State v. Heinrich, KCD26302

Decision Date05 March 1973
Docket NumberNo. KCD26302,KCD26302
Citation492 S.W.2d 109
PartiesSTATE of Missouri, Respondent, v. Clyde Raymond HEINRICH, Appellant.
CourtMissouri Court of Appeals

Robert G. Duncan, Duncan & Russell, Kansas City, for appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

Before PRITCHARD, P.J., SWOFFORD and WASSERSTROM, JJ., and HALL, Special Judge.

SWOFFORD, Judge.

Appellant, hereinafter called 'defendant', appeals from his conviction of the offense of first degree robbery with punishment assessed at eighteen years.

The defendant raises three points upon which he asks this court to reverse the conviction. First, he asserts that he was denied a fair and impartial trial as guaranteed by the Constitution, by reason of the inflammatory and prejudicial closing arguments of the assistant prosecuting attorney. Second, he asserts that the trial court erred in failing to sustain his motion to suppress identification testimony because of a police court lineup which was unduly suggestive and conductive to misidentification and this deprived him of his constitutional right to due process of law. Third, he asserts that the identification testimony should have been suppressed because he was denied his constitutional right to counsel at said line-up.

The resolution of these matters requires a brief summary of the facts. The only witness at the trial was the victim of the robbery, one James Reno, hereinafter referred to as 'Reno'.

On October 15, 1971, Reno was employed as an attendant at a Hudson Oil Company service station on Chouteau Boulevard in Clay County, Missouri. At about 2:00 o'clock on that morning, two men drove into the station and purchased a dollar's worth of gasoline. The men then drove the car away from the gas pumps and parked it near the driveway entrance and one of them went to the restroom and the other stood near the office entrance. Reno waited on another customer and then in the station office he was confronted by the man who had used the restroom. This man was holding a blue steel revolver pointed at Reno from a distance of about two feet. The man said, 'Give me your money, this is a hold-up.' The men relieved Reno of $65.00 in currency and coins, forced him to unlock a back room from which they took some cartons of cigarettes, locked Reno in this room, and left.

Reno made an in-court identification of the defendant as the man with the gun. He testified that the men were at the station for about 15 minutes and were engaged in the robbery within the station office for about 10 minutes of that time. He stated that the service station was brightly lighted, that he got a good look at defendant within the station from a distance of two feet for several minutes, and described his apparel, appearance (including the fact that he had a moustache), weight and height. He pointed out the defendant in the courtroom. The following appears as part of the state's direct examination:

'Q. Now is there any question whatsoever in your mind that this man seated here is the man who robbed you on October 15, 1971?

A. No.'

Before the commencement of the trial, court-appointed defense counsel had filed a 'Motion to Suppress Identification' of any evidence of a view-type line-up identification conducted at the jail in Liberty, Missouri, apparently on November 18, 1971, because of the alleged unconstitutionality of the line-up procedures. The record before us shows, however, that the court took no action upon this motion because 'by agreement of state and defendant, the court doth find said motion be taken with the case.' The state did not inquire on direct examination nor attempt to elicit from Reno anything with regard to the line-up identification.

The above in-court identification of defendant by Reno went in without objection, and then on cross-examination to Reno the defense brought out for the first time that after the robbery the police exhibited to Reno at least two groups of police photographs and that therefrom Reno identified the defendant and one, Kidd, as the two men who robbed him.

It was also brought out by the defense on cross-examination of Reno, for the first time, that thereafter at the Liberty, Missouri jail, he reviewed a 'line-up' of men. He was not sure whether there were 5 or 6 men in the line-up. He again identified from this line-up the defendant and Kidd as the men who robbed him. He had been told by the police that there were two men under arrest and they wanted to see if he could identify them. Only one man in the line-up had facial hair, the defendant.

On redirect examination, Reno stated that the police did not make any suggestions or put any pressure on him to make the identification. The state then offered a photograph of the line-up which Reno identified and which was admitted into evidence without objection. This photograph is an 8 10 glossy print, showing five young men dressed in jail coveralls. Reno identified the defendant as the second man from the left, who is the only one with facial hair.

