State v. Hurst

• Decision Date: 17 February 1981
• Docket Number: No. 42235,42235
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Benny HURST, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 846

612 S.W.2d 846

STATE of Missouri, Plaintiff-Respondent, v. Benny HURST, Defendant-Appellant.

No. 42235.

Missouri Court of Appeals, Eastern District, Division Two.

Feb. 17, 1981.

Buechner & Hellman, Andrew B. Leonard, Manchester, for defendant-appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Edward F. Downey, Asst. Attys. Gen., Jefferson City, George Westfall, Pros. Atty., Clayton, for plaintiff-respondent.

WEIER, Judge.

Defendant appeals his conviction of forcible rape and a sentence of ten years imprisonment. A brief statement of the facts will be made. Further facts will be developed in the body of this opinion.

On the night of September 25, 1978, complainant was the victim of multiple rapes accompanied by a physical assault upon her person. On her way home after attending school at Meramec Community College, she had stopped to purchase cigarettes at a liquor store on Lindbergh near Big Bend. Approximately seven men were standing in front of the store. When she emerged from her car, one of the men grabbed her purse. Two of the men forced her to drive to a deserted area in Meachum Park where they raped her. They then took her back to the liquor store where they left the car and a third man forced her back to the same spot and raped her. The third man then directed her to a gas station lot. She testified that while at the gas station lot defendant drove up in a silver blue Monte Carlo and approached her trying to sell her some "acid." She further testified that the third man left the car and defendant Benny Hurst then entered. He forced her to drive back to the same deserted area where he also raped her. She then managed to escape. Defendant denied the rape and testified that he was with his girl friend all night.

Defendant assigns sixteen points of trial court error. We affirm the trial court on all points.

Defendant's first point on appeal is that the trial court erred in overruling the motion to suppress the identification testimony given by the victim because the pretrial confrontation procedures were so unnecessarily suggestive and conducive to a misidentification of defendant as to violate due process rights. Defendant also contends that the subsequent in-court identification was tainted because it was based on the same suggestive influence as the tainted lineup and viewing of photographs in the Kirkwood Police Station.

Initially, we note that defendant has failed to properly preserve this point for review because he neglected to object to the victim's identification testimony at trial. State v. Perry, 592 S.W.2d 307, 308(2) (Mo.App.1979). Regardless, we have reviewed the record and find that the trial court did not err in overruling defendant's motion to suppress identification testimony.

The admissibility of identification testimony is determined in light of the totality of surrounding circumstances. State v. Parker, 458 S.W.2d 241, 244 (Mo.1970). In viewing the totality of circumstances, a three-part test requires that consideration be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive courtroom identification. Parker, supra at 244.

The second factor enumerated in Parker, supra, is most applicable to the pretrial procedures attacked by defendant that is, the lineup and the showing of photographs of potential suspects to the victim. In the early morning hours of September 26, 1978, the victim viewed several books of photographs of potential suspects. She identified defendant as one of the men who raped her. Later on in the day she viewed a five-man lineup at the jail in Clayton and identified defendant as one of the men who raped her. Defendant contends that the lineup was unduly suggestive because none of the other participants had features similar to defendant. Noticeable differences in the appearance of participants in the lineup have repeatedly been held not to necessitate a finding of suggestiveness. State v. Davis, 529 S.W.2d 10, 13(2, 3) (Mo.App.1975). An examination of the photographs of this lineup does not support defendant's claim that the lineup was unduly suggestive. Neither does the record show the two identification procedures attacked by defendant were made as a result of suggestive acts or comments by police officers.

Defendant also contends that the first and third factors of the Parker test, involving an independent source of identification and positive in-court identification, were not met as well. Identification testimony is admissible even if the lineup and viewing of the photographs were suggestive because the presence of an independent source will serve to remove any taint that might result from a suggestive confrontation. Davis, supra at 14. Isolation of an independent source requires consideration of numerous factors including:

" '... the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.' (Neil v. Biggers, supra 409 U.S. (188) at p. 199, 93 S.Ct. (375) at p. 382 (34 L.Ed.2d 401))"

Davis, supra at 14.

