State v. Moore, s. 66997
| Decision Date | 11 June 1996 |
| Docket Number | Nos. 66997,68389,s. 66997 |
| Citation | 925 S.W.2d 466 |
| Parties | STATE of Missouri, Respondent, v. Gary MOORE, Appellant. Gary MOORE, Appellant, v. STATE of Missouri, Respondent. . Division Three |
| Court | Missouri Court of Appeals |
Rose M. Wibbenmeyer, Office of the State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant appeals from a judgment following his conviction by a jury of burglary in the first degree and his sentence by the court as a class X offender to 15 years imprisonment. He also appeals denial of his Rule 29.15 post-trial motion but has raised no challenge to that in this court and so has abandoned that appeal. We affirm.
The victim, Gwendolyn Sprull, was awakened in her home in the early morning hours by noises coming from the kitchen. She arose and walked into a hallway lit by a 100 watt bulb in the adjoining bathroom. She saw a man standing in the kitchen about ten feet away from her. She screamed and ran to her bedroom. Police who were patrolling the neighborhood were stopped by her husband and they interviewed Mrs. Sprull. She described the intruder as a light-skinned black male, roughly five foot six to eight wearing dark pants and a dark jacket.
Shortly thereafter other police officers came to the Sprull house and requested Mrs. Sprull to come with them to identify a suspect. She was driven to a location where she saw a black man wearing black pants and black shirt talking to police, without handcuffs. She stated he was not the man in her kitchen. Thereafter, she was requested to walk to another location to view a suspect caught by a police department dog. She went to the location where she saw a suspect handcuffed and surrounded by several policemen. She identified that suspect, the defendant, as the intruder.
Defendant raises two issues on appeal. The first is that the trial court erred in allowing into evidence the "show up" identification because defendant contends that it was impermissibly suggestive and there was substantial likelihood of misidentification. The crucial test for the admission of identification testimony is two-pronged: (1) was the pre-trial identification procedure impermissibly suggestive, and (2) if so, what impact did the suggestive procedure have upon the reliability of the identification. State v. Hornbuckle, 769 S.W.2d 89 (Mo.banc 1989)[6,7]. "Impermissibly" is a key word in the first prong of the test. "Identification will be excluded only when the procedure was so suggestive that it gave rise to a very substantial likelihood of irreparable misidentification." Id.
Pre-trial showups are valid under Missouri law even where the subject is in handcuffs and the officers say defendant is a suspect. State v. Secrease, 859 S.W.2d 278 (Mo.App.1993); State v. Ballard, 657 S.W.2d 302 (Mo.App.1983). We find nothing impermissibly suggestive about the show-up here. It occurred very shortly after the burglary and the witness knew she was to view a suspect, otherwise there was no reason to have her go to the location. She had been to an earlier show-up with a suspect fitting the description she had given and she stated that suspect was not the intruder. We find no error in the trial court admitting the evidence of the show-up.
Defendant's second point is that the trial court committed reversible error in precluding defendant from talking with his lawyer during trial. Prior to voir dire the court stated:
The other thing I want to tell Mr. Moore, get yourself a legal pad of something, because during the trial you're not going to be allowed to talk at counsel table. If you have anything to say to Mr. Brayer or one of his associates, you do that in writing, okay?
No objection was made at that time. Immediately prior to the commencement of the state's case counsel for defendant told the court that his client was having difficulty communicating by paper because he doesn't write very well, "He has a very limited ability to write". The court refused to permit oral...
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