appellant by the victims of the robbery, Mr. Hayden and Mr. Chapman. Appellant contends the in-court identifications were error because they resulted from a lineup which violated his constitutional rights to have counsel at the lineup as declared in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Since the lineup postdated these cases, respondent concedes their application to appellant's lineup but contends that lack of counsel at a lineup under those cases does not require reversal if later in-court identifications had a source independent of the lineup confrontation.

United States v. Wade, supra, 388 U.S. l.c. 240--241, 87 S.Ct. l.c. 1939, recognized that when a lineup has been conducted without counsel, the government should have an 'opportunity to establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification'; and that in resolving the issue these factors should be considered: '* * * prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the lineup, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and the lineup identification. It is also relevant to consider those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup.'

United States v. Wade, supra, reviewed a district court conviction and vacated the conviction pending hearing in district court to determine whether the in-court identifications resulted from the lineup or whether they had an independent source, and whether, in any event, admission of the evidence of identification was harmless error. This procedure was adopted because, on the record before it, the supreme court could not 'make the determination whether the in-court identifications had an independent origin. This was not an issue at trial, although there is some evidence relevant to a determination.' 388 U.S. l.c. 242, 87 S.Ct. l.c. 1940.

It is not necessary to remand this case for hearing required by United States v. Wade, supra, because such hearing was accorded, the trial court ruled in favor of admitting the in-court identifications, and the evidence has been preserved. Under those circumstances, the evidence is reviewed to determine whether it shows in-court identifications stemming from independent source, or whether it resulted from a lineup tainted by absence of counsel. State v. Mentor, Mo., 433 S.W.2d 816, 818.

On February 17, 1969, defendant filed motion to suppress 'any and all testimony of James R. Hayden, Don F. Chapman and Russell Wilkes as to any identification of the defendant * * *' on the ground he was compelled to appear in a lineup without assistance of counsel. Pretrial hearing on this motion was held February 18, 1969, where it appeared that defendant did not have assistance of counsel at his lineup, but the court overruled the motion because 'the issue (of in-court identification) will not arise until such time as an 'in court' identification is attempted to be made.'

After opening statement by the state at trial February 24, 1969, defendant moved for hearing outside the presence of the jury to determine whether any courtroom identification was the result of illegal line-up. Evidence was again taken and the court subsequently permitted James Ralph Hayden and Donald F. Chapman to make in-court identifications of defendant as their robber based on sources independent of the lineup.

The evidence at these hearings showed that a lineup in which defendant was present with four or five others was conducted March 27, 1968, in Columbia, Missouri, at the request of the Sheriff of Audrain County. Defendant did not have counsel. All the men in the lineup were dressed alike and were of approximately the same age, and no suggestion of the suspect was made. Neither Mr. hayden nor Mr. Chapman had any difficulty identifying the defendant as their robber. Typical of the testimony given by both Mr. Hayden and Mr. Chapman are these excerpts from their testimony.

James Ralph Hayden, manager of the Universal C.I.T. Credit Corporation office testified:

'Q I want to ask you, Mr. Hayden, what description did you give to the police authorities as to the appearance of the person who robbed you? A I described a man who was approximately 5, 7, weighing approximately 160 to 165 pounds, had on a dark topcoat, a dark business man's hat, wearing sunglasses, said that he was, appeared to be possibly of Italian descent. I think I gave his age,...