State v. Murphy

• Decision Date: 25 March 1974
• Docket Number: No. 9476,9476
• Citation: State v. Murphy, 508 S.W.2d 269 (Mo. App. 1974)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Raymond Lewis MURPHY, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 269

508 S.W.2d 269

STATE of Missouri, Plaintiff-Respondent, v. Raymond Lewis MURPHY, Defendant-Appellant.

No. 9476.

Missouri Court of Appeals, Springfield District.

March 25, 1974.

Max W. Foust and Russell D. Jacobson, Morris, Foust, Moudy & Beckett, Kansas City, for defendant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

PAUL E. CARVER, Special Judge.

Raymond Lewis Murphy was found guilty by a jury in the Circuit Court of greene County of burglary in the first degree under the provisions of § 560.040, RSMo 1969, V.A.M.S., and was by their verdict sentenced to imprisonment for a term of 10 years under the supervision and custody of the State Department of Corrections of the State of Missouri. From the judgment and sentencing resulting therefrom he has appealed to this court.

Defendant, prior to trial on the merits of his case, filed his 'Motion to Suppress Identification Testimony', which is as follows:

'Comes now the above named defendant and respectfully moves the Court to suppress both the pre-trial and the trial identification of the defendant as the perpetrator of the crime charged in the Information in this cause and his grounds therefor are as follows:

'1. Defendant was first identified by witness by means of suggestive photographs which were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution.

'2. The defendant was identified by the witness on the 10th day of February, 1972, at a pre-trial confrontation which was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution.

'3. That defendant was further identified by the witness in the company of law officers at a hospital in Cedar County, Missouri, which confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution.

'4. The in-court trial identification of the witness does not have a source independent of the unconstitutional pretrial identification as set forth above, and therefore is not admissible at trial.'

On October 5, 1972, the trial judge held a hearing on defendant's motion and heard evidence thereon. The following evidence was presented in support of defendant's motion.

Mrs. Anna Mitchell was called as a witness and testified that on October 7, 1971, she resided at Willard in Greene County, Missouri. That on that date she was not feeling well and had remained in bed. At about 8:45 a.m. the door bell rang several times, but being ill, she did not answer the door. After the door bell had stopped ringing, she went downstairs and discovered two men in her home, one of whom was kneeling to unplug a TV set and the other holding the set in his hands. She yelled at them and they ran from the house and down the driveway and escaped. This occurred during the daytime, and she stated that she saw one of the men face to face from about eight feet away and 'practically in the same room'; and that the room had 'plenty of illumination' and that her eyesight was good. Mrs. Mitchell identified this man as the defendant.

She gave the sheriff's deputies descriptions of both men and said she saw the face of the other man as well as that of defendant. She viewed photographs of various persons contained in 'mug books' and also a number of loose photos which were brought out to her by the Greene County Sheriff's deputies to view. She said that she identified the other man from the 'mug book' photos and a 'couple of weeks' later she picked out defendant's photo from a group of 30 or 40 pictures; and she testified that none of the deputies did anything to suggest that the photo that she picked was the defendant.

Mrs. Mitchell testified that she was thereafter contacted by one of the Greene County Sheriff's deputies, and asked to accompany him on a trip, and she replied that she would do anything she could to help. The next day she and two deputy sheriffs (Detectives Jesse Craig and Ivan Johnson) drove to El Dorado Springs in Cedar County, but she stated that they didn't tell her where they were going. She testified that during this trip she did not ask any questions of the deputies about the purpose of the trip or talk about the criminal case, and was not asked any questions by them except for her identification to the officers of the defendant, Mr. Murphy, in the Cedar County Hospital.

