State v. Goff
| Decision Date | 02 December 1974 |
| Docket Number | No. KCD,KCD |
| Citation | 516 S.W.2d 818 |
| Parties | STATE of Missouri, Respondent, v. Kenneth E. GOFF, Appellant. 26751. |
| Court | Missouri Court of Appeals |
Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, Dougler N. Merritt, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst., Atty. Gen., St. Louis, for respondent.
Before DIXON, C.J., and SHANGLER and WASSERSTROM, JJ.
Kenneth E. Goff was convicted by a jury of second degree burglary and stealing. The jury being unable to agree on a sentence, the court sentenced the defendant to two consecutive four-year terms. The defendant appeals, urging error in the trial court's overruling a motion to suppress identification testimony alleged to be suggestive by reason of the demonstration of photographs, error in overruling the judgment for acquittal because the evidence was insufficient, and error in the State's argument. We affirm.
On the afternoon of August 6, 1972, Marina Kauffman (age 15), was in her front yard across the street from the Reagon home. She saw the same 1961 or 1962 light blue Ford Galaxie drive slowly by her home five to six times. She took special note of the car because 1) it was traveling very slowly (less than five miles per hour), 2) it was old and noisy, and 3) one of her friends had a similar vehicle. The Ford's visibility and repetitive passage was enhanced by the very light traffic (fewer than twenty cars) on the street during the period. In addition to being loud and light blue, she described the old Ford as having: a great deal of rust on the front fender; a white license plate; and an 'infant seat' in the back seat. The car had four occupants, a man and a woman in the front seat and two small children in the back seat. The younger of the children was sitting in the 'infant seat.' At trial, Miss Kauffman described the 'male' who was driving as having brown or black hair and a beard. During several of the passes, Marina noted the man was wearing a small brown straw hat. When he was not wearing the hat, it was seen on the dashboard of the car.
That evening between 10:00 and 10:30, Miss Kauffman was standing in her driveway talking with some children when she saw a man she recognized as the driver of the car in John Reagon's yard directly across the street. He was not wearing the hat.
At about the same time, another of Reagon's neighbors, Michael Gerant, saw an unidentified individual running from the back of the victim's lot. Apparently he was carrying something. Gerant watched the person make at least three similar trips over 'quite some time.' On one of these trips, the man was carrying something that looked like a television set. Gerant then asked a third neighbor to call the police. While watching the person carrying 'items' to the ditch, Gerant saw a light blue 1961 Ford four-door sedan park near the ditch. Two men then began to load items into the car. Mr. Gerant then drove his own car along the road past the parked Ford, proceeded to a store nearby, turned around and drove past the car again. As he drove by, he noticed that the license plate had a Johnson County, Kansas, designation. He noted the full license number which he had a neighbor write down immediately and which the neighbor later gave the police. The Ford then drove away.
Within minutes, the police arrived. Their investigation, both at that time and after Mr. Reagon's return, revealed that: 1) Reagon's home had been burglarized, 2) someone had apparently left a small brown straw hat in the Reagon garage; 3) the license number given them by Gerant was that of a plate registered to the grandmother of defendant's wife; 4) the defendant and his wife were in possession of the car and license plate for a period of two weeks prior to the burglary; and 5) the defendant had purchased the car sometime near the night of the burglary. During the investigation, Miss Kauffman told the police that she could identify the man she saw driving the car and in Reagon's front yard. After telling them she could recognize the man, the police, over a period of several days, showed her small groups of photographs. On the third such showing, she examined two photographs. One was the photo of a man whom she identified as the driver of the car and the other was of a woman whom she recognized to be the adult passenger. During her testimony at the hearing on the motion to suppress, Marina indicated that the police officer displaying the pictures to her made no comment beyond asking if 'these were the people I had seen.'
On the first ground urged, error in overruling the motion to suppress the witness Kauffman's identifying testimony, the parties are in agreement with respect to the applicable law. Defendant concedes that State v. Mentor, 433 S.W.2d 816 (Mo.1968) and State v. Parker, 458 S.W.2d 241 (Mo.1970) are the controlling authority in Missouri, citing Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The defendant points to language in that opinion relating to the dangers of misidentification through the use of photographs. The holding of Simmons, following United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and the companion case, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), is that a determination of the tainting of a witness' testimony so that it must be excluded requires a consideration of all of the facts giving due regard to the totality of the surrounding circumstances. Parker identifies three factors for consideration in such a review: (1) the presence of an independent basis of identification; (2) a positive courtroom identification; and (3) the absence of any suggestive influence by others. The defendant argues only the issue of suggestion, pitching that argument on the alleged suggestibility of the teenage witness and the suggestive manner of photographic identification because only a single photograph was displayed at the time of the actual photographic identification of the defendant by the teenage witness. Some attempt is also made to argue that the teenage witness, Kauffman, did not have an independent basis of identification because she did not notice the license number of the vehicle and because, as defendant argues, the man she saw in the car had his head turned away from her.
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