State v. Harris, No. 67569

CourtUnited States State Supreme Court of Missouri
Writing for the CourtRENDLEN; HIGGINS, C.J., BILLINGS, BLACKMAR and DONNELLY, JJ., and LOWENSTEIN; WELLIVER; ROBERTSON; WELLIVER
Citation711 S.W.2d 881
PartiesSTATE of Missouri, Respondent, v. Larry Cornell HARRIS, Appellant.
Docket NumberNo. 67569
Decision Date17 June 1986

Page 881

711 S.W.2d 881
STATE of Missouri, Respondent,
v.
Larry Cornell HARRIS, Appellant.
No. 67569.
Supreme Court of Missouri,
En Banc.
June 17, 1986.

Page 882

Holly Simons, Debra A. Buie, Office of the Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., Victorine R. Mahon, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Judge.

Larry Cornell Harris, convicted of attempted robbery in the first degree, § 564.011, RSMo 1978, was sentenced to a five-year term of imprisonment. The cause was ordered transferred, following affirmance in the Court of Appeals, that we might examine the rule of admissibility as to testimony of a secondary witness introduced for corroboration of an identifying witness's unimpeached testimony concerning extrajudicial identification of the accused, enunciated in State v. Degraffenreid, 477 S.W.2d 57 (Mo. banc 1972).

No challenge is made to the sufficiency of the evidence, which strongly supports the guilty verdict, hence a brief recital of facts relevant to the central issue will suffice.

On the evening of March 1, 1984, appellant approached a woman on the parking lot of a fast food restaurant in the City of St. Louis, stating: "Lady this is a stickup." Displaying a gun in his waistband, appellant searched and handled the victim for "five to seven minutes." During that time he fondled her breasts and went through her dress and sweater pockets. Finding nothing except a penny, he kissed the victim on the back of the neck, stating: "Okay, baby, you can go." The victim, who had a clear view of appellant in the well lit parking lot, immediately reported the incident to police and provided a detailed description of her assailant. Within ten minutes the victim was taken in a police car to the front yard of a residence about four blocks from the restaurant parking lot where a man matching appellant's description had been spotted and detained by other officers. Appellant and two other men were promptly placed in a lineup in front of the police car but appellant had to be physically held for purpose of this observation. He repeatedly turned his face away from view and at one point took off his hat and threw it to the ground. The victim identified appellant as the man who had assaulted and attempted to rob her.

Appellant contends a mistrial should have granted when Officer Paul Zwick, a State's witness, testified on direct examination as follows:

Q. What happened when they came back out?

A. When they came back out I had radioed for Officer Klefisch to bring the victim by for identification.

Q. Okay. Did Officer Klefisch arrive?

A. He did arrive there yes.

Q. Did he have anybody with him?

A. He had the victim.

Q. What happened then, after Officer Klefisch got there?

A. We had a lineup. We stood three subjects in front of the vehicle that the victim was in and she identified the subject as the one who had robbed her.

Counsel for the defense promptly objected to the answer and moved for a mistrial. Though the court overruled the objection and denied the motion, the prosecutor was cautioned against further inquiry as to the lineup identification. The court also indicated a curative instruction could be given but defense counsel declined this offer.

Because the victim's testimony regarding identification was unimpeached, the officer's corroborating statement regarding the lineup fell into the class of testimony described as error in Degraffenreid, 477 S.W.2d at 64. In that case a seventy-eight-year-old man had viewed the defendant for less than two minutes from a distance of about eighty feet. Because the identification evidence was relatively weak, the Court determined that the cumulative effect of the police officer's testimony verifying the unimpeached witness' identification of the defendant both by photo and in a lineup prejudicially "tip[ped] the scales against defendant." Id. at 64.

Nevertheless, the Court in Degraffenreid declared that admission of such evidence in other cases might constitute harmless

Page 883

error where evidence of guilt is strong. Indeed this Court in State v. Williams, 606 S.W.2d 777 (Mo.1980),vacated (on other grounds) sub. nom. Missouri v. Greer, 451 U.S. 1013, 101 S.Ct. 3000, 69 L.Ed.2d 385 (1981), on remand State v. Williams, 619 S.W.2d 63 (Mo. banc 1981) made it clear that Degraffenreid does not mandate mistrial when an officer testifies concerning a prior extrajudicial identification by a witness. "Degraffenreid does not require a mistrial on every case where such testimony slips into a trial. A proper exercise of discretion is still allowed insofar as declaring a mistrial is concerned...." 606 S.W.2d at 779.

