State v. Gaskin, 61433

• Decision Date: 14 July 1981
• Docket Number: No. 61433,No. 2,61433,2
• Citation: 618 S.W.2d 620
• Parties: STATE of Missouri, Respondent, v. Hansford GASKIN, Appellant
• Court: Missouri Supreme Court

Page 620

618 S.W.2d 620

STATE of Missouri, Respondent, v. Hansford GASKIN, Appellant.

No. 61433.

Supreme Court of Missouri, Division No. 2.

July 14, 1981.

Rehearing Denied July 29, 1981.

Cynthia S. Holmes, Sp. Asst. to the Public Defender 22nd Judicial Circuit, St. Louis, for appellant.

John Ashcroft, Atty. Gen., S. Francis Baldwin, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Hansford Gaskin ¹ was found guilty by a jury of robbery, first degree; armed criminal action based on the use of a dangerous and deadly weapon in the commission of the robbery; and assault with intent to kill with malice aforethought. The court imposed a sentence of life imprisonment for robbery, and a sentence of three years for armed criminal action, the sentences to run consecutively. It also imposed a sentence of life imprisonment for the assault to be served consecutively with the previous two sentences.

Appellant does not challenge the sufficiency of the evidence as to any of the charges. It is sufficient to state that a jury reasonably could find from the evidence that on November 10, 1976, by use of a pistol, appellant took from Dennis Purdy a pouch containing some money and some papers, and then as Mr. Purdy attempted to leave, appellant shot him in the back of the neck with the pistol.

By his first point appellant contends the court erred in admitting "testimony concerning line-up identification * * * and in Court identification" because, as he asserts, (a) the line-up identifications were conducted without counsel, (b) were unduly suggestive, (c) were tainted by prior unduly suggestive photograph displays, and (d) the in-court identification was not based on sufficient independent recollection to overcome said undue suggestion.

On November 10, 1976, Roosevelt Manuel was in his store located at 914 Academy in the City of St. Louis, and with him were Dennis Purdy, the victim of the robbery and assault; Joseph Purdy, his father; and Silas Hardiman, a police officer not in uniform. A person, subsequently identified as appellant, entered the store, spoke to Dennis Purdy, and the two left the store. A few minutes later, Dennis Purdy re-entered the store, fell to the floor, and stated that he had been shot. Officer Hardiman ran from the store and searched the neighborhood for the assailant, but did not find him. At trial he identified appellant, without objection, as the person who entered the store, spoke to Dennis Purdy, and then left with him. About a year after the assault and robbery two police officers arrested Roosevelt Manuel for an assault which was unrelated to the incident on November 10, 1976. While Manuel was at the police station he identified a photograph of appellant. According to Manuel he was casually looking at some photographs on the wall, and Officer Nash asked him if he recognized anyone in those photographs. Manuel referred to the photograph of appellant and said, "(t)hat's the person that came in and got Dennis Purdy the night he got shot." Officer Nash testified he had been conducting an investigation as to the whereabouts of appellant who was wanted for murder and for flourishing a deadly weapon, but that at that time he had no knowledge of the shooting incident at Manuel's store. Officer Nash stated that when he noticed that Manuel was looking at photographs on the wall, he pointed to the photograph of appellant and asked him if he had "seen this guy in the neighborhood?" Manuel replied, "(t)hat's the guy that shot Dennis Purdy * * *." On the following day Officer Nash and another officer went to the home of Dennis Purdy and showed him four photographs. He "tentatively" identified the photograph of appellant, and he stated that the photograph showed a long, heavy scar but he was not certain that the person who robbed him had such a scar because the robber wore a knit cap which covered part of his head. About two weeks later appellant was placed in a lineup and Dennis Purdy identified appellant in that lineup as the person who robbed him. Appellant was later placed in another lineup and Roosevelt Manuel identified appellant. At trial Dennis Purdy testified that appellant was the person who robbed him and Roosevelt Manuel testified that appellant was the person who came into his store and then left with Dennis Purdy.

