State v. Harding

• Decision Date: 23 June 1987
• Docket Number: No. 51121,51121
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Nicky HARDING, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 871

734 S.W.2d 871

STATE of Missouri, Plaintiff-Respondent, v. Nicky HARDING, Defendant-Appellant.

No. 51121.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 23, 1987.

Motion for Rehearing and/or Transfer Denied July 30, 1987.

Application to Transfer Denied Sept. 15, 1987.

William P. Russell, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., Elizabeth A. Levin, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Judge.

Defendant appeals a conviction by jury for first degree robbery, sexual abuse in the first degree, kidnapping and armed criminal action, Sections 569.020, 566.100, 565.110 and 571.015, RSMo 1978. He was sentenced as a prior and persistent offender to a combined term of twenty-seven (27) years. We affirm.

On December 14, 1984, Opal Madden stopped at the "C & K Barbecue" at 1512 Goodfellow. As she was returning to her car defendant approached her and asked for a "jump" start for his car. When Madden refused, defendant then asked for a ride. As she stepped away and into her car, he placed his hand over the car door preventing her from closing the door. He then placed a gun in her face and forced his way into her car.

Madden was instructed to drive defendant on Highway 70 to Kingshighway. He demanded her wallet containing $18.00, her watch, papers in her purse and her ring. Defendant, angry about what he received from Madden, sexually fondled her. Finally, defendant told her to drive into an alley where he pushed her out of her car.

On December 15, 1984, Officer Timmons took a description of the perpetrator from Madden. On December 30th, Madden reviewed mug-shots and identified a 1980 photograph and a 1983 photograph of defendant. Defendant was subsequently arrested and identified in a line-up on March 9, 1985. Madden positively identified defendant at trial.

Defendant, on eight points, appeals his convictions and sentences. The claims of error are: I.--The court erred in failing to suppress victim identification because the elements of reliability are lacking; II.--The court erred in failing to order the state to furnish the name of a psychiatrist who treated the victim after the robbery and assault; III.--Defendant was denied due process and equal protection of the law because the arrest which initiated the prosecution was not based upon probable cause; IV.--The court erred in permitting the state to introduce "mug-shot" books which prejudiced the defendant by apprising the jury of defendant's prior criminal record; V.--The verdict directing instructions were not supported by the evidence; VI.--There was an insufficiency of substantial creditable evidence to support the convictions; VII.--The court refused to permit the sole black juror to inform the court that the announced verdict was not her verdict; and, VII.--The state excluded blacks from the jury, a Batson v. Kentucky challenge.

I.

Our review of defendant's challenge to the identification testimony is guided by the law on this issue as set forth in State v. Higgins, 592 S.W.2d 151, 158-160 (Mo. banc 1979). "Reliability, not suggestiveness, 'is the linchpin in determining the admissibility of identification testimony' ..." Id. at 160. Where a pretrial identification occurs the court will first consider whether that event was impermissibly suggestive, State v. Toney, 680 S.W.2d 268, 275 (Mo.App.1984), and thereafter, consider the reliability of the in-court identification. State v. Toney, 680 S.W.2d at 275. Reliability involves a consideration of the opportunity of the witness to view the actor at the time of the crime; the degree of attention exercised; the accuracy of a prior description; the level of certainty demonstrated by the witness; and, the length of time between the crime and the confrontation when identification occurs. State v. Higgins, 592 S.W.2d at 160.

In the present case, the victim had ample opportunity over a period of twenty minutes or more to view her assailant. Within two weeks of the event she identified defendant from photographs and on March 9, 1985, she identified defendant in a line-up. She had ample reason to observe the robber. Her description on the day of the events and subsequently was not incompatible with defendant. In spite of any appearance of differences in the immediate description, the photographs, and the defendant at line-up and in court, the victim was "certain" of her identifications. The passage of time between the events and identifications was relatively inconsequential. In summary, the elements for determining the reliability of identification were present and the court did not err in permitting the testimony for the consideration of the jury. Further, all of the factors were the subject of adequate cross-examination. Point denied.

II.