After arriving at the hospital parking lot, she and the officers sat in the car until about noon, on what Mrs. Mitchell described as a 'stake-out', and the officers asked her to keep her 'eyes open'. They then entered the hospital waiting room where she observed a number of people such as nurses, nurses' aides, doctors, and others. She walked out into a hospital hallway where she saw a man walk past her whom she identified to the deputies as one of the men she saw in her home on October 7th, and whom she further identified as the defendant here. She stated that although no one told her the purpose of the trip to El Dorado Springs, that she knew that she was there to 'look for somebody'.

Mrs. Mitchell stated that she had thereafter seen Mr. Murphy at the preliminary hearing and at this motion hearing, and that she had no question about her identification of the defendant.

The next witness was a former Cedar County deputy sheriff, Don F. Martin, who testified that he was with Mrs. Mitchell and the other deputies on the day they went to the Cedar County Hospital. He said that before she went to the hospital, she told him 'about what happened at her home.' He denied telling her why she was there and what she was to do. Mr. Martin also stated that he could 'possibly' have told Mrs. Mitchell that he knew someone who more or less answered the description she had given and they wanted her to take a look at him to see if he was the man, and may have told her that there was someone at the hospital 'that might be who she was looking for.' He stated that he usually didn't prod witnesses. He denied pointing defendant out to Mrs. Mitchell. He further stated that when she picked him out, that there were several other people around (a doctor, the hospital administrator, a custodian, and perhaps another visitor).

Jesse Craig, a Greene County deputy, testified that he had received a description of the men she found in her home, and at a later date he came out on at least two occasions with a number of individual photos for her to view. He showed her six or eight photos on his second visit, including one that he said was of Mr. Murphy. He stated that he and Deputy Ivan Johnson took Mrs. Mitchell to the hospital on January 14, 1972, and while he didn't tell her that the trip was for the purpose of identifying someone who burglarized her home, that he assumed she knew this because it was the only business that they had with her. On arrival at El Dorado Springs, Mr. Craig told her that wherever they 'went during the entire trip to keep her eyes open, observe everyone she seen, for the purpose of seeing, if she could see anyone whom she recognized.' He testified that she did identify Mr. Murphy while they were in the hospital. He told her to stand in the corridor of the hospital near the main desk and observe while he and the other deputy stayed in the waiting room, and that she then saw and identified Raymond Lewis Murphy, the defendant. He said that there were other people around there during this time. In his further testimony as to the identification, Craig said that when he had shown her the photos, which he said included Mr. Murphy's picture, she stated that she 'would like to see this man in person', which Craig indicated was not a sufficient identification for his purposes. Craig testified that after this occurred, he began working on arrangements for the trip to El Dorado Springs to allow her to see Mr. Murphy in person. He stated that he didn't try to suggest to pick out anyone when she looked at the photos, and didn't help her or try to point anyone out to her at the hospital.

The last witness on the motion was Deputy Ivan Johnson, who had gone out to Mrs. Mitchell's home on October 7th to investigate the occurrence, and took the description of the men from her. He stated that she described one man as tall and the other as looking like a Mexican. He testified that she made the statement about desiring to see the person in one of the photos brought by Mr. Craig for her to view, and that she would not identify him from the photo alone.

This matter was taken under advisement and on October 18, 1972, was denied by the trial judge.

At the trial Mrs. Mitchell testified that on October 7, 1971, about 8:45 in the morning, that she was awakened in the bedroom of her home by the door bell ringing; that she heard conversational tone voices in the family room of her home and went into the room, where she found two men at her color TV set; one man was holding the set and the other unplugging it. She identified the defendant, Mr. Murphy, as the man holding the TV; she saw him first from about 10 feet away, for a few seconds, face to face. She demanded to know what they were doing there, and both ran from the house. She unsuccessfully chased them, then called the sheriff's office to report the incident, and then found that the patio door screen had been cut and door jimmied.

She gave the sheriff's deputies descriptions of the two men. She said that the men 'appeared to be speaking some other language, maybe Mexican.'

Thereafter, the sheriff's deputies brought by 'mug books' containing a number of photos of individuals, for her to view in order to try and...