State v. Johnson

• Decision Date: 06 April 1976
• Docket Number: No. 36554,36554
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Henry Darrell JOHNSON, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 851

536 S.W.2d 851

STATE of Missouri, Plaintiff-Respondent, v. Henry Darrell JOHNSON, Defendant-Appellant.

No. 36554.

Missouri Court of Appeals, St. Louis District, Division One.

April 6, 1976.

Motion for Rehearing or Transfer Denied May 17, 1976.

Robert G. O'Blennis, Frank Fabbri, III, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Charles Howard, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Thomas J. Kavanaugh, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

McMILLIAN, Judge.

Henry Darrell Johnson, defendant-appellant, (hereinafter referred to as defendant) appeals from a conviction for Robbery First Degree, § 560.120, V.A.M.S. A final sentence of twenty-five (25) years imprisonment was imposed on September 26, 1974, in accordance with the verdict of the jury and the court's finding defendant guilty of one prior felony conviction. We affirm the judgment of the conviction entered by the trial court.

On April 22, 1973, Kathleen Sengebusch, the manager of the International House of Pancakes restaurant at 4103 Lindell Boulevard, was robbed by a lone, unmasked gunman. The victim had the opportunity to view the robber at close range for a period of approximately five minutes. Mrs. Sengebusch was shown hundreds of photographs by the police during the next two weeks without making any identification. On May 6, 1973, she was again robbed by four men, one of whom she recognized as being the robber of April 22. No charges were ever brought concerning this second robbery; the case now before us on appeal concerns only the robbery of April 22, 1973. On May 14 Mrs. Sengebusch made a positive identification of one photograph in a group of several which were being shown to her by the police. The man she identified was the defendant. After this photograph identification the police unsuccessfully attempted to arrest defendant at his last known local address. The St. Louis police were later notified that defendant was being held in Chicago, Illinois. They arranged for Mrs. Sengebusch to accompany them to Chicago on August 20, 1973, for the purpose of viewing a lineup. Mrs. Sengebusch made a positive identification of the defendant at the lineup. The defendant was subsequently transported to St. Louis for trial on the one robbery charge.

Prior to trial the court held a hearing and received testimony on defendant's motion to suppress identification. The motion, based on the allegedly suggestive identification process and the absence of counsel at the lineup, was overruled. Mrs. Sengebusch, the state's sole identification witness at trial, testified that she recognized defendant as having been a regular customer for a period of five to six months prior to the April 22, 1973, robbery. In addition to Mrs. Sengebusch, the state called three of the police officers who had been involved in the identification process.

The defense at trial was alibi. Defendant's evidence consisted of two witnesses: Rose Johnson, defendant's aunt, who testified that defendant resided with her in Chicago from April to July of 1973, and Julia Johnson, defendant's grandmother, who testified that defendant had lived with her in St. Louis but had left on April 9, 1973. The state was allowed to impeach the testimony of Rose Johnson that defendant had been with her in Chicago all during May be recalling Kathleen Sengebusch to testify that she had been defendant on May 6 in St. Louis. Defendant did not testify at trial.

Defendant raises five issues on appeal. First, the trial court allegedly erred in overruling the motion to suppress identification and in allowing identification testimony by the state's witnesses because the identification procedures were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law, and because the pretrial confrontation at the lineup in Chicago was made without counsel. Second, the court allegedly committed plain error in permitting hearsay testimony from three (3) police officers concerning the identification of defendant prior to trial by Mrs. Sengebusch. Third, the trial court allegedly erred in allowing the state to bring forth rebuttal testimony from Kathleen Sengebusch concerning her identification of defendant at the restaurant on May 6, some two weeks after the event at issue, because the testimony was improper impeachment on a collateral issue and highly prejudicial to defendant. Fourth, the court allegedly erred in allowing the state's attorney to draw unfavorable inferences from the failure of the defendant to produce certain evidence since such evidence would have been solely cumulative or corroborative in nature and fifth, it was allegedly error for the court to allow the state's attorney to comment directly on defendant's failure to testify and to allow the state's attorney to elicit testimony for the sole purpose of showing defendant's failure to make a statement while under arrest.