During pre-trial discovery defendant learned that the complaining witness had consulted a psychiatrist after the events of December 15, 1984. The trial court refused to compel the state to reveal the name of the psychiatrist. Defendant claims error on the basis that the identity of the psychiatrist may have led to exculpatory evidence and the refusal denied defendant an opportunity to adequately prepare the defense. In essence, defendant claims that consultation with the psychiatrist may have developed an effective factual basis to impeach the eye-witness.

We reject this claim of error for several reasons. First, defendant's request is not covered by Rule 25.03. The rule does not require the state, upon written request, to disclose the name of a psychiatrist chosen by the victim of a crime unless the psychiatrist is intended as a witness for the state or unless the state has in its possession or control material or information which tends to negate the guilt, mitigate the degree, or reduce the punishment. Rule 25.03(A)(1-9).

Second, the request was made without supporting fact assertions that the testimony of the psychiatrist would, as opposed to may, benefit defendant.

Third, it was held in State v. Moore, 642 S.W.2d 917, 925 (Mo.App.1982), psychiatric examinations of witnesses who testify against an accused may be denied on the rationale of confidentiality.

Fourth, the in court testimony which we have reviewed from the transcript indicates that the victim was a responsive and competent witness. Nothing in her testimony indicates any psychiatric condition which belies her competency. Defendant did not object to the testimony on competency grounds. Point denied.

III.

In his third point defendant claims that the trial court erred in denying a motion to dismiss on the ground that his arrest was without probable cause. We reject this claim of error primarily because there was no motion to dismiss on this ground presented to the trial court. The issue was raised in connection with defendant's motion to suppress identification. However, defendant failed to object to his arrest at trial or to raise this issue in his motion for new trial. Accordingly, the issue is not properly preserved for appeal and may be considered only as a matter of plain error. State v. Davis, 677 S.W.2d 370, 372 (Mo.App.1984).

In any event, the claim is without merit. The arrest was made only after a positive identification by the victim. Further, an unlawful arrest is not a recognized ground to void a subsequent conviction. Gerstein v. Pugh, 420 U.S. 103, 119, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); State v. Bannister, 680 S.W.2d 141, 144 (Mo. banc 1984), cert. denied, 471 U.S. 1009, 105 S.Ct. 1879, 85 L.Ed.2d 170 (1985).

IV.

The trial court admitted two exhibits which were police mug-shot books. Defendant claims that the books which contained hundreds of pictures which informed the jury of defendant's prior criminal record. These exhibits have not been furnished to this court. Although the exhibits were admitted, by order of the trial court, they were not shown to the jury. They were used only to support the testimony of the victim that she consulted photographs within the exhibits when she identified defendant. Any information associated with the photographs which would tend to indicate that they were photographs of individuals, including defendant, with a prior criminal record was not presented to the jury. Defendant's claim of error is not supported by fact. Further, it has been held that a trial court has broad discretion in admitting "mugshots" which do not indicate prior criminal activity of the individual depicted and upon which criminal identifying material is concealed from the jury. State v. Quinn, 693 S.W.2d 198, 200 (Mo.App.1985). It has also been held that where an identification through the use of photographs occurs they may be admitted to help the jury determine the accuracy or inaccuracy of the identification. State v. Crossman, 464 S.W.2d 36, 41 (Mo.1971). Point denied.

V-VI.

Appellant contends that the state failed to make a submissible case on the crimes charged and therefore it was error to submit the verdict directing instructions. "Our consideration of the issue of sufficiency of evidence is directed to whether the evidence, considered in a light most favorable to the state and all inferences therefrom, disregarding evidence to the contrary, is sufficient to make a submissible case (citation omitted). We review the record to ascertain whether the guilty verdict is supported by substantial evidence, (citation omitted), which is evidence the jury could find the issue in harmony therewith." State v. Ousley, 668 S.W.2d 643, 644 (Mo.App.1984). The testimony of the victim of a sexual offense is sufficient to sustain the conviction without other corroboration unless that testimony is so contradictory or in conflict with physical facts, surrounding circumstances in common experiences as to be unconvincing. State v. Cooper, 673 S.W.2d 848, 849 (Mo.App.1984). See, State v. Berry, 593 S.W.2d 254, 255 (Mo.App.1980).

In the present case, there is sufficient evidence to support a finding that appellant...