State v. Reasonover, 47807

• Decision Date: 05 November 1985
• Docket Number: No. 47807,47807
• Citation: 700 S.W.2d 178
• Parties: STATE of Missouri, Respondent, v. Ellen REASONOVER, Appellant.
• Court: Missouri Court of Appeals

Page 178

700 S.W.2d 178

STATE of Missouri, Respondent, v. Ellen REASONOVER, Appellant.

No. 47807.

Missouri Court of Appeals, Eastern District Division Two.

Nov. 5, 1985.

MacArthur Moten, St. Louis, George E. Hairston, NAACP, Brooklyn, N.Y., for appellant.

William L. Webster, Atty. Gen., Gary L. Gardner, Asst. Atty. Gen., Jefferson City, for respondent.

SIMON, Presiding Judge.

Ellen Reasonover, appellant, appeals her conviction for stealing, a class C felony, § 570.030 RSMo 1978, and seven year sentence, pursuant to the jury's verdict in the Circuit Court of St. Louis County.

On appeal, appellant contends the trial court erred in: (1) failing to suppress unreliable and suggestive identification testimony; (2) failing to suppress identification testimony which was based on an illegally obtained photograph; (3) failing to exclude inadmissible hearsay testimony; (4) failing to order full disclosure of the consideration offered in exchange for testimony; (5) failing to require the best evidence in regard to the value of the lost property; (6) failing to instruct the jury on a lesser and included offense; (7) failing to hold an instruction conference; (8) failing sua sponte to declare a mistrial because of ineffective assistance of counsel; (9) failing to dismiss the charge due to insufficient evidence. We affirm.

Viewed most favorably to the state, the evidence established that on February 3, 1983, at approximately 5:50 p.m., a 1979 grey Mercury sedan pulled into a Sunoco service station located at Highway 141 and Olive Street in West St. Louis County. The car was occupied by two men and one woman, the appellant. The service station was manned by the manager, Charles Zeiter, and Channing Kronauge, an attendant. The appellant was the first to exit the car. She walked over to the brightly lit office and went inside to purchase cigarettes. As Zeiter left the office to service the automobile, he looked at the woman for 15-20 seconds and passed within five feet of the appellant's unobstructed face which he viewed for about 7.5 seconds. Kronauge was in the office also, getting change from an unlocked cash box for another customer. Kronauge then left the office. The appellant was left alone in the office for approximately five minutes. During the time that the appellant was alone in the office, Zeiter was busy checking the fluids underneath the hood of the Mercury per the instructions of the driver and Kronauge was giving directions to the other passenger in the Mercury. Soon after, the appellant and the two men left together without making any purchases. Zeiter and Kronauge went into the office and discovered that money had been removed from the cash box. The police were notified of the theft at 5:56 p.m. When the police arrived, only Zeiter was able to identify the appellant. He described her as being about 25-30 years old, dark complected, about five feet ten inches tall, one hundred fifty pounds, with short curly hair, and dressed in blue jeans and a grey knee length coat. Zeiter was unable to determine the amount of the loss until the standard procedure of pump reading was made the morning of the next day. The pump reading showed that the previous day's receipts were $423.00 short. Zeiter admitted that he never saw the appellant remove the money.

On February 7, 1983, Zeiter was asked to view some photos of men and women by Captain Dan Chapman of the Dellwood Police Department. Zeiter chose two photos, a photo of the appellant and a photo of the driver, Stanley White, appellant's ex-boyfriend. Zeiter stated he was 100% sure on his identification of the appellant, 90% sure of his identification of the driver, and that he was in no way coached by Captain Chapman.

On February 8, 1983, Zeiter, accompanied by Chapman, viewed a female lineup at the St. Louis County Minimum Security Institution. Zeiter identified the appellant who was dressed in a grey coat and blue jeans. Zeiter was 100% sure of his identification. On February 9, 1983, Zeiter viewed a male lineup and chose Stanley White. However, he was only 90% sure of his identification of White.

Further, the evidence showed that on February 9, 1983, appellant had a conversation with Mary Ellen Lyner in the presence of three other inmates in a holdover cell at the St. Louis County Courthouse. Lyner testified that the appellant sat down next to her and stated "those motherfuckers picked me out of a lineup. I told him we should have blown their brains out." Lyner also testified that one week later she had another conversation with the appellant at the Gumbo detention center. Lyner testified that appellant said "she was going to tell her lawyer the only reason she had been at the gas station that day was to get change for a twenty dollar bill."

