State v. Huchting

• Decision Date: 11 June 1996
• Docket Number: Nos. 65861,68410,s. 65861
• Citation: 927 S.W.2d 411
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Charles HUCHTING, Defendant/Appellant. Charles HUCHTING, Movant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 411

927 S.W.2d 411

STATE of Missouri, Plaintiff/Respondent, v. Charles HUCHTING, Defendant/Appellant.

Charles HUCHTING, Movant, v. STATE of Missouri, Respondent.

Nos. 65861, 68410.

Missouri Court of Appeals,

Eastern District,

Division Four.

June 11, 1996.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 24, 1996.

Application to Transfer Denied

Sept. 17, 1996.

Wittner, Poger, Rosenblum & Spewak, P.C., N. Scott Rosenblum. Ramona L. Marten, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.

PUDLOWSKI, Judge.

Defendant Charles Huchting appeals from his conviction in the Circuit Court of the City of St. Louis for forcible rape, forcible sodomy and felony stealing. He was sentenced to consecutive sentences of thirty years for the first two counts, and a seven-year consecutive sentence for the third count.

This is a consolidated appeal of defendant's direct appeal and his Rule 29.15 motion. We need not consider the 29.15 motion because it has not been briefed. "Allegations of error that are not briefed or are not properly briefed on appeal shall not be considered by this court except errors respecting the sufficiency of the information or indictment, verdict, judgment, or sentences." State v. Williams, 904 S.W.2d 103, 106 (Mo.App. E.D.1995).

The relevant facts of the direct appeal reveal that at 6:50 a.m. on January 22, 1993, victim was attacked in the garage of her apartment as she was preparing to go to work. She testified that defendant approached her from behind and grabbed her while placing a gloved hand over her mouth. The glove smelled like gasoline.

She testified that defendant first pulled her purse off her shoulder, then pushed her to the floor of the garage and struggled with her in removing her clothing. After striking her and pulling her hair, victim related that defendant removed her pantyhose and underwear, then pulled her raincoat over her head and instructed her not to look at him. However, victim disclosed that the raincoat came off her head at several different points in time and she saw the defendant.

Victim testified that after unsuccessfully trying to penetrate her vagina with his penis, defendant felt her breasts and forced his penis in her mouth. He then penetrated her vagina with his penis. Victim testified that she struggled and screamed throughout the attack, despite her attacker's threats to inflict further harm if she was not quiet. Victim testified that she was finally able to push herself away from the defendant and escape out the door of the garage. He ran out the back of the garage.

The victim's neighbor was in her apartment with her husband that morning when she heard a scream and looked out the window. She observed a man in dark clothes running through the backyard and between apartment buildings. She sent her husband to chase after the man. Even though he did not actually see the person, he saw a man in dark clothing and blond hair getting into an automobile. Husband then recorded the license plate number and gave the information to the police.

Police officer William Murphy, who originally went to defendant's apartment to find him, testified that he smelled a "heavy smell" of petroleum in the apartment. Lyndon Harr, defendant's employer, testified that at 8:00 a.m. on the day of the assault, defendant clocked into work at his job laying asphalt. Harr testified that his workers used diesel fuel to keep the tools from sticking to each other.

Victim viewed a police line-up and identified defendant as her attacker.

At trial, a criminologist for the state, Donna Becherer, explained the results of the state's DNA evidence linking defendant to the crime. Becherer testified that defendant's DNA matched that of semen samples taken from the victim's underwear and the floor of the garage. The state also introduced evidence linking fibers found in victim's hair to gray acrylic gloves of the type belonging to defendant.

Using the statistical methods customarily employed by her laboratory, Becherer testified that the odds of another person having defendant's DNA structure were one in twenty thousand. Later in the trial, Becherer opined that using the FBI's statistical methods, the odds of a match were one in two and a half million.

In his first point on appeal, defendant contends that the trial court erred by denying his motion to suppress an out-of-court identification because the line-up procedure in which the victim identified him as her attacker was impermissibly suggestive.