The defendant was indicted November 12, 1971. While there is no direct evidence as to the date of the line-up, the photograph bears the legend, 'Photo taken at 6:45 P.M. on 11--18--71 at Clay County jail. Witnesses #1 Bill Holbeck #2 Dean Hartley.' Counsel was not appointed for defendant until December 11, 1971. From the state's own exhibit, we may assume that the line-up was post-indictment, before counsel was appointed, and that the state offered no evidence that defendant was either afforded counsel at the line-up or made an informed waiver of his right to counsel.

After the state had rested its case with the testimony of Reno, the defendant filed a motion for judgment of acquittal, which makes no mention of the motion to suppress identification or the attack upon the constitutionality of the line-up. At this stage of the trial, in colloquy with the court, defense counsel stated:

'We are now at the point to where--and incidentally, the reason that I withdrew for all intents and purposes the motion on the line up was for--and I discussed it with Mr. Heinrich--was on the basis that that would be one way to attack the line up in front of the jury to try to cast some doubts on how it was handled, so I felt that procedure-wise, it was the wise, or tactic-wise, it was the wise thing to do. * * *'

No further action was taken by nor requested of the trial court with reference to the motion to suppress and it was never formally ruled upon. The defense offered no evidence.

In his motion for a new trial, the defendant alleges error of the trial court 'in denying' defendant's motion to suppress identification evidence because it arose out of a line-up procedure which denied defendant due process of law, as guaranteed by the Fifth Amendment of the United States Constitution. We will direct our attention to this claim first.

While it is apparent that this matter was neither properly presented nor preserved for review, and we are not requested to review this element of the case as plain error under Rule 27.20(c), V.A.M.R., we are compelled to do so sua sponte for the reason that federally guaranteed constitutional rights of the defendant are involved.

It is now well settled law that post-indictment or post-information out-of-court identifications from view-type confrontations or line-ups are a 'critical' phase of a criminal prosecution and the accused has the constitutional right to counsel at that stage or has the right to make an informed waiver of counsel. If a person who has made such an identification at an illegal and unconstitutional line-up is proffered as a witness as to his line-up identification, such evidence calls into operation the 'per se exclusionary rule'. If such a person is proffered as an identification witness, without reference or regard to the out-of-court line-up, and a proper motion to suppress such testimony is made, it becomes the duty of the court to conduct a hearing before trial or outside the presence of the jury, to determine whether or not the in-court identification rests upon independent facts or circumstances, untainted by an illegal line-up. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199; State v. Cannon, Mo.Sup. en banc, 465 S.W.2d 584; Scurlock, Basic Principles of the Administration of Criminal Justice with Particular Reference to Missouri Law, 38 UMKC Law Review, 297--8 (1970).

In the case before us, however, these constitutional principles regarding identification are of no weight for a number of reasons. The defendant's 'Motion to Suppress' was apparently directed only to evidence regarding the line-up identification, and no request was made of the court at any stage of the proceedings to rule such motion or conduct a hearing relating to the independent validity of the in-court identification by Reno. The state did not in any way seek to inject into the trial any evidence concerning the line-up identification until these matters were brought out by the defense in cross-examination of Reno. Such procedures do not 'offend' the rule in Wade or Gilbert. State v. Peel, Mo.Sup., 469 S.W.2d 33, 36. Counsel for defense freely admitted in the record that, after consultation with the defendant, this procedure was decided upon as 'tactic-wise'. Judicial sanction should not (and will not here) be given to such late repudiation (after adverse results) of a deliberate and free decision of defendant and his able counsel as to a trial position. Lastly, from the direct evidence of Reno, it appears that he had ample opportunity to and did observe the person who robbed him, as an independent and untainted basis for his in-court identification of the defendant. This testimony was not objected to at the trial by the defendant, and its believability...

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