State v. Jackson, WD33979

• Decision Date: 12 July 1983
• Docket Number: No. WD33979,WD33979
• Citation: 657 S.W.2d 44
• Parties: STATE of Missouri, Respondent, v. James Faerl JACKSON, Appellant.
• Court: Missouri Court of Appeals

Page 44

657 S.W.2d 44

STATE of Missouri, Respondent, v. James Faerl JACKSON, Appellant.

No. WD33979.

Missouri Court of Appeals,

Western District.

July 12, 1983.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Aug. 30, 1983.

David M. Strauss, Public Defender, Jeffrey K. Rath, Asst. Public Defender, Columbia, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.

Before DIXON, P.J., and KENNEDY and LOWENSTEIN, JJ.

DIXON, Judge.

Defendant was convicted of robbery in the first degree as a prior offender, and the court assessed the punishment of thirty years on the jury verdict. Defendant raises issues concerning a ruling on a motion to suppress identification evidence and a refusal to grant a mistrial for volunteered information concerning a prior conviction.

There is no claim of insufficiency of the evidence and for the purposes of this case, it is sufficient to say that the robbery victim identified the defendant as the man who entered a liquor store and robbed him.

The issue of the suppression of the identification testimony of the robbery victim is a matter raised only under plain error because the defendant failed to object to the in-court identification by the victim at the time the victim testified at trial. State v. Purnell, 621 S.W.2d 277, 286 (Mo.1981). No plain error will be found with respect to in-court identification unless there is a very substantial likelihood of misidentification. State v. Starkey, 536 S.W.2d 858, 865 (Mo.App.1976). In determining whether an identification procedure is so impermissibly suggestive as to give rise to a very substantial likelihood of misidentification, the court examines the "totality of the circumstances." State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979), appeal dismissed, 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980). Higgins requires that there be a two-step analysis. First, were the procedures employed impermissibly suggestive; and second, if they were impermissibly suggestive, did they create a very substantial likelihood of irreparable misidentification at trial? In the instant case, the victim testified that eight days after the robbery he examined five photographs shown to him by a police officer and selected one of the photographs that looked like the individual who did the robbery. On the following day, the witness viewed a lineup of six persons, all of the same general characteristics. The case at hand is similar to State v. Burns, 581 S.W.2d 590 (Mo.App.1979), where the court held that there was no suggestiveness in a procedure very like the one in the instant case. On the issue concerning the reliability of the testimony of the eye witness, there is no doubt that the eye witness testimony demonstrated substantial reliability under the factors for determination of such reliability set forth in Higgins, supra.

The issue with respect to the volunteering of information as to a prior offense arose in rebuttal testimony. The victim had identified the defendant, in part, by means of a mustache, shoulder length hair, and a scab over his right eye. At the time of trial, the hair style and mustache were different from the description given, and there was no evidence of a recent injury causing a scab. The state called the bailiff of the municipal court to testify that he saw the defendant on an occasion four days before the robbery. The bailiff identified the defendant as being the person he saw four days before the robbery. When asked to tell the jury how the defendant "appeared" on the occasion of his having seen him four days before the offense, the witness volunteered the response that the defendant had appeared in the...