State v. Price, 47775
| Decision Date | 16 April 1985 |
| Docket Number | No. 47775,47775 |
| Citation | 689 S.W.2d 380 |
| Parties | STATE of Missouri, Respondent, v. Allen PRICE, Appellant. |
| Court | Missouri Court of Appeals |
David Lawrence Hoven, Private Atty., Ballwin, for appellant.
Kristie Lynne Green, Atty. Gen., Jefferson City, for respondent.
Defendant was convicted by a jury of first degree robbery and armed criminal action. The trial court sentenced defendant to twenty years on the first degree robbery charge and five years on the armed criminal action charge, the sentences to run consecutively. On appeal he argues that (1) the trial court erred in overruling defendant's motion to suppress identification; and (2) the trial court erred in refusing to submit a separate identity instruction. We find no error and affirm the judgment of conviction.
On November 17, 1982, a man entered the Utah Food Market in the city of St. Louis and ordered a carton of cigarettes from the night manager, Mary Lotz. As she turned to hand the cigarettes to the man, he was pointing a gun at her and demanded money. Lotz gave him the money out of the cash register. The man then ordered her to lie down behind the counter, and he fled. Lotz estimated that the incident took about five minutes.
Following the robbery, Lotz called the police and gave them a description of the man, including the fact that he had two purple scars on his right cheek. Approximately four days after the robbery, the police called Lotz to the station for the purpose of viewing a lineup. Lotz picked defendant as the robber out of the five men in the lineup. The five men were of similar height, weight, and dress, and each had a mustache. Lotz recognized two purple scars on the defendant's cheek, and also noticed bruises and cuts on the defendant's face which were not on the robber.
Defendant was charged with first degree robbery and armed criminal action. At trial Lotz testified about the robbery and the lineup. She testified that although defendant was the only man in the lineup with a scarred and bruised face, she was not attracted to him because of his facial damage but because "[she] recognized him as the man that robbed [her]." Lotz also made an in-court identification of the defendant. The defendant did not testify.
Defendant first contends that the pre-trial lineup was impermissibly suggestive, thus rendering the in-court identification unreliable. Defendant asserts that the lineup was suggestive because he was the only man with a scarred and bruised face which attracted the witness' attention to him.
To suppress an in-court identification, two questions must be answered affirmatively: (1) whether the pre-trial identification procedures employed by the police were impermissibly suggestive, and (2) if so, whether they were so impermissibly suggestive as to create a very substantial likelihood of an irreparable misidentification at trial. These questions are to be answered in light of the "totality of the circumstances." State v. Higgins, 592 S.W.2d 151, 159 (Mo. banc 1979) appeal dismissed 446 U.S. 902, 100 S.Ct. 1825, 64 L.Ed.2d 254 (1980).
We do not agree that the pre-trial lineup procedure was impermissibly suggestive. Lotz was shown five men of similar height, weight and dress. Each had a mustache. It is true that defendant was the only man with a scarred and bruised face. But dissimilarity in physical appearance between individuals composing a lineup, standing alone, is insufficient to establish impermissible suggestiveness. State v. Pennington, 618 S.W.2d 614, 620 (1981); State v. Burns, 671 S.W.2d 306, 310 (Mo.App.1984); State v. Haymon, 639 S.W.2d 843, 845 (Mo.App.1982). This case is virtually identical to Haymon where the defendant had a severely scarred chin. There, the court stated
It is unreasonable to expect the police to assemble a lineup where each man has a facial scar. All...
To continue reading
Request your trial
-
State v. Gilmore
...See State v. Higgins, 592 S.W.2d 151, 161 n. 14 (Mo. banc 1979); State v. Glass, 703 S.W.2d 81, 83 (Mo.App.1985); State v. Price, 689 S.W.2d 380, 382-83 (Mo.App.1985); State v. Moton, 671 S.W.2d 347 (Mo.App.1984); State v. Rider, 664 S.W.2d 617, 620 (Mo.App.1984); State v. Allen, 663 S.W.2d......
-
State v. Long
...rejected. State v. Quinn, 594 S.W.2d 599, 605 (Mo. banc 1980); Cf., State v. Murphy, 415 S.W.2d 758 (Mo. banc 1967); State v. Price, 689 S.W.2d 380, 382 (Mo.App.1985); State v. Moton, 671 S.W.2d 347 (Mo.App.1984); State v. McCain, 662 S.W.2d 864, 866 (Mo.App.1983); State v. Cotton, 660 S.W.......
-
State v. Cooper
...the suggestiveness was sufficient to create a very substantial likelihood of an irreparable misidentification at trial. State v. Price, 689 S.W.2d 380, 382 (Mo.App.1985). Each of these questions must be answered in light of the totality of circumstances. State v. Higgins, 592 S.W.2d 151, 15......
-
State v. Stephens, s. 13832
...so impermissibly suggestive as to result in very substantial likelihood of an irreparable mis-identification at trial. State v. Price, 689 S.W.2d 380 (Mo.App.1985). If the police procedures are found to be impermissibly suggestive, then the question becomes whether there was an independent ......