State v. Enna

• Decision Date: 10 January 1984
• Docket Number: No. WD,WD
• Citation: 664 S.W.2d 32
• Parties: STATE of Missouri, Respondent, v. Joseph D. ENNA, Appellant. 34330.
• Court: Missouri Court of Appeals

Page 32

664 S.W.2d 32

STATE of Missouri, Respondent, v. Joseph D. ENNA, Appellant.

No. WD 34330.

Missouri Court of Appeals Western District.

Jan. 10, 1984.

James L. Lyons, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Dan J. Crawford, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P.J., SHANGLER, J., and TURNAGE, C.J.

PRITCHARD, Presiding Judge.

By the verdict of a jury, appellant was convicted of committing the crime of burglary in the first degree, § 569.160 (L.1977, S.B. No. 60, p. 662, § 1, eff. Jan. 1, 1979), and punishment was set by it at five years imprisonment. Upon evidence that appellant had two prior felony convictions, the court found him to be a persistent offender and enhanced his punishment to ten years imprisonment in the Division of Corrections.

Appellant's first point is that the trial court erred in denying his motion to suppress the pre-trial and in-court identification of him because the pre-trial identification was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

On the pre-trial motion to suppress identification evidence, the victim, Katherine Spurney, was called as a witness. She testified that sometime after the burglary took place, over the weekend after June 26, 1981, she viewed some photographs brought to her by detective Shanks. She pointed out a photograph of appellant as being one of several showed to her. The detective had called her and asked if she could identify a person who had been in her house, to which she answered "Yes", and that she was positive. The detective arrived later and put the pictures on the kitchen table. He handed them to her and she spread them out on the table. "Q. But my question, more specifically, is did he indicate to you that he had a suspect in this particular group of photos that he wanted you to view? A. I can't remember his exact words but he apparently thought he had a suspect. I don't know that he told me he had a suspect, no. He asked me if I could identify the boy that was in my house from photographs, and I said yes; which I did." She picked out the individual who was in her house in about 5 to 10 seconds, and had no doubt about it. The officer told her who all of the boys were after she made his identification. On cross-examination, Mrs. Spurney testified that there was a great deal of similarity in the photographs. Detective Shanks never told her that the person who was in her house was in the set of photographs. Her identification was based upon having seen the boy before.

At trial, Mrs. Spurney testified that she was at home at 6400 Cherry on June 26, 1981, and caught a boy in her kitchen. Before that she had performed various chores and had gone to the basement to get her sheets. She put them in a dryer, and came up the stairway, finding the door locked at its top. She went out another door into the garage, then through a hallway to the kitchen where she encountered an intruder at the end of a counter. She asked him what he wanted. He did not answer but continued toward her. She then grabbed him by his shirt. There were large windows in the kitchen and it was very light from the sun. She got a good look at him as she held him, being about three inches from his face. The intruder pulled loose from her grasp, disappeared around a corner and went out the door, at which time Mrs. Spurney saw that he had a clear plastic glove on his hand, he being then about five or six feet away. She pointed out appellant in court as being the person in her house, and there was no objection to that testimony.

After appellant left the kitchen, Mrs. Spurney called the police and while they were there she found the drawers of a buffet were open, and a silver chest on the floor with a case knife on top of it. The desk had been gone through and boxes in the dressing room had been opened. She found a screen off in the garage, but the window there was still locked. After the police left, Mrs. Spurney went outside and found a red motorcycle helmet underneath the bushes, and a Yamaha 125 motorcycle with a still warm engine in the back yard. These items were not connected to appellant.

At trial, Mrs. Spurney again identified appellant from the group of photographs shown to her. She testified that she gave a description of the intruder to the police officer: "A. I told him that he was a late teen-ager, and he was well-built and he was blond and light-eyed. And pretty well-developed, I mean could have been a swimmer." He was not much taller than she. After Mrs. Spurney picked out the photograph, the officer told her it was of a Joseph Enna.

Detective Timothy Shanks contacted the victim on June 29th, after he had read the report. He interviewed her and showed her some photographs, State's Exhibits No. 2 through 7. He asked her if she thought she could identify the burglar, and then she made a selection.

Since there was no objection to the in-court identification of appellant, his contention that it was based upon impermissible suggestiveness will be considered under the plain error Rule 29.12(b). The impermissiveness is argued by appellant to be based upon the photographic procedures used by Detective Shanks. He attaches significance to Mrs. Spurney's pre-trial testimony that the detective "apparently thought he had a suspect. I don't know that he told me that he had a suspect, no." There is no positive evidence that the detective ever told her that he had a suspect, and certainly none that any person whose photograph was in the seven exhibited was a suspect. All that appears is that detective Shanks called Mrs. Spurney beforehand and asked her if she could identify a person who had been in her house, and she was then positive that she could. On arrival, the detective handed her the photographs, she spread them out on the table, and within 5 to 10 seconds, picked out the boy who was in her house. That identification was based upon her having seen the boy before.

The facts here do not even rise to those in the lineup case of State v. Neely, 637 S.W.2d 181, 182 (Mo.App.1982), where a Detective Dodson called two witnesses to a robbery, stating that he " 'wanted them to come down and look at a lineup, that the suspect fit the description of the person who committed the robbery.' " The court held in the Neely case that the statements of Dodson were neither inaccurate or unduly suggestive. See also State v. Armbruster, 541 S.W.2d 357, 361 (Mo.App.1976), and cases cited, where the officer told the victim " 'that from the description I gave him of the robber Kelley thought he might be the one they had in custody and Kelley asked me if I would identify him' ", held not to be unduly suggestive so as to taint the in-court identification testimony.

Appellant next contends that the showing of six photographs to Mrs. Spurney, five of which he says bore little resemblance to her previous description of him, served to cause him to stand out as the person detective Shanks suspected, or believed, had committed the crime. There is no evidence that Shanks believed or suspected appellant to be the culprit. The record does not show that the photographs were not identical, but Mrs. Spurney further testified that they had a great deal of similarity. The photographs have been deposited in this court, and they have similarities of hair on two of them to appellant's. Those two persons, however, had mustaches. One photograph showed a person with curly hair. Two others showed the hair to be darker. In State v. Pennington, 618 S.W.2d 614, 620[14-16] (Mo.1981), it was said, "It is...