At the time appellant was placed in a lineup he had not been charged by indictment or information with any of the offenses for which he was tried. The exclusionary rule mandated by United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) applies only to post indictment-information lineups and not to lineups conducted prior to the commencement of formal criminal prosecution. Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); State v. Quinn, 594 S.W.2d 599 (Mo. banc 1979). There is no merit to appellant's contention that the lineup identification was improper because appellant did not have counsel present.

Appellant's next contention, that the lineups were "unduly suggestive," is equally without merit. The trial court found the lineups not to have been unduly suggestive, and on review we are limited to a determination of whether the evidence was sufficient to sustain the trial court's finding. State v. Duncan, 540 S.W.2d 130 (Mo.App.1976); State v. Tippett, 588 S.W.2d 742 (Mo.App.1979). A photograph of each lineup was introduced in evidence, but neither exhibit has been lodged with this Court. Appellant makes no effort to demonstrate why the lineups are claimed to have been suggestive. The record shows that at no time did the police officers indicate to Manuel or to Dennis Purdy who should be identified in the lineup. There is nothing in the record to indicate that by reason of the composition of the lineups or because of the manner in which they were conducted either lineup was suggestive.

Next, appellant asserts that the lineups were "tainted" by "prior unduly suggestive photograph displays." This is not borne out by the record. At most the record shows, as Manuel testified, that he saw a photograph of appellant on the wall with photographs of other persons and he identified that person as the one who came into his store, or as Officer Nash testified, that when asked if he had seen appellant in the neighborhood, Manuel volunteered the information that he was the one who "shot Dennis Purdy." Four photographs were shown to Dennis Purdy, and he identified one as being a photograph of the person who had shot him. The four photographs were introduced in evidence and the trial court viewed them, but they have not been filed in this Court. We find nothing in the record to indicate that there was anything suggestive in the use of these photographs.

The final contention is that the in-court identifications were not based on "sufficient independent recollection to overcome said undue suggestion." First, we find no "undue suggestion" or improper identification procedure. Dennis Purdy had a face-to-face encounter with appellant and talked to him. He certainly had an adequate opportunity to form an impression of his features. Mr. Manuel saw him enter his store, talk to Dennis Purdy and leave. He also testified that he had seen him frequently in the neighborhood. This contention is totally without merit.

Appellant's second point is that the trial court erred in admitting into evidence the leather coat, which was worn by Dennis Purdy when he was shot and which contained a bullet hole in the collar, because it was "not disclosed" as required by Rule 25.03(A)(6) and thus constituted "unfair surprise."

Rule 25.03(A) provides that "(e)xcept as otherwise provided in these Rules as to protective orders, the state shall, upon written request of defendant's counsel, disclose to defendant's counsel such part or all of the following material and information within its possession or control designated in said request: * * * (6) Any * * * objects, which the state intends to introduce into evidence at the * * * trial * * *."

At the time the coat was offered in evidence appellant's counsel objected because it had "never been disclosed to the defendant as a part of his request for discovery," and he then asked "that it be excluded on that basis." The transcript before us does not contain a written request for disclosure. Therefore, we cannot determine whether the request made, and apparently some form of request was made, included such objects as the coat. Appellant argued in support of his objection that if he had known about the coat he would have wanted "an opportunity to look at the coat, examine it," but after the coat was offered in evidence no request for such an opportunity was made to the trial court.

We cannot say with certainty that the failure to disclose the intent to introduce the coat in evidence was a violation of the discovery rules, but assuming that it was, the decisive question is whether the failure to disclose resulted in fundamental unfairness or prejudice to appellant. State v. Moten, 542 S.W.2d 317, 320 (Mo.App.1976); State v. Smothers, 605 S.W.2d 128 (Mo. banc 1980). When non-compliance with an applicable discovery rule is called to the attention of the court, the trial court is given the discretion to "order * * * disclosure * * *, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances." Rule 25.16. The only claim of harm made to the trial court resulting from the nondisclosure was that appellant would want to look at and examine the coat, but as noted, he made no request for time to do so. Instead, he limited his request that the coat be excluded from evidence. Under these circumstances we cannot say that the failure to disclose the intention to introduce the coat in evidence resulted in fundamental unfairness or prejudice to appellant, or that the trial court abused its...