State v. Jones

• Decision Date: 07 December 1976
• Docket Number: No. 36112,36112
• Citation: 545 S.W.2d 659
• Parties: STATE of Missouri, Respondent, v. Louis JONES, Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 659

545 S.W.2d 659

STATE of Missouri, Respondent, v. Louis JONES, Appellant.

No. 36112.

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

Dec. 7, 1976.

Motion for Rehearing or Transfer Denied Jan. 14, 1977.

Application to Transfer Denied March 14, 1977.

William J. Shaw, Public Defender, Timothy A. Braun, Asst. Public Defender, Clayton, for appellant.

John C. Danforth, Atty. Gen., W. Mitchell Elliott, Asst. Atty. Gen., Jefferson City, for respondent.

ALDEN A. STOCKARD, Special Judge.

Appellant, Louis Jones, was convicted by a jury of assault with intent to kill with malice aforethought, and of robbery in the first degree by means of a dangerous and deadly weapon. The jury was unable to agree on the punishment and the trial court imposed a sentence of life imprisonment for each offense, the sentences to be served consecutively.

Appellant does not challenge the sufficiency of the evidence. We shall, therefore, summarize the facts which reasonably could be found by a jury.

A little after 1:00 o'clock in the morning of March 18, 1972, several young black persons, including appellant, armed with various weapons, entered a tavern named Cousin Hugo's in Maplewood, Missouri, and robbed the patrons, estimated to have been between 75 and 100 persons. During the course of the robbery a patron was shot, a barmaid, Sandra Clemens, was stabbed, and two patrons were killed, one by a stab wound and the other, an off-duty police officer, by being shot in the head from close range with a shotgun while he lay face down on the floor.

Shortly after the incident at Cousin Hugo's the police learned that Lucious Toney and appellant had been seen in the neighborhood, and Sergeant Boulch and two officers went to a house on Dumas Street where they found Lucious Toney's mother. When she saw the police officers she became very excited and ran down the street shouting, 'Lucious, Lucious, police.' She stopped at a house located around the corner at 1338 Banneker Street. There the police officers spoke to Lucious Toney who gave them permission to enter. Inside the house the police found three other black persons, including appellant, various weapons, and numerous items such as billfolds, credit cards, driver licenses and purses, all of which belonged to the victims of the robbery at Cousin Hugo's.

Appellant's first point is that the trial court erred in admitting into evidence the in-court identifications of appellant by Sandra Clemens and Joyce Sullivan, and also the testimony by these two persons 'of extra-judicial identifications' of appellant.

Sandra Clemens was employed at Cousin Hugo's. She testified at the trial that five black men entered the tavern, one of whom was appellant, and that after he stabbed a dog that was in the bar, he leaped over the counter and forced her to place money from the cash register into a bag that he had and then stabbed her in the abdomen. She made a positive in-court identification of appellant as that person. She did not view a lineup. After she was released from the hospital she was shown photographs and 'the photograph of (appellant) looked familiar,' but she was not able to 'specifically identify him from the picture.' On cross-examination appellant brought out for the first time that she was shown a 'video tape' and pictures of two lineups. She did not testify that she identified appellant in the video tape showing or in the pictures.

Joyce Sullivan was a patron at Cousin Hugo's, and she testified that she saw two black men enter the front door who were immediately followed by three more black men. She positively identified appellant at the trial as the second person to enter. She also testified that she attended a lineup a few days later and that she there identified appellant as one of the persons she had seen at Cousin Hugo's.

