State v. Montgomery
| Decision Date | 11 March 1980 |
| Docket Number | No. 40967,40967 |
| Citation | 596 S.W.2d 735 |
| Parties | STATE of Missouri, Respondent, v. Daniel MONTGOMERY, Appellant. |
| Court | Missouri Court of Appeals |
Frank R. Fabbri, III, Asst. Public Defender, Robert C. Babione, Public Defender, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, James R. Cumbee, Lisa M. Camel, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
Defendant was convicted in the Circuit Court of the City of St. Louis of forcible rape and sodomy. Under the Second Offender Act, the court sentenced him to thirty years in the Department of Corrections for the offense of forcible rape and fifteen years in the Department of Corrections for the offense of sodomy, these sentences to run consecutively. Defendant appeals from that judgment.
The incident occurred on the morning of September 8, 1976. The prosecutrix had dropped her son off at school and was waiting to catch a bus on the corner of Maple and Goodfellow when a man who had been standing on another corner of these two streets, crossed the street and approached her. The man indicated that he had a gun, and that she would not be hurt if she did as he said. She was forced to accompany the man down the street to a vacant house and then compelled to enter a closet on the third floor of the building where from 8:30 a. m. to 12:00 p. m. he raped and sodomized her. After the man left her, the prosecutrix dressed and called the police who came to the scene. Nineteen days after the incident, the prosecutrix picked the defendant out of a lineup as the man who had committed the offenses.
As his first point, defendant claims that his Motion to Suppress Identification Testimony should have been granted because he was denied his right to have counsel present at the lineup. The lineup was conducted at police headquarters. Apparently, prior to the lineup, informations had been filed against defendant charging him with other offenses, 1 but no charges had yet been lodged against him as to this rape and sodomy.
It is clear that a "post-indictment (or post-information) pretrial lineup at which the accused is exhibited to identifying witnesses is a critical stage of the criminal prosecution" Gilbert v. California, 388 U.S. 263, 272, 87 S.Ct. 1951, 1956, 18 L.Ed.2d 1178 (1967), and that defendant is entitled to have counsel present at such a lineup. United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 1937, 18 L.Ed.2d 1149 (1967); State v. Nylon, 563 S.W.2d 540, 544 (Mo.App.1978). In Gilbert, the court adopted a per se exclusionary rule as to identification testimony offered at trial concerning a post-indictment lineup at which counsel for the defendant was not present. Id. 388 U.S. at 273, 87 S.Ct. at 1957. However, what has become known as the Wade-Gilbert exclusionary rule applies only to post-indictment lineups and not to lineups conducted prior to the commencement of formal criminal prosecution. Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 1882, 32 L.Ed.2d 411 (1972). Our Supreme Court has recently reaffirmed its adherence to Kirby in State v. Quinn, 594 S.W.2d 599 (Mo. banc 1979) wherein it stated: "(T)he rule remains the same that a pre-indictment, pre-information lineup is not a stage of the prosecution at which defendant(s) are constitutionally entitled to counsel."
Defendant urges us to extend the Wade-Gilbert rule to encompass situations, such as the one here, where the defendant has been formally charged with other offenses and is required to participate in a lineup for a crime which he has not yet been charged. This court declined such an invitation in our recent case of State v. Mason, 588 S.W.2d 731, 735 (Mo.App.1979) and we perceive no reason to deviate from the holding of that case here. We rule this point against defendant. 2
Defendant next argues that the lineup was so unnecessarily suggestive and conducive to misidentification as to deny him due process of law. We evaluate this claim in the light of the totality of the circumstances surrounding the lineup. Simmons v. United States, 390 U.S. 377, 382-83, 88 S.Ct. 967, 970, 19 L.Ed.2d 1247 (1968); State v. Bivens, 558 S.W.2d 296, 299 (Mo.App.1977), in order to determine if the lineup violated defendant's right to due process of law. Each case must be appraised on its own facts to ascertain if the pretrial confrontation was so "impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Neil v. Biggers, 409 U.S. 188, 197, 93 S.Ct. 375, 381, 34 L.Ed.2d 401 (1972); State v. Ralls, 583 S.W.2d 289, 291 (Mo.App.1979).
Three black males, including the defendant, were participants in the lineup. All three men were approximately the same height and weight. All three wore casual clothing, and two of the three men, one being defendant, had facial hair. One man had somewhat lighter skin than the defendant, and also had facial marks which the defendant did not have. The other man appeared to be somewhat younger than defendant. We have carefully examined the record and find no hint of any improper conduct on the part of the police insofar as their attempting to influence the victim's identification.
As we stated in State v. Bivens :
Mere showing of minor dissimilarities in physical appearance of lineup participants is insufficient to establish impermissible suggestiveness. Persons in a lineup will never be identical to one another. The law does not require exact conformity to insure an untainted identification procedure. The participants in a lineup need only be reasonably similar to one another so that no one individual clearly stands out from the rest. "Police Stations are not theatrical casting offices; a reasonable effort to harmonize the lineup is normally all that is required." (citations omitted)
Moreover, we also conclude that the victim's in-court identification had a basis independent of the lineup and was admissible even if the lineup was unduly suggestive. The victim was with the defendant for approximately three and one-half hours...
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