Here the evidence of guilt was strong and circumstances surrounding the alleged error are such that it cannot be said the trial judge abused his discretion in failing to declare a mistrial, thus the conviction must be affirmed. Further we deem it important to reexamine the underlying rationale for having declared the admission of such evidence error in Degraffenreid and to determine the viability of the rule announced there.

It should be noted that an identifying witness may testify concerning his pretrial identification of a suspect and the same was approved without qualification in State v. Rima, 395 S.W.2d 102 (Mo.1965), overruling State v. Baldwin, 317 Mo. 759, 297 S.W. 10 (Mo.1927) which had held the admission to...

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25 practice notes
  • Com. v. Doa
    • United States
    • Superior Court of Pennsylvania
    • 16 Febrero 1989
    ...to the event described ... when memory will presumably be fresher and opportunity for fabrication lessened."); State v. Harris, 711 S.W.2d 881, 885 (Mo.App.1986) ("The reasons for admitting identification statements as substantive evidence are that out-of-court identifications are......
  • State v. Outlaw, No. 13753
    • United States
    • Supreme Court of Connecticut
    • 20 Noviembre 1990
    ...for cross-examination at trial. See, e.g., People v. Mayfield, 23 Cal.App.3d 236, 239, 100 Cal.Rptr. 104 (1972); State v. Harris, 711 S.W.2d 881 (Mo.1986) (en banc); State v. Shannon, 125 N.H. 653, 484 A.2d 1164 (1984); Commonwealth v. Doa, 381 Pa.Super. 181, 553 A.2d 416 (1988); cf. United......
  • State v. Ware, No. SD 29794.
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Noviembre 2010
    ...because the probative value of the exhibit as corroborative evidence outweighed any prejudicial effect. Id.; see also State v. Harris, 711 S.W.2d 881, 883 (Mo. banc 1986) (identifying witness may testify concerning his or her pretrial identification of suspect); State v. Blaney, 801 S.W.2d ......
  • State v. Jones, No. 69153
    • United States
    • Missouri Supreme Court
    • 19 Abril 1988
    ...relied on by the prosecution in an orderly manner, by witnesses who had previously testified to their existence. See State v. Harris, 711 S.W.2d 881 (Mo. banc 1986), which emphasizes the scope of the trial judge's discretion as to repetitive III.--The Punishment Phase Two witnesses testifie......
  • Request a trial to view additional results
25 cases
  • Com. v. Doa
    • United States
    • Superior Court of Pennsylvania
    • 16 Febrero 1989
    ...to the event described ... when memory will presumably be fresher and opportunity for fabrication lessened."); State v. Harris, 711 S.W.2d 881, 885 (Mo.App.1986) ("The reasons for admitting identification statements as substantive evidence are that out-of-court identifications are......
  • State v. Outlaw, No. 13753
    • United States
    • Supreme Court of Connecticut
    • 20 Noviembre 1990
    ...for cross-examination at trial. See, e.g., People v. Mayfield, 23 Cal.App.3d 236, 239, 100 Cal.Rptr. 104 (1972); State v. Harris, 711 S.W.2d 881 (Mo.1986) (en banc); State v. Shannon, 125 N.H. 653, 484 A.2d 1164 (1984); Commonwealth v. Doa, 381 Pa.Super. 181, 553 A.2d 416 (1988); cf. United......
  • State v. Ware, No. SD 29794.
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Noviembre 2010
    ...because the probative value of the exhibit as corroborative evidence outweighed any prejudicial effect. Id.; see also State v. Harris, 711 S.W.2d 881, 883 (Mo. banc 1986) (identifying witness may testify concerning his or her pretrial identification of suspect); State v. Blaney, 801 S.W.2d ......
  • State v. Jones, No. 69153
    • United States
    • Missouri Supreme Court
    • 19 Abril 1988
    ...relied on by the prosecution in an orderly manner, by witnesses who had previously testified to their existence. See State v. Harris, 711 S.W.2d 881 (Mo. banc 1986), which emphasizes the scope of the trial judge's discretion as to repetitive III.--The Punishment Phase Two witnesses testifie......
  • Request a trial to view additional results

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