State v. Hornbuckle, 70724

CourtUnited States State Supreme Court of Missouri
Citation769 S.W.2d 89
Docket NumberNo. 70724,70724
PartiesSTATE of Missouri, Respondent, v. Sylvester HORNBUCKLE, Appellant.
Decision Date18 April 1989

Page 89

769 S.W.2d 89
STATE of Missouri, Respondent,
Sylvester HORNBUCKLE, Appellant.
No. 70724.
Supreme Court of Missouri,
En Banc.
April 18, 1989.
Rehearing Denied May 16, 1989.

Page 91

Daniel L. Sayle, Asst. Public Defender, Clayton, for appellant.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for respondent.


Sylvester Hornbuckle appeals from his convictions by jury on two counts of robbery in the first degree, § 569.020, RSMo 1986, four counts of armed criminal action, § 571.015, RSMo 1986, and two counts of kidnapping, § 565.110, RSMo 1986. The trial court found appellant to be a persistent offender and sentenced him to six thirty-year and two fifteen-year terms of imprisonment, to be served consecutively, for a total of 210 years in prison. The Missouri Court of Appeals, Eastern District, reversed and remanded for retrial. This Court granted transfer. The judgment entered upon the verdict of the jury is affirmed.

Viewed in the light most favorable to the verdict, the evidence at trial established the following: During the evening of February 1, 1986, Robert and Emily Sudhoff stopped at the Venture Department Store on Page Avenue in the City of Overland in St. Louis County. At approximately 8:00 p.m., the couple returned to their car which was parked in the store parking lot. Mr. Sudhoff unlocked and opened the front passenger door for his wife, then proceeded around the rear of the car toward the driver's side. Mrs. Sudhoff seated herself in the car and released the power lock on the car's doors. As she fastened her seat belt, Mrs. Sudhoff looked over her shoulder and saw that a stranger had entered the back seat of the car and was pointing a gun at Mr. Sudhoff's head. The man announced that it was a holdup and demanded the couple's valuables. Mr. Sudhoff gave the man his watch, a diamond ring and a coin purse. The intruder ordered Mrs. Sudhoff to give him her purse but she had not brought one with her. He then asked for her rings. As Mrs. Sudhoff handed him a dinner ring, she turned and looked directly at him.

Still holding the gun to Mr. Sudhoff's head, the intruder ordered Mr. Sudhoff to drive out of the parking lot. They left the lot and proceeded a short distance down an access road toward Page Avenue. The man then instructed Mr. Sudhoff to stop the car and ordered the Sudhoffs out. The man also exited the car. As Mrs. Sudhoff watched, the man frisked Mr. Sudhoff, taking his wallet, then reentered the car and drove off, abandoning the Sudhoffs on the access road. A short time later, a car stopped and offered assistance. The motorist then took the Sudhoffs back to the Venture store, where they contacted a security guard who summoned the police.

Two evenings later, in an assault similar in style, appellant was arrested while attempting to rob a woman in the parking lot of a Venture store in the City of St. Louis. Accounts of the City robbery in the local newspapers identified appellant by name. Friends of the Sudhoffs suggested that the suspect in the City robbery might also be responsible for robbing the Sudhoffs.

On February 10, the Sudhoffs were called to the Overland Police Department to view a photographic lineup. The police indicated that they believed they had a suspect in the case, but told the Sudhoffs nothing else prior to or during the identification session.

The Sudhoffs viewed the photo array separately. Based on her recognition of appellant's face, Mrs. Sudhoff selected appellant's picture from an array of approximately

Page 92

thirty photographs. To confirm her identification of appellant Mrs. Sudhoff signed and dated the back of the photograph.

Although Mr. Sudhoff had his back to the assailant throughout the robbery and never saw the man's face, he also viewed the photo array. Mr. Sudhoff claimed that he selected appellant's picture from the array based solely on the description given to him by his wife.

The photograph of appellant used in the array was the arrest photo from the City of St. Louis robbery. The photograph bore appellant's name and date of arrest as well as the standard descriptive data.

