State v. Moore, 50912

• Decision Date: 27 January 1987
• Docket Number: No. 50912,50912
• Citation: 726 S.W.2d 410
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Keith Edward MOORE, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 410

726 S.W.2d 410

STATE of Missouri, Plaintiff-Respondent, v. Keith Edward MOORE, Defendant-Appellant.

No. 50912.

Missouri Court of Appeals,

Eastern District,

Division One.

Jan. 27, 1987.

Motion for Rehearing and/or Transfer Denied March 4, 1987.

Application to Transfer Denied April 14, 1987.

Holly G. Simons, St. Louis, for defendant-appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

SATZ, Presiding Judge.

Defendant Keith Moore was convicted by a jury of robbery in the first degree, § 569.020 RSMo. 1978, and was sentenced to ten years imprisonment. On appeal, defendant argues it was error for the trial court to deny his motion to suppress identification testimony and error to admit police photographs of him. We affirm.

On March 9, 1985, Ivan North was collecting insurance premiums for his employer. When he returned to his car, a van was beside it, waiting to park behind him. A man stepped between the vehicles, pointed a gun at North and then told him to place his hands and face on the car. North testified he had the opportunity to observe the robber in daylight for about five seconds. After taking about $270 from North, the robber fled.

There were two witnesses to this incident. The robber forced Roger Woods, the driver of the van, to keep his vehicle parallel with North's to block the view from the street. Woods observed the entire robbery through a rear view mirror of his van. Inez Taylor observed the entire incident from the doorway of her house, which faced the scene of the crime. Taylor testified she had an unobstructed view of the incident from about 20 feet away.

Police Officers Kranz and White arrived at the scene a few minutes later. North got in their patrol car to accompany them on a search of the neighborhood and gave them a description of the robber which they broadcast. The officers then gave North a stack of approximately ten photographs to examine. North testified the officers told him the photos were of "neighborhood troublemakers." North identified a picture of defendant as the man who robbed him. The officers returned to the crime scene where Woods and Taylor also identified defendant's picture as the man who committed the robbery.

Officers Kranz and White, along with other officers who responded to the scene went to defendant's residence to arrest him. North accompanied them. When defendant was brought out of his house, North told the officers defendant was the man who robbed him. A crowd had gathered in front of defendant's house, so the officers took North and defendant about a block away where North again identified defendant. North testified this confrontation took place twenty to twenty-five minutes after the robbery. Taylor was brought to this location by another officer and she also identified defendant. Woods identified the defendant later that evening in a lineup.

Defendant filed a motion to suppress all identification testimony of North, Taylor and Woods. After a pretrial hearing, the trial court denied defendant's motion. At trial, North, Woods and Taylor described their out-of-court identifications of defendant and North and Taylor made in-court identifications of defendant. Defendant's evidence consisted of attempts to weaken the accuracy of the identifications and the testimony of several alibi witnesses.

Defendant argues it was error to deny his motion to suppress and admit the identification testimony of North. This issue was not properly preserved for review. After the motion to suppress was denied, defendant made no objection to the identification testimony at trial and did not refer to it in his motion for new trial. State v. Greenlaw, 593 S.W.2d 641, 643 (Mo.App.1980). We review this issue only for plain error. Rule 29.12(b).

Defendant argues North's initial identification of him from a police photograph was unnecessarily suggestive. Defendant urges the photo array was suggestive because the use of police photos led North to believe the individuals pictured had been involved in similar incidents. A similar argument was made and rejected in State v. Enna, 664 S.W.2d 32 (Mo.App.1984). Using "mugshots" for a photo array does not suggest to the witness that among those persons pictured the defendant is the perpetrator. Id. at 35. The danger of suggestiveness arises from the use of a single photo or some emphasis on one photo in a group. Id. at 35. See also State v. Higgins, 592 S.W.2d 151 (Mo. banc 1979); State v. Toney, 680 S.W.2d 268 (Mo.App.1984). This did not occur here.

Defendant also argues the two "showup" identifications made by North were unnecessarily suggestive. Our courts have consistently held the prompt showing of a suspect to the victim is permissible due to the exigencies of the situation. The showup allows officers to learn quickly whether to release or hold the suspect and whether the search should be continued. See, e.g. State v. Ballard, 657 S.W.2d 302, 308 (Mo.App.1983). A showup may be impermissibly suggestive when the identification is made as a response to suggestions or encouragement of the police, but it is not suggestive when it is based upon the witness' own recollection and observation of the defendant's appearance. State v. Overstreet, 694 S.W.2d 491, 495 (Mo.App.1985); State v. Johnson, 618 S.W.2d 443, 445 (Mo.App.1981). There is no evidence here these identifications were the products of suggestion. North had already given a description, identified defendant's photograph and the police made no suggestive comments.

Defendant next argues North's in-court identification testimony was the result of suggestive pretrial procedures and had no independent basis for its admissibility. As discussed above, the pretrial identification procedures were not impermissibly suggestive. Even if they were, suggestiveness alone does not require exclusion of identification testimony. Manson v. Brathwaite, 432 U.S. 98, 113, 97 S.Ct. 2243, 2252, 53 L.Ed.2d 140 (1977); Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972). "Reliability", not suggestiveness, "is the linchpin in determining the...