State v. Morgan, 10931

• Decision Date: 11 January 1980
• Docket Number: No. 10931,10931
• Citation: 593 S.W.2d 256
• Parties: STATE of Missouri, Respondent, v. Gary Steven MORGAN, Appellant.
• Court: Missouri Court of Appeals

Page 256

593 S.W.2d 256

STATE of Missouri, Respondent, v. Gary Steven MORGAN, Appellant.

No. 10931.

Missouri Court of Appeals, Southern District, Division One.

Jan. 11, 1980.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

No appearance on oral argument for appellant.

TITUS, Presiding Judge.

Defendant was jury-convicted of the September 6, 1977, first degree robbery of the assistant manager of Wendy's Old Fashioned Hamburgers (Wendy's) located on West Sunshine in Springfield. He was court-sentenced to imprisonment for a term of eight years in accordance with the verdict. Upon this appeal by defendant, we recast the evidence in the light most favorable to the verdict. State v. Hegwood, 558 S.W.2d 378, 379(1) (Mo.App.1977).

Near 7:25 p. m. on the date in question, Wendy's employees Susan (cashier), Kay (sandwich maker) and Marlin (assistant manager) were at their places of hire when a man wearing a "blue denim-type baseball cap" and a white T-shirt entered the establishment. He was armed with a pistol resembling a .45 caliber automatic. As he approached Susan, the man placed the pistol alongside the register so it could not be seen generally and pointed it at her. Susan summoned Kay to "come here a second," and when Kay arrived at the register the bandit admonished the two women to "act natural." When Kay returned to her sandwich making, five feet distant from the cash register, Susan beckoned Marlin, who was told by the robber to put all of the register money in a paper sack or "I'll blow your head off." Unsurprisingly, Marlin took all the paper money from the register, placed it in a white sack which had "Wendy's Old Fashioned Hamburgers" printed on it in red and white lettering and handed it to the robber who immediately vacated the restaurant. Upon reaching the outside of the building, the robber was surreptitiously seen by Marlin to enter a white over green Pontiac Firebird which had been backed into a parking space. As the vehicle departed at a high speed, Marlin observed the vehicle "had a taillight out" and "had mud slung all over the back end of it." Susan, Kay and Marlin later testified they had close observation of the robber for a period of from three to five minutes.

At the time of the robbery, Corporal McCutchen of the Missouri State Highway Patrol was east of Springfield. Via radio, he received news of the robbery and the fact that the robber was driving a white over green Pontiac Firebird with one taillight out and a dirty license plate. The radio report described the long-haired, mustached robber as being in his twenties and dressed in a white T-shirt, blue jeans and boots. McCutchen drove to and parked atop the interchange of U.S. Highways 60 and 65 to oversee traffic traveling from Springfield. Near 7:37 p. m. the corporal observed a southbound white over green 1968 Pontiac traveling 80 to 85 miles per hour. As the vehicle passed, the corporal saw that one of its taillights was out. After a chase of over six miles, the Pontiac was halted. The driver was the defendant and he fit the radio description of the robber. Defendant was removed from the Pontiac and made to lie prone upon the ground until radioed-for assistance arrived. When help came, Corporal McCutchen, from outside the Pontiac, saw on the back floorboard of defendant's car a Wendy's bag (later found to contain $193 in currency) and a blue denim cap. These items were seized and defendant formally arrested. A search of the Pontiac resulted in finding a Crossman CO 2 pistol under the front seat. It had the appearance of a .45 caliber automatic pistol.

Defendant's first point relied on complains that the trial court erred in overruling his motion to suppress the in-court identification of defendant by Wendy's three employees "because said testimony was tainted by the suggestive manner in which (the) lineup was conducted in that it was calculated to produce irreparably harmful misidentification." As written, the point violates the mandatory requirements of Rule 84.04(d), V.A.M.R. Without resorting to the argument portion of the brief, something we are not required to do (State v. Hulsey, 557 S.W.2d 715, 717(1) (Mo.App.1977)), there is no clue as to "wherein and why" it is claimed the way the lineup was conducted tainted the in-court identification testimony or was calculated to produce irreparably harmful misidentification.

But assuming this point was properly before the court, which it is not, it would be ruled against defendant. "Even if lineup procedures are suggestive, and the evidence here does not support a finding of undue suggestiveness, identification testimony by a witness is admissible if there exists an independent source of the identification. 'The presence of an independent source will serve to remove any taint that might result from a suggestive confrontation, (cites omitted).' State v. Davis, 529 S.W.2d 10, 14 (Mo.App.1975). '(I)t is no longer open to argument in Missouri that, even though the . . . line-up identifications are tainted or in some way suggestive, where there is an untainted, positive in-court identification made upon a factual basis independent from such . . . line-up procedures, such in-court identification is proper. (cites omitted).' State v. Ealey, 515 S.W.2d 778, 780 (Mo.App.1974). This principle applies to testimony about both a pretrial identification (Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972)) and an in-court identification (State v. Davis, supra; State v. Ealey, supra; State v. Bivens, 558 S.W.2d 296 (Mo.App.1977)). If there is proof of an independent source of observation on which a witness has based his identification testimony, the court need not examine the 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)." State v. Csolak, 571 S.W.2d 118, 123-124(9-11) (Mo.App.1978).

As stated in Neil v. Biggers, Supra, 409 U.S. at 199, 93 S.Ct. at 382, 34 L.Ed.2d at 411, "the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation."

In the instant case, and without the necessity of recasting details, the Wendy's employees had an unobstructed, close-up view of the criminal's...