State v. Mullins

• Decision Date: 30 December 1977
• Docket Number: No. 12135-,12135-
• Citation: 260 N.W.2d 628
• Parties: STATE of South Dakota, Plaintiff and Respondent, v. David Corwin MULLINS, Defendant and Appellant. a-FGD.
• Court: South Dakota Supreme Court

Page 628

260 N.W.2d 628

STATE of South Dakota, Plaintiff and Respondent, v. David Corwin MULLINS, Defendant and Appellant.

No. 12135-a-FGD.

Supreme Court of South Dakota.

Argued Oct. 7, 1977.

Decided Dec. 30, 1977.

Peter H. Lieberman, Asst. Atty. Gen., Pierre (William J. Janklow, Atty. Gen., Pierre, on brief), for plaintiff and respondent.

William D. Kenyon, Sioux Falls, for defendant and appellant.

DUNN, Chief Justice.

David Mullins appeals his conviction for first degree robbery, challenging the sufficiency of eyewitness identification to sustain a guilty verdict. He was convicted by a Minnehaha County jury on November 2, 1976, and sentenced to ten years in the penitentiary, solely on the basis of in-court identification by two eyewitnesses to the crime. On appeal, the defendant contends that the identifications were too uncertain to send the question to the jury, and he indirectly challenges the procedure by which the identifications were made. We affirm.

In the late evening of October 3, 1975, Lem's Liquor Store in Sioux Falls was robbed by an armed man. The only two witnesses were the owner, Mildred Totman, and a friend named Marie Vanderloo. They indicated that they had had a good look at the robber from a distance of about three feet in a well-lighted store. The description given the investigating officer the night of the robbery was as follows:

"a black male subject approximately six foot tall weighing about a hundred and sixty to a hundred and seventy pounds having short, black kinky Afro hair, having a mark on the left cheek, or on his face, possibly a scar or a mole, wearing a cotton type of Navy jacket something she believed to be a cotton type Navy jacket, zipper front that was zipped about halfway down; not wearing a shirt * * *."

Shortly after the robbery, Mildred Totman and Marie Vanderloo were shown five photographs of a black man. Each of the women independently picked the picture of the defendant from the five and stated that it "looked like him," but neither would state positively that it was the person she had seen robbing the store. Mildred Totman indicated a desire to see the defendant in a lineup before making a definite identification.

A lineup was never held, however, and the next identification was at the preliminary hearing, where the defendant was sitting alone behind the counsel table. For some reason which is not shown in the record, he did not have an attorney at the preliminary hearing. Mildred Totman was the only witness at the preliminary hearing, and she identified him as the robber.

At trial, Mrs. Totman described the robber's shirt as a "kind of a V-neck, long-sleeved shirt" with "no zipper to it." Miss Vanderloo called it a blue, levi-type jean jacket that had buttons down the front. Other discrepancies in the descriptions of the robber's clothing were brought out by defense counsel. Both women made positive identifications of the defendant as the robber at the trial. Miss Vanderloo denied ever having any doubt about the identity of the robber, but her testimony was impeached by testimony of the police officer who showed her the photographs. He stated she was uncertain about the identity of the robber when shown the pictures, although he admitted both women separately indicated that the defendant "looked like" the robber. No testimony or evidence of any type was introduced to connect the defendant with the robbery other than the eyewitness identification by the women.

The sole issue raised on appeal is the sufficiency of the evidence to sustain a conviction. It is settled law that the credible testimony of one identification witness is sufficient to support a conviction if the witness viewed the accused under such circumstances as would permit positive identification to be made. People v. Jones, 1975, 60 Ill.2d 300, 325 N.E.2d 601; Estill v. People, 1967, 161 Colo. 499, 423 P.2d 21; State v. Gluff, 1969, 285 Minn. 148, 172 N.W.2d 63; State v. Hellem, 1971, 289 Minn. 477, 185 N.W.2d 698; Russell v. United States, 1975, D.C.App., 348 A.2d 299. In this case there were two eyewitnesses who observed the robber from a distance of three feet in a well-lighted store. Shortly after the robbery, each witness independently picked the defendant's picture from an array of five photographs of black men and indicated that it "looked like" the robber. Both women made positive in-court identifications of the defendant as the robber without objection from defense counsel. Minor discrepancies in the witnesses' descriptions of the robber's clothing go to the weight and credibility of the identification evidence, and it was for the jury to resolve these conflicts. People v. Fanizza, 1967, 251 Cal.App.2d 484, 59 Cal.Rptr. 544; Taylor v. State, 1976, 74 Wis.2d 255, 246 N.W.2d 516; State v. McKay, 1975, N.D., 234 N.W.2d 853. We conclude...