State v. McIntosh
| Citation | 546 S.W.2d 756 |
| Decision Date | 31 January 1977 |
| Docket Number | No. KCD,KCD |
| Parties | STATE of Missouri, Respondent, v. Danny R. McINTOSH, Appellant. 28225. |
| Court | Court of Appeal of Missouri (US) |
Thomas M. Larson, Public Defender, Lee M. Nation, Asst. Public Defender, Kansas City, for appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
Before WASSERSTROM, P.J., and SOMERVILLE and TURNAGE, JJ.
By information defendant was charged with robbery in the first degree by means of a dangerous and deadly weapon. He was tried by a jury and convicted. Pursuant to Rule 27.04 the court reduced the fifteen year sentence assessed by the jury to a term of seven years imprisonment. Defendant timely appeals, claiming that the trial court erred in overruling his motion to suppress pretrial and in-court identification by one witness. We affirm.
A brief summary of the facts is sufficient since defendant does not question the adequacy of the evidence to sustain his conviction. Ray's Over 21 Bookstore located in Kansas City, Missouri, was robbed on December 30, 1974, during daylight hours by two black men. Mildred White, the witness whose identification testimony is challenged, was working at the counter of the bookstore when the robbery occurred. White initially observed the robber subsequently identified as the defendant face to face at a distance of eight to ten feet. Then, with a gun in his left hand, the robber grabbed White and told her to lie on the floor. She observed the robbers standing by the cash register while she was lying on the floor. Following the robbery between $140 and $160 was missing from the cash drawer.
White provided the police with a detailed description of the appearance and clothing of both robbers. During the next seven weeks the police showed her at least two sets of photographs. From one of the sets of photographs, White tentatively selected defendant's picture, cautioning the police that she would have to see him in person to make a positive identification. Approximately two months after the robbery she positively identified defendant as one of the robbers when she viewed a lineup composed of four black males of similar age and physical appearance.
At one point during these identification procedures, the police suggested to White that Dennis Burns was one of the robbers. White could not positively identify Burns either by photograph or lineup. The police never made any suggestions to her concerning defendant. At trial, White positively identified defendant as one of the robbers. The trial court overruled defendant's motion to suppress. Defendant's claim of error was preserved for appellate review and specifically attacks the above photographic identification procedures as constitutionally impermissible and unduly suggestive.
The cardinal requisite in any criminal trial is that the evidence show that defendant is the person who committed the offense. State v. Murphy,508 S.W.2d 269, 274 (Mo.App.1974). Despite the hazards of initial identification by photograph, the United States Supreme Court refused to apply a per se exclusionary rule for identification which utilizes pictures. Rather, that court held that, '. . . convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968).
Each case must be decided on its own facts and the validity of the identification evaluated in the light of the totality of circumstances. Necessarily, consideration must be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive...
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State v. Lingar, 68156
...415 S.W.2d 758, 760 (Mo.1967). The evidence must show that the defendant is the person who committed the crime. State v. McIntosh, 546 S.W.2d 756, 758 (Mo.App.1977). The procedure used at trial to identify the defendant lies within the prudent discretion of the trial court. State v. Hubbard......
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State v. Couch
...521, 523 (Mo.App.1988). Each case is to be examined on its own facts looking at the totality of the circumstances. State v. McIntosh, 546 S.W.2d 756, 758 (Mo.App.1977). The first question about identification is whether defendant was identified as Linda's assailant. Both Linda and Vicki ide......
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State v. Burns
...identification, apart from the previous photographic identification. This procedure was not impermissibly suggestive. State v. McIntosh, 546 S.W.2d 756, 758 (Mo.App.1977). See also State v. Reeder, 436 S.W.2d 629, 631 (Mo.1969). Furthermore, "Initial identification by photograph followed by......
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State v. Storll, 55147
...is no debate the state has the burden of proof of this fact. State v. Simmons, 760 S.W.2d 521, 523 (Mo.App.1988); State v. McIntosh, 546 S.W.2d 756, 758 (Mo.App.1977). An "in-court" identification, however, is not always required. Our Supreme Court so held in State v. Lingar, 726 S.W.2d 728......