State v. King, 52671
| Decision Date | 01 March 1988 |
| Docket Number | No. 52671,52671 |
| Citation | 748 S.W.2d 47 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Charlie G. KING, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Doris Gregory Black, St. Louis, for defendant-appellant.
William L. Webster, Atty. Gen., Scott L. Templeton, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Defendant appeals from his convictions by a jury of kidnapping, armed criminal action and unlawful use of a weapon. He was sentenced to seven years, twenty years and two years respectively, the sentences to be served concurrently. He challenges the convictions on seven grounds, none involving the sufficiency of the evidence. Defendant was acquitted of a fourth charge--attempted rape.
The victim was a student at St. Louis University. On her way from the library to her residence hall a man holding a knife ordered and then forced her into a parked car. This was observed by a fellow student who alertly memorized the license number and a description of the vehicle. That student immediately called the campus police. Once in the car the assailant put the knife down as he started the car and the victim grabbed it and tried to open the car door. The assailant accelerated causing the door to slam shut and a struggle for the knife ensued with the assailant prevailing. The assailant told the victim he intended to kill her, pointed the knife at her, ordered her onto the floor of the vehicle and directed her to remove her pants. The victim went to the floor and pulled her pants down to her ankles. After a short ride the victim succeeded in opening the car door and fell to the pavement carrying with her a book bag which she had been carrying. Throughout the encounter she observed the assailant.
The victim ran down the street and encountered two other students. Campus police, alerted by the prior call of the abduction, quickly located the three students and were shortly joined by City police. In the meantime the City police dispatcher broadcast the fact of the abduction, the description of the vehicle, the license number, and the name and address of the owner. The address was in close proximity to the University. Two officers went immediately to that address and parked. Within five to ten minutes the described vehicle entered the parking lot. Defendant was the driver of the vehicle. He was also the owner. He was immediately arrested and searched. Defendant was carrying an open pocket knife in his boot, and was wearing a baseball cap. On the floor of the car under the driver's seat the police found a blue knit pullover cap containing the victim's wallet, glasses case, symphony ticket stubs and other personal property. These had been in the book bag when the victim left the library.
The victim, the student who observed the abduction and one of the students who first encountered the victim were immediately taken to the parking lot. The student who observed the abduction made a tentative identification of the defendant as the abductor. When the baseball cap was removed and the pullover cap substituted, the witness made a positive identification. The victim subsequently made a tentative identification of the defendant while wearing the baseball cap but stated that was not the cap he was wearing. When the pullover cap was substituted, she immediately made a positive identification. At the time of his arrest, defendant stated, "I suppose you're going to tell me I was wearing two hats." Both witnesses identified defendant at trial. At the parking lot the victim also identified the knife, the automobile, and her personal belongings found in the defendant's vehicle. The victim's fingerprints were found on the inside of the passenger window of defendant's car.
The abduction occurred shortly after nine p.m. The 911 call from campus security to the city police occurred prior to 9:23 p.m., the City dispatcher's first report went out at 9:23 p.m. Prior to defendant's arrest the dispatcher stated the victim described the assailant as "a black male, 35 to 45, medium build, wearing a dark knit cap." At 9:36 p.m. police reported to the dispatcher that the defendant had been arrested and by 9:39 p.m. the police were on their way to the parking lot with the victim, a drive of less than five minutes. The identifications were made within 45 minutes of the abduction.
Defendant produced a series of character witnesses and himself in defense. His testimony was that he was home alone on the evening in question and was sleeping. At approximately 11 p.m. he awoke and went to a nearby store. Upon his return he was arrested. He denied that the victim had been in his vehicle and asserted that her belongings and the pullover cap had been planted by the police. The defense attempted to explain the victim's fingerprints as having been put there by the victim when she was examining the car at the parking lot. The thrust of defendant's testimony was that the victim, the three witnesses to her plight, four patrol officers, and the evidence technician had lied about the time of the occurrence. The state introduced in rebuttal the tape of the 911 calls and the dispatcher's broadcasts which contained the times involved in the incident.
Defendant first challenges the identifications by the victim and the witness to the abduction as based upon an unduly suggestive procedure at the parking lot. Specifically defendant asserts that the identifications were based solely upon the blue pullover cap. The courts have consistently upheld one-on-one identifications made shortly after the commission of the crime as a reasonable means to provide a basis for immediately charging or releasing the suspect. State v. Bynum, 680 S.W.2d 156 (Mo. banc 1984) [1-4]; State v. Williams, 717 S.W.2d 561 (Mo.App.1986) . Both witnesses here tentatively identified the defendant while wearing the cap he wore when arrested but both expressed some doubt because the cap was different. There was nothing unreasonable or unduly suggestive about placing on defendant's head a cap found in his possession at the time of his arrest which matched the description given by both witnesses of the cap he was wearing at the time of the offense forty-five minutes earlier. The thrust of defendant's argument is that a witness identification must be based upon facial or physical characteristics only. Such is not the law. Clothing is an important part of the overall picture upon which an identification is based. State v. Pettit, 719 S.W.2d 474 (Mo.App.1986) .
Defendant relies upon certain aspects of the testimony of each of the witnesses as demonstrating that each one's identification was based solely on the pullover cap. We find that a complete reading of the testimony reflects that both witnesses strongly believed defendant to be the abductor without the pullover cap and were positive about his identity with the cap. We find nothing unduly suggestive about the identification procedure.
If there was any suggestiveness it was more than overcome by the reliability of the identifications. Reliability is the linchpin in determining the admissibility of the identification. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977) S.Ct. [3, 4]; State v. Williams, supra. Utilizing the five part test set forth in Manson, supra, S.Ct. , it is clear that the victim had considerable opportunity to view her abductor in a setting where her attention was necessarily keen. Her description immediately after the incident was essentially accurate, her degree of certainty at the confrontation was high, and the confrontation occurred almost immediately after the crime. The witness to the abduction had a lesser time to observe defendant but it is obvious he had an extremely high level of concentration as evidenced by his memorizing the license number and his immediate call to the police. His description of defendant was general but accurate, he was certain of his identification and the confrontation occurred immediately after the incident. Further, it is dubious, in view of the facts developed, that...
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Prince v. Bowersox
...131 S.W.3d at 807-08. This same result was reached in Ivy v. State, 81 S.W.3d 199, 206-08 (Mo.App. W.D.2002), and in State v. King, 748 S.W.2d 47, 50 (Mo.App. E.D.1988).In contrast, in State v. Couts, 133 S.W.3d 52, 53 (Mo. banc 2004), our Supreme Court concluded that use of a weapon by sho......
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State v. Davis
...under Count V violate the legislative intent of § 556.041(3) and hence subject him to double jeopardy. The argument cites State v. King, 748 S.W.2d 47 (Mo.App.1988). In King, the defendant was convicted of unlawful use of a weapon and armed criminal action and was sentenced cumulatively. Th......
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State v. Prince, WD 70337.
...131 S.W.3d at 807-08. This same result was reached in Ivy v. State, 81 S.W.3d 199, 206-08 (Mo.App. W.D.2002), and in State v. King, 748 S.W.2d 47, 50 (Mo.App. E.D.1988). In contrast, in State v. Couts, 133 S.W.3d 52, 53 (Mo. banc 2004), our Supreme Court concluded that use of a weapon by sh......
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Ivy v. State, WD 59494.
...specifically prohibited cumulative punishments for the same act covered by both Sections 571.015 and 571.030(4). State v. King, 748 S.W.2d 47, 50, n. 1 (Mo.App.1988). The armed criminal action statute, § 571.015.4, specifically excludes from its application "felonies defined in sections .........