State v. Kirk, 62946

• Decision Date: 23 August 1982
• Docket Number: No. 62946,62946
• Citation: State v. Kirk, 636 S.W.2d 952 (Mo. 1982)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Eugene C. KIRK, Jr., Defendant-Appellant.
• Court: Missouri Supreme Court

Page 952

636 S.W.2d 952

STATE of Missouri, Plaintiff-Respondent, v. Eugene C. KIRK, Jr., Defendant-Appellant.

No. 62946.

Supreme Court of Missouri.

Aug. 23, 1982.

Martin, Bahn & Cervantes, James M. Martin, Herbert Diekemper, Jr., St. Louis, for defendant-appellant.

John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

BARDGETT, Judge.

Appellant Eugene C. Kirk was convicted by a jury of robbery in the first degree, § 569.020, RSMo 1978, and sentenced to life imprisonment as a persistent and dangerous offender pursuant to § 558.016, 1980 Laws of Mo. 495. This Court has jurisdiction. Mo.Const. art. V, § 3.

The sufficiency of the evidence is not questioned. This Court's review shows the evidence to have been sufficient to permit a jury to find appellant guilty beyond a reasonable doubt.

Under the evidence the jury could find beyond a reasonable doubt that at about 1:00 a. m. on Sunday, August 24, 1980, the appellant went into a restaurant in Richmond Heights, St. Louis County, Missouri, and, while holding the owner Joseph and his father John at gunpoint, robbed them of a substantial sum of money. Joseph and John were within a few feet of each other in a brightly lit, small room and both saw the robber's face very clearly. The appellant left firing one shot into a bottle.

On Monday, August 25, 1980, Officer Morris of the Richmond Heights police force was investigating a suspicious auto. He saw a black male, Noldun, ¹ get out of the car and walk about one block to a gasoline service station. Morris learned the suspicious auto was a stolen vehicle. Noldun went to another car in the service station which was occupied by appellant. Noldun motioned to appellant to move over. About then, Officer Morris spoke to Noldun and told him he wanted to ask him some questions. Officer Morris had radioed for a backup and two other police cars arrived-one driven by a Sergeant Wild and the other by Captain Curtis Wild. Captain Wild told Officer Morris to detain the two men, appellant and Noldun, there at the service station. The Captain then went to the restaurant about one block away, where he found one of the victims, John. He told John they had two men and asked John to go with him to look at them.

John went to the service station. He first saw Noldun, who was standing among some police officers, and told the Captain that Noldun was not the robber. John glanced in another direction and saw appellant sitting on a curb. John immediately said that was the robber and noted the appellant had a white sailor hat on his knee-the same type and color hat John saw the robber wear.

Appellant was arrested and subsequently Joseph was asked to view several men in a lineup. Joseph did so and saw one man struggling with the police-apparently he did not want to be in the lineup. Joseph recognized him as the robber after the police stood him up. It was the appellant.

Appellant Kirk filed timely pretrial motions to suppress all evidence of his showup and subsequent lineup identifications on the grounds that he was illegally detained without probable cause solely for the purpose of identification and that the pretrial identification procedures were impermissibly suggestive. An evidentiary hearing was held and the motion to suppress was overruled.

Appellant's first point on appeal contends that this was error. Both Joseph and John testified at trial and identified the appellant. No objection was made to that testimony. The point is not preserved for appellate review. State v. McCrary, 621 S.W.2d 266, 272 (Mo.banc 1981); State v. Bryson, 506 S.W.2d 358, 361 (Mo.1974). Nevertheless, the point will be reviewed ex gratia.

Appellant Kirk was detained at the service station during a routine investigation of a stolen auto. An individual who had just left a stolen vehicle attempted to get into appellant's car. When questioned, both men admitted knowing one another. The police officer who detained appellant had a reasonable suspicion with which to justify this detention. Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968); State v. Lasley, 583 S.W.2d 511, 518 (Mo.banc 1979). Kirk was actually arrested only after John positively identified him as the man who had robbed him. The arresting officer then had facts sufficient for a prudent person to believe Kirk had committed a crime. State v. Berry, 609 S.W.2d 948, 952 (Mo. banc 1980). Probable cause existed for the arrest.

Appellant also alleges that this identification was conducted in an impermissibly suggestive manner. The facts do not support such a contention. Appellant was sitting by himself on a curb at the gas station when John arrived. His companion was surrounded by police a short distance away. In spite of this, John immediately identified appellant, not the other individual, as the man who had robbed him.

The second out-of-court identification of which appellant complains was the lineup identification by Joseph. Having established that the arrest which preceded the lineup was valid, we need only to examine the lineup's alleged suggestiveness.

The lineup was held the day following the robbery. The height of three of the participants was between five feet six or seven inches, another participant was five feet ten inches tall. Appellant was six feet three inches tall. A lineup does not require exact physical conformity of participants, including height. State v. Proctor, 535 S.W.2d 141, 143 (Mo.App.1976). The first description of the robber given by Joseph and John approximated his height at around five feet ten inches. The other participants fitted this general description, yet Joseph immediately picked Kirk as the man who had robbed him. Joseph had been in a small, well-lit room with the robber for four minutes, his opportunity to observe him was excellent. None of these circumstances reveal an impermissible suggestiveness.

Appellant finally argues that the witness should not have been allowed to observe Kirk's struggles with police officers in the lineup. A pretrial lineup will not be deemed impermissibly suggestive where any suggestiveness was due to defendant's own contumacy and personal refusal to behave unobtrusively. State v. Radford, 559 S.W.2d 751, 753 (Mo.App.1977). Appellant's first point is overruled.

Appellant next argues that the in-court identifications were tainted by the impermissible out-of-court identifications. The central issue in identification questions is reliability. State v. Higgins, 592 S.W.2d 151, 160 (Mo. banc 1979). Had the out-of-court identification procedures in this case been deemed suggestive, they still would not invalidate a reliable in-court identification. State v. Kiplinger, 591 S.W.2d 207, 209 (Mo.App.1979). An in-court identification which is based on a recollection independent of the pretrial identification will be deemed proper. State v. Berry, supra, 609 S.W.2d at 953. Both witnesses were in a small, brightly lit office with the robber for approximately four minutes. His face was never covered. At trial, both were able to positively and unequivocally identify Kirk. These identifications were reliable. The point is overruled.

In his next point, appellant contends that the trial court committed plain error in allowing improper questioning of defense witnesses. Appellant's sister...