Defendant's first contention is that the identification procedures utilized prior to trial were so unnecessarily suggestive and conducive to irreparable mistaken identification as to be a denial of due process of law. According to defendant, Mrs. Sengebusch initially picked out his photograph not because she recognized him as the robber but because she thought his face was familiar due to his patronage of the restaurant. Then, he asserts, showing her the same photograph prior to the lineup and again prior to trial confirmed the mistaken identification and insured that her in-court identification was based solely on the pretrial identification procedures. Therefore, he contends that her identification testimony was unreliable and should not have been admitted by the trial court.

Defendant raised this issue during a hearing on his motion to suppress identification. As noted earlier, the motion was overruled and the challenged identification was made by Mrs. Sengebusch at trial. Defendant did not object to the introduction of this evidence and made a lengthy cross-examination of the state's witness on this matter. Defendant then raised the issue again in his motion for a new trial. The rule in Missouri is that, to preserve a matter for appeal, timely objection must be made at trial as well as in the motion for a new trial. State v. Brownridge, 459 S.W.2d 317 (Mo.1970) and State v. Ward, 518 S.W.2d 333 (Mo.App.1975). Defendant's first contention has not, therefore, been properly preserved for review.

Nor are the matters raised by defendant subject to consideration by the court under the 'plain error' rule, Rule 27.20(c), unless the pretrial identification procedures resulted in 'manifest injustice' to defendant. The standard by which the admissibility of identification testimony is to be determined has been set out by the courts of our state on several occasions. Procedures which are unnecessarily suggestive and conducive to irreparable mistaken identification constitute a denial of due process. Stovall v. Denno, 388 U.S. 293, 301--2, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975). However, each case is to be considered on its own facts, and the reliability of the resultant identification is to be determined from the totality of the circumstances. State v. Parker, 458 S.W.2d 241, 243--44 (Mo. 1970) and State v. Ealey, 515 S.W.2d 778, 779--80 (Mo.App.1974). Three factors to be considered in the totality of the circumstances are the presence of an independent basis for identification, the absence of any suggestive influence and the positive in-court identification, State v. Parker, supra, and State v. Ealey, supra. Even where the pretrial procedures are arguably suggestive, it does not inescapably follow that the in-court identification is tainted. United States v. Dailey, 524 F.2d 911, 914 (8th Cir. 1975) and State v. Parker, supra, at 244.

Clearly, the pretrial identification procedures used by the police and the prosecution were ill-advised. They unnecessarily refreshed the witness' memory as to the photograph she had previously chosen and may have implied she should identify the man whose picture she had already chosen. But, in the present case, any suggestive influence was outweighed by the other two factors. There was a strong independent basis for the identification. The witness testified to having seen the defendant regularly for five to six months prior to the robbery and to viewing the robber at close range for approximately five minutes during the robbery. There was also a positive in-court identification. The witness testified that she had no doubt that defendant was the man who had robbed her. Therefore, the pretrial procedures did not undermine the reliability of the in-court identification. The trial court did not err in admitting the identification testimony.

Defendant's claim that the absence of counsel at the pre-indictment lineup made the identification inadmissible, was not properly preserved for review and is clearly out of line with the decisions of the courts of this state. Morris v. State, 532 S.W.2d 455 (Mo. Banc) handed down Feb. 2, 1976; State v. Walters, 457 S.W.2d 817 (Mo. 1970) and Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

The second issue raised by defendant on appeal is that the trial court committed plain error in admitting hearsay testimony from three police officers. In essence, each of the policemen testified as to the process by which Mrs. Sengebusch made her identification and that she had identified the defendant. Defendant now claims that allowing this hearsay testimony had the effect of substantially bolstering the testimony of the state's sole identification witness, to the prejudice of defendant. State v. Degraffenreid, 477 S.W.2d 57 (Mo. Banc 1972). Defendant acknowledges that this testimony was not objected to at trial or in the motion...