State v. Littleton
|649 S.W.2d 225
|26 April 1983
|STATE of Missouri, Respondent, v. Bennie LITTLETON, Jr., Appellant.
|United States State Supreme Court of Missouri
Scott Richardson, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals conviction of robbery in the first degree, § 569.020, RSMo 1978, and sentence as a persistent offender to life imprisonment, § 558.016. The case was submitted before the December 2, 1982 amendment to Art. V, § 3 of the Missouri Constitution divesting this Court of exclusive appellate jurisdiction in life imprisonment cases and is retained for decision in the interest of judicial economy. State v. Martin, 644 S.W.2d 359, 360 (Mo. banc 1983).
The sole assertion on appeal is that the trial court erred in admitting the victim's in-court identification of defendant.
Viewed most favorably to the State, the evidence established that on February 20, 1981, at approximately 9:00 p.m. Joseph Brown was approached by a jogger as he placed a package in his car on Olive Street in University City. Intent upon his task, Brown paid the jogger little heed until he pulled a sawed-off shotgun from a bag and demanded Brown's money. Understandably this caught Brown's attention, who turning toward the assailant saw the muzzle of the shotgun about a foot from his ribcage. Protesting that he had no money except change, he was ordered to hand it over, turn around, and remove his wallet from his back pocket. Complying with those directions he then was ordered to face the gunman and turn his pockets inside out. Brown again turned and emptied the contents of his pockets, including a $50 bill, onto the ground. The gunman picked up the bill and ran to a waiting tan automobile which he entered on the passenger side. The car backed quickly from sight into a side street.
Almost immediately Brown heard a loud crash, and then creeping along the side a building and peeking around the corner, he saw the tan car approximately seventy-five feet away wedged inside a garage.
About that time, University City police officer Lipe, responding to a possible-robbery-in-progress call, arrived at the scene and saw the tan automobile crash into the garage. When two men emerged from the passenger side and started running, Officer Lipe pursued one of the suspects, later identified as the defendant, on foot. Defendant ran west on Olive Street until he reached an autobody shop surrounded by a twelve-foot cyclone fence topped by strands of barbed wire. It seems, however, that this was not to be one of defendant's better days. Approximately 100 feet ahead of the policeman, defendant climbed the fence and dropped into the shop yard. Unfortunately (from defendant's point of view) the yard was patrolled by two German Shepherd dogs which prompted an immediate rescaling of the fence, and as defendant dropped back onto the sidewalk, he did so into a waiting circle of policemen and immediate arrest. A sawed-off shotgun and blue jacket similar to that worn by the gunman were discovered on the ground near the passenger door of the tan car.
Shortly after the arrest, Brown was driven to a place where he viewed defendant. When told to face the car in which Brown was sitting, defendant refused to cooperate and kept turning his head away. As a result, Brown was not afforded a good look at defendant's face and could not positively identify him.
At defendant's preliminary hearing, eleven days after the robbery, Brown positively identified defendant as the man who robbed him. At trial, Brown again positively identified defendant as his assailant. Defense counsel's pretrial and trial motions to suppress Brown's in-court identification of the defendant were overruled. Defendant contends these rulings were erroneous because Brown's in-court identification was the product of the preliminary hearing identification, which was made under circumstances so suggestive and conducive to irreparable misidentification that admission of evidence based on such confrontation denied him due process of law. There is no merit in this contention.
Assuming arguendo that defendant's preliminary hearing was impermissibly suggestive, a conclusion we do not reach, we find no want of due process in the trial court's rulings on Brown's identification testimony. As this Court noted in State v. Higgins, 592 S.W.2d 151, 160 (Mo. banc 1979), Even if an out-of-court identification procedure is deemed...
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