State v. Hoopingarner, 61394

• Decision Date: 12 January 1993
• Docket Number: No. 61394,61394
• Citation: 845 S.W.2d 89
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Thomas E. HOOPINGARNER, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 89

845 S.W.2d 89

STATE of Missouri, Plaintiff/Respondent, v. Thomas E. HOOPINGARNER, Defendant/Appellant.

No. 61394.

Missouri Court of Appeals,

Eastern District,

Division Four.

Jan. 12, 1993.

John Brooks Gourley, Clayton, for defendant/appellant.

William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for plaintiff/respondent.

CRANE, Judge.

A jury found Thomas E. Hoopingarner guilty of the offense of first degree burglary in violation of § 569.160 RSMo 1986. The trial court found him to be a Class X offender and sentenced him to a term of 18 years imprisonment. Hoopingarner appeals the judgment of the trial court. On appeal Hoopingarner contends that the trial court erred in overruling his motion to suppress identification testimony, admitting evidence of his prior guilty pleas and giving MAI-CR 3d 312.10, the "hammer" instruction. We affirm.

The sufficiency of the evidence is not in dispute. On April 28, 1990 the victim was alone in her half of a two-family duplex in St. Louis County. She was lying on her couch and could see the basement door about thirty feet away at the end of a corridor. The door was shut and locked with a chain.

At 2:30 a.m. the basement door suddenly burst open. The victim saw defendant standing shirtless with his hand on the basement door. She jumped up and made a noise, which caused defendant to turn toward her so that she got a clear look at his full face. The victim recognized defendant as someone who had lived in her neighborhood for the past seven years, whom she had seen "hundreds of times," but whose name she did not know. She ran outside and called for help. Her next-door neighbor heard her screams, told his wife to call the police, and went outside to the victim, who told him a man was in her apartment. The neighbor saw a shirtless man walking north quickly along the street, recognized him as a neighborhood resident, and called the police himself to tell them a burglary had occurred and the suspect was walking north along his street.

Officer Timothy Schreiber of the St. Ann Police Department responded to the burglary call and saw defendant walking north along victim's street, about four houses north of the victim's house. Officer Schreiber recognized defendant, whom he knew by name, told him there had been trouble down the street, and asked him if he would wait where he was. Defendant replied that he did not mind waiting. Officer Schreiber went down the street and spoke with the victim, who described the intruder. Officer Schreiber then had another officer bring defendant to the victim's residence where she identified defendant.

Defendant's first two points challenge the trial court's denial of his motion to suppress identification. Defendant first contends the trial court committed plain error by not sustaining the motion because the identification was the fruit of an illegal seizure in violation of the United States and Missouri constitutions. He argues that the evidence established that he was illegally arrested without cause when he was asked to stay on the street by Officer Schreiber. Defendant seeks plain error review because he did not raise this ground in his motion for new trial. For his second point defendant contends that the identification should be suppressed because of unduly suggestive circumstances, which rendered both the out-of-court and in-court identifications unreliable.

On a motion to suppress the state bears the burdens of production and persuasion to show by a preponderance of the evidence that the motion to suppress should be overruled. § 542.296.6 RSMo 1986, State v. Fitzgerald, 781 S.W.2d 174, 182 (Mo.App.1989). To determine whether evidence should have been suppressed, we may consider the record made at the pre-trial hearing, as well as the record made at trial prior to the introduction of the evidence sought to be suppressed. State v. Collins, 816 S.W.2d 257, 258 (Mo.App.1991). The trial court's ruling shall be affirmed unless it is clearly erroneous. State v. Milliorn, 794 S.W.2d 181, 184 (Mo. banc 1990). Under this standard we review the factual findings only to determine if they are supported by substantial evidence. Fitzgerald, 781 S.W.2d at 182. We view the facts in the light most favorable to the ruling of the trial court, State v. Blair, 691 S.W.2d 259, 260 (Mo. banc 1985), and we disregard contrary evidence and inferences. Fitzgerald, 781 S.W.2d at 182. When seeking plain error review, defendant bears the burden of establishing that the alleged error results in manifest injustice or a miscarriage of justice. State v. Berry, 609 S.W.2d 948, 953 (Mo. banc 1980).

