State v. Parker
| Decision Date | 14 September 1970 |
| Docket Number | No. 54295,No. 2,54295,2 |
| Citation | 458 S.W.2d 241 |
| Parties | STATE of Missouri, Respondent, v. Lee Holden PARKER, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Peter H. Ruger, Asst. Atty. Gen., Jefferson City, for respondent.
Lee Holden Parker, appellant, pro se.
William R. Kirby (Court Appointed), St. Louis, for appellant.
Defendant was tried as a second offender for the crime of robbery first degree by means of a dangerous and deadly weapon. After the jury returned a verdict of guilty, the court assessed punishment at confinement for fifteen years. Sections 556.280, 560.120 and 560.135, RSMo 1959, V.A.M.S.
On the evening of July 11, 1967, Rita and George, a young couple then engaged, had been shopping and purchased some glassware. At approximately 9:45 P.M. they were sitting in a convertible automobile, with the top down, at a parking lot on 12th Street in St. Louis, Missouri, across from the residence apartment of Rita and her parents. As she testified: 'A man came up to the car and held a knife to my throat, he said he needed the car * * *.' The assailant then handed her a roll of tape, and, 'He told us not to be loud, if we would do what he said he wouldn't hurt us, and then he told me to tape George's wrists * * * then he taped mine.' He then requested instructions for raising the top, and after doing, so, drove west on Interstate 70 to a point west of St. Charles. He drove into a field, had George get out, taped his feet and wrists together and left him on the ground. Then, 'He took my money ($25 from her purse) and told me to get out and started to tape my feet and he ran out of tape, and then he got the string from my package.' After he drove off, George was able to untie the tape and string, and they walked to a farm home and called the officials. There was further testimony that the assailant wore gloves, had the tape in a paper bag, said he was an escaped convict, had served seventeen years, 'had to get out of town'; and that he 'made a reference to having a gun on his waistband * * * I saw (the top) of what I thought was a holster.' George's testimony was essentially the same, and $10 had been taken from his wallet. The car was found two days later parked at the rear of a building about one and a half blocks from Dismas House where defendant lived.
Rita and George gave a description of their assailant to the police of St. Charles, but the primary issues now raised pertain to the activities of the two detectives assigned to the case by the metropolitan police department of St. Louis. The following day they accompanied the victims to the field and recovered some of the tape. During the next few days, on several occasions, they exhibited some fifty to two hundred photographs to Rita and George. Of the group, George had picked one that 'resembled' defendant, but it was agreed to be of another person. An officer testified that on the morning of July 18, 'We received information from a confidential informant that (defendant was) responsible for the offense.' The two detectives, Allers and Lepping, went to defendant's place of employment where he was made available in an office of the employer. Defendant was placed under arrest, without a warrant, and searched. He had a pocket knife with a blade approximately two inches long. Defendant asked 'to get his stuff out of his locker' and he took out a brown paper lunch bag which the officers checked. Therein, they found a black leather pipe holder. Defendant was taken to the police station, and the two officers then went to Dismas House. After obtaining a key from the manager, defendant's locker was searched and certain property was taken. However, the trial court sustained a motion to suppress the use of such items as evidence, and the propriety of the locker search is not at issue. On the same day, July 18, a photograph was taken of defendant (Exhibit C). This single picture was shown to the victims and identified as the assailant. Later they went to the police station to observe a 'lineup' but none was had. Charges were filed and defendant was scheduled for arraignment on July 21. The officers had the victims accompany them to the courtroom where three or four groups of men (consisting of approximately ten each) were brought in for arraignment. Defendant was identified by the victims, and, as shown by the evidence, without any suggestive acts or comments by the officers.
At the trial both Rita and George positively identified defendant as their assailant. The defendant did not testify nor was any evidence offered on his behalf. Although he was represented by experienced and skilled counsel appointed by the court, upon his insistence, defendant acted as his own attorney through much of the trial.
The first point argued on appeal is that the in-court identification was 'tainted' by (1) the showing of the single photograph and (2) the victims' observation of him as he appeared for arraignment. The state proceeded under the theory that the in-court identification had a basis independent of either the arraignment confrontation or single photograph. This conclusion was based, factually, on both victims being close to defendant for approximately one hour and a half. The first encounter was under the new fluorescent lights of the parking lot. In fact, defendant emphasized throughout cross-examination, that both had every opportunity to clearly see their assailant. The apparent purpose was to impress the jury with the fact neither had mentioned, nor perhaps even seen, a tatoo on one arm and a scar on the left side of his forehead. Neither officer had noticed the scar prior to trial where it was described as being 'red.'
Of course, the most basic requirement of the trial of an accused is that he be shown to be that person who committed the offense. From the innumerable cases on 'identification,' it is obvious that the courts jealously guard against any chance of error. For this reason, even the approved investigative methods, be it confrontation or photographic comparison, may be found improper if 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377 at 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). The court went on to say, loc. cit 384, 88 S.Ct. 967, that...
To continue reading
Request your trial
-
State v. Higgins
...a very substantial likelihood of Irreparable misidentification." Id. at 384, 88 S.Ct. at 971 (1967). (Emphasis supplied.) State v. Parker, 458 S.W.2d 241, 243 (Mo.1970). Whether this danger exists in a particular case depends on the totality of the surrounding circumstances. Simmons v. Unit......
-
Parker v. Swenson
...No. 11/Defendant's Exhibit C, the July 18 "mugshot" taken by the St. Louis Police immediately after petitioner's arrest. (State v. Parker, 458 S.W.2d 241, 242.) McQuade testified that State's Exhibit No. 13 was the photograph shown to him on July 18. Petitioner contends that the photograph ......
-
State v. Berry, 61750
...be given to the presence of an independent factual basis for the identification and a positive courtroom identification. State v. Parker, 458 S.W.2d 241, 244 (Mo. 1970); State v. White, 549 S.W.2d 914, 917 (Mo.App. 1977); State v. Holland, 534 S.W.2d 590, 592 (Mo.App. 1976); State v. Rutled......
-
State v. Dayton
...of identification, (2) the absence of any suggestive influence by others and (3) the positive courtroom identification. State v. Parker, 458 S.W.2d 241, 244(2) (Mo.1970); State v. Holland, Mo.App., 534 S.W.2d 590 (adopted March 1, 1976). The presence of a single suggestive element will not ......