State v. Johnson

• Decision Date: 05 January 1982
• Docket Number: No. 42928,42928
• Citation: 628 S.W.2d 904
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Maurice JOHNSON, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 904

628 S.W.2d 904

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

No. 42928.

Missouri Court of Appeals, Eastern District, Division One.

Jan. 5, 1982.

Joseph W. Downey, Public Defender, Mary Elizabeth Dockery, Asst. Public Defender, St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for plaintiff-respondent.

HOUSER, Senior Judge.

Maurice Johnson, tried before a jury, convicted of robbery in the first degree, § 569.020, RSMo 1969, and sentenced to 25 years' imprisonment, has appealed, urging impermissible identification procedures and improper arguments by the prosecutor in summing up the case before the jury.

The State introduced evidence from which the jury could find these facts: At approximately 11:30 on the morning of May 17, 1979 two black males wearing nylon stocking masks over their faces entered the lobby of Farm & Home Savings & Loan Association, (at the trial and hereinafter referred to as "the bank") located at 5925 West Florissant in the City of St. Louis, and announced a robbery, saying "Freeze. This is a holdup." Both robbers were carrying guns. There were two tellers and one customer in the bank lobby at the time. Shouting obscenities, one of the robbers approached the customer and pressed "something cold" to her back. Then both of the robbers jumped over the counter; went behind each of the tellers' cages, placed a gun to the temple of each of the tellers, and emptied the contents of the cash drawers into a pillow case. One of the tellers was forced into the vault where he was required to turn over cash from a drawer. The robbers marched and shoved the customer and two tellers into a restroom, threatening to shoot them if they came out. Then the robbers fled the premises, carrying their guns and the pillow case, which contained several thousand dollars in paper money and a $25.00 bag of pennies. From beginning to end the robbery took a "few minutes", variously estimated at from two to ten minutes.

At the time the robbers left the bank building Police Officer Moran, driving a marked patrol car eastbound on West Florissant, observed a cream-colored automobile parked in front of the building, with the passenger door open. He also observed two black males exiting the front door of the bank, walking fast, running, one carrying a sawed-off rifle, the other carrying a white bag. He saw them get into the cream-colored vehicle and drive west on West Florissant at a high rate of speed. Officer Moran made a U-turn, turned on the emergency lights, pursued the fleeing car, and advised his dispatcher that he was traveling west on West Florissant in pursuit of two subjects who had just committed a robbery. After traveling one city block on West Florissant the cream-colored auto turned left on Park Lane (proceeding the wrong way on a one-way street). Due to the oncoming traffic the two subjects abandoned their car about the middle of the first block, and ran between two houses on the west side of the street. Officer Moran stopped the patrol car and pursued them on foot. Having lost sight of the two subjects, Officer Moran gave the dispatcher a description of the men over his walkie-talkie, and returned to the cream-colored automobile, in which he found the white bag containing currency and coins and two weapons, identified at the trial by Officer Moran as the rifle and handgun carried by the two men as they left the bank. The money, returned to the bank and counted, amounted to $4,500. Several months before the robbery "bait money" had been placed in the tellers' cash drawers. The bait money was photographed and a record of the serial numbers of the bills kept. The serial numbers of twenty $5.00 bills found in the white bag corresponded with the serial numbers of the bait money.

When Captain Kleine heard Officer Moran report the robbery on the police radio he and Officers Keegee and Hale immediately drove to the vicinity and made inquiry of bystanders at West Florissant and Holly streets. Captain Kleine's attention having been directed to the four-family flat located at 5976 West Florissant, the building was placed under surveillance. As Officer Hale started to enter the building appellant came out the front door, perspiring hard, his heart "beating heavily" and "very short of breath." Appellant fit the description of one of the persons wanted for the robbery. Officer Hale placed him under arrest and sat him down in the back seat of the police car. A police officer returned to the bank and asked the customer and tellers to "go look at someone," telling them they had apprehended someone; "that they had arrested a suspect." All of this happened within five, ten or fifteen minutes after the robbers left the bank. The three witnesses went with the police officer a couple of blocks down the street to the intersection of West Florissant and Park Lane to see appellant. Each of the three witnesses immediately and positively identified appellant as one of the robbers. When observed by them appellant was in police custody, handcuffed, and uniformed officers were standing around him.

