State v. Heffner

• Decision Date: 21 September 1982
• Docket Number: No. WD,WD
• Citation: 641 S.W.2d 803
• Parties: STATE of Missouri, Respondent, v. Gary Thomas HEFFNER, Appellant. 32921.
• Court: Missouri Court of Appeals

Page 803

641 S.W.2d 803

STATE of Missouri, Respondent, v. Gary Thomas HEFFNER, Appellant.

No. WD 32921.

Missouri Court of Appeals,

Western District.

Sept. 21, 1982.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Nov. 2, 1982.

Application to Transfer Denied

Dec. 13, 1982.

James W. Fletcher, Public Defender, Gary L. Gardner, Asst. Public Defender, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jay A. Daugherty, Asst. Atty. Gen., Jefferson City, for respondent.

Before MANFORD, P.J., and KENNEDY and WASSERSTROM, JJ.

MANFORD, Presiding Judge.

This is a direct appeal from jury conviction for robbery first degree in violation of § 569.020, RSMo 1978. The judgment is affirmed.

Appellant presents three points which charge error by the trial court in (1) admitting evidence of an in-court identification of appellant because it was the result of impermissible suggestion, (2) admitting evidence relative to his identification because such evidence exceeded the permissible exception to the "evidence of other crimes" exclusionary rule, and (3) in admitting a weapon because said weapon was not used in the crime for which appellant was prosecuted.

The sufficiency of the evidence is not challenged so a summary of the pertinent facts suffices. The record reveals the evidence is sufficient to support the verdict of guilty entered by the jury. At approximately noon, July 27, 1980, appellant drove a motor vehicle to the drive-up window of the "Milk Jug", a convenience store in Independence, Missouri. Appellant ordered some "Coke". As the clerk was preparing the order, appellant entered the store. Appellant pointed a "butcher knife" at the clerk, demanded money, and threatened her life. As the clerk was removing money from the cash register, appellant grabbed the money from her hands and fled. This encounter lasted about four minutes with the clerk and appellant being at about arms-length from each other. Appellant's face was not covered although he had a beard and moustache. The clerk testified she observed appellant's face from the side and front in good lighting. This same clerk further testified she again saw appellant. This second encounter occurred on September 6, 1980, at about 1:30 p.m. when appellant drove the same vehicle to the drive-up window. Appellant ordered cigarettes. As the clerk was getting the order, appellant entered the store, this time pointing a sawed-off shotgun at the clerk. A demand for money accompanied by a threat to the clerk resulted in appellant's second robbery of the "Milk Jug". The clerk again observed appellant face-to-face and from the side for about four minutes. The clerk made a positive identification of appellant's vehicle. The police commenced their investigation by obtaining a physical description of appellant from the clerk, plus her selection of a photo of appellant from police records. On November 6, 1980, at about 2:00 p.m., a deputy sheriff of Jackson County observed appellant operating a motor vehicle on the wrong side of the road. The deputy stopped appellant's vehicle and, as the deputy approached the vehicle, he observed in plain view the butt end of a .410 sawed off shotgun, clothing, several beer bottles, and a butcher knife. Appellant was arrested for driving under the influence. The deputy also notified the Independence, Missouri, Police Department because appellant and his vehicle matched the description of the robbery suspect sought in the robberies of the Milk Jug.

At the preliminary hearing and at trial, the clerk made a positive in-court identification of appellant. She also testified she had observed an array of five photographs at the police station from which she selected appellant's photo. The clerk was cross-examined extensively on her description of appellant given to police, particularly with reference to appellant's hair. The only defense evidence was that of an employee of a local beauty school who testified that her records showed appellant had received a hair permanent in June of 1980. The jury returned its verdict, judgment was entered, and this appeal followed the after trial motions.

