State v. Holly, WD
| Decision Date | 16 July 1985 |
| Docket Number | No. WD,WD |
| Parties | STATE of Missouri, Respondent, v. Elbert HOLLY, Jr., Appellant. 36163. |
| Court | Missouri Court of Appeals |
Sean D. O'Brien, Public Defender, David S. Durbin, Asst. Public Defender, Kansas City, for appellant.
William L. Webster, Atty. Gen., Thomas Carter, II, Asst. Atty. Gen., Jefferson City, for respondent.
Before NUGENT, P.J., and PRITCHARD and CLARK, JJ.
By the verdicts of a jury, appellant was found guilty of assault in the first degree, and armed criminal action. The trial court sentenced him, respectively, to 30 years and 10 years, to run concurrently, in the Missouri Division of Adult Institutions.
The sufficiency of the evidence to sustain the conviction is not challenged. Rather, appellant attacks the evidence of identification of him as the culprit; that the court erred in permitting the state to introduce evidence to meet defense surrebuttal evidence, that a person, identified by witness Judy Phillips as being the assailant as shown in a photo array, was in jail at the time of the shooting; and in permitting the state to make closing arguments asserted to have been prejudicial.
The events giving rise to the charges against appellant are these: On July 2, 1983, the victim, Fayodis Thomas, went to a party given by Judy Phillips, an old school friend, at 39th and Paseo, arriving at 11:45 p.m. Thomas went into the basement of the party where he danced a while and drank, at most, three beers, going then outside, where he sat on the steps outside the apartment building to cool off from dancing. Appellant then came down a little alleyway behind a store walking around and talking crazy, saying, Appellant threw his money on the ground and it blew over by Thomas who picked it up saying, "Here's your money." Appellant said, "No, I want all of my money", and Thomas told him it was just what blew on the ground, but appellant would not take it, so Thomas put it back on the ground. Appellant swung at him and Thomas swung back hitting him on the side of the face. A friend then broke up the fight, after which appellant said, "Everything is all right", tried to shake his hand, and came with his right hand and shot Thomas in the side. Thomas ran with appellant chasing him and clicking the gun several times. Thomas was not armed, and he was taken to Truman Medical Center after the shooting.
Appellant's first point is that the trial court erred in denying his motion to suppress out-of-court and in-court identification by Thomas because (A) he was unable to make an identification when a first array of six photographs was shown to him, but was able to identify appellant in a second array where four photographs were displayed, and the police informed Thomas that a suspect was in the second array, which procedures resulted in a substantial likelihood of irreparable misidentification. And (B) the state did not show by convincing evidence that Thomas' identification had a basis independent of suggestive police procedures in that he lacked the opportunity to observe the assailant at the time of the crime and showed uncertainty in his ability accurately to describe the suspect.
The evidence concerning the identification is this: As Thomas sat on the steps outside the apartment building he observed appellant walking around and talking for about twenty minutes. The lighting was good. He saw appellant close up, about a foot away, when he tried to hand him his money for about five seconds. He described appellant's features and clothing as he appeared at that time. About a year before, he had seen appellant for about five seconds standing in front of a liquor store drinking as Thomas was walking past, but he did not know his name. He called Judy after the shooting to find out what his assailant's name was, and learned it was E.J. When Thomas entered the hospital after the shooting, he told a nurse that he consumes about four or five beers and two or three pints of gin per day, and he had a few drinks (two or three beers) that night.
On July 29, 1983, less than a month after the shooting, Thomas was interviewed at the police station. Prior to that time, after he had learned the initials "E.J." from Judy, he had viewed six photographs but was unable to pick out his assailant. On July 29th, he viewed four photographs, and acknowledged that the officer told him they had a suspect among them, but did not tell him which one it was. Appellant was picked out from the array of photographs, and in court he was identified by Thomas as being the man shown in the photograph, and as the one who assaulted him. Thomas maintained that the officer's statement as to a suspect being in the photographic array did not influence him.
Although Thomas sought out the name of his assailant from Judy Phillips just prior to being shown the second set of photographs, and she testified that people were guessing as to who shot him and that "someone put up the name of E.J." which she gave to Thomas, there is nothing in those facts that would give rise even to an inference that the circumstances of picking out appellant's photograph was suggestive. The name of the assailant was not the significant factor of the identification where Thomas remembered his face all along. He had never known appellant by name but had seen him once before. Cf. State v. Gates, 637 S.W.2d 280, 281 (Mo.App.1982), where the sister accomplice of defendant was known to the stealing victim, but not by name, which fact, through a friend of his who was acquainted with the sister, led to defendant's arrest; State v. Robinson, 591 S.W.2d 18, 20 (Mo.App.1980), where the victim was shown a group of photographs with names of individuals on them, and he picked out defendant as being an unusual person, not remembering the writing on them. No one suggested which picture the victim would choose, and even if there were such suggestions, the court said, there was an independent basis for the in-court identification.
The police officer's statement was at best innocuous--he did not suggest what person Thomas should pick out. Besides, it was held in State v. Gregory, 630 S.W.2d 607, 609 (Mo.App.1982), citing State v. Dayton, 535 S.W.2d 479, 488 (Mo.App.1976), that it is implicit in lineup procedure (analogous to photographs) that among the persons in the lineup is one who is suspected by...
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...that they had a suspect which the witness might be able to identify. State v. Ealey, 727 S.W.2d 165, 167 (Mo.App.1987); State v. Holly, 697 S.W.2d 250, 252 (Mo.App.1985). In addition, lineups were not found to be unduly suggestive notwithstanding exposure of the witness to newspaper or tele......
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