On February 23, 1983 Lyner contacted the St. Louis County Prosecuting Attorney's office and made an agreement for her testimony. The testimony showed that the agreement was consummated after Lyner, who has twelve felony convictions, revealed the extent of the aforementioned conversations. The agreement was a one year sentence on four forgery charges in exchange for her testimony. Additional evidence revealed that two other charges were nolle prossed after the deal was made. These dismissals were not part of the agreement. Lyner was placed on a work release program.

The appellant's first point concerns the in court identification of the appellant by Zeiter. The appellant claims want of due process because of the trial court's decision not to suppress Zeiter's identification testimony as invalid based upon unrealiability and suggestiveness. The attack is threefold: (1) that the on-scene description given by Zeiter to the police was unreliable; (2) that the photographic array on February 7 was suggestive; and (3) that the lineup on February 8 was suggestive.

The test of admissibility of identification testimony is not whether the out of court identification is suggestive, but rather, whether the in court identification is reliable based on recollections independent of the pretrial identification as assessed under the totality of the circumstances. State v. Littleton, 649 S.W.2d 225, 227 (Mo. banc 1983). The factors to be considered in determining whether identification testimony is sufficiently reliable include: (1) the opportunity of the witness to view the defendant at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the defendant; (4) the degree of certainty demonstrated by the witness at the confrontation; and (5) the length of time between the crime and the confrontation. Littleton at 227.

An application of these factors here confirms that the admission of the identification testimony did not violate due process. First, Zeiter had ample opportunity to view the appellant. The trial record indicates that the appellant and the two men were at the station for four to five minutes. In addition, Zeiter was in close proximity, five to six feet, to the appellant. He had a clear view of the front and side of appellant's face. Second, the record indicates that Zeiter was able to focus a great degree of attention on the appellant. He saw the appellant leave the car and watched her enter the station office. Furthermore, the service station was not busy at the time of her arrival and she was the only person to leave the car initially. Third, Zeiter's prior description of the appellant is accurate. The only challenge was to Zeiter's description of appellant's complexion and hair length. Zeiter identified the appellant as having a dark complexion with short curly hair. Our review of the photo exhibits indicate that although her contention may have some merit in comparison with the other ladies in the exhibits, Zeiter's description was substantially correct. Fourth, Zeiter stated he was 100% certain of his identification of both the photo and lineup confrontations. Fifth, the five day time lag between the time of crime and the lineup was not enough to undermine the reliability of the identification testimony. See State v. Higgins, 592 S.W.2d 151, 160-161 (Mo. banc 1979).

The second allegation concerns the alleged suggestiveness of the February 8, 1983 photo lineup. Specifically, appellant claims that because of her attractiveness and the fact that her photo was larger and of a different type, the lineup was impermissibly suggestive. The general rule is that the state is required to conduct lineups using people who have the same general characteristics. State v. Jackson, 657 S.W.2d 44, 46 (Mo.App.1983). However, it has been held that an array of standard "mug shots" with a different type of photo of a defendant did not make a photo lineup impermissibly suggestive. State v. Heffner, 641 S.W.2d 803, 806 (Mo.App.1982). Furthermore, it was stated in State v. Haymon, 639 S.W.2d 843, 845 (Mo.App.1982) that, it is unreasonable to assume that the members of a lineup can be identical in appearance. Dissimilarity in physical appearance alone is insufficient to establish impermissible suggestiveness. Further, if the defendant has some type of inherent physical abnormality or distinctive appearance, no lineup or photographic array can provide subjects reasonably close in appearance. Haymon at 845. Where defendant has distinctive characteristics the likelihood of misidentification may be nonexistent, regardless of the circumstances of the confrontation. Further, Zeiter received no coaching from the assisting officer and was one hundred percent (100%) sure of his identification. Accordingly, we hold that the photo lineup was not impermissibly suggestive.

Her final contention is that the physical lineup conducted on February 9, 1983 was impermissibly suggestive because of Zeiter's expectancy of viewing the appellant and because the subjects were of "contrasting heights and other stuff." Our review of the photographic record of the physical lineup shows six black women. The...