Although defendant made a pre-trial motion to suppress identification, he failed to object to the victim's in-court identification. Pre-trial motions to suppress evidence alone are insufficient to preserve evidentiary objections for appeal. "The rule is well established in Missouri that when a motion to suppress evidence is denied and the evidence is subsequently offered at trial, defendant must object at trial to the admission of the evidence." State v. Fields, 636 S.W.2d 76, 79 (Mo.App. E.D.1982).

Defendant claims that the trial court's statement that it would take the motion "with the case" and rule upon it at "the appropriate time" led him to believe that his objection to the identification was continuing, and that further objections during trial were unnecessary. Defendant's reasoning is faulty. Introduction of the victim's identification at trial should have provided defendant sufficient notice that his pre-trial motion was unsuccessful, and that an objection during trial was, therefore, necessary to preserve the issue for appeal.

Because defendant failed to preserve this point for review, this court will not review the trial court's decision for abuse of discretion. This court does, however, have the discretion to review for plain error. State v. McGuire, 892 S.W.2d 381, 385 (Mo.App. E.D.1995). To show that the trial court committed plain error, "[a] defendant must not only show that prejudicial error resulted, but he must further show that the error so substantially affects his rights that manifest injustice or a miscarriage of justice will inexorably result if left uncorrected." Id.

Missouri employs a two-prong analysis for determining whether identification testimony should be admitted: (1) was the pre-trial identification procedure suggestive; and (2) if so, did the suggestive procedure affect the reliability of the identification made by the witnesses. State v. Hornbuckle, 769 S.W.2d 89, 93 (Mo. banc 1989). Identification evidence is admissible unless the procedures lead to a "substantial likelihood of irreparable misidentification." Id.

Defendant contends that the line-up procedure leading to the pre-trial identification was unduly suggestive because Officer Dunn said "okay" to the victim as defendant was asked to step out of the line-up toward the one-way glass, and because none of the three other men in the line-up matched the victim's description of her attacker's height, weight, color of facial hair, or clothing. We find neither of these circumstances sufficiently suggestive to have created a substantial likelihood of irreparable misidentification on the part of the victim.

The nature and timing of Dunn's comments to the victim during the line-up procedure are not entirely clear from the record. In characterizing Dunn's comment as coinciding solely at the time defendant stepped forward from the line-up, he relies on the testimony of a public defender who witnessed the line-up procedure. However, Dunn testified that he had made reassuring comments to the victim throughout the line-up procedure. Sorting out conflicting testimony is a matter for the jury. Defendant may not assume the superior credibility of a favored witness in order to advance a point on appeal.

With regard to the appearance of the other men in the line-up, defendant wrongly asserts that the officers putting together a line-up have a duty to search for participants who look like the accused. Rather, all that is required is that a reasonable effort be made to find "physically similar participants." State v. Cooper, 708 S.W.2d 299, 305 (Mo.App. E.D.1986). A lineup is not impermissibly suggestive because the age, weight, height, hairstyle and other physical characteristics of the line-up participants are not exactly the same. Id. Also, the Missouri Supreme Court has recently affirmed that "[l]ineups have been held not to be impermissibly suggestive merely because of the color or characteristics of the clothing of persons in the lineup." State v. Weaver, 912 S.W.2d 499, 520 (Mo. banc 1995).

Even if the line-up was impermissibly suggestive, defendant has no grounds on which to question the reliability of the victim's identification. Reliability is determined by examining the totality of the circumstances. Hornbuckle, 769 S.W.2d at 93. Courts are to consider: (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. Id.

Defendant contends that the three seconds in which the victim viewed her attacker's face was an insufficient amount of time for her to have been able to make a reliable identification. He also asserts that the reliability of the victim's identification was compromised because the degree of her attention towards her attacker was low owing to her preoccupation with escape. He further points to inconsistencies between the victim's account of her attacker's appearance and the corresponding characteristics of him as evidence that the victim's description was inaccurate. Finally, defendant asserts that the victim's level of certainty regarding her line-up choice was low. (Defendant concedes the fifth reliability factor because the...