Appellant's first point:

"The trial judge erred in refusing to suppress the pretrial identifications of witnesses Zelma Winston, Ruth Burks and Kraig Lange and in allowing their in-court identification because the original showup was so impermissibly suggestive as to give rise to substantial likelihood of irreparable misidentification and because the in-court identification did not have an independent basis, in that the showup was conducted while the defendant was handcuffed, next to a police car, flanked by police officers and in other circumstances that were unduly suggestive and in that the witnesses were all influenced by statements made to them prior to the showup by police officers all resulting in a deprivation of due process for the defendant."

The refusal of the Court to suppress the pre-trial identifications has not been properly preserved for review because "(n)o objection was made when the witnesses identified defendant at the trial nor when they described the manner of their initial identification." State v. Ethelbert, 611 S.W.2d 379, at 381 (Mo.App.1981). The alleged error was not briefed as plain error, but the Court will review the point sua sponte because a federally guaranteed constitutional right of the defendant is involved. State v. Garrett, 564 S.W.2d 51, at 52 (Mo.App.1978).

Appellant argues that the confrontation between appellant and the three witnesses was impermissively suggestive because the witnesses were under great stress and excitement and did not focus all their attention on the robbers, but were looking at the guns and the other witnesses; that the robbers were wearing masks which prevented the witnesses from seeing their facial features; that their vision was obstructed by the robbers not facing them at all times; that their opportunity to view the robbers was minimal. Appellant points out discrepancies in the tellers' descriptions of the clothing worn by the smaller of the two robbers, and that the customer could not describe any of the clothing worn by the robbers. Appellant maintains that the statements made by the police officers to the witnesses prior to the show-up were so suggestive that they gave rise to a substantial likelihood of mistaken identification-that their statements suggested that the police believed the man apprehended was a guilty party. Appellant brands the show-up as unduly suggestive because conducted next to a police car with appellant in custody, flanked by police and handcuffed. Appellant contends there is no evidence indicating that a lineup (rather than a show-up) could not have been conducted, arguing that one-on-one show-ups raise serious doubts about the accuracy of human perception and recognition.

There was no impropriety in conducting a show-up instead of a lineup. A show-up was the proper identification procedure under the exigencies of the situation. A robbery had occurred only minutes before. The robbers, fleeing on foot, were in the immediate vicinity. Several police officers were on hand, conducting an intensive neighborhood search. When appellant was arrested, a speedy determination of the question whether he was one of the robbers was imperative. If appellant should be identified the search would continue for the other robber. If absolved by the witnesses, the search for the two robbers could continue while the trail was hot. There was no time to stop and organize a lineup.

The record does not bear out appellant's contention that statements were made to the witnesses suggesting in effect that the police believed the man apprehended was a guilty party. Some intimation, implication or suggestion that officers suspect a subject presented to witnesses inevitably inheres in every show-up, else why conduct a show-up? The true question is whether the show-up is impermissively suggestive. Simms v. State, 568 S.W.2d 801, 803 (Mo.App.1978). The organization and conduct of this show-up was free from undue suggestion. In inviting the witnesses to view appellant the police officers did not indicate their belief that appellant was one of the robbers. Witness Lange testified that the police notified them that "they had apprehended someone, and they wanted us to come down and look at him. * * * (T)hey informed us that they had a suspect down the street that they had arrested, and they put us into a car and drove us two blocks down the street;" that up to the time appellant was identified nobody suggested to Lange "that that was a robber or anything like that. * * * (T)hey asked us if that was the man who robbed the savings and loan." Witness Winston, asked what the police said to her, responded "I wasn't told anything. * * * (A) police officer came into the bank and asked us to come * * * go look at someone * * *." ...