State v. Sanders, WD
| Decision Date | 01 September 1981 |
| Docket Number | No. WD,WD |
| Citation | 621 S.W.2d 386 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. John L. SANDERS, Defendant-Appellant. 32032. |
| Court | Missouri Court of Appeals |
James W. Fletcher, Public Defender, Sean D. O'Brien, Asst. Public Defender, Kansas City, for defendant-appellant.
John Ashcroft, Atty. Gen., Nancy J. Appelquist, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Before MANFORD, P. J., and DIXON and NUGENT, JJ.
Defendant appeals his conviction for rape and first degree robbery. Consecutive sentences of 25 years for rape and 22 years for robbery were imposed.
Defendant challenges the identification testimony of the victim and asserts that hearsay evidence was improperly admitted. The convictions are affirmed.
The defendant does not challenge the sufficiency of the evidence, but some statement of the facts is necessary for a disposition of the identification issue. The victim was home on the morning of October 26, 1978, when she received a telephone call from a man seeking to return some shirts belonging to her boyfriend, Stephen. She agreed to accept the shirts, and later, about 10:00 to 10:30 a. m., a man came to her door. She viewed him through the peephole and decided not to respond to his knock. About twenty or thirty minutes later, she received a second call and again agreed to accept the shirts.
About 11:00 a. m., she met a man outside her apartment building. He handed her a box and attempted to give her some pills for Stephen to sell. At first she refused, but he prevailed on her to accept the pills. He then asked to use the telephone to confirm the transaction. When she discovered that no other telephone was available nearby, she admitted him to her apartment because she thought he was a friend of Stephen.
The victim opened the box, found one shirt, and looked up to see the man pointing a gun at her. He put her children in a closet, tied her to the bed, and raped her. After taking $40 in cash, her wallet, a digital clock, a camera, and some clothing, the assailant left. Except while he tied her to the bed, the assailant held a gun throughout the episode. She freed herself and her children and called the police. They found her "very upset." They took her to a hospital for examination. That evening, a police officer presented five photographs for her to view. She selected defendant as the culprit and in December, 1978, identified the defendant in a three-man lineup.
Defendant asserts that both the photographic array and the lineup were impermissibly suggestive and, therefore, the in-court and out-of-court identification should have been suppressed.
The evidence concerning the identifications fails to support the allegations of suggestiveness. About six hours after the rape and robbery, the victim viewed photographs of five Negro males. Defendant was already a suspect, and the array consisted of his photograph and those of four others selected on the basis of similar facial characteristics, such as eyes, nose, and hair. The police officer said nothing except to preface the presentation with a reminder to look at basic facial features and to discount variables such as facial hair. The victim had described her attacker as wearing a full beard. Only the photograph of defendant showed a man with a full beard; however, one showed a man with a mustache and a goatee as well as the shadow of a full beard. One other photograph showed a man with a mustache and "some sort of chin whiskers." These facts arise from testimony; the photographic exhibits have not been filed in this court.
Defendant argues that only his photograph showed a man with a full beard. Actually, three showed men with at least some facial hair, and the police officer's caveat to disregard facial hair would tend to neutralize any imbalance in photographic identification.
The victim was not shown simultaneously an "array" of these photographs. The victim said that she was given a "stack" of photographs and looked at them one at a time. When she reached the third photograph, that of the defendant, she made the identification.
Persistently, defendant raises issues centering upon claims of suggestiveness in confrontations prior to in-court identifications. Invariably, as in the instant case, such claims are based upon a claim that some superficial distinction between the suspect and the other images or persons in the confrontation raises a question of suggestiveness.
The conduct of any sort of identification process is suggestive to the witness being requested to make an identification. Any rational person requested to view either a group of photographs or a lineup knows that there is some belief that the persons sought might be included in the group viewed. To that extent, any such procedure may be suggestive. It is only when such identification procedures become so suggestive that a substantial risk arises that a misidentification will occur that they become suspect.
The focus of an inquiry as to suggestiveness becomes a detailed examination of the circumstances of the process. This examination relates both to the objects of the confrontation either the nature of the photographic images or the physical attributes of those in the lineup as well as the conditions under which the identification occurs which will include any communications to the witness from those conducting the proceeding.
Considering first the persons involved in the confrontations, true look-alikes are not required. Paradoxically, true look-alikes might induce either misidentification of a person known to be innocent or produce an uncertainty of identification by the victim, thus destroying the whole value of the identification process. What is required to eliminate any taint of suggestiveness is a group of persons who share some commonality with the suspect in terms of the features relied upon by everyone for purposes of recognition of another person. The physical attributes not subject to alteration are of primary importance. Such physical attributes as size, sex, race, coloration, and general facial characteristics are such primary factors. Secondary to these factors are indicia of identification subject to alteration such as glasses, hair styles, both facial and otherwise, as well as clothing. Despite their secondary importance, such attributes as hair style, facial hair, or clothing might create suggestiveness, but only when, viewed in the whole context of the confrontation whether photographic or in person, they constitute the only focal point for identification. ...
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