Defendant's claim of unlawful arrest was refuted by a preponderance of the evidence. At trial defendant testified that Officer Schreiber had asked him if he would mind going down the street to be looked at and that defendant voluntarily waited at Officer Schreiber's request, who said he would return for him. Eventually a second officer came up and brought him down the street. Defendant was not handcuffed and there was no evidence that his freedom of movement had been restrained. Rather, the preponderance of the evidence establishes that defendant had not been placed under arrest at the time he voluntarily waited and then accompanied an officer to the victim's house for identification. State v. White, 770 S.W.2d 357, 360 (Mo.App.1989).

Moreover, an unlawful arrest is not grounds to suppress an identification made at a subsequent show up, line up, photospread, or trial. State v. Lynch, 528 S.W.2d 454, 460 (Mo.App.1975). The fruit of the poisonous tree doctrine is inapplicable when the evidence supporting identification emanates from an independent source. Id. at 459. A victim's observations made at the time the crime was committed constitutes an independent source. An identification made from those observations is not a product of the arrest. State v. Whitley, 743 S.W.2d 482, 484 (Mo.App.1987). The victim identified defendant based on her observation of him at the scene and her recognition of him as a neighbor she had seen numerous times. State v. Harris, 825 S.W.2d 644, 648 (Mo.App.1992). The trial court did not commit error, plain or otherwise, in denying defendant's motion to suppress identification on the grounds of an illegal arrest.

Defendant also argues that the motion to suppress identification should have been sustained because the circumstances relating to the victim's out-of-court identification rendered it unreliable. He points to the facts that the victim had a limited opportunity to view the intruder in her home and that the police brought defendant to her house for identification twenty minutes after the burglary. He also points to discrepancies in the various witnesses' descriptions of the intruder's hair and clothing.

A defendant has a due process right to exclude identification testimony which results from procedures that are unnecessarily suggestive and conducive to an irreparably mistaken identification. Stovall v. Denno, 388 U.S. 293, 301-02, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199, 1206 (1967). In determining the admissibility of identification testimony which is alleged to have resulted from unduly suggestive pretrial identification procedures, courts apply a two-prong test: (1) whether the pretrial identification procedure was suggestive; and, if so, (2) the impact the suggestive procedures had upon the reliability of the victim's identification. State v. Morant, 758 S.W.2d 110, 117 (Mo.App.1988). Reliability, rather than suggestiveness, is the linchpin in determining the admissibility of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977); Morant, 758 S.W.2d at 117. The trial court determines reliability by looking at the "totality of the circumstances," including 1) the opportunity of the witness to view the accused at the time of the crime, 2) the witness' degree of attention at the time of the crime, 3) the accuracy of the witness' prior description of the accused, 4) the level of certainty demonstrated by the witness when subsequently confronted with the accused, and 5) the length of time elapsed between the crime and the subsequent confrontation. Id. An additional circumstance supporting reliability arises where the witness already knows the defendant and recognizes him at the scene of the crime. Harris, 825 S.W.2d at 648. We find neither prong of the test was satisfied.

In this case the pretrial identification procedure was not suggestive. Law enforcement officers may allow a victim or other identifying witness to view a freshly apprehended suspect for identification at the scene of a crime or at the scene of an arrest within a short time after the incident. State v. Ford, 677 S.W.2d 352, 354 n. 3 (Mo.App.1984); State v. Overstreet, 694 S.W.2d 491, 495 (Mo.App.1985). The police may inform the identifying witness that they have a suspect that the witness may be able to identify. Overstreet, 694 S.W.2d at 495. If under these circumstances the witness makes an identification of the subject from the witness's own observations and visual recollection of the defendant's appearance, and not as a response to any suggestions or encouragement from police, the identification is not unduly suggestive. Id.

Here the officers returned the suspect to the crime scene approximately twenty minutes after the crime. They requested the victim come out and view defendant as a possible subject. She viewed defendant in her front yard which was illuminated by a street light. The police officers did not say anything to the victim except to ask her to look at the individual. The victim was given adequate time to look at defendant who stood about five feet away from her. She was certain of her identification and testified that she knew defendant was the intruder as soon as she saw him. The circumstances of the confrontation were not unduly suggestive.

Since we have...