Applying this test to the present case shows an independent source. The description given to the police was not detailed but there was no hesitancy in the identification at the lineup. Neither was there any hesitancy in picking out the photograph of the appellant at the police station. The record shows that the victim had ample opportunity to view the defendant at the time of the incident. She testified he approached her car trying to sell her a bottle of "acid" and that he entered her car and forced her to drive to the isolated spot where he raped her. She was absolutely certain of the in-court identification. Finally it was less than twenty-four hours after the incident that the victim viewed the defendant in the lineup and less than twelve hours when she viewed the defendant's photograph.

Defendant's second point on appeal is that the trial court abused its discretion in overruling defendant's motion for a continuance in that a series of articles on rape appeared in the St. Louis Post-Dispatch newspaper immediately prior to trial. The articles did not concern this case but referred to rape in general terms and described typical rape situations and the emotional trauma connected therewith.

It should be noted that defendant's motion was in the alternative in that he requested a continuance or sequestration of the jury. The court did, in fact, sequester the jury. In order to preserve an allegation of error, proper objection must be promptly made and there must be an adverse ruling. State v. Holland, 530 S.W.2d 730, 733(2, 3) (Mo.App.1975). Having granted alternative relief as requested, defendant cannot now claim that the trial court abused its discretion. Considering the merits of this point on appeal, however, defendant is required to demonstrate that pretrial publicity has had a prejudicial effect on the jury panel. State v. Owens, 537 S.W.2d 209, 210(3) (Mo.App.1976). Defendant has not shown such prejudice. When asked by defense counsel whether any of the prospective jurors who had read something about rape would be able to reach a verdict in this case based solely on evidence presented in the courtroom, all jurors indicated they could set aside their preconceived notions. Further, the jurors indicated to the prosecution that they would presume defendant innocent unless proven guilty. Defendant's claim, therefore, that the jurors were prejudiced by pretrial publicity is without merit.

Defendant assigns error to the trial court in overruling his objection to the prosecutor's statements during voir dire regarding "reasonable doubt." The remarks to which complaint is directed are:

Prosecutor:

"The burden of proof that the State has is we must establish Hurst guilty beyond a reasonable doubt. Notice I did not say slight, any doubt or all doubt, I said reasonable doubt."

"Another thing I want to mention, the State has what we call the burden of proof in any criminal case. What that means is it is on the State to establish Hurst guilty, not on Hurst to establish his innocence. And we have to establish Hurst guilty beyond a reasonable doubt."

"Now notice I didn't say beyond any doubt or beyond all doubt."

Objections to both set of statements were overruled.

It was improper for the prosecutor to tell the panel on voir dire examination that burden of proof rests upon the State and to differentiate between beyond a reasonable doubt and beyond any and all doubt. State v. Van, 543 S.W.2d 827, 830(1, 2) (Mo.App.1976). It is elementary that instructing the jury on the burden of proof is a function of the trial judge. As a general rule, error is presumed to be prejudicial, and it is the duty of this court to determine judicially whether under the facts of this case defendant was prejudiced. Id. We do not find, however, that prejudice resulted. Although the statements were improperly made, what the prosecutor said was essentially correct. It is true that in order to convict the State must prove an accused guilty beyond a reasonable doubt and that the State has no higher or greater burden of proof. State v. Van, supra at 830(3, 5); State v. Belleville, 530 S.W.2d 392, 394(4) (Mo.App.1975).

In his fourth point defendant contends that the trial court erred in overruling his objection to the prosecutor's statement during voir dire concerning the pursue snatching which preceded the series of rapes and a reference to a false police report filed by a witness endorsed by defendant. An examination of the record shows that the trial court sustained the objection and instructed the jurors to disregard the statement. Defendant's fourth point is without merit.

In his fifth point on appeal defendant contends that the...