Under point (1), appellant contends the trial court erred in admitting her identification was the result of impermissible suggestion. Appellant's contention rests upon three sub points: (a) the photo of appellant shown the clerk was different in format from the others shown the clerk, (b) her identification was unsubstantiated although there was another witness at the scene and the identity of this witness was known to the police, and (c) the description provided by the clerk did not match appellant's.

Appellant cites a battery of federal and Missouri decisions as applicable and controlling authority upon the issue of identification. These include Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); State v. Carter, 572 S.W.2d 430 (Mo.1978); State v. McGraw, 571 S.W.2d 802 (Mo.App.1978); State v. Dickerson, 568 S.W.2d 559 (Mo.App.1978); State v. Sanders, 621 S.W.2d 386 (Mo.App.1981); and State v. Purnell, 621 S.W.2d 277 (Mo.App.1981) from which elements relative to proper and reliable identification have emerged. These elements are: (1) opportunity of the witness to view the perpetrator at the time of the commission of the offense, (2) the degree of attention by the witness, (3) the accuracy of the prior description by the witness; (4) the level of certainty by the witness at the time of confrontation, and (5) the length of time between the offense and confrontation.

From the foregoing, a basic rule has emerged that convictions based upon eye witness identification at trial following pre-trial identification will be set aside on that ground only if the identification procedure was so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. United States 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). The foregoing rule has been held determinable from the "totality of the circumstances". See Manson v. Breathwaite 432 U.S. 98, 114, 97 S.Ct. 2243 2253, 53 L.Ed.2d 140 (1977), Carter supra, State v. Higgins 592 S.W.2d 151, 160 (Mo. banc 1979).

Appellant suggests to this court that elements (1) and (2) above (i.e. opportunity of the witness to view the perpetrator at the time of the commission of the offense and the accuracy of the prior description by the witness) are lacking in the instant case, thus rendering the clerk's identification of appellant unreliable. As to element (1), appellant argues that there was no line-up identification, and that pre-trial identification was limited to scrutiny by the clerk of a photo array and observance of appellant at the preliminary hearing. As to the photos, it is appellant's contention that since the clerk was shown five photos and four were standard "mug shots", with the fifth a different type of photo of appellant; this was inherently impermissibly suggestive. Standing alone, such contention does not support appellant's argument. In addition, the record reveals the clerk testified to two encounters with appellant during which appellant committed two robberies from her person. The parties were as close as "arms length". These encounters lasted almost four minutes during which appellant's face was in plain view of the clerk both face-to-face and from a side view. In addition, there is no evidence upon this record that anyone suggested to the clerk that she select the photo of appellant. The record discloses the clerk made a positive identification of appellant both from the photo array and at trial. The record reveals extensive cross-examination of the clerk regarding her identification and her identification was consistent. There is no merit to sub (a) of point (1) above.

As to sub point (b) of point (1) above, appellant merely makes a declaration that the clerk's identification of appellant was not substantiated by any other witness, although the identity of another witness at the scene was known. This court can only conclude that appellant urges this court to adopt a rule that the clerk's testimony should or must have been substantiated or the failure to call this alleged witness constitutes further proof that the clerk's identification was the result of impermissible suggestion. This court concludes that neither suggestion has any merit, nor was there any requirement that any other witness be produced, as that fact relates to the main issue of reliability of the identification by the witness. Appellant's sub point (b) to point (1) is meritless.

Concerning sub point (c) to point (1), appellant contends that since the clerk and appellant had the two (four minute) encounters and she had an opportunity to observe appellant, her pre-trial description should closely match the appellant, but it did not.

From the testimony of the investigating officer, the record reveals the clerk described the robber (a few minutes after the robbery at the scene) as "... a white male, twenty-five to thirty years of age, height, about five-ten, weight, 165 pounds, with dark brown hair, medium complexion." The record also shows ... "I have written down a blue baseball cap, blue and white striped tank top and blue jeans and, further description was collar length hair, full beard and sun tanned."

Appellant's attack upon the pre-trial identification does not rest upon a direct challenge to the height,...