Nine days later, on February 19, the Sudhoffs attended a live five-person lineup at the downtown police station in the City of St. Louis. The Sudhoffs viewed the lineup separately. There was no information or prompting from the police. Mr. Sudhoff selected appellant from the lineup based on his recognition of appellant's voice. Mrs. Sudhoff selected appellant from the lineup based on her recognition of appellant's face as well as recognition of his voice. Both Sudhoffs had previously noted that the assailant spoke with a very soft, distinctive voice.

Appellant chose not to attend his trial or testify in his own defense. Consequently, the Sudhoffs made no positive in-court identification of appellant. At trial, Mrs. Sudhoff denied either seeing the name Sylvester Hornbuckle on appellant's photograph prior to selecting it from the array, or any familiarity with the name through newspaper accounts or otherwise prior to the police telling her that the man she had identified was Sylvester Hornbuckle. Mr. Sudhoff testified that he may have been familiar with appellant's name prior to viewing the photo array, but that he had not noticed the name on the photograph. The jury found appellant guilty as charged.

On appeal, appellant raises five claims of error. Appellant asserts that the trial court erred by: (1) admitting into evidence the out-of-court identifications by the Sudhoffs; (2) allowing testimony from a state's witness implying the commission of other crimes by appellant; (3) overruling appellant's pretrial pro se motion to discharge his attorney and his attorney's corresponding request to withdraw; (4) overruling appellant's motion for a judgment of acquittal on the grounds that there was insufficient evidence to sustain a conviction; and (5) denying appellant's motion for a mistrial when, during deliberation, the jury mistakenly received an exhibit.


In his "Points Relied On," appellant contends that the trial court erred in admitting testimony regarding the Sudhoffs' out-of-court photograph and lineup identification of appellant because they were made under circumstances so inherently suggestive and conducive to mistaken identification that appellant's right to due process was violated. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). Specifically, appellant argues that the totality of the circumstances rendered the photographic identification so suggestive as to be unreliable and therefore inadmissible. Appellant further argues that the improper photo identification so tainted the later live identification that testimony regarding the live identification should have been excluded as well.

Appellant has failed to preserve the issue for appellate review. Rule 29.11. At trial, appellant made only a limited hearsay objection to Mr. Sudhoff's testimony that he selected appellant's picture based on the description given to him by his wife. He objected to no other identification testimony by the Sudhoffs. He did not object to the admission of the exhibits of the photo array and lineup. In his motion for new trial, appellant merely complained that the trial court erred in refusing to instruct the jury on the dangers inherent in and the unreliability of eyewitness testimony, and this allegation was made with reference solely to Mrs. Sudhoff's testimony. See State v. Moiser, 738 S.W.2d 549, 562 (Mo.App.1987).

Since the error of which appellant complains is not preserved for review, appellant

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bears the burden of demonstrating that the action of the trial court was not only erroneous, but that the error so substantially impacted upon his rights that manifest injustice or a miscarriage of justice will result if the error is left uncorrected. State v. Driscoll, 711 S.W.2d 512, 515 (Mo. banc 1986), cert. denied, 479 U.S. 922, 107 S.Ct. 329, 93 L.Ed.2d 301 (1986). Relief under plain error, therefore, requires that appellant go beyond a mere showing of demonstrable prejudice to show manifest prejudice affecting his substantial rights. State v. Moore, 731 S.W.2d 351, 354 (Mo.App.1987).

The state submits that, given this threshold, plain error cannot exist in the present case since admission of the identification testimony, particularly the testimony of Mr. Sudhoff, helped appellant's defense more than it hurt. Specifically, the state argues that the weaker testimony of Mr. Sudhoff provided a vehicle for attacking the stronger testimony of Mrs. Sudhoff, raising questions about the accuracy of the identifications generally, the motives of the Sudhoffs and the zeal with which the police pursued the case. In this context, the state argues, admission of the testimony did not result in manifest injustice.

In part because of the rationale tendered by the state, but primarily because the bulk of the identification testimony was in fact admissible, appellant has failed to establish the existence of plain error.

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 (1977); State v. Story, 646 S.W.2d 68, 71 (Mo. banc 1983). Reliability is to be assessed under the totality of the circumstances. Id. The factors to be considered include: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the level of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Id.

In sum, the crucial test for the admission of identification testimony is...

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