Prior to trial appellant filed a motion to suppress testimony of identification, and after a hearing the court held that the lineups were fair, untainted and not suggestive; that the photographs of the lineups were fair and not suggestive; that there was no evidence of any taint or suggestiveness by prosecuting officials or police, and that the identification testimony of the witnesses was proper and that it had an independent source. The trial court however noted that 'witness Sandra Clemmons * * * never viewed any corporeal lineups; that Clemmons was stabbed and went to the hospital; that she has never viewed (appellant) since the incident herein and may never be able to make an in-court identification; * * *.' The court then directed that Sandra Clemens 'cannot make an in-court identification until at trial the Court conducts a further * * * hearing to determine whether (her) in-court identification is based upon a photograph of (appellant) or an independent source from (her) knowledge of what (she) saw in Cousin Hugo's.' It was further directed that the prosecuting attorney and the police 'not * * * show any photographs of (appellant) * * * until the hearing' was held. A further hearing was held on October 2, 1973. Sandra Clemens then observed appellant in person for the first time after the incident at Cousin Hugo's, and she positively identified him as the person who stabbed her. She testified that she based her identification on her observation of him at the time of the incident at Cousin Hogo's, and her observation of his eyes and skintone. The trial court ruled that Sandra Clemens could testify to an in-court identification, thereby holding that there was an independent basis for the in-court identification.

Appellant presents a 92-page argument and cites 85 cases in his brief in support of his first point. Much of that argument appears to be directed to the issue of whether the testimony concerning identification should be believed, an issue for the jury, rather than to the legal issue of whether the testimony concerning identification was admissible.

In substance, appellant's contention is that the pretrial identification procedures were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification and thereby tainted the in-court identifications. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), it was held that such a contention 'must be evaluated in light of the totality of surrounding circumstances.' When so viewed, the determination of whether pretrial identification was 'impermissibly suggestive' is governed by three principles: (1) the presence of an independent basis of identification; (2) the absence of any suggestive influence by others; and (3) positive in-court identification. State v. Jones, 531 S.W.2d 67, 70 (Mo.App.1975).

We shall examine the issues pertaining to the preparation and use of the lineups. Appellant was placed in two lineups, the first being hold on March 18, 1972, a few hours after he was arrested. Neither Sandra Clemens nor Joyce Sullivan viewed that lineup, and there was no testimony in this case that anyone who viewed that lineup identified appellant as one of those participating in the robberies and other offenses. A few days later on March 21 a second lineup was held. Sandra Clemens did not view this lineup, but it was on this occasion that Joyce Sullivan identified appellant. The lineup contained ten persons, all dressed the same and who were reasonably uniform in height and coloring. In State v. Hill, 539 S.W.2d 521 (Mo.App.1976), this court reviewed the procedures under which the lineups were held, and it ruled as follows: 'The record reveals no constitutional infirmity in the conduct of the lineups.' We find nothing in the record of this case that would justify a different conclusion. See also State v. Davis, 547 S.W.2d 482 (Mo.App.1976).

Appellant makes much of the fact that although Sandra Clemens did not view either of the lineups, she was subsequently shown video tapes and pictures of the lineups. There is no contention that when she viewed the video tapes and looked at the pictures any improper suggestions were made to her, and we fail to see how it could be improper for her to have viewed the video tapes and pictures of the lineups when it would not have been improper for her to have viewed them in person. We also note that although it appeared to Sandra Clemens that of those persons in the lineups, appellant 'most resemble(d) the person' who stabbed her, she stated that from the tapes and pictures she could not positively identify anyone. The conduct of the lineups, and the showing to Sandra Clemens of the video tapes and pictures of the lineups could not possibly have resulted in any impermissible pretrial identification procedures.

In further support of his contention that the in-court identifications were tainted by pretrial procedures, appellant relies on the fact that the prosecutor conducted a 'reenactment' of the crimes at Cousin Hugo's. The propriety of such reenactment and the use of photographs in doing so was the subject of a ruling in State v. Hill, supra at pp. 527--528, and it was held that 'The reenactment * * * was for the purpose of establishing how the crime occurred and the parts played by the various defendants. It was not meant for purposes of identification nor was it so used.' We adopt by reference the ruling in the Hill case to the contention here made.

Appellant also argues strenuously that there was no, or perhaps an inadequate, independent basis of identification on the part of Sandra Clemens and Joyce Sullivan, but the argument is devoted only to the circumstances pertaining to Sandra Clemens. We therefore deem the contention to be abandoned as to Joyce Sullivan. The issue of whether there existed an independent basis for the in-court identification is usually presented when there is a defect in the pretrial lineup procedures, and then, as stated in United States v. Wade, 388 U.S. 218, 240, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149 (1967), the prosecution should have an 'opportunity...