State v. Jones, 52207

• Decision Date: 23 June 1987
• Docket Number: No. 52207,52207
• Citation: 735 S.W.2d 87
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Anthony L. JONES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 87

735 S.W.2d 87

STATE of Missouri, Plaintiff-Respondent, v. Anthony L. JONES, Defendant-Appellant.

No. 52207.

Missouri Court of Appeals,

Eastern District,

Division Three.

June 23, 1987.

Motion for Rehearing and/or Transfer Denied July 30, 1987.

Application to Transfer Denied Sept. 15, 1987.

Mary Elizabeth Dockery, Asst. Public Defender, Clayton, for defendant-appellant.

William L. Webster, Atty. Gen., Terry Allen, Deputy Atty. Gen., Jefferson City, for plaintiff-respondent.

KAROHL, Judge.

Defendant was charged with a Class "C" felony of stealing from a person. Section 570.030 RSMo 1978. He was charged and tried as a prior offender because of a prior plea of guilty to a Class "C" felony. Section 558.016.1 RSMo Cum. Supp.1984. The defendant testified that at the time of the commission of the crime he was at home in bed. The jury found defendant guilty of the charged offense and the court sentenced defendant to a term of three years. Defendant appeals on three grounds. First, defendant claims the identification testimony of the prosecuting witness was tainted by unduly suggestive pretrial procedures. Second, defendant claims the court erred in giving a verdict directing instruction which failed to specify the time of day the alleged offense occurred. Last, defendant claims the court erred in failing to give a requested alibi instruction.

The following evidence offered by the state supports the jury verdict. On March 29, 1985, at approximately 3:20 a.m., Denise Kirby visited a White Castle restaurant in Berkeley, Missouri. She remained in an automobile while her companion, Robert Gobel, entered the restaurant. Gobel there saw three men, one of whom he identified at trial as defendant. The three men left the restaurant and stopped at the car in which Kirby was sitting. The men stood in front of the car for approximately five minutes while attempting to talk with her. They entered a nearby car. They backed up and parked next to her. By her testimony one of the men who had spoken to her earlier, walked up to her car, reached his hand through the window and pulled gold chains from her neck. The three men then drove away.

Kirby immediately reported the events to Mr. Gobel. They pursued without success. However, they saw a Berkeley Police Officer nearby and gave him an oral and written statement about the crime, including a description of the three men.

On May 17, 1985, while at the Brass Rail nightclub in St. Louis with Gobel, Kirby identified the defendant as the man who stole the gold chains from her on March 29, 1985. She reported the identification to a security officer. The security officer confronted defendant. Defendant denied stealing the chains, but when informed that the St. Louis City Police would be called, fled the scene.

Kirby discovered from others at the Brass Rail that the man she identified was Anthony Jones and that he lived in Berkeley, Missouri. The following day Kirby called the Berkeley Police Officer assigned to her case. She told the officer what had occurred the night before and gave the officer defendant's name. Later the same day she was requested to come to the Berkeley Police Station and view some photographs. She considered five photographs of possible suspects. She identified defendant as the man who had stolen the chains from her and who she had seen at the Brass Rail.

On June 5, 1985, Gobel viewed the same five photographs and identified defendant as the man he saw at White Castle on March 29 and at the Brass Rail on May 17. At trial, both Kirby and Gobel identified the defendant as the man they saw at White Castle and at the Brass Rail.

Defendant first claims that the identification testimony was a product of unduly suggestive pretrial procedures and should have been stricken. Defendant did not object to any identification testimony at trial. Under these circumstances the issue is not preserved for appellate review. State v. Thompson, 695 S.W.2d 154, 156 (Mo.App.1985); State v. Mayes, 671 S.W.2d 361, 364 (Mo.App.1984). Our review is limited to one of plain error. Rule 30.20.

Before invoking the plain error doctrine defendant must make a strong showing that the trial court error resulted in manifest injustice. State v. Arnold, 676 S.W.2d 61, 63 (Mo.App.1984). The appellant bears the burden of showing manifest injustice. See, State v. Robinson, 680 S.W.2d 292, 293-294 (Mo.App.1984).

For several reasons we reject this claim of error. First, the record does not support defendant's claim that the photographs were unduly suggestive. Defendant claims that the photographs bore the names of the individuals, but the witnesses testified to the contrary.

Second, even if a photographic lineup is unduly suggestive it is not error to thereafter admit identification testimony when the identification is otherwise independently reliable. It is the reliability and not the suggestiveness of an identification that supports admissibility. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); State v. Thompson, 695 S.W.2d 154, 156 (Mo.App.1985). An out-of-court identification procedure that is suggestive does not invalidate a reliable in-court identification. State v. Littleton, 649 S.W.2d 225, 227 (Mo. banc 1983).

In determining reliability a court must consider: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness' degree of attention; 3) the accuracy of the witness' prior identification; 4) the level of certainty demonstrated by the witness at the time of the identification; and, 5) the length of time between the crime and the identification. State v. Robinson, 641 S.W.2d 423, 427 (Mo. banc 1982), citing State v. Charles, 612 S.W.2d 778, 780 (Mo. banc 1981).

A review of the record indicates that the identification proceedings were not unduly suggestive and that the in-court identification was positive and reliable. Kirby had ample time to view the man who stole her gold chains; her testimony indicates that the man stood outside her car for approximately five minutes. Because of his efforts to engage in a conversation with her she had reason to have made more than a casual observation. Nothing in the record indicates her description shortly after the events was inaccurate. She was sufficiently positive of her identification of the defendant, both at the photo lineup and at trial. The time delay of six weeks between the date of the theft and the identification is of no consequence. As a matter of plain error defendant's first claim of error fails.

The court submitted a verdict directing instruction patterned after MAI-CR 2d 24.02.1. Defendant's second claim of error before this court relates to that part of the instruction which informed the jury that in order to make a finding of guilty it must find and believe from the evidence beyond a reasonable doubt "that on or about March 29, 1985, in the County of St. Louis, State of Missouri, the defendant appropriated three (3) gold chains in the possession of Denise Kirby and without her consent." The objection at trial to this instruction was that the state failed to make a submissible case for failure to prove "that the defendant was at the place where he was, at the place she said, on March 29, 1985." This objection was subordinate to defendant's request for an alibi instruction. The prosecuting attorney replied to defendant's objection on the ground that alibi was not noticed as a defense in pretrial discovery. He also recalled defendant's testimony, on cross examination, was equivocal about whether he was at home at the time the crime was committed. Defendant's argument to this court is not based upon an issue of submissibility. The claim of error here is that because of the alibi defense, time of day was significant and the failure in the instruction to state the time nullified defendant's alibi.

We reject this claim of error. First, the instruction followed the pattern of MAI-CR 2d 24.02.1. Under those circumstances we are not authorized, by decision, to alter the approved instructions. State v. Toney, 680 S.W.2d 268, 278 (Mo.App.1984).

Second, neither the trial court objection nor the motion for new trial claimed error in the verdict directing instruction for failure to specify the time of day. Our review of this point is therefore limited to a question of plain error. State v. Mondaine, 655 S.W.2d 540, 544 (Mo.App.1983). The fact issue was fully developed by opposing testimony which supported and did not deprive the defendant of an argument that he was not on the scene at the time the crime was committed. No manifest unfairness is involved. We find no error plain or otherwise.

The difficult issue in the present case is defendant's claim of trial court error in failing to submit a requested alibi instruction patterned after MAI-CR 2d 3.20. The state concedes this was error. This instruction is required when requested providing that it is supported by evidence, even if only by defendant's testimony. It is well settled in...