State v. Mitchell, 38414
| Decision Date | 25 October 1977 |
| Docket Number | No. 38414,38414 |
| Citation | 558 S.W.2d 383 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. Johnnie MITCHELL, Defendant-Appellant. . Louis District, Division Two |
| Court | Missouri Court of Appeals |
Robert C. Babione, Public Defender, Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for defendant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Julian Cosentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
Defendant Johnnie Mitchell appeals from his conviction for the offense of robbery in the first degree with a dangerous and deadly weapon, §§ 560.120, 560.135, RSMo.1969. A jury fixed punishment at five years imprisonment.
As grounds for reversal, defendant argues that the trial court erred (1) in failing to sustain defendant's motion to suppress in-court identifications; and (2) in admitting evidence obtained by means of a warrantless search.
On February 3, 1975, John Gray, an employee of Chowmobile, was operating the mobile food vending service on the premises of the Brown Shoe Company in St. Louis. Gray was assisted by Nathaniel Holsey, age ten, who resides in a neighborhood near the Brown Shoe Company and who worked for Gray when the latter brought his food service operation to the Brown Shoe location. As he was preparing to close, Gray was approached from behind by a man carrying a gun. Gray turned, the man pulled the gun from his coat pocket, held the gun to Gray's face and demanded money. Gray gave the man the currency he had in his hand and a money changer containing coins, totaling approximately $120.00. Nathaniel Holsey witnessed the incident from a crouched position behind an automobile parked near the Chowmobile truck, out of view of the robber. The man fled on foot up Gamble Street, the street on which young Holsey lived.
When the police arrived, Gray offered a description of the robber, including his approximate age, height and weight, the clothes worn by him, and the fact that he wore a thin goatee and moustache. Nathaniel Holsey recognized the robber, indicating to the police that he had seen the man many times at a house on Gamble, down the street from Holsey's. Holsey led the police to the residence at 2707 Gamble, where several officers knocked and were admitted. Inside they encountered several women and five men, including the defendant. The five men were asked to step outside onto the front porch, where they were informally lined up. The officers requested identification, and as the defendant reached for his driver's license, a .32 bullet fell from his pocket. A pat-down search of all the men was conducted, and $8.60 in change and two more .32 bullets were discovered on the defendant's person.
Standing on the street with another police officer, Nathaniel Holsey positively identified the defendant as the robber from among the five men on the porch. Gray tentatively identified the defendant, and upon seeing defendant at closer range, positively identified him. Gray relied on his recollection of the defendant's facial features, the goatee and moustache, in identifying defendant as the robber. The identifications were made within thirty minutes following the robbery.
Subsequently, two officers conducted a search of the house and discovered a chrome-plated .32 revolver and a silver metal coin changer. Prior to trial, Gray was shown these items and identified the changer as his and stated that the gun was similar to that used in the robbery.
Defendant's first contention is that in-court identifications of defendant by Gray and Holsey should have been suppressed due to the lack of an independent basis for such identifications. In support of his contention, defendant points to the limited opportunity of Gray and Holsey to observe the robber at the time of the incident. Thus, it is argued, the basis for the in-court identification must have been the opportunity to view and identify defendant shortly after the incident as the latter stood on the front porch of the house on Gamble Street. If it is determined that this confrontation was "unnecessarily suggestive and conducive to irreparable mistaken identification," Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), then in the absence of an independent basis of identification, in-court identification testimony must be suppressed.
We hold that there was an independent basis for the in-court identification. In-court identification testimony is admissible if identification had an origin and was on a basis independent of the questioned confrontation....
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...details of the questioned lineup procedures for impermissible suggestiveness. State v. Ross, 502 S.W.2d 241 (Mo.1973); State v. Mitchell, 558 S.W.2d 383 (Mo.App.1977). The factors the court must examine to isolate an independent basis for identification are set out in Neil v. Biggers, supra......
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